Steve Shimek

Otter Project Director Steve Shimek stands near the Monterey County Water Resources Agency’s Blanco Drain, which conveys ag runoff exceeding state water quality standards to the Salinas River.

Trying to improve water quality on Central Coast farms isn't enough. Growers are going to have to show proof that adjusting farming practices really benefits water quality.

That's according to a strongly worded court ruling issued Monday by Sacramento County Superior Court Judge Timothy Frawley, in a decision with big implications for farming on the Central Coast, and potentially California as a whole.

Frawley ruled in favor of the environmental nonprofit Monterey Coastkeeper, which sued the State Water Resources Control Board in 2013, arguing the board had weakened agricultural pollution rules to the point they were ineffective.

"Implementing management practices is not a substitute for actual compliance with water quality standards," Frawley wrote.

The court ruling is another step in a gruelingly long regulatory process. Historically, point-source pollution—think an effluent pipe coming off the back end of a factory—has proven, unsurprisingly, much easier to monitor for pollutants.

Non-point source pollution—like 435,000 acres of irrigated agricultural fields on the Central Coast, where pesticides and fertilizers can enter the water supply from a vast area over a prolonged period of time—is more of a challenge for regulators. 

The Central Coast Regional Water Quality Control Board first set out to regulate water quality connected to farm pollution with a 2004 rule inelegantly called "the conditional waiver of waste discharge requirements for discharges from irrigated lands."

It's known as the "ag waiver" for short. 

That five-year waiver established monitoring protocols for some 3,000 farming operations. When that expired, the regional water board implemented a new five-year ag waiver, which it had intended to be more stringent.

That process alone took years, and the five-year waiver was repeatedly extended. It got stuck because there weren't enough voting board members to form a quorum. (Monterey Coastkeeper also sued over that delay, arguing it was illegal to keep extending the expired waiver.)

For a more complete history of the regulatory process, check out the Weekly's 2012 cover story on the ag waiver.

A new five-year ag waiver was finally approved in 2012. Environmental groups appealed, arguing it was too weak. Agricultural groups and farmers also appealed, arguing it was too tough.

Those appeals went to the State Water Resources Control Board, which agreed to rewrite sections of the ag waiver.

They released a final version in September of 2013.

Monterey Coastkeeper, joined by other groups—Santa Barbara Channelkeeper, The Otter Project, Environmental Justice Coalition for Water, Pacific Coast Federation of Fishermen’s Associations and California Sportfishing Protection Alliance—sued the state board.

Their lead plaintiff was Andrea Manzo, who lives in unincorporated Monterey County's Camp 21 near Gonzales. She can't drink the water due to nitrate contamination, a problem attributed to farm runoff from fertilizer

Agricultural interests rallied to the state board's team in the litigation, joining as defendants. Those include Ocean Mist Farms and RC Farms (both in Monterey County); Western Growers Association, which represents growers in California, Colorado and Arizona; the Grower-Shipper Association of Central California (based in Salinas); and the California Farm Bureau Federation.

The long and winding chronology of the ag waiver will continue.

In his decision, Frawley himself doesn't actually rewrite the policy—he directs the state board to take another stab at it, this time requiring growers not only to implement plans they believe will improve water quality, but to prove their farm plans improve water quality.

"For the most part, the modified waiver continues the approach adopted by the 2004 waiver," Frawley wrote.

"This is problematic because the 2004 waiver has failed to make meaningful progress in improving water quality or attaining water quality standards.

"The 2004 waiver has been ‘successful’ in getting growers to join cooperative monitoring groups, prepare farm plans, and provide reports. But it has failed to improve water quality or even halt the continued degradation of the region’s water resources…

“In effect, the modified waiver guarantees the regional board will not take enforcement action against a discharger as long as the discharger believes it is implementing ‘improved’ management practices, even if the ‘improved’ management practices remain completely ineffective at controlling discharges of waste.”

Frawley's decision means Steve Shimek, executive director of Monterey Coastkeeper and The Otter Project, is celebrating. 

"The judge’s ruling is significant because the Central Coast had the first ag waiver in 2004," Shimek says. "It puts us in a position of not only setting precedent for the rest of California, but potentially for the rest of the country. That is hopeful for us." 

But before the environmental plaintiffs rest on their laurels, they may face an appeal. 

The state water board is still reviewing the court's decision and considering an appeal, according to spokesman Tim Moran. 

Same goes for the Farm Bureau, according to spokesman Dave Kranz.

Sacramento-based attorney Tess Dunham represent Western Growers and the Grower-Shipper Association on the ag waiver, and she had has already the decision, and says an appeal is definitely on the table.

"We are disappointed with the decision," she says. "We don't believe that the judge was correct in this case. We think he got it wrong." 

If this court ruling does indeed hold up, the ag waiver will go back to the state board for another re-working, and a public process. Dunham says her clients will definitely participate in that process, weighing in as the ag waiver is rewritten—again.

It all means the process could get mired in more bureaucratic and legal delays. And the five-year ag waiver expires in 2017—so it might end up stuck in court for its entire regulatory lifetime. 

Dunham says in the meantime, farmers will keep doing what they do, which in her view, is farming while adequately protecting water. 

"I think what the court's ruling misses is growers are good stewards of the land. They're there to protect soil, they're there to protect water. To take this ruling to say that growers are just causing gross pollution would not be fair or proper," she says.

In his decision, Frawley does acknowledge that farming on the Central Coast won't—and shouldn't—go away entirely, even if that might be the fastest route to cleaning up toxic waters. 

"The court recognizes, as did the regional board, the state board, and staff, that immediate compliance with water quality standards is not possible without complete cessation of agricultural activity—which is not a ‘viable or desirable’ waste discharge control option....

"Even petitioners do not contend that the modified waiver must achieve ‘instantaneous compliance.’

"Rather, petitioners argue, the modified waiver must include requirements reasonably designed to show measurable progress toward improving water quality over the short-term and achieving water quality standards in a meaningful time frame. The court agrees.”

Sara Rubin loves long public meetings, red pens and reading (on newsprint). She has been editor of the Monterey County Weekly since 2016, and has been on staff since 2010.

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