University of Wyoming

Institute for Environment and Natural Resources

Recommendations on the Safe Drinking Water Act

June 27, 1995

            I know of no safe depository of the ultimate powers of
            society but the people themselves; and if we think them not
            enlightened enough to exercise their control with a
            wholesome discretion, the remedy is not to take it from
            them, but to inform their discretion by education.
               Thomas Jefferson in a letter to William Charles Jarvis
                                                   September 28, 1820
  

Introduction

In 1993, the University of Wyoming established the Institute for Environment and Natural Resource Research and Policy to develop balanced approaches to environmental conflicts. The Institute Policy Board members -- corporate CEO's, members of prominent environmental organizations, government representatives and university faculty -- frequently are viewed as adversaries when it comes to environmental debates. Yet, they have agreed to join together with the University of Wyoming to address environmental topics of relevance to the American West and the nation. Through consensus building forums, the Policy Board hopes to influence environment and natural resource policy through open debate backed by rigorous interdisciplinary research. Policies and recommendations developed by the Board will be disseminated through publications, teaching and, where appropriate, through the legislative process.

The Policy Board held its first one-day consensus-building forum on April 7, 1995. The primary purpose of the one-day forum was to explore the consensus building process. As a forum for consensus building, the Board focused on the federal Safe Drinking Water Act (SDWA) as it relates to rural and small town communities.

The Process

Prior to the meeting, the Policy Board reviewed background on the Safe Drinking Water Act and, specifically, on small town and rural drinking water quality in the West. The Keystone Center's John Ehrmann facilitated and led the Policy Board through the consensus building process. As a basis for the dialogue, the Board reviewed a case study of a small Wyoming community facing problems regarding contamination of its water supply and the challenges in meeting the requirements mandated by the SDWA.

The Problem Addressed

The current SDWA has very important and desirable objectives. However, the Act has been structured so as to make the achievement of those objectives difficult. For large cities, the costs of compliance can be shared by many taxpayers, thereby reducing individual costs. In small town and rural systems, the per capita costs of compliance, though smaller in absolute terms, can be very high on a per family basis. Non-compliance in smaller systems is relatively high.

The Safe Drinking Water Act and Amendments

Congress passed the SDWA in 1974, establishing the basic federal-state partnership used for regulating drinking water today. The Environmental Protection Agency's authority to set standards under the 1974 Act was discretionary, and in 12 years the EPA had regulated only one contaminant in addition to the 22 originally covered by the Public Health Service. In frustration in 1986, Congress amended the Act, requiring regulations for 83 specific contaminants in three years and for 25 additional contaminants every three years thereafter.

Some communities argue that EPA is requiring them to monitor for chemicals that pose little or no risk, yet require large capital expenditures that these communities can ill afford. [NOTE: Crucial to understanding the compliance problems of small rural water systems with respect to the SDWA 1986 Amendments is the requirement that when EPA sets a standard, and determines the feasibility (including cost) of a technology to achieve that standard, the Agency assumes that the expense is spread among a user population of 100,000.]

Congress and the EPA are aware that small town and rural drinking water systems, due to inadequate financial and technical resources, are finding it extremely difficult to implement the 1986 SDWA Amendments. On the other hand, in some cases those systems may provide unsafe water to families who have no ability to determine the quality of supplies.

Themes

The Policy Board identified and agreed upon several observations that should serve as criteria for a discussion of the SDWA, in general, and small town and rural systems problems in particular.

1. Regulations regarding safe drinking water must be reasonable, responsible and flexible. The existing SDWA lacks these characteristics. The current single standard approach to policy decisions does not work well for all interests. In the case of the SDWA, this is especially true in small town and rural systems. Public policy must recognize local differences and encourage more community involvement.

2. Assuring safe drinking water should be a local responsibility. It is at the local level that the balance among interests should be struck. Local involvement and broad public participation in developing solutions is a necessary, but frequently neglected, component of government regulations. There are success stories to demonstrate that community involvement leads to safe, responsible and practical solutions.

3. Positive incentives should play a greater role in encouraging cooperation and helping citizens solve the problem.

Government Roles and Responsibilities

Following the delineation of key themes and principles, the Board focused its discussion on developing a common perspective regarding the appropriate roles and responsibilities for various levels of government. Currently, three levels of government -- federal, state, and local -- share responsibility for assuring that safe drinking water is available for all Americans, including those in rural and small town areas. These governmental levels should be coordinated around three questions:

The three questions are interrelated. Primary responsibility for each should be assigned to a specific level of government as follows.

Federal Government

• Assure that the public understands the risks for a range of contaminant levels.
• Guide the development of a credible, scientifically-based process, including public involvement, that informs the ultimate decision-makers with a scientific analysis of the range of risks involved.
• Serve as a clearinghouse for technology assessment and transfer and provide the public with options for responding to identified risks. In other words, for each range of risks for a given substance, identify the management options or technologies available to address the problem along with information regarding the cost of such options.
• Assure there is local public participation in the decision-making process.
• Assure a minimum standard for safe drinking water in the nation (the lower end of the range). This standard should focus on contaminants with the more serious acute or chronic health effects. The federal government, possibly through the EPA, should have a process for intervening to protect public health when states or localities fall below this minimum.
• Address interstate issues and design a process to encourage participation and cooperation among states experiencing disputes.
• The federal government should implement an incentive program to encourage participation and compliance, avoiding confrontation where possible. Demonstration projects, construction grants, and enforcement relief are examples of effective incentive programs.

State Government

• Establish priorities for the state based on the information about risks and possible solutions provided by the federal government.
• Provide technical expertise and assistance to localities in making their management decisions.
• Monitor the reliability of safe drinking water quality in the state.
• Provide residual enforcement authority where local government fails to act when appropriate.

Local Government

• Develop a process that insures the community is involved in assessing risks and costs of solutions.
• Based on information regarding the range of risks and cost of control technologies, select management options (i.e., increased protection of aquifer, bottled water, household in-line filters, control at treatment plant, etc.) to address problems with drinking water quality.
• Enforce the minimum standard where necessary.

Funding

The issue of funding was discussed but not resolved in the one-day forum. The board recognized the strong possibilities of decreased federal funding. Although the mandate from the federal government should provide much more flexibility, some funding could be generated at the federal level and transferred to the states in the form of block grants, revolving loan funds, or other programs. If the federal government does provide funds to assist localities in complying with the minimum standards, various incentives and disincentives could be imposed based upon the levels of compliance. Alternatively, states could assume responsibility for funding. The cost of compliance can be great on a per capita basis. When decisions are made far from the communities that bear the costs, there is less regard for their impact.

Responsibility for paying for what needs to be done must be clearly enunciated in the revised legislation. There should be at least some economic impact on those directly affected by the solution selected so as to insure the weighing of costs and benefits.

Conclusions

The general consensus is that requirements for safe drinking water quality and solutions for meeting those requirements must not be mandated solely at the federal level. Instead, methods for addressing the issue must move closer to the people affected.

The Policy Board acknowledges that not all details regarding the restructuring of the SDWA can be resolved in a one-day forum. Nevertheless, the Policy Board reached consensus on a number of recommendations regarding the SDWA. We the undersigned hereby recommend that the SDWA be revised to reflect the following changes:

• The roles of the federal, state and local governments in terms of assuring safe drinking water quality will be redefined to encourage increased community participation.
• The current federal mandate, using the EPA's Maximum Contaminant Levels (MCLs), should be replaced with new standards reflecting ranges of acceptable risks and options for compliance to provide the nation with a minimum standard for drinking water quality. This standard will be in the form of a scientifically accepted range of risks with the lower end of the range representing the minimum.
• The ranges of risk from contaminants and available technology to remove them will be assessed using the best science and engineering available with peer review at the national level.
• The federal government will be responsible to communicate to the states and localities the ranges of risk and available technologies to avoid them, including information regarding the cost of avoidance.
• The states will establish a procedure to insure that the minimums are met, the local community is informed and involved, and technical assistance is provided.
• Local communities will determine their own levels and methods of compliance based on a knowledge of the range of risks and available options.
• The federal and state governments will have some residual enforcement powers in the event minimum standards are not achieved.
• Pilot programs emphasizing increased local flexibility should be undertaken to determine practicality, costs of implementation, etc.