Central Coast growers are breathing a sigh of relief after a state agency rejected a regulatory cap on fertilizer applications. Industry groups had raised alarms for years over the potential economic fallout for small farmers and rural communities from the controversial regulation known as Ag Order 4.0.

Running up against a court-mandated deadline, the Central Coast Regional Water Quality Control Board approved the agricultural order in 2021. Among the many provisions, it limited nitrogen applications to 50 pounds per acre annually, requiring growers to calculate how much nitrogen was applied and removed. The goal was to prevent nitrates from potentially leeching into the groundwater and contaminating drinking water supplies for socially disadvantaged communities.

At the time, Tess Dunham, a water quality attorney for Kahn, Soares & Conway, argued the regulation still fell short of providing the essential elements to be successful. After reviewing a petition from a coalition of agricultural stakeholders, the State Water Resources Control Board recently agreed.

The state agency has issued a remand order to the regional board, directing it to remove the cap.

“We felt that we got a lot out of what we had in the petition. Of course, we didn't get everything,” Monterey County Farm Bureau Executive Director Norm Groot told Agri-Pulse. “Everyone here is pretty relieved that the targets and limits are no longer enforceable.”

Complex monitoring and reporting requirements have already forced growers to rely on third-party consultants to remain in compliance with water quality standards. According to Groot, the third-party program takes a more holistic approach on a watershed basis rather than selectively focusing on individual farms. He criticized the order for kicking farmers out of the third-party program if a three-year average pushed them over the limits and called that counterproductive to the order’s success.

The remand order allows the regional board to still focus on limiting nitrogen inputs, but from an educational approach rather than enforcement standpoint. Groot agreed on the need to continue collecting data on the total nitrogen applied to gather a broader perspective on the relationships to both groundwater basins and surface water discharges and to find opportunities to improve.

Dunham, however, believes that the regional board should have no role in examining nitrogen applications for any purpose, reasoning that doing so would assume applications impact groundwater—despite no data indicating a connection.

Norm GrootNorm Groot, Monterey County Farm Bureau 

“How much fertilizer in the gross form that a grower applies, without any consideration of any other management factors, is unrelated to that,” she said at a recent state water board hearing on the petition. “We've always been concerned with the precedent that even the suggestion the water boards have the authority to have some control over the amount of nitrogen that a grower applies.”

Groot and others felt that both boards overlooked the potential economic impacts of the nitrogen limits. Kari Fischer, an attorney for the California Farm Bureau, told the state board that Ag Order 4.0 did not consider any economics and understated the impact to growers, assuming a 6% cost increase was small, “when actually those are quite large amounts when you look at the entire economic operation and industry on the Central Coast.”

Before the regional board approved the order, the coalition had commissioned a study that found the estimates were grossly underestimated. Tasks appraised at just $45 per hour would actually cost $120 or more, said Fischer. According to the study, the regulation would reduce the value of lettuce production in Monterey County by $700 million annually and slash as many as 11,000 jobs.

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“That was largely ignored both by the regional water board and now the state water board,” said Groot. “That has to be part of the equation when you do any type of new regulatory process.”

The impacts would be amplified with small growers, according to Sarah Lopez, executive director of Central Coast Water Quality Preservation, Inc., a third-party company that handles compliance for nearly all the growers under the order.

About a third of that membership is growers who farm less than 10 acres, another third farm up to 49 acres and another significant percentage farm up to 99 acres, explained Lopez. The farms often have three plantings a year with as many as 30 different vegetables in the same field. The same line of drip tape might supply both water and fertilizer to half a row of Bok choy and half a row of lettuce.

Lopez described the heavy lift of walking small growers through the reporting process. She noted that 70% of the growers who have still not submitted their total nitrogen applied reports for 2022 are non-native English speakers, and nearly all grow a diverse mix of vegetables. She recently hosted a Spanish-only workshop for farmworkers who moonlight as farmers in hopes of transitioning to ownership one day. She found that “nobody has any bandwidth” to break down the nitrogen applied with any specificity and many turn to guessing, supplying inaccurate data for the board to rely on.

“The anecdote to that is more education and more education targeted with appropriate language services,” responded state water board chair Dorene D’Adamo.

Drinking water remains an issue as well. Dunham had raised alarms over language in the order suggesting the regional board had the authority to require growers to shoulder the cost of supplying bottled water to communities with unsafe drinking water. The state water board, however, clarified in its remand order that Ag Order 4.0 should allow for an alternative compliance pathway through an agreement with the agricultural community.

Groot has had initial discussions with the regional board to craft a replacement water program that would include incentives for farmers to participate.

“The point here is that it can't be mandated by the regional water board through the Irrigated Lands Program,” he said. “It is a negotiation process, and hopefully we can come out successful on both sides.”

Environmental justice advocates, on the other hand, were not satisfied with the remand order. Chelsea Tu, executive director of Monterey Waterkeeper, argued that growers are polluting the drinking water and must pay for the replacement program. She noted that one out of four on-farm domestic wells in the region exceed the safe drinking water standard for nitrate contamination and some communities have been waiting decades for a solution. Without enforcement and an aggressive compliance timeline, the hardest hit areas may not be cleaned up for 115 years, she claimed, pushing instead for full compliance by 2041.

“When are we going to start seeing action over just statements about racial equality?” added Sean Bothwell, executive director for the California Coastkeeper Alliance.

The next step in the state water board’s review process is to host a panel of experts to review Ag Order 4.0. Groot hopes that discussion is not heavily weighted toward social justice or environmental concerns. He is pushing to incorporate active farmers—“boots on the ground”—and have real-world conversations based in science and agronomics, “and not just academics or theoretical discussions.”

Groot is closely watching the new executive director for the Central Coast regional board as he moves forward with the remand order, knowing the board could revisit the nitrogen caps in a couple years.

“We're hoping with this remand, they look at this more in a longer-term and much more global perspective, rather than then setting artificial limits or times when things have to be complied with,” he said, adding that he was relieved the state board supported agriculture in its decision. “This validates that we have to have a balance in the working environment, that food production is important. Yes, it does have some impacts. But we have to try and minimize those impacts as much as we can through a concerted effort that's supported by science.”

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