Date: January 28, 2022
Last Monday, the Supreme Court agreed to review the jurisdictional scope of the federal Clean Water Act (CWA) and Waters of the United States (WOTUS) in the case of Sackett v. EPA. The Court will weigh in on the legal test used to determine if a wetland is protected under the federal law. Sackett is asking the court to reject the “significant nexus” test applied by the U.S. Court of Appeals for the Ninth Circuit. The “significant nexus” test comes from the 2006 decision in Rapanos v. United States by Justice Anthony Kennedy. Sackett is asking the Supreme Court to apply a test in which wetlands must have a “continuous surface connection” to navigable waters for them to be regulated under CWA, a test that came from the Rapanos plurality decision stated by Justice Scalia.
Currently, EPA and Army Corps of Engineers have a proposed re-definition of WOTUS open for comment through February 7. The revised definition removes an exemption for water recycling installations, including constructed wetlands, under its proposed redefinition of WOTUS which would likely impose additional regulatory burdens on water recycling facilities. The Administration has indicated that it does not intend to extend the comment period on the proposed definition despite the overlap with the Supreme Court case.
WateReuse will be submitting comments on the proposed WOTUS definition. Please reach out to Aliza Furneaux with any questions.
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WateReuse is the only trade association that focuses solely on advancing laws, policy and funding to increase water reuse. Our niche strategy sets us apart from other organizations in the water industry.
The State Water Resources Control Board (Board) regulates water quality in California. The Board also develops statewide regulations for recycled water – potable and non-potable, including onsite reuse. The Board also provides funding through loans and grant programs for recycled water. The Regional Water Quality Control Board issues site specific water quality permits. The California Department of Water Resources manages water supply, including overseeing water conservation, groundwater and surface waters.
Arizona has a long history of water reuse beginning in about 1926. As much as two-thirds of all treated wastewater generated in Arizona is reused for a variety purposes, including irrigation, environmental restoration, energy generation, and agriculture. Legislative authority for water reuse was granted to the Arizona Department of Environmental Quality (ADEQ) in 1999 and reclaimed water rules focus on protecting water quality and human health. ADEQ is currently revising Arizona’s rules governing the use of recycled water. The first installment of new rules, effective January 1, 2018, allow permitting for direct potable reuse. In the next installment of rulemaking, ADEQ intends to adopt more detailed DPR criteria. Arizona has no indirect potable reuse (IPR) regulations, but IPR can be done under separate ADEQ groundwater protection permitting regulations. Other than graywater use, there are no specific rules allowing onsite or decentralized water reuse in Arizona.
The Colorado Department of Public Health and Environment (CDPHE) has a reclaimed water program that is designed to promote water reuse in the state. The state’s Reclaimed Water Control Regulation was introduced in 2000. The regulation covers the use of reclaimed water for landscape and agricultural irrigation, fire protection, industrial, commercial, and urinal and toilet flushing. These uses correlate to three categories of water quality standards, additional filtration and disinfection treatment for specific uses, and treatment from localized treatment systems (“decentralized”). The state also runs grant programs, such as the Water Plan Grant fund established in 2018, to incentivize new water reuse projects.
Choose from presentations on six tracks providing insight and professional development, relevant to every life cycle phase of a water reuse project:
Washington State encourages the use of reclaimed water by providing financial support and incentives, and by directing the Departments of Health and Ecology to coordinate to support the adoption of water recycling. The state developed water reclamation and reuse standards in the 1990’s and has been updating relevant regulations since then. Water reuse in Washington covers a wide range of applications, including landscape irrigation, flushing, groundwater recharge, industrial and commercial uses, and ecosystem restoration, among others.
North Carolina statute directs state regulatory agencies to consider water reuse as an alternative to surface water discharge. State rules governing water reuse are codified in Title 15A of the North Carolina Administration Code Subchapter 2T.0900. Reclaimed water in North Carolina may be used to a range of non-potable purposes, including irrigation, dust control, cooling and other industrial purposes, flushing, ponds and fountains, street sweeping and car washing, among others.
Water reuse was established as a state objective in 1989 and the state has since created a supportive regulatory environment. Florida has regulations that specify requirements of how reclaimed water is to be treated depending on the use or application of the water. Approximately 820 million gallons per day of reclaimed water are used for beneficial purposes each year, including golf course irrigation, residential irrigation, agricultural irrigation, groundwater recharge and indirect potable reuse, industrial uses, fire protection, and wetlands.
The Florida Department of Environmental Protection is moving forward with Phase II of rulemaking to ensure proper regulation for implementation of potable reuse programs in the state of Florida. The rules amended in Chapter 62-610 F.A.C. Phase II Reuse of Reclaimed Water and Land Application will address updates necessary to be consistent with recommendations of the Potable Reuse Commission’s 2020 report “Advancing Potable Reuse in Florida: Framework for the Implementation of Potable Reuse in Florida” as required by Florida’s Clean Waterways Act of 2020.
The Watershed Protection Branch of Georgia’s Department of National Resources Environmental Protection Division (EPD) has a set of guidelines for Water Reclamation and Urban Water Reuse. The guidelines were revised in 2012 and encompass considerations, system and monitoring requirements, and design standards for urban water reuse in the state. The uses covered are industrial and non-potable reuse. In 2011, the state released Guidelines for Reclaimed Water Systems in Buildings for reuse water to be piped within buildings for flushing toilets and urinals and other approved uses. In In 2021, EPD released the state’s first indirect potable reuse guidelines. The guidelines are intended to help applicants navigate through the regulatory complexity of a potential indirect potable reuse project, help the appropriate programs within EPD coordinate with each other, and streamline the regulatory process.
The State of Wyoming Department of Environmental Quality has promulgated a regulation that broadly outlines the permitting process for water reuse systems.
Wyoming Administrative Rules: Regulations for permit to construct, install, or modify water reuse systems.
Water reuse has been and continues to be an important component of Pennsylvania’s water management toolbox. Industries have been reusing water within their facilities for decades to reduce operating costs. Many municipal and industrial wastewater treatment plants discharge treated water to streams and lakes, or land apply reclaimed water for additional treatment prior to recharging a groundwater aquifer. In many of these cases, the reclaimed water becomes a portion of the source water for a potable drinking water supply. The Pennsylvania Department of Environmental Protection (DEP) developed a guidance manual in 2012 for implementing water reuse in an environmentally protective manner in accordance with DEP regulations.
Virginia State Law, updated in 2020, details the treatment needs for various forms of reuse. State regulations have two levels of water quality pertaining to non-potable applications of recycled water. The state’s reuse program is evolving, with new policies being enacted in 2016, 2017, and 2020.
Vermont’s Department of Environmental Conservation has promulgated rules related to graywater, as well as treatment standards for reclaimed water use.
The State of Utah has promulgated several regulations governing water reuse. This includes regulations related to approvals and permits for water reuse projects, system design requirements, aquifer recharge, and graywater systems.
South Carolina’s Plumbing Code, Chapter 13 Non-Potable Water Systems specifies a set of rules guiding the use of local water recycling systems. The code details a set of requirements and parameters for non-potable reuse.
2015 South Carolina Plumbing Code- Chapter 13 Nonpotable Water Systems: South Carolina Plumbing Code offers a set of rules guiding the use of local non-potable water recycling systems.
The Rhode Island Department of Environmental Management has developed technical guidelines for water reuse projects. The document includes technical standards for water reuse for irrigation and cooling purposes.
Oregon began supporting beneficial reuse in 1990, when a state regulatory framework for water reuse was established. Oregon’s Water Resources Department and Department of Environmental Quality have promulgated rules to govern water reuse and reclamation methods, procedures, restrictions, treatment, and monitoring.
In 2012, Oklahoma’s Department of Environmental Quality promulgated water reuse regulations to govern groundwater recharge and other applications of water recycling. Current water reuse regulations include indirect potable reuse for surface water augmentation, operation and maintenance of water reuse systems, and treatment and construction standards.
Ohio Administrative code, effective in 2015, provides guidelines for graywater recycling systems and sets their scope. The state does not currently regulate water recycling.
In the State of New York, the Department of Environmental Conservation regulates water reuse programs operated by wastewater treatment plants through State Pollutant Discharge Elimination System permits on a case-by-case basis. The New York State Department of State regulates graywater reuse within buildings through the state’s plumbing code, enforced by local building inspectors. In the City of New York, the Department of Environmental Protection operates a water conservation and reuse grants program to encourage commercial, industrial, and multi-family residential property owners to implement onsite water reuse systems.
The North Dakota Water Commission defines the terms of permitting for reusing wastewater. They have an update reported that explains the current scope of reuse in the state is for irrigation and non-potable purposes.
Policy/Procedure for Transfer and Reuse of Wastewater: This document provides guidance for permitting water reuse projects.
The New Jersey Department of Environmental Protection (NJDEP), Division of Water Quality promotes beneficial water reuse from domestic and industrial wastewater dischargers via the NJDPES permitting program. Reclaimed water can be used for non-potable applications in place of potable water or as a supplement to potable water. Potential applications include irrigation of crops, parks, and golf courses; dust control; fire fighting; and toilet flushing. The Bureau of Surface Water and Pretreatment Permitting program has issued over 125 water reuse permits.
In 2007, New Mexico updated its Guidance for Aboveground Use of Reclaimed Domestic Wastewater, which includes design specifications and treatment standards for a range of uses of recycled water. The state also intends to develop regulations related to the treatment and reuse of produced water, as directed by the Produced Water Act in 2019.
The New Hampshire Department of Environmental Services (NHDES) developed a guidance document to describe how certain uses of reclaimed water from wastewater treatment plants are regulated in New Hampshire. The document provides guidance for the use of reclaimed water to recharge aquifers, irrigate crops and/or turf at golf courses, and snowmaking.
Water in the State of Hawaii is recycled for a range of non-potable applications. In 2016, the Hawaii Department of Health revised its guidelines for water reuse, which include technical requirements and application processes for various qualities of recycled water, requirements to construct or modify a wastewater reclamation facility, and best practices for reuse of graywater.
Reuse Guidelines- Volume 1: Recycled Water Facilities: Volume 1 addresses technical requirements that must be met for the various qualities of recycled water as well as requirements to construct or modify a wastewater reclamation facility (WWRF).
Reuse Guidelines- Volume 2: Recycled Water Projects: Volume 2 covers the application process to use recycled water for purposes such as irrigation, dust control, cleaning, and fire-fighting and establishes best management practices that apply to the end user.
Guidelines for the Reuse of Graywater: These guidelines detail the acceptable uses of graywater, including discharge from showers, bathtubs, hand-washing lavatories, and washing machines, as well as considerations for design and system maintenance.
Hawaii Department of Health, Recycled Water Program: The Department of Health administers the recycled water program.
Montana Department of Environmental Quality (MDEQ) regulates the reuse of graywater and wastewater for non-potable functions such as irrigation and toilet flushing. An MDEQ circular from 2018 sets forth required treatment and water quality requirements for the various classes of reclaimed wastewater, describes the class of reclaimed wastewater required for each allowable use. The circular also outlines requirements to ensure an adequate demonstration of public health and environmental protection.
Water reuse is happening across Minnesota, but there is no comprehensive statewide guidance or policy on water reuse. An interagency workgroup formed in 2015 in response to interest in water reuse, a legislative directive and funding support. State agencies, Metropolitan Council, the University of Minnesota and stakeholders in the water reuse community worked together to develop a report that serves as a foundation for advancing safe and sustainable reuse in Minnesota. The Minnesota Pollution Control Agency provides treatment design and storage requirements for permitting of water reuse projects.
Massachusetts Department of the Environment provides detailed standards for reuse in reclaimed water projects. Reclaimed water is used in landscaping, irrigation, and toilet flushing. In 2009, the state DEP established a Reclaimed Water Permit program that enabled large scale non-potable reuse. The state has since approved nearly a dozen large scale projects such as Gillette Stadium and the Wrentham Village Premium Outlets.
Maryland’s Ground Water Quality Standards include rules applicable to water recycling. Part A covers required approval of discharges. Part B classifies three types of groundwater aquifers based on transmissivity, permeability and total dissolved solids quality. The intent is to distinguish high quality aquifers and ensure their protection. Part C defines three categories of effluent water quality relative to the three types of groundwater aquifers. Part D provides guidelines for discharges to ground waters, and incorporates the Maryland Department of Environment’s “Guidelines for Land Application/Reuse of Treated Municipal Wastewaters” MDE-WMA-001-04/10, by reference.
The Louisiana Reclaimed Water Law (Title 30, Chapter 17, Section 2391 et seq.) declares that the use of potable water for non-potable uses, including but not limited to cemeteries, golf courses, parks, highway landscaped areas, and industrial uses, is a waste of “our most precious natural resource.” The law requires the use of reclaimed waters if a source exists. The law may encourage facilities to reuse or reclaim wastewater thereby eliminating discharges to waters of the state.
In 2018, Iowa established regulations to govern the reuse of treated effluent for golf course irrigation. Other types of landscape and agricultural irrigation seem to be permitted on a project-by-project basis.
567 Iowa Administrative Code Chapter 62: Effluent and Pretreatment Standards: Iowa Administrative Code details effluent reuse for golf course irrigation.
Idaho has been supporting reuse since 1988, and state Department of Environmental Quality (DEQ) data indicate that over 4 billion gallons of water are reused every year. Idaho has both reuse regulations and guidelines that include treatment and beneficial reuse of municipal and industrial wastewater. Water reuse by different types of land application facilities is allowed by state regulations. In 1988, Idaho’s Wastewater Land Application permitting rules were promulgated and guidance was developed. Idaho has a public advisory working group that meets periodically to advise guidance development and review existing and future reuse guidance. In 2011 reuse regulations were updated, and the name of the rules changed to Recycled Water Rules (IDAPA 58.01.17).
Recycled water has been used for irrigation in Delaware for decades. The Department of Natural Resources and Environmental Control administers state regulations and permitting for the distribution of treated wastewater for irrigation.
Alabama has a history of water reuse citing back to 1975 with reclaimed water being reused primarily for irrigation. The state’s rules allow for Class A and Class B water, with different reuse applications applying to each. These regulations also explain how to apply for permits for reuse. Alabama’s Department of Environmental Management oversees the state’s regulation of water reuse.
In Nevada, the Division of Environmental Protection has promulgated rules governing water recycling for both potable and non-potable uses. Nevada DEP notes that reclaimed water can be treated to meet disinfection and water quality standards for a range of applications. There are six categories of reclaimed water in the state, based upon water quality. These include indirect potable reuse, various forms of irrigation, firefighting, and cooling, among other applications.
Texas has the third highest reclaimed water flows in the country behind California and Florida. Water reuse goals are published under the State Water Plan, which is updated every five years to provide a new 50 year projection. Texas estimates that water reuse will account for 15 percent of the water supply in the coming decades. The first guidelines for water reuse were passed in 1997 and updated in 2009. There are two categories of non-potable reclaimed water (Type I and Type II) based on whether the water is appropriate for public contact or not. The Texas Administrative Code also includes regulations for the use of graywater and some alternative sources in onsite or decentralized reuse systems. There are no specific water quality standards for potable reuse and therefore these projects are approved on a case by case basis.
New Mexico Energy, Minerals and Natural Resources Department, Oil and Gas Extraction Wastewater Management | New Mexico Energy, Minerals and Natural Resources Department
New Mexico Environment Department, Water Resources & Management | New Mexico Environment Department
Water Project Finance Section; Implementation of state water plan (New Mexico Statutes §72-4A-9) | New Mexico Statutes
Water Conservation Plans; municipalities, counties and water suppliers. (New Mexico Statutes §72-14-3.2) | New Mexico Statutes
State Water Plan Authorization (New Mexico Statutes §72-14-3.1) | New Mexico Statutes
