The Shaky Foundation of Expansion in the Face of Drought: Reclaimed Water Encouraging Irrational Growth
by Clark Wheeler*
Reclaimed water use has increased in the arid American southwest, where long term drought conditions threaten the ability of communities to continue to grow. Reclaimed water, the parlance for treated sewage effluent, is water from a municipal sewage system that has been treated to a higher degree of purity than typical sewage. Many states have approved reclaimed water for non-potable usage, such as industrial uses and irrigation of lawns, but it has not yet been approved for direct human consumption in most United States municipalities because of on-going debates about safety. The water product itself contains trace remnants of pathogens and chemical residue, as well as hormones and vestiges of pharmaceutical products. These remnants within reclaimed wastewater present a potential danger to humans and the environment.
This article seeks to supplement the ongoing debate concerning reclaimed wastewater programs. Highlighting a series of legal challenges to a snow-making program in Arizona using reclaimed water, I argue that widespread reclaimed water usage is problematic, both as a potential environmental calamity and as a support mechanism for irrational urban development. Reclaimed water may ultimately serve as a supplemental resource that, when combined with subsidized water programs, allows municipalities to continue to grow without recognizing the true cost of water resources. If the persistent drought in the American west is a forecast of future events, then challenging decisions lie ahead concerning the growth of cities as their fresh water sources evaporate. Legal challenges against reclaimed water systems will allow municipalities and states to begin stricter regulation of water usage in arid climates, and may address the impending reality of long-term drought conditions in a rational manner.
In 2005, a ski resort outside of Flagstaff, Arizona, proposed to implement a system using reclaimed water to make snow. Soon thereafter, several Native American tribes, who hold the mountains on which the ski resort lies to be sacred, filed suit seeking an injunction to stop the resort from making the snow. The case rose to the Ninth Circuit, but certiorari was denied by the Supreme Court. The issues presented in the case were taken up by another group of plaintiffs who sought review of the validity of the United States Forest Service (USFS) assessment of the Environmental Impact Statement in its consideration of the dangers posed by consumption of reclaimed waters.
In both cases, the merits of the argument that the USFS had failed to adequately assess the risks posed by human consumption of snow made from reclaimed water were never reached, due to technicalities. The Courts’ failure to litigate on the merits was a grave misstep. Had the Courts ruled on this issue, the findings could be utilized in future conservation efforts. The plaintiffs in Navajo Nation v. U.S. Forest Service failed to bring this claim in their initial complaint, and in the subsequent case the Court barred the plaintiffs from litigating the merits based on the procedural administrative law technicalities. The courts held that the plaintiffs in the second suit had privity with the parties in the first suit and res judicata worked against them. Counter to the plaintiffs’ assertion that the issue of suitability for human consumption had not been adjudicated on the merits, the court found that issue to be supplemental to other claims in privity that had reached ultimate judgment. This leaves the issue of whether reclaimed water is unfit for human consumption without precedent in the courts. No subsequent court has ruled on the issue to this date. Although the Environmental Protection Agency sets guidelines for the treatment of wastewater and has not yet approved it for direct human consumption, the issue remains untested in the courts.
This presents a lingering conundrum. With the expansion of reclaimed water systems, the delineation between recreational, remediation, and direct and indirect human consumption use will being to blur. A court ruling would provide a foundation for future litigation. The dissenting judge in Navajo v. USFS acknowledged this problem, stating that the court should have decided this issue on the merits. Regardless of the dissenting opinion however, the issue of human consumption of reclaimed wastewater is still “without precedent.”
The Necessity of Future Efforts
There has been speculation that implementation of reclaimed water systems allows for, and subsidizes, irrational growth in areas that cannot truly sustain such a level of development. The implications of this are vast. The usage of reclaimed water to subsidize growth can lead to irrational market valuations for municipal water pricing. There is a concern that the actual market price of water in many municipalities is below the true cost of the resource. Subsidization by the federal government, intended to encourage growth in the western U.S., helps to obscure the true costs of municipal water. In addition, reclaimed water presents municipalities with an artificial metric by which they can measure their available water resources, leading to a false valuation. Were reclaimed water to be analogous to freshwater resources, this would not be a problem. However, reclaimed water is problematic in its present state as it presents hazards to human and environmental health.
An artificially low market price, when coupled with the effect of cheap reclaimed water, may widen the gap between the true market value and the actual cost of fresh water in the arid western states. Subsidizing water supplies, restricting the necessity of market pricing to account for the actual cost of usage, may lead to premature depletion of freshwater supplies as the consumer receives an artificially cheap resource, and urban areas will grow it in accordance with the perceived supply. Additionally, implementation of reclaimed water treatment facilities and systems are vastly expensive, and the reclaimed water is often sold well below cost. This realization is crucial in the face of dwindling western water supply. The implementation of reclaimed water systems for non-potable usage may act as a buffer between the true cost of water and the true market value, thereby allowing municipalities to continue to grow without allowing true market forces to dictate how quickly growth should occur and how costly it should be. Legal challenges to reclaimed water projects, as well as the removal of subsidized water supplies, are a necessity and will help the public confront the hard choices concerning water usage policies. The pattern of growth in environments that do or may face water scarcity would be better informed, and more rationally developed, by a water pricing scheme that reflects the true cost of such a precious resource. Irrational growth, supported by reclaimed water and water subsidies, presents a precarious situation for arid communities.
The issues concerning reclaimed water usage are still in flux. Many aspects remain untested in the courts, and as implementation of reclaimed water systems grows in accordance with an expanding populous, so too does the need for clear jurisprudence in this matter. Most important is the need for further research concerning the adverse effects of reclaimed water, and the growing problem of irrationally subsidized growth. A lingering uncertainty remains as to what effect diminishing water resources will have on property values - though the answer may be crystal clear.
* Candidate for Juris Doctor, May 2015, Northeastern University School of Law.
 David S. Brookshire et al., Western Urban Water Demand, 42 Natural Resources J. 873, 873–874 (2002) (discussing the scare water resources in the arid Southwest).
 See Kathy Chu, From Toilets to Tap: How we get tap water from sewage, USA Today, (Mar. 2, 2011) http://usatoday30.usatoday.com/money/industries/environment/2011-03-03-1....
 See Ginette Chapman, From Toilet to Tap: The Growing Use of Reclaimed Water and the Legal System's Response, 47 Ariz. L. Rev. 773, 782 (2005). For a thorough scientific assessment of contaminants in reclaimed water, see Kinney et al., Presence and Distribution of Wastewater-derived Pharmaceuticals in Soil Irrigated with Reclaimed Water, 25 Envtl. Toxicology & Chemistry 317 (2006).
 Brookshire et al., supra note 1, at 892–94 (discussing the “real” price of water, which may not reflect current market prices). See also, Lynne Holt, Avoiding a Water Crisis in Florida: How Should Florida’s Water Supply be Managed in Response to Growth? 8–9, available at http://warrington.ufl.edu/centers/purc/purcdocs/PAPERS/0533_Holt_Avoidin... (last visited Jan. 29, 2013) (discussing approaches to help municipalities meet long-term sustainability goals).
 For a brief overview discussing NOAA findings on the 2012 drought see Robert Kimball, U.S. Drought Demonstrates Complexity, Severity of Water Risk, WRI INSIGHTS (Jul. 20, 2012), http://www.wri.org/blog/us-drought-demonstrates-complexity-severity-wate....
 For an overview of the situation in U.S. municipalities, including some in the arid Southwest, see U.S. Dep’t of the Interior, USGS Fact Sheet-103-03, Ground-Water Depletion Across the Nation (2003), available at http://pubs.usgs.gov/fs/fs-103-03/JBartolinoFS(2.13.04).pdf [hereinafter USGS Factsheet].
 Cyndy Cole, Snowmaking Begins at Arizona Snowbowl, AZ Daily Sun (Dec. 4, 2012), http://azdailysun.com/news/local/snowmaking-begins-at-arizona-snowbowl/a....
 Navajo Nation v. United States Forest Serv., 535 F.3d 1058 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009).
 Save the Peaks Coal. v. United States Forest Serv., 669 F.3d 1025 (9th Cir. 2012).
 Id. at 1035–37.
 Navajo Nation, 535 F.3d 1058; Save the Peaks Coal., 669 F.3d 1025.
 Save the Peaks Coal., 669 F.3d at 1034.
 Id. at 1036 (the Court deferred to the agency in its determination that reclaimed waste water is fit for human consumption if ingested without considering the issue on the merits).
 Chapman, supra note 4, at 785–86.
 For a recent discussion on issues of drought and water scarcity affecting urban growth, see Felicity Barringer, As ‘Yuck Factor’ Subsides, Treated Wastewater Flows From Taps, N.Y. Times, Feb. 9, 2012, at A1 (New York edition).
 Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1110–13 (9th Cir. 2008) (Fletcher, W. dissenting).
 See Joseph L. Sax et al., Legal Control of Water Resources 206 (3rd ed. 2000) (discussing speculations that meeting water demand may facilitate urban sprawl in arid western cities where development is unsustainable).
 For a further discussion on approaches to help municipalities meet long-term sustainability goals, see Holt, supra note 5, at 6–7. See also, Brookshire et. al., supra note 1, at 892–94.
 Brookshire et al., supra note 1, at 875.
 See Kinney et al., supra note 4.
 Brookshire et al., supra note 1, at 892–95. “[T]he current average price of municipal water in the United States may be as low as 22 percent of the real price of water”. Id. at 894.
 Id. at 894.
 Karlene Martorana, The Price of Reclaimed Water - Too Much to Stomach?, 26 SPG Natural Resources & Env’t 37, 39 (2012). Reclaimed water is often sold below the cost of production in order to encourage consumption. Id..
See USGS Factsheet, supra note 7; Mark Strassmann, America’s Dwindling Water Supply, CBS NEWS (Jan. 8, 2010), http://www.cbsnews.com/8301-18563_162-6073416.html.
 See Barringer, supra note 18.
 Brookshire et al., supra note 1, at 874.
 See Sax et al., supra note 20, at 206.