Providing safe drinking water is a basic responsibility of government. In the United States, local water utilities shoulder much of this burden, but federal drinking water law sets these utilities up to fail. The primary problem arises in the context of nonpoint source pollution, where federal drinking water law favors end-of-line clean up by water utilities over pollution prevention by farmers and other nonpoint source polluters. This system is both inefficient and unfair.
Although the Safe Drinking Water Act requires local utilities to provide safe water, it gives them few tools to engage in water pollution prevention and instead emphasizes water filtration and treatment. At the same time, the Clean Water Act, which regulates water pollution, broadly exempts much agricultural water contamination and other nonpoint source pollution from its strict permitting requirements. As a result of the interaction of these two statutes, water utilities are often the first line of defense against agricultural water contamination's many human health harms. Allocating cleanup responsibility to water utilities rather than to polluters is inefficient because it prioritizes end-of-line clean up even where pollution prevention would be less expensive. It also fails to account for the ancillary benefits of pollution prevention, including, among other things, protection of aquatic habitats. This allocation of responsibility is inequitable not only because it has a disparate impact on low-income and minority communities, but also because it disadvantages communities whose drinking water sources are adjacent to farms relative to those whose drinking water sources are adjacent to polluters that are subject to the Clean Water Act's permitting requirements. For the former set of communities, legal mechanisms to shift either costs or cleanup responsibility to farmers are extremely limited. To address these concerns, this Article calls for a suite of legal reforms that would shift the default from end of line cleanup to pollution prevention by empowering water utilities to adequately protect their source waters and by revoking the special status of farms in environmental law.
Margot J. Pollans, Drinking Water Protection and Agricultural Exceptionalism, 77 Ohio St. L.J. 1195 (2016), http://digitalcommons.pace.edu/lawfaculty/1051/.