Congress & States Must Protect Water Access During COVID-19

[UPDATED 4/1/21 TO REFLECT CURRENT STATUS OF STATE SHUTOFF MORATORIA]

With COVID-19 surging around the country, millions of people unable to afford vital water, electric, and gas service are now losing the utility shutoff protections that some states adopted earlier during the pandemic. 

Access to water is especially at risk. Congress needs to act now.

Only 19 states, plus Washington, DC and Puerto Rico, adopted statewide water shutoff moratoria at any point during the pandemic. Eleven of those have already expired. See the state-by-state list at the end of this blog. And some utilities have already jumped at the chance to resume shutoffs immediately. 

There are no existing state or federal programs to help low-income customers afford water and sewer service, and local programs are the exception rather than the rule. In one Oklahoma city, desperate families had to rely on a fundraising effort on Facebook to seek relief when their water utility resumed shutoffs in June.

Pre-pandemic, studies have shown communities of color experiencing water shutoffs, and utility shutoffs in general, at higher rates. Today, people of color are suffering the greatest impacts of COVID-19, including financially, so every expectation is that they are also disproportionately at risk of shutoff today. And people of any race or ethnicity who struggle to pay water bills report cutting back on other essential spending to try to avoid water shutoffs. As one grassroots leader in Georgia recently told CNN, utility shutoffs are “a form of systemic environmental injustice.”

In short, the majority of people in the U.S. lack a guarantee of continued access to life-saving water in their homes throughout the pandemic. People of color bear the greatest burdens. And virtually everyone is without any safety net to help pay water and sewer bills they cannot afford. 

Congress and the states need to act now, to prevent an avalanche of water and other utility shutoffs in the weeks and months ahead.

At the top of the to-do list for Congress, to ensure uniform nationwide protections, are:

• Enact a national moratorium on shutoffs of water, electricity and gas, extending at least 180 days beyond the end of the state of emergency, to allow people to regain their financial footing.
• Require safe and immediate reconnection of any homes currently without service.
• Provide funding to help customers pay off their arrears and stay current on future bills to avoid shutoffs. We are calling for at least $4 billion in low-income water assistance in COVID legislation, and ample federal funding to help customers pay electric and gas arrearages.  Such funding is needed to help strapped low-income consumers pay for their utility bills and to help utilities operating at the margin remain solvent.
• Ensure that people can address their remaining arrears in ways they can afford, including waiver of late fees and interest charges, opportunities for extended payment plans, and other protections from unfair debt collection practices, if they are not able to obtain forgiveness of their arrears. (See more detail below on the list of state policy recommendations, which are equally applicable to federal legislation.)
• Emergency funding for affected water utilities, particularly those serving disadvantaged or hard-hit communities, to help offset lost revenue, the costs associated with moratoriums on shutoffs, and the essential public health protections being put in place by water utilities.

Many of these provisions are included in the HEROES Act, which the House passed on May 15, but are completely absent from the Senate’s most recent COVID-19 relief bill. 

States must also act to prevent utility shutoffs, through executive and legislative action:

• Adopt or extend shutoff moratoria and reconnection requirements.
• Identify any existing funds, including from the CARES Act, that can be used (as Michigan did) to provide arrearage forgiveness and bill-paying assistance to low-income water customers.
• Ensure that, whenever shutoff moratoria are lifted, no one is shutoff because they cannot afford to pay, by enacting utility consumer protections such as upfront forgiveness of unpaid bills for those most in need; arrearage management plans (i.e., forgiving a portion of debt when a customer stays current on future bills); extended repayment periods that cap monthly payments based on the customer’s ability to pay; waiver of late fees, penalties, interest, and deposits; and suspension of reporting of overdue bills to consumer credit agencies, sale of receivables to collection agencies, and the use of liens on people’s homes for overdue bills.
• Require utilities to track and report comprehensive data (by zip code) on customer arrearages, disconnections, avoided disconnections, and other related topics, to enable assessment of whether a state’s policies are effective and to allow for identification of potential disparate impacts.

Ultimately, these crisis response strategies can set the table for more permanent solutions – at the federal, state, and local levels – to ensure everyone has access to safe, sufficient, and affordable water and sanitation.

* * *

Status of water shutoff moratoria

The list below includes the 16 states, plus the District of Columbia and Puerto Rico, that established statewide water shutoff moratoria at some point during the COVID-19 pandemic.

Expired:

Delaware – expired July 1, 2020

Indiana  – expired August 14, 2020 (governor’s order here and utility commission order here) 

Kansas – expired May 31, 2020 (governor’s order here and utility commission order here)

Kentucky – expired Oct. 20, 2020 for privately-owned utilities, and Nov. 6, 2020 for publicly-owned utilities. 

Maine – expired Nov. 1, 2020

Maryland – expired Sept 1, 2020 (except for privately owned utilities)

Michigan –  expired March 31, 2021*  

Mississippi – expired May 26, 2020

Montana – expired May 24, 2020 except for members of "vulnerable populations" sheltering at home

New Hampshire – expired July 15, 2020

North Carolina – expired July 29, 2020 (and on Sept. 1, 2020 for for privately owned utilities) 

Ohio – expired July 10, 2020

In effect, with specified end date:

New Jersey - expiring June 30, 2021 (or sooner if the state of emergency ends sooner)

New York – expired March 31, 2021, but Gov. Cuomo is expected to sign legislation (which passed on 3/31) extending a blanket moratorium through the end of 2021 (or sooner if the state of emergency ends sooner), with a further 180 days of protection for financially impacted customers after the state of emergency ends.

Vermont – expiring April 15, 2021 (or later if state of emergency is extended)**

Washington – expiring July 31, 2021, or sooner if the state of emergency ends sooner. (For privately owned utilities, a second, overlapping order also established a shutoff moratorium through July 31, 2021.)

Washington, DC – expiring April 15, 2021 (or later if state of emergency is extended)***

Wisconsin – expiring April 15, 2021

In effect, with no pre-determined end date:

California – In effect until the end of the state of emergency (which is open-ended).

Virginia (see section 7 here) – In effect, but with potential for utility-specific exemptions,**** until the earlier of: (i) 60 days after the end of the state of emergency (which is open-ended); or (ii) until the governor determines that the moratorium is no longer necessary based on economic and health conditions.  

Unclear end date:

Puerto Rico***** – Notably, as of mid-July, Puerto Rico was rationing water because of a drought, shutting off service every other day to about 140,000 people, notwithstanding the pandemic. 

Approximately fourteen additional states adopted water shutoff moratoria that applied only to privately owned utilities regulated by state utility commissions, which, for water, serve a small minority of the population. These more limited moratoria, too, are now beginning to expire.  

Other states, including COVID-19 hotspots like Florida, Georgia, Alabama, and Oklahoma, never issued orders suspending shutoffs for any type of utility service, including water, electric, or gas, although many utilities around the country voluntarily suspended shutoffs, at least for a time.

Notes

*In Michigan, the governor originally issued an executive order with a Dec. 31, 2020 end date. That order was invalidated by Michigan Supreme Court, effective Oct. 12, 2020. On December 22, 2020, the governor signed legislation enacting a new moratorium though March 31, 2021.

**Vermont's state of emergency has been repeatedly extended by amendments to Executive Order 01-20, most recently until April 15, 2021.

***Washington, DC's moratorium expires 15 days after the end of the District’s state of emergency. The state of emergency currently ends on March 31, 2021.

****Virginia's moratorium provides that utilities may get an exemption by showing that arrears “exceed 2% of an investor-owned electric utility's, or 1% of any other utility's, annual Virginia jurisdictional operating revenues.”

*****Puerto Rico status was last updated here in July. In Puerto Rico, the legislation enacting the moratorium referred both to the emergency period under a particular executive order (concerning a 24/7 “lockdown”) and more generally to “the emergency period decreed by the governor, to combat the effects of [COVID-19].” From the plain language of the legislation, it appears be ambiguous whether the expiration of the moratorium is based on the end of the 24/7 lockdown order (which has already occurred), or whether it is based on the expiration of the underlying state of emergency (which remains in effect).

Special thanks to Helia Bidad, NRDC summer 2020 legal intern, for her research on the expiration dates of state moratoria.