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Conditional Waiver Confuses, Aggravates Central Valley Growers

This article appeared in CAPCA Adviser magazine in January, 2004

By Parry Klassen

If you're a Central Valley grower with irrigated cropland, you are now required by new water code regulations to either join a watershed coalition or file an individual discharge permit with the Water Board. Why? Because the new law says your farm can potentially discharge irrigation tail water or rain runoff that contains farm wastes (pesticides, nutrients, sediments). Whether you are a land owner or operator (renter), you are now a discharger and must decide how you'll get in compliance with the new law.

I've made those three statements (or slight variations) to more than 2000 growers and crop consultants over the last six months in meeting presentations on the new "Conditional Waiver" of Waste Discharge Requirements passed on July 11, 2003 by the Central Valley Regional Water Quality Control Board (Water Board). The new waiver covers Region 5 which encompasses the Central Valley from Kern County up to the Pitt River basin north of Shasta County.

The most common reaction during presentations is lots of head shaking. Typically the first question is "What if I don't have irrigation runoff and my fields are so sandy that storm water doesn't puddle much less run off." Also always heard is lots of groaning and statements like "They're trying to run us out of business."

Indeed, there is no shortage of questions or criticisms of the new conditional waiver - from either farmers or environmental activists. Controversy and conflicting interpretations have dogged the conditional waiver since the first version was passed in December 2002. After procedural improprieties forced the Water Board to a revote, the December waiver was replaced in July 2003 with a more detailed and some say more cumbersome waiver. Several appeals were filed with the State Water Resources Control Board and even though final action is not expected until late January, it appears no major changes will be made to the regulations.

What's clear is the waiver is the most comprehensive and some say convoluted regulation to address farm runoff in the country. The annual cost to agriculture in the Central Valley is still unknown but some farmers can expect to pay up to $5 an acre and more to cover monitoring costs incurred by their watershed coalitions.

Runoff is being broadly defined in the regulation and includes irrigation return flows, tile water drained into surface water and most significantly, storm water runoff. In numerous public meetings, Water Board staff have said landowners must be able to contain storm runoff from the once in a 100 year storm event to be exempt from the regulations.

In a nutshell, which is hard to do with such a complex regulation, the main "conditions" for farm owner or operators to be in compliance with the waiver are:

  • Join a watershed coalition formed in your region (there are many now in the Central Valley) or;
  • File a Notice of Intent with the Regional Water Board to participate in the conditional waiver as an individual. That notice was supposed to be filed by November 1, 2003.

Depending on what option is chosen, each farm owner or operator in the Central Valley can expect to eventually have a "relationship" either with the Water Board or a local watershed coalition. A study was done by the California Farm Bureau on filing individually with Water Board and monitoring your own farm runoff. Costs were estimated at $10,000 for the first year and $3000 to $6000 annually thereafter for water monitoring and reporting (based on a 200 acre operation).

An encouraging response by agriculture to the conditional waiver issue has been the formation of five water quality coalitions in the Central Valley. Viewed by many as the most economical way to comply with the regulations, the coalitions' goal is to represent farmers within a watershed so they don't need to file individually. In turn, the coalitions must file monitoring plans with the Water Board by April 1 and begin actual water monitoring by this coming July 2004.

Benefits of a watershed approach are developing regional water monitoring plans (instead of on-farm monitoring); spreading the costs over a larger area and number of growers and developing locally based solutions when problems are found. Each coalition is taking a different approach to raise funds to pay for writing the plans and performing monitoring including collection of fees though irrigation and drainage districts, charging membership dues to belong to a coalition or seeking outside funds from supporters.

For now, the watershed coalitions are actively working to meet the next conditional waiver "deliverables." On April 1, 2004, each coalition must submit a watershed use report describing detailed cropping patterns, pesticides and nutrient use and a compilation of management practices that can protect water quality from farm inputs. Also due is a water monitoring plan for the watershed. Then beginning on July, the coalitions must initiate monthly water monitoring in their regions.

So what happens next? If no changes are made to the existing waiver, water monitoring will begin at dozens, maybe hundreds of sites across the Central Valley in July. The regulations say monitoring must be performed monthly during the irrigation season then during two winter storm events. Each sample must be analyzed for toxicity and depending on the region, specific pesticides or other constituents that have been detected in previous monitoring programs.

Should monitoring indicate toxicity in the water, it will be the watershed coalition's responsibility to notify growers about problems and work to solve those problems. Depending on what causes the toxicity, solutions could include farmers adopting best management practices or modifying uses of specific farm inputs to prevent movement into surface water.

Crop consultants and Pest Control Advisors are likely to play an important role in working with coalitions and growers as farming practices are adjusted to improve water quality within a specific watershed. Also key will be university farm advisors, farm input suppliers, the Natural Resource Conservation Districts and Resource Conservation Districts. To date, those entities plus county Farm Bureaus, CURES, irrigation districts and other agricultural entities have played key roles in organizing the coalitions throughout the Central Valley.

Still unclear is the official role of county Agricultural Commissioners. Many have participated in formation of the watershed coalitions but have yet to be assigned an official regulatory or enforcement role by the Water Board. Many believe such a role will be critical for success of the program.

It doesn't take much to think of a long list of questions about the conditional waiver. What about cities that drain storm water into streams or canals? Are growers who do nothing going to be pursued by the Water Board? Can the coalitions be sued? Stay tuned for the answers and more questions.

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