Stringent Well Permitting Requirements Continued With New Exemption
On February 13, 2023, Governor Newsom issued Executive Order N-3-23, which orders that Executive Order N-7-22 continue to be in full force and effect with certain modifications. Executive Order N-7-22 imposed new requirements on the construction or alteration of water wells. AB 2201 followed on the heels of N-7-22 in 2022 to codify N-7-22’s well permitting requirements. However, AB 2201 did not pass, which makes the Governor’s continuance of Executive Order N-7-22 vital to the continuance of these well permitting requirements while lawmakers discuss bringing forward new legislation addressing well permitting in this year’s legislative session.
Executive Order N-7-22 prohibits counties, cities, and other public agencies from approving permits for either the construction of new groundwater wells or the alteration of existing wells that are within a Sustainable Groundwater Management Act-regulated medium or high-priority groundwater basin unless (1) the Groundwater Sustainability Agency managing the basin verifies in writing that the proposed groundwater extractions: (i) would be consistent with any applicable Groundwater Sustainability Plan, and (ii) would not decrease the likelihood of achieving a sustainability goal for the basin; and (2) the well-permitting agency determines that extraction of groundwater from the proposed or modified well is not likely to (a) interfere with the production and functioning of existing nearby wells, and (b) cause subsidence that would adversely impact or damage nearby infrastructure.
Recognizing the hydrological extremes of the last few years and the need to continue water conservation measures, the Governor declared that his earlier State of Emergency Proclamations and Executive Orders N-10-21 and N-7-22 remain in full force and effect except for the amendments provided by N-3-23. Executive Order N-3-23 modifies Section 9 of N-7-22 to add an additional exemption to the well permitting requirements. Originally, Section 9 exempted: (i) wells producing less than 2 acre-feet per year for individual domestic users; or (ii) wells that would exclusively provide groundwater to public water supply systems. N-3-23 also exempts wells that that are replacing existing, currently permitted wells with new wells that will produce an equivalent quantity of water as the well being replaced when the existing well is being replaced because it has been acquired by eminent domain or acquired while under threat of condemnation.
Our natural resources team is available to help navigate the well permitting process, as well as water sourcing, water permitting, water supply assessments, obtaining water rights, and other water-related issues. If you have any questions about the Executive Order N-3-23 or N-7-22 or would like further information on our water-related services, please feel free to reach out to us.
