New Water Infrastructure Bill: A Positive Step

By Erik D. Olson and Mae Wu, Natural Resources Defense Council

The U.S. Senate has just approved “America’s Water Infrastructure Act,” which was also passed by the House of Representatives in September, clearing the way for Presidential signature. While much of the bill focuses on traditional water projects to be carried out by the Army Corps of Engineers, it includes several provisions directly addressing drinking water infrastructure.

Overall, these measures take some steps forward by authorizing (or reauthorizing) several drinking water programs. While these steps tend to be modest in themselves, there are many of them and they help to outline where larger investments must be made in the future. These measures could:

1. Encourage a bit more investment drinking water infrastructure;
2. Make limited but helpful modifications of the current drinking water program;
3. Authorize a few small steps towards addressing lead contamination of tap water and school drinking water; and
4. Make a few restricted actions that could help address some of the serious ongoing problems with some small water systems.

However, the bill only authorizes these programs — they need to actually be funded through appropriations laws in separate legislation. While we have some concerns about the details of the consolidation provision (as noted below), on balance the bill would be a net positive for drinking water, if Congress does fund the programs through subsequent appropriations laws. Taken together, these measures will move us forward, but the Safe Drinking Water Act still needs significant surgery, including but certainly not limited to a fix to the standard setting provisions, under which EPA has failed to issue a new drinking water standard since the 1996 Amendments were enacted.

The drinking water-related provisions of America’s Water Infrastructure Act include:

1. Additional Funding Authorized for Public Water System Infrastructure

• Drinking Water State Revolving Fund Reauthorization. Back in 1996, NRDC and our allies successfully pressed Congress to create a Safe Drinking Water State Revolving Fund. This DWSRF has put billions of federal dollars into EPA grants to states to pay for low-interest loans and grants to water systems to upgrade their drinking water infrastructure. However, Congress allowed the DWSRF to expire in 2003; therefore, each year Congress has had to appropriate funds for the program without formal authorization, creating potential impediments to funding. The new legislation just passed reauthorizes the Fund for three years: $1.174 billion in 2019, $1.3 billion in 2020, and $1.95 billion in 2021. Appropriations will be needed now to ensure actual funding.

• Water Infrastructure Financing and Innovation Act (WIFIA) Reauthorization.The legislation expands and modifies WIFIA, authorizing $50 million for 2020 and 2021. WIFIA is a federal credit subsidy program administered by EPA for eligible, generally big water (or wastewater) projects.

• Assistance to Indian Reservations and Disadvantaged Communities. The bill authorizes $20 million per year for 20 drinking water projects on certain Indian Reservations, and authorizes more flexibility for states to provide funds to disadvantaged communities. 

• Grants to States for Contaminant Response in Underserved Communities.The legislation authorizes EPA to make grants to states to help underserved communities in response to contamination that may present an imminent danger

2. Modest Drinking Water Program Improvements

• Improving Right-to-Know Reports. The 1996 Amendments to the Safe Drinking Water Act require that each water system must issue annual right-to-know reports that reveal contaminants in their tap water and any violations the system has committed (they are called “Consumer Confidence Reports” in the law, in a bow to the water industry’s sensibilities). NRDC and our allies fought to enact this requirement, but we and citizens have been disappointed because the reports often downplay risks and are so complex and unintelligible that few consumers can make sense of them. The new bill requires EPA to update its rules for these reports within 2 years to make them more clear, understandable, and usable. Also, systems serving 10,000 or more people will now have to issue these reports at least twice a year (now required annually) and must identify violations and any exceedances (such as for lead contamination) for which corrective action has been required.

• Community Water System Risk and Resilience Requirements & Grants. Community water systems serving over 3,300 people must evaluate: risks from hazards including malevolent acts and natural hazards; resilience of pipes and infrastructure; monitoring; financial infrastructure; use and handling of chemicals; operation and maintenance; capital and operational needs. They also must develop an emergency response plan which addresses these risks and physical and cybersecurity. The systems must certify to EPA that they have completed these tasks. EPA is to provide guidance and technical assistance for smaller systems on how to conduct these assessments. The bill also sets up a program for EPA to provide grants to help implement this provision. The bill authorizes $25 million in FY2019-FY2020 to implement this section and to help increase water system resilience to natural hazards.

• Improving Accuracy and Availability of Compliance Monitoring Data. EPA is required to develop a plan to improve the accuracy and availability of monitoring data collected regarding compliance with Safe Drinking Water Act.

• Innovative Water Technology Grant Program. A grant program is established to encourage development and deployment of innovative technologies to tackle pressing drinking water supply, quality, treatment or security issues facing water systems, private wells, or source waters. Maximum grants are $5 million, and a total of $10 million per year is authorized.

• Asset Management. States must develop a plan to encourage development of asset management plans by public water systems.

• Public Water System Supervision Program Reauthorized. The state drinking water oversight program is reauthorized through FY2021 at $125 million per year.

3. Small Steps on Lead Contamination

• Lead Service Line Replacement Cost Estimates. The bill says that in conducting their regular surveys of the need for DWSRF funds, EPA and states must include total estimated cost of replacing all lead service lines, including those under public and private property.

• Voluntary School & Child Care Lead Testing Program. Grants are authorized for technical assistance to identify the source of lead contamination in schools, as well as identifying other sources of assistance for potential applicants. The bill authorizes $25 million for FY2019-2021.

• Drinking Water Fountain Replacement for Schools. A $5 million/year grant program for the next 3 years also is established for schools to replace fountains manufactured before 1988.  

4. Measures to Address Some Small Water System Issues

• Study of “Intractable” Water Systems. The bill requires EPA to identify “intractable” small drinking water systems with serious compliance problems, and to recommend solutions for them.

• Encouraging Consolidation of Troubled Systems. States with primacy or EPA are authorized to require water systems to assess options for consolidation or transfer of ownership of the system, or other actions to achieve compliance with the law. The measure applies if the system has repeatedly violated the Safe Drinking Water Act or is unable or unwilling to take feasible and affordable actions to comply. While NRDC agrees that consolidation can in many cases be a good solution to small systems with compliance or other challenges, we have concerns about how some of this provision is drafted. It could be construed to make it challenging in some circumstances to take certain types of enforcement actions against systems going through the consolidation process established in the bill. A House floor statement made by the bill’s authors to clarify the measure may help to alleviate some of these worries.

• Monitoring Unregulated Contaminants in Smaller Systems. Currently, when EPA issues rules requiring water systems to monitor for unregulated contaminants, only systems serving more than 10,000 people must test. Smaller systems are exempt, though EPA pays to test a small percentage of them (usually about 2%). The bill requires that EPA shall, “subject to the availability of appropriations,” require that systems serving between 3,300 and 10,000 people to test for unregulated contaminants. A representative sample of systems serving fewer than 3,300 people also must test, though the bill precludes EPA from taking enforcement action if such a system fails to do so. EPA is authorized to spend $25 million per year to help pay for this extra monitoring.