MPWMD BOARD MEETING--DEC 13, 2004--EXHIBIT 13B--DRAFT FINDINGS OF APPROVAL FOR PPLICATION #20040923SUL

EXHIBIT 13-B

DRAFT (12/6/04)

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT (MPWMD)

FINDINGS of APPROVAL

CONSIDERATION OF APPLICATION TO AMEND CAL-AM WATER DISTRIBUTION SYSTEM TO ANNEX SULLIVAN PARCEL; APN 197-081-024

Adopted by MPWMD Board on December __, 2004

Unless otherwise noted, all evidence is on file and available for public review at the District office, 5 Harris Court, Bldg. G, Monterey (Ryan Ranch)

It is hereby found and determined as follows:

1. FINDING: Applicant California American Water (Cal-Am) is the owner of the Cal-Am water distribution system (WDS), a regulated public utility. Co-applicant Lombardo & Gilles is attorney for Sullivan, owners of property located at 32825 Carmel Valley Road, Carmel Valley. The Sullivan parcel (APN 197-081-024) is 7.7 acres in size and currently includes a single-family residence, small garden and some fruit trees. The parcel is not within the Cal-Am service area but, since the 1982-83 timeframe, it had received Cal-Am water via an unpermitted intertie to the Cal-Am water meter that served an adjacent parcel (APN 197-081-025). This fact was not disclosed to Sullivan when the property was purchased on July 31, 2003. This physical connection was severed by the owner of the meter in March 2004. A non-potable well exists on the property and is used to irrigate vegetation associated with the residence.

EVIDENCE: Application #20040923SUL received September 23, 2004, site map and supporting application materials and correspondence. Aerial photographs with GIS layer of parcel boundaries. Database of Monterey County Assessors parcels and ownership. December 6, 2004 letter from D. Mesenger and attachments on parcel real estate history.

2. FINDING: An MPWMD water connection permit for Cal-Am service was issued for construction of a home on the subject parcel in 1982 but expired after one year. No separate recorded Cal-Am connection was activated at that time. No additional construction requiring an MPWMD permit via a Monterey County use permit is recorded. A well permit was issued by the Monterey County Health Department on December 28, 1973 for parcel APN 197-081-024. The well was constructed on the subject property and was registered by MPWMD in 1981. It has properly reported use to MPWMD each year since then.

EVIDENCE: Personal communication with Stephanie Pintar, MPWMD Water Demand Division Manager, December 2, 2004, regarding Water Connection Permit history for parcel. MPWMD water connection permit records and database. Monterey County Health Department permit #W-131; State DWR Well Completion Report #121379; MPWMD well reporting files. No Cal-Am record of connection to parcel exists.

3. FINDING: Applicants have applied for a permit to amend the Cal-Am WDS boundary to annex parcel APN 197-081-024 and restore Cal-Am service to the Sullivan residence.

EVIDENCE: Application #20040923SUL and supporting materials.

4. FINDING: Based on data provided in the application, applicable zoning regulations, previous County land use approvals for an existing residence, and the presence of an existing non-potable well for irrigation needs, Cal-Am water use of less than 0.25 acre-foot per year (AFY) is expected for the current home.

EVIDENCE: Application #20040923SUL and subsequent materials submitted to District contained in application file; County of Monterey Building Inspection report describing fixtures in home dated March 5, 1982 applied to MPWMD worksheet for water use per fixture. Letter from Gregory Gillespie dated December 5, 2004 describing Cal-Am water use. MPWMD well reporting records.

5. FINDING: The application to amend the Cal-Am WDS, along with supporting materials, is in accordance with District Rules 21 and 22.

EVIDENCE: Application #20040923SUL received September 23, 2004, and supporting application materials and correspondence.

Required Findings (MPWMD Rule 22-B)

6. FINDING: The approval of the permit would not result duplication of water service as the subject property was, until recently, served by Cal-Am, albeit without benefit of a permit. Approval of the permit, with the specified conditions, would result in a lawful, permitted, separate connection to Cal-Am for the subject parcel.

EVIDENCE: Map of Cal-Am service area with identified parcel locations submitted by applicant. MPWMD Conditions of Approval for Permit #M04-02, Condition #9.

7. FINDING: The approval of the permit would not result in water importation or exportation to or from the District, respectively.

EVIDENCE: The referenced parcel is located wholly within the MPWMD as shown on District boundary location maps on file at the District office.

8. FINDING: Approval of the application would not result in significant adverse impacts to the environment that cannot be mitigated by conditions attached to the permit. The Carmel River flows year-round in the reach nearest the subject parcel and has high quality fish habitat. Nearby Cal-Am wells (Russell Well Nos. 2 and 4) serve the parcel following treatment at Cal-Am’s Carmel Valley Filter Plant. No measurable effect on the environment would occur as the parcel already has a history of Cal-Am use. No increase to the Cal-Am production limit occurs as a result of approval of the application. Approval makes lawful a previously unrecorded, unpermitted use, and facilitates more accurate water use tracking and management for the benefit of the environment.

EVIDENCE: MPWMD streamflow records for Carmel Valley Alluvial Aquifer (CVAA) Subunit 1; MPWMD fish habitat quality assessments; Cal-Am hydraulic map of service area as well as quarterly Memoranda of Agreement (MOA) governing water production. Application materials describing Cal-Am water use since 1982, including Monterey County building inspector’s approval of home. Letter from Gregory Gillespie dated December 5, 2004 describing Cal-Am water use; MPWMD well reporting records. CEQA Notice of Exemption signed December __, 2004 citing CEQA Guidelines Section 15301. SWRCB Order 95-10 limiting Carmel River diversions. MPWMD Permit #M04-02, Condition #3, which does not increase existing Cal-Am water production limit, and Condition #8, which requires water conservation to reduce water use.

9. FINDING: The application adequately identifies the claim of right for the source of water supply and provides supporting verification. The State Water Resources Control Board (SWRCB) has identified 3,376 AFY as the recognized Cal-Am right to divert water from the Carmel River, and identifies in-basin consumers as having a high priority.

EVIDENCE: Cal-Am water rights and state policies are described in detail in SWRCB Order WR 95-10 and Decision #1632, both issued in July 1995.

10. FINDING: The application demonstrates existence of a long-term reliable source of water supply for the proposed uses. Cal-Am is certified by the State Department of Health Services to deliver water to more than 39,000 customers. See Finding #9 above for Cal-Am recognized water rights for in-basin users within Carmel River Basin.

EVIDENCE: Cal-Am water service and water quality records and evaluations on file at the State Department of Health Services, Monterey office. SWRCB Order WR 95-10 and Decision #1632, both issued in July 1995.

11. FINDING: The source of Cal-Am supply for the subject parcel has been the Carmel River or the CVAA Subunit 1 since 1982-83. Though other CVAA subunits farther downstream are impacted by Cal-Am and other water distribution systems, CVAA Subunit 1 is known to have high-quality fish habitat and year-round water flow. Thus, the cumulative effects of issuance of a permit to continue to serve the subject parcel would not be expected to result in significant adverse impacts to the species and habitat dependent on those sources of supply. Approval would allow lawful water service to a home approved by Monterey County in 1982.

12. FINDING: The source of Cal-Am supply for the subject parcel is derived from the Monterey Peninsula Water Resources System. The subject parcel does not overlie the CVAA, but water delivered by Cal-Am is derived from the CVAA. A non-potable well draws water from non-alluvial upland sources.

EVIDENCE: MPWMD map showing boundaries of Carmel Valley alluvial aquifer; MPWMD well records for parcel APN 197-081-024.

13. FINDING: Approval of the application would bring the property into the Cal-Am service area, including use of Cal-Am water for emergency fire protection. Temporary water service could be provided by trucked-in water pursuant to MPWMD Rule 173 if the Cal-Am system experienced a failure or other non-fire emergency situation. An existing onsite non-potable well could continue to meet outdoor irrigation water needs. No permanent intertie between the Cal-Am WDS and any other system is allowed.

EVIDENCE: Map of Cal-Am service area; MPWMD Permit #M04-02 Conditions of Approval, Condition #12.

14. FINDING: A back-flow protection device to prevent contamination of the Cal-Am system will be installed as a condition of this permit due to the existence of an active non-potable well on the parcel.

EVIDENCE: MPWMD Permit #M04-02 Conditions of Approval, Condition #13.

Minimum Standards for Granting a Permit (MPWMD Rule 22-C)

15. FINDING: The application adequately identifies the responsible party (system owner and operator) as California American Water.

EVIDENCE: Permit application #20040923SUL.

16. FINDING: The application meets the definition of a “multiple-parcel connection system” and therefore must comply with California Title 22 water quality standards. With a few temporary exceptions, Cal-Am water meets Title 22 standards.

EVIDENCE: Permit application #20040923SUL; State Department of Health Services records on file at its Monterey office.

17. FINDING: The location of the source of supply for the water distribution system is known. The Cal-Am water source for customers in the area of the subject parcel is the CVAA, Subunit 1, drawn from nearby wells.

EVIDENCE: Description of Cal-Am system available at Cal-Am office. Quarterly MOA/water supply strategy and budget describing best management practices for sources of Cal-Am supply.

18. FINDING: The Carmel River has been determined to be “fully appropriated” from May 1 through December 31 from a water rights perspective, and environmental effects to federally listed species exist. However, the CVAA is not in a hydrologic state of overdraft, particularly in the area of the subject parcel (CVAA Subunit 1), where year-round flow of the Carmel River occurs every year. Thus, approval of the application would not create an overdraft or increase an existing overdraft of a groundwater basin. Also, conditions of approval do not increase allowed Cal-Am production to serve the subject parcel. See also Findings 11 and 12.

EVIDENCE: See citations in Findings 11 and 12. MPWMD Permit #M04-02, Condition #3. SWRCB Order 98-08, November 19, 1998.

19. FINDING: The approval of the application would not adversely affect the ability of existing systems to provide water to users due to conditions of approval that do not allow increased production to serve the subject parcel.

EVIDENCE: MPWMD Permit #M04-02, Condition #3.

Compliance with CEQA

20. FINDING: In the review of this application, MPWMD has followed those guidelines adopted by the State of California and published in the California Administrative Code, Title 14, Section 15000 et seq. Specifically, the MPWMD as a lead agency under CEQA for this action, determined that this action is Categorically Exempt under Category 1, Existing Facilities. The subject residence has received Cal-Am water since 1982-83, and is a properly approved structure with appropriate permits from Monterey County.

EVIDENCE: CEQA and CEQA Guidelines, Section 15301. Notice of Exemption for Application to Amend Cal-Am WDS dated December __, 2004.

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11/6/04