The ordinance codified in this chapter may be cited as the "Groundwater Mining and Export Ordinance of Merced County."
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
The Merced County board of supervisors makes the following findings in support of the enactment of the ordinance codified in this chapter:
1.
The protection of the health, welfare, and safety of the residents of the county require that the groundwater resources of Merced County be protected from adverse impacts resulting from both the mining of groundwater resources and the export of those resources outside each respective county groundwater basin; and
2.
Groundwater is an essential resource for continued agricultural production within the county which production includes, but is not limited to, field crops, nut and fruit crops, vegetable crops, seed crops, poultry and livestock and products which significantly contribute to the gross value of the total agricultural production of the county, state, and nation; and
3.
Groundwater is an essential resource for agricultural, municipal, industrial, environmental, and domestic uses within the county; and
4.
The mining of groundwater resources from within the county and the export of groundwater from inside Merced County to outside of the respective groundwater basin in which it originates will each have adverse environmental impacts on the county, including, but not limited to, the following: increased groundwater overdraft, land subsidence, uncontrolled movement of inferior quality groundwater, the lowering of groundwater levels, increased groundwater degradation, streamflow depletion and depleted groundwater basins; and
5.
The mining of groundwater resources from within the county and the export of groundwater from inside Merced County to outside of the respective groundwater basin in which it originates will each have adverse economic impacts on the county, including, but not limited to, the following: loss of arable land, a decline in property values, increased pumping costs due to the lowering of groundwater levels, increased groundwater quality treatment costs, replacement of wells due to declining groundwater levels, losses due to flooding and inundation, and replacement of damaged wells, conveyance infrastructure, roads, bridges and other appurtenances, structures or facilities due to land subsidence; and
6.
The effects of the mining of groundwater resources from within the county and the export of county groundwater from inside Merced County to outside of the respective groundwater basin in which it originates, compounded by persistent drought conditions, presents urgent problems, including the following: subsidence of groundwater aquifer systems, weakening of proprietary groundwater rights, interruption of utility and transportation services provided by infrastructure, placing drinking water supplies at risk, decreasing the county's range land grasses for feed, reducing crop irrigation supplies to critical levels, increasing unemployment and economic hardship in the county because of a reduction of agricultural jobs, failing to conserve groundwater supplies for future years, and threatening harm to animals and plants that rely on Merced County's lakes, rivers, streams, and wetlands; and
7.
Climate change has intensified the impacts of droughts in Merced County and the State of California. Unpredictable surface water availability, low moisture content in vegetation, and parched soils have magnified the impact of regularly occurring drought. The 2021 water year was the second driest in state history, and on October 19, 2021, the Governor of California issued a proclamation declaring a state of emergency due to statewide drought, which was sustained and worsened by extreme high temperatures; and
8.
Based on the foregoing facts, continued action to address groundwater mining and extraction is necessary for the preservation of health, safety, and well-being of Merced County's citizens, economy, agricultural resources, and environmental resources. Excessive groundwater extraction threatens Merced County's drinking water supplies and has caused land subsidence that threatens Merced County's roads, bridges, water conveyance, and flood and inundation management infrastructure; and
9.
California Constitution, Article X, Section 2, and Water Code Section 100 prohibit the waste, unreasonable use, unreasonable method of use, and unreasonable method of diversion of water. The county finds that, under current drought and aquifer conditions, the export of groundwater for use outside the respective groundwater basins within the county in which it originates is a presumptively unsustainable use of groundwater and not reasonable or beneficial within the meaning of the California Constitution and the California Water Code; and
10.
The risks to health, safety and well-being in Merced County from the mining and export of groundwater require the county to take actions to support the implementation of the Sustainable Groundwater Management Act (SGMA), which recognizes and preserves the authority of cities and counties to manage groundwater pursuant to their police powers.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
The following words and phrases shall have the following meanings when used in this chapter:
means any one of the following sub-basins of the San Joaquin Valley Basin [5- 22], as identified in Department of Water Resources Bulletin 118:
Turlock [5-22.03] |
Merced [5-22.04] |
Chowchilla [5-22.05] |
Delta Mendota [5-22.07] |
means the board of supervisors of Merced.
means the county of Merced.
means the extraction of groundwater from any well for other than municipal use within the boundaries of Merced County and located on or under parcels subject to this chapter and conveyed to, or used directly or indirectly on parcels which are outside of the boundaries of the Merced County groundwater basin from which the groundwater is extracted. Export of groundwater includes activities by which groundwater may through one or more exchanges or transactions be directly or indirectly conveyed or transferred for use out of the same basin from which it is extracted.
shall have the meaning given in Water Code Section 10721, subdivision (j).
shall have the meaning given in Water Code Section 10721, subdivision (k).
means 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.
means the process, deliberate or inadvertent, of extracting groundwater from a source at a rate or amount in excess of the replenishment rate, such that the groundwater level declines persistently, threatening exhaustion of the supply, a decline of pumping levels to uneconomic depths, land subsidence, or significant water quality or other significant environmental damage.
means and includes natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons, and public entities.
means any local public agency, mutual water company, or nonprofit tax-exempt unincorporated association within, or partially within, Merced County that has authority to extract, deliver, store, or regulate water.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
The following actions are prohibited unless allowed under an exemption or permit as set forth in this chapter:
A.
Groundwater Mining, as defined in this chapter, within the unincorporated areas of the county. This provision shall prohibit the construction of wells.
B.
The export of groundwater from inside Merced County outside of the respective groundwater basin in which it originates.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
A.
Any person, entity, or public water agency claiming an exemption to the prohibitions in this chapter must submit an application to the Merced County Division of Environmental Health. An application for an exemption shall contain sufficient information and supporting documentation to establish that the exemption applies. The person, entity, or public water agency claiming an exemption under this section shall bear the burden of proof of demonstrating that the exemption applies.
B.
The construction of wells in a location that is within the jurisdiction of a groundwater sustainability agency shall be exempt from the prohibition against the construction of wells contained in this chapter provided the following criteria are met:
1.
The groundwater sustainability agency has adopted and implemented a groundwater sustainability plan that covers the location for the proposed well.
2.
The location for the proposed well is not in a basin or portion of a basin that the State Water Resources Control Board has designated as a probationary basin under Water Code, Division 6, Part 2.74.
3.
The proposed construction and use of the proposed well are consistent with the groundwater sustainability plan that covers the location for the proposed well.
4.
The groundwater sustainability agency whose jurisdiction overlies the location for the well provides the Merced County division of environmental health with documentation confirming that each of the requirements in this subsection are satisfied with respect to the proposed well. The groundwater sustainability agency's determination shall be provided with the application for exemption, and shall be in a format the Merced County division of environmental health has approved.
C.
Water wells in aggregate, on a single parcel delivering two acre-feet of groundwater per year or less for domestic use on property under the same ownership as the parcel on which the well is located shall be exempt from the prohibition against the construction of wells contained in this chapter.
D.
The following water management practices, if proposed in a basin or portion of a basin that is not covered by a groundwater sustainability plan adopted and implemented by a groundwater sustainability agency, or proposed in a basin or portion of a basin that the State Water Resources Control Board has designated as probationary under Water Code Division 6, Part 2.74, are exempt from the prohibitions in this chapter:
1.
Water resources management practices of public water agencies that have jurisdictional authority within the county, and that are in compliance with and included in groundwater management plans and policies adopted by that agency. This exemption shall not apply if the Merced County division of environmental health determines that the public water agency's groundwater management plan and policies fail to prevent the increased mining or export of groundwater in areas within the public water agency's service area and that is subject to the county's jurisdiction.
2.
The replacement of existing wells, as described in Section 9.28.110 of the Merced County Code, that do not result in groundwater mining as defined in this chapter.
3.
Groundwater mining, which may include well construction, in compliance with a discretionary permit issued by the Merced County division of environmental health that may be issued only after completion of the applicable level of review under the California Environmental Quality Act.
E.
The following groundwater management practices are exempt from the prohibition against the export of groundwater contained in this chapter, subject to a ministerial permit issued by the Merced County division of environmental health under this chapter:
1.
Reasonable use of groundwater resources to supplement or replace surface water released for other reasonable and beneficial purposes, including, but not limited to, fisheries, wildlife refuges, ecosystem habitat or downstream water quality or quantity needs, when required pursuant to federal and state law, regulations, licenses, or pursuant to conditions imposed by valid permits.
2.
Conservation of groundwater in compliance with applicable state law that authorizes public water agencies to transfer water outside its usual place of use. Conservation investments include irrigation practices in agricultural areas where the crops grown use less groundwater, or communities that produce recycled water, fix leaks or promote other water saving devices and methods to conserve groundwater on a temporary or permanent basis.
3.
Recharge of groundwater in locations in the county that are capable of improving groundwater conditions in order to meet total water demands of beneficial uses in the hydrologic and groundwater basin area, provided that the amount of recaptured groundwater transferred out of the area will not exceed the amount of water used to recharge the aquifer, less losses that occur during the recharge process such as losses to surface water courses, flows to surrounding groundwater basins, or other groundwater movement resulting in loss to recharge amounts.
4.
Remediation of contaminated groundwater required by compliance orders issued by local, state or federal agencies, that is pumped and treated to remove contaminants that are in violation of standards for beneficial uses. The extracted and treated water may be released out of the county, resulting in a net loss to the groundwater basin, if the release complies with discharge permits issued by the local, state or federal resource agencies.
5.
Export of groundwater that is reasonably necessary to support existing agricultural operations on immediately contiguous parcels outside the basin under common ownership where some parcels, or parts of some parcels, straddle the basin boundary. Claimants exporting groundwater under this exemption shall install a county-approved water flow metering device and report at least annually to Merced County division of environmental health the amount of groundwater exported outside the basin.
6.
Export of groundwater that is reasonably necessary to support federal, state, and county approved public works projects and maintenance activities.
7.
De-watering of shallow water tables in accordance with applicable orders, codes and regulations, where the net benefits of the removal of subsurface water substantially outweighs the loss of water, because of damage the high water table unreasonably may cause to agriculture, industry, commerce and other property uses.
8.
The export of groundwater from inside Merced County and from a source originating location that is within the jurisdiction of a groundwater sustainability agency to outside of the respective groundwater basin in which it originates; provided the following additional criteria are met:
a.
The proposed export is consistent with long-term sustainability objectives adopted in the groundwater sustainability plan that covers the originating location and the groundwater sustainability plan that covers the receiving location of the proposed export.
b.
The applicant provides to the Merced County division of environmental health documentation from each groundwater sustainability agency whose jurisdiction overlies either the originating location or the receiving location for the proposed export, each confirming that the consistency requirement of subsection a is satisfied with respect to the proposed export. Such determination or determinations shall be provided with the application for exemption and shall be in a format the Merced County division of environmental health has approved.
c.
Groundwater from inside Merced County is not being moved outside of Merced County unless it is done within the boundary of a groundwater sustainability agency in Merced County that covers multiple counties.
d.
The applicant demonstrates to the Merced County Division of Environmental Health that the exported groundwater will not result in exchanges or transactions that directly or indirectly convey or transfer the exported groundwater outside of the receiving groundwater sustainability agency boundary.
9.
The export of groundwater from inside Merced County outside of the respective groundwater basin in which it originates in compliance with a permit issued by the Merced County division of environmental health under this chapter.
F.
The person, entity, or public water agency claiming an exemption under this section shall bear the burden of proof of demonstrating that the exemption applies.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
A.
The Merced County division of environmental health shall be responsible for implementation of this chapter and regulations adopted by the board of supervisors.
B.
The Merced County division of environmental health shall establish a permitting system to authorize wells, groundwater exports, and other groundwater management practices that are consistent with this chapter. Permits issued by the Merced County division of environmental health for groundwater exports or groundwater management practices shall ensure that the export or groundwater management practice is consistent with the statements of county policy set forth in Section 9.27.020. Merced County division of environmental health shall coordinate with the Merced County community and economic development department for review and determination including any discretionary approval that is necessary under the California Environmental Quality Act or any other applicable statute. The issuance of the determination, discretionary approval, or other findings under the California Environmental Quality Act including public hearing or processing shall be administered through the Merced County Community and Economic Development Department.
C.
The Merced County division of environmental health shall have authority to investigate any activity subject to this chapter. Compliance with this chapter will be determined based on the submission of a technical report, and other documentation as requested, to the Merced County division of environmental health. The Merced County division of environmental health is authorized to enforce the prohibition of any activity that is determined to be in violation of this chapter or regulations adopted by the board of supervisors.
D.
The applicant, permit holder or other interested person or entity may appeal an administrative determination made by the department under this chapter which: (1) finds that an application is complete or incomplete; (2) establishes or modifies operating conditions; (3) grants or denies a permit; (4) suspends or revokes a permit; or (5) results in the issuance of a stop order. Administrative appeals under this section must be made in writing, must clearly set forth the reasons why the appeal ought to be granted, and must be received by the clerk of the board within 15 calendar days of the postmark date on the envelope that transmits the administrative determination. Any appeal that is not timely filed will be deemed ineffective and the administrative determination that is being appealed will become final. The board of supervisors shall fix a reasonable time for the hearing of an appeal of an administrative determination at a regularly scheduled meeting of the board of supervisors. The board of supervisors shall provide written notice of the appeal hearing to the appellant and all interested parties and to all landowners within one-quarter mile of the parcel where operations will occur. The board of supervisors shall hear the appeal and issue a decision within 30 days after the hearing. The board of supervisors may take any appropriate action upon the original administrative action that was appealed, including granting or denying the appeal in whole or in part, or imposing, deleting or modifying operating conditions of the permit. The decision of the board of supervisors shall be final forthwith.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
All permits granted for wells or groundwater exports under the scope of this chapter shall be conditioned on the installation and proper maintenance of a water measuring device acceptable to the division of environmental health. As an alternative to water measuring devices, other reasonable methods to determine groundwater extraction may be used if approved by the division of environmental health. This requirement shall not apply to well construction done under the exemptions stated in subsections B and C of section 9.27.050 of this chapter.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
A.
General Authority. The director of the Merced County division of environmental health, or authorized designee(s), is authorized to take all necessary action to enforce the provisions of this chapter and to carry out any other special enforcement programs initiated by order or resolution of the board of supervisors.
B.
Right of Entry and Inspection. The director of the Merced County division of environmental health, or authorized designee(s), may enter at any and all reasonable times any places, property, premises, or enclosure for the purpose of carrying out any activity required or authorized by the provisions of this chapter, including to make examinations and investigations to determine whether any provision of this chapter is being violated. Upon request, the county personnel entering and inspecting shall provide adequate identification. An inspection warrant shall be obtained if required by law.
C.
Stop Orders. The director of the Merced County division of environmental health, or authorized designee(s), is authorized to issue stop orders to prohibit further construction or use of wells or facilities that violate the provisions of this chapter. Such stop orders shall remain in effect until violations are corrected.
D.
Citations. The director of the Merced County division of environmental health, or authorized designee(s), is authorized to issue notices, citations and/or abatement orders to persons for violations of the provisions of this chapter.
E.
Enforcement Costs. The director of the Merced County division of environmental health, or authorized designee(s), is authorized to recover from the property owner or the person in control of the property, all administrative costs associated with the enforcement of the provisions of this chapter or the enforcement of any condition to the issuance or granting of any permit or entitlement provided for by this chapter.
F.
No Entitlement for Wells and Export with Violations. No permits of any kind or other entitlement shall be accepted or processed for wells in violation of the provisions of this chapter unless such entitlement corrects the violation.
G.
Revocation or Modification for Cause. A permit may be revoked or modified for cause as provided by the provisions of this section. For purposes of this section, such modification may include the modification of the terms of the permit itself or the waiver, alteration, and imposition of new conditions.
1.
Grounds for Revocation or Modification. Revocations or modifications may be made upon a finding of any one or more of the following grounds:
2.
Initiation of Action. An administrative action to revoke or modify may be initiated by order of the board of supervisors, on its own motion or on the request of the director of the Merced County division of environmental health, or authorized designee(s).
3.
Notice, Review Hearing, and Decision. An action to revoke or modify shall be noticed, reviewed, heard, and decided in the same manner and by the same authority that originally granted the discretionary permit.
4.
An action to revoke or modify may be appealed pursuant to the appeal procedure.
H.
Any well or use which is established, operated, used, erected, moved, altered, enlarged, or maintained contrary to the provisions of this code, is declared to be unlawful and shall be subject to the remedies and penalties set forth in this chapter.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
A.
Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as set forth in Section 1.28.020 of Merced County Code. "Person" includes any individual or firm who directs, or engages in, the digging, boring, drilling, or expansion of wells. Each person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or allowed and shall be punishable accordingly.
B.
In addition to or in lieu of the penalty provisions or remedies set forth in this chapter, any violation of any of the provisions of this chapter, and any condition caused or allowed to exist in violation of any of the provisions of this chapter, shall be deemed a public nuisance subject to Chapter 9.70 of the Merced County Code, and also create a cause of action for injunctive relief.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)
A.
The provisions of this chapter are hereby declared to be severable. If any provision, clause, word, sentence or paragraph of this chapter or the application thereof to any person, establishment or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this chapter.
B.
The prohibitions of this chapter shall not be applicable to the extent that their application would result in a violation of the Constitution or other laws of the United States or the state of California. The Merced County Division of Environmental Health shall issue a permit to authorize conduct otherwise prohibited under this chapter if the applicant demonstrates that such permit is necessary to avoid such a violation of state or federal law.
(Ord. 2014 § 1, 2022; Ord. 2044, 1/28/2025)