Funding alone won’t prevent a future Flint water crisis

Our nation’s water infrastructure is crumbling, as the 166,000 residents of Jackson, Miss., who have been without potable water for over four weeks, are painfully aware.  

On March 31, President Biden released The American Jobs Plan proposing significant federal investments in a variety of programs. We are pleased that the president included water infrastructure in his proposal.  

From Jackson to Newark, New Jersey, to Flint, Mich., too often unsafe water is being delivered to Americans and our rivers continue to be polluted by noncompliant wastewater. These are just a few of the failing systems that have reached headline news.  

Pittsburgh, where Biden announced his plan, is a good example of the problem. Pittsburgh Water and Sewer Authority (PWSA) is under a 2019 order for civil violations of the federal and state Safe Drinking Water Act (SDWA). In 2020, PWSA entered into an 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, PWSA entered into a plea agreement to resolve allegations of criminal violations of the Clean Water Act, agreeing to three years of probation that includes a comprehensive environmental compliance program. 

We all agree that water infrastructure is a wise investment. In 2016, the Water Environment Federation and WateReuse Association sponsored a study that shows that every million dollars of federal capital investment in the State Revolving Funds (SRF) generates $695,000 in federal tax receipts.  

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 proposes $56 billion for grants and low-cost flexible loans to states, tribes, territories and disadvantaged communities. That amount of money will go a long way.

However, money alone will not protect public health.   

The plan summary notes that when Biden managed the implementation of the American Recovery and Reinvestment Act (Recovery Act) in 2009, he insisted on strong accountability and transparency to ensure public dollars were invested efficiently and effectively. We agree that including these conditions on any funding is critical. 

In the U.S. there are currently around 53,000 community water systems. According to the Environmental Protection Agency’s (EPA) Enforcement and Compliance History Online (ECHO) database, which includes state data on violations and enforcement actions, approximately 4,800 community water systems are violating a health-based standard and over 1,200 are in significant violation.   

The SDWA requires water systems to self-disclose any violations each month in reports submitted to state authorities, with the exception of Washington and Wyoming because 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 notices or other actions.  

Noncompliant systems in ECHO are ones that are known. The real problem we face is that many crumbling systems simply fail to report noncompliance. Take for example, Jackson, Flint, Newark and Pittsburgh — none was listed in EPA’s violators database. However, a closer look under the hood would have revealed serious problems. 

We cannot fix problems we don’t know about. This is a principal reason that EPA made the SDWA a National Compliance Initiative, increasing federal oversight. The same reason supports adding compliance conditions to water infrastructure funding. 

The government has a responsibility to ensure the rules of the road are clear. And when those rules are broken, federal or state enforcement authorities must hold violators accountable.

Safe, clean water requires pipes, filters, pumps and valves be properly maintained. Without properly functioning infrastructure, it is axiomatic that water quality will suffer. Unfortunately, many failing systems fly under the radar as violations go undiscovered or are never reported.  

To address these problems, a handful of states, including New Jersey, have adopted water quality accountability laws that require all water systems to inspect, maintain and repair infrastructure consistent with industry standards. Such practices are laudable and will help to identify equipment that may be failing and in need of replacement.  

Compliance with our nation’s laws also requires systems to look for and fix noncompliance. EPA strongly encourages self-policing to correct and prevent recurrence of violations. Audits have become standard practice for private industry, including investor-owned water companies, which want to avoid potential civil or criminal enforcement — often accompanied with hefty fines — and associated reputational risks. In the case of private companies, the credible threat of enforcement and accountability has positively modified the industry practice. However, compliance audits are not standard practice for government entities, including public water systems, largely because the threat of enforcement is minimal and significant fines are rare.  

Most criminal enforcement actions involving a municipal system target a licensed operator for doing something wrong, such as data falsification. The vast majority of operators are hardworking and committed to doing the right thing. They are under enormous pressure to comply with their permit. These pressures can compel operators to make bad decisions, including selective sampling and data manipulation to make a noncompliant system appear as though it is in compliance. Such actions are subject to criminal prosecution and, unfortunately, low-level operators of crumbling systems likely become the fall-guy, rather than elected officials who should be making the hard decisions to fix their infrastructure. 

To address these concerns, we propose that any legislation that provides funding for water infrastructure be structured to incentivize regulatory compliance by adding conditions on funding, including, where appropriate, third-party audits. The legislation should also encourage systems to adopt better asset management and new smart technologies that can improve compliance and operational performance through automated monitoring, early detection of poor water quality and eliminate the opportunity for misreporting compliance data.  

With these compliance and accountability measures we can build back better. 

Susan Bodine is a partner with Earth & Water Law and the former assistant administrator for EPA’s Office of Enforcement and Compliance Assurance.

Brent Fewell is the founder of Earth & Water Law and former principal deputy assistant administrator for EPA’s Office of Water.