CHAPTER 74:04:09
CAPACITY REQUIREMENTS FOR NEW COMMUNITY AND NEW NONTRANSIENT NONCOMMUNITY WATER SYSTEMS
Section
74:04:09:01 Definitions.
74:04:09:02 Definition of new water system.
74:04:09:03 Compliance with capacity requirements.
74:04:09:04 Certificate of approval required for new water system operation.
74:04:09:05 Technical, managerial, and financial capacity criteria.
74:04:09:06 Documentation requirements for demonstration of adequate technical, managerial, and financial capacity.
74:04:09:07 New water system application requirements.
74:04:09:08 Business plan requirements.
74:04:09:09 Operations and maintenance manual.
74:04:09:10 Facilities plan and operations and maintenance manual to be prepared by competent persons.
74:04:09:11 Sample results from the water source required.
74:04:09:12 When to apply for a certificate of approval.
74:04:09:13 Complete application.
74:04:09:14 Technical, managerial, and financial capacity review.
74:04:09:15 New water system capacity approval.
74:04:09:16 Construction schedule.
74:04:09:17 Pre-construction meeting.
74:04:09:18 Construction inspections.
74:04:09:19 Official plans and specifications filed.
74:04:09:20 Notice of completion.
74:04:09:21 Issuance of a certificate of approval.
74:04:09:22 Transfer of a certificate of approval.
74:04:09:23 Certificate of approval validity.
74:04:09:24 Procedure for denial or revocation and appeal of denial or revocation of certificate of approval.
74:04:09:01. Definitions. Terms used in this chapter mean:
(1) "Community water system," a public water system, as defined in SDCL 34A-3A-2(8), which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. The term includes any collection, treatment, storage, and distribution facilities under control of the operator of the system and used primarily in connection with the system and any collection of pretreatment storage facilities not under such control which are used primarily in connection with the system;
(2) "Certificate of approval," a certificate issued by the secretary authorizing the operation of a new community or nontransient noncommunity water system;
(3) "Coverage ratio," a measure of sufficiency of net operating profit to cover the debt service requirements of a water system;
(4) "Department," the South Dakota Department of Agriculture and Natural Resources;
(5) "Facility plan," an engineering evaluation of present and future water supply, treatment, storage, or distribution needs; an evaluation of several alternatives; and the election and justification of a final alternative;
(6) "Financial capacity," the water system's ability to acquire and manage sufficient financial resources to allow the system to achieve and maintain compliance with the Safe Drinking Water Act as amended to August 6, 1996, requirements;
(7) "Managerial capacity," the ability of a water system to conduct its affairs in a manner enabling the system to achieve and maintain compliance with the Safe Drinking Water Act as amended to August 6, 1996, requirements;
(8) "Nontransient noncommunity water system," "NTNC," a public water system that is not a community water system and that regularly serves at least 25 of the same persons at such places as work places, offices, and schools for at least six months a year;
(9) "Operating ratio," a measure of whether operating revenues are sufficient to cover operating, maintenance, and replacement expenses;
(10) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources or a designated representative of the secretary; and
(11) "Technical capacity," the physical infrastructure of the water system including the adequacy of the source water and the adequacy of treatment, storage, and distribution infrastructure and the ability of system personnel to adequately operate and maintain the system.
Source: 25 SDR 75, effective November 18, 1998; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:02. Definition of new water system. A new water system, for purposes of this chapter, is a system that will become a community water system or NTNC on or after October 1, 1999. A system is a community water system or NTNC if the plat or building site indicates the water system is designed as a community water system or NTNC or otherwise demonstrates that the system is or will be serving as a community water system or NTNC. Any system that has infrastructure in place before October 1, 1999, and then becomes a new water system by the addition of new users is not required to obtain a certificate of approval.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:03. Compliance with capacity requirements. Each new water system must demonstrate to the department that it has adequate technical, managerial, and financial capacity before it may provide water for human consumption.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:04. Certificate of approval required for new water system operation. After a new water system has demonstrated that it has adequate technical, managerial, and financial capacity, as provided in §§ 74:04:09:05 and 74:04:09:06, the secretary shall issue a certificate of approval before operations may begin. No new water system may provide water to its consumers until a certificate of approval has been issued for the system. A new water system operating without a certificate of approval is subject to penalties provided for in SDCL 34A-3A-3.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-3, 34A-3A-25.
74:04:09:05. Technical, managerial, and financial capacity criteria. New water systems must meet the following criteria in order to obtain a certificate of approval:
(1) Technical capacity criteria:
(a) Finished water meets all required drinking water standards;
(b) Personnel operate the system effectively; and
(c) A valid water right is obtained;
(2) Managerial capacity criteria:
(a) The system owner or owners are clearly identified;
(b) The system meets all of the operator certification requirements in accordance with chapter 74:21:02 or have a plan to do so if the system is not yet required to have a certified operator;
(c) A system or method is in place to effectively maintain all required records, distribution system histories, maps, and compliance information; and
(d) An operating plan is completed in accordance with subsection 74:04:09:08(2)(b);
(3) Financial capacity criteria:
(a) Revenues are greater than costs;
(b) A financial audit of the water system is completed every three years;
(c) The water system produces and utilizes an annual budget;
(d) The operating ratio is greater than 1.0;
(e) The coverage ratio is greater than 1.0;
(f) Customers are metered; and
(g) An emergency/replacement reserve is created and funded.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:06. Documentation requirements for demonstration of adequate technical, managerial, and financial capacity. New water systems must submit the following in order to obtain a certificate of approval:
(1) New water system application as set forth in § 74:04:09:07;
(2) A business plan, which includes a facilities plan, management plan, and financial plan, as set forth in § 74:04:09:08; and
(3) Plans and specifications.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
Cross Reference: Plans and specifications required to be filed with DENR, chs 74:53:04 and 74:53:05.
74:04:09:07. New water system application requirements. The application must be submitted on forms provided by the department and must be signed by the developer or owner. If the owner is a corporation, all officers of the corporation must sign the application. The new water system application shall include the following complete information:
(1) The names, addresses, and telephone numbers of the owners and operators of the project. The name and address of a contact person, if different than above, and telephone numbers for all listed names must be included;
(2) The legal description of the facility by county, quarter, section, township, and range;
(3) The name of the project or facility;
(4) A layout map showing the location of the project;
(5) The number of expected hook-ups;
(6) Documentation that a water right permit has been obtained as specified in SDCL 46-1-15;
(7) Description of the water source; and
(8) Certification of compliance with SDCL 1-40-27.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 1-40-27, 34A-3A-25.
74:04:09:08. Business plan requirements. A business plan must be submitted on forms provided by the department. The business plan shall consist of the following three parts:
(1) Facilities plan. The facilities plan shall describe the scope of the water service to be provided and shall include the following:
(a) A description of the nature and extent of the area to be served and provisions for extending the water supply system to include additional areas. The description shall include population and land use projections and forecasts of water usage;
(b) An assessment of current and expected drinking water compliance based on monitoring data from the proposed water source;
(c) A description of the alternatives considered, including interconnections with existing water systems, and the reasons for choosing the approach selected for providing water service. The description shall include the technical, managerial, financial, and operational reasons for the selected approach; and
(d) An engineering description of the facilities to be constructed, including the construction phases and future plans for expansion. The description shall include an estimate of the full cost of any required construction, operation, and maintenance;
(2) Management plan. The management plan shall describe what is needed to provide for effective management and operation of the system and shall include the following:
(a) Documentation that the applicant has the legal right and authority to take the measures necessary for the construction, operation, and maintenance of the system. The documentation shall include evidence of ownership if the applicant is the owner of the system or, if the applicant is not the owner, legally enforceable management contracts or agreements;
(b) An operating plan that describes the tasks to be performed in managing and operating the system. The operating plan shall consist of administrative and management organization charts, plans for staffing the system with certified operators, and provisions for an operations and maintenance manual as set forth in § 74:04:09:09; and
(c) Documentation of credentials of management and operations personnel and cooperative agreements or service contracts, including demonstration of compliance with SDCL chapter 34A-3 pertaining to water supply and treatment system operators; and
(3) Financial plan. The financial plan shall describe the system's revenues, cash flow, income and debt for meeting the costs of construction, and the costs of operation and maintenance for at least five years from the date the applicant expects to begin system operation.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:09. Operations and maintenance manual. An operations and maintenance manual must be submitted to the department before system start-up. At least one copy of the manual must be kept on the water system premises and at least one manual must be kept with all other water system records. The manual must be submitted to the department for review as soon as practicable before system start-up and shall contain the following information:
(1) A description of the facilities;
(2) An explanation of start-up and normal operation procedures;
(3) A routine maintenance program;
(4) Records and reporting system;
(5) Sampling and analyses program;
(6) Staffing and training requirements;
(7) Identification of pollution sources at the water supply;
(8) Safety program;
(9) A plan for tracking unaccounted-for water, which shall be developed and implemented;
(10) Emergency plan and operating procedures; and
(11) Manufacturer's manuals.
The operations and maintenance manual shall be reviewed and updated as necessary to reflect changes in the operation or maintenance of the water system.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:10. Facilities plan and operations and maintenance manual to be prepared by competent persons. The facilities plan and operations and maintenance manual must be prepared by a person or persons qualified under SDCL chapter 36-18 pertaining to the registration and certification of engineers, architects, and land surveyors. The operations and maintenance manual must be signed, dated, and the seal of registration imprinted.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:11. Sample results from the water source required. Sample results from the water source as set forth in chapter 74:04:05 must be submitted before system start-up. A certificate of approval may not be issued until the sample results have been evaluated by the department.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:12. When to apply for a certificate of approval. A new water system application must be made for a certificate of approval as early in the development process of the new water system as possible. The new water system application and business plan must be submitted to the department at least 90 days before the anticipated system start-up. Plans and specifications must be submitted no later than 30 days before the bid-letting or before the contract is awarded as required in § 74:53:04:05.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:13. Complete application. The department shall conduct a completeness review of each new water system application and business plan within 30 days after submission. The department shall notify the applicant in writing whether the new water system application and business plan is complete. If the application or business plan is incomplete, the department shall identify the items required to complete them. The department shall determine the adequacy of the applicant's response to each of the incomplete items within 15 days of receipt of the response and notify the applicant in writing.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:14. Technical, managerial, and financial capacity review. Within 30 days after the department has determined the information submitted by the applicant is complete, the department shall conduct a technical, managerial, and financial capacity review. The department shall notify the applicant in writing whether or not the new system has demonstrated adequate capacity.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:15. New water system capacity approval. After the department has completed the capacity and plans and specifications review and has determined the system has adequate capacity, the department shall notify the applicant, in writing, that construction may begin.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:16. Construction schedule. The applicant shall submit a construction schedule to the department stating when construction activities are expected to begin and end.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:17. Pre-construction meeting. The department may require a pre-construction meeting with the owner and manager of the water system.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:18. Construction inspections. The department may conduct inspections at the work site to ensure compliance with all applicable requirements. Failure to submit to inspection constitutes a basis for denial of certification.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:19. Official plans and specifications filed. If revisions are made to the approved plans and specifications, an addendum to the plans and specifications or as-built plans and specifications must be completed for each project and one copy must be submitted to the department before system start-up. The water system shall also keep at least one copy available for public inspection.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:20. Notice of completion. The applicant shall submit to the secretary a notice of completion. The notice of completion certifies that the applicant has constructed the water system according to the approved plans and specifications.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:21. Issuance of a certificate of approval. After the water system has met all of the requirements stated within this chapter, the secretary shall issue a certificate of approval and the system may be placed in service. A certificate of approval may be denied if the requirements are not met.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:22. Transfer of a certificate of approval. A certificate of approval may be transferred to a new owner if the current owner notifies the secretary at least 30 days in advance of the proposed transfer date and the notice includes a written agreement between the existing and new owner containing a specific date for transfer of certificate of approval responsibility, coverage, and liability between them. The notice shall also include a certification that all water system records and documentation required by this chapter will be transferred to the new owner before the transfer date. The new owner shall also provide certification of compliance with SDCL 1-40-27. If the secretary does not receive a notice of ownership transfer, the current owner is responsible for all conditions stated within this chapter.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 1-40-27, 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:23. Certificate of approval validity. After a system has been issued a certificate of approval, the certificate is valid only if the system is operated according to the operating plan, operations and maintenance manual, and plans and specifications. If modifications are to be made to the system that will alter any of the above items, written notification shall be made to the department for approval. If the items listed in §§ 74:04:09:06 and 74:04:09:09 are updated to reflect the modifications made to the system, the certificate of approval remains valid. If modifications are made to the water system without updating the operating plan, plans and specifications, and operations and maintenance manual or notifying the department, the certificate of approval may be revoked as set forth in § 74:04:09:24.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 34A-3A-25.
74:04:09:24. Procedure for denial or revocation and appeal of denial or revocation of certificate of approval. The procedure for the denial or revocation of the certificate of approval is as follows:
(1) The secretary shall issue a letter of intent to deny or revoke the certificate of approval to the water system by certified mail with return receipt requested;
(2) If the water system wishes to challenge the denial or revocation, it may request a hearing before the secretary by submitting a written request within 30 days after receipt of the revocation notice. The request must contain the reasons for the challenge and must be signed by the water system owner; and
(3) After notice is issued and a hearing is conducted pursuant to SDCL chapter 1-26, the secretary shall make a decision concerning the denial or revocation.
If certification is denied or revoked, the system is operating without a certificate of approval and is subject to penalties provided for in SDCL 34A-3A-3 in addition to penalties for any other violations.
Source: 25 SDR 75, effective November 18, 1998.
General Authority: SDCL 34A-3A-25.
Law Implemented: SDCL 1-26-16, 1-26-17, 1-26-27, 1-26-29, 34A-3A-3, 34A-3A-25.
