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Ground Water Recharge Using Waters of Impaired Quality (1994)

Chapter: 5 Economic, Legal, and Institutional Considerations

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Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
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5
Economic, Legal, and Institutional Considerations

Decision making by public and private entities about water resources cannot be understood without consideration of the relevant institutional factors. Indeed, many water resource professionals would agree that "institutional problems in water resources development and management are more prominent, persistent, and perplexing than technical, physical, or even economic problems..." (Ingram et al., 1984). Because ground water recharge projects are still somewhat novel, these factors are less obvious, than, for example, the familiar dynamics that led to western dams and irrigation projects. This chapter examines the economics, regulatory schemes, and key actors that affect ground water recharge projects.

ECONOMIC ISSUES

The scarcity of high-quality water supplies is intensifying in many regions of the United States. Environmental and fiscal problems constrain the construction of new surface water storage facilities. In many regions, declining water quality threatens potable supplies as well as potential sources of new supply. The constraints on the development of additional supplies have become more stringent at the same time that demands for additional municipal and industrial water are growing.

Simultaneously, water quality laws, policies, and regulations have forced municipalities to subject wastewater to increasingly more expensive treatment processes prior to discharge to surface waters. Because of this required treatment, the quality of many treated municipal wastewaters is sufficiently high that with relatively modest additional treatment they can be recycled and made avail-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

able for a variety of uses. The economic attractiveness of treated municipal wastewater as a source of supply has focused increasing attention on the possibility of using it to recharge aquifers. Historically, treated wastewater has been used on a modest scale both to augment ground water supplies and as a means of protecting aquifers in coastal regions from seawater intrusion.

The Economics of Ground Water Use

There is a substantial and varied literature on the economics of ground water use (see, for example, Burt, 1970; Cummings, 1970; Gisser, 1983; Bumess and Martin, 1988; Provencher and Burt, 1993). A number of common principles related to the use and management of ground water are developed and characterized in this literature. For example, ground water is most efficiently used when it is extracted at rates such that the net benefits (total benefits net of total costs) from use are maximized over time. The benefits are typically determined by the use to which the water is put. In the short term, costs include the cost of extracting ground water and the opportunity, or user, cost.

The cost of extracting ground water is usually a function of energy cost, pump efficiency, and the depth from which the water must be pumped. Extraction cost increases as energy cost and pumping depth increase, and it declines as pump efficiency increases. The opportunity cost of extraction is the cost of extracting the water now rather than leaving it for later use. The opportunity cost, which is frequently called a user cost, captures the fact that water pumped in the current period results in a lowered ground water table for all future periods if pumping rates exceed safe yields of the aquifer. The incremental cost of pumping from a lowered water table in the future must be accounted for if current extractions are to be economically efficient. Much of the economic literature on ground water resources focuses on the fact that where ground water is treated as a common property resource, extractions tend to occur at rates that are inefficient. When pumpers fail to account for all of the costs of extraction, including the user cost, the rates of extraction are greater than the economically efficient rate.

In the long run, the rates of extraction for any given aquifer cannot exceed the rate at which the aquifer is recharged—the safe yield—without overdrafting the aquifer. Overdrafting can brings costs: land subsidence, greater risk of flooding, greater risk of salt water intrusion in coastal areas, and the increased costs of reaching and pumping the water from the lowered water table. When over-drafting is persistent, the ground water table is progressively lowered until a point is reached at which the cost of extracting the ground water from any lower depth is greater than the benefits that could be obtained from any of the uses to which that water might be put. At this point, it is no longer economical to continue pumping and further declines in the ground water table are arrested. Ultimately, proper management of the relative magnitudes of the pumping cost

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

and the benefits from use can ensure that only the annual recharge is extracted; when this balance is reached, the aquifer is said to be in steady state.

There can be circumstances, however, in which overdrafting is economically efficient. For instance, when the benefits of use are quite high in relation to the costs of extraction, overdrafting may be justified. It is important to remember, however, that overdrafting ultimately is self-terminating.

Another consideration relates to the optimal water table depth at which steady state is reached. The optimal steady-state depth will be attained if all costs of extraction, including the user cost, are accounted for by pumpers. Where. ground water is treated as a common property resource, pumpers have an incentive to ignore the user cost, and this results in a deeper than optimal steady state depth. In this instance, rates of extraction leading to the steady-state are greater than the economically optimal rate, and pumping depths are lower overall than the optimal pumping depth.

The principal lesson from the basic economics of ground water use is that where ground water is exploited in an individualistically competitive fashion, the rates of extraction and the steady state depth tend not to be economically optimal. The rule of capture prevails, and this means that pumpers only obtain the right to use ground water once they have pumped it and are prepared to put it to use. The user cost tends to be ignored, both because purepets believe that their own extractions will have an infinitesimally small impact on other pumpers and because they perceive that voluntary restraints on extractions serve only to make the water available to potentially competing pumpers. Corrective measures that have been identified include pumping quotas, pump taxes equivalent to the marginal user cost, and the formal vesting of property rights to ground water in situ.

Understanding of the economics of ground water use leads to the conclusion that ground water will not be used in an economically efficient fashion when it is treated as a common property resource. A single pumper will usually account for the consequences of today's extractions on tomorrow's extraction costs. The problem will arise where there are many pumpers behaving competitively. To address it, some form of management will be required.

This lesson has important implications for the artificial recharge of ground water. If ground water is treated as a common property resource, the incentive to incur the expenses associated with artificial recharge will be eroded because the additional water will be available for capture by other pumpers, who presumably are not obligated to help pay for the recharge operation. Thus, in situations where there are many competing pumpers and no regulation of extractions, the returns from artificial recharge operations cannot be fully captured by those who plan and finance the operations.

Artificial recharge of ground water can have at least two distinct purposes. First, the recharge water can be extracted and put to direct use. Second, in situations where an aquifer may be threatened by seawater intrusion or intrusion

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

of very low quality ground water, artificial recharge can be used to protect the entire aquifer. The economics of artificial recharge for direct use has been analyzed in some detail by Brown and Deacon (1972), Cummings (1971), and Vaux (1985). Artificial recharge augments the rate of recharge and thus increases quantifies of water that can be optimally extracted at any point in time. Moreover, artificial recharge results in an optimal steady state pumping depth that is shallower than the optimal depth that would have prevailed in the absence of artificial recharge. Finally, artificial recharge can ameliorate problems of uncertainty that arise from the inherent variability of runoff and surface supplies that contribute to or are available for ground water recharge. These conclusions require, of course, that the incremental costs of the artificial recharge water be less than or equal to the incremental benefits that accrue from the uses to which the water is ultimately put.

The economics of recharge in the second case, where recharge is used to prevent saltwater intrusion or otherwise protect an aquifer, has been treated in a number of case studies (Cummings, 1971; Warren et al., 1975). In these instances, the benefits that accrue are equivalent to the net benefits from the protected aquifer that would be lost if saltwater intrusion remained unabated. An economically efficient recharge operation requires that the incremental costs of recharge be less than or equal to the net benefits protected. If the aquifer to be protected is exploited competitively without pumping restrictions, the net benefits of protection would be less than they would be if extractions were economically optimal.

The Economics of Artificial Ground Water Recharge with Treated Municipal Wastewater

The economic feasibility of ground water recharge with treated municipal wastewater will vary from situation to situation. Recharge is but one option for managing water supply and the disposal of wastewater. The economic feasibility of recharge with treated wastewater will depend critically on the costs of other options for augmenting water supplies, the costs of alternative means for disposing of wastewater, and the benefits or returns that accrue from the availability of additional water supplies and the effective management of wastewater. Thus, in every situation economic feasibility must be assessed within the context of the particular water supply and demand situation and with specific reference to the array of alternatives that may be available to solve the water management problems in question.

Demand

The benefits of additional water supplies are normally measured by the willingness of consumers to pay or by the demand for additional water supplies.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

Generally, the willingness to pay for additional municipal and industrial supplies is expected to grow as urban population and economic activity increase. This is particularly true in the arid and semiarid western states, where nearly all of the economic and population growth is occurring in urban areas, but it is also clearly apparent in other water-short areas such as Florida. If the willingness to pay for recharged wastewater exceeds the cost of supplying that water and there are no cheaper alternative sources, recharge with wastewater may be an attractive option.

Even where water quality and other factors are roughly comparable between ground water and alternative sources of surface water, there is at least one reason why the willingness to pay to acquire rights to ground water resources may be higher than for rights to surface water. In many areas, high quality ground water may be economically more attractive than alternative sources of surface water because it is reliably available. In the short run, the availability of ground water is not normally dependent on precipitation in the same way the surface water availability is. Thus, ground water tends to be relatively insulated from the effects of drought and, other things being equal, the willingness to pay for reliable ground water may be higher than for a source subject to interruption. The willingness to pay for reliable ground water sources can be diminished, however, if the quality of the ground water in question is distinctly lower than the quality of comparable surface water supplies or if the risks and uncertainties of adverse effects on human or environmental health associated with recharged ground water supplies are significantly higher than those associated with comparable surface water supplies.

The Cost of Water Supplies

The attractiveness of treated wastewater as a source of ground water recharge depends crucially on how the cost compares to the cost of alternative sources of supply. There are several reasons for believing that treated wastewaters may enjoy considerable cost advantages over other sources in the immediate future.

In most regions of the country, the cost of developing new surface supplies has become prohibitive. Over the last several decades, the cost of constructing civil works has risen faster than the rate of inflation. Moreover, nearly all of the easily developed surface water storage sites have already been developed, leaving only sites that are costlier to develop or quite remote. In many instances, the combination of these two factors alone means that the cost of new surface water storage facilities outstrips the willingness to pay for new supplies. In addition, the willingness to subsidize the cost of new water supply facilities from public revenues has declined dramatically from the dam-building heyday of the 1950s and 1960s and before.

To these financial constraints, the environmental cost of surface water de-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

velopment must be added. It is now recognized that surface water impoundment facilities can cause significant environmental damage. Strong public preferences for environmental amenities, together with the substantial cost of mitigating or compensating for environmental damage, have helped to make the construction of new surface water storage facilities far less attractive than it once was. Concerns about adverse environmental impacts lead to strong political opposition to the development of additional impoundment facilities. Even in the relatively rare instances in which the cost of new facilities is consistent with the willingness to pay, the potential adverse environmental impacts create strong political resistance to the development of such new facilities.

The result is that new surface water storage and conveyance facilities have become a relatively unattractive and, in some instances, unacceptable means of developing new water supplies. On the other hand, many aquifers contain unused storage capacity, which can be developed at relatively modest cost and without the adverse environmental consequences frequently associated with surface storage. Because ground water storage avoids many of the high costs associated with surface storage, conjunctive use—the integrated management of ground and surface water—has become an increasingly attractive option for augmenting developed water supplies. Conjunctive use schemes often prove infeasible, however, because of the absence of ''surplus" surface water that could be stored in the ground.

Many western streams are already fully allocated, and the increasing contentiousness of reallocation proposals in a number of middle western and eastern streams suggests that streams in those regions may be fully subscribed de facto. The resultant scarcity of surface waters available for development means that the search for additional water supplies has turned to more exotic sources, including the desalinization of brackish waters and seawater. It is true that changes in water allocation institutions, including, for example, more widespread adoption of water markets, may help ameliorate the scarcity of water, particularly in the West. Nevertheless, where new supplies are sought, the costs of treated waste-water may compare favorably with the cost of water from alternative sources because state and federal regulations require extensive treatment of wastewater irrespective of whether and how it is to be reused. The incremental costs of rendering treated wastewater suitable for nonpotable and even potable uses may thus be quite modest in many cases.

The incremental costs of upgrading the quality of treated wastewater will vary widely from situation to situation and depend on a number of variables. The cost of land acquisition for the siting of treatment plants and spreading grounds and the cost of constructing injection wells will vary from project to project and can be significant. Similarly, the need to transport treated wastewater from the place of treatment to the site where it is to be spread or injected may add substantial cost (Vaux, 1985). In many instances, however, the most impor-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

tant determinant of economic feasibility will be the cost of the additional treatment required to improve the quality of the wastewater to the desired level.

Data recently developed by the Orange County Water District (Orange County Water District/County Sanitation Districts of Orange County, 1993) for three different treatment options are illustrative. Table 5.1 presents the quality parameters of the product waters associated with the three treatment options and the costs of those options. The three options entail differences only in the levels of reverse osmosis and microfiltration applied to the product water. For options 1 and 2, it is assumed that only partial microfiltration is provided, with option 2 requiring it to a greater degree than option 1. Option 3 entails full microfiltration. The major quality difference is in the total organic carbon (TOC) reduction.

The data illustrate the sensitivity of wastewater reclamation cost to the level of quality desired. The cost is, of course, also quite sensitive to the difference between the quality of the source water and the desired quality of the product water. Thus, the magnitude of the cost will be crucially conditioned by regulatory requirements on the quality of waters to be reclaimed by spreading or direct injection.

In the Orange County situation the least-cost alternative source of water is surface water delivered from the Metropolitan Water District at a cost of $600 per acre-foot. To this must be added the capital and operating costs of transport

TABLE 5.1 Comparison of Treatment Costs and Product Water Quality, Well Injection at Orange County, California

Chemical Constituent

Option 1

Option 2a

Option 3a

Total dissolved solidsb

650 mg/l

600 mg/l

600 mg/l

Sodium

143 mg/l

139 mg/l

139 mg/l

Chloride

151 mg/l

140 mg/l

140 mg/l

Sulfate

140 mg/l

122 mg/l

122 mg/l

Total organic carbon

8.6 m/l

5.5 mg/l

5.5 mg/l

Cost per acre-footc

$251

$359

$387

a The cost difference between options 2 and 3 is attributable to employment of full microfiltration for option 3 but only partial microfiltration for option 2.

b Source water is assumed to contain 900 mg/l total dissolved solids for all three options.

c Cost includes capital consumption, debt service, and operation and maintenance costs.

Source: Orange County Water District/County Sanitation Districts of Orange County, 1993.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

ing the water to spreading grounds, which are $82.40 per acre foot. The total costs of the least cost alternative, then, is $682.40. Thus, option 1 is the least-cost alternative, but both options 2 and 3 are less costly than purchasing supplemental surface water supplies (Orange County Water District/County Sanitation Districts of Orange County, 1993).

It is important to note that wastewater treatment facilities generally exhibit increasing returns to scale. Thus the costs of operation are usually cited for some constant and optimal quantity of water to be treated, given the size of the treatment facility in question. If the volumes of wastewater to be treated are highly variable from season-to-season or year-to-year, the costs of treatment may be higher since the facilities cannot be operated consistently at optimal levels. Similarly, if the volumes of wastewater to be treated decline over time because of water conservation efforts, the costs of wastewater treatment could increase as the volumes of water to be treated no longer match well with the size or scale of the treatment facility. These points underscore the importance of accounting for likely changes in future volumes of wastewater and the constancy of those volumes in the design of wastewater treatment facilities.

Inasmuch as the costs and benefits of using reclaimed wastewater vary from situation to situation, it is difficult to generalize meaningfully about the economic attractiveness of reclaimed wastewater. It is clear, however, that the feasibility of artificial recharge requires the existence of unambiguous fights to the reclaimed water once it is in the ground. Beyond this, the specific economic calculus depends on the cost of the particular treatment and spreading or reinjection scheme as well as the cost of alternative sources of supply.

LEGAL ISSUES

Artificial recharge of ground water is one of the developments in water management that is challenging existing legal strictures to respond to changing societal needs. Experience with recharge projects suggests that society's laws can evolve to accommodate new strategies such as artificial recharge, if demand is strong enough.

One difficult question raised by ground water recharge is, What policies should be formulated to protect public health, safety, property, third-party, and ecological interests, while not imposing inappropriate controls on this form of water development? The decentralized nature of the current regulatory structure will, in time, provide experience that demonstrates the merits of different regulatory standards. For now, some of the regulations that have been applied by different government entities can be surveyed and guidance sought from these policies. The controls imposed vary greatly from jurisdiction to jurisdiction, so what follows is a conceptual guide to the sort of considerations that have been raised in different areas. California has the most extensive regulatory scheme

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

for ground water recharge, and these regulations and their institutional setting axe illustrative.

This study is focused on the artificial recharge of ground water for subsequent reuse of water, whether for potable or nonpotable uses. The legal issues are grouped under the general topics of water rights, protection of ground water quality, use of the recharge water after recovery, and environmental consequences. General statutes that might have a bearing on projects are also reviewed. Considerations that are unique to the source of the recharge water (e.g., treated municipal wastewater, stormwater runoff, and irrigation return flow) are addressed when possible.

Water Rights

A prime issue in ground water recharge is the ownership of the water proposed for recharge. A project proponent must have the legal right to use the source water for that purpose. As a corollary, the project proponent must have the legal right, against other competing users, to withdraw the recharge water.

A water right is commonly established for some use, such as irrigation, industrial processing, or domestic water supply. When the source of ground water recharge is water that has previously been used in some fashion, the question presented is whether the entitlement to use it also creates a right to control what is left over. For example, domestic wastewater can be viewed as a liability that a city must dispose of, or as an asset that might be of value to someone. In the arid West, the only flow in a stream may come from wastewater produced and discharged by a city. Downstream users may become dependent on this flow, and ecosystems may emerge that rely on it. Someone proposing to use this "resource" for a new purpose, such as ground water recharge, must have a legal entitlement to use the water in that way.

The ownership of wastewater was at issue in Arizona Public Service Co. v. Long, 160 Ariz. 429, 773 P.2d 988 (1989). In this case, a municipal government was challenged on its ability to sell effluent that it had formerly disposed of in a stream. The court held that the effluent could be sold by the city and that the city was not required to continue the discharge. The water was neither "surface water" nor "ground water," although the legislature could in the future bring it within its statutory scheme for these waters (McGinnis, 1990). The New Mexico Supreme Court in Reynolds v. City of Roswell, 99 N.M. 84, 654 P.2d 537 (1982), also permitted a discharger to cease discharging effluent to a stream, despite the objections of the state engineer. New Mexico, in fact, has a statute defining effluent as "private waters" and allowing the discharger to reuse it (N.M. Star. Ann. § 72-5-27).

The California legislature established a statutory right to reclaimed waste-water in the entity that operates a wastewater treatment facility (Cal. Water Code § 1210). The statute establishes rights in the wastewater with respect to the

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

supplier of the water. With respect to downstream entities that have legal interests in flows, however, permission of the water board must be obtained before the discharge is affected (Cal. Water Code § 1211).

The existence of a right to reuse water may also be dependent on the nature of the original entitlement to water. A user's water right may have been calculated assuming that a certain volume of water would be returned to the stream, so that the user would not have the right to instead divert that water. In some instances, a user's entitlement to reuse water will be a matter of contractual arrangements with the supplier.

Finally, in some states an additional element of ownership may be required before a project can proceed. Under the prior appropriation doctrine, a use must be permissible, or "beneficial," under state law for an applicant to have fights to the water. Colorado, Idaho, Kansas, Nebraska, Oklahoma, and Oregon have recognized ground water recharge in their water laws in varying manners (Colo. Rev. Star. § 37-92-103(10.5) (1992); Idaho Code § 42-4201A(a)(2) (1992); Kan. Star. Ann. § 82a-928 (1992); Neb. Rev. Stat. § 46-295 (1992); Okla. Stat. Title 82, § 1020.1-1020.22 (1992); Or. Rev. Stat. § 537.135 (1991)). Florida takes an inventive approach to linking water rights to reuse of reclaimed wastewater, including reuse through recharge of ground water. Regulations of the Environmental Regulation Commission provide that "In implementing consumptive use permitting, a reasonable amount of reuse of reclaimed water from domestic wastewater treatment facilities shall be required within designated water resource caution areas, considering economic, environmental, and technical factors" (Florida Administrative Code A.R. 17-40.416(2)).

Environmental statutes also may affect a user's fight to cease making a discharge to a stream or wetland for the purpose of ground water recharge. A new diversion could, for example, affect an endangered species (Western States Water Council, 1990), but aside from protections offered endangered species there would generally be no protection for the affected environment. Oregon is an exception to this general rule: it has provided by statute that a ground water recharge permit shall not be issued "unless the supplying stream has a minimum perennial stream flow established for the protection of aquatic and fish life" (Or. Rev. Stat. § 537.135 (1991)). An environmental review, if required under state or federal law, might identify the environmental interest in maintaining a discharge. Interestingly, California has acted to protect two environmental opportunities that can be created by water reuse: if water reuse lessens stream demand, the remaining flow in the stream can be protected from new appropriations, and if reclaimed water is discharged to a stream, the newly created streamflow can be protected (Cal. Water Code § 1212).

Water fights are also of key importance when the time comes to withdraw water from a ground water basin. Without clear protection of the project proponent's economic investment in the recharge water, there is no incentive for projects. A study by the Western States Water Council identified only a few

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

western states that explicitly protect rights in recharge water (Western States Water Council, 1990). In California, case law has established the nature of the recharger's right to exclusive withdrawal of the recharged ground water (Los Angeles v. San Fernando, 14 Cal. 3d 199, 537 P.2d 1250 (1975) and Alameda County Water District v. Niles Sand and Gravel Co., 37 Cal. App. 3d 924, 112 Cal. Rptr. 846 (1974), cert. denied, 419 U.S. 869 (1975)).

Protection of Ground Water Quality

The addition of water to ground water can affect the quality of the "native" ground water. Ground water quality is the focus of much of environmental law, but there is no comprehensive federal ground water statute.

Congress has, however, given EPA the ability to regulate certain types of ground water recharge through the Underground Injection Control (UIC) program of the Safe Drinking Water Act (42 U.S.C. § 300h to 300h-7 (1988)). This act is administered by EPA and by states with approved programs. The act does not protect all ground water, but rather protects, as its name suggests, underground sources of drinking water (USDW), which are aquifers that are used or could be used for public water systems. While there is a general presumption that aquifers of good-quality water are USDWs, the regulations allow exemptions primarily where the aquifer is of poor quality (40 CFR § 146.3 (1992); 40 CFR § 146.4 (1992)).

This authority extends to two significant forms of ground water recharge: injection wells for highly treated wastewater and dry wells used to dispose of stormwater runoff. Both are Class V wells, within the terminology of the act. Dry wells are brought within the scheme by the inclusion of "[a]ny dug hole or well that is deeper than its largest surface dimension, where the principal function of the hole is emplacement of fluids" (40 CFR § 144.1(g)(1) (1992)). The dispositive issue controlling whether remediated wastewater is brought within the regulatory system is thus the diameter of the well. Residential septic systems are specifically excluded from the regulations (40 CFR § 144.1(g)(2) (1992)).

The regulatory authority given to EPA by the act for Class V wells has not been exercised by the agency, and the regulations now require little more than notification of the entity administering the program and submission of certain information (40 CFR § 146.52(a) (1992); 40 CFR § 144.24 (1992)). The agency administering the program is given authority to take action when a Class V well "may cause a violation of primary drinking water regulations" or where it "may be otherwise adversely affecting the health of persons" (40 CFR § 144.12 (1992)). EPA has yet to exercise further regulatory authority over Class V wells. Even as it moves to do so (58 Fed. Reg. 25,033 (1993)), there is no indication that injection for reuse will be a priority at the agency. Therefore, there is little immediate prospect of federally imposed standards for these types of projects. In any event, the limitations of constructing a regulatory scheme under the frame-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

work of the Safe Drinking Water Act should be noted. The act protects only drinking water sources, and aquifers used for other purposes are not necessarily protected. The emphasis of the act is on injection wells, so that, while they would be regulated under the act, surface spreading and soil-aquifer treatment (SAT) recharge of wastewater, for example, would not be. Finally, it is the violation of primary drinking water standards that is forbidden under the regulatory scheme (see, for example, 40 CFR § 144.12 (1992)). Many would argue for a higher degree of protection for an aquifer than wellhead compliance with these standards. A technology-based regulatory system could potentially result in better, albeit more costly, aquifer protection.

Aside from the UIC program, one must turn to state and local governments for laws governing ground water protection. State laws protecting ground water vary in what is regulated, the means of regulation, and the standards to which ground water is protected (National Research Council, 1986). A project that has a potentially detrimental effect on ground water may be subject to a permitting review to demonstrate that it would not cause ground water standards to be violated. These ground water standards are set by states without reference to a federal minimum level of protection, unlike most statutory schemes. States differ over whether they have a policy of nondegradation and over what degree of degradation of ground water is permitted. At the state and local level the control may vary depending on the source of the recharge water. The composition of the recharge water may determine the scrutiny that the project receives.

Arizona, Nevada, and Oregon provide examples of the different approaches taken by states. All three address ground water recharge statutorily and permits are required by each state (Ariz. Rev. Stat. Ann. § 45-652(B), § 45-672(B); Nev. Rev. Stat. Ann. § 534.015); Or. Rev. Stat.§ 537.135 (1992)). However, the permit requirements are different in each state.

Of the three states, Arizona has the most extensive regulatory program. The permit applicant must show (1) the technical and financial capability of the project proponent; (2) the fight to use the water for recharge or replenishment; (3) that the project is hydrologically possible; (4) that the project "will not cause unreasonable harm to land or other water users"; and (5) that the applicant has applied for an aquifer protection permit (Ariz. Rev. Star. Ann. § 45-652(B), § 45-672(B)). The Aquifer Protection Permit program regulates point and nonpoint source discharges to aquifers. The program is designed to protect ground water, including "the protection of public health and the environment, preventing, mitigating, and remediating ground water contamination, regulating discharges to surface water and ground water and conserving ground water resources" (Redding and DuBois, 1990). One of the requirements of the aquifer protection permit is that the recharge water must not violate the Aquifer Water Quality Standards at the point of compliance (Ariz. Comp. Admin. r. and Regs. 18-11-401-408 (1992)). The point of compliance is the top of the aquifer, and credit can be given for treatment in the vadose zone. The Aquifer Water Quality

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

Standards encompass the federal primary drinking water standards and additional narrative standards. The narrative standards are meant to prevent discharges (or rather, recharges) which cause a pollutant to be present in an aquifer at levels that would endanger public health.

In Nevada, the state engineer oversees ground water recharge projects (Nev. Rev. Star. Ann. § 534.250). Permits are required for recharge projects and, as in Arizona, the applicant must show (1) a legal right to use the water, (2) that land and other water users will not be harmed, and (3) that the project is technically, financially, and hydrologically feasible. However, specific ground water protection measures are not part of the Nevada statute. Instead, Nevada requires the operator of a recharge project to monitor the operation of the project and the "effect of the project on users of land and other water within the area of hydrological effect." Monitoring requirements are determined by the state engineer in cooperation with "all government entities which regulate or monitor... the quality of water."

Oregon has a short statutory provision addressing ground water recharge (Or. Rev. Stat. § 537.135 (1992). The appropriation of water for ground water recharge is recognized as a beneficial use. The Water Resources Commission is to develop standards that must be met for ground water recharge permits. The project must not be "prejudicial to the public interest" (Or. Rev. Star. § 557.135 (1992)). A permit is also required to apply artificially stored water to beneficial use.

A corollary to ground water concerns arising from recharge projects should be noted. Projects that use a ground water basin for storage also acquire a practical interest in the protection of that basin from possible contamination from other sources. Sources of ground water contamination are ubiquitous, including underground storage tanks for petroleum products, landfills and hazardous waste facilities, septic tanks, pesticides and herbicides, agricultural fertilizer residues (nitrate), and virtually any other activity conducted on land. The desire to protect a ground water supply led to the Metropolitan Water District of Southern California to join an environmental group in challenging the expansion of a landfifll in the San Gabriel Basin (Krautkraemer, 1991).

Use of Recharge Water

The use to which recharge water is put once it is recovered may also affect the regulations to which a project is subject. The Safe Drinking Water Act is intended to protect consumers of water through protection and regulation at the wellhead. Specific numeric parameters limit the presence of contaminants in the water supply. States can impose additional requirements on water to be reused for drinking. In Florida, for example, injection wells used to recharge ground water are subject to comprehensive regulation under the .state administered UIC program (Fla. Admin. Code Ann. r. 17-28.011 to 17.610 (1985)) and related

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

ground water regulations (see Fla. Admin. Code Ann. r. 17-600.540 (1985)). The Florida UIC program protects sources of drinking water and also protects the quality of aquifers used for other purposes. The regulations require that the injected fluid stay within the "injection zone," and "unapproved interchange of water between aquifers is prohibited." An injection zone is "a geological formation, group of formations, or part of formation receiving fluids directly through a well" (Fla. Admin. Code Ann. r. 17-28.120(39)).

Under the Florida UIC program, Class V wells are much more extensively regulated than under the federal program. Class V wells are divided into six categories, according to the "expected quality of the injected fluid," in order to determine what permitting, operating, and monitoring regulations are needed (Fla. Admin. Code Ann. r. 17-28.510). Group 2 wells are "recharge wells used to replenish, augment, or store water in an aquifer." In general, Class V wells must be so constructed that, at the point of discharge, water quality standards are not violated. The minimum criteria for ground water protection require that "all ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-made non-thermal discharges of concentrations which" pose a threat, either carcinogenic, mutagenic, teratogenic, or toxic or which pose a threat to the public health, safety, or welfare (Fla. Admin. Code Arm. r. 17-520.400). In addition, the ground water shall be free from concentrations that are harmful to plants, animals, or organisms "which are native to the soil and responsible for treatment or stabilization of the discharge.'' Indigenous species of "significance to the aquatic community within surface waters affected by ground water at the point of contact with surface water" are also protected. Finally, the discharge must not create or constitute a nuisance or impair the reasonable and beneficial use of adjacent waters." The operation of Class V wells must not "cause or allow the movement of fluid containing any contaminant into underground sources of drinking water" if the presence of the contaminant will violate any primary drinking water standard (Fla. Admin. Code Ann. r. 17-28.610). The primary drinking water standards set maximum contaminant levels for organic and inorganic contaminants, turbidity, coliforms, and radionuclides (Fla Admin. Code Ann. r. 17-550.310). The primary drinking water standards may also serve as ground water quality standards.

To the degree recharge water is put to purposes other than drinking, such as landscape irrigation, there is no federal statute controlling these uses.

Environmental Consequences

Another regulatory mechanism with potential impact on ground water recharge is the National Environmental Policy Act (NEPA). NEPA was enacted to require federal agencies undertaking projects to consider the environmental consequences of "actions significantly affecting the quality of the human environment" (42 U.S.C. § 4332 (1988)). For projects for which an environmental

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

impact statement is required, the act requires a far-reaching examination of consequences of projects and of alternatives. Public participation is also mandated. NEPA can also provide an opportunity for federal agencies to mitigate the environmental consequences of their projects, despite the lack of explicit regulatory language.

Some states review the environmental consequences of projects under so-called "little NEPAs." These statutes apply where the state or a local government is the proponent of a project and provide for similar far-reaching review of projects.

The Clean Water Act (Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1988)) may also come into play in some ground water recharge projects. For instance, a recharge project that occurs a streambed may require a federal permit to alter the streambed. Section 404 of the Clean Water Act mandates permits for "the discharge of dredged or fall materials" (33 U.S.C. § 1344 (1988)). The administrator of EPA can deny a permit if "the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas" (Federal Water Pollution Control Act 33 U.S.C. § 1344 (1988)).

If the project to recharge water occurs in a streambed, it may also have to meet surface water quality standards if the source water is "discharged" to the stream. (This would occur, for example, if source water from stormwater or wastewater facilities were collected in some fashion and then discharged through a discrete conveyance to a stream.) A permit is not required under federal law for irrigation return flows that are discharged to a stream (33 U.S.C. § 1342 (1) (1988)).

California's Regulatory Controls: A Closer Look

California is the state where the greatest attention has been paid to the regulatory aspects of ground water recharge projects with treated wastewater. While, by statute, California actively encourages the reuse of wastewater for beneficial purposes, California's regulatory agencies have carefully scrutinized projects and reworked regulatory requirements. In this section, a brief history of this regulation development is presented.

History of Regulatory Activities in California

Although incidental and unplanned ground water recharge with municipal wastewater effluent has occurred for many years in California, it was not until the 1960s that the first large-scale, planned spreading operation began at Whittier Narrows in the Montebello Forebay area of Los Angeles County (Hartling, 1993). The injection of highly treated wastewater from Orange County Water District's

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

MILESTONES IN THE HISTORY OF GROUND WATER RECHARGE IN CALIFORNIA

1962

The first large-scale planned operation of ground water recharge was implemented when secondary effluent from the Whittier Narrows Water Reclamation Plant in Los Angeles County was spread in the Montebello Forebay area of the Central Groundwater Basin.

1973

The California Department of Health Services (DOHS) developed a position statement on the uses of reclaimed water involving ingestion, essentially placing a moratorium on new projects for ground water recharge

1975

The State of California convened a Consulting Panel on the Health Aspects of Wastewater Reclamation for Groundwater Recharge to provide recommendation for research that would help DOHS establish statewide criteria for ground water recharge.

1976

DOHS developed draft regulations for ground water recharge that were subsequently used as guidelines.

1976

Ground water recharge by direct injection was initiated by the Orange County Water District to prevent saltwater intrusion.

1978

The Sanitation Districts of Los Angeles County (SDLAC) initiated a 5-year health effects study to investigate the health significance of using reclaimed water for ground water replenishment.

1978

Revisions made to the state's wastewater reclamation criteria included acceptance of the use of reclaimed water for recharge of potable aquifers by spreading. Specific requirements were to be determined on a case-by-case basis.

1984

SDLAC's health effects study was published and indicated that the spreading of reclaimed water into the Montebello Forebay had not resulted in observable adverse health effects on consumers of extracted ground water containing reclaimed water.

1986

The state of California appointed a Scientific Advisory Panel on Groundwater Recharge with Reclaimed Wastewater to provide information needed for the establishment of statewide criteria for ground water recharge.

1987

State regulatory agencies approved a 50 percent increase in the amount of reclaimed water that could be spread in the Montebello Forebay area.

1992

DOHS and the Santa Ana Regional Water Quality Control Board approved the injection of 100 percent reclaimed water by the Orange County Water Districts Water Factory 21.

1993

DOHS released comprehensive draft regulations directed toward spreading and injection of reclaimed water into potable aquifers.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

Water Factory 21 to create a seawater intrusion barrier, which is still the only project in California involving injection of reclaimed water, began with pilot testing in the late 1960s and became operational in 1976 (Argo and Cline, 1985). Increasing demands for water and economic and environmental concerns associated with new surface water development and large-scale water importation projects have given rise to expanded interest in the use of reclaimed water as a means of supplementing existing water supplies and meeting some of the future water needs of the state.

1973 Department .of Health Position Statement

In the early 1970s, several water quality control plans (''basin plans") were developed under the direction of the State Water Resources Control Board (SWRCB). The basin plans identified 36 potential ground water recharge projects in the state. In 1973, the California State Department of Health Services (DOHS) prepared a position statement in response to proposals in the basin plans for augmentation of domestic water sources with reclaimed water. Three uses of reclaimed water were considered in the statement: (1) ground water recharge by surface spreading; (2) direct injection into an aquifer suitable for use as a domestic water source; and (3) direct discharge of reclaimed water into a domestic water supply system (California Department of Health Services, 1973).

The DOHS position statement recommended against direct discharge into a domestic water supply system and direct injection into aquifers used as a source of domestic water supply. It also stated that injection may be considered as an option and that injection for saline water intrusion barriers may be acceptable. In regard to surface spreading, the 1973 position statement concluded that surface spreading appears to have great potential as an option for ground water recharge even though information on health effects is uncertain. In regard to specific types of recharge projects, the recharge of small basins with large quantifies was not to be recommended, but proposals for recharge of large basins with small amounts was to be considered, depending on details such as community well locations. The position statement essentially placed a moratorium on new projects for ground water recharge.

1975 Consulting Panel

As discussed in Chapter 4, in 1975 three state agencies—DOHS, SWRCB, and the Department of Water Resources (DWR)—jointly prepared a state-of-the-art report on the health aspects of water reclamation and reuse for ground water recharge (State of California, 1975). They convened a special panel, the Consulting Panel on the Health Aspects of Wastewater Reclamation for Groundwater Recharge, to recommend a program of research and demonstration projects to provide information to assist DOHS in the establishment of reclamation crite-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

ria for ground water recharge to augment potable water supplies. The panel was also asked to assist DWR and SWRCB in the planning and implementation of programs to encourage use of reclaimed water consistent with those criteria.

The panel, which confined its discussions to ground water recharge by surface spreading in order to better define the domain under consideration, concluded that uncertainties exist regarding potential health effects from the use of reclaimed water for ground water recharge, the principal concern being stable organic materials. In order to address the uncertainties, the panel recommended that comprehensive studies on the health effects of ground water recharge be initiated at existing projects and new demonstration projects established to gain field information under selected and controlled conditions. To provide a database for estimating health risk, research was recommended specifically in the areas of contaminant characterization, toxicology, and epidemiological studies of exposed populations (State of California, 1976).

In 1976, DOHS developed draft regulations for ground water recharge of reclaimed water by surface spreading (Crook, 1985). The proposed criteria were principally directed at the control of stable organic constituents. The minimum level of treatment specified in the draft regulations was conventional secondary treatment followed by carbon adsorption and percolation through at least 10 feet (3 m) of unsaturated soil. The proposed criteria included reclaimed water quality requirements, an effluent monitoring program, a minimum dilution requirement, and a minimum underground residence time of 1 year prior to ground water withdrawal. Other proposed requirements included detailed reports on hydrogeology and spreading operations, establishment of an industrial source control program, development of contingency plans, and implementation of a health monitoring program for the exposed population. The proposed regulations were not adopted as statewide criteria at that time but were used as guidelines for evaluating new ground water recharge projects.

In an attempt to answer some of the health-related issues associated with ground water recharge and implement the recommendations of the panel, the Sanitation Districts of Los Angeles County (SDLAC) initiated a health effects study in 1978 (Nellor et al., 1984). The focus of the study was the Whittier Narrows ground water recharge project in the Montebello Forebay area of Los Angeles County. The primary goal of the 5-year study was to develop a database that could be used to enable health and regulatory authorities to determine whether the use of reclaimed water for ground water replenishment at Whittier Narrows should be maintained at the present level, cut back, or expanded. A second goal of the study was to provide information to DOHS to use in establishing statewide reclamation criteria for recharge. (For more information, see Chapter 4.)

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×
1986 Scientific Advisory Panel

As discussed in Chapter 4, the state of California commissioned a Scientific Advisory Panel on Groundwater Recharge with Reclaimed Water in 1986 to (1) define the health significance of using reclaimed water for ground water recharge to augment potable water supplies; (2) evaluate the benefits and risks associated with ground water recharge with reclaimed water; and (3) provide detailed background information needed for the establishment of statewide criteria for ground water recharge with reclaimed water (State of California, 1987a). The panel concluded that the Whittier Narrows ground water replenishment project should continue. Recharge via spreading was determined to be preferable to injection, and the panel concluded that available treatment processes can adequately remove organic constituents of concern. The panel also concluded that reclaimed water should be disinfected prior to injection or spreading; however, disinfection processes should not produce harmful by-products. It also concluded that all new projects should include prospective health surveillance of populations and biochemical testing of concentrates to determine whether substances likely to be harmful are present at low levels. State-of-the-art toxicology studies with animals were recommended for the purposes of risk evaluation. Finally, the panel recommended continued analytical chemistry investigation and monitoring to identify and quantify chemical constituents.

The Scientific Advisory Panel concurred with the health effects study findings and concluded that the risks, if any, associated with the Whittier Narrows recharge project were small and probably not dissimilar from those that could be hypothesized for commonly used surface waters. The panel tempered this conclusion with the statement that the results are "marginal or inconclusive" with regard to cancer because the exposure period was short in relation to the expected minimum 15-year latency period for chemically induced cancers (State of California, 1987b).

Water Reclamation Requirements Current and Proposed Regulations

While aspects of its regulatory development process have been protracted, California has developed a comprehensive approach to ground water recharge with treated municipal wastewater. A number of state agencies are involved in the regulation of ground water recharge projects. SWRCB establishes state water quality control policy and, along with the Regional Water Quality Control Boards (RWQCBs), is responsible for the protection of water quality (Cal. Water Code §§ 13140, 13523). DOHS establishes water reclamation and reuse criteria for each different use of reclaimed water (Cal. Water Code § 13521). The regional boards implement the water reclamation program requirements.

The RWQCBs, after consultation with DOHS, prescribe water reclamation

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

requirements for projects proposing to use reclaimed wastewater. The RWQCBs issue permits authorizing the reclamation projects, and each permit includes the reclamation criteria relevant to the particular project (Cal. Water Code § 13523). The reclamation requirements must include, or conform with, the state criteria. The RWQCBs may impose regulations on "the person reclaiming the water, the user, or both."

The wastewater reclamation criteria found in the California Administrative Code, Title 22 §§ 60301-60329 (1994) define reclaimed water to be "water which, as a result of treatment of domestic waste water, is suitable for a direct beneficial use or a controlled use that would not otherwise occur." The requirements include current criteria for ground water recharge (Cal. Water Code Tide 22 § 60320). A surface spreading project must have a permit and must meet the criteria. Water reclaimed by surface spreading "shall at all times be of a quality that fully protects public health." Under the current regulations, specific criteria are not established for ground water recharge by surface spreading, and projects are considered on a case-by-case basis. For each project, the RWQCB works with DOHS to establish permit requirements based on "all relevant aspects of each project, including the following factors: treatment provided, effluent quality and quantity, spreading area operations, residence time, and distance to withdrawal'' (Cal. Water Code Title 22 § 60320).

Injection wells are addressed statutorily in section 13540 of the California Water Code. Injection wells may be used for ground water recharge if the regional board finds that "water quality considerations do not preclude" such activities and if DOHS, after a public hearing, determines that an injection well will not "impair the quality of water in the receiving aquifer" (Cal. Water Code § 13540). There are currently no regulations for injection wells in general, and requirements are imposed on a case-by-case basis.

DOHS formed a ground water recharge committee in 1988 to begin development of ground water recharge criteria. In a coordinated effort to address the regulatory needs associated with ground water recharge, DOHS, SWRCB, and DWR jointly developed a draft document entitled Proposed Guidelines for Groundwater Recharge with Reclaimed Municipal Wastewater in 1990 (State of California, 1990). The proposed guidelines were meant to help encourage and plan for the efficient use of the state's water resources and to increase water supply reliability by identifying the means for the safe use of treated municipal wastewater for ground water recharge. In addition, the proposed guidelines were to be a guide for the regional boards in establishing ground water quality objectives and water reclamation requirements. The guidelines were also to ensure that ground water recharge with reclaimed water, whether planned or incidental, would be regulated in a consistent manner. Finally, the guidelines were meant to assist in planning ground water recharge with reclaimed wastewater by providing criteria that detail what information is needed for review by regulatory agen-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

cies. The proposed guidelines discuss guiding principles, permitting procedures, and draft criteria for ground water recharge.

The proposed regulations have gone through several iterations (California Department of Health Services, 1993b). When finalized, the proposed criteria will replace the existing general regulations for ground water recharge in the DOHS wastewater reclamation criteria (Cal. Admin. Code Title 22 §§ 60301-60329 (1975)).

The proposed regulations address both surface spreading and injection projects, and are focused on indirect potable reuse of the recovered water. Treatment requirements and performance standards are proposed for each type of project. They also address water quality standards, recharge methods, operational controls, distance to withdrawal, time in the underground, and monitoring.

TABLE 5.2 Proposed Ground Water Recharge Criteria in California: Treatment Process and Site Requirements

 

Project Categorya

 

I

II

III

IV

Required treatmentb

 

 

 

 

Oxidation

x

x

x

x

Filtration

x

x

 

x

Disinfection

x

x

x

x

Organic Removal

x

 

 

x

Maximum allowable reclaimed

50

20

20

50

water in extracted well

 

 

 

 

water (%)

 

 

 

 

Depth to ground water (ft) at initial percolation rate of:

 

 

 

 

<0.2 inches/minute

10

10

20

n.a.c

<0.3 inches/minute

20

20

50

n.a.

Minimum retention time underground (months)

6

6

12

12

Horizontal separationd (feet)

500

500

1,000

1,000

a Categories I, II, and III are for surface spreading projects; Category IV is for injection projects.

b X means that the treatment process is required.

c n.a. = not applicable.

d Distance from spreading area or injection well to nearest extraction well.

Source: California Department of Health Services, 1993a.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

A summary of the proposed treatment process and site requirements is presented, in Table 5.2.

The proposed regulations prescribe stringent microbiological and chemical constituent limits. For spreading operations, credit is given for chemical constituent removal and removal or inactivation of pathogenic microorganisms during percolation through the vadose zone, and the percolated water must be essentially pathogen-free and meet drinking water maximum contaminant levels after percolation.

The proposed regulations specify total organic carbon (TOC) as a surrogate for trace organic constituents that may be of concern. Although TOC is not a measure of specific organic compounds, it is considered to be a suitable measure of gross organic content of reclaimed water for the purpose of determining organic removal efficiency in practice. Based principally on the Scientific Advisory Panel report, DOHS concluded that extracted ground water should contain no more than 1 mg/1 TOC of wastewater origin. This decision is reflected in maximum allowable TOC concentrations in the reclaimed water prior to spreading or injection.

Prior to adoption, the proposed regulations are subject to external review and any modifications that DOHS deems appropriate based on comments received. Hence, the proposed regulations may be substantially different from the ground water regulations that are ultimately adopted in California.

The wastewater reclamation criteria apply only to the reuse of domestic water. There are currently no regulations dealing with the use of stormwater runoff and irrigation return flow for ground water recharge, and such projects are dealt with on a case-by-case basis.

Other Relevant Laws

In addition to the laws specifically addressing ground water recharge, two other water protection laws, the Porter-Dolwig Ground Water Basin Protection Law (Cal. Water Code §12922) and the California Safe Drinking Water Act (Cal. Health and Safety Code § 4010), also relate to the use of reclaimed waste-water for ground water recharge.

The Ground Water Basin Protection Law seeks to ensure "the correction and prevention of irreparable damage to, or impaired use of, the ground water basins of this state caused by critical conditions of overdraft, depletion, seawater intrusion or degraded water quality" (Cal. Water Code, § 12922). The law applies to projects that, among other things, are used for reclamation of water used to "replenish, recharge or restore a ground water basin... when such basin is relied on as a source of public water supply" (Cal. Water Code § 12921.3). Under section 12923, projects may be reviewed by DWR and evaluated in terms of potential threats to the ground water and the project plans and design criteria

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

may be revised in order to ensure that the ground water is protected (Cal. Water Code § 12923).

The California Safe Drinking Water Act is intended to ensure that the state has pure, wholesome, and potable drinking water (Cal Health and Safety Code § 4010). The regulations set forth primary and secondary drinking water standards, which are similar or more stringent than the federal standards, and are administered by DOHS. Operators of public water systems that extract ground water that is partially recharged wastewater must comply with the primary and secondary drinking water standards (Cal. Health and Safety Code § 4017).

INSTITUTIONAL ISSUES

Many institutional factors affect the viability of ground water recharge projects. In examining these influences, the fact of their mutability should be kept prominent: an uneconomic project can look feasible if subsidies are provided, or an unhelpful legal structure can be changed. Education programs can help shift public opinion.

Although the cost of alternative supplies is a critical factor, the existence of

WATER CONSERV II, ORANGE COUNTY FLORIDA

Water Conserv II is billed as the largest water reclamation project in the world that combines agricultural irrigation and rapid infiltration basins. The project uses water reclaimed form sewage to irrigate citrus groves and to recharge the Upper Floridan aquifer through rapid infiltration basins. It is a cooperative water conservation effort by the city of Orlando, Orange County, and the agricultural community.

The system is designed to produce 50 millon gallons of reclaimed water per day from two sewage treatment facilities. The reclaimed water is delivered to citrus grove owners under 20-year contracts for irrigation and frost protection purposes. What is not used for irrigation is routed to rapid infiltration basins for recharge of the Upper Floridan aquifer, the principal source of water for most of Florida The system is designed to provide reclaimed water to 12.000 to 15,000 acres of citrus and to 2,000 acres of rapid infiltration basins.

This cooperative effort provides an excellent illustration of how collaborative arrangements can resolve both the sewage disposal and the water supply problems of an area Agricultural users obtain reclaimed water at little or no cost thereby increasing the profitability of their operations. Simultaneously, water supply from the Upper Floridan aquifer is enhanced both by the direct recharge via the rapid infiltration basins and by in lieu recharge," which occurs because agricultural users reduce demand on the aquifer. The result is that there is greater availability of high-quality ground water for the potable water needs of the rapidly growing central Florida area at the same time that the agricultural demands of citrus growers are being met.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

an entity with a motive to develop the water source is also critical. Thus, in a jurisdiction where ground water is developed for use by individuals (as in a rural agricultural area), and not by a central water district, ground water recharge may not occur because no individual has a sufficient stake to invest in its development. In southern California, in contrast, the Metropolitan Water District is a dominating entity with an interest in water conservation and the use of recharge basins (Tarlock, 1991).

While ground water recharge may be an appropriate means of augmenting water supplies, it can also be attractive because of a very different type of imperative. Disposal of wastewater can be expensive, especially with escalating pollution control requirements applied to discharges. These requirements have increased in cost and complexity, and are largely the result of federal and state level decision making. A "no discharge" operation may be appealing to the local government that is operating the wastewater disposal facility, regardless of the downstream ecological consequences.

Nonpoint source pollution has historically been exempt from pollution control regulation. There is some likelihood that pollution from nonpoint sources will become the focus of regulation in the future. Thus, for example, EPA's stormwater regulations (40 CFR § 122.26 (1992)) are now bringing stormwater runoff under regulatory control. These newly regulated dischargers face a choice not unlike that faced by industrial facilities 20 years ago: to what media shall the discharge be directed? If regulatory requirements for ground water disposal are less than those for surface water discharges, the use of artificial recharge projects may increase.

The statutory exemption of irrigation return flow from the Clean Water Act (33 U.S.C. § 1362(14)) has periodically been subject to criticism because of the constituents found in those discharges. If these sources are subjected to regulation by Congress, pressure might build for alternative disposal methods, including deliberate discharge to ground water.

Ground water recharge as a form of conjunctive use offers possible environmental advantages. Dams and reservoirs are criticized on environmental and economic grounds. Ground water storage can provide a means of achieving many of the same ends, but with fewer contentious aspects. Further, ground water storage projects can lessen demands on a river by allowing storage of peak flows, so these can be used at times of low flows.

The enthusiasm of a project developer is affected by the regulatory environment. While protracted reviews are no longer unexpected for large-scale projects, shifting regulatory targets can discourage project proponents. The content of regulations is frequently asserted to be less important than the certainty of regulations. For ground water recharge projects, the burden of being the first project in a state or jurisdiction can impose additional requirements on project proponents and discourage innovation.

The multiplicity of organizations involved in a typical recharge project might

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

be thought to spell doom for any such project. This is a difficult proposition to test because it is harder to identify projects that never were initiated than to chronicle those that are now operational and therefore have overcome institutional barriers. Some research indicates that the mere multiplicity of actors is not an insurmountable barrier to these projects, when the need is great (Tarlock, 1991). This thesis is not immediately intuitively obvious, but examples abound where a multiplicity of powers successfully cooperate for common ends.

Because it can be expensive to research and develop new regulations, federal research into scientific and engineering issues and federal involvement in development of model statutes and guidelines can help states in their evaluation of proposed recharge projects. Needless to say, this research should reflect the substantial experience already garnered by the states and regions. The existence of this regulatory infrastructure can benefit those proposing projects and the public by providing clear guidance as to the jurisdiction's requirements. Whether the federal role should go beyond providing technical assistance is a matter of debate; given the innovation already evidenced by several states, and the variability in physical conditions among the regions of the nation, the merits of an expanded federal role should be evaluated as the pressure to utilize recharge grows. If states are stymied in the adoption of regulatory schemes, adopt regulations that result in health concerns, or ask for federal assistance, then federal regulation might be desirable.

Southern California's efforts to address its ground water problems have been the subject of considerable scholarly interest and are instructive in considering how regions have succeeded, despite a multiplicity of actors, in addressing public needs (see Ostrom, 1990). The challenges faced by the region are formidable, including the pressure of a growing population on water supplies, the expense of relying on imported surface water, a lack of controls on ground water mining, the danger of saltwater intrusion, and the sheer number of institutions with a role in water decisions. The solution adopted after many years of effort combined controls on ground water pumping, which were imposed through adjudication rather than state regulation, and the use of ground water recharge. Ground water recharge allowed the aquifers to be used for ground water storage and the replenishment of ground water to prevent saltwater intrusion. Significantly, the local water districts did not take the controlling law as static. In two instances, water producers from the districts pursued statutory changes, most notably securing passage of a statute that authorized them to form a joint district to control pumping, impose fees on pumping, and carry out recharge projects (Ostrom, 1990). What enables one region facing difficult water problems to overcome difficulties and arrive at a workable solution, while another stumbles into expensive and awkward solutions, is a query which confronts many areas of water management. Continuing research by social scientists will bring about a better understanding of the relevant institutional factors and how they interact.

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

RISK COMMUNICATION AND RISK PERCEPTION

In the past, risk communication was defined as a one-way transmission of expert knowledge to nonexperts. But this simple image has been replaced. Today, risk communication is seen as an interactive process of exchange of information and opinion among individuals, groups, and institutions. it involves multiple messages about the nature of risk and other messages, not strictly about risk, that express concerns, opinions, or reactions to risk messages or to legal and institutional arrangements for risk management. Risk communication is successful only to the extent that it raises the level of understanding of relevant issues or actions and satisfies those involved that they are adequately informed informed within the limits of available knowledge.

Risk perception, or how people judge and react to risk, deals with human values regarding attributes of hazards and benefits. Studies of risk perception, such as the studies cited in this report. typically present technologies, activities. or substances and ask people to consider the risks they feel each presents and to rate them. Analysis of such studies show that people's ratings are affected by certain attributes-such as the potential to harm large numbers of people at once, personal uncontrollability dreaded effects, effects on children reversibility, and perceived involuntariness of exposure—that make those hazards more serious to the public than hazards that lack those attributes. The fact that hazards differ dramatically in their qualitative aspects helps explain why certain technologies or activities, such as nuclear power, evoke more serious public opposition than others, such as motorcycle riding, that cause many more injuries and fatalities. This means that risk perception is value-laden. When lay and expert values differ, reducing different kinds of hazard to a common numerical rating (such as number of fatalities per year) and presenting comparisons only on that metric have great potential to produce misunderstanding and conflict and to engender mistrust of expertise.

SOURCE: National Research Council, 1989.

PUBLIC ATTITUDES TOWARD THE USE OF RECLAIMED WATER

Water reclaimed from municipal wastewater or other sources of impaired quality holds the potential to be a significant source in water-short areas, but public opinion about such uses is a controlling factor (Bruvold, 1981). Indeed, the importance of the attitudes of the public cannot be discounted because the public is ultimately the recipient of. the reclaimed water and it ultimately, albeit often indirectly, bears the burden of the costs of such operations. Thus, experts urge that the public be brought into the technical decision-making process early (Bruvold, 1976) and that communication of potential risks be presented in clear, plain language; be complete and be accurate (riot distorting the risk or minimizing the existence of uncertainty); be oriented to the needs and concerns of the audience; and use risk comparisons cautiously (NRC, 1989). This type of effort

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

can help develop the public's understanding of the issues involved in reclamation of wastewater and educate citizens so they act as informed decision makers.

People's attitudes about the reuse of reclaimed water depend on the source and the intended purpose of the reuse, and nonpotable reuse is more acceptable than potable reuse. When drinking water is at issue, indirect potable reuse is more acceptable to the public than direct potable reuse because the water is perceived to be cleansed as it flows in a river, lake, or aquifer (U.S. Environmental Protection Agency, 1992). However, in general the public does not favor potable reuse. For instance, in research designed to determine the attitudes of Californians toward the use of reclaimed water, Bruvold (1976) measured attitudes toward 25 uses of reclaimed water, ranging from high contact uses such as drinking and bathing to low-contact uses such as irrigating golf courses and road construction (Table 5.3). In general, the public accepts the use of reclaimed water for a variety of purposes, but not drinking or other high contact uses. Respondents opposed to various uses ranged from 56 percent who opposed drinking reclaimed water to only 1 percent who opposed the use of such water in road construction. Ground water recharge using reclaimed wastewater was opposed by 23 percent of those surveyed. That study and others (Table 5.3) are remarkably consistent in showing that a majority of about 55 percent do not want to use reclaimed wastewater for drinking, while about 45 percent say they would be willing to accept such reuse (Bruvold, 1975). Nonpotable uses such as toilet flushing and lawn and golf come irrigation were acceptable to most survey respondents.

Acceptance of reclaimed water for drinking and other high-contact uses is affected by public perception of the associated health risks: the public is concerned about the perceived quality of the water and whether it might serve to transmit pathogens, viruses, or harmful trace chemicals. Studies show relationships between certain beliefs and attitudes toward the reuse of water: people who believed that their water supply was polluted, that their area faced a water shortage, and that modem technology was available for purifying wastewater were consistently more favorable in attitude toward reuse than those who believed their water supply was not polluted, that their areas did not face shortage, and that modem technology could not reliably purify wastewater (Bruvold, 1975). Research investigating attitudes toward treatment and reuse options found that the public did not favor either (1) minimal treatment followed by ocean disposal or (2) high levels of advanced treatment and subsequent reuse for drinking. Instead, they preferred relatively high levels of treatment followed by a "middle" level of use (e.g., park and greenspace irrigation) (Bruvold, 1981).

It is important to note that these surveys indicate that the public was quite willing to accept many uses less intimate than ingestion. A sizable segment of those surveyed (ranging from 56 to 33 percent) did not oppose or was positive toward the use of reclaimed water even for drinking, thus leaving open the possibility of future acceptance of a wider variety of use for reclaimed water. For that

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

TABLE 5-3 Percentage of Respondents Opposed to Various Uses of Reclaimed Water In General Opinion Surveys

 

Bruvold (1972) (N=972)

Stone & Kahle (1974) (N= 1,000)

Kasperson et al. (1974) (N=400)

Drinking water

56

46

44

Food preparation in restaurants

56

-

-

Cooking in the home

55

38

42

Preparation of canned vegetables

54

38

42

Bathing in the home

37

22

-

Swimming

24

20

15

Pumping down special wells

23

-

-

Home laundry

23

-

15

Commercial laundry

22

16

-

Irrigation of dairy pasture

14

-

-

Irrigation of vegetable crops

14

-

16

Spreading on sandy areas

13

-

-

Vineyard irrigation

13

-

-

Orchard irrigation

10

-

-

Hay or alfalfa irrigation

8

9

-

Pleasure boating

7

14

13

Commercial air conditioning

7

-

-

Electronic plant process water

5

5

3

Home toilet flushing

4

5

-

Golf course hazard lakes

3

8

-

Residential lawn irrigation

3

6

-

Irrigation of recreation parks

3

-

-

Golf course irrigation

2

5

2

Irrigation of freeway greenbelts

1

-

-

Road construction

1

-

-

Note: dash indicates that particular use was not included in survey.

Source: Bruvold (1987).

to happen, Bruvold (1976) suggested that "those who wish to demonstrate that reclaimed water is of high quality should initiate highly visible, well publicized demonstrations using reclaimed water for low-contact purposes not likely to be controversial. Such innovations would give technical experts, health officials, and the lay public experiential and scientific evidence that modem technology can provide water that is reliably of high quality in every respect. If these demonstration efforts are successful we will be a long way ahead in developing public acceptance for reclaimed water that might eventually include intimate personal use and consumption."

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

 

Olson et al. (1979) (N=244)

Bruvold (1981) (N=140)

Milliken & Lohman (1983) (N=399)

Lohman & Milliken (1985) (N=403)

Drinking water

54

58

63

67

Food preparation in restaurants

57

-

-

-

Cooking in the home

52

-

55

55

Preparation of canned vegetables

52

-

55

55

Bathing in the home

37

-

40

38

Swimming

25

-

-

-

Pumping down special wells

40

-

-

-

Home laundry

19

-

24

30

Commercial laundry

18

-

-

-

Irrigation of dairy pasture

15

-

-

-

Irrigation of vegetable crops

15

21

7

9

Spreading on sandy areas

27

-

-

-

Vineyard irrigation

15

-

-

-

Orchard irrigation

10

-

-

-

Hay or alfalfa irrigation

8

-

-

-

Pleasure boating

5

-

-

-

Commercial air conditioning

9

-

-

-

Electronic plant process water

12

-

-

-

Home toilet flushing

7

-

3

4

Golf course hazard lakes

5

8

-

 

Residential lawn irrigation

6

5

1

3

Irrigation of recreation parks

5

4

-

-

Golf course irrigation

3

4

 

o

Irrigation of freeway greenbelts

5

-

-

-

Road construction

4

-

-

-

SUMMARY

The future of ground water recharge using waters of impaired quality will be crucially affected by the economic, legal, and institutional setting. Indeed, the institutional barriers may prove to be more problematic than any remaining technical constraints. From an economic perspective, aquifer recharge with waters of impaired quality may be more attractive in the future because of the increasing scarcity of new sources of surface water. Also, increasingly stringent waste-water discharge regulations may make the incremental costs of rendering waste-

Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

water fit for potable or nonpotable uses quite modest in comparison with the costs of other new sources.

The economic feasibility of recharge with waters of impaired quality will vary from situation to situation. Reclaimed waters will be attractive from an economic viewpoint whenever they are the least-cost source of supplemental water. The costs of treatment over and above what is required to meet wastewater discharge standards will be particularly important. However, costs will also be quite sensitive to the distance that reclaimed waters have to be transported for spreading or injection and to the techniques used for spreading or injection. Economic feasibility will also depend on the benefits that the recharge waters ultimately yield. As long as users are willing to defray the full costs of recharge, there is prima facie evidence that the benefits will outweigh the costs.

From both an economic and a legal perspective, the need to define fights to both source waters and product waters is paramount. Failure to define fights clearly by itself makes recharge with waters of impaired quality far less attractive than it might otherwise be.

From a strictly legal standpoint, the central question is how to formulate policy to protect public health, the public good, and the environment, while not imposing inappropriate or unnecessarily burdensome controls on recharge facilities. Most existing laws focus on the need to protect ground water quality, but there is also a body of law directed at the use of recharge water.

State laws governing recharge are highly variable. California and Arizona have detailed and comprehensive sets of laws and regulations, but many other states have not addressed this regulatory problem or have done so inadequately. Although there are federal laws that govern certain aspects of the recharge process, the federal government has not exercised strong leadership in developing appropriate institutions to govern wastewater recharge. For the most part, the development of such institutions has been highly decentralized, and this approach may not prove workable in the future.

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Suggested Citation:"5 Economic, Legal, and Institutional Considerations." National Research Council. 1994. Ground Water Recharge Using Waters of Impaired Quality. Washington, DC: The National Academies Press. doi: 10.17226/4780.
×

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As demand for water increases, water managers and planners will need to look widely for ways to improve water management and augment water supplies. This book concludes that artificial recharge can be one option in an integrated strategy to optimize total water resource management and that in some cases impaired-quality water can be used effectively as a source for artificial recharge of ground water aquifers. Source water quality characteristics, pretreatment and recharge technologies, transformations during transport through the soil and aquifer, public health issues, economic feasibility, and legal and institutional considerations are addressed. The book evaluates three main types of impaired quality water sources—treated municipal wastewater, stormwater runoff, and irrigation return flow—and describes which is the most consistent in terms of quality and quantity. Also included are descriptions of seven recharge projects.

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