June 19, 2014. In one of many quick changes over the last few legislative days, Senate Bill 163 (“Protect Landowner’s Water Rights”) entered the telephone booth of the House Environment Committee yesterday and emerged as an entirely different bill entitled “Reclaimed Water as Source Water”. The House adopted the new version of S 163 today, making a significant change to state water quality and drinking water laws with little debate.
The bill endorses the use of highly treated wastewater, classified under state water quality rules as “reclaimed” water, to supplement drinking water supplies. The policy makes sense under the right conditions. Treated wastewater already indirectly supplements drinking water supplies; many wastewater treatment plants discharge to streams and rivers that also serve as water supply sources for downstream communities. State reclaimed water rules also allow direct use of reclaimed water for many non-potable purposes, including landscape irrigation, easing demand on the drinking water supply.
Senate Bill 163, as adopted by the House, goes further and for the first time allows reclaimed wastewater to be used to directly supplement a drinking water supply. The problem — the bill appears to allow a water system to add reclaimed wastewater to a drinking water reservoir without a water quality permit. If that is the effect of the bill, it represents a significant change in the way the state protects the quality of drinking water supplies and likely conflicts with the federal Clean Water Act.
Under the bill, “notwithstanding any other provision of law, a local water supply system may combine reclaimed water with source water treated to provide potable water supply” in an impoundment controlled by the water system. The bill does not define “impoundment”, but under state drinking water rules an “impoundment” means a reservoir. That interpretation would also be consistent with other Senate Bill 163 language describing the addition of reclaimed water as occurring before the water goes to the water treatment plant.
An impoundment used as a public water supply source would usually be considered a “water of the state” under water quality laws. Most impoundments have been created by damming a river or stream segment to store water for water supply and continue to release water through the dam to maintain downstream flows. Wastewater (even treated wastewater) can only be discharged to a water of the state under a permit that insures the discharge will not result in violation of a water quality standards. Under G.S. 143-215.1, it is unlawful to:
Cause or permit any waste, directly or indirectly, to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classification.
An impoundment used as a drinking water source has specific water quality standards (adopted in state rules) to protect its use as a water supply. Discharge of treated wastewater to a water supply source can be allowed, but only under permitted limits. Unfortunately, the “notwithstanding” language in Senate Bill 163 seems to sweep away both the requirements of state water quality permitting laws and the N.C. Drinking Water Act. Nothing in the bill itself requires the addition of reclaimed wastewater to be done under a water quality permit or in compliance with water quality standards for public water supplies. Instead, the conditions in the bill read like a self-contained set of standards that rely on a 20% limit on the proportion of reclaimed water to total water produced by the impoundment and a minimum 5-day holding time in the impoundment as a substitute for meeting water quality standards.
If — as it appears — the bill allows discharge of reclaimed water to a “water of the state” without a permit, it also conflicts with federal law. Many impoundments that are “waters of the state” would also be considered “waters of the United States” under the federal Clean Water Act. Federal law makes it unlawful to discharge a pollutant into waters of the United States without a Clean Water Act permit — a requirement that state law cannot waive.
Senate Bill 163 will now go back to the Senate for approval or disapproval of the new House version of the bill. If the Senate rejects the House rewrite, the bill will have to go to a conference committee to work out the differences between the two chambers.
If the House did not intend to allow the discharge of treated wastewater to a water supply reservoir without meeting state and federal water quality laws, it would be helpful to clarify the bill before final adoption.