EDF Health

Selected tag(s): New Jersey

New Jersey takes major steps forward on lead in drinking water

Tom Neltner, J.D., Chemicals Policy Director.

When it comes to addressing the challenge of lead service lines (LSLs), recent events in New Jersey have set the stage for long-term progress amid short-term crises. The watershed moment came on October 10, when Jersey Water Works and Governor Phil Murphy held a joint press conference announcing their respective plans to reduce lead in drinking water that featured a shared goal of fully replacing the state’s estimated 350,000 LSLs within ten years. A week earlier, Congress enacted a law, authored by Senator Booker, enabling New Jersey – and other states as well – to secure critical funding by shifting the state’s share of the Clean Water State Revolving Fund (SRF) to the Drinking Water SRF.

With the Governor’s announcement, New Jersey joins Michigan and Washington as the only states to commit to fully replacing LSLs. It also becomes a leader among the 16 states that have adopted policies in the past four years that support the hundreds of communities taking action to replace their LSLs.

As other states consider the LSL challenge, they should look to the process New Jersey used to reach this stage and its close coordination with state agencies.

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Laws in states with the most lead service lines support using rates to fund replacement on private property: New analysis

Tom Neltner, J.D.Chemicals Policy Director

We found no explicit barriers to using rate funds to replace the lines on private property in the 13 we focused on. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total

Lead service lines (LSLs) – the lead pipes that connect a building’s plumbing to the water main under the street – are a significant source of lead in drinking water for those homes that have them. In light of the well-documented benefits to society from reducing children’s exposure to lead, there is a consensus that we need to replace the estimated six million LSLs remaining in the country. It will take time, but it needs to be done.

One challenge to this goal is how to fund replacement of the portion of the service line on private property. Because LSLs extend from under the street to a building, typically about half of the line is on public property and half is on private property. The perception among utilities has been that they do not have the legal authority to use rates paid by customers to cover the cost of replacing the portion on private property because it provides a benefit only to that property owner. This view was reinforced when the Wisconsin Public Service Commission blocked Madison from doing it, forcing the city to use other funds to complete the work. That decision from the early 2000s came before the risks of even low-level exposure to lead were well understood.

Many utilities have therefore taken to replacing only the portion of the LSL on public property when the property owner is unwilling or unable to pay to replace the portion on private property. The practice, often called “partial replacement,” is not only inefficient but can actually exacerbate residents’ exposure to lead. As evidence of the risks of even low-level exposure to lead—and of the society-wide benefits of reducing lead exposure—have mounted and the tragedy in Flint, Michigan made clear the need to replace LSLs, states like Indiana, Missouri, New Jersey, Pennsylvania and even Wisconsin, have adopted new laws or policies that have allowed funds from rates, with some limitations, to be used to replace the side on private property. Michigan has gone further and adopted rules mandating the practice, although some utilities have challenged the rule in court.

Given the funding challenge and the trends in the states, EDF partnered with the Emmett Environmental Law & Policy Clinic at Harvard Law School to review the state laws and policies in the 13 states with the most LSLs. Clinic Deputy Director Shaun Goho and law student Marcello Saenz conducted a state-by-state review of the laws, court decisions, and policies. The authors:

Found no explicit barriers to using rate funds to replace the lines on private property. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.

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