Timeframe to Join SBASG and Receive a Reprieve From Enforcement Efforts Extended but Fast Approaching

by Kendra Clark


Agriculture Leadership in the Valley took a unique approach to resolving the nitrate issues faced by the Salinas Valley Basin. However, there is limited time to be a part of a solution by joining the Salinas Basin Agricultural Stewardship Group, LLC.

On April 3, 2017, a group of growers, shippers and landowners known as the Salinas Basin Agricultural Stewardship Group, LLC saw the culmination of their two years of work result in a historic Agreement. The group, has been working with State and local regulatory agencies on a solution to the pervasive and long standing issue of nitrogen contamination in the ground water of the Salinas Valley Basin. Nitrate contamination has resulted from a variety of sources including septic systems, naturally occurring, and conventional and organic agriculture, over the last 100 years.

California Water Code Section 13304 provides broad powers for State agencies to mandate the clean up of contaminated water. The agencies have the power to order parties to clean up contaminated water and any “person who has discharged or discharges waste into the waters of this state . . . or who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance. . .” This Statute is extremely broad. A party ordered to clean up contaminated water does not necessarily have to be a direct polluter, they could be a party who owns land upon which a grower used nitrogen or a party that did use nitrogen in their growing process or who may use nitrogen on their land in the future. The party also does not need to directly apply the nitrogen to any water source, they only need apply nitrogen that “probably” will be discharged into a contamination source.

We know that nitrogen use in the Salinas Basin has a long history. It is impossible to understand the proportionate share of each party who applied nitrogen in the past to the current problem. And it is also difficult to understand the actual source of the nitrogen in the well water. Further, studies show it has taken decades for the nitrogen applied generations ago to reach the groundwater as nitrates. However, under the law, current growers and landowners can be held responsible for all prior uses due to the fact that they have most recently permitted, applied or may apply nitrogen to the soils. Most owners or operators will be caught in the vast net of responsible parties since under the Water Code the list of responsible parties is incredibly broad.

Once the agency identifies the responsible party, the agencies can pursue an order requiring that the parties clean up the waste or abate the effects of the waste, or, in the case of threatened pollution or nuisance, to take other necessary remedial action, including, but not limited to, overseeing cleanup and abatement efforts. A cleanup and abatement order issued by the state board or a regional board may require the provision of, or payment for, uninterrupted replacement water service to each affected public water supplier or private well owner. This adversarial approach has led to protracted litigation instead of solutions.

A coalition of farmers, landowners and operators attempted a different tactic by joining with state and local regulators in a collaborative approach to the issues. The Salinas Basin Agricultural Stewardship Group, LLC, has entered into a Settlement Agreement with the State Water Resources Control Board and the Central Coast Regional Water Quality Control Board and they have agreed to fund a replacement drinking water plan for Salinas Valley Basin residents whose groundwater supplies are contaminated with unsafe levels of nitrate and to focus efforts on long-term-solutions. In return, local regulators have agreed to not seek individual enforcement for members of the group participating in a solution. Clearly, this is monumental and with the reprieve for growers and landowners from enforcement and the solution of clean water to well users, those affected can focus on long term efforts of funding a solution, instead of merely managing one off enforcement activities.

The Settlement Agreement provides that members contribute funds that will be used to supply clean water for certain well water users whose water is above the limits for nitrogen. The clean water distribution will be managed by local non-profit, the Coalition for Urban/Rural Environmental Stewardship (CURES). The members will pay assessments based on the amount of land that could be potentially affected that they, own, grow on, or ship commodities from. The assessments will also be based on a budget that will incorporate necessary expenditures related to the Settlement Agreement such as the costs of replacement water to Salinas Valley Basin residents that are confirmed eligible.

The Group committed to supply water to certain affected Salinas Basin well users for up to two years and by that time the group hopes to be well on their way to a long term solution. Any long term solution requires funding, as a result, the Group is focused on investigating paths to fund a long term solution through tax revenue or assessments on nitrogen users. Continued improvements in nitrogen management is another long term solution that is essential. The actual use of nitrogen has leveled off and has remained constant for many years now. New science and research is developing improved ways to manage and apply nitrogen to crops. Salinas Valley farmers and landowners have been early adopters of these new methods and remain vigilant in their search for better ways to manage nitrogen when growing crops.

Another important component of the Settlement Agreement is group participation. The more growers and landowners the group has, the more effective the group can be, not only from a funding stand point but from a collective effort to resolve an issue affecting so many participants in the Agriculture industry and the Salinas Valley Basin in general. The benefit to participants is the agreement from regulators to not pursue individual enforcement for group members. As previously discussed, individual enforcement can result in clean up and abatement orders and the requirement that the responsible party supply drinking water to affected users. The costs of defending or complying with these orders can be extremely costly and none of that money ends up being used to really solve the long term problem. The group’s negotiation with the State and local water agencies have led to a form of immunity for growers and landowners and it is truly a notable concept and extremely unique and valuable to growers, landowners and operators.

However, the opportunity to become a member and take advantage of this benefit is not available indefinitely. In attempts to encourage participation, promote a collaborative collective solution and equal cost share, regulators want participants who intend to join to join quickly. The mid- May deadline was recently extended to June 1, 2017 in order to allow for potential members to join. After, the opportunity to join the group passes, regulators can then assess participation and pursue direct individual enforcement on non-participants. Regulators have been in a waiting period up until now on enforcement, however, recently at a meeting at Western Growers, Cris Carrigan, the director of the Office of Enforcement at the State Water Board, confirmed that he will be issuing investigative orders immediately following the passing of the deadline to all those who are not a member who farm or own land over 40 acres in the Salinas Valley Basin. Those watching this process had always anticipated a renewed enforcement effort once the deadline passes, however, this was a promise of renewed enforcement effort straight from Agency representatives.

As Monterey County is moving into the next phase of addressing their nitrate issues other counties are just beginning. The work Monterey County has done on this effort is likely going to serve as a model for other jurisdictions that are struggling with the same challenges. Group members are extremely positive about the future and their ability to work on this issue collectively. Increased Group participation is good for the group, potential responsible parties and the community. The Group will finance and achieve their objectives, participants will receive an enforcement reprieve and the community receives interim and likely long term solutions. This is against the backdrop of Water Board assurances that have made it clear that one way or another they expect all parties to share in the cost of a solution. As June 1, 2017 approaches we have no doubt we will see this assurance reflected in enforcement action for non-members.

To learn more or join SBASG contact Kendra Clark
Kendra@lg-attorneys.com
831.269.7102

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