Modoc County Municipal Code Ch. 20.04 Groundwater Extraction for Use Outside the Basin from Which It Was…

The board finds and declares:

A. The groundwater basins underlying Modoc County-including the Klamath Basin (Tulelake Subbasin), the Big Valley Basin, the Round Valley Basin, the Alturas Basin, the Goose Lake Valley Basin, and the Surprise Valley Basin-have historically provided the people and lands of Modoc County with water for agricultural, domestic, municipal and other purposes that are likely to increase in importance in the future.

B. The board recognizes that the principle of correlative rights developed in the case law of California, providing that water may be appropriated from a groundwater basin only if the groundwater supply is surplus and exceeds the reasonable and beneficial needs of overlying users.

C. Modoc County has a paramount right and duty to govern the management and extraction of groundwater resources within its jurisdiction in order to protect the health, welfare, and safety of the residents of the county. It is essential for these purposes, and for the public benefit of the state, that groundwater resource of Modoc County be protected from harm resulting from the excessive extraction of groundwater for use outside the basin from which it was extracted, until such time as needed additional surface water supplies are obtained for use on lands of the county, or overdrafting is alleviated, to the satisfaction of the board. Conserving the water resources in the groundwater basins underlying Modoc County, to avoid overdrafts and maximize the long-term beneficial use of groundwater resources, best serves the health, safety and welfare of residents of Modoc County.

D. Much of the farm production of the county depends upon the use of groundwater to produce crops, which significantly contribute to the gross value of all agricultural crops and agricultural production in the county estimated at several hundred million for 2000.

E. The groundwater of Modoc County also provides water to several communities in the county, particularly to the communities of Fort Bidwell, Lake City, Cedarville, Eagleville, Tulelake, Newell, Canby, Adin, Likely, New Pine Creek, Davis Creek, Lookout, Day, and the City of Alturas.

F. The groundwater of Modoc County will be a vital part of future water use in the county. The present population of the county is nearly nine thousand three hundred and is conservatively projected to increase by the year 2020 to fifteen thousand. Groundwater resources will serve as an important source of water supply to this increased population. As the water needs per acre of agriculture and urban areas are approximately equivalent for this region, and virtually all of the area to become organized is in irrigated agriculture, the consumptive demands of the groundwater lying beneath the county will remain essentially the same.

G. Surface water supplies obtained in the future will be used conjunctively with groundwater. That is, surface water will be diverted in times of relatively high flows and groundwater will be used during dry periods when surface water is not readily available. In this regard, the greatest 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. It is vital that the groundwater be preserved so that its capacity will be available for future conjunctive use.

H. The board is aware of adverse consequences suffered in neighboring counties that have engaged in excessive extraction of groundwater for use outside the basin from which it was extracted. These consequences include land subsidence that has resulted in aggravated flooding, damage to the local environment and increased cost of groundwater production for local use.

I. The board finds that with continued and sustained growth, additional acre feet of supplemental surface water per year will be needed to achieve a balanced use of both surface and groundwater for the county. The county and other public agencies in the county have worked with federal, state, and other agencies to attempt to secure this needed supplemental surface water in order to relieve or alleviate the burden placed on the groundwater lying beneath the surface of the county.

J. The county seeks to foster prudent water management practices to avoid significant adverse overdraft-related environmental, social, and economic impacts. It is therefore essential for the protection of the county's important groundwater resources that the county require a permit to extract groundwater for use outside the basin from which it was extracted.

K. In adopting this chapter, the county in no way intends to limit either the county or other public entities to manage the groundwater in accordance with the Groundwater Management Act and any other applicable laws.

L. The groundwater basins underlying Modoc County form significant water resources that must be managed in trust, and must be conserved so that they may be placed to the reasonable and beneficial use of all potential users, while avoiding the waste and unreasonable use of those resources.

M. Modoc County is the only agency overlying all of the groundwater basins within the county.

(Ord. 322-A (part), 2001: Ord. 322 (part), 2000)

"Groundwater Management Act" means Water Code Sections 10750 et. seq.

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

"Board" means the board of supervisors of Modoc County.

"County" means the county of Modoc.

"Director" means the planning director or his designee.

"District" means a district wholly or in part located within the boundaries of the county, which is a purveyor of waters for agricultural, domestic, or municipal use.

"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 which flows in known and definite channels.

"Groundwater basin" means any basin identified in the current edition of the California Department of Water Resources' Bulletin No. 118, including any amendments, but does not include a basin in which the average well yield, excluding any domestic wells supplying water to a single unit dwelling, is less than 100 gallons per minute. Groundwater basins underlying Modoc County include the Big Valley Basin, the Round Valley Basin, the Alturas Basin, the Goose Lake Valley Basin, and the Surprise Valley Basin.

"Hydrology" means the origin, distribution, and circulation of water through precipitation, stream flow, infiltration, groundwater storage, and evaporation.

"Overdraft" means the condition of a groundwater supply in which the amount of water withdrawn by pumping exceeds the amount of water replenishing the supply over a period of time and also the point at which extractions from the supply exceed its safe yield plus any temporary surplus.

"Percolation" means the movement of water through the soil to the groundwater table.

"Permeability" means the capability of the soil or another geologic formation to transmit water.

"Piezometric surface" means the surface to which the water in a confined aquifer will rise.

"Porosity" means voids or open spaces in alluvium and rocks that can be filled with water.

"Recharge" means flow to groundwater storage from precipitation, irrigation, infiltration from streams, spreading basins and other sources of water.

"Safe yield" means the maximum quantity of water, which can be withdrawn annually from a groundwater supply under a given set of conditions without causing overdraft or adverse water quality conditions. Specifically safe yields is the amount of water which can be withdrawn without:

1. Exceeding in any calendar year the long-term mean annual water supply of the basin (considering all sources of recharge and withdrawal);

2. Lowering water levels so as to make further drilling of water wells uneconomical;

3. Causing water pumped from the basin to deteriorate below drinking water standards;

4. Violating water rights or restrictions in pumpage in the groundwater basin as established by court adjudication or applications of state or federal law.

5. Producing other environmental damage.

"Specific capacity" means the volume of water pumped from a well in gallons per minute per foot of drawdown.

"Spreading water" means discharging native or imported water to a permeable area for the purpose of allowing it to percolate to the zone of saturation. Spreading, artificial recharge and replenishment all refer to operations used to place water in a groundwater table.

"Transmissivity" means the rate of flow of water through an aquifer.

"Usable storage capacity" means the quantity of groundwater of acceptable quality that can be economically withdrawn from storage.

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

"Water year" means the year beginning March 1st and ending the last day of the following February.

"Zone of saturation" means the area below the water table in which the soil is completely saturated with groundwater.

(Ord. 322-A (part), 2001: Ord. 322 (part), 2000)

A. Permit Required for Groundwater Extraction for Use Outside the Basin from which it Was Extracted. It shall be unlawful for any person, firm, corporation, or governmental agency (except an agency of the United States, to the extent, if any, that federal law preempts this ordinance) to extract groundwater by any artificial means from any of the groundwater basins underlying the county, directly or indirectly, for use outside the basin from which it was extracted, without first obtaining a written permit as provided in this chapter. This chapter shall not apply for the extraction of groundwater (1) to prevent the flood of lands; or (2) to prevent the saturation of the root zone of farm land, or (3) for use within the district boundaries of a district in existence on the effective date of this chapter, which is in part located within county and in part in another county (or counties) where such extraction quantities and use are consistent with historical practices of the district, or (4) for extractions to boost heads for portions of district facilities, consistent with historical practices of the district. The applicant shall have the burden of supporting an assertion of a historical practice with competent evidence.

B. Application for a Permit. An application for a permit shall be filed with the director on forms provided by the district and shall contain all information required by the director. Concurrently, a request for environmental review shall be filed as required by applicable county guidelines. The application for a permit and request for environmental review shall be accompanied by the fees which shall be established from time to time by the board. The information the director requires of an applicant must include, but is not limited to, the following:

1. Location, maximum extraction rate, depth and all other information required in the Water Well Drillers' Report (California Water Code, section 13751) of each well, including observation wells owned by the extractor.

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

3. Delineation of the time periods within the applicable groundwater basin in which each well is proposed for operation.

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

5. Description of any proposed or feasible uses designed to mitigate any adverse environmental effects of the extraction.

6. Intended beneficial uses of the extracted groundwater and related surface supplies, by individual well, groups of wells (if applicable), and by the extractor's entire operation.

7. Description by quantification and location of each end use of the needs of the extractor which the extraction is designed to meet.

8. Description of alternatives available to the extractor to meet the needs for which the extraction is proposed, including any available types and amounts of water conservation.

C. Procedures for Processing.

1. Within ten calendar days of filing of the permit application, the director shall post a notice on the departmental public bulletin board that an application has been filed, shall send a copy of the notice to the districts and cities within the county which have lands overlying or adjacent to the location of the extraction and to any interested party who has made a written request to the director for such notice within the last twelve calendar months. The director shall review the application to determine whether it is complete for purposes of proceeding under the county guidelines adopted pursuant to the California Environmental Quality Act requirements.

2. The director may review the matter of the application with the affected county departments, with the staff of the state Department of Water Resources, with the staff of the regional water quality board, and with any interested local water agency within whose boundary the proposed activity will occur. If the applicant is applying to pump groundwater from a district, city, or the unincorporated territory in which a groundwater management plan has been adopted pursuant to the Groundwater Management Act, the director shall consider a groundwater management plan or any other relevant information provided by the district, city, or other local agency. Any interested person or agency may provide comments relevant to the matter of the extraction of groundwater. Comments shall be submitted within thirty days of the date of mailing the notice of filing the permit application.

3. The environmental review shall be undertaken in accordance with the California Environmental Act and county guidelines. All costs of the environmental review shall be the responsibility of applicant.

4. Upon completion of the environmental review, the director shall forward the application together with any written comments received, environmental documents, and the director's recommendations, to the commission. Upon receipt of the director's recommendation, the commission shall immediately set a public review on the issuance or the permit which shall be noticed pursuant to Government Code Section 6061 and may not be held within fifteen days of the time that the commission receives the recommendation from the director.

D. Public Review Concerning Issuance of Permit.

1. Rules of evidence. Formal rules of evidence shall not apply to the public review of the application, but the commission may establish such rules as will enable the expeditious presentation of the matter and relevant information thereto. At the commission's public review, the applicant shall be entitled to present any oral or documentary evidence relevant to the application, and the applicant shall have the burden of proof of establishing the facts necessary for the commission to make the required findings. The commission may request any additional information it deems necessary for its decision, the cost of which, if any, shall be borne by the applicant. The commission shall also hear relevant evidence presented by other interested persons and entities, the director, other county staff, and the public.

2. Elements of permit review. The commission shall consider all effects that the granting of the permit application would have on the affected aquifer including, but not limited to, the hydraulic gradient, hydrology, percolation, permeability, piezometric surface, porosity, recharge, safe yield, specific capacity, spreading water, transmissivity, usable storage capacity, water table and zone of saturation.

E. Granting of Permit.

1. The permit may only be granted if there is a majority of the total membership of the commission present at the public review and a majority of the total membership of the commission finds and determines that the extraction will not cause or increase an overdraft of the groundwater underlying the county; will not adversely affect the long term ability for storage or transmission of groundwaters within the aquifer; will not exceed the safe yield of the groundwater underlying the county and will not otherwise operate to the injury of the reasonable and beneficial uses of overlying groundwater users; is otherwise in compliance with Water Code Section 1220; will not result in an injury to a water replenishment, storage restoration project operating in accordance with statutory authorization; and will not produce other environmental damage.

2. If the permit is to be granted, the commission shall impose appropriate conditions upon the permit so as to prohibit overdraft or other adverse conditions, and may impose other conditions that it deems necessary for the health, safety and welfare of the people of the county in accordance with this chapter.

3. Permits for extraction of groundwater, other than where extraction is a part of a groundwater replenishment program, shall limit groundwater extraction to no more than (commission to determine) acre feet per acre per year. Other conditions in the permit may include, but are not limited to, requirements for observation of wells, monitoring of wells, or both. Notwithstanding the foregoing, the commission may issue the permit if the commission finds that the applicant has provided for mitigation which will offset any adverse effect that is determined to exist.

4. The decision of the commission may be appealed to the board of supervisors.

F. Reapplication After Commission Denial. Reapplication for a permit, which has been denied by the commission, may not be filed with the director until the following water year and must be accompanied with information that demonstrates a significant change in conditions in the groundwater, change in the proposed extraction, or both.

G. Appeal of Granting of a Permit.

1. In any appeal taken under this section, the burden of proof shall be upon the person or entity extracting groundwater for use outside the basin from which it was extracted to show that such extraction does not detrimentally impact the groundwater underlying the county as to the matter set out in more detail in subsection E of this section. The standard of review shall require that substantial evidence be presented to prevail on an issue.

2. Any interested party or public entity may appeal the decision of the commission by filing a written request with the clerk of the board of supervisors within fifteen days of issuance of the decision. The clerk shall set a time within twenty days of receipt of the request for appeal. Notice of the appeal shall be given to the commission, the permittee, appellant, as well as to the districts and cities, within the county, which have lands overlying or immediately adjacent to the location of the extraction of groundwater and to interested parties who have requested notice of such appeals within the last twelve months. The board of supervisors shall hear the appeal as to those disputed matters which were heard by the commission and which are specifically set out in the appeal request.

3. The appeal before the board of supervisors shall not be conducted with formal rules of evidence but under such rules as set by the board for the expeditious presentation of the matter and relevant information pertaining thereto by the appellant and by those opposed to the reversal of the commission decision. The decision of the majority of the board of supervisors shall be the final decision in the matter.

H. Challenge to Approved Permit.

1. Any interested party or public entity may challenge the continuation of the commission-approved permit during the term of the permit when information exists that:

a. There is a violation of the conditions of the permit; or

b. The permit was not issued in accordance with the procedure requirements of this chapter; or

c. Extraction of groundwater pursuant to the permit:

i. Causes or increases an overdraft in the basin, or

ii. Brings about increases in salt water intrusion, or

iii. Adversely affects the long-term ability for storage or transmission of groundwaters, or

iv. Exceeds the safe yield of the groundwaters, or

v. Operates to the injury of the reasonable and beneficial uses of overlying groundwater users, or

vi. Is in violation of Water Code Section 1220, or

vii. Results in an injury to a water replenishment, storage, or restoration project operating in accordance with statutory authorization, or

viii. Produces other environmental damage.

2. A challenge pursuant to this section is commenced by filing a written request with the director which alleges any of the above situations and generally describes the supporting facts for such allegation. In such event, the director shall within ten days of receipt of such challenge, give notice of the challenge to the commission, the permittee, appellant, to any interested party who filed a written request for such notice within the past twelve months, and also the district and cities, within the county, which have boundaries overlying or immediately adjacent to the location of the permitted extraction. The commission review shall be held on the matter following the procedures set out in Sections 4 and 5. The commission's decision may be to deny the challenge, grant the challenge and terminate the permit, or to establish modified conditions to the permit.

3. The standard for review shall be substantial evidence. The burden of proof is upon the person or entity extracting the groundwater.

I. Duration of Permit. All permits shall be valid for a term set by the commission, not to exceed three water years from the date of the issuance of the permit, or, if the permit is for extraction as part of a conjunctive use program that has been approved by the board, the permit shall not exceed the length of the term of the program. For purpose of calculation, the water year in which the permit is granted shall not be counted in determining the three year period if less than four months remain in the then water year. Provided, however, nothing contained in this chapter nor in the conditions of the permit shall be construed as to give exclusive right to groundwater to permittee nor establish a compensable right in the event that the permit is subsequently discontinued or modified by the commission after a hearing on a challenge to the permit.

1. The permit process of this chapter is not to be construed as a grant of any right or entitlement but rather the permit evidences that the health, welfare, and safety of the residents of the county will not be harmed by the extraction of groundwater from any of the groundwater basins underlying the county for use outside the basin from which it was extracted.

2. The permit does not waive compliance with any other applicable provision of federal, state, or local laws or regulations.

3. No permit should be denied where that denial would cause an unreasonable use or waste of water, an unconstitutional taking without just compensation, or any other violation of the United States or California Constitutions.

4. The permitting requirements of this chapter shall be waived when applying them would delay effective response to a general emergency declared by the Governor or the Modoc County Board of Supervisors. "General emergency," as used herein, refers to a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or other essential public services.

(Ord. 322-A (part), 2001: Ord. 322 (part), 2000)

The director, 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 violated.

(Ord. 322-A (part), 2001: Ord. 322 (part), 2000)

The county may elect to proceed with a civil action against a violator, including injunctive relief. Any person or entity who violates this chapter shall be subject to fines of up to five thousand dollars per separate violation. A person shall be deemed to have committed separate violations for each and every day or portion thereof during which any such violation is committed, continued, or permitted as well as for and each and every separate groundwater well with which any such violation is committed, continued, or permitted.

(Ord. 322-A (part), 2001: Ord. 322 (part), 2000)