Late last week, the Bureau of Land Management ("BLM") filed an answer in an action challenging its sale of oil and gas leases in California. A copy of the answer may be found here.
BLM's answer was filed in a lawsuit on which we first reported in December. Filed by the Center for Biological Diversity ("CBD") and the Sierra Club, the lawsuit seeks to overturn BLM's sale of oil and gas leases in Monterey and Fresno counties, charging BLM with having failed to evaluate the impacts of oil and gas development. More specifically, plaintiffs allege that such development will negatively impact various species and their habitats due to the effects of hydraulic fracturing, or fracking, oil spills, and methane leakage. Additional details regarding the lawsuit may be found here.
Plaintiffs filed an amended complaint at the end of December. The amended complaint did not materially alter the allegations of the original complaint. BLM filed its answer on February 24. Not surprisingly, the answer denies the essential elements of the amended complaint. With respect to plaintiffs' concerns regarding fracking, BLM avers that the lease sale did not approve any particular drilling method, including fracking. BLM acknowledges generally that fracking uses large volumes of water and can result in emissions of gasses and particulate matter, as plaintiffs allege, but denies the specific allegations of the amended complaint. BLM also denies that the lease sales complained of by plaintiffs will cause harm to species or the environmental from oil spills or methane leakage. Ultimately, BLM denies that plaintiffs are entitled to any relief from the court and requests that the action be dismissed.
We will continue to monitor significant developments in this action, particularly with respect to its potential impact on the practice of fracking in California.
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
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Tuesday, February 28, 2012
Thursday, February 23, 2012
DOG: Fracking Concerns Exaggerate Potential Risks to California's Water Supply
In a letter published today in the Chico Enterprise-Record (and elsewhere), Tim Kustic, Director of California's Division of Oil, Gas & Geothermal Resources (DOG), stated that concerns about hydraulic fracturing, or fracking, exaggerate the potential risks to California's water supply, adding that "fracking has been used to stimulate [oil and gas] production in California for years without a single report of environmental damage."
Responding to a February 16 letter published in the newspaper, which called for an end to fracking in California, Director Kustic wrote:
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
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Responding to a February 16 letter published in the newspaper, which called for an end to fracking in California, Director Kustic wrote:
As head of the Department of Conservation's Division of Oil, Gas and Geothermal Resources, I know the type of fracking portrayed in "Gasland" is not routinely employed in California because the geology is different.
In some parts of the country, it's true that tens of thousands of gallons of water are injected underground at high pressure over a long period of time to break up underlying shale formations.That process allows natural gas that would otherwise remain trapped in the rock to be produced.
In California, fracking typically is a short-term method of well stimulation that uses much less water. Much of our natural gas is produced from sand, which does not require fracking stimulation.Director Kustic also noted that, despite the absence of legislation specifically targeting fracking, California has regulations in place to protect water supplies that could potentially be impacted by fracking or other oil and gas production activities:
While it's true that California does not currently have fracking-specific regulations, the state does have extensive regulations to protect any water supplies near oil and gas wells.Assembly Bill 591, a bill that would require greater disclosure of fracking-related activities in California, is pending in the legislature. Introduced on February 16, 2011, the last amended version of AB 591 would require an owner or operator of an oil or gas well (or those working on its behalf) to document specified information regarding fracking activities. It would also require the owner or operator to file with the DOG copies of the well log, core record, and history of work performed. It would also require DOG to add this information to its website, make the information available to the public, and submit a report to the legislature by January 1, 2013. This bill, sponsored by Assemblymember Bob Wieckowski representing California's 20th district, was held under submission in the Senate Appropriations Committee on August 25, 2011. Further action on AB 591 is expected in 2012. As Director Kustic noted, however, and as was explained in a recent webinar presented by Kronick Moskovitz Tiedemann & Girard, existing California statutes give the DOG wide latitude and authority to regulate all oil and gas-related activities, including fracking operations. AB 591 would, however, more clearly define the disclosure obligations of oil and gas operators.
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
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Wednesday, February 22, 2012
DWR Reduces 2012 Allocation to 50%; Reclamation Announces Initial 2012 Allocation of 30%
Two important announcements affecting millions of California water users were made today. The California Department of Water Resources (DWR), which had previously announced an initial allocation of 60 percent in November 2011, today reduced that allocation to 50 percent. And the Bureau of Reclamation (Reclamation) announced today an initial allocation of 30 percent to North- and South-of-Delta agricultural water service contractors, while Municipal and Industrial water service contractors are projected to receive 75% of their historic use.
DWR Director Mark Cowin said:
DWR's press release announcing the reduced allocation may be found here. Reclamation's press release may be found here.
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
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DWR Director Mark Cowin said:
Stubbornly dry conditions this winter give us no choice but to roll back our water supply estimate. We continue to hope, however, that wetter conditions in the remaining winter weeks will allow us to boost deliveries back up.Reclamation's Mid-Pacific Regional Director Donald Glaser added:
Hydrologically, 2012 is shaping up to be a challenging year. December – traditionally one of our wettest months – ended up being one of the driest on record and this pattern continues today. The good news is that we started the water year with exceptional carryover storage – 9.3 million acre-feet – and storage in our reservoirs now stands at 103 percent of the 15-year average. This storage is the foundation for this initial allocation, and with almost two months remaining in California’s rain season, we continue to hope for improved precipitation.Today's announcements reflect the low precipitation levels experienced this year in California. As we reported earlier this month, the water content of this year's snowpack is well below normal, and major reservoirs are beginning to show the effects of the lack of rainfall. In November 2011, the State Water Project's (SWP) largest reservoir, Lake Oroville, was at 80 percent of capacity with 2,825,422 acre-feet in storage, or 130 percent of normal for the date. As of midnight yesterday, storage in Lake Oroville had been reduced to 2,543,581 acre-feet, 72 percent of capacity and just about 100 percent of normal for the date. The largest reservoir for the federal Central Valley Project (CVP), Lake Shasta, has fallen to slightly below normal for this time of year and is currently at 69 percent of capacity. Additional information reported by DWR on current water conditions in California may be found here. Reclamation reports water supply information for its Mid-Pacific Region here.
DWR's press release announcing the reduced allocation may be found here. Reclamation's press release may be found here.
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
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Friday, February 10, 2012
Department of Interior Announces Over $11 Million in Funding for the Central Valley Project
The Secretary of the Interior, Ken Salazar, recently announced $50 million in funding for water infrastructure projects in the West, including over $11 million in funding for the Central Valley Project (CVP).
The 2012 Spending Plan for the Bureau of Reclamation, which manages and operates the CVP, allocates over $11 million in funding to the CVP for fish screens and fish passage facilities ($4.3 million); water conservation and water delivery activities ($4 million); environmental restoration and compliance ($1.75 million); and facility operation and maintenance ($1.044 million). The remaining funds will be spent on a variety of projects throughout the West, with $30 million allocated to rural water construction projects in North Dakota, Montana, New Mexico, and elsewhere. The Bureau's 2012 budget may be found here.
Notably, the 2012 Spending Plan states that the funds for CVP-related environmental restoration and compliance will “support the completion of the National Environmental Policy Act and Endangered Species Act environmental compliance processes to comply with federal district court rulings on both the U.S. Fish and Wildlife Service and National Marine Fisheries Service Biological Opinions.” As we previously reported, a federal district court concluded that the 2009 Salmonid Biological Opinion prepared by the National Marine Fisheries Service (NMFS) was arbitrary, capricious, and unlawful and remanded the Biological Opinion back to NMFS. The same court concluded that the 2008 Delta Smelt Biological Opinion prepared by the U.S. Fish and Wildlife Service (FWS) was arbitrary, capricious, and unlawful and remanded that Biological Opinion back to FWS. (See related stories here and here.)
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
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The 2012 Spending Plan for the Bureau of Reclamation, which manages and operates the CVP, allocates over $11 million in funding to the CVP for fish screens and fish passage facilities ($4.3 million); water conservation and water delivery activities ($4 million); environmental restoration and compliance ($1.75 million); and facility operation and maintenance ($1.044 million). The remaining funds will be spent on a variety of projects throughout the West, with $30 million allocated to rural water construction projects in North Dakota, Montana, New Mexico, and elsewhere. The Bureau's 2012 budget may be found here.
Notably, the 2012 Spending Plan states that the funds for CVP-related environmental restoration and compliance will “support the completion of the National Environmental Policy Act and Endangered Species Act environmental compliance processes to comply with federal district court rulings on both the U.S. Fish and Wildlife Service and National Marine Fisheries Service Biological Opinions.” As we previously reported, a federal district court concluded that the 2009 Salmonid Biological Opinion prepared by the National Marine Fisheries Service (NMFS) was arbitrary, capricious, and unlawful and remanded the Biological Opinion back to NMFS. The same court concluded that the 2008 Delta Smelt Biological Opinion prepared by the U.S. Fish and Wildlife Service (FWS) was arbitrary, capricious, and unlawful and remanded that Biological Opinion back to FWS. (See related stories here and here.)
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
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Monday, February 6, 2012
Judge Stays Enforcement of Russian River Frost Control Regulation
According to newspaper reports (here and here), a Mendocino County Superior Court Judge has granted a grape grower’s request to stay the Russian River Frost Control Regulation until the legality of the Regulation is determined. KMTG staff contacted the Court Clerk’s office to obtain a copy of the Court's order and was advised that Judge Ann Moorman has taken the stay request under submission and will provide the parties with a written order. Judge Moorman presides over the civil lawsuit filed by Rudolph Light, a Redwood Valley grape grower, challenging the legality of the Frost Control Regulation adopted by the State Water Resources Control Board (Board) late last year.
As we previously reported, the Frost Control Regulation seeks to regulate the diversion of water from the Russian River stream system for the purposes of frost protection, by requiring diverters to develop a detailed Water Demand Management Program (WDMP). Under the Regulation, diverters who use water for frost protection, such as grape growers, were required to submit a WDMP to the Board by February 1st, which must be approved by the Board before water could be diverted for frost protection. The purpose of the Regulation is to monitor and coordinate frost protection water diversions so that peaks in water demand can be mitigated, to avoid the stranding of salmonids resulting from rapid declines in stream flow.
Last week's news reports indicate that Judge Moorman decided to postpone the enforcement of the Frost Control Regulation until the court rules on the legality of the challenged Regulation. A stay would mean that Russian River farmers will not be required to comply with the new Regulation while the lawsuit challenging the legality of the Regulation remains pending.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
As we previously reported, the Frost Control Regulation seeks to regulate the diversion of water from the Russian River stream system for the purposes of frost protection, by requiring diverters to develop a detailed Water Demand Management Program (WDMP). Under the Regulation, diverters who use water for frost protection, such as grape growers, were required to submit a WDMP to the Board by February 1st, which must be approved by the Board before water could be diverted for frost protection. The purpose of the Regulation is to monitor and coordinate frost protection water diversions so that peaks in water demand can be mitigated, to avoid the stranding of salmonids resulting from rapid declines in stream flow.
Last week's news reports indicate that Judge Moorman decided to postpone the enforcement of the Frost Control Regulation until the court rules on the legality of the challenged Regulation. A stay would mean that Russian River farmers will not be required to comply with the new Regulation while the lawsuit challenging the legality of the Regulation remains pending.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
Wednesday, February 1, 2012
DWR Survey Shows State Snowpack Levels at 37%
Snow surveys conducted today by the Department of Water Resources (DWR) confirmed that the water content of California's snowpack is far below normal for this time of year. The water content is at just 37% of normal for February and is only 23% of the average April levels, which is usually when snowpack is at its peak. Snowpack levels are reported on DWR's Data Exchange Center.
DWR Director Mark Cowin said:
As we previously reported, DWR's intial estimate is that the State Water Project (SWP) will be able to deliver 60% of the water requested by public agencies for 2012. However, the amount of water that is ultimately delivered will depend on hydrologic conditions over the next few months.
DWR's news release may be found here. A video depicting today's snow survey at Phillips Station may be found here.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
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DWR Director Mark Cowin said:
"So far, we just haven't received a decent number of winter storms. We have good reservoir storage thanks to wet conditions last year, but we also need more rain and snow this winter."Near-record snowpack and heavy rains last winter provided carryover reservoir storage that can be used to help meet the State's water demands. Water levels at Lake Oroville, Lake Shasta and the San Luis Reservoir are all at or above average for this time of year. Reservoir levels are reported on DWR's Data Exchange Center.
As we previously reported, DWR's intial estimate is that the State Water Project (SWP) will be able to deliver 60% of the water requested by public agencies for 2012. However, the amount of water that is ultimately delivered will depend on hydrologic conditions over the next few months.
DWR's news release may be found here. A video depicting today's snow survey at Phillips Station may be found here.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
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