DWR Put’s Money Where Its Mouth Is In Ag Water Efficiency Grant Program

California’s unique geography and climate have allowed the State to become one of the most productive agricultural regions in the world. Over a third of the country’s vegetables and two-thirds of the country’s fruits and nuts are grown in California. In an average year California’s agricultural industry irrigates 9.6 million acres using roughly 34 million acre-feet of water.

California’s growing demand for water has increased the pressure on California’s agriculture industry to use water more efficiently. To encourage the efficient use of agricultural water, the Department of Water Resources (“DWR”) operates the Agricultural Water Use Efficiency Grants Program (“Grant Program”). The Grant Program is funded with $30 million for agricultural water use efficiency projects.

Grants are available for two types of projects: “Implementation Projects” and “Other Projects.” “Implementation Projects” are projects that create measurable water conservation benefits.  “Other Projects” create potential water conservation benefits, such as research, training, education, and public outreach. Continue Reading

No Issuance of Federal Offshore Fracking Permits Until May 2016

On January 29, 2016, the Bureau of Ocean Energy Management (“BOEM”) and the Bureau of Safety and Environmental Enforcement (“BSEE”), agencies within the federal Department of the Interior (“DOI”), agreed to put a temporary moratorium on issuance of fracking permits in the Pacific Outer Continental Shelf until environmental review is conducted.  The temporary moratorium is the result of a settlement agreement between the DOI and the Center for Biological Diversity (“CBD”).  CBD sued the federal agencies in February 2015, alleging violations of the National Environmental Policy Act (“NEPA”), the Outer Continental Shelf Lands Act, and other federal statutes.  The litigation culminated in this settlement agreement.

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Updates to CEQA Guidelines for Transportation Impacts Analysis Under SB 743

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released a revised draft of thresholds for measuring transportation impacts under the California Environmental Quality Act (“CEQA”). These draft thresholds are designed to promote the reduction of greenhouse gas emissions (“GHG”) pursuant to its mandate under Senate Bill 743 (Steinberg, 2013).  The initial draft was released for review in August 2014.

OPR’s revised draft is fundamentally similar to its initial draft.  In particular, under both drafts, the focus of a project’s transportation impacts analysis under revised Guidelines would shift from analyzing the project’s potential to increase traffic delays to the project’s effects on GHG emissions by focusing on vehicle miles traveled (“VMT”).  The CEQA Guidelines have always focused a project’s potential transportation impacts analysis on the project’s potential to increase traffic delays by analyzing the project’s level of service (“LOS”).

Agencies will have a two-year period to transition from the previously used threshold of significance to the VMT-based approach. Importantly, if approved, traffic delays that may be caused by a project will no longer be considered a significant impact under CEQA.  Moreover, there will be a presumption that development projects located within one-half mile of either an existing major transit or a stop along an existing high quality transit corridor will have a less than significant transportation impact.

The new draft no longer contains any specific suggestions for mitigation measures and alternatives, and instead recommends significance thresholds for specific types of land uses in a non-regulatory technical advisory section:

Residential project: exceeding both existing city household VMT per capita minus 15 percent, and existing regional household VMT per capita minus 15 percent;

Office project: exceeding a level of 15 percent below existing regional VMT per employee;

Retail project: net increase in total VMT may indicate a significant transportation impact;

Mixed Use project: each component of a mixed-use project should be evaluated independently, and significance thresholds should be applied for each type of project

Appendix G has also been revised, and now excludes level of service when determining whether there will be a conflict with a circulation policy.

The new draft is available for review here.  Comments to the Preliminary Discussion Draft should be submitted to OPR by February 29, 2016 at 5:00 p.m.

California Surface Water Diverters Now Required To Report Annually To The State

Taking effect earlier this month, Senate Bill 88 was approved overwhelmingly last legislative session and signed by the Governor as another effort to combat drought and water supply shortage conditions in the State of California. Senate Bill 88 – among other things – authorized the State Water Resources Control Board (“State Water Board”) to adopt emergency regulations.

The State Water Board did so January 19, 2016 by approving emergency regulations requiring all surface water diverters to report their diversions annually instead of every three years, as previously required.  This generally means reporting must be done by June 30 for the prior year’s water use.  The new regulations require water rights holders that divert 10 acre-feet or more of water to comply with new measurement and reporting requirements, which the State Water Board says will be phased in based on the size of the water diversion.  Regulators anticipate approximately 12,000 water rights holders and claimants will be impacted, with failure to comply potentially resulting in a $500 per day penalty.

Other significant points arising from Senate Bill 88 are:

  • Failing Water Systems. The State Water Board now has the authority to force local water systems located within disadvantaged communities (where the annual median household income is less than 80% of the statewide annual median household income) to consolidate with a receiving water system, if the local water system consistently fails to provide an adequate supply for safe drinking water.
  • Civil Liabilities. Previously, civil liability for violation of a requirement under a water conservation program, was limited to a misdemeanor punishable by imprisonment for no more than 30 days or by a fine not exceeding $1,000. This bill provides:
    • Violation of a local water conservation program (adopted under Water Code section 376 or for violating an emergency regulation adopted by the Water Board pursuant to Water Code section 1058.5): can result in a maximum fine of $10,000.
    • First time residential violator: fine not to exceed $1,000 unless an extraordinary situation exists, such as actual notice of violation, conduct was intentional, or the amount of water was substantial.
    • Violation 31 days after notification: fined up to $10,000 plus $500 for each additional day the violation continues.
  • CEQA. The bill also provides certain exemptions from CEQA review:
    • Projects that will mitigate drought conditions and replenish groundwater are exempt from CEQA until January 1, 2017.
    • Projects related to recycled water systems will be exempt from CEQA until July 1, 2017.
    • Adoption of an ordinance to impose stricter conditions on the issuance of well permits or changes in the intensity of land use that would increase demand on groundwater, is exempt from CEQA until July 1, 2017.

Senate Bill 88 and this new set of emergency regulations demonstrate the strong set of winter storms bringing snow to the Sierras and rain mostly to northern California so far this season is not yet enough to slow formation of new drought measures. In fact, the State Water Board is poised next week to decide whether to extend the existing drought regulations through much of 2016.  So, stay tuned…

Stricter Underground Gas Storage Regs are in the Works

On January 15, 2016, the Department of Conservation gave notice of an interim rulemaking package to regulate underground natural gas storage facilities.  The proposed rulemaking comes in response to the continuing gas leak at an underground gas storage facility in Aliso Canyon.

Governor Brown called for the new regulations in his emergency proclamation, which included a mandate that the emergency regulations contain the following requirements:

  • Require at least a daily inspection of gas storage wellheads, using gas leak detection technology such as infrared imaging.
  • Require ongoing verification of the mechanical integrity of all gas storage wells.
  • Require ongoing measurement of annular gas pressure or annular gas flow within wells.
  • Require regular testing of all safety valves used in wells.
  • Establish minimum and maximum pressure limits for each gas storage facility in the state.
  • Require each storage facility to establish a comprehensive risk management plan that evaluates and prepares for risk at each facility, including corrosion potential of pipes and equipment.

The emergency regulations will be officially submitted to the State Office of Administrative Law on January 26, from which point the public will have five days to submit comments. (Correcting our original post, which gave ten days from January 26 as the deadline to submit comments.)

The Aliso Canyon gas storage facility is one of more than 400 underground storage sites across the United States.  Most existing natural gas storage occurs in depleted natural gas or oil fields that are close to metropolitan areas. California has twelve underground natural gas storage sites, seven of which are owned by the two principal gas distributors in the State, SoCal Gas and PG&E.

Prior to the leak, the state had been working on underground injection regulations to require stricter monitoring and measurement of emissions.

A Good Reminder: State and Federal Wildlife Laws Have Severe Penalties for Harm to Endangered Species

Welcome to the New Year! I have decided to declare 2016 to be the year of the endangered species. Why? We ended 2015 with a bang by seeing how serious the take prohibition in the California Fish and Game Code can be for fully protected species. Plus, we saw just how low the bar can go for listing candidate species under the California Endangered Species Act (stay tuned for more on that in a future post). Further, despite recent rains, many species continue to struggle to thrive given the current drought in California. Consequently, as we move into 2016, issues related to endangered species will continue to be front-and-center for many development projects, farmers, water users and others under both California and federal wildlife laws.

First up for 2016: a stern reminder that state and federal wildlife laws do have some teeth. Earlier this week, the U.S. Attorney’s Office announced a plea deal with an Alameda County development company and its president for failing to mitigate for impacts to California tiger salamander (CTS), which is listed under both the California and federal ESA. The deal also resolved allegations of fraud, but the heart of the matter involved the lack of mitigation for impacts to CTS habitat resulting from sediment runoff. As you (hopefully) already know, violations of the California and federal ESA can result in civil and/or criminal penalties. In this case, the developer agreed to pay $1 million in restitution and place a conservation easement on 107 acres (valued at $3 million).

Although this plea deal involved fraud and a willful disregard of the law, it still includes some valuable lessons for those of us who try to color inside the lines. Yes, the wildlife agencies actually do enforce the protections required by the California and federal ESA. Those enforcement actions can lead to fines that can actually affect your bottom line, which might make you think twice about forgoing incidental take coverage. Also, an ominous reminder for those dealmakers out there: buyer beware! This plea deal involved a developer who falsified mitigation records. If the stakes are high enough, you may want to ask yourself what records you have reviewed to confirm the satisfaction of mitigation requirements — or at least be ready to assume the risk of outstanding (and potentially costly) mitigation.

Your Tricolored Blackbird Problem Just Got Worse With Candidate Listing Under the California ESA

Looks like Christmas came early, again, for the Center for Biological Diversity (CBD).  Based on a petition submitted by CBD, the California Fish and Game Commission voted earlier this month to designate the tricolored blackbird as a candidate species under the California Endangered Species Act (ESA).  The tricolored blackbird now enjoys the same legal protections, including the “take” prohibition, that apply to endangered or threatened species under the California ESA.

Within the next 12 months, the Department of Fish and Wildlife will prepare a status report with a listing recommendation.  Based on staff comments at the candidacy hearing, it appears that report will take the full 12 months to prepare.  Consequently, the Commission would likely make its final determination to list (or not to list) the tricolored blackbird as endangered at a public hearing in early 2017. Continue Reading

FAST Act Streamlines Permitting and Environmental Review for Infrastructure Projects

In a rare bi-partisan effort, Congress passed the Fixing America’s Surface Transportation Act (“FAST Act”), which was signed into law by President Obama on December 4. The law makes changes and reforms to many Federal transportation programs, including streamlining the approval processes for new transportation projects.

The President of the American Public Works Association, Brian Usher, applauded the new law saying “This bill provides the streamlined project approval processes that state and local governments need to provide Americans with the transportation systems necessary for economic prosperity.”

For an excellent overview of the new law please see this article from my colleagues.


Environmental Challenge Blasts Kern County Oil and Gas Rules

On Thursday, December 10, environmental organizations filed a complaint against Kern County in California Superior Court alleging that the County violated the California Environmental Quality Act (“CEQA”) by preparing a “grossly inadequate” Environmental Impact Report (“EIR”) for its new oil and gas rules.  The Sierra Club, Center for Biological Diversity, and the Natural Resources Defense Council (jointly “the Sierra Club”), along with several other local organizations, take issue with the programmatic approach of the EIR, and urge a well-by-well environmental analysis.  This lawsuit comes as no surprise to the County.  Environmental groups have a long history of opposing oil and gas development in Kern County, which produces over 70% of all the oil in California.

This lawsuit comes in reaction to a Kern County zoning ordinance amendment which harnessed broad local support.  On November 9, 2015, the Kern County Board of Supervisors unanimously approved amendments to Title 19 of the Kern County Zoning Ordinance which provides a streamline permitting process for oil and gas operations.  Notably, the new ordinance encourages oil and gas producers to work with surface owners to agree on a development plan, promoting cooperation and transparency.  The amendments also required the County to conduct an extensive environmental analysis pursuant to CEQA.  The Board of Supervisors certified the Final EIR after holding multiple public Scoping Meetings and reviewing various mitigation measures.

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How to Fix Your GHG Analysis After the California Supreme Court’s Newhall Ranch Decision

My colleague, Michael Sherman, posted yesterday about two issues decided in the California Supreme Court’s decision in Center for Biological Diversity v. California Department of Fish and Wildlife.  Today, I’ll address the part of the decision that involves the evaluation of the Newhall Ranch project’s greenhouse gas emissions.  In short, the Court just made it a lot harder to evaluate greenhouse gas emissions under CEQA for any large land use project.  There is likely a solution for some situations where the emissions primarily involve the consumption of transportation fuel – the AB 32 Cap and Trade Program was recently expanded to cover those fuels.  This potential solution is hinted at by the Court.  I’ll get to that at the bottom of the post.  But first I’ll discuss the decision and why it’s a problem.

For some background, the Newhall Ranch project would consist of over 20,000 residential units in Southern California.  The Environmental Impact Report (EIR) for this project was certified back in 2010.  The resulting litigation has since been making its way through the courts.  The California Department of Fish and Wildlife used an approach to analyze greenhouse gas emissions similar to what other lead agencies have been using recently.  They relied on the AB 32 Scoping Plan to set a threshold of significance.  AB 32 requires statewide greenhouse gas emissions to return to 1990 levels by 2020.  In the Scoping Plan, the California Air Resources Board determined that this would require a 29% reduction in statewide emissions from a business-as-usual approach — an approach with no conservation or regulatory efforts beyond what was in place when the forecast was made.  Lead agencies have used this standard to find that proposed projects that would reduce their greenhouse gas emissions by at least 29% over a project with a business-as-usual approach would, therefore, have a less than significant impact for greenhouse gas emissions. Continue Reading