ITEM: ACTION ITEM
17. PROVIDE DIRECTION ON DEVELOPMENT OF WATER CREDIT
Meeting Date: February 19,
2004 Budgeted: N/A
Item No.: N/A
Staff Contact: Stephanie
General Counsel Approval: N/A
Committee Recommendation: The Water Demand Committee recommended the
Board provide direction on an ordinance to authorize reassignments
CEQA Compliance: N/A
Water credit reassignments involve the designation of an on-site water
credit to a specific lot when multiple contiguous properties are under
identical use and ownership. District
Rule 25.5 allows the reuse of a documented Water Use Credit at a later time on
that same Site (as defined in Rule 11, Definitions, attached as Exhibit 17-A) as long as the savings are
current and as long as the Water Use Credit has not expired.
Over the years, staff has
applied logic and reasonableness to the applicability of Rule 25.5 as it
relates to multiple and contiguous lots/parcels under identical use and
ownership. However, the former staff
practice of specifying the amount of credit assigned to a vacant lot is
problematic: When the property
transfers ownership, it is no longer part of the “Site” under which the water
credit was documented. Rule 25.5 does
not contemplate use of credit after a “Site” has been broken up, and therefore
staff believes that allowing the reuse of that assigned water credit is
contrary to Rule 25.5.
The issue of residential water
credit reassignments was discussed at the February 2, 2004 Board workshop and
at the January 20, 2004, Water Demand Committee meeting. District staff has had an informal practice
for handling requests to reassign water credits for a number of years,
particularly as these requests relate to demolition of a house that straddles a
lot line. With less water available
from the jurisdictions, staff noticed an increase in the number and complexity
of the requests to reassign water credits.
As there is no specific District policy to address reassignments,
particularly to adjacent vacant lots, staff brought the policy issue to the
Water Demand Committee for direction.
In September 2003, the Board Chairman directed staff to suspend
processing requests for credit reassignments that involved a vacant lot or a
lot with an uninhabitable structure on it pending policy action by the
direction from the Board at the February 2, 2004 workshop, the following
actions need consideration on February 19, 2004:
- The Board should direct staff on processing requests
for reassignments that are “in process” using the former practices. “In process” should be defined as
having paid fees to the jurisdiction with a planning application or a
building permit application between September 24, 2001 and September 23,
2003. As of February 5, 2004, the
District is aware of three qualifying requests to reassign water credit.
- The Board should reiterate that staff should continue
to administratively process requests to reassign water credits using its
past practices in the following two situations:
- Designation of credits when a house
straddling lot lines is being demolished.
- Credits are being relocated across
lot lines from one habitable dwelling unit to another habitable dwelling
unit. This is only allowed when
the lots meet the definition of one site.
- Requests to reassign water credits to a vacant lot or
uninhabitable structure that do not meet the definition of “in process”
should not be received pending policy action from the Board. Staff should be directed to address the
policy issues in an ordinance to add to the Rules and Regulations of the
- The Board should direct staff on the
appropriate interpretation of “identical present use” as used in the
definition of “site” as it applies to residential water credit
reassignments. Staff recommends
that decisions based on the clarified definition be appealable to the
Board to avoid unanticipated misuse of the term.
- The Board should determine whether
reassignments of water credit to a vacant lot or uninhabitable structure
are water credit transfers. The
Board should provide direction to staff on development of a policy to
address this type of transfer.
DISCUSSION: Two issues were identified as needing
further Board direction. The
interpretation of “identical present use” as it is used in the “site”
definition, and the question of whether assigning water credit to a vacant lot
should be considered a type of transfer.
Identical Present Use
At the February 2, 2004 workshop,
the Board discussed variations of the term “identical present use.” The discussion included a dialogue about the
possibility of using zoning definitions to determine identical present use” or
to continue using “User Categories” as staff has consistently done since the
inception of the permit process. No
recommendation was made.
Assignments or Transfers
District Counsel reviewed the regulatory processes
involved with on-site and off-site credits.
Both processes are discussed in the District’s Rules and Regulations: Rule 25.5 addresses on-site credits, and
Rule 28 addresses off-site transfers.
Counsel provided staff with an extensive list of differences between the
two types of credits, and staff believes that the process addressed in this
staff report should not be considered under Rule 28, Transfer, particularly if
safeguards are put into place to ensure that credit is used on-site.
RECOMMENDATION: Staff recommends the following actions:
- The Board should direct staff to use the former
practices to process requests for reassignments that are “in process” with
applications to use the assigned water credits. The definition of “in process” should be (1) having paid
fees to the jurisdiction with a planning application, or (2) submitting a
building permit application, between September 24, 2001 and September 23,
2003 (24 months before current suspension of action). As of February 5, 2004, the District is
aware of three qualifying requests to reassign water credit.
- Staff should be directed to continue to document and
allow a property owner to designate the location of Water Use Credits when
a water-using structure straddles one or more lot lines and is demolished.
- Staff should be directed to continue to process water
permit applications to use Water Use Credits from one habitable dwelling
unit to another habitable dwelling unit when the structures are located on
the same site.
- Staff should be directed to continue to use the
definition of “User Category” as
shown in Rule 11, Definitions, to determine when a property has an
“identical present use.”
- The Board should direct staff to prepare an amendment
to Rule 25.5, Water Use Credits, and to other applicable rules to address
concerns about breakup of a site prior to use of an assigned water credit,
use of Water Use Credits for new connections, and exterior water use
criteria. Staff recommends the
following clarifications be added to the Rules and Regulations:
- As Rule 25.5 allows credit to be
reused throughout the site, staff should discontinue formally assigning
Water Use Credits, with the only exception being when a water-using
structure straddles one or more lot lines and is demolished.
- The current property owner of the
“site” on which the credit originated must make application for use of
any credit that was documented pursuant to Rule 25.5. Conformity with the definition of site
should be verified prior to issuance of a water permit.
- Water permits issued pursuant to
Rule 25.5 should expire one year from the date of issue if not completed
(as defined by Rule 11). Applicants may reapply for a new permit pursuant to Rule 20
and subject to the previously discussed conditions. Rule 25 includes a one-year expiration
date as an option. Staff
recommends District enforcement of this provision, specifically when a
permit involves a Water Use Credit documented pursuant to Rule 25.5.
- To reduce purchases of multiple lots
for the purpose of creating new connections, new connections on a site
should occur only after extensive ownership (e.g. ownership for more than
- Exterior water use calculations
should apply to new connections on a vacant lot unless the applicant is
able to provide clear and convincing evidence that regular and continuous
exterior water use exists that predates the District’s permit
requirements (e.g. Ordinance No. 21, March 11, 1985). (This should be an appealable
- Fees should be added for staff time
related to documenting credits, including fees for performing
inspections, written documentation of credit, extensions, consultation
fees and additional staff time needed to process complex requests either
to document or to use a documented water credit.