Clara MacLeod B.S. Environmental Policy Analysis and Planning University of California, Davis '17
Under California’s water rights system—one of the most complex amalgamations of laws, policies, and agencies—some utilities own the right to water far away from their service area. Until the 2014 Sustainable Groundwater Management Act, groundwater use in California was unregulated, leading to excessive pumping in some areas and a decline in water quality. This groundwater regulatory gap and the long distance travelled by water from source to tap increases the chances of drinking water contamination. The East Bay Municipal Utility District’s (EBMUD) water supply, for example, is a large, elaborate system of dams and reservoirs for water storage; and miles of pipelines, pumping plants, and local neighborhood reservoirs for distribution. The City of Davis’ water supply system is much smaller than EBMUD’s but is still elaborate nonetheless. Just as the allocation and infrastructure for water provision is complex, so to is the legislation and regulation guiding drinking water safety and provision.
As California enters its’ fourth year of drought and local water restrictions are put into effect, California is beginning to reconsider its water rights laws. But one steady component of California’s water law is drinking water quality standards. Regardless of where water comes from or by whom it is supplied, there are national laws and policies to which all water suppliers must adhere. At the national and state level, EBMUD and the City of Davis Water Division are both subject to the public health and environmental regulations set by the United States Environmental Protection Agency (EPA). EPA is the federal agency responsible for drafting and enforcing federal law concerning drinking water, although much of the enforcement has been devolved to the state level. In most U.S. states, EPA laws and regulations are simply adopted as the state level environmental regulation. The State of California on the other hand, as a pioneer in environmental legislation, has chosen to adopt its own public health and environmental legislation. In California, the agency responsible for implementing and enforcing drinking water laws and regulations is the State Water Resources Control Board (State Water Board). The State Water Board is divided into 9 Regional Water Quality Control Boards (Regional Boards) who also receive delegated authority from the EPA and the State Water Board.
Across the United States, the EPA is the ultimate public health and environmental policy-setting and enforcement agency for drinking water and sanitation. Although, one of the defining characteristics of American environmental law is the Citizen Suit Provision of the Safe Drinking Water Act and Clean Water Act, which allows citizens to sue the EPA for noncompliance. Considering that the head of EPA is appointed by the President of the United States and may be biased or EPA simply neglects to take regulatory action, the citizen suit provision gives the authority to citizens to hold EPA accountable for implementing its own policies.
EBMUD and the Davis Water Division are public water systems (PWS) and are therefore subject to the federal Safe Drinking Water Act (SDWA) of 1974 for public health regulation. Enforced by the EPA, the SDWA ensures safe drinking water for the public by setting national drinking water quality standards and ensuring monitoring procedures are followed by individual states. California has adopted its own version of the SDWA known as the California Safe Drinking Water Act (CSDWA), which regulates implementation of the SDWA and also sets drinking water quality standards. The standards in the CSDWA, however, must be in compliance with or more stringent than the SDWA standards. The agency responsible for enforcement of the CSDWA is the State Water Board’s Division of Drinking Water. The State Water Board ensures water quality monitoring of all public water systems in the state and has direct oversight of EBMUD and the City of Davis. Under the CSDWA, the State Water Board requires the water utilities to test for certain chemicals and contaminants such as inorganic compounds, volatile organic compounds, synthetic organic chemicals, and disinfection byproducts. To test for these, water utilities collect water samples from their water supply and send the samples to a laboratory for analysis. All laboratories used in this process are approved through the State Water Boards Environmental Laboratory Accreditation Program. EBMUD sends samples to its own laboratory while Davis works with the private laboratory BSK. After the analysis of the water samples, the laboratories send the water quality data to the State Water Board to ensure compliance. If the utilities are in noncompliance, the State Water Board may send warning letters or notices of violation, but if a utility is in continual violation, then the State Water Board must initiate a formal enforcement, such as a citation, an administrative order, or a criminal charge. Although EPA has delegated its powers to the State Water Board, EPA has the authority to overrule any decision made by the State Water Board.
For environmental regulation, as EBMUD and the City of Davis are also wastewater treatment plants (WWTP) and publicly owned treatment works (POTW), both are subject to the EPA’s federal Clean Water Act (CWA). The CWA is the primary law in the United States governing water pollution. Although it does not address groundwater contamination, it protects all surface water in the United States by setting water quality standards and general policies for point source pollution. The California equivalent of the CWA is the Porter-Cologne Water Quality Act. Under the Water Quality Act, public utilities like EBMUD and the City of Davis that discharge wastewater from their respective WWTP (considered point sources) must comply with the effluent limitations and pollution standards set forth under this law. Point source pollution is regulated through the National Pollutant Discharge Elimination System (NPDES) program by allowing only a certain volume of wastewater to be discharged into a receiving body of water, ensuring water quality is not affected. As opposed to the NPDES permitting process that regulates effluent wastewater discharged in a body of water, the Report of Waste Discharge (ROWD) regulates effluent wastewater discharged onto land.
NPDES and ROWD permits are obtained from the utilities’ respective Regional Water Quality Control Boards; Berkeley is located in the San Francisco Bay Region and Davis in the Central Valley Region. Considering that EBMUD encompasses such a large service area, cities like Berkeley maintain a WWTP and then send their wastewater to EBMUD’s main treatment facility. EBMUD’s main facility treats the wastewater and then discharges it into the San Francisco Bay. This means that the cities, referred to as the ‘Satellites’, must also obtain an NPDES permit from the San Francisco Bay Regional Board. Unlike EBMUD, Davis does not have any “Satellites”. The City directly receives all of its service area’s wastewater and then discharges the effluent to Willow Slough and the Yolo Bypass, both of which require a NPDES permit from the Central Valley Regional Board.
NPDES and ROWD water quality monitoring under the Clean Water Act is self-reporting. Through the Regional Board’s Monitoring and Reporting Program, wastewater treatment facilities collect and analyze water samples and then report water quality data to their respective Regional Board for compliance. Similar to public health regulation, the State Water Board has the authority to overrule any Regional Board decision just as the EPA has the authority to overrule any decision made by the two agencies.
California has a long history of drafting legislation and providing regulation to ensure drinking water. For as long as I have lived in Berkeley and Davis, safe running water has always been supplied to my tap, but many Californians in rural and marginalized areas still do not have access to safe and affordable drinking water. The California Plumbing Code does require potable water to be supplied to all structures with plumbing fixtures used for human occupancy but does not regulate water quality and affordability. While the United Nations has long advocated access to clean drinking water as a human right, no state in the U.S. has formally recognized the human right to water until California implemented Assembly Bill (AB) 685–California’s Human Right to Water Bill–in September 2012. AB 685 requires all relevant state agencies, such as the Department of Water Resources (DWR), State Water Resources Control Board (State Water Board), and California Department of Public Health (CDPH) to consider the human right to water when revising existing or adopting new policies, regulations, or grant criteria. AB 685 is a symbolic first-step towards ensuring access to clean, safe, and affordable water for all citizens without discrimination but does not guarantee any enforceable right to water. Under Bill 685, California is not required to provide clean water nor required to repair deteriorating water systems. Likewise, the state agencies with regulatory oversight of water systems are not required to increase enforcement. In addition, communities or individuals may file a lawsuit against a state agency if the agency fails to implement AB 685 when appropriate but may not file a lawsuit against the state, utility company, or enforcement agency for contaminated water. In a state that leads environmental and water policy, there has yet to be a policy that requires access to clean, safe, and affordable drinking water.
For affordable water, EBMUD and the City of Davis must adhere to Proposition 218–“Right to Vote on Taxes Act”–for water rates and charges. Proposition 218 limits the extent to which local governments can create or increase taxes by requiring taxpayer approval for taxes, assessments, and user fees. So, before EBMUD or the City of Davis increase water rates, they must hold public hearings and may not impose the new fee if the majority of property owners oppose. This process ensures that fees do not exceed the reasonable cost of providing the service.
Due to California’s current emergency drought, many water utilities, including EBMUD and the City of Davis, are increasing water rates to discourage water usage. These new water rates are part of Governor Jerry Brown’s recent Executive Order, ordering a 25% cutback in water usage for urban areas. The Governor urges water agencies to adjust water rate structures to implement conservation pricing as a way to decrease water usage and water waste. Proposition 218 is useful in places like Berkeley and Davis where public participation is high, but in disadvantaged communities where public participation is low, water utilities may increase water rates exorbitantly, which in the end contradicts California’s Right to Water Bill.
On the surface, water provision seems fairly simple–water from a source is delivered through a pipe to a household. In California, however, it is much more complicated than a simple journey through a pipe. The City of Berkeley’s water is provided by the large, multi-city East Bay Municipal Utility District (EBMUD), which draws water from as far 100 miles in the Sierra Nevada Mountains. Conversely, the City of Davis provides its own water, directly drawing groundwater from aquifers. Before water reaches any households, the water must meet stringent public health water quality standards set under the Safe Drinking Water Act and California Safe Drinking Water Act. For wastewater that leaves households, EBMUD and the City of Davis must obtain discharge permits from the Regional Water Quality Control Boards so as to prevent water quality deterioration. The legislative and institutional frameworks are an important part of water service delivery–laws, regulations, and policies ensure that drinking water is clean and safe to drink. However, access to clean, safe, and affordable drinking water is not guaranteed for everyone, even under California’s Right to Water Bill. As California’s drought continues and water utilities look to new water sources, legislation and policies will become increasingly important for water quality and provision. Just as a household is supposed to provide a safe environment, laws, policies, and regulations are supposed to ensure safe drinking water.