TO: Board of Supervisors
FROM: David Morrison, Director of Planning, Building, and Environmental Services
REPORT BY: David Morrison, Director of Planning, Building, and Environmental Services
SUBJECT: Drought Update and Request for Direction to Update the County Groundwater Ordinance and Water Availability Analysis Guidelines
RECOMMENDATION
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Director of Planning, Building and Environmental Services will provide an update on the current drought and requests the following actions to address the continuing drought emergency:
1. Direct staff to work with stakeholders to revise the Water Availability Analysis (WAA) Guidance document to: incorporate applicable provisions of the Groundwater Sustainability Plan; update the guidelines to reflect recent court decisions regarding the public trust and California Environmental Quality Act (CEQA) review of wells; suspend the water use screening criterion for parcels located on the Napa Valley floor during a drought emergency; and transfer decision making authority under the WAA from the Public Works Department to the Planning, Building, and Environmental Services Department; and
2. Direct staff to work with stakeholders to update Chapter 13.04 (Approved Water Supply Systems); Chapter 13.12 (Wells); and Chapter 13.15 (Groundwater Conservation) of the Napa County Code to: incorporate applicable provisions of the Groundwater Sustainability Plan; update the County Code to reflect recent court decisions regarding the public trust and California Environmental Quality Act (CEQA) review of wells; integrate applicable recommendations of the Groundwater Resources Advisory Committee (GRAC); and make other procedural and process revisions to bring these chapters into greater consistency with the County Code.
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EXECUTIVE SUMMARY
Water is fundamental to our health, environment, economy, community, and quality of life. It is also a scarce resource in California, where 40 million people live in a Mediterranean climate. Not surprisingly, water is the most complex and regulated natural resource in the state, with dozens of local, state, and federal agencies involved in its management.
The recent rains have slightly improved the local water situation, but the County remains in a Severe Drought, as determined by the National Drought Mitigation Center. Seasonal weather forecasts do not indicate any relief in the next several months. Without several more inches of rain, Napa would enter a third year of drought. Moreover, long-range experimental forecasts show a possible fourth year of drought extending into the winter of 2023.
Napa County has been involved in water management for over 60 years, and has initiated numerous programs to protect and improve our water supply. However, climate change is having an increasing impact on water availability, affecting individual homes, urban areas, habitat, recreation, agriculture, and businesses. If the current drought continues and/or intensifies, more efforts will need to be done to reduce significant and adverse impacts to the community.
PROCEDURAL REQUIREMENTS
1. Staff report
2. Public comment
3. Motion, second, discussion and vote on the item.
FISCAL & STRATEGIC PLAN IMPACT
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Is there a Fiscal Impact? |
No |
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County Strategic Plan pillar addressed: |
Vibrant and Sustainable Environment |
ENVIRONMENTAL IMPACT
ENVIRONMENTAL DETERMINATION: The proposed action is not a project as defined by 14 California Code of Regulations 15378 (State CEQA Guidelines) and therefore CEQA is not applicable.
BACKGROUND AND DISCUSSION
Water Supply and Demand
As summarized by the Napa County Flood Control and Water Conservation District, local total water supply and demand is fairly complex (see Attachment A). In normal years (the graphic does not reflect drought conditions or water conservation), the largest source is groundwater, providing 47% of all water used in Napa County. Surface water accounts for nearly as much, supplying 45% of total need, divided between imports from the State Water Project at 28% and local reservoirs at 17%. Recycled water makes up the remaining 8% of supply. In addition, but not shown in the attachment, water is transferred between cities within Napa County and is imported from cities outside of Napa County. Water is also trucked from cities and other sources both within and outside Napa County to local users.
Just as the sources of water are varied, so too are the uses. Homes are the single largest consumer, accounting for 41% of total water use. Agriculture is the second largest category at 39%. The remaining 20% consists of commercial uses (15%) and recreational uses (5%). Environmental uses of water (forests, grasslands, riparian areas, aquatic species, etc.) are not accounted for in the attachment.
The range of sources and supplies mix in a variety of ways. For instance, 86% of the water used by agricultural comes from wells. Another 8% comes from surface water (typically diversions from streams and rivers, or small ponds), while the remaining 4% is provided by recycled water. Rural residential uses are even more dependent on groundwater, which supplies 98% of their needs, with surface water providing the other 2%. In contrast, urban uses rely heavily on surface water for 93% of their supply (65% imported from the State Water Project and 28% from local reservoirs), with 4% coming from recycled water and 2% from groundwater.
With so many different sources and users of water, the responsibility for managing water is similarly diverse. The following is a summary to provide an example of the complexity of water regulations in California and is not an all-inclusive list. A simplified table focusing on local water programs is provided in Attachment B.
Local:
Groundwater is generally the responsibility of counties. The County administers well drilling and wastewater permits, and regulates small drinking water systems. The County also issues permits for erosion control and storm water. Where the Department of Water Resources has identified high and medium priority sub-basins (including the Napa Valley), then groundwater is managed by the Groundwater Sustainability Agency. Municipal water is provided by the four cities and town, as well as the Lake Berryessa Resort Improvement District and the Napa Berryessa Resort Improvement District. The Napa Sanitation District processes wastewater, as do several of the cities, town, and the resort improvement districts. The Napa Flood Control and Water Conservation District manages flood improvements for the lower Napa River, as well as municipal storm water permitting, and purchases from the State Water Project for cities and town.
State:
All surface water in California is governed by the Department of Water Resources, which requires a legal entitlement for diversion and use. Coastal waters are governed by the California Coastal Commission and in the Bay Area also by the San Francisco Bay Conservation and Development Commission. Riverbeds of major waterways are generally owned by the State Lands Commission. Rivers may also be subject to requirements by the Division of Boating and Waterways. Contamination of both surface and ground water is overseen by the State Water Resources Control Board. Riparian areas are subject to regulations by the Department of Fish and Wildlife. The Department of Health regulates drinking water systems.
Federal:
Federal reservoirs (such as Lake Berryessa) are regulated by the Bureau of Reclamation. Navigable waterways are regulated as waters of the United States by the US Environmental Protection Agency and the Army Corps of Engineers. Where migratory fish species are present, activities are subject to the National Oceanic and Atmospheric Administration. Floodplains are governed by Federal Emergency Management Agency.
Drought Status and Outlook
On May 10, 2021, the California Governor issued a Proclamation of a State of Emergency due to extreme drought conditions, which applied to Napa and 38 other counties. On May 11, 2021, the Napa County Executive Officer declared a Proclamation of Local Emergency in Napa County due to the 2021 drought. On June 8, 2021, the Board of Supervisors adopted a Resolution declaring a Local Emergency due to severe drought conditions, which continues to remain in effect.
On August 17, 2021, the governing Board of the Lake Berryessa Resort Improvement District declared that a water shortage emergency exists throughout the service area of the District due to severe drought conditions and directed the District Engineer to enforce the Drought Response Plan. The emergency declaration remains in effect.
The U.S. Drought Monitor (a coloration between the National Drought Center at the University of Nebraska, the National Oceanic and Atmospheric Administration, and the U.S. Department of Agriculture) has recently upgraded Napa County’s status from D4 - Exceptional Drought to Stage D2 - Severe Drought (California | U.S. Drought Monitor (unl.edu)). Severe Droughts are characterized by the following:
• Longer and more intense fire seasons;
• Low reservoir levels;
• Stressed trees;
• Increased water temperature and need for more water release for fish;
• Increased wine country tourism;
• Reduced lake and river tourism;
• Increased water efficiency management; and
• Inadequate grazing land.
The Napa State Hospital rain gauge has recorded 18.06 inches of rain since the current water year began on October 1, 2021 (Daily Summaries Station Details: NAPA STATE HOSPITAL, CA US, GHCND:USC00046074 | Climate Data Online (CDO) | National Climatic Data Center (NCDC) (noaa.gov). While the past 4 months have been an improvement over recent drier years, the total to date still represent only 66% of the average annual rainfall of 27.5 inches for this location. Other weather stations show a similar picture. The weather station at Carneros (Weather - Napa County UCCE (ucanr.edu)) shows a total of 16.7 inches of rain since September 30, 2021, which is 74% of average annual rainfall for that area. The Oakville station (Weather - Napa County UCCE (ucanr.edu)) shows a total rainfall of 19.31 inches during the same time, which is 54% of average annual rainfall for that area. Generally, we need several inches more of rain in the next few months to avoid having another dry year. However, it is uncertain that we will see much rainfall this spring.
The National Weather Service (NWS) provides a 3-month outlook, updated each month (Climate Prediction Center (noaa.gov)). As of January 20, 2022, the NWS predicts that the drier La Nina weather pattern will continue drought conditions through April 30.
The NWS also provides Experimental Unofficial Long=Lead Forecasts, with Two-Class Probabilities (Climate Prediction Center - Official Long-Lead Forecasts (noaa.gov)). As of January 20, 2022, the model shows that Napa County is predicted to receive average or below-average rainfall through August 2022, with significantly below average rainfall occurring from September 2022 through April 2023. The model also shows significantly above average temperatures from May 2022 through April 2023.
The National Interagency Fire Center is a joint venture of the US Forest Service, Bureau of Land Management, National Forest Service and CalFire to provide fire weather support and forecasts. The seasonal update for December 30, 2021 (2022_January_CA.xlsx (nifc.gov)), shows Napa County as having normal rainfall from January through March of 2022, with drier than normal conditions beginning in April. As a result, they predict a normal potential for fire through April 2022.
The Sierra snowpack is at 100% of normal for January 31, 2022 (Snow Pack Conditions - Snow Water Content Chart (ca.gov). However, current conditions are only 60% of the levels normal for April 1. So if there is no additional snow in the next months, we will be substantially below normal for the year.
State reservoirs vary, but generally are below normal for January 31, 2022 (MAJOR WATER SUPPLY RESERVOIRS (ca.gov). Shasta Lake, the largest water supplier, is at 55% of the historical average. Oroville, the second largest, is at 80%. For the other three large reservoirs, Trinity Lake is at 49%; New Melones Lake is at 71%; and San Luis Reservoir is at 59%. Collectively, these five reservoirs represent about 65% of the storage capacity in the State water system. Overall, including Federal reservoirs and natural lakes, California is at 72% of normal water supply storage.
On December 1, 2021, the Department of Water Resources (DWR) issued a Notice to State years coupled with the elevated risk of continuing drought conditions, DWR) will be allocating the initial 2022 SWP available supplies to ensure that long-term water supply contractors can meet their outstanding minimum human health and safety demands for water. Health and safety needs are defined as not more than 55 gallons of water per capita per day (gpcd), consistent with the recent State Water Resources Control Board (SWRCB) emergency curtailment regulations. SWP water will be allocated based on the unmet needs of contractors; if there are available alternate water supplies, then those supplies shall be used before SWP water is allocated.
On January 20, 2022, the Department of Water Resources (DWR) issued a Notice to State Water Contractors indicating that the State Water Project will increase the delivery for most contractors from 0% to 15%. Because the local contractor (Napa County Flood Control and Water Conservation District) is located north of the Delta, it will receive 25%
As of January 31, 2022, local reservoirs are in much better shape than the State reservoirs:
• Hennessey - 88% total capacity
• Milliken - 100% total capacity
• Kimball - 97% total capacity
• Bell Canyon - 97% capacity
• Rector - 100% total capacity
The Napa County Groundwater Sustainability Agency (GSA) Annual Report for 2021 is expected to be presented to the GSA on March 22, 2022. The data and information is still being analyzed and evaluated. Preliminarily, it appears that total estimated groundwater storage decreased approximately 35,000 acre-feet between 2019 and 2021, or about 16%. Early data also indicates that 32% of the 100 wells in the Napa Valley sub-basin monitoring network were at their lowest recorded groundwater levels in 2020.
The County does not have a comprehensive count of the total number of existing water wells. Well regulation has only been required for the past 50 years. For more than a century before, people dug and constructed wells without any County review or approval. Staff has made a very general estimate of over 15,000 wells in the unincorporated area, based on land use, aerial photos, and Assessor data. Using the same technique, staff has a general estimate of 3,500 wells within the Napa Valley sub-basin administered by the GSA.
The number of well permits was much higher in 2021 than it was in 2021. For 2021, Napa County saw a decrease in the total number of water wells. There were 102 new wells permitted, but 159 wells were destroyed, for a net loss of 57. Attachment C provides a map showing the 150 parcels where well permits were issued in both 2020 and 2021. As the map shows, there does not appear to be a concentration or pattern of well permitting, with sites located throughout the County. Of the 150 parcels, 23% are located within the Napa Valley sub-basin, under GSA management, with 77% within the remainder of the unincorporated area.
Current County Actions
The following is a brief overview of some of the various water programs that Napa County is currently engaged in to manage and protect water supplies.
Groundwater Sustainability Plan
The Sustainable Groundwater Management Act (SGMA) enacted in 2014, established a new statewide framework for groundwater sustainability. SGMA requires the implementation of sustainable groundwater management for groundwater basins or sub-basins designated by the Department of Water Resources (DWR) as medium priority or high priority. For medium and high priority basins, SGMA requires that one or more local agencies form groundwater sustainability agencies (GSAs) and that those GSAs adopt groundwater sustainability plans (GSPs) by January 31, 2022.
The Napa Valley sub-basin was re-designated as a high priority basin in 2019, due to revised population estimates, the number of wells, and water quality. As a result, in December of 2019, Napa County formed a GSA and in February of 2020, notified DWR of its intent to prepare a GSA. The GSP was adopted in January 2022 and was submitted to DWR later that same month.
The GSP has a 50-year planning horizon with the goal of establishing sustainability within 20 years. The plan established sustainable management criteria for six key indicators, defining specific metrics for each indicator indicating the potential for undesirable impacts and a range of actions to reduce the potential impact. The GSP also adopted thresholds for each of the indicators determining when an undesirable effect has occurred.
Drought and Water Shortage Task Force
This is a new State mandate, which was required in 2021 by Senate Bill 552 (Hertzberg), as codified in California Water Code Section 10609.50 et al. All counties in California are required to establish a standing Drought and Water Shortage Task Force by January 1, 2022. The purpose of the Task Force is to develop a plan that provides interim and long-term solutions for state small water systems and domestic wells affected by drought and water shortage throughout the unincorporated area. The plan may be a stand-alone document or may be included as an element in an existing county plan. The plan shall consider, at a minimum, all of the following:
• Consolidations for existing water systems and domestic wells;
• Domestic well drinking water mitigation programs;
• Provision of emergency and interim drinking water solutions;
• An analysis of the steps necessary to implement the plan; and
• An analysis of local, state, and federal funding sources available to implement the
plan.
On December 13, 2021, the Board of Supervisors created the Drought and Water Shortage Task Force, to include the members of the Watershed Information and Conservation Council (WICC), as well as additional appointees as required under the legislation. In developing this new plan, staff will be looking to the recommendations prepared by the DWR in March of 2021 (Part 1 - Recommendations for Drought and Water Shortage Contingency Plans (ca.gov).
Drought Contingency Plan
The Napa Valley Drought Contingency Plan (DCP) is a voluntary planning effort focused on improving long-term water supply reliability for local water supply agencies. The current DCP was prepared by a collaboration of Napa County; Napa Sanitation District; the Cities of Calistoga, St. Helena, Napa, and American Canyon; and the Town of Yountville.
The DCP was developed as part of the U.S. Bureau of Reclamation’s drought response program which aims to help local water supply agencies better understand and prepare for droughts and mitigate drought impacts. Completion of the DCP provides the opportunity for agencies to competitively compete for future implementation funding for drought resiliency projects described in the DCP.
Joint Surface Water Monitoring Study
In 2019, the City and County of Napa entered into an agreement to study surface water quality within the municipal watersheds of the reservoirs that provide the City with the majority of its drinking water. The study is intended to provide detailed and comprehensive data that can be used by both jurisdictions to improve reservoir and land use management and better protect the public water supply.
The Study calls for collecting water quality samples from 20 locations along streams that flow into Milliken and Hennessey reservoirs. Samples are collected during storm events throughout the winter months and analyzed for nearly 30 different constituents. The 2019 agreement commits the City and County to each spend up to $200,000 annually over three years to conduct this Study, for a total cost of $1.2 million. The agreement is currently set to expire in July of 2022.
Samples have been collected over the past three years. The last three years have been very dry and there have been infrequent storms where measurements could be collected, so there are limited data. Last year, there was insufficient flow at half of the monitoring sites for Hennessey Reservoir tributaries to take samples. However, the storms in the last three months of 2021 were very good in terms of begin able to take samples at most of the monitoring locations. The data from those sites is still being analyzed.
As was noted when the City and County entered into the agreement, it will take 5 to 10 years of data to identify any significant issues and/or trends. It takes multiple data points during both high and low runoff conditions to be able to determine what erosion is occurring naturally compared to erosion caused by land use. At this preliminary stage, there are sites in the upper reaches of the watershed that are being more closely monitored, but nothing significant to date has been noted where streams enter the reservoirs.
Local Enforcement of State Water Conservation Order
On January 4, 2022, the State Water Resources Control Board (SWRCB) adopted an emergency regulation to prohibit wasteful water use practices statewide. The regulation went into effect on January 18, 2022 (Water Conservation Portal - Emergency Conservation Regulation | California State Water Resources Control Board). Wasteful water use practices include:
• Applying potable water to outdoor landscapes such that incidental runoff flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures;
• Washing a motor vehicle with a hose that does not have a shut-off nozzle or similar device;
• Using potable water for washing sidewalks, driveways, buildings, structures, patios, parking lots, or other hard surfaced areas, except where health and safety are at risk;
• Using potable water for street cleaning or construction site preparation purposes, unless no other method can be used or as needed to protect the health and safety of the public;
• Using potable water for decorative fountains, lakes or ponds, except for those features that use pumps to recirculate water and only require refilling to replace evaporative losses;
• Watering turf and ornamental landscapes during and within 48 hours after measurable rainfall of at least one fourth of one inch of rain; and
• Using potable water for the irrigation of ornamental turf on public street medians.
In addition to being enforceable by the SWRCB, any local agency, City, or County that has authority to enforce infractions may enforce these prohibitions at their discretion. The regulation allows local government/agencies to enforce, but does not direct how they use their enforcement resources. The regulation does not make water waste infractions a priority over other infractions, nor does it require any specific action. Enforcement may include warning letters, mandatory water use audits (for large commercial or institutional properties), and fines (up to $500 per day).
Enforcing jurisdictions are encouraged to provide one or more warnings, to consider peoples’ ability to pay, to consider payment plans of at least 12 months without a tax lien, and to not cause peoples’ water service to be shut off for nonpayment. The SWRCB also encourages agencies to provide assistance to disadvantaged communities, including translation of water conservation announcements into various languages.
Water Availability Analysis Guidelines
The purpose of the Water Availability Analysis (WAA), is to provide guidance and a procedure to assist county staff, decision makers, applicants, neighbors, and other interested parties to determine whether a project would substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (Attachment-D---Water-Availability-Analysis-Guidelines-5-12-15-PDF (countyofnapa.org). The WAA is not an ordinance, is not prescriptive, and project specific conditions may require more, less, or different analysis in order to meet the requirements of the California Environmental Quality Act (CEQA). However, the WAA is used procedurally as the baseline of analysis for any given discretionary project.
A Water Availability Analysis is administered by the County Public Works Department and is required for any discretionary project that would use groundwater or would increase the existing use of groundwater of any parcel through an existing, improved, or new water supply system. It is most commonly used for discretionary development applications using groundwater, such as wineries and commercial uses. A WAA is not generally required for non-discretionary (“ministerial”) projects, such as building permits, single family homes, track II vineyard replants, except where a discretionary Groundwater Permit is required by the County Groundwater Conservation Ordinance when projects are located in the Milliken-Sarco-Tulocay (MST) area.
The WAA is structured around three tiers of analysis. Tier 1 is the lowest level of review and is used to evaluate potential impacts to groundwater levels. Projects on the Napa Valley floor qualify where they can demonstrate that they will use no more than 1 acre-foot of water for every acre within the parcel where the project is located. Projects in the MST area qualify if they can show water use of 0.3 acre-feet per acre, or no net increase over existing conditions, whichever is less. Projects outside the Valley floor and MST area can qualify for Tier 1 if they can show that water use would be less than the amount of estimated recharge for that specific parcel.
Tier 2 analysis is used to evaluate potential impacts to nearby water sources. It is required when proposed well use is located within 500 feet of a well on a neighboring property or within 1,500 feet of a spring.
Tier 3 analysis is used to evaluate potential impacts to surface water levels in nearby streams or watercourses. It is required based on a number of criteria, including the distance from the waterway, aquifer hydraulic conductivity, surface seal depth of the well, depth of uppermost well perforations, and pumping rate.
Groundwater Resources Advisory Committee (GRAC)
In 2009 Napa County began a comprehensive study of its groundwater resources to meet identified action items in the County’s 2008 General Plan update. The study emphasized developing a sound understanding of groundwater conditions and implementing an expanded groundwater monitoring and data management program as a foundation for integrated water resources planning and dissemination of water resources information.
Following public workshops and with support by the Watershed Information Center and Conservancy (WICC), the Board of Supervisors created the GRAC in June 2011.
The GRAC made several recommendations (Item-9b-Final-Update-on-the-Conclusions-and-Recommendations-of-the-Groundwater-Advisroy-Committee-PDF (countyofnapa.org). They emphasized the need for public education and outreach to further water conservation. Revisions were recommended to the Water Availability Analysis Guidelines, regarding Tier 1 and 2 evaluations. It was recommended that the groundwater monitoring network be expanded and a groundwater monitoring plan be adopted to further knowledge about the aquifer and how it is affected by new well development and use. Finally, the GRAC recommended changes be made to improve the County Groundwater Ordinance.
Recent Court Cases
Two court cases in the past three years have affected groundwater regulation by California counties. First, in the case of “Protecting our Water and Environmental Resources v. County of Stanislaus,” the Fifth Appellate Court ruled on August 27, 2020, that Stanislaus County’s well permit ordinances requires the use of judgment in their implementation. When that discretion is exercised, well permits cannot be considered as ministerial and exempt from the California Environmental Quality Act (CEQA). In particular, the Court cited standards referenced in the ordinances that the agency must evaluate the site conditions and increase or decrease minimum setbacks from contamination sources based on those circumstances. The Court recognized that analyzing each individual permit may reveal that many of the projects can be classified as ministerial individually, but this must be done on a case-by-case basis, and not by permit category.
Second, the Third Appellate District published its opinion on August 29, 2018, in Environmental Law Foundation v. State Water Resources Control Board (“ELF”), a case involving a challenge to Siskiyou County’s (“County”) issuance of well permits in the vicinity of the Scott River, a navigable waterway. The decision ruled that the public trust doctrine applies to the extraction of groundwater if the extraction will adversely impact a navigable waterway. The court also determined that the 2014 Sustainable Groundwater Management Act (SGMA) did not satisfy the County’s responsibility under common law to consider public trust interests before allowing groundwater extractions that could potentially harm a navigable waterway.
Staff recommends that the Board of Supervisors take the following actions:
1. Direct staff to work with stakeholders to revise the Water Availability Analysis (WAA) Guidance document to: incorporate applicable provisions of the Groundwater Sustainability Plan; update the guidelines to reflect recent court decisions regarding the public trust and California Environmental Quality Act (CEQA) review of wells; suspend the Tier I water use screening criterion during a drought emergency and require Tier II analysis for groundwater use on parcels located on the Napa Valley floor; and transfer decision making authority under the WAA from the Public Works Department to the Planning, Building, and Environmental Services Department.
2. Direct staff to work with stakeholder to update Chapter 13.04 (Approved Water Supply Systems); Chapter 13.12 (Wells); and Chapter 13.15 (Groundwater Conservation) of the Napa County Code to: incorporate applicable provisions of the Groundwater Sustainability Plan; update the County Code to reflect recent court decisions regarding the public trust and California Environmental Quality Act (CEQA) review of wells; integrate applicable recommendations of the Groundwater Resources Advisory Committee (GRAC); and make other procedural and process revisions to bring these chapters into greater consistency with the County Code.