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May 1, 2015

Nitrate Related Water Quality Regulations Continue to Be in Limbo

By Theresa Dunham of Somach Simmons & Dunn

Over the last dozen years or so, the state’s regional water quality control boards have ramped up regulations on irrigated agriculture and their discharges to surface and ground waters.

Initially, growers were mainly tasked with implementing on-farm management practices for the protection of water quality and paying into cooperative programs for monitoring on-farm related pollutants such as pesticides in surface waters.  Beginning in 2012, however, key regional water quality control programs in the Central Coast and the Central Valley regions changed dramatically, substantially increasing monitoring and reporting requirements on growers within those regions.  A common theme in the new programs includes heightened awareness of groundwater quality, and more importantly, agriculture’s contribution of nitrates to groundwater.  This focus on groundwater and nitrates has raised key legal and technical questions that the State Water Resources Control Board, regional water quality control boards and the courts are currently looking to answer.

Chief among the questions raised is how the State Water Board and the regional water boards intend to regulate nitrogen (i.e., nitrate) discharges from irrigated agriculture to groundwater.  The water boards’ position is that they are mandated by current law and policies to regulate discharges from irrigated agriculture to groundwater in a manner that requires water leaching below the root zone to not exceed 10 mg/L of nitrate (as N), which is equivalent to the state’s drinking water standard for nitrate.

While this may be the legal standard, the water boards collectively are realistic and aware of the fact that the use of nitrogen is a key and necessary input in our farming systems, and that for many crops and soil types it may be impossible to meet such a standard below the root zone and still maintain a productive and viable agricultural economy in the state.  Others critical of agriculture believe that the water boards need to regulate nitrogen application of synthetic and organic fertilizers in order to actually regulate discharges of nitrates.  In light of this challenge, the State Water Board convened an Agricultural Expert Panel in 2014 to help address this issue.

In September 2014, the Agricultural Expert Panel delivered its conclusions to the State Water Board, which included recommendations pertaining to the Irrigated Lands Regulatory Programs.  The Agricultural Expert Panel answered specific questions posed by the State Water Board and ultimately recommended, in part, a regulatory program consisting of a strong and comprehensive education and outreach program, with phased in reporting of various key values such as crop type, acreage, total nitrogen applied and total nitrogen removed.

Some regional boards and others were critical of the report and its recommendations, claiming the recommendations were not specific enough in that they did not identify individual best management practices that would lead to compliance with water quality standards.  Upon delivery, the State Water Board accepted the report and directed State Water Board staff to review and come back with their recommendations on how and/or if the Expert Panel’s recommendations should be implemented.  As of this writing, State Water Board staff have not yet publically revealed their thoughts and impressions with respect to the Expert Panel Report.

Related to the State Water Board’s pending recommendations relative to the Expert Panel Report, California agriculture also awaits key decisions with respect to petitions pending before the State Water Board.  Environmental justice organizations (and others) challenged irrigated agricultural orders for the various watersheds adopted by the Central Valley Water Board in late 2012 and 2013.  The orders in question include substantial new monitoring and reporting requirements on agriculture for the protection of groundwater and requirements specific to nitrogen management planning and reporting.

The orders were challenged to the State Water Board on a number of different legal theories, including arguments that the orders did not comply with the State’s antidegradation policy because the orders continue to allow irrigated agriculture to degrade groundwater above the nitrate drinking water standard.  In short, environmental justice organizations want the State Water Board to require nitrogen application reporting, mandated use efficiency ratios of nitrogen applied to crop needs and clear numeric limits on irrigation discharges.

The viability and value in requiring such information is part of the Agricultural Expert Panel’s recommendations.  At this time, the State Water Board has accepted the petitions filed on the East San Joaquin Watershed order and is considering the issues involved, including how the Agricultural Expert Panel’s recommendations should or should not be implemented.  Although State Water Board staff indicated late last year that a draft order would be available sometime in early 2015, we still wait for the draft order to be issued.  Recent conversations with staff suggest that a draft order may issue sometime this summer.  The other Central Valley petitions remain pending before the State Water Board, and it is anticipated that overlapping issues will be addressed through an order issued relative to the East San Joaquin petitions.

With respect to the Central Coast, litigation challenging the Central Coast’s irrigated agricultural order remains pending in Sacramento Superior Court.  As with the challenges to the Central Valley orders, the Central Coast litigation involves allegations that the State Water Board erred by eliminating the nitrogen ratio requirement that was in the Central Coast order and that the monitoring and reporting requirements upheld by the State Water Board are insufficient.  This case was first filed in court in late 2013.  Western Growers and other agricultural organizations are participating as intervenors in the case to protect grower interests.  Briefing has recently been completed, and a hearing on the matter is scheduled for May 15, 2015.  After the hearing and absent any supplemental briefing, the judge will have 90 days to issue a decision.

In the meantime, the regional boards continue to implement their orders (including requirements pertaining to nitrogen management planning) as adopted, with delay of some requirements due to the pending actions before the State Water Board and the Sacramento Superior Court.  This leaves growers in the vulnerable position of not knowing what will ultimately be required and when.  Hopefully, the State Water Board and the Sacramento Superior Court pending decisions will bring clarity on this issue in the near future.

 

Theresa Dunham is a shareholder with the Sacramento, CA, law firm of Somach Simmons & Dunn.  The firm provides a unique combination of experience in the fields of water, natural resources, environmental, public land, public agency, toxics and hazardous waste, zoning, planning and land development law.  Ms. Dunham’s practice emphasizes water quality law.