BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: SB 263 HEARING DATE: April 12, 2011
AUTHOR: Pavley URGENCY: No
VERSION: Introduced CONSULTANT: Dennis O'Connor
DUAL REFERRAL: Environmental QualityFISCAL: Yes
SUBJECT: Well Logs
BACKGROUND AND EXISTING LAW
In 1949, to help prevent groundwater pollution caused by
improperly constructed water wells, the California Legislature
first required well drillers to file a well completion report
with the State of California for each well drilled.
Well completion reports, aka drillers' logs or well logs, are a
record of the drilling and construction of the well. Well logs
provide the record necessary to demonstrate that the well was
properly constructed, modified, or decommissioned, and further
provides the necessary construction detail should the well need
to be modified at some later date. They include, among other
things, the location of the well, the depth of the well, the
type of soils encountered at each elevation as drilling, depth
to water, etc.
In 1965, the legislature declared that "the people of the state
have a primary interest in the location, construction,
maintenance, abandonment, and destruction of water wells, which
activities directly affect the quality and purity of underground
waters." In doing so, the legislature expanded the well
drilling laws to (1) authorize DWR to establish regulations
governing the proper construction of water wells, (2) require
all well completion reports be filed with DWR, and (3)
restricted access to those reports to government agencies.
The legislative record does not give any insight as to why the
logs were made confidential. The conjecture is that they were
made confidential at the request of the well drillers. Many
well drillers consider the information in the well logs to be
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proprietary. For example, let's say Driller A has just drilled
a well, and someone wants to have another well to be drilled a
short distance away. Driller A, by virtue of knowing the soil
conditions in the immediate vicinity, would have a competitive
advantage over any other driller.
No other western state restricts access to well logs as in
California. Indeed, most western states provide internet access
to well logs.
PROPOSED LAW
This bill would make public well logs for wells constructed,
altered, abandoned, or destroyed on or after January 1, 2012.
For wells constructed, altered, abandoned, or destroyed before
January 1, 2012, the bill would make those well logs public
beginning January 1, 2013, unless the well owner notifies DWR
that the well owner desires to keep the report confidential.
ARGUMENTS IN SUPPORT
According to the Groundwater Resources Association, "Well
completion reports contain critical information for groundwater
managers, consulting hydrologists, academics, and others
interested in and conducting studies on the geologic,
hydrologic, and water quality characteristics of groundwater
basins, earthquake risk assessments, and other geologic hazards.
Unfortunately, those who would benefit from and need this
information for these critical studies cannot currently have
access to it."
"Well completion reports can also be used to construct detailed
underground aquifer maps. These maps along with hydrogeological
data are critical to developing and implementing groundwater
management plans. For example, such data can be used to
determine possible locations for efficient and effective
groundwater banking, identify key recharge areas, and to better
protect and improve groundwater quality."
"For over 50 years, the law has prohibited access to well
completion reports by the public except under certain
circumstances. ÝMoreover], information obtained from well logs
cannot be published in reports and studies, unless individual
well owners sign a release form. Unlike California, no other
western state restricts access to well completion reports to the
public; most western states even provide Internet access to well
logs. This bill would bring California's outdated law on well
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completion report confidentiality up to the current industry
standard in western states and help meet the need for
transparency in groundwater information."
ARGUMENTS IN OPPOSITION
The San Gabriel Valley Water Association believes "SB 263
contradicts existing state and federal policies and would
increase safety risks to public water supplies. ?ÝW]ater systems
must conduct vulnerability assessments and implement homeland
security measures to help protect water supplies and facilities
from sabotage and attack. In support of these efforts, the
California Department of Public Health, which oversees
state-level homeland security initiatives for water systems, no
longer releases physical well location information to the
public. SB 263 is in direct conflict with local, state and
federal efforts to protect public water supplies."
COMMENTS
What Is Unique About California? All other western states
provide public access to well logs. Indeed, with the exception
of Wyoming, all other western states provide that access via the
internet. It is not clear what makes California so unique that
would make public access to well logs appropriate in all other
western states, but not in California.
What's In It For Me? Some well owners have asked what the
benefit of this bill might be to them. Anecdotal evidence from
other states suggest that better access to well log data will
provide current and future well owners, as well as drilling
contractors, better information about the location and
conditions of the aquifers below. This can lead to more
accurate cost estimates, better locations of wells, and other
such benefits associated with drilling, modifying, or abandoning
a well. More wide understanding of the basin may also lead to
more competition among drilling contractors, as the local
conditions would no longer be the domain of local drillers.
Some Already Are Public Records. Well logs are occasionally
subpoenaed as part of a court proceeding. Once the logs are
entered into evidence, unless the court enters a protective
order maintaining the confidentiality of those logs, the logs
are public records. It is not clear which and how many well
logs are in this situation, but in some basins where there has
been significant groundwater litigation, the number could be
considerable.
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Make All Logs Available? Californian's Aware state that they
strongly support the basic thrust of the bill, but assert
"Ýt]here is no reason consistent with the public's right to
government-held information declared in Article 1, Section 3 (b)
of the California Constitution, for either requiring or
presuming secrecy of such information. In fact, consistency
with the constitutional provision would seem to require that a
well owner present something more probative of an interest
traditionally protected by the law than a simple expression of
preference. We would support SB 263 if amended to permit
nondisclosure of a report only if the owner has provided a
convincing, non-conclusory demonstration, in writing available
to the public, that the report is a lawfully protected trade
secret within the meaning of Section 3426.1 of the Civil Code ?"
Security Concerns. Opponents raise legitimate concerns about
how this bill might affect state policy regarding public safety.
Since shortly after September 11, 2001, Department of Public
Health (DPH) water security staff have monitored a variety of
bulletins, notices, reports and other information from state and
federal law enforcement agencies regarding domestic and foreign
threats to the security of drinking water system infrastructure
and supplies from intentional acts of terrorism involving
explosives and/or poison. On the basis of this information,
they inferred that there are actual and credible threats of such
intentional acts against the water supply components of
California public water systems (PWS).
To counter such threats and prevent the disruption or
destruction of safe drinking water supplies and deliveries, DPH
maintains a policy of withholding information from the public
that would reveal the exact location of drinking water supply
wells owned and operated by PWSs; DPH only reveals information
about the location of a drinking water supply well which is
within a one-mile radius of a well's exact location
In 2010, a case was decided by the Sacramento Superior Court
where the petitioner sought the disclosure of records from DPH
identifying the exact location of drinking water wells owned and
operated by public water systems in California. (Community Water
Center v. California Department of Public Health.)
In evaluating the strength of the public interest in DPH's
disclosure of PWS well location information, the court found
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that the interest is "significant." However, in evaluating the
strength of the public interest served by DPH's withholding of
PWS well location information, the court finds that the interest
is "considerable." Weighing the public interest in
nondisclosure against the public interest in disclosure, the
court concluded that DPH had borne its burden under the
California Public Records Act to justify withholding exact PWS
well location information from the public.
This bill would not directly affect DPH's decision not to
disclose the precise location of PWS well locations, but it
could be seen as undermining it. PWSs are understandably
concerned - they don't want to be caught in the middle of a
dispute between the requirements of this bill and DPH's desire
to limit information about the precise location of PWS wells.
There might be a middle ground. For example, not all wells
serve PWSs. Or, it might be possible to disclose well logs on
the basis of state well numbers, which use the public land
survey system to identify wells on the basis of 40-acre tracts.
The Committee may wish to urge the author, as bill moves
forward, to consider amendments to resolve the competing aims of
this bill and DPH's security concerns.
Fear Of Litigation. Some have raised concerns that this bill
might expose well owners or drillers to greater threats of
litigation. It is not precisely clear what types of litigation
might be of concern. Nonetheless, there may be a solution. A
number of states, when making well log information available,
include disclaiming statements. For example, Arizona's
disclaimer includes the statement "There are no warranties,
expressed or implied, including the warranty of merchantability
or fitness for a particular purpose, accompanying this
information." Other state's include similar types of statement.
The Committee may wish to urge the author, as the bill moves
forward and as the precise concerns become clearer, to consider
amendments to restrict exposure to additional lawsuits.
SUGGESTED AMENDMENTS: None
SUPPORT
American Society of Civil Engineers
Groundwater Resources Association
League of Women Voters
Individual professional hydrologists, geologists, engineers, &
college professors - 29
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SUPPORT (If Amended)
Californian's Aware
OPPOSITION
San Gabriel Valley Water Association
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