BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Wieckowski, Chair
                                2015 - 2016  Regular 
           
          Bill No:            AB 1738
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          |Author:    |McCarty                                              |
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          |Version:   |3/28/2016              |Hearing      | 6/29/2016      |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Rachel Machi Wagoner                                 |
          |           |                                                     |
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          SUBJECT:  Building standards:  dark graywater.

            ANALYSIS:
           
           Existing federal law:

              1)    Establishes the Clean Water Act (CWA), which regulates  
                water quality standards and specifies requirements for  
                discharges (including wastewater) and requires permits to  
                protect the waters of the United States of America.
          
          Existing state law and regulation:

              1)    Establishes the Porter-Cologne Water Quality Control  
                Act:

                  a)        Giving authority to the State Water Resources  
                    Control Board (SWRCB) over state water rights and water  
                    quality policy.
                  b)        Establishing nine regional water quality control  
                    boards (regional boards) to oversee water quality on a  
                    day-to-day basis at the local/regional level.
                  c)        Requiring the boards to implement and enforce  
                    CWA, including issuance of waste discharge permits,  
                    including for wastewater discharges.

              2)    Defines "recycled water" as "water which, as a result of  
                treatment of waste, is suitable for a direct beneficial use  
                or a controlled use that would not otherwise occur and is  
                therefore considered a valuable resource."







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              3)    Defines "graywater" as "untreated wastewater that has  
                not been contaminated by any toilet discharge, has not been  
                affected by infectious, contaminated, or unhealthy bodily  
                wastes, and does not present a threat from contamination by  
                unhealthful processing, manufacturing, or operating wastes."  
                 Specifies that "graywater" includes wastewater from  
                bathtubs, showers, bathroom washbasins, clothes washing  
                machines, and laundry tubs, but does not include wastewater  
                from kitchen sinks or dishwashers.  

              4)    Defines "beneficial uses" as uses "of the waters of the  
                state that may be protected against quality degradation  
                [that] include, but are not limited to, domestic, municipal,  
                agricultural and industrial supply; power generation;  
                recreation; aesthetic enjoyment; navigation; and  
                preservation and enhancement of fish, wildlife, and other  
                aquatic resources or preserves."

              5)    Establishes the Water Recycling Act of 1991, creating a  
                statewide goal to recycle a total of 700,000 acre-feet of  
                water per year by the year 2000 and 1,000,000 acre-feet of  
                water per year by the year 2010.  Requires each urban water  
                supplier to prepare, and update every five years, an urban  
                water management plan with specified components, including  
                information on recycled water and its potential for use as a  
                water source in the service area of the urban water  
                supplier.


              6)    Makes findings regarding SWRCB's updated goals adopted  
                by resolution, which update the above goals to 1,000,000  
                acre feet per year above 2002 levels by 2020 and by at least  
                2,000,000 acre feet per year by 2030.

              7)    Requires SWRCB to establish uniform statewide recycling  
                criteria for each type of use of recycled water use, as  
                specified.  

              8)    Requires SWRCB to:  (1) adopt regulations regarding  
                groundwater replenishment with recycled water, (2) adopt  
                regulations regarding surface water augmentation with  
                recycled water, and (3) report to the Legislature on the  
                feasibility of developing uniform water recycling criteria  








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                for direct potable reuse.  

              9)    Requires SWRCB to adopt a general permit for landscape  
                irrigation use of recycled water.

              10)                                                             
                  Directs the Department of Housing and Community  
                Development (HCD) to propose the adoption, amendment, or  
                repeal of building standards to the California Building  
                Standards Commission (BSC) for all hotels, motels, lodging  
                houses, apartment houses, and dwellings. 

              11)                                                             
                  Authorizes BSC to approve and adopt building standards.   
                Every three years building standards rulemaking is  
                undertaken to revise and update the California Building  
                Standards Code. (Title 24 of the California Code of  
                Regulations).  

              12)                                                             
                  Requires the BSC to adopt building standards for the  
                construction, installation, and alteration of graywater  
                systems for indoor and outdoor uses in nonresidential  
                occupancies. Governs the use of recycled water from sources  
                that contain domestic waste, in whole or in part.   
                (California Code of Regulations (CCR) Title 22 , Division 4,  
                Chapter 3)

              13)                                                             
                  Allows a governing body, city or county to make  
                modifications to building standards if they make express  
                findings that such a modification or change is necessary  
                because of local climatic, geological, or topographical  
                conditions. 

              14)                                                             
                  Requires HCD/ BSC to conduct research and propose for the  
                2019 building code mandatory building standards for the  
                installation of recycled water infrastructure in newly  
                constructed single-family and multifamily residential  
                buildings. 

              15)                                                             
                  Authorizes HCD to revise and update graywater standards at  








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                any time, and requires the Department to reconsider  
                graywater standards at the next triennial rulemaking that  
                commences after their adoption.  (Health and Safety Code  
                §17922.12 (d))

              16)                                                             
                  Establishes minimum requirements for the installation of  
                graywater systems in occupancies regulated by HCD.  (CCR  
                Title 24, Part 5, Chapter 16A, Part I (California Plumbing  
                Code)).

          This bill:  defines "dark graywater" as "a specified wastewater  
          that comes from kitchen sinks and dishwashers."  This bill would  
          require the department, at the next triennial building standards  
          rulemaking cycle, to develop and submit for approval building  
          standards for the construction, installation, and alteration of  
          dark graywater systems for indoor and outdoor uses."

            Background
          
          1) Graywater:  In California, graywater is defined as, "untreated  
             wastewater that has not been contaminated by any toilet  
             discharge, has not been affected by infectious, contaminated,  
             or unhealthy bodily wastes, and does not present a threat from  
             contamination by unhealthful processing, manufacturing, or  
             operating wastes."

             Under California law, graywater includes wastewater from  
             bathtubs, showers, bathroom washbasins, clothes washing  
             machines, and laundry tubs, but does not include wastewater  
             from kitchen sinks or dishwashers. 

             This bill would add a definition for "dark graywater" as  
             untreated wastewater from kitchen sinks or dishwashers.  

          2) Graywater: benefits:  There is evidence that graywater (as  
             currently defined), when properly handled and used, can be put  
             to beneficial use.  Therefore, existing law allows specified  
             systems and limited uses. 

             According to a 2009 UCLA report, Graywater- A Potential Source  
             of Water, graywater constitutes about 60% of the total indoor  
             water use in single-family homes.  The UCLA report predicts  
             that recycling all of the graywater in households in Southern  








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             California would be sufficient to meet outdoor water use  
             demands in the area.

          3) How Many Shades of Graywater? Health and Environmental Risks  
             Associated with Reclaimed Water:  The different types of  
             recycling and reuse of water must be balanced against the  
             potential health and environmental risks, such as potential  
             exposures to pathogenic bacteria, viruses and chemical  
             contamination.  

             a)    Human Health Risks of reclaimed water include:
                i)         Bacteria (e.g. Escherichia coli or E coli,  
                     Salmonella spp),
                ii)        Viruses (e.g. Enteroviruses, Rotavirus, Hepatitis  
                     A), 
                iii)       Protozoa (e.g. Giardia Lamblia, Cryptosporidium  
                     parvum), 
                iv)        Helminths (e.g. Taenia spp (Tapeworm),  
                     Ancylostoma spp (Hookworm).

             b)    Environmental Risks of reclaimed water include:
                i)         Salinity - A chronic problem which needs to be  
                     managed in all irrigation systems.  Can result in  
                     reduced plant growth and plant damage and can impact  
                     freshwater plants and invertebrates in natural  
                     ecosystems if discharged directly with little dilution.  
                      The most common salt is sodium chloride, although  
                     other salts also contribute to salinity.
                ii)        Sodium - Can be toxic to some plants if it  
                     accumulates in soils from ongoing irrigation. More  
                     important as a component of salinity and sodicity.
                iii)       Chloride - Can be toxic to plants if sprayed  
                     directly on leaves, and if it accumulates in soils from  
                     ongoing irrigation, but is usually more important as a  
                     component of salinity.
                iv)        Nitrogen - Mostly of benefit to cultivated  
                     plants, but can cause eutrophication (excessive  
                     nutrient levels) in land and aquatic ecosystems.
                v)         Phosphorus - Mostly of benefit to cultivated  
                     plants, but can cause eutrophication (excessive  
                     nutrient levels) in land and aquatic ecosystems.
                vi)        Chlorine residuals - By-products of disinfection  
                     processes may be harmful to aquatic or marine  
                     ecosystems if discharged directly with little dilution.








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                vii)       Hydraulic loading - Too much water applied to  
                     land can result in excess groundwater recharge, water  
                     logging and secondary salinity.
                viii)        Boron - Plant toxicity may arise in some plants  
                     in some soils if it accumulates from ongoing  
                     irrigation.
                ix)        Surfactants - Some organic and inorganic surface  
                     active agents from detergents can remain in recycled  
                     water and can be harmful to some aquatic organisms.
                x)         Pathogens - The same pathogens listed above  
                     presenting risk directly to human health are an  
                     environmental risk.  Should E Coli be discharged into  
                     the soil from graywater irrigation it could potentially  
                     contaminate food crops or reach and contaminate  
                     groundwater. 

               Exposure to graywater can occur both through direct contact  
               and through exposure to graywater contaminated irrigated  
               landscaping, crops, or groundwater.  As proposed by this  
               bill, dark graywater could be used indoors, so additional  
               risks would exist by direct contact with the water used in  
               the toilet or by inhalation when the toilet is flushed.

               Because wastewater from kitchen sinks or dishwashers can  
               contain chemicals from dishwashing detergents, food  
               particles, oils, fats, grease, pathogens from meat  
               preparation, and even, as some studies have shown,  
               concentrations of fecal coliform at similar or higher levels  
               than toilet water, it can be considered a high-risk  
               wastewater.  

               For this reason, it is not considered gray water.   

               By creating different shades of gray, the statute would be  
               implying different levels of risk not supported by water  
               quality data.

          4) Graywater regulation in California:  Since the 1990s,  
             California's Building Code has included provisions that  
             authorized the installation and use of graywater systems, but  
             the regulations were seen to be restrictive and complicated.  

             In 2008, California revised its approach to graywater  
             regulation by enacting SB 1258 (Lowenthal, Chapter 172,  








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             Statutes of 2008), the "Showers to Flowers" bill, which shifted  
             responsibility for regulating residential graywater systems  
             from the Department of Water Resources (DWR) to HCD.  SB 1258  
             required the HCD to revise building standards for the  
             construction, installation, and alteration of graywater systems  
             for indoor and outdoor uses.  

             HCD promulgated the new residential graywater standard,  
             incorporated into the 2007 California Plumbing Code (Title 24,  
             Part 5, Chapter 16A), which is intended to conserve water by  
             facilitating greater reuse of laundry, shower, lavatory and  
             similar sources of discharge for irrigation and/or indoor use;  
             reduce the number of non-compliant graywater systems by making  
             legal compliance more easily achievable; provide guidance for  
             avoiding potentially unhealthful conditions; and, provide an  
             alternative way to relieve stress on a private sewage disposal  
             system by diverting the graywater.  

             According to HCD, the regulations were developed with input  
             from stakeholders representing a wide variety of interests  
             during several public meetings, with several drafts for public  
             comment.  

             Toward the end of the development of the regulations, HCD  
             decided to propose the graywater standards on an emergency  
             basis in order to allow the regulations to become effective  
             approximately 18 months sooner than they would have been  
             through the standard adoption process.

             It is not clear what the justification was to adopt emergency  
             regulations:  bypassing the standard/full Administrative  
             Procedures Act (APA) process or whether there was sufficient  
             input or consideration about the public and environmental  
             health risks associated with graywater exposures in this  
             truncated process.

             Washington/Oregon Apples to California Oranges comparison.   
             Although Washington and Oregon allow the reuse of dark  
             graywater, those states limit that reuse to only outdoor  
             irrigation.  Additionally, those states also require that  
             kitchen sink and dishwasher wastewater be treated, through  
             physical or chemical processes, depending on the type of  
             irrigation for which the graywater is intended.  Neither  
             requirement is incorporated into this legislation.








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          Comments
                
          1) Purpose of Bill.  The author asserts that the effects of  
             climate change, specifically the drought, can be seen  
             throughout California.  The author feels that as a state, we  
             need to be proactive and explore all opportunities to be water  
             wise.  The author believes that this modest measure will allow  
             the state to look at dark graywater as a source of reusable  
             water and create a framework for responsible homeowners to  
             follow.  
              
          2) Need for Consistency in State Policy Will Ensure Greatest  
             Benefits of Reused Water.

             a)    Ensuring Water Quality and Protecting Public Health.  The  
                treatment and use of recycled water and graywater is  
                regulated across many different state and local agencies.

               SWRCB oversees California's water quality and has the charge  
               of developing regulations for recycled water recharge of  
               drinking water sources and studying the feasibility of direct  
               potable reuse of recycled water.  

               SWRCB has the responsibility of permitting wastewater  
               treatment and discharges in the waters of the state as well  
               as ensuring water quality.

               HCD and BSC develop and implement the building standards for  
               the use of graywater systems.

               Local governments implement and enforce building permit  
               requirements and environmental/public health laws for their  
               jurisdictions.

               While SB 1258 appropriately transferred the development of  
               graywater building standards from DWR to BSC, it did so  
               without consideration of water quality.

               The complex nature of designing systems that convey  
               contaminated water from inside the home, in such a way that  
               drinking water infrastructure is not compromised, requires  
               the involvement of SWRCB at every stage of the policy  
               development process.  Authorizing its reuse should have sign  








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               off by the environmental, public health agency that has  
               oversight over water quality, wastewater regulation and  
               permitting and public and environmental protection.

               What happens once a graywater (or dark graywater) is  
               installed?  How does a homeowner ensure proper usage and  
               maintenance?  Who do they call for repairs or malfunctions?   
               If a house is sold with a graywater system, what is required  
               to be told to the new homeowner about the system and  
               potential risks of exposure?  What happens if there is  
               exposure to a child or animal?


               How do we ensure as we proceed with new state policies on  
               water reuse that all of the regulatory bodies are working  
               together and that regulations adopted are adequately  
               protective of public health and the environment? 

             b)    What Direction Does California Invest In? - How Does  
                California Ensure Best and Consistent State Policy for  
                Recycling Water and Uses of Recycled or Graywater - when is  
                centralized treatment and reuse best and when is it better  
                to reuse on-site?

                Installation of graywater systems is an added expense to  
                homeowners and graywater is untreated and unregulated use of  
                wastewater that can potentially pose a risk to public health  
                and groundwater contamination.  While water conservation and  
                reuse is imperative for every Californian, and graywater  
                reuse may be one beneficial path, the right solution may be  
                different across the states.

                While in 2008, when Senator Lowenthal authored SB 1258, it  
                may have made sense to encourage greater uses of these  
                systems statewide.  Now, in 2016 the water reuse landscape  
                is very different.

                SB 918 (Pavley, Chapter 700, Statutes of 2010) directed  
                SWRCB to develop regulations for the treatment standards for  
                indirect groundwater and surface water augmentation and look  
                at the feasibility for direct potable reuse of recycled  
                water by the end of this year. 

                Sanitation districts across the state have invested billions  








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                of dollars in research, development, and building several  
                state-of-the-art systems for recycled water.

                California's Water Recycling Act states that it is  
                California's goal to recycle more than 2,000,000 acre feet  
                of recycled water per year by 2030.  

                The state has invested in recycled water infrastructure in  
                the last 2 water bonds.

                There is no question that centralized water recycling at a  
                permitted facility, with sophisticated technology run by  
                engineers, where the water is tested and monitored regularly  
                and inspected by water quality agencies is going to garner a  
                safer and cleaner reuse of the water.  While centralized  
                water recycling with the highest and best technologies is  
                not yet available statewide, is that not the direction we  
                are investing in?

                As we pass laws and policies encouraging and requiring local  
                jurisdictions to support graywater systems, we may create a  
                disincentive for large investments in new wastewater  
                recycling system.

          3) Suggested amendment.  As the author succinctly states, "climate  
             change and longer and more frequent droughts are changing the  
             landscape of California necessitating smarter and the most  
             prudent uses and reuses of the state's precious water  
             resources. " 

             However, there needs to be a consistent and comprehensive  
             approach to how we best use and reuse all our water.  The bill  
             should be amended to authorize SWRCB to do a comprehensive  
             overview of the state's water recycling and graywater  
             resources, develop regulations for the best management of those  
             resources to ensure public and environmental health protection  
             and require SWRCB review and sign off on new building standards  
             involving graywater use.  Local agencies should be given the  
             discretion to not approve these systems if they are investing  
             in centralized water recycling.  Upon completion of the review  
                                                                                  the SWRCB should report to the Legislature its findings and any  
             recommendations for statutory changes.

            Related/Prior Legislation








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            AB 2282 (Gatto, Chapter 606, Statues of 2014) requires HCD to  
            conduct research to assist in the development of, and to submit  
            for adoption of, mandatory building standards for the  
            installation of recycled water systems for newly constructed  
            single-family and multifamily residential buildings.

            AB 849 (Gatto, Chapter 577, Statutes of 2011) repeals the  
            authority of a city, county, or other local agency to adopt  
            building standards that prohibit entirely the use of graywater  
            and instead authorize the adoption, under specified  
            requirements, of standards that are more restrictive than the  
            standards adopted pursuant to state requirements.

            SB 518 (Lowenthal, Chapter 622, Statutes of 2010) requires BSC,  
            as a part of the next triennial edition of the California  
            Building Standards Code adopted after January 1, 2011, to adopt  
            building standards for the construction, installation, and  
            alteration of graywater systems for indoor and outdoor uses in  
            nonresidential occupancies.

            SB 918 (Pavley, Chapter 700, Statutes of 2010) requires SWRCB to  
            adopt uniform water recycling criteria for indirect potable use  
            for groundwater recharge, by December 31, 2013, uniform water  
            recycling criteria for surface water augmentation by December  
            31, 2016 and to investigate and then report to the Legislature  
            on the feasibility of developing uniform water recycling  
            criteria for direct potable reuse, by December 31, 2016.  

            SB 1258 (Lowenthal, Chapter 172, Statutes of 2008) requires HCD,  
            at the next triennial building standards rulemaking, to adopt  
            and submit building standards for the construction,  
            installation, and alteration of graywater, as defined, systems  
            for indoor and outdoor uses. This bill also moved the  
            responsibility for regulating residential graywater from the  
            Department of Water Resources to the Department of Housing and  
            Community Development.  

          
          DOUBLE REFERRAL:  
          
            This measure was heard in Senate Transportation and Housing  
          Committee on June 21, 2016, and passed out of committee with a  
          vote of 7-0.








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          SOURCE:        Author  

           SUPPORT: 

          California League of Conservation Voters
          City of Santa Monica
          Ojai Valley Green Coalition
          San Francisco Public Utilities Commission
          Sierra Club California
          Sustainable Silicon Valley
          7 individuals
            
          OPPOSITION:    

          Eastern Municipal Water District
           
           ARGUMENTS IN  
 SUPPORT:    
           
          Californian's produce around 400 million gallons per day of dark  
          graywater, in both residential homes and commercial kitchens.   
          This bill would legalize the reuse of that water which is  
          important and timely in our drought-prone state.
           
           ARGUMENTS IN  
OPPOSITION:    

          Eastern Municipal Water District states, "Studies have indicated  
          that a majority of gray water systems that are currently installed  
          within California have been installed without the proper permits  
          and a greater number fail to comply with maintenance and  
          inspections required in the plumbing code.  The addition of "dark  
          graywater" could jeopardize public health."  

           
                                           
                                       -- END --