BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- 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 1 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 2 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. 3 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 4 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 5 SUPPORT (If Amended) Californian's Aware OPPOSITION San Gabriel Valley Water Association 6