KS&C Update: California Court of Appeal Rejects Environmental Challenges and Maintains Anonymous Reporting of Fertilizers for Central Valley Farmers

On Friday, March 17, 2023, the Third District Court of Appeal rendered a landmark decision regarding the Central Valley’s Irrigated Lands Regulatory Program (ILRP), which is essentially administered by 13 geographically based water quality coalitions and one commodity-based water quality coalition. The decision addresses three cases brought by environmental plaintiffs (Environmental Law Foundation, Protectores Del Agua Subterranea, and Monterey Coastkeeper, et al.) against the State Water Resources Control Board and the Central Valley Regional Water Quality Control Board (collectively, “Water Boards”), challenging adoption of the general waste discharge requirements for growers within the Eastern San Joaquin Watershed (General WDRs). The General WDRs are considered to be precedential for the State’s irrigated lands programs, with a few exceptions. In general, the environmental plaintiffs sought to undermine the value and role of the irrigated lands coalitions in administering the Central Valley’s irrigated lands program by arguing the Water Boards were required by law and policy to impose more restrictive requirements on growers directly.

The East San Joaquin Water Quality Coalition, and other agricultural coalitions/organizations, joined the litigation as Agricultural Intervenors and Respondents in support of the Water Boards ILRP, as expressed in the General WDRs, because it represented a reasonable compromise on issues critically important to Central Valley agriculture. In short, the Court agreed with the Water Boards and the Agricultural Intervenors and rejected all arguments put forward by the environmental plaintiffs.

Most significantly, the Environmental Law Foundation (ELF) wanted the Court to invalidate certain provisions in the ILRP that allow agricultural coalitions to anonymize farm evaluation, nitrogen applied and crop yield information from growers before reporting the information to the Central Valley Water Board. They argued the Water Boards allowance for anonymous reporting of this data was a violation of the State’s Nonpoint Source Policy. However, the Court rejected ELF’s arguments. First, the Court found that “[t]he State Water Board … could and should strike an appropriate balance between transparency, on the one hand, and confidentiality on the other.” Thereby upholding Water Board discretion to build an ILRP that requires the submittal of no more information than is determined necessary to manage the program.

Second, the Court also found that the ILRP, as established through the General WDRs, contains sufficient feedback mechanisms for determining if the program is achieving its purpose. The Court rejected ELF’s arguments that all data needed to be available to the public so the public could know if individual growers were in compliance. In its rejection of ELF’s arguments, the Court found, based on evidence in the record, that “[t]he best that current science can do, so far as the administrative record reveals, is to connect nitrate discharges to groundwater at the township-level.” Thus, the Court upheld the ILRPs township-level approach to determine if irrigated agriculture is impacting groundwater and causing exceedances of the nitrate drinking water standard.

Next, the Court rejected arguments that the ILRP was invalid because it failed to adequately describe management practices and that the surface and groundwater quality management plans are merely “plans to make a plan.” Ultimately, the Court found the ILRP program in its entirety, which is the General WDRs and the planning and reporting activities required by the General WDRs, adequately describes management practices and program elements that must be implemented by growers. Further, the Court found the management plans triggered by the General WDRs are far more substantive than just a “plan to make a plan” and that the approach taken in the IRLP to prepare iterative plans is consistent with the State’s Nonpoint Source Policy.

On other issues, the Court upheld (1) the Water Board’s approval of representative monitoring programs for receiving waters rather than costly end-of-field measurements; and, (2) the Water Boards approach for determining compliance with the State’s Antidegradation Policy was appropriate and consistent with the Policy and this Court’s previous decision in AGUA.

Overall, the Court’s decision supports the Water Boards need to create a reasonable ILRP that balances the need to ensure a reliable food supply and preserving the economic viability of agriculture against the need to protect the waters of the state. It also upholds the role and value of Coalitions in the administration of the ILRP, as relied on by the Water Boards. The Court’s decision has been Certified for Publication, meaning it has precedential value for other irrigated lands programs throughout the State. The agricultural intervenors/respondents were represented by Tess Dunham of Kahn, Soares & Conway, LLP, Jennifer Spaletta of Spaletta Law, and Kari Fischer for the California Farm Bureau Federation.

For any questions regarding the information above, please contact Tess Dunham at tdunham@kscsacramento.com.

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