The ordinance codified in this chapter may be cited as the "Groundwater
Mining and Export Ordinance of Merced County."
(Ord. 2014 § 1, 2022)
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,
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)
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 County.
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.
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.
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 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)
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)
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:
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 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)
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. The 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)
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)
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 design-ee(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 design-ee(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:
a.
That such permit was obtained or extended by fraud;
b.
That one or more of the conditions upon which such permit was granted
have been violated or is not followed;
c.
That the extraction or use for which the permit was granted is so
conducted as to be a nuisance or detrimental to the public health,
welfare, or safety; or unreasonable within the meaning of Article
X, Section 2 of the California Constitution.
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)
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)
A.
The
provisions of this chapter are hereby declared to be severable. If
any provision, clause, word, sen-tence 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)
