Drinking Water Enforcement and Compliance Likely to Remain an EPA Priority
By Ron Tenpas, Corinne Snow and Hannah Flesch
The Environmental Protection Agency (“EPA”) announced it will continue to prioritize enforcement of, and compliance with, the Safe Drinking Water Act (“SDWA”) and federal drinking water regulations through Fiscal Year (“FY”) 2027, according to a January 12, 2023 notice. In 2018, EPA declared federal drinking water regulatory compliance to be a priority for the FY 2020−2023 cycle, and the agency has now indicated it will continue to prioritize this area as a National Enforcement and Compliance Initiative (“NECI”) for FY 2024−2027 with an added emphasis on reducing lead exposure, abating violations of health-based drinking water standards in overburdened communities, and improving climate resiliency for all Public Water Systems1. EPA’s proposed compliance priorities are available for public comment until March 13, 2023.
Background: What are the NECIs and how are Public Water Systems affected?
Every four years, EPA selects a limited set of initiatives to focus the agency’s resources on environmental issues that, in the agency’s view, pose some of the country’s most significant and widespread environmental problems. The agency directs these resources to enforcement of, and compliance with, laws and regulations related to a particular environmental issue. EPA currently has six initiatives in the FY 2020−2023 cycle that collectively focus on clean air, hazardous chemicals, and clean water. EPA’s set of initiatives are not binding on the agency, but they do provide a good indicator of where EPA will likely focus its attention.
EPA has an ongoing initiative that applies to certain Public Water Systems titled “Reducing Noncompliance with Drinking Water Standards at Community Water Systems.” In 2018, EPA estimated that about 40 percent of community water systems2 violated at least one health-based drinking water standard, and the agency set a goal to reduce the number of community water systems out of compliance by 25 percent from 3,600 to 2,700 by the end of FY 2022. To achieve this goal, EPA pledged to focus on high risk Public Water Systems, provide technical assistance, and strengthen state and tribal capacity to exercise their primacy authority, take enforcement actions, and address non-compliant Public Water Systems.
Potential for more enforcement
At the end of 2022, EPA claimed “significant progress” towards its compliance goals and conducted 140 inspections of Community Water Systems, but according to recent enforcement data, EPA did not meet its 25 percent target in reducing the number of Community Water Systems with one or more violations of a health-based drinking water standard by the end of FY 2022. As a result, EPA indicated that it is planning to continue this initiative into the FY 2024−2027 cycle to make “further improvement in compliance” by Community Water Systems.
EPA will likely focus on lead in drinking water and increase federal attention to lead exposure.
According to EPA’s notice, Public Water Systems should expect stricter enforcement of national drinking water regulations such as the Groundwater Rule and the Disinfection Byproducts Rule, as well as stricter requirements surrounding lead. EPA considers lead exposure “one of the country’s most pressing environmental and human health concerns.” EPA regulates lead in drinking water through the Lead and Copper Rule (“LCR”), which establishes a set of treatment techniques for Public Water Systems to follow depending on certain threshold levels of lead detected in customer drinking water. At the close of the Trump administration, EPA issued long-term revisions to the LCR, which will go into effect in 2024. EPA has also indicated that it will propose additional revisions to these requirements by September 2023. On top of these regulatory revisions, EPA announced that the agency is exploring how it might create a new NECI to reduce lead exposure in lead-based paint, drinking water, soil, and air emissions through enforcement of existing regulations. This potential new NECI would be in addition to the EPA’s existing lead strategy, which the agency announced in October 2022. If pursued, a lead-focused NECI would represent a potentially aggressive enforcement strategy by EPA towards Public Water Systems and other entities that may be legally responsible for lead exposure.
EPA will likely increase inspections at all Public Water Systems, but particularly those serving overburdened communities
As the Biden administration continues its focus on environmental justice, Public Water Systems can expect that this proposed NECI will increase the number of inspections at systems that serve overburdened communities.3 The federal government has been increasingly focused on SDWA compliance in these communities because of several high-profile violations of drinking water standards that recently occurred in Flint, Michigan and Jackson, Mississippi. Beyond these cities, EPA issued at least eleven emergency orders last year under Section 1431 of the SDWA to Public Water Systems, mainly in low-income and minority communities. These emergency orders are extraordinary federal powers that require Public Water Systems to immediately address pressing threats to drinking water and public health. EPA has hired and trained more personnel to focus on SDWA inspections and, as a result, Public Water Systems should expect an increase in inspections in the upcoming years.
Public Water Systems may have to consider climate change resiliency of their systems for the first time
Finally, EPA is planning to build climate change into this NECI by asserting that certain Public Water Systems must include climate change risks in their statutorily required risk and resilience assessments and emergency response plans. In 2018, Congress amended Section 1433 of the SDWA to require Community Water Systems serving more than 3,300 people to develop or update risk and resilience assessments and emergency response plans. While the law specifies that covered Community Water Systems must assess natural hazards risks to the system, it makes no mention of climate change. Nonetheless, it appears that EPA plans to interpret Section 1433 to require that Community Water Systems assess climate change risks, though the scope of federal authority to access these resilience plans or take specific enforcement-related actions is unclear.4
Those interested in commenting on EPA’s proposed compliance priorities, including how it is proposing to address drinking water compliance, may do so by March 13, 2023. Regardless of whether EPA formally includes drinking water-related issues in the upcoming NECI, the agency has signaled that it continues to view this as an important focus area for its resources. With this in mind, Public Water Systems should proactively prepare for additional scrutiny by internally reviewing compliance with regulatory requirements (particularly those related to lead) and be mindful that EPA may apply pressure to include climate-related assessments in Section 1433 resilience plans or call into question a system’s decision not to include such information. If a Public Water System discovers that it is in violation of one or more standards promulgated under the SDWA, it should follow best practices to alleviate the violation, including good recordkeeping and quick responses to regulators regarding any instances of noncompliance. Furthermore, Public Water Systems in overburdened communities should be especially aware of SDWA regulatory requirements and be prepared for more regulator inspections.
1 A “Public Water System” provides water for human consumption through pipes or other constructed conveyances to at least 15 service connections or serves an average of at least 25 people for at least 60 days a year. A Public Water System may be publicly or privately owned.
2 A Community Water System is a type of Public Water System that supplies water to the same population year round.
3 The EPA defines an overburdened community as a “minority, low-income, tribal, or indigenous population . . . that potentially experience[s] disproportionate environmental harms and risks.”
4 The SDWA only requires Public Water Systems to certify to the EPA that the system has completed the requisite emergency response plan — it does not require that systems submit these documents to the EPA. See 42 U.S.C. § 300i-2.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.