Clean Water Access Depends on Regulatory Change

Over the years, commodification of drinking water has called into question who gets access to water and who doesn’t. Some 148,000 water systems serve around 90% of Americans, but the water isn’t always affordable or safe to drink.

Safe and secure access depends on contamination-free and affordable water that will remain available to all communities, regardless of income.

Access to clean water is a human right. Current laws and regulations that should protect access to safe affordable water in America, however, don’t coincide with this expectation.

The Safe Drinking Water Act is meant to ensure that everyone has safe water to drink. However, 2 million people in America lack access to running water, 60 million are exposed to contaminated water, and 15 million have had their water shut off. This means the SDWA has often failed to protect people—disproportionately communities of color and low-income communities.

This injustice is a regulatory problem that has a regulatory solution.

The ongoing Flint, Mich. water crisis has made lead the most notable contaminant in our water. With 10 million lead pipes across America, and communities of color twice as likely to be affected by lead contamination, it is important to note that lead causes irreversible harm to the human nervous system. No amount is safe for human consumption.

Fix EPA’s Lead and Copper Rule

But the Environmental Protection Agency’s Lead and Copper Rule, promulgated under SDWA authority, allows for a significant amount of lead (action level of 15 parts per billion) in our water by the time it comes out of our faucets. The LCR also does nothing to replace lead pipes, it allows for deceitful water testing practices, and doesn’t regulate water in schools.

The regulatory fix here is to revise the LCR through a federal rulemaking process. A revised rule should account for changes in science and technology since the rule was created 31 years ago, while also considering public input from affected communities.

An updated LCR should follow a health-based standard for a lower action level, mandate the removal of all lead pipes within 10 years, require comprehensive public education and notification of water lead levels, have stronger testing/sampling processes, and bring schools within its purview to remove lead from buildings where children learn and play.

The Environmental Protection Agency has the authority to make this happen and should being doing this not only for lead, but for several other contaminants plaguing community water sources around the country , such as PFAS.

Improve Low-Income Access

With water bills doubling over the last decade, even though water use has declined nationally, low-income communities of color are paying higher water bills and facing shutoffs at higher rates than White rate payers.

This is because there is no uniform federal law regulating the cost of water—rate regulation happens at the state and local levels with minimal oversight, so overburdened communities tend to bear the worst of this cost burden.

Tackling the water affordability crisis in America necessitates congressional action. Such a law would need to consider uniform rate reform that considers household income, as well as a national ban on water shutoffs, and a permanent federal low-income water assistance program—similar to the federal Low-Income Home Energy Assistance Program that assists low-income households with energy bills.

States have laws regarding how water cost can be assessed across customer categories. These laws often block needed changes because it can be unconstitutional in some states for a water company to charge different rates for its customers. For example, a household with income below the federal poverty level pays the same price for water as a household making $250,000.

Additionally, unlike electricity and heat, which by law cannot be cut off in the winter months, water can be cut off any time. Furthermore, there is no requirement for utilities to track and report water shutoffs, making it difficult to aid those in need.

Water shutoffs happen when bills aren’t paid, but only two states have announced permanent water assistance programs, leaving residents in 48 other states with virtually no assistance when they get behind on their water bill. Regardless of income and ability to pay, people should always have uninterrupted access to water, and we desperately need national laws that ensure this.

There is no single solution to America’s water crises, but some basic steps can begin to address this problem in earnest.

Water should not continue to be approached as a commodity. Water is a natural resource that is necessary to sustain life. It should be available and accessible in its cleanest form for all people.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jeremy Orr is an adjunct professor of law in the Michigan State University College of Law. He is the director of litigation and advocacy partnerships at Earthjustice. Prior to joining Earthjustice, he served as a senior attorney with the Natural Resources Defense Council.