Homeless Encampments and Water Quality

• Publication year: 2020
• Author: Shawn D. Hagerty and Rebecca Andrews

Homeless Encampments and Water Quality

Shawn D. Hagerty and Rebecca Andrews

Shawn D. Hagerty works with clients to solve complex water quality challenges. His work includes permitting, compliance, enforcement, and litigation. Shawn is a partner in the San Diego office of Best Best & Krieger LLP.*

Rebecca Andrews represents public agencies in water quality matters, including permitting, regulatory compliance, administrative and civil enforcement, and litigation. She is a partner at Best Best & Krieger LLP. She is a member of the California and Texas bars.*

I. INTRODUCTION

More than 150,000 of California's residents sleep in shelters, cars, or on the street.¹ In 2018, California's rate of homelessness was 33 people per 10,000 residents, the second highest in the nation.² More importantly, 69% of California's homeless are unsheltered, living in encampments, often adjacent to waterbodies or within flood control facilities. These encampments generate trash, drug paraphernalia, and human waste.³ Homelessness is a complex social issue involving the lack of affordable housing, unemployment, mental health, drug dependency, lack of emergency shelters, and lack of social services.⁴ These challenges have only increased during the COVID-19 pandemic.

Another complex social issue is the quality of California's waters. Modern society allows each of us to legally generate significant amounts of pollutants that leave our homes and vehicles and ultimately end up in our lakes, rivers, streams, and at our beaches. Many of these pollutants enter our flood control systems, which were designed to protect life and property by carrying water away from the built environment, but which were not designed as treatment systems for society's waste. The pollutants we all create in our daily lives are released into our waters, causing water quality degradation.

So what happens when these two complex problems collide? Water quality impacts of homelessness are becoming an increasing area of political⁵ and regulatory focus, and water quality laws and regulations are being employed to try to tackle the homelessness problem. This article addresses the intersection of these two complex problems. It first identifies what we know, and do not know, about how these problems are linked. It then describes how water quality and public property laws apply to the homelessness challenge, and the limits on the application of those laws. It then suggests practical steps that lawyers should consider when confronted with these issues. As with most complex social problems, a collaborative approach to the homelessness problem is required. While water quality and public property laws can and should play an important role in the solution, the water quality community cannot alone solve the problem, and should not be asked to do so.

II. RELATIONSHIP BETWEEN HOMELESSNESS AND WATER QUALITY

People experiencing homelessness are often pushed to the fringes of society and end up living in encampments along California's waterbodies or flood control systems, or concentrated along urban streets or public parks. These areas often lack places to wash and go to the bathroom. Encampments typically do not have direct access to public services such as trash removal or a sanitary sewer system. For these reasons, homeless encampments tend to generate unmanaged trash, human waste, and other sources of pollution. Conditions in these encampments raise significant health and safety issues, both for the persons living in the encampments and for the broader public.⁶ Encampments located along waterbodies or in or adjacent to our storm water systems are perceived to be significant sources of water quality pollutants, especially bacteria and trash.⁷

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This causal linkage is often assumed, without significant data to back up the assumed linkage.⁸ At this time, the extent of any actual statistically significant causal linkage between homelessness and significant water quality impacts is actually unclear. Some studies have found a linkage between water quality pollution and homeless encampments. For example, a 2014 report entitled, "Pathogens in Urban Stormwater Systems," published by the American Society of Civil Engineers concluded that human waste from homeless populations was a recognized source of bacteria in waterbodies.⁹ The American Society of Civil Engineers' report relied in part for this conclusion on an earlier 2012 study by the City of Santa Barbara entitled, "Tools for Tracking Human Fecal Pollution in Urban Storm Drains, Streams, and Beaches." Although these reports identified homeless encampments as a pollutant source, they did not definitively make the linkage between encampments and significant water quality impacts.

Many more recent studies are currently underway to better understand and document the magnitude of the water quality impact caused by persons experiencing homelessness.¹⁰ For example, such studies are underway in San Diego County focusing on the San Diego River, near Sacramento County along the American River, and in Orange County along the Santa Ana River. Some initial results of these studies show no clear causal link between elevated levels of bacteria and homeless camps.¹¹ For example, a recent report prepared by researchers from San Diego State University entitled, "Increasing Preparedness in San Diego River Watershed for Potential Contamination Events," generally concluded that there was no strong evidence that homeless encampments were a major contributor to bacteria impacts to the San Diego River, at least during dry weather conditions.¹²

Based on these studies, it is likely that the current regulatory focus on, and our assumptions about, the water quality impacts from homeless encampments may not be firmly supported by data. Unquestionably, homeless encampments contribute to some level of water quality impacts, but these impacts may not be as significant as other sources that are more easily regulated under existing water quality laws. Additional data from other pending studies will help complete the picture, but it appears that trying to regulate homelessness from purely a water quality...