Chapter 12. Case Study 7. Data transparency, digital technologies and California’s water quality coalitions

The objective of this case study is to give a practical example of how data regulations and coalition-based water quality monitoring regimes can be used to underpin collective governance mechanisms to address nonpoint source environmental impacts from agriculture. These mechanisms strike a balance between lessening information asymmetries and gaps on the one hand, and protecting sensitive information and reducing regulatory burden on the other.

    

Context: The policy environment

California agriculture is extremely diverse, producing more than 400 commodities and spanning a wide array of growing conditions from northern to southern California. The state produces nearly half of US-grown fruits, nuts and vegetables, as well as exporting many agricultural products to markets worldwide. However, water discharges from agricultural operations (including irrigation runoff, flows from tile drains, and storm water runoff) can affect water quality by transporting pollutants, including pesticides, sediment, nutrients, salts (e.g. selenium and boron), pathogens, and heavy metals, from cultivated fields into surface waters. Many surface water bodies are impaired because of pollutants from agricultural sources. Groundwater bodies have suffered pesticide, nitrate, and salt contamination.

To prevent agricultural discharges from impairing receiving waters, the Californian Irrigated Lands Regulatory Program (ILRP) regulates nonpoint source discharges from irrigated agricultural lands. This is done by issuing waste discharge requirements (WDRs) or conditional waivers of WDRs (Conditional Waivers) to growers or groups of growers called Coalitions. Both WDRs and Conditional Waivers contain conditions requiring water quality monitoring of receiving waters and corrective actions when impairments are found. Further conditions require monitoring of agricultural runoff and impose reporting requirements – for example reporting on management practice implementation and nutrient application data (California Water Board, 2018). Enrolment in the ILRP is around 40 000 growers, or 6 million acres of agricultural working lands.1

Sections 13263 and 13241 of the Californian Water Code state that “economic considerations” is one of the factors a regional water board must take into account in issuing waste discharge requirements. Additionally, section 13267 requires the regional water board to ensure that “the burden, including costs, of [monitoring] reports shall bear a reasonable relationship to the need for the report and the benefits to be obtained from the reports.” (State Water Board, 2018, p. 10[1])

Refining data transparency requirements and use of digital technologies to deliver better outcomes for agricultural producers and water quality

The problems

The California State Water Resources Control Board’s (State Water Board) Policy for the Implementation and Enforcement of the Nonpoint Source Pollution Control Program2 (Nonpoint Source Policy) directs that any nonpoint source programme incorporate monitoring and reporting. The Nonpoint Source Policy “does not require any particular framework for monitoring and does not necessarily even require comprehensive ambient monitoring. But the nonpoint source implementation programme must ‘include sufficient feedback mechanisms so that the [regional water board], dischargers, and the public can determine whether the programme is achieving its stated purpose(s), or whether additional or different [management practices] or other actions are required”.

This requirement to undertake monitoring of agricultural runoff and receiving water bodies and reporting constitutes an effort to reduce information gaps about the quality of these waters, as well as the impact of agriculture on water quality. This data is crucial for the California Water Boards to achieve their mission “to preserve, enhance, and restore the quality of California's water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use, for the benefit of present and future generations” (State Water Board, n.d.[2]).

However, these requirements are controversial to the agricultural community because they are costly to comply with and result in lessening of information asymmetries that producers may have incentive to maintain. Such incentive may occur for several reasons. One reason is that certain high-risk operations are subject to more rigorous management practices to minimise pollutants found in agricultural runoff and percolating water are required to address toxicity in receiving waters and nitrate associated with the over-application of fertilisers that has contaminated drinking water; since these additional requirements are costly, a producer may wish to avoid being identified as one of these high-risk operations. Another reason is that reporting on management practices risks disclosure of information that producers consider to be commercially sensitive. Finally, producers may be concerned that improved data on agricultural water quality impacts could be used to tighten regulations in future, resulting in increased regulatory burden and potentially negatively impacting the viability of agriculture in the region.

Therefore, the challenge for California Water Boards, who acknowledge the “critical importance” of agriculture in the region (Karkoski, 2012[3]), is to balance “the need for transparency and measurable benchmarks” and maintaining acceptable regulatory outcomes on the one hand with ensuring regulatory burden is minimised and respecting “the need for the agricultural community to protect trade secrets and other sensitive information” on the other (State Water Board, 2018[1]). This challenge is not unique to this context; it arises from the characteristics of existing agricultural production, which uses agricultural inputs (e.g. fertiliser and pesticides) and commercially sensitive information (e.g. fertiliser application regimes) to produce valuable outputs, but which also produce environmental externalities that are costly to address.

The solutions

The Water Boards have devised a monitoring and reporting regime which aims to provide data for the required “sufficient feedback mechanisms”, while minimising regulatory burden and risks for producers related to information disclosure. This case study uses the example of the monitoring and reporting regime of the Central Valley Water Board, one of nine regional water quality control boards. The regional water boards operate semi-autonomously and are divided by watershed. The State Water Board works with the regional water boards and sets state-wide standards and policies. The jurisdiction of the Central Valley Water Board covers over seven million acres of irrigated agricultural land (Wadhwani, 2018[4]). The Central Valley Water Board’s regime comprises:3

• The use of water quality coalitions to act as intermediaries between growers and the regulator (in this case, the East San Joaquin Water Quality Coalition4).

• Data transparency requirements which incentivise growers to participate in the coalitions.5

• A representative approach to water quality monitoring (Box 13.1).

• Mandated and voluntary use of digital tools, including e-reporting and publicly-accessible data repositories,6 to minimise costs of data collection and reporting requirements.

Box 12.1. The representative approach to water quality monitoring in Eastern San Joaquin

The Eastern San Joaquin Agricultural General WDRs do not require water quality monitoring of discharges coming off the farms, but require monitoring in the receiving waters. The watershed is divided into six zones. Two “core” sites and several “represented” sites are designated in each zone. According to the General WDRs, the represented sites are sites with characteris

tics similar to the core sites such that a water quality issue detected at the core site may be an indication of a similar issue at a represented site. The two core sites are continuously monitored on an alternating basis. An exceedance at a core site triggers the requirement to monitor at the represented sites within the same zone…

[The State Water Board] presented the question of the appropriate surface water quality monitoring framework to the Agricultural Expert Panel. The Agricultural Expert Panel agreed [in its final report, released in 2014] that monitoring of surface water discharges from individual fields or farms is costly and complicated, as well as subject to serious challenges in identifying the appropriate timing for periodic sampling and coordinating with shifting field crew operations, pesticide applications, and sediment runoff events, and with schedules for lab operations…[The State Water Board] continue[s] to believe that receiving water monitoring is generally preferable to field-specific surface water discharge monitoring in irrigated lands regulatory programmes for the reasons articulated by us in Order WQ-2013-0101 and by the Agricultural Expert Panel. Receiving water monitoring is a reliable and effective methodology for identifying water quality issues without resorting to more costly end-of-field measurements.

Source: State Water Board (2018, pp. 53-57[1]).

Recent review of monitoring and reporting regime

In February 2018, the State Water Board adopted Order WQ 2018-0002, which amends and updates the Waste Discharge Requirements (WDRs) General Order No. R5-2012-0116, the WDR for growers within the Eastern San Joaquin River Watershed that are Members of a Third-Party Group. The final Order was the result of an extensive consultation process that commenced with the release of a first draft for consultation in February 2016.

Order WQ 2018-0002 “directs a number of revisions, primarily to add greater specificity and transparency in reporting of management practice implementation, to require reporting of certain nitrogen application-related data needed for management of excess nitrogen use, and to expand the surface water and groundwater quality monitoring programmes of the General WDRs (State Water Board, 2018, p. 1[1]).

The review process covered many complex and specific concerns raised by stakeholders and State Water Board staff. However, at the heart of the review is the broad question whether the existing regime strikes the appropriate balance between providing sufficient data to evaluate the ILRP and ensuring that the burden of monitoring regime for growers satisfies the test of bearing a reasonable relationship to the need for and benefit of monitoring.

In theory, various institutional, legal or technological factors could contribute to a decision to change the existing regime, for example:

• Evaluation of existing data provided by monitoring may lead to the conclusion that the existing monitoring regime is inadequate in some respect(s), thereby motivating change to ensure provision of sufficient information to effectively evaluate the programme.

• Changes in the cost of the monitoring regime due to technological innovation (e.g. lower cost water quality sensors, new digital technologies for recording, sharing or analysing data) could reduce the regulatory burden of monitoring for growers, leading to a re-balancing of monitoring requirements.

• Methodological innovations (i.e. innovation in approaches to measuring nitrate losses from agriculture) could lead to a change in the monitoring approach towards using new and improved methods.

• Evaluation of the existing third party-based mechanism may reveal unintended consequences that need to be addressed.

In practice, all four of the above factors are present in the State Water Board’s explanation of the changes embodied in Order WQ 2018-0002, albeit in differing degrees.

Methodological innovation was perhaps the most important factor underpinning changes directed in the Order. In particular, the Order implements a recommendation from the Agriculture Expert Panel (Box 12.1) to introduce a new indicator for monitoring potential nitrate impacts from agriculture: the AR metric (Box 12.2). This metric is considered scientifically robust and less prone to misinterpretation; both key factors underpinning the decision to require de-identified field-level reporting of AR data.

In response to concerns expressed by some stakeholders (the “Environmental Petitioners”) that the existing monitoring regime is inadequate,7 the State Water Board directed several revisions to data reporting requirements, in particular:

• To require more granular, anonymous field-level reporting of growers’ land management practices and nitrogen application (related to the AR metric) to the Central Valley Water Board.

• Expansion of the requirements currently imposed only on Members in high vulnerability groundwater areas on all Members, with some limited exceptions.

Box 12.2. The AR metric

Wadhwani (2018, pp. 245, 249-251[4]) provides an overview of the AR metric and its anticipated benefits

A comparison of the nitrogen-applied [A] with the nitrogen-removed [R] for each field provides a reasonable estimate, even if not precise indicator, of the nitrogen left in the soil that has the potential to percolate to groundwater in the form of nitrates. Minimizing that difference—which can be measured as a ratio (nitrogen applied over nitrogen removed or A/R) or a subtraction (nitrogen applied minus nitrogen removed or A-R)—also minimises the nitrogen left in the soil and consequently the nitrate that may reach drinking water…The A/R and A-R metrics [are referred to] collectively as the “AR metric” and the underlying data as the “AR data”…

The AR metric is an indicator of the amount of nitrogen in the soil that could potentially reach groundwater as nitrate. Over the next several years, as the regional water boards gather the field-level AR data, the data will be analysed to determine ranges of the AR metric for each crop that represent acceptable values to support crop growth, but minimise nitrogen left in the soil. The AR metric ranges will be crop-specific and measured over multiple crop cycles and may be further refined over township-level data.

Ultimately, the availability of field-level AR data means that the regulatory agencies, research institutions, growers, and public can begin to evaluate what levels of nitrogen application are compatible with safe drinking water and translate that knowledge into improved management practices for particular time for different conditions such as irrigation methods and soil types. Given the challenges of groundwater quality monitoring for evaluating the effectiveness of nitrogen application practices, development of the AR metric ranges currently represents the most promising methodology for fair and even-handed evaluation of efforts to minimise the potential for nitrates to reach groundwater. Significantly, development of the AR metric ranges requires access to the database of field-level data, including field-level values for nitrogen applied, nitrogen removed, and crop type, but not the names and locations associated with that data…

…While AR metric ranges must be based on several years of data, the field-level AR data also supports immediate efforts to reduce the potential for nitrates to reach groundwater. Each grower will have information on how his/her nitrogen application compares to other growers planting the same crops. For any given year, the regional water boards will be able to work with the coalition to identify a set of outliers for each crop and require the coalition (which will have identifying grower name and location information for each field) to follow up with those growers…

… With the requirement for submission of field-level AR data, the Agricultural Order also ensures that…township-level analyses will be fortified by the ability of the more granular field-level data to identify and address over-application of nitrogen in “hot spots” that might otherwise be obfuscated by the averaging effect of growers or categories of growers.

Despite concerns raised by some stakeholders, the State Water Board continued to support the representative monitoring approach in principle, considering monitoring farm discharge points as “impractical, prohibitively costly, and often ineffective method for compliance determination”. Changes in the cost of alternative monitoring regimes due to technological innovation were not a major factor evident in the State Water Board’s explanations for the directed changes to the monitoring regime, although the changes in regulatory burden (transaction costs) associated with these changes was considered. Thus, despite suggestions in the relevant literature that the cost of wireless water quality sensor networks has declined sufficiently in recent years to make monitoring water quality on-farm a potentially feasible option (or, at least, for high-density network of nodes throughout a catchment—see, for example (Ruiz-Garcia et al., 2009[5]; Zia et al., 2013[6])),8 at least in this context this does not yet appear to be the case. Nevertheless, the State Water Board directed the Central Valley Water Board to “implement a public external expert review process to evaluate the existing monitoring and assessment framework and make recommendations for improvements or corrections if needed”. This evaluation could explore whether the changes in the costs of different monitoring approaches due to technological innovation are or foreseeably will be sufficient to motivate a shift away from the representative monitoring approach in future; however, given the introduction of the A/R metric as the key indicator for potential nitrate impacts from particular fields, it seems unlikely that a shift towards use of on-farm wireless water quality sensors is imminent.

As stated previously, the State Water Board continues to support the third party (coalition-based) approach. However, it recognises that “concerns with privacy and protection of proprietary information may create strong incentives in support of a framework where the third party retains most information on farm-level management practice and water quality performance rather than submitting that information to the regional water board and, by extension, making it available to the public” (State Water Board, 2018, p. 21[1]). This finding suggests several possible unintended or undesirable consequences of supporting the third party mechanism. First, this support could be seen as legitimising the view that growers have some kind of “right” to confidentiality. Second, the third party may encounter a conflict of interest in that, on the one hand, it needs to report “sufficient” detail to the regulator (which may include farm-level data and even potentially data which identifies individuals), but on the other hand, its members favour reporting of aggregated data only. While the State Water Board has been careful to clarify that it does not recognise any right to privacy in relation to field level data,9 grower submissions during the consultation process cited an expectation of confidentiality for growers participating in coalitions (Agricultural Council of California et al., 2017[7]), and thus the regulator needs to be continually attentive to these issues and ensure that there is appropriate regulatory oversight of the third party.

Lessons learned

Lesson 1. Well-constructed data transparency requirements can provide incentive for farmers to participate in collective mechanisms to improve water quality

In the case study context, if growers do not opt to join a coalition, individual data reporting requirements apply. Thus, this regulatory mechanism leverages growers’ preferences to maintain privacy to incentivise participation in collective governance mechanisms (in this case, the coalitions). This incentive can be reinforced by the use of digital tools customised for the coalition’s use to further lower the transaction costs of reporting data via the coalition.10 However, regulators seeking to use this approach need to be mindful of (perhaps tacitly or inadvertently) supporting or creating expectations of maintaining confidentiality of farm-level data. Regulators should make clear the circumstances under which anonymised and identified farm level or individual data will be reported to the regulator or made available to the public, and provide for adequate regulatory oversight of the collective entity.

Lesson 2. Digital tools are only one part of a broader approach, and the approach shapes which digital tools are needed

This case study makes clear that data reporting and transparency requirements are the main tool via which compliance with legal requirements, and programme evaluation, are undertaken. However, the fact that data is required to be reported in digital format and (in some cases) using digital tools such as geographic information systems (GIS) means that digital technologies actually underpin the data reporting system. The choice of the representative monitoring system by the State Water Board, together with the new A/R requirements, influence which types of digital tools are needed: in particular, this system relies on digital platforms into which data is entered manually by Coalition employees or is gathered automatically from Coalition administrative systems, and from which data can be made publicly available. There is less focus on the use of digital technologies to gather primary data (see also Lesson 3).

Lesson 3. Even with the declining cost of sensors, the “representative monitoring” approach is currently considered the most cost-effective

As noted above, throughout the review process the State Water Board continued to support the representative monitoring approach in favour of what it considers to be a prohibitively costly on-farm monitoring alternative. It remains to be seen whether, during the independent evaluation of the monitoring system, innovative technologies such as low cost wireless sensor networks are considered to be a cost-effective option in this context. While the introduction of the AR metric may preclude demand for use of digital technologies to estimate edge-of-farm nutrient loads, digital technologies including remote sensing technologies and ambient water quality sensor networks may yet prove to be worthwhile additions to the monitoring framework.

References

[7] Agricultural Council of California, I. et al. (2017), Comment Letter - Second Draft Waste Discharge Requirements General Order No. R5-2012-0116 for Growers Within the Eastern San Joaquin River Watershed that are Members of the Third-Party Group – SWRCB/OCC Files A-2239(a)-(c), https://www.waterboards.ca.gov/public_notices/comments/a2239ac/comments20171205/tricia_geringer.pdf (accessed on 29 August 2018).

[8] Central Valley Regional Water Quality Control Board (n.d.), Irrigated Lands Regulatory Program - Individual Discharger Conditional Waiver, https://www.waterboards.ca.gov/rwqcb5/water_issues/irrigated_lands/archives/indv_disch_cond_waiver/index.shtml (accessed on 29 August 2018).

[3] Karkoski, J. (2012), Presentation: Overview of Draft Eastern San Joaquin River Watershed Waste Discharge Requirements (WDRs), State of California Regional Water Quality Control Board - Central Valley Region, https://www.esjcoalition.org/201206regBoardWDR.pdf (accessed on 17 August 2018).

[5] Ruiz-Garcia, L. et al. (2009), “A Review of Wireless Sensor Technologies and Applications in Agriculture and Food Industry: State of the Art and Current Trends”, Sensors, Vol. 9, pp. 4728-4750, https://doi.org/10.3390/s90604728.

[1] State Water Board (2018), Order WQ 2018-0002, State of California State Water Resources Control Board, http://www.swrcb.ca.gov/water_issues/programs/agriculture/docs/ILRP_expert_panel_final_report.pdf (accessed on 29 August 2018).

[2] State Water Board (n.d.), Home Page | California State Water Resources Control Board, https://www.waterboards.ca.gov/ (accessed on 17 August 2018).

[4] Wadhwani, E. (2018), “Fertilizers and Nitrates in Drinking Water: State Water Board Tackles the Public Health Threat of Contaminated Groundwater”, Hastings Environmental Law Journal, Vol. 24/2, p. 237, https://repository.uchastings.edu/hastings_environmental_law_journal/vol24/iss2/3 (accessed on 27 August 2018).

[6] Zia, H. et al. (2013), The impact of agricultural activities on water quality: A case for collaborative catchment-scale management using integrated wireless sensor networks, https://doi.org/10.1016/j.compag.2013.05.001.

Notes

← 1. Adapted from: https://www.waterboards.ca.gov/water_issues/programs/agriculture/, accessed August 2018.

← 2. See http://www.waterboards.ca.gov/water_issues/programs/nps/docs/plans_policies/nps_iepolicy.pdf (accessed August 2018, AR 36138-36157).

← 3. In this case, the State Water Board adopted precedential components with direction for the programme, but the Regional Water Boards must adopt those requirements into their own orders for the growers in their Regions before the growers must comply with those requirements.

← 4. See https://www.esjcoalition.org/home.asp, accessed August 2018.

← 5. “On 22 June 2006 the Central Valley Regional Water Quality Control Board adopted a Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands for Individual Dischargers, which took effect on 1 July 2006. The waiver for Individual Dischargers, amended order number R5-2006-0054, sets forth the requirements for individual dischargers participating in the Irrigated Lands Regulatory Program. Dischargers enrolled under the Conditional Waiver for individuals must also comply with Monitoring and Reporting Program Order No. R5-2003-0827”. This regime requires Individual Discharges to report directly to the regulator (Central Valley Regional Water Quality Control Board, n.d.[8]).

However, “[t]o take advantage of local knowledge and resources, leverage limited regulatory resources, and minimise costs, the Central Valley Water Board allowed growers to form discharger coalitions, with a third-party representative responsible for grower outreach and education and for implementation of a number of the requirements of the regulatory programme, including representative monitoring” (State Water Board, 2018, p. 21[1]) (emphasis added)

← 6. The Eastern San Joaquin Agricultural General WDRs require entry of surface water quality data collected under the General WDRs into CEDEN and groundwater quality data collected into GeoTracker. CEDEN is the State Water Board's data system for surface water quality in California. GeoTracker is a state-wide database and geographic information system that provides online access to environmental data (State Water Board, 2018, p. 21[1]).

← 7. The environmental petitioners considered that the existing regime is deficient in two respects: (i) “there is insufficient disclosure and transparency with regard to the management practices being implemented on the ground by the Members [growers] because only limited, aggregated data must be reported regarding such practices”; and (ii) “the representative and regional monitoring programme does not produce specific enough data to determine if any of the implemented management practices are in fact leading to meeting water quality requirements” (State Water Board, 2018, p. 22_[57]).

← 8. For example, Ruiz-Garcia et al. (2009[5]) state that Wireless Sensor Networks have “become an important issue in environmental monitoring. The relatively low cost of the devices allow the installation of a dense population of nodes that can adequately represent the variability present in the environment.”

← 9. The Order states “[t]o the extent we recognise the incentive privacy provides growers to join coalitions, nothing in this order should be construed as recognizing any right to privacy of the specific field-level data and regional water boards retain flexibility provided by this order.” (State Water Board, 2018, p. 22[1]). The State Water Board also stated that “we believe and emphasise that third parties serve an extensive set of functions for growers beyond the maintenance of confidentiality, and we are not persuaded that the maintenance of confidentiality, in and of itself, is a legitimate goal of a regulatory programme that must have transparency and accountability to the public” (State Water Board, 2018, p. 47[1]).

← 10. While of course it is possible to design digital tools for individual reporting, the point here is that exploitation of synergies between data reporting rules and use of digital tools can create incentives for individuals to participate in the collective mechanism.

Chapter 12. Case Study 7. Data transparency, digital technologies and California’s water quality coalitions