Merced County groundwater law won’t be retroactive, board decides

Despite a strong push from one member, the Merced County Board of Supervisors decided Tuesday that a proposed groundwater ordinance will not be retroactive to January 2014.

The ordinance’s first reading is scheduled for March 3. A second reading and possible adoption is set for March 17. If approved, the countywide groundwater ordinance would go into effect 30 days later.

For nearly a year, the supervisors have been working on an ordinance that prohibits groundwater mining and exports outside the county basins without a permit.

District 4 Supervisor Deidre Kelsey said the ordinance should apply to those exporting groundwater from the beginning of last year – especially those who sell groundwater for profit.

“One of the things I’ve learned in local government is that it’s not always an even playing field,” Kelsey said during the board meeting. “Water should not become a commodity that is sold for profit while their neighbors have to put in deeper wells to survive. One party makes a profit while others suffer consequences – that’s not the type of government I want.”

Many Merced County farmers, impacted by neighbors pumping large amounts of groundwater and transferring it elsewhere, are being forced to put in replacement wells. Some pay the costs of drilling their wells deeper to get enough water to continue farming. Kelsey said that’s unfair to landowners affected by their neighbors’ excessive pumping.

After a lengthy discussion, District 2 Supervisor Hub Walsh made a motion to move the ordinance forward with a few language adjustments and it passed unanimously.

Kelsey asked that the motion be amended to apply the ordinance retroactively, but did not gain support from other board members.

County Executive Officer Jim Brown said the county issued 853 well-drilling permits last year. About half of those haven’t been constructed yet, but requiring those landowners to go through the ordinance’s process would be difficult and could pose legal risks.

“There will be staffing challenges,” Brown told the supervisors Tuesday. “We would have to go back and redo all of those.”

However, a water attorney contracted by Merced County to provide expertise said the ordinance satisfies Kelsey’s concerns because it requires anyone exporting water – regardless of when their well was constructed – to apply for a permit under the new rules.

“If they are exporting, they need a permit,” Antonio Rossmann told the board. “If we focus on the use, rather than construction of the well, it satisfies the ordinance’s purpose.”

Also on Tuesday, the supervisors clarified the inspection process for permits under the proposed groundwater ordinance. They determined that county staff will follow the same procedures established for other inspections, including the right to enter a property if they believe a violation has occurred.

The supervisors also decided that the county’s Community and Economic Development Department will administer the environmental review process for permits requiring analysis through the California Environmental Quality Act. The CEQA process is familiar to that department’s staff because they oversee it for other planning projects.

Still, the additional workload could have an impact on the staff.

The Community and Economic Development Department has three planners and a deputy, according to director Mark Hendrickson. “We’re expecting potentially a big impact yet to be seen,” Hendrickson said, adding that the county is recruiting applicants to fill the fourth planner position.

The board also determined Tuesday that the groundwater ordinance will be a “bridge” until the county implements the Sustainable Groundwater Management Act of 2014. Signed by Gov. Jerry Brown last year, the new legislation requires the formation of a locally controlled Groundwater Sustainability Agency to manage groundwater locally.

This story was originally published February 10, 2015 at 11:21 PM with the headline "Merced County groundwater law won’t be retroactive, board decides."