Thursday, July 3, 2014

State Water Board Approves Emergency Regulations Regarding Curtailment Orders

On July 2, the State Water Resources Control Board (“Water Board”) approved emergency regulations authorizing it to issue immediately enforceable curtailment orders to holders of surface water rights in California. 

The new regulation authorizes the Water Board, upon determining that “flows are sufficient to support some but not all diversions,” to issue curtailment orders to post-1914 appropriative (a.k.a., “junior”) water right holders in order of water right priority, beginning with the most junior water user.

The Water Board may also issue curtailment orders to senior--i.e., riparian and pre-1914 appropriative--water right holders if it receives: (i) a complaint alleging that a senior holder is interfering with a water right, or (ii) information that a senior holder is unlawfully diverting stored water.

Because curtailment orders issued under the emergency regulation are immediately enforceable, water right holders who violate an order are subject to penalties that begin to accrue from the date of violation. By contrast, prior to adoption of the regulation, the Water Board could only issue notices of curtailment, which were not themselves enforceable, but rather required case-by-case investigations of alleged violations followed by commencement of administrative proceedings against the violator before an enforcement order could issue.   

A water right holder who is subject to a curtailment order under the new regulation may petition the Water Board for reconsideration of the order. Within 30 days of receipt of the petition, the Water Board must conduct an initial review to determine if the petition raises “significant factual issues that are likely to merit reconsideration,” and if so, must immediately suspend the curtailment order until the petition is heard. Unless suspended by the Water Board, curtailment orders may remain in effect for up to 270 days.

The adopted emergency regulation will now be submitted to the Office of Administrative Law, and will likely take effect in mid-July. The proposed resolution adopting the regulation, as well as the final revisions to the resolution and regulation language, can be found here.

The Water Board makes information about its drought year water actions available on its website.

--Samir Abdelnour

For more information, contact Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.

Friday, June 27, 2014

Court of Appeal Upholds State Water Board Regulation Targeting Frost-Prevention Activities of Vineyards in Mendocino and Sonoma Counties

In Light v. State Water Resources Control Board (Opinion filed 6/16/2014), California’s First Appellate District upheld a State Water Resources Control Board (SWRCB) regulation that will potentially limit the amount of water that can be diverted from the Russian River in Mendocino and Sonoma Counties during certain times of the year for frost prevention purposes. The regulation at issue, “Regulation 862,”  applies to “any diversion of water from [a portion of ] the Russian River stream system…for purposes of frost protection from March 15 through May 15.”

As characterized by the Court of Appeal, the purpose of Regulation 862 is to “protect salmonids in the Russian River stream system from stranding mortality due to sudden drops in water level during the later spring and early summer,” which, according to the SWRCB, was primarily attributable to the diversion of water by growers, vineyards in particular, during certain times of the year for use as frost protection. 

Regulation 862 calls for the formation of “water demand management programs” or “WDMPs,” which would be responsible for monitoring water levels in affected watercourses, determining when certain water levels presented a threat to young salmon, and developing “corrective actions” if water levels drop too low. Those diverting water must implement the “corrective actions,” which might include alternative methods for frost protection, construction of offstream storage, and alternative methods of diversion, or cease diverting water altogether.

Two separate petitions for writ of mandate challenging Regulation 862 were filed in Mendocino and Sacramento Counties. Those petitions were consolidated for decision in Mendocino County Superior Court which, in February 2012, issued a stay enjoining the SWRCB from enforcing Regulation 862.

The trial court invalidated Regulation 862 on the basis that:
  1. the SWRCB exceeded its authority in adopting a regulation that limited the use of water by riparian users;
  2. the regulation violated the “rule of priority” governing the manner in which insufficient water is divided among users (who may possess different types of water rights);
  3. the regulation improperly delegated authority to the WDMPs; and
  4. the declaration of necessity for adoption of the regulation was not supported by substantial evidence. The trial court also ruled that the SWRCB violated the California Environmental Quality Act (CEQA) by preparing an inadequate Environmental Impact Report (EIR).
The Appellate Court reversed the trial court’s ruling and vacated the preliminary injunction, holding that:
  1. the SWRCB does have the authority to enact regulations governing the “unreasonable” use of water;
  2. the SWRCB  has the authority to limit the use of water by riparian and pre-1914 appropriative rights users, even though they are not subject to the permitting and licensing authority of the SWRCB;
  3. Regulation 862, on its face, did not violate the rule of priority and a determination as to whether specific measures adopted by the WDMP violate the rule of priority and whether such a violation is justified pursuant to the “reasonable and beneficial use” provisions of Article X, Section 2 of the California Constitution, would be premature;
  4. Regulation 862 did not constitute an improper delegation of authority to governing bodies of the WDMPs since the SWRCB maintained independent discretion to evaluate and enforce the requirements of the WDMPs; and
  5. the SWRCB’s statement of necessity justifying adopting the regulation was supported by substantial evidence. 
In an unpublished portion of the opinion, the Court of Appeal also reversed the trial court CEQA ruling, finding that the EIR prepared to evaluate potential environmental impacts of Regulation 862 satisfied CEQA’s statutory requirements. 

Absent rehearing, the deadline for filing a petition for review of the Court of Appeal’s decision with the California Supreme Court is July 28, 2014.

--Nicole Martin

For more information, contact Nicole Martin at nmm@bcltlaw.com or (415) 228-5435.

Tuesday, June 17, 2014

EPA Proposes Elimination of ASTM Phase I ESA Standard E1527-05 from CERCLA All Appropriate Inquiries Rule

The EPA has announced a proposal to amend the “All Appropriate Inquiries Rule” for conducting environmental site investigations of potentially contaminated property. The proposed amendment will eliminate ASTM E1527-05 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) as an acceptable standard for undertaking “all appropriate inquiries” necessary to qualify for certain liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The All Appropriate Inquiries Rule, 40 CFR part 312 (“AAI Rule”), outlines environmental investigations and inquiries that prospective property purchasers must undertake to qualify for certain liability protections under CERCLA, including the bona fide prospective purchaser defense, contiguous property owner defense, and innocent landowner defense. The requirements also apply to recipients of certain EPA grant funds. In 2005, the AAI Rule recognized a standard published by ASTM International, ASTM E1527-05, as a standard that satisfies these requirements.

In December 2013, the EPA published a final rule that formally identified the recently published ASTM E1527-13 as another acceptable standard. ASTM E1527-13 updated ASTM E1527-05 by, among other things,
  • clarifying and redefining certain key terms, such as “recognized environmental conditions” (or “RECs”), “historical RECs,” and “controlled RECs,” 
  • explicitly recognizing that potential vapor migration and releases must be considered, and
  • providing additional guidance relating to regulatory agency file and records review.
When EPA formally incorporated the updated ASTM E1527-13 standard into the AAI Rule in December 2013, the agency stated that it “strongly encourages prospective purchasers of real property to use the updated ASTM E1527-13 standard when conducting all appropriate inquiries.” However, EPA chose not to eliminate reference to the 2005 standard altogether, at that time. 

By now removing reference to ASTM E1527-05 from the AAI Rule, EPA hopes to “reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its own promulgating organization as meeting its standards for good customary business practice,” and to “promote the use of the standard currently recognized by ASTM International . . . .”   

EPA is proposing that the effective date for removal of the reference to ASTM E1527-05 be one year following publication of the final rule, “to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing and to become familiar with the updated industry standard (ASTM E1527-13).”

A separate ASTM standard identified in the AAI Rule for “Forestland or Rural Property” (ASTM E2247-08) is unaffected by today’s proposed rule.
 
--Don Sobelman and Nicole Martin

For more information, contact Donald Sobelman at (415) 228-5456, des@bcltlaw.com, or Nicole Martin at (415) 228-5435, nmm@bcltlaw.com.

Wednesday, June 11, 2014

State Water Board Commences Curtailment Program in Response to Statewide Drought

In the past month, the State Water Resources Control Board (“Water Board”) has issued three curtailment notices to water rights holders pursuant to the Governor’s January 17, 2014 State of Emergency Proclamation addressing critical drought conditions across the State.

On May 27, the Water Board issued a “Notice of Unavailability of Water and Immediate Curtailment” for all holders of post-1914 appropriative water rights diverting from the Sacramento and San Joaquin River watersheds. The notice orders post-1914 rights holders to “immediately stop diverting” water under their rights, or face potential fines of $1,000 to $10,000 per day. The notice also advises holders of more senior water rights, including riparian rights and pre-1914 appropriative rights, that their water rights may be curtailed “in the near future” if drought conditions persist. The Water Board’s website indicates that curtailment of “junior pre-1914 water rights” (not defined) is projected to occur between June 1 and June 15, with curtailment of additional pre-1914 water rights projected to occur after June 16, on a basin-wide basis for the Sacramento-San Joaquin watershed.

Also on May 27, the Water Board issued a similar, but more limited, notice for the Russian River watershed, which applies only to post-1914 appropriative rights holders with a priority date of February 19, 1954, or later. The May 27 notices follow a May 16 notice of curtailment to “junior priority class” water rights holders diverting from the Scott River watershed.  Like the notice for the Sacramento-San Joaquin watershed, the notices covering the Russian River and Scott River watersheds also contain warnings to senior water rights holders that their diversions may be curtailed if drought conditions continue. However, the Water Board’s website does not contain information at this time projecting the timing of future basin-wide curtailments for the Russian River and Scott River watersheds.

Information about the Water Board’s actions responding to the drought, including information on curtailment of water diversions, is available here.

-- Samir Abdelnour

For more information, contact Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.

Agencies Extend Comment Period for “Waters of the United States” Proposed Rule

Having received over 60,000 comments already, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers have extended the comment period for their proposed rule defining “waters of the United States.” The proposed rule would redefine what types of waters are subject to regulation under the Clean Water Act. The proposed rule was published in the Federal Register on April 21, 2014 and, as Barg Coffin attorneys predicted, has received a flood of interest. Stakeholders now have until October  20, 2014 to submit comments. 

-- Estie Kus

For more information, contact Estie Kus at (415) 228-5463 or emk@bcltlaw.com.

Monday, June 2, 2014

EPA Releases Proposed Rule for Reducing Power Plant CO2 Emissions

Earlier today, EPA released its much-anticipated proposal for reducing greenhouse gas emissions from existing fossil fuel-fired power plants.

In its proposed rule, EPA proposes “state-specific rate-based goals for carbon dioxide emissions from the power sector.” To achieve these goals, states implementing the program would be given flexibility to adopt a range of approaches, including caps on overall emissions (as in California’s cap and trade program) and other programs that would achieve greenhouse gas emissions reductions “outside the fence”—i.e., outside of the utility sector. 

EPA projects a reduction in annual carbon dioxide emissions in the range of 26 to 30 percent of 2005 levels by 2030 if the proposed rule is implemented. Although all fossil fuel-fired power plants would be affected by the draft rule, coal-fired plants would face the steepest reduction requirements.

As anticipated, environmental groups have generally reacted positively to EPA’s announcement, while the coal industry and lawmakers from West Virginia, North Dakota, and other coal producing states oppose the proposal. 

Comments on the proposed rule are due September 30. 

-- Chris Jensen

For more information, contact Chris Jensen at cdj@bcltlaw.com or (415) 228-5411.

Friday, May 30, 2014

Governor’s Office Looks To Fix California’s “Unsustainable” Groundwater Management System

Last week, the Office of the Governor released the first draft of proposed legislation intended to address the state’s “unsustainable” groundwater management system. According to the Governor’s Office, several factors make California’s current water management system unsustainable, including the inability to reliably meet human, economic, and ecological needs, exposure to wet and dry climate cycles and natural disasters, and inadequate capacity to handle the pressures of climate change and future population growth.

Although groundwater is a critical resource—accounting for more than one third of the water used annually by cities and farms—politicians and concerned stakeholders have stated that many of the state’s groundwater basins are not sustainably managed. The proposed legislation is intended to ensure local, sustainable management of California’s groundwater resources. 

The proposed legislation has seven primary components. 
  •  First, it would establish sustainable groundwater management as a policy of the state, with sustainability being based upon the best available science, monitoring, forecasting and use of technological resources.
  • Second, it would amend the California Water Code to clarify that the diversion of water to underground storage (e.g. diversion for groundwater recharge) is a diversion for beneficial use. 
  • Third, it would require that the Department of Water Resources provide technical assistance to local groundwater management agencies for data collection, assessment, and development and implementation of sustainable groundwater management plans. 
  • Fourth, it would significantly expand the regulatory and enforcement authority of groundwater management agencies.     
  • Fifth, it would require an exchange of information between land-use planners and groundwater management agencies, including a requirement that cities and counties share General Plan amendments with groundwater management agencies. 
  • Sixth, it would enable the State Water Resources Control Board to act as a backstop when agencies fail to adopt a groundwater management plan, fail to implement a plan, or adopt an inadequate plan. In such circumstances, the State Board would be permitted to take several incremental steps to encourage and incentivize agencies to establish sustainable groundwater management locally. If necessary, the State Board would be authorized to adopt and implement a temporary groundwater management plan.
  • Finally, the proposed legislation would include provisions that the Governor believes would make groundwater adjudications more efficient. However, this component is still being developed and the current draft does not contain any specific proposed language on this topic. 
Prior to releasing the draft legislation, the Governor’s Office held several workshops focused on improving groundwater management and received legislative proposals from the Association of California Water Agencies and California Water Foundation, among others.

The Governor’s Office noted that the proposed legislation is intended to help foster the ongoing discussion about sustainable groundwater management. It indicated that these discussions will extend beyond the state budget that lawmakers will take up in June. 

-- Estie Kus

For more information, contact Estie Kus at emk@bcltlaw.com or (415) 228-5463.