BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 1738 ----------------------------------------------------------------- |Author: |McCarty | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |3/28/2016 |Hearing | 6/29/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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." AB 1738 (McCarty) Page 2 of ? 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 AB 1738 (McCarty) Page 3 of ? 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 AB 1738 (McCarty) Page 4 of ? 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 AB 1738 (McCarty) Page 5 of ? 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. AB 1738 (McCarty) Page 6 of ? 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, AB 1738 (McCarty) Page 7 of ? 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. AB 1738 (McCarty) Page 8 of ? 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 AB 1738 (McCarty) Page 9 of ? 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 AB 1738 (McCarty) Page 10 of ? 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 AB 1738 (McCarty) Page 11 of ? 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. AB 1738 (McCarty) Page 12 of ? 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 --