No, EPA did not propose affordability guidelines for municipal utilities
Late last week the EPA published in the Federal Register some proposed new guidelines for evaluating sewer utilities’ financial strength. In press releases and public comments, water sector and local government organizations lauded the proposal as an important action on “affordability,” and a few news outlets dutifully reported on the EPA’s new water "affordability" guidance. Likely most people would think that means lower water bills for low-income households.
But the EPA’s proposed guidelines have little to do with affordability as most of us think about that word—the guidelines are not about ensuring that low-income Americans can pay for water. Rather, the proposal is about whether communities have sufficient resources to pay for water pollution controls required under federal law. In practical terms, the new guidelines are about whether sewer utilities have to comply with the Clean Water Act in a timely manner.
Understanding what’s going on here requires understanding a bit about sewers, the Clean Water Act, and why utility managers think about “affordability” differently from the rest of us.
Clean Water Act and local economics
Municipal sewer systems must meet a variety of pollution control rules under the federal Clean Water Act. Many of these rules require major investments in infrastructure and ongoing operational and maintenance costs. Often these costs can be quite high, especially in older communities that operate combined sewers that suffer significant sewage overflows during rainstorms. Overflows can cause raw sewage to run into rivers, lakes, and coastal waters, with attendant damage to health and environmental quality. The Clean Water Act aims to reduce, mitigate, and eventually eliminate such pollution. Recognizing that pollution controls are expensive, Congress built into the law provisions that a allow sewer utility to delay compliance with water pollution controls if compliance would outstrip its “economic capability.”
With few exceptions, sanitary sewer utilities in the U.S. are owned and operated by local governments. In practice, then, when sewer systems face significant Clean Water Act compliance costs, local officials sometimes try to negotiate delayed compliance with EPA or state environmental regulators by arguing that their communities have insufficient economic resources to comply with the law.
To evaluate these claims, EPA conducts a Financial Capability Assessment (FCA)—an appraisal of water pollution control costs relative to a community’s overall economic resources. This appraisal is supposed to be holistic, capturing a range of economic indicators. Since 1997, a key element of EPA’s assessment methodology has been the residential indicator, which is intended to reflect the impact of sewer system costs on rate payers. The residential indicator is the average sewer bill as a percentage of the community’s median household income (%MHI). When that value exceeds 2.0%, EPA considers pollution control costs to be “high” and potentially eligible for delayed compliance.
This approach isn’t great, but it’s not a crazy way to evaluate community-level financial capability.* Still, the residential indicator has been much-maligned in the water sector and was the subject of a comprehensive critique from the National Academy of Public Administration three years ago. Last year AWWA, WEF, and NACWA joined forces to advance a new analytical framework to guide FCA instead of %MHI. The AWWA/WEF/NACWA methodology incorporated local poverty levels and sought to evaluate Clean Water Act compliance costs in terms of their potential impacts on household sewer bills at the 20th percentile income.
What EPA is proposing
Still with me? Great. The proposal that EPA released last week is a revision to the FCA guidelines with two broad alternatives. Much of the proposal aligns wiht the methodology favored by AWWA/WEF/NACWA. Under the Alternative 1, EPA retains the traditional %MHI residential indicator and the suite of economic indicators in its existing methodology, but would add assessments of local poverty prevalence and potential rate impacts on 20th percentile income households. Alternative 2 would allow utilities to use a “dynamic financial and rate model” to evaluate the impacts of Clean Water Act compliance costs on customers.** At the heart of the new proposal are a pair of tables that integrate the old and new methodologies:
Recognizing the underlying distribution of economic conditions by accounting for poverty and 20th percentile incomes is an important advancement. Under either alternative, these guidelines are marked improvements on the status quo in that they provide a more complete, nuanced economic picture of the communities that sewer utilities serve.
Still, it’s important to keep the purpose of all this analysis in mind: under either alternative, the FCA would inform EPA’s negotiations with sewer utilities over compliance schedules. The point of these guidelines is to determine whether and how much sewer utilities ought to delay compliance with the Clean Water Act. Compared with current practices, the proposed guidelines are more flexible and could in some instances lead to more permissive regulation.
Financial Capability ≠ Affordability
EPA did not propose guidelines on affordability for low-income water or sewer customers. Under the proposal, EPA could consider low-income customer assistance programs (CAPs) as part of its overall assessment, but nothing in the proposed guidelines requires or even encourages CAPs. The proposed guidelines would not oblige utilities to structure rates in ways that constrain prices for conservative or low-income customers. Indeed, a utility that was looking for ways to delay investments would actually have an incentive to set more regressive prices: high fixed charges and declining block rates would make FCA metrics look worse, and so help justify compliance control delays.
So despite the rhetoric in headlines and press releases, these guidelines really aren’t about affordability in the way that most of us understand the term. Sure, delayed Clean Water Act compliance will reduce a sewer utility’s revenue needs. But EPA doesn’t regulate rates under the Clean Water Act, and so there’s no guarantee that financial savings from Clean Water Act noncompliance will accrue to low-income customers. In short, these guidelines are not about low-income affordability, they’re about utility finances and water pollution.
Don’t blame EPA for this confusion—they’ve been scrupulously clear and consistent that their guidelines are about financial capability. Regrettably, the industry press releases and news stories have been waving an affordability banner where it doesn’t quite belong.
Can communities afford clean water?
All this confusion over terminology invites reflection on what affordability really means. When municipal sewer utility leaders declare that they can’t “afford” to comply with the Clean Water Act, they’re making a political judgment that spending on other things or keeping taxes and service rates low is preferable to following water pollution rules. That is the prerogative of local policymakers. Communities need to pay for many important things, and clean water is just one of them. The democratic process is meant to help us sort out our collective priorities.
That’s why there’s more at stake here than pedantry. In expanding the meaning of “financial capability” to recognize the distribution of incomes in communities, these guidelines invite us to think about the distribution of environmental conditions in the same communities. The proposed guidelines don’t contemplate whether foregoing water pollution control in the name of “affordability” really helps or hurts low-income households. Do working class folks benefit when a city has low utility bills, but faces frequent and ongoing sewer overflows? Who suffers when raw sewage flows into rivers, lakes, and harbors because utilities can’t “afford” Clean Water Act compliance?
Using the right words compels us to confront these uncomfortable questions, and focuses our attention to what FCA guidelines mean where the sewage meets the street.
*%MHI is, however, terrible, horrible, no-good, very bad way to measure low-income household affordability.
**This alternative is going make rate consultants happy.
Sovereignty isn’t what’s on paper, it’s what flows through taps and rivers
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.
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 cultures. 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.
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.
During a public health crisis, getting the research right is paramount
It started with a tweet.
A new peer-reviewed Utilities Policy article on water utility ownership, low-income households, and shutoffs? From a pair of professors at major research universities? This was right up my alley!
The paper’s title—Does public ownership of utilities matter for local government water policies?—is intriguing. Water system ownership, regulatory policy, and especially shutoffs are enormously important and notoriously difficult to analyze due to data difficulties. The tweet and top highlight finding were provocative: “Cities and towns with government-owned utilities shutoff customer drinking water less.” These are headline-grabbing claims, sure to draw the attention of water sector leaders and policymakers looking for ways to tackle an ongoing public health crisis. I dove into the paper immediately, excited about what I might find!
Unfortunately, the study is deeply flawed. Few readers—even within the academy—have the appetite to get into the methodological details necessary to understand what the data really show. My deep dive revealed that the article’s authors came to profoundly incorrect conclusions. Last week I emailed them with my concerns. This post is my attempt to clarify what the article obfuscates and to set the record straight.
From tweet to title to text, Homsy & Warner’s article promises to explore the role that “local government utility ownership play[s] in meeting equity and environmental goals.” The study’s literature review frames its goals as an inquiry on “Publicly owned versus privately owned water supply” (section 2.3), with interest in public/private differences in “equity” (2.1) and “environment: water resource management” (2.2). Specifically, they’re interested in whether publicly owned water systems provide more protections against shutoffs for low-income households and greater water conservation. The implied comparison is with private water utilities.The empirical analysis uses a 2015 ICMA survey sent to municipal chief administrative officers. The sample included all municipalities, towns, and counties with populations over 25,000 and a sample of smaller communities of populations between 2,500 and 25,000. The survey yielded 1,897 responses for a 22% response rate.* Respondents were asked whether their governments own water utilities. If the respondent said yes, the community was coded as having a “publicly owned utility” or “Government-owned utility”; if the respondent said no, then it was coded as having a “not publicly owned utility.”
The survey also asked questions about policy, including whether the city or county had taken action to "protect low-income households from water service shutoff.” The answer to this question is Homsy & Warner’s only measure of shutoff protection. They don't actually count shutoffs. About 8% responded that their governments provided shutoff protections.
These survey data were analyzed with a series of logistic regressions to predict the likelihood that a community has water shutoff protections as a function of public ownership and a series of other variables. Ownership emerges as a very strong predictor, leading Homsy & Warner to declare that: “if a utility is government-owned, the municipality is about two times more likely to have water shutoff protection policies.”
They conclude that “ownership matters, as communities with publicly owned utilities appear more inclined to protect residents from water service shutoffs.” That would be a big, important finding—if the data supported it. The trouble is that the data don’t show anything of the sort.
Where it all goes wrong: misleading measurement
The first hint that something was amiss was that just 55% of Homsey & Warner’s sample were publicly owned utilities, with the authors implying that the other 45% were served by private utilities. That struck me as extremely low, since about 85% of Americans get their drinking water from a local government, with about 15% served by private, investor-owned firms. How could the ICMA sample be so grossly skewed in favor of non-government utilities?**The answer is in the way that Homsy & Warner code “public ownership.” Recall that the ICMA survey was sent only to counties and municipalities and that respondents who reported that their governments own water systems were coded as “publicly owned.” What’s missing is special districts.
Special districts are local governments with narrow functions and limited powers; there are tens of thousands of such districts across the U.S.. The city and county officials responding to this survey who get their water from special districts would answer "no," and then Homsy & Warner would code the community's water system as "Not Publicly Owned."
Consider, for example, Central Arkansas Water. Headquartered in Little Rock, Central Arkansas Water serves a population of more than 450,000, including the cities of Little Rock, North Little Rock, Alexander, Sherwood, and Wrightsville, along with parts of unincorporated Pulaski County. Survey respondents from Pulaski County and all five of these cities would report that their governments did not own a water system. Homsy & Warner would code their water systems as "not publicly owned," even though a government--Central Arkansas Water--supplies their water.
Around 30% of the local government water systems in the United States are owned and operated by special districts. These special districts are definitely local governments. Without accounting for special district utilities, we cannot infer anything about public/private water system ownership from these data.
Sins of inference
But it gets worse. The study’s first highlighted claim is that “cities and towns with government-owned utilities shutoff customer drinking water less.”† Thing is, this study doesn’t measure shutoffs. It measures whether a municipal or county government has a policy to protect low-income households from shutoffs. Reliable shutoff data are notoriously hard to find, which is why serious research on the subject is rare. A reader who doesn’t get into the empirical weeds wouldn’t notice that data don’t support this claim.
Apart from problems with coding ownership and counting shutoffs is the question of what this all means for water governance. What should we infer from the fact that a municipality that owns a water system is more likely to have water shutoff protections than a municipality that does not own a water system? Homsy & Warner conclude that “communities with publicly owned utilities appear more inclined to protect residents from water service shutoffs.” That’s a bit like finding that people who own cars are more likely to have jumper cables than people who don’t own cars. Would we then infer that car owners care more about their families' transportation than transit riders?
Why it matters
Policymakers, advocates, regulators, and utility managers are looking for answers to a historically tough challenge in the COVID-19 pandemic. Researchers everywhere are working hard to find ways to help protect public health.
We certainly need to understand water shutoffs and how to prevent them. But the stakes are too high for policy researchers to play fast and loose with data and inferences. This isn’t an abstract, theoretical squabble over the literary interpretation of Hamlet. Real policies to protect real people in a moment of real crisis are on the line, and our communities need valid findings. The urgency of pandemic only heightens the need for rigorous, responsible policy research.
*It does not appear that Homsy & Warner adjusted their estimates to account for sample stratification or non-response bias.
**With just a 22% response rate, some of the issue is probably nonresponse bias. But it’s unlikely that nonresponse accounts for a 30% gap in share of publicly owned utilities.
†In this sentence and throughout the article, Homsy & Warner are vague about what publicly owned utilities are being compared with.