BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 1317 |Hearing |4/20/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Wolk |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |2/19/16 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- 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 SB 1317 (Wolk) 2/19/16 Page 2 of ? 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: SB 1317 (Wolk) 2/19/16 Page 3 of ? 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. SB 1317 (Wolk) 2/19/16 Page 4 of ? 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 SB 1317 (Wolk) 2/19/16 Page 5 of ? 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 SB 1317 (Wolk) 2/19/16 Page 6 of ? 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 SB 1317 (Wolk) 2/19/16 Page 7 of ? 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. -- END --