Wednesday, January 14, 2015

Supreme Court Denies Review of Ninth Circuit Delta Smelt Decision

On Monday, January 12, 2015, the U.S. Supreme Court denied two petitions seeking review of a Ninth Circuit decision upholding limits on water diversions from the Sacramento-San Joaquin Delta to protect the endangered Delta smelt.

Several petitioners, including Westlands Water District, the Metropolitan Water District of Southern California, and other agricultural interests and water utilities, had sought review of a March 2014 Ninth Circuit decision that upheld the “reasonable and prudent alternatives” devised by the U.S. Fish and Wildlife Service in a 2008 biological opinion. The decision means that March 2014 decision remains intact.

The U.S. Fish and Wildlife Service developed the reasonable and prudent alternatives (“RPAs”) to comply with Endangered Species Act (“ESA”) requirements. The RPAs (1) substantially curtailed Delta water exports to limit entrainment of Delta smelt at the pumping plants, and (2) required releases of reservoir water and reduced export pumping to prevent salinity intrusion into the Delta. The petitioners alleged that these RPAs contained no demonstration that they were “economically and technologically feasible” as required by the ESA, that the RPAs failed to use the best available scientific evidence, and that the RPAs failed to consider effects on third parties.

The denial of review brings an end to this chapter in the ongoing wars over California’s water infrastructure. However, with drought continuing to plague California and reports that the U.S. Bureau of Reclamation has begun a new environmental study for the pumping plants that export Delta water, the controversy over management of California’s water projects does not show any signs of abating.

The petition for State Water Contractors v. Jewell, No. 14-402, is available here, and the petition for Stewart & Jasper Orchards v. Jewell, No. 14-377, is available here.

-- Dave Metres

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

Tuesday, January 13, 2015

OEHHA Proposes New Proposition 65 Warning Regulations

On January 12, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.

OEHHA proposes to repeal sections 25601 through 25605.2 of the California Code of Regulations (C.C.R.), title 27, and replace them with new regulations governing the content of “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings, under Proposition 65. Among the changes proposed, the new regulations would require certain chemicals to be specifically identified in the text of a warning. The proposed regulations also include warning requirements specific to certain categories of products or facilities, such as prescription drugs, furniture, and enclosed parking facilities, among others.

OEHHA also proposes to adopt a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided.” If adopted, the new website regulation would require a product manufacturer, producer, distributor, or importer, or a particular business subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. However, in its notice, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.

OEHHA will conduct public hearings on both the proposed website and warning regulations on March 25, 2015, and will accept written comments regarding the proposed regulatory action until April 8, 2015.

OEHHA’s notices, statements of reasons, and proposed regulatory text are available here and here

We will continue to provide updates on the status of OEHHA’s proposed regulatory action throughout the rulemaking process.

-- Samir Abdelnour

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