PFAS Regulations and Resulting Water System Challenges
Water is so fundamental to life that any articulation of its importance seems a gross understatement. While this has always been the case, we are currently venturing into what could be a perfect storm for the water sector — a wave of regulatory and legislative actions colliding with the existing challenges related to funding, infrastructure availability, and water supply and quality (just to name a few).
The emergence of perfluoroalkyl and polyfluoroalkyl substances (PFAS) — a broad class of chemicals commonly referred to as “forever chemicals”—is increasingly concerning for the water sector. PFAS present unique management challenges, including that unlike other pollutants where PFAS actually do break down, it happens very slowly, the contaminant readily bioaccumulates in people, animals and the environment, and most remedial efforts simply transfer PFAS from one environmental media to another. Due in part to these characteristics, PFAS are found almost everywhere and in almost everyone.
The uniqueness of PFAS combined with the ongoing water sector challenges mentioned above and a common siloed decision-making approach leaves us barreling toward a scenario where the water sector is single-handedly determining which water management priorities are most important. Is availability of water services more important than proper disposal of residuals containing PFAS? Is ensuring ratepayers in disadvantaged communities are not forced to choose between water or food more important than testing for PFAS at levels below detection? This article will not advocate for one priority over another nor offer answers to those questions. Rather, this article contemplates the need, at this critical time, for a comprehensive, holistic and thoughtful evaluation of unintended consequences when taking significant actions in the water sector.
For ease of discussion, I will rely on the Environmental Protection Agency’s (EPA) list of “Ten Attributes of Effectively Managed Water Sector Utilities,” specifically considering three: product quality, customer satisfaction and infrastructure stability, further detailed below. This discussion accepts the premises that there is robust federal regulation (acknowledging and actively setting aside for the sake of brevity any state-specific landscape) on the horizon related to PFAS, and as highlighted by EPA’s own title, all 10 attributes are necessary and equally important for a drinking water or wastewater utility or municipality (water system) to be “effectively managed.”
For visual learners like myself, these premises set up our test case scenario whereby one attribute “lever” is being actively prioritized, or “pulled,” and considers what happens when the “lever-puller” fails to comprehensively consider adverse impacts on the other attributes.
Our test case lands us at the precipice of a significant regulatory dawn with the “product quality” prioritization lever being pulled through federal PFAS regulation. Product quality, as explained by EPA, includes the production of “potable water, treated effluent, and process residuals in full compliance with regulatory and reliability requirements and consistent with customer, public health, and ecological needs.” In the context of PFAS, this refers to the new regulatory matrix that EPA has committed to developing and the associated actions water systems will need to take to ensure product quality. Those actions are anticipated to be significant, resulting in increased costs related to testing, treatment, and disposal and will, in turn, directly impact (and perhaps be counter to) a water system’s ability to also ensure “customer satisfaction” and “infrastructure stability.”
Customer satisfaction, as explained by EPA, includes the provision of “reliable, responsive, and affordable services in line with explicit, customer-accepted service levels.” Where costs increase rapidly—as is anticipated to be the case with PFAS — the ability of a water system’s existing budget to absorb them decreases, resulting in costs being shouldered by the ratepayer. While robust federal funding has been widely welcomed, current water sector funding levels alone will not mitigate the tidal wave of costs federal regulations will bring. Without sufficient funding offsetting these costs, water systems will likely have to turn to rate increases. This comes at a time where ratepayers in some communities already spend 15% or more of their monthly income on water services.
Product quality and customer service closely intertwine with infrastructure stability. Infrastructure stability, as explained by EPA, requires a system that “[u]nderstands the condition of and costs associated with critical infrastructure assets. Maintains and enhances the condition of all assets over the long-term at the lowest possible life-cycle cost and acceptable risk consistent with customer, community, and regulator-supported service levels, and consistent with anticipated growth and system reliability goals. Assures asset repair, rehabilitation, and replacement efforts are coordinated within the community to minimize disruptions and other negative consequences.”
When a substantial regulatory shift is anticipated, such as with PFAS regulation, without sufficient infrastructure stability it will be impossible to ensure product quality. However, capital investments and persistent costs associated with that new infrastructure translate to significant cost that will in turn negatively influence customer satisfaction. In some cases (perhaps in many cases), these costs will be unattainably high, even after scrounging a system’s budget and increasing rates. This creates a very difficult scenario whereby water systems will be forced to single-handedly make decisions about whether they can balance just these three attributes of a successful water agency — let alone all 10 identified by EPA.
Weathering this type of storm without firm and tangible tools based on the findings from an extensive and holistic analysis leaves the burden of prioritization squarely on water systems. A world where water systems have to pick which service attributes are most important is not exactly new — PFAS and their resulting challenges do not provide the first emerging contaminant “rodeo” water systems have grappled with. But this feels different and therefore more urgent. Perhaps it is the uniqueness of PFAS themselves, costs that seem incomprehensibly high or advisory levels that are not even detectable. We are at the beginning of a scenario where, without abandoning certain attributes, continued operation of a water system and the resulting availability of those associated water services will be at stake. All this is to say, taking a narrow view in developing regulation that impacts a water system’s ability to achieve infrastructure stability, maintain customer satisfaction or any other attribute, is unsustainable in both the short- and long-term.
Undergoing a comprehensive review and analysis when pulling an attribute lever may not immediately fix all of the problems from the alternative method of siloed decision making (and honestly may not even be entirely feasible at first). However, providing a holistic analysis — really being thoughtful and anticipatory when pulling any one lever — is certainly a good start. With the onslaught of challenges facing our water sector today, the health of the public and our environment depend on it.
About the Author: Jessica Kramer is an experienced water attorney with Brownstein Hyatt Farber Schreck in the firm’s Washington, D.C. office. At the forefront of environmental policy, she takes a creative and measured approach to achieving sustainable results for her clients. Her deep understanding of Congress and executive agencies allows her to craft and deliver on client goals in various policy areas including land use, development and infrastructure.
