A New Path to Achieving Health-Based Drinking Water Standards

• Pages: 21-28
• Date: 01 March 2026
• Published date: 01 March 2026
• Author: Timothy J. Hopkins
• Subject Matter: Administrative & Public Law

MAR/APR 2026 ENVIRONMENTAL LAW REPORTER 56 ELR 10105

A NEW PATH TO ACHIEVING HEALTH-

BASED DRINKING WATER STANDARDS

by Timothy J. Hopkins

Timothy J. Hopkins, Esq., is Founder & Principal Expert Witness of Hopkins Expert Services.

I. The Opportunity:

A Benef‌icial Alignment

For decades, regulatory economists have wa rned that

rate-of-return regulation creates perverse incentives: utili-

ties prot from capital investment, so they “gold-plate” by

overbuilding. But what if that same incentive structure

could drive public health protection? What if the prot

motive could close the gap between regulatory minimums

and health-based goals?

e U.S. Environmental Protection Agency (EPA)

establishes two drinking water standards for each regu-

lated contaminant. Maximum contaminant level goals

(MCLGs) represent purely health-based standards, the

level at which no known or anticipated adverse health

eects occur. Max imum contaminant levels (MCLs) are

enforceable regulatory standa rds set “as close to the MCLG

as is feasible,” considering treatment costs and technology

limit ations.1 For many contaminants, particularly carcino-

gens, EPA sets MCLGs at zero while MCLs allow detect-

able levels in parts per trillion (ppt) or parts per billion

(ppb). at gap represents cancer risk we are accepting for

feasibility reasons.

1. 42 U.S.C. §300g-1(b)(4).

During my 30 years as the top lawyer for Suolk

County Water Authority (SCWA), the nation’s largest

public groundwater supplier ser ving 1.2 m illion people, I

participated in decisions to achieve MCLGs despite higher

costs. When we explained t he health benets to customers

at public meetings, they supported it. “Why are we accept-

ing health risk when we can prevent it?” became the pre-

vail ing se ntiment.2

at experience revealed something profound: if cus-

tomers at a public utility supported achieving MCLGs,

investor-owned utilities (IOUs) should have even stron-

ger incentives. IOUs earn prot as a percentage of capital

investment under rate-of-return regulation. More advanced

treatment requires more capital, generating more prot.

Yet, I have encountered few, if any, IOUs proposing to

treat to MCLGs. Why not? Because regulatory obstacles

block the incentive from functioning. IOUs face uncer-

tainty about Public Service Comm ission (PSC) approval,

reexive opposition from ratepayer advocates, and con-

cerns about “gold-plating” ac cusations.

But here’s what changes everything: IOUs now have

not one but three revenue streams. Beyond rate-of-return

prot and customer rate recovery, they can recover costs

from polluters through litigation. e historic per- and

polyuoroalkyl substance s (PFAS) settlements, over $13

billion paid to water providers, are consistent with both

the litigation approach and the principle that treating to

MCLGs is reasonable and compensable.3 New York’s Civi l

Practice Law and Rules §214-h has improved statute-of-

limitations frameworks enabling c ontamination claims by

public water suppliers.

is creates a benecial alignment: prot motive, cus-

tomer health protection, and polluter accountability con-

verge. When IOUs sue polluters to recover treatment

costs, the net burden on ratepayers drops dramatica lly

while water quality improves substantia lly. It’s not perverse

incentive; it’s benecial alignment waiting to be activated.

is Comment provides the roadmap. Part II estab-

lishes why MCLG-level treatment4 is achievable. Part III

2. Timothy J. Hopkins, MCLGs in Water Contamination Litigation: Why

Health-Based Standards Matter, 56 ELR 10030 (Jan./Feb. 2026).

3. In re AFFF Prods. Liab. Litig., MDL No. 2873, No. 2:18-mn-2873-RMG

(D.S.C. led Dec. 7, 2018) (public water supplier class claims settled; other

claims pending).

4. “MCLG-level treatment” means the application and optimization of best

available technology (BAT) to reduce contaminant concentrations to the

MCLG or as near thereto as is technically achievable. MCLG-level treat-

ment requires operating BAT systems, such as granular activated carbon

(GAC), ion exchange (IE), advanced oxidation processes (AOP), or reverse

osmosis (RO), at maximum removal eciency through protocols includ-

ing frequent media replacement at breakthrough and rigorous maintenance

Author’s Note: The author served as Chief Legal Off‌icer

and General Counsel of Suffolk County (New York) Water

Authority for over 30 years, managing drinking water con-

tamination litigation that resulted in settlements and judg-

ments exceeding $280 million. He successfully prosecuted

complex multi-district litigation involving methyl tertiary-

butyl ether (MTBE), 1,4-dioxane, per- and polyf‌luoroalkyl

substances (PFAS), perchlorate, and other emerging con-

taminants on behalf of the nation’s largest public ground-

water supplier, and helped draft and successfully lobbied

for passage of 13 New York State laws related to water

law and environmental protection.

Editor’s Note: As Chief Legal Off‌icer and General Coun-

sel of Suffolk County Water Authority, the author managed

the following cases: In re MTBE Products Liability Litigation,

In re AFFF Products Liability Litigation, State v. Fermenta

ASC Corp., and Suffolk County Water Authority v. Dow

Chemical Co. As Principal of Hopkins Expert Services, the

author anticipates serving as a fact witness (and has been

designated as an expert witness to the extent his testimony

may be expert in nature) in the Suffolk County case, which

involves 1,4-dioxane contamination.

Copyright © 2026 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org