The gray wolf is not currently listed as an endangered or threatened species under the California Endangered Species Act. The gray wolf is also absent from the California list of game animals. (See CA §250–479). As a result, the gray wolf does not fall under any regulatory scheme within the state, despite being a species that is native to California. Given the possibility that gray wolves are already naturally dispersing to California and have a high potential to do so in the near future, the California Department of Fish & Game must address this anomaly by listing the gray wolf as an endangered species and develop a management scheme for the protection of the gray wolf. Such an action would be consistent with the approach taken by the States of Oregon and Washington, both of which listed the gray wolf at a time when no individuals were presently located within their respective State boundaries.For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.
Thursday, March 29, 2012
Petition Filed to List Gray Wolf under California Endangered Species Act
On March 12, 2012, the California Fish and Game Commission received a petition to list the gray wolf as endangered under the California Endangered Species Act. A copy of the petition may be found here. The petition, filed by the Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath Siskiyou Wildlands Center, states:
Property Owners Entitled to Judicial Review of EPA Compliance Orders
Last week, in a closely-watched Clean Water Act case, the United States Supreme Court unanimously upheld the rights of property owners to obtain judicial review of a compliance order issued by the Environmental Protection Agency (EPA). The Court's opinion may be found here.
The decision arises out of an order issued by the EPA under Section 309 of the Clean Water Act. The order declared that property owned by Mike and Chantell Sackett of Priest Lake, Idaho, contained wetlands adjacent to Priest Lake. The order found that the Sacketts violated the Clean Water Act by discharging fill material into wetlands, a violation of Sections 301 and 502(12) of the Act, and directed the Sacketts to restore their property as directed by the EPA and to allow EPA access to the property and documentation regarding the site. Failure to comply with the order exposed the Sacketts to civil penalties of up to $75,000 per day for as long as the violation continues.
The issue resolved by the Court involves the Sacketts' efforts to obtain judicial review of the compliance order. After the EPA denied their request for a hearing, the Sacketts sued in federal district court in Idaho, which dismissed their complaint for lack of subject matter justice. That dismissal was subsequently upheld by the Ninth Circuit Court of Appeals, which held that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process. The Ninth Circuit's opinion may be found here. Absent judicial review, the Sacketts were faced with the prospect of complying with an order at a cost greater than the value of their property. Alternatively, they could ignore the order and risk a civil action by the EPA, with civil penalties that grew with each passing day of alleged violation.
In reversing the Ninth Circuit, the Court held that EPA's compliance order satisfied the requirements for final agency action for which there is no adequate remedy, other than review under the Administrative Procedure Act, and that nothing in the Clean Water Act precluded judicial review. Concluding the opinion of the Court, Justice Scalia explained:
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
The decision arises out of an order issued by the EPA under Section 309 of the Clean Water Act. The order declared that property owned by Mike and Chantell Sackett of Priest Lake, Idaho, contained wetlands adjacent to Priest Lake. The order found that the Sacketts violated the Clean Water Act by discharging fill material into wetlands, a violation of Sections 301 and 502(12) of the Act, and directed the Sacketts to restore their property as directed by the EPA and to allow EPA access to the property and documentation regarding the site. Failure to comply with the order exposed the Sacketts to civil penalties of up to $75,000 per day for as long as the violation continues.
The issue resolved by the Court involves the Sacketts' efforts to obtain judicial review of the compliance order. After the EPA denied their request for a hearing, the Sacketts sued in federal district court in Idaho, which dismissed their complaint for lack of subject matter justice. That dismissal was subsequently upheld by the Ninth Circuit Court of Appeals, which held that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process. The Ninth Circuit's opinion may be found here. Absent judicial review, the Sacketts were faced with the prospect of complying with an order at a cost greater than the value of their property. Alternatively, they could ignore the order and risk a civil action by the EPA, with civil penalties that grew with each passing day of alleged violation.
In reversing the Ninth Circuit, the Court held that EPA's compliance order satisfied the requirements for final agency action for which there is no adequate remedy, other than review under the Administrative Procedure Act, and that nothing in the Clean Water Act precluded judicial review. Concluding the opinion of the Court, Justice Scalia explained:
The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.But perhaps the most interesting commentary in the decision is found in Justice Alito's concurring opinion, where he commented:
The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.The practical effect of the Court's ruling is that the Sacketts, and others who may find themselves in the "unthinkable" predicament described by Justice Alito, will have their day in court. They will certainly be permitted to challenge EPA's claim of regulatory authority over their property. It is less clear whether, at the pre-enforcement stage, they will also be able to challenge the terms and conditions of the compliance order, as Justice Ginsburg explains in her concurring opinion.
For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.
Friday, March 16, 2012
State Senate Committee Holds Informational Hearing On Delta Plan and Bay-Delta Conservation Plan
The State Senate’s Committee on Natural Resources and Water held an informational hearing regarding the Delta Plan and Bay-Delta Conservation Plan on March 13, 2012. A video of the hearing, along with related written materials, is available here.
The Delta Plan is a mandate of SBX7-1 of California's landmark 2009 water legislation, which requires that the Delta Stewardship Council develop, adopt and carry out a comprehensive long-term management plan for the Delta. The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations. The most recent version of the Delta Plan is the Fifth Staff Draft, which is available here. The Sixth Staff Draft of the Delta Plan is scheduled to be released in mid to late April. The draft Environmental Impact Report for the Delta Plan is available here.
The Bay-Delta Conservation Plan is a conservation plan for the Sacramento-San Joaquin River Delta, and is being developed pursuant to the federal Endangered Species Act and California Natural Communities Conservation Planning Act. The BDCP is intended to help meet California’s co-equal goals for Delta management: water supply reliability and ecosystem restoration. The public draft BDCP will include a set of actions to redesign and re-operate state and federal water projects in the Delta; restore native fish, wildlife, and plant habitat; and address other ecological stressors in the Delta such as invasive plant species, barriers to fish migration, and predation of native fish. As a conservation plan, the BDCP is subject to environmental review under the California Environmental Quality Act and National Environmental Policy Act. A preliminary draft of the Bay-Delta Conservation Plan, including those portions recently released on February 29, 2012, is available here. A preliminary draft of the Environmental Impact Report/Environmental Impact Statement for the BDCP, including those portions recently released on February 29, 2012, is available here.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
The Delta Plan is a mandate of SBX7-1 of California's landmark 2009 water legislation, which requires that the Delta Stewardship Council develop, adopt and carry out a comprehensive long-term management plan for the Delta. The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations. The most recent version of the Delta Plan is the Fifth Staff Draft, which is available here. The Sixth Staff Draft of the Delta Plan is scheduled to be released in mid to late April. The draft Environmental Impact Report for the Delta Plan is available here.
The Bay-Delta Conservation Plan is a conservation plan for the Sacramento-San Joaquin River Delta, and is being developed pursuant to the federal Endangered Species Act and California Natural Communities Conservation Planning Act. The BDCP is intended to help meet California’s co-equal goals for Delta management: water supply reliability and ecosystem restoration. The public draft BDCP will include a set of actions to redesign and re-operate state and federal water projects in the Delta; restore native fish, wildlife, and plant habitat; and address other ecological stressors in the Delta such as invasive plant species, barriers to fish migration, and predation of native fish. As a conservation plan, the BDCP is subject to environmental review under the California Environmental Quality Act and National Environmental Policy Act. A preliminary draft of the Bay-Delta Conservation Plan, including those portions recently released on February 29, 2012, is available here. A preliminary draft of the Environmental Impact Report/Environmental Impact Statement for the BDCP, including those portions recently released on February 29, 2012, is available here.
For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.
Tuesday, February 28, 2012
BLM Answers Complaint Challenging Sale of Oil and Gas Leases
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.
Related story:
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.
Related story:
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.
Related stories:
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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