BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 1317 Hearing Date: April 12,
2016
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|Author: |Wolk | | |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Conditional use permit: groundwater extraction
facility
BACKGROUND AND EXISTING LAW
1.California has 515 groundwater basins and subbasins that
provide about 40 percent of the state's water supply. Of
these 515 basins, 127 have been designated by the Department
of Water Resources (DWR) as high- or medium-priority basins.
These 127 basins account for about 96 percent of the state's
groundwater use and are overlain by about 88 percent of the
population served by groundwater. Additionally, 21 of these
basins have been identified by DWR as being in a condition of
critical overdraft.
2.Cities and counties have a number of different
responsibilities, including:
Land use planning and permitting.
Issuing permits for water well construction.
1.The two principle bills that enacted the Sustainable
Groundwater Management Act (SGMA), SB 1168 (Pavley, Ch. 346,
Stat. 2014) and AB 1738 (Dickinson, Ch. 347, Stat. 2014),
included parallel legislative findings and intent statements.
The findings included:
Failure to manage groundwater to prevent long-term
overdraft infringes on groundwater rights.
Groundwater resources are most effectively managed
at the local or regional level.
Groundwater management will not be effective unless
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local actions to sustainably manage groundwater basins
and subbasins are taken.
Both bills also stated that it was the legislature's intent:
To recognize and preserve the authority of cities
and counties to manage groundwater pursuant to their
police powers.
1.SGMA requires all groundwater basins designated as high- or
medium-priority basins by DWR that are designated as basins
subject to critical conditions of overdraft to be managed by a
groundwater sustainability agency under a groundwater
sustainability plan or coordinated groundwater sustainability
plans by January 31, 2020, and requires all other groundwater
basins designated as high- or medium-priority basins to be
managed under a groundwater sustainability plan or coordinated
groundwater sustainability plans by January 31, 2022, except
as specified.
2.Among the powers SGMA grants to groundwater sustainability
agencies is:
"To control groundwater extractions by regulating, limiting,
or suspending extractions from individual groundwater wells or
extractions from groundwater wells in the aggregate,
construction of new groundwater wells, enlargement of existing
groundwater wells, or reactivation of abandoned groundwater
wells, or otherwise establishing groundwater extraction
allocations?"
PROPOSED LAW
This bill would:
1.Require a city or county overlying a basin designated as a
high- or medium-priority basin to do both of the following:
a. By July 1, 2017, establish a process for the issuance of
a conditional use permit for the development of a
groundwater extraction facility (i.e. a water well and
related facilities) that imposes conditions on the
development of a new groundwater extraction facility in
order to prevent the new groundwater extraction facility
from contributing to or creating an undesirable result.
b. Prohibit the issuance of a conditional use permit for a
new groundwater extraction facility in either of the
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following:
A probationary basin.
A basin designated by DWR as subject to critical
conditions of overdraft.
1.Exempt the following from needing a conditional use permit for
the development of a groundwater extraction facility:
a. A de minimis extractor (a person who extracts for
domestic purposes 2 acre-feet per year or less).
b. The replacement of an existing groundwater extraction
facility with a new groundwater extraction facility with
the same or a lessor extraction capacity. For the purposes
of this article, replacement includes the deepening of a
groundwater extraction facility.
2.A city or county overlying a basin designated as a low- or
very low priority basin may adopt an ordinance establishing a
process for the issuance of conditional use permits for the
development of a groundwater extraction facility in accordance
with this section.
3.This article does not require a city or county to establish a
new process for the issuance of a conditional use permit for
the development of a groundwater extraction facility if the
city or county has in effect an ordinance adopted before
January 1, 2017, that imposes conditions on the development of
a new groundwater extraction facility in order to prevent the
new groundwater extraction facility from contributing to or
creating an undesirable result.
4.Makes numerous findings regarding the importance of
groundwater, challenges in managing groundwater, and the
consequences of not managing properly managing groundwater.
ARGUMENTS IN SUPPORT
According to the author, ""Even with the passage of the
Sustainable Groundwater Management Act of 2014, many of
California's groundwater basins are in serious and immediate
danger of overdraft. We have to recognize that there are urgent
problems in some groundwater basins that must be addressed
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before SGMA regulations start to take effect in 2020. Local
governments need to take responsibility for their critically
overdrafted basins. In the 21 critically overdrafted
groundwater basins identified by the Department of Water
Resources, measures must be taken at the local level - with
guidance from the State - to restrict further depletion of
groundwater and subsequent land subsidence. Local governments
must actively analyze the condition and sustainability of its
groundwater basins before approving new drilling permits. In
other words, if you have a problem, you stop digging."
According to the Natural Resources Defense Council (NRDC), "Over
the past several years there has been a rapid expansion of
orchards and the conversion of rangeland to orchards and other
irrigated crops, many of which rely solely on groundwater. ? SB
1317 would address this problem by requiring cities and counties
overlying high or medium priority basins to establish a process
for requiring a conditional use permit for new groundwater
wells, ensuring that such new wells do not cause undesirable
effects. It also prohibits the issuance of such permit for new
groundwater wells in critically overdrafted basins. However, the
bill is narrowly tailored to only address new groundwater wells;
under SB 1317, conditional use permits would not be required for
groundwater wells for domestic use and other de minimis
extractors, and permits would not be required for the
replacement, deepening, or repair of existing wells. SB 1317
ensures that new groundwater wells will not impact existing
farms and communities, particularly disadvantaged communities."
A coalition of environmental and environmental justice
organizations wrote, "Currently the authority and responsibility
of well permitting lies in the hands of the counties. However,
in many counties, the decision to grant a well permit is given
no thought as to whether the well may cause undesirable results
or permanent damage to the aquifer. The well application instead
is given a cursory glance and approved, sometimes within a span
of 24-hours. SB 1317 will prohibit the permitting of new wells
within critically overdrafted basins, and will task counties in
high and medium priority basins with requiring conditional use
permits for new groundwater extraction facilities to ensure they
will not result in undesirable results. De minimis users and
applications for replacement wells would be exempted. This is a
much needed step in order to protect the State's aquifers from
permanent damage."
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ARGUMENTS IN OPPOSITION
The Rural County Representatives of California (RCRC), the
California State Association of Counties (CSAC), and the League
of California Cities (LCC) write, "RCRC, CSAC and the LCC
believe SB 1317 would get ahead of the GSA/GSP process and would
intervene in the local agency decision-making process which is a
key element and foundation of SGMA. Some of the specific
concerns with SB 1317 include that out of the 127 high and
medium priority basins only 21 have been designated as being in
critical overdraft and the legislation would impose requirements
in areas that do not have a groundwater problem. Second, for
areas that may be experiencing a groundwater problem, SB 1317
provides a prescriptive solution that may not be in the local
interest or the best approach to address the issue. SGMA was
premised on local control and the "one size fits all" approach
as outlined in SB 1317 would undermine both the premise and
spirit of SGMA."
"A well permit is currently a relatively simple and low cost
process in which a landowner is attempting to utilize their
water rights and with counties fully vested in SGMA each permit
is reviewed through that lens. SB 1317 would create the need for
a conditional use permit (CUP) for wells which can be a lengthy
and costly process for local government creating an undue burden
which may not even address the issue. Additionally, SB 1317 as
drafted would require cities and counties to use a CUP process
for new well permit applications even in adjudicated basins,
which under SGMA are not required to complete a GSP."
A coalition of agricultural interests similarly assert, "SB 1317
mandates additional requirements to the SGMA that already
includes significant groundwater reforms which focuses on
improving the sustainability and reliability of California's
groundwater basins. We believe that the SGMA should be given
time to be implemented and that it is premature to make
significant policy changes to the Act at this time. We also
believe SB 1317 unnecessarily makes substantive changes to water
law, which runs contrary to the objectives and promises of the
SGMA."
COMMENTS
First law of holes. The first law of holes states that "if you
find yourself in a hole, stop digging." Groundwater elevation
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charts show, that in at least some of our high- and
medium-priority groundwater basins, there are distinct holes
that continue to grow.
No more rubber stamps? RCRC et al write "A well permit is
currently a relatively simple and low cost process ?" and
observe that requiring a conditional use permit could be a
lengthy and costly process. Some would argue that that is the
point - we should no longer just rubberstamp well permits
without some consideration of the potential impact on the
aquifers and other groundwater users.
Who has imposed moratoriums? A review of newspaper articles
shows that at least 4 counties have recently imposed at least
temporary moratoriums on drilling new water wells: Ventura, San
Luis Obispo, Colusa, and Glenn counties. Three other counties
have recently considered and rejected imposing moratoriums on
drilling new water wells: Kern, Santa Barbara, and Madera
counties.
Additionally, Stanislaus County recently made adjustments to its
well drilling and groundwater sustainability management
regulations. Specifically, it passed an ordinance that:
Ordered well drilling permit applicants to show that the new
well will not have a detrimental impact on the County's
groundwater supplies.
Well owners must submit metering data at regular intervals to
the County.
The ordinance also banned the export of groundwater from the
County.
Consistent with SGMA? One of the overarching themes in SGMA is
that the legislature established the desired outcomes and
provided local agencies a suite of tools to attain those desired
outcomes, and it was up to local agencies to determine which set
of those tools they were going to use to meet attain the desired
outcomes. This bill proposes that one tool local agencies in
all 127 high- and medium-priority basins must use is requiring a
conditional use for new wells, and a tool that must be used in
all 21 of the critically overdrafted basins is a ban on new
wells for all but de minimis groundwater users.
Issues to consider. Should the committee pass this, there are
some additional issues the author should consider as the bill
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moves forward. These include:
The development of a process for issuance of conditional use
permits should probably be done in collaboration with the
relevant GSA.
The process for removing a basin from probation status is not
well defined in SGMA. Consequently, it is not clear how a
city or county would know when it could resume issuing new
well permits once basin is no longer deemed probationary
It might make sense to sunset the provisions of this bill upon
adoption of a GSP for that basin.
Double-Referral. The Rules Committee referred this bill to both
the Committee on Natural Resources and Water and to the
Committee on Governance and Finance. Therefore, if this bill
passes this committee, it will be referred to the Committee on
Governance and Finance, which will consider the issues within
their jurisdiction.
Amendments in Governance & Finance. To ensure there is
sufficient time to amend and hear this bill before the policy
bill deadline, any amendments proposed by this committee should
be taken in the Governance and Finance Committee
SUGGESTED AMENDMENTS: None
SUPPORT
Clean Water Action
Community Water Center
Leadership Counsel for Justice & Accountability
Sierra Club California
Union of Concerned Scientists
OPPOSITION
Agricultural Council of California
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners and Growers Association
California Dairies, Inc.
California Farm Bureau Federation
California Fresh Fruit Association
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California Groundwater Association
California League of Food Processors
California Municipal Utilities Association
California State Association of Counties (CSAC)
League of California Cities (LCC)
Merced County
Nisei Farmers League
Rural County Representatives of California (RCRC)
Sacramento County
San Joaquin County
Wester Plant Health Association
Western Agricultural Processors Association
Western Growers