As an update to our prior blog post, on January 17, 2017, the California Division of Oil, Gas and Geothermal Resources (“DOGGR”) released a letter sent to notify the U.S. Environmental Protection Agency (“EPA”) of California’s progress toward compliance with the Safe Drinking Water Act. DOGGR stated that it will allow oil field wastewater injection to continue in aquifers in 29 fields (covering approximately 1,650 wells), pending U.S. EPA approval. After a thorough review, DOGGR estimates that 80% of the aquifer applications currently under review qualify as exempt aquifers and should be approved by U.S. EPA as such. The remaining 20% of wells in the areas under review will be subject to shut-in on February 15, pending completion of the regulatory agencies’ formal review. We will continue to monitor the situation as the February 15 deadline draws near.
December 31, 2016 marked a deadline for oilfield operators to comply with the Division of Oil, Gas and Geothermal Resources’ (“DOGGR”) Aquifer Exemption and Compliance Schedule Regulations. Operators were required to either cease injection of oilfield wastewater or obtain an aquifer exemption to continue injecting such wastewater. This deadline was applicable to 11 aquifers that were historically treated as “exempt” aquifers, but have recently undergone review by DOGGR due to compliance issues with the federal Safe Drinking Water Act (“SDWA”).
For any underground injection project approved by the Division [DOGGR] for injection into one of the 11 aquifers listed in subdivision (b)(1), injection shall cease by December 31, 2016, unless and until the U.S[.] Environmental Protection Agency, subsequent to April 20, 2015, determines that the aquifer or the portion of the aquifer where injection is occurring meets the criteria for aquifer exemption.
Cal. Code Regs. tit. 14, § 1779.1(b)
In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal agencies in the United States District Court for the Central District of California, challenging the issuance of the Final Programmatic Environmental Assessment (“PEA”) and Finding of No Significant Impact (“FONSI”) for well stimulation treatments on the Southern California Outer Continental Shelf. The December 19, 2016 Complaint names the Department of the Interior, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement (jointly the “Agencies”) as defendants. The Attorney General’s lawsuit follows similar lawsuits filed by the Environmental Defense Center and Santa Barbara Channelkeeper on November 11, 2016, and a separate suit filed by the Center for Biological Diversity (“CBD”) on November 15, 2016.
The Proposed Action is the approval of well stimulation treatments at 22 production platforms on 43 leases on the Southern California Outer Continental Shelf, which sits off the coast of the southern half of the state. The Complaint asserts that the Agencies violated the National Environmental Policy Act (“NEPA”) and the Coastal Zone Management Act (“CZMA”) because they issued the FONSI for the Proposed Action without adequate environmental review. The Agencies “improperly concluded that allowing such activities would result in no significant impacts, in violation of the requirements of [NEPA],” despite the substantial record showing the potential for significant environmental effects. Complaint, at 3. Further, the Attorney General alleges that the Agencies violated the CZMA by failing to determine whether the Proposed Action is consistent to the “maximum extent practicable” with the enforceable policies in California’s coastal zone management program.
In a narrow win for plaintiff Wild Fish Conservancy (“Plaintiff”), the U.S. District Court for the Eastern District of Washington held that the biological opinion (“BiOp”) for the Leavenworth National Fish Hatchery (“Hatchery”) was arbitrary and capricious because the National Marine Fisheries Service (“NMFS”) failed to adequately consider the effects of climate change.
This case concerns a Hatchery located on Icicle Creek about three miles south of Leavenworth, Washington. The purpose of the Hatchery is to replace spawning habitat impacted by construction of the Grand Coulee Dam, and it is operated by the U.S. Fish and Wildlife Service (“FWS”) and the Bureau of Reclamation (“BOR”). Icicle Creek is home to two Endangered Species Act (“ESA”) listed species: the Upper Columbia River Chinook salmon and the Upper Columbia River steelhead.
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.