The Otter Project v State of California

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The inland valleys of California’s central coast are intensively farmed for 9 to 10 months of the year. The Otter Project monitors the Salinas Valley by small plane. One grower threatened to shoot the plane down. The Salinas River is to the left and Monterey Bay in the far distance.

Agricultural pollution is exempt from regulation by the federal Clean Water Act but is governed by California’s Water Quality Control Act. In adopting the Water Quality Control Act, the California Legislature declared that “the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.”

On July 9, 2004, the Central Coast Water Quality Control Board adopted first of its kind, but modest, regulation of agriculture called the Ag Order. In a report released on February 1, 2010, Regional Board staff explained that, six years after adoption of the 2004 Ag Order, there was “no direct evidence that water quality [was] improving due to the 2004 Conditional Waiver.” Regional Board staff noted that many water segments throughout the Central Coast region are listed as impaired under section 303(d) of the federal Clean Water Act, nearly all beneficial uses are impacted by agricultural pollution, and these impairments remain “well documented, severe, and widespread.” Regional Board staff concluded that “[i]mmediate and effective action is necessary to improve water quality protection and resolve the widespread and serious impacts on people and aquatic life.”

A new Ag Order was drafted in February 2010 and was immediately attacked by agricultural interests as draconian, punishing, and intrusive over-regulation. The scathing criticism and political pressure brought by agriculture’s lobbyists led to significant weakening by the time the Order was finally adopted in March 2012. Desiring even weaker regulation, organized agricultural interests filed four separate appeals of the Regional Board’s decision to the State Water Resources Control Board. Conservation interests filed an appeal asking for stricter regulation. On October 29, 2013 the State Board issued its decision to further weaken the Ag Order.

Sixty days later, a coalition of five nonprofit organizations and an elderly woman on a fixed income who cannot drink the water from her tap because it is contaminated with agricultural waste, filed a lawsuit in California Superior Court challenging the Ag Order. The coalition contends the Order is so weak it does not comply with State Law. The organizations (Santa Barbara Channelkeeper, The Otter Project, Environmental Justice Coalition for Water, Pacific Coast Federation of Fishermen’s Associations, and California Sportfishing Protection Alliance) represent a broad alliance of conservation, environmental justice, and industry united in protecting clean water. The coalition is led by The Otter Project.

Why it matters to sea otters: Liver tissues from the California sea otter reflect sever contamination from legacy DDT once used as a pesticide on farm fields. DDT breaks down very slowly and tissue levels of DDT in sea otters are at levels that could cause outright death (in severe cases) and immune suppression. Controlling runoff and soil conservation practices will keep the DDT from being carried to the sea and contaminating marine life and otters. Toxic algal blooms triggered by nutrient discharges are killing otters by the scores in recent years. Research has shown that the overwhelming source of the nutrients is excess farm fertilizers. Researchers have stated there has been a 30 to 100 fold increase in the frequency of toxic algal blooms and the blooms are triggered by agricultural runoff. Regulation to curb the over-application of fertilizers is needed.

Case Summary:

Sacramento Superior Court, Case 34-2012-80001324, Judge Frawley
Attorneys for the Plaintiffs: Stanford Environmental Law Clinic, Golden Gate University Environmental Justice Clinic, Salinas Office of California Rural Legal Assistance
Attorneys for the Respondents: Matthew Goldman, Deputy Attorney General, DOJ and Phillip Wyels, Assistant Chief Counsel, SWRCB.
Interveners: Western Growers Association, Ocean Mist Farms, RC Farms, Grower-Shipper Association of Central California, Grower-Shipper Association of Santa Barbara and San Luis Obispo counties, California Farm Bureau Federation.
Lead Counsel for the Interveners: Tess Dunham, Somach Simmons & Dunn (but ag’s Pack-O-Lawyers will all be present)
Causes of Action:

The conditional waiver of waste discharge requirements is not consistent with applicable state or regional water quality control plans and is not in the public interest;
The minimal “representative” monitoring required by the Order cannot and will not adequately measure groundwater and surface water quality conditions or degradation over the duration of the waiver so as to ensure that covered dischargers are meeting water quality standards as required by law;
The Order violates California’s Antidegradation Policy in that the State Board failed to determine that further degradation of high quality surface waters and groundwater is in the public interest. For high quality waters that are waters of the United States, the Order also fails to determine, and based on the evidence in the record could not determine, that “allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.”
In adopting its own Order in place of the Conditional Waiver, the State Board arbitrarily and capriciously excluded highly relevant scientific information that Petitioners submitted during the public review and comment process.
The State Board did not undertake any CEQA review or public disclosure in connection with its adoption of the final Order.

Date Filed: Originally filed November 30, 2012 based on SWRCB allowing delays in regulation. Amended November 27, 2013 to include the listed causes of action.
Hearing was held May 15, 2015 in Sacramento Superior Court. Judge Timothy Frawley heard arguments and to the case “under submission” giving the court 90 days to rule.
WE WIN BIG! August 10, 2015 the court files the ruling specifying the specifying the many deficiencies in the existing Order and ordering the State to write new regulations.