10

Social, Legal, and Regulatory Issues and Opportunities

Water reuse projects, like any large-scale water project, affect numerous stakeholders and are affected by a complex legal and regulatory framework that spans many sectors. Water reuse, once an exceptional and little-regulated practice, is now recognized as an important component of water resources management. Our growing need and expectation of reliable water supplies have driven technological innovation in water treatment, storage, and conveyance that has created new opportunities to integrate reclaimed water into our water systems. As one might expect in any field evolving as dramatically as wastewater treatment and reuse, the regulatory, legal, economic, public understanding, and public policy aspects of water reuse are not well aligned.

In this chapter, the committee reviews the legal and regulatory framework, including water rights and regulation of water quality, that influences the application and design of water reuse projects at the local level. The chapter then describes existing state water reuse regulations, U.S. Environmental Protection Agency (EPA) guidelines, and relevant international guidelines. U.S. wastewater and drinking water regulations are also discussed as they relate to reuse. The chapter also includes an analysis of factors that contribute to positive or negative public attitudes toward reuse.

WATER RIGHTS

If one’s experience with water reuse is in a water-scarce coastal city, one might assume that it is desirable for water to be treated and reused before it is released to the ocean. However, in an inland environment, water reuse may affect downstream users of the effluent. Thus, the right to use wastewater needs to be examined. The law of water rights in the United States has evolved under two distinct systems: (1) prior appropriation doctrine in the West and (2) riparian rights in the East. Broadly speaking, the prior appropriation doctrine evolved in regions where water has always been scarce, and it provides a means of allocating water in times of shortage according to the date that a right was perfected. In contrast, riparian rights evolved in more humid regions and give rights to landowners who border rivers. Within this broad construct, each state’s rules have evolved within their respective borders; thus the doctrines are just a general indication of how water rights may be attributed. Finally, legislation in some states has specifically addressed water reuse and clarifies legal questions surrounding the right to reuse water.

Water Reuse Under Prior Appropriation

In accordance with each state’s legal structure, treatment facilities planning to reuse water must consider the effect on downstream users. Traditionally, wastewater has been considered a liability, and municipalities have used the least expensive means to bring the water into compliance with water quality requirements so the effluent could be discharged. As communities expand and treatment and monitoring technologies improve, wastewater in some arid regions is changing from being regarded as a liability to an asset. This evolution raises important legal questions of who has rights to



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10 Social, Legal, and Regulatory Issues and Opportunities Water reuse projects, like any large-scale water to the ocean. However, in an inland environment, project, affect numerous stakeholders and are affected water reuse may affect downstream users of the ef- by a complex legal and regulatory framework that fluent. Thus, the right to use wastewater needs to be spans many sectors. Water reuse, once an exceptional examined. The law of water rights in the United States and little-regulated practice, is now recognized as an has evolved under two distinct systems: (1) prior ap- important component of water resources management. propriation doctrine in the West and (2) riparian rights Our growing need and expectation of reliable water in the East. Broadly speaking, the prior appropriation supplies have driven technological innovation in water doctrine evolved in regions where water has always treatment, storage, and conveyance that has created been scarce, and it provides a means of allocating water new opportunities to integrate reclaimed water into our in times of shortage according to the date that a right water systems. As one might expect in any field evolv- was perfected. In contrast, riparian rights evolved in ing as dramatically as wastewater treatment and reuse, more humid regions and give rights to landowners who the regulatory, legal, economic, public understanding, border rivers. Within this broad construct, each state’s and public policy aspects of water reuse are not well rules have evolved within their respective borders; thus aligned. the doctrines are just a general indication of how water In this chapter, the committee reviews the legal rights may be attributed. Finally, legislation in some and regulatory framework, including water rights and states has specifically addressed water reuse and clarifies regulation of water quality, that influences the applica- legal questions surrounding the right to reuse water. tion and design of water reuse projects at the local level. The chapter then describes existing state water reuse Water Reuse Under Prior Appropriation regulations, U.S. Environmental Protection Agency (EPA) guidelines, and relevant international guidelines. In accordance with each state’s legal structure, U.S. wastewater and drinking water regulations are also treatment facilities planning to reuse water must con- discussed as they relate to reuse. The chapter also in- sider the effect on downstream users. Traditionally, cludes an analysis of factors that contribute to positive wastewater has been considered a liability, and munici- or negative public attitudes toward reuse. palities have used the least expensive means to bring the water into compliance with water quality requirements so the effluent could be discharged. As communities WATER RIGHTS expand and treatment and monitoring technologies im- If one’s experience with water reuse is in a water- prove, wastewater in some arid regions is changing from scarce coastal city, one might assume that it is desirable being regarded as a liability to an asset. This evolution for water to be treated and reused before it is released raises important legal questions of who has rights to 165

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166 WATER REUSE the treated effluent and when and how the owner can California’s reuse statute provides that “The owner use the resource. Another perspective is to ask whether of a waste water treatment plant operated for the pur- the use of wastewater constitutes a “new” water supply; pose of treating wastes from a sanitary sewer system it might in a region where flows otherwise are released shall hold the exclusive right to the treated waste water to the ocean, but not in a region where a downstream as against anyone who has supplied the water dis- user relies on them. charged into the waste water collection and treatment system” (California Water Code § 1210). In Utah, the right to reuse water must be speci- Approaches to Water Reuse Under the Prior fied in the original water right where wastewater reuse Appropriation Doctrine is included as a beneficial use (Schempp and Austin, The primary conflict with respect to water rights 2007). A public agency that owns or operates a waste- stems from downstream water rights holders and the water treatment facility may use, contract for the use, potential for reuse activities to impair their use of or reuse such water obtained under a water right under certain conditions.3 Water rights do not automatically the water. Some states give water treatment facilities greater rights to treated water, whereas other states may attach upon treatment. Most basins in Utah are fully protect downstream senior rights holders. If the water appropriated, and therefore a significant part of the re- reuse proponent must purchase a separate water right use program is dependent on contractual arrangements to the wastewater (i.e., the locality does not have the that provide wastewater treatment facility owners with right to retain its treated wastewater), the costs of reuse rights to the treated wastewater (Schempp and Austin, will increase substantially. 2007). In general, the owner of a wastewater facility has In Arizona, the State Supreme Court held that the ability to reuse the water without purchasing it from the entity that treats the wastewater is entitled to put it to any reasonable use.4 This essentially provides another. However, this is not always the case. In Utah the right to reuse must be specified in the operator’s wastewater reuse facilities the rights to all the water water permit, and in New Mexico the operator’s right they treat. The court explained that the rule “will allow to wastewater may be dependent on its consumptive municipalities to maximize their use of appropriated rights (which can be less than the water it discharges). water and dispose of sewage effluent in an economi- In the following paragraphs, a brief survey of how states cally feasible manner.” The court added that “the spirit have approached the reuse of wastewater is presented. and purpose of Arizona water law . . . is to promote In Colorado, wastewater can be used by the munic- the beneficial use of water and to eliminate waste of ipal wastewater treatment plant owner when the water is “developed” water. The term is used to describe water that is not natural to a stream, such as water imported In 1972, the court in Metro Denver Sewage v. Farmers Reservoir rec- from another basin or pumped from groundwater. ognized that this “wastewater rule” was also applicable to municipal wastewater effluent (499 P.2d 1190 (1972)). Subsequently, the court These wastewaters would be available for use by the clarified the wastewater rule distinguishing that wastewater, as op- city that operates the wastewater treatment works. This posed to return flow and seepage, was not subject to appropriation concept provided the ability for Denver to reuse waters by downstream entities (City of Boulder v. Boulder & Left Hand Ditch Co., 557 P.2d 1182 (1976)). that had been piped from the Colorado River basin into 3 Such restraints include that the water right is administered as the Platte basin (Tarlock, 2009).1 Further, the courts a municipal water right, the reuse is consistent with the underly- have held that there is no right in downstream entities ing water right, and the reuse is approved by both the Utah Water to appropriate wastewater of another if that water has Quality Board and the State Engineers Office (Utah Code Ann. § 73-3c-201(1) and 73-3c-202(1)a-c. been “developed.”2 4 S enior water rights holders downstream from a municipal wastewater treatment plant alleged impairment as a result of the 1 S ee City of Thornton v. Bijou Irrigation Co., 926 P.2nd 1, treatment plant’s sale of its treated effluent to other parties, which 65-78 (1996). significantly decreased discharges to the stream. The court held that 2 The issue of water rights and water reuse was determined by the “the ‘producer’ of the effluent is a senior appropriator, those who Colorado Supreme Court beginning with Burkhar v. Meiberg, where have appropriated the effluent gain no right to compel continued the Colorado Supreme Court determined there was no vested right discharge.” Ariz. Pub. Serv. Co. v. Long, 773 P.2d 988, 991-97 to the captured irrigation wastewater of another (86 P. 98 (1906)). (Ariz. 1989).

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167 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES this precious resource.”5 However, this reasoning has stages. Finally the burden of proving whether impair- been criticized because “one equally could argue that ment will occur is significant, and it matters where the in a highly appropriated state, the water is not wasted burden is imposed. Schemp and Austin (2007) note if it is returned to the watercourse and subsequently that when the burden is placed on the water utility, appropriated downstream—as was the situation in this the costs of the reuse project can increase. When the case” (Schempp and Austin, 2007). burden is placed on a state agency, the utility burden In New Mexico, the State Supreme Court ruled in is reduced but the approval time may be lengthened Reynolds v. City of Roswell that the city’s “sewage efflu- while the state calculates the expected consequences to ent is private water which the City may use or dispose the hydrological system. When the burden of proving of as it wishes.”6 Neither downstream users of the dis- impairment is left to the downstream user, upfront charged wastewater effluent nor the state engineer can project costs are reduced but the chance of subsequent compel the continued supply of treated effluent without litigation is increased, with less long-term confidence a contract, grant, dedication, or condemnation.7 The in a utility’s water rights. Supreme Court ruled that permit conditions are al- lowed only to protect existing water rights. Water Reuse Under the Riparian Doctrine It is important to note that the principles of water rights are not the only ones under which water flows The riparian doctrine is used in the more humid can be protected downstream. Environmentally based Eastern states and essentially bases the right to use standards, such as instream flow rights, also could affect rivers on proximity to the waterway. Hence, the water the ability to reuse wastewater flows. right resides in the “riparian” land owner, in contrast In summary, municipal wastewater treatment to the prior appropriation doctrine where land owners plant operators in many states have the right to reuse who are not adjacent to the water source can acquire wastewater effluent, but in others it may be necessary to water rights. The doctrine has evolved with changing procure water rights to do so. The application process, circumstances, and modern practice involves adminis- described below, can affect these rights. trative requirements and the ability to transfer water rights. Generally the wastewater operator would be able to reuse wastewater unless it would likely cause harm Water Rights Application Process Under the Prior to downstream riparian rights holders. Appropriation Doctrine As would be expected, states’ application processes Approaches to Water Reuse Under the Riparian Doctrine for reuse projects range from simple to complex. Key aspects of the application process for water rights to In general, water rights are less contentious in reclaimed wastewater by state are listed in Table 10-1. riparian states. In the eastern United States, Florida is A common feature is that downstream water users are at the forefront of water reuse and recycling activities. protected from impairment by upstream users. Gener- Water reuse is statutorily encouraged and the state rec- ally, impairment is used in water law to indicate that ognizes that the “promotion of water conservation and a given user’s water right has been reduced or in some reuse of reclaimed water, as defined by the department, way negatively impacted by another user. If reuse rep- are state objectives and considered to be in the public resents a change of use, generally the applicant must interest” (Fl. Stat. § 373.250[1]). All five of Florida’s demonstrate “no injury” to other users (Tarlock, 2009). Water Management Districts have reuse programs States tend to acknowledge downstream uses that have and, generally, reuse is regulated under consumptive become established in reliance on wastewater dis- use permits. In New Jersey, the state has directed the charges (e.g., California). In some states environmental Department of Environmental Protection (NJDEP) protection of the stream is addressed in the application to encourage and promote water reuse along with water conservation (N.J. Admin. Code § 7:14A-2.1). Examples of key aspects of the water rights permit- 5 Id.at 997. ting scheme in Florida and New Jersey are provided 6 Reynolds, 654 P.2d at 539 (1982). in Table 10-1. 7 Reynolds v. City of Roswell, 654 P.2d 537 (1982).

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168 WATER REUSE TABLE 10-1 Key Aspects of Application Process for Water Rights to Reused Wastewater for Selected States State Examples of Key Aspects of Water Rights Application Process in Selected States Prior Appropriation Doctrine California “Prior to making any change in the point of discharge, place of use, or purpose of use of treated wastewater, the owner of any wastewater treatment plant shall obtain approval of the board [California Water Resources Control Board (CWRCB)] for that change “(Cal. Water Code § 1211(a)). These provisions apply to water reuse activities unless “changes in the discharge or use of treated wastewater . . . do not result in decreasing the flow in any portion of a watercourse” (Cal. Water Code § 1211(b)). Nevada Can include two applications: a primary application quantifying the total discharge of the wastewater treatment facility, and a secondary application quantifying how, and what amount of, the discharge will be beneficially reused (Nev. Rev. Stat. § 533.440). The Nevada Division of Environmental Protection (NDEP) must confirm that proposed water reclamation projects will meet water quality standards. The Nevada Department of Water Resources reviews applicants proposing to reuse effluent that historically has been discharged into a water body, to determine whether the project is likely to impair the rights of downstream users. Oregon Water reuse projects are exempt from obtaining water appropriation permits if there are not negative impacts on fish and wildlife. Statutory focus on water quality rather than quantity (Or. Rev. Stat. § 537.131, .132(1)). Applications must include the traditional water right elements of source, use, amount of the use, and description and location of the conveyance mechanism to be used to transport the reuse water (Or. Rev. Stat. § 537.132[2]). Utah Reuse is approved under two separate applications: one to the Utah Water Quality Board and another to the State Engineer’s Office for streamflow appropriation (Utah Code Ann. § 73-3c-302(2)a-c). Applicants must describe their water right including the diversion, depletion, and return flow requirements, in addition to the proposed water to be reused. In regard to reused water, the application must include the place, purpose, and extent of the proposed water reuse, and an evaluation of the depletion to the hydrological system caused by the reuse (Utah Code Ann. § 73-3c-302(2)g). Washington The distribution of water by agricultural production plants and industrial plants are exempt from traditional permit requirements (Wash. Rev. Code §§ 90.46.150, .160), easing water reuse, where water rights for the use of the reclaimed water are obtained in a single permit with associated water quality and Department of Health provisions (Wash. Rev. Code § 90.46.030). Statutes protect downstream users from impairment by assuring that “facilities that reclaim water under this chapter shall not impair any existing water right downstream from any freshwater discharge points of such facilities unless compensation or mitigation for such impairment is agreed to by the holder of the affected water right” (Wash. Rev. Code § 90.46.130(1)). However, the statute does not specify what constitutes “impairment” or how and by whom impairment is determined (Schempp and Austin, 2007). Riparian Doctrine Florida Reuse is generally regulated under consumptive use permits for which domestic wastewater treatment facilities must identify such factors as: the level of treatment, the volume of reclaimed water available, and the volume of reclaimed water provided to reuse customers. All wastewater facilities must reuse water of the “lowest acceptable quality” and if reclaimed water satisfies this mandate and is determined feasible, the applicant is required to implement and maximize its use.a Each Water Management District is designated as being inside or outside of a water resource caution area (FL OPPAGA, 1999), which dictates water use permitting requirements. Permittees within water resource caution areas are “required to use reclaimed water within five years and total use of reclaimed water within 20 years unless it is determined to be economically, environmentally or technically infeasible” (Fla. Admin. Code Ann. r. 40A-2.802(1)c(3)). New Jersey Application process requires the wastewater treatment facility to provide (1) the National Pollutant Discharge Elimination System permit associated with the reused water, (2) an operations protocol, (3) an engineer’s report if application is not within the confined area, and (4) a reuse supplier and user agreement. The operations protocol section requires an applicant to provide a narrative of the project that includes the proposed procedures to be followed in applying reuse water, how the water will be transported and where the water will be applied (NJDEP, 2011). aSee http://www.dep.state.fl.us/water/reuse/wmdprog.htm. Rights to Aquifer Storage buy storage rights in a reservoir owned by another. If, however, the project relies on groundwater storage, a A water reuse project may rely on a reservoir to different legal problem is presented. store remediated water prior to its distribution. The The right to use of an aquifer to store water may rights to reservoir storage are well understood: the be addressed through a statutory framework, in which project may own the land and the reservoir, or may case rights are likely to be defined. In some states, such

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169 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES as Arizona, Idaho, Oregon, and New Mexico, statutory Program) affect the quality of water used for reuse, in- schemes address when water may be stored and how cluding de facto reuse scenarios. Regulations also affect rights to its withdrawal are governed. the treatment level and quality of wastewater, which Rights to store water in the subsurface are gener- can affect the extent of treatment required for water ally not controlled by the ownership of the overlying reuse applications. Water quality regulations involving property. A recent case in Colorado8 explained why groundwater affect water reuse operations that use the ownership of the overlying property did not create a subsurface for additional engineered natural treatment property right in an aquifer below the property. The and storage. Drinking water regulations also affect the proposal would have used an aquifer that covered 115 degree of reclaimed water treatment required. In sum- square miles of land in South Park, Colorado. The over- mary, while many aspects of water reuse are addressed lying landowners contended that the use of the aquifer by different federal regulatory programs, there is no would constitute trespass, in the absence of a contract integrated regulatory approach to this process. The giving permission for the use of the aquifer. The state following sections outline the various federal regulatory Supreme Court rejected this argument, stating that programs that affect water reuse operations. “ When parties have use rights to water they have cap- tured, possessed, and controlled, they may place that The Clean Water Act and Wastewater Discharge water into an aquifer by artificial recharge and enjoy the benefit of that water as part of their decreed water use The Clean Water Act was developed to protect rights, if the aquifer can accommodate the recharged the health of the nation’s surface waters with the states water without injury to decreed senior water rights.”9 (or tribes) given authority to determine the uses to be protected. The Act establishes the basic structure for * * * regulating discharges of pollutants into the waters of In summary, the ability to utilize wastewater for the United States and for regulating quality standards reuse is controlled by state water law. As water be- for surface waters. Water quality standards are adopted comes scarcer, states will need to address the differing by states and include water quality criteria, designated interests in wastewater. Generally, in regions where uses of water bodies, and antidegradation provisions. the wastewater generator has unambiguous ownership These waters may be protected to very high standards, of the water, reuse is more easily facilitated. However, such as the protection of a cold-water fishery, or given in arid states, reuse may be affected by the interests of lesser protection. Although the use of surface waters downstream water users. for water supply can affect stream designation, very few rivers in the United States are classified solely on their use as a drinking water source (i.e., “drinkable”). THE FEDERAL WATER QUALITY States can take drinking water use into consideration REGULATORY FRAMEWORK in standard setting under the Act, and there are a few As discussed in earlier chapters, effectively manag- who do so. ing water quality concerns is central to the protection Discharges from municipal wastewater treatment of public health and the environment in water reuse plants were regulated in the earliest days of the Clean projects. Although there are no federal regulations Water Act. These facilities are subject to National specific to water reuse, several federal regulations have Pollutant Discharge Elimination System (NPDES) a bearing on water reuse operations. Regulations ad- permits, which reflect national standards, and state (or dressing the quality of discharges to surface waters (e.g., tribal) requirements. The Act does not protect against the Clean Water Act) or discharges to municipal waste- all sources of pollution (e.g., non-point-source pollu- water treatment plants (e.g., the National Pretreatment tion and certain types of agricultural return flows) so that treatment is required for almost all waters drawn from surface sources. 8 Board of County Commissioners of the County of Park v. Park Clean Water Act requirements also frequently limit County Sportsmen’s Ranch, LLP, 45 P.3d 693 (Colo, 2002)) the discharge of saline brines (or concentrate) from 9 Id. at 703-04.

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170 WATER REUSE membrane treatment processes (e.g., reverse osmosis) sufficiently removed by conventional wastewater treat- to freshwater lakes and streams. Thus, the costs of re- ment (Box 10-1). claimed water treatment options for inland communi- Future pretreatment program reviews conducted ties are affected by these water quality standards, which as part of requirements of the Clean Water Act (CWA can vary across the states and even stream by stream. § 301(d)) should be conducted with serious consider- One particular type of pollution—“indirect” in- ation of the increasingly intimate connection between dustrial discharges to wastewater treatment plants—is domestic wastewater discharge and domestic water regulated under the National Pretreatment Program, supply. Capturing contaminants at their industrial which was developed to reduce the discharge of in- source can be an efficient method of keeping these con- dustrial pollutants at their source. This program is stituents out of drinking water supplies from potable administered locally, and reuse facilities can impose reuse projects and de facto reuse scenarios. The present more stringent regulation for chemicals that are not list of 129 priority pollutants regulated by the National BOX 10-1 The National Pretreatment Program and Expanding Source Control The Clean Water Act (CWA), passed in 1972, was designed to eliminate the discharge of pollutants into the nation’s waters and to achieve fishable and swimmable water quality levels. EPA’s National Pollutant Discharge Elimination System (NPDES), one of the CWA’s key components, requires that all direct discharges to the nation’s waters comply with an NPDES permit, but many industries discharge through municipal wastewater treatment plants. Consequently, EPA established the National Pretreatment Program, which requires industrial and commercial dischargers to treat or control pollutants in their wastewater prior to discharge to municipal wastewater treatment plants. Generally, wastewater treatment plants are designed to treat domestic wastewater only. Under the Pretreatment Program, local governments must implement pretreatment standards requiring that pollutants be removed from any industrial or commercial discharge to a wastewater collection system. The current objectives of the program are to • prevent the discharge of pollutants that may pass through the municipal wastewater treatment plant untreated; • protect wastewater treatment plants from hazards posed by untreated industrial wastewater; and • improve the quality of effluents and biosolids so that they can be used for beneficial purposes (Alan Plummer Associates, 2010). Under this program, wastewater authorities must adopt ordinances, issue permits, monitor compliance, and take enforcement action when violations occur. EPA has established numeric effluent guidelines for 56 categories of industry, and the Clean Water Act requires that EPA annually review its effluent guidelines and pretreatment standards to identify new categories for standards. A summary of the Pretreatment Program’s achievements (EPA, 2003b) demonstrates that it has resulted in significant reductions in the discharge of toxic chemicals to the environment. Most standards have been based on the 129 priority pollutants, which were included in the 1977 Amendments to the Clean Water Act as a result of the Toxics Consent Decree (NRDC v. Train, 421 U.S. 60 (1976)). Recently, an update has been proposed to the Universal Wastes Rule to incorporate pharmaceuticals and thereby streamline disposal of hazardous pharmaceutical wastes and reducing the amount of these chemicals in wastewater (73 Fed. Reg. 73520, Dec. 2, 2008), although no subsequent action has been taken. In Issues in Potable Reuse (NRC, 1998), the committee recommended that EPA develop a priority list of contaminants of public health signifi- cance that are known or anticipated to occur in wastewater and that individual communities institute stringent industrial pretreatment and pollutant source control programs, based on this guidance. EPA has not developed such a list, although some utilities have taken actions on their own. For example, the Orange County Sanitation District, which supplies reclaimed water for the Orange County Water District’s Groundwater Replenishment System (see Box 2-11), has expanded the agency‘s source control program to include pollutant prioritization, enhanced outreach to industry and the public, and a geographic information-system-based toxics inventory. Through its source control program the Orange County Sanitation District was able to reduce the industrial discharge of 1,4-dioxane and N-nitrosodimethylamine (NDMA) into the wastewater collection system. Oregon is developing rules that that will require municipal wastewater treatment plants to develop plans for reducing listed priority persistent pollutants. The Oregon list includes well-studied pollutants as well as some for which little information exists (Alan Plummer Associates, 2010). The Other programs have been developed to reduce the introduction of pharmaceutical products into the wastewater systems.a aSee http://www.nodrugsdownthedrain.org/

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171 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES Pretreatment Program was established more than three Under the existing federal regulations, Class V in- decades ago as a result of the Toxics Consent Decree jection wells do not require a federal permit if they do (Natural Resources Defense Council v. Train, 421 U.S. not endanger underground sources of drinking water 60 (1976)) and the 1977 amendments to the Clean and comply with other UIC program requirements Water Act. The nation’s inactive inventory of manufac- (49 CFR § 144.82). However, states may include ad- tured chemicals has expanded considerably since that ditional requirements with regard to treatment, well time, as has our understanding of their significance. construction, and water quality monitoring standards Updates to the National Pretreatment Program’s list prior to permitting any injection of reclaimed water of priority pollutants would ensure that water reuse into aquifers that are currently being, or could be, used facilities and de facto reuse operations are protected for potable supply. from trace contaminants of concern. These updates can be accomplished through the existing rulemaking U.S. Drinking Water Regulations: The Safe process. In the interim until such updates can be made, Drinking Water Act EPA should develop guidance on additional priority chemicals to include in enhanced local pretreatment The U.S drinking water regulations set standards programs in localities implementing potable reuse. that all drinking water treatment plants are required to Consideration should also be given to expanding meet, whether they use pristine water supply sources, source control to residential releases of constituents supply water from potable reuse projects, or practice of concern. Regional, statewide or national regula- de facto reuse (see Box 10-2). This section provides a tions could drive the development of less troublesome review of the regulatory framework and an evaluation substitutes for constituents that are difficult to remove of its adequacy for potable reuse. in wastewater systems. Moreover, if a pollutant source is a consumer product, regional, statewide, or national regulations may be required. BOX 10-2 Consideration of De Facto Water Reuse in U.S. Drinking Water Standards Federal Regulation for Injection or Infiltration of Reclaimed Water The U.S. Public Health Service published drinking water standards in 1962 (U.S. Public Health Service, 1962) which As discussed in Chapters 2 and 4, numerous water provide some insight into concerns regarding de facto (or reuse projects use subsurface injection or infiltration as unplanned) water reuse. Although the standards specifically part of the wastewater treatment and storage process. state that “The water supply should be obtained from the most In some instances, aquifer recharge has additional pur- desirable source which is feasible,” the document goes on poses such as preventing subsidence or reducing salt- to state: “If the source is not adequately protected by natural means, the supply shall be adequately protected by treatment.” water intrusion into freshwater supplies. When water is The 1962 standards included alkylbenzene sulfonate (ABS), stored through infiltration, rather than injection, state an anionic surfactant that was commonly used in detergent. and local regulations rather than federal regulations, The statement is made that “waters containing ABS are likely address the quality of the recharge water. to be at least 10 percent of sewage origin for each mg ABS/ Aquifer recharge by direct injection and aquifer liter present.” Also of pertinent interest was the use of carbon storage and recovery wells are regulated under the Safe chloroform extract (CCE) in the 1962 standards as an indicator of anthropogenic organic compounds in water. A standard of Drinking Water Act (SDWA) as Class V wells under 200 μg/L CCE was established to “represent an exceptional the Underground Injection Control (UIC) program (42 and unwarranted dosage of the water consumer with ill-defined USC § 300h to 300h-4). The UIC program regulates chemicals,” whether from wastewater or other sources. The the construction, operation, and permitting of wells ABS and CCE standards promulgated in 1962 demonstrate where fluids are injected underground for storage or that the federal government understood that de facto water disposal to prevent contamination of underground reuse was occurring and that the contamination of drinking water from a diversity of synthetic organic contaminants was drinking water resources. Reclaimed water injected into possible. these wells is typically treated to meet both primary and secondary drinking water standards.

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172 WATER REUSE In 1974, Congress authorized the SDWA, which Every 6 years, EPA also must review existing regula- provides authority to EPA to establish and enforce tions to determine if modifications are required. An national standards for drinking water to protect public overview of the CCL process and its development is health. For priority contaminants, EPA determines a provided in Box 10-3. maximum contaminant level goal (MCLG), the level To move a contaminant from the CCL and into below which there is no known or expected risk to regulation, EPA must show that regulation would human health. A maximum contaminant level (MCL) “provide a meaningful opportunity to reduce health is the highest concentration of a contaminant that risk.” This process can be extremely arduous, time- is allowed in drinking water through an enforceable consuming, and controversial. The promulgation of a primary standard. MCLs are set as close to MCLGs regulation is preceded by numerous opportunities for as possible, considering best available treatment tech- public comment. nology and costs versus benefits. Regular testing and reporting is required to ensure that contaminants do New Approaches in Consideration for Contaminant not exceed the MCL. For some contaminants, includ- Regulation ing microorganisms, EPA instead requires specific treatment techniques (TT) be used in the drinking In March 2010, EPA announced a new drinking water treatment process in lieu of an MCL. Individual water strategy that outlines the principles to expand states are allowed to adopt more stringent standards, if public health protection for drinking water (EPA, desired. In 2009, the EPA National Primary Drinking 2010a). The new strategy comprises four major points: Water Regulations included three MCLs for disinfec- tants, four MCLs for radionuclides, five MCLs or TTs • Address contaminants as groups rather than for microorganisms, 16 MCLs or TTs for inorganic one at a time so that enhancement of drinking water chemicals, and 53 MCLs or TTs for organic chemicals protection can be achieved cost-effectively. (EPA, 2009b). • Foster development of new drinking water tech- To assess the occurrence of unregulated contami- nologies to address health risks posed by a broad array nants that are suspected to affect drinking water, EPA of contaminants. established the Unregulated Contaminant Monitor- • Use the authority of multiple statutes to protect ing Regulation (UCMR) program under the SDWA. drinking water. Under this program and a prior related program, the • Partner with states to share more complete data presence of unregulated contaminants in drinking wa- from monitoring at public water systems. ter has been purposefully monitored across the country since 1988. The list of contaminants to be monitored is The grouping of contaminants is one of the key updated in the UCMR every 5 years. issues still remaining to be addressed. Addressing EPA’s Contaminant Candidate List (CCL) pro- contaminants as groups is expected to lead to efficien- cess, introduced in the 1996 SDWA Amendments cies in implementing effective treatment, provide ef- (Public Law 104-182), addresses unregulated contami- ficiencies in developing and administering regulations nants that are known, or anticipated, to occur in U.S. based on coherent scientific and policy rationale, and drinking waters and that may require future regulation. foster development of new drinking water treatment The list specifically includes contaminants that (1) are technologies. Regulating groups of contaminants has not currently regulated under the SDWA, (2) may been done in the past for specific contaminants (e.g., cause adverse health effects, (3) have been detected or total trihalomethanes, a group of five haloacetic acids are anticipated to occur in public water systems, and (4) disinfection byproducts, radioactive substances). may require regulation under the SDWA. The SDWA In the new drinking water strategy, EPA continues Amendments of 1996 require EPA to revise the CCL to identify protection of source water as a key priority. every 5 years, make regulatory determinations for at Multiple statutes can be applied to control contami- least five of the CCL contaminants, and identify up nants prior to their entering the water supply. This to 30 contaminants for monitoring under the UCMR. may include the use of “regulatory authority under the

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173 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES BOX 10-3 The Contaminant Candidate List (CCL) Process The EPA released the first CCL (CCL1) containing 60 contaminants (50 chemical and 10 biological) in March 1998. After the release of CCL1, EPA asked the National Research Council (NRC) for guidance in establishing a system to prioritize contaminants listed on the CCL (NRC, 1999b). EPA also asked the NRC to provide advice regarding the development of subsequent CCLs by identifying and prioritizing emerging contaminants. NRC (1999b) recommended that within 1 year of a CCL release, EPA should use a three-part assessment for each contaminant listed. The sug - gested process would review (1) existing data on health effects, (2) existing data on exposure, and (3) existing information on treatment methods and analytical procedures. Using these data, the NRC recommended that EPA conduct a preliminary risk assessment followed by separate deci - sion documents for any contaminant to be dropped from the list, slated for additional research, or considered for regulation. NRC (1999b) further advised EPA to publish health advisories for all compounds that remain on the CCL within 3 months after completion of initial decision documents. In a subsequent report based on a workshop on emerging drinking water contaminants, NRC (1999a) suggested that ideal CCLs should • meet the statutory requirements of the 1996 SDWA amendments, • identify the “entire universe of drinking water contaminants” before ranking, • consider all routes of exposure, including dermal, inhalation, and ingestion, • use the same identification and selection process for chemical and microbial contaminants, and • include mechanisms to identify similarities among contaminants and contaminant classes that can be used for evaluation of individual chemicals. The committee recommended a two-step process that would prioritize chemicals from a broad universe to a preliminary CCL (PCCL) through screening criteria and expert judgment followed by use of a prioritization tool and expert judgment to develop the final CCL. To generate the CCL, chemical attribute scores for health effects (severity and potency) and occurrence (prevalence and magnitude) were assigned to each chemical. Using both classification models and expert judgment, a draft CCL is generated and published for public comment. The NRC committee estimated that the number of contaminants in the “universe” could be close to 100,000, considering that the Toxic Substances Control Act inventory alone includes approximately 72,000 substances produced or imported at greater than 10,000 pounds/year. In 2001, the NRC published a report that provided more detailed information regarding the suggested approaches for moving contaminants from the universe to the PCCL and eventually to the CCL (NRC, 2001). The 2001 NRC report suggested the use of selected attributes to evaluate the likelihood of a particular contaminant occurring at a concentration that could pose risk to public health through drinking water. In relationship to water reuse, NRC (2001) specifically recommended the inclusion of “any constituent of wastewater treatment or septage” within the contaminant universe. The committee also recommended the use of virulence-factor activity relationships, within which microorganisms that have the “ability to survive wastewater treatment and to re-enter drinking water” are specifically addressed. The suggestions within NRC (2001) were not available in time to be incorporated in the second CCL (CCL2). CCL2 was published in Febru- ary 2005 and contained 51 of the original 60 contaminants from CCL1. EPA determined that regulations were not required for the additional nine compounds that were then removed from the CCL. The third CCL (CCL3) was published in 2009, largely using the processes suggested by the NRC as modified by the National Drinking Water Advisory Council (NDWAC, 2004). The EPA established a contaminant universe that contained more than 6,000 potential drinking water contaminants. The CCL3 universe includes compounds known or anticipated to occur in water supplies, considering releases to the environment, production volume, and fate characteristics. Additionally, the CCL3 universe includes contaminants with demonstrated or adverse health effects, regardless of occurrence data. EPA followed the two-step process suggested by the NRC by establishing a PCCL followed by a draft CCL. The final CCL3 contains 116 chemical and biological contaminants, including nine steroid hormones and one antibiotic, which were not included on the draft CCL3. The inclusion of these compounds suggests that wastewater-derived compounds are currently being considered in assessments of drinking water safety, although a direct responsibility to regulate potable reuse would probably cause greater scrutiny of compounds likely to be in municipal wastewater. Federal Insecticide, Fungicide, and Rodenticide Act suggest that the regulation of discrete chemicals along (FIFRA) and Toxic Substances Control Act (TSCA) with new treatment strategies may evolve into a more to ensure that decisions made for new and existing holistic approach that considers mixtures and groups industrial chemicals are protective of drinking water” of contaminants according to both treatment efficacy (EPA, 2010a). Together, the recent actions by EPA and health risk.

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174 WATER REUSE Evaluation of the Sufficiency of the Federal adequately targeted contaminants for water reuse ap- Regulatory Framework When Applied to Reuse plications. From a review of the history of the CCL (see Box 10-3), it is evident that the process used to gather The overarching question in relationship to potable data for the CCL is evolving to become increasingly water reuse is whether the CWA and the SDWA offer comprehensive in character. This becomes particularly sufficient protection for water supplies that are derived clear in the third CCL (CCL3). Nevertheless, expand- from sources that include significant municipal waste- ing the water quality monitoring datasets that inform water effluent. As described in Chapter 2, there are the CCL process, particularly targeting contaminants many communities in the United States where munici- encountered in municipal effluents, could improve the pal wastewater treatment plant discharges make sig- effectiveness of the CCL for reuse applications. nificant contributions to the drinking water source. In The CCL3 universe encompasses a wide array some cases wastewater discharges are a principal source; of potential water contaminants, both chemical and thus, it can be argued that the SDWA has already been microbial. To generate the CCL3 universe, EPA relies given this assignment. The SDWA and the CWA are primarily on databases that are electronically accessible the federal laws in place to protect the public from at no charge. Although some databases include data contaminants of wastewater origin. The SDWA alone on contaminants in municipal effluents, much of the applies to groundwater resources where septic systems data published in peer-reviewed literature is not in- or other sources of pollution contribute to the overall cluded. The UCMR program under SDWA monitors groundwater replenishment. Potable reuse projects may unregulated contaminants in drinking water, but this also be required to meet local or state regulations, above program does not directly target contaminants in wa- the requirements of the SDWA (state reuse regulations ter reuse systems or municipal wastewater. At present, are discussed later in the chapter). However, de facto the data on unregulated contaminants in wastewater reuse scenarios are not subject to additional regulations. discharges primarily originate from research efforts As outlined earlier, the SDWA does provide limits conducted by utilities and academic research funded (MCLs) for many chemical and biological contami- by water industry research foundations. The program nants, and a great deal of research, careful thought, and would benefit from an effort to include these data in the public dialogue underlies each of these limits. For con- CCL as well. Also, a federal monitoring program for taminants regulated through MCLs, it is logical that unregulated contaminants directed toward wastewater the same limits would apply regardless of the source effluents, mirroring the UCMR program for drinking of the water. Where potable reuse is concerned, un- water, would be highly beneficial in characterizing the regulated organic contaminants are an issue of special occurrence of emerging contaminants in reuse (and de interest. The question remains as to the adequacy of facto reuse) applications. existing drinking water regulations to protect public health where unregulated trace organic contaminants The Challenge of Unknown Contaminants are concerned. In the following section, the committee examines the adequacy of CCL datasets for evaluating Although the SDWA provides protection to public contaminants relevant to water reuse, the challenge of health from priority chemicals and microbial contami- unknown contaminants, and the concern of greater nants, unknown chemical compounds (i.e., those that microbial risks when raw water supplies contain signifi- have not yet been identified through chemical analysis cant amounts of municipal wastewater effluent. or whose occurrence has not been characterized) rep- resent a primary concern in potable reuse projects that is not currently addressed by the SDWA. This concern Adequacy of CCL Data for Prioritizing Chemicals also applies to conventional supplies to the extent that Relevant to Water Reuse they are influenced by wastewater sources or exposed The CCL process (Box 10-3) is the primary to independent sources of contamination. The current mechanism for considering trace organic contami- paradigm for discrete chemical monitoring of a pre- nants for regulation under the SDWA. Therefore, the identified suite of contaminants will not be capable of committee first evaluated whether the CCL process addressing the large number of potential but currently

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175 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES unknown contaminants within wastewater effluents. application of existing processes) would also result in Although the inclusion of production volume and fate increased reduction of bacteria, viruses, and Giardia. It characteristics in the CCL3 is a reasonable start, truly is uncertain whether this regulatory framework is suf- identifying unknown chemicals will likely require ad- ficient when source waters contain a high proportion vanced instrumental techniques and biological assays of wastewater. to provide more holistic and comprehensive screening Failure of any of the treatment processes used tools to assess overall biological potency. Addressing to control pathogens would carry a risk of sporadic contaminants by groups, in addition to individually, “ breakthrough” of pathogens. To the degree that high as employed by EPA in the original trihalomethane levels of pathogen reduction are achieved by engineered regulation (EPA, 1979), in subsequent regulations on processes, rather than use of a protected watershed disinfection byproducts (EPA, 1998b, 2003c) and as (with lower levels of pathogens), it becomes more criti- recently proposed by EPA for addressing contemporary cal to maintain multiple barriers designed to improve issues (EPA, 2010a) could provide a useful strategy to reliability (see Chapter 5), whether in a planned reuse address the challenge of unknowns. situation or in a conventional water system treating An example of the emergence of one previously un- impaired surface waters. known chemical is N-nitrosodimethylamine (NDMA), which is commonly detected in potable reuse practices Assessment of the Existing Federal Regulatory using combined chlorine for disinfection (see Box 3-2). Framework for Potable Reuse Prior to widespread awareness of the chemical, NDMA was likely present in reclaimed and potable waters for Reclaimed water used for potable reuse ultimately quite some time at concentrations far greater than 0.7 is required to meet all physical, chemical, radiologi- ng/L, an EPA-established groundwater cleanup level cal, and microbiological standards for drinking water. (EPA, 2010b). Although nitrosamines were known to The SDWA will provide a measure of human health occur in potable water systems as early as the 1970s, protection in terms of discrete chemicals based upon NDMA did not gain widespread attention until the standards established and enforced by EPA (whether 1990s when it was discovered in elevated levels in in the form of a numerical MCL or a treatment tech- California reuse systems (Najm and Trussell, 2001). nique). However, as established earlier in this section, NDMA was added to the CCL in 2009 and was in- the SDWA does not yet establish standards for all cluded in the UCMR2. potentially harmful constituents that may be present in wastewater. At present, the rules promulgated under the CWA and SDWA do not sufficiently address the Protection Against Greater Microbial Risks public health concerns associated with reclaimed water As previously discussed, under the SDWA, viruses for potable reuse. Also, the datasets used to develop the and protozoa are regulated by treatment techniques universe of contaminants considered for regulation are rather than MCL. Under the original Surface Water not yet sufficient to capture the range of contaminants Treatment Rule (SWTR [42 USCA 300g-1(b)(2) that may be present in reclaimed water for potable (c)), all surface water treatment plants (unless exempt reuse applications. More detailed reuse regulations ex- by waiver) had to have treatment sufficient to achieve ist in some states to address some, but not all, of these 99.9 percent reduction in Giardia and 99.99 percent concerns (discussed in the next section). A discussion reduction in viruses, and the operational characteristics of potential advantages and disadvantages of federal of treatment steps needed to achieve this were defined reuse regulations follows the discussion of state reuse in guidance manuals. Bacterial pathogens are also pre- regulations. However, it is critical to understand that sumed to be reduced. Under the Long Term 2 SWTR many drinking water systems in the United States uti- (LT2SWTR), utilities have been required to take lize source waters with significant contributions from measurements of the source water concentrations of treated wastewater. Therefore, a revised regulatory Cryptosporidium to determine if further reductions of paradigm that provides greater protection for potable Cryptosporidium are required. This additional reduc- reuse applications would need to consider the extent tion (either by additional processes or by more intensive

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182 WATER REUSE organisms to very low or nondetectable levels in the BOX 10-5 reclaimed water. A few states rely solely on the water Cross-Connection Control quality of the product water and do not specify treat- ment process requirements. State nonpotable reuse regulations often address cross- connection control by specifying requirements that reduce Reclaimed Water Uses. No state water reuse regula- the potential for cross connections, including the following: tions include requirements for all potential nonpotable reuse applications; they generally include the most • Identification of transmission and distribution lines and appurtenances via color coding, taping, or other means common or likely types of use. Regulations in many • Separation of potable water and reclaimed water lines states allow types of use not specifically included in • Allowable pressures their regulations if they are shown to the satisfaction • Operation and maintenance procedures of the regulatory agency to provide an adequate degree • Monitoring and testing of health or environmental protection. States listed in • Surveillance Table 10-3 that have uses that are not covered in their • Backflow protection devices to reduce the potential of contaminating the potable water system in the event of a cross regulations do not necessarily prohibit such uses. In- connection at a use area stead, those uses (and their attendant reclaimed water treatment and quality requirements) may be evaluated California has additional cross-connection control re- and accepted on a case-by-case basis. quirements where reclaimed water is used in buildings for toilet and urinal flushing or for fire protection. The require- Other Variables. Many state water reuse regulations ments stated in the California Water Recycling Criteria (CDPH, 2009) for reclaimed water in dual-plumbed facilities include include requirements for water quality monitoring fre- the following: quency, treatment reliability, cross-connection control (see Box 10-5), emergency storage and disposal, and use 1. Internal use of reclaimed water within any individually area controls (e.g., setback distances, signage). As with owned residential unit, including multiplexes and condomini- treatment and reclaimed water quality requirements, ums, is prohibited. these requirements are not uniform from state to state. 2. Facilities that produce or process food products or beverages can use reclaimed water internally only for fire suppression systems. State Guidelines and Regulations for Potable Reuse 3. Reclaimed water cannot be used within a building until a detailed description of the intended use areas, plans and Some states (e.g., Hawaii) have guidelines that ad- specifications, and cross-connection control provisions and dress potable reuse; in those states, regulatory agencies testing procedures is submitted and approved by the regula- evaluate projects on a case-by-case basis. Many states tory agency. 4. The dual-plumbed system within each facility or use do not have potable regulations, and several states rely area must be inspected for cross connections prior to the on the EPA underground injection control regulations initial operation and annually thereafter. Additionally, the to protect potable groundwater basins. A few states, reclaimed water system must be tested at least once every such as California (draft regulations), Florida, Wash- four years for possible cross connections. ington, and Massachusetts, have developed compre- 5. The California Department of Public Health must be hensive water reuse regulations for potable reuse (most notified of any incidence of backflow from the nonpotable reclaimed water system into the potable water system within of them for groundwater recharge), but the absence 24 hours of the incident’s discovery. of state criteria for potable reuse does not necessarily prohibit potable reuse applications. Some states evalu- Direct connections between potable and nonpotable ate potable reuse projects on a case-by-case basis, even distribution systems are not allowed in any state (Asano et without guidelines or regulations. To date, no regula- al., 2007). Detailed information on cross-connection control tions have been adopted for potable reuse without measures is available in manuals published by the American Water Works Association (AWWA, 2004, 2009) and the U.S. the use of an environmental buffer (sometimes called Environmental Protection Agency (EPA, 2003c). direct potable reuse; see also Chapter 2) anywhere in the United States.

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183 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES As examples of regulations, existing and draft the federal program. EPA sets standards for pollutants potable reuse regulations for groundwater recharge using health, technology, cost, or some combination of in California and adopted groundwater recharge and these elements. The standard-setting process allows for surface water augmentation regulations in Florida are participation and allows for appeals if certain criteria summarized in Boxes 10-6 and 10-7. California pub- are met. lished new draft regulations in November 2011 and There are several potential advantages of devel- expects to finalize them in the first half of 2012. oping national regulations for water reuse. First, it would be more efficient for EPA to develop risk-based regulations than the effort that would be required if National Standards for Reuse? regulations were developed by each individual state. The previous section highlights how water reuse EPA could tap its internal experts with various areas of regulations and guidelines vary considerably from state expertise that would be needed to establish scientifically to state in terms of the reuse applications covered, supportable criteria (e.g., public health, microbiology, treatment and water quality requirements, design or treatment technology, risk assessment). Further, na- operational controls, the rationale for setting require- tional water reuse regulations may reduce the potential ments, and the specific objectives of the regulations or of local regulatory decisions that may not be support- guidelines. Although the EPA’s Guidelines for Water able from a public health or environmental standpoint. Reuse (EPA, 2004) were developed for states that have On the basis of a survey of stakeholders, including not yet developed their own regulations or are updating water reuse practitioners and state and federal regula- their existing regulations, they have not significantly tors, Nellor and Larson (2010) identified the following affected the lack of uniformity among state regulations. advantages of national regulations for water reuse: Further, they were not developed in a rigorous manner • Because the development of regulations is a rig- comparable to, for example, the SWDA or CWA, and orous process with public input, compliance with the thus were not subjected to the scrutiny required of regulations should provide enhanced public confidence formal federal regulatory processes. that a water reuse project is safe. The imbalance that results from different standards • The regulations should establish credibility of in each state is demonstrated by food crops grown with and public confidence in water reuse. reclaimed water where, for example, lettuce grown in • The regulations should create minimum uniform standards relative to the end use that are applied across one state may have been irrigated with different quality the country, thereby eliminating concerns about lack water than lettuce grown in another state, yet both may of consistency among state regulations/guidelines in be sold anywhere. A consumer does not know the dif- terms of public health protection. ferent standards in each state, but rather assumes that • The regulations should eliminate the gap for the level of protection is the same regardless of where states without rules. the lettuce was grown. From the industry perspective, an instance of food contamination will injure agricul- There are also some disadvantages outlined by Nellor tural growers everywhere, so that even a grower in a and Larson (2010) that may result from the promulga- state with stricter standards could be negatively affected tion of national regulations for reuse: by a product from a state with more relaxed regulations. The typical model in environmental regulation is • It would be necessary to amend the CWA or SWDA, or create a new enabling federal law to provide one in which Congress creates a regulatory program authorization for the development of regulations for in broad outline, and EPA is entrusted by Congress these uses. Changes to national statutes are difficult with giving it more specificity, including setting stan- and resource intensive. dards for health and environmental protection. Most • To address national variation and uncertainty, federal statutory schemes allow EPA to delegate the federal regulations generally incorporate a margin of administration of the program to a state (or tribal) safety. The resulting standards may be very conserva- tive. agency. Delegation is contingent upon the state creat- • More conservative standards could create ob- ing and maintaining a program that is as stringent as

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184 WATER REUSE BOX 10-6 California Draft Regulations for Potable Water Reuse The California Department of Public Health’s (CDPH’s) existing California Water Recycling Criteria, which were adopted in 2000, outline the requirements for recharging water supply aquifers with reclaimed water via surface spreading. According to the regulations, reclaimed water used to recharge water supply aquifers “shall be at all times of a quality that fully protects public health” (CDPH, 2009). Under the regulations, the CDPH can make project-specific recommendations based on factors such as treatment employed, effluent quality and quantity, soil characteristics, hydrogeology, residence time, and distance to withdrawal. CDPH embarked on drafting comprehensive groundwater recharge regulations for both surface spreading and injection projects several years ago that would replace the existing language in the Water Recycling Criteria and, although the draft regulations have gone through several iterations in the last decade, they have yet to be finalized and adopted. Until criteria are formally adopted, proposed groundwater recharge projects will be regulated on the basis of the most recent draft regulations (summarized in Table 10-4; CDPH, 2011), which are subject to substantial revision prior to adoption. The draft groundwater recharge regulations apply to planned projects that are operated for the purpose of recharging a groundwater basin designated as a source of municipal and domestic water supply or a project determined to be a groundwater replenishment reuse project by a California Regional Water Quality Control Board based on a project’s existing or projected replenishment of an affected groundwater basin. Based on a bill passed by the California Senate and approved by the governor in 2010 (California State Senate, 2010), the California Water Code (CSWRCB, 2011) was amended in 2010 to require CDPH to (1) adopt uniform water reuse criteria for indirect potable reuse for groundwater recharge by December 13, 2013; (2) develop and adopt uniform water reuse criteria for surface water augmentation by December 31, 2016, if an expert panel convened in response to the legislation finds that the criteria would adequately protect public health; and (3) “investigate and report to the Legislature on the feasibility of developing uniform water recycling criteria for direct potable reuse” by December 31, 2016. TABLE 10-4 Draft California Regulations for Groundwater Recharge into Potable Aquifers Water Quality Limits for Recycled Water Treatment Required Other Selected Requirements • ≥12-log virus • Industrial pretreatment and source control program Spreading • Initial maximum RWC ≤20% for spreading tertiary treated water reduction • Oxidationd • ≥10-log Giardia cyst • Filtratione • Initial maximum RWC for injection based on California Department of Public Health reduction • Disinfectionf (CDPH) review of engineering report and other information from public hearing • ≥10-log • ≥2-month retention (response) time undergroundg • Soil aquifer treatment • 1-log virus reduction credit automatically given per month of subsurface retention Cryptosporidium oocyst reduction • 10-log Giardia reduction and 10-log Cryptosporidium reduction credit given to spreading Spreading with full advanced • Drinking water projects that have at least 6 months’ retention time underground treatment MCLs (except for • Oxidation • Monitor recycled water and monitoring wells for priority toxic pollutants, chemicals with nitrogen) • Reverse osmosis state notification levels specified by CDPH, and unregulated constituents specified by CDPH • Action levels for lead • Advanced oxidation process • Operations plan and copper • Soil aquifer treatment • Contingency plan • ≤10 mg/L total • Spreading projects with full advanced treatment must meet the requirements for injection nitrogena projects, except that after one year of operation the project sponsor may apply for a reduced Injection • TOCb ≤0.5 mg/L/ • Oxidation monitoring frequency for any monitoring requirement RWCc • Reverse osmosis • Advanced oxidation process aThe total nitrogen limit can be met in the recycled water or in the combination of recycled water and diluent water applied at the recharge site. bTotal organic carbon. cThe recycled water contribution (RWC) is the quantity of recycled water applied at a recharge site divided by the sum of the quantity of recycled water applied at the site and diluent water. dOxidized wastewater is wastewater in which the organic matter has been stabilized, contains dissolved oxygen, and is not liable to become putrid. eFiltered wastewater is oxidized wastewater that (1) has been coagulated, filtered through media, does not exceed an average turbidity of 2 NTU, does not exceed 5 NTU more that 5% of the time within a 24-hour period, and does not exceed 10 NTU at any time; or (2) has received membrane treatment and does not exceed an average turbidity of 0.2 NTU more than 5% of the time within a 24-hour period and does not exceed 0.5 NTU at any time. fDisinfected recycled water is water that has been disinfected by either chlorine that provides a CT (product of total chlorine residual and modal contact time) ≥450 at all times with a modal contact time of at least 90 minutes; or a disinfection process that inactivates/removes at least 5 logs of MS2 bacteriophage or polio virus. The 7-day median total coliform concentration in the disinfected water cannot exceed 2.2/100 mL. gMust be verified by a tracer study. SOURCE: Adapted from CDPH (2011).

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185 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES BOX 10-7 Florida Potable Reuse Regulations The Florida reuse rule (Fla. Admin. Code, Chapter 62-610) includes treatment and water quality requirements for groundwater recharge via infiltration basins or injection and for indirect potable reuse by surface water augmentation (Table 10-5). The rules address rapid-rate infiltration basin systems and absorption field systems, both of which may result in groundwater recharge. Although groundwater recharge projects located over potable aquifers are not specifically designated as indirect potable reuse systems, they could function as an indirect potable reuse system. However, rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water are considered as effluent disposal systems. Loading to these surface infiltration systems is limited to 9 inches/d (23 cm/d). Reclaimed water from systems having higher loading rates or a more direct connection to an aquifer than normally encountered must receive at least secondary treatment, filtration, and disinfection. The treated water must meet primary and secondary drinking water standards. The Florida regulations include requirements for planned indirect potable reuse by injection into water supply aquifers and augmentation of surface supplies. For injection, a minimum horizontal separation distance of 500 ft (150 m) is required between reclaimed water injection wells and potable water supply wells. The injection regulations pertain to groundwaters that are classified as potable aquifers. The Florida reuse regulations identify discharges to Class I surface waters (public water supplies) as indirect potable reuse. Wastewater discharges to watercourses that are less than 24 hours’ travel time upstream from Class I waters also fall under the definition of indirect potable reuse. Wastewater outfalls for surface water discharges cannot be located within 500 ft (150 m) of existing or approved potable water intakes within Class I surface waters. Pilot testing is required prior to implementation of injection or surface water augmentation projects. TABLE 10-5 F lorida Rules for Groundwater Recharge and Indirect Potable Reuse Type of Use Treatment Water Quality Limits • ≤200 fecal coli/100 mL Groundwater recharge • Secondary • ≤20 mg/L CBOD (Rapid infiltration basins) • Disinfection • ≤0 mg/L TSS • ≤12 mg/L NO3 (as N) Groundwater recharge • Secondary • No detectable fecal coli/100 mL ≤20 mg/L CBOD (Rapid infiltration basins in unfavorable • Disinfection • ≤5.0 mg/L TSS hydrogeological conditions [e.g., karst areas]) • Filtration • • ≤10 mg/L total N • Primarya and secondary drinking water standards Groundwater recharge (Injection to • Secondary • No detectable total coli/100 mL groundwaters having TDS < 3,000 mg/L) ≤20 mg/L CBOD • Disinfection • ≤5.0 mg/L TSS • Filtration • ≤3.0 mg/L TOC • Multiple barriers for control • ≤0.2 mg/L TOXb of pathogens and organics • ≤10 mg/L total N • Pilot testing required • • Primarya and secondary drinking water standards Groundwater recharge (Injection to • Secondary • No detectable total coli/100 mL ≤20 mg/L CBOD groundwaters having TDS 3,000–10,000 mg/L) • Disinfection • ≤5.0 mg/L TSS • Filtration • ≤10 mg/L total N • • Primary drinking water standardsa Indirect potable reuse • Secondary • No detectable total coli/100 mL ≤20 mg/L CBOD (Discharge to Class I surface waters (used for • Disinfection • ≤5.0 mg/L TSS public water supply) • Filtration • ≤3.0 mg/L TOC • ≤10 mg/L total N • • Primarya and secondary drinking water standards • WQBELsc may apply a W ith some exceptions, e.g., asbestos. bTOX= total organic halogen. cWQBELs are water quality-based effluent limitations to ensure that water quality standards in a receiving body of water will not be violated. SOURCE: Adapted from Fla. Admin. Code, Chapter 62-610.

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186 WATER REUSE environmental protection, and economic growth. Pub- stacles for promoting and/or continuing to implement reuse projects in states with existing standards that are lic policy processes take the form of feasibility studies, less stringent than the federal regulations. environmental review, approval of funding, and zoning • Almost certainly, states would retain the legal au- and siting of facilities, nearly all of which are subject thority to prescribe more stringent regulations, thereby to public hearings. There are also robust dialogues eliminating uniformity. in letters to the editors, blogs, public meetings, and • The development and promulgation of the regu- elsewhere. The goals of these processes are to inform lations may take a significant amount of time and resources. the public of pending decisions, seek public input, and in some cases to seek direct public approval. Another There are other potential disadvantages associated source of public review occurs when state or national with national regulations. National standards may not funding is sought for reuse projects that have extensive be sensitive to local or regional conditions and could nonlocal benefits. limit flexibility at the local level. Conflicts could arise In this section, research on public perception with regarding compatibility with existing state wastewater respect to water reuse is discussed. Additionally, the discharge requirements, environmental controls, or role of communication in successful reuse projects is other regulations or statutes. It may be difficult to rec- examined. The bulk of the research on these issues has oncile differences or conflicts between national criteria occurred in countries outside of the United States. In and existing state water reuse standards, policies, or this section, the committee briefly reviews research guidelines. For example, if national criteria were more findings on public perception worldwide, but examines restrictive than a state’s criteria, the national criteria data from the United States in somewhat more detail. would override local criteria. In such cases, it may result Public perception with respect to water reuse has in considerable cost to upgrade existing projects, call been studied with increasing interest in the United into question past practices in the state, and poten- States and Australia since the mid-1990s (summarized tially damage the credibility of the regulatory agency. in Russell and Lux, 2006), and with interest expand- All these present challenges that a national regulatory ing globally since the early 2000s (e.g., Jeffrey, 2002; program would need to address. Al-Kharouf et al., 2008; Ching, 2010; Domenech and The committee concludes that there are important Sauri, 2010). The long and challenging drought experi- inconsistencies among existing water reuse regula- enced by Australia in the 2000s focused intellectual and tions/guidelines. Reclaimed water is of ever-growing policy attention on water reuse, with extensive research importance as an integral component of the nation’s on public perception and policy processes emerging. water resources portfolio, and action to embark on the Beliefs about the importance of public perception to the development and implementation of risk-based na- successful establishment of water reuse projects range tional water reuse regulations would allow the nation to from “crucial importance” (Marks et al., 2008) to one more efficiently and effectively maximize this resource. factor among many (Stenekes et al., 2006). Regulations can be crafted that do not stifle innovation Fear of contaminated water (or anything that is but allow for new and innovative treatment and quality perceived to be contaminated) is a common human assurance processes. response. Numerous factors influence risk perception with respect to water, including sensory input (odor and taste), delivery context (tap vs. bottle, visual cues from PUBLIC INVOLVEMENT AND ATTITUDES surface waters), prior experience with the water, sources Planning for water reuse projects regularly involves of information (informal, interpersonal), level of trust public involvement and evaluation, which influence the in the water purveyor, and one’s perceived control over type of reuse projects pursued and whether the project the quality of the water (Doria, 2010). Water reuse will move forward (Hartley, 2006). Proposed water projects necessarily involve the use of water that was reuse projects (especially potable reuse projects) have once contaminated. The perception that something is numerous aspects for the public to consider, including contaminated can trigger a strong, immediate reaction public health, public finance, local land use, regional of revulsion (see Box 10-8; Rozin and Royzman, 2001;

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187 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES al., 1982; Slovic, 1987, 1993; Slovic et al., 2002, 2004). BOX 10-8 Surveys and experiments have shown that people of- Public Discourse on Water Reuse in ten connect perceived benefits of an activity with their Pembroke Pines, Florida evaluation of its risk: the more they think they will benefit, the lower they consider its risk. This approach A new water reuse facility has been proposed for Pembroke is different from a scientific evaluation of risk, which Pines, Florida. The city of 150,000 people plans to inject 7 would not consider the benefits in any quantitative risk MGD of wastewater into the Biscayne Aquifer, rather than pip- assessment. Thus, there is a predisposition among those ing it to an ocean outfall. The effluent would receive primary, secondary, and reverse osmosis membrane treatment prior who dislike water reuse to believe it puts them at risk. to injection. Restoring flows into the Biscayne Aquifer, which Willingness to use reclaimed water is, in part, a is shared by several cities, is required by the regional water function of the intended use, with willingness higher management authority. for uses that minimize human contact, including ir- Although this project is still in the study phase, patterns rigation, car washing, and other cleaning (Bruvold, of communication surrounding the disgust response and 1988; Hills et al., 2002; Dolnicar and Schäfer, 2009; concerns over trace organic chemicals are already emerg- ing. A local newspaper began its review article of the project Hurlimann and Dolcinar, 2010). In a nationwide survey with this sentence: “The water in Pembroke Pines toilet of attitudes toward potable reuse, Haddad et al. (2010) bowls may soon show up in the drinking glasses of South reported that 38 percent said they would be willing to Floridians from Miami to Boca Raton” (Barkhurst, 2011). The drink “certified safe recycled water,” 49 percent were article quotes an environmental activist: “You can’t remove uncertain, and 13 percent said they would refuse to all pharmaceuticals from the water. It can’t be done. You are drink the water. This result, especially the small but putting drugs into our drinking water—Tylenol, birth control medication, antipsychotics.’’ The article later quotes a water not insignificant number of individuals who initially agency official who comments positively on available water say they would refuse such water, is consistent with treatment technologies. the reported experience of water agencies that have This is a common pattern in public communication over proposed water reuse projects. The survey showed few proposed water reuse facilities. The debate has been framed as demographic or geographic differences in attitudes disgusting water source that threatens public health vs. scien- toward potable reuse. However, studies outside the tific demonstrations of water need and safety. The debate also is framed as the public (in opposition) vs. the water agency United States have found weak but significant demo- (in support), which departs from the ideal of water agencies graphic differences in water-related risk perception (Po playing the role of neutral implementer of the public’s wishes. et al., 2003; Hurlimann, 2008; Doria, 2010). Hurli- Instead, the public would be best served by informed public mann (2008), for example, found that males, people discourse on a wide range of topics pertaining to water reuse, older than age 50, and people with college degrees including relative risks compared to other water supply alter- were more willing to use reclaimed water for personal natives and sources already used widely today (see Chapter 7). uses (including showering, clothes washing, drinking). A general criticism of this line of research is that it does not analyze actual behavior and use of reclaimed water but instead focuses on the stated intentions of Nemeroff and Rozin, 1994). Although technology is respondents. Saying one is willing to reuse water in the available to treat such water to meet or exceed drink- hypothetical is not the same as actually doing so, ac- ing water standards (see Chapter 4), members of the cording to Mankad and Tapsuwan (2011), who call for public may remain skeptical of such claims (Haddad et more research on communities already using decentral- al., 2010). The history of water matters to many people ized water reuse systems (e.g., residence-scale reuse). more than the type and concentrations of impurities Part of the challenge of public acceptance of water remaining in the water. This can result in a public pref- reuse hinges on perception of the origins of the water erence for lower quality water emerging from a “natural” and whether it can be considered “natural” (see also dis- aquifer or river over higher quality water emerging di- cussion of environmental buffers in Chapter 2). Survey rectly from an advanced wastewater reclamation facility. results showed that individuals’ trust in the water as a The research field of judgment, risk perception, supply for drinking improved if the reclaimed water is and decision making is well established (Kahneman et

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188 WATER REUSE passed through systems perceived to be natural. Aquifer als who were strongly opposed to indirect potable reuse storage for 10 years was favored over aquifer storage for could be influenced by paragraphs that cast water reuse 1 year, and passing water down a swift-flowing river in a positive light. Macpherson and Slovic (2011) found for 100 miles was preferred over passing water down a that the water reuse profession does not have standard 1-mile stretch. Aquifer storage overall was preferred to definitions for commonly used technical terms, and passage down a river (Haddad et al., 2010). this causes confusion among customers. They have According to Haddad et al. (2010), local inde- generated a glossary of terms and advocate that the pendent (e.g., university) scientists are viewed by the profession adopt it as standard terms and definitions. public as the most credible sources of information on The sophistication of communication between reclaimed water (see Table 10-6), because they combine water agencies and the public continues to evolve topical expertise and knowledge of the local situation (Box 10-9). There is more public outreach, including and have no professional stake in water management visitor centers and tours at water reclamation facili- decisions. Dolnicar and Hurliman (2009), in qualitative ties, more Web sites, and better communications with interviews, found friends and relatives to be the most regional political leaders and media outlets. Surveys in trusted sources of information on whether to drink Australia by Dolnicar et al. (2010) and in Barcelona, reclaimed water. However, those negatively predisposed S pain, by Domenech and Sauri (2010) found that to potable reuse were least willing to be convinced of knowledge of the water treatment process increased its efficacy by anyone, although relative rankings of acceptance of water reuse. One often cited example trusted sources were generally consistent among all of public relations success is Singapore’s NEWater respondents regardless of their willingness to drink Facility, which invested extensively in a visitor center. reclaimed water (Haddad et al., 2010). Positive media coverage of water reuse in Singapore compared with Australia is also recognized as a factor influencing the success of water reuse (Ching and Yu, Public Communication 2010). However, it is difficult to ascertain if the absence The choice of words matters when describing of domestic opposition to the NEWater program is be- water reuse. Menegaki et al. (2009), studying farming cause of the successful visitor center, positive press cov- behaviors on the Island of Crete, identify differences in erage, cultural differences, national policies that limit farmers’ willingness to pay for reclaimed water based on civic discourse, or all of these reasons. In the United whether it is called “recycled water” or “treated waste- States, tours of water reuse facilities are common, but water.” Haddad et al. (2010) found that even individu- to date, research has not been undertaken to link tours TABLE 10-6 Trusted Source of Information on Reclaimed Water Safety: Overall and by Willingness to Drink “Certified Safe Recycled Water” on a Scale of 0-10 Overalla Unwillingb Uncertainb Willingb An actor or athlete you admire hired to represent the water treatment facility 2.14 1.05 1.79 2.54 Your neighbor 3.20*** 2.30 2.83 3.64 A private firm hired by the water treatment facility 4.11*** 2.55 3.40 4.87 The manager of the water treatment facility 4.62*** 3.00 4.07 5.27 Staff of the water treatment facility 4.67 3.32 4.00 5.36 A doctor who lives nearby 4.68 3.65 4.00 5.33 Someone who has drunk reclaimed water for years 5.06** 3.18 4.60 5.74 A board made up of engineers and other representative of the community 5.70*** 3.48 5.05 6.58 Engineers/inspectors from the federal government 5.88 3.78 5.02 6.85 Engineers/inspectors from the state government 5.95 4.02 5.09 6.86 A qualified scientist from a nearby university 6.59*** 5.15 6.25 7.08 aThe items are arranged from top to bottom in terms of increasing trust for the full sample (overall). Asterisks indicate that the value is significantly dif - ferent from the item immediately above it. * = p < .05, ** = p < .01, *** = p < .001 bBy willingness: ANOVAs on all rows for trust as a function of membership in the three groups are significant at p < .001. SOURCE: Haddad et al. (2010).

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189 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES BOX 10-9 Lessons Learned on Public Communication and Involvement in Redwood City, California Redwood City, located in the San Francisco Bay area, has 75,000 residents. By 2000, the city was exceeding its assured supply of 11 MGD (41,000 m3/d) from the Hetch Hetchy regional system, with demand projected to increase. After a study of supply alternatives, the city in 2003 settled on water conservation and water reclamation and reuse (supplying 1.8 MGD [6,800 m3/d]). In an otherwise politically active community, only two individuals attended a mandatory public meeting on environmental impacts held in 2002. These two individuals then formed the Safewater Coalition, which objected to use of reclaimed water for landscape irrigation in residential areas and in schoolyards, playgrounds, and parks. The Safewater Coalition focused public attention on the project, effectively using the Internet and local media. The Redwood City Recycled Water Task Force was then formed, with equal balance of membership in favor and opposed to the project, and tasked to find 1.8 MGD in water reuse and/or additional water conservation. After 5 months of deliberation, the Task Force recommended and the City Council approved a plan that addressed some of the Safewater Coalition’s concerns. The Task Force plan would rely on 1.6 MGD water reuse and an additional 0.2 MGD in water conserva- tion, including artificial turf on the playing fields. Lessons from Redwood City focus more on tactics of public communications than on fundamental changes to project review and approval. The Redwood City experience highlights the importance of public acceptance of a project in addition to completion and certification of formal environmental impact reviews. In the case of Redwood City, which echoed the experience of Los Angeles and San Diego in the 1980s, opposition to a proposed reuse project did not emerge until very late in the formal review process. Additionally, the project exemplifies the capacity of a very small group of people (as few as one in the case of Redwood City) to impact a project’s progress and the power of the Internet as an organizing tool and source of information (and sometimes misinformation) on a proposed project. A public vote against a proposed water reuse facility in Toowoomba, Australia, also appears to have hinged on the actions of one citizen who adamantly opposed the project (van Vuuren, 2009). Water agency personnel were not, at first, prepared to respond with trusted sources of information for the community to address the Coalition’s claims. The Redwood City case also highlights the importance of extensive ongoing public communication on water issues in urban areas. Water is no longer a behind-the-scenes question of infrastructure development, implementation, and financing. It is now an issue of immediate and active public concern. Today, the Redwood City Recycled Water Project is considered to be successful and is supported by the community. In late 2002, it was perceived to be held up by a small, determined group. It represents the transition of water agencies into the current era of savvy communication between water agencies, the public, and political leaders. SOURCES: Ingram et al. (2006); M. Milan, Data Instincts, personal communication, 2009. and other improvements in public communication success of water reuse projects. Similarly, Stenekes et al. with achievement of other goals (e.g., maintaining or (2006), also writing in the Australian context, propose increasing public trust in the water supply, public sup- that a more productive public engagement is needed, port for investments in water infrastructure). including a better public understanding of the cost There are many reasons why a major infrastructure of water, greater participation of the public in water project gets delayed or canceled. Public perception that planning, and institutional reforms that would clear water produced from a water reclamation facility is the way for water agencies to pursue more sustainable objectionable could be one, but public perception may water technologies and strategies. Public perception not be determinative. Rather, a richer understanding and agency–public communications matter but should of the social, technical, procedural, and policy-related be understood in a larger economic, procedural, and aspects of a particular proposal may be the more reli- governance context. able determinant of whether a project proceeds (Russell and Lux, 2009). Marks and Zadoroznyj (2005) identify CONCLUSIONS institutional and knowledge factors, including the ex- Water rights laws, which vary by state, affect tent of social capital (e.g., homeowners associations), the ability of water authorities to reuse wastewater. accountability of water managers for promised water quality, public awareness of environmental problems States are continuing to refine the relationship between and the benefits of water reuse, and public trust in wastewater reuse and the interests of downstream enti- reclaimed water and water managers as crucial to the ties. Regardless of how rights are defined or assigned,

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190 WATER REUSE projects can proceed through the acquisition of water the health of consumers who obtain potable water from rights after water rights have been clarified. The right supplies subject to many different sources of contami- to use aquifers for storage can be clarified by states nants but does not include specific requirements for through legislation or court decision. The clarifica- treatment or monitoring (see Chapters 4 and 5) when tion of these legal issues can provide a clearer path for source water consists mainly of municipal wastewater project proponents. effluent. Presently, many potable reuse projects include Scientifically supportable risk-based federal reg- a dditional controls (e.g., advanced treatment and ulations for nonpotable water reuse would provide increased monitoring) in response to concerns raised uniform nationwide minimum acceptable standards by state or local regulators or the recommendations of of health protection and could facilitate broader expert advisory panels. Adjustment of the SDWA to implementation of nonpotable water reuse projects. consider such requirements when planned or de facto Existing state regulations for nonpotable reuse are potable reuse is practiced could serve as a mechanism developed at the state level and are not uniform across for achieving a high level of reliability and public health the country. Further, no state water reuse regulations or protection and nationwide consistency in the regulation guidelines for nonpotable reuse are based on rigorous of potable reuse. In the process, public confidence in risk assessment methodology that can be used to deter- the federal regulatory process and the safety of potable mine and manage risks. EPA has published suggested reuse would be enhanced. Application of the legislative tools afforded by guidelines for nonpotable reuse, which are based, in the CWA and SDWA to effluent-impacted water part, on a review and evaluation of existing state regula- s upplies could improve the protection of public tions and guidelines and are not based on rigorous risk health. Increasingly, we live in a world where munici- assessment methodology. Federal regulations would not only provide a uniform minimum standard of pro- pal effluents make up a significant part of the water tection, but would also increase public confidence that a drawn for many water supplies, but this is not always water reuse project does not compromise public health. openly and transparently recognized. Recognition Scientific research, which requires resources beyond the of this reality necessitates increased consideration of reach of most states, should inform the development ways to apply both the CWA and the SDWA toward of nonpotable reuse regulations at the federal level to improved drinking water quality and public health. For address the wide range of potential nonpotable reuse example, the CWA allows states to list public water applications and practices. If federal regulations were supply as a designated use of surface waters. Through developed through new enabling legislation, individual this mechanism, some states have set up requirements states would maintain the authority to impose more on discharge of contaminants that could adversely af- stringent criteria at their discretion. Therefore, EPA fect downstream water supplies. Updates to the National Pretreatment Program’s should fully consider the advantages and disadvantages list of priority pollutants would help ensure that wa- of federal reuse regulations to the future application of ter reuse facilities and de facto reuse operations are water reuse to address the nation’s water needs while protected from potentially hazardous contaminants. appropriately protecting public health. Modifications to the structure or implementa- The National Pretreatment Program has led to signifi- tion of the SDWA would increase public confidence cant reductions in the concentrations of toxic chemicals in the potable water supply and ensure the presence in wastewater and the environment. However, the list of appropriate controls in potable reuse projects. Al- of 129 priority pollutants presently regulated by the though there is no evidence that the current regulatory National Pretreatment Program has not been updated framework fails to protect public health when planned since its development more than three decades ago, or de facto reuse occurs, federal efforts to address po- even though the nation’s inventory of manufactured tential exposure to wastewater-derived contaminants chemicals has expanded considerably since then, as has will become increasingly important as planned and our understanding of their significance. Updates to the de facto potable reuse account for a larger share of National Pretreatment Program’s priority pollutant list potable supplies. The SDWA was designed to protect can be accomplished through existing rulemaking pro-

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191 SOCIAL, LEGAL, AND REGULATORY ISSUES AND OPPORTUNITIES cesses. Until this can be accomplished, EPA guidance them evaluate proposals and frame the issues. A general on priority chemicals to be included in local pretreat- investment in water knowledge, including improved ment programs would assist utilities implementing public understanding of a region’s available water sup- potable reuse. plies and the full costs and benefits associated with Enhanced public knowledge of water supply and water supply alternatives, could lead to more efficient treatment are important to informed decision mak- processes that evaluate specific projects. Public debate ing. The public, decision makers, and decision influenc- on water reuse is evolving and maturing as more proj- ers (e.g., members of the media) need access to credible ects are implemented and records of implementation scientific and technical materials on water reuse to help are becoming available.

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