Comments to Noreen Evans on Recycled Water Policy Amendment

June 7, 2012

To: Senator Noreen Evans

Dear Senator Evans:

Introduction: About our group…
RRWPC is a nonprofit public benefit organization incorporated in the State of California since 1980. Our supporters include property and business owners, residents, recreationists, and other concerned citizens in the lower river area from Healdsburg to Jenner.  They utilize the Russian River for recreation, fishing, swimming, artistic expression, spiritual well being, and exercise for themselves, family, friends and pets. Many own property in the Russian River area for their summer enjoyment, but reside and work in the greater Bay Area and beyond. RRWPC’s major goal is to protect these beneficial uses from toxic discharges that deteriorate water quality and deny or degrade enjoyment of the river and harm the environment.

Introduction: The Russian River is already impaired…..
Assembly Bill 2398 will eliminate most regulation of irrigated tertiary wastewater that runs down storm drains into creeks by simply declassifying wastewater that is heavily regulated in the winter, as a non-waste product in the summer, when it actually can do more harm.  In addition, the 50,000 gallon reporting limit, in contradiction to the incidental runoff definition, will prevent enforcement of most spills.  These wastewater discharges will occur in months when recreational use is high, aquatic life is most vulnerable, and limited stream flows concentrate toxins in shallow water.

AB 2398 in its current form is likely to greatly impact not only recreational use and human health, but also the aquatic and wild creatures whose home is the Russian River watershed.  There are numerous water quality issues in the Russian River, especially in the summer time. For instance, the river is degraded for sediment, temperature, bacteria, and suffers from excessive nutrients and invasive species.  Studies have demonstrated that significant amounts of excessive bacteria in the lower river is actually discharged into the Laguna from urban runoff.

Irrigation runoff of tertiary wastewater will exacerbate the problem, especially at a time when the State is lowering minimum flows by 44%.   In general, while we support the reuse of wastewater that is properly treated, monitored, applied, and regulated, we have concerns that AB 2398 in the May 22, 2012 version of the Bill, does not adequately protect human health and the environment from the effects of tertiary discharges.

We don’t offer specific language change suggestions because AB 2398 is a lengthy and complicated Bill that refers to numerous existing legal codes.  Since we are not attorneys, we do not feel qualified to suggest specific changes.

Concerns regarding citizen input into the legislative process…
For citizens who do not normally participate in the legislative process, we found AB 2398’s transit through the Assembly difficult to follow.  Extensive limitations were placed on public involvement in this lengthy, complicated, yet very significant legislation. There was inadequate time and/or opportunities to give input on each of the four revisions.  While hearings did take place,  time allotted was mostly allocated for people and entities supporting the Bill.

We were surprised about the rapidity of the passage of this highly complicated Bill, which included three committee hearings, three legislative analyses, and four versions of the Bill in less than three months.  The public had no time to respond to each new version and has not seen a legislative analysis of the current version of the Bill.  Also, we wonder where we can access all documents submitted for this Bill?

RRWPC comments only addressing certain aspects of AB 2398….
Some sections of AB 2398 address the addition of treated, “purified” wastewater into ground water and directly into the drinking water supply for potable reuse.  Since no reverse osmosis and/or advanced membrane treatment exists in our area (North Coast Region 1), we will only address concerns about surface irrigation with tertiary wastewater as it impacts the Russian River and its tributaries.

Our major concern is about the sections on tertiary wastewater which is NOT pure and NOT drinkable.  It contains endocrine disrupting chemicals, pharmaceuticals, nutrients, some dangerous bacteria, and remnants of 80,000 unmonitored and unregulated chemicals used in everyday life.   Irrigation runoff drains poisonous pesticides and herbicides used on landscapes into streams.

Unintended consequence:  AB 2398 may cause environmental harm…
The goal of this Bill is to ultimately recycle 2.5 million acre feet a year by 2030, while supposedly protecting water quality, preserving water supplies, and sustaining all of this on a long term basis under all wet to dry summer flow scenarios.    The extent to which Regional Districts will be able to adopt regulations that protect specific river conditions is unclear in light of very high reporting limits and declassification of recycled water as a waste.  The main thrust of the Bill and also of the Recycled Water Policy is to recycle as much wastewater as possible.  By so doing, important environmental protections will be lost.

Furthermore, the Bill relies on development of future salt and nutrient policies.  The Recycled Water Policy avoids requiring such studies to include impacts to surface waters.  If wastewater has a high nutrient content, how will controls be established when wastewater is spilled into a nutrient impaired water body? How will total daily maximum loads (tmdl’s) will be complied with, when established, given extremely high reporting limits and declassification of tertiary irrigation water as a waste.  These studies are unlikely to address endocrine disrupting chemicals, because the Scientific Panel has determined that it won’t be necessary.  That does not mean that these chemicals will go away and not have any impact.

RRWPC attempted to enter a recent study into the legislative record entitled “Hormones and Endocrine-Disrupting Chemicals: Low-Dose Effects and Nonmonotonic Dose Responses” By Laura N. Vandenberg, Theo Colborn, Tyrone B. Hayes, Jerrold J. Heindel, David R. Jacobs, Jr., Duk-Hee Lee, Toshi Shioda, Ana M. Soto, Frederick S. vom Saal, Wade V. Welshons, R. Thomas Zoeller, and John Peterson Myers  (Endocrine Reviews:  March 14, 2012)

This study demonstrates that many endocrine disrupting  chemicals have been found to cause significant health impacts to humans and wildlife at extremely low doses. We will obtain permission from the authors and publishers for you to utilize this document as evidence on this issue.  The link to this study can be found at: (click on: pivotal paper released on low dose exposures) We will also mail your office a packet of articles on the topic.  The CEC Study (Contaminents of Emerging Concern) referred to in AB 2398 concluded that monitoring of CEC’s in irrigated wastewater was not necessary.

Irrigated tertiary wastewater declassified as waste….
On page 27 (May 22, 2012 version of Bill) it states, “For purposes of this section, “sewage” means the effluent of a municipal wastewater treatment plant or a private utility wastewater treatment plant, as those terms are defined in Section 13625, except that sewage does not include recycled water, as defined in Section 13050 or 18005.”   (emphasis added)

Similarly on page 5 it states: “5411. A person shall not discharge sewage or other waste, or the effluent of treated sewage or other waste, in any manner that will result in contamination, pollution or a nuisance. This section does not apply to the use of recycled water, as defined in Section 18005 of the Water Code, and in accordance with the requirements of the Water Recycling Act of 2012 (Division 8 (commencing with Section 18000) of the Water Code) or the requirements of this division.”  (emphasis added)

The Bill declassifies tertiary treated wastewater as a waste when used for irrigation only and simultaneously appears to eliminate regulation of irrigation overflow and/or monitor for endocrine disruptors.  This must be contrary to anti degradation regulations in the Russian River watershed because anticipated receiving waters are highly impaired for nutrients and other pollutants. (Laguna de Santa Rosa is listed for nitrogen and phosphorus under 303(d) of Clean Water Act.) Furthermore, this irrigated wastewater is the exact same product that is highly regulated in the winter, and in fact was for 40 years prohibited from discharge in summer in the North Coast District #1.

The exact same treated wastewater is more highly regulated under Porter-Cologne at other times when potential harmful consequences are considerably less (i.e., winter months). Consequently, we do not believe that the provisions in this Bill will adequately protect human health and water quality where there is irrigation discharge from overspray.  The full range of anticipated impacts from the declassification of irrigated recycled wastewater as a waste needs to be fully addressed.

While the Bill claims that there are no changes to various Codes governing water recycling in California, the Bill appears to eliminate water quality oversight authority under the Porter-Cologne Act for irrigated wastewater by virtue of the declassification of recycled water as a waste.  Instead governance of recycled water will rely on the Recycled Water Policy and associated permits.  This declassification appears to allow skirting of requirements on incidental runoff found both in the North Coast Basin Plan and the Recycled Water Policy.  These issues should be addressed BEFORE Bill is finalized.  Also “reporting limits” have not been determined yet for many discharges.  How will  tmdl limits be affected in impaired water bodies if recycled water is allowed to run off?

Similarly, the following statement is made on page 32 under (m):  The recycling of water, the supply, storage, or use of recycled water in accordance with the requirements of this division shall not be considered a discharge of waste or sewage for purposes of Section 13264 or 13271, or a nuisance, as defined in subdivision (m) of Section 13050.”  (Our reading of these sections implies that because irrigated water is not considered waste, it doesn’t fall under the regulations governing spills.  So by simply declaring something is NOT a waste, with no burdon of proof to demonstrate that fact, enormous environmental harm can occur by allowing large amounts of run off.)

Put another way, it defines sewage as (adequately) treated wastewater, but then states that this sewage/treated wastewater does not include recycled water.  Put another way, Section 13050 of the Water Code it states (n): “Recycled Water” means 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 a considered a valuable resource.”  The question remains, how can “recycled water” be treated differently than treated sewage (wastewater) when the definition, based on treatment methodology is the same for both?  And, because the treated sewage is designated as recycled water, which is a high use, therefore it is safe.

Contradictions in various reporting limits…..
The Bill refers to wastewater as sewage (page 27) and in regards to “reportable quantities” it states, “The regulations shall be based on the quantities that should be reported because they may pose a risk to public health or the environment if discharged to groundwater or surface water. Regulations establishing reportable quantities shall not supersede waste discharge requirements or water quality objectives adopted pursuant to this division. For purposes of this section, “sewage” means the effluent of a municipal wastewater treatment plant or a private utility wastewater treatment plant, as those terms are defined in Section 13625, except that sewage does not include recycled water, as defined in Section 13050 or 18005.” (emphasis added)

So first the Bill states it shall meet waste discharge requirements, and then it states that sewage does not include recycled water and implies that it does not have to meet those requirements.The language implies that reporting limits (for spills) will be established at a later date.

Even more confusing is the following statement on page 19 of the Bill: “No discharge shall be deemed a discharge of a reportable quantity until regulations set a reportable quantity for the substance discharged.”   And the solution to the problem was to allow discharges until a reportable quantity is established.

Yet on page 28 it refers to reportable limits of 1000 gallons for recycled water requires that Regional Board by notified immediately.  What happens before 1000 gallons?  And what about possible future changes to this requirement?

The 1000 gallon reporting limit appears to apply to spills of wastewater treated to less than a tertiary level.  This is noted on page 28 of the Bill in section (b): “For the purposes of this section, “recycled water’ means “recycled water,” as defined in subdivision (n) of Section 13050, which is treated at a level less than “disinfected tertiary recycled water,” as defined or described by the State Departement of Public Health.”   (emphasis added)

Then on page 61, it refers to 50,000 gallons of tertiary recycled water trigger notification, as soon as the recycler is aware of the spill.  Does that mean they don’t need to report BEFORE 50,000 gallons?  How does this relate to the prior requirement to report at 1000 gallons?  When we questioned the 50,000 gallon reporting limit, we were told it was in the old Code.  Indeed, we found it in Porter-Cologne.  50,000 gallon reporting limits would greatly harm our delicate waterways.

These high reporting limits, combined with declassification of recycled water as a waste, and also the 44% decrease in summer flows in the Russian River that will result from the Temporary Urgency Change Petition by the Sonoma County Water Agency under orders from the Biological Opinion of 2008, will lead to greater impairments in the Laguna de Santa Rosa and Russian River.  It will exacerbate problems with nutrients, invasive plants, and bacteria in the summer time during low flows, and will not only harm aquatic life who live in these waters full time, but will greatly affect recreational use along with exacerbating health and safety problems if widespread over spray is allowed to occur.  If you were to require that wastewater irrigation applications near waterways be by drip and not spray, most of the problem would go away.

High reporting limits challenge meaning of “incidental runoff”….
Both the Recycled Water Policy and the Basin Plan Amendment allowing “incidental runoff” intends for it to be truly incidental. The version in the Recycled Water Policy   on Page 8 states: “Incidental runoff is defined as unintended small amounts (volume) of runoff from recycled water use areas, such as unintended, minimal over-spray from sprinklers that escapes the recycled water use area. Water leaving a recycled water use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.” (emphasis added)

Compare that to the version in AB 2398 (page 33): “Incidental runoff “ means unintended minor amounts of runoff from recycled water use areas, such as unintended, minimal ocerspray from sprinklers that escapes the designated recycled water use area.”  They utilized the first half of the definition while leaving off the second, and most critical part and thereby changing the meaning significantly.

Extensive runoff will allow more toxins in the waterways…..
This bill allows for irrigation runoff of tertiary wastewater, including pesticides and herbicides applied to the irrigated landscape.  Tertiary wastewater itself contains remnant amounts of a vast array of chemicals (perhaps 80,000 of them), most of which are neither monitored or regulated by the State, and include such things as pharmaceuticals (including toxic cancer medications), personal care products, possible super bacteria (resistant to antibiotics), etc.

According to definitions on page 18 and 19 of the Bill, pesticides that runoff the land accidentally are considered hazardous substances and should not be allowed, except when they are less than the reportable amount.  If there is no reportable amount determined, then any runoff appears to be prohibited.  Incidental runoff is supposedly an accidental runoff and as such would not be allowed where pesticides are used.  Yet the implies that this is not the case and causes an apparent internal contradiction in the Bill that should be addressed.

We have been informed that in California, WINE GRAPES USE THE MOST PESTICIDES OF ANY OTHER CROP!!  So if irrigated wastewater is used on vineyards and allowed to runoff, we have a very toxic situation.  Luckily, most vineyards in our area use drip irrigation.  Hopefully that constrains the problem.  This legislation does appear inconsistent however.

The runoff of irrigated wastewater into our waterways is thought by many scientists to have dire effects on aquatic life, including threatened fish species.  This is compounded when the runoff carries with it the soil amendments, pesticides and herbicides applied to the irrigated landscape.

With the help of a friend, we obtained some statistics of pesticide and other use by Sonoma County vineyards.  In 2010 for instance, 7270 pounds of mancozeb were used.  This chemical is a water contaminent and listed as one of the ten worst by Pesticide Action Network.  In 2009, a total of almost 2,000,000 pounds of registered materials were used on vineyards in Sonoma County.  In 2010, 1,788,339 pounds of sulphur were used.  Generally considered benign, sulphur causes mercury to become methyl mercury which makes it bio available and far more dangerous to aquatic life.  The fish absorb the mercury, it bioaccumulates in the fish, people eat the fish, and voila! people are directly exposed to a very dangerous toxin.

Furthermore, no one really knows how these chemicals interact with one another or what the multiple effects might be.  Fish and aquatic life have to live full time in this chemical soup.  Humans may be exposed to dangerous chemicals through the fish they eat.

We know that these chemicals, many of which disrupt the endocrine system of humans and wildlife, and are known to cause birth defects, sexual anomolies, heart problems, cancer, especially of the reproductive system, obesity, diabetes and more.

Low dose impacts of endocrine disruptors….
The Bill relies on findings of the Scientific Panel who determined that monitoring of endocrine disruptors and constituents of emerging concern need not occur with recycled tertiary wastewater.  This is based on the assumption that the dose makes the poison and is contrary to recent scientific studies that prove the opposite, such as:

Hormones and Endocrine-Disrupting Chemicals: Low-Dose Effects and Nonmonotonic Dose Responses.  Study was developed and written by Laura N. Vandenberg, Theo Colborn, Tyrone B. Hayes, Jerrold J. Heindel, David R. Jacobs, Jr., Duk-Hee Lee, Toshi Shioda, Ana M. Soto, Frederick S. von Saal, Wade V. Welshones, R. Thomas Zoeller, and John Peterson Myers.

We attach several articles that explain the issue better than I can.

Thank you for taking the time to read and consider our concerns.


Brenda Adelman