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Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater (2012)

Chapter: 10 Social, Legal, and Regulatory Issues and Opportunities

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Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
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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

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

the treated effluent and when and how the owner can use the resource. Another perspective is to ask whether the use of wastewater constitutes a “new” water supply; it might in a region where flows otherwise are released to the ocean, but not in a region where a downstream user relies on them.

Approaches to Water Reuse Under the Prior Appropriation Doctrine

The primary conflict with respect to water rights stems from downstream water rights holders and the potential for reuse activities to impair their use of the water. Some states give water treatment facilities greater rights to treated water, whereas other states may protect downstream senior rights holders. If the water reuse proponent must purchase a separate water right to the wastewater (i.e., the locality does not have the right to retain its treated wastewater), the costs of reuse will increase substantially.

In general, the owner of a wastewater facility has the ability to reuse the water without purchasing it from another. However, this is not always the case. In Utah the right to reuse must be specified in the operator’s water permit, and in New Mexico the operator’s right to wastewater may be dependent on its consumptive rights (which can be less than the water it discharges). In the following paragraphs, a brief survey of how states have approached the reuse of wastewater is presented.

In Colorado, wastewater can be used by the municipal 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 from another basin or pumped from groundwater. These wastewaters would be available for use by the city that operates the wastewater treatment works. This concept provided the ability for Denver to reuse waters that had been piped from the Colorado River basin into the Platte basin (Tarlock, 2009).1 Further, the courts have held that there is no right in downstream entities to appropriate wastewater of another if that water has been “developed.”2

California’s reuse statute provides that “The owner of a waste water treatment plant operated for the purpose of treating wastes from a sanitary sewer system shall hold the exclusive right to the treated waste water as against anyone who has supplied the water discharged into the waste water collection and treatment system” (California Water Code § 1210).

In Utah, the right to reuse water must be specified in the original water right where wastewater reuse is included as a beneficial use (Schempp and Austin, 2007). A public agency that owns or operates a wastewater treatment facility may use, contract for the use, or reuse such water obtained under a water right under certain conditions.3 Water rights do not automatically attach upon treatment. Most basins in Utah are fully appropriated, and therefore a significant part of the reuse program is dependent on contractual arrangements that provide wastewater treatment facility owners with rights to the treated wastewater (Schempp and Austin, 2007).

In Arizona, the State Supreme Court held that the entity that treats the wastewater is entitled to put it to any reasonable use.4 This essentially provides wastewater reuse facilities the rights to all the water they treat. The court explained that the rule “will allow municipalities to maximize their use of appropriated water and dispose of sewage effluent in an economically feasible manner.” The court added that “the spirit and purpose of Arizona water law … is to promote the beneficial use of water and to eliminate waste of

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1 See City of Thornton v. Bijou Irrigation Co., 926 P.2nd 1, 65-78 (1996).

2 The issue of water rights and water reuse was determined by the Colorado Supreme Court beginning with Burkhar v. Meiberg, where the Colorado Supreme Court determined there was no vested right to the captured irrigation wastewater of another (86 P. 98 (1906)). In 1972, the court in Metro Denver Sewage v. Farmers Reservoir recognized that this “wastewater rule” was also applicable to municipal wastewater effluent (499 P.2d 1190 (1972)). Subsequently, the court clarified the wastewater rule distinguishing that wastewater, as opposed to return flow and seepage, was not subject to appropriation by downstream entities (City of Boulder v. Boulder & Left Hand Ditch Co., 557 P.2d 1182 (1976)).

3 Such restraints include that the water right is administered as a municipal water right, the reuse is consistent with the underlying water right, and the reuse is approved by both the Utah Water Quality Board and the State Engineers Office (Utah Code Ann. § 73-3c-201(1) and 73-3c-202(1)a-c.

4 Senior water rights holders downstream from a municipal wastewater treatment plant alleged impairment as a result of the treatment plant’s sale of its treated effluent to other parties, which significantly decreased discharges to the stream. The court held that “the ‘producer’ of the effluent is a senior appropriator, those who have appropriated the effluent gain no right to compel continued discharge.” Ariz. Pub. Serv. Co. v. Long, 773 P.2d 988, 991-97 (Ariz. 1989).

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

this precious resource.”5 However, this reasoning has been criticized because “one equally could argue that in a highly appropriated state, the water is not wasted if it is returned to the watercourse and subsequently appropriated downstream—as was the situation in this case” (Schempp and Austin, 2007).

In New Mexico, the State Supreme Court ruled in Reynolds v. City of Roswell that the city’s “sewage effluent is private water which the City may use or dispose of as it wishes.”6 Neither downstream users of the discharged wastewater effluent nor the state engineer can compel the continued supply of treated effluent without a contract, grant, dedication, or condemnation.7 The Supreme Court ruled that permit conditions are allowed only to protect existing water rights.

It is important to note that the principles of water rights are not the only ones under which water flows can be protected downstream. Environmentally based standards, such as instream flow rights, also could affect the ability to reuse wastewater flows.

In summary, municipal wastewater treatment plant operators in many states have the right to reuse wastewater effluent, but in others it may be necessary to procure water rights to do so. The application process, described below, can affect these rights.

Water Rights Application Process Under the Prior Appropriation Doctrine

As would be expected, states’ application processes for reuse projects range from simple to complex. Key aspects of the application process for water rights to reclaimed wastewater by state are listed in Table 10-1. A common feature is that downstream water users are protected from impairment by upstream users. Generally, impairment is used in water law to indicate that a given user’s water right has been reduced or in some way negatively impacted by another user. If reuse represents a change of use, generally the applicant must demonstrate “no injury” to other users (Tarlock, 2009). States tend to acknowledge downstream uses that have become established in reliance on wastewater discharges (e.g., California). In some states environmental protection of the stream is addressed in the application stages. Finally the burden of proving whether impairment will occur is significant, and it matters where the burden is imposed. Schemp and Austin (2007) note that when the burden is placed on the water utility, the costs of the reuse project can increase. When the burden is placed on a state agency, the utility burden is reduced but the approval time may be lengthened while the state calculates the expected consequences to the hydrological system. When the burden of proving impairment is left to the downstream user, upfront project costs are reduced but the chance of subsequent litigation is increased, with less long-term confidence in a utility’s water rights.

Water Reuse Under the Riparian Doctrine

The riparian doctrine is used in the more humid Eastern states and essentially bases the right to use rivers on proximity to the waterway. Hence, the water right resides in the “riparian” land owner, in contrast to the prior appropriation doctrine where land owners who are not adjacent to the water source can acquire water rights. The doctrine has evolved with changing circumstances, and modern practice involves administrative requirements and the ability to transfer water rights. Generally the wastewater operator would be able to reuse wastewater unless it would likely cause harm to downstream riparian rights holders.

Approaches to Water Reuse Under the Riparian Doctrine

In general, water rights are less contentious in riparian states. In the eastern United States, Florida is at the forefront of water reuse and recycling activities. Water reuse is statutorily encouraged and the state recognizes that the “promotion of water conservation and reuse of reclaimed water, as defined by the department, are state objectives and considered to be in the public interest” (Fl. Stat. § 373.250[1]). All five of Florida’s Water Management Districts have reuse programs and, generally, reuse is regulated under consumptive use permits. In New Jersey, the state has directed the Department of Environmental Protection (NJDEP) 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 permitting scheme in Florida and New Jersey are provided in Table 10-1.

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5 Id. at 997.

6 Reynolds, 654 P.2d at 539 (1982).

7 Reynolds v. City of Roswell, 654 P.2d 537 (1982).

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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).

a See http://www.dep.state.fl.us/water/reuse/wmdprog.htm.

Rights to Aquifer Storage

A water reuse project may rely on a reservoir to store remediated water prior to its distribution. The rights to reservoir storage are well understood: the project may own the land and the reservoir, or may buy storage rights in a reservoir owned by another. If, however, the project relies on groundwater storage, a different legal problem is presented.

The right to use of an aquifer to store water may be addressed through a statutory framework, in which case rights are likely to be defined. In some states, such

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

as Arizona, Idaho, Oregon, and New Mexico, statutory schemes address when water may be stored and how rights to its withdrawal are governed.

Rights to store water in the subsurface are generally not controlled by the ownership of the overlying property. A recent case in Colorado8 explained why ownership of the overlying property did not create a property right in an aquifer below the property. The proposal would have used an aquifer that covered 115 square miles of land in South Park, Colorado. The overlying landowners contended that the use of the aquifer would constitute trespass, in the absence of a contract giving permission for the use of the aquifer. The state Supreme Court rejected this argument, stating that “When parties have use rights to water they have captured, possessed, and controlled, they may place that water into an aquifer by artificial recharge and enjoy the benefit of that water as part of their decreed water use rights, if the aquifer can accommodate the recharged water without injury to decreed senior water rights.”9

* * *

In summary, the ability to utilize wastewater for reuse is controlled by state water law. As water becomes scarcer, states will need to address the differing interests in wastewater. Generally, in regions where the wastewater generator has unambiguous ownership of the water, reuse is more easily facilitated. However, in arid states, reuse may be affected by the interests of downstream water users.

THE FEDERAL WATER QUALITY REGULATORY FRAMEWORK

As discussed in earlier chapters, effectively managing water quality concerns is central to the protection of public health and the environment in water reuse projects. Although there are no federal regulations specific to water reuse, several federal regulations have a bearing on water reuse operations. Regulations addressing the quality of discharges to surface waters (e.g., the Clean Water Act) or discharges to municipal wastewater treatment plants (e.g., the National Pretreatment Program) affect the quality of water used for reuse, including de facto reuse scenarios. Regulations also affect the treatment level and quality of wastewater, which can affect the extent of treatment required for water reuse applications. Water quality regulations involving groundwater affect water reuse operations that use the subsurface for additional engineered natural treatment and storage. Drinking water regulations also affect the degree of reclaimed water treatment required. In summary, while many aspects of water reuse are addressed by different federal regulatory programs, there is no integrated regulatory approach to this process. The following sections outline the various federal regulatory programs that affect water reuse operations.

The Clean Water Act and Wastewater Discharge

The Clean Water Act was developed to protect the health of the nation’s surface waters with the states (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 the United States and for regulating quality standards for surface waters. Water quality standards are adopted by states and include water quality criteria, designated uses of water bodies, and antidegradation provisions. These waters may be protected to very high standards, such as the protection of a cold-water fishery, or given lesser protection. Although the use of surface waters 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”). States can take drinking water use into consideration in standard setting under the Act, and there are a few who do so.

Discharges from municipal wastewater treatment plants were regulated in the earliest days of the Clean Water Act. These facilities are subject to National Pollutant Discharge Elimination System (NPDES) permits, which reflect national standards, and state (or tribal) requirements. The Act does not protect against all sources of pollution (e.g., non-point-source pollution and certain types of agricultural return flows) so that treatment is required for almost all waters drawn from surface sources.

Clean Water Act requirements also frequently limit the discharge of saline brines (or concentrate) from

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8 Board of County Commissioners of the County of Park v. Park County Sportsmen’s Ranch, LLP, 45 P.3d 693 (Colo, 2002))

9 Id. at 703-04.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

membrane treatment processes (e.g., reverse osmosis) to freshwater lakes and streams. Thus, the costs of reclaimed water treatment options for inland communities are affected by these water quality standards, which can vary across the states and even stream by stream.

One particular type of pollution—“indirect” industrial discharges to wastewater treatment plants—is regulated under the National Pretreatment Program, which was developed to reduce the discharge of industrial pollutants at their source. This program is administered locally, and reuse facilities can impose more stringent regulation for chemicals that are not sufficiently removed by conventional wastewater treatment (Box 10-1).

Future pretreatment program reviews conducted as part of requirements of the Clean Water Act (CWA § 301(d)) should be conducted with serious consideration of the increasingly intimate connection between domestic wastewater discharge and domestic water supply. Capturing contaminants at their industrial source can be an efficient method of keeping these constituents out of drinking water supplies from potable reuse projects and de facto reuse scenarios. The present 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 significance 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/

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

Pretreatment Program was established more than three decades ago as a result of the Toxics Consent Decree (Natural Resources Defense Council v. Train, 421 U.S. 60 (1976)) and the 1977 amendments to the Clean Water Act. The nation’s inactive inventory of manufactured chemicals has expanded considerably since that time, as has our understanding of their significance. Updates to the National Pretreatment Program’s list of priority pollutants would ensure that water reuse facilities and de facto reuse operations are protected from trace contaminants of concern. These updates can be accomplished through the existing rulemaking process. In the interim until such updates can be made, EPA should develop guidance on additional priority chemicals to include in enhanced local pretreatment programs in localities implementing potable reuse.

Consideration should also be given to expanding source control to residential releases of constituents of concern. Regional, statewide or national regulations could drive the development of less troublesome substitutes for constituents that are difficult to remove in wastewater systems. Moreover, if a pollutant source is a consumer product, regional, statewide, or national regulations may be required.

Federal Regulation for Injection or Infiltration of Reclaimed Water

As discussed in Chapters 2 and 4, numerous water reuse projects use subsurface injection or infiltration as part of the wastewater treatment and storage process. In some instances, aquifer recharge has additional purposes such as preventing subsidence or reducing saltwater intrusion into freshwater supplies. When water is stored through infiltration, rather than injection, state and local regulations rather than federal regulations, address the quality of the recharge water.

Aquifer recharge by direct injection and aquifer storage and recovery wells are regulated under the Safe Drinking Water Act (SDWA) as Class V wells under the Underground Injection Control (UIC) program (42 USC § 300h to 300h-4). The UIC program regulates the construction, operation, and permitting of wells where fluids are injected underground for storage or disposal to prevent contamination of underground drinking water resources. Reclaimed water injected into these wells is typically treated to meet both primary and secondary drinking water standards.

Under the existing federal regulations, Class V injection wells do not require a federal permit if they do not endanger underground sources of drinking water and comply with other UIC program requirements (49 CFR § 144.82). However, states may include additional requirements with regard to treatment, well construction, and water quality monitoring standards prior to permitting any injection of reclaimed water into aquifers that are currently being, or could be, used for potable supply.

U.S. Drinking Water Regulations: The Safe Drinking Water Act

The U.S drinking water regulations set standards that all drinking water treatment plants are required to meet, whether they use pristine water supply sources, supply water from potable reuse projects, or practice de facto reuse (see Box 10-2). This section provides a review of the regulatory framework and an evaluation of its adequacy for potable reuse.

BOX 10-2
Consideration of De Facto Water Reuse in U.S. Drinking Water Standards

The U.S. Public Health Service published drinking water standards in 1962 (U.S. Public Health Service, 1962) which provide some insight into concerns regarding de facto (or unplanned) water reuse. Although the standards specifically state that “The water supply should be obtained from the most desirable source which is feasible,” the document goes on to state: “If the source is not adequately protected by natural means, the supply shall be adequately protected by treatment.” The 1962 standards included alkylbenzene sulfonate (ABS), an anionic surfactant that was commonly used in detergent. The statement is made that “waters containing ABS are likely to be at least 10 percent of sewage origin for each mg ABS/liter present.” Also of pertinent interest was the use of carbon chloroform extract (CCE) in the 1962 standards as an indicator of anthropogenic organic compounds in water. A standard of 200 μg/L CCE was established to “represent an exceptional and unwarranted dosage of the water consumer with ill-defined chemicals,” whether from wastewater or other sources. The ABS and CCE standards promulgated in 1962 demonstrate that the federal government understood that de facto water reuse was occurring and that the contamination of drinking water from a diversity of synthetic organic contaminants was possible.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

In 1974, Congress authorized the SDWA, which provides authority to EPA to establish and enforce national standards for drinking water to protect public health. For priority contaminants, EPA determines a maximum contaminant level goal (MCLG), the level below which there is no known or expected risk to human health. A maximum contaminant level (MCL) is the highest concentration of a contaminant that is allowed in drinking water through an enforceable primary standard. MCLs are set as close to MCLGs as possible, considering best available treatment technology and costs versus benefits. Regular testing and reporting is required to ensure that contaminants do not exceed the MCL. For some contaminants, including microorganisms, EPA instead requires specific treatment techniques (TT) be used in the drinking water treatment process in lieu of an MCL. Individual states are allowed to adopt more stringent standards, if desired. In 2009, the EPA National Primary Drinking Water Regulations included three MCLs for disinfectants, four MCLs for radionuclides, five MCLs or TTs for microorganisms, 16 MCLs or TTs for inorganic chemicals, and 53 MCLs or TTs for organic chemicals (EPA, 2009b).

To assess the occurrence of unregulated contaminants that are suspected to affect drinking water, EPA established the Unregulated Contaminant Monitoring Regulation (UCMR) program under the SDWA. Under this program and a prior related program, the presence of unregulated contaminants in drinking water has been purposefully monitored across the country since 1988. The list of contaminants to be monitored is updated in the UCMR every 5 years.

EPA’s Contaminant Candidate List (CCL) process, introduced in the 1996 SDWA Amendments (Public Law 104-182), addresses unregulated contaminants that are known, or anticipated, to occur in U.S. drinking waters and that may require future regulation. The list specifically includes contaminants that (1) are not currently regulated under the SDWA, (2) may cause adverse health effects, (3) have been detected or are anticipated to occur in public water systems, and (4) may require regulation under the SDWA. The SDWA Amendments of 1996 require EPA to revise the CCL every 5 years, make regulatory determinations for at least five of the CCL contaminants, and identify up to 30 contaminants for monitoring under the UCMR. Every 6 years, EPA also must review existing regulations to determine if modifications are required. An overview of the CCL process and its development is provided in Box 10-3.

To move a contaminant from the CCL and into regulation, EPA must show that regulation would “provide a meaningful opportunity to reduce health risk.” This process can be extremely arduous, time-consuming, and controversial. The promulgation of a regulation is preceded by numerous opportunities for public comment.

New Approaches in Consideration for Contaminant Regulation

In March 2010, EPA announced a new drinking water strategy that outlines the principles to expand public health protection for drinking water (EPA, 2010a). The new strategy comprises four major points:

• Address contaminants as groups rather than one at a time so that enhancement of drinking water protection can be achieved cost-effectively.

• Foster development of new drinking water technologies to address health risks posed by a broad array of contaminants.

• Use the authority of multiple statutes to protect drinking water.

• Partner with states to share more complete data from monitoring at public water systems.

The grouping of contaminants is one of the key issues still remaining to be addressed. Addressing contaminants as groups is expected to lead to efficiencies in implementing effective treatment, provide efficiencies in developing and administering regulations based on coherent scientific and policy rationale, and foster development of new drinking water treatment technologies. Regulating groups of contaminants has been done in the past for specific contaminants (e.g., total trihalomethanes, a group of five haloacetic acids disinfection byproducts, radioactive substances).

In the new drinking water strategy, EPA continues to identify protection of source water as a key priority. Multiple statutes can be applied to control contaminants prior to their entering the water supply. This may include the use of “regulatory authority under the

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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 suggested 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 decision 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 February 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 (FIFRA) and Toxic Substances Control Act (TSCA) to ensure that decisions made for new and existing industrial chemicals are protective of drinking water” (EPA, 2010a). Together, the recent actions by EPA suggest that the regulation of discrete chemicals along with new treatment strategies may evolve into a more holistic approach that considers mixtures and groups of contaminants according to both treatment efficacy and health risk.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

Evaluation of the Sufficiency of the Federal Regulatory Framework When Applied to Reuse

The overarching question in relationship to potable water reuse is whether the CWA and the SDWA offer sufficient protection for water supplies that are derived from sources that include significant municipal wastewater effluent. As described in Chapter 2, there are many communities in the United States where municipal wastewater treatment plant discharges make significant contributions to the drinking water source. In some cases wastewater discharges are a principal source; thus, it can be argued that the SDWA has already been given this assignment. The SDWA and the CWA are the federal laws in place to protect the public from contaminants of wastewater origin. The SDWA alone applies to groundwater resources where septic systems or other sources of pollution contribute to the overall groundwater replenishment. Potable reuse projects may also be required to meet local or state regulations, above the requirements of the SDWA (state reuse regulations are discussed later in the chapter). However, de facto reuse scenarios are not subject to additional regulations.

As outlined earlier, the SDWA does provide limits (MCLs) for many chemical and biological contaminants, and a great deal of research, careful thought, and public dialogue underlies each of these limits. For contaminants regulated through MCLs, it is logical that the same limits would apply regardless of the source of the water. Where potable reuse is concerned, unregulated organic contaminants are an issue of special interest. The question remains as to the adequacy of existing drinking water regulations to protect public health where unregulated trace organic contaminants are concerned. In the following section, the committee examines the adequacy of CCL datasets for evaluating contaminants relevant to water reuse, the challenge of unknown contaminants, and the concern of greater microbial risks when raw water supplies contain significant amounts of municipal wastewater effluent.

Adequacy of CCL Data for Prioritizing Chemicals Relevant to Water Reuse

The CCL process (Box 10-3) is the primary mechanism for considering trace organic contaminants for regulation under the SDWA. Therefore, the committee first evaluated whether the CCL process adequately targeted contaminants for water reuse applications. From a review of the history of the CCL (see Box 10-3), it is evident that the process used to gather data for the CCL is evolving to become increasingly comprehensive in character. This becomes particularly clear in the third CCL (CCL3). Nevertheless, expanding the water quality monitoring datasets that inform the CCL process, particularly targeting contaminants encountered in municipal effluents, could improve the effectiveness of the CCL for reuse applications.

The CCL3 universe encompasses a wide array of potential water contaminants, both chemical and microbial. To generate the CCL3 universe, EPA relies primarily on databases that are electronically accessible at no charge. Although some databases include data on contaminants in municipal effluents, much of the data published in peer-reviewed literature is not included. The UCMR program under SDWA monitors unregulated contaminants in drinking water, but this program does not directly target contaminants in water reuse systems or municipal wastewater. At present, the data on unregulated contaminants in wastewater discharges primarily originate from research efforts conducted by utilities and academic research funded by water industry research foundations. The program would benefit from an effort to include these data in the CCL as well. Also, a federal monitoring program for unregulated contaminants directed toward wastewater effluents, mirroring the UCMR program for drinking water, would be highly beneficial in characterizing the occurrence of emerging contaminants in reuse (and de facto reuse) applications.

The Challenge of Unknown Contaminants

Although the SDWA provides protection to public health from priority chemicals and microbial contaminants, unknown chemical compounds (i.e., those that have not yet been identified through chemical analysis or whose occurrence has not been characterized) represent a primary concern in potable reuse projects that is not currently addressed by the SDWA. This concern also applies to conventional supplies to the extent that they are influenced by wastewater sources or exposed to independent sources of contamination. The current paradigm for discrete chemical monitoring of a pre-identified suite of contaminants will not be capable of addressing the large number of potential but currently

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

unknown contaminants within wastewater effluents. Although the inclusion of production volume and fate characteristics in the CCL3 is a reasonable start, truly identifying unknown chemicals will likely require advanced instrumental techniques and biological assays to provide more holistic and comprehensive screening tools to assess overall biological potency. Addressing contaminants by groups, in addition to individually, as employed by EPA in the original trihalomethane regulation (EPA, 1979), in subsequent regulations on disinfection byproducts (EPA, 1998b, 2003c) and as recently proposed by EPA for addressing contemporary issues (EPA, 2010a) could provide a useful strategy to address the challenge of unknowns.

An example of the emergence of one previously unknown chemical is N-nitrosodimethylamine (NDMA), which is commonly detected in potable reuse practices using combined chlorine for disinfection (see Box 3-2). Prior to widespread awareness of the chemical, NDMA was likely present in reclaimed and potable waters for quite some time at concentrations far greater than 0.7 ng/L, an EPA-established groundwater cleanup level (EPA, 2010b). Although nitrosamines were known to occur in potable water systems as early as the 1970s, NDMA did not gain widespread attention until the 1990s when it was discovered in elevated levels in California reuse systems (Najm and Trussell, 2001). NDMA was added to the CCL in 2009 and was included in the UCMR2.

Protection Against Greater Microbial Risks

As previously discussed, under the SDWA, viruses and protozoa are regulated by treatment techniques rather than MCL. Under the original Surface Water Treatment Rule (SWTR [42 USCA 300g-1(b)(2) (c)), all surface water treatment plants (unless exempt by waiver) had to have treatment sufficient to achieve 99.9 percent reduction in Giardia and 99.99 percent reduction in viruses, and the operational characteristics of treatment steps needed to achieve this were defined in guidance manuals. Bacterial pathogens are also presumed to be reduced. Under the Long Term 2 SWTR (LT2SWTR), utilities have been required to take measurements of the source water concentrations of Cryptosporidium to determine if further reductions of Cryptosporidium are required. This additional reduction (either by additional processes or by more intensive application of existing processes) would also result in increased reduction of bacteria, viruses, and Giardia. It is uncertain whether this regulatory framework is sufficient when source waters contain a high proportion of wastewater.

Failure of any of the treatment processes used to control pathogens would carry a risk of sporadic “breakthrough” of pathogens. To the degree that high levels of pathogen reduction are achieved by engineered processes, rather than use of a protected watershed (with lower levels of pathogens), it becomes more critical to maintain multiple barriers designed to improve reliability (see Chapter 5), whether in a planned reuse situation or in a conventional water system treating impaired surface waters.

Assessment of the Existing Federal Regulatory Framework for Potable Reuse

Reclaimed water used for potable reuse ultimately is required to meet all physical, chemical, radiological, and microbiological standards for drinking water. The SDWA will provide a measure of human health protection in terms of discrete chemicals based upon standards established and enforced by EPA (whether in the form of a numerical MCL or a treatment technique). However, as established earlier in this section, the SDWA does not yet establish standards for all potentially harmful constituents that may be present in wastewater. At present, the rules promulgated under the CWA and SDWA do not sufficiently address the public health concerns associated with reclaimed water for potable reuse. Also, the datasets used to develop the universe of contaminants considered for regulation are not yet sufficient to capture the range of contaminants that may be present in reclaimed water for potable reuse applications. More detailed reuse regulations exist in some states to address some, but not all, of these concerns (discussed in the next section). A discussion of potential advantages and disadvantages of federal reuse regulations follows the discussion of state reuse regulations. However, it is critical to understand that many drinking water systems in the United States utilize source waters with significant contributions from treated wastewater. Therefore, a revised regulatory paradigm that provides greater protection for potable reuse applications would need to consider the extent

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

of de facto reuse to provide equivalent protection for all consumers.

WATER REUSE REGULATIONS AND GUIDELINES

There are no federal regulations specifically governing water reclamation and reuse in the United States; hence, the regulation of water reuse rests with the individual states. However, the federal government does provide guidance to states via EPA’s Guidelines for Water Reuse, which “presents and summarizes recommended water reuse guidelines for the benefit of the water and wastewater utilities and regulatory agencies” (EPA, 2004). Regulations differ from guidelines in that regulations are legally adopted, enforceable, and mandatory, whereas guidelines are advisory and compliance is voluntary. Guidelines sometimes become enforceable requirements if they are incorporated into state regulations or water reuse permits.

Water reuse regulations and guidelines can be based on a variety of considerations but are directed principally at public health protection. For nonpotable reclaimed water applications, criteria generally address only microbiological and environmental concerns; however, existing regulations/guidelines for nonpotable reuse generally are not risk based. For potable reuse applications, health risks associated with pathogenic microorganisms and chemical constituents are both addressed. Reuse guidelines also generally address proper controls and safety precautions implemented at areas where nonpotable reclaimed water is used (e.g., warning signs, color-coded pipes, cross-connection control provisions). Additionally, guidelines may include water quality considerations that are unrelated to public health or environmental protection but are important to the success of specific nonpotable reuse applications (e.g., irrigation, industrial cooling).

The following sections summarize the federal reuse guidelines and state guidance and/or regulations for nonpotable and potable reuse.

EPA Guidelines for Water Reuse

EPA’s Guidelines for Water Reuse (EPA, 2004), which cover both potable and nonpotable reuse, are intended to provide reasonable guidance, with supporting information, for utilities and regulatory agencies in the United States. The guidelines are particularly useful for states that have not developed their own water reuse regulations or are revising or expanding existing regulations. The guidelines contain a plethora of information on various aspects of water reuse, including treatment technology, public health concerns, legal and institutional issues, public involvement programs, and suggested water quality treatment and quality requirements for different reuse applications. The remainder of this section focuses on the suggested water treatment and quality requirements included in the guidelines.

Table 10-2 summarizes the treatment processes and water quality limits in the guidelines for a variety of nonpotable and potable reclaimed water applications. Also included are monitoring frequencies, setback distances, and other controls for each water reuse application. The suggested guidelines pertaining to treatment and water quality are based primarily on wastewater reclamation and reuse data from the United States. The guidelines apply to the reclamation of domestic wastewater from treatment plants with limited industrial waste inputs and “are not intended to be used as definitive water reclamation and reuse criteria” (EPA, 2004).

Nonpotable Reuse

The EPA (2004) guidelines recommend two different levels of disinfection for nonpotable uses of reclaimed water. For applications where direct or indirect reclaimed water contact is probable or expected, and for dual-water systems where cross-connections are always possible, disinfection to a level of no detectable fecal coliform organisms/100 mL is advised (based on the median value of the last 7 days for which analyses have been completed). In any given sample, EPA (2004) also recommends that fecal coliforms not exceed 14/100 mL. For applications where no direct public or worker contact with reclaimed water occurs, the guidelines recommend disinfection to achieve a fecal coliform concentration not exceeding 200/100 mL (based on the median value of the last 7 days of analyses). It is noteworthy that the EPA guidelines for nonpotable reuse applications are not based on rigorous health risk assessment methodology. The World Health Organization and Australia do have nonpotable water reuse guidelines based on risk assessment, as described in Box 10-4.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

TABLE 10-2 U.S. EPA Suggested Guidelines for Water Reuse Applications

Type of Use Treatment Reclaimed Water Quality
Urban uses,a food crops eaten raw, recreational impoundmentsb • Secondaryc
• Filtration
• Disinfection
• pH = 6–9
• ≤10 mg/L BOD
• ≤2 NTUd
• No detectable fecal coli/100 mL e
• ≥1 mg/L Cl2 residualf
Restricted access area irrigation,g surface irrigation of orchards and vineyards, processed food crops,h nonfood crops,i aesthetic impoundments,j construction uses,k industrial cooling,l environmental reusem • Secondaryc
• Disinfection
• pH = 6–9
• ≤ 30mg/L BOD
• ≤30 mg/L TSS
• ≤200 fecal coli/100 mLe
• ≥1 mg/L Cl2 residualf (except for environmental reuse)
Groundwater recharge of nonpotable aquifers by spreading • Site specific and use dependent
• Primary (minimum)
• Site specific and use dependent
Groundwater recharge of nonpotable aquifers by injection • Site specific and use dependent
• Secondary (minimum)
• Site specific and use dependent
Groundwater recharge of potable aquifers by spreading • Site specific
• Secondaryc and disinfection (minimum)
• May also need filtration and/or advanced wastewater treatment
• Site specific
• Meet drinking water standards after percolation through vadose zone
Groundwater recharge of potable aquifers by injection Includes the following:
• Secondaryc
• Filtration
• Disinfection
• Advanced wastewater treatment
Includes, but not limited to, the following:
• pH = 6.5–8.5
• ≤2 NTUd
• No detectable total coli/100 mLe
• ≥1 mg/L Cl2 residualf
• ≤3 mg/L TOC
• ≤0.2 mg/L TOX
• Meet drinking water standards
Groundwater recharge of potable aquifers by augmentation of surface supplies Includes the following:
• Secondaryc
• Filtration
• Disinfection
• Advanced wastewater treatment
Includes, but not limited to, the following:
• pH = 6.5–8.5
• ≤ 2 NTUd
• No detectable total coli/100 mLe
• ≥1 mg/L Cl2 residualf
• ≤3 mg/L TOC
• Meet drinking water standards

aAll types of landscape irrigation, toilet and urinal flushing, vehicle washing, use in fire protection systems and commercial air conditioner systems, and other uses with similar access or exposure to the water.

bFishing boating, and full body contact allowed.

cSecondary treatment should produce effluent in which both the BOD and TSS do not exceed 30 mg/L.

dShould be met prior to disinfection. Average based on a 24-hour time period. Turbidity should not exceed 5 NTU at any time. If TSS is used in lieu of turbidity, the TSS should not exceed 5 mg/L.

eBased on the median value of the last 7 days for which analyses have been completed.

fAfter a minimum contact time of 30 minutes.

gSod farms, silviculture sites, and other areas where public access is prohibited, restricted, or infrequent.

hUndergo chemical or physical processing sufficient to destroy pathogens prior to sale to the public or others.

iPasture for milking animals; fodder, fiber, and seed crops.

jPubic contact with reclaimed water is not allowed.

kIncludes soil compaction, dust control, aggregate washing, making concrete.

lOnce-through cooling. Reclaimed water for recirculating cooling towers may need additional treatment.

mWetlands, marshes, wildlife habitat, stream augmentation.

SOURCE: Adapted from EPA (2004).

Additional recommendations for nonpotable reuse applications not listed in Table 10-2 include

• clear, colorless, odorless, and nontoxic water;

• a setback distance of 50 feet between areas irrigated with reclaimed water and potable water supply wells;

• maintenance of a chlorine residual of greater than or equal to 0.5 mg/L in the distribution system;

• reliable treatment and emergency storage or disposal alternatives for inadequately treated water;

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

BOX 10-4
Risk-Based Water Reuse Guidelines Using DALYs

The World Health Organization (WHO, 2006a,b,c) published risk-based guidelines for the use of wastewater and greywater in agriculture and aquaculture in 2006. The guidelines are directed principally at microbial health risks but also include recommended maximum tolerable soil concentrations for various organic and inorganic pollutants based on human health protection. They were based on the quantitative microbial risk assessment, complemented by epidemiological evidence.

The WHO guidelines use disability adjusted life years (DALYs), a common summary measure of population health, to compare disease outcome from one exposure pathway to another. DALYs represent a measure of time lost due to disability or death from a specific disease compared to an ideal long life, free of disease and disability. DALYs are calculated as the sum of the probable years of life lost to premature mortality and the years of productive life lost due to disability associated with a particular disease. Thus, DALYs account for both acute and chronic health effects, including morbidity and mortality. DALYs have been useful in elucidating the choices of water disinfection technologies (balancing the risks of microorganisms and disinfection byproducts) in the Netherlands (Havelaar et al., 2000), although DALYs have been also subject to some criticism (Anand and Hanson, 1997; Govind et al., 2009).

WHO determined that a waterborne disease burden of 10–6 DALYs per person per year is a tolerable risk (WHO, 2004). This disease burden is approximately equivalent one mild diarrheal illness (assuming a low fatality rate) per 1,000 people per year, or 1 in 10 risk of mild illness over a lifetime (WHO, 2008). Health-based targets based on DALYs can be achieved through a combination of health protection measures, such as wastewater treatment, crop restriction, wastewater application techniques that minimize contamination, chemotherapy and immunization, and washing, disinfecting, and cooking produce.

Australia has also embraced the use of DALYs to set health-based targets related to the use of reclaimed water in its Australian Guidelines for Water Recycling: Managing Health and Environmental Risks (Phase 1) (NRMMC/EPHC/NHMC, 2006), which deals with the reuse of wastewater, stormwater, and greywater for nonpotable purposes. Although the guidelines are not mandatory and have no formal legal status, their adoption provides a shared national objective and allows states and/or local jurisdictions to independently adopt them or to use their own legislative and regulatory tools to refine them into their own guidelines. The Australian guidelines address both human health (mainly microbial pathogen risks) and environmental risks (mainly chemical risks) using a risk management approach. In managing risks to human health, the guidelines use DALYs to convert the risk of illness into burdens of disease, and—as with the WHO guidelines—the Australian guidelines establish the tolerable risk as 10–6 DALYs per person per year, which is then used to develop health-based targets. In managing risks to the environment from reclaimed water, environmental guidelines related to impacts on specific endpoints or receptors within the environment are used in place of DALYs and health-based targets.

The Phase 2 report of the Australian guidelines, which focuses on potable reuse (NRMMC/EPHC/NHMRC, 2008; see also Box 5-2) uses DALYs, performance targets, and reference pathogens for the evaluation of microbial risk, based on the approach described in the World Health Organization Guidelines for Drinking-Water Quality (WHO, 2008). As with nonpotable applications of reclaimed water, the tolerable microbial risk adopted in the Australian potable reuse guidelines is 10–6 DALYs per person per year.

• cross-connection control devices; and

• color-coded nonpotable water lines and appurtenances.

The guidelines include similar design and operational recommendations for the other reclaimed water applications.

Potable Reuse

EPA’s guidelines provide some specific wastewater treatment and reclaimed water quality recommendations for potable reuse via groundwater recharge and surface water augmentation, as indicated in Table 10-2. The guidelines outline the extensive treatment, water quality, and monitoring requirements that are likely to be imposed for potable reuse projects and are based principally on California’s draft groundwater recharge regulations and Florida’s potable reuse regulations in place at the time the guidelines were written. The guidelines recommend that potable reuse projects meet drinking water standards and also monitor for hazardous compounds (or classes of compounds) that are not included in the drinking water standards (EPA, 2004). The EPA guidelines’ focus on end-point water quality differs significantly from the risk management strategies of the Australian potable reuse guidelines, described in Box 5-2.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

State Water Reuse Regulations and Guidelines

States generally develop water reuse regulations or guidelines in response to a need to regulate water reuse activities that are occurring or expected to occur in the near future. Water reuse criteria vary among the states that have developed regulations, and some states have no regulations or guidelines. Some states have regulations or guidelines directed at land treatment of wastewater or land application as a means of wastewater disposal rather than regulations oriented to the intentional beneficial use of reclaimed water. Water reuse regulations typically include wastewater treatment process requirements, treatment reliability requirements, reclaimed water quality criteria, reclaimed water conveyance and distribution system requirements, and area use controls. No state’s regulations cover all potential applications of reclaimed water, and few states have regulations that address potable reuse. When state regulations do not address specific reuse applications, they are not necessarily prohibited; instead, these applications may be evaluated and permitted on a case-by-case basis. The following sections provide an overview of state approaches to nonpotable and potable reuse regulations.

State Guidelines and Regulations for Nonpotable Reuse

Examples of state regulations for various nonpotable applications are summarized in Table 10-3. The table includes water quality limits and, where imposed, treatment process requirements. Water quality requirements usually include maximum limits based on averages or geometric means over a specific time period or median values for a specific number of consecutively collected samples. They also usually include maximum values (particularly for microbial indicator organisms) that cannot be exceeded at any time, although these limits are not included in Table 10-3.

Table 10-3 shows clear variations in the treatment and quality requirements among the states for the types of uses listed. Key areas of significant variation are discussed below.

Microbial Indicator Organisms. Some states use total coliforms as the indicator organism, whereas others use fecal coliforms, Escherichia coli, or enterococci. Total coliforms represent a more conservative measure of the microbial water quality and include fecal coliforms and some nonfecal bacteria, such as soil bacteria. Some states have based their requirements on the EPA guidelines (EPA, 2004), which suggest using fecal coliforms as the indicator organism. Regulatory decisions regarding the selection of which indicator organism to use is somewhat subjective, as is the acceptable limit. The rationale regarding the selection of which indicator organism to use and the methods used to determine whether acceptable microbial limits have been met are not consistent in all states. For example, in California the total coliform reporting limit is based on a running median of the last 7 days for which analyses have been completed, whereas in Florida the fecal coliform limit must be met in at least 75 percent of the samples over a 30-day period. Daily sampling is required in both states.

Turbidity vs. Total Suspended Solids (TSS). For uses where human contact with the reclaimed water is expected or likely, some states specify turbidity limits whereas others specify TSS limits. The removal of suspended matter is related to health protection. Particulate matter can reduce the effectiveness of disinfection processes, such as chlorine and UV radiation (see Chapter 4). To ensure that pathogens are inactivated during disinfection, state water reuse regulations and guidelines generally recommend that particulate matter in reclaimed water be reduced to low levels (e.g., 2 nephelometric turbidity units [NTU] or 5 mg/L TSS). Low turbidity or suspended solids values by themselves do not indicate that reclaimed water is devoid of microorganisms. As such, turbidity and suspended solids measurements are not used as an indicator of microbiological quality but rather as a quality criterion for wastewater prior to disinfection.

Treatment Requirements. Most states adhere to the premise that water quality requirements for indicator organisms alone do not adequately characterize the microbial quality of the water. Thus, most states prescribe specific treatment processes (e.g., secondary treatment followed by filtration and disinfection) that, in conjunction with water quality requirements for parameters such as microbial indicator organisms and turbidity, have been shown to reduce pathogenic

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

TABLE 10-3 Examples of State Water Reuse Criteria for Selected Nonpotable Applications

Fodder Crop Irrigationa

Processed Food Crop Irrigationb

Food Crop Irrigationcc,d

Restricted Recreational Impoundmentse

State

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Arizona

• 1,000 fecal coli/100 mL

• Secondary (stabilization ponds)

Not covered

Not covered

• No detectable fecal coli/100 mL

• 2NTU

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 2NTU

• Secondary

• Filtration

• Disinfection

California

Not specified

• Secondary

Not specified

• Secondary

• 2.2 total coli/100 mL

• 2NTU

  • Secondary

• Coagulationf

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• Secondary

• Disinfection

Colorado

Not covered

Not covered

Not covered

Not covered

Not covered

Not covered

Not covered

Not covered

Florida

• 200 fecal coli/100 mL

• 20 mg/L CBOD

• 20 mg/l TSS

• Secondary

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5 mg/L TSS

  • Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5 mg/L TSS

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5 mg/L TSS

• Secondary

• Filtration

• Disinfection

Utah

• 200 fecal coli/100 mL

• 25mg/L BOD

• 25 mg/L TSS

• Secondary

• Disinfection

• No detectable fecal coli/100 mL

• 10 mg/L BOD

• 2NTU

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 10 mg/L BOD

• 2NTU

• Secondary

• Filtration

• Disinfection

• 200 fecal coli/100 mL

• 25 mg/L BOD

• 25 mg/L TSS

• Secondary

• Disinfection

Texas

• 200 fecal coli or E. coli/100 mL

• 35 enteroccci/100 mL

• 20 mg/L BOD

• 15mg/L CBOD

Not specified

• 200 fecal coli or E. coli/100 mL

• 35 enteroccci/100 mL

• 20 mg/L BOD

• 15mg/L CBOD

Not specified

• 20 fecal coli or E. coli/ 100 mL

• 4 enteroccci/100 mL

• 3NTU

• 5 mg/L BOD or CBOD

Not specified

• 20 fecal coli or E. coli/ 100 mL

• 4 enteroccci/100 mL

• 3NTU

• 5 mg/L BOD or CBOD

Not specified

Washington

• 240 total coli/100 mL

• Secondary

• Disinfection

• 240 total coli/100 mL

• Secondary

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulation

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• Secondary

• Disinfection

aIn some states more restrictive requirements apply where milking animals are allowed to graze on pasture irrigated with reclaimed water.

bPhysical or chemical processing sufficient to destroy pathogenic microorganisms. Less restrictive requirements may apply where there is no direct contact between reclaimed water and the edible portion of the crop.

cFood crops eaten raw where there is direct contact between reclaimed water and the edible portion of the crop.

dIn Florida and Texas, “irrigation of edible crops that will be peeled, skinned, cooked, or thermally processed before consumption is allowed. Direct contact of the reclaimed water with such edible crops is allowed.” “Irrigation of edible crops that will not be peeled, skinned, cooked, or thermally processed before consumption is allowed if an indirect application method is used which will preclude direct contact with the reclaimed water (such as ridge and furrow irrigation, drip irrigation, or a subsurface distribution system) is used” (30 Texas Administrative Code 210.24).

eRecreation is limited to fishing, boating, and other nonbody contact activities.

fNot needed if filter effluent turbidity does not exceed 2 NTU, the turbidity of the influent to the filters is continually measured, the influent turbidity does not exceed 5 NTU for more than 15 minutes and never exceeds 10 NTU, and there is capability to automatically activate chemical addition or divert the wastewater should the filter influent turbidity exceed 5 NTU for more than 15 minutes.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

Restricted Access Irrigationg

Unrestricted Access Irrigationh

Toilet Flushingi

Industrial Cooling Waterj

Stale

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Quality Limits

Treatment Required

Arizona

• 200 fecal coli/100 mL

• Secondary

• Disinfection

• No detectable fecal coli/100 mL

• 2NTU

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 2NTU

• Secondary

• Filtration

• Disinfection

Not covered

Not covered

California

• 23 total coli/100 mL

• Secondary

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulationk

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondaryk

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulationk

• Filtration

• Disinfection

Colorado

• 126 E. coli/100 mL

• 30 mg/L TSS

• Secondary

• Disinfection

• No detectable E. coli/100 mL

• 3NTU

• Secondary

• Filtration

• Disinfection

Not covered

Not covered

• 126 E. coli/10OmL

• 30 mg/L TSS

• Secondary

• Disinfection

Florida

• 200 fecal coli/100 mL

• 20 mg/L CBOD

• 20 mg/l TSS

• Secondary

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5mg/L TSS

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5 mg/L TSS

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 20 mg/L CBOD

• 5 mg/L TSS

• Secondary

• Filtration

• Disinfection

Utah

• 200 fecal coli/100 mL

• 25mg/L BOD

• 25mg/L TSS

• Secondary

• Disinfection

• No detectable fecal coli/100 mL

• 10 mg/L BOD

• 2NTU

• Secondary

• Filtration

• Disinfection

• No detectable fecal coli/100 mL

• 10 mg/L BOD

• 2NTU

• Secondary

• Filtration

• Disinfection

• 200 fecal coli/100 mL

• 25 mg/L BOD

• 25mg/TSS

• Secondary

• Disinfection

Texas

• 200 fecal coli or E. coli/100 mL

• 35 enteroccci/100 mL

• 20 mg/L BOD

• 15mg/L CBOD

Not specified

• 20 fecal coli or E. coli/ 100 mL

• 4 enteroccci/100 mL

• 3NTU

• 5 mg/L BOD or CBOD Not specified

Not specified

• 20 fecal coli or E. coli/ 100 mL

• 4 enteroccci/100 mL

• 3NTU

• 5 mg/L BOD or CBOD Not specified

Not specified

• 200 fecal coli or E. coli/100 m

• 35 enteroccci/100 mL

• 20 mg/L BOD

• 15 mg/L CBOD Not specified

Not specified

Washington

• 23 total coli/100 mL

• Secondary

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulation

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulation

• Filtration

• Disinfection

• 2.2 total coli/100 mL

• 2NTU

• Secondary

• Coagulation

• Filtration

• Disinfection

gClassification varies by state; generally includes irrigation of cemeteries, freeway medians, restricted-access golf courses, and similar restricted-access areas.

hIncludes irrigation of parks, playgrounds, schoolyards, residential lawns, and similar unrestricted access areas.

iNot allowed in single-family residential dwelling units.

jCooling towers where a mist is created that may reach populated areas.

kNot needed if filter effluent turbidity does not exceed 2 NTU, the turbidity of the influent to the filters is continually measured, the influent turbidity does not exceed 5 NTU for more than 15 minutes and never exceeds 10 NTU, and there is capability to automatically activate chemical addition or divert the wastewater should the filter influent turbidity exceed 5 NTU for more than 15 minutes.

SOURCE: Adapted from Washington Department of Health and Washington Department of Ecology (1997), Colorado Department of Health and Environment (2007), Florida Department of Environmental Protection (2007), CDPH (2009), Texas Commission on Environmental Quality (2010), Arizona Department of Environmental Quality (2011), Utah Department of Environmental Quality (2011)

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

organisms to very low or nondetectable levels in the reclaimed water. A few states rely solely on the water quality of the product water and do not specify treatment process requirements.

Reclaimed Water Uses. No state water reuse regulations include requirements for all potential nonpotable reuse applications; they generally include the most common or likely types of use. Regulations in many states allow types of use not specifically included in their regulations if they are shown to the satisfaction of the regulatory agency to provide an adequate degree of health or environmental protection. States listed in Table 10-3 that have uses that are not covered in their regulations do not necessarily prohibit such uses. Instead, those uses (and their attendant reclaimed water treatment and quality requirements) may be evaluated and accepted on a case-by-case basis.

Other Variables. Many state water reuse regulations include requirements for water quality monitoring frequency, treatment reliability, cross-connection control (see Box 10-5), emergency storage and disposal, and use area controls (e.g., setback distances, signage). As with treatment and reclaimed water quality requirements, these requirements are not uniform from state to state.

State Guidelines and Regulations for Potable Reuse

Some states (e.g., Hawaii) have guidelines that address potable reuse; in those states, regulatory agencies evaluate projects on a case-by-case basis. Many states do not have potable regulations, and several states rely on the EPA underground injection control regulations to protect potable groundwater basins. A few states, such as California (draft regulations), Florida, Washington, and Massachusetts, have developed comprehensive water reuse regulations for potable reuse (most of them for groundwater recharge), but the absence of state criteria for potable reuse does not necessarily prohibit potable reuse applications. Some states evaluate potable reuse projects on a case-by-case basis, even without guidelines or regulations. To date, no regulations have been adopted for potable reuse without the use of an environmental buffer (sometimes called direct potable reuse; see also Chapter 2) anywhere in the United States.

BOX 10-5
Cross-Connection Control

State nonpotable reuse regulations often address cross-connection control by specifying requirements that reduce the potential for cross connections, including the following:

• Identification of transmission and distribution lines and appurtenances via color coding, taping, or other means

• Separation of potable water and reclaimed water lines

• Allowable pressures

• Operation and maintenance procedures

• Monitoring and testing

• Surveillance

• Backflow protection devices to reduce the potential of contaminating the potable water system in the event of a cross connection at a use area

California has additional cross-connection control requirements where reclaimed water is used in buildings for toilet and urinal flushing or for fire protection. The requirements stated in the California Water Recycling Criteria (CDPH, 2009) for reclaimed water in dual-plumbed facilities include the following:

1. Internal use of reclaimed water within any individually owned residential unit, including multiplexes and condominiums, is prohibited.

2. Facilities that produce or process food products or beverages can use reclaimed water internally only for fire suppression systems.

3. Reclaimed water cannot be used within a building until a detailed description of the intended use areas, plans and specifications, and cross-connection control provisions and testing procedures is submitted and approved by the regulatory agency.

4. The dual-plumbed system within each facility or use area must be inspected for cross connections prior to the initial operation and annually thereafter. Additionally, the reclaimed water system must be tested at least once every four years for possible cross connections.

5. The California Department of Public Health must be notified of any incidence of backflow from the nonpotable reclaimed water system into the potable water system within 24 hours of the incident’s discovery.

Direct connections between potable and nonpotable distribution systems are not allowed in any state (Asano et al., 2007). Detailed information on cross-connection control measures is available in manuals published by the American Water Works Association (AWWA, 2004, 2009) and the U.S. Environmental Protection Agency (EPA, 2003c).

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

As examples of regulations, existing and draft potable reuse regulations for groundwater recharge in California and adopted groundwater recharge and surface water augmentation regulations in Florida are summarized in Boxes 10-6 and 10-7. California published new draft regulations in November 2011 and expects to finalize them in the first half of 2012.

National Standards for Reuse?

The previous section highlights how water reuse regulations and guidelines vary considerably from state to state in terms of the reuse applications covered, treatment and water quality requirements, design or operational controls, the rationale for setting requirements, and the specific objectives of the regulations or guidelines. Although the EPA’s Guidelines for Water Reuse (EPA, 2004) were developed for states that have not yet developed their own regulations or are updating their existing regulations, they have not significantly affected the lack of uniformity among state regulations. Further, they were not developed in a rigorous manner comparable to, for example, the SWDA or CWA, and thus were not subjected to the scrutiny required of formal federal regulatory processes.

The imbalance that results from different standards in each state is demonstrated by food crops grown with reclaimed water where, for example, lettuce grown in one state may have been irrigated with different quality water than lettuce grown in another state, yet both may be sold anywhere. A consumer does not know the different standards in each state, but rather assumes that the level of protection is the same regardless of where the lettuce was grown. From the industry perspective, an instance of food contamination will injure agricultural growers everywhere, so that even a grower in a state with stricter standards could be negatively affected by a product from a state with more relaxed regulations.

The typical model in environmental regulation is one in which Congress creates a regulatory program in broad outline, and EPA is entrusted by Congress with giving it more specificity, including setting standards for health and environmental protection. Most federal statutory schemes allow EPA to delegate the administration of the program to a state (or tribal) agency. Delegation is contingent upon the state creating and maintaining a program that is as stringent as the federal program. EPA sets standards for pollutants using health, technology, cost, or some combination of these elements. The standard-setting process allows for participation and allows for appeals if certain criteria are met.

There are several potential advantages of developing 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 regulations were developed by each individual state. EPA could tap its internal experts with various areas of expertise that would be needed to establish scientifically supportable criteria (e.g., public health, microbiology, treatment technology, risk assessment). Further, national water reuse regulations may reduce the potential of local regulatory decisions that may not be supportable from a public health or environmental standpoint.

On the basis of a survey of stakeholders, including water reuse practitioners and state and federal regulators, Nellor and Larson (2010) identified the following advantages of national regulations for water reuse:

• Because the development of regulations is a rigorous process with public input, compliance with the regulations should provide enhanced public confidence that a water reuse project is safe.

• The regulations should establish credibility of and public confidence in water reuse.

• The regulations should create minimum uniform standards relative to the end use that are applied across the country, thereby eliminating concerns about lack of consistency among state regulations/guidelines in terms of public health protection.

• The regulations should eliminate the gap for states without rules.

There are also some disadvantages outlined by Nellor and Larson (2010) that may result from the promulgation of national regulations for reuse:

• It would be necessary to amend the CWA or SWDA, or create a new enabling federal law to provide authorization for the development of regulations for these uses. Changes to national statutes are difficult and resource intensive.

• To address national variation and uncertainty, federal regulations generally incorporate a margin of safety. The resulting standards may be very conservative.

• More conservative standards could create ob-

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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 reduction

•   ≥10-log Giardia cyst reduction

•   ≥10-log Cryptosporidium oocyst reduction

•   Drinking water MCLs (except for nitrogen)

•   Action levels for lead and copper

•   ≤10 mg/L total nitrogena

•   TOCb ≤0.5 mg/L/RWCc

Spreading

•   Oxidationd

•   Filtratione

•   Disinfectionf

•   Soil aquifer treatment


Spreading with full advanced treatment

•   Oxidation

•   Reverse osmosis

•   Advanced oxidation process

•   Soil aquifer treatment


Injection

•   Oxidation

•   Reverse osmosis

•   Advanced oxidation process

•   Industrial pretreatment and source control program

•   Initial maximum RWC ≤20% for spreading tertiary treated water

•   Initial maximum RWC for injection based on California Department of Public Health (CDPH) review of engineering report and other information from public hearing

•   ≥2-month retention (response) time undergroundg

•   1-log virus reduction credit automatically given per month of subsurface retention

•   10-log Giardia reduction and 10-log Cryptosporidium reduction credit given to spreading projects that have at least 6 months’ retention time underground

•   Monitor recycled water and monitoring wells for priority toxic pollutants, chemicals with state notification levels specified by CDPH, and unregulated constituents specified by CDPH

•   Operations plan

•   Contingency plan

•   Spreading projects with full advanced treatment must meet the requirements for injection projects, except that after one year of operation the project sponsor may apply for a reduced monitoring frequency for any monitoring requirement

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).

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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 Florida Rules for Groundwater Recharge and Indirect Potable Reuse

Type of Use

Treatment

Water Quality Limits

Groundwater recharge
(Rapid infiltration basins)

•   Secondary

•   Disinfection

•   ≤200 fecal coli/100 mL

•   ≤20 mg/L CBOD

•   ≤0 mg/L TSS

•   ≤12 mg/L NO3 (as N)

Groundwater recharge
(Rapid infiltration basins in unfavorable
hydrogeological conditions [e.g., karst areas])

•   Secondary

•   Disinfection

•   Filtration

•   No detectable fecal coli/100 mL

•   ≤20 mg/L CBOD

•   ≤5.0 mg/L TSS

•   ≤10 mg/L total N

•   Primarya and secondary drinking water standards

Groundwater recharge (Injection to groundwaters having TDS < 3,000 mg/L)

•   Secondary

•   Disinfection

•   Filtration

•   Multiple barriers for control of pathogens and organics

•   Pilot testing required

•   No detectable total coli/100 mL

•   ≤20 mg/L CBOD

•   ≤5.0 mg/L TSS

•   ≤3.0 mg/L TOC

•   ≤0.2 mg/L TOXb

•   ≤10 mg/L total N

•   Primarya and secondary drinking water standards

Groundwater recharge (Injection to groundwaters having TDS 3,000–10,000 mg/L)

•   Secondary

•   Disinfection

•   Filtration

•   No detectable total coli/100 mL

•   ≤20 mg/L CBOD

•   ≤5.0 mg/L TSS

•   ≤10 mg/L total N

•   Primary drinking water standardsa

Indirect potable reuse (Discharge to Class I surface waters (used for public water supply)

•   Secondary

•   Disinfection

•   Filtration

•   No detectable total coli/100 mL

•   ≤20 mg/L CBOD

•   ≤5.0 mg/L TSS

•   ≤3.0 mg/L TOC

•   ≤10 mg/L total N

•   Primarya and secondary drinking water standards

•   WQBELsc may apply

aWith 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.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

stacles for promoting and/or continuing to implement reuse projects in states with existing standards that are less stringent than the federal regulations.

• Almost certainly, states would retain the legal authority to prescribe more stringent regulations, thereby eliminating uniformity.

• The development and promulgation of the regulations may take a significant amount of time and resources.

There are other potential disadvantages associated with national regulations. National standards may not be sensitive to local or regional conditions and could limit flexibility at the local level. Conflicts could arise regarding compatibility with existing state wastewater discharge requirements, environmental controls, or other regulations or statutes. It may be difficult to reconcile differences or conflicts between national criteria and existing state water reuse standards, policies, or guidelines. For example, if national criteria were more restrictive than a state’s criteria, the national criteria would override local criteria. In such cases, it may result in considerable cost to upgrade existing projects, call into question past practices in the state, and potentially damage the credibility of the regulatory agency. All these present challenges that a national regulatory program would need to address.

The committee concludes that there are important inconsistencies among existing water reuse regulations/guidelines. Reclaimed water is of ever-growing importance as an integral component of the nation’s water resources portfolio, and action to embark on the development and implementation of risk-based national water reuse regulations would allow the nation to more efficiently and effectively maximize this resource. Regulations can be crafted that do not stifle innovation but allow for new and innovative treatment and quality assurance processes.

PUBLIC INVOLVEMENT AND ATTITUDES

Planning for water reuse projects regularly involves public involvement and evaluation, which influence the type of reuse projects pursued and whether the project will move forward (Hartley, 2006). Proposed water reuse projects (especially potable reuse projects) have numerous aspects for the public to consider, including public health, public finance, local land use, regional environmental protection, and economic growth. Public policy processes take the form of feasibility studies, environmental review, approval of funding, and zoning and siting of facilities, nearly all of which are subject to public hearings. There are also robust dialogues in letters to the editors, blogs, public meetings, and elsewhere. The goals of these processes are to inform the public of pending decisions, seek public input, and in some cases to seek direct public approval. Another source of public review occurs when state or national funding is sought for reuse projects that have extensive nonlocal benefits.

In this section, research on public perception with respect to water reuse is discussed. Additionally, the role of communication in successful reuse projects is examined. The bulk of the research on these issues has occurred in countries outside of the United States. In this section, the committee briefly reviews research findings on public perception worldwide, but examines data from the United States in somewhat more detail.

Public perception with respect to water reuse has been studied with increasing interest in the United States and Australia since the mid-1990s (summarized in Russell and Lux, 2006), and with interest expanding globally since the early 2000s (e.g., Jeffrey, 2002; Al-Kharouf et al., 2008; Ching, 2010; Domenech and Sauri, 2010). The long and challenging drought experienced by Australia in the 2000s focused intellectual and policy attention on water reuse, with extensive research on public perception and policy processes emerging. Beliefs about the importance of public perception to the successful establishment of water reuse projects range from “crucial importance” (Marks et al., 2008) to one factor among many (Stenekes et al., 2006).

Fear of contaminated water (or anything that is perceived to be contaminated) is a common human response. Numerous factors influence risk perception with respect to water, including sensory input (odor and taste), delivery context (tap vs. bottle, visual cues from surface waters), prior experience with the water, sources of information (informal, interpersonal), level of trust in the water purveyor, and one’s perceived control over the quality of the water (Doria, 2010). Water reuse projects necessarily involve the use of water that was once contaminated. The perception that something is contaminated can trigger a strong, immediate reaction of revulsion (see Box 10-8; Rozin and Royzman, 2001;

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

BOX 10-8
Public Discourse on Water Reuse in Pembroke Pines, Florida

A new water reuse facility has been proposed for Pembroke Pines, Florida. The city of 150,000 people plans to inject 7 MGD of wastewater into the Biscayne Aquifer, rather than piping it to an ocean outfall. The effluent would receive primary, secondary, and reverse osmosis membrane treatment prior to injection. Restoring flows into the Biscayne Aquifer, which is shared by several cities, is required by the regional water management authority.

Although this project is still in the study phase, patterns of communication surrounding the disgust response and concerns over trace organic chemicals are already emerging. A local newspaper began its review article of the project with this sentence: “The water in Pembroke Pines toilet bowls may soon show up in the drinking glasses of South Floridians from Miami to Boca Raton” (Barkhurst, 2011). The article quotes an environmental activist: “You can’t remove all pharmaceuticals from the water. It can’t be done. You are putting drugs into our drinking water—Tylenol, birth control medication, antipsychotics.’’ The article later quotes a water agency official who comments positively on available water treatment technologies.

This is a common pattern in public communication over proposed water reuse facilities. The debate has been framed as disgusting water source that threatens public health vs. scientific demonstrations of water need and safety. The debate also is framed as the public (in opposition) vs. the water agency (in support), which departs from the ideal of water agencies playing the role of neutral implementer of the public’s wishes. Instead, the public would be best served by informed public discourse on a wide range of topics pertaining to water reuse, including relative risks compared to other water supply alternatives and sources already used widely today (see Chapter 7).

Nemeroff and Rozin, 1994). Although technology is available to treat such water to meet or exceed drinking water standards (see Chapter 4), members of the public may remain skeptical of such claims (Haddad et al., 2010). The history of water matters to many people more than the type and concentrations of impurities remaining in the water. This can result in a public preference for lower quality water emerging from a “natural” aquifer or river over higher quality water emerging directly from an advanced wastewater reclamation facility.

The research field of judgment, risk perception, and decision making is well established (Kahneman et al., 1982; Slovic, 1987, 1993; Slovic et al., 2002, 2004). Surveys and experiments have shown that people often connect perceived benefits of an activity with their evaluation of its risk: the more they think they will benefit, the lower they consider its risk. This approach is different from a scientific evaluation of risk, which would not consider the benefits in any quantitative risk assessment. Thus, there is a predisposition among those who dislike water reuse to believe it puts them at risk.

Willingness to use reclaimed water is, in part, a function of the intended use, with willingness higher for uses that minimize human contact, including irrigation, car washing, and other cleaning (Bruvold, 1988; Hills et al., 2002; Dolnicar and Schäfer, 2009; Hurlimann and Dolcinar, 2010). In a nationwide survey of attitudes toward potable reuse, Haddad et al. (2010) reported that 38 percent said they would be willing to drink “certified safe recycled water,” 49 percent were uncertain, and 13 percent said they would refuse to drink the water. This result, especially the small but not insignificant number of individuals who initially say they would refuse such water, is consistent with the reported experience of water agencies that have proposed water reuse projects. The survey showed few demographic or geographic differences in attitudes toward potable reuse. However, studies outside the United States have found weak but significant demographic differences in water-related risk perception (Po et al., 2003; Hurlimann, 2008; Doria, 2010). Hurlimann (2008), for example, found that males, people older than age 50, and people with college degrees were more willing to use reclaimed water for personal 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 respondents. Saying one is willing to reuse water in the hypothetical is not the same as actually doing so, according to Mankad and Tapsuwan (2011), who call for more research on communities already using decentralized water reuse systems (e.g., residence-scale reuse).

Part of the challenge of public acceptance of water reuse hinges on perception of the origins of the water and whether it can be considered “natural” (see also discussion of environmental buffers in Chapter 2). Survey results showed that individuals’ trust in the water as a supply for drinking improved if the reclaimed water is

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

passed through systems perceived to be natural. Aquifer storage for 10 years was favored over aquifer storage for 1 year, and passing water down a swift-flowing river for 100 miles was preferred over passing water down a 1-mile stretch. Aquifer storage overall was preferred to passage down a river (Haddad et al., 2010).

According to Haddad et al. (2010), local independent (e.g., university) scientists are viewed by the public as the most credible sources of information on reclaimed water (see Table 10-6), because they combine topical expertise and knowledge of the local situation and have no professional stake in water management decisions. Dolnicar and Hurliman (2009), in qualitative interviews, found friends and relatives to be the most trusted sources of information on whether to drink reclaimed water. However, those negatively predisposed to potable reuse were least willing to be convinced of its efficacy by anyone, although relative rankings of trusted sources were generally consistent among all respondents regardless of their willingness to drink reclaimed water (Haddad et al., 2010).

Public Communication

The choice of words matters when describing water reuse. Menegaki et al. (2009), studying farming behaviors on the Island of Crete, identify differences in farmers’ willingness to pay for reclaimed water based on whether it is called “recycled water” or “treated wastewater.” Haddad et al. (2010) found that even individuals who were strongly opposed to indirect potable reuse could be influenced by paragraphs that cast water reuse in a positive light. Macpherson and Slovic (2011) found that the water reuse profession does not have standard definitions for commonly used technical terms, and this causes confusion among customers. They have generated a glossary of terms and advocate that the profession adopt it as standard terms and definitions.

The sophistication of communication between water agencies and the public continues to evolve (Box 10-9). There is more public outreach, including visitor centers and tours at water reclamation facilities, more Web sites, and better communications with regional political leaders and media outlets. Surveys in Australia by Dolnicar et al. (2010) and in Barcelona, Spain, by Domenech and Sauri (2010) found that knowledge of the water treatment process increased acceptance of water reuse. One often cited example of public relations success is Singapore’s NEWater Facility, which invested extensively in a visitor center. 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, 2010). However, it is difficult to ascertain if the absence of domestic opposition to the NEWater program is because of the successful visitor center, positive press coverage, cultural differences, national policies that limit civic discourse, or all of these reasons. In the United States, tours of water reuse facilities are common, but 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

a The items are arranged from top to bottom in terms of increasing trust for the full sample (overall). Asterisks indicate that the value is significantly different from the item immediately above it. * = p < .05, ** = p < .01, *** = p < .001

b By 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).

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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 conservation, 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 with achievement of other goals (e.g., maintaining or increasing public trust in the water supply, public support for investments in water infrastructure).

There are many reasons why a major infrastructure project gets delayed or canceled. Public perception that water produced from a water reclamation facility is objectionable could be one, but public perception may not be determinative. Rather, a richer understanding of the social, technical, procedural, and policy-related aspects of a particular proposal may be the more reliable determinant of whether a project proceeds (Russell and Lux, 2009). Marks and Zadoroznyj (2005) identify institutional and knowledge factors, including the extent of social capital (e.g., homeowners associations), accountability of water managers for promised water quality, public awareness of environmental problems and the benefits of water reuse, and public trust in reclaimed water and water managers as crucial to the success of water reuse projects. Similarly, Stenekes et al. (2006), also writing in the Australian context, propose that a more productive public engagement is needed, including a better public understanding of the cost of water, greater participation of the public in water planning, and institutional reforms that would clear the way for water agencies to pursue more sustainable water technologies and strategies. Public perception and agency–public communications matter but should be understood in a larger economic, procedural, and governance context.

CONCLUSIONS

Water rights laws, which vary by state, affect the ability of water authorities to reuse wastewater. States are continuing to refine the relationship between wastewater reuse and the interests of downstream entities. Regardless of how rights are defined or assigned,

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

projects can proceed through the acquisition of water rights after water rights have been clarified. The right to use aquifers for storage can be clarified by states through legislation or court decision. The clarification of these legal issues can provide a clearer path for project proponents.

Scientifically supportable risk-based federal regulations for nonpotable water reuse would provide uniform nationwide minimum acceptable standards of health protection and could facilitate broader implementation of nonpotable water reuse projects. Existing state regulations for nonpotable reuse are developed at the state level and are not uniform across the country. Further, no state water reuse regulations or guidelines for nonpotable reuse are based on rigorous risk assessment methodology that can be used to determine and manage risks. EPA has published suggested guidelines for nonpotable reuse, which are based, in part, on a review and evaluation of existing state regulations and guidelines and are not based on rigorous risk assessment methodology. Federal regulations would not only provide a uniform minimum standard of protection, but would also increase public confidence that a water reuse project does not compromise public health. Scientific research, which requires resources beyond the reach of most states, should inform the development of nonpotable reuse regulations at the federal level to address the wide range of potential nonpotable reuse applications and practices. If federal regulations were developed through new enabling legislation, individual states would maintain the authority to impose more stringent criteria at their discretion. Therefore, EPA should fully consider the advantages and disadvantages of federal reuse regulations to the future application of water reuse to address the nation’s water needs while appropriately protecting public health.

Modifications to the structure or implementation of the SDWA would increase public confidence in the potable water supply and ensure the presence of appropriate controls in potable reuse projects. Although there is no evidence that the current regulatory framework fails to protect public health when planned or de facto reuse occurs, federal efforts to address potential exposure to wastewater-derived contaminants will become increasingly important as planned and de facto potable reuse account for a larger share of potable supplies. The SDWA was designed to protect the health of consumers who obtain potable water from supplies subject to many different sources of contaminants but does not include specific requirements for treatment or monitoring (see Chapters 4 and 5) when source water consists mainly of municipal wastewater effluent. Presently, many potable reuse projects include additional controls (e.g., advanced treatment and increased monitoring) in response to concerns raised by state or local regulators or the recommendations of expert advisory panels. Adjustment of the SDWA to consider such requirements when planned or de facto potable reuse is practiced could serve as a mechanism for achieving a high level of reliability and public health protection and nationwide consistency in the regulation of potable reuse. In the process, public confidence in the federal regulatory process and the safety of potable reuse would be enhanced.

Application of the legislative tools afforded by the CWA and SDWA to effluent-impacted water supplies could improve the protection of public health. Increasingly, we live in a world where municipal effluents make up a significant part of the water drawn for many water supplies, but this is not always openly and transparently recognized. Recognition of this reality necessitates increased consideration of ways to apply both the CWA and the SDWA toward improved drinking water quality and public health. For example, the CWA allows states to list public water supply as a designated use of surface waters. Through this mechanism, some states have set up requirements on discharge of contaminants that could adversely affect downstream water supplies.

Updates to the National Pretreatment Program’s list of priority pollutants would help ensure that water reuse facilities and de facto reuse operations are protected from potentially hazardous contaminants. The National Pretreatment Program has led to significant reductions in the concentrations of toxic chemicals in wastewater and the environment. However, the list of 129 priority pollutants presently regulated by the National Pretreatment Program has not been updated since its development more than three decades ago, even though the nation’s inventory of manufactured chemicals has expanded considerably since then, as has our understanding of their significance. Updates to the National Pretreatment Program’s priority pollutant list can be accomplished through existing rulemaking pro-

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

cesses. Until this can be accomplished, EPA guidance on priority chemicals to be included in local pretreatment programs would assist utilities implementing potable reuse.

Enhanced public knowledge of water supply and treatment are important to informed decision making. The public, decision makers, and decision influencers (e.g., members of the media) need access to credible scientific and technical materials on water reuse to help them evaluate proposals and frame the issues. A general investment in water knowledge, including improved public understanding of a region’s available water supplies and the full costs and benefits associated with water supply alternatives, could lead to more efficient processes that evaluate specific projects. Public debate on water reuse is evolving and maturing as more projects are implemented and records of implementation are becoming available.

Suggested Citation:"10 Social, Legal, and Regulatory Issues and Opportunities." National Research Council. 2012. Water Reuse: Potential for Expanding the Nation's Water Supply Through Reuse of Municipal Wastewater. Washington, DC: The National Academies Press. doi: 10.17226/13303.
×

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×
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Expanding water reuse--the use of treated wastewater for beneficial purposes including irrigation, industrial uses, and drinking water augmentation--could significantly increase the nation's total available water resources. Water Reuse presents a portfolio of treatment options available to mitigate water quality issues in reclaimed water along with new analysis suggesting that the risk of exposure to certain microbial and chemical contaminants from drinking reclaimed water does not appear to be any higher than the risk experienced in at least some current drinking water treatment systems, and may be orders of magnitude lower. This report recommends adjustments to the federal regulatory framework that could enhance public health protection for both planned and unplanned (or de facto) reuse and increase public confidence in water reuse.

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