The 2010 Draft Waiver proposed that all farms should be required to implement a 50-100-foot buffer; by November of that year the mandate was reduced to only Tier 3 farms and the buffer width was reduced to 30 feet, and by the final 2012 Waiver the buffer requirement was left largely to the discretion of the agricultural operator, stating that either a buffer or a proposed alternative must be implemented to protect adjacent polluted waterbodies. With the E. coli event still fresh on the public’s minds, water quality temporarily faded from the regulatory spotlight. But not for long: the 2004 Ag Waiver was due to expire in July 2009, forcing the Regional Board staff to launch a new stakeholder process for the updated Ag Waiver. Unfortunately, the proposed public input process was deemed “not transparent or open to the public” by a California Farm Bureau representative, and did not keep pace with the 2009 deadline. The Waiver was extended for another year. In addition to the pending deadline, mounting scientific evidence of water pollution sources and mobilization of several interest groups pushed agricultural water pollution back on the agenda. Water quality data collected over the preceding five years from the 2004 Ag Waiver Cooperative Monitoring Program clearly showed discharges from agricultural lands were a cause of pesticide toxicity as well as a contributing source of nitrate and sediment impairments in the region . Due to growing concerns about one contaminant in particular, nitrate, a 2008 Senate Bill was passed,25 liter pot plastic requiring the State Water Resource Control Board to prepare a report addressing nitrate groundwater contamination.
The Center for Watershed Sciences at the University of California, Davis conducted the report, and one of the watersheds they chose to study was in the Central Coast region. Additionally, the 2010 State Water Resource Control Board Report found that the Central Coast Region had the highest percentage of toxic water sites statewide. Furthermore, several scientific reports found that pesticide use in the Central Coast was contributing to water column and sediment toxicity , as well as cause human health problems, such as developmental delays in infants and children . The Regional Board staff had the scientific evidence and momentum it needed to develop an ambitious 2010 Draft Waiver. Among the many sweeping reforms, the 2010 Draft Waiver required all dischargers to conduct individual surface water discharge monitoring, required Farm Plans to be accompanied by monitoring and site evaluation results, prohibited the use of excess fertilizer, required a comprehensive list of pesticides to be regulated, and required all farms to implement vegetative buffers. Members of the agricultural community voiced their concerns with the Draft in Regional Water Board meetings, through comment letters, on the web, and in newspapers. In a December 2009 meeting, several agricultural representatives reiterated their frustrations about the public input process, their worries regarding the mounting costs, and their opinions that the existing 2004 Ag Waiver was working well and did not need to be amended. Environmentalists, on the other hand, believed the proposed Order should be adopted without further delay. At a standstill, the Board re-issued the existing Conditional Waiver four more times: November 2010, March 2011, July 2011, and August 2011. Environmental groups, with agendas ranging from environmental justice to marine ecosystem protections to urban stormwater programs, were highly disappointed that the 2010 Draft Waiver was not adopted.
The environmental community was strongly represented by the Santa Barbara Channel keeper, The Otter Project, and Monterey Bay Keeper, providing extensive comments at Regional Board meetings up until the adoption of the 2012 Agricultural Order. In 2012, published results from the State commissioned nitrate contamination study, although controversial among the agricultural community, found that cropland was the primary source of human-generated nitrate contamination in the Tulare Lake Basin and the Salinas Valley , and that 254,000 people in the area are at risk for nitrate contamination in their drinking water. Because nitrate-contaminated drinking water is a well-known human health effects, including “blue baby syndrome” , the results of this study became a rallying-cry for the Department of Health to encourage a more stringent Agricultural Waiver. The California Department of Health shed light on nitrate groundwater contamination, echoing concerns reported from the UC Davis report. The United Farm Workers and a coalition of groups rallied behind environmental justice concerns, representing the voice of people most affected by nitrate contaminated drinking water. At a Central Coast Board meeting in February of 2012, Marcela Morales of the Central Coast Alliance United for a Sustainable Economy explained that contaminated water is disproportionately impacting low-income populations and people of color. She strongly urged the Board to take action and not delay the updated Waiver, claiming that communities affected by drinking water contamination are in urgent need of basic protection to ensure clean drinking water. Another impetus arose from water quality regulators in urban areas. Municipalities, facing ever-stringent regulations, began to question the fairness of waiving the agricultural water quality requirements .
City managers voiced their concern about pollutants from agricultural areas being deposited into receiving waterbodies within city boundaries, which cities are required to clean up through stormwater National Pollutant Discharge Elimination System permits. As the City Manager of Monterey, for example, suggested that agricultural industries and municipalities should be held to the same standard . On the other side, Farm Bureaus, individual growers and the Growers and Shippers Association represented the agricultural interests. California’s $43.5 billion agriculture industry comprised of 81,500 farms spread over 25.4 million acres is one of the largest and most influential interest groups in the state . Historically, the California Farm Bureau has had success at regional and national lobbying efforts. Between the two Agricultural Waivers , there were grumblings within the agricultural community that the Regional Board was not involving the growers in the deliberation process as much as during the 2004 Ag Waiver negotiations. As one farm stakeholder explained, growers felt they were not involved when figuring out solutions to water quality improvements, rather “[the Regional Board] set the rules without much input and expected growers to comply.” As a lettuce grower in the Salinas Valley stated, “the Regional Board didn’t take into account stakeholder opinion…The elephant in the room…[was] that there was no collaboration between the grower community and the regional water board staff… Discussions about the [Agricultural Waiver] and how to implement it should have been happening during the past four years, but it did not” . Several board meetings leading up to the March vote were packed with testimonies from agricultural interests assembling to delay the vote and water quality interest groups, encouraging the Board to pass a more stringent updated Agricultural Waiver. Steve Shimek , 25 litre plant pot spearheading the environmental interests, described the dualistic nature of the unfolding politics: “on one side are community activists seeking tougher pollution limits and public access to water quality data. On the other side are too many farmers trying to avoid cleaning up the waste from their operations.” At the March 15, 2012 Board meeting, the three-year long debate culminated in the passage of an updated Agricultural Waiver. But the process was not over. As mentioned earlier, five groups requested a deferral on several provisions of the 2012 Ag Waiver. In September of 2013 the State Board adopted the existing Ag Waiver, which made some modifications to the 2012 version passed by the Regional Board. A few months later, environmentalists filed a lawsuit in Sacramento Superior Court challenging the modified 2012 Ag Waiver as being too weak. The modified waiver and lawsuit will be discussed in more detail in the next section. Overall, the policy process leading up to the 2012 Ag Waiver was fraught with tension between a variety of stakeholders, including agriculture, cities, environmentalists, scientists and environmental justice groups. Consequently, the Waiver that ultimately passed was more robust than its 2004 predecessor, but weaker than ambitious draft orders that came to the fore during negotiations . The next part of this chapter will analyze the effectiveness of the resultant provisions embedded in both Ag Waivers.Public policy literature presents several means to assess the efficacy of a policy. The criteria chosen for policy analysis is important, as it could influence the direction of the policy as well as future budget allocations.
Cass Sunstein , former Administrator of White House Office of Information and Regulatory Affairs for the Obama administration, asserts that determining the success or failure of a regulation depends on its goals and scope. Dowd and his colleagues echo this claim in their paper on agricultural non-point source pollution policy in the Central Coast, stressing that the success of the Agricultural Waiver largely depends on the evaluative criteria used. Six parameters were carefully selected to measure the effectiveness of the 2004 and 2012 Ag Waivers: 1) complying with mandates set in the Agricultural Waiver, 2) evaluating quantifiable water quality improvements, 3) evaluating the requirements themselves, 4) assessing the significance of monitoring data, 5) comparing costs to growers vs. broader societal and environmental benefits, and 6) evaluating the equity of compliance across growers, including the distributive consequences.A logical place to begin evaluating the success of the 2004 and 2012 Agricultural Waiver is by measuring the degree to which growers met the compliance requirements. Based on the high level of enrollment in the 2004 Agricultural Waiver the 2004 Waiver has been labeled a success by simple participation among growers. The number that completed The 2012 Ag Order boasts roughly the same enrollment numbers: 1,796 operations managing 94% of farm acreage in the region. Evaluating compliance based on specific 2012 requirements, however, is more variable. As Table 3-1 indicates, there is a high compliance rate for simply enrolling in the program, but slightly less so in regards to more complex requirements. For example, close to a quarter of all farms have not reported groundwater monitoring at the individual level for both domestic drinking water and agricultural wells. On the other hand, every farm that is required to report total nitrogen applied to their farm has done so. The Clean Water Act Section 303 list1 of Impaired Waterbodies for the Central Coast Region can be an indication, albeit a limited one, of how water quality has changed over time. Two relevant listing cycles, 2006 and 2010, indicate a dramatic increase in the number of polluted waterways in the Central Coast. Over these four years, Regional Board staff added 515 listings of impaired waterbodies, totaling 707 in the 2010 listing cycle . While these numbers are striking, trends using these data should be made with caution for at least two reasons: 1) the number of waterbodies assessed for the 303 list varies from year-to-year and 2) there may be a latency period between when a waterbody was surveyed and when it is listed. The most commonly cited monitoring databases used to assess water quality in the region also indicate degrading water quality. Reports from these two agencies suggest that many of the same waterbodies, especially in the two areas responsible for most water pollution, are more polluted than they were a decade ago . While some waters have improved—47 waterbodies were de-listed as impaired in 2010—the vast majority have not. The lower Salinas watershed and the lower Santa Maria area are responsible for most of the region’s polluted waters; these areas are also the leading agricultural producers in the Central Coast . The 303 list, CMP, CCAMP, CWC, and scientific studies from the UC Davis Marine Pollution Studies Laboratory at Granite Canyon, identify a number of water quality concerns, in particular, dissolved oxygen, elevated pH, elevated nitrate and ammonia, water and sediment toxicity, and habitat disturbances. Monitoring patterns show that these pollution parameters are variable throughout the region, and that particular watersheds are hotspots for certain pollutants. When listed together, these parameters are responsible for impairments to the beneficial uses of drinking water, recreation, aquatic life, and agricultural uses. Of these concerns, nitrate contamination is the most serious and widespread problem in the region. Regional water quality reflects a larger state and national trend of degrading and variable water conditions. California Water Boards’ Annual Performance Report found half of all surveyed streams in the state to be degraded or very degraded, as measured by the health of aquatic organism communities that live in the state’s streams.