Lansing — Michigan finalized the country's toughest lead drinking water rules Thursday after a state rules committee declined to challenge the most recent standards.
The new rules from the Michigan Department of Environmental Quality will lower the lead action level to 12 parts per billion starting in 2025 and require communities across the state to remove all lead service lines, including those on private property.
The revised rules are slightly more lenient than GOP Gov. Rick Snyder’s original proposal in 2016, which would have lowered the action level to 10 ppb starting in 2020. The state’s current action level is the same as the federal level of 15 ppb, which Snyder has called "dumb and dangerous."
The new rules also form a water system advisory council, require communities to create inventories of their water supply infrastructure and, at locations with lead service lines, the rules require two water samples — an initial 1-liter draw and then, after running three liters from the source, a second 1-liter draw.
Snyder said in a Wednesday statement that the federal lead and copper rule "simply does not do enough to protect public health."
"As a state, we could no longer afford to wait on needed changes at the federal level, so Michigan has stepped up to give our residents a smarter, safer rule — one that better safeguards water systems in all communities," the governor said.
Snyder initiated the rule change in the wake of the Flint water crisis, when his state-appointed emergency managers and state water regulators took actions that resulted in the lead contamination of the city's drinking water. Lead levels have declined under the federal action level for nearly two years and currently are below the new state standard.
Communities and water utilities have worried about the stricter standard, pondering how they’ll pay for the replacement by the deadline and arguing that some rules are unconstitutional.
“We’re more than willing to work on a solution to get there, but unfortunately our concerns that we’ve expressed throughout the process, we feel, have not been addressed,” said John LaMacchia, assistant director of state and federal affairs for the Michigan Municipal League, which represents the state's cities, villages and urban townships.
But environmental groups are pleased with the changes, especially the required replacement of the state’s 500,000-plus lead service lines, said Cyndi Roper, Michigan senior policy advocate for Natural Resources Defense Council.
“Other states should really step up and do the same thing,” Roper said.
Starting in 2021, communities across Michigan will need to replace at least 5 percent of their lead service lines every year over a 20-year period. Except for emergency repairs, the rules ban partial replacements, which could elevate lead levels in the remaining sections of lead pipeline.
If 90 percent of a water system's tests gauge above lead action levels, the replacement rate would be bumped to 7 percent a year and officials would need to notify the public.
The governor's office, in a statement Thursday, said timeline exceptions may be made for communities that incorporate a separate DEQ-approved replacement schedule into their asset management plans.
Several communities, including Grand Rapids and Ann Arbor, have begun replacing lead lines. In late 2016, Lansing was the first community in Michigan to completely replace its lead service lines — 12,000 lines over 12 years at a cost of $44.5 million.
“The big challenge was, where do you draw the line on the lead?” said Republican Sen. Jim Stamas of Midland, chairman for the Joint Committee on Administrative Rules, which reviewed the DEQ standards. “In this rule, it would go just inside the house, but does not include the home itself.”
Homeowners would have to agree to the replacement since the section from the curb to the home is located on private property, Stamas said, but municipal water suppliers would fund the replacement.
The requirement to replace segments of pipeline on private property could lead to legal and financial complications, LaMacchia said.
The rules present an unfunded mandate, LaMacchia said, require communities to use public resources for a private benefit and leave water suppliers no option but to spread replacement costs throughout the rate base.
“The communities that we represent are faced with a daunting problem and that problem is whether they follow the Constitution and violate the rules, or violate the Constitution and follow the rules,” he said. “That is an awful position for them to be in and one that undoubtedly sets us up for litigation.”
In addition, the new mandate ties up a large chunk of community assets in lead service line replacement, while other infrastructure projects are deferred, LaMacchia said. It is jeopardizing "the ability of the rest of the system to provide safe services," he said.
The state could instead require communities to comply with the 12 ppb threshold while they replace the lead service lines on a timeline consistent with their asset management plans — the blueprint communities use to budget and plan their infrastructure maintenance and replacement, LaMacchia said.
The rules also raised concerns among municipal water suppliers, who questioned the scientific data that determined 12 ppb an acceptable threshold for action.
“We don’t disagree (lead lines) need to be replaced; we all know they do,” said Bonnifer Ballard, executive director for the Michigan section of the American Water Works Association. But the replacement should be supported by secured funding and lead standards based on “sound science," she said.
The state is encouraging municipalities to incorporate the cost into their asset management plans and future water and sewer fees, Stamas said.
The Natural Resources Defense Council is exploring ways to fund the replacement, Roper said.
“We also need to be looking at a real water affordability plan that is based on income and the ability to pay,” Roper said. “Many of our urban areas like Detroit and Flint are being hit by rates that are unaffordable.”
The Michigan League of Conservation Voters in a statement Tuesday urged legislators to help fund the replacements.
“Now the onus is on our state Legislature to craft a bold, comprehensive plan to fund lead pipe removal without making drinking water unaffordable,” said Bob Allison, deputy director for Michigan LCV.