California Attorney General Targets Prop. 65 Plaintiffs’ Settlement Terms

The California Office of the Attorney General is seeking to limit certain payment provisions common in Prop. 65 plaintiffs’ settlements with defendants. The proposed rulemaking, published September 25, 2015, would limit the sums payable to the plaintiffs “in lieu of” civil penalties (often referred to as “Additional Settlement Payments”), as well as require ongoing judicial supervision of how plaintiffs actually expend these funds. The proposal would also permit award of plaintiff’s attorneys’ fees and costs only in cases where there a “significant” public benefit was obtained. The Attorney General’s office stated that the proposals are intended to bring Prop. 65 practice more in line with the drafters’ intent, as well as increase public accountability of the plaintiffs’ bar. Continue Reading

Environmental Activists Attack State Water Resources Control Board Order Approving Oil Industry Wastewater Disposal Methods

On August 28, Earthjustice filed a petition with the State Water Resources Control Board (“Water Board”) seeking to overturn a Central Valley Regional Water Board (“Regional Board”) order allowing an oil and gas wastewater disposal company to maintain their ongoing waste water operations, which can employ unlined disposal pits in Kern County.

Valley Water Management Co. (“Valley”), the operator of the disposal facilities, has been disposing of wastewater in the pits, along with another disposal site, since the 1930’s. The company takes in nearly half a million gallons of oil field wastewater each day for dozens of drillers in the region. In addition to the pits, Valley uses an “irrigation” system, which uses high-powered sprinklers to spray wastewater onto parts of the 94-acre facility.

Regional Board staff recommended the immediate closure of the spray field and a provided a closure deadline of December 2016 for the pits. However, after hearing testimony from various groups, the Regional Board amended the order to allow for continued discharge into the pits until 2018. According to the company, the spray irrigation system disposes of nearly 50% of the daily wastewater received by Valley. Valley claims that closing the disposal facility would reduce oil production among the companies that rely on its facilities and would be economically devastating.

As part of its order, the Regional Board required Valley to conduct monitoring and assessment activities on the site to ensure no off-site contamination. The order also allows for a transition away from the disposal site to alternative forms of disposal, such as injection into deep underground formations.

In addition to the legal petition, a coalition of local organizations sent a letter to the Governor’s office, Water Board and other agencies requesting that they intervene and close these facilities.

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

September 11, 2015, was the deadline for lawmakers to pass legislation and send to the Governor for signature or veto. Below is a summary of several bills related to oil and gas activities, which Stoel Rives has been monitoring. We note that several bills have been identified as two-year bills and, as such, we will provide periodic updates as those bills move through the remainder of the 2015-2016 Legislative Session.


SB-13 (Pavley): Groundwater

SB-13 was chaptered on September 3, 2015.

This bill will:

  • Specify that the State Water Resources Control Board (“the Board”) is authorized to designate a high-or medium-priority basin as a probationary basin.
  • Provide a local agency or groundwater sustainability agency 90 or 180 days, as prescribed, to remedy certain deficiencies that caused the board to designate the basin as a probationary basin.
  • Authorize the board to develop an interim plan for certain probationary basins one year after the designation of the basin as a probationary basin.
  • Authorize a mutual water company to participate in a groundwater sustainability agency and would provide that a water corporation or a mutual water company may participate through a memorandum of agreement or other legal agreement.
  • Require, if the Department of Water Resources (“the Department”) determines that all or part of a basin or subbasin is not being monitored, the Department to determine whether there is sufficient interest in establishing a groundwater sustainability plan.
  • Eliminate the provision requiring a local agency or combination of local agencies that elect to be a groundwater sustainability agency for a basin to submit a prescribed notice of intent to the Department that includes the proposed boundaries of the basin and requires the Department to post the notice on its Internet Web site within 15 days of receipt.
  • Require local agencies to seek to reach agreement to allow prompt designation of a groundwater sustainability agency.
  • Require a new notice to be submitted and the Department to post notice if agreement is reached by the local agencies involving a material change from the information in the posted notice.
  • Require the Department to post only complete notices it receives.
  • Extend the deadline for a basin that is elevated to a medium- or high-priority basin before January 31, 2017, and is not subject to critical conditions of overdraft to be managed under a groundwater sustainability plan to January 31, 2022.
  • State that a guideline, criterion, bulletin, or other technical or procedural analysis or guidance prepared by the department as required by the Sustainable Groundwater Management Act is not subject to the Administrative Procedure Act, except as prescribed.

SB-20 (Pavley): Wells: reports: public availability

SB-20 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly.

This bill would create the California Water Resiliency Investment Fund in the State Treasury and provide that moneys in the fund are available, upon appropriation by the Legislature, for the purpose of providing a more dependable water supply for California.

 SB-32 (Pavley): California Global Warming Solutions Act of 2006: emissions limit

SB-32 failed to move forward prior to the September 11, 2015 deadline and has effectively failed. Stoel Rives will provide an official update as to SB-32’s status when available.

SB-209 (Pavley): Surface mining: inspections: training

SB-209 failed to move forward prior to the September 11, 2015 deadline and has effectively failed. Stoel Rives will provide an official update as to SB-209’s status when available.

SB-248 (Pavley): Oil and gas: well history

SB-248 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly

If passed, SB-248 will:

  • Require the State Oil and Gas Supervisor (“supervisor”) to establish an inspection program for all activities regulated pursuant to these provisions and would require the total number of inspections and results of the inspections to be included in the above-referenced report.
  • Require the Division of Oil, Gas, and Geothermal Resources’ (“division”) regulations, field rules, notices, manuals, and other requirements to be reviewed and revised, as needed, through a public process at least once every 10 years. Require the division, as part of the Oil and Gas Data Management System developed pursuant to the Budget Act of 2015, to ensure that required well data and well-related submissions are retained and readily available to the public and that publicly available data are machine readable. Unless otherwise incorporated in the Oil and Gas Data Management System, the bill would require the division to post certain information that it receives on its Internet Web site.
  • Define “enhanced oil recovery” for purposes of provisions relating to the regulation of oil and gas.
  • Require the division, by July 1, 2017, to develop and implement additional safeguards, as needed, to protect groundwater where a well stimulation treatment is proposed for a shallow well or at a shallow depth in a well, as specified.
  • Require all operations on or in the well of any form to be systematically, completely, and accurately described and recorded in the well history.
  • Require fluid injected or emplaced in the well to be fully characterized and reported as part of the. history, as specified.
  • Require the monthly statement to the supervisor to include the full characterization of the chemical composition of water produced from each well.
  • Require the operator of a waste disposal well to provide to the supervisor each quarter certain information regarding waste disposal injections.
  • Prohibit, commencing July 1, 2017, a chemical from being injected or emplaced in a well unless the division has in its possession specified information developed through established techniques about its physical, chemical, and biological properties in order to permit assessment of its toxicity, persistence, and mobility in the surrounding environment.
  • Require the division to post a list of chemicals and the measured parameters that meet this criteria on its Internet Web site. The bill would require the division to consult with the Office of Environmental Health Hazard Assessment in establishing the acceptable techniques and the list of measured parameters. Because a violation of these requirements would be a crime, the bill would impose a state-mandated local program.
  • Require the division, on or before January 1, 2018, to update and revise these regulations, except as specified, according to specified criteria and would require the division to consult with independent experts and stakeholders in the development and review of the regulations.
  • Require the regulations to include certain requirements, including reporting requirements.
  • Require injection wells and well projects existing as of December 31, 2017, to be brought into compliance with these regulations on or before January 1, 2020.
  • Require these provisions to be liberally construed in order to meet specified requirements and to provide public transparency.
  • Provide that where the division shares jurisdiction over an injection well with a federal entity, the division’s rules and regulations are to apply in addition to all applicable federal laws and regulations.
  • Require an injection well subject to specified emergency regulations, or any successor regulations, of the division regarding aquifer exemptions to immediately cease injection operations, other than those required for plugging and abandonment operations, if the well is not in compliance with those regulations by the applicable regulatory deadline. Because a violation of these requirements would be a crime, the bill would impose a state-mandated local program.
  • Revise the definition of an oil sump and provide that, in order to protect groundwater, surface water, air quality, and wildlife resources, commencing July 1, 2017, no oil sumps shall be used for the disposal of waters or waste waters attendant to oil and gas field exploration, development, and production.

SB-545 (Jackson): Oil and gas operations

SB-545 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly.

If passed, SB-545 would:

  • No longer require the supervisor to perform his or her duties in that manner.
  • Require the supervisor to supervise the exploration and production of hydrocarbons, including, among other things, the drilling, operation, maintenance, and abandonment of wells, use of enhanced oil recovery methods, as defined, and stimulation, as provided, and would authorize the supervisor to allow an owner or operator of a well to drill, operate, maintain, and abandon wells utilizing all known methods and practices to increase the ultimate recovery of hydrocarbons if the supervisor finds that those methods and practices are consistent with existing law.
  • Require an owner or operator of a well to file an application for approval to commence drilling, containing specified information, and would prohibit any drilling until written approval is given by the supervisor or the district deputy containing specified findings. The bill would authorize the supervisor, upon request, to grant a one-year extension if operations have not commenced within one year of the approval.
  • Require the applications and approvals by the supervisor or the district deputy to be posted on the division’s Internet Web site within 10 working days. Require the supervisor to perform his or her duties in conformance with that act. Limit the authorization to maintain the confidentiality of well records to exploratory wells and only if the owner or operator includes specified information in the written request. The bill would deem both the request for, and the granting of, confidential well status to be public records and would require that information to be accessible on the division’s Internet Web site.
  • Require all well records of a confidential well, as defined, to be posted on the division’s Internet Web site within 10 working days once the confidential well period has ended.
  • Require that the confidential period for an offshore well not exceed 3 years from the cessation of drilling operations and would authorize the supervisor to extend the period of confidentiality for confidential wells for only 6 months, upon receiving a written request documenting extenuating circumstances.
  • Require an owner or operator of a well to report specified information to the applicable regional water quality control board within 5 days of any loss of well and well casing integrity. Because a violation of this requirement would be a crime, the bill would impose a state-mandated local program.
  • Authorize any committee of oil producers to make recommendations to the supervisor regarding oil and gas exploration and production, as specified, and would require the division to post any recommendations received by the supervisor on the division’s Internet Web site.


AB-356 (Williams): Oil and gas: groundwater monitoring

AB-356 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly.

If passed, AB-356 will

  • Authorize the supervisor to require a well operator to implement a monitoring program for belowground oil production tanks and facilities, and disposal and injection wells. Failure to comply with this requirement would be a crime.
  • Require the division to annually review underground injection or disposal projects approved by the division that use Class II wells.
  • Require the operator of the project, as a part of its application or the annual review process, to submit to the State Water Resources Control Board or appropriate regional water quality control board for its review and concurrence a groundwater monitoring plan containing certain information, including, among other things, a schedule for monitoring and reporting groundwater quality data, as provided.
  • Authorize the state board or appropriate regional water quality control board to periodically require the modification of the plan to reflect changing conditions.
  • Require the data be submitted to the state board in an electronic format compatible with the state board’s geotracker database. Because a violation of this requirement would be a crime, this bill would impose a state-mandated local program.
  • Require the division, prior to proposing to the United States Environmental Protection Agency an aquifer for exemption, to hold a public hearing on the proposal and to submit the proposal to the state board for review and written concurrence.
  • Authorize the state board to concur with the proposal if certain conditions are met.

AB-815 (Ridley-Thomas): Oil spill prevention and response fees: collection

Chaptered by the Secretary of State on July 15, 2015.

The bill:

  • Authorizes a marine terminal operator or a refinery operator receiving petroleum products derived from crude oil refined in the state to presume the fee has been previously collected.
  • No longer requires the owner of the crude oil or petroleum products to remit the fee to the board.
  • States the intent of the Legislature that the board collect the oil spill prevention and administration fee only upon first delivery to a refinery or marine terminal and not upon the subsequent movement of that same crude oil or petroleum products following that first delivery.
  • Requires every person who operates a refinery in this state, a marine terminal in waters of the state, or a pipeline to transport crude oil out of the state or petroleum products into the state to register with the board for the purposes of the oil spill prevention and administration fee and the uniform oil spill response fee, as applicable.
  • Deletes the definition of oil, and would define barrel to mean 42 gallons of crude oil or petroleum products for these purposes.

AB-1034 (Obernolte): Surface mining and reclamation plans: exemption

Sent to the Governor for signature or veto on September 9, 2015

If signed by the Governor, this bill will:

  • Require a lead agency to consider the construction and operation of a renewable energy generation facility on disturbed mined lands to be an interim use and will prohibit a lead agency from requiring an amendment to an approved reclamation plan if specified criteria are met.
  • Require a lead agency to submit to the director an application for an operating permit for a renewable energy generation facility prior to approving the operating permit, as specified.
  • Authorize the director to prepare written comments to the operating permit application and would require the lead agency, at least 30 days prior to approving the operating permit, to prepare a written response to the director’s comments.

AB-1142 (Gray): Mining and geology: surface mining

AB-1142 failed to move forward prior to the September 11, 2015 deadline and has effectively failed. Stoel Rives will provide an official update as to this bill’s status when available.

AB-1490 Rendon: Oil and gas: well stimulation treatments: seismic activities

AB-1490 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly.

If passed, this bill would:

  • Prohibit a well operator from conducting a well stimulation treatment following the occurrence of an earthquake of magnitude 2.5 or higher on a well that is within a radius of 10 miles from the epicenter of the earthquake until the division completes a certain evaluation and is satisfied that the well stimulation treatment does not create a heightened risk of seismic activity.
  • Prohibit wastewater disposal wells and all well stimulation treatments within 10 miles of a recently active fault, as defined.
  • Violation of these prohibitions would be a crime.

AB-1501 (Rendon): Well stimulation treatments: emissions

AB-1501 is a two-year bill. Stoel Rives will continue to monitor this bill during the 2015-2016 legislative process and will provide updates accordingly.

If passed, this bill would require:

  • An air quality management district to establish an emission standard for methane from a well stimulation treatment, as defined, or a production facility, as defined, and to issue a permit or other regulatory document to an owner or operator to enforce that standard.
  • The emission standard to include specified components.
  • The State Air Resources Board or an air quality management district, as appropriate, to install monitoring stations near any site approved by the division for a well stimulation treatment or a production facility, as specified.

California Prop 65 Update: OEHHA Issues Pre-Regulatory Proposals That Harm Existing Defenses

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) recently released several new pre-regulatory draft proposals regarding Proposition 65 (“Prop 65”). With one possible exception, the pre-regulatory draft proposals double down on the existing Prop 65 burden for companies doing business in California, and would make defending a Prop 65 action even more costly. In an era when more should be done to curb Prop 65 abusive lawsuits, it is unfortunate to see proposals from OEHHA that further complicate the already difficult Prop 65 defense options.

Click through to read our full analysis.

California Groundwater Update: Public Comments Due For Basin Boundary Regulations

As one of many implementation steps under the Sustainable Groundwater Management Act (“SGMA” codified as Water Code §§ 10720 et seq.), basin boundary regulations were released recently by the California Department of Water Resources (“DWR”), with a public comment deadline set for Friday, September 4. DWR is holding public meetings this week to solicit public comments (see, The regulations, if approved later this year by the California Water Commission (“CWC”), would take effect on January 1, 2016 to allow local agencies to request changes to existing groundwater basin (or subbasin) boundaries identified in DWR Bulletin 118.

By way of brief background, SGMA is designed to establish sustainable groundwater management and specifically intended for local agencies to manage groundwater by forming a Groundwater Sustainability Agency (“GSA”) by June 30, 2017. A GSA would then need to form a Groundwater Sustainability Plan (“GSP”) by January 31, 2020 for basins in “critical overdraft,” and by January 31, 2022 for “medium- and high-priority” basins not deemed by DWR to be in critical overdraft.

The draft regulations are designed to increase the ability of local agencies to implement SGMA, which is much needed due to local dynamics varying significantly throughout the state such that a “one size fits all” approach does not fit SGMA. CWC approval of basin boundary regulations thus is very likely.

Under the draft regulations, two modification types exist: scientific and jurisdictional. Scientific changes involve preparation of a technical study related to a basin’s hydrogeological characteristics and conditions, while jurisdictional changes seek to expand or contract existing basin boundaries. The draft regulations contain specific criteria DWR will use to analyze a basin boundary change request.

The lack of alignment of GSA boundaries and basin boundaries – whether based on current or modified basin boundaries – present several implications that should be considered by public and private stakeholders. After all, implementation of SGMA impacts all who extract groundwater or rely on a groundwater supply extracted by another person or entity. Examples of implications include: (i) one or more GSAs governing within a basin, which might subject groundwater users to multiple GSAs; and (ii) impact to water rights including for a stakeholder with multiple parcels located in the same basin that could become subject to regulatory oversight by multiple GSAs.

Proactive efforts by local agencies and private stakeholders are critically important throughout the SGMA implementation process in order to preserve individual water rights and water supply interests. Efforts can be as simple as learning which basin those rights or interests arise from; which local agencies seek to be the GSA; and engaging in the basin boundary regulation process.

This blog will continue to monitor this situation as DWR holds additional meetings and formulates more regulations intended for implementing SGMA.

Legislation Revamping California Groundwater Adjudications Marches Forward

AB 1390 aims in unprecedented fashion to expedite procedures and processes for groundwater adjudications, which, in California, are known to take one or two decades before reaching a final judgment. The bill would add various provisions to the California Code of Civil Procedure that would be codified as Sections 830 through 849. AB 1390 was introduced in the California Assembly on February 27, 2015 and last amended in the California Senate earlier this week on August 18. September 4 is the last day to amend bills, September 11 is the last for each house to pass bills and October 11 is the last day for the Governor to sign or veto bills. With unanimous support so far in both chambers of the Legislature, AB 1390 is well on its way to becoming law, set for further hearing next week in the California Senate.

The key to whether AB 1390 is triggered comes down to whether the trial court – within its discretion – deems the action to be a “comprehensive adjudication.” Section 830.5(d) lends some assistance by defining this term as “an action filed in superior court to comprehensively determine rights to extract groundwater in a basin.” AB 1390 provides exceptions of what would not be a “comprehensive adjudication” (set forth in Section 831 (c)), such as claiming a party’s groundwater extraction facility is interfering with the availability of groundwater to another, or, claiming interference with a specific source of recharge.

While these exceptions seem clear, adjudication history of many cases demonstrates that such claims quickly evolve into basin-wide determinations, in which case AB 1390’s procedures would apply. Specifically, AB 1390 requires the plaintiff or a cross-complainant to undertake various steps (set forth in Sections 832 through 840), including: (i) naming all public water suppliers; (ii) providing public notification of the lawsuit; (iii) providing a draft model answer; and (iv) providing initial disclosures regarding historical water use, locations of extraction and use, and the claimed legal basis for a water right such as an overlying right or prescriptive right. Other obligations then fall upon the trial court and other parties (set forth in Sections 840 through 842), such as identifying trial issues and dividing the process into phases, with the parties required to expedite factual discovery about water use and related factual issues.

With the recent enactment of the Sustainable Groundwater Management Act (“SGMA”), an interesting dynamic would exist as to how AB 1390 (if it becomes law) and SGMA will interplay. On the one hand, AB 1390 might operate in conjunction with SGMA (see Sections 846, 848 and 849) by Groundwater Sustainability Agencies (“GSAs”) being appointed by a trial court as the watermaster in adjudications. On the other hand, if local efforts by GSAs or others dissatisfy just one local water stakeholder, a groundwater adjudication might be filed as an alternative to the GSA’s efforts.

These evolving issues significantly impact all water users throughout the State of California, making all the more necessary strategic planning and implementation for protecting immediate and long-term water rights and supplies.

California DWR’s New Groundwater Basin Regulations for SGMA

With the Sustainable Groundwater Management Act (“SGMA”) taking effect on January 1, 2015, the California Department of Water Resources (“DWR”) is in full swing of holding public workshops and information sessions to solicit input from stakeholders and other members of the public as well as to answer questions regarding SGMA’s various milestone requirements.

On July 20, 2015, DWR held its most recent information session. DWR staff outlined the key topics relating to groundwater basin boundary “emergency regulations” and development of Groundwater Sustainability Plan (“GSP”) regulations.

The July 20 discussion started with a brief overview that SGMA is premised on the idea that local management of groundwater is best, and above all, management needs to be done with sustainable practices. Procedurally, DWR formulates SGMA regulations, the California Water Commission adopts the regulations, and the State Water Resources Control Board serves as an advisor.

Discussion then turned to an open dialogue between DWR staff and members of the public and DWR’s emergency regulations, which were released just days earlier following approval from the California Water Commission. DWR is required under SGMA (Water Code sec. 10722.2) to adopt emergency regulations by January 1, 2016, with these regulations intended to provide the methodology and criteria that DWR will apply when reviewing and approving requests from local agencies to modify groundwater basin boundaries. Existing basin boundaries are identified in DWR Bulletin 118 (2003). Based on local dynamics – political or scientific – local agencies may want to request basin boundary modifications to better fit the conditions in a particular geographic area. If making such a request, the draft regulations require the local agency to assess the likelihood that the proposed basin can be sustainably managed. Part of that analysis involves use of quantitative terms such as “significant” or “unreasonable” to assess impacts that might result from a basin boundary modification or a particular set of management practices. These terms are not defined in the draft regulations, and while creating flexibility, public comments suggest that the terms leave much to be desired to enhance certainty for planning and compliance with SGMA.

As for GSP regulations, the timeline is staggered on a later timeline than the basin boundary regulations. This particular topic on the July 20 agenda was more of advance notice that the draft regulations are anticipated to be available during December 2015. Meanwhile, “discussion papers” are being developed by DWR through a series of ten topics intended to organize issues with GSP formation and implementation. The first batch of discussion papers has been released, focusing on: (1) Pre-SGMA Conditions and Undesirable Results; (2) Measurable Objectives and Interim Milestones; and (3) Land Use and County Involvement. Draft discussion papers on the next two batches of topics are planned for release in August and September 2015.

This blog will continue to monitor this situation as DWR holds additional meetings and formulates more regulations intended for implementing SGMA.

Activists ask Court to Scrap EIR and Stop Fracking

Today, July 30, the Center for Biological Diversity (“CBD”) filed a complaint in Sacramento County Superior Court against the Division of Oil, Gas & Geothermal Resources (“DOGGR”). CBD claims, among other things, that DOGGR failed to comply with Senate Bill 4 (“SB 4”) by releasing its Final EIR regarding oil and gas well stimulation treatment prior to the release of a state-mandated Independent Study.

This lawsuit strikes us as more of a shout out to the Legislature and the Governor to highlight CBD’s ongoing disappointment with SB 4, more than anything else. CBD mistakenly construes SB 4 to require DOGGR to analyze and incorporate the Independent Study’s findings into its Final EIR, when no such requirement is found in the law. Indeed, by its terms, SB 4 only requires DOGGR to comply with the following requirements relating to the EIR:

  • The EIR shall be certified by the division as the lead agency, no later than July 1, 2015.
  • The EIR shall address the issue of activities that may be conducted as defined in Section 3157 and that may occur at oil wells in the state existing prior to, and after, the effective date of this section.
  • The EIR shall not conflict with an EIR conducted by a local lead agency that is certified on or before July 1, 2015.

(Pub. Resources Code, § 3161.) The Legislature, not the Sacramento County Superior Court, is the proper body to which this additional request should be made, as there is currently no law mandating it. Continue Reading

Fate of Injection Wells in Historically Exempt Aquifers Comes Closer to Determination

A lawsuit seeking an immediate halt to oil and gas wastewater injection at 2,500 wells across California took a positive turn for energy producers last week as Superior Court Judge George C. Hernandez denied plaintiffs’ motion for a preliminary injunction in a closely watched case challenging long-standing operations in the California oil and gas industry.

Plaintiffs in Center for Biological Diversity v. California Department of Conservation, California Superior Court, Alameda County, asked the court to throw out the emergency proposed rulemaking recently issued by the Division of Oil, Gas and Geothermal Resources (“DOGGR”). Additionally, the plaintiffs sought an injunction to stop injection wells operating in disputed aquifers.

Under the emergency proposed rulemaking, wastewater injections into non-exempt aquifers must be phased out by 2017. The proposed phasing-out period gives both DOGGR and the U.S. Environmental Protection Agency (“EPA”) the opportunity to determine whether some of the aquifers should be considered suitable places to inject produced water.

In finding no evidence of risk of imminent harm to protected non-exempt aquifers, the court concluded: “On this record, the threat of such contamination [of drinking water aquifers] is theoretical and speculative and plainly outweighed by the other harms [to the public, economy and industry] which are virtually certain to occur if an injunction issues.” Continue Reading

Gov. Brown Assembles Fracking Review Panel

According to several news organizations, Governor Brown has announced plans to form a new panel to review the recent well stimulation study conducted by the California Council on Science and Technology (“CCST”).

The study found that while there is little evidence that hydraulic fracturing is directly linked to widespread negative health and environmental impacts, additional data and record-keeping may be necessary.

The new panel will be composed of individuals from nine different state agencies.  The individuals have yet to be announced.

The announcement comes shortly after a flurry lawsuits attempting to curb oil and gas production throughout the state.  In one case, the plaintiff claims that the state’s well stimulation regulations are discriminatory against minorities.  Another case seeks to impede the opening of federal land in California to oil and gas development.  In yet another case, the plaintiffs seek an immediate halt to oil and gas wastewater injection.

The increased scrutiny comes despite repeated assurance from the Division of Oil, Gas and Geothermal Resources that there has been “no contamination of water used for drinking or agricultural purposes related to underground injection by the oil and gas industry” and “no evidence has been found that underground injection has damaged sources of potential drinking water.”

Furthermore, U.S. Environmental Protection Agency, found that hydraulic fracturing posed no “widespread, systemic” threat to drinking water.

California is the third largest oil producing state in the nation.  The CCST study found that oil produced in California using hydraulic fracturing emits less greenhouse gas per barrel than the average barrel imported to California.