Of Lawsuits, Regulations, and Agriculture

Fueled by frustration over a still-ongoing reshaping of agricultural pollution regulations, Santa Barbara Channelkeeper, represented by the Environmental Defense Center, filed a lawsuit against the Central Coast Regional Water Quality Control Board last week claiming that the state agency — at least when it comes to ensuring a safe health standard for the water that runs off of irrigated ag land — isn’t doing its job.

Pointing to a 2010 study that identified some 700+ bodies of “impaired” water in the Central Coast area afflicted by the side effects of ag-tainted runoff (including 83 in the lower Santa Maria watershed alone), and mounting evidence of people in certain impacted areas becoming ill from potentially related issues, Channellkeeper — working in conjunction with their Monterey and San Luis Obispo County counterparts — lobbed the legal bomb because, as Channelkeepers Director of Watershed Programs Ben Pitterle put it this week, “It is pretty clear that the existing way of doing business is not protecting water quality.”

At the heart of the situation is the Control Board’s nearly three-year-long attempt at overhauling its agricultural waiver — a regulatory tool that allows irrigated ag operations to be exempt from the mandates of the Clean Water Act in exchange for certain conditions such as creating farm-specific water-quality protection plans, attending related classes, and paying into a co-op-based monitoring program that tests anonymously. The original waiver, which first expired in July 2009, has been repeatedly extended as Control Board staffers and related stakeholder groups (i.e., enviros and aggies) have worked to try and craft a new set of “conditions” that would, hopefully, lead to a better state of affairs for the various bodies of water in and along the Central Coast.

However, successfully crafting a new waiver that, in the words of the Control Board’s Executive Director Roger Briggs, “addresses the obvious problems in a reasonable and doable manner,” has proved to be anything but easy. In fact, at a hearing last Thursday in San Luis Obispo, the Control Board once again bounced an incarnation of the proposed waiver back to its staff for further tweaking in light of a recent counter proposal by the California Farm Bureau Federation. (Predictably, the organization has been anything but enthused about components of the proposed new waiver that would ask farmers, at their own cost, to test their runoff and well water and publicly report the findings). The Control Board isn’t expected to take the issue up again until this September.

Even worse, to hear Pitterle tell it, each time the board elects to have staff continue working on the waiver, it invariably comes back a weaker document, at least in the eyes of the environmental community. In order to be effective, says Pitterle, the conditions of the waiver must include individual farm monitoring, groundwater testing, and adequate buffer zones for riparian areas. While most of these things, at least to some degree, are currently present in the most recent form of the waiver, the fear is that they will continue to be eroded as the process moves forward. Add this to the fact that the protracted process has allowed what many consider to be a substandard regulation to continue well past its expiration date, and you begin to understand the impetus for the lawsuit.

For their part, Briggs explained in the wake of the suit that he too wishes things were “moving along faster,” but that such slow-moving progress is, lamentably, the calling card of aggie and enviro horse-trading. “We know that [the waiver] needs to be improved,” said Briggs, “but not everyone in the community agrees with the environmental groups even by a longshot, and [the Control Board] is stuck in the middle.”

Further complicating things, according to Briggs, is the fact that the Control Board, as it presently stands, couldn’t approve a new waiver as two of its members, being in agriculture, have been forced to recuse themselves from deliberations on the topic, and a third seat is currently unfilled and awaiting an appointment from Governor Brown; the end result is a board that, at least when talking about this issue, is unable for the time being to achieve a quorum. “It is a tough situation and a complicated problem, but we are making progress,” concluded Briggs.