California Environmental Law and Policy Update

Environmental and Policy Focus

Expanding the definition of "waters of the United States" – EPA's proposed new rule

Allen Matkins - Apr 23

On April 21, 2014, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers formally proposed a rule establishing a regulatory definition of the term "waters of the United States." This definition, if adopted, would establish the limits of federal jurisdiction over surface waters found anywhere in the United States. The agencies' joint Notice of Proposed Rulemaking can be found at 79 Fed. Reg. 22188. An extended period for notice and comment on this proposed rule ends on July 21, 2014. The limits of federal jurisdiction over surface waters has been the subject of several critical and controversial decisions of the U.S. Supreme Court, and is of vital importance to anyone who owns, or uses, or is thinking of acquiring land that contains or is situated near any surface streams, wetlands, rivers, lakes, pond, gullies, or virtually any other surface feature that holds or carries water, or that did so in the past, or that might do so in the future. The proposed rule, which has been in the works for many months, reflects the agencies' effort to define "waters of the United States" with as close to a "bright line" rule as possible in a manner that is consistent with the rather murky standards suggested by recent U.S. Supreme Court decisions.

Ninth Circuit rules California water contracts can be challenged by environmental groups

Bloomberg - Apr 16

On April 16, the Ninth Circuit Court of Appeal ruled in favor of the Natural Resources Defense Council (NRDC) and other conservation groups, holding that they have legal standing to challenge long-term water supply contracts in California. The Court further held that the U.S. Bureau of Reclamation, which manages a series of dams and reservoirs that draws water from the delta, had some discretion to protect smelt in the California River Delta. The NRDC sued in 2008, challenging 41 contracts directing water mostly to agricultural uses. The group alleged that the contracts were harmful to the smelt, which is native to the delta and was declared threatened in 1993 by the U.S. Fish & Wildlife Service. The Ninth Circuit ruling will require the Bureau of Reclamation to potentially reduce the amount of water to contractors, raise fees for using more water, or require certain water conservation measures, according to an attorney for EarthJustice.

California to set chromium limit for drinking water supplies

Los Angeles Times - Apr 25

California’s Department of Public Health is adopting the nation's first-ever drinking water standard for hexavalent chromium, a carcinogen found in water supplies across the state. The department announced Tuesday that it has submitted a final regulation setting a limit of 10 parts per billion in public drinking water supplies, a level that will require more than 100 water systems to treat for the contaminant. Known as chromium 6, the toxic heavy metal makes its way into groundwater naturally from geological formations. It also is an industrial pollutant made famous for tainting water supplies in the desert town of Hinkley, California, inspiring the movie "Erin Brockovich." Current state and federal standards are for total chromium — which includes trivalent chromium, an essential nutrient found naturally in foods. The 10 parts per billion hexavalent standard was proposed last year. It is 500 times greater than a non-enforceable public health goal set earlier by the state Environmental Protection Agency.

California edging closer to regulating groundwater for the first time

KQED - Apr 22

On April 22, state Sen. Fran Pavley (D-Agoura Hills) puts a trio of water conservation bills before her Natural Resources and Water Committee, the centerpiece of which (SB 1168) is a frontal assault on the management of California’s groundwater, which, compared to other western states, is almost unregulated. The current drought appears to be putting a new level of pressure on the groundwater debate. Cutbacks in state and federal water allocations have unleashed a drilling frenzy for water wells, and parts of the San Joaquin Valley are actually sinking from groundwater depletion below. “The single most critical element in achieving [water] sustainability in California is groundwater,” Lester Snow told members of the State Water Resources Control Board at a hearing last week. Snow formerly was the state’s chief water manager and now heads the relatively new California Water Foundation, a non-profit devoted, as he describes it, to “achieving sustainable water management” in the state.

EPA fines San Bernardino County’s Molycorp $27,300

San Bernardino County Sun - Apr 21

The federal Environmental Protection Agency on Monday ordered Colorado-based Molycorp Minerals LLC to pay a $27,300 penalty for improper management of hazardous waste at its San Bernardino County mine and mineral processing facility. Molycorp operates a rare earth mine, mill and separation facility that is believed to be the nation’s only rare earth mine. Molycorp has invested more than $1.55 billion, creating 12 unique plants to separate the rare valuable materials from each other and the low value soils where they are found. Unannounced EPA inspections in October 2012 determined that leaked or spilled materials containing lead and iron were present in stormwater on the plant site, which inspectors said had the potential to contaminate soil along the edge of a holding area, the agency said, in a statement.

California water allotments boosted to 5 percent - Apr 19

In rare upbeat news for California's drought-stricken farmers and cities, state and federal water officials will be boosting their desperately low allotments to water users. It's not a huge increase. The state Department of Water Resources, for example, will provide 5 percent of what its many public agencies and agricultural users have requested from the State Water Project, which serves about 25 million Californians and irrigates nearly 750,000 acres of farmland. Considering the department announced in February that all allocations would be cut to zero, even the tiny change, which resulted from rainfall in February and March, was welcome. However, the revised allocations come too late for many farmers, many of whom have been devastated by the state's three-year drought.

Air quality board to consider delayed implementation of diesel rules for small trucking operations

Los Angeles Times - Apr 20

The California Air Resources Board (CARB) is considering giving small trucking operations a further extension of time to comply with rules to clean up diesel emissions. Small trucking firms and owner-operators are required to install costly diesel particulate filters or upgrade to cleaner models for the first time this year, but have pleaded for more time to comply. CARB is considering pushing back deadlines by a few years for small fleets, lightly used trucks and those in rural areas with cleaner air, and offering other adjustments to assist truck owners. Officials say the changes would slow, but not sacrifice, the state's progress on air quality and achieve 93 percent of pollution cuts envisioned through 2023.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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