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A lawsuit seeking an immediate halt to oil and gas wastewater injection at 2,500 wells across California took a positive turn for energy producers last week as Superior Court Judge George C. Hernandez denied plaintiffs’ motion for a preliminary injunction in a closely watched case challenging long-standing operations in the California oil and gas industry.

Plaintiffs in Center for Biological Diversity v. California Department of Conservation, California Superior Court, Alameda County, asked the court to throw out the emergency proposed rulemaking recently issued by the Division of Oil, Gas and Geothermal Resources (“DOGGR”). Additionally, the plaintiffs sought an injunction to stop injection wells operating in disputed aquifers.

Under the emergency proposed rulemaking, wastewater injections into non-exempt aquifers must be phased out by 2017. 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 should be considered suitable places to inject produced water.

In finding no evidence of risk of imminent harm to protected non-exempt aquifers, the court concluded: “On this record, the threat of such contamination [of drinking water aquifers] is theoretical and speculative and plainly outweighed by the other harms [to the public, economy and industry] which are virtually certain to occur if an injunction issues.”
Continue Reading Fate of Injection Wells in Historically Exempt Aquifers Comes Closer to Determination

Yesterday, July 7, the State Water Resources Control Board (“Water Board”) adopted new requirements (“Model Criteria”) for groundwater monitoring in areas where oil and gas stimulation activities occur, such as hydraulic fracturing. The Water Board was required to develop these requirements pursuant to Senate Bill 4 (“SB 4”).

The requirements cover a wide…

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

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

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

On April 29, 2015, the State Water Resources Control Board (“Water Board”) issued a Notice of Opportunity for Public Comment and Notice of Public Workshop regarding the proposed Draft Model Criteria for Groundwater Monitoring (“Model Criteria”) for areas of oil and gas well stimulation. Senate Bill 4 requires groundwater monitoring for all oil and gas wells that receive stimulation treatments.

The Model Criteria will be used by (1) the Water Board to implement a regional groundwater monitoring program, and (2) oil and gas operators and Water Board staff in the development of groundwater monitoring near well stimulation activities. These Model Criteria outline the methods to be used for sampling, testing, and reporting the water quality associated with oil and gas well stimulation activities.

The groundwater monitoring data will be used to initially establish baseline condition prior to well stimulation. Thereafter, Water Board staff will evaluate data and test results to determine changes in water quality and whether additional monitoring requirements or corrective actions are necessary.Continue Reading Water Board Issues Proposed Draft Model Criteria for Groundwater Monitoring

On March 20, Senator Fran Pavley (D-Agoura Hills) wrote a letter to Governor Jerry Brown requesting that his administration immediately shut down approximately 2,500 underground injection wells.  The letter was signed by seven other legislators and urges that these wells must be closed until “all appropriate aquifer exemptions have been issued by the US EPA [Environmental Protection Agency] and investigations of groundwater contamination from these wells are complete.”

Senator Pavley’s letter comes in response to reports that California is out of compliance with the federal Safe Drinking Water Act (“SDWA”) underground injection control (“UIC”) program.  The SDWA prohibits injection of Class II wells into aquifers that are potential drinking water sources, called non-exempt aquifers.  Class II wells are those that dispose of waste water from oil and gas production.  The California Department of Conservation (“DOC”) is already addressing this matter, and has issued a notice of proposed emergency rulemaking to eliminate injection into non-exempt aquifers on April 2.Continue Reading Letter Urges Oil & Gas Wastewater Well Shut-Ins due to Risk of Groundwater Contamination; Regulators Stick to Rulemaking

On Tuesday, March 10, California Environmental Protection Agency Secretary Matthew Rodriquez and California Natural Resources Agency (“CNRA”) Secretary John Laird testified before a joint State Senate committee hearing.  At the hearing before the Natural Resources & Water Committee and the Environmental Quality Committee, Rodriguez and Laird confirmed that there has been no drinking water contamination due to oil and gas disposal well injection.  This finding is reiterated in a memo from the California EPA: “To date, preliminary water sampling of select, high-risk groundwater supply wells has not detected any contamination from oil production wastewater.”  (Memo from Cal. EPA, at p. 1 (Mar. 2, 2015).)

DOGGR and USEPA Correspondence

On Monday, March 9, the U.S. Environmental Protection Agency (“USEPA”) sent a letter to California’s Division of Oil, Gas and Geothermal Resources (“DOGGR”) approving DOGGR’s plan to regulate Class II underground injection control (“UIC”) wells.  The USEPA’s letter responds to DOGGR’s letter to the USEPA which presented California’s plan to revamp its regulatory scheme for Class II UIC wells in order to come into compliance with the federal Safe Drinking Water Act (“SDWA”).  The USEPA stated that they are “pleased that you [California] have initiated action to implement the plan.”  (USEPA Letter to DOGGR, at p. 1 (Mar. 9, 2015).)Continue Reading Regulators Confirm: No Drinking Water Contamination from Oil & Gas Disposal Wells

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