Ag Waiver Extension Relies on Questionable Legal Authority
March 30, 2011
With the clock ticking on a 2004 agricultural discharge rule with a March 31 expiration date and no sign of consensus soon--and no indication of a new appointment to a board one vote short of a quorum--the Central Coast Regional Water Quality Control Board issued an order Tuesday that will extend the existing discharge guidelines for one year. Environmental groups say such an extension exceeds the officer's authority.
"They’re just flat out not allowed to do it," says Nathan Alley, a staff attorney for Environmental Defense Center based in Santa Barbara.
The water quality control board first introduced an agricultural waiver in 2004, which allows some 3,000 farmers in the region to monitor water quality as a group, rather than as individual polluters like factories or other point sources do. The new draft would force the biggest polluters to cute down on nitrogen fertilizers and certain toxics.
The existing waiver expired in 2009, and has already been renewed twice. But a technicality changes the nature of the extension announced yesterday. In the two previous renewals, a quorum of board members voted for it. Currently, the board is one vote short of a quorum with three vacancies and two members recused for conflicts of interest (as farmers, they are subject to the terms of the waiver).
“State law allows certain powers to be delegated to the executive officer," says Alley. Among the explicit exceptions, he says, is the ability "to modify, revoke or issue a waste discharge requirement."
The water board's executive officer Roger Briggs concedes, "There are differing legal opinions on it."
Steve Shimek, executive director of Monterey Coastkeeper, thinks the questionably legal maneuver is just a way to buy time on the highly contentious new waiver that environmental and agricultural interests are clashing over. "I think they're just trying to throw this into some sort of holding pattern," Shimek says.
Water board staff continues to argue in favor of action on a new waiver--but until Gov. Jerry Brown appoints a new member to make a quorum, no such action is on the horizon. “Nitrate is arguably the most serious and widespread of all pollution problems in the Central Coast Region,” according to a report prepared by water board staff this month.