Every year, nearly 40% of California’s water used for drinking, agriculture, and irrigation comes from groundwater sources located in Northern California. During droughts, as much as 60% of water in California is sourced from groundwater. In addition, large quantities of California’s surface water (water found in lakes, rivers, stream, and reservoirs) provides a resource to citizens and farms in the state. However, since the 1922 Colorado River Compact, California is also able to draw up to 4.4 million acre feet per year from the Colorado River. For perspective, 1 acre foot of water is equivalent to 325,851 gallons of water. Much of the water drawn from the Colorado River by California goes to service the 19 million citizens of six counties in Southern California. For decades, California has drawn more than 4 million acre feet every year from the Colorado River.
In Colorado, attention is increasing regarding the presence of PFAS in the Colorado River. Hundreds of streams and waterways feed into the river from all over the state. In Colorado, there are six military bases, five of them Air Force bases. At many of the bases, PFAS-containing aqueous film forming foam (AFFF) were used for decades to suppress fires and to conduct drills simulating putting out fires on the base or aircraft. Over time, the PFAS leached through the ground and into local waterways, which eventually found their way to the Colorado River. One target of the PFAS concerns in Colorado was Peterson Air Force Base, for which the federal government paid nearly $50 million in cleanup efforts in the neighboring area. However, none of the cleanup involved downstream waterways or the Colorado River.
As California continues to draw enormous amount of water from the Colorado River, water utilities in California must begin to consider the implications that media-driven fear over PFAS will have on their liability if they continue to utilize water from the Colorado River as a reserve resource. The liability risks for utilities will not stem from the simple fact that they are drawing PFAS-containing water into the state. Rather, the liability issues will arise from the ways that the Colorado River reserves are used in the California – from drinking water (ingestion of PFAS) to irrigation (land pollution) and agriculture (land pollution and food contamination).
Increasing publicity regarding PFAS found in the Colorado River, combined with the California Water Board’s recent establishment of a PFAS mapping project, will provide a wealth of information (most of it publicly available) for attorneys representing plaintiffs or potential plaintiffs. Data regarding the use of Colorado River water resources along with the Water Board’s mapping system data can also be used by Cal/EPA as a resource to target enforcement actions against utility companies that Cal/EPA believes may be contributing to PFAS contamination of waterways or land. All of this will result in an increase in PFAS litigation in the state of California, as well as likely further regulatory action with respect to PFAS focused on holding certain parties responsible for the testing, treatment and remediation of PFAS.