States act to get the lead out faster: Will they be better poised to access federal funding?

By Olya Egorov & Breeana Gonzalez

Soon, all water systems across the country will have lead service line inventories. This is a new mandate in the Lead and Copper Rule Revisions, calling for all water systems to complete their inventories by October 2024. This deadline happens to be past the three-year mark of the five years of federal infrastructure funding through the Bipartisan Infrastructure Law. The disconnect between available funding and federal compliance dates could result in some cities falling behind in obtaining funding to remove their lead service lines. It is essential that municipalities and states maintain pace by focusing on identifying the location and number of lead service lines in their communities sooner, not only to hone in on the communities most impacted by lead in drinking water, but to also tap into the available funding as soon as possible. 

Prior to the passage of the Bipartisan Infrastructure Law, some states took the initiative in digitizing their records and requiring cities to create lead service line inventories. Those states serve as models for others who are rushing to adhere to the new lead service line inventory requirements as outlined in the Lead and Copper Rule Revisions enacted in December 2021. Proactive methods in states like New Jersey have expedited inventory requirements, ensuring that municipalities submit inventories in a timely (yet achievable) timeframe, also while requiring submission of a replacement plan with consideration of funding and prohibiting any form of partial lead service line replacement. 

Below, we take a look at state legislation on lead service line replacement in five states.

New Jersey

In July 2021, the New Jersey Governor signed A5343 into law. The goal of the bill is to dramatically reduce lead exposure, especially within younger demographics. Each year, 4,000 children have been found to have elevated blood levels, so through the included mandates, the legislation sets a 10-year target for water systems to replace their lead lines. Because the law was signed in July 2021, several of these mandates below are already underway. 

The law sped up the three-year window for inventories outlined in the new Federal Lead and Copper Rule by requiring several stages of information to be sent to the state in a shorter timespan, giving public water systems only 60 days to submit an initial count of the number of lead service lines and unknown service lines. Along with this, the water systems will now be required to submit an initial lead service line inventory including information about the line’s composition and location within six months that is intended to be updated within the first year and re-updated every two years until all lead service lines are replaced. Within a year of the law, water systems must use their inventories to create an initial plan for replacing all service lines between 10 and up to 15 years. This piece is critical because it ensures that cities are not only focusing on creating thorough inventories, but guaranteeing that the toxic lead pipes are fully replaced. 

Additionally, notification requirements in this new law for systems serving over 3,000 customers include making the most recent inventory available on the water system’s website or otherwise publicly available in smaller systems. The law also requires that within 30 days of submitting an initial inventory to the state, water systems must notify all customers and off-site property owners through written notice. Landlords are required to provide a hard copy of the notice to their renters and post the notice in a common area of the building. For municipalities where a primary language other than English is used by ten percent or more of the residents, the water system is required to provide the notice in English as well as those additional languages. 

The law further bans partial lead service line replacements, unless during an emergency or water main replacement, and partial lead replacements do not count towards the replacement rate. 

Michigan

In June 2018, the State of Michigan updated their Lead and Copper Rule, intending to minimize lead levels at an expedited speed, and their revisions precede the federal promulgation of the new Federal Lead and Copper Rule in 2021. The Michigan Lead and Copper Rule Revision targets seven categories: Lead Action Level, Lead and Copper Tap Sampling, Distribution System Materials Inventory (DSMI), Lead and Service Line Replacement, Water Quality Parameter Sampling, Continuity of Sources and Treatment, and Enhanced Transparency. 

The provisions mandate a submission of a preliminary inventory by January 1, 2020 with a final inventory submission by January 1, 2025 that is updated every five years. The state requires that residents be notified of their lead service lines within 30 days once the inventory is submitted. Michigan also reduced the lead action level of 15 parts per billion (ppb) to 12 ppb, effective January 1, 2025. If the action level is triggered by a water system, it results in a series of actions, including sending notices to customers, optimizing corrosion control, and increasing the pace of lead service line replacement to seven percent a year if proper corrosion control is in place. Lastly, Michigan strengthened requirements for lead service line replacement, including the ban of partial lead service line replacement. 

Illinois

Initially signed in June 2021, the Lead Service Line Replacement and Notification Act (Public Act 102-0613) in Illinois went into effect on January 1, 2022. This new act replaces the previous guidance on lead service line replacement in Illinois, requiring more stringent guidelines. These new guidelines require changes at all levels to ensure a more comprehensive evaluation of lead in drinking water.

The following changes were made at the community water supplies (CWS) distribution system:

• Community water supplies (CWS) in Illinois are required to develop an initial material inventory by April 15, 2022. The material inventory must be updated and submitted by April 15, 2023.

• Requiring that lead service line replacement plans be submitted to the state by April 15, 2024 with an updated plan submitted each April 15th for review.

• Replacing all lead service lines during the water main replacement process, beginning in 2022.

Illinois also created the Lead Service Line Replacement Fund to provide financial and administrative aid to community water systems. This new Act, along with the passing of the bipartisan infrastructure law, will put vulnerable communities at the forefront of receiving aid. With 667,275 reported lead service lines, Illinois has the highest number of lead pipes in the United States - and certainly every policy at the state level should focus on speeding up replacement rates and ensuring that all people, regardless of their socioeconomic background, have access to clean, lead-free water. 

Ohio

While EPIC supports full service line replacement, Ohio chose a different path. Beginning on October 1, 2018, Ohio required that all public water systems begin lead service line replacement on the public portion of the service line. While the option to replace the privately-owned portion of the service line was offered, the systems were not required to pay for the cost of the replacement, which we know can put low-income and racially diverse communities at a disadvantage. In Ohio, if partial lead service line replacement occurs, there are several procedures that the water systems are required to take:

• 45 days prior to the partial lead service line replacement, water systems are required to inform residents of this change that includes language explaining that lead concentrations in their water may go up and ways to reduce this.

• The water system is required to provide drinking water treatment unit filters for a three-month period or provide an alternative solution to decrease the lead concentration in this time period.

Along with this, water systems are also required to keep records for a minimum of 12 years, where either partial or full service line replacements take place.

Wisconsin

The State of Wisconsin requires that all drinking water utilities provide information about the total number and material type of both utility-owned and privately owned service line segments. In 2020, Wisconsin utilities reported having approximately 240,000 service lines that contain or may contain lead. In addition, the state’s focus on funding has enabled small-to-medium sized cities like Stoughton and others to jumpstart programs and remove all their lead service lines. In 2017 and 2018, Wisconsin used more than $26.8 million in state revolving funds to establish a program that supported disadvantaged communities. Through this initiative, which required removal of both the utility-owned and privately-owned portions of the lead service lines, 42 municipalities were able to make significant strides in lead service line replacement. In 2020, the state expanded this program to include all municipalities, not just disadvantaged communities. In addition, legislation passed in 2018 allows utilities to use customer generated revenue to fund replacement of privately-owned lead service lines. 

In the case of New Jersey, the state has also been able to provide a statewide look of their lead service lines, and the American Water Works Association predicts it will cost roughly $2.3 billion to replace all 350,000 of them. This kind of state-wide view of the scope and scale of the problem is an important policy tool that would be helpful to see in all lead-burdened states.

Despite much focus on inventories, funding may ultimately be the key. Wisconsin’s approach was an emphasis on funding, and they are now ahead of the rest of the nation in the number of municipalities that have replaced 100 percent of their lead pipes, from Madison and Stoughton to Green Bay, with the list growing by the day. Newark, NJ, which replaced all of its lead pipes, and now Benton Harbor, MI, which is now over halfway through replacing its lead service lines, both point to funding as an important factor in their success.

Although the policies of tackling the issue of lead in drinking water may vary, the initiative among some states to go further and stronger than the federal requirements may be something for other states to replicate. The federal Lead and Copper Rule Revisions, together with the Bipartisan Infrastructure Law funding, is a starting point to removing the threat of lead in drinking water. But, as seen by these state-level examples of success, states can play a critical role in speeding up the process of lead service line replacement.

Table 1: Components of State Lead Service Line Replacement Legislation

	State with link to legislation quoted	Mandatory Inventory	Public Notice	Submission of replacement plan	Funding proposal	Prohibits Partial Replacement
	New Jersey	“Each public community water system in the State shall develop a service line inventory, in accordance with the requirements of this section, in order to determine the existence or absence of a lead service line at each service connection in its service area.”	“... a public community water system shall send, to each customer and non-paying consumer served by a lead service line in the service area, and to any off site owner of property served by a lead service line in the service area, written notice of the composition of the service line”	“No later than 12 months after the effective date of this act, each public community water system shall submit, to the department, an initial plan for replacing all lead service lines within its service area.”	“Not withstanding the provisions of any law, rule, regulation, or order to the contrary, 100 percent of the costs associated with undertaking and funding the replacement of lead service lines pursuant to this act, excluding any portion funded by grants or other subsidies, shall be borne by all of the customers, in the State, of an investor-owned public community water system and shall be included in the investor-owned public community water system’s rate base or otherwise be recoverable from the system’s customers, in a manner determined by the board”
	Michigan				“The full lead service line must be replaced at water supply expense, regardless of ownership.”	“Partial lead service line replacement is no longer allowed except in the case of an emergency repair”
	Wisconsin					“New national research on lead in drinking water has raised concerns within DNR regarding the potential for increased lead levels when partial LSL replacement occurs. The Department is advising that municipalities replace lead service lines in their entirety – partially replacing lead service lines can increase lead levels in homes.”
	Illinois	“...develop an initial material inventory by April 15, 2022”		“...electronically submit, by April 15, 2024 its initial lead service line replacement plan to the Agency”	“...long-term revenue options for funding lead service line replacement”	“Partial lead service line replacements are expressly prohibited”
	Ohio	“Under a new Ohio law enacted in June 2016, community and nontransient noncommunity public water systems are required to identify areas that are known to contain or likely to contain lead service lines by March 9, 2017.”				“Removing only part of the lead service line—referred to as partial lead service line replacement—increases lead levels in drinking water in the short term. Therefore, full replacement of the entire service line—including portions on both public and private property—is essential.”