More Stringent Permit Likely After Court Strikes Down Discharge Permit in Central Valley

November 2012

In a decision of potential significance to the dairy industry, a Court of Appeals in Sacramento recently found that the Central Valley Regional Water Quality Control Board 2007 General Order on dairy discharges violated the State Water Resources Control Board Antidegradation Policy (Resolution No. 68-16).

The permit was challenged by an environmental group arguing that poor drinking water quality in the Central Valley is due to waste from dairy farms.

The Court so ruled because the Board’s Order relied on the use of existing water supply wells to monitor groundwater which the Court found ineffective to accomplish the timely detection of deterioration of water quality as required by the Policy. Further, the Order was faulted because it did not contain remediation measures in the event the monitoring found that degradation had occurred.

The case has been sent back  to the Superior Court with direction to order the Regional Board to comply with the Antidegradation Policy consistent with the opinion of the Appellate Court.

The decision is long and complex, and while an appeal to the Supreme Court may be possible, if this decision does stand it will likely mean that dairies will find themselves responsible for installing more monitoring wells, as well as subjecting themselves to an increase in enforcement actions. This is perhaps not a certain consequence, but it appears to be part of a trend to subject agricultural practices to closer environmental regulatory scrutiny.

Background
In 1968, California adopted a policy – the “Antidegradation Policy” – that requires that existing high quality water (both surface water and groundwater) must be maintained unless certain findings are made that degradation of the water quality is consistent with the maximum benefit to the people of the state, will not unreasonably affect the applicable beneficial uses, and will not result in water quality falling below levels prescribed by water policies. The State Water Resources Control Board, which adopted the Antidegradation Policy, has established statewide minimum standards for discharges of animal waste at confined animal facilities, but regional water boards may impose additional requirements to prevent water quality degradation. When additional requirements are imposed, a regional board must conform to the “antidegradation” policy.

Until 2007, most dairies in the area regulated by the Central Valley Regional Water Quality Control Board (Board) were allowed to operate without waste discharge requirements (WDR) under a conditional waiver of WDRs. But after 2007, the Board issued a WDR (Order No. R5-2007-0035) that limited the discharge of waste from approximately 1600 existing milk cow dairies in the Central Valley. The Order generally prohibits discharges of waste that degrade underlying groundwater, and specifically gives guidance on what that prohibition means for

ponds, drainage, and land application of waste. For example, for ponds, the Order requires dairies to provide an engineering evaluation for any existing waste pond, and to propose and implement remedial measures if groundwater monitoring demonstrates that water percolating down from the pond impacts groundwater. For drainage, the Order requires that precipitation be diverted away from waste areas, and land applications of waste must be consistent with a certified nutrient management plan.

The Legal Challenge
The Asociacion de Gente Unida Por el Agua (AGUA), a nonprofit organization whose goal is to secure effective groundwater protection for drinking water sources, challenged the Order as inconsistent with the Antidegradation Policy. The lower court sided with the Board and upheld the Order, but the Court of Appeal reversed and effectively sent the Order back to the drawing board.

The appellate court first addressed whether the Antidegradation Policy even applied to the Order. The lower court had concluded that the Policy did not apply to the Order because the Order did not involve high quality waters (in other words, the groundwater under most of these dairies was already degraded). The Court of Appeal disagreed, concluding that evidence existed, in at least some areas, to demonstrate that the groundwater quality was better than legal water quality objectives; thus, at least some of the waters affected by the Order were high quality and subject to the Antidegradation Policy.

Second, AGUA argued that the Order’s general language prohibiting further degradation of groundwater was not sufficient to comply with the Antidegradation Policy. The court agreed and noted that the Order failed to explain why no degradation would occur – was it because further discharges of waste were unlikely, or because the discharges would not degrade the groundwater quality? The Order actually does allow for the discharge of waste into groundwater; however, the Order requires that if monitoring wells indicate that groundwater quality is degraded, dairy must implement remedial measures. The court concluded that: (1) the Order allowed historic practices (which have degraded the groundwater quality) to continue, so degradation will continue; and (2) the only provision for detecting groundwater degradation – monitoring wells – was not actually adequate to detect and especially to prevent groundwater degradation. The Order, according to the court, needed to a more effective way of determining whether degradation is occurring.

Fortunately for dairies, the decision’s impact was limited to on-site waste disposal and not off-site waste reuse or disposal.

Conclusion and Implications
The Board will now have to go back and redraft the Order consistent with the court’s opinion.  The revised Order, in order to comply with the Antidegradation Policy as interpreted by the court, will very likely incorporate significantly more onerous monitoring requirements for older dairy operations to bring them into compliance with requirements more in line with the requirements for new dairies. Alternatively, the Board will have to demonstrate through adequate findings and evidence that the dairies are implementing best practicable treatment or control practices notwithstanding additional degradation in order to be consistent with the Policy.