Farmers Defy Order to Protect Birds From Death in Toxic Ponds

Some of California biggest farmers are defying a state plan to prevent the deaths of tens of thousands of migratory birds poisoned by toxic runoff from cotton and alfalfa fields in the San Joaquin Valley.

State regulators say farmers in the Tulare Lake basin, including cotton giant J.G. Boswell Co., have flouted key provisions of the plan that would keep waterfowl from harm in the selenium-laden drainage ponds dotting the vast west side of the valley.

“We have a plan in place that begins to address the problems of these contaminated ponds,” said Anthony Toto, an engineer for the Central Valley Regional Water Quality Control Board, which oversees the waste discharge. “But some of the biggest pond operators are refusing to comply with the plan.”

Toto said the farmers face a $1,000 a day fine for violating the order, which went into effect in October.

The intransigence of the Tulare Lake Drainage District--which operates 3,000 acres of contaminated ponds--is especially troubling, say environmentalists, because adoption of the state plan was considered a victory for the big growers.

“This plan is a sweetheart deal for them,” said Patrick Porgans, an independent consultant on water-related issues in Sacramento. “And now they have the gall to say they don’t even want to comply with its lenient provisions.”

The U.S. Fish and Wildlife Service and several environmentalists, including Porgans, have petitioned the state to rescind the plan. They argue that it falls short of protecting migratory birds such as eared grebes, American avocets and black-necked stilts from 5,200 acres of toxic ponds.

The manager of the Tulare Lake Drainage District said growers had not acted in bad faith. He said the filing of the petitions was the only reason the district has delayed implementing the centerpiece of the plan, which calls for growers to set aside land for new, clean ponds where the birds can nest and feed.

“We have every intention of complying with the state plan and on a number of points we are ahead of schedule,” said Doug Davis, manager of the Tulare Lake Drainage District. “But how can we put forward a detailed plan on new marshland habitat when the appeals could change the plan?”

State regulators said, however, that any new habitat the farmers establish during the petition process is likely to remain and be expanded in the future.

The contaminated ponds are a byproduct of half a century of irrigation that has leached toxic salts from deep in the soil and trapped them in the root zone, requiring growers to flush their fields. The discharge was supposed to be drained off to San Francisco Bay but objections by environmentalists and a shortage of funds thwarted the building of a “super sewer.”

A half-finished drain stopped at what is now Kesterson National Wildlife Refuge, where fish and wildlife biologists discovered in the 1980s that high levels of selenium were killing 15,000 adult birds a year and deforming countless chicks.

The damage wrought by the Tulare Lake basin ponds makes Kesterson pale by comparison, federal biologists say. Environmental groups have criticized the U.S. Justice Department for not bringing action on the ponds under the Migratory Bird Treaty Act.

Not all large growers have defied the state plan, Toto said. One grower, Westlake Farms, has not only agreed to set aside a large swath of land for new habitat but will alter existing ponds to dissuade waterfowl from nesting there.