Judge backs ag in water lawsuits

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By Craig W. Anderson

Three environmental groups challenged agricultural waste discharge requirements for the East San Joaquin River watershed in court but all three lawsuits were denied by Steven Gevercer, a Sacramento Superior Court Judge.

The three petitions had challenged the State Water Resources Control Board’s 2018 adoption of revised East San Joaquin waste discharge requirements which had revised agricultural requirements for the watershed, authorized discharges from irrigated lands operations to waters of the state and established a number of requirements such as monitoring and reporting.

California Farm Bureau Senior Counsel Kari Fisher said the court’s decision in these three cases is important for irrigated agriculture throughout the state.

“This is great news,” said SJFB Executive Director Bruce Blodgett. “We’re very pleased with the ruling. Farm Bureau’s always concerned when ag issues come before judges because their rulings so often go against agriculture’s interests.”

“Farm Bureau and other agricultural groups intervened in the litigation on behalf of the state water board,” Fisher said.

East San Joaquin plan unique

Irrigated lands programs have been in place in California in different forms for decades. What made the East San Joaquin waste discharge requirement unique is that it was the first to move from a surface-water-focused program to a surface water and groundwater program with intense monitoring and reporting of all components.

Water law threatened

SJFB Second Vice President Jake Samuel said this victory demonstrates the state water board’s protection for water management and soil issues is there “and ready for legal assaults like this.”

“Water laws are continually threatened and positive results are welcomed because they’re rare,” Blodgett said.

SJFB President David Strecker said, “When it comes to water politics, it’s an ongoing war. Agriculture can’t let its guard down.”

Years to develop program

“Much effort went into looking at non-point source pollution from irrigated lands,” Fisher said. “The East San Joaquin decision by the state took five years, after the regional board spent countless years developing this program.”

The judge’s decision shows the court realized “there was a lot of evidence, expertise and studies that went into supporting the state water board’s decision that a coalition program is appropriate for the irrigated lands program,” said Fisher.

Ag groups intervene

CFBF and other agricultural groups filed motions to intervene in the lawsuits in August 2018; this raised separate legal arguments related to the order.

“This entire legal issue and its outcome is a good sign that the state is allowing the process to work,” said Dave Simpson, chair of SJFB Water Advisory Committee. “Perhaps this outcome will encourage cooler heads to prevail regarding bringing frivolous lawsuits.”

First case

In a case brought by the Environmental Law Foundation, the group claimed that not allowing the public to have access to individual farmer’s data violates the nonpoint-source policy.

“We argued that you don’t need that information to be able to check the validity of the program,” Fisher said. ”Thankfully, the court agreed that the nonpoint-source policy does not require tying names to every data point.”

Other participants in the legal activity agreed that perhaps the biggest win was the court agreeing the water-quality coalitions can keep farmers’ nitrogen applicant data confidential.

Second case

In a second lawsuit, the group Protectores del Agua Suberranea alleged the state water board failed to conduct a proper anti-degradation analysis.

“This pertains to the protection of high-quality waters,” Fisher said. “The court said there are many findings that the Central Valley Regional Water Quality Control Board and state water board did to show that they looked at the impacts of drinking water and found that allowing agriculture to continue was appropriate, as long as it complied with the requirements of the order.”

Third case

In the third suit, Monterey Coastkeeper challenged all the key elements of the nonpoint-source policy. According to Fisher, the judge found significant evidence on record supporting the state water board, noting “they had experts to support the decision that the coalition’s monitoring program for surface water and groundwater is appropriate, that dischargers are having to look at their management practices and effectiveness of those practices.”

“I hope this serves as a precedent for ag-oriented court cases,” said SJFB First Vice President Ken Vogel. “It may also cause those considering an anti-ag lawsuit to have second thoughts.”

“Those being sued had done the work, performed due diligence and followed the established mandates to be in compliance.” Vogel said. “It’s a lesson learned.”