California Environmental Law & Policy Update - March 2016 #3

by Allen Matkins

Environmental and Policy Focus

Bill would limit communications with California Coastal Commission

Santa Barbara Independent - Mar 23 State Senator Hannah-Beth Jackson announced plans to introduce a bill banning any private communication between lobbyists and members of the California Coastal Commission—known as “‘ex-parte’ communications”—as a way to counter “the perception of backroom deal making.” Jackson said the highly controversial Coastal Commission vote six weeks ago to terminate executive director Charles Lester without explanation has precipitated serious political blowback and intense public distrust. Jackson's bill, SB 1190, would require any deliberations by the Commission to take place on the dais and in the public eye. Her bill would also ban members of the Commission from privately lobbying staff to alter their reports. Most other pending bills addressing this issue require a two-thirds majority for passage because they amend the state’s fair political practices law. Jackson’s bill does not, and would need only a simple majority to win approval.

Federal Bureau of Reclamation offers 30 percent water allocation to San Joaquin Valley contractors

Fresno Bee - Mar 18 The drought is certainly not over, but the federal Bureau of Reclamation was optimistic enough to offer water suppliers in the San Joaquin Valley 30 percent of their contract allocations this year, up from zero percent the past two years. The allocation affects the amount of water available for farming and urban interests on the east side of the San Joaquin Valley, particularly benefitting the City of Fresno, which stands to receive about 18,000 acre-feet of water under the allocation. The cities of Orange Cove and Lindsay, along with Madera County, are the other communities that will benefit from the allocation, which some expect to be increased. The allocation includes 261,400 acre-feet to the San Joaquin River Restoration Program for the rest of 2016 based on the San Joaquin River Restoration Settlement. In a statement, the Bureau said it “anticipates making the initial allocation announcement for the entire Central Valley Project later this month after the full effect of storm systems that moved through Northern California earlier in March are taken into account.”

New dispute erupts over Sacramento Delta tunnels project

Sacramento Bee - Mar 22 The San Luis & Delta-Mendota Water Authority, a powerful San Joaquin Valley farm water agency, in a filing on Monday demanded that two members of the State Water Resources Control Board (SWRCB)—board chair Felicia Marcus and board member Tam Doduc—be disqualified from a crucial hearing scheduled for early May on Governor Jerry Brown’s $15.5 billion plan to build two huge tunnels beneath the Sacramento-San Joaquin Delta. The disqualification request is based upon a statement included in a procedural ruling last month in which Marcus and Doduc, the presiding officers in the hearing, said the SWRCB intends to require that, once the tunnels are built, water flows through the Delta would “be more stringent” than what is currently mandated. The comment raised red flags throughout the community of water contractors south of the Delta, who would have to agree to pay for the tunnels project. If more water is required to flow naturally through the Delta, it potentially would leave less water available to be sent through the tunnels and on to the San Joaquin Valley and Southern California. Various state and federal agencies and the State Water Contractors urged that the ruling be revised or rescinded, but in a follow-up order issued in March, the presiding officers denied prejudging the issue and said their prior ruling “should not be considered a final determination." Marcus and Doduc now have the responsibility for deciding whether they should be disqualified from the proceeding, although it is possible the entire five-person board could consider the issue.

Lumber Liquidators settles with California Air Resources Board

Reuters - Mar 22 Lumber Liquidators Holdings Inc. has reached a $2.5 million settlement with the California Air Resources Board, the state's clean air agency, to resolve an inquiry into the company's laminate flooring products sourced from China. The agency concluded its review with no formal finding of violation or admission of wrongdoing by Lumber Liquidators, the company said in a regulatory filing on Tuesday. A March 2015 segment on CBS’s “60 Minutes” cited tests that indicated the company was selling flooring with excessive levels of formaldehyde, a known carcinogen. Several investigations and lawsuits are ongoing and could be bolstered by a revised report by the Centers for Disease Control and Prevention, which showed the company's China-sourced laminates were three times more likely to cause cancer than Lumber Liquidators initially had reported. The company stopped selling laminates sourced from China in May 2015.

Nestlé’s water permit to undergo federal environmental review

Los Angeles Times - Mar 18 The U.S. Forest Service last week said it will require a thorough environmental review of Nestlé Waters North America's (Nestlé) long-expired permit to draw water from the San Bernardino Mountains for its Arrowhead brand. The move comes after environmental groups sued the Forest Service over Nestlé's withdrawal of millions of gallons of water from the west fork of Strawberry Creek under a permit that expired more than 25 years ago. Environmental groups say the creek branch provides a crucial east-west connection between watersheds in an area inhabited by imperiled species of birds, snakes, fish, and frogs. The lawsuit alleged that the Forest Service has allowed Nestlé and previous pipeline operators to continue transporting water—for about four miles through boreholes and tunnels to a storage tank—without undertaking the stringent environmental review required under the National Environmental Policy Act. The Forest Service opened a 45-day public comment period last Friday for its consideration of the permit. Nestlé's permit would be re-issued for five years if it passes review, the Forest Service said. In the interim, the company may continue its water operations.

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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