No. 31157: R309-352. Capacity Development Program

DAR File No.: 31157
Filed: 04/18/2008, 10:55
Received by: NL

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Subsection 19-4-104(1)(a)(v) grants the Drinking Water Board authority to implement the Capacity Development Program and govern the allotment of federal funds to public water systems to assist their compliance with the Federal 1996 Reauthorized Safe Drinking Water Act (SDWA).

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

The Division of Drinking Water (DDW) received one set of comments regarding the rule. The commenter questioned several aspects of the rule, namely: who should prepare the Capacity Assessment Plan and/or Worksheets, the cost to property owners/developers to prepare the plan, whether or not personal financial information is required by the rule, disclosing the location of system sources and/or storage facilities, the size of system the rule was written for, and duplication of information to be provided to DDW and again to the Public Utilities Commission.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

The 1996 SDWA amendments outlined the requirements of the Capacity Development Program. The program mandates that states ensure that all new Community Water Systems and Non-Transient, Non-Community Water Systems demonstrate the technical, managerial, and financial capacity (capability) to comply with SDWA and the National Primary Drinking Water Regulations (NPDWR). In addition, states must ensure that existing water systems demonstrate these capabilities before they can be awarded federal drinking water financial assistance from the federal Drinking Water State Revolving Fund. Each year the states are granted capitalization funds from EPA to finance their individual Federal SRF programs. If a state does not have an acceptable Capacity Development Program, 20% of those funds will be withheld (SDWA Section 1452(a)(1)(G)(i)). The State of Utah is currently granted over $8,000,000 annually for its federal SRF program, losing more than $1,600,000 of those funds each year would seriously impair the ability of the SRF Program to achieve its goal of providing water systems with funding and technical assistance to aid them in supplying their customers with sufficient quantities of quality drinking water, as well as complying with SDWA and the NPDWR. Reauthorization and continuation of Rule R309-352 Capacity Development Program is key to maintaining Utah's ability to meet the requirements of the 1996 SDWA amendments and receive its full allotment of federal capitalization funds. The division finds the submitted comments nonsubstantive. The rule does not specify who is to prepare the Capacity Assessment Plan and/or Worksheets and does not require that engineers or accountants be hired to do so. The information to be included in the plan or worksheets should be readily available and easily transferable into the documentation required by rule. This information would be necessary for any business entity to determine financial viability, both current and future. Personal financial information of the owner/developer is not required by the rule, only pertinent O&M cost data is required so DDW can ascertain the system's long-term viability. There is also no requirement that specific system infrastructure locations be divulged in the plan or worksheets. The rule requires sufficient information to determine that the system has sufficient source and storage capacity to meet state rules. The rule does not apply to systems that do not fit the definition of "public water system" (PWS), namely at least 15 service connections or 25 individuals. However, where it is obvious that the development has at least 15 lots and will be a PWS in the future, a capacity assessment is required. The type of information required by the rule is the same for very small systems as for large systems. There may be some areas where information required by the rule and included in the plan or worksheets is duplicated elsewhere, either in division rules or with other agencies. However, it is minimal and the EPA has determined that any additional cost incurred during the capacity assessment review process should not be overly burdensome. This EPA review is mandated any time EPA promulgates a new rule that potentially impacts a water system's financial viability. Therefore, this rule should be continued.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Drinking Water
150 N 1950 W
SALT LAKE CITY UT 84116-3085

Direct questions regarding this rule to:

Patti Fauver at the above address, by phone at 801-536-4196, by FAX at 801-536-4211, or by Internet E-mail at [e-mail]

Authorized by:

Ken Bousfield, Director