Clean Farms – Clean Water Campaign

Pollution is not free, someone always pays: if not the polluter, then the victims in their health, pocketbook or degraded environment.

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For over a decade and a half, CSPA has been in the forefront of efforts to bring pollutant discharges from irrigated agriculture under the regulatory umbrella. Many other fishing and environmental organizations have joined the campaign from time to time but only CSPA has stayed the course from the beginning to the present. Significant progress has been achieved (It is the first program regulating agricultural discharges in the nation) but much, much more remains to be accomplished before our waterways become safe for aquatic life.

Agricultural Pollution

Runoff from millions of acres of irrigated agriculture is identified as the largest source of pollution to Central Valley waterways and the Delta. Pollution is identified as one of the principle causes of the collapse of Central Valley fisheries by state and federal agencies. Agricultural activities are also the major source of groundwater pollution.

Water quality monitoring reveals that virtually all surface water sites downstream of agricultural areas exceed water quality standards: 63% are toxic to aquatic life, 54% exceed pesticide standards (often for multiple pesticides), 66% violate metals criterion, 87% exceed pathogen standards and more than 80% exceed standards for general parameters (dissolved oxygen, pH, total suspended solids, salts, etc.). State Water Board studies reveal that 40% of the groundwater assessed in California is polluted. The Department of Water Resources has stated that three-fourths of impaired groundwater in California is contaminated by salts, pesticides and nitrates, primarily from agricultural practices.

Agriculture is identified in the 2010 Integrated Report Clean Water Act Section 303(d) List/305(b) List as the source of pollution to 269 pollutant/water body segments covering 1,572 waterway miles and 96,147 acres of open water in the Central Valley. Agriculture is also the likely source of pollution to 257 additional waterways segments that are located in agricultural areas and polluted by constituents closely linked to farm runoff. Agricultural pollution causes 57% of impairments where sources are identified and, subtracting resource extraction (primarily mercury from historical mining activities that is difficult, if not impossible to control), agriculture is responsible for 80% of impairments from identified sources that can be reasonably controlled.

Agricultural Exemption

As a result of intense lobbying by farming interests, discharges of wastes from irrigated agriculture was exempted from permitting requirements of the federal Clean Water Act. However, agriculture is not exempt from regulation under California’s Porter-Cologne Water Quality Control Act (Porter-Cologne).

Porter-Cologne requires that anyone discharging or proposing to discharge wastes to surface or ground waters must submit a Report of Waste Discharge (ROWD) identifying the location, volume and constituents discharged. Based upon the ROWD, the applicable Regional Water Quality Control Board (Regional Board) will issue a Waste Discharge Requirements (WDRs) specifying the specific pollution control measures necessary to ensure that waters are protected. WDRs must implement relevant water quality control plans.

However, Porter-Cologne also provides for waivers of WDRs for specific types of discharge, if the Regional Board finds a waiver is in the public interest. Submission of a ROWD is not required under waivers.

Again, as a result of intense lobbying, the Central Valley Regional Board issued a waiver for discharges from irrigated lands in March 1982. Consequently, farmers did not have to identify where and what they were discharging, the impacts of their discharges to waters of the state or what they were doing to control pollution.

Between 1982 and 2003, irrigated agriculture was exempt from water quality regulations routinely applicable to virtually every other segment of society: from municipal wastewater control to industrial activities to construction projects to mom-&-pop businesses.

Initial Efforts to Develop a Regulatory Program

Beginning in the mid 1980s through the early 1990s, studies by the United States Geological Survey and the Regional Board documented the extensive toxicity in Central Valley streams from an astonishing array of salts, metals and agricultural pesticides.

In 1998, CSPA Chairman Bill Jennings, who was also the Deltakeeper, worked with San Francisco Baykeeper Mike Lozeau in drafting proposed amendments to Porter-Cologne that would eliminate “waivers,” as an alternative to issuing WDRs. As passed by the legislature in 1999, the bill (Alpert, SB 390) rescinded existing waivers (as of 1 January 2003) and provided that any new “waiver” of WDRs must meet certain conditions and be renewed every five years.

In November 2000, Earthjustice, representing Bill Jennings, San Francisco Baykeeper and California Public Interest Research Group, submitted a petition to the Regional Board requesting it rescind the 1982 waiver and order monitoring of agricultural discharges. A companion request to revoke the agricultural discharge exemptions was submitted concurrently and signed by seventy environmental and fishing organizations, including CSPA. The Regional Board rejected the petition and a lawsuit was subsequently filed. The lawsuit was dismissed following the sunset of the 1982 waiver on 1 January 2003.

The 2003 Waiver

Recognizing that the existing waivers would soon sunset, the Regional Board released a proposed new conditional waiver and notice of intent to adopt a negative declaration, pursuant to the California Environmental Quality Act (CEQA), in October 2002. CSPA joined more than a hundred organizations and thousands of individuals in submitting comments urging that the waiver not be issued. In December 2002, the Regional Board issued an interim conditional waiver that failed to comply with fundamental requirements of CEQA and Porter-Cologne.

Numerous workshops and hearing were conducted over the next six months. CSPA submitted extensive technical comments and provided testimony as the Regional Board developed a new program to regulate polluted farm runoff from some six million acres of irrigated land in the Central Valley. Unfortunately, intense political pressure by the agricultural industry led the Regional Board to propose a waiver that ceded implementation of the program to ineffective industry “coalitions” who were required to enroll farms, educate farmers and conduct limited downstream monitoring.

Under the waiver, individual farmers were exempted from requirements to identify themselves, monitor discharges or disclose what efforts they were taking to reduce pollution. Consequently, the Regional Board could not know who was actually discharging, what pollutants were being discharged, the localized impacts to surface waters, whether management measures had been implemented to reduce pollution or if implemented measures were effective. Technically, management measures must be equivalent to best practicable treatment and control.

The new conditional waiver was adopted in July 2003. CSPA, Deltakeeper, NRDC and Environment California appealed the modified waiver to the State Water Resources Control Board (State Board) and subsequently filed suit in Sacramento Superior Court for violations of CEQA and Porter-Cologne.

The 2006 Waiver

As the 2003 waiver was set to expire in June 2006, the Regional Board began a proceeding to develop a renewed waiver in 2005. CSPA and its expert consultants submitted extensive evidence and testimony throughout the process. Following extended hearings, the Regional Board adopted a renewed irrigated lands waiver on 22 June 2006.

The revised waiver, while a small improvement, still relied on industry coalitions to serve as shields that prevented the Regional Board from knowing who was actually discharging pollutants, discharge locations, what pollutants were being discharged and whether management measures were being implemented or were effective. CSPA, joined by Deltakeeper and San Joaquin Audubon, appealed the renewed waiver to the State Board in August 2006.

State Board Division of Water Quality staff assigned to review the CSPA appeal prepared five successive staff reports urging that the waiver be remanded back to the Regional Board for correction because the:

  1. “Discharges from irrigated lands have violated water quality objectives;”
  2. Agricultural coalitions had “failed to comply with the conditions of the waiver;”
  3. Central Valley Board had “failed to enforce the fundamental waiver conditions;”
  4. Monitoring and reporting plan is “deficient;”
  5. “Waiver conditions do not ensure pollution reductions by individual farms;”
  6. “Size of the coalitions is unmanageable and should be limited to specific subwatersheds;”
  7. “Waiver should address groundwater pollution;”
  8. “Waiver was not consistent with the state’s Non-point Source Policy;” and
  9. “Waiver was not consistent with the state’s Antidegradation Policy.”
  10. Staff recommended that the waiver be remanded with instructions to revise the waiver in accordance with the law.

However, staff was informed that State Board Members did not want the waiver remanded and subsequently dismissed CSPA’s appeal by claiming that the appeal failed to raise any substantial issues. On 15 June 2007, CSPA again filed a lawsuit for violations of CEQA and Porter-Cologne.

CSPA settled the lawsuit on 22 January 2010, with the Regional Board agreeing to prepare and circulate a draft Environmental Impact Report (EIR) addressing impacts associated with implementation of a long-term irrigated lands regulatory program. The stipulated judgment specified that the EIR would be presented to the Regional Board for action by 31 March 2011.

An EIR and Long-term Framework

A draft Programmatic EIR (PEIR) for the long-term irrigated lands program was released for public review on 28 July 2010 and a number of workshops were held in September. CSPA and the California Water Impact Network (CWIN) submitted extensive comments on the PEIR identifying numerous deficiencies in the analysis of alternatives, significant impacts and cumulative impacts. These comments were prepared with the assistance of expert economists and expert soil and water quality consultants and identified widespread surface water pollution and toxicity from pollution and pesticide discharges from irrigated lands.

Regional Board staff also released a Recommended Irrigated Lands Regulatory Program Framework Staff Report. That report proposed a long-term approach of developing 10 to 12 geographic/commodity specific general waste discharge requirements (WDRs) and/or conditional waivers to regulate discharge of wastes to both surface and ground waters. Other than the addition of groundwater, the staff report essentially recommended repackaging the existing inadequate waiver conditions into WDRs to avoid having to renew the program every five years.

CSPA and CWIN submitted comments on the proposed Framework, which proposed to weaken existing regulation of dischargers. The comments identified minimum changes necessary for the program to comply with the state’s Antidegradation Policy, Nonpoint Source Policy and the Regional Board’s mandate to implement programs that comply with applicable water quality objectives.

The Regional Board conducted a hearing to consider the proposed framework, certification of the final PEIR and a 12-month extension of the existing waiver on 9/ 10 June 2011. During the hearing, CSPA/CWIN and its consultants testified at considerable length regarding the factual errors and legal inadequacies of the PEIR, the Framework and short-term extension. Nevertheless, the Regional Board voted to approve the Framework and short-term extension and certified the PEIR.

On 8 July 2011, CSPA and CWIN appealed the actions to the State Water Board. The State Water Board dismissed the appeal on 26 April 2012.

CSPA and CWIN filed a lawsuit against the Regional Board for violations of CEQA and Porter-Cologne (Antidegradation and Nonpoint Source Policy) on 25 May 2012 in Sacramento Superior Court. Several of the agricultural coalitions also filed a lawsuit alleging violations of CEQA. On 21 May 2012, Judge Timothy M. Frawley upheld the PEIR but found that the Regional Board had violated the state’s Antidegradation and Nonpoint Source Policy. The Court issued a peremptory writ of mandamus directing the Regional Board to take all actions necessary to bring the irrigated lands regulatory program into compliance the Antidegradation and Nonpoint Source policies by 14 January 2015. The Court maintained continuing jurisdiction.

General Waste Discharge Requirements

Since the 2011 adoption of the long-term framework, the Regional Board has move ahead with a proposed series of specific general WDRs to replace the agricultural waivers. These WDRs simply transpose existing waiver requirements into WDRs, which don’t have to be renewed every five years. Growers will now have to prepare simple management plans but aren’t required to submit them to the Regional Board. Virtually everything else remains the same. The program will continue to be directed by industry coalitions that shield individual dischargers. The WDRs will do little to protect water quality.

The draft of first of the specific WDRs, applicable to irrigated lands within the eastern San Joaquin River watershed, was released in May 2012 and revised in July and November. CSPA submitted comments and testified that simply placing inadequate waiver conditions under cover of WDRs does nothing to protect water quality and that the proposed new groundwater requirement were seriously deficient. The Regional Board adopted the eastside WDRs on 7 December 2012 and CSPA appealed the order on 7 January 2013. Following Judge Frawley’s order, revised eastside WDRs were circulated for comment by 12 September 2013 but failed to include any changes that would comply with the court’s order, with respect to compliance with Antidegradation and Nonpoint Source Policy provisions. A hearing is scheduled for 3/4 October 2013.

The second WDRs, pertaining to individual growers who declined to join an irrigated lands coalition, was released in November 2012 and revised and circulated for public comment in March. This WDR was intended to steer individual farmers into joining coalition, as it included those elements that CSPA had long maintained were necessary to protect water quality. For example, it required dischargers to: 1) develop and implement a farm water quality plan, including a certified nitrogen management plan; 2) monitor discharges of tailwater and stormwater to surface water; 3) monitor existing groundwater wells and implement a management practices evaluation workplan; 4) provide information on nutrients and pesticides use; 5) develop and implement plans to address water quality problems and 6) submit an annual monitoring report to the Board.

CSPA did not object to the individual grower WDRs, which were adopted 26 July 2013, because we believed they represented a significant step forward in the control of agricultural pollution. Unfortunately, it is doubtful that many growers will elect to come under these WDRs, as it will be easier, less expensive and far less risky to hide behind the shield of an existing coalition.

The other tentatively scheduled WDRs are Rice Growers within the Sacramento Valley (administrative draft comments due 13 September, workshop scheduled 3/4 October for hearing 11/12 March 2014), San Joaquin Delta (administrative draft comments due 13 September, workshop scheduled 3 October in Stockton), Westside San Joaquin River (administrative draft released 14 June, workshop held on 30 July, tentative scheduled for circulation in Sept/Oct for January 2014 hearing in Los Banos), Sacramento Valley (administrative draft not yet released, workshop scheduled for 13 October 2013 in Colusa), Westlands (administrative draft not yet released), and Tulare Lake WDRs (draft WDRs circulated in June, workshop held in July, tentative scheduled to be circulated in Sept/Oct).

The existing irrigated lands waiver expired on 10 June 2013 but the Regional Board claims that it has been extended beyond its original expiration date by Judge Frawley’s order. That is a point that remains to be decided.

CSPA’s Better Alternative

CSPA will continue to fight for a meaningful irrigated lands program that will effectively control the prodigious quantities of toxic wastes discharged by irrigated agricultural. CSPA and its consultants believe that it is impossible to:

  1. Implement an effective, protective or legally adequate regulatory program where the Regional Board does not know who is discharging what and where, the local impacts to surface water or if any management measures have been implement or if they’re effective.
  2. Protect water quality through a surface water monitoring program predicated upon a very few ambient monitoring sites far removed from actual points of discharge that collect water draining hundreds of thousands of acres of farmland, especially for pollutants that are toxic in low parts-per-billion and that frequently occur as intermittent “pulse” flows.

From the beginning, CSPA has maintained that an effective irrigated lands regulatory program must include:

  1. Elimination of third party coalitions and inclusion of requirements that individual dischargers submit reports to the Regional Board identifying the location and content of discharges to both surface water and groundwater,
  2. Preparation of individual farm water quality management plans that identify measures implemented to reduce pollution. These plans must be made available to the Regional Board and the public,
  3. Monitoring of discharges to surface water and groundwater and the effectiveness of measures implemented to reduce pollution,
  4. Compliance with water quality standards in the near-term; not some uncertain distant future,
  5. Consistency with the state’s non-point source and antidegradation policies.





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