FSMA Water Updates June 2022

In 2011 President Obama signed into law the Food Safety Modernization Act (FSMA). The law updated our federal food safety requirements and for the first time created federal food safety requirements for produce farms. This law was partially created from the increase in foodborne illness outbreaks related to fresh produce. FMSA contains seven main sections, or “Rules.” Each of these Rules covers a different aspect of the food supply chain. For example, the Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food Rule (PC Rule) relates to processing food facilities, like packing houses and food hubs. There are other rules that cover importing food, transportation, and even animal food. FSMA is comprehensive and covers most of the food system. Notably, FSMA does not cover animal processing or shell egg food safety as those topics are overseen by the United States Department of Agriculture (USDA). FSMA is overseen by the Federal Food and Drug Administration (FDA). 

After President Obama signed the bill into law, the FDA was tasked with implementing the law and writing out the specifics of the regulation. That took a number of years and included public comment periods. In November 2015 the FDA released the final version of (most) of the law. The Rule (or section) of the law that applies to farms is the Produce Safety Rule, or PSR.  In the spring of 2019 and onward farms have started to be inspected to make sure they are in compliance with the law. In California, the FSMA PSR Inspections are completed by the California Department of Food and Agriculture’s Produce Safety Program. 

While most of the FSMA PSR has been written and finalized by the FDA, and is currently being inspected on in California by CDFA, the water subpart is still in flux.

Throughout 2015 to the present there’s been lots of feedback from growers and industry on the high number of water tests required for water used during crop production. There have also been a number of produce related food safety outbreaks since 2015. FDA reconsidered the water requirements for water used during production practices and released a new draft production water requirements in December 2021. The proposed water requirements were open for public comment from December 2021 to April 2022. The questions below dig into what the previous production water requirements were, what the proposed new production water requirements would be, and what you should continue to do now while we wait to hear from FDA on what the finalized water requirements will be. 

What did the initial FSMA PSR require for agricultural water at farms?

The PSR contains sections with specific regulations on different parts of the farm (e.g. water, employees, equipment). In the water section of the law (that was released in 2015), it required farmers to test their water used during growing crops and water used in postharvest processing (e.g. washing crops). The law required farmers to test each surface water source (e.g. pond, irrigation ditch) used during crop production 20 times for generic E. coli (over a period of 2-4 years). This would create the farm’s “water quality profile” and then each year after that initial wave of testing the farmer would have to test each surface water source at least five times. For farmers using wells for production water, they would need to take four initial generic E. coli water tests for each well and then at least one a year thereafter. Additionally, farmers were required to do an annual water system inspection on their farm. There were a few more details that were part of the first water requirements, but what is above were the key details. 

What does the proposed FSMA PSR Water Rule say farmers would have to do?

• It’s important to note that the proposed new water subpart only applies to water used during production activities. Think of this as water used while  growing the crops!
• Most farmers would have to complete an agricultural water risk assessment for their operation. This would be a comprehensive written document that describes many different details about a farm’s water use, risks on a farm, crop characteristics, environmental conditions, and practices in place to reduce risks. 
  • Farmers that meet at least one of these situations are exempt from creating an agricultural water assessment:
    • Water used during production meets postharvest water requirements (e.g. it contains zero generic E. coli). 
    • They use municipal water from a public water system to irrigate crops.
    • They treat production water according to standards outlined in the Produce Safety Rule. 
• The proposal water rule would not require testing of water used during production (irrigation) as the initial rule required. 
• The proposed rule would likely require farmers to do one of three treatment methods for surface water used to irrigate crops: 1) change the irrigation method so that the edible portion of the crop is not in direct contact with the irrigation water (e.g. change from overhead water to buried drip), 2) treat production water with a sanitizer, or 3) increase the time interval from the last irrigation to harvest to four days.  
• A supervisor would have to review the agricultural water assessment and determine if any actions were needed on corrective actions or mitigation measures. 

When will we know if the proposed water subpart will become the new requirement?

• It’s impossible to say exactly. Farmers and the agricultural industry want clarity on water requirements as soon as possible. Hopefully FDA provides written responses to the comments submitted on the proposed rule by later this year (2022). 

What should I do in the meantime for water on my farm?

• You can take advantage of CAFF’s water testing cost-share program and get up to $250/farm to take generic E. coli tests from the water sources on your farm. Farms must apply by July 15, 2022 to receive the funds.
• Make sure you are only using municipal or groundwater (e.g. well water) with zero detectable generic E. coli for water you use to wash crops, handwashing, and ice making. If you are unsure whether your water is safe to use, most municipal water companies post their water test results online for users. If you use well water, we recommend testing your water to make sure it has zero detectable generic E. coli and applying for reimbursement through CAFF’s water testing cost-share program.
• For water used for crop production, if it’s municipal water water continue using it as is. If it’s water from a well, make sure to test it at least once a year for generic E. coli. If you are using surface water for irrigation/production activities, we recommend testing it for generic E. coli at least once a year to get a sense of the quality of the water. 

Have more questions about the proposed water rule or FSMA in general? Check out our resources online or contact Grace at grace@caff.org.