In April 2024, the Environmental Protection Agency (“EPA”) announced a new maximum contaminant level (“MCL”) for monitoring and regulation of six PFAS (Perfluoroalky and Polyfluoroalkyl Substances, aka “forever chemicals”).

PFAS are identified by extremely strong bonds of fluorine and carbon which do not easily disintegrate in the environment or in the human body. These “forever chemicals” have been utilized since the 1940’s because they are highly effective at repelling oil and water. 

All community[1] and non-transient non-community water systems[2] must comply with the PFAS MCLs beginning in 2027. Until now, all prior information from the EPA regarding PFAS was advisory. The prior advisory level from the EPA for PFAS was 70 parts per trillion (“ppt”). The new MCLs for the six PFAS are as follows:

• 4 ppt for PFOA
• 4 ppt for PFOS
• 10 ppt for PFNA
• 10 ppt for PFHxS
• 10 ppt for HFPO-DA
• 1 (unitless) hazard index of a mixture of two or more PFAS chemicals: PFNA, PFHxS, PFBS, and HFPO-DA (commonly known as Gen X)

Often, state governments required larger drinking water systems to monitor the amount of PFAS in their drinking water. Although, they did not impose a regulation. Now, all community and non-transient non-community water systems must begin monitoring for PFAS by 2027. Systems must provide their monitoring data to the EPA. If a water system has a level at or over the MCL, they must implement infrastructure to reduce the PFAS below the limits.

Realities of PFAS Monitoring

One of the difficult realities of measuring for these MCLs is finding a lab with analytical capabilities to detect that level of PFAS in a sample, and at an affordable rate. Many labs do not currently have the analytical capabilities to detect 4 ppt or lower in a sample. Before a water system submits its sample to a particular lab, it should ensure the lab can detect 4 ppt or lower. The sample must show 3.99 ppt or lower to be in compliance with the MCL for PFOA and PFOS. PFOA and PFOS are the most common PFAS in drinking water. Typically, the smaller the detection limit required, the more expensive the test.

Funding is available from the Drinking Water State Revolving Fund and the EPA’s Emerging Contaminants in Small or Disadvantaged Communities Grant Program to assist with making the impacted water systems compliant with this new regulation. There are also other federal programs available to assist with any additional costs. Another program, the Water Infrastructure Finance and Innovation Act (“WIFIA”), provides low-cost, flexible funding to communities for water infrastructure projects. WIFIA funding is available year-round.

Although the EPA provided three years for systems to begin the process, the sooner a system understands their situation the better. Schroeder Law Offices, P.C. assists many municipal water systems regarding compliance with drinking water standards. Please contact our office if you have any questions regarding your water system.

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[1] “Community Water System” means a public water system that has 15 or more service connections used by year-round residents, or that regularly serves 25 or more year-round residents. 40 CFR § 141.2.

[2] “Non-Transient Non-Community Water System” or “NTNC” means a public water system that regularly serves at least 25 of the same persons over 6 months per year. 40 CFR § 141.2.

You just purchased property with a pond, or a reservoir. Within the documents provided by the prior owner, you did not find a “typical” stored water right certificate or permit to store water. But you did find a water right of use that allowed storage water to be used for irrigation. Now, you fear the prior owner did not apply for a permit to store water with the Oregon Water Resources Department (“OWRD”). You do not like the current location of the pond or reservoir. You worry you cannot change anything about the pond or reservoir due to the missing water right of use or water right certificate.

This may not be the case, but to be sure, you must research stored water rights in Oregon.

Applications and Use

OWRD may allocate water for “beneficial use.” To receive an allocation, a person must apply to the OWRD. A person can apply for a right of use to store water but needs a secondary right to “use” the stored water. In other words, OWRD requires two permits, one to store and one to use. For example, water use permits only apply to uses for irrigation, nursey, or recreation, not storage.

In the early 1990s, the State allowed owners of reservoirs built prior to 1995 to apply for a reservoir to be “exempt” from OWRD’s “typical” water right application process for storage. If the owner followed the proper steps, the reservoir would be exempt but would not necessarily receive a standard “certificate” from OWRD. In other words, the owner wouldn’t be subject to penalties for storing water in the reservoir even though OWRD didn’t issue a water right certificate. If a person did not qualify for or complete these steps, they would need to apply for a “typical” stored water use permit.

Transfer Applications for Stored Water

In your research, you find out that you have an exempt reservoir. You are relieved to find out that you can legally store water on your property. However, you are still unhappy with the location of the reservoir.

Due to a recent Oregon Court of Appeals ruling, you will be able to change the location of your reservoir with a transfer application submitted and approved by OWRD. Since 2018, OWRD argued it did not have the authority to transfer, or relocate, any storage water right of use under state law. In Bridge Creek Ranch, LLC v. Oregon Water Resources Department, the Oregon Court of Appeals did not agree with OWRD’s interpretation. The Court determined that a primary right to store water and a secondary right to use the stored water are “inextricably linked”. Therefore, OWRD must accept transfer (change) applications for stored water uses that were issued certificates.

This clarification could allow you to hopefully transfer the location of your reservoir to a more convenient part of your property and allow you to begin perfecting your water rights.

California adjudication rules have changed! On October 10, 2023, California Governor Gavin Newsom signed AB 779 into law. This California law requires courts to consider sustainability and equality factors during groundwater basin adjudications. The intent behind this adjudication rule is to keep everyone informed and provide equal access to resources.

Adjudications of water basins are court cases that decide water use claims in a particular basin. Water users must file their claims by a certain date. Once the adjudication process concludes, the court orders a claim into a decreed water right. Oregon, Idaho, Washington, and Nevada also currently have active adjudications, but sustainability and equality that are not incorporated into a claim are not usually addressed is these other states.

This California adjudication rule requires the groundwater sustainability agency (“GSA”) to submit the required sustainability plan(s) for groundwater basins designated as high or medium priority to the court. This law also requires the GSA to notify the public when an adjudication begins. The public notice requirement stipulates that the GSA must host a public meeting to explain the adjudication process. The GSA must publicly post court documents for the public to follow the adjudication process. Further, the court must consider “the water use of and accessibility of water for small farmers and disadvantaged communities” before entering a judgment.

The Effects of AB 779

Adjudications are long, expensive processes. These considerations will help all parties participate in the process, no matter the size or financial resources. By the end, hopefully everyone receives access to the resources they need.

Other states conducting adjudications have notices requirements, but do not currently have public hearing requirements to explain the process at the outset.

Oregon and Nevada have notice requirements referred to as notice “by publication.” This is when the Director or the State Engineer publishes notice in a newspaper circulated in the area where the adjudication takes place. In comparison, in Idaho adjudications, Idaho Law requires the Idaho Department of Water Resources Director to serve notice by mail to affected parties. Finally, Washington law requires notice to property owners by publication or personal service.

States conducting adjudications often look to streamline the process. It will be interesting to see if neighboring legislatures to California push for similar requirements as this California adjudication rule. Although it may add time at the beginning and during the adjudication, it may save time later on in late filed claims, or applications for water rights.

If you are a water user in Oregon, Idaho, Washington, or Nevada, and there is an ongoing adjudication near you please contact us for information. You may also review the water department’s website in your state.