BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: SB 1146 HEARING DATE: April 10, 2012 AUTHOR: Pavley URGENCY: No VERSION: April 9, 2012 CONSULTANT: Dennis O'Connor DUAL REFERRAL: Environmental QualityFISCAL: Yes SUBJECT: Wells: Reports: Public Availability BACKGROUND AND EXISTING LAW 1.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 proprietary. For example, let's say Driller A has just 1 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. 2.The Information Practices Act of 1977, among other things, prohibits any state agency from disclosing any personal information "in a manner that would link the information disclosed to the individual to whom it pertains," with certain exceptions. The Act defines "personal information" as "any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history." 2 PROPOSED LAW This bill would: Make well logs available to the public. Require persons requesting a report to do so on a form identifying the name and address of the requestor, and the reason for the request. Require the release of the well logs to comply with the privacy and other provisions of the Information Practices Act. Require a disclosure statement regarding the appropriate use of the data. Authorize DWR to charge a fee for providing the well logs. ARGUMENTS IN SUPPORT According to the author, "Every time a water well is drilled, the driller is required by law to provide DWR a well completion report with the State of California for each well drilled." "These reports contain critical information for groundwater managers, consulting hydrologists, academics, and others interested in the geologic and hydrologic characteristics of groundwater basins. Unfortunately, those who would benefit from this information cannot have access to it. Farmers can't know how deep they need to drill their wells. Academics cannot develop sophisticated maps and models without the sponsorship of the government. Local community activists cannot gain the information they need to better protect drinking water quality of disadvantaged communities. The list goes on." "The Governor directed DWR to work with me 'to ensure responsible public access to well logs.' SB 1146 is the result of those negotiations with DWR, along with the Department of Health Services (DHS) and CalEMA, which is California's official homeland security agency. This bill addresses and resolves the various security concerns raised by DHS and CalEMA, and I understand that DWR is now in the process of getting a SUPPORT position approved through the Governor's Office." ARGUMENTS IN OPPOSITION According to the City of Lakewood, "We oppose the bill due to the following reasons: "Well reports contain detailed information not otherwise available to the public. Providing the information could result in devastating consequences to the health and safety of people in this state. SB 1146 opens up the floodgates to everyone and anyone who 3 requests the reports, regardless of qualifications and reason." "The bill contradicts existing state and federal polices and would increase safety risks to public water supplies. For the above reasons, the City of Lakewood opposes SB 1146." COMMENTS Prior Legislation: Last year, Senator Pavley carried SB 263 to make well completion reports available to the public. To address the opposition's concerns, the bill was amended on the Assembly floor to restrict access to persons with specific qualifications and added penalty provisions for disclosing information. The Governor vetoed that bill because of those provisions, and directed DWR to work with the author "to ensure responsible public access to well logs." What Is Responsible Public Access? The Governor's direction to ensure responsible public access to well logs raises the question, how do we determine what responsible public access is? Three ways may be to look to what other states do, look to see how California deals with similar issues, and look to what local water agencies do. What Do Other States Do? No other western state restricts access to well logs as in California. Indeed, 10 of 11 western states provide internet access to well logs. This bill does not propose to place the information on the internet - it merely propose to make the information available upon request, such as in Wyoming. How Does California Deal With Similar Issues? Every time an oil or gas well is drilled, the driller must provide a copy of the well log to the Department of Conservation. Those logs are deemed public records for purposes of the California Public Records Act. (There are exceptions, logs for exploratory wells, for example, are considered confidential for a specific period of time.) The Department of Conservation provides public access to those logs through a GIS map on the internet. What Do Other Water Agencies Do? A review of urban water management plans and capital improvement plans shows that over 160 water agencies have published the location of their wells, usually on maps, but sometimes the actual addresses. This represents locations of over 2,200 water system wells, of which the author's staff has located 96 percent through online 4 maps. Adjudicated groundwater basins have court appointed watermasters, a number of whom have published maps showing the location of production wells within their jurisdiction. For example, the Main San Gabriel Basin Watermaster published a fairly detailed 2008 map showing the location of 99 active production wells. The drilling of a new water system well is usually a project subject to the California Environmental Quality Act (CEQA). CEQA, among other things, requires the disclosure of the location of the project. A review of CEQA Clearinghouse's online database shows the location of over 70 wells. What Would The Fee Cover? It is not clear how large the fee for a copy of a well log would be. However, the fee would likely include a share of the following: Costs to create and maintain a copy of the log that redacts personal information pursuant to the Information Practices Act of 1977. Costs of duplicating the redacted well log. Cost to develop and disseminate the disclosure statement regarding the appropriate use of the data. Costs to develop and maintain the form identifying the name and address of the requestor, and the reason for the request. Any additional administrative costs associated with implementing this bill. SUGGESTED AMENDMENTS: None SUPPORT California Rural Legal Assistance Foundation Clean Water Action Community Water Center East Bay Municipal Utility District Groundwater Resources Association Planning and Conservation League Sierra Club California Sonoma County Water Agency The Nature Conservancy OPPOSITION 5 California Police Chiefs Association City of Lakewood City of Torrance San Gabriel Valley Water Association 6