How to Speak Storm Water in 2015: Terminology from the New Industrial General Storm Water Permit

As my colleague Missy Foster recently reported, the deadline for compliance with California’s new Industrial Storm Water permit (2014 Permit) is fast approaching.  There is a lot to learn about the 2014 Permit before it takes effect on July 1, 2015.

The 2014 Permit contains numerous new acronyms.  Below is the quick A to Z of the 2014 Permit’s new and most important acronyms.

  •  BMPs – Minimum Best Management Practices 
    • Dischargers will now be required to implement minimum BMPs, or explain why they do not apply. In contrast, the 1997 Permit allowed Dischargers to consider which non-structural BMPs should be implemented and which structural BMPs should be considered for implementation when non-structural BMPs are ineffective.
    • Dischargers will also be required to implement advanced BMPs (mostly structural BMPs) when implementation of minimum BMPs are insufficient, subject to the limits of the Clean Water Act.
  • ERA – Exceedance Response Actions
    • All Dischargers, regardless of historical discharge, start at baseline status.  Exceedance of a NAL will cause a Discharger to move from baseline to Level 1.  Exceedance of a NAL while at Level 1 will cause a Discharger to move from Level 1 to Level 2.
    • Dischargers at Level 1 or Level 2 status must perform Exceedance Response Actions (ERAs), including report preparation and possible additional BMP implementation.
  • NALS – Numeric Action Levels (NALs) and NAL Exceedances
    • Dischargers must analyze pH, total suspended solids (TSS) and oil & grease (O&G) against new “numeric action levels” (NALs).  Specific industries may have NALs for other pollutants.
    • A Discharger can exceed a NAL by exceeding “instantaneous” maximum limits in two samples in one year, or by exceeding “annual” limits based on the average pollutant concentration in all samples in one year.
  • NEC – No Exposure Certification
    • The 2014 Permit eliminates the 1997 Permit’s conditional exclusion for light industries that do not expose activities to storm water.
    • Instead, Dischargers that do not expose activities to storm water can file a “no exposure certification” (NEC) and site map by October 1, 2015, and pay a fee to the State Board.
  • QSE – Qualifying Storm Event
    • A “qualifying storm event” (QSE) is defined as a precipitation event that:  (1) produces a discharge for at least one drainage area; and, (2) is preceded by 48 hours with no discharge from any drainage area.
  • SMARTS – Storm Water Multiple Application and Report Tracking System
    • Dischargers must submit and certify all reports electronically via the State Board’s website database, called the Storm Water Multiple Application and Report Tracking System (SMARTS).
    • SMARTS can be found here, although the website is not yet ready to accept filings for the 2014 Permit.

Want more information? An overview of some of the highlights of the 2014 Permit can be found here. Also, you can find the new Industrial Storm Water permit and supporting documents here, along with a change sheet adopted by the State Board.

For more information about ensuring your compliance with the new Industrial Storm Water permit, please contact Michael Mills (mnmills@stoel.com, 916.319.4642), Missy Foster (mafoster@stoel.com, 916.319.4673),  Ryan Waterman (rrwaterman@stoel.com, 858.794.4114), Parissa Ebrahimzadeh (pebrahimzadeh@stoel.com, 916.319.4644), or the Stoel Rives attorney already tracking the 2014 Permit for you. More information about Stoel Rives’s water quality practice may be found here.

Two County Fracking Prohibitions Succeed While One Fails: What the Voting Results in Santa Barbara, San Benito, and Mendocino Counties Mean for the Oil & Gas Industry in California

On Election Day, Tuesday, Nov. 4, three counties in California presented voters with measures to ban hydraulic fracturing and other forms of intensive oil and gas operations.  Voters in Santa Barbara County rejected the measure there, while voters in San Benito and Mendocino Counties approved their respective ballot measures.

Santa Barbara’s Measure P would have banned the use of “high-intensity” oil extraction methods, including fracking, by future oil and gas projects on unincorporated county land.  Measure J, the San Benito County Fracking Ban Initiative, also bans “high-intensity petroleum operations,” which includes fracking, acid well stimulation, and cyclic steam injection.  Additionally, it bans any new gas or oil drilling activity in residential and rural areas in the County.  Measure J passed 57% to 43%.  The Mendocino County Community Bill of Rights Fracking and Water Use Initiative, Measure S, bans “unconventional extraction of hydrocarbons,” including fracking.  The ordinance creates a strict liability scheme for damages to any person or property inside Mendocino County caused by unconventional extraction.  Measure S passed 67% to 33%.

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California’s New Industrial Storm Water Permit: Countdown to Compliance

As previously reported by my colleagues Ryan Waterman and Parissa Ebrahimzadeh, on April 1, 2014, the State Water Resources Control Board unanimously adopted a new Industrial Storm Water permit (2014 Permit). You can find the new Industrial Storm Water permit and supporting documents here, along with a change sheet also adopted by the State Board.

The July 1, 2015 compliance deadline is fast approaching.  Fall is here and 2015 is right around the corner.  For those of you counting down to July 1st, covered facilities now have seven months to review the terms of the new permit and ensure that your facility will be in compliance.  An overview of some of the highlights of the 2014 Permit can be found here.

For more information about ensuring your compliance with the new Industrial Storm Water permit, please contact Missy Foster (mafoster@stoel.com, 916.319.4673), Michael Mills (mnmills@stoel.com, 916.319.4642), Ryan Waterman (rrwaterman@stoel.com, 858.794.4114),  Parissa Ebrahimzadeh (pebrahimzadeh@stoel.com, 916.319.4644), or the Stoel Rives attorney already tracking the 2014 Permit for you.  More information about Stoel Rives’s water quality practice may be found here.

State Bar, Environmental Law Section Presents Update on Fracking Regulations

The California State Bar, Environmental Law Section hosts an annual conference which welcomes attorneys and students from across the state to learn and discuss cutting edge environmental law issues.  This year’s Environmental Law Conference at Yosemite featured an insightful panel on hydraulic fracturing regulation.  The panel, held on Sunday, October 19, was titled “Recent Developments in the Regulation of Fracking at the Federal, State, and Local Level.”  The four panelists each shared their experience and differing viewpoints in relation to their law practice.

Kassie Siegel, Senior Counsel at the Center for Biological Diversity, focused on hydraulic fracturing regulation at the federal level.  She noted the lack of meaningful federal regulations and pointed out that fracking is exempt from several federal laws including the Clean Water Act, Toxic Substances Control Act, and the Resource Conservation and Recovery Act.  Thus, fracking is not highly regulated by federal agencies and currently depends more on state and local oversight.

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Update on the California High Speed Rail System

James Andrew, Assistant Chief Counsel for the California High-Speed Rail Authority (“CHSRA”), spoke Tuesday, October 14, at the Sacramento County Bar Association, Environmental Law Section Luncheon.  He stated that High-Speed Rail (“HSR”) is a “transformative project” in that it will be the largest infrastructure project ever built as one single project.  However, the “regulatory scheme has not caught up with the project.”  Andrew compares HSR to the federal highway system construction in the 1950s, with countless opponents and regulatory hurdles.  Similarly, HSR is being constructed in California in the same manner as the federal highway system:  in the center and branching outward.

To show that HSR can be a success, Andrew explained that HSR is comparable to the Northeast Corridor, a high speed rail system that runs from Washington, D.C. to Boston.  The two regions are similar in terms of distance of rail, population, and complexity of issues.  According to reports, over 11 million people rode the Northeast Corridor during 2012.

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High-Speed Rail Authority May Use Bond Funds – Supreme Court Rules

The California High-Speed Rail Authority (“CHSRA”) is gaining more steam in keeping the High-Speed Rail Project (the “Project”) on track.  Today, the California Supreme Court issued a decision declining to review an appellate ruling against the CHSRA.

In July of this year, the Third District Court of Appeal overturned a lower court’s decision ruling that the CHSRA’s funding plan failed to identify funding sources for the Project and prohibited the sale of voter-approved bond funds under Proposition 1A.  The appellate court overturned that ruling on the basis that the preliminary funding plan is only an interlocutory and advisory document that did not require the CHSRA to identify each of its funding sources.

Today’s Supreme Court decision declining to review the lower case ruling means the Third District Court of Appeal’s decision will now stand and the CHSRA is authorized to access the voter-approved bond funds under Proposition 1A for construction of the Project.

The Project is gaining speed and many new legal developments are setting its pace.  Stay tuned.

For more information about high-speed rail development in California, please contact Stoel Rives attorneys Michael Mills (mnmills@stoel.com) and Juliet Cho (jhcho@stoel.com).

California Environmental Law Blog Launches New Responsive Design and Enhanced Reader Features

Dear California Environmental Law Blog readers. We launched this blog in 2011 to help us keep you informed about developing environmental stories that impact the California business community. While our commitment to keep you informed hasn’t changed, technology has. More than three years ago, we were still operating in a desktop- and RSS-dominated world. Today, more and more of you are reading our posts on tablets and smartphones. As readers ourselves, we understand your need for news on-the-go and at your convenience.

So we’re very excited to announce to you today a completely new – and improved – blog design, along with new feature sets we think will enhance your content experience.

  • First, California Environmental Law Blog now uses a responsive design format. So no matter where – or on what device – you visit us, you can be assured of a consistent, clean and crisp reader experience.
  • Second, we’ve added new social sharing features to our posts. With easy-to-read social icons, sharing California Environmental Law Blog posts with your social networks is now a snap.
  • Third, we’ve improved our content subscription options. We’ve expanded the number of RSS subscription feeds, optimized the look and feel of our email subscription service, and added links to our Twitter feed as an alternative content consumption option.

We hope you enjoy the enhanced readership experience made possible by the new design. Thanks for keeping us on your list of must-read California environmental news sites!

Governor Signs Two New CEQA Bills

Governor Brown has signed two new bills amending the California Environmental Quality Act (CEQA).  AB 52 establishes new consultation procedures with California Native American tribes, and provides that an adverse change to a tribal cultural resource is a significant impact under CEQA.  AB 1104 extends an existing CEQA exemption for certain pipeline projects to biogas pipelines. 

AB 52

AB 52 is intended to provide greater protection for Native American sacred sites.  The new law provides that a project that may cause a substantial adverse change to a tribal cultural resource is a project that may have a significant effect on the environment.  The implication of this is that such projects must be subject to either a mitigated negative declaration (if mitigation measures can reduce the impacts to less than significant) or an environmental impact report (EIR). 

The law allows California Native American tribes to provide written notice to lead agencies identifying geographic areas that are traditionally and culturally affiliated with the tribe.  A CEQA lead agency is then required to provide notice to such tribes of projects proposed in those geographic areas, and required to consult with such tribes if the tribe requests consultation on a particular project in that geographic area. 

During the consultation, the parties may propose mitigation measures to avoid or lessen any potentially significant impacts to a tribal cultural resource.  Any mitigation measures agreed to during consultation shall be recommended for inclusion in the environmental document and be fully enforceable.  The law also includes provisions to maintain the confidentiality of cultural information provided by the tribes.

The law provides examples of mitigation measures that should be considered to minimize impacts to tribal cultural resources, if the consultation process does not occur or measures cannot be agreed to.  Among the examples of mitigation measures are avoidance and preservation in place, treating the resource with culturally appropriate dignity, and permanent conservation easements.  The new law stops short of requiring that these mitigation measures be adopted.

AB 1104

AB 1104 expands an existing exemption under CEQA for biogas pipelines located in four select counties in the San Joaquin Valley.  Pursuant to Public Resources Code section 21080.23, CEQA does not apply to the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline, as defined, if certain conditions are met.  Among the conditions are that the project be less than eight miles in length, actual construction and excavation activities do not exceed more than one mile at a time, the project is within an existing right-of-way, and will comply with local agency permit requirements.  The existing exemption also requires notification to affected public agencies and private property owners. 

AB 52 adds Public Resources Code section 21080.23.5 to CEQA, which defines “pipeline” to include a pipeline located in Fresno, Kern, Kings, or Tulare County that is used to transport biogas that is derived from anaerobic digestion of dairy animal waste.

 By Kristen T. Castaños (ktcastaños@stoel.com, (916) 319-4674).

Is It Historical Under CEQA? Court Confirms Substantial Evidence Remains the Standard

Citizens for the Restoration of L Street v. City of Fresno, et al., No. F066498,(Cal. Ct. App. 5th Dist., August 28, 2014)

In a two-part opinion, the Fifth District Court of Appeal affirmed the trial court’s judgment and writ of mandate, finding that the City of Fresno’s Municipal Code did not delegate authority to its Historic Preservation Commission (HPC) to approve CEQA documents, including the Mitigated Negative Declaration (MND) at issue. The Fifth District also upheld the trial court’s holding that the substantial evidence standard, not the fair argument standard, governs review of decisions regarding designation of historic resources.

The Project, a small 1.29 acre residential infill development in downtown Fresno, required demolition of two homes—one of which was previously designated a “Heritage Property” under the Municipal Code—necessitating a demolition permit from the HPC. In concert with its approval of the demolition permits, the HPC also reviewed and approved the Project MND, concluding that demolition of the two homes would not cause a substantial adverse change in the significance of an historical resource. Citizens for the Restoration of L Street (“Citizens”), a local association, appealed the HPC’s adoption of the MND. The City Council heard Citizens’ appeal, and passed a motion: (1) upholding the HPC’s finding that neither of the two homes was an historical resource under CEQA; (2) electing not to exercise its discretion to designate the homes historical, or the Project area an historical district; and (3) upholding the HPC’s approval of the CEQA findings and MND. Shortly thereafter, both homes were demolished.

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Drilling Bill Fails in Assembly

SB 1096 (Jackson), which sought to foreclose the possibility of oil drilling in state waters from wells that could be drilled at Vandenberg Air Force Base, was defeated in the Assembly on Tuesday.  Pursuant to the Legislature’s summary of the bill, the California Coastal Sanctuary Act of 1994 authorizes the California State Lands Commission (SLC) to enter into a lease for extraction of oil or gas from state-owned tide and submerged lands in the California Coastal Sanctuary, but only if the SLC determines that the oil or gas deposits are being drained by means of producing wells upon adjacent federal lands and the lease in is the best interest of the state.  The bill would have repealed that authorization. 

Co-authored by Michael N. Mills and Kimberly J. Hellwig

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