The U.S Supreme Court issued its decision in Sackett v. EPA on May 25, 2023, finding in favor of the Sacketts. The court rejected the significant nexus test and instead found the correct test to determine if adjacent wetlands are waters of the U.S. to be the relatively permanent standard (the Clean Water Act extends only to wetlands that have a continuous surface connection with waters of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters — making it difficult to determine where the water ends and the wetland begins.) Prior to the issuance of the U.S. Supreme Court’s decision, 20 state Farm Bureaus, including CAFB, joined together to submit an amicus brief to the U.S. Supreme Court to highlight the role states play in regulating water quality within each state. The state Farm Bureau brief focused on the primary role states play in protecting water quality, robust state regulations in each of the 20 states, and impacts of WOTUS definitions on agriculture. Within the majority opinion, the U.S. Supreme Court cited the state Farm Bureaus’ brief regarding state authority to regulate waters. 

Given that the Biden Administration’s most recent WOTUS rule is based, in part, on the significant nexus standard, the administration will have to develop a new rule. 

Staff contact: Kari Fisher, (916)561-5666 or kfisher@cfbf.com

On March 17, 2023, the Third District Court of Appeal issued an important decision regarding water quality regulations for irrigated lands in the Central Valley. The decision rejected all claims brought in the three cases: Protectores Del Agua Subterranea v. State Water Board, Environmental Law Foundation v. State Water Board, and Monterey Coastkeeper, California Sportfishing Protection Alliance, et al., v. Central Valley Regional Board and State Water Board. The environmental groups originally filed three separate lawsuits in 2018 challenging the State Water Board’s adoption of the revised East San Joaquin Waste Discharge Requirements (WDRs). The revised East San Joaquin Waste Discharge Requirements contain precedential requirements impacting all irrigated lands programs in the state. CAFB and other agricultural groups intervened in the three cases to oppose the challenges raised by the various environmental and environmental justice groups. Both Monterey Coastkeeper and ELF petitioned to the CA Supreme Court for review of the appellate court’s decision. Ag intervenors filed oppositions to both petitions for review. ELF also filed a request to the CA Supreme Court to depublish the appellate decision. Both Monterey Coastkeeper and ELF filed replies to ag intervenors’ opposition. The ag intervenors filed an opposition to ELF’s request to depublish the appellate decision. The CA Supreme Court denied both petitions for review as well as the request to depublish the opinion on June 14, 2023. 

Staff contact: Kari Fisher, (916)561-5666 or kfisher@cfbf.com

The California Public Utilities Commission (CPUC) issued a decision that would allow Pacific Gas & Electric (PG&E) to recover costs of more than $1.1 billion on an interim temporary basis for wildfire mitigation activities and responses to catastrophic events that primarily took place in 2021. These costs were incurred by PG&E but have not yet undergone a “reasonableness review” which typically occurs prior to any cost being recovered from ratepayers. Parties made many of the same arguments CAFB and others successfully made when SDG&E sought similar interim relief but were unsuccessful this time. PG&E will still need to prove the cost incurred were “reasonable” and would be required to provide a refund with interest to ratepayers should they be deemed unreasonable. However, as CAFB has previously pointed out this significantly shifts the burden to ratepayers who then have the burden of proof to claw back already recovered funds. The increase in Agricultural rates between June 2023 to May 2024 because of this proceeding is projected at 5.7%.

Another argument CAFB previously raised was that absent truly extreme or extraordinary circumstances, a granting of interim relief would signal to the other utilities that the door was open for similar requests. Without missing a beat, PG&E has requested recovery of $631 million additional dollars in interim relief related to “wildfire and gas safety costs.” The cost recovery would represent an additional 2.3% rate increase for Agricultural customers from the period of November 2023 to October 2024.

Staff contact: Kevin Johnston, (916)561-5688 or kjohnston@cfbf.com

On March 14, 2023, EPA released proposed National Primary Drinking Water Regulation for six PFAS including perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), perfluorohexane sulfonic acid (PFHxS), and perfluorobutane sulfonic acid (PFBS). The proposed rule will establish legally enforceable maximum contaminant levels of 4 parts per trillion for PFOA and PFOS, and 1 hazard index for PFHxS, PFNA, PFBS, and HFPO-DA. 

The proposed rule would also require public water systems to:

• Monitor for these PFAS
• Notify the public of the levels of these PFAS
• Reduce the levels of these PFAS in drinking water if they exceed the proposed standards.

CAFB submitted public comments on the proposed rule on May 30, 2023.  EPA has also released advanced notice of proposed rulemaking regarding regulating PFAS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Comments are due August 11, 2023.

Staff contact: Kari Fisher, (916)561-5666 or kfisher@cfbf.com

CAFB recently joined other amicus curiae parties in filing a brief before the Fourth District Court of Appeal which defends groundwater rights in the face of over-reaching by a Groundwater Sustainability Agency (“GSA”) under the Sustainable Groundwater Management Act (“SGMA”). The case is called Mojave Pistachios, LLC v. Indian Wells Valley Groundwater Authority, and relates to a Groundwater Sustainability Plan (“GSP”) which effectively nullifies overlying groundwater rights by imposing extreme pumping fees. At issue is not only whether SGMA allows a GSA to determine groundwater rights, but whether a pumper must pay exorbitant fees up front before seeking their judicial review.

Staff contact: Chris Scheuring, (916)561-5660 or cscheuring@cfbf.com

On May 12, SCE filed its 2025 General Rate Case (GRC) application for the four-year period 2025-2028, requesting a 2025 revenue requirement of $10.267 billion, an increase of $1.895 billion or 22.6% above the 2024 Track 4 requested estimated base revenues to be authorized, and above total present rate revenues Additional revenue increases of $619 million in 2026, $664 million in 2027, and $705 million in 2028 are also included in the GRC. The filing marks the beginning of a very long process to consider the request with public participation hearings to be scheduled later this year. A workshop was recently held to explain the elements of the request and the presentation from the workshop is contained in this PDF.

Staff contact: Karen Mills, (916) 561-5655 or kmills@cfbf.com