The Ninth Circuit Court of Appeals capped a saga of over seven years on June 18 by extending its March 11, 2015 ruling in support of alternatives to imposing hefty fees on individual companies which have complied with the law, but happen to do business in California’s Central Valley or South Coast. Environmental groups challenged USEPA’s approvals of the alternatives adopted by both the South Coast Air Quality Management District and the San Joaquin Valley Air Pollution Control District. The March 11 ruling, in Natural Res. Def. Council v. EPA (9th Cir. 2015) 643 F.3d 311, upheld the SCAQMD’s alternative, which pays the fees from surplus air quality plan funds. The June 18 ruling in Medical Advocates for Healthy Air v. US Environmental Protection Agency (9th Cir. June 18, 2015, No. 12-73386 (opinion ordered nonpublished)) clarified extension of the March ruling to uphold the SJVAPCD’s alternative, which pays the fees from motor vehicle fees.

Background:

The 1990 Amendments to the Federal Clean Air Act added Section 185 imposing “nonattainment fees” on any “Major Source” of emissions in any area that had severe or extreme air quality problems Southern California and the San Joaquin Valley fell squarely within this provision, which also would apply to businesses emitting over 10 tons per year (100 tons applies to many US regions). While failure was alleged for the region, yet the fees would be levied on individual businesses even though most were in full compliance with the strictest air quality requirements in the Country.
Continue Reading Ninth Circuit Limits Clean Air Act “Nonattainment Fees” in California’s San Joaquin Valley

On June 12, the State Water Board issued a notice of “unavailability of water” and the “need for immediate curtailment” from various water users holding pre-1914 water rights.  Less than two weeks later on June 23, lawyers for the State Water Board reportedly stated in court this curtailment notice is advisory only, which would seem…

The State Water Resources Control Board (“Water Board”) has recently released recommendations from the Lawrence Livermore National Laboratory (“LLNL”) on Model Criteria for Groundwater Monitoring. Pursuant to Senate Bill 4 (“SB 4”), the Water Board is required to develop regulations for sampling, testing, and monitoring groundwater during hydraulic fracturing operations. The bill requires groundwater monitoring at scales from single well monitoring to regional monitoring.

The recommendations are designed to assist the Water Board in taking a scientifically credible approach in developing groundwater monitoring regulations. The authors acknowledge the immense challenge of developing a set of regulations to govern well stimulation in California due to the unique and dynamic nature of each oil field.

The report recommends a tiered approach to groundwater monitoring where higher quality water is monitored more intensively than lower quality water. The monitoring would be conducted through one upgradient and two downgradient wells within a one-half to one-mile radius of the stimulated oil well.
Continue Reading State Water Board Receives Groundwater Monitoring Recommendations from Experts

Yesterday, Governor Jerry Brown appointed David Bunn, a former fish and game official and U.C. Davis academic, to lead the California Department of Conservation. The appointment comes after the departure of Director Mark Nechodom, who resigned earlier this month.

As director of the Department of Conservation, Bunn will inherit an office that administers a…

On June 4, 2015, the Court of Appeal ruled that California Fish and Game Code section 1602 (“Section 1602”) unambiguously requires notification to the Department of Fish and Wildlife (“Department”) if an entity or individual plans to “substantially divert” water, even when the legal right to use the water was previously established. (Siskiyou…

The clamor over hydraulic fracturing continued Wednesday as environmental activists filed another lawsuit to limit oil and gas development in California.  The lawsuit, filed by Earthjustice on behalf of the Center for Biological Diversity and Los Padres ForestWatch, challenges a plan to open portions of federal land in California to oil and gas operations.

The groups claim that the Bureau of Land Management (“BLM”) did not consider the environmental impacts of hydraulic fracturing when it approved a Resource Management Plan, which could potentially open a large area of federal land in the state’s most oil-rich regions to leasing.  The plan found that “overall, in California, for industry practice of today, the direct environmental impacts of well stimulation practice appear to be relatively limited.”

In 2013, a federal judge ruled that the BLM violated the National Environmental Policy Act when it issued oil leases in Monterey and Fresno counties without considering the environmental impact of hydraulic fracturing.  This ruling has led to a de facto moratorium on new leasing in California on federal lands.
Continue Reading Yet Another Lawsuit Seeking to Limit California Oil Development

June 5, 2015 marked the deadline for lawmakers to pass bills out of their house to the opposite house. Bills that did not pass in their house of origin by that date have effectively died (unless such a bill has been identified as a 2-year bill). Stoel Rives’ Water Law Team has been monitoring water-related legislation, especially given California’s historic drought. Our Water Law Team will continue to monitor these bills, among many others, including environmental-related legislation, throughout the 2015-2016 Legislative Session. We will provide periodic updates as these bills move through the legislative process. Below is the status and summary of some of the bills Stoel Rives is monitoring.

SUPPLY AND GROUNDWATER

AB-307 (Mathis): Graywater: groundwater recharge
STATUS: This bill is a 2-year bill and currently pending referral in the Assembly.

If passed by the legislature and signed into law, AB-307 would state the intent of the Legislature to enact legislation to explicitly permit the usage of residential, commercial and industrial graywater for the recharge of a groundwater basin or aquifer.

AB-453 (Bigelow): Groundwater Management
STATUS: AB-453 passed the Assembly on April 16, 2015 and currently is scheduled for hearing on June 23, 2015 before the Senate Committee on Natural Resources and Water.

If passed by the legislature and chaptered, this bill would authorize, until a groundwater sustainability plan is adopted, a local agency to amend an existing groundwater management plan in furtherance of, and consistent with, the groundwater management plan’s objectives.
Continue Reading Update on California Water Legislation Regarding Groundwater, Recycled Water and More

WaterwaysThe wait for the new rule is now over!  The EPA and Corps of Engineers have jointly issued the rule defining which waters are protected by the federal Clean Water Act, with the new rule largely reflecting historical interpretations arising from SCOTUS decisions.

Please click on this link for more in-depth information and analysis prepared…

On Tuesday, May 19, 2015, the State Water Resources Control Board (“Water Board”) held a Public Workshop regarding the proposed Draft Model Criteria for Groundwater Monitoring (“Model Criteria”). In this meeting, the Water Board heard comments from stakeholders who voiced their support or concern regarding the Model Criteria.

Dr. Steven Bohlen, the State Oil & Gas Supervisor, on behalf of the Division of Oil, Gas & Geothermal Resources (“DOGGR”) provided the Water Board with a variety of statistics regarding well stimulation operations that have occurred since DOGGR’s Interim Regulations went into effect on January 1, 2014. Dr. Bohlen reported that over 1,500 Interim Well Stimulation Treatment Notices have been received by DOGGR since January 1, 2014. Additionally, 809 well stimulation operations have been conducted and 22 monitoring plans have been approved. Furthermore, about 200 acre feet of water has been used for well stimulation operations.Continue Reading Industry and Environmental Groups Make Pitch to Water Board Regarding Draft Model Criteria for Groundwater Monitoring

On Thursday, May 7, 2015, two environmental groups filed a lawsuit seeking an immediate halt to oil and gas wastewater injection at 2,500 wells across California.

The suit, filed by the Sierra Club and the Center for Biological Diversity, claims that the state Division of Oil, Gas and Geothermal Resources (“DOGGR”) should be prohibited from letting companies pump produced water from their drilling operations into non-exempt aquifers.

DOGGR has repeatedly assured Californians that there has been “no contamination of water used for drinking or agricultural purposes related to underground injection by the oil and gas industry” and “no evidence has been found that underground injection has damaged sources of potential drinking water.”

Under DOGGR’s recently issued emergency proposed rulemaking, industry wastewater injections into non-exempt aquifers must be phased out by 2017.   However, the lawsuit calls for the injections to stop immediately. The proposed phasing-out period gives both DOGGR and the U.S. Environmental Protection Agency (“EPA”) the opportunity to determine whether some of the aquifers — particularly those that also contain oil — should be considered suitable places to inject produced water. The EPA has the authority to declare an aquifer exempt from the federal Safe Drinking Water Act, making it eligible for wastewater injections.
Continue Reading Lawsuit Seeks to Halt Oil Industry Wastewater Disposal Practices

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Few firms view their Environment, Land Use, and Natural Resources practices as core legal services. Stoel Rives is one of them. The firm ranks #8 in the United States according to Law360’s list of the largest practices of its kind. Our sophisticated compliance counseling, permitting, regulatory development, and litigation practices continue a long tradition of specialization and deep experience. Our environment, land use, and natural resource attorneys incorporate prior agency experience, technical acumen, and industry knowledge into their legal advice. They also build strong relationships with agency officials and industry associations. Our litigation successes include landmark decisions. More than 60 attorneys, paralegals, and compliance analysts comprise Stoel Rives’ nationwide Environment, Land Use & Natural Resources practice.