BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |SB 1317 |Hearing |4/20/16 |
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|Author: |Wolk |Tax Levy: |No |
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|Version: |2/19/16 |Fiscal: |Yes |
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|Consultant|Favorini-Csorba |
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Conditional use permit: groundwater extraction facility
Requires cities and counties overlying certain groundwater
basins to establish processes for the conditional permitting of
wells.
Background
Land Use Regulation. The California Constitution allows a city
to "make and enforce within its limits, all local, police,
sanitary and other ordinances and regulations not in conflict
with general laws." It is from this fundamental power (commonly
called the police power) that local governments derive their
authority to regulate behavior to preserve the health, safety,
and welfare of the public-including land use authority.
The Planning and Zoning Law allows cities and counties to adopt
zoning ordinances that regulate private behavior to achieve
public goals. Some local ordinances provide "ministerial"
processes for approving projects-the zoning ordinance clearly
states that a particular use is allowable, and local government
does not have any discretion regarding approval of the permit if
the application is complete. Local governments have two options
for providing landowners with relief from zoning ordinances that
might otherwise prohibit or restrict a particular land use:
variances and conditional use permits. A variance may be
granted to alleviate a unique hardship on a property owner
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because of the way a generally-applicable zoning ordinance
affects a particular parcel, and a conditional use permit allows
a land use that is not authorized by right in a zoning
ordinance, but may be authorized if the property owner takes
certain steps, such as to mitigate the potential impacts of the
land use. Both of these processes require hearings by the local
zoning board and public notice of those hearings.
While ministerial processes are not subject to the California
Environmental Quality Act (CEQA), a conditional use permit can
be subject to CEQA if they would result in a project because the
approving agency can exercise some discretion over the permit.
Sustainable Groundwater Management Act. In response to a
multi-year drought, the Legislature enacted the Sustainable
Groundwater Management Act (SGMA) in 2014. Composed of three
bills-AB 1739 (Dickinson), SB 1168 (Pavley) and SB 1319
(Pavley)-SGMA comprehensively reformed California's groundwater
laws. Among other provisions, the Act directs the Department of
Water Resources (DWR) to categorize the state's groundwater
basins into high, medium, low, and very low priorities, based on
factors such as the population overlying the basin, number of
wells in the basin, and overlying irrigated acreage. The DWR
must also identify basins subject to critical overdraft-where
more water is consistently being removed than replaced.
Under SGMA, basins designated as high or medium priority must be
managed by a groundwater sustainability agency (GSA). That
agency must develop a groundwater sustainability plan to ensure
that by 2040, the basin is in a sustainable condition-there can
be no "undesirable results" (such as land sinking) from use of
the basin. If a basin does not have a GSA or the agency fails to
adopt or implement a plan, the State Water Resources Control
Board may designate the basin as "probationary" and can develop
its own plan to achieve sustainability for the basin. The
deadlines for GSAs to adopt their plans vary by basin: high and
medium priority basins in critical overdraft must adopt a plan
by January 31, 2020; other high and medium priority basins have
until January 31, 2022.
SGMA grants GSAs substantial new authorities to regulate
groundwater use within their jurisdiction, including to impose
fees to fund groundwater sustainability programs and to
regulate, limit, or suspend:
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Extractions from individual groundwater wells or
extractions from groundwater wells in the aggregate.
Construction of new groundwater wells.
Enlargement of existing groundwater wells.
Reactivation of abandoned groundwater wells.
However, SGMA also states that counties have authority over well
permitting unless that authority is specifically delegated to a
GSA, and that nothing in SGMA impairs the land use authority of
cities and counties.
Some counties have already used their police power to regulate
groundwater use. Prior to the adoption of SGMA, 30 of
California's 58 counties have ordinances regulating groundwater
in some manner. At least four counties have recently imposed
moratoria on drilling new water wells of varying durations,
while others have considered and rejected moratoria. Stanislaus
County recently updated its groundwater ordinances to require an
application for a new well to show that it will not negatively
affect the county's groundwater supplies.
Some advocates who are concerned about the impacts of
groundwater pumping want to limit the potential undesirable
results from new groundwater extraction facilities.
Proposed Law
Senate Bill 1317 requires a city or county overlying a basin
designated as a high- or medium-priority basin to establish a
process by July 1, 2017 for the issuance of a conditional use
permit for the development of a groundwater extraction facility.
The permit must impose conditions to prevent the facility from
contributing to or creating an undesirable result. Those cities
and counties must also prohibit the issuance of a conditional
use permit for a new groundwater extraction facility in either a
probationary basin or an overdrafted basin. Cities and counties
overlying low- or very low-priority basins can adopt processes
in accordance with the bill's provisions, but are not required
to.
SB 1317 exempts from the conditional use permitting process (1)
a person that extracts less than two acre-feet a year of water
for domestic purposes, and (2) new facilities that replace
existing facilities with the same or less capacity.
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SB 1317 requires cities and counties to review applications for
groundwater extraction facilities under the timelines
established by the Permit Streamlining Act and to charge fees
that are determined according to existing statutory rules.
Cities and counties that have ordinances in place by January 1,
2017 that comply with the bill do not have to enact a new
ordinance.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . SGMA was an important step towards
sustainable management of California's groundwater resources.
Yet the requirements in SGMA to develop and implement
groundwater sustainability plans do not go into effect until
2020 or later. Meanwhile, the Department of Water Resources has
identified 21 critically overdrafted basins, and new
agricultural operations continue to spring up, supplied by new
wells. In many counties, little consideration is given to the
harm that a new well might do to a groundwater basin. SB 1317
requires local governments to carefully examine the consequences
of new wells in basins that are already threatened by excessive
groundwater extraction. SB 1317 ensures that groundwater
extraction will not cause irrecoverable losses in storage space,
subsidence and the associated damage to infrastructure, or other
undesirable results.
2. One size doesn't fit all . SGMA was very carefully crafted to
maintain local control over groundwater management and stated
the Legislature's intent to recognize and preserve the authority
of cities and counties to manage groundwater pursuant to their
police powers. Local governments have already begun to
implement local regulations where they make sense in advance of
SGMA's requirements. But in other areas, it may be necessary to
temporarily use water from overdrafted or probationary basins
based on specific local conditions, such as the local economy.
Local governments are best positioned to understand these needs
and have the tools necessary to act on them through their police
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powers and the authorities granted to GSAs. SGMA further
provided local agencies with sufficient time to complete the
necessary studies to understand their basin conditions and
carefully assess the best ways to bring their basins into
balance. SB 1317 takes control away from local agencies before
they have had a chance to act by requiring them to implement
specific regulations. It upsets the carefully negotiated
balance in SGMA regarding (1) state versus local regulations and
(2) acting quickly to address groundwater problems versus giving
local agencies enough time to act. It also potentially creates
significant regulatory uncertainty and lengthy delays by
introducing CEQA analysis into what is usually a straightforward
process for receiving a permit. Finally, it may set a precedent
for additional state interference in local land use decisions.
3. Sunset . SGMA requires GSAs to develop and begin implementing
plans for achieving sustainability in the groundwater basins
they manage by January 31, 2022-or earlier if the basin is
critically overdrafted. At that time, GSAs will be responsible
for regulating groundwater use to avoid undesirable results, and
SGMA provided those agencies with additional enforcement tools.
Accordingly, state-imposed restrictions on well drilling may be
unnecessary and could create conflict with the authority granted
to GSAs. The Committee may wish to amend SB 1317 to sunset on
January 31, 2022 or once a groundwater sustainability agency has
begun to implement its groundwater sustainability plan,
whichever comes first.
4. Left out to dry . Some disadvantaged communities in
California currently rely on substandard wells that do not have
enough pressure to provide safe, adequate drinking water
supplies. SB 1317 could prohibit efforts to enlarge these
wells, leaving some communities without options for new water
supplies. The Committee may wish to amend SB 1317 to add an
exemption for new wells drilled to provide drinking water to
systems that both serve disadvantaged communities and have had a
recent violation of drinking water standards.
5. Clarifying amendments . The Committee may wish to consider the
following clarifying amendments that further the intent of the
bill:
SB 1317 requires cities and counties to adopt ordinances
that establish a process for the issuance of conditional
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use permits for groundwater extraction facilities, but does
not explicitly prohibit the development of groundwater
extraction facilities without a valid permit. The
Committee may wish to consider amending SB 1317 to include
such a prohibition.
SB 1317 requires cities and counties to prohibit the
issuance of a conditional use permit for a new groundwater
extraction facility in probationary basins and overdrafted
basins. However, this could be interpreted to simply
require ministerial, non-discretionary permit for such
facilities. The Committee may wish to consider amending SB
1317 to simply prohibit the construction of wells in these
basins through a general law instead of requiring
individual cities and counties to act.
SB 1317 applies to adjudicated basins, which are managed
according to a court order, while SGMA does not. Since
these basins are already managed to provide a safe yield of
groundwater production, the Committee may wish to consider
amending SB 1317 to exempt cities and counties that overlie
adjudicated basins from the requirements of the bill.
6. Charter cities . The California Constitution allows cities
that adopt charters to control their own "municipal affairs."
In all other matters, charter cities must follow the general,
statewide laws. Because the Constitution doesn't define
"municipal affairs," the courts determine whether a topic is a
municipal affair or whether it's an issue of statewide concern.
SB 1317 says that its statutory provisions apply to charter
cities. To support this assertion, the bill includes a
legislative finding and declaration that preventing undesirable
results in a high- or medium-priority basin is a matter of
statewide concern.
7. Incoming ! The Senate Natural Resources and Water Committee
approved SB 1317 by a vote of 6-2 on April 12, 2016.
8. Mandate . The California Constitution generally requires the
state to reimburse local agencies for their costs when the state
imposes new programs or additional duties on them. According to
the Legislative Counsel's Office, SB 1317 creates a new
state-mandated local program. But SB 1317 disclaims the state's
responsibility for reimbursing local agencies by including
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findings and declarations that local agencies may levy fees to
cover the costs of the program.
Support and
Opposition (4/14/2016)
Support : AZUL; California League of Conservation Voters; Clean
Water Action; Community Water Center; Food and Water Watch;
Leadership Counsel for Justice and Accountability; Lutheran
Office of Public Policy in California; Natural Resources Defense
Council; The Nature Conservancy; Planning and Conservation
League; Union of Concerned Scientists; Wholly H2O.
Opposition : Agricultural Council of California; Association of
California Water Agencies; California Association of Winegrape
Growers; 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;
California Groundwater Association; California League of Food
Processors; California Mutual Utilities Association; California
State Association of Counties; County of Kern; County of Merced;
County of Sacramento; County of San Joaquin; Desert Water
Agency; League of California Cities; Nisei Farmers League; Rural
County Representatives of California; Western Agricultural
Processors Association; Western Growers Association; Western
Plant Health Association.
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