Congdon, Chelsea H.

Gray, Brian

Young, Terry F.

English

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The Need for a Regional Drainage District in Water Quality Regulation

Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons Water Organizations in a Changing West (Summer Conference, June 14-16) 1993 6-15-1993 The Need for a Regional Drainage District in Water Quality Regulation Chelsea H. Congdon Terry F. Young Brian Gray Follow this and additional works at: https://scholar.law.colorado.edu/water-organizations-in-changing-west  Part of the Environmental Health and Protection Commons, Hydrology Commons, Land Use Law Commons, Natural Resources and Conservation Commons, Natural Resources Management and Policy Commons, State and Local Government Law Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Congdon, Chelsea H.; Young, Terry F.; and Gray, Brian, "The Need for a Regional Drainage District in Water Quality Regulation" (1993). Water Organizations in a Changing West (Summer Conference, June 14-16). https://scholar.law.colorado.edu/water-organizations-in-changing-west/23 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     Chelsea H. Congdon, Terry F. Young & Brian Gray, The Need for a Regional Drainage District in Water Quality Regulation, in WATER ORGANIZATIONS IN A CHANGING WEST (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1993).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  THE NEED FOR A REGIONAL DRAINAGE DISTRICTIN WATER QUALITY REGULATIONChelsea H. CongdonResource AnalystTerry F. Young, Ph.D.Consulting Scientistof theEnvironmental Defenses FundandBrian GrayProfessor of LawHastings College of LawUniversity of California, San FranciscoWater Organisations in the Changing WestNatural Resources Law CenterUniversity of Colorado School of LawJune 14-16, 1993cI. XMTRODUCTIONA. BummersPolicy-makers at the federal and state levels are exploringalternative cost-effective approaches for water quality regulation,particularly options for controlling non-point sources. Whilequestions abound over the appropriate means for controlling non-point sources, there is good reason to focus on regulatory optionsfor controlling irrigation return flows because they can be•addressed through farm-level water management and technologicalimprovements. Whatever the regulatory approach or managementlevel, an essential aspect of any program to regulate agriculturalreturn flows is assigning responsibility for pollution control tothe polluters. This need for accountability can be satisfied withthe designation of an intermediate, regional entity -- a regionaldrainage district -- to coordinate the operation of the programand the activities of individual farmers to meet requirements ofthe regulatory agency. A regional entity also would be well-positioned to identify and respond to needs for regional servicesor activities to accomplish water quality objectives.B. References Environmental Defense Fund, Tradable Discharge Permits: Apromising Tool for the Effective Management of Drainage fromIrrigated Agriculture in the San Joaauin Valley, Terry F.Young, Ph.D., Chelsea H. Congdon (forthcoming).Frederick, Kenneth D., "Controlling Irrigation Return Flows",Resources for the Future, ENR 92-08 (RFF, 1992)."Free Market Environmentalism", Symposium, 15 Harvard Journalof Law and Public Policy 297 (1992).Randall, Alan, "Alternative Institutional Arrangements forControlling Drainage Pollution", in Economics and Management of Water and Drainage in Agriculture, Ariel Dinar and DavidZilberman, eds. (Kluwer Academic Publishers, Boston 1991).San Joaquin Valley Drainage Program, A Management Plan forAgricultural Subsurface Drainage and Related Problems on thewestside San Joaquin Valley. California, Final Report(September 1990).2II. HateeptsA. Overview of the Problem1. Twenty years of water quality regulation under the CwA haveresulted in some significant improvements in surface water quality,primarily through regulation of municipal and industrial pointsource discharges. These gains have not come cheaply; EPAestimates that the total costs of water pollution control by 1990were $42.4 billion (in 1986 dollars annualized at 7 percent)(citedin Frederick,p.1). Yet, there are still a great many surface waterbodies in the United States that do not support designated uses.Because non-point sources are the principal contributors ofnutrients and toxics, there is increasing concern that additionalinvestments in technology-based point-source controls will notproduce commensurate gains in water quality.2. Policy-makers at the federal and state levels are exploringalternative cost-effective approaches for water quality regulation,particularly options for controlling non-point sources. By nature,non-point sources are diffuse and variable, emanating from a largenumber of independent sources and land-use activities, and thustend to be difficult to control. Agricultural runoff is the singlelargest contributor to non-point source pollution, includingnutrient loadings, siltation, sediments, pesticides, toxics andsalinity. Options for controlling many of these different typesOf agricultural runoff are limited, requiring changes in land usepatterns and practices.3. However, irrigation return flows, which transport pesticides,toxic trace elements, salts and other constituents are one subsetof agricultural runoff more conducive to regulation. Unlike othertypes of agricultural activity, irrigation often involves the useof surface, and subsurface, drains and ditches to collect andconvey drainage (i.e., surface and subsurface return flows) to apaint of disposal or recycling. Second, irrigation return flowsare a direct function of water application and water use efficiencyboth of which can be measured. Thus, irrigation return flows canbe addressed through farm-level water management and technological3improvements. In short, while questions abound over theappropriate means for controlling non-point sources generally,there is good reason to focus on regulatory options and managementmeasures for controlling irrigation return flows.B. ReaulatorY Options1. In policy debates, and academic literature, attention is beinggiven to the appropriate control mechanisms for irrigation returnflows. The tendency is to follow the same approach used for pointsources; namely uniform technology standards in the form of BestManagement Practices (BMPs). However, there is growing interest inincentive-based approaches, such as effluent fees, input pricing,tradable discharge permits, that have the potential to be morecost-effective than BMPs in controlling irrigation return flowsbecause they allow cost-sharing and flexibility throughdecentralized decision-making.2. A second issue of debate is the appropriate level ofmanagement for non-point source regulation; i.e., site-specificmanagement plans or basin-wide water quality plans.C. The Role of a Regional Entity in Reaulatina Irrigation ReturnFlows 1. Whatever the regulatory approach or management level, anessential aspect of any program to regulate agricultural returnflows is assigning responsibility for pollution control to thepolluters.2. In establishing this accountability, a regulatory system hasto make sense from the perspective of the regulated community aswell as the regulators. It has to balance the need for centralizedauthority at the state or regional level to ensure compliance withthe efficacy of decentralized, site-specific planning andmanagement.(a) From the perspective of the regulator, the system shouldbe efficient, with managable administrative requirements to ensurecompliance with water quality standards or other environmental4objectives. In the case of irrigated agriculture, the regulatoryagencies are better off with as few regulated entities toadminister and monitor as possible. The traditional approach ofissuing individual discharge permits to farmers is a dauntingregulatory prospect. Similarly, verifying BMPs on individual farmsposes a significant burden.(b) The regulated agricultural community will be more likelyto comply with a program that ensures maximum flexibility to takeaccount of farm-level environmental and economic conditions inachieving pollution control objectives. Farmers also have come toenjoy a tradition of independence and autonomy relative to otherregulated industries, and are more likely to accept regulatoryapproaches which work through existing or familiar institutionsthat they control (i.e., water districts).(c) The design of the regulatory approach also should takeinto account the nature of the pollution problem to be solved. Forexample, irrigation return flows are not confined to the boundariesof a given farm or water district. In some cases, farms withoutdrains or other collection systems contribute to the regional watertable or to subsurface drainage on neighboring farms (throughlateral migration). In other cases, the effective management ofreturn flows may depend on regional collection and control ofreturn flows. In these situations, the regulatory system shouldaccommodate the regional nature of pollution problems due to thenon-exclusive nature of drainage flows and high groundwater tables.3. In this context, a key component in any program to controlirrigation return flows is the creation or designation of anintermediate, regional entity as an accountable "link" tocoordinate the operation of the program and the activities ofindividual farmers with the requirements of the regulatory agency.A regional entity also would be well-positioned to identify andrespond to needs for regional services or activities to accomplishprogram goal.III. AGRICULTURAL DRAINAGE IN THE GRASSLANDS SUBBASIN5A. Drainaae Related Problems in the Grasslands1. Drainage from irrigated agriculture poses one of the mostsignificant environmental problems in the San Joaquin Valley today.On the westside, toxic trace elements (notably selenium, boron,arsenic, molybdenum) and salts occur naturally in the soils, andare mobilized and transported in the subsurface drainage water asa result of irrigation.2. The Grasslands region of the San Joaquin River Basin facesformidable drainage problems. In the past, drainage managementpractices in this 92,000 acre area largely consisted ofagricultural districts and individual farmers relying on dischargeto the San Joaquin River via various man-made and natural channelsas the preferred method of drainage management.3. This practice has resulted in severe degradation not only tolocal riparian and river habitats, but also to the extensive andvaluable regional wetlands.B. $olution to the Problem is Known1. The solution to this problem lies in improved irrigationmanagement at the individual farm level, combined with limitedoperational changes at the water district level. The efficacy ofthis approach has been acknowledged by a broad range of interestsand experts, and is the cornerstone of the recommendations whichemerged from the eight-year, $50 million Federal-State San JoaquinValley Drainage Program (SJVDP) and the California TechnicalCommittee which preceded it. Some improvement has already occurredconcurrent with curtailed water deliveries during the recentdrought.2. Specific drainage management practices have been identifiedwhich can control drainage generation at the source, includingmeasures to: improve management of irrigation systems(e.g.,irrigation scheduling); improve present irrigation practices(e.g., shortening of furrows, use of tailwater return systems) andadopting new irrigation methods. These measures assume the use ofexisting technology and represent the lowest cost drainage6management method available to growers.C. Regulatory Context1. California has adopted numerical water quality standards whichare not being met in Central Valley streams because of thedischarges of subsurface drainage water from agriculturaloperations. Under state law (unlike federal law), the State WaterResources Control Board has the authority to regulate irrigatedagriculture under a permit system.2. The state has adopted an implementation plan for achievingwater quality objectives which includes three basic enforcementoptions: voluntary measures, regional mangement practices,discharge permits. However, the current voluntary program lacksa meaningful mechanism for assessing compliance by individualfarmers or water districts, sidesteps the issue of enforcement, andappears unlikely to be successful in meeting water qualitystandards.3. At the federal level, the 1987 Clean Water Act amendmentsrequire states to target critical areas for non-point sourcecontrol and are encouraged to adopt appropriate BHPs to addressthose problems (section 319).4. Water districts have general authority to provide drainageservices but lack the incentive and clear legal mandate to play adecisive role.5. The regulatory tools and institutions for reducingagricultural drainage pollution in the Grasslands are in place.EDF is investigating the feasibility of using a system of tradabledischarge permits. The allowable pollution load would be assignedto a regional drainage district, which in turn would have authorityover existing water districts that coordinate and finance water anddrainage management programs and facilities at the farm- anddistrict-levels.IV. DEFINITION OF A REGIONAL DRAINAGE DISTRICT A. Authorities 7""N\71. At a minimum, a regional drainage district should have powersand capabilities necessary to: operate and manage drainagefacilities and discharges at a regional level; regulate and enforcedrainage management practices as the entity "accountable" to stateor local regulatory agencies; oversee a system of exchanges amongholders of discharge allowances (districts or farmers), and perhapsact as a "market maker" (a broker) of pollution allowances; monitorand evaluate irrigation practices, drainage management and disposalin the region; provide technical and/or financial assistance tofarmers in defining and meeting drainage management objectives;coordinate activities and management with water delivery schedulesand constraints of the Bureau of Reclamation, and the requirementsof other agencies; levy fees or assessments to enforce regionalobjectives or to construct and operate regional drainagefacilities; impose sanctions (including restrictions on water use,tiered water pricing, effluent fees); contract with other local,state or federal entities.B. Relationship to Existing Entities 1. There are 14 water districts and other types of agencies thatsupply water to farmers within the Grasslands subbasin. Inaddition, there are six drainage districts, which provide drainageservices to their members. Several of the agencies both supplywater to and provide drainage for their members.2. Each of these existing agencies would be members of theregional drainage district and would receive allowances that wouldquantify their respective legal entitlements to dischargepollutants regulated by state and Federal law.V. ROLE OF THE REGIONAL DRAINAGE DISTRICT IN WATER OUALITYMANAGEMENTA. Purpose1. The state, through the regional water quality authority, hasauthority to set loading objectives consistent with water qualitystandards. The regional drainage district would be responsible tothe state ! agency for compliance with the aggregate pollution8discharge limits for the Grasslands subbasin. In turn, the regionaldrainage district would allocate pollution allowance to each of itsmember agencies and would have authority to monitor and enforce(i.e., impose sanctions) the loading limitations established by theallowances.B. Membership1. The regional drainage district would be comprised of existingwater and drainage entities and individual farmers within theGrasslands subbasin.C. Implementatios1. Each member agency would be responsible for complying with thepollution limits set forth in its allowance. The means of achievingrequired loading reductions would be determined by the memberagency in conjunction with member farmers. For example, therequired reduction could be met by reductions in applied water,changes in crop patterns, treatment, or acquisition of additionalallowances from other participating agencies (i.e., members couldtransfer allowances to other agencies to enable thelatter to increase their discharges above levels originallyassigned to them).VI. CONCLUSION	V1. The success of a tradable permit system, or any regulatoryapproach, requires unambiguous lines of authority regarding thelegal status of the regulatory instruments, regional-levelreporting and enforcement responsibility, and farm-levelaccountability.2. In the Grasslands, this need for accountability is bestsatisfied at the regional level through a regional entity (e.g.,Regional Drainage District, independent third party, a joint powersauthority, or a local authority) with authority to oversee,facilitate, and help enforce a regulatory system (includingtradable discharge permits) among water districts, taking into9account the role and jurisdiction of existing agencies in theGrasslands region.(a) The regional drainage district satisfies regulatoryconcerns over ease of administration and minimizes the "informationburden" associated with mandating specific technological controlsand management practices for individual dischargers. This shouldincrease the effectiveness of the state r s water quality enforcementbecause a single regional entity would be accountable to theregulatory agency rather than 20 separate entities under thecurrent system. Member districts would have the incentive to passresponsibility for pollution control on to their individualfarmers.(b) The concerns of the regulated community about flexibilityand autonomy are satisfied by leaving intact the existingrelationships between water districts and member farmers whocontrol the districts and have information to determine the mostappropriate pollution control measures.(c) The regional drainage district enables a watershed orbasin-wide approach consistent with environmental and operationalboundaries of the pollution problem.(d) The proposed regional drainage district provides atemplate for the formation, authorization and incorporation of aregional entity to serve as a blueprint for other agriculturalregions.3. While water quality and water supplies typically are managedseparately -- through different institutions, according todifferent legal and administrative procedures-- issues of qualityand supply are intimately related. In the water quality arena, aregional entity with authority and accountability for controllingirrigation return flows could make explicit the potential foraddressing agriculture-induced water quality problems through water(supply) application and management.10

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The Need for a Regional Drainage District in Water Quality Regulation

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