On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement (jointly “Agencies”) in the U.S. District Court for the Central District of California. The lawsuit alleges violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Administrative Procedure Act (“APA”). At the heart of their lawsuit, EDC and Santa Barbara Channelkeeper (jointly “EDC”) claim that the Agencies violated NEPA when they issued a Finding of No Significant Impact (“FONSI”) decision approving the Agencies’ Programmatic Environmental Assessment of the Use of Well Stimulation Treatments on the Southern California Outer Continental Shelf (the “PEA”).
On October 18, 2016, the Department of Water Resources (DWR) released its final modifications to California’s groundwater basin boundaries in response to the emergency regulations adopted by DWR last October. The basin boundary changes were implemented under the Sustainable Groundwater Management Act (SGMA) to provide flexibility to local public agencies to bring their groundwater basins into balanced levels of extractions and recharge.
To submit a boundary request, the local public agency was required to include a local agency board resolution formally initiating the local agency boundary modification request. In addition, the SGMA required the local agency to demonstrate support for the change from other local agencies and public water systems that would be affected by the change, as well as provide technical and non‐technical information of the basin conditions and management practices to justify the modification.
DWR presented the final basin boundaries to the California Water Commission on October 18 and indicated that 39 basin boundary changes were approved out of 54 requests. Twelve of the 54 requests were denied and three were deemed incomplete.
The DWR website has a Basin Boundary Assessment Tool that identifies the existing groundwater basin boundaries and other relevant geological and geographic data.
DWR has indicated that another basin boundary modification request period may be held in 2018, depending on demand from local agencies and/or Groundwater Sustainability Agencies (GSAs).
Other important dates on the SGMA timeline include:
- December 31, 2016 –DWR will post a report on Water Available for Replenishment on its website.
- November 14-17, 2016 – DWR will conduct public meetings for input on its draft topic of Best Management Practices (BMPs).
- January 1, 2017 – DWR will post BMPs on its website.
- June 30, 2017 – Date by which local agencies in high- and medium-priority basins must form GSAs that cover the entire basin in order to avoid potential intervention by the State Water Resources Control Board.
With this latest development of modifying various basin boundaries, SGMA implementation is ramping up and bringing the inevitable ramp down of groundwater extraction closer. Please stay tuned for additional developments and analysis.
The recent wave of climate change legislation in California also included a new and not particularly well-known law aimed at curbing greenhouse gas (“GHG”) emissions associated with water use. SB 1425 will create a voluntary registry to track the water sector’s energy use and GHG emissions.
According to Senator Pavley, the author of SB 1425, “While some of the water-energy related climate pollution is already covered in the state’s cap-and-trade program (via the electricity generation sector), the state does not currently have a clear accounting of the total greenhouse gas emissions associated with the water system.”
SB 1425 requires CalEPA to oversee the development of a registry for GHG emissions that result from the “water-energy nexus” using the best-available data. Participation in the registry is voluntary and open to water agencies, large water consumers, businesses and others conducting business in the state. SB 1425 provides that entities participating in the registry may qualify for GHG emission reduction incentives. Continue Reading
With Senate Bill 1262 (“SB 1262”), California’s Sustainable Groundwater Management Act (“SGMA”) has become firmly rooted into the State’s water supply planning laws. Specifically, SB 1262 amends the Water Supply Assessment statute (commonly referred to as “SB 610”) and the Written Verification statute (commonly referred to as “SB 221”).
Background – SB 610 & SB 221
As way of background, SB 610 and SB 221 operate to help cities and counties make informed land use decisions by providing the local governments with information on water supply availability. SB 610 and SB 221 are companion laws that promote more collaborative planning between local water suppliers and cities and counties. Both statutes require detailed information regarding water availability to be provided to the city and county decision-makers prior to approval of specified large development projects.
Under SB 610, Water Supply Assessments must be provided to local governments for certain projects subject to the California Environmental Quality Act (“CEQA”). The Water Supply Assessment must analyze whether projected water supplies are sufficient to meet the projected water demand of the proposed development project. Similarly, under SB 221, approval by a city or county of certain subdivisions requires an affirmative Written Verification of sufficient water supply. Continue Reading
Update: September 26, 2016
On September 21, 2016, the Honorable George C. Hernandez, Jr. issued the final Statement of Decision, which affirmed the tentative decision denying all claims for relief. The court denied CBD’s petition for writ of mandate.
Original Post: August 22, 2016
As reported in a previous blog post, Earthjustice, on behalf of the Center for Biological Diversity (“CBD”), filed a lawsuit against the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) in May 2015. The lawsuit attacked DOGGR’s emergency rulemaking for aquifer exemption compliance. Not surprisingly, like all of CBD’s spurious lawsuits attacking DOGGR for implementing its regulatory duties, on August 2, 2016, an Alameda County Superior Court judge issued a tentative ruling denying CBD’s petition for writ of mandate. This is another setback for CBD’s litigation strategy of impeding DOGGR in order to cripple the oil and gas industry.
DOGGR issued the emergency rules in response to a letter from the U.S. Environmental Protection Agency that addressed California’s compliance with the federal Safe Drinking Water Act (“SDWA”) and the Class II Underground Injection Control (“UIC”) program. Following DOGGR’s issuance of the emergency rules, the EPA stated “[t]he State’s emergency regulations to codify deadlines for injection well operators to cease injection, absent EPA-approved aquifer exemptions, is a critical step in the State’s plan to return the California Class II UIC program to compliance with the SDWA.” In other words, California regulators were doing what they were supposed to do under the law.
On September 6, 2016, a federal Judge issued an Order finding that the U.S. Bureau of Land Management (“BLM”) failed to take a “hard look,” as required under the National Environmental Policy Act (“NEPA”), at the potential environmental impacts of hydraulic fracturing in issuing a new Resource Management Plan (“RMP”) for the Bakersfield Field Office. The Order directed the BLM to conduct a supplemental environmental impact statement (“EIS”) focusing on the potential impacts of fracking. While the decision will likely affect future leasing under the new RMP, it is not a moratorium on fracking.
This is the second update on environmental regulatory and legal developments in Los Angeles and adjacent counties, as well as the Southern San Joaquin Valley. We welcome your comments and feedback.
South Coast Air Quality Management District:
*Continued Report on New Management: Wayne Nastri, once an SCAQMD Governing Board Member, former USEPA Region IX Regional Administrator and recently an environmental consultant, was appointed acting Executive Director (ED) for the AQMD earlier this year. Some describe him as “a breath of fresh air at the District.” The Governing Board is conducting a nationwide search for a permanent ED, yet has extended Mr. Nastri’s initial 6-month term until February 2017. Mr. Nastri has made a number of staffing changes: Jill Whynot was promoted to Chief Operating Officer, working out of the Executive Office (# 2 position); Laki Tisopulos replaced Mohsen Nazemi as Deputy Executive Officer (DEO) for Engineering and Compliance; Susan Nakamura replaced Jill Whynot as acting assistant DEO for Planning and Rules. Continue Reading
On August 22, the State Water Resources Control Board (“State Water Board”) held an informational meeting to answer questions and get the public up to speed on California’s new surface water diversion reporting requirements. As we previously reported, all surface water diverters will be required to report their diversions annually instead of every three years, as previously required.
Below are three things you need to know about the new requirements:
- The requirements will be phased in depending on how much you divert.
The measurement requirements of the regulation apply to all water right holders who divert more than 10 acre-feet of water per year and will be phased in between January 2017 and January 2018. Large diverters with a right to take 1,000 acre-feet of water or more per year must have a measuring device in place by January 1, 2017, while those with rights for 100 to 1,000 acre-feet have until July 1, 2017 and those with rights to take 10 to 100 acre-feet must comply by January 1, 2018. Continue Reading
Just compensation in condemnation has long been held to require payment that is fair to both the property owner having its property seized and the public taking it. Two of the rules that have developed in this pursuit of fairness came face to face in a recent case, City of Perris v. Stamper, No. S213468, 2016 Cal. LEXIS 6749 (Cal. Aug. 15, 2016). In light of the court’s holding in Perris, property owners reviewing compensation offers may need to pay particular attention to the timing of land use plans and public project announcements applicable to their property.
In Perris, the City bisected Stamper’s vacant light-industrial zone property with a 1.66 acre acquisition to construct a road. The City offered Stamper $44,000 in compensation. Stamper demanded $1.3 million. The basis for this vast difference in valuation lay in the appraisal assumptions.
The City took the position that Stamper’s industrially zoned land should be valued as if it were agricultural. Given that developing his larger property with an industrial use would, in the City’s estimation, require as a condition of City approval that Stamper dedicate the property that the City was condemning to the City without compensation, the true value of the property was no more than its value in agricultural use. The City’s theory was consistent with the holding in another case, City of Porterville v. Young, 241 Cal. Rptr. 349 (Cal. Ct. App. 1987), that deemed the valuation approach appropriate so long as the dedication met the constitutional requirements of rough proportionality of the required dedication to the development’s impact and essential nexus of the required dedication to a valid public purpose. Continue Reading
On August 3, 2016, the Center for Biological Diversity (“CBD”) filed suit against the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) and the State Water Resources Control Board (“Water Board”), challenging the regulators’ decision to approve an aquifer exemption for the Arroyo Grande oil field. Its latest lawsuit against DOGGR, filed in the Superior Court for the City and County of San Luis Obispo, CBD alleges that DOGGR and the Water Board failed to conduct environmental review, in violation of the California Environmental Quality Act (“CEQA”). In order to appreciate the claims in the case, some background is necessary.
The Safe Drinking Water Act and Aquifer Exemptions
The federal Safe Drinking Water Act (“SDWA”), 42 U.S.C. §§ 300g et seq., prohibits injection of fluids that may harm human health into an underground source of drinking water. An “exempt aquifer” is an aquifer for which protection under the SDWA has been waived because the aquifer does not currently serve as a source of drinking water and could not serve as a source of drinking water in the future due to existing mineral production, depth of the aquifer, or existing contamination. 40 C.F.R § 146.4. In short, an aquifer is exempt from the SDWA when it could not feasibly serve as a source of drinking water.