State Water Quality Control Board to Consider General Waste Discharge Requirements for Recycled Water Use on June 3, 2014

by Latham & Watkins LLP
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On June 3, 2014, partially in response to lingering drought conditions throughout the state, the California State Water Resources Control Board (“SWRCB”) will consider adopting a “general” waste discharge requirements (“WDR”) permit for the use of treated recycled water for non-potable uses such as agricultural irrigation, landscape irrigation, dust control, and certain industrial processes.[1]  If adopted, the proposed General WDR for Recycled Water Use (the “General Order”) will be the first state permit that applies to uses of recycled water beyond just landscape irrigation.  Previously, all other recycled water uses required an individual WDR permit.[2]  The General Order will be of significant interest for municipal and private water producers and distributors, as well as entities that plan to purchase and use recycled water as a part of their operations.

While the General Order is an important step in helping California to achieve its water use goals by increasing use of recycled water, it does not establish general WDR requirements for some of the most significant opportunities to meet use goals: replenishment of groundwater resources, disposal of treated wastewater at percolation ponds, or the use of recycled water for domestic or animal water supply.  Despite this, the General Order should help expand uses of recycled water for agricultural irrigation and industrial processes in the state and could serve as a useful blueprint for a future general order that would cover WDRs for expanded recycled water use in areas of recharge and potable reuse.

Background

Under California law, dischargers of waste, including treated wastewater, are required to comply with the terms of SWRCB– or regional water quality control board-issued WDR permits unless an exemption from those requirements has been granted.[1]  Typically, individual projects apply for a WDR permit as necessary; treated wastewater uses, other than landscaping uses covered by a 2009 General WDR[2], have generally been covered by individual WDR permits associated with particular projects.[3]

On January 17, 2014, California’s Governor, Jerry Brown, responded to concerns about low winter rainfall and general water supply availability by declaring a drought state of emergency throughout California.[4]  Bipartisan drought relief legislation was signed on March 1, 2014.[5]  Shortly thereafter, on April 25, 2014, the Governor issued an Executive Order declaring a continued state of emergency and instructing the SWRCB to adopt general WDRs that would facilitate the use of treated wastewater as a potential mechanism to alleviate water supply pressures.[6]  The Executive Order suspended the environmental review process under the California Environmental Quality Act (“CEQA”) allowing expedited adoption of the General Order.[7]

General Functions of the Order

The intent of the General Order is to “streamline the permitting process and delegate the responsibility of administrating water recycling programs to recycled water Producers and/or Distributors to the fullest extent possible.”[8]   The California Department of Public Health (“CDPH”) has established existing statewide water recycling criteria in California Code of Regulations Title 22; the new General Order authorizes particular beneficial non-potable recycled water uses that are consistent with the regulations.[9]  Approved uses may not degrade water bodies to which recycled water is discharged; may not decrease flow in watercourses or cause injury to any legal water user; must utilize best practicable treatment or control for recycled water.[10]  There are also a number of monitoring requirements and recycled water producers may be responsible for preparing an individual Salt and Nutrient Management Plan for the particular WDR permit.[11]

Under the General Order, discretion will lie with the State’s nine regional water quality control boards[12] to enroll dischargers.[13]  The General Order permits the use of treated recycled water for non-potable uses such as agricultural irrigation, landscape irrigation, dust control, and certain industrial processes.  Significantly, it does not authorize use of recycled water to replenish groundwater resources (for example, through use at spreading grounds, percolation ponds, or through groundwater reinjection); disposal of treated wastewater using percolation ponds or hydraulic loading; or use of recycled water for domestic/animal water supply.[14]

Conclusion

The combination of the General Order format, which eliminates the independent CEQA review process to obtain a permit that normally exists for individual WDR permits, and the Executive Order, which frees the General Order from CEQA review, will likely streamline the permit application process, allowing the use of recycled water for purposes such as agricultural irrigation and dust control to occur much more quickly than in the past. 

The General Order will be considered for adoption on June 3, 2014, and a public meeting will be held on that date in Sacramento. If adopted by the State Board, the General Order will go into effect, and will apply to individual applicants at the time that an NOA is issued by the regional water quality control board to which an application is submitted. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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