New Water Reporting Requirements for Oil and Gas Operators

A new oil and gas reporting bill, Senate Bill 1281, sponsored by State Senator Fran Pavley, was signed by Governor Brown on September 25, 2014.  The California Department of Conservation – Division of Oil, Gas and Geothermal Resources (“DOGGR”) issued a Notice to Operators containing important information on the new law’s reporting mandates on December 8, 2014.

Under Senate Bill 1281, Section 3226.3 was added to the Public Resources Code and requires the State Oil and Gas Supervisor to provide an annual inventory report of all unlined oil and gas field sumps to the State Water Resources Control Board and Regional Water Quality Control Boards.

Section 3227 of the Public Resources Code was also amended to require operators of wells to provide a monthly and quarterly statement disclosing the following information:

  • The source and volume of water produced from each oil field
  • The water used to generate or make up the composition of any injected fluid or gas
  • The volume of untreated water suitable for domestic or irrigation purposes
  • The treatment of water and use of treated or recycled water in activities, such as exploration, development, and production
  • The disposition method of all water used in or generated by oil and gas field activities – including water produced from each well reported
    • Also the identity of any temporary onsite storage of water and the ultimate specific use, disposal method or method of recycling, or reuse of the water

For each reporting requirement, if water is commingled, it must be assigned proportionately to each well.

DOGGR has provided an interim water reporting form on its website for use until February 2015, at which time a final version of the form will be made available. Continue Reading

Fresno County Aggregate Mine Fends Off Court Challenge

In Friends of the Kings River v. County of Fresno, No. F068818 (Cal. Ct. App. 5th Dist., Dec. 8, 2014), the Fifth Appellate District upheld Fresno County’s (County) approval of the Carmelita Mine and Reclamation Project (Project) in 2012.  The Project includes a proposed aggregate mine and related processing plants on a 1,500-acre site located approximately 15 miles east of the City of Fresno.  Stoel Rives attorneys Tom Henry and Michael Sherman represented the applicant, Colony Land Company, L.P., during the approval process with the County.

This decision is important because: (1) the County was not required to mitigate the loss of farmland with agricultural conservation easements (ACEs); and (2) the Court addressed the scope of the State Mining and Geology Board’s (SMGB) authority to review reclamation plans on appeal. Continue Reading

High Speed Rail Moves Forward Without CEQA Review

The Surface Transportation Board (“STB”) issued a declaratory order in a 2-1 vote last Friday, finding that the  California Environmental Quality Act (“CEQA”) is categorically preempted by federal law, as it relates to the Fresno to Bakersfield segment of the California High-Speed Rail Project (“HSR Project”).

Section 10501(b) of Title 49 of the United States Code provides that remedies with respect to rail transportation are exclusive and preempt remedies provided under State or Federal law.  The STB has previously ruled that states or localities are precluded from intruding into matters directly regulated by the STB, in particular when the state or local action would have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.

Under this section, the STB could not overlook the fact that CEQA, as a state pre-clearance requirement, could ultimately deny or significantly delay the High-Speed Rail Authority’s (the “Authority”) right to construct a railroad line.  This would directly defy the STB’s exclusive jurisdiction over a project that it regulates.  Even if it could be argued that the Authority created an implied agreement by voluntarily beginning the CEQA process, the STB concluded that any such agreement would unreasonably interfere with interstate commerce because it would prevent the Authority from exercising its authority to construct the rail line, which it had been previously authorized to do by the STB.

As to the public’s concern with any aspect of the Authority’s environmental analysis, the STB noted that the National Environmental Policy Act would still apply to rail construction and the STB could require environmental mitigation conditions if any concerns were raised.

Opponents of the declaratory order had cited to Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314, where the Court of Appeal held that CEQA was not preempted as to the HSR Project under the market participant doctrine.  According to the state appellate court, the market participant doctrine negated federal preemption because CEQA compliance was proprietary in nature and the Authority was not acting as a regulator.  However, the STB disagreed with the Court of Appeal’s application of the market participation doctrine and held that a private citizen’s group challenge to the adequacy of the environmental review under CEQA is not part of the state agency’s proprietary action, even if it challenges the proprietary action itself.  While the Town of Atherton court concluded that the condition under Proposition 1A requiring compliance with CEQA, demonstrated the Authority was a market participant, the STB left the interpretation of Proposition 1A to state law and the courts.   Nevertheless, despite the funding measure approved by the state’s electorate, the STB concluded that section 10501(b) preempts third party attempts to enforce CEQA against the Project.

The STB’s declaratory order effectively only applies to the Fresno to Bakersfield section of the HSR Project, but it undoubtedly will have the effect of applying to each of the other eight segments of the HSR Project.  Future developments will be closely monitored.

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%.

Continue Reading

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.

Continue Reading

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.

Continue Reading

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!

LexBlog