DEP Drinking Water System Rules Allow Water Purveyors To Define And Set Standards
DEP Continues Voluntary Status Quo Despite Mandatory Law
The DEP today proposed new regulations to implement a 2021 law designed to assure that drinking water systems are well maintained and that their physical assets are managed appropriately to assure compliance with regulatory standards and prevent failures and threats to human health. The law also sought to upgrade infrastructure to reduce leaks and waste of water resources.
Long before the current crop of Foundation Funded Frauds, we helped put the infrastructure deficit issue on the policy agenda, way back in 2005 testimony to the Clean Water Council and in this 2006 Report, see:
We also took leadership in warning of the climate risks a decade ago, see:
The 2021 law was passed in order to put teeth in DEP’s voluntary 2014 “Asset Management Guidance” and to mandate that drinking water systems develop Asset Management Plans and finance and actually implement them.
We exposed the flaws of that voluntary “Asset Management” program when it was initially adopted by the Christie DEP, see:
According to the Murphy DEP proposal:
The [2021] WQAA requires that the specified public community water systems implement asset management plans within 18 months of the Act’s effective date … Asset management programs include the process of ensuring that there is sufficient investment in the system, as well as the planned maintenance, repair, replacement, and upgrade of the physical components of a drinking water system.
Unfortunately, the DEP failed to get the message from the Legislature that their voluntary 2014 Asset Management Guidance Document was the source of the problem because it was voluntary and implementation was not mandatory.
The DEP proposal delegates essential standards and would allow local water purveyors to define the goals and make the Asset Management Plan effectively voluntary:
Due to the large amount of variability between systems, the Department will not mandate specific goals, nor evaluate specific goals as being adequate or inadequate. These proposed requirements would provide minimums, such as compliance with drinking water rules and regulations, and being reflective of the service goals and metrics of the system.(@ p.16)
WTF? DEP will not set goals or determine if local goals are adequate? Are you kidding me?
The Department relied on existing regulatory standards – the same standards the new law sought to strengthen:
The 15 percent non-revenue water threshold is consistent with the standard from the existing rules (N.J.A.C. 7:19-6.4(a)).
Even for the most “critical” risks – including climate risks – and engineering and operating features of the drinking water systems, DEP abdicates and continues the current voluntary approach and effective delegation and privatization of setting goals, defining critical conditions, outlining technical elements, and standards:
This rulemaking establishes a process for performing criticality assessments at N.J.A.C. 7:10-6.3(b)4 that is designed to evaluate the risk for each asset in a public community water system. The first step of this process is to use the Business Risk Exposure (BRE) framework. In the BRE framework, the probability of failure (scored between one and five) and the consequence of failure (scored between one and five) are multiplied together to create a criticality rating (scored between one and 25). The BRE framework is a commonly recognized methodology for evaluating risk of assets. It is recommended for use in the Department’s 2014 Asset Management Guidance (https://www.nj.gov/dep/assetmanagement/pdf/asset-management-plan-guidance.pdf), … The Department is not requiring the use of any specific values in criticality assessment. Instead, the Department is emphasizing the comparison of the probabilities and consequences of failure to determine criticality as the essential aspect of this part of the process.
Did you get that? DEP will allow private water purveyors to define critical risks.
Here is another blatant loophole regarding the need to determine and reduce the loss of water – note how DEP did not impose and mandate critical new requirements – that would be too “complicated” (and “expensive”):
To accompany this effort, the Department will work with State drinking water sector training organizations to ensure that systems will receive training that will allow them to complete an audit successfully. Some states have incorporated steps to include the Level 1 validation process. This is a process outlined by the Water Research Foundation and AWWA that would have individuals qualified through a training program, and overseen by the State evaluate data quality of audits prior to submittal to the State. However, due to the complication, expense, and staffing associated with developing a licensing program, which would be necessary to meet the requirements of a robust Level 1 validation program, such a process is not incorporated into this rulemaking.
Coulda, Woulda, Shoulda
The entire proposal is full of discretionary actions the DEP “could take” or “may take” – instead of mandates that the water purveyors “shall take”, again defeating the Legislative intent of the 2021 law, which was to mandate implementation and ratchet down on current discretionary and unenforceable DEP standards.
As the quality of submitted data improves, the Department could, pursuant to the Water Supply Management Act at N.J.S.A. 58:1A-15f and consistent with N.J.A.C. 7:19-6.4, 6.5, and 8.3, require systems that exhibit significant water loss to take actions to reduce such loss. Examples of actions that the Department would take to compel systems to reduce losses include: a denial of increases to water allocation, leak detection surveys, submittal of a water main replacement schedule, or a meter replacement program. Each of these follow-up actions is consistent with existing regulatory requirements
DEP is falsely implying that a lack of data is why standards are not enforced, (“as quality improves”) and signaling that any implementation is many years in the future.
Once again, another example of where DEP injects discretion into what should be a mandatory standard:
The Department is proposing that, where a public community water system is in the bottom 35th percentile of comparable systems per the findings of submitted water loss audits, or reports greater than 15 percent UFW or non-revenue water, the Department may take several actions to compel a public community water system to reduce water losses.
So, under the guise of ratcheting down and imposing mandatory Asset Management Plan implementation requirements, the Murphy DEP has done exactly the opposite and preserved the status quo voluntary program.
Accordingly, our drinking water assets will continue to deteriorate and investment upgrade decisions will continue to be made primarily by private corporate water purveyors in order to maximize profits, not protect public health and the environment.