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