The October 2021 passage of the historic Infrastructure Investment and Jobs Act (IIJA) provides $15 billion to States to fund the replacement of lead service lines – the most funding ever invested by the federal government for this work. States and water systems around the country are gearing up for implementation.
Background on Lead Service Lines and the Harms They Cause
A service line is a pipe that runs from the water main in the street to a residence or other structure.
Many service lines have lead in them; this lead can leach and flake off into the drinking water. Lead is a toxic heavy metal that can cause a number of health and behavioral issues, particularly in children. The CDC, the American Academy of Pediatrics, and the World Health Organization all state that there is no safe level of lead exposure.
Lead is a poisonous heavy metal that can affect almost every organ and system in the human body, often irreversibly. Children and fetuses are particularly vulnerable. Even at very low levels once considered safe, lead can cause serious, irreversible damage to developing brains and nervous systems of babies and young children. Lead can decrease a child’s cognitive capacity, cause behavior problems, and limit the ability to concentrate—all of which, in turn, affect the ability to learn in school. Lead can cross the placental barrier of a pregnant woman into the womb and harm the fetus.
The Newark Experience
Given the high stakes at play here, particularly for children, it’s critically important for water systems to go all-in on lead service line replacements. Newark, New Jersey, did just that. After initially denying it had a lead problem, resisting calls for prompt action, and fighting a lawsuit NRDC filed on behalf of local school teachers, Newark replaced all 23,000 of its known lead service lines. And once it started, it replaced the lead service lines with lightning speed – in under three years. To get there, the city adopted an ordinance that mandated the replacement of lead service lines, provided full funding for the construction, and allowed the city to replace the lead line even if they couldn’t locate the property owner to get their consent. This was particularly important in a city where more than 70 percent of residents rent and there are many absentee landlords who are hard to find. These provisions lead to a very successful program and handily overcame any issues relating to funding, ownership of the service lines, and consent.
To aid other communities, NRDC has turned Newark’s ordinance into a model ordinance for other communities to consider as they begin their strategy to get their lead pipes out of the ground.
Mandating Lead Service Line Replacements
Newark’s program is simple and straightforward. All property owners were required to replace their lead service lines. They could do that either by (1) hiring a contractor to do the work (at their own expense) or (2) taking advantage of the City’s free replacement program. If the property owners used the City’s replacement program, the City paid for it. This mandatory program led to replacements of all lead service lines, with speed and efficiency.
Unlike Newark, some water systems do not mandate the replacement of lead service lines. Instead, they have a voluntary program in which residents apply to the city for the replacement (and often have to pay for replacing the portion of the service line under private property—which often costs thousands of dollars.) This is inefficient and will lead to higher costs. That approach also often means that lower income homeowners and renters never get their lead lines replaced, exacerbating the disproportionate threats from lead exposure to lower income people and people of color. In a voluntary program, not all lead service lines will be replaced, which should be the highest priority, and the construction is done in an inefficient and expensive hopscotch fashion, not targeted neighborhood-by-neighborhood, block-by-block.
“Ownership” of the Service Lines – Muddying the Waters
Some water systems (not Newark) claim that their responsibility to replace a lead service line depends on ownership of all or part of the service line. In fact, most states and cities categorize the part of the line that runs from the street to the curb or property line as “owned” by the city. In many cases, cities will claim that the remaining line from the curb to the house belongs to the property owner (see the illustration above for location of these parts of the service line). However, generally the water system controls the full service line, and often (such as in Chicago) they required lead service lines to be used, though now the system will often try to place the burden and expense of replacing the portion of the service line under private property on the homeowner.
As demonstrated by the success in Newark, the concept of ownership in a mandatory program is muddying the waters, distracting and deflecting from the problem that needs to be addressed – the removal of all lead service lines. For instance, and prior to the passage of IIJA, New York City, which does not presently have a mandatory program, does not claim responsibility for the vast majority of lead service lines. Per the DEP LSL FAQ site, “Water service lines in New York City are owned by the individual property owners, from the water main in the street to the meter in the home.” This means that of the potential lead service lines identified in its 2021 inventory, DEP is only obligated to replace 194 LSLs, or a mere 0.14% , on city-owned properties and not the other 137,535, or 99.86% that are privately owned.
Moreover, replacing only part of a lead service line – the part that a city claims it owns – would lead to partial lead service line replacements, which can actually increase the amount of lead that gets into drinking water. An NRDC expert, Cyndi Roper, has previously written about the hidden costs and dangers of partial replacements. The construction process itself can dislodge the lead in the part that is not replaced, sending even more lead into drinking water. Additionally, if the pipe is fused together with another material, such as copper, the two different metals can spur a chemical reaction called galvanic corrosion, which can cause further corrosion to the pipe increasing the risk of lead-contaminated drinking water. Indeed, EPA’s guidance for using IIJA funding and the Treasury Department’s rules for using American Rescue Plan Act funding both prohibit funding partial lead service line replacements for these reasons. Congress also prohibited partial lead service line replacements from being funded under the EPA grant program for lead in drinking water reductions.
Consent by Property Owner or Occupant; Certificate of Occupancy
And Newark built in other helpful provisions that ensured the program’s success. One was to allow occupants, not just the property owner, to grant consent to the service line replacement. Newark has many absentee landlords; providing occupants with the ability to consent to the replacement was very innovative and effective. Newark also requires a property owner to provide a Certificate of Occupancy that includes the service line replacement when selling or transferring ownership of the structure.
Enforcement Provisions – Improving Newark’s Ordinance
Newark also built in fines, imprisonment, and community service for a property owner’s refusal to replace a lead service line. In our view, while well-intentioned, these enforcement options are too harsh and unnecessary. A better way to address noncompliance, and which we have included in the model ordinance, is to allow for water shutoffs when an owner or occupant refuses access to the property for the service line replacement. A failure to replace the lead service line should also be recorded in real property records.
Addressing all of these challenges will lead to successful replacements of all lead service lines. Cities and states that do that are acknowledging the public health crisis that lead service lines present. Generations of children have not and will not achieve their full potential because they have been poisoned with lead, especially in black and brown communities. We have the opportunity right now to take major steps forward to help stop that with the IIJA funding. Cities and states need to exert their political will. A crisis that so severely affects our children and communities needs solutions, not excuses.
We need more water systems to embrace the Newark “can-do” method of replacing lead service lines. Adopting a similar ordinance requiring lead service lines to be replaced, allowing occupants to consent to the replacement, and providing other incentives will allow communities to truly get the lead out of its water.
Newark focused on the public health crisis and made the replacements happen. Other water systems can follow in Newark’s very successful path.