By Evan Isaacson, Center for Progressive Reform
This week provided another important legal decision in the fight to regulate polluted runoff from agriculture. A California lower court on Tuesday ordered the State Water Quality Control Board to reconsider its ineffective regulations on agricultural operations in the Central Coast region. Judge Timothy Frawley of the Sacramento Superior Court ruled in favor of the Monterey Coastkeeper, the Otter Project, and other environmental and commercial and recreational groups, as well as a resident who could no longer drink her tap water because it was so polluted from runoff. This decision represents another farm bureau loss and another crack in the wall that has long protected agricultural interests from having to comply with clean water rules.
Like most other states and regions, agricultural operators in central California have long been allowed to pollute surface and ground waters, enjoying special status granted to agricultural operations and other contributors of nonpoint source pollution. In 2004, the Central Coast Water Quality Control Board took baby steps toward solving the problem with the creation of a conditional waiver that agricultural operations could sign on to. Much like a general permit, the conditional waiver at least recognized the problem and established a framework for regulation.
After the first conditional waiver expired in 2009, staff for the board found that nearly all beneficial uses of waters in the region were affected by agricultural pollution, that the problem was “well documented, severe, and widespread,” and that there was “no direct evidence” of improvement in water quality under the conditional waiver. As the name suggests, the conditional waiver essentially allowed business as usual during its five-year term.
When the regional board adopted a new conditional waiver in 2012, both environmental and recreational interests appealed to the State Water Quality Control Board. Unfortunately, the state board only weakened the conditions of an already deficient waiver. As revised, the waiver required operators only to implement unspecified best management practices, which, if found to be ineffective could result in the imposition of further, but still unspecified, “improved” practices. Because the order failed to require agricultural operators to comply with state water quality standards, let alone specify which practices an operator must implement, the plaintiffs sued in state court.
With the help of the Stanford Environmental Law Clinic, the environmental and recreational groups successfully argued that the modified conditional waiver failed to comply with numerous provisions of California water laws and regulations, which are broader in many ways than the federal Clean Water Act (which was shaped by California’s Porter-Cologne Act).
The central question in the case was whether the conditional waiver, modified by the State board, complied with state law, demonstrated by consistency with the Central Coast Basin Plan. Similar to the Clean Water Act, the Porter-Cologne Act requires each regional water board to establish a Basin Plan that identifies beneficial uses and water quality objectives for each waterway. To restore impaired waters to their beneficial use, regional water boards impose implementation plans for polluters. Here again, is the familiar issue facing the Chesapeake Bay watershed and many other watersheds nationwide: While point source dischargers have discrete conveyances that can be treated with established technologies to achieve clear standards, nonpoint source dischargers, like agricultural operations, present a much greater challenge for regulators. In California, as elsewhere, regulators have largely failed to step up to the challenge. But Judge Frawley found this failure unacceptable.
Using terse and, at times, scathing language, his opinion dismantled the excuse that addressing nonpoint source pollution requires a long-term approach and iterative implementation of best management practices. In language very similar to that of a recent Maryland Court of Special Appeals opinion regarding Maryland’s stormwater permit, the court agreed with the petitioners that the modified conditional waiver “lacks specific, enforceable standards against which to measure existing management practices; lacks meaningful deadlines/timeframes; lacks adequate feedback mechanisms to determine if management practices are effective.”
Although the court agreed with the state and regional boards and their staff that immediate compliance with water quality standards is not possible (without the complete cessation of agricultural activity), it was not willing to allow the state to continue to regulate under a framework where pollution reductions only happen on paper. The court found that the current waiver merely continues the approach adopted by the 2004 version of the waiver, which was successful only in getting “growers to join cooperative monitoring groups, prepare Farm Plans, and provide reports,” but which “failed to improve water quality or even halt the continued degradation of the region’s water resources.”
The California Farm Bureau and its allies defended the waiver as requiring improved practices if existing ones failed to work. But Judge Frawley dismissed this as “highly unlikely to work because the receiving water monitoring data, submitted in most cases by a cooperative monitoring group, does not identify the individual discharges that are ‘causing or contributing’ to the exceedance.” Instead, the judge demanded there be a way to verify that management practices effectively control discharges.
In sum, while the court acknowledged that “implementation of management practices may be an acceptable means to achieve water quality standards” for nonpoint sources, these practices are “not a substitute for actual compliance with quality standards. Management practices are merely a means to achieve water quality standards… The Modified Waiver recognizes this, but fails to do anything about it.”
No word yet on whether the farm bureau or its allies will appeal. Due to the potentially significant impact of the case, however, an appeal seems likely.