BILL ANALYSIS Ó SB 1317 Page 1 Date of Hearing: June 28, 2016 ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE Marc Levine, Chair SB 1317 (Wolk) - As Amended June 20, 2016 SENATE VOTE: 21-17 SUBJECT: Groundwater extraction permit SUMMARY: Requires a city or county overlying a basin designated as a high- or medium-priority basin to, under specified conditions and with exceptions, prohibit the issuance of a permit for a new groundwater extraction facility, or establish a process which requires an applicant for a permit to demonstrate the extraction of groundwater from the proposed facility will not contribute to or create an undesirable result. Specifically, this bill: 1)By January 1, 2018, requires cities and counties overlying a basin designated as a high- or medium priority basin to establish a process for a groundwater extraction facility applicant to demonstrate that the extraction of groundwater from the facility will not contribute to or create an undesirable result or adopt an ordinance that prevents a new groundwater extraction facility from contributing to or creating an undesirable result. SB 1317 Page 2 2)Prohibits the issuance of a groundwater extraction permit, with exceptions, for a new groundwater extraction facility in a probationary basin or basin subject to critical overdraft. 3)Removes the requirement that specified cities and counties have a process for the issuance of a groundwater extraction permit on or after January 31, 2022, or once the Department of Water Resources (DWR) has determined a Groundwater Sustainability Plan (GSP) for the basin to be adequate. 4)Does not apply the provisions of the bill to an adjudicated basin, a special act water district, or the county of Napa if both the county's groundwater conservation ordinance and its water availability analysis policy remain in effect and are substantially the same as they existed on January 1, 2016. EXISTING LAW: 1)Specifies that cities and counties have a number of different responsibilities, including land use planning and permitting, and issuing permits for water well construction. 2)Requires the DWR to evaluate groundwater basins and designate them as high, medium, low or very low, according to various factors including, but not limited to, level of dependence upon the basin by municipal and agricultural users. 3)Requires the DWR to investigate existing patterns of groundwater extraction and groundwater recharge within basins to identify basins that are subject to critical conditions of SB 1317 Page 3 overdraft. 4)Requires that local agencies in high- and medium-priority basins subject to the Sustainable Groundwater Management Act (SGMA) form one or more Groundwater Sustainability Agency's (GSAs) by June 30, 2017. 5)Requires that GSAs in basins with chronic overdraft develop and adopt a GSP for their basin by January 31, 2020. 6)Requires that GSAs in all other high- and medium-priority basins subject to SGMA develop and adopt GSPs by January 31, 2022. 7)Prohibits a groundwater extractor who increases pumping after January 1, 2015, during the time the GSP is under development, from using that pumping increase, as the basis of an expanded claim to groundwater against other user's rights. 8)Defines sustainable groundwater management in a GSP as avoiding undesirable results in the basin from groundwater pumping that results in any of the following: lowering of groundwater levels, reduction of groundwater storage, seawater intrusion, degraded water quality, land subsidence, and depletions of interconnected surface waters. SB 1317 Page 4 9)Provides GSAs with optional tools for reaching sustainability including, but not limited to, the ability to conduct investigations, collect fees, limit pumping, require measurement and reporting of groundwater extractions, monitor compliance, charge civil penalties for violations, and implement plans and programs to recharge a basin. 10)Authorizes the State Water Board to declare a basin in probationary status under specified circumstances. FISCAL EFFECT: Unknown. COMMENTS: This bill requires a city or county overlying a basin designated as a high- or medium-priority basin to, under specified conditions and with exceptions, prohibit the issuance of a permit for a new groundwater extraction facility, or establish a process which requires an applicant for a permit to demonstrate the extraction of groundwater from the proposed facility will not contribute to or create an undesirable result. 1)Author's Statement: Even with the passage of SGMA 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 before SGMA regulations start to take effect in 2020. Local governments need to take responsibility for their at-risk and critically overdrafted basins. New wells are being dug daily all over the state at an alarming rate in anticipation of SGMA. New straws suck the water out of the ground without any analysis of the impacts on neighboring farmers or the community within the groundwater basin. This SB 1317 Page 5 bill seeks to slow this run on wells so there will actually be some groundwater left to manage in 2020. 2)Background: Groundwater is a critically important component of water supply in California. Depending on conditions, groundwater provides a third to nearly two-thirds of the state's water supply. The swing in the amount of total state supply that comes from groundwater is affected by a variety of factors including drought, the ability to move water across the state, local and state regulations, land use, and local conditions. While there has been increasingly more information gathered on groundwater wells and groundwater supplies we do not yet have a clear picture of the status of groundwater across the state. The DWR estimates that there are between one to two million water wells (irrespective of condition or whether used or idle) scattered throughout the State. On average, 10,000 to 15,000 more wells are added to this total each year. Most are situated in the 515 groundwater basins/subbasins in California, although many are located in the hilly and mountainous areas. They range from hand dug wells to carefully designed large production wells drilled to great depths. While costs of a well vary dramatically it is not unusual for wells to cost hundreds of thousands of dollars. The DWR is responsible for maintaining information on well completion reports, which must be submitted whenever a driller constructs, alters, or destroys a well. Information on well completion reports can be a valuable resource to learn about subsurface geologic conditions. The Legislature passed SB 83 (Committee on Budget), Chapter 24, Statutes of 2015, that among other things allows public access to well completion reports. The DWR has about 800,000 reports on file, SB 83 required that personal information be removed from the reports prior to making them public. Because it requires significant effort to redact the personal data from all reports those SB 1317 Page 6 reports will, most likely, not be made publicly available until later this year. In 2009, the Legislature passed SB6 x7 (Steinberg), Chapter 1, Statues of 2009, Seventh Extraordinary Session, which mandated a statewide groundwater elevation monitoring program to track seasonal and long-term trends in groundwater elevations in California's groundwater basins. As a result the DWR developed the California Statewide Groundwater Elevation Monitoring (CASGEM) program. The law anticipates that the monitoring of groundwater elevations required by the legislation will be done by local entities. The first two statewide CASGEM reports have been submitted, but do not yet paint a complete groundwater picture for the state. In 2014, in the fourth year of drought with mounting evidence that groundwater was being depleted at an increasing rate, California became the last western state to regulate groundwater use through the enactment of SGMA. Overall, the State has been withdrawing more groundwater annually than is being replenished, on average by 1 million to 2 million acre-feet per year. SGMA did not alter groundwater rights. In most areas of the State, overlying land owners may extract groundwater and put it to beneficial use without impediment. Implementation of SGMA: SGMA requires a local process for high- or medium- priority basins to sustainably manage basins within 20 years, with basins in critical overdraft having to come into compliance two years earlier. California has 515 groundwater basins and subasins. Of the 515 basins, 127 have been designated by the DWR as high- or medium-priority basins. The 127 basins account for about 96% of the state's groundwater use. Additionally, 21 basins have been identified SB 1317 Page 7 by the DWR as being in a condition of critical overdraft. While critically overdraft basins are spread throughout the state, most of the San Joaquin Valley basins have been designated as being in a condition of critical overdraft. SGMA Soon Enough: The question this bill raises is will SGMA be effective soon enough. One of the central features of SGMA was that groundwater management in California is best accomplished locally. GSA's are required to address undesirable results that occur after January 1, 2015. Meaning, there is reason for local agencies to prevent severe actions that would make future implementation of sustainability challenging. GSP's will be very through documents with a scientific level of understanding and coordination of regulation in each basin that does not exist today. As a result, the current timeframes that exist in SGMA are going to be challenging for many regions to meet. This bill, by January 1, 2018, puts a limitation or prohibition on groundwater extraction that contributes to or creates an undesirable result. Undesirable results in high and medium priority basins will not be defined until GSP's are established by January 31, 2022. This is a flaw that requires coming into compliance by 2018 with a standard that may not exist until 2022. Local Actions: Cities and counties are responsible for issuing permits for groundwater extraction facilities. This bill is modeled off of an ordinance in Stanislaus County which would prohibit new groundwater wells that lead to "the unsustainable extraction of groundwater within the unincorporated areas of the County." Similar to this legislation, the Stanislaus County ordinance requires applicants for groundwater extraction facility permits to demonstrate that the extraction from the facility will not "constitute unsustainable extraction of groundwater". Other counties currently have or SB 1317 Page 8 at times have put in place restrictions on groundwater extraction in response to their local groundwater management needs. The Stanislaus County ordinance faced and prevailed, in Superior Court, a California Environmental Quality Act (CEQA) lawsuit. The challenge pertained to the County not applying a CEQA analysis on the permitting of wells because of reliance on the applicant certifying the impacts of the new facility. Last year, the Legislature passed SB 88 (Committee on Budget), Chapter 27, Statues of 2015, that among other things, excluded city and county ordinances that limit or prohibit the drilling of new or deeper groundwater wells from CEQA until July 1, 2017, or the end of the drought state of emergency declared by the Governor, whichever is later. It is clear that the authority to enact local ordinances exists. It is clear that SGMA envisioned a local process that could include local ordinances. It is not clear if requiring local actions will enhance the ability to meet the requirements of sustainable groundwater management under SGMA. Double Referral: If this bill should pass this committee it will be re-referred to Assembly Local Government Committee. 3)Prior and Related Legislation: a) SB 1168 (Pavley), Chapter 346, Statutes of 2014, enacted SGMA. b) AB 1738 (Dickinson), Chapter 347, Statutes of SB 1317 Page 9 2014, enacted SGMA. c) SB 88 (Committee on Budget), Chapter 27, Statutes of 2015, added CEQA exemptions for city or county ordinances limiting or prohibiting the drilling of new or deeper groundwater wells. d) SB 83 (Committee on Budget), Chapter 24, Statutes of 2015, required public access to well completion reports. e) SB6 x7 (Steinberg), Chapter 1, Statues of 2009, Seventh Extraordinary Session, which mandated statewide groundwater elevation monitoring. 1)Supporting Arguments: This bill will help prevent adverse impact to communities, the environment, and the economy dependent on groundwater while implementation of SGMA begins. Throughout the State, many basins are seeing rapid drawdown of groundwater levels due to unchecked permitting of new groundwater extraction sites, leading to subsidence, reduced water availability for communities, and environmental degradation. 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. Since the enactment of SGMA, and due to drought, we are seeing a rapid increase in well drilling across California. This bill will slow the pace of groundwater depletion by prohibiting the permitting of new wells within critically overdrafted basins and limiting well drilling in high and medium priority basins. This is a much needed step in order to protect the State's SB 1317 Page 10 aquifers from permanent damage as we implement SGMA, which does not fully take effect until 2042. 2)Opposing Arguments: This bill undermines the intent of SGMA to achieve groundwater sustainability through local management by taking management decisions out of the hands of locals. The bill substantially interferes with the implementation of SGMA by mandating a city or county overlying a high or medium priority water basin to establish a process by January 1, 2018, for issuing a groundwater extraction permit and restricts permits for probationary basins and those in critical overdraft. This bill hinders the ability of local agencies to analyze and determine the necessary management tools required to achieve sustainability in each basin. SGMA should be given time to be implemented and the many significant local efforts should be allowed to succeed before adding additional mandates. REGISTERED SUPPORT / OPPOSITION: Support AZUL California League of Conservation Voters Clean Water Action Community Water Center Endangered Habitats League Food and Water Watch Institute for Ecological Health Leadership Counsel for Justice & Accountability Lutheran Office of Public Policy Natural Resources Defense Council Planning and Conservation League Sierra Club California SB 1317 Page 11 The Nature Conservancy Union of Concerned Scientists Wholly H2O Opposition Agricultural Council of California Almond Hullers & Processors Association Association of California Egg Farmers Association of California Water Agencies California Association of Wheat Growers California Association of Winegrape Growers California Bean Shippers Association California Building Industry Association California Cattlemen's Association California Chamber of Commerce California Citrus Mutual California Construction and Industrial Materials Association California Cotton Ginners and Growers Associations California Dairies, Inc. California Farm Bureau Federation California Fresh Fruit Association California Grain and Feed Association California Groundwater Association California League of Food Processors California Municipal Utilities Association California Pear Growers Association California Seed Association California State Association of Counties California State Floral Association California Women for Agriculture City of Roseville Coachella Valley Water District County of Del Norte Board of Supervisors County of Sacramento County of San Diego Desert Water Agency Fresno County Board of Supervisors Grower-Shipper Association of Central California SB 1317 Page 12 Humboldt County Board of Supervisors Indian Wells Valley Water District Kern County Board of Supervisors League of California Cities Merced County Board of Supervisors Nisei Farmers League Regional Water Authority Rural County Representatives of California Sacramento County Board of Supervisors San Joaquin County Board of Supervisors San Joaquin Delta Coalition Tehama Flood Control and Water Conservation District Valley Ag Water Coalition Western Agricultural Processors Association Western Growers Association Western Plant Health Association Analysis Prepared by:Ryan Ojakian / W., P., & W. / (916) 319-2096