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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