This article was originally posted in the Marquette University Law School Faculty Blog. It is used here with permission.
It might come as a surprise to learn that federal law does not require public or private schools to test their drinking water sources for lead or for any other contaminant. Instead, the Safe Drinking Water Act operates by regulating the “public water systems” that deliver water to the schools. Too often, this broad focus on public systems overlooks the potential contamination sources on private (or school) property, such as lead service lines and indoor lead plumbing “fittings” – valves, bends, and the like. This gap in federal law presents an important opportunity for state intervention.
edu david.strifling marquette David Strifling, Marquette 2004, is a professor at Marquette University Law School in Milwaukee, where he is director of Water Law and Policy Initiative.
Indeed, the loophole has already led to some disturbing results. In Detroit, for example, officials found unsafe lead and copper levels at 57 of 86 schools tested. Testing in Vermont recently revealed lead contamination in over a dozen schools. And here in Milwaukee, testing showed high lead levels at 183 of Milwaukee Public School’s 3,000 drinking fountains, and at 28 of 425 water outlets tested at charter schools. Worse yet, a recent federal report shows that more than half of public school districts don’t test their water for lead at the point of delivery. Those that did test often found elevated levels of lead, as illustrated in the report’s summary figure.
Over the past few decades, several cities with aging water infrastructure networks struggled with lead issues. But the severity of the Flint crisis thrust the matter into the national spotlight. Shortly thereafter, we learned that Milwaukee’s water system contains more than 70,000 lead laterals (about 45 percent of its water service lines). The city of Newark faces a deteriorating infrastructure system containing about 15,000 lead service lines and allegedly failed to properly treat its water with an additive to prevent lead from leaching from the service lines into the water delivered to residents. Nationally, the total number of lead laterals is unknown.
The detection and removal of lead in drinking water at schools is costly in terms of time and money. No doubt Congress was hesitant to impose the testing expense on end users of public water systems. On the other hand, as the old saying goes, “what gets measured gets managed.” There is no safe level of lead in a child’s bloodstream, and research shows that its behavioral and developmental effects are especially severe. Children may already be exposed to lead through a variety of channels including paint, soil, dust, and water. Eliminating a potential exposure route in our schools would help mitigate the risks.
Certainly, solutions to this problem are easier to devise than to implement. The simplest fix would be state legislation requiring schools and day care centers to test drinking water at the point of delivery. This has been done in a few other states. In Illinois, for example, Public Act 99-0922 requires schools and daycares to sample for lead contamination in drinking water, and offers several funding mechanisms to foot the bill for already cash-strapped school districts. And a new federal funding source exists: the Water Resources Development Act (passed 99-1 by the U.S. Senate in late 2018) authorized $20 million in federal grant funds for the Lead Testing in School and Child Care Program Drinking Water Grant. This funding should enable schools to test at least once, to identify older fixtures that may be contamination sources. Additional rounds of testing might occur after some prescribed interval of time.
States must apply for the federal grant funding by Feb. 11, 2019. Given his background in education, incoming Wisconsin governor Tony Evers would seem well-positioned to request funding to investigate and begin closing this loophole, or even to encourage the Wisconsin Legislature to become involved. The stakes are high.
With 2019 upon us, many observers have described what to watch for in a variety of fields during the new year. Water law and policy is no exception. Most attention has been devoted to EPA’s revised “Waters of the United States” rule, governmental responses to emerging contaminants such as PFAS, and the Solicitor General’s recommendation that the Supreme Court review a Ninth Circuit opinion raising issues related to groundwater pollution under the Clean Water Act. But let me suggest here that as we look forward to those important issues, we should not lose sight of our common goal to minimize the risks associated with lead in water systems.
To learn more about these and related issues, consider joining Mike Gousha for an important “On the Issues” conversation with Anna Clark, author of The Poisoned City: Flint’s Water and the American Urban Tragedy. More details and registration information are available here.