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HomeMy WebLinkAboutKERN COUNTY PARTICPATION 10/6/16. *-J;A KERN RIVER GSA October 6, 2016 Kern County Administrative Office 1115 Truxtun Avenue, 5th Floor Bakersfield, CA 93301 Attention: Mr. Alan Christensen Chief Deputy Administrative Officer RECEIVE AND PLACE ON f{lE AT �ET�NS� L/Ib Rodney J. Pallo, Chair Harold Hanson Gene Lundquist Re: Kern River Groundwater 5ustainability Agency Participation MOU Your Letter Dated August 23, 2016 Dear Mr. Christensen: We have your letter of August 23, 2016 wherein the County of Kern expresses its preference to participate in the Kern River Groundwater 5ustainability Agency ( KRGSA) as a non - voting "additional agency" rather than a voting member. in light of this determination, we are prepared to provide the nine assurances listed in our letter of August 4, 2016 by "...amendment to the MOIL or by separate agreement with the County ". We have chosen to provide these assurances separately and attach a copy of the Participation MOU for your review. When you are able to do so, please provide a description of those lands under the jurisdiction of the County which you wish to include within the KRGSA boundaries. If a meeting on this subject would be helpful, let us know and that will be arranged. Please be aware that, although we are in agreement on most issues, the assurances promised in our letter of August 4, 2016 do not mirror the demands included in your letter of August 23, 2016. More particularly, the following differences remain: Mr. Alan Christensen Kem County Administrative Office October 6, 2016 Page 2 of 5 1. Participation: We are providing full access to all non-12rivileged documents and drafts, as well as all open meetings related to the same. We expect and encourage the County to be actively engaged as a meaningful participant in every phase of GSA and GSP development and implementation, but not necessarily enforcement. 2. General Plan: a. You state: "The County General Plan will use the technical information from the KRGSA in preparation of an environmental document and plan supplemented by other professional technical sources." We accept the representation but see no need to include it in the Participation MOU. b. You state: "The County will implement the adopted GSP when reviewing and considering approval of a specific project, subject to the County General Plan policies, Zoning Ordinance, and the California Environmental Quality Act." We accept the representation but see no need to include it in the Participation MOU. C. You state: "The KRGSA will provide the County with at least 90 days written notice of the filing of any validation lawsuit related to the GSP. The County will review the General Plan for the Kern County sub -basin and resolve any inconsistencies within 180 days after the California Department of Water Resources has approved the GSP or prior to the expiration of the 90 -day notice period, whichever occurs first." At the present time the KRGSA has no plan to validate its GSP (i.e., validation would seem superfluous since the GSP of the KRGSA will not constitute the basin -wide solution required by SGMA). If circumstances dictate a need for validation down the road, we would prefer to follow statutory guidelines for initiating and prosecuting the same. In the meantime, we see no reason why inconsistencies between the General Plan and the GSP cannot be identified and resolved during the development phase of the GSP and, therefore, prior to its submission to DWR. d. You state: "The KRGSA will participate and coordinate on the County General Plan and Metro Update while developing the GSP." Our intention is to strictly limit the activities of the KRGSA to fulfillment of its SGMA obligations. Individual entities, including KRGSA members, may wish to "participate and coordinate on the County General Plan" as their interests may appear, but the KRGSA will not. On the other hand, we fully expect the County, during development and implementation of the GSP, as part of its meaningful participation, to bring to the attention of the KRGSA any and all issues of concern regarding potential areas of disagreement between the proposed GSP and the General Plan. Notwithstanding the foregoing, the KRGSA will fully Mr. Alan Christensen Kern County Administrative Office October 6, 2016 Page 3 of 5 comply with the requirements of Water Code §§ 10726.9 [GSP must take into account General Plan assumptions], 10727.2(g) [GSP will describe consideration given to General Plan and assessment of how GSP may affect the same], and 10727.4(k) [GSP must include processes to review land use plans and coordinate with land use planning agencies to assess activities that potentially create risks to groundwater quality or quantity]. 3. Police Powers Land Use Authority/Water Transfers: We have included language in the Participation MOU that preserves the County's police powers and land use authority, whatever they may be. We have included language in the Participation MOU to the effect that the KRGSA shall not restrict the use of water within its boundaries to a specific use. We see no need to duplicate these assurances by including them in either the Bylaws or the GSP. Also, we do not accept the County's position that "...a GSA's prohibition or restriction of groundwater transfers outside of that GSA's area limits and interferes with the County's police powers to regulate groundwater." 4. White Lands: a. You express confusion over our offer to manage "white lands" included within the boundaries of the KRGSA, noting that no such lands are currently included. You are correct that the KRGSA intentionally carved out all of the "white lands" from its boundaries. This was done to avoid an overlap with the County. Now, with the County joining the KRGSA as an additional entity, it may request inclusion of some white lands within the boundaries of the KRGSA and we are amenable to considering such request. The offer to manage white lands refers to those white lands, if any, that may be included within the KRGSA pursuant to such request. b. You state: "...the County requests that the KRGSA undertake to manage portions of the white lands that are within a reasonable proximity to the KRGSA at the County's request. This may require the KRGSA boundaries to be amended to include those agreed upon areas." As stated above, we are amenable to such request and are willing to adjust the KRGSA boundaries when and if white lands are proposed for inclusion by the County and such inclusion has been accepted by the KRGSA. 5. Well Permits: a. In the Participation MOU we have provided that well permitting is under the County's jurisdiction and should remain so. We have also provided that the KRGSA will not transform the well- permitting process from ❑ ministerial function (which does not trigger CEQA) to a discretionary function (which Mr. Alan Christensen Kern County Administrative Office October 6, 2016 Page 4 of 5 triggers CEQA) without prior consultation with the County. Finally, we have provided, if the GSP or the KRGSA shall cause CEQA to be triggered with respect to well permitting, the County may look to the KRGSA for contribution and indemnification with respect to CEQA compliance and challenges. This is a far as we are willing to go. b. You state: "...in the event the GSP or any action undertaken by the KRGSA or any SGMA provision does transform the well - permitting process from a ministerial function to a discretionary function, the County shall look to the KRGSA for contribution and indemnification in the event of CEQA compliance costs and litigation." As stated above, we are willing to accept the consequences of our own actions and those flowing from our duly adopted GSP but you must look to legislature for relief from consequences attributable to SGMA provisions. 6. Indemnification: We have included language in the Participation MOU to .the effect that, if the County is asked by the KRGSA to use its police powers for a specific purpose for the KRGSA, then the KRGSA would indemnify the County. We have stated that that indemnification should be considered on a case by case basis. You have eliminated reference to ❑ "case by case basis" and have added the obligation to not only indemnify but also "defend" the County. These changes seem unduly burdensome and are rejected. 7. JPA v. MOU: We have opined that development and implementation of our GSP does not require formation of a JPA but that a JPA would be formed if it proves to be legally required. You agree "...provided the KCWA is deemed to be exercising its authority to manage the white lands." If the County chooses to add white lands to the KRGSA, and requests that the KRGSA manage those t (ands for SGMA purposes, it may be appropriate for the KCWA to exercise some authority in this regard. However, we see no need to anticipate the event and, in effect, will cross that bridge when we come to it. B. Oil & Gas: We have provided in the Participation MOU that the KRGSA will cooperate with the County, the oil and gas industry, and the State Department of Water Resources to preserve and protect available water supplies. You accept this assurance provided that the promise to "cooperate" includes "...the KRGSA's promise to work with the County, the oil and gas industry, and the State Department of Water Resources to ensure that produced water ... is not subject to ... [SGMA] ... and is not subject to mandated numeric targets." While we may be sympathetic to the cause, we cannot provide the type of commitment you request. First, ❑ promise to "work with" the County and others in order "to ensure" a particular outcome is too open -ended and could embroil the KRGSA in protracted litigation. Second, as stated earlier, we intend to limit Mr. Alan Christensen Kern County Administrative Office October 6, 2016 Page 5 of 5 the activities of the KRGSA to fulfillment of its SGMA obligations and, quite frankly, becoming an advocate for the oil and gas industry does not appear to be consistent with that goal. 9. Conflict Waiver: You require that "...all objections to the law firm of Best, Best & Krieger representing the County are waived in writing by the KCWA." That is a matter between the County, the KCWA and the subject low firm. It is ❑ matter in which the KRGSA has no interest and as to which we take no position. If you have any questions or comments regarding the foregoing, please do not hesitate to contact us. In the meantime, we look forward to receipt of a signed Participation MOU. Thank you for your anticipated cooperation and prompt attention to this matter. Very truly yours, KERN RIVER GROUNWATER SUSTAINABILITY AGENCY By: RODNEY PALLA, Chairman cc: Kern Delta Water District Kern County Water Agency Improvement District No. 4 City of Bakersfield Members of the Kern County Board of Supervisors John Nilon, County Administrator Theresa A. Goldner, County Counsel MEMORANDUM OF UNDERSTANDING RE PARTICIPATION IN KERN RIVER GROUNDWATER SUSTAINABILITY AGENCY THIS MEMORANDUM OF UNDERSTANDING is made as of (Effective Date) by and among the County of Kern (County) and the Kern River Groundwater Sustainability Agency (KRGSA), collectively the "Parties ", each of whom agree as follows: RECITALS A. On or about March 30, 2016 certain entities entered into Agreement 16-048 entitled "Memorandum of Understanding Forming the Kern River Groundwater Sustainability Agency" (MOU). B. On or about April 12, 2016 the KRGSA filed a notice of determination to become a GSA with the Department of Water Resources (DWR), which notice was posted by DWR on April 21, 2016. C. On or about July 20, 2016 the County filed a notice of determination to become a GSA which created an overlap with the KRGSA causing both notices to be suspended pending resolution of the overlap. D. The Parties now desire to resolve the overlap by (1) having the County withdraw its notice of determination to become a GSA with respect to lands within the boundaries of the proposed KRGSA and (ii) having the County join the KRGSA as a non - voting "additional entity", all upon the terms and conditions hereinafter stated. TI -4 i 161X1 0 bill TL 1. County agrees to withdraw its notice of determination to become a GSA with respect to lands within the boundaries of the proposed KRGSA. 2. County has jurisdiction over certain lands within the Kern County Sub -basin which the County may wish to designate for inclusion within the boundaries of the KRGSA. The KRGSA will consider inclusion within the boundaries of the KRGSA of the lands designated by the County and, if included, such lands shall be subject to the MOU, the KRGSA Bylaws, and any rules or regulations of the KRGSA heretofore or hereafter adopted or amended. 3. County hereby commits to participate in the KRGSA as a non - voting "additional entity". County participation as a non - voting "additional entity" is conditioned on the following assurances provided by the KRGSA: a. Indemnification: If the County is asked by the KRGSA to use the County's police powers for a specific purpose for the KRGSA, then the KRGSA would indemnify the County. Indemnification would be on a case by case basis. b. Land Use Powers: The KRGSA and its participants agree, and the GSP will provide, that nothing in the GSP or any actions taken by the KRGSA, shall modify, limit or preempt the County's police powers, including its land use authority. On the other hand, the County does not intend to designate or zone a specific project with an expectation that the KRGSA will provide more water allotment than that which is determined by the GSP allotment and policies. C. White Lands: The KRGSA will manage "white lands" included within its boundaries if requested to do so by the County. d. Well Permits: Well permitting is under the County's jurisdiction and should remain so. The KRGSA will not transform the well - permitting process from a ministerial function twhich does not trigger CEOAj to a discretionary function (which triggers CEOA) without prior consultation with the County. If the GSP or the KRGSA shall cause CEDA to be triggered with respect to well permitting, the County may look to the KRGSA for contribution and indemnification with respect to CEQA compliance and challenges. e. Water Transfers: Water transfers within the basin are essential to economic stability and future development opportunities. The KRGSA will consider this position when assessing its water transfer policy in the GSP. Further, the KRGSA does not intend to restrict use of water within its boundaries to a specific use. f. Unincorporated Communities: The needs and water resources of unincorporated communities will be considered and addressed in the GSP. g. JPA v. MO U: It is understood that the development and implementation of the GSP does not require the joint exercise of powers among the Parties and, therefore, formation of a JPA is unnecessary. The Parties will form a JPA if and to the extent legally mandated. h. Participation: The KRGSA will ensure that all additional agencies (including the County) will have a continuous opportunity to participate in the preparation, review, and adoption of the GSP. The term "participate" in this context means access to all non - privileged drafts, reports, technical information, and other materials and communications, and an ability to be actively engaged in all open meetings related to the preparation, review, and adoption of the GSP. "Actively engaged" means as a signatory to the MOU (i.e., an "additional agency") and more than as a member of the general public. i. Oil & Gas: The KRGSA will cooperate with the County, the oil and gas industry, and the State Department of Water Resources to preserve and protect available water supplies. Additionally, the GSP may incorporate current adopted mitigation measures found in the Oil and Gas Environmental Impact Report approved by the Board of Supervisors as a means to address best management practices and related GSA oil and gas concerns. APPROVED AS TO CONTENT: APPROVED AS TO CONTENT: COUNTY OF KERN KERN RIVER GROUNDWATER SUSTAINABILITY AGENCY By: By: MICK GLEASON, Board Chair RODNEY PALLA, Board Chair DATE: DATE: