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Will waivers for waste discharge survive?

April 18, 2002

On Jan. 1, 2003, provisions in Senate Bill 390 that amended the California Water Code will sunset all waivers for waste discharge, including those for agricultural discharges.

Waivers are valuable tools issued by the regional water quality control boards to address a variety of discharges that are in the public interest.

Twenty years ago waivers were established to provide a level of flexibility in the laws governing California's water quality. A waiver from waste discharge requirements allows farmers, dairymen, building companies and even homeowners the ability to discharge with a permit if certain conditions are met.

California has 37 types of waivers, overseen by nine different regional boards, that range from draining home swimming pools to storm-water and return flows from irrigated agricultural land. Without a waiver, anyone proposing to discharge water that could affect beneficial uses of a water body could be significantly affected by this.

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There is a lawsuit in the Central Valley involving the Delta Keepers (environmentalists) and the Central Valley Regional Water Quality Control Board 5. Last year the environmental group filed a petition with the regional board to terminate waivers because they claimed to have proof that agricultural return flows violated the terms of the waiver. Pesticides were the ticket that brought this issue to the forefront because their levels in irrigation return water were purportedly in violation of the waiver's conditions.

The Regional Water Quality Control Board denied this petition so the Delta Keepers appealed to the state Water Resources Control Board. It too denied it. California Water Code Section 13269 gives individual regional water quality control boards the authority to determine if it is in the best interest of the public to continue with waivers or rescind them.

The environmentalists' last chance was to file a lawsuit. They are asking the Superior Court in Sacramento to force the Central Valley Regional Board to end the 20-year waivers.

The California Farm Bureau Federation is in the process of interviewing outside legal counsel to prepare a motion to intervene. Not only do they need to fight this lawsuit to prevent an unfavorable settlement, but they are working to address the waiver issue at the legislative level.

Assembly Bill 2226 would extend the sunset period of the waivers so the regional boards can have more time to properly address waivers, their renewal, and any corresponding conditions. The state water board is considering a variety of options aside from waivers.

One such alternative is individual waste discharge permits. The idea of individual waste discharge permits equates to a permit to farm and is not only overwhelming but ludicrous. For example, it has been estimated that the Central Valley Regional Board would have to hire additional staff of about 500 to process the paperwork individual permits would require.

Then there are the logistic questions of would it be for every gate, every drain, every farm, every drainshed area? Would tile and tailwater be regulated the same? How would it work?

Regional boards simply do not have the manpower to implement something like this. It would definitely not be in the public's best interest to have their taxes paying for regional board staffs of 500 to address agricultural drainage.

Substitute ideas may include regional monitoring programs, implementation plans for their total maximum daily loads, best-management practice implementation and voluntary compliance programs such as our own.

While under waste discharge requirements, however, farmers (as well as other business operators) would potentially have to implement their own monitoring program (self-funded), making sure that none of the water they discharge is above specific water-quality standard numbers for a variety of possible pollutants. They would probably have to pay a filing fee for their permit.

Don't get discouraged just yet  — the Farm Bureau is fighting on your behalf.

So, how does this affect us here in the Imperial Valley? First, our regional board (7) is satisfied with the proactive efforts we are making with our voluntary TMDL compliance program. The board members don't seem to have any interest in not only bringing on more work for themselves, but in implementing a permitting program that would destroy the relationship the farm community has with them at this point as far as voluntarily implementing BMPs (as long as they are reasonable and economically feasible) to comply with water-quality efforts. Regional Board 7 and Imperial County operate under a waiver for irrigation return water as long as the discharge meets water-quality standards, is not toxic to fish and wildlife or the discharger is implementing BMPs under a management plan approved by the regional board.

It is conceivable that farmers, at least in the Central Valley, who are voluntarily involved in a compliance program such as our own may be issued waivers from waste discharge permits, while farmers not being proactive may not.

If the courts decide to take waivers out of the Central Valley, it would crush the ag industry there and set a dangerous precedent statewide. While that may sound great for our produce markets, we as farmers need to stick together throughout the state in fighting ridiculous yet frightening issues such as this.

If you have any questions or would like to sign up for the voluntary TMDL compliance program at the Imperial County Farm Bureau, please contact Nicole at 352-3831.

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