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.

CEQA Alert: Court of Appeal Rules that EIR Must Analyze Correlation Between Project’s Incremental Impact on Air Quality and Impact on Human Health

In Sierra Club v. County of Fresno (opinion filed 5/27/14; link below), California’s Fifth Appellate District held that the County violated the California Environmental Quality Act (CEQA) by failing to adequately analyze, disclose, and mitigate air quality impacts associated with the 942-acre Friant Ranch master planned community in north-central Fresno County. In part, the court held that the County’s Environmental Impact Report (EIR) was inadequate because it failed to analyze and disclose the impact that the project’s air emissions would have on human health.

Previously, in Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004), the same court held that the potential human health impacts associated with a project’s air emissions must be identified and analyzed in an EIR. According to the Sierra Club decision, in order to satisfy this mandate, an EIR must include an analysis of the correlation between a project’s adverse air quality impacts and the human health impacts specifically attributable to those project-related impacts. The County’s EIR listed the types of air pollutants that the project would generate, quantified those emissions, and included a general description of how each pollutant at issue affects human health. However, the EIR did not specifically analyze the impact on human health resulting from the change in air quality due to the project’s air emissions. The court held this analysis inadequate, but left it to the County’s discretion to select the proper methodology for correlating air emissions with human health impacts.

The Sierra Club court also held that several of the mitigation measures aimed at mitigating the Friant Ranch project’s air quality impacts were deficient because they were vague and unenforceable, conclusory in terms of the expected efficacy of the measures, and/or constituted impermissible deferred mitigation.

The court rejected petitioners’ other CEQA-based challenge, relating to the EIR’s discussion of the project’s wastewater impacts. The court concluded that the EIR adequately disclosed information relating to the amount of wastewater that was expected to be generated by the project and how that wastewater would be disposed of and/or recycled. The court also rejected petitioners’ claim that the project violated California’s Planning and Zoning Law due to alleged inconsistencies with the County’s General Plan policies.

-- Don Sobelman and Nicole Martin

The Sierra Club v. County of Fresno decision is available here.

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

Criminal Defense Update: New DOJ Policy Promotes Recording Arrestee Interviews

The Department of Justice has released a new policy that establishes a “presumption” in favor of recording post-arrest interviews of individuals in the custody of the FBI, DEA, ATF, or U.S. Marshals Service. The policy, outlined in a May 12 memorandum from Deputy Attorney General James Cole, applies to custodial interviews that take place before the arrestee’s initial appearance in court.

The new policy will end the FBI’s heavily criticized prohibition on the recording of interviews without the authorization of a senior supervisor. However, the policy recognizes exceptions to the presumption  if the interviewee refuses to be recorded, for public safety or national security-related intelligence gathering, and where recording the interview is not “reasonably practicable.” The policy also contains a “residual exception,” to be “used sparingly” that permits supervisors to set aside the recording requirement for “a significant and articulable law enforcement purpose.”

The policy change is strongly backed by the defense bar. In a statement, National Association of Criminal Defense Lawyers President Jerry J. Cox said that recording interrogations "protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements."

The new policy takes effect on July 11.

-- Davina Pujari and Chris Jensen

For more information, contact Davina Pujari at dxp@bcltlaw.com, (415) 228-5459, or Chris Jensen at cdj@bcltlaw.com, (415) 228-5411.

Wildlife Agencies Propose New Endangered Species Regulations and Policy on Critical Habitat

On May 12, 2014, Federal wildlife agencies proposed two new rules concerning critical habitat under the Endangered Species Act and a draft policy regarding exclusions from critical habitat designations. The proposals, issued by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), have been published in Federal Register, and comments will be accepted through July 11.

The proposed rules would create a new definition of “destruction or adverse modification” of critical habitat, as well as clarify the process and criteria for designating critical habitat. The new policy would clarify the agencies’ approach to exclusions from critical habitat. Taken together, the new rules and policy, if finalized as proposed, will impact a broad cross-section of government and business activity.

Comprehensive information on the new rules and policy is available on the USFWS webpage. 

-- Josh Bloom and Dave Metres

For more information, contact Josh Bloom at jab@bcltlaw.com, (415) 228-5406, or Dave Metres at dmm@bcltlaw.com, (415) 228-5488.

Environmental Groups Petition EPA to Regulate Air Emissions from Oil and Gas Production and Fracking in Urban Areas

On Tuesday, May 13, 2014, a coalition of environmental organizations led by EarthJustice submitted a Petition to the United States Environmental Protection Agency calling for the regulation of air emissions associated with oil and gas wells, particularly fracking, under the federal Clean Air Act. The environmental groups allege that toxic pollutants emitted by these operations present health risks and that such health risks are increasing as fracking operations move closer to urbanized communities.

Due to the alleged risk to public health, the environmental groups:

urgently request[] EPA to exercise its authority under the Clean Air Act to list oil and gas wells (and associated equipment) located in the appropriate geographical areas as area sources, and set limits on hazardous air pollutant emissions from oil and gas wells and associated equipment in accordance with 42 U.S.C. §§ 7412(c), (d), (k), and (n)(4)(B).

The Petition also argues that EPA “has a responsibility under the Clean Air Act to protect people from the toxic air emissions [from oil and gas operations] nationwide, and under section 112(n)(4)B) it must do so.”

The Petition requests that EPA take two specific actions pursuant to the Clean Air Act:

1. Exercise its authority provided by the area source program of the Clean Air Act by listing oil and gas production wells (including fracking activities) as an area source. The Petition argues that the Clean Air allows regulation of “hazardous air pollutants from area sources [that] may individually, or in the aggregate, present significant risks to public health in urban areas,” that oil and gas activities can be properly classified as area sources, and that the Act provides authority to designate such area sources in metropolitan statistical areas (and/or consolidated metropolitan statistical areas) with a population in excess of one million; and
    
2. Set emissions standards for oil and gas production wells (and associated equipment) within the newly listed area source category in accordance with 42 U.S.C. §§ 7412(c)(2), 7412(d)(2)-(3), and 7412(k), that would require implementation of the “maximum achievable” degree of emission reduction.

Under the Clean Air Act, EPA is required to respond to the Petition. Although the Petition seeks a response within 180 days, the Clean Air Act imposes no specific deadline for EPA action.

There will almost certainly be future litigation over the issues raised in the Petition. The environmental groups that filed the Petition may sue EPA if the petition is denied, or if the Agency fails to act in response to the Petition. Alternatively, if EPA moves forward with some type of regulation of oil and gas production and fracking under the Clean Air Act, litigation would likely be brought by either environmental groups (claiming that the regulations are inadequate to protect human health), industry groups (challenging the basis and scope of any regulation of these activities), or both.

A copy of the petition is available here.

-- Tom Boer

For more information, contact Tom Boer at jtb@bcltlaw.com, or (415) 228-5413.

D.C. Circuit Rejects Another Clean Air Act Challenge, Upholds Fine Particulate Standard

The D.C. Circuit added to federal air quality regulators’ winning streak on Friday, upholding a 2013 rule that revises air quality standards for fine particulate matter.

The rule lowers the National Ambient Air Quality Standard (NAAQS) for fine particulate matter from 15.0 µg/m³ to 12.0 µg/m³, and also tightens monitoring requirements for particulate air pollution. Writing for a unanimous court, Judge Kavanaugh cited the “great deference” given to EPA’s evaluation of “competing bodies of scientific research” in rejecting the National Association of Manufacturer’s challenge to the revised  standard. The court also upheld revisions to the NAAQS that eliminate the use of “spatial averaging” of monitoring data to demonstrate compliance with the standard and require additional monitoring locations near heavily traveled roads in large metropolitan areas, as well as rejecting several procedural challenges to the sufficiency of EPA’s notice of the proposed rule and its response to industry comments.

The court’s decision is the latest in a string of cases in the D.C. Circuit (previously discussed here and here) and Supreme Court (discussed here) upholding EPA Clean Air Act rules. The common theme running through the majority decisions in each of these cases is the court’s willingness to defer to EPA’s technical expertise in setting air quality and emissions standard under the Clean Air Act.  EPA has achieved these positive judicial outcomes notwithstanding criticism that EPA at times requests technical deference to mask imperfections in the rule making process and that EPA staff lacks adequate industry-specific experience to be entitled to such deference.

The biggest test of judicial deference to EPA expertise in the field of air quality regulation is still to come, when the Supreme Court issues its ruling on a challenge to EPA’s “tailoring rule” for the regulation of greenhouse gas emissions from power plants and large industrial facilities. As Morgan Gilhuly and I have previously discussed in our commentary on the Supreme Court’s EPA v. EME Homer City Generation decision, proponents of the federal regulation of greenhouse gases hope that that these recent decisions foreshadow the outcome of the tailoring rule case. A decision in that case, Utility Air Regulatory Group v. EPA, No. 12-1146, is anticipated before the end of the current term in June.

The challenge to the fine particulate NAAQS was brought in National Manufactures Association v. EPA, No. 13-1069.  The court’s opinion is available here. 

-- Chris Jensen

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

EPA Seeks Public Comment on the Potential Nationwide Regulation of Fracking Chemicals and Mixtures

On May 9, the Administrator of the United States Environmental Protection Agency (“EPA”) signed an advanced notice of proposed rulemaking (“ANPR”) seeking public input on whether the Agency should collect and publicly disclose information on hydraulic fracturing chemical substances and mixtures. The ANPR, titled Hydraulic Fracturing Chemicals and Mixtures; Advance Notice of Proposed Rulemaking [RIN 2070-AJ93; FRL-9909-13], will be published in the Federal Register shortly, and will provide 90 days for submission of public comments. 

EPA published the ANPR in response to an August 2011 citizen petition submitted under section 21 of the Toxic Substances Control Act (TSCA) by Earthjustice and a coalition of other environmental entities. 

The ANPR seeks input on a wide range of issues related to fracking chemicals and mixtures. Broadly summarized, EPA requests comment from the public and stakeholders on the following issues:

• Whether EPA should collect information on fracking chemicals and mixtures;
• If so, which legal mechanism(s) EPA should use to obtain such information from the regulated community and whether submission of the information would be mandatory or voluntary;
• What companies or practices would be subject to reporting requirements or other regulation of fracking chemicals;
• Information on best management practices for the generation, collection, reporting and/or disclosure of public health and environmental information, potentially including health and safety studies, from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing;
• What practices or operations can be implemented and verified to achieve protection of public health and the environment associated with fracking chemicals and mixtures;
• Whether voluntary third-party certification, and incentives for disclosure, could be valuable tools for improving chemical safety related to fracking;
• Whether incentives and recognition programs could be used to support the development and use of safer chemicals in hydraulic fracturing; and
• Identification of options to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding associated with fracking chemicals.

EPA will use the information collected during the public comment period to decide whether to proceed with the development of a proposed rule to regulate fracking chemicals and mixtures. If EPA proceeds with such a rulemaking, EPA will be required to publish a detailed copy of the proposed rule, including the justification and basis for the rulemaking, and seek comment from the public and stakeholders prior to adopting any final, enforceable regulation. 

The ANPR is particularly relevant to companies that manufacture, import, process, or distribute any chemical substances or mixtures used in any type of hydraulic fracturing. EPA indicates in the ANPR that future regulation could extend to chemical manufacturers, chemical suppliers who engage in processing, service providers mixing chemicals on site to create the hydraulic fracturing fluids, and service providers responsible for injecting the hydraulic fracturing fluid into the well to fracture a formation. This would likely include, at a minimum, businesses falling under the North American Industry Classification System codes 2111 (oil and gas extraction) or 2131 (support activities for mining). 

 

As part of its regulatory process, EPA is specifically considering the legal authority under which it would regulate fracking chemicals. EPA is evaluating whether regulation would be mandatory, pursuant to the Agency’s authorities under TSCA section 8(a) and/or section 8(d), or voluntary pursuant to the Pollution Prevention Act, 42 U.S.C. 13101, or a combination of both. If EPA proceeds to issue a rule under its TSCA authorities, the regulated community may be legally obligated to publicly report the “identity, quantities, types and circumstances of uses of chemical substances and mixtures used in hydraulic fracturing” and/or to conduct and disclose health and safety studies on the use of such chemicals.

The draft of the ANPR submitted to the Federal Register for publication is available on EPA’s website by clicking here. 

 

-- Tom Boer

 

For more information, please contact Tom Boer at jtb@bcltlaw.com or (415) 228-5413.