Challengers to state's rules are all wet
Just as no one is above the law, neither can municipalities or public works utilities choose which laws, or which parts of laws, they can follow.
Unfunded mandates are onerous responsibilities for communities – but Michigan's new Lead and Copper Rule, which includes a mandate to remove lead service lines from all Michigan homes over the next 20 years, including the portion that is on private property, from the service line to an individual home, is one which puts the public good, in the form of the public's health and welfare, over a monetary imposition.
The new rule requires all lead service lines to be removed from Michigan homes, and water utilities and many southeast Michigan municipalities are not happy about it, filing suit against the Michigan Department of Environmental Quality (DEQ) in the state Court of Claims to challenge the rule. Included in the group filing suit are the Oakland County Water Resources Commissioner's Office, the Great Lakes Water Authority and Detroit Water and Sewerage Department. Bloomfield Township and Bloomfield Hills, along with dozens of other communities are looking to join the suit.
Citing concerns about funding work to meet the new requirements, the lawsuit filed in the state Court of Claims to challenge the rule now threatens to undo what has been championed as the first meaningful revision to the Lead and Copper Rule since it was introduced at the federal level in 1991.
Under state and federal law, at least 90 percent of water quality tests must be below the action level, meaning that 10 percent of homes may exceed the level without triggering any action. Systems that don't meet the 90th percentile rule must take action to lower lead levels, such as corrosion control measures or lead service line replacements.
Michigan's new Lead and Copper Rule, which went into effect in June, upends the 90th percentile regulation by requiring public water providers to submit a full inventory of lead-containing service lines in its system by 2025, then replace all those pipes within 20 years. Previously, and under the current federal lead and copper rule, water utilities only had to replace lead-containing service lines when tests at an individual home's tap showed elevated levels of lead beyond the federal action limit of 15 parts per billion. Michigan's new law lowers the action level to 12 ppb. The rule also increases public education and transparency efforts, as well as water quality sampling requirements.
Perhaps even more meaningful are stipulations in Michigan's rule that requires water suppliers to conduct full service line replacements when lead is found, and to do so at the supplier's or municipality's expense. The requirement includes portions of lead service lines on both public and private property. Previously, property owners had been required to pay for replacements on their own property, which often allowed for one set of protections for those who could afford the work and a diminished one for those who couldn't.
But rather than balance out inequities in the system in the name of public health, those challenging the rule have gotten hung up on costs. Central to their argument is the claim that the law violates the state Constitution by requiring public funds be used to benefit private property.
While we typically appreciate our public utility's efforts to be proactive and frugal with public funds, protecting the public's health trumps all else. The plaintiffs – municipalities and utilities paid to bring water to their customers – cannot cry foul when finally forced to take measures to ensure their water is safe for all customers – not just those who can pay for their portion of it. Doing so gives the impression that public health isn't taken seriously, and follows the same motives that lead to the disaster in Flint.
And the reality is, if communities don't figure out how to properly replace all of the lines, and how to pay for it, within a span of a couple years, the Environmental Protection Agency (EPA) will mandate it – with no options. They've already indicated they're planning to update their rule to mimic Michigan's.
There's no question repairing however many lead service lines in communities there are will be expensive – but no one wants another Flint situation. So officials should direct their energy to delivering water that meets the new health limits.