Inyo County Municipal Code Ch. 7.01 Groundwater Extraction

Note: Editor's Note: Following the approval of Inyo County Ordinance No. 394, in 1980, now set forth as Chapter 7.01 of the Inyo County Code, the City of Los Angeles challenged the ordinance in Inyo County Superior Court Case No. 12908. The Superior Court tentatively ruled that the ordinance was unconstitutional and preempted by state law. The current status of 7.01 is set forth in Section XXVIII of the Inyo County/Los Angeles Long Term Water Agreement entered as an order of the court in Inyo County Superior Court (Case No. 12908) which provides as follows:

A final order in Inyo County Superior Court Case No. 12908 on this Court's ruling on Inyo County's Groundwater Ordinance shall not be entered or filed. 110 Additionally, during the term of this Stipulation and Order, the County its agents, servants, officers, and employees, and all other persons acting in concert with the County, are enjoined from applying, implementing or enforcing in any manner whatsoever, the Inyo County Owens Valley Groundwater Management Ordinance enrolled as Chapter 7.01 of the Inyo County Code, and Inyo County Ordinance Number 395; provided however, that the Inyo County Water Commission, may remain in existence to carry out the provisions of this Stipulation and Order. Further, during the term of this Stipulation and Order, the County will not seek any appellate review of the ruling, decision or injunction of this Court in Inyo County Superior Court Case Number 12908.

The board of supervisors does find and declare as follows:

A. The groundwater basin of Owens Valley has historically supplied the people and land of Inyo County with spring flow water and a high water table, which has sustained vegetation and wildlife in an otherwise desert environment.

B. The groundwater basin of the Owens Valley forms a significant water resource of the State of California, which must be managed in trust for the benefit of the state's entire population and must be conserved so that it may be perpetually placed to the reasonable and beneficial use of all its potential users.

C. The groundwater basin of the Owens Valley must be managed and operated for the maximum long-range benefit of the environment, as well as for municipal and agricultural uses, by removing and mitigating all adverse environmental effects caused by groundwater extraction and surface water diversion by whatever feasible means are available.

D. In recent years the groundwater basin of the Owens Valley has not been managed in consonance with the findings declared in subsections A, B and C of this section, as a consequence of which unnecessary and excessive drawdown of the groundwater table has occurred. Together with other adverse environmental effects, producing detriment to the people, health and economy of the county, the lowering of the water table has directly led to a loss of vegetation and indirectly to a reduction in irrigated acreage. As a consequence of the recent environmental changes, the California Department of Water Resources in Bulletin 118-80 has identified the Owens Valley as an area of special concern.

E. Inyo County has a paramount right and duty to govern the management and extraction of resources within its jurisdiction in order to protect the health, welfare and safety of the citizens of Inyo County.

F. In order to protect its people, environment and economy, the county must adopt a systematic regulation of extractions from the groundwater basin of the Owens Valley; this regulation must consider environmental and economic factors in the area of origin and the area of use, coordinated use of surface and groundwater resources, and the implementation of water conservation and other feasible preferred alternatives to extraction.

G. To implement the systematic regulation of groundwater extractions, the county must undertake the preparation of a water management plan for both groundwater and the inherently integrated surface water resources of the Owens Valley.

(Ord. 394 § 1, 1980)

"Director"

means the director of the county water department, established by enactment of the ordinance codified in this chapter. The director will be appointed by the board of supervisors to serve at its pleasure and will report to the county administrative officer. The director is empowered to employ such staff as necessary and approved by the board of supervisors.

"Administration of the extraction permit application"

includes the processing and evaluation of all permit applications, inspection of the execution of permits that have been granted, the performance of technical studies necessary to effectuate the purposes of this chapter, the performance of professional services necessary to execute the purposes of this chapter, and the preparation of a water management plan.

"Water management plan"

refers to a document to be prepared by the county water department and approved by the county board of supervisors; the plan will address the extraction and allocation of the groundwater of the Owens Valley and the correlative distribution of that basin's surface water; the plan will form the basis for the approval, denial, and/or terms and conditions of each groundwater extraction permit.

"Water commission" or "commission"

refers to a board appointed by the board of supervisors pursuant to this chapter. The commission shall be composed of five members, all residents in the Owens Valley Groundwater Basin. Each member of the water commission will be appointed for a term of four years with the initial periods of appointment determined by lot to produce staggered terms.

"Person"

means any person, firm, corporation or governmental agency (except the United States government to the extent that federal law preempts this chapter).

"Groundwater"

means all water contained within the zone of saturation.

"Owens Valley Groundwater Basin"

means that area of the Owens Valley within the county; beginning at the intersection of the Mono County Line and the western boundary of the Inyo Range portion of the Inyo National Forest; thence generally southerly and easterly along the western boundary of the Inyo Range portion of the Inyo National Forest to the intersection of the southerly boundary of the Inyo Range portion of the Inyo National Forest and the eastern boundary of Range 36 East; thence southerly along the eastern boundary of Range 36 East to the southern boundary of Township 14 South; thence along a line bearing 135 degrees to the intersection of that line with the eastern extension of the southern boundary of Township 16 South; thence westerly along the southern boundary of Township 16 South and its extension to the intersection of that boundary with the eastern boundary of the Sierra Nevada Range portion of the Inyo National Forest; thence generally northerly along the eastern boundary of the Sierra Nevada Range portion of the Inyo National Forest to the intersection of that boundary with the Mono County Line; thence easterly along the Mono County Line to the point of beginning.

"Groundwater extraction"

means removal of groundwater by artificial means from the groundwater basin, or reduction by artificial means of natural recharge from surface water into the groundwater basin.

"Groundwater table"

means the level of the surface of saturation within the aquifer.

"Well"

means any artificial excavation constructed by any method for the purpose of extracting water from or injecting water into the underground, for making tests or observations of underground conditions, or any other wells whose regulation is necessary to fulfill the purpose of this chapter. "Wells" shall not include:

Oil and gas wells, except those wells converted to use as water wells; or

Wells used for the purpose of:

a.

Dewatering excavation during construction, and

b.

Stabilizing hillside or earth embankments;

Test or exploratory holes for soil testing, mineral exploration or seismic exploration where such holes are less than twenty-five feet deep; and

Holes or excavation for soil percolation tests where such holes are less than ten feet deep.

(Ord. 394 § 1, 1980)

This chapter shall authorize the county to undertake the preparation of a water management plan for the groundwater and related surface water resources of the Owens Valley and to develop groundwater extraction standards. Both surface water and groundwater will be included in the water management plan to the extent that they are interchangeable in terms of their use. The water management plan will identify and quantify the water resources of the Owens Valley Groundwater Basin and will specify water use programs which are consistent with the health and welfare of the county's citizens and, to the extent feasible, with the county's land use plans and the needs of the parties holding water rights. The water management plan and all permits and exemptions granted pursuant to this chapter, to the extent practically feasible, shall be consistent with and shall implement the following groundwater extraction standards:

A. The paramount protection of the county's citizens, environment and economy;

B. Correction or mitigation of observed significant environmental damage;

C. Maintenance of the groundwater table at a depth that will support natural vegetation and wildlife, minimize air pollution and enable natural springs to flow;

D. Maintenance of the groundwater table at a depth that will not cause excessive drilling or pumping costs for other groundwater users;

E. Preservation of groundwater quality;

F. Imposition, whenever feasible, of measures to avoid or mitigate anticipated adverse environmental effects, including, but not limited to, the use of surface water in the Owens Valley Groundwater Basin;

G. Satisfaction of the needs of the extractor, taking into consideration the extractor's alternative sources of supply and its conservation policies and practices;

H. Satisfaction to the extent feasible of the needs of the agricultural sector of the Owens Valley through the distribution of water for local irrigation and to increase the acreage devoted to agriculture other than open range;

I. Reduction in the extent to which ground levels sink as a consequence of groundwater extraction;

J. Consideration of the needs and practices of all water users in the state, and the status of the state's entire water resources;

K. Consideration of guidance received from governmental agencies other than the applicant;

L. Results and adequacy of the extractor's environmental monitoring program.

(Ord. 394 § 1, 1980)

The director and his staff and/or consultants will draft the water management plan; the commission will review the document and hold public workshops, and stipulate modifications as necessary. The plan will be approved by the board of supervisors only after the commission has completed its review and the board has held public hearings. No more than nine months will elapse between the authorization of this chapter and approval of the plan by the board of supervisors, unless the board of supervisors determines that there is good cause for an extension of the time necessary for preparing the water management plan. The plan can be modified as needed, but only as authorized by the board of supervisors after the appropriate public hearings. Both the water commission and the board of supervisors may recommend modifications.

(Ord. 394 § 1, 1980)

No person, firm, corporation or governmental agency (except an agency of the United States government to the extent federal law preempts this chapter), shall within the Owens Valley Groundwater Basin extract water from that basin by any artificial means without first obtaining a written permit as provided for in this chapter.

(Ord. 394 § 1, 1980)

An extractor of groundwater shall file its application for a permit to the director of the county water department and in that application shall include the following data for the pumping year ending on March 31st of the year following the year of application:

A. Location, maximum extraction rate, depth and all other information required in the Water Well Drillers Report (Section 13750, California Water Code) of each well including observation wells owned or controlled by the extractor;

B. Location, planned monthly extraction rate and depth of each well proposed for operations;

C. Delineation of the time periods within the Owens Valley Groundwater Basin in which each well is proposed for operation;

D. Description of the adverse environmental effects of the extraction, by individual well, groups of wells (if applicable) and by the extractor's entire operation;

E. Proposed or feasible use or change in related operations of surface water, if any, including uses designed to mitigate or eliminate the adverse environmental effects described in subsection D of this section.

F. Intended beneficial use of the extracted groundwater and related surface supplies, by individual wells, groups of wells (if applicable) and by the entirety of the extractor's operation;

G. A description by quantification and location of each end use of the needs of the extractor which the extraction is designed to meet;

H. A description of alternatives available to the extractor to meet the needs described in subsection G of this section, including specifications and quantification of the alternative of water conservation.

(Ord. 394 § 1, 1980)

In the time period between the enactment of the ordinance codified in this chapter and the final approval of the water management plan, the county will implement an interim permit process for groundwater pumping. All persons extracting groundwater must submit the necessary application and data as required under Section 7.01.041 within thirty days of notification by the department. Notification shall be provided by publication in a newspaper of general circulation in the county, and posting at the courthouse in Independence and the county services building in Bishop. No more than three weeks after receipt of the applications, the director will recommend approval, denial or approval with stipulated conditions of the permit to the commission. No sooner than three weeks after the receipt of the applications, the commission will hold public hearings on those applications to extract groundwater which have been timely received. Within two weeks after the close of the hearings, the commission shall issue its decision conditionally granting or conditionally denying each application. The permits will be conditional pending completion of the water management plan. In reaching its decision the commission shall be bound by the standards set forth in Section 7.01.030. There will be no appeal from the interim decisions of the commission.

(Ord. 394 § 1, 1980)

Permit application shall be made, reviewed and adjudicated according to the following process:

A. Not later than one month after the adoption of the water management plan, and not later than February 1st of each calendar year thereafter, the applicant shall submit to the water department five copies of its application for extraction as described above. The application form shall be developed by the director and shall be made available to all potential applicants. The director, for good cause, may increase the number of copies required.

B. Within three working days after the time for filing applications has passed, the director shall forward a copy of each application, together with a request for guidance or comments, to the affected county departments including but not limited to, the district attorney, the county counsel, the planning department, the public works department, the county health officer and the agricultural commissioner of the county, and to the Department of Water Resources, State Water Resources Control Board, South Lahontan Regional Water Quality Control Board, Great Basin Air Pollution Control District, U.S. Forest Service, Bureau of Land Management, Inyo-Mono Association of Government Entities and any other governmental agency requesting such opportunity.

C. Upon receipt of the permit application, the director shall review the application with the affected county departments including those listed in subsection B of this section.

D. Not later than six weeks after the date on which applications are due, the director shall prepare a recommendation to the commission for approval, denial and/or the enforcement of specific terms and conditions of each groundwater pumping permit application. The director may recommend that the application be placed on a consent calendar. The director's recommendation shall be consistent with the groundwater management plan and shall be based upon a review of hydrologic, environmental and economic consequences of the proposed groundwater pumping.

E. No sooner than eight weeks after the date on which applications are due, the county water commission will hold public hearings on all applications to extract groundwater which have been timely received. As soon as the time for filing applications has passed, and in no event less than seven days prior to this hearing, the applicants shall be notified of public hearings on groundwater extraction applications and notices of these hearings and a description of all applications received shall be published in at least one newspaper of general circulation in the county, and posted in the courthouse in Independence and the county services building in Bishop.

F. At the public hearings conducted by the county water commission, the director shall present his recommendations. The applicant, any affected federal, state or local agency, any person adversely affected by the application and any citizens of the county may appear to testify, in writing or orally or both, in favor of or against the application. The hearings will remain open for a maximum of two weeks.

G. If an application appears on the consent calendar recommended by the director and no member of the commission objects, that application, without further proceedings described in subsections F through M of this section, shall be deemed approved. If any member of the commission objects to an item on the consent calendar, it shall be removed from that calendar and subject to the hearings and determination process of this section.

H. Within three weeks after the close of the hearings described above, the commission shall issue its decision granting, denying or conditionally granting each application. Three affirmative votes shall be required to grant or conditionally grant an application. In rendering its decision, the commission shall be bound by the standards set forth in Section 7.01.030 and the water management plan. If a permit is granted, it shall designate for each well the amounts of groundwater extraction authorized in the term of the permit.

I. Within fourteen days after the commission renders its decision, the applicant or any person adversely affected by the application, upon payment of a reasonable fee set by resolution of the board of supervisors, may appeal the commission's decision to the board of supervisors. The appeal shall be in writing and shall specify in detail the grounds on which the appeal is based.

J. No later than fourteen days after the filing of the last of any appeals permitted by this section, the board of supervisors shall conduct a public hearing of any applications so appealed; provided, however, that notice of the time and place of such hearing shall be provided at least seven days in advance to the applicant and any person requesting such notice and by publication in a newspaper of general circulation in the county, and posting at the courthouse in Independence and the county services building in Bishop. Prior to commencement of the hearing, the board may dismiss any appeal found to be lacking in substance.

K. The record of the commission hearing shall be incorporated as the record of the board hearing, although the board may call witnesses if it so desires, and shall receive other testimony or records presented to it. In determining each application, the board of supervisors shall be bound by the same standards that apply to the commission as specified in subsection H of this section.

L. The filing of an appeal pursuant to this section shall not stay the decision of the commission being appealed, unless the board of supervisors, for good cause stated in writing, orders such a stay pending its own determination of the application.

M. The board shall hear the appeal(s) for not more than two weeks and render a final decision not more than two weeks after the conclusion of its public hearing. Three affirmative votes shall be required to modify, reverse or vacate the decision of the commission.

(Ord. 394 § 1, 1980)

Each permit for extraction issued shall be effective for a period not to exceed one year, commencing no earlier than April 1st of each year. All permits shall expire on March 31st of the subsequent year, except those expressly exempted by the commission.

(Ord. 394 § 1, 1980)

By application filed on May 1st, August 1st, or November 1st, a groundwater extractor, or the director on his or her own motion, may seek modification of a permit in accordance with the procedure outlined in Section 7.01.042. A permit may be modified to increase or decrease the amounts, location, times of extraction or use of groundwater.

(Ord. 394 § 1, 1980)

Each groundwater extractor to whom a permit for extraction has been granted, unless expressly exempted by the commission, shall, for the terms of that permit, render monthly reports as follows:

A. By the fifteenth of each month of the permit year, a report listing each well operated, the quantity of water extracted by each well during the preceding month, projected amounts of water to be extracted from each well and from all the extractor's wells inclusive for each month of the remainder of the permit year, and the use and location of use of the extracted groundwater from each well and the related surface water.

(Ord. 394 § 1, 1980)

Unless expressly exempted by the water commission:

A. Each groundwater extractor shall provide by the fifteenth of each month a record of water level measurements taken in the preceding month in all operating and observation wells under the control of the extractor. All measurements shall be made in a manner approved by the director.

B. Each groundwater extractor shall allow the director to analyze water quality samples taken from those wells and at those periods specified by the director. All samples shall be taken in a manner approved by the director.

C. Each groundwater extractor shall provide all other such reports as reasonably required by the director.

(Ord. 394 § 1, 1980)

The board of supervisors by resolution shall adopt fees for administration of the extraction permit system, which fees shall be assessed annually against each person, firm, corporation or governmental agency (except an agency of the United States government to the extent that federal law preempts this chapter) which owns or controls a well within the Owens Valley Groundwater Basin. The assessments shall be based upon the number of acre-feet of pumped groundwater applied for in the application, and shall only be used for administration of the water management plan and the groundwater extraction permit system, including maintenance of a reasonable reserve. Fees shall be in two classes: the first class for applications to extract water for local municipal and domestic use, in-valley recreational and wildlife enhancement, and local irrigation, provided that no surface diversions are affected; and the second class for applications to extract water for all other uses. Fees of the first class shall be set lower than fees of the second class, to compensate for the lower costs of evaluating and administering applications of the first fee class.

(Ord. 394 § 1, 1980)

Each of the following extractors is hereby declared to be exempt from the reporting provisions of Sections 7.01.050 and 7.01.051, except the initial registration of wells, well location, intended amount of annual extraction, intended use and location of use of the groundwater:

A. Any extractor who in any year commencing April 1st extracts less than five acre-feet and devotes that extraction to its own reasonable and beneficial use in the Owens Valley Groundwater Basin and does not sell or exchange water to other users;

B. Any extractor who does not sell or exchange water and who extracts for irrigation for agriculture on the surface of the Owens Valley Groundwater Basin an area of less than twenty acres, not to exceed a total of one hundred acre-feet of groundwater per year.

(Ord. 394 § 1, 1980)

The director may recommend further exemptions but only the commission may grant further exemptions. However, the director also may recommend the removal of any exemption authorized by this chapter if he or she finds in writing that the extraction in question or cumulative effect of exempted extractions produced a significant negative effect on the environment. Only the commission may remove an exemption and only then after a duly noticed public hearing. Any person denied an exemption pursuant to this section may appeal the decision to the board of supervisors which by a vote of three or more members may grant the appeal and declare the exemption.

(Ord. 394 § 1, 1980)

The director or his or her representative, with good cause, may at any and all reasonable times enter any and all places, property, enclosures and structures, for the purposes of making examinations and investigations to determine whether any provision of this chapter is being violated. Upon twenty-four hours' notice, all extractors shall make available to the director of the county water department or his or her representative, at the extractor's principal place of business or other convenient location within the Owens Valley, the original of all logs, reports, data, analysis of data or other records maintained on their groundwater extractions.

(Ord. 394 § 1, 1980)

In the event that an extraction is taking place contrary to the terms of this chapter, the director may order the extraction stopped by posting a stop order at the site of the unauthorized extraction. No further extraction shall take place after the posting of the stop order until such time as the stop order is removed by the director.

(Ord. 394 § 1, 1980)

Any extractor who violates any provision of this chapter, whether or not a stop order has been issued, shall be subject to a civil penalty not to exceed five hundred dollars per acre-foot of water unlawfully extracted.

(Ord. 394 § 1, 1980)

Any person who violates any provision of this chapter with intent to do so, whether or not a stop order has been issued, is guilty of a misdemeanor, punishable by a fine not exceeding five hundred dollars per violation, or by imprisonment not exceeding six months, or by both such fine and imprisonment; and any extractor is guilty of a separate offense for each and every day or portion thereof during which any such violation is committed, continued or permitted, and for each and every separate well with which any such violation is committed, continued or permitted; and for each such subject violation of day or well, shall be subject to the same punishment as for the original offense.

(Ord. 394 § 1, 1980)

If a court of competent jurisdiction holds this chapter or any of its provisions invalid, or application of this chapter or any of its provisions invalid as to any person, the remaining valid portions of this chapter and its valid application to other persons shall continue in full force and effect, to the end that portions or applications held invalid shall be severable; but if this chapter or any provision of this chapter is held inapplicable to any person that has extracted more than one-third of the groundwater extracted from the Owens Valley Groundwater Basin in the ten years preceding the enactment of this chapter, then, for the duration of that holding, that portion of this chapter held inapplicable to such an extractor shall become inapplicable to all extractors, to the end that any portion of this chapter not applicable to at least one-third of the groundwater extraction shall be inapplicable to all. In the event that Section 7.01.060 is declared invalid because it establishes fees of two classes, that section shall be then deemed reenacted to provide for all fees to be of a single class.

(Ord. 394 § 1, 1980)

The board of supervisors may amend this chapter or any of its provisions.

(Ord. 394 § 1, 1980)