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34A-3A SAFE DRINKING WATER
CHAPTER 34A-3A

SAFE DRINKING WATER

34A-3A-1      Public policy.
34A-3A-2      Definitions.
34A-3A-3      Promulgation of rules establishing standards and compliance procedures--Violation.
34A-3A-4      Enforcement powers of secretary.
34A-3A-5      Variances of standards--Grounds for authorizing.
34A-3A-6      Exemption of public water supply systems--Requirements.
34A-3A-7      Action for variance or exemption--Notice--Hearing.
34A-3A-8 to 34A-3A-11.      Repealed.
34A-3A-12      Notice of variance, exemption, or violation of compliance schedule.
34A-3A-13      Notice by secretary on failure of supplier.
34A-3A-14      Application to public water systems.
34A-3A-15      Injunctive and declaratory relief.
34A-3A-16      Approval and certification of laboratory facilities and personnel.
34A-3A-17      Prevention of pollution of water supply systems--Development of voluntary wellhead protection program--Specifications.
34A-3A-18      Water quality sample collected upon completion of well--Submission to department--Time period--Minimum analyzation requirements.
34A-3A-19      State administration of the public water system supervision program--Fee.
34A-3A-20      Annual fee schedule for public water systems.
34A-3A-21      Repealed.
34A-3A-22      Establishment of the drinking water administrative subfund--Source of subfund--Administration--Expenditures--Unexpended funds.
34A-3A-23      Obligation to pay fee imposed on public drinking water system--Date due.
34A-3A-24      Certain animal feeding operations prohibited from locating over shallow aquifer.
34A-3A-25      Promulgation of rules to carry out requirements of Federal Safe Drinking Water Act--Violation.
34A-3A-26      Penalties for violation of chapter--Factors considered in determining penalty--Disposition of funds collected.
34A-3A-27      Administrative order assessing penalty--Contents of order--Uncontested order becomes judgment--Hearing on order.
34A-3A-28      Administrative penalty for violation of chapter.


34A-3A-1 Public policy.
     34A-3A-1.   Public policy. It is hereby declared to be the public policy of the state to achieve and maintain safe drinking water for the public which will protect human health and safety and prevent the creation of public nuisances. To these ends it is the purpose of this chapter to ensure that public water systems in the state meet or exceed minimum standards for drinking water quality and to foster cooperation and coordination with other state and local agencies, other states, and the federal government pursuant to the Federal Safe Drinking Water Act, Public Law 93-523, as amended to January 1, 2011.

Source: SL 1983, ch 260, § 1; SL 1986, ch 27, § 36; SL 2011, ch 165, § 78.


34A-3A-2 Definitions.
     34A-3A-2.   Definitions. Terms used in this chapter mean:
             (1)      "Area of influence," the area surrounding a pumping or recharging well within which the potentiometric surface or the water table has been changed;
             (2)      "Board," the Water Management Board;
             (3)      "Cone of depression," the shape of the area of influence in cross section;
             (4)      "Critical aquifer protection area," all or part of an area located within an area for which an application or designation as a sole source aquifer has been submitted and approved by the administrator of the United States Environmental Protection Agency;
             (5)      "Department," the Department of Environment and Natural Resources;
             (6)      "Maximum contaminant level," the maximum permissible level of a contaminant in water which is delivered to any user of a public water system;
             (7)      "Potentiometric surface," an imaginary surface representing the total head of groundwater in a confined aquifer and defined by the level to which water will rise in a well;
             (8)      "Public water system," a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if the system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least sixty days out of the year and as provided for in 40 CFR sections 141.2 and 142.2 as amended to January 1, 2011;
             (9)      "Recharge area," the area through which water may percolate to the aquifer and eventually reach the well;
             (10)      "Secretary," the secretary of the Department of Environment and Natural Resources;
             (11)      "Sole source aquifer," an aquifer which provides fifty percent or more of the drinking water for an area and which if contaminated, would create a significant hazard to public health;
             (12)      "Supplier of water," any person who owns or operates a public water system;
             (13)      "Water table," that surface of a body of unconfined groundwater at which the pressure is equal to that of the atmosphere;
             (14)      "Wellhead protection area," the surface and subsurface area surrounding a water well or wellfield, supplying a public water system, through which contaminants are reasonably likely to move toward and reach such water well or wellfield.

Source: SL 1983, ch 260, § 2; SL 1987, ch 259, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1999, ch 181, § 1; SL 2011, ch 165, § 79.


34A-3A-3 Promulgation of rules establishing standards and compliance procedures--Violation.
     34A-3A-3.   Promulgation of rules establishing standards and compliance procedures--Violation. The Water Management Board shall promulgate rules, pursuant to chapter 1-26, establishing:
             (1)      Safe drinking water standards with maximum contaminant levels necessary to protect public health and safety. No maximum contaminant level may be more stringent than those established under the Federal Safe Drinking Water Act, as amended to January 1, 2011; and
             (2)      Procedures to ensure compliance with this chapter including quality control, testing, monitoring, record keeping, reporting, and public notice.
     A violation of the rules adopted pursuant to this section is subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty not to exceed five hundred dollars for each day of violation.

Source: SL 1983, ch 260, § 3; SL 1987, ch 259, § 2; SL 1988, ch 285, § 37; SL 1992, ch 158, § 37; SL 2011, ch 165, § 80.


34A-3A-4 Enforcement powers of secretary.
     34A-3A-4.   Enforcement powers of secretary. The secretary may:
             (1)      Review and approve the location, design, plans, and specifications for the construction or modification of public water systems;
             (2)      Conduct compliance investigations, including but not limited to, entering and inspecting systems and records of any supplier of water, to take samples and to take or to require the supplier to take all other reasonable steps necessary to ensure compliance with this chapter and rules adopted pursuant thereto;
             (3)      Require plans to provide safe drinking water under emergency circumstances and issue emergency orders requiring a supplier to take immediate action to prevent or eliminate an immediate hazard to public health or safety; and
             (4)      Receive financial and technical assistance from the federal government and other public or private agencies.

Source: SL 1983, ch 260, § 4.


34A-3A-5 Variances of standards--Grounds for authorizing.
     34A-3A-5.   Variances of standards--Grounds for authorizing. The secretary may authorize a variance from any maximum contaminant level established in § 34A-3A-3 if:
             (1)      The raw water sources which are available to a specific system cannot meet the maximum contaminant level specified despite application of the best technology, treatment techniques, or other means which the secretary finds are generally and reasonably available, taking cost into consideration;
             (2)      The concentration of the contaminant or contaminants, for which the maximum contaminant level is exceeded by granting such variance, will not result in unreasonable risk to health;
             (3)      Within one year of the date of variance authorization, a schedule for compliance is issued and the owner of the supply agrees to implement the compliance schedule.

Source: SL 1983, ch 260, § 5.


34A-3A-6 Exemption of public water supply systems--Requirements.
     34A-3A-6.   Exemption of public water supply systems--Requirements. The secretary may exempt any public water supply system from any maximum contaminant level upon finding that:
             (1)      Due to compelling factors, including economic, the public water system is unable to comply with the contaminant level. In assessing the compelling factors the secretary shall consider such factors as construction, installation, or modification of treatment equipment or systems, and the time needed to replace an existing noncomplying facility with a new treatment system;
             (2)      The public water system was in operation on the effective date of the maximum contaminant level regulations;
             (3)      The granting of the exemption will not result in an unreasonable risk to health; and
             (4)      Within one year of the date of exemption authorization, a schedule for compliance be issued and the owner of the supply agree to implement the schedule.

Source: SL 1983, ch 260, § 6.


34A-3A-7 Action for variance or exemption--Notice--Hearing.
     34A-3A-7.   Action for variance or exemption--Notice--Hearing. Action to consider a variance or exemption may be initiated by the secretary or by the owner of the supply through a formal request submitted to the secretary. Public notice and hearing on the application for a variance or exemption shall comply with the provisions of chapter 1-26.

Source: SL 1983, ch 260, § 7.


34A-3A-8
     34A-3A-8 to 34A-3A-11.   Repealed by SL 1988, ch 285, §§ 38 to 41.


34A-3A-12 Notice of variance, exemption, or violation of compliance schedule.
     34A-3A-12.   Notice of variance, exemption, or violation of compliance schedule. If a variance or exemption is granted or if a compliance schedule contained in a variance or exemption is violated, public notification as required by § 34A-3A-3 shall be given by the supplier of water.

Source: SL 1983, ch 260, § 12; SL 1988, ch 285, § 42.


34A-3A-13 Notice by secretary on failure of supplier.
     34A-3A-13.   Notice by secretary on failure of supplier. Notice to the public required by this chapter may be given by the secretary on behalf of the supplier of water if the supplier of water fails to comply with the public notification requirements of this chapter.

Source: SL 1983, ch 260, § 13.


34A-3A-14 Application to public water systems.
     34A-3A-14.   Application to public water systems. This chapter applies to each public water system unless the system consists only of distribution and storage facilities; obtains all of its water from, but is not owned or operated by a public water system to which this chapter applies; does not sell water to any person; and is not a carrier which conveys passengers in interstate commerce.

Source: SL 1983, ch 260, § 14.


34A-3A-15 Injunctive and declaratory relief.
     34A-3A-15.   Injunctive and declaratory relief. The secretary may enforce the provisions of this chapter by means of injunctive and declaratory relief in circuit court.

Source: SL 1983, ch 260, § 15; SL 1992, ch 158, § 38.


34A-3A-16 Approval and certification of laboratory facilities and personnel.
     34A-3A-16.   Approval and certification of laboratory facilities and personnel. The director of laboratories shall establish and carry out a program for approval and certification of laboratory facilities and personnel which conduct analytical measurements required by any rules promulgated pursuant to this chapter.

Source: SL 1983, ch 260, § 16.


34A-3A-17 Prevention of pollution of water supply systems--Development of voluntary wellhead protect...
     34A-3A-17.   Prevention of pollution of water supply systems--Development of voluntary wellhead protection program--Specifications. The department shall develop procedures necessary to safeguard public health and welfare and prevent pollution of public water supply systems. The department shall develop a voluntary wellhead protection program which will specify the following:
             (1)      Guidelines for a wellhead protection program to protect the public water supplies from new and existing facilities which may be potential or actual pollution sources, including, but not limited to, the design of new facilities and modification of existing facilities, the department approval or denial under existing authority of plans and specifications for new facilities or modifications to existing facilities, the construction and the installation of release detection and containment systems, siting criteria for new facilities, operation and maintenance criteria, contingency plans for pollutant release containment and cleanup, technical assistance, and education and training;
             (2)      Guidelines specifying the duties of the department and local governments in developing and implementing the wellhead protection program;
             (3)      Guidelines for determining the extent of wellhead protection areas. Factors for consideration may include, but are not limited to, the cone of depression, the area of influence, the area of contribution and the recharge area;
             (4)      Guidelines for determining all potential and actual pollution sources which may have an adverse effect on public health;
             (5)      Guidelines for taking into consideration potential sources of pollution when siting new wells for public water supplies; and
             (6)      Guidelines for developing contingency plans for pollution release containment, cleanup and the provision of alternative drinking water supplies for each public water system in the event of well or wellfield pollution.

Source: SL 1989, ch 306, § 42.


34A-3A-18 Water quality sample collected upon completion of well--Submission to department--Time per...
     34A-3A-18.   Water quality sample collected upon completion of well--Submission to department--Time period--Minimum analyzation requirements. Following completion of any new well for domestic use, a water quality sample shall be collected and submitted to the Department of Health Laboratory or another laboratory approved by the department. If the well flows or if the well driller installs the pump, the well driller shall collect and submit the water quality sample. If the pump is not installed by the well driller, the owner shall collect and submit the water sample. The completed analysis shall be submitted to the department by the well driller or owner within thirty days after the submittal of the well completion report which is filed with the department pursuant to § 46-6-11. At a minimum, the water sample shall be analyzed for nitrate, coliform bacteria, sodium, conductivity, and sulfate. Other contaminants may be analyzed for at the option of the well owner or driller. The owner or well driller shall pay for the cost of all analyses.

Source: SL 1989, ch 306, § 46.


34A-3A-19 State administration of the public water system supervision program--Fee.
     34A-3A-19.   State administration of the public water system supervision program--Fee. In order to safeguard the public health, safety, and welfare of this state through a customer service approach, the state shall retain administration of the public water system supervision program as provided in the Federal Safe Drinking Water Act as amended to January 1, 2011. In order to meet the increasing delegation requirements the result of the 1986 amendments to the Federal Safe Drinking Water Act, a fee shall be imposed upon the users of drinking water facilities as provided in § 34A-3A-20 to defray the costs to the state of administering the program.

Source: SL 1992, ch 254, § 67; SL 2011, ch 165, § 81.


34A-3A-20 Annual fee schedule for public water systems.
     34A-3A-20.   Annual fee schedule for public water systems. There is hereby imposed an annual fee upon all public water systems under the provisions of section 1411 of the Federal Safe Drinking Water Act, 42 U.S.C. 300F et seq. as amended to January 1, 2011. The fee is assessed as follows:
             (1)      For community water systems including municipalities, rural water systems, housing subdivisions, trailer parks, sanitary districts, religious colonies, and government operated water systems, the fee shall be based upon 1990 census data for municipalities, population served for nonmunicipalities, and the following fee table:

Population Range   Fee ($)  
25 to 50   15  
51 to 100   30  
101 to 200   60  
201 to 300   100  
301 to 400   140  
401 to 500   180  
501 to 600   220  
601 to 700   260  
701 to 800   300  
801 to 900   340  
901 to 1,000   380  
1,001 to 2,000   600  
2,001 to 3,000   1,000  
3,001 to 4,000   1,400  
4,001 to 5,000   1,800  
5,001 to 6,000   2,200  
6,001 to 7,000   2,600  
7,001 to 8,000   3,000  
8,001 to 9,000   3,400  
9,001 to 10,000   3,800  
10,001 to 11,000   4,200  
11,001 to 12,000   4,600  
12,001 to 13,000   5,000  
13,001 to 14,000   5,400  
14,001 to 15,000   5,800  
15,001 to 16,000   6,200  
16,001 to 17,000   6,600  
17,001 to 18,000   7,000  
18,001 to 19,000   7,400  
19,001 to 20,000   7,800  
20,001 to 30,000   10,000  
30,001 to 40,000   14,000  
40,001 to 50,000   18,000  
50,001 to 60,000   22,000  
60,001 to 70,000   26,000  
70,001 to 80,000   30,000  
80,001 to 90,000   34,000  
90,001 to 100,000   38,000  
100,001 or more   41,000  

             (2)      For noncommunity water systems including private campgrounds, government-operated campgrounds, interstate highway rest areas, tourist attractions, gas stations, motels, public and private schools, and other systems providing drinking water to the public--$10.00 minimum.
     The fee imposed by this section is in addition to any other fee or tax.

Source: SL 1992, ch 254, § 68; SL 2011, ch 165, § 82.


34A-3A-21
     34A-3A-21.   Repealed by SL 2013, ch 166, § 31.


34A-3A-22 Establishment of the drinking water administrative subfund--Source of subfund--Administrat...
     34A-3A-22.   Establishment of the drinking water administrative subfund--Source of subfund--Administration--Expenditures--Unexpended funds. There is hereby established in the environmental fee fund created in § 1-40-30, the drinking water administrative subfund. This subfund shall consist of legislative appropriations, federal grants, gifts, civil penalties received for any drinking water standards violations, and fees received pursuant to § 34A-3A-20. The fund shall be maintained separately and be administered by the department in order to defray expenses of all activities associated with administering the drinking water program. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.

Source: SL 1992, ch 254, § 70.


34A-3A-23 Obligation to pay fee imposed on public drinking water system--Date due.
     34A-3A-23.   Obligation to pay fee imposed on public drinking water system--Date due. The obligation to pay the fee imposed by § 34A-3A-20 shall be upon the owner and operator of a public drinking water system and shall accrue on July first. The fee is due and payable by July thirty-first and shall be remitted to the Department of Revenue along with such forms as may be prescribed by the secretary of revenue in rules promulgated pursuant to chapter 1-26.

Source: SL 1992, ch 254, § 71; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.


34A-3A-24 Certain animal feeding operations prohibited from locating over shallow aquifer.
     34A-3A-24.   Certain animal feeding operations prohibited from locating over shallow aquifer. No concentrated animal feeding operation that includes a number of animals equal to or greater than one thousand animal units may be located over a shallow aquifer unless a groundwater discharge permit has been approved in accordance with chapter 34A-2. For purposes of this section, a shallow aquifer is any aquifer having the following characteristics:
             (1)      The aquifer is within fifty feet or less below the land surface with fifteen feet or less of continuous, overlying, extremely low permeability geologic material, such as clayey till or shale. Weathered till or highly fractured weathered shale is not an extremely low permeability material for purposes of this section; or
             (2)      The aquifer is greater than fifty feet but less than one hundred feet below the land surface with thirty feet or less of continuous overlying low to extremely low permeability geologic material that may be a combination of weathered and unweathered till, shale, or till and shale.
     This section does not apply to any concentrated animal feeding operation that was operating on or before July 1, 1997. This section does not limit or prohibit the expansion of any concentrated animal feeding operation that was operating on or before July 1, 1997.
     The provisions of this section do not apply to any county which has officially adopted a comprehensive plan and zoning ordinances pursuant to chapter 11-2 and wellhead protection ordinances pursuant to § 7-18-20.

Source: SL 1997, ch 210, §§ 1, 2.


34A-3A-25 Promulgation of rules to carry out requirements of Federal Safe Drinking Water Act--Violat...
     34A-3A-25.   Promulgation of rules to carry out requirements of Federal Safe Drinking Water Act--Violation. In order to carry out the requirements of the Federal Safe Drinking Water Act as amended to January 1, 2011, the secretary of environment and natural resources shall promulgate rules, pursuant to chapter 1-26, establishing:
             (1)      Procedures for a supplier of water to demonstrate that a new system intended to be a public water system has the technical, managerial, and financial capacity to achieve and maintain compliance with all relevant local, state, and federal requirements;
             (2)      Procedures for the department to issue certificates of approval to new water suppliers once a technical, managerial, and financial capacity review, consistent with provisions of this chapter, is completed. The rules shall provide that a new system intended to be a public water system, after October 1, 1999, may not operate until it has been issued a certificate of approval;
             (3)      The development and implementation of a strategy to assist public water systems in acquiring and maintaining technical, managerial, and financial capacity to comply with all relevant local, state, and federal requirements; and
             (4)      Such other rules as may be necessary to implement the provisions of the Federal Safe Drinking Water Act as amended to January 1, 2011, in a state drinking water program approved by the United States Environmental Protection Agency.
     A violation of any rule adopted pursuant to this section is subject to the penalties provided for in § 34A-3A-3.

Source: SL 1998, ch 217, § 1; SL 2011, ch 165, § 84.


34A-3A-26 Penalties for violation of chapter--Factors considered in determining penalty--Disposition...
     34A-3A-26.   Penalties for violation of chapter--Factors considered in determining penalty--Disposition of funds collected. A violation of any provision of this chapter or any rule promulgated pursuant to this chapter is subject to an administrative penalty assessed by the secretary, after notice and opportunity for hearing, pursuant to chapter 1-26. In the case of a public water system serving a population of more than ten thousand, the maximum penalty amount may be no more than one thousand dollars per day per violation. In the case of a public water system serving a population of less than ten thousand, the penalty may not exceed five hundred dollars per day per violation. The maximum penalty, assessed by the secretary, may not exceed five thousand dollars per violation. In determining the amount of the penalty upon finding a violation, or the amount of a settlement, the secretary shall consider the gravity of the violation, prior violations and compliance history, damage caused by the violation, the willfulness of the violation, and good faith attempts to achieve compliance. All penalties collected pursuant to this section shall be deposited in the regulated substance response fund, established pursuant to § 34A-12-3.

Source: SL 1999, ch 181, § 2.


34A-3A-27 Administrative order assessing penalty--Contents of order--Uncontested order becomes judgm...
     34A-3A-27.   Administrative order assessing penalty--Contents of order--Uncontested order becomes judgment--Hearing on order. A monetary penalty issued under § 34A-3A-26 shall be assessed against a violator by an administrative order of the secretary. The order shall state the date and facts of each violation addressed under the penalty assessed and the citations to the provisions of each law alleged to be violated. The order shall contain a statement that the violator may request a contested case hearing on the violation and penalty pursuant to chapter 1-26, by filing a written request with the secretary no later than twenty days after the receipt of the order. The order shall state that a request for contested case hearing must state the specific part or parts of the order being contested along with relevant facts and supporting legal authorities. The secretary shall serve the order and assessment by certified mail. If not contested within twenty days of receipt, an administrative order assessing a monetary penalty under this section shall constitute a judgment and may be executed by delivery of a true and correct copy certified by the secretary in the manner provided for the execution of money judgments in chapter 15-18.
     If a hearing is requested, the matter shall be scheduled for a hearing before the secretary or a designee within thirty days from the receipt of the request. The department shall provide notice of the hearing consistent with the provisions of § 1-26-17. Hearings shall be conducted pursuant to chapter 1-26. A final determination by the secretary may be appealed to the circuit and Supreme Court as provided in chapter 1-26. After a final determination, when the time to take an appeal has lapsed, the administrative order assessing a monetary penalty under this section shall constitute a judgment and may be executed by delivery of a true and correct copy certified by the secretary in the manner provided for the execution of judgments in chapter 15-18.

Source: SL 1999, ch 181, § 3.


34A-3A-28 Administrative penalty for violation of chapter.
     34A-3A-28.   Administrative penalty for violation of chapter. Any violation of this chapter and the rules promulgated thereunder is subject to the administrative penalty provisions of §§ 34A-3A-26 and 34A-3A-27 and enforcement under § 34A-3A-15.

Source: SL 1999, ch 181, § 4.


Title 34A

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