New Laws Reform California’s Surface Mining and Reclamation Act

True to his word, Governor Jerry Brown signed two bills, AB 1142 and SB 209, into law on Monday to reform California’s Surface Mining and Reclamation Act (SMARA).  Now, before getting too excited, keep in mind that the new laws are nowhere near the “top to bottom” reform called for by Brown in 2013.  Local control with state oversight still remains at the heart of SMARA.  However, the new laws will have some real impacts on operators and lead agencies during inspections and state-review of reclamation plans and financial assurances.  The most significant reforms include:

New Name but No Changes in Responsibilities

The Office of Mine Reclamation (OMR) will be renamed the “Division of Mine Reclamation” and the Director of OMR will be the “Supervisor of Mine Reclamation.”  Despite a new name and title, the oversight role and responsibility of the renamed Division of Mine Reclamation and Supervisor of Mine Reclamation remain very much the same as before this reform.

Reform Is Expensive

Maximum annual fees imposed on operators will increase from $4,000 to $6,000 in 2017 to $8,000 in 2018 and to $10,000 starting in 2019.

Reclamation Plan Contents Clarified

The new laws clarified the required contents of reclamation plans for new surface mining operations.  The most significant change requires all engineering, geologist, or land surveyor related maps, diagrams or calculations to include a signature and seal from a California-licensed professional.  This has long been the policy of OMR, based on a policy adopted by the State Mining and Geology Board; however, that policy was never formally adopted through a rule making process applicable to all mines.  As a result, the policy frequently caused confusion as to its applicability during OMR’s review process for reclamation plans. Continue Reading

CA Lawmaker Floats a Legislative Fix to Siskiyou County Farm Bureau Case

Last summer, the Third District Court of Appeal issued a sweeping ruling in Siskiyou County Farm Bureau v. Department of Fish and Wildlife, which made any substantial diversions of water subject to the streambed alteration agreement provisions of the California Fish and Game Code (“CDFW”).  The court ruled that California Fish and Game Code section 1602 (“Section 1602”) gives the California Department of Fish and Wildlife broad authority to regulate water diversions, even when diverters have the legal right to use the water.

This decision caused ripples throughout California, as holders of water rights were now required to provide notice to the CDFW of their historical diversions. Such notification can often necessitate a Streambed Alteration Agreement (which is now a misnomer, as now parties may be required to enter into the agreement despite having never altered the streambed) and potential mitigation measures imposed by the CDFW.

The court held that the most natural reading of the term “divert” as used in Section 1602, when viewing it from historical applications and through the existing legal lens, includes diversions of water that do not cause alteration of or damage to the streambed. The court recognized the implications of its decision, but stated that a fix was to be found “in the halls of the Legislature” as a defect, if any, is a policy issue.  The court’s statements were heard by Senator Jim Nielsen, who recently introduced S.B. 1026.  This Bill seeks to reign-in Section 1602 to limit the definition of diversions to only those diversions that actually alter the bed, channel, or bank of a river, stream, or lake.

If the proposed Bill stays afloat through both chambers and is signed into law, it will provide relief to owners of water rights who draw water from streams without ever altering the streambed. However, owners of water rights may have an uphill battle ahead of them; earlier this week, S.B. 1026 was swamped in its first attempt to sail out of the Senate Committee on Natural Resources and Water on a 3-4 vote.  This does not mark the end of S.B. 1026, but it undoubtedly slows its progress.  Stay tuned for updates on this Bill and other water legislation in the California Legislature’s pipeline.

California Proposes Emergency Regulation to Ease the Prop 65 Warning Burden on Canned and Bottled Food and Beverage Products

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) added Bisphenol A (“BPA”) to the Proposition 65 (“Prop 65”) list as a chemical known to cause reproductive toxicity, on May 11, 2015. Prop 65 provides companies with a one year grace period before having to comply with newly listed chemicals, meaning that as of May 11, 2016, companies must provide a Prop 65 warning for exposures to BPA.[1]  As a result, companies are in a mad dash to eliminate BPA from products and/or add Prop 65 warnings to products containing BPA that will be sold in California.

On March 17, 2016, OEHHA took action under the Emergency Rulemaking Process to allow a temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled food and beverage products—this regulation would eliminate the need for placement of Prop 65 warnings for BPA on individual products.   Instead, a warning at the cash register or check-out line concerning BPA would be deemed an acceptable alternative.

OEHHA has stated that “canned and bottled foods and beverages” means food and beverages packaged in hermetically sealed, durable metal or glass containers, including, but not limited to, fruits, vegetables, soups, pasta products, milk, soda, and alcoholic beverages. OEHHA is proposing the regulation because it understands that even though companies in these industries are taking steps to remove BPA from their products, it will take time to sell thru existing retail inventories.  OEHHA also is hoping to avoid a situation where retailers have to pull large amounts of canned food and beverage products from California due to the upcoming deadline to warn for products containing BPA.

The proposed warning language for the BPA point-of-sale warning is as follows:

WARNING.  Many cans containing food and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life.  Lids on jars and caps on bottles may also have epoxy linings.  Some of these linings can leach small amount of bisphenol A (BPA) into the food or beverage.  BPA is a chemical known to the State of California to cause harm to the female reproductive system.  For more information go to:  www.P65Warnings.ca.gov/BPA.

If adopted, the manufacturer, producer, packager, importer or distributor of the canned or bottled food or beverage can either place a Prop 65 warning to the product that meets the existing requirements of the law (the standard safe harbor warning), or provide written notice through its agent or trader association to the retailer or its authorized agent. The notice must inform the retailer that a warning is required for the product, include the exact name or description of the product that requires the warning (such as the UPC number or other identifying designation), and provide or offer to provide a number of point-of-sale warning signs that contain the warning language listed above.  The retailer receiving the notice must post the point-of-sale warning signs and is responsible for placement and maintenance of the signs.

A point-of-sale sign is a better option for manufacturers and distributors and, if effectively utilized by retailers, could help reduce Prop 65 lawsuits regarding BPA in these products by Prop 65 plaintiffs (also known as “bounty hunters”). The emergency regulation would expire in 180 days but during that period OEHHA will proceed with a regular rulemaking process to extend it as an interim measure for a one-year period from the date of adoption.  It may provide some relief to food and beverage companies in the short-term, but food and beverage companies should continue to take action to address BPA in their products—either by working to remove potential BPA exposures or moving toward use of a Prop 65 warning for such exposures.

 


[1] A warning is not required if exposure to BPA in the product will have no observable effect assuming exposure at 1,000 times the level in question (the maximum allowable dose level, or MADL).  There is no simple test to determine whether a product containing BPA is below the MADL and to make such a determination requires the assistance of an expert toxicologist experienced in conducting Prop 65 exposure assessments.

Status of Oil- and Gas-Related Bills Proposed in California’s 2015-2016 Legislative Session

February 19, 2016 was the deadline for lawmakers to introduce legislation to the 2015-2016 California Legislative Session, and the Legislature’s ever-growing appetite for regulating the energy industry in California shows no signs of being satiated anytime soon.  More bills than ever proposing to add new regulations on the oil and gas industry have been introduced.  Below is a summary of those bills, many of which relate to natural gas storage following the Aliso Canyon natural gas well leak.  Stoel Rives is monitoring these bills and will provide updates as the bills move through the legislative process.

ASSEMBLY BILLS

AB 1759 (Bonta): Hydrogen fluoride: notice of use: substitution

This bill would require an owner or operator of an oil refinery that uses hydrogen fluoride, hydrofluoric acid, or modified hydrofluoric acid in its operations to send out biannual notices to each business, school, child care facility, library, church, community facility, senior facility, and residence within a 3.5-mile radius of the refinery.  The cost of the notice must be paid by the owner or operator of the refinery, and the owner or operator must file a copy of the notice and distribution list with the California Air Resources Board.

Continue Reading

Aquifer Protection Act – Slowing the Flow from California Aquifers

Despite the wet start of 2016, many parts of California continue to face severe water shortages.  The state has grown ever more tapped with groundwater production wells as Californians seek to utilize aquifers to meet their water needs.  However, experts have warned that this modern-day “gold rush” for water from underground aquifers may carry serious consequences for the environment and the future, as well as groundwater users (particularly as implementation of the Sustainable Groundwater Management Act gets underway).

In response, Senator Lois Wolk (D-Davis) has introduced legislation that will halt the development of new water wells in aquifers at risk of overdraft. The Aquifer Protection Act would require cities or counties overlying groundwater basins designated as high- or medium-priority under the Sustainable Groundwater Management Act (Water Code section 10722.4) to require conditional use permits for new water wells.  The bill prohibits new well permits in basins of critical overdraft and basins that are in probationary status.

Cities and counties can avoid the requirements of the Aquifer Protection Act by passing their own limits, which is easier said than done given the hotly contested fights over access to water and water rights. Wells yielding small amounts of water and replacement wells are exempt from the Act. Continue Reading

Fish versus Farms: Proposed Federal Legislation Seeks a Balance for California Water Supplies

On Wednesday, February 10, Senators Dianne Feinstein and Barbara Boxer (Dem.-California) introduced a draft bill with the explicit purpose to “provide short-term water supplies to drought-stricken California and provide for long-term investments in drought resiliency throughout the Western United States.”  Entitled, “California Long-Term Provisions for Water Supply and Short-Term Provisions for Emergency Drought Relief Act” (hereinafter “bill”), the 184-page bill lays out mandates for the use of funds for water projects, water infrastructure improvements and storage, emergency drought relief, and protection of listed and endangered species.

Technology and financing for water supply and re-use are also focuses of the bill. Notably, the bill supports the use of desalination and water recycling.  With regard to desalination, the bill identifies 26 desalination projects throughout California that are capable of producing more than 330,000 acre-feet of water per year.  The bill proposes adding long-term funding to support desalination projects.  In addition, the bill recognizes the need for conservation and water re-use by authorizing the expenditure of $200 million in funds for the Bureau of Reclamation’s water recycling and reuse program.  This money would be used to fund projects to reclaim and reuse wastewaters and naturally impaired ground and surface water.

Continue Reading

California Water Webinar Series on the Sustainable Groundwater Management Act (SGMA)

Earlier this week, environmental consultant Susanne Heim of Panorama Environmental and Stoel Rives water lawyer Wes Miliband hosted the second part of the California Water Webinar series about the Sustainable Groundwater Management Act (SGMA).

In this webinar, Susanne and Wes covered implications of the recently adopted emergency regulations to amend groundwater basin boundaries, as well as gave an update about which local agencies are forming as Groundwater Sustainability Agencies and which agencies are requesting to change basin boundaries. Susanne and Wes closed the webinar by emphasizing why individuals and businesses should participate in the groundwater regulatory process, and what these land owners and groundwater users can do to protect their interests.

The links to the webinar recordings are below.

For more information about SGMA, please contact Wes Miliband at (916) 319-4676 or wes.miliband@stoel.com

Links

SGMA Webinar Part 2: What New Regulations to Modify Basin Boundaries Mean For You & Update on Statewide GSA Formation

SGMA Webinar Part 1: How Changes to Basin Boundaries Intersect with GSA Formation

 

California Fish & Game Commission Adopts “Very, Very Low” Standard for Candidacy under California ESA

El Niño has recently brought lots of rain to California, but it’s not quite time to start loading the animals two-by-two. However, the California Fish and Game Commission (Commission) did its part yesterday to save a potentially imperiled species by designating the Humboldt marten as a candidate species under the California Endangered Species Act (California ESA).

Humboldt marten, a mammal in the weasel family, can currently be found in forested areas in Northern California. Candidacy listing means the Humboldt marten now has full protection under the California ESA pending the review to list as threatened or endangered.  Those who work near Humboldt martens–mostly timber companies–now have two options during the candidacy period: (1) obtain authorization from the California Department of Fish and Wildlife (CDFW) to take Humboldt martens, which can be a time consuming process; or (2) assume the risk of an enforcement action for take violations if Humboldt martens are not avoided.

While this listing may appear to only affect a small geographic area, the decision has much broader implications for species listings throughout the state. Continue Reading

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.

Continue Reading

LexBlog