letter of information to constituents marcia armstrong siskiyou 100110

Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.

A letter of information to my constituents

from Siskiyou County Supervisor Marcia Armstrong Oct 1, 2010

Under the Brown Act, only two Supervisors can meet with any group at one time. I was not permitted to attend the meeting with Supervisors Kobseff and Cook with the POW group without violating that act. I regularly attended POW meetings and made myself accessible for dialogue until Mr. Chenoweth made it quite clear that I was not wanted at their meetings. I have regularly corresponded and conferred with POW research members on many occasions.

It appears that people may have been misinformed about the proposed groundwater ordinance and follow up resolution. The ordinance lets a local group petition the Board for it to establish a local advisory committee to the Board of Supervisors. That committee looks closely at data and makes recommendations to the Board of Supervisors on possible policy or action. Any recommendations by the committee would be considered in a full public session (open to public comment) by the Board. The Resolution that will follow establishes such a committee for Scott Valley. It has been requested by the Scott River Watershed Council. (Here is the proposed ordinance http://www.co.siskiyou.ca.us/BOS/DOCS/agenda/2010/Questys/MG4013/AS4022/AI9417/DO9418/DO_9418.pdf)

It is a way for Scott Valley water users to take control of what is currently happening on the regional and state level with their groundwater. Studies have already been done and a model created by Dr. Harter's student on the relationship between ground and surface water flows and temperature. It was scheduled to be presented to the North Coast Water Quality Control Board (who paid for the study) in October. Have you seen it? I haven't. I would like us to have local control over that data, how it is presented and what is to be done with it. In addition, the Dept. of Water Resources is just completing a study of groundwater use in Scott and Shasta Valley. Have you been involved in the process? I haven't. It is being done at the direction of the State without input or control from local County government.

The existing Scott River TMDL (Total Maximum Daily Load limits for water temperature and sediment) draws a link between groundwater use, cold water instream flows for fish and riparian vegetation. The tribes and environmentalists have been clammoring for a moratorium on groundwater use in the Valley. The PCFFA and ELF have already sued the County demanding that we regulate and limit groundwater use under the Public Trust Doctrine because it allegedly affects instream flows for fish. The state has passed a law requiring that if some local entity does not step forward and volunteer, then January 1, the DWR will monitor and report groundwater levels in each hydrologic zone. Each year, several bills are introduced in the legislature to require well metering and reporting to the state by all groundwater users. They have been vetoed in the past several years by the Governor. If we get Mr. Brown as Governor, it is likely that they will no longer be vetoed. I feel that local control of data and what is done with it is part of the answer. I do not feel that we will be served by doing nothing and having these processes go on uncontrolled and picked up at the regional and state levels.

Contrary to what has been circulated by POW, the Board of Supervisors has no intention of metering wells or charging for water use. An ordinance to establish an advisory committee does not lead to those things. In fact, we have had an existing groundwater ordinance in place for more than a decade and no one has seen any regulation on their use in Scott Valley come from it.

Siskiy9ou County Code TITLE 3. - PUBLIC SAFETY; CHAPTER 13. - GROUNDWATER MANAGEMENT ; Article 1. - Declaration of Findings and Purpose

Article 1. - Declaration of Findings and Purpose

Sec. 3-13.101. - Regulation of the extraction of groundwater for use outside the basin from which it was extracted.

The Board finds and declares:

(a) The groundwater basins underlying Siskiyou County—including the Klamath River Valley Basin, the Butte Valley Basin, the Shasta Valley Basin, and the Scott River Valley Basin—have historically provided the people and lands of Siskiyou County with water for agricultural, domestic, municipal and other purposes that are likely to increase in importance in the future.

(b) The Board recognizes 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) Siskiyou 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 resources of Siskiyou 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 Siskiyou County, to avoid overdrafts and maximize the long-term beneficial use of groundwater resources, best serves the health, safety and welfare of residents of Siskiyou County.

(d) Much of the economic production of the County depends upon the use of groundwater.

(e) The groundwater of Siskiyou County also provides a significant amount of water for domestic uses throughout the County.

(f) The groundwater of Siskiyou County has been and will continue to be a vital part of the economic well-being and stability of the County.

(g) Because of the need for increased water supply to meet future needs within the County, and because surface water supplies obtained in the future may need to be used conjunctively with available local groundwater for reasonable and beneficial local uses, it is vital that the County's groundwater supply and quantity be preserved.

(h) The County will undertake as resources permit to develop a County water plan to more specifically address water availability, needs and usages in an attempt to foster prudent water management practices to avoid significant adverse overdraft-related environmental, social, and economic impacts.

(i) It is essential for information gathering and monitoring purposes, and for the protection of the County's groundwater resources, that the County adopt a permit process addressing the excessive extraction of groundwater for use outside the basin from which it was extracted.

(j) In adopting and codifying this groundwater management ordinance the County does not intend to limit other authorized means of managing Siskiyou County groundwater, and intends to work cooperatively with interested local agencies to further develop and implement joint groundwater management practices.

(k) The groundwater basins underlying Siskiyou 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 uses of all potential users, while avoiding the waste and unreasonable use of these resources.

(l) Siskiyou County is the only local agency overlying all of the groundwater basins within the County.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Article 2. - Definitions

201. - Definitions.

Sec. 3-13.201. - Definitions.

"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 Siskiyou County.

"Commission" means the Siskiyou County Planning Commission.

"County" means the County of Siskiyou.

"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 Siskiyou County include the following: the Klamath River Valley Basin, the Butte Valley Basin, the Shasta Valley Basin, and the Scott River Valley Basin.

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

"Historical practice" means the consistent or predominant practice of an applicant within seven (7) years preceding the operative date of this chapter.

"Hydraulic gradient" means the slope of the water table.

"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 yield 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 application of state or federal law;

(5) Producing other threats to health and safety or 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 1 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.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.301. - Permit required for groundwater extraction for use outside the basin from which it was extracted.

It is 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 chapter) 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 to the extraction of groundwater (1) for use within the District boundaries of a District 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 (2) for extractions to boost heads for portions of District facilities, consistent with historical practices of the District, or (3) for bottling or transporting bottled water by a commercial bottling water enterprise, or both. The applicant shall have the burden of supporting an assertion of an historical practice with competent evidence. This exemption for commercial bottled water does not create an exemption for water that is extracted and exported for bottling at a location other than in Siskiyou County.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.302. - Application for a permit.

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. The information the Director requires of an applicant must include, but is not limited to, the following:

(a) 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;

(b) Location, planned monthly extraction rate, and depth of each well proposed for operations;

(c) Delineation of the time periods within the applicable groundwater basin in which each well is proposed for operation;

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

(e) Description of any proposed or feasible uses designed to mitigate any adverse environmental effects of the extraction;

(f) 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;

(g) Description by quantification and location of each end use of the needs of the extractor which the extraction is designed to meet;

(h) 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.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.303. - Procedures for processing.

(a) Within ten (10) calendar days of filing of the permit application, or as soon thereafter as practicable, the Director shall publish notice in a newspaper of general circulation in Siskiyou County and post a notice on the departmental public bulletin board that an application has been filed, shall send a copy of the notice to the Board of Supervisors, the Districts and Cities within the County 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 Board - Central Valley and North Coast Regions, 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 forty-five (45) 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, to include cumulative and social or economic effects resulting from a physical change in the environment. All costs of the environmental review shall be the responsibility of the applicant.

(d) Upon completion of the environmental review, the Director shall forward the application together with any written comments received, environmental documentations, and the Director's recommendations, to the Commission. Upon receipt of the Director's recommendations, the Commission 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 Commission receives the recommendation from the Director.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.304. - Public review and Planning Commission recommendation to Board concerning issuance of permit.

(a) 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.

(b) Elements of permit review.

(1) 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 waters, transmissivity, usable storage capacity, water table and zone of saturation.

(2) The Commission shall make a recommendation to the Board as to whether 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 groundwater within the aquifer; will not exceed the safe yield of the groundwater underlying the County; will not otherwise operate to the injury of the reasonable and beneficial uses of overlying groundwater users; is not otherwise in compliance with Water Code Section 1220; will not result in an injury to a water replenishment, storage, or restoration project operated in accordance with statutory authorization; and will not produce other environmental damage.

(3) The Commission shall recommend to the Board of Supervisors whether the permit should be granted and what appropriate conditions should be imposed 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 the requirements of this chapter.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.305. - Granting of permit.

(a) Review by Board of Supervisors. Upon receipt of the Planning Commission's recommendations, the Board of Supervisors 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 receives the recommendation of the Commission.

(b) Rules of evidence before Board of Supervisors. At the Board's consideration of the application, formal rules of evidence shall not apply and the Board may establish such additional rules as will enable the expeditious presentation of the matter and relevant information thereto. At the Board's review, the applicant shall be entitled to present any oral or documentary evidence relevant to the application, shall also hear relevant evidence presented by other interested persons and entities, the Director, other County staff, and the public, and the applicant shall have the burden of proof of establishing the facts necessary for the Board to make the required findings.

(c) Elements of Board of Supervisors' permit review. The permit may only be granted by the Board if a majority of the total membership of the Board 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 groundwater 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, or restoration project operating in accordance with statutory authorization; and will not produce other environmental damage. If the permit is to be granted, the Board 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.

(d) Limitation of groundwater extraction. 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 the demonstrated reasonable historical use or in an amount not to exceed what is required to maintain the public health, safety, and welfare of the people of Siskiyou County, whichever is less. Other conditions in the permit may include, but are not limited to, requirements for observation, monitoring wells, or both.

(e) Mitigation. Notwithstanding the foregoing elements of permit review, the Board of Supervisors may issue the permit if the Commission finds that the applicant has provided for mitigation which will offset any adverse effect that would be produced.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.306. - Reapplication after permit denial.

Reapplication for a permit which has been denied 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.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.307. - Challenge to approved permit.

(a) Any interested party or public entity may challenge the continuation of the Board 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) The permit was not issued in accordance with the procedure requirements of this chapter; or

(3) Extraction of groundwater pursuant to this permit:

(i) Causes or increases an overdraft in the basin, or

(ii) Brings about or increases salt water intrusion, or

(iii) Adversely affects the long-term ability for storage or transmission of groundwater, or

(iv) Exceeds the safe yield of the groundwater, 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.

(b) 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 (10) 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 (12) months, and also the Districts and Cities, within the County, which have boundaries overlying or immediately adjacent to the location of the permitted extraction. 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.

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

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.308. - Duration of permit.

All permits shall be valid for a term set by the Board of Supervisors, 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 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 time 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 Board after a hearing on a challenge to the permit.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Sec. 3-13.309. - Limitation of permit.

(a) 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.

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

(c) Upon the adoption of a groundwater management plan or similar plan affecting a particular groundwater basin or aquifer within Siskiyou County, as approved by the Board of Supervisors, compliance with the provisions addressing extractions authorized pursuant to that plan shall be deemed to comply with the permitting requirements of this chapter.

(d) 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.

(e) 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 Siskiyou 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.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Article 4. - Inspection

c. 3-13.401. - Inspection.

Sec. 3-13.401. - Inspection.

The Director, with good cause, may at any and all reasonable times enter any and all places, property and enclosures, for the purposes of making examinations and investigations to determine whether any provision of this chapter is violated.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Article 5. - Effective Date as to Cities

Sec. 3-13.501. - Effective date.

The provisions of this chapter shall become effective in the incorporated portions of the cities within Siskiyou County upon adoption by each city of an ordinance which makes the provisions of this chapter applicable to the incorporated area or which independently establishes an ordinance incorporating compatible provisions.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Article 6. - Violations

Sec. 3-13.601. - Civil penalty.

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 ($5,000) 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 each and every separate groundwater well with which any such violation is committed, continued, or permitted.

(§ I, Ord. 98-15, eff. August 14, 1998; § I, Ord. 01-16, eff. September 6, 2001)

Marcia Armstrong, Supervisor District 5