August 2, 2015

“Anti-Degradation Policy” Reviewed by State Water Regulators

California’s long-standing “anti-degradation policy” governing water discharges is being expanded beyond its historical application to individual facilities making discharges to surface water.  Recently, the state has moved to apply this policy to water quality programs that regulate discharges to groundwater from agricultural activities (e.g., irrigated agriculture and dairies).  Some environmental and other interest groups are seeking to use this policy to legally halt or impede general agricultural permitting programs that are designed to facilitate the implementation of best management practices and monitoring on a watershed or representative scale.  This spells trouble unless the State Water Resources Control Board applies reason and pragmatism to its policy of enforcement of the anti-degradation policy.

It is an important policy which requires that the quality of existing high-quality water be maintained unless the state finds that any change will A) be consistent with the maximum benefit to the people of the state, B) will not unreasonably affect present and anticipated beneficial use of such water, and C) will not result in water quality less than that prescribed in policies as of the date on which such policies became effective.  It also requires best practicable treatment or control of discharges to ensure that pollution or nuisance will not occur.

The Regional Water Boards have had technical difficulties with applying the anti-degradation policy to groundwater because they have been using guidance originally developed to regulate discharges to surface water.  Assessing the ability of groundwater to assimilate discharges without unreasonable effects on beneficial uses using this historic framework presents problems because of the minimal and delayed mixing of groundwater, the travel of contaminants in groundwater plumes, the time frames involved in transport of contaminants, and the lack of appropriate baseline data in many locations.  The historic framework also creates a regulatory distinction between high quality and non-high quality groundwater regulation that often makes little practical or technical sense.

Many environmental organizations have long opposed the state’s policy of regulating farm water discharges by allowing farmers to act in coalitions for purposes of collecting and reporting data on pollution levels and actions to reduce them.  These critics believe that every farm should be treated by the state like a brick-and-mortar manufacturing plant: Each farmer should be required to obtain a waste discharge permit that requires him to report reams of monitoring data for water discharges and implement farm-site specific procedures, approved by regulators, to manage discharges.  These environmental groups have now turned to the anti-degradation policy to achieve what they have failed to achieve before:  The demise of the existing coalition-based Irrigated Lands Programs.

Since this policy has been woven into agricultural Waste Discharge Requirement Permits (WDRs) and Irrigated Lands Conditional Waivers, Western Growers staff along with other agricultural representatives met with each member of the SWRCB about the possibility of updating or augmenting existing guidance contained in the anti-degradation policy as it relates to groundwater.  Because this is a policy and not a statutory provision, the SWRCB has discretion to revise it, adopt a new policy, and/or adopt guidance with respect to its application to agricultural activities.  As a result of our meetings, board members agreed that a review of the policy was necessary and directed staff to begin working on a draft document that includes stakeholder involvement.

On June 9, the SWRCB published on their website the “Scope of Policy for Protecting and Improving Groundwater Quality in California” and is holding listening sessions with stakeholders to garner input on changes that may be needed.  The Draft Scoping Document sets forth a broad framework with respect to a potential new Groundwater Policy.  This new policy would replace the existing application of the anti-degradation policy and would apply to both high quality and non-high quality waters.  This approach would be helpful as long as the new groundwater policy establishes reasonable and achievable requirements.  If the requirements for allowing discharges are too difficult to achieve, or are not economically feasible, then the groundwater policy will fail to achieve its intended result.

Western Growers staff will continue to participate in this process in an effort to make sure the policy is flexible enough to be implemented reasonably and economically.  Documents and anticipated project timelines are posted on the Policy for Protecting and Improving Groundwater Quality website: (