On February 8, 2016, the State Water Resources Control Board (State Board) released a draft order (Draft Order) modifying 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 represent a significant element of the Central Valley Regional Water Quality Control Board’s (Regional Board) long-term irrigated lands regulatory program, regulating discharges from irrigated lands to groundwater and surface water within the Eastern San Joaquin watershed. The Regional Board adopted the General WDRs on December 7, 2012, after which several parties petitioned to the State Board. Because the State Board was unable to address the petitions in the timeframe allotted to the State Board, they granted “own motion review” of the General WDRs on August 5, 2014. The Draft Order is intended to resolve these petitions and, if adopted, would give precedential direction to the Central Valley Regional Board with respect to the General WDRs, as well as direction to other regional water quality control boards regarding irrigated lands regulatory programs in general.

In summary, the General WDRs impose requirements on individual growers (Members) to implement best management practices, conduct farm evaluations, and prepare nitrogen and sediment control management plans. The General WDRs permit a coalition of growers (i.e., the “Third Party”) to assist in the implementation of the General WDRs, and to report information and data gathered pursuant to the terms of the General WDRs in aggregated formats. The Third Party also conducts education and outreach programs, and performs surface water and groundwater monitoring throughout the watershed.

Subsequent to the adoption of the General WDRs, in a related effort regarding nitrates in groundwater, the State Board convened an Agricultural Expert Panel to consider questions regarding agricultural nitrate control programs. The panel presented its report to the State Board on September 23, 2014, which included recommendations for irrigated lands regulation. In the Draft Order, the State Board indicates its intent to implement some of the Panel’s recommendations in the proposed revisions to the General WDRs. Further, the State Board explains that its conclusions in the final order that results from these proceedings will be precedential and apply statewide. The significant changes proposed by the State Board to the General WDRs are summarized below:

• The Draft Order would eliminate the distinction between high vulnerability and low vulnerability areas, making groundwater protection requirements applicable to all areas within the watershed. Instead, the Draft Order would propose categories based on operation size to accomplish phasing of the applicable requirements. Because the Draft Order would remove the phasing approach based on risk, many requirements that were only applicable to high vulnerability areas would become applicable to all Members, including the requirement to participate in outreach events and the need to update a Farm Evaluation annually.

• The Draft Order includes a new template for the Farm Evaluation.

• Under the General WDRs, Members submit their Farm Evaluations to the Third Party, and the Third Party summarizes and aggregates the data, submits a summary report to the Regional Board, and reports individual data to the Regional Board at the township level. The Regional Board retains the discretion to request the underlying data for an individual Member. The Draft Order proposes to require the Third Party to submit Farm Evaluation data to the Regional Board at the field level, and identify the field-specific data by location.

• The Draft Order proposes a number of changes to the Nitrogen Management Plan requirements. Citing recommendations from the Agricultural Expert Panel as its basis for certain requirements, the Draft Order opines that nitrogen management must coincide with irrigation management, would add several planning elements to this effect, would require additional irrigation-related information, and would rename the revised plan the “Irrigation and Nitrogen Management Plan” (INMP). All Members would be required to prepare a certified INMP and submit an INMP Summary Report to the Third Party. This requirement varies significantly from the current requirement, which only requires certified nitrogen management plans for growers in high vulnerability areas.

• In addition, the Draft Order would require a new methodology—the multi-year A/R ratio—to track the effects of nitrogen management practices over time. The multi-year A/R ratio represents the ratio of nitrogen applied to the field to the nitrogen removed from the field. The Draft Order would assign the Third Party with the task of conducting research and testing to determine the appropriate coefficients for calculating nitrogen removed by crop and prescribes a timeline for determining these values. The Member would then need to include the multi-year A/R ratio in its INMP Summary Report to the Third Party as well as the data supporting the calculation. The Third Party, in turn, would then summarize the nitrogen application data at the field level and report that information to the Regional Board, identified by location, for entry into the GeoTracker database. For growers that are consistently over-applying nitrogen as indicated by a higher than average A/R ratio value for more than three years, the Draft Order would require certain follow up actions.

• The Draft Order supports receiving water monitoring and declines to impose monitoring of surface water discharges off the farm or field. However, the Draft Order finds the current receiving water monitoring in the General WDRs insufficient—both spatially and geographically—to be representative of the watershed. The Draft Order would remand to the Regional Board to review and reconsider the ambient monitoring provisions, and reopen the General WDRs by March 1, 2017, to revise the program.

• The Draft Order would implement provisions from State Board Order WQ 2013-0101, which is applicable to Central Coast Growers, and would require Members to monitor all drinking water supply wells on their property. If monitoring results show that the groundwater exceeds the water quality objectives for nitrate (equivalent to the drinking water standard for nitrate), then the Member or Third Party would be required to notify users of the exceedance. The Third Party would be required to submit these monitoring results for drinking water supply wells to the Regional Board in the Annual Monitoring Report. The State Board also states its intention not to withhold information on the exact locations of drinking water supply wells. Further, the Draft Order encourages the Regional Board to use its authority to require replacement water where the groundwater exceeds the nitrate drinking water standard.

The State Board will be scheduling a public workshop on the Draft Order on either March 15th or March 16th. Written comments on the Draft Order must be submitted by noon on April 8, 2016. The State Board is encouraging comments on specific reporting provisions, and in its public notice, requests input on several reporting alternatives, including alternatives removing the location identification requirements.

For more information on the Draft Order and proposed changes to the irrigated lands regulatory program, please contact Tess Dunham at tdunham@somachlaw.com or Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

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