Below is a brief overview of some of the Act’s historic investments in the nation’s water infrastructure.
A. Fund Distribution Through State Revolving Funds Programs
The Act’s funding addresses significant issues affecting our nation’s water systems. The Act authorizes funding for a variety of programs implemented by the Environmental Protection Agency (“EPA”), including programs that support drinking water infrastructure and wastewater infrastructure.
Infrastructure investments authorized in the Act are wide-ranging in location, scale, and scope, such as:
- Funds to address emergencies affecting drinking water systems, such as cybersecurity attacks;
- Funds to address emerging contaminants;
- Grants for construction and refurbishing of individual household decentralized wastewater systems for individuals with low or moderate incomes;
- Funds to mitigate lead contamination in drinking water;
- Support for drinking water and sanitation projects on Indian reservations;
- Funds for a study on boil water advisories;
- Funds to construct publicly water treatment works to address municipal combined sewer overflows, sanitary sewer overflows, or stormwater; and
- Grants to Alaska to improve sanitation in rural and Native Villages.
According to the EPA, the majority of water infrastructure funds will flow through the existing Clean Water and Drinking Water State Revolving Loan Fund programs (“State Revolving Loan Funds”). Currently, the EPA provides grants to all fifty states and Puerto Rico to capitalize State Revolving Loan Funds. Individual states are responsible for the operation of their State Revolving Loan Funds and can set specific guidelines on grants and loan terms. Thus, because individual states control their respective programs, there is great flexibility to address hyper-localized water infrastructure issues that are most pertinent to local communities.
The funds flowing through the State Revolving Loan Funds will be distributed from fiscal years 2022 through 2026. The EPA will, per the Act, use existing State Revolving Loan Fund formulas for all appropriations, but, for the Drinking Water State Revolving Loan funds, the allotment formula will change based on data collected and reviewed from the Seventh Drinking Water Need Survey and Assessment. The Act also outlines a timeline for project proposals and progress. States must make commitments to qualifying projects within one year after the receipt of each capitalization grant payment and must make an effort to spend the funds within two years of capitalization grant award.
B. Funding for Emerging Contaminants Cleanup
The Act includes $10 billion in total funding for projects related to the clean-up of perfluoroalkyl and polyfluoroalkyl (“PFAS”) substances in drinking water and wastewater systems. Nine billion dollars of the funding will be provided, through grants, for projects that address PFAS contamination in drinking water systems, with $5 billion of the funding allocated to disadvantaged communities. According to the EPA, the funding presents a “unique opportunity to prioritize investment to local communities that are on the frontlines of PFAS contamination and that have few options to finance solutions through traditional programs.” This funding can be used for costs associated with: (1) construction of new or upgraded treatment facilities that address emerging contaminants; (2) development of new water sources; (3) consolidation with another water system that does not have emerging contaminants present or has removal capability; (4) costs for planning and design; (5) infrastructure costs related to pilot testing for treatment alternatives; and (6) creation of a new community water system to address unsafe drinking water provided by privately-owned wells or surface water sources. In addition, $1 billion will be distributed to municipal and State agencies to address PFAS contamination in wastewater systems.
C. Water Workforce Investments
In addition to funding projects to improve the nation’s water infrastructure, the Act authorizes the distribution of funds to “community-based organizations and public works departments… [for] recruitment efforts, training programs, retention efforts, and community resources with water and wastewater utilities” to “ensure the stability” of the water workforce and “accelerate career pipelines.” To enhance recruitment efforts, the Act requires that a federal interagency working group be established with representatives from the Department of Education, Department of Labor, Department of Agriculture, and Department of Veteran’s Affairs. Between fiscal years 2022 through 2026, the Act authorizes $5 million dollars in funding toward strengthening the nation’s water workforce through actions like: (1) “targeted internship, apprenticeship, pre-apprenticeship, and post-secondary bridge programs for skilled water utility trades”; (2) “education programs designed for elementary, secondary, and higher education students that…increase the awareness of career opportunities and exposure of students to water utility careers through various work-based learning opportunities inside and outside the classroom”; and (3) “leadership development, occupational training, mentoring, or cross-training programs that are designed to retain incumbent water and wastewater utility workforce workers by ensuring that those workers are prepared for higher level supervisory or management-level positions.”
D. Investment in Lead Service Line Replacement
The Act provides $15 billion dollars in dedicated funding for lead service line identification and replacement. This funding is being provided to states with no match requirements. The Act instructs the formation of a grant program to assist eligible entities for lead reduction projects and authorizes the EPA to prioritize projects that “carry out a lead reduction project at a public water system or non-transient noncommunity water system that has exceeded the lead action level [established by the EPA]… at any time during the 3-year period preceding the date of submission of the application” or at any “school, daycare, or other facility that primarily serves children or other vulnerable human subpopulation.” Eligible entities for this funding include community water systems, states and municipalities, among others. It is important to note that grant funding in this provision requires full replacement of any lines that contain lead piping, not partial replacements. In the EPA Implementation Memorandum, the agency states “[t]his...requirement helps address a long-standing equity challenge - for some Americans, the cost to replace their portion of lead service lines is prohibitively high” and thus, some Americans remain “disproportionately exposed to lead and its harmful impacts.”
E. Infrastructure Investment in Small and Disadvantaged Communities
One of the more notable investments of the Act is its allocation of funds to small and disadvantaged communities. The Safe Water Drinking Act defines a “disadvantaged community” as “the service area of a public water system that meets affordability criteria established after public review and comment by the State in which the public water system is located.” Disadvantaged communities are those which, in sum, “experience, or are at risk of experiencing, disproportionately high exposure to pollution – whether in air, land, or water.”
The Act authorizes $70 million dollars in fiscal year 2022, $80 million dollars in fiscal year 2023, $100 million dollars in fiscal year 2024, $120 million dollars in fiscal year 2025, and $140 million dollars in fiscal year 2026 to communities that face the greatest challenges in financing and implementing critical water infrastructure improvements. Per the Act, “49% of funds provided through the Drinking Water State Revolving Funds General Supplemental Funding and Drinking Water State Revolving Funds Lead Service Line Replacement Funding must be provided as grants and forgivable loans to disadvantaged communities.” Additionally, “no less than 25% of funds provided through the Drinking Water State Revolving Funds Emerging Contaminants Funding [shall] be provided as grants and forgivable loans to disadvantaged communities or public water systems serving fewer than 25,000 people.”
Grant funding can be used for activities including water treatment, transmission and distribution, storage, development of new systems, consolidation, household water quality testing, and drinking water contamination response efforts. Additionally, per the Act, an eligible entity can use the grant funds to “assist in the planning, design, construction, implementation, operation, or maintenance that increases resilience to natural hazards,” meaning “an event that threatens the functioning of a community water system such as an earthquake, tornado, flood, hurricane, wildfire, and hydraulic changes.”
F. Funding Distribution to States
The Act’s funds are in the process of being distributed to states. In September 2022, the EPA awarded over $39 million dollars to Maine for water infrastructure improvements, which marked the first “significant distribution” of the Act’s water funds. Thus far, in fiscal year 2022, the six New England states have received over $484 million dollars, “with nearly half of this funding available as grants or principal forgiveness loans that remove barriers to investing in essential water infrastructure in underserved communities across rural communities and in urban centers.” Capitalization grants will continue to be awarded on a rolling state-by-state basis throughout the next four fiscal years.
EPA Considers New Tools to Address PFAS Contamination
As the federal government appropriates funding for projects related to PFAS contamination clean-up, the EPA is in the process of developing rules that will expand the agency’s ability to address PFAS contamination in water systems.
A. National Primary Drinking Water Regulation
The EPA is currently developing a National Primary Drinking Water Regulation (“NPDWR”) for PFOA and PFOS, which will ultimately allow the EPA to promulgate a legally enforceable maximum contaminant level (“MCL”) for the substances. On March 3, 2021, the EPA issued a final regulatory determination for PFOA and PFAS, in which it determined to regulate the substances with an NPDWR based on the following findings: “that PFOA and PFOS may have adverse health effects; that PFOA and PFOS occur in public water systems with a frequency and at levels of public health concern; and that, in the sole judgment of the Administrator, regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by public water systems.”
Under the Safe Water Drinking Act, the EPA has the authority to promulgate NPDWRs for certain contaminants. These regulations apply to all public water systems over a certain size threshold. The NPDWRs can include an MCL goal and an MCL. The MCL goal is “set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin or safety.” The MCL is set at the level “which is as close to the maximum contaminant level goal as is feasible.” Once an NPDWR is promulgated for PFOA/PFOS, public water systems may be required to conduct monitoring to determine the level of PFAS in their drinking water. In addition, based on the monitoring results, some systems may have to install treatment systems to address the presence of PFAS substances.
The EPA expects to issue a proposed regulation in Fall 2022, with a final regulation issued in Fall 2023.
B. CERCLA Hazardous Substances
On September 6, 2022, the EPA published a proposed rule that would designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Contamination, and Liability Act of 1980 (“CERCLA”). Generally, CERCLA authorizes the EPA to respond to releases of hazardous substances and releases of pollutants and contaminants. The EPA can designate substances that “when released into the environment may present a substantial danger to the public health or welfare or the environment” as “hazardous substances” under CERCLA. The EPA can respond to releases or threatened releases of hazardous substances without having to establish an imminent and substantial danger. The EPA can also recover costs from responsible parties and make parties conduct the clean-up. While the EPA can currently regulate PFOA/PFOS as a “pollutant and contaminant”, designating the substances as “hazardous substances” would result in the following:
- Persons in charge of a facility would be required to report releases of PFOA/PFOS of one pound or more within a 24-hour period. This would give the EPA and state and local governments notice and a better understanding of where releases occur and the quantities involved;
- Federal agencies would be required to comply with CERCLA property disposition requirements, including a covenant that all remedial action related to hazardous substances was undertaken, before transferring federal land;
- The EPA could respond to PFOA/PFOS releases without making the imminent and substantial danger finding that is currently required for responses;
- The EPA could require potentially responsible parties to address PFOA/PFOS releases;
- The EPA could recover clean-up costs from potentially responsible parties; and
- Private parties undertaking clean-up could recover clean-up costs from potentially responsible parties.
The EPA is soliciting public comment on the proposed rule through November 7, 2022.
C. Health Advisories for PFAS Substances
In June 2022, the EPA released health advisories for four PFAS substances, including PFOA, and PFOS. Under the Safe Water Drinking Act, the EPA publishes health advisories for contaminants that are not currently subject to NPDWRs. These health advisories are not regulations, but they describe concentrations of drinking water contaminants at which adverse health effects are not anticipated to occur, and the health advisories are used by federal, state, and local governments to assist in regulatory efforts. The EPA’s health advisory is 0.004 parts per trillion (“ppt”) for PFOA and 0.2 ppt for PFOS, which is a significant change from the health advisory issued by the EPA in 2016, which was 70 ppt for PFOA and PFOS. According to the EPA, recent data and draft analysis indicated that “the levels at which negative health effects could occur are much lower than previously understood when the agency issued its 2016 health advisories for PFOA and PFOS.” The EPA’s health advisory is also lower than many of the MCLs developed by states for PFOA and PFOS, which is leading environmental advocates in some states to push for lower state MCLs.
