On February 22, 2016, Senator Lois Wolk (D-Davis) introduced Senate Bill 1317 (“SB 1317”) to protect aquifers and groundwater supplies from increasing groundwater withdrawals. SB 1317, the Aquifer Protection Act, if enacted would mandate a city or county overlying a high- or medium-priority groundwater basin to require conditional use permits for the development of groundwater extraction facilities. This permitting process is intended to prevent permanent damage to the State’s groundwater resources by regulating wells.

Current Groundwater Legislation 

In 2014, California adopted landmark legislation, the Sustainable Groundwater Management Act (“SGMA”) (California Water Code § 10720 et seq.), to sustainably manage groundwater resources and enhance local control. SGMA gives local agencies the authority to regulate groundwater over the long-term by requiring a Groundwater Sustainability Agency (“GSA”) administer a Groundwater Sustainability Plan (“GSP”) for each groundwater basin. While the goal of SGMA is to protect groundwater resources, the creation of GSAs and application of GSPs will not be fully implemented until 2022. Thus, groundwater overdraft can continue in some regions even when local agencies are complying with SGMA mandates.

SB 1317 Background and Specifics 

Senator Wolk argues that new well drilling has sharply increased during the drought, including in areas where aquifers are already at risk due to critical overdraft.  Senator Wolk also cites a NASA report that found that parts of the California Aqueduct sank by over 12 inches in 2014. Even though subsidence has occurred for decades in California, the new NASA data shows the sinking is happening at a faster rate exacerbating potential damage to local, state and federal infrastructure, including aqueducts, bridges, roads and flood control structures.  Furthermore, Senator Wolk emphasizes that long-term subsidence has already destroyed thousands of public and private groundwater well casings in the San Joaquin Valley.

To alleviate some of these impacts, SB 1317 would mandate that local governments establish a process to issue a conditional use permit for the development of a groundwater extraction facility by July 1, 2017. As part of the conditional use permit, the local agency would be required to specify conditions to prevent the new groundwater extraction facility from contributing to or creating an undesirable result to the basin.  Further, SB 1317 would prohibit approval of new well permits in critically overdrafted basins or those basins that are in probationary status.

While SB 1317 provides strong protections for groundwater resources, there are also a few exceptions listed in the bill. SB 1317’s conditional use permit requirement would not apply to de minimis extractors or replacement wells that have the same or less capacity as the well that is being replaced. Additionally, local agencies within low and very low priority basins may comply with the provisions of SB 1317, but are not required to do so.

Implications

SB 1317 has only been introduced to the Senate and has many additional steps to take before it can receive legislative approval and go to the Governor to sign into law. If SB 1317 passes, the bill would take effect and require the new permitting procedures in 2017. Local agencies may have to update their codes and policies to comply with the legislative requirements and regulate well permits according to SB 1317. We will continue to watch the status of this bill and update our clients of future mandates.

As always, if you have questions on this legislation or regulatory issues, please contact Barbara Brenner at (916) 468-0625 barbara@whitebrennerllp.com or Celia Mata at (916) 468-0623 celia@whitebrennerllp.com.