Water Quality and Regulatory Failures SEP Seminar Series

1. Water Quality and Regulatory FailuresSEP Seminar Series Marc Los Huertos Watershed Institute Science and Environmental Policy California State University, Monterey Bay Oct. 1, 2012

2. Water Quality in the Central Coast • Surface Waters • Elevated nutrients • Sediment • Toxicity • Nuisance algae • Harmful “Algae” • Groundwater • Nitrate contamination • Salt loads • Pesticide contamination

3. Pajaro River Surface Water Nitrate Pajaro River (Los Huertos, et al, in preparation)

5. Ground Water Vulnerability

6. “The Harter Report”

7. Clean Water Act (Federal Pollution Control Act 1948, etc) • A set of uneven attempts to improve water quality • National attention focused on water and inspired by environmental movement • Edwin Muskie, Public works and technology forcing • Point source pollution • Treatment plants construction cost share • Performance standards • Nonpoint sources • Stubborn and difficult to regulate • 303(d) and the TMDL • No linkage to ground water • Ground water addressed in the Safe Drinking Water Act

8. California’s Porter Cologne Act • Addresses both ground and surface water quality • Each region is autonomous developing a regulatory approach via the Basin Plan • Regional Board are appointed by governor who oversee staff • Boards have legislative, enforcement, and judiciary responsibilities.

9. Mission Statement “Preserve, enhance and restore the quality of California’s water resources” Central Coast Region www.waterboards.ca.gov/central coast

10. Conditional Waiver for Irrigation Agricultural Discharges Round II

11. What is the purpose of the Agricultural Order? Requires farmers and landowners to implement management practices, and conduct monitoring and reporting, to ensure that farms are not polluting surface water or groundwater. 11

12. Agricultural Order R3-2012-0011 • March 15, 2012 – Board adopted updated requirements • Effective immediately ; currently under appeal • Regulates discharges of waste from irrigated lands • Three tiers based on relative risk to water quality • Current Enrollment: 397,387 Irrigated Acres 1830 Operations / 4092 Farms 12

13. What does the Agricultural Order apply to? • Land planted to row, vineyard, field and tree crops where water is applied for producing commercial crops; • Specific commercial nurseries, nursery stock production, and greenhouse operations; • Land planted to commercial crops that are not yet marketable, such as vineyards and tree crops. 13

14. Tiers and CriteriaBased on relative risk to water quality and discharge Tier 1 (Lower Risk) NO chlorpyrifos or diazinon applied, NO impaired surface water, AND If nitrogen loading crop, must be less than 50 acres and not near impacted public drinking water well. OR Certified Sustainable-In-Practice (SIP). Tier 2 Chlorpyrifos or diazinon applied, Impaired surface water, OR If nitrogen loading crop, near impacted public drinking water well or between 50 – 500 acres. Tier 3 (Higher Risk) Chlorpyrifos or diazinon applied, and discharge to impaired surface water; OR If nitrogen loading crop, greater than or equal to 500 acres. 14

15. Tier 1 Acreage in Tier Tier 2 Tier 3 15 15

16. How is Risk Reported? Staff Report, Feb. 22, 2012, p. 43

17. Water Code, 13269 The conditions of the waiver shall include, but need not be limited to, the performance of individual, group, or watershed-based monitoring, except as provided in paragraph (3). Monitoring requirements shall be designed to support the development and implementation of the waiver program, including, but not limited to, verifying the adequacy and effectiveness of the waiver's conditions. In establishing monitoring requirements, the regional board may consider the volume, duration, frequency, and constituents of the discharge; the extent and type of existing monitoring activities, including, but not limited to, existing watershed-based, compliance, and effectiveness monitoring efforts; the size of the project area; and other relevant factors. Monitoring results shall be made available to the public.

18. Example 2: 15 blocks (small for a >500 ac farm)How does one capture a sample that represents 80% of the maximum discharge? F (2 pm) M (1 am) W (3 pm) T (12 am) T (8 am) T, Th (10 am) M (4 pm) M (8 am), W (10 am), F 4 (am), Sun (5 am) F (9 pm) Th (8 am) T, Th (12 pm) M, W, F (3 am) F (10 am) Sat (4 am) T, Th (10 am)

19. Tier III Growers

20. Tangible Water Quality Improvements Draft Order relies on reporting requirements Proposed Model Based on problem-solving that allows growers to explore, test, and demonstrate effective MPs. Similar to efforts in follow up monitoring (WQ Preservation, Inc), technical resources (UC Davis), and inspections (RWQCB). • Assumption: Sampling and reporting will describe NPS. • Example #1 Edge of Farm Sampling • Example #2 Nutrient Management Plans • Example #3 Buffer Plan • Regulatory Approach that Limits Grower Responses to NPS issues.

21. Edge of Farm Sampling (Monitoring to Answer a Question?) • Demonstrate practice effectiveness • Characterize discharge water quality • Prioritize enforcement action • Trend analysis • Public accountability Regarding the model I developed, Staff writes, The type of aggregate reporting proposed would not allow the Water Board to determine the source and amount of waste being discharged and whether management practices are being effective. When I was leavin’ the bayI saw three ships a-sailin’They were all heading my wayI asked the captain what his name wasAnd how come he didn’t drive a truckHe said his name was ColumbusI just said, “Good luck” --Bob Dylan

22. Annual Water Quality Improvement Cycle Grower fees to build capacity to address WQ Highest value for on-farm monitoring

23. Potential WQ Practice Effectiveness Evaluation Reports and A Question that can be answered with Practice Evaluations Regarding the proposed model… “The type of aggregate reporting proposed would not allow the Water Board to determine the source and amount of waste being discharged and whether management practices are being effective.” Staff Report, Feb. 22, 2012

24. Ground Water Contamination versus Nitrate Leaching Risks versus Fertility Management • We know some drinking water wells are contaminated in specific areas. (Good documentation for this) • Well contamination may continue to increase in severity and number, regardless of the Board’s action. (A prediction with some uncertainty) • No data presented in the Draft Order demonstrates widespread leaching of nitrate to groundwater from current agricultural practices. (Creates a legitimacy issue for stakeholders, even if leaching is occurring and widespread; nevertheless, growers generally acknowledge and research has shown the growers can and should do better) • Draft Order does not suggest how the technical difficulties will be overcome in analyzing and interpreting the reported data. (A red herring in terms of grower buy-in.) • Draft Order does not provide growers with the capacity to conduct spatially explicit problem-solving. (Stakeholders are highly motivated in the Central Coast, as evidenced by grower participation in the CMP)

25. Nutrient Management Plans There are no off-the shelf, universally applicable management practices that simultaneously : • Maintain agronomic required N in the soil, • Limit soil salt/sodium accumulation, and • Completely capture soil N for many crops (80% of the partial nutrient balance may be the upper practical limit (EPA, 2011)). NOTE: ~ 99% of the fertilizer studies have been done in the context of yield increase goals. NOTE: Many fertilizer recommendations made to growers are based on yield as a criterion alone. Research has way behind grower needs for environmental protection, while research dollars have dwindled.

26. Nutrient Management • Crop (variety, season, weather responses) • Irrigation supply and quality • Irrigation infrastructure • Market arrangements • Topography, climate, weather • Soil properties • Pending fertilizer innovations • Pending remediation/treatment systems

27. Asynchrony Between N Supply and Demand Source: G. Philip Robertson IN Ecology in Agriculture, L.E. Jackson, ed.

28. The UC Riverside Nitrate Hazard Index • Developed as a guideline • Not well suited as a regulatory tool • Simplifies a variety of farm management constraints • Makes a number of assumptions about nitrate leaching which contribute to nitrate leaching potential, e.g. uniformity, amounts and timing, weather, etc.

29. The danger of using a guideline in a regulatory approach What does uniformity depend on? Well designed system Soil type High quality drip tape Correct Pressure Growers/irrigator skill

30. It’s the management

31. Evaluations of INMPA dissertation on vadose zone processes for each farm? Draft Order, Attachment 2C, p.19 Robust and Impossible Reporting Requirements, by June 2016…

32. Regulating Fertility Management via Nutrient Budget Ratios • Not implementable • We do not know how to properly credit nitrate in irrigation water. • Interferences from other salts. • ET determine irrigation needs, not nutrient balance. • The relationship between water uptake and nitrate is not always linear. • Staff Report (Feb. 22, 2012) misstates the agronomic capacity to meet these targets • Some growers can meet 1:1 or 1:1.2 ratio* in many circumstances, often. • Research has demonstrated some capacity to meet these goals but most were not designed to test these targets. *NOTE: In each of my discussions, there is a wide range understanding about the requirement and potential methodologies to comply. This has lead to a great deal of confusion; the Draft Order fails to appreciate the complexity of the requirement and USEPA report that suggest 80% is the upper practical limit.

33. Discussions: Politics of Water Quality • Science as a Hammer? • Water Engineers as Regulators • Missing Stakeholder Accountability • Groundwater legacy Issues • Religious communities • Environmental Litigators

34. Stakeholders and Regulators • Extraordinary lack of trust • Lack of knowledge about farming • Regulator Distrust • Regulators as Activists • Significant fears in agriculture • New, vocal stakeholders • Unacknowledged Trade-offs

35. Cyanobacteriaand Toxins and Sea Otters? Pinto Lake: Unpublished but clear trends

36. Managed Aquifer Recharge and Retention Ponds Google maps Managed Aquifer Recharge • Surface physical data • Subsurface geology and hydrogeology • Potential access to a water supply

37. Conclusion Part I Adopted Order reporting requirements • Technically Impractical • Complex to Implement • Limited value to fulfill the agency mandate Regarding Rejected Ag. Alternative, “…reporting that do not indicate water quality conditions or measurable improvements in pollution load reduction” Staff Report, Feb. 22, 2012, p. 3

39. Policy Tools • Performance Based: • Permitted Systems – e.g. waste discharge permits • Taxed Pollutant Loads • Tradable Permits • Practice Based • Technology • Best Practices • Input Restrictions

40. Compliance starts at the farm • To obtain compliance we need to… • Understand the nature of farming ~ • Document the extent of the problem • Document the fate and transport of pollutants ~ • Test various MPs and compare their environmental and economic efficiencies ~ • Determine the spatial and temporal applicability of various MPs • Experimentation and documentation of practice effectiveness ~ • Extension and outreach to develop the tools and resources for wide scale applications. ~ • Remove barriers to implement practices • Incentivize adoption, Penalize non-adoption. • Require effective MPs be adopted to improve water quality??? • Document their use and effectiveness

41. Capitalizing on Success Agencies have been promoting and working to improve nutrient/irrigation efficiency, e.g. • Central Coast Regional Water Quality Control Board • Santa Clara Valley Water District • Pajaro Valley Water Management Agency • Monterey Water Resources Agency • Cachuma RCD • Santa Cruz RCD

42. Next Steps….for the regulated… • Pilot projects • Research-based approaches • State Water Board Intervention

43. N Trading? Collaborating Organization Actions Seed Funding Grower Actions Input Guidelines UC Davis, UCCE, NRCS, RCDs determine practical and agronomically sound input guidelines for fertilizer applications. On-Farm Solutions provides growers with education and information about what practices work and the degree to which practices mitigate nutrient loading. Grower funding Farm WQ Assessments: Growers are equipped with techniques to assess water quality risks for each farm and develop appropriate management practices to minimize them. Practice Loading Evaluations Agriculture Industry Commodity Groups, UCCE, CSUMB, UCD, NRCS. Verification*Third party audit of practice implementation TransactionUsing a system entities may sell Credits to entities with debits In order to sustain their businesses. These transactions are not Limited to agricultural; but may Be traded across sources (irrigated Ag, rangeland, municipalities, special districts, land trusts, rural residential, industrial, MPAs, governmental agencies i.e. Parks And Recreation). Practice Implementation Audit “Score”* Index of nutrient loading rates, which are assign as a credit/debit to grower. *Developed in the Ag Alternative