Eight legal issues for the next decade

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This column focuses on eight legal issues that need to be resolved for the United States to make progress toward sustainable water supplies.

While some states have a head start on these issues, very few have made substantial progress. These will be significant issues in the next few years.

1. How will groundwater be managed? Groundwater accounts for a significant portion of agricultural and municipal water supplies in the United States, and many areas are experiencing overdraft. Landowners claim property rights in groundwater, as do appropriators in the West, but both groups will need to work together to remedy falling groundwater levels. The legal rules concerning groundwater management were partially addressed by the Texas Supreme Court earlier this year in Edwards Aquifer Authority v. McDaniel, but similar questions about which users will need to reduce their pumping exist in many states.

2. Who owns wastewater? Wastewater was historically seen as a nuisance to be disposed of in the least expensive manner consistent with environmental protection, and laws related to ownership of wastewater have not been well developed. In order for the productivity of water to be increased through reuse, states will need to provide clear laws regarding the ownership of wastewater, stating how the historical use and return of wastewater to natural water bodies may be changed to avoid inequitable harm to existing water users. This will require a workable compromise between downstream water rights owners and upstream communities with plans for reuse.

3. May treated wastewater be used directly? Water reuse is currently limited to landscape and golf course irrigation in most areas, but in order to capture the full value of reuse, treated water will need to be made available for groundwater recharge, agricultural irrigation and direct potable reuse. Current reuse laws are dramatically imbalanced in favor of defending public health, even in the face of innovations in treatment technology. Reformed regulations should balance strong public health protection with the need for expanded water reuse. The California Department of Public Health is currently studying potential regulations for direct potable reuse, and that effort is likely to set the tone for other states in the next few years.

4. How clean should drinking water be? Since the Safe Drinking Water Act became law in 1974, the Environmental Protection Agency has established 88 primary and 15 secondary drinking water regulations and placed 104 substances on the contaminant candidate list for potential new regulations, with the states adopting a few more on their own. But there is no consensus about the fundamental question of how clean we want our drinking water to be, given the economic costs. Do we want to eliminate every chemical with marginal public health consequences, even when doing so will be expensive? This dilemma has come into focus with the tightening of arsenic standards, which is causing substantial costs to many rural communities without allowing those communities to choose for themselves whether the benefits are worth the cost.

5. What are the rules for water transfers? Another method for increasing water productivity is the reallocation of supplies from one use to another through voluntary water transfers and markets. The rules for water transfers are almost exclusively under the control of the states, which have adopted a range of rules that erect barriers of varying difficulty for transfers. While these rules were ostensibly created to protect historical water uses, in recent years they have acted more to protect the entrenched monopolies of large water agencies, and often cause more harm than good. The states need substantial reform in this area.

6. Can desalination be permitted in California? Ocean water desalination has been discussed as an important new water supply option in California for over a decade. The question remains, however, as to whether state regulators and politicians will ever permit a desal plant to be constructed. Will tapping the Pacific Ocean be a dream forever?

7. Do endangered species have the highest right to water? The past decade has seen an explosion in arguments that agricultural and municipal water diversions have adversely impacted instream flows needed by endangered species. The fight has been carried on in courts and legislatures across the country and is only likely to increase with continued population growth and urbanization. What is unknown is whether environmental advocates will continue to prevail in rolling back water diversions, or whether Congress will intervene broadly or in specific cases to prevent water supply disruptions. Environmentalists will continue to have a strong hand thanks to the Endangered Species Act, but they could improve it substantially by helping to devise real water solutions, such as efficiency improvements, reuse, desalination and transfers.

8. What are the rules for public-private partnerships? While many industry and political leaders believe there is a substantial role for public-private partnerships and private finance in water, public contracting traditions and opposition by public sector unions and some environmentalists have made the enabling legislation in most states difficult at best. Progress toward sustainable water infrastructure will require the creation of workable, f lexible legislation authorizing and making PPPs attractive for both public sector sponsors and private sector companies.

Wes Strickland is a shareholder at Brownstein Hyatt Farber Schreck, LLP and focuses his law practice on water resource issues.