San Joaquin County Municipal Code Ch. 3 Permit Process

It shall be unlawful to extract groundwater underlying County, directly or indirectly, for use of that groundwater so extracted, outside County boundaries, without first obtaining a permit as provided in this division.

This division shall not apply to the extraction of groundwater (1) to prevent the flooding of lands, or (2) to prevent the saturation of the root zone of farm land, or (3) for use within the boundaries of either a District or a contiguous parcel of any property owner which is in part located within County and in part in another County(s) where such extraction quantities and use are consistent with historical practices of the District or the property owner, or (4) for extractions to boost heads for facilities operated by the groundwater extractor, consistent with historical practices of the extractor. The groundwater extractor shall have the burden of supporting an assertion of an historical practice with competent evidence.

This division shall not apply to the incidental discharge of drainage and or sewage effluent where the discharge was neither for the purpose of serving other water uses nor for compensation, for usage outside County boundaries.

(Ord. 4064 § 1 (part), 2000)

(a) An application for a permit shall be filed with the Director on forms provided by the Director 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.

(b) An application for a permit shall be accompanied by a report prepared at the applicant's expense by a California Registered Civil Engineer or Certified Hydrogeologist with experience in geologic and hydrologic testing. The information provided in the application should provide information necessary to support the required findings and to establish appropriate conditions. The report must provide the following information:

(1) The location of the proposed project for extraction of groundwater for use outside County boundaries;

(2) The design of the project, the term of the project, and a description of the method of extraction and artificial recharge, if applicable;

(3) The quantity of water to be exported, artificially recharged and extracted on an annual basis and over the length of the entire project;

(4) The amount of the maximum monthly rate of export, artificial recharge and extraction;

(5) The location, size, spacing and depths of all extraction wells and any injection wells;

(6) A description of the monitoring plan and the location of the monitoring wells to measure groundwater levels and to evaluate gradient, flow direction, and water quality;

(7) If the application is not a conjunctive use groundwater replenishment project, the amount of historical consumptive use of water and historical applied water on the parcel, including historical evidence of cultivation and water usage of the parcel together with the water needs of the crops upon and/or water usage of the parcel;

(8) A hydrograph of water levels of representative wells in the surrounding area extending two (2) miles from the boundary of the project, including the area of the project, for the previous twenty (20) years;

(9) If the application is part of a conjunctive use groundwater replenishment project the report must include the following information regarding the net addition to useable groundwater: (a) the portion of the groundwater basin affected by the project; (b) the rate of artificial recharge and the average annual net artificial recharge; (c) the rate and direction of groundwater migration; (d) the inflow into the portion of the basin affected by the project, both with and without the project; (e) the projected change in storage resulting from project operations on an annual basis and during the entire project; and (f) the quality of water to be injected, percolated or otherwise replenished, supported with the results of current water quality tests of the proposed source waters; and

(10) Such other matters as the Director may require.

(Ord. 4064 § 1 (part), 2000)

(a) The requirements of this section shall apply to any application that is part of a conjunctive use groundwater replenishment project wherein either the groundwater recharge or groundwater extraction is proposed to be located wholly or partially within the boundaries of a District.

(b) Prior to submitting an application pursuant to Section 5-8310 of this division, the applicant shall apply in writing to all Districts wherein either the groundwater recharge or groundwater extraction is proposed to be located wholly or partially, to enter into a contract to operate a conjunctive use groundwater replenishment project.

(c) Within thirty (30) days of the submittal, the District must enter into good faith negotiations with the applicant in an attempt to enter into a contract for a conjunctive use groundwater replenishment project. The contract should include the information required to be submitted to the Director pursuant to Section 5-8310.

(d) Any contract entered into between a District and an applicant shall be conditioned upon receipt of a permit pursuant to this division. Upon successful completion and execution of such contract, the District and the applicant may apply for a permit pursuant to Section 5-8310.

(Ord. 4064 § 1 (part), 2000)

(a) Within ten (10) calendar days of filing of the permit application, the Director shall post a notice on the Department of Public Works 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 extractions, to all landowners, as shown on the latest tax roll, within two miles of the proposed extractions, and to any interested party who has made a written request to the Director for such notice within the last twelve (12) 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.

(b) 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 Control Board—Central Valley Region, 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 a District, city, or other local agency. Any interested person or agency may provide comments relevant to the matter of the extraction of the groundwater. Comments shall be submitted within thirty (30) days of the date of mailing the notice of filing the permit application.

(c) The environmental review shall be undertaken in accordance with the California Environmental Quality Act and County guidelines. All costs of the environmental review shall be the responsibility of the applicant.

(d) Upon completion of the environmental review, the Director may take one of the following actions: (1) approve the application without public hearing if the Director determines that the application meets the procedural requirements set forth in this section for Board approval and has not received written objections from any person or entity receiving notice to issuance of the permit, or (2) forward the application together with any written comments received, environmental documentation, and the Director's recommendation, to the Board. Upon receipt of the Director's recommendation, the Board shall immediately set a public review on the issuance of the permit which shall be noticed pursuant to Government Code Section 6061 and may not be held within fifteen (15) days of the time that the Board received the recommendation from the Director.

(Ord. 4064 § 1 (part), 2000)

Formal rules of evidences shall not apply to the public review of the application, but the Board may establish such rules as will enable the expeditious presentation of the matter and relevant information thereto. At the Board 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 Board to make the required findings. The Board may request any additional information it deems necessary for its decision, the cost of which, if any, shall be borne by the applicant. The Board shall also hear relevant evidence presented by other interested persons and entities, the Director, other County staff, and the public. The Board 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, land subsidence, percolation, permeability, piezometric surface, porosity, recharge, safe yield, saline intrusion, specific capacity, spreading water, transmissivity, usable storage capacity, usable groundwater, water table and zone of saturation.

(Ord. 4064 § 1 (part), 2000)

The permit may only be granted if the Board finds and determines that the extraction will not cause or increase an overdraft of the groundwater underlying the County, will not bring about or increase saline intrusion, will not unreasonably degrade the quality 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 basin underlying the County and will not otherwise operate to the injury of the reasonable and beneficial uses of overlying groundwater users or of any municipality or utility which is a water purveyor which includes groundwater, is otherwise in compliance with Water Code Section 1220, will not result in an injury to a water replenishment, storage, or restoration project operating in accordance with statutory authorization, will not cause or contribute to land subsidence, or if part of a conjunctive use groundwater replenishment project, the extraction of water is from those areas projected to contain the replenishment water at the time of the extraction. The Board may issue the permit if the Board finds that the applicant has provided for mitigation which will offset any adverse effect that is determined to exist.

(Ord. 4064 § 1 (part), 2000)

The conditions for a permit shall include:

(a) A condition to prohibit or mitigate overdraft or other adverse conditions as set forth in this section. The mitigation measures within this section shall not limit the requirements of the California Environmental Quality Act.

(b) The number and location of at least three monitoring wells.

(c) A condition limiting or prohibiting the amount of water approved for exportation as follows:

(1) If the extraction is part of a conjunctive use groundwater replenishment project the amount of water approved for exportation is limited to an amount that provides that the project will result in a net addition to usable groundwater underlying the project. The evaluation of net addition to useable groundwater will be based on the difference in groundwater storage resulting from the project.

(2) All other permits shall limit or prohibit the amount of water approved for exportation so that the combined extraction of water from applicant's parcel for exportation and use of water on the overlying parcel does not exceed historical consumptive use of water per acre of the parcel. In determining the amount of historical consumptive use of water per acre of the parcel, applicant shall provide historical evidence of cultivation and water usage of the parcel together with the water needs of the crops upon the parcel and/or water usage of the parcel. Public utilities, Districts, or cities which currently act as water purveyors for multiple parcels may include in the calculation the historical consumptive use of water on all parcels within the boundaries of the jurisdiction of the public utility, District, or city.

(d) Conditions to regulate the manner of extraction to maintain or improve preproject water quality, to prevent significant decreases in water levels, and to determine the rate of water migration of project water. The conditions may include the following:

(1) Appropriate spacing of extraction wells, based on the total amount of water approved for extraction;

(2) Providing buffer areas between extraction wells and neighboring overlying users;

(3) Limiting the monthly seasonal, and/or annual extraction rate;

(4) Providing sufficient recovery wells to allow rotation of extraction wells or the use of alternate wells, if necessary;

(5) Adjusting pumping rates or terminating pumping to reduce impacts, if necessary;

(6) Imposing time restrictions between recharge, extraction, and/or injection to allow for downward percolation of water to the aquifer;

(7) Providing recharge of water that would otherwise not recharge the basin; and

(8) Requiring a reasonable relationship between the points of extraction and the points of injection or recharge.

(e) The projected minimum operating levels for the project monitoring wells will be established by the applicant and approved by the Board. If the water levels in any of the approved monitoring wells decline by more than five feet from the minimum approved operating level, the project extraction well causing this threshold exceedance shall be shut down for evaluation. The Monitoring Committee shall make a recommendation to the Board for continued operation based on the results of the evaluation.

(f) The project shall not create conditions that are worse than those that would have existed absent the project, unless mitigated. In lieu of mitigation affected overlying users may be compensated, with the overlying user's consent, for unavoidable adverse impacts, including but not limited to the following:

(1) The cost of lowering the pump bowls or deepening wells as necessary to restore groundwater extraction capability to such overlying user;

(2) The cost of providing alternative water supplies to such overlying user; and/or

(3) Providing financial compensation to such overlying user.

(g) A condition limiting accounting for migration losses of a conjunctive use groundwater replenishment project to a minimum of five (5) percent loss per annum. The permit may be conditioned based on a higher loss rate.

(h) A condition establishing monitoring requirements and reports by the Monitoring Committee consistent with Section 5-8345.

(i) Other conditions that are deemed necessary for the health, safety and welfare of the people of the County.

(Ord. 4064 § 1 (part), 2000)

(a) If a permit is granted, the Board shall establish a five member Monitoring Committee whose members shall be appointed by the Board. The Monitoring Committee shall include the Director or the Director's designee; the Director of Environmental Health Division, San Joaquin County, Public Health Services, or designee; the permittee; a representative of the local agency that provides water service within the project; and a representative of the landowners owning land within two miles of the location of the proposed project.

(b) The Monitoring Committee may engage the services of suitable professional groundwater specialist to provide assistance to the Monitoring Committee.

(c) It shall be the duty of the Monitoring Committee at least annually, and upon receipt of a complaint regarding operation of the project, to review relevant facts and information and if necessary to recommend to the Board whether or not the project is operating within the terms and conditions of the permit issued for the project, whether or not the project is operating inconsistent with a required finding, and/or whether or not the project is operating to the injury of any party.

(d) The Monitoring Committee will maintain official records of recharge and recovery activities, which records shall be open and available to the public. The Monitoring Committee will have the right to verify the accuracy of reported information by inspection, observation or access to user records (i.e., utility bills).

(e) In response to complaints, the Monitoring Committee may establish criteria necessary to determine if well interference, other than insignificant interference, is attributable to pumping of project wells by conducting pumping tests of project wells following the installation of monitoring wells and considering hydrogeologic information.

(f) The Monitoring Committee may make recommendations to the Board and project permittee including, without limitation recommendations for modifications in project operations based upon evaluation of data.

(g) The cost of the Monitoring Committee shall be paid as follows:

(1) Each of the parties shall be responsible for the personnel costs of its representative on the Monitoring Committee, and for the time spent by those personnel in participation on the Monitoring Committee.

(2) All other groundwater monitoring costs, including employment of the professional groundwater specialist, collection, evaluation and analysis of data as adopted by the Monitoring Committee, shall be allocated among and borne by the permittee.

(3) The costs of the Monitoring Committee set forth in subsection (g)(2) of this section shall be estimated by the Monitoring Committee at the beginning of each year of operation of the project, and a budget submitted to the Board. Should the permittee object to the budget, the issue shall be submitted to arbitration before a single neutral arbitrator appointed by the Monitoring Committee. In the absence of agreement of the Monitoring Committee, the presiding judge of the San Joaquin County Superior Court shall appoint the arbitrator. The neutral arbitrator shall be a California Registered Civil Engineer or Certified Hydrogeologist, with experience in geologic or hydrologic testing. The arbitration shall be called and conducted in accordance with the procedures set forth in California Code of Civil Procedure, Section 1282 et seq.

(h) All disputes regarding any condition or the operation of the project shall first be submitted by any party in writing to the Monitoring Committee for review and recommendation. The written request shall generally describe the request and the supporting facts. The Monitoring Committee shall meet and review all relevant data and facts, and recommend a fair and equitable resolution of the dispute.

(i) All actions and recommendations of the Monitoring Committee shall be by a supermajority vote of the members of the Monitoring Committee.

(Ord. 4064 § 1 (part), 2000)

Reapplication for a permit which has been denied may not be filed with the Director until the following water year unless denied without prejudice and must be accompanied with information that demonstrates a significant change in conditions in the groundwater and/or change in the proposed extraction.

(Ord. 4064 § 1 (part), 2000)

(a) Any interested party or public entity may challenge the continuation of the approved permit during the term of the permit when information exists that: (1) there is a violation of the conditions of the permit; or (2) circumstances have changed or the project is operated in such a manner so that the findings specified in Section 5-8335 of this division are no longer supportable.

(b) Before a challenge may be filed pursuant to this section the grounds for the challenge must first be submitted to the Monitoring Committee pursuant to Section 5-8345 for review and recommendation by the Monitoring Committee. In the event that the Monitoring Committee fails to make a recommendation within sixty (60) days the challenge will be deemed rejected by the Monitoring Committee and the party may submit a challenge to the Board pursuant to this section.

(c) A challenge pursuant to this section is commenced by filing a written request, accompanied by the fees which shall be established from time to time by the Board, with the Director which alleges any one of the above situations and generally describes the supporting acts for such allegation. In such event, the Director shall within ten (10) days of receipt of such challenge, give notice of the challenge to the Board, the permittee, the appellant, the Districts and cities within the County which have boundaries overlying or immediately adjacent to the location of the permitted extraction, all landowners, within two miles of the project extractions, as shown on the latest tax role, and any interested party who files a written request for such notice within the past twelve (12) months. A Board review shall be held on the matter following the procedures set out in Sections 5-8330, 5-8335, and 5-8340. The Board's decision may be to deny the challenge, grant the challenge and terminate the permit, or to establish modified conditions to the permit.

(d) The standard for review shall be substantial evidence. The burden of proof is upon the person or entity filing the challenge.

(Ord. 4064 § 1 (part), 2000)

All permits shall be valid for a term set by the Board, not to exceed three (3) water years from the date of the issuance of the permit, or, if the permit is for extraction as part of a conjunctive use groundwater replenishment project, the permit shall be for the term of the conjunctive use groundwater replenishment project. For purpose of calculation, the water year in which the permit is granted shall not be counted in determining the three-year time period if less than four (4) months remains in the then water year. Provided however, nothing contained in this division 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 Board after a hearing on a challenge to the permit.

(Ord. 4064 § 1 (part), 2000)

The permit process of this division is not to be construed as a grant of any right to 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 and exportation of groundwater outside the County boundaries. The permit process in no way exempts, supersedes, or replaces any other provisions of Federal, State, and local laws and regulations and case law, including but not limited to Water Code Section 1220, the Groundwater Management Act, and any actions provided for in California groundwater law, well drilling and maintenance, or building permit requirements.

(Ord. 4064 § 1 (part), 2000)

Nothing in this chapter shall prevent any interested party from pursuing any remedy at law or equity in the event such party is damaged as a result of projects permitted hereby.

(Ord. 4064 § 1 (part), 2000)