Meeting Date:

January 27, 2005





David A. Berger,




General Manager

Line Item No.:




Prepared By:


Stephanie Pintar

Cost Estimate:


General Counsel Approval:

Counsel has reviewed this report.

Committee Recommendation:

N/A – Quasi-judicial decision

CEQA Compliance:



SUMMARY:  The Board is scheduled at this meeting to consider a finding of “special circumstances with substantial uncertainty” as allowed by District Rule 24-G (Exhibit 15-A) for a 78-bed assisted living facility at the mouth of Carmel Valley (Sunrise Assisted Living of Carmel Valley).  District Rule 24-G allows an adjustment to the anticipated water demand for a project when there are projected use factors that are clearly more accurate and reliable (based on historical use or other hard documentation) than the regional average methodology (commercial water use factors) used to project water use.  When there is substantial uncertainty regarding the projected water use proposed by the permit applicant, the permit may be approved upon payment of an estimated connection charge (and corresponding water allocation debit), and the actual final connection charge (and debit) may be adjusted upon the actual water use record after a reasonable period of time.


The Board is asked to consider allowing a water permit to be issued at a lower quantity than the District’s factors for assisted living facilities and other on-site uses, based on water savings from low water consumption appliances and retrofits that the applicant has proposed.  In 2001, when the District first reviewed this application, staff concurred that the facility would likely be able to operate with 4.44 acre-feet of water annually.  This quantity was a result of a “top down” (i.e., using the District factor and subtracting water savings associated with retrofits) and “bottom up” (i.e., calculating daily water use for washing hands, flushing toilets, etc.) water use analysis by Axiom Engineers.  Due to the size and quantity of the documents related to this application, Axiom’s analysis and other documents and correspondence regarding this project are available for review at the District office.


RECOMMENDATION:  Following a public hearing on this item, the Board should determine (1) whether special circumstances with substantial uncertainty exist and, if so, (2) should a water permit be issued for the anticipated reduced capacity that would result from the proposed retrofits.  The Board has the authority to direct staff to use the District’s factor for assisted living facilities (and factors for other on site uses) and to adjust the allocation (and connection charges) after it has been proven that the proposed retrofits will indeed reduce demand to a less intensive level, or the Board may elect to allow a water permit to be issued at the water demand estimated by the applicant.  If there are special circumstances with substantial uncertainty, District Rule 24-G requires the Board set a time certain for the final determination of actual water capacity and the calculation of the final connection fee.  In previous approvals of special circumstances (the last approval was in 2001), the Board conditioned the approval to include an adjustment based on actual water use over a period of five years following full occupancy.  Staff recommends that this timeline be extended to ten years to ensure that full occupancy and normal standardized use has been achieved.


Staff recommends that the Board make a finding of special circumstances with substantial uncertainty for the proposed Sunrise Assisted Living of Carmel Valley subject to the following conditions and the formal Conditions of Approval attached as Exhibit 15-B:

1.      At such time as the final construction drawings and approvals have been received, staff should review the plans to verify that the project is identical to the one reviewed in 2001 and issue a water permit for a 78-bed assisted living facility with a water demand of 4.44 acre-feet annually.

2.      The District shall debit the County’s water allocation by 1.53 acre-feet for exterior water use and the applicant shall pay the connection charge for the exterior water use.  Following verification after completion of the project that no point of access exists that would allow exterior potable water use, the District shall refund the connection charge associated with the exterior demand and shall credit the County with 1.53 acre-feet of water.

a.       The additional increment of water available in the County’s allocation for this project (a total of 4.8 acre-feet) should be set aside by the County for the project in the event that water use exceeds the amount permitted by the District after five years.  Additional accountability may be required pursuant to Condition 13 of Exhibit 15-B if necessary.

b.      If water use is lower than the quantity permitted by the District, a refund will be issued for the unused increment of water and the County’s allocation credited.


The second recommendation calls for accountability in the event that water demand exceeds the amount of water permitted for the project and available from the County.  It should be noted that in its 2004 approval of water for the project, the Monterey County Board of Supervisors confirmed that no water in excess of 4.8 acre-feet is available for this project.  In keeping with its position that no additional water is available, the County has included several conditions in their approval to make sure that actual water use remains below the maximum amount available during the first several years of operation.  Those conditions are summarized below:


1.        During the first two years of operation after approval of building permits, the applicant will submit monthly reports on the first day of each month to the Director of Planning and Building and the General Manager of the Water Resources Agency prepared by a qualified engineer that identifies actual water use of the facility. 

2.        During the third through fifth years of operation, the applicant will file the reports semi-annually.  If the facility is not at full buildout and operation during years 3-5, the semi-annual reports will continue until the facility has been operating at full buildout for two years.

3.        In the event that the project at any time exceeds the water allocation approved by the Board of Supervisors, the consultant engineer will recommend implementation of one or more of the following actions to reduce water consumption to the satisfaction of the Water Resources Agency.  Said actions may include, but are not limited to:

a.       Remove on-site laundry and provide off-site laundry services only.

b.      Implement further staff/client water saving measures through review of water use practices in conjunction with client attrition to reduce the number of beds occupied.

c.       Reduce the allowed number of beds that may be occupied.  If the facility is operating with a reduced occupancy when the reports listed in the previous conditions find the facility is nearing its proportional capacity, then that level of occupancy shall be the new limit of occupancy until a future report identifies available water to use for additional beds.


Staff’s 2001 position that there is substantial uncertainty regarding this water use projection remains valid.  Therefore, it is recommended that before a water permit is authorized for Sunrise Assisted Living of Carmel Valley using a modified water demand factor, the Board should make a finding of special circumstances with substantial uncertainty.  If the Board makes this finding for Sunrise Assisted Living of Carmel Valley Project, staff also recommends adoption of the Conditions of Approval shown at Exhibit 15-B.  Finally, should the Board make a finding that there are special circumstances with substantial uncertainty, the approval should include an expiration date.  It is recommended that if the project is not completed within 24 months of District approval, this approval will expire and the project will require Board reconsideration based on water demand factors and other information available at that time.


IMPACTS ON STAFF/RESOURCES:  District staff is concerned about the ability of the County to enforce its conditions, particularly with the number of other projects that also require enforcement and the County’s limited staffing resources.  Staff is also concerned about the availability of District resources to monitor Conditions of Approval on this project.  However, if a finding of special circumstances is granted, resources will be allocated to track water use at the Sunrise Assisted Living of Carmel Valley to establish that it does not exceed the amount of water available from the jurisdiction, and if consumption exceeds the amount of water available to the project, that the County’s allocation is appropriately debited or other actions are taken to permanently reduce demand.


BACKGROUND:  This application was first heard by the Board in April 2001 (staff report attached as Exhibit 15-C) and was referred to the Water Demand Committee for a recommendation.  In May 2001, the then Water Demand Committee reviewed the application and recommended the Board approve special circumstances for the project with conditions (Exhibit 15-D, Water Demand Committee minutes of May 25, 2001).  The application was not returned to the Board, as the County notified the District prior to the June 2001 Board meeting that water had not been authorized for the assisted living project (the Water Release Form submitted in 2001 authorized water for a senior housing project).  The process of obtaining the County’s authorization for water for the assisted living project took until July 2004, when the Board of Supervisors authorized a maximum of 4.8 acre-feet of water for this project.  When the applicant’s agent requested the project move forward, the General Manager agreed to support staff’s 2001 position recommending approval of this project’s special circumstances and anticipated water demand. 


The current project is essentially the same project that was analyzed and initially considered in 2001 with one exception:  The exterior use has been changed to an exclusive graywater system.  The 2001 Axiom top-down analysis included 1.53 acre-feet for potable exterior irrigation with a graywater backup system.  The change to an exclusive graywater supply for the exterior bolsters the applicant’s previous assertions that water use will remain below the amount of water authorized by the County.  In keeping with the District’s practice for subpotable exterior supply, the County’s allocation will be debited for the full amount of the outdoor demand until completion of the project and verification that there is no potable water supply to the outside of the buildings.  Upon verification, the County will be credited for the exterior debit and the applicant will receive a refund of the connection charge paid for that increment of water.



15-A    District Rule 24-G

15-B    Draft Conditions of Approval

15-C    April 2001 Staff Report to the Board on Sunrise Assisted Living

15-D    Water Demand Committee Minutes of May 25, 2001