Alerts and Updates

Energy, Environment and Resources Update

Issue 18 | December 2016

Environmental

Formal Federal Government Withdrawal from Climate Change Regulation Begins

By Seth v.d.H. Cooley

Although one month remains before President Obama's administration ends and President-elect Trump's begins, the federal government has now formally begun to withdraw from its efforts to curb climate change.

On December 19, 2016—the same day that the United States Environmental Protection Agency (EPA) finalized a rule designed to protect streams and groundwater from the effects of coal mining (the so-called “stream protection rule,” 81 Fed. Reg. 92666)—EPA formally withdrew its draft Clean Power Plan rules containing guidance for states on model power plant emissions trading programs. Simultaneously with withdrawing the draft Clean Power Plan rules, EPA published them on its website, a step openly described by EPA as being intended to assist states and members of the public wanting to see the fruits of EPA’s rulemaking efforts shared while such sharing is "allowed."

It would appear that finalization and promulgation, rather than withdrawal, of the "stream protection rule"—which, like the Clean Power Plan draft rules, targets the coal industry and has been slated by President-elect Trump for immediate repeal—reflects a desire by the current administration to force congressional Republicans to affirmatively vote to repeal rules targeting traditional pollution. To date, the existence of traditional pollution (e.g., muddy stream water) has not been the subject of any scientific debate (i.e., the debate over the “stream protection rule” is fundamentally one concerning costs, not environmental protection benefits).

WATER

President Obama Signs Water Infrastructure Bill

By Thomas M. Berliner

On December 16, President Obama signed the Water Infrastructure Improvements for the Nation Act, S. 612 (WIIN). WIIN authorizes funds for Flint, Michigan, various western water projects and some drought relief for California. The bill is co-authored by Senator Feinstein, who worked on the legislation for three years. The WIIN California provisions include mandates for application of the Endangered Species Act (ESA) in a manner that promotes sound and best-available science and requires more open, transparent and justification-based decision-making by the fishery agencies. It also promotes increased fishery monitoring in an effort to gain better understanding of the fishery populations and conditions under which their populations may be improved. Part of WIIN's goal is to improve water supplies for human uses in California during wet hydrologic conditions while maintaining fishery protection consistent with the ESA. WIIN also authorizes funds for water storage, recycling and reuse, and desalination. Companion bills in the House had similar concepts, including a bill sponsored by Rep. Huffman (D-Marin) that promoted improved water infrastructure and another by Rep. Valadeo (R-Hanford) that promoted the fishery management improvements.

California Water Board Finishes Major Milestone in Consideration of a Permit for Major New Water Conveyance Facilities

By Thomas M. Berliner

For the past several months, parties have gathered before the California State Water Resources Control Board to consider an application by the California Department of Water Resources and the U.S. Bureau of Reclamation that would authorize the first large-scale water infrastructure improvements to be built since the 1960s. While the state's population has more than doubled, water system improvements have proven inadequate to meet the growing demand. Due to increased regulation and more frequent droughts, the state and federal water purveyors have been unable to meet the needs of almost 20 million Californians and millions of acres of prime agricultural land. To provide greater water supply reliability, the state is proposing to build two 30-foot-diameter tunnels with a capacity of 9,000 cubic feet per second to move water from the wet northern portion of the state to the San Francisco Bay Area, San Joaquin Valley and southern California. The Water Board has now completed receiving the direct testimony of more than 40 parties, some who favor the proposal and others who are opposed. After a short break, the Water Board will continue the hearings to allow the respective sides to rebut one another's cases. This first phase is focused on injury to water users. A second phase that will address environmental impacts will take place in 2017.

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