Safe Drinking Water Act (SDWA): Water System Security and Resilience Provisions

Safe Drinking Water Act (SDWA): Water System Security and Resilience Provisions

March 1, 2021
Safe Drinking Water Act (SDWA): Water System Security
and Resilience Provisions
The disruption of a safe and reliable water supply remains a
Risk and Resilience Assessments and
long-standing concern related to the protection of public
Emergency Response Plans
health. Two events have increased congressional attention
In 2002, Congress first required drinking water systems to
to water system security and resilience from events that
assess risks that could disrupt the provision of a safe and
could disrupt the provision of water supply. These include a
reliable water supply and prepare plans to address such
cyberattack on an automated system at a water treatment
risks. Added by P.L. 107-188, Section 1433 required
plant serving a Florida community and water service
community water systems (i.e., systems that regularly serve
disruptions in Texas related to frigid weather and power
at least 25 individuals year-round) to (1) assess their
losses. Intentional acts and natural hazards can damage
vulnerabilities to terrorist attacks or other intentional acts
water infrastructure, including automated systems that
intended to disrupt water service, (2) submit these risk
control treatment, resulting in the interruption of safe and
assessments to EPA, and (3) develop emergency response
reliable drinking water.
plans based on their assessments (42 U.S.C. §300i-2). EPA
Water systems are one type of critical infrastructure (CI)
was directed to provide guidance to small systems (serving
covered by broader efforts to improve CI security. The U.S.
fewer than 3,300 people) on how to conduct vulnerability
Environmental Protection Agency (EPA) has been
assessments, prepare emergency response plans, and
designated the lead agency responsible for water sector
address threats. As initially added to SDWA, Section 1433
security, including cybersecurity (Executive Order 13636).
did not require water systems to update their assessments.
(See CRS Report R45809, Critical Infrastructure:
AWIA rewrote Section 1433 to require community water
Emerging Trends and Policy Considerations for Congress.)
systems serving more than 3,300 people to conduct risk and
To address both intentional acts and extreme weather that
resilience assessments. Under the revised section, such
may threaten water systems, Congress added several
water systems are required to assess their system’s
provisions to the Safe Drinking Water Act (SDWA) to
vulnerabilities to natural hazards, in addition to malevolent
support the safety of water supplies and resilience of water
acts. As a part of their assessment, water systems are
systems. Primarily found in SDWA Part D “Emergency
required to evaluate the resilience of their current physical
Powers,” these provisions range from risk and resilience
infrastructure, including “electronic, computer, or other
assessment and emergency response planning, to civil and
automated systems (including the security of such
criminal penalties against those who tamper or attempt to
systems)” and their management practices, as well as
tamper with a public water system (42 U.S.C. §300i-300i-
financial capacity to respond to these risks. For purposes of
4). The Public Health Security and Bioterrorism
Sections 1433 and 1459A(l), “resilience” is defined as “the
Preparedness and Response Act of 2002 (the Bioterrorism
ability of a community water system ... to adapt to or
Preparedness Act; P.L. 107-188; Title IV) added or revised
withstand the effects of a malevolent act or natural hazard
many of these SDWA provisions.
without interruption to ... a system’s function, or if function
is interrupted, to rapidly return to a normal operating
After first focusing on security, Congress expanded SDWA
condition” (42 U.S.C. §300i-2(h)). Based on the
provisions to address water system resilience to a range of
assessment, water systems must also develop emergency
risks such as droughts, floods, wildfires, and other extreme
response plans that address the risks and resilience issues
weather/natural events. America’s Water Infrastructure Act
that systems may face. Water systems must certify their
of 2018 (AWIA; P.L. 115-270) amended provisions to
assessments and submit the certifications to EPA by
expand the risks that water systems evaluate and authorized
deadlines specific to the communities’ size. Water systems
grant programs to increase resilience.
serving 3,300 or more persons must review their risk
In addition, as a condition of taking on primary
assessments every five years and update them, if needed.
enforcement authority, SDWA requires states to have an
Risk and resilience assessments and emergency response
adequate plan for providing safe drinking water under
plans are voluntary for small water systems. AWIA
emergency circumstances, such as “earthquakes, floods,
amended SDWA to authorize appropriations of $10.0
hurricanes, and other natural disasters, as appropriate” (42
million for grants to public water systems serving fewer
U.S.C. §300g-2(a)(5)). The act authorizes various financial
than 3,300 people and grants to nonprofit organizations to
assistance programs that may assist water systems in
support risk assessment and response planning activities (42
addressing threats that could disrupt water service. These
U.S.C. §300i-2(g)). Similar to P.L. 107-188, AWIA
authorized resilience-related financial assistance programs
requires EPA provide guidance and technical assistance to
have yet to receive appropriations, or began receiving
small water systems on how to conduct resilience
appropriations in FY2020.
assessments, prepare emergency response plans, and
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Safe Drinking Water Act (SDWA): Water System Security and Resilience Provisions
address threats from natural hazards and malevolent acts
receive annual capitalization grants from EPA to provide
(42 U.S.C. §300i-2(e)).
primarily subsidized loans to water systems for drinking
water projects and related activities. The Consolidated
Water System Tampering Penalties
Appropriations Act, 2021 (P.L. 116-260) included an
Originally established in 1974, Section 1432 provides for
appropriation of $1.12 billion for DWSRF capitalization
civil and criminal penalties against any person who
grants. Each year, each state must match 20% of its annual
tampers, attempts to tamper, or makes a threat to tamper
capitalization grant and develop an intended use plan (IUP)
with a public water system (42 U.S.C. §300i-1).
indicating how the allotted funds will be used. The act
Amendments made by P.L. 107-188 increased criminal and
requires states to give funding priority to projects that
civil penalties for tampering, attempting to tamper, or
address the most serious human health risks, are necessary
making threats to tamper with public water supplies. The
to ensure compliance, and assist systems most in need on a
maximum prison sentence for tampering increased from 5
per-household basis according to state affordability criteria.
to 20 years. The maximum prison sentence for attempting
EPA’s guidance provides examples of types of DWSRF-
to tamper, or making threats to tamper, increased from 3 to
eligible projects (EPA 816-B-17-001). Infrastructure
10 years. The maximum fine for tampering increased from
improvements for water system security or resilience are
$50,000 to $1 million. The maximum fine for attempting to
among the eligible projects listed in the guidance. These
tamper, or threatening to tamper, increased from $20,000 to
include projects that address “vulnerability of a water
$100,000.
system to disruption of safe water delivery, whether natural
or of human origin, capability to recover from disruption of
Emergency Powers
safe water delivery, (and/or) a range of natural events
When information becomes available to EPA about
capable of disruption, including flooding, long-term
imminent and substantial endangerment of drinking water
drought and earthquakes.”
and state and local officials have not acted, SDWA
Risk and Resilience Grants
authorizes the EPA Administrator to take actions deemed
To increase the resilience of public water systems, SDWA
necessary to protect public health. SDWA Section 1431
Section 1433(g) directs EPA to establish the Drinking
allows EPA to take actions upon receipt of information that
Water Infrastructure Risk and Resilience Program, and
a contaminant is present in or likely to enter a water system
authorizes appropriations of $25.0 million for each of
or underground source of drinking water, or when the
FY2020 and FY2021 for EPA to make grants to community
agency is aware of a threatened or potential terrorist attack
water systems to plan or implement projects to increase
(or other intentional act) designed to disrupt the provision
of “safe” drinking water
their system’s resiliency (42 U.S.C. §300i-2(g)). Congress
(42 U.S.C. §300i). This authority
has not appropriated funds for this purpose.
is available to EPA if the appropriate state and local
authorities have not acted to protect public health. When
Emergency Assistance Grants
acting under this provision, EPA is required to coordinate
SDWA Section 1442(b) authorizes EPA to provide
with state and local authorities to verify that the EPA-
technical assistance and make grants to states and public
received information is correct, to the extent practicable.
water systems to assist in responding to and alleviating
EPA has issued orders under a number of circumstances,
emergency situations (42 U.S.C. §300j-1(b)). Specifically,
including for “vandalism with potential for contamination.”
grants authorized by this subsection may be used only to
EPA Review of Methods
support actions that are necessary (1) to prevent, limit, or
mitigate danger to the public health in an emergency, and
The Bioterrorism Preparedness Act added new
(2) that would otherwise not be taken without such
responsibilities for EPA in Sections 1434 and 1435 (42
emergency assistance, as determined by the Administrator.
U.S.C. §§300i-3; 300i-4). Section 1435 directs EPA to
P.L. 107-188 amended Subsection 1442(d) to authorize
review methods by which terrorists or others could
appropriations for such emergency assistance of not more
contaminate or otherwise disrupt the provision of safe water
than $35 million for FY2002 and such sums as may be
supplies. Section 1434 requires EPA to review methods for
necessary for each fiscal year thereafter. Congress has not
preventing, detecting, and responding to such disruptions as
appropriated funds for this purpose.
well as methods for providing alternative drinking water
supplies if a water system is destroyed or impaired. Section
Small and Disadvantaged Communities Risk and
1435(e) authorized $15 million for FY2002 and such sums
Resilience Grants
as may be necessary for FY2003 through FY2005 to carry
As amended by AWIA, SDWA Section 1459A(l)
out SDWA Sections 1434 and 1435.
authorizes EPA to establish the Drinking Water System
Financial Assistance
Infrastructure Resilience and Sustainability Program for
small and disadvantaged public water systems (42 U.S.C.
Congress has established several financial assistance
§300j-19a(l)). This section authorizes EPA to award grant
programs to support the development of systems that supply
funds to eligible water systems for projects that increase
safe and reliable water.
resilience to natural hazards and authorized appropriations
Drinking Water State Revolving Fund (DWSRF)
of $4 million for each of FY2019 and FY2020. This
Authorized by Section 1452, the Drinking Water State
program first received funding in FY2020 ($3 million) and
Revolving Fund (DWSRF) is the key federal financial
received $4 million for FY2021.
assistance program to help water systems finance
infrastructure projects needed to comply with drinking
Elena H. Humphreys, Analyst in Environmental Policy
water regulations and to meet health protection objectives
IF11777
(42 U.S.C. §300j-12). The DWSRF authorizes states to
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Safe Drinking Water Act (SDWA): Water System Security and Resilience Provisions

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