Discussion

Under H&SC Section 116555(a)(3), Defendants have an obligation to provide a reliable and adequate supply of pure, wholesome, healthful, and potable water; and their systems must not be subject to backflow under normal operating conditions. Similarly, GO 103 requires the water they provide to be wholesome, potable, in no way harmful or dangerous to health and, insofar as practicable, free from objectionable odors, taste, color and turbidity. GO 103 goes on to prohibit any physical connection between the distribution system and that of any other water supply except in compliance with DHS' regulations relating to cross-connections, CCR, Title 17.

CCR, Title 17, Sections 7583 through 7605, relate to cross-connections. Section 7584 states that the "water supplier shall protect the public water supply from contamination by implementation of a cross-connection control program," which shall include "conducting of surveys to identify water user premises where cross-connections are likely to occur," and "the provisions of backflow protection by the water user at the user's connection or within the user's premises or both." Section 7585 provides,

The water supplier shall evaluate the degree of potential health hazard to the public water supply which may be created as a result of conditions existing on a user's premises. The water supplier, however, shall not be responsible for abatement of cross-connections which may exist within a user's premises. As a minimum, the evaluation should consider: the existence of cross-connections, the nature of materials handled on the property, the probability of a backflow occurring, the degree of piping system complexity and the potential for piping system modification. Special consideration shall be given to the premises of the following types of water users:

(a) Premises where substances harmful to health are handled under pressure in a manner which could permit their entry into the public water system. This includes chemical or biological process waters and water from public water supplies which have deteriorated in sanitary quality.

(b) Premises having an auxiliary water supply, unless the auxiliary supply is accepted as an additional source by the water supplier and is approved by the health agency.

(c) Premises that have internal cross-connections that are not abated to the satisfaction of the water supplier or the health agency.

(d) Premises where cross-connections are likely to occur and entry is restricted so that cross-connection inspections cannot be made with sufficient frequency or at sufficiently short notice to assure that cross-connections do not exist.

(e) Premises having a repeated history of cross-connections being established or re-established.

Sections 7601 through 7603 describe acceptable backflow preventers and where they may be located.

Section 7604 provides,

The type of protection that shall be provided to prevent backflow into the public water supply shall be commensurate with the degree of hazard that exists on the consumer's premises.... The minimum types of backflow protection required to protect the public water supply, at the water user's connection to premises with various degrees of hazard are given in Table 1. Situations which are not covered in Table 1 shall be evaluated on a case-by-case basis and the appropriate backflow protection shall be determined by the water supplier or health agency.

Table 1, Type of Backflow Protection Required, specifically covers (d), Fire Protection Systems, and gives four examples of different arrangements the water supplier might encounter on evaluating a user's premises.⁵ The arrangements in each of the four examples would require backflow protection, but none of them could qualify as a Class 1 or Class 2 system.

The language of Sections 7585 and 7604 leaves little doubt that water suppliers must consider the specific conditions on each user's premises in deciding whether backflow protection is needed, and if so, what type. And, while there are minimum requirements for both the factors to be considered and the type of backflow prevention appropriate in some situations, it is ultimately the water supplier's and/or health agency's decision which type to require so long as it is commensurate with the degree of hazard on that user's premises.

Defendants' showings do not acknowledge this "must consider" aspect of the cited CCR sections. Instead, they have concluded that they may mandate backflow protection for all premises having fire protection systems regardless of circumstances. To reach that conclusion, they cite the Sacramento County Plumbing Code and the City of Sacramento's cross-connection policy; a State Fire Marshal and DHS joint Information Bulletin on Cross-Connection Control Requirements; an AWWARF research report; and each utility's Tariff Rule 16. Each of these authorities will be addressed in turn.