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On October 10, 2017, the State Water Resources Control Board (State Board) released a second proposed order (Revised Draft Order), proposing modifications to the Waste Discharge Requirements General Order No. R5-2012-0116 for Growers within the Eastern San Joaquin River Watershed that are Members of the Third-Party Group (General WDRs).  The General WDRs were adopted by the Central Valley Regional Water Quality Control Board (Central Valley Water Board) in 2012 and regulate discharges from irrigated lands to groundwater and surface water within the Eastern San Joaquin watershed.  After several parties filed petitions for review with the State Board, the State Board granted “own motion review” of the General WDRs to resolve the petitions and develop precedential directions for the irrigated lands regulatory programs administered by the regional water quality control boards.

The State Board issued the first draft order modifying the General WDRs for public comment on February 8, 2016 (Draft Order).  More information on the Draft Order is available here.  The Revised Draft Order contains significant revisions to the first Draft Order.  If adopted, the Revised Draft Order would direct all of the regional water quality control boards to adopt general waste discharge requirements or general waivers of waste discharge requirements using the third party-based approach endorsed in the Revised Draft Order within the next five years.

The significant changes in the Revised Draft Order are summarized below:

• The Revised Draft Order recognizes that because of the variation between regions, uniform application of the requirements may not be appropriate. To clarify, the Revised Draft Order identifies which conclusions, if adopted by the State Board, would be precedential for irrigated lands regulatory programs statewide.

• The Revised Draft Order modifies the frequency and purpose of the four reporting forms. For example, the submission of the Farm Evaluation is reduced in frequency from annually to every five years.  The Revised Draft Order requires the submission annually, at least, of a separate Management Practice Implementation Report (MPIR) for growers in areas subject to a Surface Water Quality Management Plan or Groundwater Quality Management Plan.  Further, the Revised Draft Order shifts the reporting of practices for irrigation and nitrogen management, including application data for nitrogen and crop yield at the field level, to the Irrigation and Nitrogen Management Plan (INMP) and the Irrigation and Nitrogen Management Plan Summary Report (INMP Summary Report).

• The Revised Draft Order keeps the uniform application of the groundwater protection requirements from the Draft Order, but reinstates the distinction of low vulnerability and high vulnerability areas for certain prioritizations and criteria. For example, the Revised Draft Order allows the phasing of the certified INMP requirement:  low vulnerability areas will be required to submit certified INMPs in 2020 and may self-certify INMP Summary Reports in 2021.

• The Revised Draft Order endorses the third-party based approach for administering irrigated lands regulatory programs statewide. For the General WDRs specifically, the coalition of growers (Third Party) would be responsible for receiving the Farm Evaluation, MPIR, and INMP Summary Report data from growers; aggregating, comparing, and analyzing the data; reporting the aggregated data to the Central Valley Water Board; and verifying that the growers are implementing the management practices.  The Revised Order also tasks the Third Party with calculating nitrogen removed from the field for both the “A/R ratio” and the “A/R difference,” which are different measures of how much nitrogen potentially remains in the field.

• The Revised Draft Order allows a category of members of a Third Party to seek exemption from the planning and reporting requirements if they can demonstrate that nitrogen applied to their fields does not percolate to the root zone and does not migrate to surface water.

• The Revised Draft Order continues the requirement that data be collected and reported at the field level. However, the Revised Draft Order removes the proposed requirement from the Draft Order that the location and identity of the field and grower be reported as well.  The Revised Draft Order now allows the use of a unique anonymous member identifier, with the proviso that the Central Valley Water Board may request the underlying data for a particular member or area at any time.

• The Revised Draft Order rejects the surface monitoring framework in the General WDRs based on representative monitoring sites. Rather than attempting to craft a monitoring program in this proceeding, the Revised Draft Order directs State Board staff to convene an expert panel for further consideration of an appropriate monitoring framework.

• The Revised Draft Order continues the requirement to monitor on-farm drinking water supply wells and adds new details regarding when a member of a Third Party may sample less frequently and when a member must provide notice to water users of an exceedance of a water quality objective.

The State Board has scheduled a public workshop on the Revised Draft Order for December 6, 2017.  Written comments are due on December 15, 2017.

For more information on the Revised Draft Order and implications for the irrigated lands regulatory programs, please contact Tess Dunham at tdunham@somachlaw.com or Brittany Johnson at bjohnson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.