This article which ran in the Central Valley Ag Supplement of the Fresno Business Journal provides a summary of the areas of water quality and water supply issues that are the most compelling.
The state Porter-Cologne Water Quality Control Act requires the adoption of water quality control plans (Basin Plans) that provide the outline for managing water pollution in California. The plans incorporate the beneficial uses of water in that basin and then provide objectives that maintain and protect these uses. Many of the State’s current policy changes are implemented through amendments of the existing Basin Plans, including the Irrigated Lands Program, the Salt and Nitrate Management Plan that was developed under the CV-Salts program, and the proposed changes to the Bay-Delta Plan.
A. Irrigated Lands Programs (“IRLP”)
The state IRLP regulates commercial irrigated lands, including nurseries and managed wetlands. Options for regulatory coverage include joining a Third-Party (coalition) group or obtaining individual coverage. The coalition groups work directly with members to assist in complying with requirements that include conducting water quality monitoring and preparing and filing regional plans and reports to address water quality problems. Growers who choose to obtain individual coverage must conduct their own monitoring and reporting and work directly with the Central Valley Water Board to address water quality problems. The coalitions are generally subject to adopted orders for the relevant Basins.
B. CV Salts
A coalition of agriculture, cities, industry, and regulatory agencies worked for a number of years developing a plan for managing salts and nutrients. The Central Valley Salinity Alternatives for Long-Term Sustainability initiative (CV-SALTS) was initiated in 2006 to develop a management plan. This plan requires amendments to the Basin Plans for the Sacramento River and San Joaquin River Basins and the Tulare Lake Basin. The focal point for the amendments is the Central Valley-wide Salt and Nitrate Management Plan (SNMP). The SNMP provides a framework for managing salt and nitrates in the Central Valley and identified 11 proposed strategies, policies, policy changes or clarifications to the Basin Plans to facilitate the implementation of the proposed strategies and policies contained in the SNMP. These amendments establish a three phase program that interfaces with the IRLP and includes permitting, further studies and provides specific recommendations for the control and permitting of salt discharges to surface and groundwater and of nitrate discharges to groundwater.
C. Bay-Delta Plan
The State Water Board is considering the adoption of proposed amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the “Bay-Delta Plan”). The proposed amendments include new and revised flow objectives for the Lower San Joaquin River and its tributaries, the Stanislaus, Tuolumne, and Merced rivers, for the “reasonable protection” of fish and wildlife and beneficial uses and revised salinity water quality objectives for the southern Delta agricultural beneficial uses, as well as a program of implementation for these objectives. The current plan calls for 40 percent of the flow to be allowed to flow downstream unimpaired. It has been estimated that in a normal year, this would take 290,000 acre-feet of water from farms and cities, which is about 14 percent of the total amount they currently receive. The impact would be greater in a drought year in such conditions farms and cities could lose an estimated 673,000 acre-feet. Similar amendments will be proposed for the Sacramento River system as well. It is believed that in addition to losses in water use from surface sources, the reduction could impact groundwater supplies as well as the recharge that could affect sustainable plans under the Sustainable Groundwater Management Act discussed below.
1. Sustainable Groundwater Management Act (SGMA)
On Sept. 16, 2014, Governor Jerry Brown signed into law a three-bill legislative package, composed of AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley), collectively known as the Sustainable Groundwater Management Act (SGMA). Under this statute, groundwater users in basins starting with those that are prioritized based on their level of overdraw, must organize into groups that will in turn develop a plan to balance the groundwater resources in that basin; the plans are due in January 2020. This statute will affect the amount of water available to specific users creating effects on the operations and transactions involving all aspects of agriculture in the Valley. It is predicted that a considerable amount of land could be required to be fallowed under this statute to meet the requirements for a balanced groundwater system.
2. 1,2,3,-Trichloropropane (1,2,3 – TCP)
On Dec. 14, 2017, the California Water Resources Control Board -Division of Drinking Water adopted a regulation promulgating an maximum concentration limit (MCL) for 1,2,3 – TCP at the low level of 0.000005 milligrams per liter (5 parts per trillion). 1,2,3-TCP data has been compiled which shows statewide that 388 drinking water sources exceeded the 1,2,3-TCP MCL during the first quarter of 2018. It is estimated that more than 2 million pounds of pesticides containing 1,2,3-dichloropropene were used in California alone in 1978. The new level of 5 parts per trillion has resulted, and will continue to result, in millions of dollars in new treatment units as well as triggering enforcement actions and lawsuits against the manufacturers and more recently claims against chemical distributors.
Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or firstname.lastname@example.org.