Appeals Expected on Conditional Waiver Regulating Agricultural Discharges

The July 11 approval by the Central Valley Regional Water Quality Control Board (Regional Board) of a revised Conditional Waiver regulating agricultural discharges now moves this controversial issue into the collective "laps" of the State Water Resources Control Board (SWRCB). The day before the Regional Board voted to rescind the December 2002 Conditional Waiver due to perceived procedural flaws, Then after taking lengthy testimony, in a 5-2 vote the Regional Board approved the staff's proposed changes to the Conditional Waiver that included crippling new requirements and a "short leash".

The Regional Board specifically rejected arguments of ACWA, the California Urban Water Agencies, the newly organized watershed coalition groups, and the production agriculture community, and approved the staff's recommendation to require that watershed groups collect and submit to the Regional Board the names and property information on all individual participating farm owners and operators. They also added a new requirement that the watershed groups obtain the individual approval of all property owners and operators to join the groups. These requirements are widely seen by regulated interests as a "poison pill" that fundamentally cripples the watershed groups.

The Regional Board also voted to add a "short leash" requiring staff to bring the matter back in six months to determine if a long-term staff funding mechanism has been identified. If not, the Regional Board will consider terminating the Conditional Waiver at that time.

Finally, staff was also directed to prepare some model general orders for waste discharge permits for the Regional Board's consideration to partially replace the Conditional Waiver for several unspecified categories of agricultural discharges.

But these actions were not enough to appease the environmental groups opposing the approval of the Conditional Waiver in any form. Environmentalists continued to threaten the Regional Board with appeal and subsequent lawsuits unless the waiver is replaced by general waste discharge permits that include fees on individual dischargers.

Environmental groups and regulated entities will now almost certainly appeal the Regional Board's action to the SWRCB (see sidebar: Appeals of the Agricultural Discharge Conditional Waiver Must be Filed by August 11, 2003).

The regional watershed coalition groups currently meeting and coordinating concerning how to proceed on the appeal(s). The SWRCB is expected to act in November, which is also the deadline for the first compliance reports due to the Regional Board under the approved waiver. ACWA is encouraging its affected member agencies to contact the regional watershed coalitions that would cover their jurisdiction to coordinate on this important issue (contact William Thomas, Livingston & Mattesich Law Corporation by phone at 916.442.1111 or by e-mail at wthomas@lmlaw.net ). The legal and technical challenges presented by this regulatory program are expected to significantly impact water agencies and individual farmers in the Central Valley (and eventually the rest of the state) for many years to come, regardless of the outcome.

Sidebar:

Appeals of the Agricultural Discharge Conditional Waiver Must be Filed by August 11, 2003

Petitions challenging the Central Valley Regional Water Quality Control Board's (CVRWQCB) latest actions to adopt and conditional waiver and negative declaration must be filed with State Water Resources Control Board Chief Counsel's Office no later than 5 p.m. on August 11, 2003. Petitions for appeal may be submitted by persons or agencies that did not previously file petitions on previous actions by the CVRWQCB on this matter. The appeal petitions may be submitted by fax (with hard copy mailed) or by hard copy (no-email). Information on filing petitions may be found at
http://www.swrcb.ca.gov/water_laws/index.html

The SWRCB will review all petitions and currently plans to send out a draft State Board order by October 14, and to schedule a workshop on the draft order on November 4 or 5. Adoption of an order by the SWRCB could occur on November 19.

For additional information, contact Dave Bolland at 916.441.4545.