A policy role cities can play in replacing lead pipes faster and equitably
By Olya Egorov and Maureen Cunningham
Last month, we celebrated Newark replacing their last lead service line. Newark’s record of replacing over 23,000 pipes in under three years was a huge achievement. It set a strong example to all American cities across the country that full replacement of all lead pipes is, in fact, possible. But what made the program so effective? At least one aspect was related to a policy the city enacted.
Having a proactive water utility, and of course, the necessary funding was critical for Newark’s lead service line replacement program, but so was some policy work the city did to lay the groundwork for their success. In particular, the city passed an ordinance that mandated lead service line replacement. Newark’s ordinance was passed by its City Council in 2019, at the start of their lead service line replacement program. In the first provision after definitions, the ordinance declares “It is hereby established that the existence of lead service lines is prohibited in the City of Newark.” The ordinance requires homeowners to either register in the city’s lead service line replacement program at zero cost or to independently replace the lead service line within 90 days of the ordinance’s effective date. The ordinance includes a provision that allows the city to enter a home to inspect or replace the service line, regardless of whether a homeowner approves replacement. Since Newark has a large number of renters, this was important to ensure an occupant of a property would be held harmless and not penalized for allowing the right of entry. The ordinance also requires proof of replacement at the time of real estate transfer or sale. In sales of city-owned properties, the buyer is responsible for replacing the lead pipe within 90 days by enrolling in the city program or replacing the line on their own and at their own expense. The Newark ordinance was later backed by state-level enabling legislation in New Jersey, which allowed municipalities throughout the state to adopt an ordinance to enter properties to perform lead service line replacements.
The City of Eau Claire, Wisconsin - like a handful of other small to medium cities - also passed an ordinance on mandatory lead service line replacement, declaring “The city’s water service is an interconnected system and lead in any service line is a potential contaminant throughout the system.” The ordinance required any encountered lead service line to be replaced on both the public and private side “at an owner’s expense or through available financial assistance.” The lead service line replacement program in Eau Claire utilizes State Revolving Funds facilitated by the Wisconsin Department of Natural Resources. With this funding, the city provides $2,000 to the customer to replace a private lead service line, with the estimated cost of replacement from $2,000 to 2,600 in Eau Claire. The ordinance states that if a pipe is identified as lead, the city will notify the resident, determine eligibility for replacement, and provide funding options to the homeowner. Within 30 days of receiving a notice, the homeowner must arrange for replacement either in conjunction with the replacement of the city-owned portion or arrange for replacement with a contractor within 90 days. A number of other cities in Wisconsin (e.g. Madison, Milwaukee, Menasha) have also passed ordinances.
In an ordinance in Malden, Massachusetts, the focus is primarily at the time of real estate and tenant transfers or during larger construction projects. Property owners are required to provide a certificate from the city that they have a lead-free service line prior to the sale of the property or when someone applies for a building permit for a project with a value of over $30,000. Similarly, the property owner has to provide the certificate of a lead-free service line in addition to performing a water test when renting a property or when there is a transfer of tenants in an owner non-occupied multi-family property. According to their website, the city offers no-interest loans to homeowners who qualify for the program.
Recent efforts in Benton Harbor, Michigan led to the passage of an ordinance in February 2022, mandating lead service line replacement across the city. Benton Harbor has been grappling with a water crisis with elevated lead levels in their samples, forcing water customers to rely on bottled water due to pipe corrosion. The ordinance replicates the Newark ordinance nearly verbatim, with a few minor changes, including extending the replacement time from 90 days to 180 days if an owner chooses to opt out of the city program, and with different penalties for noncompliance.
While there are many proactive steps that municipalities can take to successfully replace their lead service lines, passing local legislation through ordinances can certainly help pave the way for proactive, faster, and more equitable lead pipe replacement. A few aspects in municipal ordinances are especially important, such as unequivocally mandating full service line replacement, granting the right of entry to a property even if the owner does not grant it (especially in communities with high numbers of renters), ensuring lead pipe replacement at the time of real estate or tenant transfer, and coupling the ordinance with a program that reimburses homeowners with 100 percent of the replacement costs.
With the earmarked $15 billion for lead service line replacement under the bipartisan Infrastructure Investment and Jobs Act and recently-released guidance from the EPA to states on how to use this funding, there is hope that cities of all sizes can begin lead service line replacement programs soon. Passing policies that jumpstart programs at the local level is something many cities should therefore be thinking about right now.
This ordinance is derived from a Newark City Ordinance.