Excerpted From: Martha F. Davis, Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism, 52 Seton Hall Law Review 1461 (2022) (276 Footnotes) (Full Document)


MarthaFDavisControl the water and you control everything,” snarled the mayor of a fictional town in the movie Rango. An animated film about a talking chameleon may seem an unlikely source for timeless wisdom, but history bears out this proposition. In extreme cases, water has been used as a weapon of war, with strategic deprivation of this fundamental human right wielded to bring an enemy to its knees. More typically, access to water is manipulated to simply keep unwanted and devalued populations marginalized and in their place. In Europe, Roma are often denied access to water and sanitation as local and national governments try to keep them unsettled and on the move. Members of the disfavored Dalit caste in India struggle to meet their basic water needs because they are expected to wait at the back of the line at local boreholes.

It is not just far away locales where water access is wielded in this way. In the United States, Black and Brown people often bear the brunt of such policies and practices. For example, for decades, a predominantly AfricanAmerican neighborhood in Zanesville, Ohio, was denied a connection to the city's water system--an abuse of power that jeopardized public health and demeaned the community until a 2002 civil rights complaint and a federal lawsuit forced a change. In Detroit, Michigan, beginning in 2014, tens of thousands of low income people, primarily Black, found their water shut off for nonpayment; many of those affected speculated that the city's goal was not merely to collect outstanding funds, but to compel low income residents to leave their homes and make way for new, more lucrative (and whiter) development.

Sometimes the control of water--and the racial impacts of that control--are more subtle, reflected in administrative inaction, buried in complex bureaucratic structures, or even framed as positive environmental initiatives. The diffusion of responsibilities for water administration between different levels of government can further obscure discriminatory impacts that would be more visible in a unified system. Neutral-sounding terminology may also hide the racial realities.

This Article argues that the complexities of household water billing combined with the indifference of utilities and government authorities to the needs of “hard-to-reach” water consumers--primarily renters in multi-family dwellings--have left many low income, disproportionately minority tenants, excluded from programs designed to help with rising water and wastewater expenses. It is a hidden burden that costs these renters hundreds of dollars a year.

As explained in greater detail below, hard-to-reach renters are disproportionately poor. For reasons that can be traced back to slavery, and include decades of racially-restrictive covenants and other modes of housing discrimination, the lowest income renters are disproportionately people of color. This fact is obscured by the neutral language used in the industry to describe this group of water consumers as “hard-to-reach.” According to the National Low Income Housing Coalition, “only 6% of white, non-Latino households are extremely low- income renters.” In contrast, 20 percent of Black households fall into this category.

In most jurisdictions, the majority of renters do not have a direct relationship with the local water utility. Rather, the property owners are responsible for paying the water and sewer bill. The owners, in turn, either incorporate the charges into their tenants' monthly rent or bill tenants separately based on either estimated usage or submeter readings that register the water consumption for individual units. Whichever of these methods is used, it is the landlord, not the tenant, who interfaces with the local water utility.

The website of the Lynn Water and Sewer Commission (“LWSC”) in Massachusetts spells out this arrangement succinctly:

Per LWSC policy, the Commission will provide one meter per building. This one meter will be read for billing and can be accessed by the Commission. It is the responsibility of the building owner to install sub-meters for individual units, if they so choose. If sub-meters are installed, the Commission will continue to send one bill for the entire building based on the readings from the provided meter. It is the discretion of the property owner to then divide the water bills based on the usage of the sub-meter.

The renters in these multi-family buildings, who have no direct relationship with the utility yet are water consumers, are deemed by utilities to be “hard-to-reach” for purposes of customer assistance.

In contrast to Lynn, renters in some jurisdictions are permitted to open water accounts in their own names. These renters are, of course, not so hard-to-reach since they have a direct relationship with the utility. Nonetheless, such tenant accounts are only feasible in the minority of rental units that are directly metered. Even then, landlords may not agree to this arrangement. For example, as noted by the consulting firm Connect California, “[m]ost California landlords handle the water utility and account for it when setting the base rent price for a unit or building, to avoid legal issues if a tenant moves out with past-due bills.” A Portland, Oregon, management company adds that landlords may want to maintain control because they can pocket extra income by “charging slightly more in rent than [they] actually pay in utility costs.” Since landlord-held accounts are the norm in the multifamily residences more likely to house low income tenants, this Article adopts the assumption that low income renters in multi-family residences are not water account holders, even though there may be some exceptions to that generalization.

As water costs have risen, more jurisdictions have recognized the financial squeeze that rising rates put on water customers, and a growing number have begun to offer Customer Assistance Plans or Affordability Plans intended to ease consumers' financial burden. The most common component of Customer Assistance Plans are bill discounts, which generally target low income households, seniors, veterans, or disabled individuals. The discounts may be an absolute figure (e.g., $20.00 off of a bill) or a percentage reduction (e.g., 25 percent off), depending on the jurisdiction. They may apply to both the water and the wastewater portions of a bill, or just the water charge, or some other subset of the bill. Affordability Plans, such as the program adopted in Philadelphia, go one step farther and provide tiered rates to water customers based on their income. Whatever the approach, Customer Assistance Plans and Affordability Programs generally offer assistance only to account holders, leaving out most renters and especially disregarding hard-to-reach renters in multifamily homes. Therefore, even if tenants themselves are low-income, seniors, veterans, or disabled persons, they will not qualify for assistance if their landlord is not eligible.

Perhaps this poor fit between a tenant's financial need and the utility's financial assistance program was easy to ignore, despite its disparateracial impacts, when water rates were low, but in the past two decades, water prices have risen significantly relative to other household costs. The amounts at issue may be small as compared to the overall rent, but they are not trivial for low-income tenants, and they add up month after month.

In most jurisdictions, hard-to-reach renters have few alternatives for financial support to help pay the steadily rising cost of their water. It is a situation that leads to further impoverishment of tenants who were already struggling, jeopardizing their housing, affecting their credit scores, and contributing to a downward spiral of poverty. In fact, in a 2016 survey, more renters (70 percent) said that they were worried about rising utility bills than about rising rents (63 percent).

This Article unpacks the dilemma of hard-to-reach renters and water unaffordability a step at a time, drawing on specific examples from jurisdictions across the country. Following this introductory Part, Part II reviews rising water unaffordability and utilities' efforts to address the impacts of rising water prices through Customer Assistance Plans and Affordability Plans. These policy initiatives often assist homeowners rather than respond to financial needs of the full range of water consumers--a contrast to the billing options offered by other utilities, where renters are much more likely to hold their own accounts and thereby access financial assistance directly from the utility. With assistance and affordability programs generally available only to homeowners and others in individually metered units, most renters--and particularly those in multi-family dwellings--receive no relief from the rising water prices that they are paying indirectly.

Part III examines the racial impacts of this prevalent approach to customer assistance. Because of racialdisparities in housing, including the nationwide homeownership gap, Customer Assistance and Affordability Plans that fail to assist hard-to-reach renters while subsidizing owners and other account holders disproportionately harm Black households. The concept of racial valuation explains policymakers' complacency in the face of these policies. Viewed through a racial valuation lens, a policy that fails to assist hard-to-reach renters with rising water prices seems natural, since it affects a large proportion of (undervalued) Black households but a relatively small proportion of the (valuable) white population. Consciously or not, policymakers' and utilities' apparent acceptance of raciallydisparate impacts contribute to the persistence of discriminatory water utility policies.

A close analysis suggests that there may be circumstances where these disparities can be challenged under the federal Fair Housing Act, which bars race discrimination in housing. Yet even in cases with clear race-based impacts, such claims are difficult to make out. Instead of condemning programs that reinforce disparities along racial lines, the current law sends a message that these impacts are generally benign, incidental, and unworthy of judicial or administrative attention.

As Part IV explains, there are alternative approaches that can better reach renters and address the racialinequity found in most Customer Assistance Plans and Affordability Programs. These approaches are exemplified by programs adopted in Portland, Oregon; Seattle, Washington; New York, New York; and Austin, Texas. In these cities, renters are not placed at a disadvantage when confronted with rising water rates. Instead, they can access specific benefits designed to offset their increasing costs. Seattle's program, adopted in the 1980s, has been tested over a period of decades.

The Conclusion sums up the evidence, hidden in a complex system of water billing, that many jurisdictions around the country perpetuate policies that use water assistance and affordability programs to favor (disparately white) homeowners and other account holders and to make (disparatelyBlack) hard-to-reach consumers further marginalized and financially vulnerable. It is an example of structural racism--obscured by neutral language and regulatory diffusion--that contributes to the racial housing and wealth gaps in the United States.

[. . .]

Policies that favor homeowners by providing water discounts only to account holders while ignoring the impacts of rising water prices on hard-to-reach renters clearly have a disparateracial impact. This racial impact compounds the deep, systemic history of racism in housing policy manifested in official decisions and private biases of mortgage lenders, realtors, and other community members.

While water experts and many local water authorities have recognized the need to address rising water prices with responsive assistance and affordability programs, many have focused those programs on homeowners or other account holders. But hard-to-reach renters are equally, if not more, likely to suffer financial burdens from rising water costs, and because of historic discrimination, renters are disproportionately Black households. Given the successful models in Portland, New York, Austin, and Seattle that respond to renters' needs--and in the case of Seattle, have done so for decades--other water jurisdictions' failure to develop programs providing relief to hard-to-reach renters seems inexplicable without reference to the role of racial valuation in these policy decisions.

More extensive metering of rental units may ultimately make it easier to identify renters who need assistance by cross-referencing other utility assistance programs. A direct relationship between renters and the water utility would facilitate direct delivery of assistance. Establishing direct relationships between water authorities and renters recognizes renters as independent consumers and shifts some of the control over household water to tenants. Expanded metering, however, is slow to come, and as prices rise, relief for renters cannot wait for technology to become affordable and pervasive.

Rising water prices highlight the need for attention to this issue, but the seeds of this discriminatory system have germinated for decades in the legacy of housing segregation and racial valuation in local policymaking. For water authorities and local governments, eliminating such discriminatory systems should be seen as a cost of doing business, a civil rights imperative, and a human rights obligation.

University Distinguished Professor of Law, Northeastern University School of Law.