2. CONSIDER FIRST READING OF ORDINANCE NO. 108 – AN ORDINANCE OF THE MONTEREY PENINSULA WATER MANAGEMENT DISTRICT AMENDING RULE 28-B TO CLARIFY THE DISCRETIONARY REVIEW OF WATER CREDIT TRANSFER APPLICATIONS BY BOARD OF DIRECTORS
Program/Line Item No.: N/A
Staff Contact: Stephanie Pintar Cost Estimate: N/A
General Counsel Approval: This ordinance has been reviewed by Special Counsel.
Committee Recommendation: N/A
CEQA Compliance: This ordinance is categorically exempt from CEQA
SUMMARY: This is the first reading of draft Ordinance No. 108, attached as Exhibit 2-A. The proposed ordinance modifies District Rule 28-B, Property-To-Property and Property-To-Jurisdiction Transfers of Water Use Credits for Commercial and Industrial Uses, to clarify the nature of the review of water credit transfer applications by the Board of Directors.
RECOMMENDED ACTION: District staff recommends that the Board consider the first reading of Ordinance No. 108. If passed on first reading, the ordinance will return to the Board for second reading and adoption at the May 2003 Board meeting.
DISCUSSION: The attached ordinance modifies District Rule 28-B, Property-To-Property and Property-To-Jurisdiction Transfers of Water Use Credits for Commercial and Industrial Uses. The proposed ordinance clarifies the broad environmental review of property-to-property and property-to-jurisdiction water transfer applications, and clarifies the Board of Directors broad discretionary authority to consider those applications in light of the District’s mandate to maintain, restore, and enhance ground and surface water on the Monterey Peninsula for the benefit of the environment.
The attached ordinance is categorically exempt from the California Environmental Quality Act, Public Resources Code section 21000, et seq. (“CEQA”). Sections 15307 and 15308 of the Guidelines interpreting CEQA (available at 14 Cal. Code Regs §§ 15307, 15308) provide that actions by regulatory agencies for the protection of natural resources and the environment are exempt from CEQA. Section 15307 specifically states that “actions taken by regulatory agencies as authorized by state or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment” are exempt from CEQA. Section 15308 similarly exempts “actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment”.
The proposed ordinance meets the requirements of these two sections of the CEQA guidelines. It is an amendment that clarifies the process of review of applications for transfers of Water Use Credits. The ordinance is an action by a regulatory agency and is clearly authorized by state law. Moreover, the ordinance assures the maintenance, restoration, and enhancement of a natural resource (water), as part of the natural environment. The proposed ordinance provides broader review to ensure that specific transfer applications will not have an adverse affect on the community’s water supply,
Finally, the ordinance provides “procedures for [the] protection of the environment,” as the sections require. The ordinance requires the Board of Directors to consider the impact of the application under consideration, as well as the cumulative impacts of other transfers, on the water supply. The ordinance further states that the application may be approved if its impact on the water supply will not be adverse. As a result, the proposed ordinance provides procedures for the protection of the environment, and assures the maintenance, restoration, or enhancement of a natural resource and the environment.
Ordinance No.108 does not mandate a particular result on any application. Each application will be considered on its merits and will be evaluated as required by CEQA and the provisions of Rule 28 B.
BACKGROUND: The Board of Directors deleted District Rule 28-B in its entirety on March 26, 2002 by adoption of Ordinance 102, after determining that the water transfer program had not resulted in the anticipated savings of water that originally motivated the program and, in some cases, may have resulted in an increase in water usage. On March 17, 2003, the Board of Directors completed first reading of Ordinance No.107, which would repeal Ordinance No. 102, thereby effectively reinstating District Rule 28-B. District Rule 28-B is ambiguous; this amendment clarifies that it is the Board of Directors which will make the decisions concerning water credit transfers and clarifies that the board will be using criteria in the rule, including whether an application would have an adverse impact on water supply.
IMPACT ON RESOURCES: Adoption of Ordinance No. 108 will impact staff only when applications require hearings before the Board of Directors.
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