Department of Water Resources Deemed Immune from Sacramento County Well Ordinance Requiring Permits for Geotechnical Drilling

December 17th, 2021

By: Dustin Peterson



In the Department of Water Resources Cases (2021) 69 Cal.App.5th 265, the Third District Court of Appeal, in a partially published opinion, found that the Legislature did not expressly waive the Department of Water Resources’ (DWR’s) sovereign immunity with respect to geotechnical drilling and boring when the Legislature enacted a statute requiring each county to adopt well protection ordinances that meet or exceed DWR’s standards.

Between 2008 and 2009, as part of an effort to improve statewide water supply reliability and restore the ecosystem and native fish populations of the Sacramento-San Joaquin Delta (Delta), DWR filed more than 150 separate petitions in superior court seeking entry onto privately owned properties in five counties—including the County of Sacramento (County). Specifically, DWR sought entry to conduct environmental and geologic studies involving drilling deep holes or borings to determine subsoil conditions.

In 2009, the superior court granted DWR’s request to coordinate the petitions seeking entry into a single proceeding, and, in 2010, DWR published a mitigated negative declaration and initial study (IS/MND) detailing their plans to conduct geotechnical borings, cone penetration tests and dig small test pits to investigate soils in the Delta between 2010 and 2012. The IS/MND also provided for temporary test wells to be installed to test soil permeability with the potential of being completed as groundwater monitoring wells.

In 2011, the trial court denied DWR’s petition as it related to the proposed geological activities, and the denial was affirmed in the Third District Court of Appeal, then reversed by the Supreme Court in 2016. In 2017, the trial court authorized DWR to enter certain properties in the County to conduct limited geological and drilling activities. In 2019, the County became aware that DWR was about to begin geotechnical exploration and issued a stop work order. DWR subsequently published an addendum to the IS/MND anticipating 19 land explorations on parcels where access was obtained via the entry order. 

The County immediately filed a complaint seeking damages and injunctive relief against DWR, alleging DWR violated the County’s well-drilling ordinance by failing to obtain required drilling permits from the County. The temporary restraining order was denied and both parties filed cross-motions for summary judgment. DWR asserted that the sites were for testing soil conditions and no water was to be extracted or injected into any soil boring or cone penetration testing site. The County asserted that the IS/MND contradicted DWR’s stance, and that the Legislature, by incorporating the water well drilling standards established by DWR bulletin No. 74-81 (Bulletin No. 74-81) into section 13801(c) of chapter 10, division 7 of the Water Code (Chapter 10) by reference, expanded the scope of “wells” to include “test holes” and “exploration” holes. The trial court granted DWR’s motion, concluding that, even though DWR’s IS/MND contemplated installing temporary wells and converting them to groundwater test sites, the order only allowed for geological activities, and there was no evidence that DWR intended to exceed the provisions of the entry order and expressly attested it would not do so. This appeal followed.

Mootness

DWR argued that the County’s appeal should be dismissed as moot because DWR had already completed geotechnical drilling on the affected parcels and the County sought relief based solely on the violation of its well-drilling ordinance. The County argued that a discretionary exception to the rules regarding mootness should apply because the appeal presents issues of broad public interest that are likely to recur and there will be a recurrence of the controversy between the parties. In support of its position, the County requested the Court to take judicial notice of a CEQA notice of preparation and a mitigated negative declaration adopted in 2020, in which DWR detailed its plans to continue drilling as a part of the project. The Court took judicial notice of these documents and concluded that DWR’s geotechnical drilling and need for permits was likely to recur, either between DWR and the County or between DWR and other counties. Therefore, the Court elected to consider the County’s claims on appeal.

Sovereign Immunity and Bulletin No. 74-81

The County challenged the trial court’s ruling that DWR was not required to obtain permits before conducting geotechnical exploration activities. While the parties agreed that Chapter 10 waives sovereign immunity, they disagreed as to the scope of that waiver. The County argued that the Legislature expressly waived DWR’s immunity as to activities subject to Bulletin No. 74-81 when the Legislature enacted a statute requiring each county to adopt water well, cathodic protection well, and well drilling and abandonment ordinances that meet or exceed the standards in the bulletin. The County also argued that it adopted a well protection ordinance pursuant to Bulletin No. 74-81 and Chapter 10 that applied to “exploration” holes and “test holes,” and required the state to obtain a permit before digging, boring, or drilling a well, which was defined to include exploratory borings.

DWR argued that Chapter 10 is limited in scope because it only addresses the state’s interest in the protection of underground water by establishing regulations for the construction, maintenance, abandonment, and destruction of water wells. Additionally, DWR argued that Chapter 10’s waiver of immunity extends only to the activities expressly defined in that chapter. DWR also noted that it issued a subsequent bulletin, No. 74-90 (Bulletin 74-90) in 1991, supplementing Bulletin 74-81 to exclude the definition for “test hole” and revised the definition of “exploration” hole to not include excavations for the purpose of determining existing geologic conditions. 

The Court ultimately sided with DWR. The Court noted that, essentially, the County sought a decision establishing that Bulletin No. 74-81 is incorporated into state law, while subsequent authorized amendments and supplements to the bulletin should not be. The Court rejected this approach, and found that, unlike other statutes that expressly state that conformance with other procedures or standards is required, the Legislature did not expressly incorporate the bulletin’s definitions into the scope of the statutory definitions in Chapter 10.  Instead, Chapter 10 expressly provides definitions “as used in this chapter” with no suggestion that the definitions in the bulletin would supersede those found within the chapter itself.  Further, unlike other laws that directly incorporate certain federal standards, Chapter 10 requires local authorities to adopt their own standards that meet or exceed those prescribed by DWR’s bulletin. The Court supported this conclusion by reference to California Groundwater Assn. v. Semitropic Water Storage Dist. (2009) 178 Cal.App.4th 1460, which concluded that the Legislature did not incorporate Bulletin No. 74-81 as state law, and that the bulletin standards were intended to provide a flexible baseline for local ordinances. Accordingly, the Court rejected the County’s argument that Bulletin 74-81 expanded the scope of Chapter 10, and upheld the trial court’s conclusion that DWR was immune from the County’s ordinance. 

Key Point  

The scope of the Legislature’s waiver of the state’s immunity extends only to activities expressly defined by statute.




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