Fresno County Municipal Code Ch. 14.03 Groundwater Management

A. The protection of the health, welfare, and safety of the residents of the county, and the public benefit of the state, require that the groundwater resources of Fresno County be protected from harm resulting from the extraction and transfer of groundwater for use on lands outside the county, and from the harm resulting from the extraction of groundwater for use on lands within the county to substitute for the consequential transfer of surface water outside of the county, until such time as needed additional surface water supplies are obtained for use on lands of the county, or overdrafting is alleviated.

B. Fresno County leads the nation in agricultural production. Groundwater, in conjunction with local and imported space water, is an essential resource for continued agricultural production within the county, which production includes field crops, nut and fruit crops, vegetable crops, seed crops, livestock, and other products.

C. Nearly all of the municipal and industrial water supply needs within Fresno County are met by the use of native or artificially recharged groundwater.

D. Nearly all of the residential water supply needs within Fresno County are met by the use of native or artificially recharged groundwater.

E. A large area of Fresno County is subject to conditions of critical groundwater overdraft.

F. Areas of Fresno County are subject to limited groundwater availability.

G. Areas of Fresno County are underlain by groundwater that has been contaminated or is of inferior quality.

H. Areas of Fresno County are subject to land subsidence due to the extraction of groundwater.

I. Fresno County does not generally enjoy a surplus of native and recharged groundwater available for transfer outside of the county.

J. The long-established policy of the state of California and Fresno County favors groundwater management at the local level.

K. Six groundwater basins (or portions thereof) as defined by the California Department of Water Resources' Bulletin 118-80 underlie Fresno County, and most of these basins are hydraulically connected.

L. Fresno County is the only local agency overlying all of the groundwater basins within the county.

M. The long-term direct or indirect transfer of groundwater from Fresno County could have significant environmental impacts on Fresno County, including but not limited to increased groundwater overdraft; land subsidence; uncontrolled movement of contaminated groundwater; uncontrolled movement of inferior quality groundwater; the lowering of groundwater levels; increased groundwater degradation; and loss of aquifer capacity due to land subsidence.

N. The long-term direct or indirect transfer of groundwater from Fresno County could have significant economic impacts on Fresno County, including but not limited to loss of arable agricultural land; increased pumping costs due to lowered groundwater levels; increased groundwater quality treatment costs due to movement of contaminated or inferior quality groundwater; replacement of wells due to declining groundwater levels; and replacement of damaged wells, conveyance facilities, roads, bridges and other structures due to land subsidence.

O. Protection of the county's groundwater resources and the environment requires that the county adopt a permit process addressing the extraction of groundwater for long-term use outside of the county or the long-term exaction of groundwater to substitute for space water transferred outside of the county.

P. In adopting this groundwater management ordinance codified in this chapter, the county does not intend to limit other authorized means of managing, protecting and conserving Fresno County groundwater, and intends to work cooperatively with local water agencies to continue their existing groundwater management practices as well as to implement joint groundwater management practices under the Groundwater Management Act and other applicable statutes, consistent with the plan goals of the Fresno County groundwater management plan.

Q. Water Code Section 1810(d) provides, in part, that a water conveyance facility cannot be used to transfer water if the transfer will seasonably affect the overall economy or the environment of the county from which the water is being transferred. The board of supervisors of Fresno County determines that the county is qualified to make this determination. In adopting the ordinance codified in this chapter, the county determines, to the extent such authority is granted to the county by Section 1810(d), that transfers of water will or will not seasonably affect the county's economy or environment.

R. To ensure the continued vitality of the county's agriculture industry, the economy as a whole, and the general welfare of the citizens of the county, the county of Fresno is dedicated to proactively assist local water agencies in obtaining and maintaining adequate water supplies now and in the future.

S. The conjunctive use of surface water supplies and groundwater for the purpose of crop production has been a historic practice in Fresno County; and applied surface water in excess of that consumed in the process of crop production has historically formed a source of groundwater recharge within Fresno County.

T. Surface water supplies obtained in the future may be used conjunctively with groundwater. Surface water could be diverted in times of relatively high flows and groundwater could be used during periods when sufficient surface water is not available. To achieve this result, the most readily and economically available asset the county has in dealing with its water needs is its groundwater. Loss of the use of the groundwater would result in additional surface water needs. Groundwater resources must be protected so that groundwater supplies and aquifer capacity will be available for future conjunctive use.

U. This chapter establishes an effective county policy concerning the long-term sale or other transfers of groundwater, including that extracted to substitute for surface water transfers, to protect the overall economy and environment of Fresno County. However, the county recognizes and supports the longstanding water management and water conservation efforts of local water agencies and their customers. The county does not intend that this chapter interfere with or regulate the local water management practices of those local water agencies which are conducted during the course of their operations and that do not have longterm negative impacts on the county's groundwater supply.

V. This chapter protects the county's important groundwater resources by requiring a permit from the county to extract, on a long-term basis, groundwater for transfer outside the county, including groundwater extracted to replace a surface water supply that has been, is being, or will be transferred for longterm use outside of Fresno County. This chapter is limited to requiring a permit for the long-term direct or indirect transfer of groundwater outside the county and is not intended to regulate groundwater in any other way.

(Ord. 00-013)

A. "Aquifer" means a geologic formation that stores, transmits and yields significant quantities of water to wells and springs.

B. "Board" means the board of supervisors of Fresno County.

C. "Carry over water" means water which has been made available to a local water agency under its contract to receive water from the U.S. Bureau of Reclamation, but was not used within the water year in which it was made available to the local water agency.

D. "Conjunctive use" means the planned joint use of surface and groundwater. Conjunctive use anticipates that by using surplus surface water to recharge the aquifer and conserve groundwater supplies, that surplus water will then be available for future pumping when surface supplies are not adequate to meet thencurrent demands.

E. "County" means the county of Fresno.

F. "Department" means the department of planning and resource management.

G. "Director" means the director of the department of planning and resource management or his or her designee.

H. "Emergency" means an unexpected occurrence demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property or essential public services. Emergency includes such occurrences as fire, flood, storm, drought, plant infestation, and earthquake or other soil or geologic movement.

I. "Groundwater" means all water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels over which the State Water Resources Control Board exercises authority.

J. "Groundwater banking" means the direct or in lieu recharge of local or imported water for purposes of later extraction and transfer out of Fresno County.

K. "Groundwater Management Act" means Water Code Section 10750 et seq.

L. "Historical movement of water" means the redistribution of water undertaken in a manner, and in amounts similar to, that which has occurred in at least two of the past twenty years immediately preceding the effective date of the ordinance codified in this chapter.

M. "Imported water" means any water originating outside the county which, in the absence of actions by the importing party, would not have been available or placed to beneficial use in the county.

N. "In lieu recharge" means the intentional delivery and use of surface water as a substitute for pumping groundwater.

O. "Indirect transfer" of groundwater means the extraction of groundwater to replace a surface water supply that has been, is being, or will be transferred for use outside of Fresno County.

P. "Local water agency" means any local public agency, mutual water company, or nonprofit tax-exempt incorporated association within, or partially within, Fresno County that has authority to undertake water-related activities.

Q. "Long term" means a time period of more than two years.

R. "Long term transfer" means a change in the place of use of water from within the county to lands outside of the county pursuant to a contract or a series of interrelated or interdependent contracts that requires a cumulative commitment in excess of two years.

S. "Overdraft" means the withdrawal of water from an aquifer in excess of the amount of water that recharges the basin over a period of years during which water supply conditions approximate average, and which, if continued over time, could eventually cause the underground supply to be exhausted, cause subsidence, cause the water table to drop below economically feasible pumping lifts, cause a detrimental change in water quality, or produce other adverse environmental impacts.

T. "Recharge" means flows to groundwater store from precipitation, irrigation, infiltration from streams, spreading basins and other sources of water.

U. "Short-term water transfer" means changing the place of water use from within the county to lands outside the county for a period of two years or less.

V. "Subsidence" means lowering or sinking of the land suface as a result of the extraction of groundwater.

W. "Transfer" means changing the place of groundwater use from within the county to lands outside the county, either by direct transfers or indirect transfer as specifically defined in subdivision O above.

X. "Water exchange" means the contractual transfer for use outside of the county of water, either groundwater or surface water to be temporarily replaced with groundwater, coupled with measures that ensure the replacement within the county of the transferred water.

Y. "Water table" means the surface or level where groundwater is encountered in an unconfined aquifer.

(Ord. 00-013)

It is unlawful to extract groundwater underlying lands in Fresno County, for transfer directly or indirectly, outside the county, unless exempted by the ordinance codified in this chapter, without first obtaining a permit as provided herein.

(Ord. 00-013)

Applications for permits shall be filed with the director of the department of planning and resource management. The applications shall be reviewed by the director or designated appointee.

(Ord. 00-013)

Permit requirements of this chapter shall not apply to the following types of groundwater-related activities:

A. The historical movement of water within a single local water agency's boundaries or service areas, or private property boundaries within and contiguous to Fresno County, for water management purposes and to benefit such lands;

B. Water exchanges;

C. Short-term water transfers;

D. Groundwater banking programs undertaken by local water agencies in which the banked water originates within a watershed that lies wholly or partially within Fresno County, or is carry over water, where later extraction and transfer of the banked water does not exceed the initially banked amount of water less reasonably anticipated losses. The county may require local water agencies claiming to be engaged in exempted water banking activities to provide periodic written reports, including supporting data, to confirm their exemption;

E. Groundwater extraction and transfer by a local water agency that has executed a memorandum of understanding or other agreement with the county that references this subsection and that allows the county to make the same six findings stated in Section 14.03 .080(A), of no significant detrimental impacts on the groundwater resources of Fresno County; and

F. Direct or indirect transfer of groundwater as the result of an emergency as defined in Section 14.03.020(H).

(Ord. 00-013)

An application for a permit shall be filed with the director and shall contain all information required by the department. The applicant shall provide within the timeframe required by law, where applicable, at applicant's cost, such appropriate environment documentation as may be required by the California Environmental Quality Act (CEQA, Public Resources Code Section 21000 et seq.) and Fresno County guidelines. The applicant shall pay all county costs related to the processing of the permit application, as reasonably determined by the county pursuant to the department of planning and resource management's routine permit fee assessment process. If the applicant is a local water agency subject to CEQA, the county shall coordinate its CEQA activities relative to the application with those of the applicant so as to minimize CEQA-related costs and duplication of efforts, subject to the county's CEQA obligations.

(Ord. 00-013)

A. Within fifteen calendar days of filing of the permit application and the deposit of required fees, and determination by the director that the application is complete, the director shall post a notice on the board of supervisors public bulletin board that an application has been filed. The director shall send a copy of the notice and the application to: (1) all owners of real propel as shown on the latest equalized assessment roll within one mile of the location of the proposed extraction; (2) all local water agencies and other water agencies which own or include lands overlying or immediately adjacent to the location of the proposed extraction; and (3) to any party who has made written request to the director for such notice within the last twelve calendar months. Such notice shall provide recipients the opportunity to submit written comments on the application within fifteen calendar days of mailing of the notice.

B. As determined by the judgment of the director, the director shall review the application with potentially affected county departments, with the staff of applicable state and federal agencies, with local water agencies, and with any potentially affected party. In reviewing the application the director shall consider any relevant groundwater management plan which has been adopted pursuant to the groundwater management act or any other relevant information provided by the applicant.

C. Any person or agency may provide written comments relevant to the long-term extraction and transfer of groundwater. Written comments shall be submitted to the director within fifteen calendar days of the date of mailing the notice of filing of the permit application to the address specified in the notice.

D. Upon completion of the environment review and permit application review process, the director shall determine whether the application meets the requirements of this chapter, and if it does, the director shall approve the application.

E. Notice of the director's decision shall be mailed within fifteen calendar days of firm action to the person or entity who has applied for the permit, and all other persons or entities referred to in subsection A of this section.

(Ord. 00-013)

A. The permit shall be approved only if the director finds that the proposed long-term groundwater extraction and transfer will not have significant detrimental impacts on the groundwater resources of Fresno County by determining that:

1. The long-term extraction and transfer will not cause or increase an overdraft of the groundwater underlying the county;

2. The long-term extraction and transfer will not adversely affect the long-term storage or transmission of groundwater within any aquifer(s) underlying Fresno County;

3. The long-term extraction and transfer will not injure the reasonable and beneficial uses of groundwater by other overlying groundwater users within Fresno County;

4. The long-term extraction and transfer will not result in, expand, or significantly exacerbate groundwater degradation;

5. The long-term extraction and transfer will not result in injury to a water replenishment, storage, restoration or conveyance project; and

6. The long-term extraction and transfer will not seasonably affect the overall economy or environment of the county.

B. The basis for any denial shall be reflected in the director's official record of proceedings.

(Ord. 00-013)

If the permit is approved, the director shall impose the following conditions of permit issuance on the permittee, if the permittee has not already so provided, to prohibit overdraft or other adverse conditions:

A. Adopt a groundwater management plan where applicable, pursuant to the Groundwater Management Act that is consistent with the county's groundwater management plan;

B. Institute, where applicable, a groundwater monitoring and mitigation program associated with permittee's extraction of water that is consistent with the county's groundwater management plan.

C. If requested by the county, the permittee shall share with the county groundwater monitoring information and data, and, where practicable, the parties shall coordinate their groundwater management efforts to effectively monitor groundwater resources throughout the county;

D. Comply with additional conditions for permit issuance as the director finds necessary to promote or maintain the health, safety and welfare of Fresno County residents.

(Ord. 00-013)

Reapplication for a permit that has been denied by the director will not be accepted as complete unless it includes materially different terms, or is accompanied by information that demonstrates a significant change in circumstances, from those which caused denial of the previous permit application.

(Ord. 00-013)

A. The applicant or any property owner or local water agency, as described in Section 14.03.070(A)(1) and (2), who can demonstrate that its water supply or property interest could be directly and adversely affected by the director's decision, may appeal a decision of the director by filing a written request with the clerk of the board within fifteen calendar days of receipt of the decision of the director. Any such appeal shall specifically set forth the procedural and substantive reasons for the appeal. The clerk shall set a board hearing date within ten calendar days of receipt of a complete request for appeal which shall be heard within not less than ten calendar nor more than twenty calendar days of that notice. Written notice of the appeal shall be given to the director, the appellant, and all other persons or entities referred to in Section 14.03.070(A).

B. The board shall hear the appeal de novo (i.e., anew, over again), except where the appeal is confined to a condition imposed by the director in which event the hearing and the decision of the board shall relate only to such condition. The appeal before the board shall not be conducted with formal rules of evidence, but rather shall be conducted under such rules as set by the board for the expeditious presentation of the matter and relevant information by the appellant and by other parties interested in the director's decision. At its discretion, the board may impose conditions for approval as it finds necessary to protect the interests of the county and its citizens. The decision of the board shall be final.

C. In any appeal taken under this section, the appellant shall have the burden of proof before the board.

(Ord. 00-013)

Approved permits shall be valid for a term, as determined by the director, not to exceed ten years from the date of issuance of the permit. Long-term permits of a duration beyond ten years may be approved by the director upon an applicant's proof that the nature of the applicant's project or financing justifies such an extended duration. As a condition of approval of a long-term permit the applicant shall be required to provide the county with periodic reports (as specified in the permit) which include, but are not limited to, groundwater monitoring data and a detailed explanation of any proposed material changes in the project which may impact county groundwater supplies.

(Ord. 00-013)

The permit granted pursuant to this chapter shall be subject to periodic staff review, performed in consultation with the permittee. In the event the department of planning and resource management determines that a material violation of the conditions of the permit has occurred, the permittee shall immediately bring itself into compliance. A determination of violation shall be in writing and include specific findings in support of the decision. A determination of violation may be appealed to the board of supervisors by the permittee using the appeal process as described in Section 14.03.110.

(Ord. 00-013)

After providing written notice to the permittee, the director, or designee, with good cause may at any reasonable time enter any and all places, property, enclosures and structures, for the purpose of making examinations and investigations to determine whether any provision of this chapter or an approved permit is being violated.

(Ord. 00-013)

The permit process of this chapter is not to be construed as a grant of any right or entitlement, but rather, as evidence that the health, welfare and safety of the residents of the county will not be harmed by the extraction and direct or indirect transfer of groundwater outside of the county. The permit does not exempt, supersede or replace any other provisions of federal or state laws or relations.

(Ord. 00-013)

Upon receiving knowledge of an alleged violation of this chapter, the county will provide written notice of the alleged violation to the violating party. The notice shall detail the alleged violation and require the violating party to cease and desist immediately upon receipt of such notice from the alleged violating activities or within five working days prove to the county, by meeting with the director or designated appointee, that the alleged violating activities, in fact, do not violate this chapter, or that there are mitigating reasons surrounding the alleged violating activities. No civil fines, as set forth in Section 14.03.170, shall accrue during this notice process. The notice shall also include details of the potential penalties for violations of this chapter.

(Ord. 00-013)

If, within five working days after receipt of a notice issued in accordance with Section 14.03.160, the violating party has not complied with Section 14.03.160, the county may elect to proceed with any or all of the following remedies for violation of this chapter:

A. A civil action against the violator, including injunctive relief;

B. A civil action against the violator, including a fine up to five thousand dollars for each separate violation. A person or entity shall be deemed to have committed a separate violation for each and every day or portion thereof during which any such violation is committed, continued or permitted as well as for each and every separate groundwater well within which any such violations are committed, continued or permitted.

(Ord. 00-013)

The provisions of this chapter shall be effective as to the unincorporated territory of the county thirty calendar days after passage of the ordinance codified in this chapter. However, implementation of the provisions of this chapter shall be effective when the amendment to the development services fee schedule shall become effective. The provisions of this chapter shall become effective in the incorporated territory of the municipalities within the county of Fresno upon adoption by each municipality of an ordinance which makes the provisions of this chapter applicable thereto or which independently establishes an ordinance incorporating compatible provisions.

(Ord. 00-013)

Ten years from the date that the ordinance codified in this chapter is enacted, and at such earlier time(s) as the board shall determine to be appropriate, the board shall review the effectiveness of this chapter in protecting the county's groundwater relative to the preservation of a natural resource, the environment, and the economy and relative to impacts on the operations of local water agencies and property owners.

(Ord. 00-013)