Your eyes on California Government

NOV. 16, 2011

By DAVE ROBERTS

The hammering fist of government has the nuance and delicacy of someone playing the piano while wearing boxing gloves. California’s $500 million water softening industry has been a punching bag for state politicians for several years, and it’s trying to fight back before it goes down for the count.

The current battleground is the Inland Empire Utilities Agency, a 242-square-mile district in the southwest corner of San Bernardino County, approximately 35 miles east of Los Angeles. It treats sewage and provides recycled water for 850,000 residents in the cities of Chino, Chino Hills, Fontana, Montclair, Ontario and Upland, along with the Cucamonga and Monte Vista water districts.

Salt intrusion has been a problem in the Inland Empire, polluting the recycled water supply. In 2001, the IEUA adopted a Salinity Action Management Plan, spending more than $200 million over the next decade to remove 34,000 tons of salt per year from the region.

In 2008, the IEUA implemented a voluntary rebate program, paying up to $2,000 for the removal of residential automatic water softeners, each of which discharge about 30 pounds of salt per month into the sewer system. The money could help pay for a portable exchange tank softener, which uses salt, but doesn’t discharge into the sewer system, instead requiring the extra expense of periodic pickup and disposal. Nearly 400 homeowners took advantage of the program over the next three years, preventing 70 tons of salt intrusion annually.

In 2009, the IEUA sponsored AB 1366, by Assemblyman Mike Feuer, D-Los Angeles, which enabled areas threatened by salt intrusion (the Central Valley and South and Central coasts) to ban the installation of automatic softeners.

“We have been working to reduce salts and protect our water supplies in the Chino Basin for decades,” said IEUA Board Member Gene Koopman. “Our cities and water agencies have invested hundreds of millions of dollars over the past ten years to protect the quality of our water. If the water becomes too salty, it is tremendously expensive to remove enough salt to make it useable — it would be 10 to 20 times more than the five bucks per bag of water softening salt that a homeowner may be paying today. That’s why we are considering all options for reducing the salty discharge that comes from automatic water softeners.”

Board Hearing

On June 15, 2011 the board held a hearing to authorize a ban on the installation, replacement or enlargement of automatic water softeners in the district. It’s up to the member agencies to adopt ordinances to enact and enforce the ban if they wish. Existing automatic softeners — which are in at least 18,000 homes and discharge more than 3,000 tons of salt each year, accounting for 10 percent of the district’s salinity problem — are allowed to remain in place.

General Manager Thomas Love gave a PowerPoint presentation in which he said that automatic, self-regenerating water softeners are the single most important constraint to the recycled water and groundwater supplies. Failure to rein in the problem could lead to increased dependence on unreliable imported water, costing perhaps $800 million, and the need to construct desalination systems costing more than $435 million.

To drive the point home, a self-regenerating water softener surrounded by nine 40-pound bags of salt was on display, representing the 360 pounds of salt that the unit releases into the sewer system every year.

Seventeen people spoke in favor of the installation ban, most of them officials of water districts. In addition, the IEUA received more than 100 letters of support from residents and more than 25 letters from water agencies, environmental groups and businesses. Most were form letters. The ban was unanimously approved on July 20 after it was noted that no one spoke against the installation ban at the June hearing.

Inside Plumbing Job

Although the Pacific Water Quality Association, which represents the water-conditioning industry in California, had been in contact with IEUA officials, providing input as the planning for the crackdown on automatic softeners proceeded, the association was not given a heads up on the June hearing, failed to check the agenda and didn’t show up.

“It clearly slipped through the cracks for us,” said PWQA President Marty Jessen. The PWQA, many of whose members are small, family-owned businesses, is not one of the powerhouse lobbying groups in the state; for example, there are no staff members listed on its website.

But Jessen is angry that the IEUA failed to give his association a heads up about the hearing.

“We were meeting with the Inland Empire guys and thinking we were understanding each others’ positions,” he said. “Then they passed the ordinance, which urges cities to ban them. Lo and behold, they forget to invite us to it. That’s the part that outrages me. That’s not the way government is supposed to work. It’s supposed to be by, of and for the people, instead of being done inside a phone booth. They met the letter of the law, but not the spirit at all. We are trying to get them to take a deep breath here and talk about it.”

The Water Quality Association, which represents the water-conditioning industry nationwide, sought to put some muscle into its effort to get a re-hearing by the IEUA and a temporary halt to the installation ban, hiring the Jones Day law firm to send a letter. It refuted IEUA officials’ assertion that the ban had received unanimous support.

“A ban on the installation of self-regenerating water softeners was, and is, neither unopposed nor non-controversial,” the letter written by Marc Callahan argues. “The WQA opposes such a ban, and members of the group expressed considerable opposition about such a proposed ban during a summer 2010 meeting with the IEUA. In addition, over 500 Inland Empire residents voiced opposition to the underlying state legislation, and could reasonably be expected to have opposed the ban here. We note this is more than three times greater than the approximately 150 letters and cards of support the IEUA received in support of the ban.”

Measure S

Callahan cited a similar but tougher measure from 2008 for the the Santa Clarita Valley Sanitation District, Measure S. It was not just a ban on the installation, but the removal of existing automatic water softeners that was opposed by 31,192 voters. (The letter did not note that Measure S passed with 55,502 votes, or 64 percent.)

On the lack of notification to the association about the hearing, Callahan notes that “in the summer of 2010, members of the WQA and PWQA discussed the benefits of self-regenerating water softeners with IEUA staff, and voiced opposition to any ban on such equipment. The IEUA promised to involve the WQA and the PWQA in discussion on salinity and water softeners in the Inland Empire. Rather than include the WQA in the most meaningful discussion — the public hearing on the proposed ban — members of the WQA were neither informed of the hearing nor invited to testify at it.”

But IEUA officials did notify supporters of the installation ban about the hearing, according to Callahan.

“The WQA strongly believes that it, and other opponents of the ban, should have been treated in the same manner as proponents of the ban,” his letter states. “The process was undemocratic and violates the spirit of open hearing laws. It is particularly inappropriate since … Ordinance No. 87 authorizes the issuance of search warrants, fines and incarceration of Inland Empire residents who install or replace their self-regenerating water softeners.

“Had opposing viewpoints been solicited, the Board would have heard testimony calling into question the efficacy of a ban and that similar bans, such as in the Santa Clarita Valley Sanitation District, have not achieved the results its proponents promised. Further, by banning the installation and replacement of self regenerating water softeners, the Ordinance prevents residents from replacing older water softeners with more modern devices that discharge far less salt.

“The Ordinance authorizes the IEUA to enter the homes of Inland Empire residents to check for water softeners and even allows the IEUA to seek a warrant from a court if a resident refuses to allow an inspection. These provisions are even more troubling considering that the Ordinance bans the installation of self-regenerating water softeners, not their use, and raises the prospect that the residents will have to supply inspectors with documentation that the equipment was installed before the ban took effect, or risk searches of their homes, fines and imprisonment.”

IEUA General Manager Thomas Love was not feeling WQA’s pain or sharing the love in his response letter, saying that the public hearing was properly noticed as was the follow-up regular meeting when the ban authorization was adopted. “As a result, no additional public hearing is needed,” Love wrote.

He noted that existing automatic softeners aren’t affected, mentioned the rebate and reminded that the WQA and the PWQA have been involved in the planning for the ordinance, including a half-day briefing in July 2010 and with a representative on the Regional Water Softener Task Force.

Draconian Punishment 

Love addressed the concerns about punishment: “While, from a legal standpoint, Ordinance No. 87 does authorize the issue of search warrants and fines, it is not the intent, nor the practice of the IEUA to go to this extreme for minor infractions of the Ordinance. You are very much aware that the sections of the Ordinance you reference are in place to be used as a last resort when it is necessary to protect public health, the safety and welfare of the community and environment.”

Callahan, on behalf of the WQA, pressed its case with a follow-up letter, noting that Love did not respond to the charge of IEUA stacking the deck at the hearing in favor of supporters of the installation ban: “In enacting AB 1366, the Legislature directed local water and wastewater agencies to ‘engage in a collaborative process that is open to all stakeholders to prepare salt management plans.’”

Callahan also argued that if the IEUA doesn’t intend to issue search warrants and impose fines, then it should rescind that authority from the ordinance. “Indeed, your assurance that public authorities will seek search warrants and fines only ‘as a last resort’ rings hollow, given the threats of home inspections and fines recently mailed out by the Santa Clarita Valley Sanitation District to over 2,500 of its residents,” he wrote.

Love declined to respond to those arguments and merely offered the WQA the opportunity to address the board during the “public comments” portion of meetings.

The one thing that both sides can agree on, however, is that the writing is on the wall for automatic water softeners, and new solutions must be found.

“Frankly there’s a significant number in the industry today who believe we have got to find something better than the old way of doing this,” said Jessen. “It’s kind like catalytic converters in cars. Remember the bitching and moaning about that — we were killing people with bad air. But now cars get better gas mileage and don’t pollute. That’s what we have to do in the industry. We are working hard to get that down.”

Higher Efficiency

The efficiency of softeners has improved dramatically over the years. Units with sensors can determine the hardness of the water and reduce the frequency of regeneration if the water doesn’t require it — for example, when softer Delta water is blended into the harder Colorado River water. This can potentially cut in half the amount of salt discharged into the sewer system. An electro-chemical softener that uses no salt at all is now under development.

“The amount of money being spent in the industry to improve what we do is dramatic, and has increased exponentially in the last three years,” said Jessen.

“It’s clear we have to do something about this problem.”

As noted in the WGA letter, banning the installation or upgrade of softeners ensures that the older, less efficient, saltier units remain in place — the exact opposite of what the IEUA wants. In addition, if the Santa Clarita and the IEUA bans spread to other areas, it will reduce the incentive for the industry to develop newer technologies that are not allowed to be installed.

“The industry has responded, and then we get this kind of treatment — not very good,” said Jessen. “We would like all of those water agencies to slow down for a little bit and give the industry a year or two to finish the development of these new products. And I think these bans would be unnecessary. There does need to be regulations in the future to limit the amount of salt used, but they should set standards. 

“We have to get the policy makers to understand the technology before they do rash things. It will cost the home owners $1,000 (extra for the newer, more efficient units). Instead of paying $2,800, you will pay $3,700. But over the long haul you will buy a lot less salt and use less water regeneration. We think we are going fast and working hard on this, but don’t seem to be getting much credit at the moment.”

While hard water is not unique to California, the state has adopted the toughest measures against automatic softeners, according to David Loveday, WQA Director of Government Affairs and Communications.

California Attacks

Other states “haven’t attacked our industry like California,” he said. “Most everywhere else they are willing to sit down and talk and work with us. We are an easy target. We are the low-hanging fruit. Most of these people are small business people, the majority of them. The economy is putting a strain on them or possibly causing them to go out of business or lay some people off.”

Illustrating how intransigent California politicians can be, Gene Erbin, who represented Culligan in the unsuccessful fight against AB 1366, said he asked its author, Feuer, if he would be willing to provide an exemption for a softener now under development that reduces salinity by as much as 85-90 percent. “He said no,” said Erbin.

So, politicians and agency officials in order to reduce salinity are forbidding homeowners from upgrading to a more efficient unit that would reduce salinity. Another knockout blow from the clumsy fist of government.

This is the second in a series by Dave Roberts on water-softening regulations. The first was “Hard Battle Over Water Softeners.”

Tags: AB 1366, Dave Roberts, Inland Empire Utilities Agency, Mike Feuer, Pacific Water Quality Association, water, Water Quality Association, water softening