Conditional ag waiver: What is it?

The Central Coast is one of nine regions in the state set up to regulate waste discharges from irrigated lands. Essentially, it waives growers of their obligation to hold waste discharge permits. The waiver is good for five years and is “conditional,” meaning that it can be revoked at any time.

Irrigated agriculture is exempt from regulation through the National Pollutant Discharge Elimination System (NPDES) permit program of the federal Clean Water Act; however, they are not exempt from state law. California state law requires anyone who is discharging waste which could impact the quality of the waters of the state to submit a Report of Waste Discharge. The purpose of the program is to protect the beneficial uses of the waters of California.

The regional board may waive discharge requirements if it is deemed in the public interest. However, waivers must be conditional and may be terminated at any time. Since 1983, irrigated agricultural lands — due to its non-point source-type discharges — have been operating under blanket waivers which did not require monitoring or reporting. According to RWQCB staff reports, agriculture had been waived because it was more concerned about point source discharges and cleanups from leaks and spills, and because “little was known about the potential impacts of irrigation tail water and other runoff or the magnitude of groundwater impacts from the use of inorganic fertilizers.”

Amended in 1987

In 1987, the Clean Water Act was amended to address non-point source pollution and the California adopted its Non-point Source (NPS) Program in 1988. Since that time, the regional board has focused its regulatory efforts regarding NPS pollution in agriculture by “encouraging proactive efforts to address water quality concerns” through cooperative partnerships and self-compliance through promotion of water quality management planning short courses, and by granting funds for educational outreach. The NPS program recognizes the difficulty of regulating large numbers of individual dischargers and identifies waivers as an acceptable regulatory tool.

In 1999, the California water code was amended causing all existing waste discharge waivers to expire on Jan. 1, 2003. According to Jones, each regional board had until January 2003 to review its waivers and “do something about them.” In July 2004, the Region 3 board decided that water quality within its agricultural regions had deteriorated since 1983 due to pesticide and nutrient constituents, making it urgent to adopt new requirements for irrigated operations. On July 9, 2004, the Central Coast RWQCB adopted the conditional waiver of waste discharge requirements for discharges from irrigated lands and began implementing the process.

In developing the waiver, Jones said the regional board had three primary goals: 1) keep costs reasonable; 2) build upon existing programs and not undermine what they were doing; and 3) get all growers involved.

“There are a lot of growers who are already protecting water quality just as part of their everyday farming, not as any part of a plan,” Jones said. “It's great when you have 15-20 percent of farmers proactive, but that still leaves a huge number that need to participate.

According to Kay Mercer, the Agricultural Watershed Coalition southern management unit coordinator, the Region 3 Board has developed an ag waiver program that should be amenable to growers. She said it is easier for them to comply and less expensive than a permit.

“Under the Conditional Ag Waiver, growers are asked to work to ensure that discharges do not cause or contribute to water quality impairment by implementing ‘Best Management Practices’” (BMPs) Mercer said. “Subsequently, water quality monitoring will measure the effectiveness of the BMPs. Growers can participate in a large-scale, region-wide cooperative monitoring program or an individual farm water discharge monitoring program.”

Mercer has been holding workshops around the region to educate growers about the process and is also involved with the cooperative monitoring program.

Anyone who owns, operates or manages irrigated lands used to produce commercial crops, including but not limited to, row crops, vineyards, field and tree crops, commercial nurseries, nursery stock production and greenhouse operations with soil floors that are not currently operated under Waste Discharge Requirements.

What is required?

Changes to the California Water Code regarding waivers included several new requirements. Waivers now must be: conditional, reviewed every five years, enforced, and include monitoring. These new requirements meant that the old, less stringent waivers needed to be replaced.

To meet the state's goals, the Central Coast region developed a two-tiered plan. In order to be covered by the waiver, dischargers — defined as “owners and/or operators of irrigated crop lands” — must apply to enroll to be covered by the waiver.

How to enroll

To enroll, applicants must submit along with a completed Notice of Intent (NOI):

  1. Map of operation (should be the same one submitted to the County Agricultural Commissioner for Pesticide Use Reporting, or equivalent.)

  2. Completed management practice checklist (a self-assessment form.)

  3. Certificates of attendance at Regional board-approved farm water quality education courses, if applicable.

  4. A statement of Farm Water Quality Plan completion, if applicable.

  5. Election for cooperative or individual monitoring.

The NOI is a one-page form available from the Regional board both online and by hard copy. It may be completed online or completed and mailed to the regional board office. It is the first step in completing the waiver requirements and is the document that was due to be filed by Jan. 1, 2005. The NOI indicates a farm's intent to meet the conditions of the waiver and be covered by it and may be filed by “either” the owner or operator although both are held responsible. The NOI provides check-boxes where applicants may indicate whether they've completed their education, farm plan and their preference for monitoring type.

Tiers 1 and 2

Growers who have satisfied all of the above requirements are in compliance and covered under Tier 1 of the new waiver. They are rewarded for their timely cooperation with reduced reporting requirements.

Growers who have satisfied some, but not all of the requirements are in Tier 2. In reality, to be in complete compliance, growers would have to have satisfied all of the Tier 1 requirements by Jan. 1, 2005; however, the Tier 2 level was designed to give growers up to three years to complete all of the necessary continuing education requirements. Once a grower completes all Tier 1 requirements, they must submit a revised NOI with “revised” clearly written across the top. They will then be placed in Tier 1 where they will remain for the remainder of the five-year cycle.

Growers who have not completed any of the requirements are in violation of their waiver requirements. Legally, the regional board may assess fines for non-compliance; however, Jones said this regulatory action will not be taken unless absolutely necessary. Additionally, enforcement will be difficult until they've processed all of the applications and determined who hasn't filed.

“Potentially, we can fine up to $1,000 per day. However, we'll really only be looking at those who know and knowingly don't file and that's what we're going to enforce,” Jones said.

Growers and operators are required to complete 15 units of regional board-approved continuing education classes. Again, the regional board tried to make use of existing programs such as the University of California Cooperative Extension's Farm Water Quality short course, and several other agencies have developed classes to help growers and operators meet their education requirements.

The short course offered by UCCE in cooperation with the USDA National Resource Conservation Service is currently the only program available throughout the region that allows dischargers to complete all 15 required units in one complete course. Growers completing the course also come away with a completed Farm Plan.

The UCCE/NRCS courses are available for vegetables, strawberries and cane berries, orchards and vineyards, and floriculture and nursery. Course schedules are available online at

Ensuring the continued availability of the UCCE/NRCS course is a priority of the regional board; however, many are concerned that there will not be enough classes offered to adequately allow all growers to complete their 15 units within the three-year period. Julie Fallon, who administers the program for the UCCE, said they have increased the number of courses to about two each month but it's unlikely that they'll be able to offer them more often. The classes are usually 3 to 5 days in length, held at varying locations across the eight-county region, accommodate 50 people and usually fill-up quickly.

The regional board has approved several other classes which will satisfy some of the education requirements and a list of those are available on the Central Coast RWQCB Web site at The regional board continues to certifying other courses and organizations interested in offering classes for certification should contact the Regional board.

‘Farm Plan’

Another requirement is that operations complete a Farm Water Quality Management Plan or “Farm Plan.” It must contain, at a minimum, current practices or those that will be implemented to protect water quality and a schedule for implementation. The Farm Plans must address four components: irrigation management, pesticide management, nutrient management and erosion control. According to the regional board, lists of water quality protection practices are available from several sources. The UCCE has a Farm Plan template available for $5, which can be downloaded from its Web site.

According to Jones, growers may develop their own farm plans or have someone do it for them as long as it addresses the four components. She said the UCCE plan is a good model and contains the information the board will be looking for should they need to inspect a grower's plan. Should a grower decide to develop his/her own plan, Jones advised that they should take it seriously and make sure it's complete, but said they won't be penalized if it isn't perfect the first time.

“We're not going to try to do an enforcement case if their (Farm) plan isn't adequate,” Jones said. “If it's deficient we'll help them work on approving it.”

Other agencies have, or are developing programs to assist growers with their farm plans. Currently, several regional Farm Bureaus offers Farm Plan Completion classes and schedules are available on the regional board Web site.


In some cases, the regional board has approved alternatives to completing a Farm Plan. One example is the Central Coast Vineyard Team's Positive Points System, which has been deemed acceptable in lieu of a Farm Plan. Farmers and/or operators who have already completed a Positive Points System self-assessment for their vineyard have fulfilled its Farm Plan requirement. Growers may complete the plan on their own, or attend a CCVT class which helps growers complete the PPS and qualifies them for two hours continuing education credit. For more information about the CCVT class, visit or call (805) 369-2288.

Once completed, Farm Plans are to be kept onsite at the farming operation and be available upon request by the regional board staff for onsite inspections. The waiver only requires growers to provide copies upon request and they will receive advance notice of inspections. Growers or their representatives can participate in the inspection.

One of the biggest and perhaps most contentious issues of the new conditional ag waiver is the monitoring requirement. Dischargers must either monitor individually or participate in a cooperative monitoring program. According to Jones, the goal of monitoring is to show whether the waiver program is working. However, as water quality problems are identified, the monitoring data will also be used help growers improve water quality.

“When the law changed it required monitoring,” Jones said. “The regional board staff drafted the cooperative monitoring program because it felt that it was probably the most cost-effective approach to meet the legal requirements.”

By law, individuals are entitled to do their own monitoring; however, Jones said it would be more expensive for the grower and a management nightmare for the regional board.

“The idea behind cooperative monitoring is that rather than having 2,000 plus individuals out there trying to monitor their own water quality, we would have a program that allows them to pool resources and lower their costs by monitoring a fixed set of sites in streams throughout the ag areas. We also tried to figure out what's a good way to get the information to show the waiver's working and not spend unlimited amounts of money because you could monitor forever,” she said.


The Central Coast Water Quality Preservation Inc. (CCWQP) is the newly-formed non-profit agency that will conduct the cooperative monitoring program. The agency was formed by the ag community working in cooperation with the Region 3 AG Committee with representation from each county throughout region.

Over the past few months, the CCWQP has been applying for grants and developing the guidelines for the monitoring program. The CCWQP also recently hired Dennis Dickerson of San Diego-based McGuire Inc. as executive director and elected its executive board.

Mercer who is now also working as the CCWQP southern technical program manager said she is hopeful that settlement funds and grant monies will make the cooperative monitoring free or at least inexpensive for growers, for the first year.

“We are still assessing what the Cooperative Monitoring Program (CMP) will cost because we don't know how many growers, landowners or acres are enrolled right now,” Mercer said. “We're also waiting to hear from the state about the Ag Water Quality grant money. Other factors such as crop grown, type of irrigation system, and distance from impacted waters should also be considered.”

Under the CMP, 50 sites will be tested four times each year, but only 25 sites will be tested in 2005. Jones said the regional board estimated that cooperative monitoring will cost about $1 million per year for all 50 sites but that the actual costs will be up to the CCWQP.

“When you look at the total figure, people get shell-shocked,” Jones said. “But it's spread over seven counties and 400,000 acres so if you look at it that way, it's no so bad.”

Based on these estimates, if growers were to completely foot the bill for cooperative monitoring, they'd probably have to pay about $2.50 per acre. But that amount is likely to be reduced since the CCWQP has received $872,321 in settlement funds from the regional board to be used for the CMP and has applied for $2.5 million in state ag water grants.

Mercer said individual monitoring could cost about $10,000 for the first ranch and efforts are being made to more accurately calculate the actual cost.

The $10,000 estimate “includes the cost of the Quality Assurance Program (QAPP) and the cost for two monitoring sites on the first ranch” (which is what is required by the RWQCB), she said. “You can calculate that a grower with multiple ranches could, conceivably, have a monitoring program that is larger than the region-wide monitoring program.”

Additionally, the waiver requires that individual monitoring results be made available to the public.

Mercer added that CMP data must be more comprehensive than existing data and in her opinion, is the best option for growers and will provide the most accurate, complete information.

“When it comes to environmental analysis, it's all about defensibility. It doesn't matter who it is, it needs to be defensible,” Mercer said.

In 2005, the 25 testing sites are in two areas: the Lower Salinas/Elkhorn Slough and Santa Maria/Oso Flaco watersheds. There will be 50 sites tested in 2006. According to Jones, these areas were chosen because they knew that problems already existed in these areas and because the settlement funds were available for them.


For detailed information regarding tier requirements, contact:

Region 3 Ag Waiver Requirements and Class Schedules

Central Coast Regional Water Quality Control Board (805) 542-4646 (Alison Jones)

Cooperative Monitoring Program

Central Coast Water Quality Preservation, Inc.

Kay Mercer, Southern Technical Program Manager (805) 208-8039 or [email protected] Laura Mills, Northern Technical Program Manager (831) 395-8008.

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