State efforts to support LSL replacement

Under the law, CWSs must identify and replace LSLs and complete work on a "schedule that is commensurate with the risks and costs involved." The CWSs must submit the following to the Water Board:

• By July 2018, an inventory of known LSLs and a timeline for their replacement; and
• By July 2020, an updated inventory of LSLs and a timeline to replace any service lines made of lead.

The Water Board has 30 days to approve the submission or propose a revised timeline. Then the parties have 30 days to agree to a compromised timeline. The state provides a web portal with FAQs for submission. 

This two-step approach makes replacing known LSLs the highest priority and, by essentially presuming that a service line is lead unless known otherwise, also creates an incentive for CWSs to develop accurate inventories in the next three years. However, the program would not apply to the portion of the service line between the meter and the house, which is referred to as the "customer side." The Water Board acknowledges that this may result in partial, but not full, replacement of the LSL and "highly recommends" that the CWS notify the customer, and if possible, assist in the replacement. This definition also means that a CWS could report it has no LSLs, even if there are lead pipes on the customer side.

In December 2018, the Water Board released the results of the first round of CWS reporting in an interactive map and posted a new webpage providing background for customers on the inventory requirement. See EDF's blog describing the map and press release for more information.

In addition, California requires sellers to disclose to homebuyers any environmental hazards that they may be aware of. A lead pipe is not one of the examples provided. Therefore, a seller may not consider an LSL to be an environmental hazard.

Under the law, CWSs must provide the IEPA with a "water distribution system material inventory" on April 15 of each year, starting in 2018, until the inventory is complete. IEPA also directs CWSs to post their materials inventory, including locations of LSLs, on their public website. If the CWS does not have a public website, IEPA will post their inventory data for them; however, this will not include location information. The inventory must identify the:

• Total number of service lines within or connected to the distribution system, including privately owned service lines;
• Number of all known LSLs within or connected to the distribution system, including privately owned LSLs; and
• Number of LSLs that were added to the inventory after the previous year's submission.

As of June 2020, 1,739 CWSs have reported to the IEPA on 3.83 million service lines (10 CWSs have not yet reported). About 17% of the total service lines were reported as lead and 20% were reported as unknown (seperate from the category unknown- but not lead). By EDF's calculations, Illinois has between 677,359 and 1.45 million lead pipes (including unknowns). IEPA published an online tool to enable customers to determine service line material types in their CWSs. For more information, see our blogs on Illinois' mandatory LSL inventory and the state's newly published online tool.

Utilities must follow specific requirements when performing construction or repair work on a water main, service line or a water meter. With limited exceptions, they must provide individual written notice to residents at least 14 days before work begins. The notice must warn potentially affected residents of the dangers of lead and what practices they should follow to prevent the consumption of any lead in drinking water. The recommended practices must include flushing of water lines during and after the completion of the repair or replacement work and cleaning of faucet aerator screens.

If the utility serves a significant portion of non-English speaking consumers, the notification must contain information in the appropriate language and provide contact information to request assistance. For multi-dwelling buildings, the notice may be posted on the primary entrance to the dwelling.

In addition, Illinois requires sellers to disclose to homebuyers if they are "aware of unsafe concentrations of or unsafe conditions related to lead paint, lead water pipes, lead plumbing pipes, or lead in the soil on the premises." Presumably, sellers could decide that the presence of an LSL alone would not be an unsafe condition.

The law was enacted amidst efforts by the IURC and IFA to provide the City of East Chicago with $3 million to fully replace 500 LSLs on private and public property.

Pursuant to HEA-1519, in July 2018, the IURC approved a proposal from Indiana American Water to fully replace its estimated 50,000 LSLs on public and private property using rates paid by customers. For more information, see our blog on the landmark decision. 

Also in July 2018, the IFA, which manages the State's Drinking Water State Revolving Loan Fund (SRF), launched a "Lead Line Replacement Incentive" to support full replacement of LSLs and galvanized pipe service lines. Eligible communities receive improved ranking on the priority list and interest rates as low as 0% for the replacement projects. More information about the program is available in a fact sheet. In 2017, IFA was selected by EPA for funding under the Water Infrastructure Finance Innovation Act (WIFIA) program for a $436 million loan to provide additional support for the SRF.

Indiana also conducted a voluntary survey of CWSs in 2016 to learn more about LSLs in the state. CWS responses are online in a search engine for compliance documents. EDF analyzed the data provided by IDEM. See our blog highlighting the survey as a good model and our webpage mapping CWS responses. We found that 57% of CWSs responded. These responses covered 92% of the state's 1.87 million service lines. We estimated the state has as many as 599,000 LSLs - 32% of total lines based on:

• 206,000 known LSLs (11%)
• 268,000 service lines of unknown material in reporting CWSs (14%); and
• 125,000 service lines in CWSs that did not respond (7%). 

In addition, Indiana requires sellers to disclose to homebuyers any known hazardous conditions on the property. A lead pipe is not one of the examples provided. A seller may not consider an LSL to be a hazardous condition.

Of the 15 CWSs serving more than 50,000 people:

• 7 (47%) did not respond including both that serve New Orleans.
• 6 (40%) reported have no known LSLs.
• 1 (6%) response (from City of Alexandria) did not address issue.
• 1 (7%) estimated that less than 0.5% of their service lines may contain lead.

Of the 56 CWSs serving between 10,000 and 50,000 people:

• 19 (34%) did not respond.
• 30 (54%) reported have no known LSLs.
• 4 (7%) reports did not address issue.
• 3 (5%) reported a total of 151 LSLs.

Of the 167 CWSs serving between 3,301 and 10,000 people:

• 89 (53%) did not respond.
• 73 (44%) reported have no known LSLs.
• 3 (1.8%) indicated that lead goosenecks may be present at some locations.
• 1 (0.6%) report did not address issue.
• 1 (0.6%) estimated that less than 0.5% of their service lines may contain lead.

In addition, Louisiana requires sellers to disclose to homebuyers any known defects with water quality or the presence of hazardous waste on the property. Lead in drinking water or lead service lines are not mentioned as potential defects or hazardous material.

The state is also working to implement the Water Infrastructure Fund Transfer Act that would allow a one-time transfer of $30 million from the Clean Water State Revolving Fund to the Drinking Water State Revolving Fund to provide loan forgiveness to disadvantaged communities to address lead in water systems during planning or capital projects.

Additionally, in response to EPA’s 2016 letter to states about increasing transparency in Lead and Copper Rule implementation, the MassDEP conducted a voluntary survey of public water systems in the state. The state sent a Survey Monkey poll to 523 active CWSs and 259 non-transient, non-community public water systems with the goal of identifying technical needs and best practices related to LSL program implementation.

In DEP’s October 2016 summary of the survey results, 547 systems (69%) responded. Survey respondents reported having 22,023 LSLs and 15,809 lead goosenecks in the system, only 17% of AWWA’s estimate of 220,000.

On August 15, 2018 MassDEP followed up on the voluntary Lead Service Line (LSL) survey and sent out two notices: 1) A reminder notice was sent to the 316 CWSs and Non-Transient Non-Community Water systems that did not respond to the 2016 survey. The reminder notice offered the systems another opportunity to complete the LSL survey, and informed them of available technical assistance and funding opportunities for PWSs and 2) a notice was sent to all systems that responded to the initial survey to informed them of available assistance and funding opportunities and to encouraged them to share any new information since their initial response.

As of December 1, 2018, 590 systems responded to the reminder notices, 240 systems indicated that they did not have any LSLs and 304 systems indicated that they were not aware of the exact number of LSL they have to date. Raw data of the initial and reminder survey is available upon request to MassDEP Drinking Water Program.

MassDEP has also incorporated scanning of public water systems (PWS) ‘tie” or service card into an on-going Geographic Information System (GIS) mapping program for PWS distribution systems.

Additionally, the Massachusetts Water Resources Authority (MWRA) has a $100 million program offering 10-year, interest free loans to the communities who receive the wholesaler’s water for efforts to fully replace LSLs. MWRA is the state’s largest wholesaler, serving 40% of the state’s customers, and M45 of its water communities are eligible for funds under the program.

The new standards accelerate LSL replacement by requiring CWSs to: 

• Conduct a materials inventory: Provide EGLE with: 1) a preliminary distribution system materials inventory of service lines based on a thorough assessment of existing sources of information due by January 1, 2020; 2) a complete inventory, including methodology used to verify its accuracy, by January 1, 2025; and 3) a comprehensive update of the inventory every 5 years starting in 2030. The inventory must include materials in the portion of the service line on private property.
• Replace the entire LSL: Replace entire LSLs, including goosenecks, on public and private property as well as galvanized steel service lines that are or were downstream of a lead pipe. There are special provisions for emergency repairs. Use of techniques that coat or line lead or galvanized steel service lines to comply with the replacement requirements is prohibited. 
• Meet a 15- or 20-year LSL replacement schedule: Achieve a replacement schedule average 5% per year starting in 2021 totaling not more than 20 years for replacement of all LSLs, unless the system has an alternative plan approved by the state EGLE. For CWSs that exceed the Lead Action Level (LAL) after installing corrosion control, the rate shall be 7% per year. In 2025, the LAL drops from 15 to 12ppb. An annual summary of service line repairs and replacements is required.
• Pay for replacement unless no control: Replace the entire LSL, gooseneck, or galvanized steel line at CWS's expense unless it can show that it has no control of the service line. Control includes the authority to replace, repair, or maintain service lines or to set standards for construction, repair, or replacement of the service lines. 
• Notify customers: If system has LSLs or service lines of unknown material: 1) include in annual Consumer Confidence Report the number of LSLs, the number of service lines of unknown material, and the total number of service lines in the supply and 2) notify owner and occupant of property: a) within 30 days of determining a service line contains or is presumed to contain lead; and b) when new water account is opened if premises has known or presumed LSLs.

In August 2018, the state EGLE provided $9.5 million in grants to 18 communities to update materials inventories and asset management plans and for development of full LSL replacement projects. The department intends to evaluate projects conducted by the grantees for the pilot to determine future recommendations for community LSL replacement.

In addition, Michigan requires sellers to disclose to homebuyers the type of materials (copper, galvanized or other) used in the plumbing system and if there are any known problems. The seller is not prompted to identify lead as a plumbing material and may not consider an LSL to be a known problem.

In January 2020, the Governor signed legislation allowing municipalities to adopt ordinances allowing water utilities to enter private property to replace LSLs. This can be done without the property owner's permission, after providing notice to the resident.

In August 2018, the state enacted legislation authorizing municipalities to replace lead contaminated services (including LSLs) on private property if the work is: 1) an environmental infrastructure project; and 2) funded by loans from either the NJDEP or the NJIB (formerly NJ Environmental Infrastructure Trust).  

Additionally, for the State Fiscal Year 2018 and 2019, NJDEP and NJIB used state revolving loan funds to establish a $30 million Lead Service Line Replacement funding package. Eligible applicant projects can receive up to $1,000,000 per year, 90% in principal forgiveness and 10% DEP interest-free loans. Projects must result in full LSL replacement – partial replacements are not eligible. For the State Fiscal Year 2019 and 2020, the program was modified to cap loans at $1 million, $5 million, and $10 million per system based on population served.

To receive the funds applicants must serve communities with a median household income less than the median for the county and either publicly owned nonprofit non-community water systems or public community water systems that are owned by water commissions, supply authorities, or districts.

In addition, New Jersey has a voluntary disclosure form that home sellers can provide information about known conditions affecting water quality of the presence of toxic substances on the property to potential homebuyers. Lead pipes are not provided as an example.

In April 2018, the Governor signed legislation requiring the development of a plan for statewide LSL replacement. The plan must include a report on the LSL replacement grant program, resources for the identification of LSLs, the cost of replacement, and guidance for municipalities.

 In addition, New York requires sellers to disclose to homebuyers if lead plumbing is present and are given the options of yes, no, unknown or not applicable. The seller may not consider an LSL to be part of the plumbing.

In May 2016, the Ohio General Assembly enacted HB512 to reduce lead in drinking water, primarily through improved communications to customers and residents. The law requires community and non-transient, non-community water systems to 1) identify and map areas of the system that are known or are likely to contain LSLs, and 2) identify characteristics of the buildings served by the system that may contain lead piping, solder, or fixtures. 

The systems were required to submit the map by December 2016, and update the information every five years. 

The Ohio EPA provided guidance to water systems and posted PDF versions of more than 1,800 maps of LSL locations on its website. Several cities went beyond these requirements and posted interactive maps or search engines. See Cincinnati, Columbus, and Cleveland for examples.

In May 2018, Ohio EPA updated the state's Lead and Copper Rule to require specific work practices when performing field work that could disturb LSLs beginning October 1, 2018. CWSs conducting a water main replacement in an area with either known LSLs or one likely to contain LSLs must:

• Offer and provide NSF/ANSI 53 certified drinking water filters up to a period of 3 months to impacted customers
• Notify customers at least 45 days in advance of replacement unless work is an emergency repair. The notice must 1) explain that the work may cause a temporary increase in lead levels in drinking water; and 2) provide instruction of filter use offered by utility; and 3) provide guidance on measures consumers can take to reduce lead levels at their tap.

If a CWS is replacing any portion of a LSL, it must:

• Replace the utility-owned portion of the LSL and offer to replace the privately-owned portion. The utility is expressly not required to bear the cost of replacing the privately-owned portion where the property owner chooses not to pay the cost or where replacement is precluded by state, local, or common law. In this situation, the utility may conduct a partial replacement but must maintain records of the decision and location for at least 12 years.
• Notify consumers at least 45 days in advance of replacement unless the work is an emergency repair. The notice must 1) explain that the work may cause a temporary increase in lead levels in drinking water; and 2) provide instruction of filter use offered by utility; and 3) provide guidance on measures consumers can take to reduce lead levels at their tap.
• If the LSL is partially replaced:
  • Offer and provide NSF/ANSI 53 certified filters up to a period of 3 months to impacted customers.
  • Offer to collect a representative sample from each partially-replaced LSL within 72 hours of completing the work. The utility must mail or otherwise provide the owner and resident with the lab results within two business days.
  • Provide notice to all residents of all buildings served by the line similar to the notice described above. In multi-family housing, the notice may be posted at a conspicuous location. In schools, child cares, nursing homes, or correctional institutions, the parents or guardians must be directly notified. In other buildings, only the building administrator must be notified.

In addition, Ohio requires sellers to disclose to homebuyers the presence of hazardous materials. Lead-based paint is provided as an example, but not lead pipes. A seller may not consider an LSL to be a hazardous material.

Municipalities must first consider the availability of and competing demands on public funds, equipment, personnel, and facilities. The law makes clear that replacing the LSL does not make a municipality the owner of the private lateral or obligate it to perform other duties: although the municipality is given the option to do so.

In October 2018, the state enacted P.L. 2018-120 (HB-2075) to establish a framework for investor-owned utilities to recoup the costs of replacing LSLs on private property from rates paid by all customers. It allows that cost to be considered "other related capitalized costs that are part of the public utility's distribution system" and allowed recovery an "equity return rate." However, the utility must first obtain prior approval from the PUC. The PUC must establish standards, processes, and procedures to: ensure the work is accompanied by a warranty and ensure the utility has access to the property during the warranty. 

The 2018 law builds on a March 2017, the PUC decision approving a proposal from the York Water System to use rates paid by customers to fund full LSL replacement. The utility had exceeded the lead action level and was required by the LCR to replace LSLs. The PUC allowed rates to fund replacement on private property because it was in the public interest to avoid both the public health threat posed by partial replacements and the haphazard approach of relying on property owners to replace their portion.

The Commission gave the utility four years to replace LSLs on private property when already replacing lines on public property and nine years to replace LSLs on private property whenever they are discovered. Funds for replacing customer-owned LSLs must be tracked separately, and the utility is not permitted to capitalize the investment.

In addition, Pennsylvania requires sellers to disclose to homebuyers the type of plumbing materials used in the plumbing system, and lead and unknown are options. The seller may not consider an LSL to be part of the plumbing.

The program is limited to $5,000 per service line and may include up to $500 as an administrative fee. The utility can participate for one year with an option for a one-year renewal under the program. Residences, apartments, daycares, private schools, and other facilities where sensitive populations may be present are eligible for replacement. Eligible waterworks may apply for funding by April 1 every year. 

In October 2016, DOH released its overall recommendations and undertook a comprehensive survey of all public water systems (PWSs) in the state. It released a summary of its findings in February and updated it in June 2017 and updated it in July 2018. The DOH received responses from 686 water systems that serve more than 2.2 million service connections of CWSs (called Group A water systems in the state), more than 90 percent of such connections in the state.

Based on the original survey results, DOH extrapolated to estimate state-wide totals of 1,000 to 2,000 LSLs and 6,800 lead goosenecks. Lead goosenecks are technically not LSLs under the current EPA definition. Since that time, DOH conducted follow-up phone interviews with water utilities. As a result of those interviews, DOH refined their original estimates and now conclude there are fewer than 500 LSLs and 5,000 lead goosenecks still in service. DOH will prioritize DWSRF funding until all utilities replace their lead components.

The DOH also modified the eligibility criteria for drinking water state revolving fund loans starting in August 2016 so that systems that can document the presence of lead service lines and other lead components will be given higher priority. The agency also said it will seek additional federal assistance.

In addition, Washington real estate laws require sellers to disclose to homebuyers substances or materials that may be an environmental concern. A lead pipe is not one of the examples provided. Therefore, a seller may not consider an LSL to be an environmental concern.

See a case example on Washington's work for more information.

In February 2018, Wisconsin Governor Scott Walker signed legislation that allows municipalities and water utilities to provide financial assistance to property owners to replace LSLs on private property. The law enables a utility or municipality to seek approval from the state PSC to provide customers with financial assistance if the following conditions are met:

• The city, town or village has passed an ordinance:
  • Authorizing the assistance; and
  • Requiring each owner to replace customer-side water service lines that contain lead; and
• The utility-side water service line either does not contain lead or will be replaced at the same time as the customer-side; and
• The financial assistance is limited as follows:
  • Grant funding is not more than 1/2 of the total cost to property owners, though loans can cover the remainder or the full cost;
  • Loans to property owners are not forgivable; and
  • Each owner in a class of customers are treated equally with respect to financial assistance.

The PSC has a webpage describing the approval process and, since August 2018, the commission has approved eight utility programs.

The PSC also requires more than 500 public- and investor-owned utilities it regulates to report annually on the number of service lines for each material type (grouped by diameter) in their system. The requirement has been in place since 2004 for the portion of the lines on public property and since 2018 for the portion on private property. The PSC provides reporting guidance to utilities and makes the information available through separate webpages for municipal/sanitary districts and investor-owned utilities. DNR staff use PSC data to help inform DNR activities related to Federal Lead and Copper Rule compliance.

In addition, Wisconsin requires sellers to disclose to homebuyers if they are “aware of a defect caused by unsafe concentrations of or unsafe conditions relating to . . . lead in water supplies or plumbing system . . .” Sellers may decide that the presence of an LSL alone is not a defect or unsafe condition.

See a case example on Wisconsin DNR's work for more information.