In July, we blogged about the State Water Resources Control Board’s (“State Water Board’) release of proposed General Waste Discharge Requirements for Winery Process Water Treatment Systems (see: July 15, 2020 blog post on proposed General Order and July 20, 2020 blog post on noticed stakeholder meetings).  The State Water Board recently issued a revised

A force majeure clause in a contract permits the suspension, or in some cases, the termination, of performance by a party to the contract upon the occurrence of a force majeure event. Traditionally, a force majeure event is a matter outside of the control of the obligated party that makes it impossible or impracticable for

Last week, the California Department of Fish and Wildlife (“CDFW”) Office of Spill Prevention and Response (“OSPR”) issued notice that it proposes to add ten new regulations (sections 830.1 through 830.11 to Title 14 of the California Code of Regulations) to implement statutory changes resulting from Assembly Bill (“AB”) 1197.  AB 1197 establishes criteria and a process for the certification of oil spill management teams.
Continue Reading CDFW Proposes New Regulations for Oil Spill Management Team Certification with a September 14 Comment Deadline

As a follow-up to our July 15, 2020 blog post regarding the State Water Resources Control Board’s (State Water Board) release of proposed General Waste Discharge Requirements for Winery Process Water Treatment Systems (proposed General Order), today the State Water Board issued a public notice regarding the first stakeholder meeting to discuss fees

On July 3, 2020, the State Water Resources Control Board (State Water Board) released proposed General Waste Discharge Requirements for Winery Process Water Treatment Systems (proposed General Order) along with the draft California Environmental Quality Act (CEQA) Initial Study and Mitigated Declaration for public comment.  The proposed General Order will apply statewide, and includes requirements to ensure winery operations will not adversely impact water quality. The State Water Board also noticed a July 22, 2020 public workshop and future proposed adoption of the proposed General Order.  The July 22, 2020 public workshop will begin at 9:30 a.m. via remote attendance only.  Although a quorum of the State Water Board will be present at the public workshop, no final action will be taken at the workshop.
Continue Reading California Wineries Take Note: State Water Board Releases Draft General Order for Winery Process Water for Public Comment

Last month, the California Department of Fish and Wildlife (“CDFW”) issued notice that it will begin accepting electronic notifications for all Lake and Streambed Alteration Standard Agreements (Cal. Fish & Game Code § 1600 et seq.) effective August 1, 2020.  This move to online applications is part of a broader effort by CDFW to go

A study conducted by researchers at Duke University and RTI International found that reusing oil field produced water that has been mixed with surface water to irrigate crops in Kern County’s Cawelo Water District does not pose any major health risks. To cope with droughts and water shortages, some farmers in the Cawelo district have

Last Thursday, the U.S. Supreme Court held that the Clean Water Act (“CWA”) requires a permit to discharge pollutants that reach “navigable waters” through groundwater, but only if the discharge is the “functional equivalent of a direct discharge” to the navigable water.1 In reaching this decision, the Court took the middle ground. It rejected both the Ninth Circuit’s interpretation that the CWA requires a source to obtain a permit whenever pollutants found in a navigable water are “fairly traceable” to that source, and arguments by Environmental Protection Agency (“EPA”) and others that a permit is never required for discharges of pollutants that reach a navigable water through groundwater.
Continue Reading Supreme Court Holds Clean Water Act Permit Required for Some Discharges to Groundwater

In a split decision in which Chief Justice John Roberts authored the majority opinion, the United States Supreme Court held yesterday in Atlantic Richfield Co. v. Christian that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not bar a plaintiff’s ability to bring state law claims in state court for property damage, such as nuisance and trespass claims, that do not arise under CERCLA.  The Supreme Court further held that plaintiffs can bring restoration claims against potentially responsible parties (“PRPs”) for remediation beyond what the Environmental Protection Agency (“EPA”) requires under CERCLA, but any additional remedial action must be approved by the agency.
Continue Reading U.S. Supreme Court Holds that CERCLA Does Not Block State Law Claims Seeking Restoration, Subject to EPA Approval

On March 19, 2020, California issued Executive Order N-25-20, a statewide shelter in place order in response to the COVID-19 pandemic, significantly altering operations of both state agencies and private businesses.  However, California’s water regulators, including the State Water Resources Control Board (SWRCB), the Regional Water Quality Control Boards, and the Department of Water Resources (DWR), have committed to maintaining critical deadlines, compliance requirements, and agency operations in the interest of public health and safety.

Importantly, the SWRCB’s Division of Water Rights continues to require all surface water users to submit annual reports to meet the April 1, 2020 deadline for reporting 2019 water use.  As of the publication of this alert, although the Division of Water Rights has postponed non-essential file review, the Division of Water Rights is maintaining limited hours to view essential records, by appointment only.

Additionally, the SWRCB and the nine Regional Water Quality Control Boards (collectively “Water Boards”) issued a guidance statement providing that in the interest of protecting public health, safety, and the environment, timely compliance with all Water Board orders and requirements is required. This includes compliance with regulations, permits, contractual obligations, primacy delegations, and funding conditions that are in effect.Continue Reading State Water Agencies Expect Water Use Reporting to Continue as Normal as California Shelters in Place