OVERVIEW OF THE OFFICE OF SPILL PREVENTION & RESPONSE, CALIFORNIA DEPARTMENT OF FISH & WILDLIFE RYAN C. TODD SENIOR STAFF COUNSEL

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1 OVERVIEW OF THE OFFICE OF SPILL PREVENTION & RESPONSE, CALIFORNIA DEPARTMENT OF FISH & WILDLIFE RYAN C. TODD SENIOR STAFF COUNSEL OUR COAST TO KEEP: ENVIRONMENTAL LAW ENFORCEMENT IN SOUTHERN CALIFORNIA WHITTIER LAW SCHOOL SEPT. 5, 2014

2 Main Topics Today Trustee Responsibility Pollution Statutes Office of Spill Prevention & Response Response Issues Quantification Penalties Damages

3 Public Trust Doctrine Roman Emperor Justinian, circa 530 AD, created the "Institutes of Justinian," the body of Roman civil law. The Institutes covered much of Roman life and commerce, including: 1. By the law of nature then the following things are common to all men; the air, running water, the sea, and consequently the shores of the sea." Book II, Title 1. On the Division of Things, par. 1; tr. by Adby & Walker 1876, Cambridge

4 Public Trust Doctrine 12. Wild beasts, therefore, and birds and fishes, that is to say all animals that live on the earth, in the sea or in the air, as soon as they are caught by anyone, become his at once by virtue of the law of nations. For whatever has previously belonged to no one is granted by natural reason to the first taker... And it is considered to have recovered its natural freedom when it has either escaped our of your sight, or is still in sight, but situated that its pursuit is difficult. Book II, Title 1. On the Division of Things, par. 1; tr. by Adby & Walker 1876, Cambridge

5 Wildlife Trustee Responsibilities 1870: Board of Fish Commissioners. This was the first wildlife conservation agency in the country. 1909: Board became the Fish & Game Commission 1926: Commission created a Pollution Bureau. 1927: Division of Fish & Game established to take over certain duties from the Commission. 1951: Division became the Department of Fish & Game. 2013: Renamed the Department of Fish & Wildlife

6 DFW Trustee Responsibilities California Department of Fish & Wildlife The fish and wildlife resources are held in trust for the people of the state by and though the Department. Fish & Game Code 711.7, 1600, 1802, 2701

7 Pollution Threat to Wildlife Pollution is one of the single biggest threats to wildlife and habitat acute or chronic. Compare: A season opener? Disease? Cosco Busan approximately 7,000 dead birds Gulf Deepwater Horizon estimated 6,000+ birds, 600+ turtles, 150+ dolphins, crab? shrimp? other species?

8 Public Trust and Pollution Pollution from Lumber Operations

9 Public Trust and Pollution Hydraulic Mining - Malakoff Mine Malakoff Diggings CA SHP

10 Public Trust CA Case Law People v. Truckee Lumber Company (1897) 116 Cal. 397 Water pollution; fish and game held for the people People v. Weaver (1983) 147 Cal.App.3d.Supp. 23 Waters & tidelands held in trust for the People. National Audubon Society v. LA DWP (1983) 33 Cal. 3d 419 Marks v. Whitney (1971) 6 Cal. 3d 251 Private tidelands subject to public trust; Ecosystems

11 Fish & Game Code - Pollution Fish & Game Code 5650 Misdemeanor. Prohibits placement of: certain specific materials, or any material that is deleterious to fish, birds, mammals, or plants, into or that may pass into state waters. Strict Liability (People v Chevron (1983) 143 Cal.App.3d 50) but there are some statutory defenses

12 Fish & Game Code - Pollution Fish & Game Code 5650 History 1872 Penal Code 635: poisons and explosives may not be used to take or destroy fish Term deleterious to fish added Fish & Game Code codified, incorporating the Penal Code sections dealing with wildlife issues: FGC Renumbered to section 5650.

13 Exxon Valdez March 24, 1989 American Trader February 7, 1990 ~ 11 million gal ANS crude (257,000 bbls) =125 Olympic-size swimming pools. Huntington Beach, CA 400,000 gallons North Slope Crude

14 Statewide Oil Spill Program Lempert-Keene-Seastrand Oil Spill Prevention & Response Act Enacted in September 1990 (S.B. 2040) Revised June 2014 (S.B. 861) Government Code et. seq. Establishes statewide oil spill preparedness and response requirements for vessels and facilities, to protect surface waters of the state from oil spills.

15 Office of Spill Prevention & Response (OSPR)

16 Lempert-Keene-Seastrand Oil Spill Prevention & Response Act Created an Administrator, appointed by the Governor. Gov. C Office of Spill Prevention and Response (OSPR) opened 1991 Administrator has the primary authority to direct prevention, removal, abatement, response, containment, and cleanup efforts with regard to all aspects of any oil spill in the waters of the state and is the incident commander for oil spills in state waters. Gov. C ; Fish & Game C. 5655(d)

17 OSPR Programs Some OSPR mandates for vessels and facilities: Oil spill contingency plans Rating of Oil Spill Response Organizations (contractors) Drills & exercises by vessels, facilities, OSROs Financial ability to pay for cleanup & damages Oiled Wildlife Care Network Oil spill response and cleanup Gov. C et seq.; 14 CCR 790 et seq.

18 Contingency Plans Standards that OSPR must set for Plans Must ensure best achievable protection Based on Reasonable Worst Case Spill Volume Standards for response, containment, cleanup Equipment types, location, & time to deliver Contractual arrangements for equipment & services Use of Rated OSRO Strategies to protect environmentally sensitive areas Gov. C

19 Oil Spill Response Organizations OSRO [cleanup contractor] An entity that provides equipment, personnel, supplies, or other services directly related to oil spill containment, cleanup, or removal activities. GC Rated by OSPR Booming, on-water recovery, and storage Shoreline protection Gov. C ; 14 CCR 819

20 Drills Announced and unannounced drills are required to test response and cleanup operations, equipment, contingency plans, and procedures All elements of the plan must be exercised at least once every three years Gov. C , , ,

21 Financial Responsibility Demonstrate financial resources to pay for spill response & damages. Based on reasonable worst case spill volume. Methods to meet requirements: Insurance Surety Bond Letter of Credit Guaranty Self-insurance Gov. C

22 Oiled Wildlife Care Network Rescue and rehabilitation stations, and proactive search and collection, for wildlife injured by oil spills. Maintained in a state of preparedness to provide best achievable treatment. Managed by the U.C. Davis Wildlife Health Center. 30 Participating Organizations Aquaria Universities Scientific organizations Rehabilitation groups.

23 Spill Response Basic Aspects of a Spill for OSPR: Incident Management Response & Cleanup Investigation Injury Assessment (NRDA) Cost Recovery

24 Spill Response Incident Command

25 Some Incident Command Issues Unable/Unwilling RP Jurisdiction 3 miles / state borders / state waters Access to Property / Site Control 3 rd Party Claims Media / Press Funding Questions Damage Assessment

26 how much was spilled?! OSPR Administrator has a statutory obligation to determine the amount of oil spilled in state waters. Significant issue for the Responsible Party because it can be used to determine penalties and damages. Stipulations with RP for the amount lost and recovered.

27 Pollution Criminal Penalties - FGC FGC 5650 Substances / Any State Water: Oil or Industrial Refuse: Up to $2,000 and/or 1 year Jail. FGC 12002(b)(4) All other 5650 substances: Up to $1,000 and/or 6 months Jail. FGC 12002(a) Plus $10 per gal or lb of material discharged, if convicted; minus a recovery offset. FGC Strict Liability / Statutory Defenses

28 Criminal Oil Spill Penalties Gov. C. Oil Spills: Gov. C (a)(b) Not strict liability Min $5,000 to $500,000 and/or 1 year Jail or State Prison. Reasonably should have known caused an oil spill into waters; Knowingly fails to cleanup, or follow orders. Min $2,500 to $250,000 and/or 1 year Jail. Gov. C (c) Knowingly fail to report spill, or follow spill contingency plan; Knowing false/misleading spill report. State Prison + up to $500,000 for a second conviction. Up to $50,000 and/or Jail for other violations. Gov. C

29 Liability for Damages Any Cause or Pollutant may recover damages for: Unlawful or negligent take or destruction of animals; must compensate for all detriment proximately caused. FGC 2014 All actual damages to fish, plant, bird, animal life, or their habitat caused by discharge of any deleterious substance. FGC Oil Spills express liability for: injury to natural resources; rehabilitation of wildlife and habitat; injury to property; loss of subsistence use of natural resources; and loss of use and enjoyment of natural resources, public beaches, and other public resources; economic losses. GC

30 Analogous Federal Laws United States Code Federal Water Pollution Control Act Clean Water Act Oil Pollution Act of 1990 (oil spills) CERCLA (hazardous materials) *Partial list of Relevant Laws

31 OSPR/DFW Pollution Enforcement 80+ years of Water Pollution Responsibilities