Sometimes there’s a little to say about a lot of things. Welcome back to Variable Flow.

Hooray?

The US Supreme Court's handed sewer utilities a win last week in San Francisco vs. EPA. The decision limits the EPA's power under the Clean Water Act to make sewer systems responsible for the overall water quality where they discharge pollutants. With the usual caveat that I’m not a lawyer, the decision requires clearer, more specific instructions by regulators on what sewer utilities must do to meet  NPDES permit conditions, rather than just saying "keep the water clean." 

Legal questions aside, it's hard to know how to feel about this as someone who cares about water pollution. I can sympathize with sewer utility leaders here: trying to clear constantly shifting regulatory goalposts is frustrating, and without specific, technology-based permit conditions, utilities face the specter of liability for someone else’s pollution. San Francisco vs EPA promises greater certainty for sewer planning, operations, and management going forward. On the other hand, the decision threatens to hamstring regulators by demanding highly technical, very specific rules at a time when many regulatory agencies already struggle with limited capacity.

What does all this mean for water quality? I dunno, man. But it’s a safe bet that San Francisco vs EPA will encourage more legal challenges to NPDES permits. Welcome to the post-Loper Bright world, I guess.

1. Requiring utilities to replace service lines on private property, an unprecedented requirement.
2. A ten-year deadline to remove lead service lines, which presents significant technical, organizational, and material challenges.
3. The cost of identifying and replacing more than 9 million lead service lines, estimated at between $45 billion (EPA’s number) and $100 billion (AWWA’s number).

Advocating for water systems is part of AWWA’s mission, and I'm genuinely sympathetic to utilities’ concerns here—the LCRI presents thorny implementation problems at a moment when utilities face increasing pressures from every direction. 

But the claims of infeasibility ring hollow. Utilities like Newark and Green Bay show that aggressive lead service line replacement is possible with committed, resourceful leadership. If the problem is state laws don’t allow  access to private property, then let’s have that fight in state legislatures. If the problem is LCRI crowding out more important investments, then let’s argue that to regulators. If the problem is organizational capacity and funding, then let’s make the case for reform, resources, and rate increases in statehouses and city halls and utility commissions.* Seems like AWWA ought to be leading this charge, not throwing up obstacles.

If nothing else, AWWA’s attack on the LCRI in federal court is a bad look for an organization whose first core principle is to protect public health and the environment. Tellingly, ten states (including Wisconsin), and the District of Columbia have intervened in in defense of the LCRI.

I’ve been an active, loyal, dues-paying AWWA member for 24 years. I help edit the association’s scientific journal, and AWWA conferences are fixtures on my calendar. I’ll renew my membership again this year. But this court fight makes me uneasy, dude. Feels like maybe we’re on the wrong side of history.**

Broken Things

What I do know is that managing vast, complex systems isn’t for amateurs, and effective governance requires effective administration.

Innovation and organizational reform are agonizingly slow in the water sector, but there’s a reason people responsible for critical infrastructure are risk-averse. The tech bro’s instinct to move fast and break things seems like a great idea until you have to work with broken things. 

Refreshingly sensible 

In the Biden Administration’s waning days, the EPA’s Environmental Financial Advisory Board (EFAB) issued a report on how to address affordability for water, sewer, and stormwater in the United States. The report recognizes the urgency and complexity of the country’s affordability challenge and identifies its causes with uncommon clarity and nuance.

Best of all, the EFAB doesn’t trot out the usual array of simplistic or ideologically motivated solutions. Instead, the report culminates in 26 thoughtful, practicable recommendations for capital investment, operational efficiency, federal funding, rate design, and customer assistance programs. This is probably the most thorough, comprehensive, and valid work published to date on how to tackle water affordability. More like EFABulous, amirite?

Social science shoutout: life on the fringes

A nifty new study on water and sewer service on urban fringes reveals service gaps in unincorporated—and often poor—areas on America’s urban fringe. Water and sewer are municipal government services in much of the United States, so political jurisdictions determine service availability and quality. Folks living in unincorporated areas frequently get the short end of the infrastructure stick. Yet another reason to consolidate and rethink governance models.

Etc.

An ASU Kyl Center report evaluates water affordability in Arizona.  \\  In the latest sign of the apocalypse, a sewer overflow scuttles a Bryan Adams concert.  \\  Texas report finds human capital is a key constraint—maybe the key constraint—to sustainable water.  \\ Brookings study finds state distribution of water/sewer infrastructure funds varies widely, seldom considers sustainable staffing for projects, and often doesn't reach small systems that have limited organizational capacity. It’s a familiar story.  \\   Sensitive clams in Poland.

* High water bills are tough on low-income households, but lead contamination is, too.

** After the LCRI petition, my affiliation with AWWA triggered a barrage of angry email to my university account and an hour-long program on a Milwaukee radio station attacking me. Guilt by association—literally.