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United States Regulations

Title 33: Navigation and Navigable Waters



Authority: Pub. L. 84–99, as amended, Emergency Flood Control Work 33 U.S.C. 701n; (69 Statute 186), dated June 28, 1955.

Source: 41 FR 7506, Feb. 19, 1976, unless otherwise noted.

§ 214.1 Purpose.
This provides information, guidance, and policy for execution of the Chief of Engineers' authority to furnish supplies of clean drinking water pursuant to Pub. L. 84–99, as amended by section 82(2), Pub. L. 93–251 (88 Stat. 34).

§ 214.2 Applicability.
This regulation is applicable to Corps of Engineers field operating agencies assigned Civil Works activities, including the USAED Alaska, and the Pacific Ocean Division. Its provisions are applicable within the 50 states, and the District of Columbia, Puerto Rico, Virgin Islands, American Samoa, and Guam.

§ 214.3 Reference.
(a) Pub. L. 84–99, as amended (33 U.S.C. 701n).

(b) Pub. L. 93–251, Section 82(2).

(c) Pub. L. 93–523.

(d) ER 500–1–1.

§ 214.4 Additional authority.
Section 82(2), Pub. L. 93–251, dated 7 March 1974, revised Pub. L. 84–99, as amended, by adding the following new sentence. “The Chief of Engineers, in the exercise of his discretion, is further authorized to provide emergency supplies of clean drinking water, on such terms as he determines to be advisable, to any locality which he finds is confronted with a source of contaminated drinking water causing or likely to cause a substantial threat to the public health and welfare of the inhabitants of the locality.” This authority expands the measures the Chief of Engineers may employ in providing emergency relief pursuant to Pub. L. 84–99.

§ 214.5 Policy.
Emergency work under this authority will be applied to situations in which the source of water has become contaminated. The contamination may be accidental, deliberate, or caused by natural events. The maximum contaminent levels in drinking water are set forth by the Environmental Protection Agency pursuant to Pub. L. 93–523. However, loss of the water source or supply due to any cause is not included in the language of Section 82(2), Pub. L. 93–251, and furnishing emergency supplies by the Corps of Engineers under those situations was not intended by this legislation. Approval of measures to furnish clean drinking water will be pursuant to this regulation, and in accordance with procedures outlined in ER 500–1–1 by HQDA (DAEN-CWO-E) WASH DC 20314. DAEN-CWO-E will be notified by telephone when the emergency water situation becomes known.

§ 214.6 Discussion.
(a) The amendment provides for furnishing emergency supplies of drinking water. The method of furnishing those supplies is not provided for in the amendment, and is left to the discretion of the Chief of Engineers. Any feasible method, including restoration of service from an alternate source when the main source has been contaminated, is authorized where most feasible (however, see paragraphs (d) and (e) of this section).

(b) The scope of work is limited solely to providing emergency supplies of clean drinking water. Sewage treatment and disposal, and other sanitary requirements, are not included. In addition, the Corps of Engineers role in providing emergency supplies is a temporary measure until the locality is able to assume their responsibility. The locality is ultimately responsible for providing supplies of drinking water.

(c) The cause of the contamination may be due to any situation, not necessarily flood related. It encompasses all situations involving a contaminated source of drinking water, whether caused by flooding or otherwise.

(d) To be eligible, a locality must be confronted with a source of water that is contaminated. The loss of clean drinking water must not be solely the result of a failure in the distribution system. For example, the emergency could be due to a failure of a reservoir purification system, and the locality might thus be faced with a contaminated source. Furnishing of emergency supplies of clean drinking water may not be undertaken in these cases since the distribution system is not considered to be a source. A loss of supply is not in itself a justification for furnishing supplies of water by the Corps of Engineers under this authority.

(e) Employment of the authority under the amendment requires a finding by the Chief of Engineers, or his delegate, that there is, in fact, a contaminated source of drinking water.

(f) The contamination must cause or be likely to cause a substantial threat to the public health and welfare. An identifiable and defined threat of impairment to the public health and welfare is considered necessary. There is no requirement, however, that actual sickness exist from contaminated water to invoke the authority. But a clear threat must be established. Lack of palatability, in itself, may not constitute a serious health threat (see §214.9(d)).

(g) Inhabitants of the locality, rather than commercial enterprises, are identified as the group threatened. A business firm faced with contamination of water used in its process is not eligible. The drinking water used by the people in the area must be affected.

§ 214.7 Delegation of authority.
The authority to approve measures for furnishing emergency supplies of clean drinking water pursuant to the section 82(2), Pub. L. 93–251 amendment of Pub. L. 84–99, is delegated to division engineers, up to a $50,000 expenditure for the incident. Additional obligational authority of Code 400 funds will be obtained from DAEN-CWO-E prior to authorizing the proposed added work.

§ 214.8 Exclusions.
The authority does not require correcting the contamination, or repair of water systems so that clean drinking water supplies become available again. Reestablishing community water supplies remains the responsibility of local government and other Federal programs. These methods may be employed under the authority, if they are the most feasible ways to provide emergency supplies of clean drinking water, but there is no mandate to do so. To the extent state or local governments can provide water with their own resources, the locality will be excluded from the provision of emergency supplies under Pub. L. 84–99. In general, the following situations are not considered to be appropriate for Corps action under this authority:

(a) Contamination which causes a loss of palatability, but poses no material threat to public health and welfare.

(b) Contamination, such as by bacteria, which can be reduced to a safe level by the users boiling the water.

(c) Confrontation with normal levels of impurities or contaminants in a drinking water source that does not pose substantial threat to the public health.

(d) Contamination by natural intrusions over a period of time, which are known to be occurring and which may accumulate in sufficient concentrations to pose a future health threat, but which have not yet reached the level of a present hazard.

(e) Loss or diminishing of a water source, due to such things as an earthquake or drought.

(f) Contamination of a drinking water source as a regular occurrence due to recurring events such as drought or flooding, when no corrective community action has yet been initiated.

(g) Contamination which, while posing a substantial threat to health and welfare, can be corrected by local authorities, other Federal authorities, or other appropriate means before emergency supplies are deemed necessary.

§ 214.9 Requirements.
Providing emergency supplies of clean drinking water pursuant to the emergency functions of the Corps of Engineers is supplemental to the efforts of the community. Such actions must be in accordance with both Federal and municipal authorities. Corps response must be restricted to requests for assistance received from an appropriate state official. Each request must be considered on its own merits. The factors in each case may vary, but the following should be included in the evaluation.

(a) Whether the criteria required by the law and outlined in §214.6 have been met.

(b) The extent of state and local efforts to provide clean drinking water and their capability to do so. Corps efforts to provide temporary supplies of drinking water must be limited to measures clearly beyond the resources reasonably available to the state and locality.

(c) The adequacy of the state or local community agreement to mutually participate with the Federal government, on terms determined advisable by the Chief of Engineers, or his delegate, which must include the following:

(1) To provide, without cost to the United States, all lands, easements, and rights-of-way necessary for the authorized work.

(2) To hold and save the United States free from damages in connection with the authorized work other than negligence attributable to the United States or its contractor.

(3) To maintain and operate in a manner satisfactory to the Chief of Engineers all installed work during the emergency.

(4) To remove when determined feasible by the district engineer, at no cost to the Federal government, the installed equipment at the end of the emergency and return it to the Corps of Engineers.

(5) As soon as possible to actively initiate measures required to resolve the emergency situation.

(d) The provision of water quality statements with the request, and the identification of the threat to public health and welfare as determined by recognized authorities such as the State Health Department, Environmental Protection Agency, or recognized commercial laboratory.

(e) The identification of the affected area as a legally recognized governmental body or public entity that exercises a measure of control in the common interest of the inhabitants.

§ 214.10 Types of assistance.
The temporary emergency supplies of clean drinking water may be provided through such actions as:

(a) The use of water tank trucks to haul clean drinking water from a nearby known safe source to water points established for local distribution.

(b) Procurement and distribution of bottled water.

(c) Laying of temporary above ground water lines from a nearby safe source of water to the affected community where water points for local distribution can be established.

(d) Installation of temporary filtration.

§ 214.11 Costs.
Costs incurred by the Corps of Engineers in furnishing emergency supplies of clean drinking water are chargeable to Pub. L. 84–99 funds, 96X3125, Code 910–400 and repayment by the community generally will not be required. Costs of necessary measures for the decontamination of the water supply source are the responsibility of local governments and are not authorized under Pub. L. 84–99.