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
           ----------------------------------------------------------------- 
          |Author:    |Wolk                   |           |                 |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Version:   |February 19, 2016                                    |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|Dennis O'Connor                                      |
          |           |                                                     |
           ----------------------------------------------------------------- 
          
              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  







          SB 1317 (Wolk)                                          Page 2  
          of ?
          
          
                 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  








          SB 1317 (Wolk)                                          Page 3  
          of ?
          
          
               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  








          SB 1317 (Wolk)                                          Page 4  
          of ?
          
          
          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."








          SB 1317 (Wolk)                                          Page 5  
          of ?
          
          

          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  








          SB 1317 (Wolk)                                          Page 6  
          of ?
          
          
          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  








          SB 1317 (Wolk)                                          Page 7  
          of ?
          
          
          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








          SB 1317 (Wolk)                                          Page 8  
          of ?
          
          
          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