Newsom Drought Ordinance Poses Big Question Over Water Well Permits For Valley Farmers

California Governor Gavin Newsom issued Executive Order N-7-22 on March 28, 2022 in response to the state’s persistent drought conditions. It takes effect immediately and covers the entire state.

The entire order could perhaps be considered part five of his previous four drought-related executive orders of 2021.

The order is formatted as a proclamation, it has two pages of “whereas” explaining the Governor’s thoughts on why the order is necessary. He attributes everything to climate change and does not mention any other causes such as the possibility of government mismanagement of storage and supplies. However, in issue five he mentions farms alongside vulnerable communities and fish and wildlife, so at least agriculture hasn’t been ignored. The second page therefore gives a let it be writing, let it be done followed by four other pages listing 15 elements or directives.

Items include:

  • Urge Californians to save water
  • Directs the National Water Resources Control Board to consider adopting emergency regulations to collect data from urban water providers showing how they have managed their water shortage plans
  • Directs the Ministry of Water Resources to consult the commercial, industrial and institutional sectors in order to define regulations which will prohibit the watering of lawns but not primarily of ornamental trees. Section 4 exempts school grounds, sports fields and parks – so it looks like the golfing community can breathe easier – for now
  • California’s environmental quality law will be suspended in some cases
  • Sections of the water code will be suspended to expeditiously review petitions that add beneficial use for fish and wildlife
  • State Council instructed to step up inspections of illegal diversions with warrants if property access is not granted
  • County permits for new wells or modification of existing wells must be reviewed by groundwater sustainability agencies before they can be granted

CEQA exemptions

California’s Environmental Quality Act has evolved from a well-meaning law aimed at protecting habitat and communities from pollution and rapacious deterioration to a blunt, obstructive weapon to be used in lawsuits. You may recall that recently a so-called neighborhood group sued the University of California, Berkeley for limiting its student enrollment, claiming the higher student numbers violated the CEQA. Almost every project imaginable, from construction to water infrastructure, must go through the CEQA process and are open to legal wrangling.

The decree suspends CEQA review for certain charging and infrastructure projects. Local and state agencies can capture flood waters for recharge without going through the CEQA. Charging projects funded by SGMA grants are exempt from CEQA.

While this sounds like good news for capturing floodwaters and improving the aquifer, conditions are attached. The Secretary of Natural Resources must review the project and determine its eligibility under this order. The secretary is Wade Crowfoot and he has a reputation for being more balanced than many other regulators and bureaucrats in Sacramento.

One of the big questions asked about this part of the order is: does the CEQA pass apply to supplies, projects, or both? There are people working to answer these questions and help flesh out the command with practical applications.

Item 9

One of the areas of greatest concern is Point 9 and the relationship and responsibilities it places on counties and groundwater sustainability agencies. Here is the language:

“9. To protect health, safety and the environment during this drought emergencya county, city or other public body must not:

a. Approve a permit for a new groundwater well or for the modification of an existing well in a basin subject to the Sustainable Groundwater Management Act and classified as medium or high priority without first obtaining a written verification from a groundwater sustainability agency managing the basin or area of ​​the basin where the well is proposed to be located that the extraction of groundwater by the proposed well would not be inconsistent with any established sustainable groundwater management program in any applicable groundwater sustainability plan adopted by that groundwater sustainability agency and would not diminish the likelihood of achieving objective sustainability for the basin covered by such plan; or

b. Issuing a permit for a new groundwater well or for the modification of an existing well without first determining that groundwater extraction from the proposed well is (1) not likely to interfere with production and operation of nearby existing wells, and (2) is unlikely to cause subsidence that would adversely impact or damage nearby infrastructure.

This paragraph does not apply to well licenses that will supply less than two acre-feet per year of groundwater to individual domestic users, or which will supply groundwater exclusively to public water supply systems such as defined in article 116275 of the Health and Safety Code. ”

The DWR plug

Item 9 applies to both new wells and alternating existing wells. It does not apply to permits for wells of two acres or less per year supplying water to domestic users.

I spoke with Paul Gosselin, DWR Deputy Director of Sustainable Groundwater Management on what Point 9 means for GSAs trying to implement the Sustainable Groundwater Management Act.

“First, we are very sensitive to the workload of GSAs during this unprecedented drought,” Gosselin said. “[Item 9] It’s not an unfunded mandate and it’s not a status change. He hopes GSAs and counties will understand that the state is experiencing a severe drought. The order is not endless and all parts of the government are going to have to work harder to get through the worst.

Gosselin said GSAs are not required to analyze permits under the order — only to verify that groundwater in the well area is accounted for. He said it would bridge the gap between the licensing agency and the GSAs within that agency. For most agricultural areas, counties generally issue permits.

Counties meet with their legal counsel, as do GSAs, to determine what the ordinance brings in terms of obligations and changes. As previously reported, Fresno County GSAs have sought well permit reviews from the county and cities within their jurisdiction. But this was a voluntary agreement, not a binding state order.

Gosselin helped clarify that GSAs do not have veto power over the county issuing a well permit.

“GSAs can tell the county that this well will be a new demand not covered by the GSP. There is no enforcement with this part of the order,” Gosselin said.

Paragraph b

Section 9(b) states that a county shall not issue a permit for a new well or modification of an existing well without first determining whether pumping the new or modified well is unlikely to interfere with existing or neighboring wells will not cause subsidence which could negatively impact or damage nearby infrastructure.

This raises the question of responsibility.

If Farmer Fred drills a new well and Farmer Bob’s old, unmaintained well fails soon after, how do you prove that the failure was due to the new well? What if Bob sues? Who is Bob suing – Fred, the county, the GSA? Gosselin agreed that compensation against lawsuits over well permits needs to be carefully considered.

Gosselin said DWR is preparing to engage in much of the engagement with counties and GSAs on the executive order. He said the California Association of Water Agencies, the Association of California State Counties and representatives from rural California counties are already holding meetings to review the issues of the executive order.

Other views

Many in the agriculture industry believe this order amounts to a statewide moratorium on well drilling and feel that once again agriculture has been left behind.

Discussions between lawyers, managers and directors of GSAs are constant – this is not the right time to give more work to staff.

A lawyer who spoke in the background said there could be more than just wishful thinking or perhaps even naivety in asking GSAs to review permits when groundwater data is n have not yet been fully collected and compiled anywhere.

How will someone be able to answer the question of the impacts a well will have in 40 years?

This is California and this is the water so history is populated with myriad examples of the unintended consequences of government actions. The legality of this order is questioned.

Landowners have rights to the groundwater they cover. The fact that GSAs have no power over water rights is enshrined in the Sustainable Groundwater Management Act.

The legal opinion has been that the upper layers have the right to access their groundwater and that means a well.

However, under SGMA, a GSA can limit the amount that can be pumped.

Prior to this order, the GSAs developed language for counties to include in permits. This may be a notice that you may drill and develop a well, but may not be able to pump under certain conditions. This could be a way to comply with maintaining rights as rights and not letting them drift into the privileged territory granted by the government while meeting the real need to prevent subsidence and other SGMA purposes. .

To paraphrase Steinbeck, California goes from drought to drought, from wet year to wet year and doesn’t seem to remember one another and, more importantly, learns the lesson each teaches. Maybe that’s changing. We’ll see.

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