Water Wars: The Ag Waiver Soap Opera Unfolds

Few topics on the Central Coast are as innately politically heated as the debate over how to regulate farms and their impact on water quality. 

The jury's still out on the science—is the region's notoriously high concentration of nitrates to be blamed on dairies that popularized Monterey Jack cheese a century ago, or today's Salad Bowl of America?—and it's still out on regulating runoff. 

After a highly political, years-long process of renewing rules on agricultural monitoring and reporting on fertilizers and certain pesticides (known as the "ag waiver"), the Central Coast Regional Water Quality Control Board finally issued a new five-year ag waiver—three years late. 

Both environmental groups and agricultural groups promptly appealed, respectively arguing it wasn't tough enough and that it was too onerous.

The appeals kicked it up to the State Water Resources Control Board, which issued its draft decision on June 6. The decision isn't final, with public comment allowed until July 16, but the gist of the 56-page draft is this: Sorry ag, we think it's OK for regulators to regulate. 

Below, a few of the interesting points from the draft:

1. He said, he said. This is the most politically salacious part, if you're the kind of person who thinks CSPAN is more captivating than Mad Men. There was the "Shimek Proposal" which became the "Johnston Proposal" through a game of telephone via former Water Board Director Roger Briggs.

The tension arises because Shimek—who planted the seeds of the proposal with board member Michael Johnston wrote in at the eleventh hour—is Steve Shimek, director of the nonprofit The Otter Project, aka their arch-enemy. 

Ag groups alleged the transformation of the Shimek proposal into the Johnston proposal violated the rules governing communications with board members. 

"We find that the Johnston proposal did not cross that line," the draft decision states. 

2. Unintended consequences. Assemblyman Luis Alejo, D-Watsonville, authored a successful bill that changed the rules on how stakeholders report their meetings with board members. This was, presumably, an effort to prevent a "Shimek proposal" moment from happening again. (Alejo was looking out for "Regulated entities," aka growers.) 

But the state board, in a footnote, interpreted Alejo's bill to actually prove the whole "he said, he said" bit was legit. 

The state board views Alejo's legislation as "further ground for resolving any ambiguity in favor of the [Central Coast Regional Water Quality Control] Board."

3. Perfect is the enemy of the good. Ag objected to the regional board's construction of three tiers, based in part on big, little and medium-sized farms. They said the tiers were arbitrary, and the additional burden put on the biggest farms—Tier 3 growers—wouldn't necessarily improve water quality. 

The state board, in the draft, agrees: "Yet, while the approach…may not be perfect, it is a reasonable approach.

"We are reluctant to substitute another reasonable, but imperfect set of criteria for those selected by the Central Coast Water Board." 

4. Science is an inexact science. They're no diamonds, but nitrates last for a long time. The state board wants an "Expert Panel" to do a lot of research and figure out how much nitrate from a farm actually ends up in the groundwater, because they're not convinced the Regional Water Board got it right. 

They'll wait for the Expert Panel, but in the mean time, they'll go with the Regional Water Board's general direction. "The work on nitrates in groundwater is too critical to await those results."

5. Clear as water. Ag petitioners argued that the information on fertilizer and irrigation they were required to report could reveal proprietary information. According to the draft, ag does not get special privacy protections on their farm plans—the documents will be subject to the California Public Records Act request. 

"We must strike a balance between the need…for transparency on the one hand, and the need of the agricultural community to innovate and compete on the other hand," the draft states.

"Given the significant water quality problems facing the Central Coast region due to agricultural discharges, we decline to strike that balance in a manner more protective of business information." 

6. A lighter load for ag. In some areas, the state board lifted the burden on growers. No need to calculate nitrates in holding ponds and small reservoirs, per the draft. Progress and good intentions get to count as compliance for curbing pollution, "if the discharger demonstrates that it is engaged in good faith in an iterative process of proposing and implementing more stringent practices."