Water Everywhere but Not a Lot That's Recycled

Lawyers Examining Draft Policy Target Liability,Standards and Accountability

Linda Rapattoni
Daily Journal
10/10/2007

SACRAMENTO - Imagine flipping a switch to spray your lawn with water that you had flushed down the toilet a few months earlier, or filling a drinking glass with water with which you had showered. Municipal water districts and sellers of recycled water would like to see this kind of thing happen in California, where a growing population and global warming are straining dwindling water supplies.

As state lawmakers began tackling water storage and supply problems in a special session of the Legislature last week, lawyers were examining a draft recycled-water policy at a State Water Resources Control Board workshop.

Attorneys for recycled water suppliers say their chief concern is liability. Lawyers for environmental groups, on the other hand, want to see accountability.

Under current law as interpreted by a couple of court cases, as long as water purveyors comply with the most recent water quality standards, they cannot be held liable for damages for water later found to be unhealthful. Hartwell v. Superior Court, 27 Cal.4th 256 (2002), and In re Groundwater Cases, 2007 DJDAR 3023 (Cal. App. 1st Dist. Aug. 24, 2007).

But under the draft recycled-water policy, providers would face a much tougher standard, strict liability. That kind of liability does not require a showing of negligence or intent to harm.

"In my view, and it is shared by many lawyers who work for water agencies, that is not the law right now, and it is not good policy to have that sort of scheme," said David Aladjem, who specializes in water issues at Downey Brand in Sacramento and represents the Association of California Water Agencies.

"If a water district complies with the Department of Public Health standards and they are still liable, that's an expansion of existing liability," Aladjem said. "And it's a liability where you have no idea what will happen in the future. If you were a water district, would you use recycled water if you had any choice? Your answer is no. It's not going to encourage the use of recycled water."

On the other side, Linda Sheehan, a lawyer and executive director of California Coastkeeper Alliance, a nonprofit environmental group advocating for clean water, said the state should be ensuring recycled water doesn't pose health problems years from now.

California Coastkeeper Alliance Executive Director Linda Sheehan, pictured in front of Lake Merritt in Oakland, which is affected by East Bay Municipal Utility District’s water recycling program.

"Folks generating recycled water want to be able to use it and are frustrated because they want to use it freely," Sheehan said. "We have to make sure it's clean enough for all uses. Just because a human can drink it doesn't mean a fish can swim in it. We don't want to create a problem like MTBE, where we didn't think these things through ahead of time."

MTBE, or methyl-tertiary butyl ether, was added to gasoline in the 1990s to help it burn cleaner and lessen air pollution. Later, it showed up in groundwater.

Sheehan is critical of the draft of the recycling water policy. It focuses only on the drinking uses of recycled water, she said.

One thing water purveyors and most environmentalists agree on: California should recycle more of its water. "Israel recycles 13 percent of its water, while we recycle just 2 percent," said Jeff Kightlinger, general manager of the Southern California Metropolitan Water District.

The state's Water Code not only recognizes recycled water as a valuable resource but also says failing to use it could be unconstitutional.

Employing potable domestic water for purposes such as irrigating landscaping is an unreasonable use of water prohibited by the Constitution if recycled water is available as an alternative, according to Water Code Section 13550. The water would have to be offered at a reasonable cost and could not be harmful to plants or animals or degrade existing water quality, however.

The state's water agencies recycle 500,000 acre-feet of wastewater annually - almost three times what it did in 1970, according to the California Water Plan, an information and data bank for planning water uses. One acre-foot of water equals 326,000 gallons, enough to provide for two families in a year, according to the Association of California Water Agencies.

The state's goal is to recycle 1 million acre-feet by 2010.

It hopes to expand recycling so that water which is used for nonpotable purposes like flushing a toilet or showering can go through three levels of treatment, then be pumped back into the ground for natural filtering.

By establishing statewide guidelines, the state water board hopes to promote more water recycling. Nine regional boards each have their own standards for water sources. Some say that makes it difficult to build new water recycling projects.

"We partnered up with the Upper San Gabriel Valley Water District to take some of the water from Los Angeles County and clean it up," Kightlinger said. "The project took 10 years to get through the process, and it's just watering a couple of parks. It's a very frustrating thing."

He said his agency strongly supports the water board's establishment of "good sound guidelines" encouraging the use of recycled water and helping to avoid jurisdictional battles.

At the same time, California and Texas are the only states in the nation without comprehensive groundwater regulations, according to Environment Now, a nonprofit environmental group.

Sheehan said that, as long as new projects don't degrade current groundwater supplies, she's happy with avoiding jurisdictional battles.

Some water system officials believe "those boards with stringent requirements are being too stringent, and they would prefer a statewide consistent policy, meaning not as stringent," she said.

Sheehan thinks the draft recycled-water policy would tie local boards' hands. "We need a policy that's thoughtful," she said. "We've degraded our existing water quality a lot already."

California Coastkeeper Alliance wants recycled water users to get a federal permit assuring compliance with the Clean Water Act in case recycled water unintentionally runs off into surface water. Recycled water advocates disagree.

"A federal permit kind of stops customers," said Roberta L. Larson, a Sacramento partner with Somach, Simmons & Dunn, who represents the Water Reuse Association. "They think, oh, I'm not sure if this really is good water. You're focusing on a nonproblem there for minor amounts of runoff."

The association is a nonprofit group that promotes water recycling, and its members include municipalities, water districts and agencies, federal and state agencies and various individuals.

Of even bigger concern, Larson said, is that a permit violation would open a violator to private-party lawsuits, unlike state law that regulates groundwater uses.

Environmental groups and recycled-water purveyors also disagree on the level of monitoring required to prevent degradation of groundwater. Recycled water has higher salinity levels than potable water.

Environment Now has tried to act as mediator in the dispute, said Josh Basofin, the group's freshwater program manager.

Mark Gold, president of Heal the Bay, said environmentalists were disappointed that the draft policy does not deal with the degradation issue.

"To be largely silent on it is not productive," said Gold, whose group focuses on clean water in Southern California and Santa Monica Bay.

The organization wants to see strict standards to trigger analyses of whether recycled water was degrading local groundwater supplies.

The Water Reuse Association believes that kind of analysis is not needed as long as recycled water users are apply the water at proper rates set for the geology, Larson said.

Many of the disputes involve how to look at recycled water -whether it is an alternative supply or a waste product.

"Recycled water is in a no man's land as to what it is exactly," Larson said. She said arguments over recycled water are likely to grow as its use expands.

"We're just getting started with water recycling issues," she said. "There's not a lot of case law or litigation to draw from that. But, the more common recycled water becomes, the more there will be disputes."