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Shannon Morrissey is an associate in Stoel Rives' Environment, Land Use & Natural Resources group. She has experience with permitting, transactional and natural resources matters. She is the Secretary for the Executive Committee of the Sacramento County Bar Association, Environmental Law Section. Before joining Stoel Rives, Shannon was a summer associate (2014) and law clerk (2014-2015) with Stoel Rives LLP and was a legal extern at the Calif. State Water Resources Control Board and California Department of Justice. She is a frequent contributor to Stoel Rives' California Environmental Law and Mineral Law blogs.

On September 24, 2018, in two separate decisions, the Sixth Circuit Court of Appeals found that coal ash wastewater that enters groundwater and eventually travels to navigable waters through the groundwater is not regulated under the Clean Water Act (“CWA,” or the “Act”).  In these decisions, the Sixth Circuit expressly disagrees with recent holdings from the Fourth and Ninth Circuits, paving the way for potential Supreme Court review.

The CWA requires a permit for discharge of pollutants into navigable waters.  33 U.S.C. §§ 1251 et seq.  At issue in both Sixth Circuit cases is whether the CWA extends to regulate indirect discharge into a navigable water, through groundwater.  Rejecting the “hydrological connection” theory, the Sixth Circuit found that groundwater is not subject to regulation under the CWA because it is not a point source.  Therefore, the discharge of pollutants into groundwater, and subsequent travel to a navigable water, also does not fall within the scope of the CWA.Continue Reading Sixth Circuit Limits Scope of CWA, Breaking with Fourth and Ninth Circuits

Environmental groups have obtained a favorable Clean Water Act (“CWA”) ruling from the U.S. District Court for the Central District of California, which can be viewed as an expansion of jurisdiction for stormwater permitting for industrial sources.  In the Order, issued on August 9, 2018, Judge Stephen V. Wilson held that if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA.  EPA is required to regulate stormwater discharges through the National Pollution Discharge Elimination System (“NPDES”) permitting scheme, and does not have discretion to address the pollution through other methods.
Continue Reading Court Finds that Privately-Owned Industrial Stormwater Discharges Require Clean Water Act Permits

 On July 27, 2018 the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) issued two notices of proposed rulemaking action applicable to oil and gas operations in the state.  DOGGR released updated underground injection control (“UIC”) regulations, as well as proposed regulations for idle well testing and management.

UIC Regulations

DOGGR supervises the drilling, operation, maintenance, and plugging and abandonment of onshore and offshore oil, gas, and geothermal wells.  Wells that inject fluid for the purposes of enhancing oil or gas recovery, re-pressuring oil or gas reservoirs, or disposing of wastewater and other byproducts associated with oil and gas production – referred to as injection wells or UIC wells – fall within DOGGR’s regulatory scope.Continue Reading DOGGR Issues Revised Regulations for UIC and Idle Wells

On May 22, 2018, the California Department of Fish and Wildlife, Office of Spill Prevention and Response (“OSPR”), issued a 15-Day Notice of Modifications to Text of Proposed Regulations and Addition of Documents Relied Upon (“Notice”).  The Notice extends the comment period for the following proposed rulemakings, in response to comments received during the initial 45-day comment period:

  • General Definitions & Abbreviations (Cal. Code Regs. tit. 14, § 790);
  • Certificates of Financial Responsibility (§§ 791 – 798)
  • Oil Spill Contingency Plans for Inland Facilities (§ 817.04)
  • Ratings for Oil Spill Response Organizations (§§819 – 819.07)
  • Drills and Exercises for Inland Facilities (§ 820.02)

Continue Reading OSPR Extends Rulemaking Comment Period for Inland Facilities

Reviving a federal Clean Water Act (“CWA”) lawsuit, the U.S. Court of Appeals for the Fourth Circuit held that an indirect discharge – such as a discharge to ground water – may fall within the scope of the CWA, if the indirect discharge is sufficiently connected to navigable waters to be covered under the CWA.  The decision was issued on April 12, 2018, in the case, Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al.  The facts were unusual for a citizen suit, in that the citizen group plaintiffs were targeting discharges to ground water.  Plaintiffs alleged that defendants were in violation of the CWA because defendant (or “Kinder Morgan”) discharged pollutants into navigable waters without obtaining a National Pollutant Discharge Elimination System (“NPDES”) permit.  The source of the alleged discharge is a gasoline spill: in 2014, “over 369,000 gallons of gasoline spilled from Kinder Morgan’s underground pipeline, which extends over 1100 miles through parts of the eastern United States.”  Slip Op. at 8.  According to plaintiffs, the “gasoline pollutants from the pipeline are seeping into navigable waters as defined by the CWA.”  Id.  Kinder Morgan subsequently repaired the pipeline, and has recovered at least a portion of the spilled gasoline.
Continue Reading Following Ninth Circuit’s Lead, Fourth Circuit Expands CWA Jurisdiction to Groundwater Where “Connection” to Navigable Waters Exists

On March 7, 2018, the California Division of Oil, Gas and Geothermal Resources (“DOGGR,” or “Division”) published a notice to operators (“NTO”) regarding updated guidelines for oilfield water quality data.  The NTO outlines procedures for submission of oilfield water quality data by operators, including required notices, injectate samples, formation water samples, documentation and final report and certification processes.
Continue Reading Good for You, Great for Me: DOGGR Issues Notice to Operators with Guidance for Collection of Oilfield Water Quality Data

On March 8, 2018, California regulators reached a settlement agreement with Home Depot wherein the retail giant agreed to pay $27.84 million for various hazardous waste violations.  The State hit Home Depot with penalties for alleged violations identified during inspections occurring between 2013 and 2015, due to improper disposal of certain types of waste, including batteries, aerosol cans, paints, and electronic devices.  Attorney General Xavier Becerra reported that the settlement amount equated to about $16 million in civil penalties, $9 million toward environmental protection and compliance, and nearly $2 million to cover costs.  The State alleged that Home Depot violated California’s Hazardous Waste Control Law, and California’s Unfair Competition Law because “such conduct gives Home Depot a competitive advantage over other regulated entities that are complying with the law.”
Continue Reading Another Hazardous Waste Enforcement Action Costs a Major Retailer Millions

Stoel Rives’ Oil & Gas Team has been monitoring bills introduced by California legislators since the beginning of the 2017-2018 legislative session.  Below are the latest updates on the bills our team has been following during the first half of the current legislative session.  In addition, we have included new bills introduced during the second half of the current legislative session.

The following is a list of bills either vetoed by the Governor or chaptered into law at the end of the first half of the current legislative session.  A summary of such bills can be found here.

  • AB 1197 (Limón, D): Oil spill contingency plans: spill management teams. Chaptered into law on October 8, 2017.
  • AB 1328 (Limón, D): Oil and gas: water quality. Chaptered into law on October 13, 2017.
  • AB 1472 (Limón, D): Public lands: assignments and transfers; oil, gas and mineral leases. Vetoed by the Governor on July 25, 2017.
  • AB 1647 (Muratsuchi, D): Petroleum refineries: air monitoring systems. Chaptered into law on October 8, 2017.
  • SB 44 (Jackson, D): State lands: coastal hazard and legacy oil and gas well removal and remediation program. Chaptered into law on October 8, 2017.
  • SB 724 (Lara, D): Oil and gas: wells and production facilities. Chaptered into law on October 10, 2017.

Continue Reading Second Legislative Update: Oil & Gas Related Bills Introduced in the 2017-2018 Legislative Session

On February 22, 2018, California Attorney General Xavier Becerra announced that the Department of Justice is opening an environmental justice office within the Environment Section: the Bureau of Environmental Justice (“Bureau”).  “The Bureau’s mission will be to protect people and communities that endure a disproportionate share of environmental pollution and public health hazards.”  Using existing federal and state statutes, the Bureau will accomplish its mission through targeted oversight, investigation, and enforcement actions.

According to the press release, the Bureau’s oversight and enforcement work will focus on:

  • Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
  • Remediating contaminated drinking water;
  • Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
  • Challenging the federal government’s actions that repeal or reduce public health and environmental protections; and
  • Penalizing and preventing illegal discharges to air and water from facilities located in communities already burdened disproportionately with pollution.

Continue Reading At the Intersection of Pollution and Poverty, California Attorney General Establishes Bureau of Environmental Justice, and Industry Should Get Prepared

On February 12, 2018, the California Department of Conservation (“DOC”) issued a public notice announcing revisions to the text of the proposed regulations in the rulemaking for California Underground Gas Storage Projects.  This rulemaking follows a saga of rulemakings for underground gas storage projects in the state – both emergency and general rulemakings – which all began in early 2016.  The rulemakings were spurred by the underground gas storage leak at the Aliso Canyon facility in southern California, which was discovered on October 23, 2015 and continued leaking until February 2016.
Continue Reading California Issues Revised Proposed Underground Gas Storage Regulations

On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s decision, finding that the County of Maui violated the Clean Water Act (“CWA”) when it discharged treated effluent into underground injection wells, which then allowed the effluent to seep into the Pacific Ocean.  The Ninth Circuit panel held that the wells were required to obtain National Pollutant Discharge Elimination System (“NPDES”) permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.
Continue Reading Injection Well Operators Beware: Ninth Circuit Finds Underground Injection Wells Require NPDES Permit under the Federal Clean Water Act