BILL ANALYSIS �
SB 263
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 263
AUTHOR: Pavley
AMENDED: Introduced
FISCAL: Yes HEARING DATE: May 2, 2011
URGENCY: No CONSULTANT:
Rachel Machi Wagoner
SUBJECT : WELLS: REPORTS: PUBLIC AVAILABILITY
SUMMARY :
Existing law : Requires a person who digs, bores, or drills a
water well, cathodic protection well, or a monitoring well, or
abandons or destroys a well, or deepens or reperforates a
well, to file a report of completion with the Department of
Water Resources (DWR). Existing law prohibits those reports
from being made available to the public, except under certain
circumstances.
This bill requires DWR to make well logs publicly available
for wells constructed, altered, abandoned, or destroyed on or
after January 1, 2012. For wells constructed, altered,
abandoned, or destroyed before January 1, 2012, the bill would
make those well logs publicly available beginning January 1,
2013, unless the well owner notifies DWR that the well owner
desires to keep the report confidential.
COMMENTS :
1) Purpose of Bill . According to the author, every time a
water well is drilled, the driller is required by law to
provide DWR a report describing how the well was
constructed and the type of soils the driller encountered
in drilling the well. According to the author, these
reports contain critical information for ground water
managers, consulting hydrologists, academics and others
interested in geologic and hydrologic characteristics of
groundwater basins. The author states that unfortunately,
those who would benefit from this information cannot have
SB 263
Page 2
access to it. For over 50 years, the law restricted access
to those logs to just government agencies.
By making well logs publicly available, it is the author's
intent to provide necessary information that will enable
well logs to be used to construct detailed underground
aquifer maps. These maps along with geological data are
critical to developing and implementing groundwater
management plans.
2) Background . In 1949, to help prevent groundwater pollution
caused by improperly constructed water wells, the
California Legislature first required well drillers to file
a well completion report with the State of California for
each well drilled.
Well completion reports (well logs) are a record of the
drilling and construction of the well. Well logs provide
the record necessary to demonstrate that the well was
properly constructed, modified, or decommissioned, and
further provides the necessary construction detail should
the well need to be modified at some later date. They
include, among other things, the location of the well, the
depth of the well, the type of soils encountered at each
elevation as drilling, and depth to water.
In 1965, the Legislature declared that "the people of the
state have a primary interest in the location,
construction, maintenance, abandonment, and destruction of
water wells, which activities directly affect the quality
and purity of underground waters." In doing so, the
Legislature expanded the well drilling laws to: (a)
authorize DWR to establish regulations governing the proper
construction of water wells, (b) require all well
completion reports be filed with DWR, and (c) restricted
access to those reports to government agencies.
The legislative record does not give any insight as to why
the logs were made confidential.
No other western state restricts access to well logs as in
California. In fact, most western states provide Internet
access to well logs.
SB 263
Page 3
3) Arguments in support . According to the Groundwater
Resources Association, "Well completion reports contain
critical information for groundwater managers, consulting
hydrologists, academics, and others interested in and
conducting studies on the geologic, hydrologic, and water
quality characteristics of groundwater basins, earthquake
risk assessments, and other geologic hazards.
Unfortunately, those who would benefit from and need this
information for these critical studies cannot currently
have access to it."
"Well completion reports can also be used to construct
detailed underground aquifer maps. These maps along with
hydrogeological data are critical to developing and
implementing groundwater management plans. For example,
such data can be used to determine possible locations for
efficient and effective groundwater banking, identify key
recharge areas, and to better protect and improve
groundwater quality."
"For over 50 years, the law has prohibited access to well
completion reports by the public except under certain
circumstances. Moreover, information obtained from well
logs cannot be published in reports and studies, unless
individual well owners sign a release form. Unlike
California, no other western state restricts access to well
completion reports to the public; most western states even
provide Internet access to well logs. This bill would bring
California's outdated law on well completion report
confidentiality up to the current industry standard in
western states and help meet the need for transparency in
groundwater information."
4) Arguments in opposition . The San Gabriel Valley Water
Association believes "SB 263 contradicts existing state and
federal policies and would increase safety risks to public
water supplies. Water systems must conduct vulnerability
assessments and implement homeland security measures to
help protect water supplies and facilities from sabotage
and attack. In support of these efforts, the California
Department of Public Health, which oversees state-level
homeland security initiatives for water systems, no longer
SB 263
Page 4
releases physical well location information to the public.
SB 263 is in direct conflict with local, state and federal
efforts to protect public water supplies."
5) Security Concerns . Opponents raise legitimate concerns
about how this bill might affect state policy regarding
public safety.
Since shortly after September 11, 2001, Department of
Public Health (DPH) water security staff have monitored a
variety of bulletins, notices, reports and other
information from state and federal law enforcement agencies
regarding domestic and foreign threats to the security of
drinking water system infrastructure and supplies from
intentional acts of terrorism involving explosives and/or
poison. On the basis of this information, they inferred
that there are actual and credible threats of such
intentional acts against the water supply components of
California public water systems (PWSs).
To counter such threats and prevent the disruption or
destruction of safe drinking water supplies and deliveries,
DPH maintains a policy of withholding information from the
public that would reveal the exact location of drinking
water supply wells owned and operated by PWSs; DPH only
reveals information about the location of a drinking water
supply well which is within a one-mile radius of a well's
exact location.
In 2010, a case was decided by the Sacramento Superior
Court where the petitioner sought the disclosure of records
from DPH identifying the exact location of drinking water
wells owned and operated by public water systems in
California. (Community Water Center v. California
Department of Public Health.)
In evaluating the strength of the public interest in DPH's
disclosure of PWSs well location information, the court
found that the interest is "significant." However, in
evaluating the strength of the public interest served by
DPH's withholding of PWSs well location information, the
court finds that the interest is "considerable." Weighing
the public interest in nondisclosure against the public
SB 263
Page 5
interest in disclosure, the court concluded that DPH had
borne its burden under the California Public Records Act to
justify withholding exact PWSs well location information
from the public.
What is the purpose for DPH to keep well logs confidential ?
In Community Water Center v. California Department of
Public Health the court's decision did not contemplate
whether DPH has a legitimate public protection reason for
withholding the information, just that the department met
the burden of proof under the California Public Records Act
for withholding the information.
In fact, many drinking water wells, not to mention surface
water locations, are publicly disclosed in a variety of
ways.
Well logs are occasionally subpoenaed as part of a court
proceeding. Once the logs are entered into evidence,
unless the court enters a protective order maintaining the
confidentiality of those logs, the logs are public records.
Additionally, the California Environmental Quality Act
(CEQA) requires public disclosure of the site of a new
project. So any documents filed pursuant to CEQA
concerning a well project would disclose the site.
So it is uncertain why DPH contends that they should keep
this information confidential.
Additionally, no other western state keeps well logs
confidential. This is not to state that there is not a
legitimate public health threat, but rather that if there
is, simply withholding information regarding well logs is
not protecting the public from that threat.
There is, however, a very legitimate public benefit to
disclosing the well logs and being able to begin to build a
comprehensive map of California's groundwater aquifers.
SOURCE : Senator Pavley
SUPPORT : American Society of Civil Engineers
Applied Water Resources Corporation
SB 263
Page 6
California Coastkeeper Alliance
California Groundwater Association
Californians Aware
Community Water Center
Groundwater Resources Association
League of Women Voters
The Nature Conservancy
Self-Help Enterprises
Sonoma County Water Agency
Water Master Support Services
Individual professional hydrologists,
geologists, engineers and college professors -
29
OPPOSITION :California Water Service Company
Central Basin Water Association
City of Lakewood
San Gabriel Valley Water Association