Newly elected member of Congress Vince Fong (R-Bakersfield) sent this letter to the US Environmental Protection Agency (USEPA) asking for their opinion on Assembly Bill 3233 (D-Addis). The bill, as was highlighted in CIPA’s request for a gubernatorial veto, is questionable from a legal standpoint.
In the early 1980’s the USEPA delegated their oversight of the Clean Water Act to the State of California in relation to the injection of produced water into approved aquifers. The question Rep. Fong is interested in having answered is whether the state can legally delegate its authority for regulating “down hole” or subsurface water injection to a county or a city.
The Clean Water Act was the brainchild of the Nixon administration. It was passed and signed in 1970. As is common for such sweeping national laws, the federal government seeks cooperation from states when it comes to oversight and management of federal requirements.
More than five decades before the Clean Water Act was enacted, California established the Division of Oil, Gas and Geothermal Resources (DOGGR) with a gubernatorial appointee to lead the division called the State Oil and Gas Supervisor. Part of the reason California was capable of receiving delegated authority from USEPA is because the state had in place an expert and support team overseeing oil and natural gas production.
The California Geologic Energy Management Division (CalGEM) replaced DOGGR in name only after the passage of AB 1057 in 2019. CalGEM is now sending its authority for regulating downhole oil operations to a county or city, which has zero expertise related to enforcing the Clean Water Act.
In his letter, Rep. Fong asks, “Can California delegate its delegated authority from USEPA for UIC primacy and authority to local governments without USEPA review or approval? Similarly, can a state grant local governments the ability to “regulate” UIC permits, including granting or denying permits for injection activities, even if that local government has not been granted such authority by the USEPA?” Fong requested an answer from EPA no later than September 26, 2024.
It is reckless for California to send its authority to counties and cities that have no knowledge of how oil production works. Hopefully, USEPA will inform California that AB 3233 is a bill that they will take issue with and preempt its implementation in protecting the Clean Water Act from.