Under the U.S. Environmental Protection Agency’s (EPA) Lead and Copper Rule Improvements (LCRI) announced on Oct. 8, 2024, EPA has shifted its focus from addressing lead exceedances in drinking water to preventing lead in drinking water altogether. Under the LCRI, EPA will require approximately 67,000 public water systems to identify and replace lead service lines within a decade. The LCRI also imposes additional requirements to reduce exposure to lead in drinking water by reducing the lead action level, strengthening tap sampling procedures, strengthening corrosion control treatment, reducing lead exposure during pipe replacement initiatives, and bolstering public education and consumer awareness efforts. The LCRI builds on the 2021 Lead and Copper Rule Revisions (LCRR), which required water systems to develop a lead service line inventory and set lead action levels and trigger levels.
While the federal government banned the installation of new lead pipes in 1986, EPA estimates that “up to 9 million homes remain connected to water mains through legacy lead pipes.” According to EPA, “lead is a potent neurotoxin” with “no safe level of exposure.” Exposure to lead presents serious health risks to the brain and nervous system of children, and young children and infants are particularly vulnerable. Children tend to absorb more lead per pound than adults. EPA estimates that drinking water can make up at least 20% of a person’s total exposure to lead.
Based on Congressional Research Service estimates, the LCRI will fall within the Congressional Review Act’s (“CRA”) “lookback period.” The CRA, 5 U.S.C. Sections 801–08, allows Congress to overturn recently finalized regulations. With Republicans set to take control of the White House, Senate and House in 2025, the new Congress could reject the LCRI.
LCRI Requirements
The LCRI leverages EPA’s authority under the Safe Drinking Water Act to strengthen regulatory requirements that address lead reduction in drinking water. Community water systems and nontransient noncommunity water systems (Covered Water Systems) are subject to the LCRI. The major requirements of the LCRI include:
- Locating Legacy Lead Service Lines and Requiring 100% Replacement Within 10 Years. All Covered Water Systems are required to routinely update records with the location of lead service lines, publish a service line replacement plan and determine the composition of all service lines of unknown material. Most Covered Water Systems then must replace lead service lines and service lines of unknown composition within 10 years. Remaining Covered Water Systems with a high proportion of lead service lines are eligible for a deferred deadline but must regularly assess whether they can complete replacement faster.
- Updated Protocol for Tap Sampling. Covered Water Systems must use an updated sampling protocol and collect first-liter and fifth-liter samples where lead service lines are present at a site. The higher of the two values will be used to determine compliance with the LCRI.
- Reduced Threshold for Taking Action in Response to Lead Contamination. EPA has lowered the lead action level from 15 micrograms per liter (µg/L) to 10 µg/L. When a Covered Water System’s lead sampling reveals higher levels of lead, the Covered Water System must (1) tell the public about the results and (2) work to replace the lead pipes. Covered Water Systems that exceed the lead action level after all service lines have been replaced must install or reoptimize corrosion control treatment based on new conditions. And Covered Water Systems with multiple lead action level exceedances (three or more in a five-year period) must conduct additional outreach to consumers and make filters certified to reduce lead available to all consumers.
- Eliminating Lead Trigger Levels. LCRI eliminates the LCRR’s lead trigger level of 10 µg/L, which previously triggered corrosion control treatment installation (or re-optimization) and goal-based lead service line replacement. LCRI removes this requirement because lead service line replacement is required regardless of lead levels.
- Sampling in Schools and Child Care Facilities. LCRI retains many of the LCRR requirements that community water systems conduct sampling and public education in schools and child care facilities. Schools that are regulated as public water systems, and therefore qualify as Covered Water Systems, must instead comply directly with the LCRI.
Funding Available: Utilities Are Not Expected to Shoulder the Cost of Lead Service Line Replacement Alone
Covered Water Systems are not expected to shoulder the financial burden of taking action to remove lead pipes solely on their own. Notably, EPA is dedicating $15 billion over five years from the federal Infrastructure Investment and Jobs Act (IIJA), more commonly known as the Bipartisan Infrastructure Law (BIL), specifically for lead service line identification and replacement, with 49% of that funding available through grants or principal forgiveness loans. Additionally, the BIL made a separate $11.7 billion available over five years (and $2.6 billion now) to supplement the drinking water state revolving funds (DWSRFs), some of which may be allocated to lead service line removal. This amount is in addition to the $3 billion that EPA distributed in 2024 to the DWSRFs for lead service line replacement. EPA developed a website to help identify available funding sources, including federal and nonfederal resources.
Such funding can be used for inventory and replacement of lead service lines, community education or to reduce exposure while replacement efforts are underway. For example, Denver Water currently relies on BIL funding to provide customers with free water pitchers, filters and replacement filters to use until six months after the customer’s lead service line is replaced.
In addition, when EPA announced the prepublication of the LCRI, it also announced the availability of $35 million in competitive grant funding to assist disadvantaged communities and schools to remove sources of lead in drinking water. Applications for this funding must be submitted by Dec. 30, 2024.
A Case Study: Denver Water’s Lead Reduction Program
Some water providers have already undertaken a lead service line replacement program ahead of the LCRI and provide an example of how such large-scale replacement programs can be implemented effectively. In March 2018, the Colorado Department of Public Health and Environment ordered Denver Water to add orthophosphate to its drinking water treatment to reduce corrosion in lead service lines. Stakeholders grew concerned about broad watershed impacts of orthophosphate usage and challenged the order. Denver Water subsequently obtained a variance from EPA based on a plan to replace lead service lines and provide water filters to customers with known or suspected lead service lines in the interim. Denver Water’s Lead Reduction Program has since replaced more than 28,000 customer-owned lead service lines in the last five years, providing a more permanent solution and helping to maintain water quality in lakes, rivers and streams. Denver Water’s efforts have been accelerated by $76 million in BIL funding, and Denver Water is poised to replace all lead service lines within a decade.
“The Lead and Copper Rule Improvements establish achievable, common-sense practices which have been implemented by several states and cities,” according to the Biden-Harris administration’s press release on the LCRI. In a White House webinar conducted shortly after the final LCRI was announced, representatives from Denver Water’s Lead Reduction Program shared their “lessons learned” during the five years the program has replaced lead service lines at no direct cost to customers.
Next Steps
The Lead and Copper Rule Improvements will ultimately require replacement of every lead pipe in the country within the next decade. To remain compliant, Covered Water Systems will need to update their testing policies and prepare to take proactive action to replace lead service lines that carry the drinking water they provide to homes and schools in their communities. Now is the time to evaluate available funding sources and submit applications for capital improvements and compliance efforts.
This document is intended to provide you with general information regarding the EPA's Lead and Copper Rule Improvements. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.