By David Eggert
Associated Press
LANSING (AP) — A judge on has let stand Michigan’s toughest-in the-nation drinking water regulations that were created after the Flint crisis, dismissing a lawsuit that was brought by major Detroit-area water systems over concerns such as the cost of having to replace hundreds of thousands of underground lead pipes.
State Court of Claims Judge Christopher Murray said last Friday the rules, which former Gov. Rick Snyder’s administration finalized more than a year ago, are procedurally, substantively and constitutionally valid.
He said the plaintiffs failed to make a convincing argument that the new regulations are not rationally related to assuring the long-term health of the state’s public water supplies.
The suit was filed in December by the Great Lakes Water Authority, whose system is used by about 40 percent of Michigan’s residents; Oakland County Water Resources Commissioner Jim Nash; and the cities of Detroit and Livonia.
They argued, among other things, that the state mandated the replacement of service lines without a meaningful study of affordability and funding, and failed to consider the legality of giving away a public service “for free” on private property.
The Great Lakes Water Authority said the opinion is not a final order in the case, because Murray earlier last week granted the plaintiffs’ motion to amend their complaint.
Michigan created the country’s strictest regulations for lead in tap water in the wake of the man-made emergency in Flint, where the toxic metal leached into the supply in 2014 and 2015 due to a lack of corrosion-control treatment following a switch in the water source while the city was under state emergency management. Underground lead service lines connecting water mains to houses and other buildings will be replaced by 2040, unless a utility can show regulators it will take longer under a broader plan to repair and replace its water infrastructure. The “action level” for lead will drop from 15 parts per billion, the federal limit, to 12 in 2025.
The rules also prohibit the partial replacement of lead service pipes except for emergency repairs; require preliminary and final inventories of the lines and other components of a water supply by 2020 and 2025; and ensure that samples are taken at the highest-risk sites and with methods designed to more accurately detect lead.
“Every Michigander has a right to safe, sufficient and affordable drinking water, and today’s ruling goes a long way toward protecting that right,” Jeremy Orr, an attorney for the Natural Resources Defense Council, said in a statement. He called the lawsuit “reckless.”
Nash, whose office operates well and water systems for roughly a dozen Oakland County communities, said he does not plan to appeal the ruling after being able to meet fairly regularly with Gov. Gretchen Whitmer’s administration and Attorney General Dana Nessel’s office to discuss his concerns over some regulations.
Communities are at risk of being sued for using public fees for private purposes, he said, adding that passing along the cost of service line replacements to customers in high-poverty areas such as Pontiac is a “major concern going forward.”
He said that cities and utilities are complying with the rules but want Nessel to issue a formal opinion to shield them from lawsuits since they are required to fully replace lead pipes, not just the utility-owned portion near the street.
Scott Dean, a spokesman for the state Department of Environment, Great Lakes and Energy, said the agency was pleased with the ruling and will work with community water systems across Michigan “to see that lead service lines are replaced and the risks of lead exposure to vulnerable populations like children are reduced.”
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