Legislators Finish First Year of Session

Sept. 22, 2017 – – On August 21st, legislators returned to Sacramento for the final push to the September 15th deadline.  This session, the legislature wrestled with many contentious issues including the passage of the largest infrastructure and tax package in the State’s history, advancing landmark Cap and Trade legislation, implementing a diverse housing package, passing a Parks Bond and grappled with state-sponsored single payer health care.

The year started with legislators introducing 2980 total bills, 1982 in the Assembly and 998 in the Senate.  So far this year, 544 bills have become law – many of those budget related bills and trailer bills.  On the Governor’s desk sit 750 bills ready for action.   Over the next few weeks, we will examine legislation important to the association members.  The first week’s article is about water legislation.

This legislative session has made water a priority.  Long term water conservation, paying for clean drinking water and water rights enforcement have all been leading topics of discussion in the legislature.  While it was a major topic, only a few bills made it through the legislative process for consideration by the Governor.

In a last minute maneuver, AB 313 (Adam Gray) that would establish a Division of Water Rights within the Office of Administrative Hearings, was pushed to the Senate and Assembly Floors. The bill provides that complaints against persons violating provisions of their water diversions would be heard by an administrative law judge in OAH; however, decisions would not be final until accepted by the State Water Resources Control Board. The argument is that the current structure allows the State water Resources Control board to be investigator, judge, jury and prosecutor.  The measure passed both houses and was sent to the governor for his signature.

SB 252 (Bill Dodd) would require new water well permit applicants in critically overdrafted groundwater basins to provide their application information to neighbors. It would require cities and counties overlying critically overdrafted basins to publicly notice new well permit applications and require these cities and counties to make specific new well permit information available to groundwater sustainability agencies. The Alliance worked hard in opposition to this bill in its original state and the bill continued to get amended until it was in its current form only requiring notice of new well permits, providing the opportunity for the ag coalition members to go neutral.  The measure passed both houses and was sent to the governor for his signature.

Parks/Water Bond SB 5

In the final hours of this year’s legislative session, the Legislature took action to protect and restore California’s state and local parks; coastal, forest, and other natural resources; and water quality and supply by passing SB 5 (de León) The California Drought, Water, Parks, Climate, Coastal Protection, and Outdoor Access For All Act of 2018 – a $4 billion resource bond.

Funding provisions in SB 5:

Senator de León’s bill allocates $2.83 billion in funding for parks and natural resources projects including over $1 billion to local parks throughout the state with the majority going to fund new parks in neighborhoods that are park poor.

SB 5 invests in improving California’s resilience to climate change. It includes a broad portfolio of investments that address the challenges to protecting our coastal resources and maintaining healthy natural systems that provide clean air and water.  The measure also allocates $1.27 billion in funding for water related investments including safe drinking water projects, groundwater cleanup and management as well as funding to better protect California communities from the twin threats of drought and flood.

SB 623 (Bill Monning) would establish the Safe and Affordable Drinking Water Fund and ensure that monies in the fund are continuously appropriated to the State Water Resources Control Board, to provide emergency, interim and long-term assistance to community water systems where wells exceed the maximum contaminant levels for arsenic, hexavalent chromium, lead, manganese, MTBE, nitrate and perchlorate. The measure remained in the Assembly Rules Committee and failed to make it to the Assembly floor for a vote. The measure is now a two-year bill.

In anticipation of SB 623 not moving forward this year, AB 747 (Anna Caballero) was amended late last week, authorizing Monterey County, by ordinance, to impose a tax or assessment on the commercial application of fertilizers containing nitrogen within the county. The tax or assessment would fund a short-term program providing replacement drinking water where the maximum containment level exceeds the drinking water standard for nitrate. AB 747 remained in the Senate Rules Committee and failed to make it to the Senate floor for a vote.

The long term water conservation legislation was a topic of debate and discussion all year long.  In August, the authors revealed a final “structure” that became the foundation for the bills.  They continued to be amended well into September.  AB 1668 (Friedman) and SB 606 (Hertzberg/Skinner/Friedman) both became two-year bills when they were held in the Legislature on Sept. 15.  Water agencies split with Met and East Bay MUD supporting, but many individual districts that provide retail water opposed.  This allowed ACWA to also remain opposed.

Gov. Signs Global Greenhouse Funding Bill, Provides $300M for Ag

Sept. 22, 2017 – – The Governor signed two bills this week that will provide significant funding for agriculture to meet its regulatory mandates and incentivize clean farm equipment, clean food processing, manure management and on farm renewable energy opportunities.

AB 109 and AB 134, both budget trailer bills and authored by Assembly Member Ting, establish the expenditures for $1.4 billion Global Greenhouse Gas Reduction Fund funding package and include the specific funding for $250 million for agriculture from that fund, with authorization for another $50 million for ag from other funding sources.  The funding measure provides funding for:

* Reduce Air toxic and criteria pollutants from stationary and mobile sources

* Low-and zero-carbon transportation alternatives

* Sustainable agricultural practices

* Healthy forests and urban greening

* Short-lived climate pollutants

* Climate adaptation and resiliency

* Climate and clean energy research

The funding in these measures implements many of the statutory mandates approved by legislature and is a responsible approach to reduce GHG emissions and criteria pollutants in disadvantaged and low-income communities. The funds enable nutritious food production and value-added food processing to stay in California; and will be matched by farmers and ranchers to create an even larger GHG emission reduction opportunity. This funding will also provide huge steps forward in reducing short-lived climate pollutants by assisting dairy farmers throughout the state in their efforts to comply with SB 1383 (Chapter 395, 2016) with research and projects to reduce methane emissions and implement air pollution reduction plans. Specifically, ag and natural resource reated investments include:

* $99 million for methane reduction programs, including dairy digesters research and development and alternative manure management programs. These investments must comply with siting requirements applied to digester projects awarded in the 2016-17 fiscal year;

* $60 million for energy efficiency funding for agricultural entities, including food processors

* $50 million for agricultural diesel replacement and upgrades including almond harvesting equipment, of which $35 million is from the Alternative and Renewable Fuels and Vehicle Technology Fund and $15 million is from Air Quality Improvement Fund;

* $200 million for healthy forests and fire prevention in State Responsibility areas, of which $5 million shall be used for activities of the California Conservation Corp

* $6 million for renewable energy projects related to agriculture;

* $18 million for low income weatherization for multi-family, solar, and farm worker residential units.

State Water Board Takes on ‘Waters of the State’ Rule

Sept. 12, 2017 – -As the result of federal efforts to revisit the “waters of the United States” rule, the State Water Resources Control Board (State Water Board) released its final draft on “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures).

These new state Procedures consist of four major elements which include the following substantial changes that will impact agriculture and farming and ranching activities:

  1. Wetland Definition: For the first time, the new Procedures includes a statewide wetland definition that would consider an area without any vegetation as a “wetland.” In addition, the definition varies from the federal definition causing application problems.
  2. Waters of the State: California’s definition of “Waters of the State” regulated by the State Water Board, is far broader than “waters of the United States” (WOTUS).
  3. Wetland Delineation: The Procedures are a mandatory permitting program that applies to ALL waters of the state and imposes additional regulatory hurdles and permit requirements on a wide range of industries and activities that includes private development; agricultural operations; infrastructure development, and operations and maintenance (including transportation and water conveyance infrastructure); and conservation/mitigation banking.
  4. Dredge or Fill Activities: The Procedures also apply to ALL discharges of dredge and fill activities, including those that have already received authorization under Clean Water Act (CWA). The Procedures unnecessarily duplicate the federal CWA program, adding little value, while raising the risk that the State Water Board findings and determinations will vary from, or even conflict with findings and determinations made by the U.S. Army Corps of Engineers and/or CA Department of Fish and Wildlife.

The Almond Alliance will be putting in comments on the rule and we encourage you to also consider joining the opposition.

FDA Issues Proposed Rule to Extend Ag Water Requirements

Sept. 12, 2017 – – The FDA today issued a proposed rule that, if finalized, would extend the compliance dates for the agricultural water requirements by an additional two to four years (for produce other than sprouts).  The proposed extension will give the agency time to take another look at the water standards to ensure that they are feasible for farmers in all regions of the country, while protecting public health. The new agricultural water compliance date the FDA is proposing for the largest farms is January 26, 2022. Small farms and very small farms would have until January 26, 2023 and January 26, 2024, respectively. The proposed rule is open for public comment for 60 days.

Water Testing Methods:  In a recent letter to Western Growers, the FDA listed eight additional testing methods from the U.S. Environmental Protection Agency and other public health entities that it has determined are equivalent to the method incorporated by reference (Method 1603) in the Produce Safety Rule.  Numerous stakeholders have asked for the FDA to recognize other methods that are appropriate for use in agricultural water testing.  The FDA has posted the list of methods it has determined to be equivalent on its website, and intends to add other methods to the list as they are identified.

Produce Farm Inspections:   Large farming operations will still be expected to meet all produce safety requirements set by the rule for produce other than sprouts, except those related to agricultural water, by the original January 26, 2018 compliance date. However, Dr. Gottlieb announced that inspections to assess compliance with the non-water requirements of the Produce Safety Rule for produce other than sprouts will not begin until 2019. The FDA and its state partners will use this time to provide more education, training and outreach on the new requirements.  In particular, states — in conjunction with NASDA and the FDA — will expand On-Farm Readiness Reviews, already piloted in six states, in which a team of state officials, cooperative extension agents, and FDA produce experts provide farmers with an assessment of their “readiness” to meet the new requirements. State points of contact will receive further information on the change this week in the form of letters from the FDA’s Office of Regulatory Affairs and calls are being scheduled to answer any questions.

FDA Provides Opportunity to Address FSMA Concerns

Sept. 12, 2017 – – As part of the implementation of President Trump’s Executive Order 13771 entitled, ‘‘Reducing Regulation and Controlling Regulatory Costs,’’ and Executive Order 13777 entitled, ‘‘Enforcing the Regulatory Reform Agenda,’’ the Food and Drug Administration (FDA) is seeking comments and information from interested parties to help FDA identify existing regulations and related paperwork requirements that could be modified, repealed, or replaced, consistent with the law, to achieve meaningful burden reduction while allowing FDA to achieve their public health mission and fulfill statutory obligations.

Questions that FDA are seeking comment on include:

  1. Is the regulation still current, or is it outdated or unnecessary in some way?
  2. Has the regulation been superseded or made irrelevant or unenforceable by statute, another FDA regulation or guidance, a regulation by another Federal Agency, or controlling legal authority?
  3. Is this regulation duplicative of requirements in other FDA regulations or other Federal Agency regulations?
  4. Have regulated entities had difficulties complying with the regulation?
  5. Does the regulation impose requirements that are also provided for in voluntary or consensus standards or guidance by third party organizations?
  6. Do the entities covered by these standards or guidance take steps to meet the standards and to document that they meet the standards?
  7. Does the regulation contain redundant, outdated, or unnecessary collections of information or retention of records, e.g., reporting, record-keeping, or labeling requirements?
  8. Could the goal of the regulation be achieved by less costly means that would provide the same level of public health protection?
  9. What factors should FDA consider in selecting and prioritizing regulations and reporting requirements for reform?

This is an opportunity for the almond and food industry to address areas of concern as it relates to implementation of the Food Safety Modernization Act Rules. Areas where there are opportunities to provide input on issues of major concern as it relates to FSMA include:

  1. The definition of Farm, particularly as it relates to almond huller/shellers.
  2. A mechanism for getting produce on and off the rarely consumed raw list. Produce on the rarely consumed raw list are exempt from the Produce Safety Rule, however, the list does not allow for items to be added or removed; it is a onetime list. Almonds are currently not on the list based on a limited data set that does not account for treatment under the industry pasteurization program.
  3. Challenges with written assurances to comply with the commercial processing exemption, in particular as it relates to almonds that are exported.
  4. Given that the almond industry has a pasteurization program in place that is administered by the Federal Marketing Order under the auspices of USDA, a federal agency, there are some opportunities to address redundancies for entities meeting voluntary standards that provide equivalent public health protection.

The Almond Alliance will be working closely with the Almond Board to develop comments to address areas that FDA should consider for reform. The comments are due December 7, 2017. If you have any suggestions to include in our comments please contact Kelly Covello at kcovello@almondalliance.org

Clean Water Bill Becomes a two-year bill

Sept. 8, 2017 – -Legislation that will create a “Clean Water Fund” by assessing retail water users and fertilizers has been moved to the Rules Committee and made a two-year bill.  Even with the fees, some in ag supported the legislation because it would provide clean drinking water to many of the communities we serve as well as provide enforcement protection from the State Water Board against farmers adding nitrogen to lands overlying nitrate-heavy aquifers.

SB 623 is a bi-partisan effort to help provide safe and reliable drinking water to residents in disadvantaged communities throughout California. Specifically SB 623 aims to do two things:

Raises $140 million annually to clean-up contaminated water sources in hundreds of disadvantaged communities – many of which are in the Central Valley – – with $30 million from a fertilizer assessment, dairy and livestock fees, and $110 million from a fee on retail water hookups.

Assist over 300 small water systems upgrade their water facilities to provide safe and reliable drinking water for their residents. Over 100 of these small water systems serve disadvantaged residents.

SB 623 is supported by a diverse coalition including community health, environmental, and agricultural groups who are coming together to make short and long-term drinking water solutions available to more than 1 million low-income Californians who do not have access to safe and affordable drinking water. Opposition includes the Association of California Water Agencies, tax groups and a few business interests.