Our nation’s water infrastructure is collapsing, as are the 166,000 residents of Jackson, Mississippi, who were without drinking water for more than four weeks, are painfully aware.
March 31, President BidenJoe Biden 1.6 million U.S. air passengers fly in one day for the first time since last March Biden administration considers long-term food stamp increase: Conspiracy Against the Poor report READ MORE published The American employment plan propose significant federal investments in a variety of programs. We are happy that the president has included water infrastructure in his proposal.
From Jackson to Newark, New Jersey, at Flint, Mich., too often unclean water is supplied to Americans and our rivers continue to be polluted with substandard sewage. These are just a few of the failing systems that have made headlines.
Pittsburgh, where Biden announced his plan, is a good example of the problem. Pittsburgh Water and Sewer Authority (PWSA) is under a Order 2019 for civil violations of federal and state drinking water safety law (SDWA). In 2020, PWSA entered into a agreement with the Pennsylvania Attorney General to resolve allegations of criminal violations of the SDWA, agreeing to hire an independent corporate monitor, and in 2021, the PWSA entered into a court agreement to resolve allegations of criminal violations of the Clean Water Act, by agreeing to three years probation which includes a comprehensive environmental compliance program.
We all agree that water infrastructure is a smart investment. In 2016, the Fédération de l’Eau Environnement and the Association WateReuse sponsored a study this shows that every million dollars of federal investment in state revolving funds (SRF) generates $ 695,000 in federal tax revenue.
Biden’s investment plan includes $ 111 billion for water infrastructure, of which $ 45 billion will be used to replace lead pipes and service lines. The plan also offers $ 56 billion for low-cost flexible grants and loans to disadvantaged states, tribes, territories and communities. This amount of money will go a long way.
However, money alone will not protect public health.
The plan summary notes that when Biden managed During the implementation of the American Recovery and Reinvestment Act (Recovery Act) in 2009, he insisted on strong accountability and transparency to ensure that public funds are invested efficiently and effectively. We agree that the inclusion of these conditions on any funding is essential.
In the United States, there are currently approximately 53,000 community water systems. According to the Environmental Protection Agency (EPA) Enforcement and Compliance History Online (ECHO) database, which includes state data on violations and enforcement actions, approximately 4,800 community water systems violate a sanitation standard, and more than 1,200 are in serious violation.
the SDWA requires water supply systems must disclose all violations each month in reports submitted to state authorities, except Washington and Wyoming, as they report to the EPA. Once violations are discovered, systems are required to take corrective action and, in cases where public health may be at risk, promptly notify the public with boil water advisories or other measures. .
The non-compliant systems in ECHO are those that are known. The real problem we face is that many crumbling systems just fail to report non-compliance. Take for example Jackson, Flint, Newark, and Pittsburgh – none have been listed in the EPA’s Offender Database. However, a closer look under the hood would have revealed serious issues.
We can’t fix the issues we don’t know about. This is one of the main reasons the EPA made SDWA a National compliance initiative, increasing federal oversight. The same reason supports the addition of compliance conditions to the financing of water infrastructure.
The government has a responsibility to ensure that the highway code is clear. And when those rules are not followed, federal or state regulators must hold violators accountable.
Safe and clean water requires proper maintenance of hoses, filters, pumps and valves. Without properly functioning infrastructure, it is obvious that water quality will suffer. Unfortunately, many failed systems go under the radar because violations go undetected or never reported.
To address these issues, a handful of states, including New Jersey, have adopted water quality liability laws which require all water systems to inspect, maintain and repair infrastructure to industry standards. Such practices are commendable and will help identify equipment that may fail and need to be replaced.
Complying with our country’s laws also requires systems to find and resolve non-compliance. The EPA strongly encourages self-monitoring to correct and prevent repetition of violations. Audits have become common practice for the private sector, including investor-owned water companies, who want to avoid possible civil or criminal proceedings – often accompanied by hefty fines – and the associated reputational risks. In the case of private companies, the credible threat of enforcement and liability has positively altered industry practice. However, compliance audits are not standard practice for government entities, including public water systems, in large part because the threat of enforcement is minimal and large fines are rare.
Most criminal law enforcement actions involving a municipal system target a licensed operator for doing something wrong, such as tampering with data. The vast majority of operators work hard and are committed to doing the right thing. They are under enormous pressure to comply with their license. These pressures can force operators to make bad decisions, including selective sampling and manipulation of data to make a non-compliant system appear as if it is compliant. Such actions are subject to criminal prosecution and, unfortunately, low-level operators of crumbling systems are likely to become the ones who fall, rather than the elected officials, who would have to make the tough decisions to fix their infrastructure.
To address these concerns, we propose that any legislation that provides funding for water infrastructure be structured to encourage regulatory compliance by adding conditions for funding, including, where appropriate, audits by third. Legislation should also encourage systems to adopt better asset management and smart new technologies that can improve compliance and operational performance through automated monitoring, early detection of poor water quality and eliminate the possibility of false declaration of compliance data.
With these compliance and accountability measures, we can build back better.
Susan Bodine is a partner at Earth & Water Law and a former Assistant Administrator of the EPA’s Office of Law Enforcement and Compliance Assurance.
Brent Fewell is the Founder of Earth & Water Law and a former Senior Deputy Administrator of the EPA’s Water Office.