No. 42057 (Amendment): Section R309-605-7. Drinking Water Source Protection (DWSP) for Surface Sources

(Amendment)

DAR File No.: 42057
Filed: 09/01/2017 04:13:34 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule is being amended to improve efficiency of the Drinking Water Source Protection (DWSP) Plan review process.

Summary of the rule or change:

The proposed amendment would allow the Director to authorize the designated the Division of Drinking Water (DDW) Source Protection Manager to "concur" with DWSP plans submitted by public water systems to DDW for review.

Statutory or constitutional authorization for this rule:

• Section 19-4-104

Anticipated cost or savings to:

the state budget:

In aggregate, the proposed amendment is anticipated to have no cost or savings to the state budget because it does not affect the state budget. It only affects operational procedures within DDW.

local governments:

In aggregate, the proposed amendment is anticipated to have no cost or savings to local governments because it does not affect them. It only affects operational procedures within DDW.

small businesses:

In aggregate, the proposed amendment is anticipated to have no cost or savings to small businesses because it does not affect them. It only affects operational procedures within DDW.

persons other than small businesses, businesses, or local governmental entities:

In aggregate, the proposed amendment is anticipated to have no cost or savings to persons other than small businesses, businesses, or local government entities because it does not affect such persons. It only affects operational procedures within DDW.

Compliance costs for affected persons:

The proposed amendment imposes no compliance costs on anyone.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposed amendment would not result in a fiscal impact to businesses because it does not affect any business; it only affects operational procedures within the Division of Drinking Water.

Alan Matheson, Executive Director

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

Environmental Quality
Drinking WaterRoom Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Melissa Noble at the above address, by phone at 801-536-4224, by FAX at , or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/16/2017

This rule may become effective on:

10/23/2017

Authorized by:

Alan Matheson, Executive Director

RULE TEXT

R309. Environmental Quality, Drinking Water.

R309-605. Source Protection: Drinking Water Source Protection for Surface Water Sources.

R309-605-7. Drinking Water Source Protection (DWSP) for Surface Sources.

(1) DWSP Plans

(a) Each PWS shall develop, submit, and implement a DWSP Plan for each of its surface water sources of drinking water.

(i) Recognizing that more than one PWS may jointly use a source from the same or nearby diversions, the Director encourages collaboration among such PWSs with joint use of a source in the development of a DWSP plan for that source. PWSs who jointly submit an acceptable DWSP plan per R309-605-7 for one surface water source above common point(s) of diversion, will be considered to have met the requirement of R309-605-7(1)(a). The deadline from R309-605-4(1) that would apply to such a collaboration would be associated with the largest population served by the individual parties to the agreement.

(b) Required Sections for DWSP Plans - DWSP Plans should be developed in accordance with the "Standard Report Format for Surface Sources". This document may be obtained from the Division. DWSP Plans must include the following eight sections:

(i) DWSP Delineation Report - A DWSP Delineation Report in accordance with R309-605-7(3) is the first section of a DWSP Plan.

(ii) Susceptibility Analysis and Determination - A susceptibility analysis and determination in accordance with R309-605-7(4) is the second section of a DWSP report.

(iii) Management Program to Control Each Preexisting Potential Contamination Source - Land management strategies to control each not adequately controlled preexisting potential contamination source in accordance with R309-605-7(5) is the third section of a DWSP Plan.

(iv) Management Program to Control or Prohibit Future Potential Contamination Sources - Land management strategies for controlling or prohibiting future potential contamination sources is the fourth section of a DWSP Plan. This must be in accordance with R309-605-7(6), must be consistent with the general provisions of this rule, and implemented to an extent allowed under the PWS's authority and jurisdiction.

(v) Implementation Schedule - The implementation schedule is the fifth section of a DWSP Plan. Each PWS shall develop a step-by-step implementation schedule which lists each of its proposed land management strategies with an implementation date for each strategy.

(vi) Resource Evaluation - The resource evaluation is the sixth section of a DWSP Plan. Each PWS shall assess the financial and other resources which may be required for it to implement each of its DWSP Plans and determine how these resources may be acquired.

(vii) Recordkeeping - Recordkeeping is the seventh section of a DWSP Plan. Each PWS shall document changes in each of its DWSP Plans as they are updated to show significant changes in conditions in the protection zones. As a DWSP Plan is executed, the PWS shall document any land management strategies that are implemented. These documents may include any of the following: ordinances, codes, permits, memoranda of understanding, public education programs, and so forth.

(viii) Public Notification - A method for, schedule for and example of the means for notifying the public water system's customers and consumers regarding the drinking water source water assessment and the results of that assessment is the last section of a DWSP plan. This must be in accordance with R309-605-7(7).

(ix) Existing watershed or resource management plans - In lieu of some or all of the report sections described in R309-605-7(1)(b), the PWS may submit watershed or resource management plans that in whole or in part meet the requirements of this rule. Such plans shall be submitted to the Director with a cover letter that fully explains how they meet the requirements of the current DWSP rules. Any required section described in R309-605-7(1)(b) that is not covered by the watershed or resource management plan must be addressed and submitted jointly. The watershed or resource management plans will be subject to the same review and approval process as any other section of the DWSP plan.

(c) DWSP Plan Administration - DWSP Plans shall be submitted, corrected, retained, implemented, updated, and revised according to the following:

(i) Submitting DWSP Plans - Each PWS shall submit a DWSP Plan to the Director in accordance with the schedule in R309-605-4(2) for each of its surface water sources of drinking water (a joint development and submittal of a DWSP plan is acceptable for PWSs with the joint use of a source, per R309-605-7(1)(a)(i).)

(ii) Correcting Deficiencies - Each PWS shall correct any deficiencies in a disapproved DWSP Plan and resubmit it to the Director within 90 days of the disapproval date.

(iii) Retaining DWSP Plans - Each PWS shall retain on its premises a current copy of each of its DWSP Plans. DWSP Plans shall be made available to the public upon request.

(iv) Implementing DWSP Plans - Each PWS shall begin implementing each of its DWSP Plans in accordance with its schedule in R309-605-7(1)(b)(v), within 180 days after submittal if they are not disapproved by the Director.

(v) Updating and Resubmitting DWSP Plans - Each PWS shall review and update its DWSP Plans as often as necessary to ensure that they show current conditions in the DWSP zones, but at least annually after the original due date (see R309-605-4(1)). Updated plans also document the implementation of land management strategies in the recordkeeping section. Updated DWSP Plans will be resubmitted to the Director every six years from their original due date, which is described in R309-605-4.

(vi) Revising DWSP Plans - Each PWS shall submit a revised DWSP Plan to the Director within 180 days after the reconstruction or redevelopment of any surface water source of drinking water which causes changes in source construction, source development, hydrogeology, delineation, potential contamination sources, or proposed land management strategies.

(2) DWSP Plan Review.

(a) The Director shall review each DWSP Plan submitted by PWSs and "concur," "conditionally concur" or "disapprove" the plan. The Director may also authorize the designated DDW Source Protection Manager to issue the following actions: "concur."

(b) The Director may "disapprove" DWSP Plans for good cause, including any of the following reasons:

(i) A DWSP Plan that is missing the delineation report or any of the information and data required in it (refer to R309-605-7(3));

(ii) An inaccurate Susceptibility Analysis or a DWSP Plan that is missing this report or any of the information required in it (refer to R309-605-7(4));

(iii) An inaccurate Prioritized Inventory of Potential Contamination Sources or a DWSP Plan that is missing this report or any of the information required in it (refer to R309-605-7(4)(c));

(iv) An inaccurate assessment of current controls (refer to R309-605-7(4)(a)(iii)(B));

(v) A missing or incomplete Management Program to Control Each Preexisting Potential Contamination Source which has been assessed as "not adequately controlled" by the PWS (refer to R309-605-7(5));

(vi) A missing or incomplete Management Program to Control or Prohibit Future Potential Contamination Sources (refer to R309-605-7(6));

(vii) A missing Implementation Schedule, Resource Evaluation, Recordkeeping Section, or Contingency Plan (refer to R309-605-7(1)(b)(v-vii) and R309-605-9);

(viii) A missing or incomplete Public Notification Section (refer to R309-605-7(7).

(c) If the Director conditionally concurs with a DWSP Plan, the PWS must implement the conditions and report compliance the next time the DWSP Plan is due and submitted to the Director.

(3) Delineation of Protection Zones

(a) The delineation section of the DWSP plan for surface water sources may be obtained from the Division upon request. A delineation section prepared and provided by the Division would become the first section of the submittal from the PWS. The delineation section provided by the Division will consist of a map or maps showing the limits of the zones described in R309-605-7(3)(b)(i-iv), and will include an inventory of potential contamination sources on record in the Division's Geographic Information System.

(b) Alternatively, the PWS may provide their own delineation report. Such a submittal must either describe the zones as defined in R309-605-7(3)(b)(i-iv), or must comply with the requirements and definitions of R309-605-7(3)(c). The delineation report must include a map or maps showing the extent of the zones.

(i) Zone 1:

(A) Streams, rivers and canals: zone 1 encompasses the area on both sides of the source, 1/2 mile on each side measured laterally from the high water mark of the source (bank full), and from 100 feet downstream of the POD to 15 miles upstream, or to the limits of the watershed or to the state line, whichever comes first. If a natural stream or river is diverted into an uncovered canal or aqueduct for the purpose of delivering water to a system or a water treatment facility, that entire canal will be considered to be part of zone 1, and the 15 mile measurement upstream will apply to the stream or river contributing water to the system from the diversion.

(B) Reservoirs or lakes: zone 1 is considered to be the area 1/2 mile from the high water mark of the source. Any stream or river contributing to the lake/reservoir will be included in zone 1 for a distance of 15 miles upstream, and 1/2 mile laterally on both sides of the source. If a reservoir is diverted into an uncovered canal or aqueduct for the purpose of delivering water to a system or a water treatment facility, that entire canal will be considered to be part of zone 1, and the 15 mile measurement upstream will apply to the reservoir and tributaries contributing water to the system.

(ii) Zone 2: Zone 2 is defined as the area from the end of zone 1, and an additional 50 miles upstream (or to the limits of the watershed or to the state line, whichever comes first), and 1000 feet on each side measured from the high water mark of the source.

(iii) Zone 3: Zone 3 is defined as the area from the end of zone 2 to the limits of the watershed or to the state line, whichever comes first, and 500 feet on each side measured from the high water mark of the source.

(iv) Zone 4: Zone 4 is defined as the remainder of the area of the watershed (up to the state line, if applicable) contributing to the source that does not fall within the boundaries of zones 1 through 3.

(v) Special case delineations:

(A) Basin Transfer PODs: Where water supplies are received from basin transfers, the water from the extraneous basin will be treated as a separate source, and will be subject to its own DWSP plan, starting from zone 1 at the secondary POD.

(c) If the PWS is able to demonstrate that a different zone configuration is more protective than those defined in R309-605-7(3)(b), that different configuration may be used upon prior review and approval by the Director. An explanation of the method used to obtain and establish the dimensions of the zones must be provided. The delineation report must include a map or maps showing the extent of the zones. The entire watershed boundary contributing to a source must be included in the delineation.

(4) Susceptibility Analysis and Determination:

(a) Susceptibility Analysis:

(i) Structural integrity of the intake: The PWS will evaluate the structural integrity of the intake to ensure compliance with the existing source development rule (R309-515-5) on a pass or fail basis. The pass-fail rating will be determined by whether the intake meets minimum rule requirements, and whether the physical condition of the intake is adequate to protect the intake from contamination events. The integrity evaluation includes any portion of the conveyance from the point of diversion to the distribution systems that is open to the atmosphere or is otherwise vulnerable to contamination, including distribution canals, etc.

(ii) Sensitivity of Natural Setting: The PWS will evaluate the sensitivity of the source based on physiographic and/or hydrogeologic factors. Factors influencing sensitivity may include any natural or man-made feature that increases or decreases the likelihood of contamination. Sensitivity does not address the question of whether contamination is present in the watershed or recharge area.

(iii) Assessment of management of potential contamination sources:

(A) Potential Contamination Source Inventory

(I) Each PWS shall identify and list all potential contamination sources within DWSP zones 1, 2 and 3, as applicable for individual sources. The name and address of each non-residential potential contamination source is required, as well as a list of the chemical, biological, and/or radiological hazards associated with each potential contamination source. Additionally, each PWS shall identify each potential contamination source as to its location in zone one, two, or three and plot it on the map required in R309-605-7(3)(a and b). The PWS may rely on the inventory provided by the Division for zone 4.

(II) List of Potential Contamination Sources - A List of Potential Contamination Sources may be obtained from the Division. This list may be used by PWSs as an introduction to inventorying potential contamination sources within their DWSP zones. The list is not intended to be all-inclusive.

(III) Refining, Expanding, Updating, and Verifying Potential Contamination Sources - Each PWS shall update its list of potential contamination sources to show current conditions within DWSP zones according to R309-605-7(1)(c)(v). This includes adding potential contamination sources which have moved into DWSP zones, deleting potential contamination sources which have moved out, improving available data about potential contamination sources, and all other appropriate refinements.

(B) Identification and Assessment of Controls: The PWS will identify and assess the hazards at each potential contamination source, including those in the inventory provided by the Division that are located in zone 4, as "adequately controlled" or "not adequately controlled".

(I) If controls are not identified, the potential contamination source will be considered "not adequately controlled." Additionally, if the hazards at a potential contamination source cannot be or are not identified, the potential contamination source must be assessed as "not adequately controlled."

(II) Types of controls: For each hazard deemed to be controlled, one of the following controls shall be identified: regulatory, best management/pollution prevention, or physical controls. Negligible quantities of contaminants are also considered a control. The assessment of controls will not be considered complete unless the controls are completely evaluated and discussed in the DWSP report, using the following criteria:

Regulatory Controls - Identify the enforcement agency and verify that the hazard is being regulated by them; cite and/or quote applicable references in the regulation, rule or ordinance which pertain to controlling the hazard; explain how the regulatory controls affect the potential for surface water contamination; assess the hazard; and set a date to reassess the hazard. For assistance in identifying regulatory controls, refer to the "Source Protection User's Guide" Appendix D for a list of government agencies and the programs they administer to control potential contamination sources. This guide may be obtained from the Division.

Best Management/Pollution Prevention Practice Controls - List the specific best management/pollution prevention practices which have been implemented by potential contamination source management to control the hazard and indicate that they are willing to continue the use of these practices; explain how these practices affect the potential for surface water contamination; assess the hazard; and set a date to reassess the hazard.

Physical Controls - Describe the physical control(s) which have been constructed to control the hazard; explain how these controls affect the potential for contamination; assess the hazard; and set a date to reassess the hazard.

Negligible Quantity Control - Identify the quantity of the hazard that is being used, disposed, stored, manufactured, and/or transported; explain why this amount is a negligible quantity; assess the hazard; and set a date to reassess the hazard.

(III) PWSs may assess controls on Potential Contamination Sources collectively, when the Potential Contamination Sources have similar characteristics, or when the Potential Contamination Sources are clustered geographically. Examples may include, but are not limited to, abandoned mines that are part of the same mining districts, underground storage tanks that are in the same zone, or leaking underground storage tanks in the same city. However, care should be taken to avoid collectively assessing Potential Contamination Sources to the extent that the assessments become meaningless. The Director may require an individual assessment for a Potential Contamination Source if the Director determines that the collective assessment does not adequately assess controls.

(C) A potential contamination source which is covered by a permit or approval under one of the regulatory programs listed below shall be considered to be adequately controlled unless otherwise determined by the Director. The PWS must provide documentation establishing that the Potential Contamination Source is covered by the regulatory program. For all other state regulatory programs, the PWS's assessment is subject to review by the Director; as a result, a PWS's DWSP Plan may be disapproved if the Director does not concur with its assessment(s).

(I) The Utah Ground-Water Quality Protection program established by Section 19-5-104 and Rule R317-6;

(II) Closure plans or Part B permits under authority of the Resource Conservation and Recovery Act (RCRA) of 1984 regarding the monitoring and treatment of ground-water;

(III) The Utah Pollutant Discharge Elimination System (UPDES) established by Section 19-5-104 and Rule R317-8; at the discretion of the PWS, this may include Confined Animal feeding Operations/Animal Feeding Operations (CAFO/AFO) assessed under the Utah DWQ CAFO/AFO Strategy.

(IV) The Underground Storage Tank Program established by Section 19-6-403 and Rules R311-200 through R311-208; and

(V) the Underground Injection Control (UIC) Program for classes I-IV established by Sections 19-5-104 and 40-6-5 and Rules R317-7 and R649-5.

(b) Susceptibility determination:

(i) The PWS will assess the drinking water source for its susceptibility relative to each potential contamination source. The determination will be based on the following four factors: 1) the structural integrity of the intake, 2) the sensitivity of the natural setting, 3) whether a Potential Contamination Source is considered controlled or not, and 4) how the first three factors are interrelated. The PWS will provide an explanation of the method or judgement used to weigh the first three factors against each other to determine susceptibility.

(ii) Additionally, each drinking water source will be assessed by the PWS for its overall susceptibility to potential contamination events. This will result in a qualitative assessment of the susceptibility of the drinking water source to contamination. This assessment of overall susceptibility allows the PWS and others to compare the susceptibility of one drinking water source to another.

(iii) Each surface water drinking water source in the state of Utah is initially considered to have a high susceptibility to contamination, due to the intrinsic unprotected nature of surface water sources. An assumption of high susceptibility will be used by the Director unless a PWS or a group of PWSs demonstrates otherwise, per R309-605, and receives concurrence from the Director under R309-605-7(2).

(c) Prioritized Potential Contamination Source Inventory: The PWS will prepare a prioritized inventory of potential contamination sources based on the susceptibility determinations in R309-605-7(4)(b)(i). The inventory will rank potential contamination sources based on the degree of threat posed to the drinking water source as determined in R309-605-7(4)(b)(i).

(5) Management Program to Control Each Preexisting Potential Contamination Source.

(a) PWSs are not required to plan and implement land management strategies for potential contamination source hazards that are assessed as "adequately controlled."

(b) With the first submittal of the DWSP Plan, PWSs shall include management strategies to reduce the risk of contamination from, at a minimum, each of the three highest priority uncontrolled Potential Contamination Sources in the protection zones for the source. The Director may require land management strategies for additional Potential Contamination Sources to assure adequate protection of the source. A management plan may be for one specific Potential Contamination Source (i.e., a sewage lagoon discharging into a stream), or for a group of similar or related Potential Contamination Sources that were assessed jointly under R309-605-7(4)(a)(iii)(B)(III) (i.e., one management plan for septic systems within one residential development would be acceptable, and would count as one of the three Potential Contamination Source management strategies).

PWSs shall plan land management strategies to control preexisting uncontrolled potential contamination sources in accordance with their existing authority and jurisdiction. Land management strategies must be consistent with the provisions of R309-605, designed to control or reduce the risk of potential contamination, and may be regulatory or non-regulatory. Land management strategies must be implemented according to the schedule required in R309-605-7(1)(b)(v).

(c) PWSs with overlapping protection zones may cooperate in controlling a particular preexisting potential contamination source if one PWS will agree to take the lead in planning and implementing land management strategies. The remaining PWS(s) will assess the preexisting potential contamination source as "adequately controlled."

(d) At each six year cycle for revising and resubmitting the DWSP Plan, under the schedule in R309-605-7(1)(c)(v), the PWS shall prioritize their inventory again, and shall propose a management program to control preexisting Potential Contamination Sources for the three highest priority Potential Contamination Sources, which may include uncontrolled Potential Contamination Sources not previously managed. The PWS shall also continue existing management programs, unless justification is provided that demonstrates that a Potential Contamination Source that was previously managed is now considered controlled.

(6) Management Program to Control or Prohibit Future Potential Contamination Sources for Existing Drinking Water Sources.

(a) PWSs shall plan land management strategies to control or prohibit future potential contamination sources within each of its DWSP zones consistent with the provisions of R309-605 and to the extent allowed under its authority and jurisdiction. Land management strategies must be designed to control or reduce the risk of potential contamination and may be regulatory or non-regulatory. Additionally land management strategies must be implemented according to the schedule required in R309-605-7(1)(b)(v).

(b) Protection areas may extend into neighboring cities, towns, and counties. Since it may not be possible for some PWSs to enact regulatory land management strategies outside of their jurisdiction, except for municipalities as described below, it is recommended that these PWSs contact their neighboring cities, towns, and counties to see if they are willing to implement protective ordinances to prevent surface water contamination under joint management agreements.

(c) Cities and towns have extraterritorial jurisdiction in accordance with Section 10-8-15 of the Utah Code Annotated to enact ordinances to protect a stream or "source" from which their water is taken... " for 15 miles above the point from which it is taken and for a distance of 300 feet on each side of such stream...."

(d) Zoning ordinances are an effective means to control potential contamination sources that may want to move into protection areas. They allow PWSs to prohibit facilities that would discharge contaminants directly to surface water. They also allow PWSs to review plans from potential contamination sources to ensure there will be adequate spill protection and waste disposal procedures, etc. If zoning ordinances are not used, PWSs must establish a plan to contact potential contamination sources individually as they move into protection areas, identify and assess their controls, and plan land management strategies if they are not adequately controlled.

(7) Public Notification:

Within their DWSP report, each PWS shall specify the method and schedule for notifying their customers and consumers that an assessment of their surface water source has been completed and what the results of that assessment are. Each PWS shall provide the proposed public notification material as an appendix to the DWSP report. The public notification material shall include a discussion of the general geologic and physical setting of the source, the sensitivity of the setting, general types of potential contamination sources in the area, how susceptible the drinking water source is to potential contamination and a map showing the location of the drinking water source and generalized areas of potential concern (it is not mandatory to show the location of the intake itself). The public notification material will be in plain English. The purpose of this public notification is to advise the public regarding how susceptible their drinking water source is to potential contamination sources. Examples of means of notifying the public, and examples of acceptable public notification materials, are available from the Division. The public notification materials must be approved by the Director prior to distribution.

 

KEY: drinking water, environmental health

Date of Enactment or Last Substantive Amendment: [August 27, 2001]2017

Notice of Continuation: March 13, 2015

Authorizing, and Implemented or Interpreted Law: 19-4-104(1)(a)(iv)

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