EXHIBIT
21-B
PRELIMINARY
DRAFT
ORDINANCE
NO. 117
AN ORDINANCE OF THE BOARD OF DIRECTORS
OF THE
MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT
AMENDING RULE 28-B
TO CLARIFY THE MINISTERIAL REVIEW OF
WATER USE CREDIT TRANSFER APPLICATIONS
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. Rule 28-B of the Water Management District enables transfer of water credits documented pursuant to District Rule 25.5 from an existing non-residential use to another expanding non-residential use or to a jurisdiction for use at its discretion.
4. This ordinance amends Rule 28-B to clarify the ministerial authority to approve a water credit transfer.
5. Ordinance No. 108 changed a ministerial process to a discretionary process. Due to the time and cost associated with making an application for transfer under that ordinance, it was never utilized. This ordinance reinstates the water credit transfer approval process at the ministerial level.
6. The Board of Directors determines that this ordinance is an action taken by a regulatory agency to amend internal rules, and therefore finds that enactment of this ordinance is …………………………………………under the requirements of the California Environmental Quality Act.
7. This ordinance shall revise, amend and republish Rule 28-B of the Rules and Regulations of the Water Management District.
NOW THEREFORE be it ordained as follows:
Section One: Short Title
This ordinance shall be known as
the Rule 28-B Ministerial Amendment Ordinance.
Section Two: Purpose
This ordinance
revises, amends and republishes water use credit provisions set forth in
District Rule 28- B by reverting from a discretionary approval process to a ministerial
approval process.
Section Three: Amendment of Rule 28-B
(Property-To-Property And Property-To-Jurisdiction Transfers Of Water Use
Credits For Commercial And Industrial Uses)
District Rule 28-B,
Property-To-Property And Property-To-Jurisdiction Transfers Of Water Use
Credits For Commercial And Industrial Uses, shall be amended as follows, where
the portion set forth in strikeout type (strikeout) is deleted and the
portion set forth in italicized and
bold face type (bold face) is added:
“28-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 and upon the approval of the Board of
Directors. Commercial and
industrial water credits may also be transferred directly into a jurisdiction’s
allocation upon the approval of the Board of Directors. Open space and residential water use shall
not be transferred. The following
conditions shall apply:
1. Due to the District’s ongoing concern
about the viability of the available water supply and the possibility that
water transfers may result in additional water usage, water transfers shall be
approved by the Board of Directors, subject to the other provisions of this
Rule, if the transfer will not have an adverse impact on the water supply. In exercising its discretion, the Board of
Directors shall consider the impacts of the application under consideration, as
well as the cumulative impacts of other transfers, on the water supply.
2.1. 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.
3.2. Water
use credit transfers shall only occur within a single water distribution
system. No inter-system transfers shall
be allowed.
4.3. Water
use credit transfers shall only occur with the prior approval of the city,
county or airport district.
5.4. 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 that
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.
6.5. 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.
7.6. 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.
8.7. The
use of credits resulting from a property-to-jurisdiction transfer shall be at
the discretion of the jurisdiction.
9.8. 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.
10.9. All
transfers of water use credits shall occur only by the written (and recorded)
agreement of the owner of record for each parcel from which the transfer
originates. This 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. 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.
11.10. Transfer
of water use credits shall only occur upon approval by the General
Manager Board of Directors.
The General Manager Board of Directors shall have
sole and exclusive authority to determine the water use capacity which that
cannot be transferred by reason of capacity requirements for the originating
site. The General Manager
Board of Directors shall have sole and exclusive authority to determine
the water use capacity requirements for the receiving site. The General Manager Board
of Directors shall not approve any water credit transfer where money or
other valuable consideration has been given in exchange for the water credit
transfer. The General Manager
Board of Directors 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 connection fees previously paid to the District for
that increment of water.
A.
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.
12.11. Transfer
of water use credits shall not be approved by the General Manager
Board of Directors 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.
13.12. 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.
14.13. 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.”
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 ________, and second by Director _________, the
foregoing ordinance is adopted upon this ______ day of ________________, 2004,
by the following vote:
AYES:
NAYS:
ABSENT:
I, Fran Farina, 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
_____________ 2004.
Witness my hand and seal of the Board of Directors this ________ day of
____________ 2004.
Fran Farina, Secretary to the Board
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