On Wednesday, July 1, the California State Water Resources Control Board (SWRCB) announced it would extend the deadline for enrolling under the new Industrial General Permit (IGP) for Storm Water Discharges (Permit No. 2014-0057-DWQ) until close of business on Friday, August 14, 2015. The SWRCB also pushed back the deadline for submittal of 2014-15 annual storm water reports under the now-expired 1997 IGP (Permit No. 97-03-DWQ) to August 14.
The SWRCB blamed “ongoing technical difficulties” associated with users attempting to submit annual reports and permit registration documents to its online database, known as SMARTS (Storm Water Multiple Application and Report Tracking System).
Despite the failure of SMARTS to accommodate the large number of users seeking to comply with the new IGP, the SWRCB nevertheless indicated that “[w]hile technical issues are being resolved, the General Permit is in effect.” Draft Order 2015-XXXX-EXEC Amending Order 2014-0057-DWQ (Hearing date August 4, 2015). Thus, entities subject to the new IGP will need to ensure they are in compliance with the substantive requirements of the 2014 permit and maintain all necessary documents, while they wait to access SMARTS for registration.
Barg Coffin attorneys have previously analyzed the key changes and requirements of the new IGP here, here, and here.
--Don Sobelman and Dave Metres
For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Dave Metres as (415) 228-5488 or dmm@bcltlaw.com.
Showing posts with label California State Water Resources Control Board. Show all posts
Showing posts with label California State Water Resources Control Board. Show all posts
Monday, July 6, 2015
Monday, June 29, 2015
Irrigation District Sues, Says State Board Lacks Jurisdiction to Curtail Senior Water Rights
On June 26, the Byron-Bethany Irrigation District (BBID) filed a petition for writ of mandate in Contra Costa County Superior Court requesting that the Court set aside the State Water Resources Control Board’s June 12, 2015 “notice of curtailment,” requiring hundreds of senior water rights-holders to cease diverting water from the Sacramento-San Joaquin Delta.
The BBID website states that BBID is “ a multi-county special district serving parts of Alameda, Contra Costa, and San Joaquin Counties. The District serves a total area of 47 miles and 30,000 acres.” BBID’s service area includes the community of Mountain House, which relies exclusively on BBID for its water supply.
The Petition alleges that the State Board lacks jurisdiction to curtail pre-1914 water rights, that the curtailment notice violates the California Constitution with regard to beneficial use of water, and that BBID was denied constitutional due process.
“Enough is enough,” said BBID Board President Russell Kagehiro in the District’s press release. He went on to refer to the State Board’s action as “irresponsible and unnecessary.”
Meanwhile, also on June 26, the State Board issued a second curtailment notice to senior rights-holders, including the City and County of San Francisco.
--Kathryn Oehlschlager
For more information, contact Kathryn Oehlschlager at klo@bcltlaw.com or (415) 228-5458.
The BBID website states that BBID is “ a multi-county special district serving parts of Alameda, Contra Costa, and San Joaquin Counties. The District serves a total area of 47 miles and 30,000 acres.” BBID’s service area includes the community of Mountain House, which relies exclusively on BBID for its water supply.
The Petition alleges that the State Board lacks jurisdiction to curtail pre-1914 water rights, that the curtailment notice violates the California Constitution with regard to beneficial use of water, and that BBID was denied constitutional due process.
“Enough is enough,” said BBID Board President Russell Kagehiro in the District’s press release. He went on to refer to the State Board’s action as “irresponsible and unnecessary.”
Meanwhile, also on June 26, the State Board issued a second curtailment notice to senior rights-holders, including the City and County of San Francisco.
--Kathryn Oehlschlager
For more information, contact Kathryn Oehlschlager at klo@bcltlaw.com or (415) 228-5458.
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.
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:
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.
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:
- the SWRCB exceeded its authority in adopting a regulation that limited the use of water by riparian users;
- 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);
- the regulation improperly delegated authority to the WDMPs; and
- 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 SWRCB does have the authority to enact regulations governing the “unreasonable” use of water;
- 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;
- 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;
- 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
- the SWRCB’s statement of necessity justifying adopting the regulation was supported by substantial evidence.
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.
Friday, April 4, 2014
California Water Board Finalizes New Water Quality Requirements for Industrial Facility Storm Water Discharges
For the first time in 17 years, industrial facilities in California must contend with a new set of legal requirements controlling storm water. On April 1, 2014, the California State Water Resources Control Board (State Board) formally adopted the final draft of the general NPDES permit that regulates storm water discharges associated with industrial activity, known as the “Industrial General Permit.”
The new Industrial General Permit imposes additional permitting requirements and expands the scope of the Permit to cover new categories of industrial facilities. Facility and EHS managers should review the new permit and ensure their facilities are on-track to be in compliance when the new Permit becomes effective on July 1, 2015. Failure to comply with the new Permit could expose facilities to regulatory action by the State Board and the Regional Water Quality Control Boards, or result in a citizen group lawsuit under the Clean Water Act.
As discussed previously by Barg Coffin attorneys here, here, and here, the new Industrial General Permit will impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations.
According to the State Board, there are over 10,000 California industrial facilities currently enrolled under the previous Industrial General Permit, and each will need to confirm that their operations and practices comply with the new requirements.
Additionally, for the first time, some facilities not previously subject to regulation will be required to notify the State Board that their industrial activities are not exposed to rain water and will not discharge to storm drains in order to obtain an exemption from the substantive requirements of the Industrial General Permit.
Additional information is available on the State Board website, and the Order adopting the Industrial General Permit (2014-0057-DWQ) is available here.
-Don Sobelman and Dave Metres
For more information, please contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Dave Metres at (415) 228-5488, or dmm@bcltlaw.com
The new Industrial General Permit imposes additional permitting requirements and expands the scope of the Permit to cover new categories of industrial facilities. Facility and EHS managers should review the new permit and ensure their facilities are on-track to be in compliance when the new Permit becomes effective on July 1, 2015. Failure to comply with the new Permit could expose facilities to regulatory action by the State Board and the Regional Water Quality Control Boards, or result in a citizen group lawsuit under the Clean Water Act.
As discussed previously by Barg Coffin attorneys here, here, and here, the new Industrial General Permit will impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations.
According to the State Board, there are over 10,000 California industrial facilities currently enrolled under the previous Industrial General Permit, and each will need to confirm that their operations and practices comply with the new requirements.
Additionally, for the first time, some facilities not previously subject to regulation will be required to notify the State Board that their industrial activities are not exposed to rain water and will not discharge to storm drains in order to obtain an exemption from the substantive requirements of the Industrial General Permit.
Additional information is available on the State Board website, and the Order adopting the Industrial General Permit (2014-0057-DWQ) is available here.
-Don Sobelman and Dave Metres
For more information, please contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Dave Metres at (415) 228-5488, or dmm@bcltlaw.com
Monday, February 24, 2014
State Water Board to Adopt Revised Industrial Storm Water Permit on April 1, 2014
The California State Water Resources Control Board (State Board) recently notified the public that it will consider for adoption the final draft of the general NPDES permit that regulates storm water discharges associated with industrial activity. The State Board will hold a public hearing on adoption of the permit at its meeting on April 1, 2014 at 9:00 a.m. at the Cal/EPA headquarters in Sacramento.
The State Board is soliciting comments by the public regarding revisions that have been made to the draft permit since July 19, 2013. Those revisions are mostly minor, but importantly include a change to the effective date of the new permit, moving it back to July 1, 2015, from the previously proposed effective date of January 1, 2015. Written comments must be submitted to the State Board by Tuesday, March 4 at 12:00 noon. Oral comments may be made at the April 1 hearing.
As previously discussed here and here, the State Board’s proposed general permit would impose a new set of permitting requirements for industrial storm water discharges and would expand the scope of the program to cover new categories of industrial facilities. With storm water discharges continuing to be the most active area of citizen enforcement under the Clean Water Act, California industrial facilities should review these proposed changes and confirm with counsel that they will be ready to obtain coverage under the new permit in 2015.
-- Don Sobelman and Dave Metres
For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456. Dave Metres can be reached at dmm@bcltlaw.com or (415) 228-5488.
The State Board is soliciting comments by the public regarding revisions that have been made to the draft permit since July 19, 2013. Those revisions are mostly minor, but importantly include a change to the effective date of the new permit, moving it back to July 1, 2015, from the previously proposed effective date of January 1, 2015. Written comments must be submitted to the State Board by Tuesday, March 4 at 12:00 noon. Oral comments may be made at the April 1 hearing.
As previously discussed here and here, the State Board’s proposed general permit would impose a new set of permitting requirements for industrial storm water discharges and would expand the scope of the program to cover new categories of industrial facilities. With storm water discharges continuing to be the most active area of citizen enforcement under the Clean Water Act, California industrial facilities should review these proposed changes and confirm with counsel that they will be ready to obtain coverage under the new permit in 2015.
-- Don Sobelman and Dave Metres
For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456. Dave Metres can be reached at dmm@bcltlaw.com or (415) 228-5488.
Tuesday, August 13, 2013
New Draft Storm Water Permitting Requirements Issued
California water regulators recently published a new draft of permitting requirements applicable to many businesses – including many businesses never before subject to water quality regulation. After 16 years of settled practice, businesses will face a significant change to storm water regulation in California if the draft requirements become the law.
On July 19, 2013, the California State Water Resources Control Board (“State Board”) issued a draft general NPDES permit that regulates storm water discharges associated with industrial activity. This “Industrial General Permit” would require industrial facilities to comply with a set of new requirements.
The new Industrial General Permit would impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations. In addition, “light industry” facilities, previously exempt upon a simple self-certification, would now have to file an annual, public report and could be subjected to inspections by water regulators.
As under the current Industrial General Permit, facilities that fail to comply with Permit requirements would be subject to civil penalties of up to $37,500 per day per violation under the federal Clean Water Act. Accordingly, all businesses and industrial facilities would be well advised to develop a sophisticated understanding of these new requirements.
The State Board is accepting written comments and evidence on the proposed Industrial General Permit until noon on August 29, 2013. To learn more, the public can attend a web conference workshop on the new permit on August 14, or attend the public hearing on August 21 in Sacramento. Following the comment period, final adoption of the Industrial General Permit is scheduled for early 2014.
Additional information is available on the State Board website at http://www.swrcb.ca.gov/water_issues/programs/stormwater/industrial.shtml
--David Metres
UPDATE, August 19, 2013: The State Water Resources Control Board has extended the public comment period from August 29, 2013 to 12:00 noon September 12, 2013.
UPDATE September 12, 2013: The State Board has once again extended the public comment period from September 12 to September 19, 2013.
Attorneys from Barg Coffin Lewis & Trapp, LLP, a nationally-recognized environmental law and litigation firm in San Francisco, will continue to monitor these developments. For more information, please contact Donald Sobelman, des@bcltlaw.com, (415) 228-5456, or David Metres, dmm@bcltlaw.com, (415) 228-5488.
On July 19, 2013, the California State Water Resources Control Board (“State Board”) issued a draft general NPDES permit that regulates storm water discharges associated with industrial activity. This “Industrial General Permit” would require industrial facilities to comply with a set of new requirements.
The new Industrial General Permit would impose mandatory best management practices (“BMPs”), require increased sampling and monitoring, and mandate technical reports and action plans if monitoring shows that storm water discharges exceed certain pollutant concentrations. In addition, “light industry” facilities, previously exempt upon a simple self-certification, would now have to file an annual, public report and could be subjected to inspections by water regulators.
As under the current Industrial General Permit, facilities that fail to comply with Permit requirements would be subject to civil penalties of up to $37,500 per day per violation under the federal Clean Water Act. Accordingly, all businesses and industrial facilities would be well advised to develop a sophisticated understanding of these new requirements.
The State Board is accepting written comments and evidence on the proposed Industrial General Permit until noon on August 29, 2013. To learn more, the public can attend a web conference workshop on the new permit on August 14, or attend the public hearing on August 21 in Sacramento. Following the comment period, final adoption of the Industrial General Permit is scheduled for early 2014.
Additional information is available on the State Board website at http://www.swrcb.ca.gov/water_issues/programs/stormwater/industrial.shtml
--David Metres
UPDATE, August 19, 2013: The State Water Resources Control Board has extended the public comment period from August 29, 2013 to 12:00 noon September 12, 2013.
UPDATE September 12, 2013: The State Board has once again extended the public comment period from September 12 to September 19, 2013.
Attorneys from Barg Coffin Lewis & Trapp, LLP, a nationally-recognized environmental law and litigation firm in San Francisco, will continue to monitor these developments. For more information, please contact Donald Sobelman, des@bcltlaw.com, (415) 228-5456, or David Metres, dmm@bcltlaw.com, (415) 228-5488.
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