From Water

Graphic Realism

Organization of U.S. drinking water utilities in a few simple figures

Here are some graphs that convey ​a few key things about the organization of drinking water utilities in the United States​.*

​Source: EPA SDWIS

​There's a lot of important information ​in those graphs, but these are the most important for policymaking purposes:

  1. Fragmentation. There are nearly 50,000 community water systems in the United States, an order of magnitude more than electrical and gas utilities combined.
  2. Ownership & governance. The overwhelming majority of Americans (84%) get their drinking water service from local government utilities, rather than investor-owned utilities. This proportion is opposite from the energy sector, where investor-owned firms ​hold the lion's share of the market.
  3. Size. The distribution of systems is highly skewed in size: over half of American community water systems are very small, serving populations of less than 500​; the largest 434 systems serve nearly half of the U.S. population.

These three realities inform virtually every aspect of water system management, operations, finance, and regulation. Any successful effort to improve or reform American drinking water utilities must account for the political and administrative challenges that these realities present.

Organizations are human creations, so we can change them if we want to. But we can’t ignore them.



*Feel free to copy and use; please link to this ​page. 

Clean water regulation in Indian Country

Sovereignty isn’t what’s on paper, it’s what flows through taps and rivers

Environmental sovereignty (Photo: nativenewsonline.net)

America is slowly awakening to the dire state of tribal water and sewer systems. Access to drinking water and sanitation services are severely limited on many reservations, and where such systems exist, many are in poor shape. A couple years ago ​the first systematic study of Safe Drinking Water Act (SDWA) and Clean Water Act (CWA) ​implementation for tribal facilities yielded alarming results: tribal systems violated the SDWA 57% more and the CWA 23% more than similar non-tribal facilities. The disparities extended to enforcement, too: formal SDWA enforcement was 12% lower and CWA inspections 44% less frequent for tribal facilities. Evidence of systemic environmental injustice is seldom so glaring.

But there is hope. A new study offers promising evidence for a way to tackle the daunting challenge of tribal water systems. This time instead of comparing tribal and non-tribal systems, ​Mellie Haider and I looked at differences across tribal facilities to see whether regulatory institutions might hold the key to better environmental management in Indian Country. To understand why, we have to start with the foundations of federal environmental regulation and the peculiar legal status of Indian nations.

Environmental federalism & tribal governance

The landmark laws of the 1970s that form the core of American environmental protection (e.g., the Clean Air Act, Resource Conservation & Recovery Act, SDWA, CWA) were built with a system of federal-state cooperative implementation. Under these laws, the U.S. Environmental Protection Agency (EPA) sets rules, and states are responsible for implementation and enforcement of those rules for the facilities operating in their jurisdictions.

Thing is, tribes are sovereign nations under the U.S. Constitution, and so they—and, by extension, their water/sewer systems—are not subject to state laws. Oddly, the major environmental laws of the 1970s ​made no explicit provision for regulation of tribal facilities. As a result, tribal water and sewer systems operated in a regulatory vacuum well into the 1980s.

Introducing tribal primacy

Beginning in the Reagan Administration, a series of amendments and executive orders extended federal environmental laws to tribal lands and gave EPA direct implementation authority over them. Some tribal officials successfully lobbied Congress to treat tribes as states for regulatory purposes. With these new rules, tribes may apply to take primary implementation responsibility, or “primacy,” under federal environmental laws. Tribes applying for primacy authority must demonstrate to EPA that they have the administrative capacity to handle regulatory enforcement.

More scenes like this one, please.

​What difference would implementation primacy make to tribal environmental regulation?

On one hand, tribes might engage in a “race to the bottom,” loosening or neglecting environmental rules in order to avoid regulatory costs and improve ​economic output. But a race‐to‐the‐bottom logic makes little sense for American Indian tribes with respect to environmental regulation. Already occupying the proverbial “bottom,” tribes have little reason to shirk regulatory compliance in a race there.

On the other hand, tribal primacy might lead to more rigorous enforcement, as tribes seek to improve health while maintaining their traditions and cultur​es. Federal regulators have few political incentives for devoting scarce resources to enforcement on tribal land, especially when tribes may lack the political strength to demand strict enforcement. At the same time, many tribal governments serve sparsely populated communities under poor economic conditions, leaving tribes with limited access to the human and financial capital necessary to maintain compliance. Regulatory neglect might be the unfortunate (though understandable) result. Tribes with primacy have more control over their own environmental fates. Moreover, primacy can give tribes an important lever in their environmental conflicts with neighboring firms and jurisdictions.*

What difference does primacy make?

To understand the impact of​ implementation primacy on tribal ​clean water enforcement, we analyzed CWA ​records for ​474 tribal wastewater treatment plants in the United States from 2016-2019. About 15% of these facilities operate under tribal regulatory primacy; the rest are regulated directly by the EPA.** After adjusting for facility size, we found that facilities operated by tribes with primacy were inspected more than twice as often as those regulated by the EPA.†

The enforcement gap between tribal and EPA enforcement ​is greatest for smaller facilities and declines as facility size grows. Over our three-year period of analysis, a very small facility (design capacity 5,000 gallons per day) received an average of 2.75 more inspections under tribal primacy than under EPA oversight. At a moderately large facility (2.5 million GPD), the difference fell to just 0.24, statistically indistinguishable from zero.

The fact that the biggest differences are in the smallest systems underscores the impact of tribal primacy as an administrative phenomenon: it stands to reason that EPA officials spend their limited resources on larger tribal facilities. But in the water sector, the greatest environmental​ injustices are often in the smallest, most isolated communities. ​Our evidence shows that tribal primacy has its greatest impact in those small, isolated communities that are otherwise easily neglected.

More of these people, please.

Effective sovereignty

Implementation authority over environmental regulation gives tribal governments effective sovereignty. Sovereignty turns from mere legal assertion to real, practical impact when tribal officials have greater control over their own destinies. Along with money for pipes and plants, efforts to improve tribal water systems must build human capital and organizational capacity to operate and regulate those facilities. Recognizing this reality, the EPA and the Indian Health Service, along with Indian organizations like Native American Water Association and Intertribal Council of Arizona, run programs aimed at building tribal capacity. In the long run, empowering and building ​tribal governance capacity offers perhaps the most promising avenue for improving the environment in Indian Country.



*In fact, we found that tribes with a history of frequent federal litigation were more likely to seek primacy. A history of litigation indicates tribal independence, nationalism, and other political factors related to assertions of sovereignty.

**At the time of our study, only one tribe (the Navajo Nation) held SDWA primacy, so we couldn’t analyze variation in drinking water regulation.

†Our analysis also adjusted for differences in the characteristics of tribes with and without primacy.

40 Degree Day

The congressional COVID cavalry isn’t coming to save the water sector

"Nobody got nothing to say about a 40-degree day."

The ink was barely dry on a $2 trillion coronavirus response law when Congress started working on a second massive coronavirus relief bill. Water infrastructure was initially high on the congressional priority list for the next phase, with rumors of perhaps hundreds of billions of dollars for water and sewer systems. Structured carefully, a massive infusion of federal funds could help end shutoffs that threaten public health, give immediate relief for utilities reeling from lost revenue, help spur economic recovery through investment in badly-needed infrastructure, and maybe even drive fundamental structural reforms to the water sector. There was palpable excitement in the water sector as legislation was taking shape in April and early May. ​I even fielded a few inquiries from policymakers looking for guidance on structuring the bill!

On May 15 the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) bill—an unprecedented $3 trillion package of programs to aid “the economy, public health, state and local governments, individuals, and businesses” in response to the COVID-19 crisis. The bill now sits in the Senate, its final shape and prospects ​uncertain.

The outcome probably won’t matter much for the water sector, however: the HEROES bill passed by the House provides next to nothing for water and sewer systems, and provisions for low-income water bill assistance are structured in a way that will mainly help customers in large utilities with existing assistance programs. That, my friends, is what Stringer Bell would call a 40-degree day.

Aid for utilities?

Back in late March I argued for a formulaic, conditional grant program that would channel $70 billion in federal assistance directly to utilities that agreed to end shutoffs, ensure service to all occupied residences, forgive financial penalties accrued during the pandemic, and restructure prices to maintain affordability. Grants would be based on the poverty rates of utilities’ service areas. The main merits of the conditional grant model are reach and speed: the program would help nearly everyone, minimize administrative costs to utilities, eliminate qualification processes, and get the water flowing fast to stave off a public health emergency. It would also provide an immediate and durable economic stimulus, as utilities could use these funds flexibly to support jobs and capital investment.

Unfortunately, HEROES provisions for water systems are all conditions and no grants. The bill requires water systems that receive HEROES funds to end shutoffs, safely restore service to customers who had been shut off, and forgive penalties (😃).

And what do water and sewer utilities receive in exchange for giving up the main mechanism they have for ensuring timely payment? Limited subsidies for low-income assistance programs, and a boatload of administrative work (😐).

That’s it. That’s all. HEROES includes no categorical grants to water or sewer systems.*

I've never identified so much with a gymnast.

​Wither customer assistance?

​For a few years now, House Democrats have been pushing for a $1.5 billion Low-Income Household Drinking Water and Wastewater Assistance Program (LIWAP?), a LIHEAP-style policy for water bill assistance. I’ve argued before that a LIHEAP-style program isn’t an awful idea but has some pretty severe limitations. Congress apparently heeded that warning, as §190703 retains the LIWAP label but doesn’t build a new LIHEAP-style program. Instead, it would channel funds through state and Tribal governments to utilities to support water and sewer bill reductions for low-income customers.

Allotments to utilities would be based on federal income and poverty guidelines. In addition to ending shutoffs, restoring service, and forgiving nonpayment penalties, utilities that receive bill assistance funds would be subject to audit. To its credit, the House bill seems to acknowledge administrative burdens on customers associated with such programs: §190703(g) requires utilities to “conduct outreach activities designed to ensure that such households are made aware of the rate assistance” and to notify customers of the assistance that they receive. HEROES allows utilities to spend up to 8% of federal funds on support for administrative processes, but participating utilities would also be subject to mandated state audits.

The main problem with this approach is that it puts significant administrative obligations on utilities with relatively little payoff. It is difficult to see why small or medium-sized water and sewer utilities would opt to participate in a program that carries such onerous requirements for a program that will in most cases benefit a small, politically weak minority of their customers. Why would utilities with little organizational capacity agree to heavy shackles with so few shekels? Unfortunately, water/sewer affordability is, on average, worse in smaller systems. HEROES is unlikely to do much for the nation’s neediest water customers.

San Antonio has a good assistance program, and HEROES could make it better.

​The main beneficiaries of the $1.5 billion HEROES water assistance program will be large systems that already run assistance programs, since their administrative and audit processes are already in place.**

​HEROES funding would allow those large utilities to expand or extend benefits, and maybe boost their administrative capacity.

HEROES act? More like ZEROES act, amirite?

I dunno, man. The bill is more than 1,800 pages and funds everything from unemployment insurance to suicide prevention to wildlife biosurveillance. I sure didn’t read the whole thing, and there’s undoubtedly a lot of good stuff in there. The direct cash benefits at the heart of the bill will surely help lots of people. But the HEROES bill that emerged from the House of Representatives does little for water affordability directly, doesn’t help water/sewer systems generally, and certainly does not provide sufficient leverage to achieve more fundamental reforms to the water sector. The bill does give members of Congress the chance to take a position on water affordability and claim credit for tackling shutoffs. Whatever its fate in the Senate, the HEROES bill has accomplished those political goals.

​Systemic reforms ​to the U.S. water sector remain needed and possible, but will likely have to wait until COVID-19 recedes and a new Congress arrives.



*There’s one exception: HEROES allocates $20 million to the Bureau of Indian Affairs to support Tribal water provision, which really need help with capacity. More on this topic coming soon!

**Friends on Capitol Hill tell me that large utilities lobbied for this program.