Aug 21, 2015

Judge Rules California Not Doing Enough to Curb Agricultural Pollution

The judge ordered the State and Central Coast Regional Water Quality Control Board to create new rules to protect human health and the environment, surface water and groundwater from agricultural pollution

California agricultural runoff

On Aug. 10, 2015, Superior Court Judge Timothy Frawley ruled that California is not doing enough to curb pollution from California farms. Frawley ordered the State and Central Coast Regional Water Quality Control Board to create new rules to protect human health and the environment, surface water and groundwater from agricultural pollution.

In 2013, a coalition of five nonprofit organizations and an elderly woman who cannot drink water from her tap because it is contaminated with agricultural waste filed a lawsuit in Sacramento Superior Court challenging the Central Coast Regional Water Quality Control Board’s Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Agriculture (also known as the Ag Waiver) and changes made by the State Water Resources Control Board to cripple the already weak order. The coalition alleged the Ag Waiver was so weak, it did not comply with state law. The organizations (Santa Barbara Channelkeeper, The Otter Project, The Environmental Justice Coalition for Water, Pacific Coast Federation of Fishermen’s Assns., and California Sportfishing Protection Alliance) represent a broad alliance of conservation, environmental justice, and industry united in protecting clean water.

Agricultural pollution is exempt from regulation by the federal Clean Water Act but is governed by California’s Water Quality Control Act. In adopting the Water Quality Control Act, the California Legislature declared that “the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.” Any person or industry proposing to discharge waste that “could affect the quality of the waters of the state” must file a report of waste discharge and be issued a permit (called Waste Discharge Requirements). A group of similar dischargers can be issued a group permit, called a Conditional Waiver of Waste Discharge Requirements. All dischargers in the group must comply with the “conditions” of the waiver.

In a report released Feb. 1, 2010, Central Coast Regional Water Board staff explained that many water segments throughout California’s Central Coast region are officially designated as impaired under section 303(d) of the federal Clean Water Act, nearly all beneficial uses of water are impacted by agricultural pollution, and these impairments remain “well documented, severe, and widespread.” Regional Board staff concluded that “[i]mmediate and effective action is necessary to improve water quality protection and resolve the widespread and serious impacts on people and aquatic life.” Board Staff determined that previous Ag Orders “[lacked] clarity and focus,” did not provide for adequate “compliance and verification monitoring,” and allowed “agricultural discharges [to] continue to severely impact water quality in most receiving waters.” Despite these findings, the new draft waiver was attacked by agricultural interests as draconian, punishing, and intrusive over-regulation and the Ag Waiver was significantly weakened when it was finally adopted by the regional board in March 2012. Desiring even weaker regulation, organized agricultural interests filed four separate appeals of the regional board’s decision to the State Water Resources Control Board. Conservation interests also filed an appeal asking for stricter regulation. On Oct. 29, 2013 the state board issued its decision to further weaken the Ag Order.

The coalition that filed the lawsuit believes the Ag Order fails to protect public health and the environment by allowing the further degradation of surface and ground water quality. The coalition also believes that the Order fails to comply with State policy because it lacks monitoring and reporting requirements that would verify that the biggest ag polluters are cleaning up their act. The organizations were represented by Stanford Environmental Law Clinic and the Golden Gate University Environmental Law and Justice Clinic, and Ms. Manzo was represented by California Rural Legal Assistance, Inc.

“This ruling is a huge victory for waterways, coastlines, and communities that are impacted by chronic and severe agricultural pollution,” said Channelkeeper’s Ben Pitterle.

“The financial, legal and political resources of big agriculture eviscerated and weakened the regulation. Agriculture has every right to use the public’s water but they do not have the right to return it so polluted that it kills the life that lives in it,” said Steve Shimek, executive director of The Otter Project.

In his ruling issued yesterday, Judge Frawley agreed, and directed the state water board to formulate a new waiver that is consistent with State policy.

Although the lawsuit focuses on the Central Coast region, the lawsuit is anticipated to influence the entire state. The California Farm Bureau Federation, Ocean Mist, Western Growers and other major farms intervened in the lawsuit in attempt to protect the weak regulations.