A public hearing on the draft ordinance will be conducted by the MPWMD Board of Directors on August 21, 2000, at 7:00 PM in the Monterey City Council Chambers. Please refer to the August 21, 2000, Board meeting agenda.

DRAFTB3

ORDINANCE NO. 96

AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT

REVISING THE DEFINITION AND REGULATION

OF WATER DISTRIBUTION SYSTEMS

FINDINGS

1. The Water Management District is charged under the Monterey Peninsula Water Management District Law with the integrated management of the ground and surface water resources in the Monterey Peninsula area.

2. The Water Management District is authorized to establish a written permit system for regulation of water distribution systems, regardless of the number of connections served or the source of the water supply.

3. The board of directors finds that regulating all water distribution systems, including mobile water distribution systems, is necessary to protect District water resources and to assure that sufficient water will be available for present and future beneficial use by all District inhabitants and lands.

4. The Water Management District has enacted, by ordinance, a set of Rules and Regulations to implement its statutory authority. District Rule 11 defines the terms AWater Distribution System@ and AMobile Water Distribution System@ in such a manner as to exempt from regulation certain small systems. District Rules 20, 22, and 173 further define procedural and substantive rules that regulate these systems. Although these rules have been amended from time to time, the fundamental scope of these regulations was first enacted in the early 1980=s. Definitions for the terms Awater distribution system@ and Awater-gathering facility@ were enacted on February 2, 1980, by Ordinance No. 1. The definition of ASource of Supply@ was enacted on July 11, 1980, by Ordinance No. 3. The term Amobile water distribution system@ was defined on July 13, 1981, by Ordinance No. 7.

5. The Water Management District has enacted a comprehensive scheme to review and regulate the creation and expansion of water distribution systems. That scheme was first enacted on February 11, 1980, by Ordinance No. 1, and has since been amended from time to time.

6. Several issues of concern have arisen respecting the fact that small water distribution systems and small mobile water distribution systems are exempt from the District=s existing regulatory review. Among other matters, these concerns address (i) the cumulative impact that an increase of small systems can have upon the water resource, (ii) the demand burden on other systems that can result from failure of small systems, (iii) the adequacy of fire suppression afforded by small systems, (iv) water quality issues, (v) cross-contamination of water supplies and water systems, (vi) public utility service area limits, and (vii) clear identification of water rights for those systems.

7. The State Water Resources Control Board (SWRCB) issued its Order No. WR 95-10 in 1995. This order, among other things, ruled that California-American Water Company (Cal-Am) did not have a legal right to take approximately sixty-nine (69) percent of the water currently supplied to Cal-Am users. The SWRCB set specific goals to reduce water diversions from the Carmel River Basin that, among other things, required Cal-Am to reduce its historical diversion from the Carmel River Basin to no more than 11,285 acre-feet per annum.

8. Since the issuance of SWRCB Order No. WR 95-10, there has been an increase of small water systems. Proposals have also been made to base development upon single source water systems, including single wells, desalination units, and by trucked-in water.

9. Several members of the public have requested that small water distribution systems and small mobile water distribution systems be included in the same process that the Water Management District uses to review creation and expansion of larger water systems.

10. The Water Management District board of directors has sought input from the Policy Advisory Committee on the issue of regulating small water distribution systems and small mobile water distribution systems.

11. The board of directors determines that this ordinance will not result in an adverse impact to the environment, based on an Initial Study and Proposed Negative Declaration dated July 7, 2000.

12. This ordinance is adopted to enhance the District=s ability to protect water quality and quantity, to prevent diminution of waters within the District, to protect environmental values, and is consistent with the District=s authority to declare rights in stream, surface, and subterranean water supplies within District boundaries.

13. This ordinance shall amend Rules 11, 20, 21, 22, 52, 60 and 173 of the Rules and Regulations of the Water Management District.

NOW THEREFORE be it ordained as follows:

ORDINANCE

Section One: Short Title

This ordinance shall be known as the Small Water System Regulation Ordinance of the Monterey Peninsula Water Management District.

Section Two: Purpose

This ordinance shall revise the permanent Rules and Regulations of the Water Management District to clarify procedures and substantive limitations that affect creation or expansion of small water distribution systems and small mobile water distribution systems.

Section Three: Amendment of Rule 11 (Definitions)

District Rule 11 shall be amended by deleting the following provisions shown in strikeout text (strikeout), and by adding the following provisions set forth in italicized and bold face type (bold face).

MOBILE WATER DISTRIBUTION SYSTEM - AMobile Water Distribution System@ means any mobile water supply process, including but not limited to trucked water, used for distribution of water from a source of supply to a user for utilization upon the user's property. This definition shall not apply to systems furnishing domestic water to three or fewer parcels in the District serving three or fewer users. This definition shall not apply to deliveries of water by commercial companies in volumes less than or equal to 55 gallons per container.

SOURCE OF SUPPLY - ASource of Supply@ means the groundwater, surface water, or reclaimed water sources, or any other water resource where a person, owner or operator gains access by a water-gathering facility.

WATER DISTRIBUTION SYSTEM - AWater Distribution System@ means all works within the District used for the collection, storage, transmission or distribution of water from the source of supply to the connection of a system providing water service to any two or more connections, including all water-gathering facilities and water-measuring devices but excluding the user's piping. In systems where there is a water meter at the point of connection, the term AWater Distribution System@ shall not refer to the user=s piping; in systems where there is no water meter at the point of connection, the term AWater Distribution System@ shall refer to the user=s piping.

WATER-GATHERING FACILITY ‑ AWater-Gathering Facility@ means any device or method, mechanical or otherwise, for the production of water from dams, groundwater, surface water, water courses, or reclaimed water sources, or any other source of supply within the Monterey Peninsula Water Management District, or a zone thereof. Water-gathering facilities shall include any water-production facility as defined in the Monterey Peninsula Water Management District Law. Water-gathering facilities shall further include any desalination facility. This definition shall not apply to on-site cisterns on existing single-family lots that capture rainwater for on-site landscape irrigation use.

Section Four: Amendment of Rule 20 (Permits Required)

District Rule 20 shall be amended by deleting the following provisions shown in strikeout text (strikeout), and by adding the following provisions set forth in italicized and bold face type (bold face).

RULE 20. PERMITS REQUIRED

A. PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM

OR A MOBILE WATER DISTRIBUTION SYSTEM.

Before any person creates or establishes a water distribution system, such person shall obtain a written permit from the District. Before any person creates or establishes a mobile water distribution system, such person shall obtain a written permit from the District.

Persons who hold a valid permit for construction and operation of such a water distribution system from the Monterey County Health Department, prior to March 12, 1980, or a water distribution system in existence prior to that date operated by a public utility, shall be deemed to have been issued a permit in compliance with these Rules and Regulations. Persons who hold a valid permit from the Monterey County Health Department for construction and operation of a well serving a water distribution system of less than two connections prior to October 1, 2000, shall be deemed to have been issued a permit in compliance with these Rules and Regulations provided: (1) the system was completed and was delivering water on or before April 1, 2001; (2) each water-gathering facility of that system was registered with the District; and (3) the water produced by that water-gathering facility had been reported to the District for each applicable reporting year.

No mobile water distribution system shall be issued a permit under the provisions of the previous paragraph. Each such system shall be required to apply for and obtain a permit in accord with Rules 21 and 22.

The expansion capacity limit and system capacity of previously existing systems shall be determined pursuant to Rule 40 (A).

B. PERMITS TO EXPAND/EXTEND A WATER DISTRIBUTION SYSTEM

Before any person expands/extends a water distribution system or any mobile water distribution system, such person shall obtain a written permit from the District or the District=s delegated agent. The addition of any connection or any water-gathering facility to a water distribution system and/or the intensification of use of an existing connection shall be deemed an expansion or extension of that system. Any change in use, size, location, or relocation of a connection or water-measuring device which may allow an intensification of use or increased water consumption, or any permit transfer pursuant to Rule 28 which may allow an intensification of use or increased water consumption, shall be deemed an expansion or extension of that system. A proper applicant for such an expansion/extension permit may be either the owner or operator of the water distribution system, the prospective user of the proposed connection as the real party in interest, or any agent thereof.

Section Five: Amendment of Rule 21 (Applications)

District Rule 21 A and Rule 21 B shall be amended by deleting the following provisions shown in strikeout text (strikeout), and by adding the following provisions set forth in italicized and bold face type (bold face). These amendments shall not affect any other paragraph of Rule 21.

RULE 21. APPLICATIONS

A. APPLICATION FOR PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM

The applicant shall submit the following:

(1) A completed written application in the manner and form prescribed by the General Manager; and

(2) Environmental information as required by the California Environmental Quality Act (CEQA) the District Environmental Guidelines; and

(3) Proof of land use approval which may be required for the proposed project by the municipal unit in which proposed system would be located (i.e., tentative map, use permit, etc.), consistent with state and local regulations that require proof of available water supply; and

(4) A statement explaining the claim of water right applicable to each water-gathering facility and each source of supply for the system; the statement should quantify the scope of each claimed water right, note any applicable priority dates, and state every known limitation or condition that may attach to each claim. For every application deriving from a source of supply from the Monterey Peninsula Water Resources System, the application shall include as an attachment proof of each water right claim such as an appropriation permit from the SWRCB, a judicial declaration of right, or a full title opinion prepared by an attorney with expertise in water law, or such other proof as deemed adequate by the General Manager; and

(5) A copy of the application submitted to the Monterey County Environmental Health Department for Creation of a Water Distribution System; and

(6) The name and address of each responsible party; and

(7) The results of a aquifer pumping tests for the duration specified by the General Manager, the cost of which tests shall be borne by the applicant, and which shall be observed by a District representative or agent; and

(8) The results of water quality tests as specified by the District, the cost of which test shall be borne by the applicant; and

(9) The applicable fees prescribed in Rule 60.

B. APPLICATION FOR PERMIT TO EXTEND/EXPAND A WATER DISTRIBUTION SYSTEM

The applicant shall submit the following:

(1) A completed written application in the manner and form prescribed by the General Manager.

(2) For those applications for which a building permit has been granted, proof of the building permit by municipal unit in which extension or expansion is proposed (including demonstration of adequate water where required by state and local regulations), or statement of need for proposed expansion/extension.

(3) For those potable system applications for which a building permit has not yet been granted, architectural contract drawings of sufficient detail to reflect water use pursuant to Tables 1 or 2 of Rule 24, together with any amendment, addition, or modification of those drawings which may be made prior to use or occupancy of the project, and any drawings which may be submitted to the municipal unit for land use or building approvals, a statement of near‑term need for the proposed expansion/extension, and demonstration of adequate water pursuant to state and local regulations.

(4) For subpotable systems, and for all exterior use for all systems, an itemized estimate of water use.

(5) Architectural contract drawings for each change in the project made prior to use or occupancy which may affect the project=s capacity to use water.

(6) The applicable fees prescribed in Rule 60.

(7) The connection charge prescribed in Rule 24.

Section Six: Amendment of Rule 22 (Action on Application for Permit to Create/Establish a Water Distribution System)

District Rule 22 shall be amended by deleting the following provisions shown in strikeout text (strikeout), and by adding the following provisions set forth in italicized and bold face type (bold face).

RULE 22. ACTION ON APPLICATION FOR PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM.

1. PROCESS

1. Potable Water Distribution Systems and Mobile Water Distribution Systems.

(a) The General Manager shall review the each application to create or establish a water distribution system designed to deliver potable water, or any mobile water distribution system; and if he determines the application to be is determined to be complete, the General Manager shall act within thirty (30) days subsequent to satisfaction of environmental review, to set a public hearing by the board on the application for such permit, and shall notify the applicant in writing and give public notice of the hearing date. If the application is determined to be incomplete, the General Manager shall notify the applicant concerning that information in which the application is deficient and request the applicant to submit that information. At the hearing, the applicant shall be entitled to present evidence in support of his the application. Interested persons may present evidence in opposition or support of the application. The board, in conducting the public hearing, may request hydrologic, geologic, legal opinions or other studies necessary to obtain information required for its decision. The cost of such studies shall be borne by the applicant. For every application for which a controversy arises concerning the extent or adequacy of water rights, the board may require proof of each water right claim such as an appropriation permit from the SWRCB, or a judicial declaration of right, or a full title opinion prepared by an attorney with expertise in water law, or such other proof as deemed adequate by the board. The board may deny, approve, or continue any permit application based on the minimum standards as set forth in Rule 22 (B) and its findings pursuant to Rule 22 (C). The board may impose such conditions on the permit that it deems necessary and proper. The General Manager shall notify the applicant within thirty (30) days in writing by mail or in person of the board action taken; namely continuance, approval, conditional approval, or denial. Notice of the action taken shall be deemed to have been given when the written notification has been deposited in the mail, postpaid, addressed to the address shown on the application, or when personally delivered to the applicant or his the applicant=s representative.

(b) In the case of water distribution system applications for potable water use that (i) derive from sources outside the Monterey Peninsula Water Resources System, and (ii) have two (2) or less connections, the General Manager, not the Board, shall function as the hearing officer as set forth in Rule 22-A-2.

2. Subpotable Water Distribution Systems.

(a) The General Manager shall review each application to create or establish a water distribution system that is designed to deliver water exclusively for subpotable uses, and applications that meet the criteria in 22-A-1-b above; if the application is determined complete, the General Manager shall act within thirty (30) days subsequent to satisfaction of environmental review, (i) to determine if a hearing exemption applies as provided below, and if not (ii) to set a public hearing on the application for that permit, and shall notify the applicant in writing and give public notice of the hearing date. If the application is determined to be incomplete, the applicant shall be notified as to information in which the application is deficient and allowed to submit that information.

At the hearing, the General Manager shall sit as the sole hearing officer. The applicant and any interested person shall be entitled to present evidence in opposition or support of the application. The General Manager in conducting the public hearing, may request hydrologic, geologic, legal opinions or other studies necessary to obtain information required for his decision. The cost of such studies shall be borne by the applicant. For every application for which a controversy arises concerning the extent or adequacy of water rights, the General Manager may require proof of each water right claim such as an appropriation permit from the SWRCB, a judicial declaration of right, a full title opinion prepared by an attorney with expertise in water law, or such other proof as deemed adequate by the General Manager. The General Manager may deny, approve, or condition any permit application based on the minimum standards as set forth in Rule 22 (B) and findings pursuant to Rule 22 (C). Conditions on the permit may be imposed as are necessary and proper.

The General Manager shall notify the applicant within thirty (30) days in writing by mail or in person of the action taken; namely continuance, approval, conditional approval, or denial. Notice of the action taken shall be deemed to have been given when the written notification has been deposited in the mail, postpaid, addressed to the address shown on the application, or when personally delivered to the applicant or the applicant=s representative. The decision may be appealed to the board of directors pursuant to Rule 70, AAppeals,@ upon payment of the fee specified in Rule 63 (4).

(b) Notwithstanding any other provision of this Rule, a hearing exemption shall apply to any application to create or establish a water distribution system that is designed (i) to deliver water exclusively for subpotable uses; and (ii) derives its supply from sources outside of the Monterey Peninsula Water Resources System; and (iii) is limited to no more than two (2) connections. This hearing exemption shall apply only after the application is determined complete and has completed necessary environmental review. The General Manager may deny, approve, or condition the permit based on the minimum standards as set forth in Rule 22 (B) and (C).

Permits granted under this provision may be appealed to the board of directors for a de novo hearing. That hearing shall convene under the rules of process set in Rule 70, AAppeals.@ The fee specified in Rule 63 (4), however, shall be waived.

B. MINIMUM STANDARDS FOR GRANTING PERMIT

1. An application shall be denied unless it complies with each of the following minimum standards:

(a) The application identifies at least one responsible party who, at all times, will be available and legally responsible for the proper performance of those things required of a permit holder by this ordinance; and

(b) The ability of the source of supply for any water distribution system designed to deliver water for any potable use to two (2) or more connections, to provide water that complies with the standards set forth in Title 22 of the California Administrative Code; and

(c) The application identifies the location of each source of supply for the water distribution system, and the location of each use supplied by a mobile distribution system.

2. Every applicant as a condition to holding a permit pursuant to this rule shall report annually by August 1st in the form and manner prescribed by the District, the quantity of water delivered from each source of supply, total water produced, and average daily number of connections in the system, and the number of new connections and disconnections, a map or maps of the service area, and a listing of permits filed in the previous water year (July 1 to June 30) in each municipal unit, and the identity and address of each responsible party as of June 30th of the previous year.

3. As a condition precedent to use or enjoyment of any permit pursuant to this rule, each applicant shall be required to first obtain and comply with any required certificate from the California Public Utilities Commission, and shall first be required to obtain and comply with any required permit or approval of the California Coastal Commission. Failure to comply with this prerequisite shall provide cause for revocation of any permit issued pursuant to this rule.

C. FINDINGS

Prior to making its discretionary decision to grant or deny any permit to create or establish any water distribution system, or to create or establish any mobile water distribution system, the board (or the General Manager for certain systems) shall determine:

(1) Whether the system for which a permit is sought would cause unnecessary duplication of the same types of services by any existing system; and

(2) Whether the permit would result in exportation or importation of water outside or into the District; and

(3) Whether the permit proposed water distribution system would result in significant environmental effects that cannot be mitigated by conditions attached to the permit; and

(4) Whether the application adequately identifies the claim of right for each source of supply for the water distribution system, whether it provides adequate supporting documentation thereto, and/or whether the system relies on any non-existent or questionable claim of right; and

(5) Whether the application demonstrates the existence of a long-term reliable and non interruptible source of supply; and

(6) Whether the source of supply is shared by any other water distribution system, and if so, the extent to which cumulative impacts may affect each source of supply, and species and habitat dependent upon those sources of supply; and

(7) Whether the source of supply derives from (a) the Monterey Peninsula Water Resources System, and/or (b) waters within the jurisdiction of the State Water Resources Control Board, and/or (c) waters tributary to the source of supply for any other system; and

(8) Whether the proposed water distribution system (a) shall intertie to any other system, (b) shall be able to obtain emergency supplies in the event of system failure, (c) shall provide fire flow requirements for development served by that system; and (d) the extent other water distribution systems shall be required to provide emergency supplies and/or meet fire flow requirements; and

(9) Whether the proposed water distribution system shall incorporate adequate cross contamination and backflow measures to protect other systems and sources of supply.

D. MINIMUM STANDARDS

Notwithstanding the above determinations, no permit shall be granted if issuance of the Board finds and determines that the permit will:

(1) Create an overdraft or increase an existing overdraft; or

(2) Adversely affect the ability of existing systems to provide water to users.

If the board approves the permit, it shall establish for each system: (i) an expansion capacity limit, (ii) a the system capacity, and (iii) a municipal unit allocation. for that water distribution system. The board may impose other conditions in granting the permit.

E. AMENDMENTS TO PERMIT

No owner or operator of a water distribution system shall modify, add to or change his source of supply, location of uses, expand the system beyond the expansion capacity limit, or expand the service area, unless that person first files an application to do so with the District and receives an amended creation/establishment permit. Such applications shall be made pursuant to Rule 21, Regulation II (Permits), shall comply with each rule therein, and shall be investigated, considered, determined and acted upon on the same terms and conditions as provided for the approval, conditional approval, or denial of a permit, as provided in this rule.

Section Seven: Amendment of Rule 173 (Regulation of Mobile Distribution Systems)

District Rule 173 shall be amended by deleting the following provisions shown in strikeout text (strikeout), and by adding the following provisions set forth in italicized and bold face type (bold face).

RULE 173. REGULATION OF MOBILE WATER DISTRIBUTION SYSTEMS

DURING A WATER SUPPLY EMERGENCY

A. No person, extractor, owner or operator shall operate a mobile water distribution system without first securing a written permit permission from the District. In accordance with Monterey County Code Title 15.20, no applications will be accepted or permitted for bulk hauled water for permanent potable use. Applications for establishment of a Mobile Water Distribution System shall be made pursuant to Rule 22 (Action On Application For Permit To Create/Establish A Water Distribution System) and shall be investigated, considered, determined, and acted upon on the same terms and conditions as provided for the approval, conditional approval or denial of a creation/establishment permit as stated in that rule. The application shall identify each source of supply and the location of each use. For any subpotable mobile water distribution system within the California-American Water Company (Cal-Am) service area, a condition of approval shall require that Cal-Am be notified so that a back-flow protection device can be installed pursuant to Monterey County Code Title 17.

B. In the event prior authorization is not obtained by reason of an emergency or health related situation, authorization for the Mobile Water Distribution System permit shall be sought obtained from the District by submittal of a complete application compliant with Rule 22, within five working days following commencement of the emergency or health related event.

C. Delivery and/or receipt of water from an unpermitted Mobile Water Distribution System shall be deemed water waste, and shall be subject to fine, restriction, and cease and desist order as set forth in Rule 171.

Section Eight: Amendment of Rule 52 (Registration)

District Rule 52 shall be amended to delete references to an obsolete form and to insert reference to the form in present use. Provisions shown in strikeout text (strikeout) are to be deleted, and those shown in italicized and bold face type (bold face) shall be added. All other provisions of this Rule 52 shall remain unaltered.

RULE 52. REGISTRATION REQUIRED

52 A. 2 An executed Declaration of Reporting Status, as more fully described in Rule 54(C)

Water Well Registration Form.

52 B. 2 An executed Declaration of Reporting Status, as more fully described in Rule 54 (C)

Water Well Registration Form.

Section Nine: Amendment of Rule 62 (Fees)

District Rule 62 shall be amended to delete references to an obsolete form and to insert reference to the form in present use. Provisions shown in strikeout text (strikeout) are to be deleted, and those shown in italicized and bold face type (bold face) shall be added. All other provisions of this Rule 62 shall remain unaltered. The fee imposed by Rule 62 shall not be increased or decreased by this amendment.

RULE 62. WELL MONITORING FEES

62 3. Fee for amendment of Declaration of Reporting Status Water Well Registration Form

- $25.

Section Ten: Publication and Application

The provisions of this ordinance shall cause the republication and amendment of the permanent Rules and Regulations of the Monterey Peninsula Water Management District.

Section titles and captions are provided for convenience and shall not be construed to limit the application of the text.

Section Eleven: Effective Date and Sunset

This ordinance shall be given effect at 12:01 a.m. on the day following its adoption on second reading. This Ordinance shall not have any Sunset Date.

Section Twelve: Severability

If any subdivision, paragraph, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or enforcement of the remaining portions of this ordinance, or of any other provisions of the Monterey Peninsula Water Management District Rules and Regulations. It is the District's express intent that each remaining portion would have been adopted irrespective of the fact that one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or unenforceable.

On motion of Director , and second by Director ,

the foregoing ordinance is adopted upon this ____________ day of ____________ , 2000, by the following vote:

AYES:

NAYS:

ABSENT:

I, Darby W. Fuerst, Secretary to the Board of Directors of the Monterey Peninsula Water Management District, hereby certify the foregoing is a full, true and correct copy of an ordinance duly adopted on the day of , 2000.

Witness my hand and seal of the Board of Directors this ________ day of ________ , 2000.

___________________________________________________

Darby W. Fuerst, Secretary to the Board