Loading...
HomeMy WebLinkAboutAgenda Report - July 19, 2017 C-19TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM C-19 AGENDA TITLE: Receive Report Regarding Communication Pertaining to Senate Bill 252 (Dodd) — New Well Permits in Critically Overdrafted Basins MEETING DATE: July 19, 2017 PREPARED BY: City Clerk RECOMMENDED ACTION: Receive report regarding communication pertaining to Senate Bill 252 (Dodd) — New Well Permits in Critically Overdrafted Basins. BACKGROUND INFORMATION: The City received a request for communication from the League of California Cities regarding Senate Bill 252 (Dodd) — New Well Permits in Critically Overdrafted Basins. There was a need to send a letter of opposition immediately in light of a pending hearing. Senate Bill 252 relates to well permits issued in critically over -drafted groundwater basins that places an additional burden on local agencies as they try to determine compliance with the applicant's notice requirements and related information. Currently, well permitting is ministerial under the applicable local ordinances — and not covered by the California Environmental Quality Act (CEQA). The approach taken by SB 252 continues to suggest this action would be discretionary and, therefore, raises the question over whether or not a CEQA review is now required. A second area that is problematic relates to: (1) defining the city's obligation in assessing the information provided by the applicant as proposed by Water Code Section 13808 (a) — (d); and (2) the express requirement that the local agency must make a finding as to the compliance with the requirements placed on the applicant. The issuance of a permit could be challenged if it is determined that the decision is not supported by substantial evidence, thereby creating additional liability. Related to this and also problematic is the scenario in which, during the course of a public hearing, data is provided that is NOT in concert with what is provided by the applicant. We believe that further guidance is needed as to how the City addresses this situation. The attached letter, electronically signed by the Mayor, was sent out on June 19, 2017. A copy of the initial request, along with the text of the amended bill, is also attached. This report is provided for informational purposes only, pursuant to policy. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable. _AAA TYl, -(AAa e nifer M. rraiolo ity Clerk APPROVED: c a. tRT. City Manager N:\Administration\CLERK\Council\COUNCOM\LeagueReceiveReportMaster2.doc CITY COUNCIL DOUG KUEHNE, Mayor ALAN NAKANISHI, Mayor Pro Tempore MARK CHANDLER BOB JOHNSON JOANNE MOUNCE CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6702 / FAX (209) 333-6807 www.lodi.gov cityclerk©Iodi.gov June 19, 2017 The Honorable Mike McGuire Chair, Senate Committee on Governance & Finance State Capitol, Room 5061 Sacramento, CA 95814 RE: Senate Bill 252 — Water Wells — OPPOSED UNLESS AMENDED STEPHEN SCHWABAUER City Manager JENNIFER M. FERRAIOLO City Clerk JANICE D. MAGDICH City Attorney Dear Senator McGuire: On behalf of the City of Lodi, we regretfully oppose, unless amended, Senator Dodd's recently amended Senate Bill 252. This measure relates to well permits issued in critically over -drafted groundwater basins. In 2014, the League of California Cities was actively engaged in the landmark water legislation — Senate Bill 1168 and Assembly Bill 1739 — which established the Sustainable Groundwater Management Act (SGMA). Together these measures provide a framework for local agencies to develop plans and implement strategies to sustainably manage groundwater resources within a defined period. Since being enacted, counties, agencies, and stakeholders have been working diligently to meet the June 30, 2017, deadline that requires a local agency in each high- or medium -priority groundwater basin to have officially formed one or more Groundwater Sustainability Agencies (GSA) for the entire basin. By January 31, 2020, each high- or medium -priority groundwater basin that is subject to critical conditions of overdraft must be managed under a Groundwater Sustainability Plan (GSP) and by January 31, 2022, all remaining high- or medium -priority groundwater basins must be managed under a GSP with a final review by the Department of Water Resources (DWR) by January 31, 2024. Please be assured that Lodi is committed to facilitating the implementation of SGMA. We appreciate that the Senator has limited the provisions of SB 252 to critically over - drafted basins. The legislation also recognizes the "local control" element that has been a key aspect to Sustainable Groundwater Management Act's (adopted in 2014) implementation and, as recently amended, does not apply in basins that have a GSA. However, the extent to which SB 252 applies to the issuance of well permits places an additional burden on local agencies as they try to determine compliance with the applicant's notice requirements and related information. Currently, well permitting is ministerial under the applicable local ordinances — and not covered by the California Environmental Quality Act (CEQA). The approach taken by SB 252 continues to suggest this action would be discretionary and, therefore, raises the question over whether or not a CEQA review is now required. We understand that it is the Senator's intent to maintain this activity as a ministerial action, and while the amended version is a step in that direction, SB 252 continues to require that the permit be noticed, and a comment period as well as public hearing be provided. A second area that is problematic relates to: (1) defining the city's obligation in assessing the information provided by the applicant as proposed by Water Code Section 13808 (a) — (d); and (2) the express requirement that the local agency must make a finding as to the compliance with the requirements placed on the applicant. The issuance of a permit could be challenged if it is determined that the decision is not supported by substantial evidence, thereby creating additional liability. Related to this and also problematic is the scenario in which, during the course of a public hearing, data is provided that is NOT in concert with what is provided by the applicant. We believe that further guidance is needed as to how the City addresses this situation. For these reasons, the City of Lodi opposes this legislation, unless amended. Sincerely, /4/ D4a, z Doug Kuehne Mayor, City of Lodi cc: Senator Cathleen Galgiani, Fax: (916) 651-4905 Assemblymember Jim Cooper, Fax: (916) 319-2109 Honorable Bill Dodd, Member of the State Senate Anton Favorini-Csorba, Consultant, Senate Committee on Governance & Finance Ryan Eisberg, Policy Consultant, Republican Policy Office Stephen Qualls, League of California Cities, squalls@cacities.org Meg Desmond, League of California Cities, mdesmond@cacities.org Jennifer Ferraiolo From: Stephen R. Qualls <squalls@cacities.org> Sent: Thursday, June 15, 2017 3:16 PM Subject: Fw: SB 252 - New Well Permits in Critically Overdrafted Basins Attachments: Oppose Letter.pdf; Draft Amendments.pdf Please see the email below and respond asap. I'm not sure if this would affect any cities in our division but your overall input would be greatly appreciated. If you could forward this to the appropriate contacts at your local water agencies and ask for their input It'd be great. Thank you, Stephen Qualls Central Valley Regional Public Affairs Manager League of California Cities 209-614-0118 Fax 209-883-0653 squalls@cacities.org<m ailto:squalls@cacities.org> [Description: Description: LCC_Logo_SM] [https://mail.cacities.org/owa/attachment.ashx?id=RgAAAACy8fHTR2LKSbH7v1WA%2bKroBwCJ I F8QxE1YR5pVkCgOVZ7 pAAAGc5DHAACi1U1kD4vzS51QTLjAf8aNAAAyvLINAAAJ&attcnt=1&attid0=BAABAAAA&attcid0=image002.png%4001CF9 F55.154BCF00] Strengthening California Cities through Advocacy and Education To expand and protect local control for cities through education and advocacy in order to enhance the quality of life for all Californians. <https://mail.cacities.org/owa/redir.aspx?C=9balcebeda914a8d8b298c0154b06ac0&URL=http%3a%2f%2fwww.cacities .org%2fAC> PLEASE DO NOT distribute political campaign advocacy information from public (city hall) computers, on city time, or using public resources, even if it's from your personal email account. If in doubt, check with your city attorney.?? ***Disclaimer***Please Note: Please take the following precautions if this email is about a CITIPAC event. Though it is not illegal for you to receive this notice via a city e-mail address, you should not respond to it or forward it using public resources. You may however forward this message to your non-public e-mail account for distribution on non-public time. If you have questions about the event or need additional information, please contact Mike Egan at (916) 658-8271 or egan@cacities.org From: Erin Evans-Fudem Sent: Thursday, June 15, 2017 1:49 PM To: Stephen R. Qualls Cc: Corrie Manning Subject: SB 252 - New Well Permits in Critically Overdrafted Basins 1 Stephen, SB 252 would establish new conditions on the issuance of new well permits in critically overdrafted basins. There is a concern that adding these conditions will convert the permit issuance from ministerial to discretionary. As this is an issue of primary concern to counties, RCRC has been taking the lead working with the League and CSAC to oppose this bill unless it is amended to ensure the issuance of such permits remains ministerial. (See attached letter.) Amendments have been suggested (attached) that we think alleviate our major concerns by requiring notice and a public meeting as opposed to any new discretionary obligations or hearings. While still not perfect, the amended version is likely to be much more workable for counties and cities than if the current version of the bill passed. The questions for you are: (1) How many cities does this affect, given that it would only apply to permits for new wells in critically overdrafted basins? (It's our understanding that not all cities issue well permits.) (2) For those it does affect, are these amendments workable? We would appreciate hearing your thoughts. Thank you, Erin and Corrie Erin Evans-Fudem Legislative Representative League of California Cities (916) 658-8250 phone 2 DRAFT REVISIONS TO SENATE BILL 252 (5/2/17 ver.) Article 5. Wells in Critically Overdrafted Groundwater Basins 13807. The Legislature finds and declares all of the following: (a) According to the Department of Water Resources, among the 512 basins throughout the state, 21 are deemed critically overdrafted, causing wells to dry up, land to subside and damage infrastructure, and saltwater to intrude from the sea, and jeopardizing the availability of groundwater for future generations. (b) In 2014, California adopted landmark legislation, the Sustainable Groundwater Management Act (Part 2.74 (commencing with Section 10720) of Division 6), to sustainably manage groundwater resources. The act will not be fully implemented for several years, allowing groundwater overdraft to continue in some regions. (c) The Sustainable Groundwater Management Act was a critical step toward achieving sustainability in the management of groundwater, but it did not directly address the impact of land use decisions and well drilling. The act left the authority for issuing permits for new wells and any associated land use decisions entirely with counties, unless that authority is delegated to a groundwater sustainability agency pursuant to subdivision (b) of Section 10726.4. (d) Consistent with Section 113 and the Sustainable Groundwater Management Act, this article supports groundwater management by local agencies and is not a limitation on the authority of local agencies or the state under any other law. (e) Greater transparency is needed to provide existing pumpers and water users in critically overdrafted basins with important information about the use of shared groundwater resources, specifically regarding applications for new well permits. (f) Those applying for permits for new wells in a critically overdrafted basin should understand the risks of making those investments and the potential impact on existing groundwater users. (g) New wells are likely to threaten existing groundwater users in critically overdrafted basins, which is an issue of statewide importance and requires statewide action to avoid undesirable results to groundwater and state resources while local communities are working to comply with the provisions of the Sustainable Groundwater Management Act. Preventing undesirable results in critically overdrafted basins pursuant to this article is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this act applies to charter cities. (h) This act is in furtherance of the policy contained in Section 2 of Article X of the California Constitution. 13807.5. As used in this article: (a) "Basin" has the meaning provided in Section 10721. (b) "Critically overdrafted basin" means a basin designated by the department as subject to critical conditions of overdraft pursuant to Section 12924. (c) "De minimis extractor" has the meaning provided in Section 10721. (d) "Groundwater sustainability agency" has the meaning provided in Section 10721. (e) "Groundwater sustainability plan" has the meaning provided in Section 10721. (f) "High-priority basin" and "medium -priority basin" have the same meaning as the categorization of a basin by the department pursuant to Section 10722.4. (g) "Undesirable results" has the meaning provided in Section 10721. 13808. An applicant for a new well permit in a city or county overlying a critically overdrafted basin, and where the proposed well is located within a critically overdrafted basin, shall do all of the following as part of an application for a well permit: (a) Verify that the applicant has read subdivision (a) of Section 10720.5, and acknowledges that the extraction of groundwater may not be used as evidence of, or to establish or defend against, any claim of prescription in a medium- or high- priority basin between January 1, 2015, and the date of adoption of a groundwater sustainability plan or the approval by the department of an alternative, whichever is sooner. (b) Notify any lenders for the new well of subdivision (a). (c) Agree that if the groundwater sustainability agency finds through the development of a groundwater sustainability plan that the new well contributes to an undesirable result, the new well will cease production unless the applicant can contribute to an offset or other course of action determined by the groundwater sustainability agency. (d) Notify all adjacent contiguous landowners of the application for the well permit and where it can be found for review and the public hearing -meeting and opportunity for public comment, pursuant to Section 13808.2. (e) Include all of the following information to the extent that it can be reasonably known about the new well in the application for the well permit: (1) A map of the location, as well as information including, but not limited to, global positioning system coordinates and elevation of the proposed well. (2) The depth. (3) The proposed capacity, estimated pumping rate, anticipated pumping schedule, and estimated annual extraction volume. (4) The geologic siting information, including, but not limited to, water table depth, seasonal fluctuations, recharge area and rate, if known, and location to flood plain. (5) The distance from any potential sources of pollution on site and on adjacent properties, including, but not limited to, existing or proposed septic systems, wells, animal or fowl enclosures, transmission lines, or sewer lines. (6) The distance from any surface water within 300 feet, including, but not limited to, ponds, lakes, streams, and wetlands. (7) Any existing wells on the property, including well use, depth, diameter, screen interval, pumping rate, estimated or measured annual extraction volume, and, if available, information on specific capacity or other pumping tests completed. (8) For a well below Corcoran clay, the location of canals, ditches, pipelines, utility corridors, and roads within two miles. (9) The estimated cumulative extraction volume before January 1, 2020, and after 20 years. (10) The size in acres of the area to be served by the well and the size in acres of the contiguous owned property on which the well is located. (11) The planned category of water use, such as irrigation, stock, domestic, municipal, industrial, or other. (f) Verify that the applicant has complied with all requirements of this section and include a list of all notified parties pursuant to subdivisions (b) and (d). 13808.2. A city or county that receives an application for a well permit in a critically overdrafted basin shall do both of the following: (a) Make the information provided pursuant to subdivision (e) of Section 13808 publicly available and easily accessible, such as by posting the information on the city's or county's Internet Web site, and available to groundwater sustainability agencies located within the basin where the new well is located. (b) Before issuing any new well permit for a well located within a critically overdrafted basin, undertake a notice and comment period that includes a public hearing meeting noticed pursuant to Section 65091 of the Government Cedesubdivision (c) that gives landowners, groundwater sustainability agencies, and other groundwater extractors an opportunity to comment on the application for the new wells. (c) (1)Notice of the meeting shall be mailed or delivered at least 10 days prior to the meeting to all owners of real property as shown on the latest equalized assessment roll within 300 feet of the real property upon which the proposed well is located. In lieu of using the assessment roll, the local agency may use records of the county assessor or tax collector which contain more recent information than the assessment roll. If the number of owners to whom notice would be mailed or delivered pursuant to this paragraph is greater than 1,000, the city or county, in lieu of mailed or delivered notice, may provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation within the city or county in which the proceeding is conducted at least 10 days prior to the meeting. (2) If the notice is mailed or delivered pursuant to paragraph (1), the notice shall also either be: (A) Published pursuant to Section 6061 in at least one newspaper of general circulation within the city or county at least 10 days prior to the meeting. (B) Posted at least 10 days prior to the meeting in at least three public places within the boundaries of the city or county, including one public place in the area directly affected by the proceeding. (3) The notice shall include the date, time, and place of the meeting, the identity of the officer or body responsible for issuing the well permit or their designee who will conduct the meeting, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property upon which the proposed well is located. 13808.4. (a) Pursuant to an adopted ordinance, aA city or county may issue a new well permit within a critically overdrafted basin when the requirements of this article have been met in addition to any requirements set forth in the ordinance` -adopted by the city or county or the standards adopted by a regional board for an area under the jurisdiction of the city or county pursuant to Section 13805, as applicable. (b) This article does not apply to any of the following: (1) An applicant for a new water well who would be a de minimis extractor. (2) An applicant for a replacement water well that would not increase the amount of extractions above the amount of water extracted from the existing well. (3) A city or county with a process for the issuance of a well permit that substantially complies with the requirements of this article. In order for this article to not apply to such a city or county, the city or county shall make a public finding certifying that the city or county has an ordinance in effect that substantially complies with the requirements of this article. (4) An applicant for a new water well that is not located within a critically overdrafted basin. (5) An applicant for a new water well located within a basin that is not designated as a probationary basin by the state board and that has a groundwater sustainability I Formatted: Not Highlight plan Section 10728.4. adopted in accordance with 13808.6. This article does not, in any manner, alter, change, affect, modify, or enlarge the authority of the city or county to deny, condition, or otherwise modify the proposed well, nor the standards, measurements,_ or criteria applicable to the approval of the proposed well permit, under the ordinances of the city or county or the standards adopted by a regional board for an area under the jurisdiction of the city or county pursuant to Section 13805. under an ordinance adopted by the city or county pursuant to Section 13804 or under the standards adopted by a regional board for an area under the jurisdiction of the city or county pursuant to Section 13805.