EXHIBIT
8-A
DRAFT
ORDINANCE
NO. 107
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT
RESCINDING ORDINANCE NO. 102 AND
REINSTATING RULE 28, WATER USE CREDIT TRANSFERS
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 has general and specific power to cause and implement water
conservation activities as set forth in Sections 325 and 328 of the Monterey
Peninsula Water Management District Law.
3.
This ordinance reinstates District Rule 28 that allows transfer of
water credits from one commercial site to another and that allows water to be
transferred from a commercial site directly into a jurisdiction’s water
allocation.
4.
This ordinance shall amend and republish Rule No. 28 (“Transfer”) of
the Rules and Regulations of the Water Management District.
5.
This ordinance resolves the cities litigation with the Monterey
Peninsula Water Management District regarding environmental review of the water
credit transfer ban. Reinstatement of
the transfer credit rules is a short-term interim measure until an EIR on the
transfer program can be certified. Two
detailed studies exist that concluded that water credit transfers resulted in
system-wide increased water usage following the transfers than prior to the
transfers. Further, this Board is very
concerned that the transfer credit program harms the environment, has been
subject to abuses, and violates State Water Resources Control Board Order
95-10. It is the Board’s intention that
the EIR be completed as quickly and accurately as possible, and that the water
credit transfer program will be amended promptly thereafter to address concerns
about negative environmental impacts and public fairness.
NOW THEREFORE be it ordained as follows:
Section One: Short Title
This ordinance shall be known as the Water Credit
Transfer Reinstatement Ordinance of the Monterey Peninsula Water Management
District.
Section Two: Purpose
This ordinance republishes
water use credit transfer provisions formerly set forth in District Rule
28.
Section
Three:
Rescind Ordinance No. 102
This
ordinance rescinds Ordinance No. 102, adopted on February 28, 2002.
Section
Four: Rule 28 Reinstated
District
Rule 28 shall read as follows:
A. TRANSFER
LIMITATION
Any permit issued pursuant to these regulations may be
transferred from one person to another, upon written notification to the
District, except as follows:
1. Permits may
not be transferred from one location to another, except as provided by Part B
of this Rule;
2. Permits may
not be transferred when the General Manager determines within thirty (30) days
of the written notification required by this rule that the transfer may allow
or facilitate increased water consumption of a water distribution system.
3. Transferred
permits shall be subject to all conditions attached to the original permit. Applicants who are not allowed to transfer a
permit under this rule may apply for a new permit or an amendment to the
existing permit pursuant to Rule 23. Determinations of the General Manager
under this rule, either allowing or refusing permit transfer, may be appealed
to the Board pursuant to Rule 70.
B. PROPERTY-TO-PROPERTY AND PROPERTY ‑TO-JURISDICTION TRANSFERS
OF WATER USE CREDITS FOR COMMERCIAL AND INDUSTRIAL USES
Water use credits for existing water use which has
been allowed by the District on or after January 1, 1985, may be transferred
from one property to another for commercial and industrial connections pursuant
to this Rule. Commercial and industrial
water credits may also be transferred directly into a jurisdiction's
allocation. Open space and residential
water use shall not be transferred. The
following conditions shall apply:
1. Water use
credit transfers shall only occur within a single jurisdiction. No inter-jurisdictional transfer shall be
allowed. Property-to-property transferred
water credits shall not have any impact on a jurisdiction's allocation. Property-to-jurisdiction transfers shall
increase a jurisdiction's available allocation.
2. Water use
credit transfers shall only occur within a single water distribution system. No inter-system transfer shall be allowed.
3. Water use
credit transfers shall only occur with the prior approval of the city, county
or airport district.
4. Water use
credit transfers shall only be allowed from an existing commercial or industrial
use, and must be applied to the intensification of another existing commercial
or industrial use or added to a jurisdiction's allocation. Other than transfers which add to a
jurisdiction’s allocation, transfer credits shall not originate from, or be
transferred to any residential use.
Transfer credits shall not derive from any prior open space water use.
5. Property-to-property
water use credit transfers shall only be used for intensification
purposes. New water connections shall
not be issued based upon a property-to-property transferred water use credit.
6. Property-to-property
commercial water use credit transfers shall only enable intensification of an
existing commercial or industrial water use capacity, as proposed by a current
application for a water permit.
Transfers shall not provide water use capacity for new commercial or
industrial water meter connections.
Transferred water credits shall not be "banked" for future use
at any new or different site.
7. The use of
credits resulting from a property-to-jurisdiction transfers shall be at the
discretion of the jurisdiction.
8. All water
use credit transfers shall originate only from prior documented commercial
water use capacity and shall be subject to each and every limitation on the
calculation of water use credits set forth in Rule 25.5.
9. All
transfers of water use credits shall occur only by written (and recorded)
agreement of (1) the owner of record for each parcel from which the transfer
originates and (2) the owner of record for each parcel receiving a transferred
water credit. The originating site
agreement shall confirm that the transfer of water credit is irrevocable, shall
quantify remaining water use capacity required by the originating parcel(s),
and acknowledge that any intensification of water use capacity on the
originating site thereafter shall result in additional connection charge
fees. The agreements recorded on both
the originating site and the receiving site shall contain a declaration made by
the owner of record under penalty of perjury that, other than reimbursement for
the Rule 24 connection fee that would apply to the water use capacity, no money
or other valuable consideration has been given or received in exchange for the
water credit transfer. If all prior
water use capacity is transferred from a site (due to demolition of all
structures on that site), the recorded agreement and notice shall consent to
permanent removal of the meter connection from the originating site, and
acknowledge that the placement of a new meter shall be limited due to
unavailability of water.
10. Transfer of
water use credits shall only occur upon approval by the District. The District shall have sole and exclusive
authority to determine the water use capacity which cannot be transferred by
reason of capacity requirements for the originating site. The District shall have sole and exclusive
authority to determine the water use capacity requirements for the receiving
site. The District shall not approve any
water credit transfer where money or other valuable consideration has been
given in exchange for the water credit transfer. The District shall not approve any capacity
for expanded water use deriving from a transferred water credit in any
circumstance where money or other valuable consideration has been given in
exchange for use of the water credit.
These limitations shall nonetheless allow the recipient of a water
credit transfer to reimburse the donor of that credit for Rule 24 connection
fees that would apply to the water use capacity.
1.
Violation of the prohibition on the
transfer of water credit for money or other valuable consideration shall result
in immediate revocation of the transfer credit.
B. Violation of the prohibition on the transfer of water credit for
money or other valuable consideration
is a misdemeanor as provided in Section 256 of the Monterey Peninsula Water Management District Law.
11. Transfer of water use credits shall not be approved by District
staff if the effect of the transfer shall cause the originating site to have
insufficient water credit to meet the water use capacity requirements of all
existing structures on the transferring property site. If all prior water use is transferred from a
site (due to demolition of all structures), the transfer shall be approved only
upon the removal of the meter connection from the originating site, and the
recordation of the notice specified above.
12. The effect of any approved water credit transfer shall be the
irrevocable extinction of any right or entitlement to the actual water use,
water use capacity, or water credit which has been transferred from the
originating (transferring) site.
13. Before any water use credit transfer shall occur, the transfer fee
required by Rule 60 for each originating site shall be paid by the applicant.
(Added by Ordinance No. 1
(2/11/80); formerly Rule 223; renumbered by Ordinance No. 6 (5/11/81); formerly
Rule 27, amended by Ordinance No. 8 (1/14/81); amended by Ordinance No. 71
(12/20/93); amended by Ordinance No. 79, (9/18/95); amended by Ordinance No. 97
(3/19/2001)
Section Five: 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.
This ordinance shall take
effect at 12:01 a.m. on the 30th day after it has been enacted on second
reading.
This Ordinance shall not
have a sunset date.
Section Seven: 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 by Director Henson, and second by Director Erickson, the foregoing ordinance is adopted upon this ______ day of ________________, 2003, by the following vote:
AYES:
NAYS:
ABSENT:
I, Ernesto A. Avila, 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 _____________ 2003.
Witness my hand and seal of the Board of Directors this ________ day of ____________ 2003.
Ernesto
A. Avila, Secretary to the Board