U.S. water infrastructure is showing its age. With many pipes installed in the early to mid-20th century, concerns over leaks, breaks, and contamination have bubbled to the surface and left water utility companies with the question of how to proceed.

Sometimes, that decision is made for them. Many utilities operate under federal consent decrees that legally require them to invest billions of dollars in decades-long infrastructure upgrades—from replacing outdated pipes to building new water treatment plants.  While these upgrades ultimately change communities for the better, hanging in the balance are overstretched utility budgets to carry them out.

What a consent decree is and how it works

The EPA and DOJ sometimes deem that a city’s sewer, stormwater, or drinking water systems are in violation of a federal law. When they come to this conclusion, resolution can come in the form of a consent decree, which is basically a court order. The agreement outlines corrective actions that utilities are obligated to implement.

Many federal consent decrees stem from violations of the Clean Water Act. Since 1998, the EPA has issued 91 consent decrees for municipal CWA violations—with a cost of $51.6 billion attached to these compliance-based infrastructure investments.

A consent decree becomes enforceable by law once it’s filed in federal court and approved by a judge. If utilities fail to execute the defined corrective actions, they can face steep financial penalties and find themselves under even more federal scrutiny.

Why utilities get hit with consent decrees

Enforced consent decrees are often a product of an aging infrastructure. Pipes installed in the 1900s are nearing the end of or have exceeded their design life. At this point, pipes are more prone to water loss, water main breaks, and heavy metals leaking into the water supply.

The EPA has previously cited that over 9 million lead pipes supply drinking water across the U.S, with as many as 10 million homes and 400,000 schools and child care facilities relying on these service lines. When lead pipes start to corrode, lead can enter the water and reach elevated levels that put communities at risk. That was the case years ago in Flint, Michigan, where a consent decree was issued to outline specific upgrades and monitoring the city needed to address the public health crisis.

Another point of contention is combined sewer systems (CSS). As the EPA reports, approximately 700 communities in the U.S.—predominantly in the Great Lakes region—rely on these systems, which collect sewage and stormwater in the same pipes. Amid heavy rainfall, CSS are prone to overflow, causing untreated wastewater to flow into natural bodies. Such overflows violate the Clean Water Act, which has prompted a string of consent decrees to enforce action. (As of 10 years ago, the EPA had issued federal consent decrees in 47 communities to address CSS problems.)

In the background of all this, you have climate change increasing pressure on already fragile water systems. In an analysis of 144 cities across the U.S., 126 experienced a 15+% increase in hourly rainfall intensity since 1970. Heavier rainfall events can further exacerbate overflows in combined sewer systems and put the public’s health at risk.

Cities where the EPA has come knocking

Cincinnati, Ohio

Much of Cincinnati’s infrastructure was built as a combined sewer. As the city became more urbanized, the impact of overflows grew more pronounced and problematic. These factors put Cincinnati high on the EPA’s list of cities to target for reform. 

In 2004, the EPA, DOJ, State of Ohio, and the City of Cincinnati entered into a federal consent decree. Under this decree, the Metropolitan Sewer District of Greater Cincinnati (MSDGC) agreed to an overhaul of its sewer and stormwater infrastructure. The efforts of what’s known as the Wet Weather Improvement Program are ongoing, with the goal of reducing overflow and keeping people and the environment safe.

Baltimore, Maryland

Like Cleveland residents, Baltimore locals were also no stranger to overflows from sanitary sewage systems. Portions of the city’s systems dated back to the 1800s, and with their age, struggled to handle the influx of water brought on by intense storms.

A federal consent decree was issued in 2002 to address Baltimore’s sanitary sewer overflows. Through repairs and infrastructure upgrades, the city has made notable progress in its efforts to curb overflows, reducing the number of overflows by 42% between 2020 and 2023. However, the decree was modified in 2017 to give the city more time and resources to complete the work, and to address building backups.

Atlanta, Georgia

In Atlanta, Georgia, combined sewer systems prone to overflow during heavy rains also raised red flags for the EPA. In 1998, the EPA along with the state of Georgia entered into a consent decree with Atlanta, mandating corrective action be taken.

The city fulfilled this consent decree in 2008, making upgrades to its four water treatment plant facilities and enhancing sewer collection and transmission systems. A second decree was issued in 1999—where the focus was once again on improving water quality, but more so on sanitary sewer overflows and the aging infrastructure. As of now, these improvements have a completion deadline of December 20, 2027.

The price tag that comes with compliance

When utility companies are placed under federal consent decrees, they’re looking at sweeping changes. The agreements, as shown in the examples above, can last for years or even decades as upgrades are made and timelines are further negotiated.

Consent decrees typically come with a multi-year roadmap to achieve compliance —what’s known as a long-term control plan. This structured framework helps utilities map out their approach to complex work and develop detailed funding plans to support said efforts. On the flip side, the rigidness of long-term control plans makes it difficult and costly to deviate from what’s already been outlined.

Once the spending starts on mandated improvements, the stakes are high. Infrastructure upgrades can cost billions of dollars, and to foot this bill, utilities often have to increase rates for customers. Atlanta, for instance, has generated over $700 million since 2004 through its Municipal Option Sales Tax (MOST)—a series of 1% water rate increases that have contributed to the Clean Water Atlanta initiative.

Beyond capital investments, utilities also face operational shifts. There’s new protocols to adhere to, from the data that needs to be collected and reported on to the EPA to the adoption of new performance metrics. Maintaining compliance with new standards can warrant investments in more staff, resources, and expertise, in the form of expanded or completely new departments.

It’s difficult decisions like these that help utilities stay ahead of mandated deadlines, but also raise questions over how to properly fund and manage the path forward.