LAND APPLICATION OF WASTEWATER AND STATE WATER LAW: AN OVERVIEW Volume I by Donald W. Large University of Wisconsin Law School Contract No. EPA-IAG-D5-0799 EPA-600/2-77-232 Project Officer Curtis C. Harlin, Jr. Wastewater Management Branch Robert S. Kerr Environmental Research Laboratory This study was conducted U.S. Department of Agriculture ROBERT S. KERR ENVIRONMENTAL RESEARCH LABORATORY U.S. ENVIRONMENTAL PROTECTION AGENCY DISCLAIMER This report has been reviewed by the Robert S. Kerr Environmental Research Laboratory, U.S. Environmental Protection Agency, and approved for publication. Approval does not signify that the contents necessarily reflect the views and policies of the U.S. Environmental Protection Agency, nor does mention of trade names or commercial products constitute endorsement or recommendation for use. FOREWORD The Environmental Protection Agency was established to coordinate administration of the major Federal programs designed to protect the quality of our environment. An important part of the agency's effort involves the search for information about environmental problems, management techniques and new technologies through which optimum use of the nation's land and water resources can be assured and the threat pollution poses to the welfare of the American people can be minimized. EPA's Office of Research and Development conducts this search through a nationwide network of research facilities. As one of these facilities, the Robert S. Kerr Environmental Research Laboratory is responsible for the management of programs including the development and demonstration of soil and other natural systems for the treatment and management of municipal wastewaters. Although land application of municipal wastewaters has been practiced for years, there has been a growing and widespread interest in this practice in recent years. The use of land application received major impetus with the passage of the 1972 amendments to the Federal Water Pollution Control Act. Subsequent revisions in the Environmental Protection Agency construction grants regulations made the use of land application mandatory if it was the most cost effective alternative and satisfied other applicable requirements. As land application became more widespread, a growing need developed to define the legal aspects of this technology, particularly with respect to the water rights laws of the various states. The purpose of this report is to satisfy this need. This report contributes to the knowledge essential if the EPA is to meet the requirements of environmental laws that it establish and enforce pollution control standards which are reasonable, cost effective and provide adequate protection for the American public. William Galegar William C. Galegar Director Robert S. Kerr Environmental Research Laboratory PREFACE Land application of wastewater for irrigation and other purposes is becoming an increasingly popular method of sewage treatment and disposal. In a time of intensified concern with water quality, care must be taken to insure that land application systems are planned and operated consistently with applicable water quality standards. While Federal laws and regulations pertaining to preservation of water resources will have application to land application systems, another source of legal control not yet intensively studied is the water law policies of the states in which land application systems are being or will be developed. While some states have specific regulations pertaining to land application, most do not. In this latter group of states, it becomes necessary to analyze the possible impacts a land application system might have on the waters of the state, and to determine general water law framework. The purposes of this report, therefore, are: (1) to define the legal questions which pertain to land application of wastewater in the context of state water rights law; (2) to explain the two basic theories of water law prevalent in the United States; and (3) to identify the particular aspects of each water law doctrine that may influence treatment system design and operation. Occasional reference will be made to the laws of particular states, although detailed description of the variations of the law in each of the states selected for in-depth study will be undertaken in Volume II of this report. It is intended that this report shall serve as the basis from which the more specific state analyses shall proceed. ABSTRACT This research project was undertaken with the overall objective of analyzing state water rights law in order to determine its possible impact on systems of land application of wastewater. It was determined that most states do not have regulations specifically controlling land application of wastewater, and that an analysis would have to be undertaken of basic state water law principles which, for the most part, have been developed with entirely different uses of water in mind. Several basic dichotomies were noted which could have some impact on the treatment of land application systems in different locations. There is a basic distinction between the "riparian" states of the East, which emphasize the right of each riparian landowner along a watercourse to the use of the water, and the "appropriation" states of the West, which emphasize that the right inures to the prior user of the water. In addition, most states in both the riparian and appropriation categories distinguish between "natural watercourses, " "surface water," and "groundwater," with different legal considerations and results frequently occurring in different categories of water within the same state. Occasional abstract legal requirements of absolute purity of waters were found which, if literally applied, could pose adverse implications for any innovative uses of water, including land application. For the most part, state water rights law was found to contain enough flexibility, through its emphasis on encouraging "reasonable" uses of water, to enable land application systems to operate free from legal uncertainty. This report was submitted in fulfillment of Contract No. EPA-IAG-D5-0799 by the Economic Research Service, U.S. Department of Agriculture, under the sponsorship of the U.S. Environmental Protection Agency. The report covers the period June 30, 1975, to September 30, 1977, and work was completed as of July 31, 1977. Research for the report was performed at the School of Natural Resources and Law School, University of Wisconsin-Madison, pursuant to Cooperative Agreement No. 12-17-06-8-1423-X between the University of Wisconsin and the Economic Research Service, U.S. Department of Agriculture. |