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ITEM: |
PUBLIC
HEARINGS |
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18. |
CONSIDER APPLICATION TO Amend |
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Meeting
Date: |
January 29, 2009
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Budgeted:
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N/A
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From: |
Darby Fuerst,
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Program/ |
N/A |
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General
Manager |
Line Item No.: N/A |
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Prepared
By: |
Henrietta
Stern |
Cost
Estimate: |
N/A |
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General Counsel
Approval: Yes |
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Committee Recommendation: N/A |
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CEQA
Compliance: The MPWMD, as a
Responsible Agency, will rely on the EIR for the Monterey Bay Shores Resort (SCH
#97091005) previously certified by the City of Sand City in December 1998, and
the Addendum to the EIR (December 2008) adopted by the City on January 20,
2009. |
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SUMMARY: This action is a continuation of a public
hearing held on November 17, 2008 for consideration of Application #20080915MBS (Exhibit 18-A)
submitted on September 15, 2008 by co-applicants California Am
Pertinent elements of the November 17, 2008 staff note are repeated herein for clarity; the complete November 2008 materials are available on the District website at:
http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2008/20081117/11/item11.htm.
Various
quantities of water have been estimated for the project. As of January 16, 2009, the MBSE application
requests District approval to enable CAW service of up to 90 acre-feet per year
(AFY) to Assessor’s Parcel Number (APN) 011-501-014, the site of the proposed
Ecoresort (Exhibit
18-B). CAW extractions
from the
The MPWMD serves as a Responsible Agency in this matter in compliance with the California Environmental Quality Act (CEQA), and relies on environmental documents adopted by the City of Sand City (Lead Agency), as discussed below. All files associated with this application are available for review at the District office. This public hearing has been properly noticed.
RECOMMENDATIONS: District staff recommends that the Board take the following actions:
1. Adopt the MPWMD Findings of Approval for Application #20080915MBS to Amend the CAW WDS (Exhibit 18-D) with specific reference to Findings associated with District compliance with CEQA as a Responsible Agency.
2. Approve Application #20080915MBS; authorize issuance of MPWMD Permit #M09-03-L4 with the 28 Conditions of Approval specified in Exhibit 18-E. The Conditions of Approval include required conditions as specified in MPWMD Rule 22-D as well as special conditions for this project.
3. Direct staff to file a Notice of Determination with the Monterey County Clerk in compliance with CEQA Guidelines Section 15096(i).
BACKGROUND: The history of the MBSE application is provided on the District website at:
http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2008/20081117/11/item11.htm.
The
39.04-acre project site was used for sand mining for 60 years, and is currently
in a degraded state. The resort proposal
now includes the following uses: (1) a
161-room hotel; (2) 46 visitor-serving condominium units; (3) 42
visitor-serving condominium units; (4) 92 residential condominium units; (5)
auxiliary uses to include a restaurant, conference and spa facilities; (6) open
space area, public access and parking, and trails. Many sustainable “green” technologies are
proposed, as described on the MBSE project website: http://www.montereybayshores.com/.
Water-related technologies are discussed
below. Additional project information is
found in Addendum to the Final Environmental
Impact Report,
Water
Rights
Integral
to the MBSE water supply is the Seaside Groundwater Basin Adjudication Judgment
of March 27, 2006 (Final Decision). This
Decision sets the groundwater quantity allowed to be used by SNG on its property
(APN 011-501-014). The Decision also
stipulates that the
The
ability for SNG to transfer excess water (149 AFY – 90 AFY = 59 AFY) elsewhere
in the Basin has also been affirmed by the Watermaster in its September 19,
2008 letter (Exhibit 18-C). Specifically, subject to timelines set by the
Superior Court, SNG or its successor(s) has the right to convert the remaining
59 AFY of the 149 AFY original allotment to a Standard Production Allocation
(SPA) by filing a declaration and serving it to all parties in the
MPWMD Information Requests in November
2008
At the November 17, 2008 public hearing, the District Board directed that the hearing be continued and made several information requests. These requests were provided to the applicant in a letter from MPWMD staff dated November 20, 2008, and included:
The applicant responded to these eight information requests in a letter dated December 22, 2008, which was part of a package received on December 23, 2008, as described below. Additional information was received via e-mail through early January 2009. The “Discussion” section below highlights pertinent information submitted by the applicant that responds to the eight requests.
DISCUSSION: The following paragraphs review the applicant’s responses to the eight information requests, and highlight new information. Findings and Conditions of Approval are then discussed along with CEQA compliance.
Exhibit 18-F provides the applicant’s
December 22, 2008 response to each of the eight information requests. The entire December 2008 package is not
reproduced herein as several attachments (more than 150 pages) consist of
copies of previous Court Decisions and State of
Item 1: Provide Letter from Monterey County Health
Department re: Gray Water Reuse
Exhibit 18-G is a December 23, 2008 letter from the Monterey County Health Department (MCHD) concurring with the gray water reuse scenario described in the applicant’s “Water Process Flow Diagram” dated December 23, 2008 along with accompanying descriptive text. It is noted that some of the original MBSE reuse concepts had to be changed to conform with MCHD and State regulations, particularly the restriction to subsurface irrigation only.
Subsequent to the MCHD letter, the District was contacted by staff from the Regional Water Quality Control Board (RWQCB), who expressed concerns about certain elements of the gray water reuse approved by MCHD. Exhibit 18-H is a January 7, 2009 e-mail from Mr. Matt Keeling, expressing support for such sustainable technologies, but noting regulatory issues associated with gray water discharge, which is currently classified as a “waste discharge.” In response, the applicant amended the “Water Process Flow Diagram” dated December 23, 2008 to a new diagram and description dated January 7, 2009 (Exhibit 18-I). In an e-mail dated January 8, 2009, Mr. Keeling noted his satisfaction with revised design (Exhibit 18-J).
Item 2: Compare Water Use in Similar Mixed Use
Resorts, If Available
The applicant’s response (Exhibit 18-F) explains why comparisons are not possible, given the unique nature of individual resorts. The response provides reasons why the MBSE project would use less water than standard resorts of a similar size.
Item 3: Provide
Water Use Calculations and Obtain MPWMD Staff Concurrence
The Board requested that a table be prepared showing the components of the MBSE project and how water use was estimated. Exhibit 18-K includes a summary table dated December 22, 2008 that relies on MPWMD water use factors. This table assumes 100% occupancy, no reuse of water from laundry facilities, and the need for 1.2 AFY of potable water to augment non-potable (recycled/gray water) irrigation sources. Water use is estimated at 62.99 AFY with this scenario. The total estimated use is 71.08 AFY if the gray water/recycle systems are assumed to be non-functioning, a difference of 8.09 AFY. District permit staff has reviewed the summary table and the supporting MPWMD forms from which the table was derived, and concurs with these water use estimates. The forms and related raw data are available for inspection, upon request.
As requested by the Chair/Vice-Chair on January 2, 2009, a second table dated January 7, 2009 (Exhibit 18-L) compares the original 1998 project proposal, and the current MBSE proposal with and without water-saving technologies in place. This table also takes into account the revised “Water Process Flow Diagram” described in Item #1 above. Net water use with the project as proposed is estimated to be 56.99 AFY with all reuse technologies in place; estimated water use could increase to 71.08 AFY if reuse systems fail. The 1998 project proposal envisioned 99 to 125 AFY. The exhibit also provides a figure to illustrate these comparisons.
Regardless
of the assumptions made about reuse, a maximum amount of 90 AFY is requested in
the application. This higher amount
would provide 26% to 58% more water above the base amount (depending on
assumptions made), and would serve as a buffer to account for highly unusual
circumstances and/or additional irrigation needed to establish vegetation after
the completion of construction. Recall
that the MBSE can receive up to 149 AFY from the
It is noted that water use calculations will be finalized by MPWMD staff after the project is approved by the California Coastal Commission and City of Sand City, and final construction drawings are prepared as part of the building permit process.
Item 4: Explain MBSE Water Rights and Water Delivery by
CAW
The applicant’s response (Exhibit 18-F) describes the
Item 5: Address Potential Effects of Wind-Blown Sand
The applicant’s response (Exhibit 18-F) describes measures taken to prevent or minimize damage to water-saving equipment by wind-blown sand.
Item 6: Provide Water-Related Sections of MBSE
Addendum for Public Review
On December 3, 2008, the applicant provided the District a CD
with project description and water–related sections of the Addendum to the Final Environmental Impact Report,
http://www.mpwmd.dst.ca.us/ceqa/ceqa.htm.
Item 7: Encourage
The applicant’s response (Exhibit 18-F) describes efforts to work with the lead agency, the City of Sand City, to provide public review opportunities for the full Addendum. There are links available from the MBSE website at: http://www.montereybayshores.com/. As described in the “CEQA Compliance” section below, the City formally adopted the Addendum at a public hearing held on January 20, 2009 via Resolution #SC 09-06.
Item 8: Public Outreach Efforts
The applicant’s response (Exhibit 18-F) describes public outreach efforts since the MPWMD hearing on November 17, 2008, which include a public workshop hosted by the City of Sand City on November 18, 2008, and a December 3, 2008 Green Building Expo, as well as other presentations. Additional future efforts are planned, and there is a project website at:
http://www.montereybayshores.com/. The public activity attachments provided by the applicant are available for inspection, upon request.
Findings and
Conditions of Approval
The Findings of Approval for Application #20080915MBS (Exhibit 18-D) are based on evidence
provided in the application materials, including supporting documents received
through mid-January 2009 on file at the District office. Staff believes the application meets the
criteria and minimum standards for Approval set by District Rules 22-B and C. Pertinent information includes environmental
documents prepared for the City of Sand City, technical studies and reports,
technical memoranda and maps, correspondence between MPWMD staff and the
applicant, previous approvals by other governmental entities, and action by the
Superior Court. MPWMD approval of the
application, as conditioned, is not anticipated to result in a further effect to
the
The Conditions of Approval (Exhibit 18-E) proposed for Permit #M09-03-L4
are consistent with MPWMD Rule 22-D governing approval of Water Distribution
Systems. Conditions #1-4 define the
Permitted System, including designation of up to 90 AFY of metered CAW sales to
serve the MBSE located on APN 011-501-014, based on SNG’s legal right to 149 AFY
of Alternative Production Allocation water.
Importantly, for the purpose of MPWMD’s Mandatory Conservation and
Standby Rationing Program, Condition #3 adds 90 AFY to CAW’s allowed use from
the
Conditions #5-23 reflect standard MPWMD mandatory conditions, including water quality, metering and annual reporting, conservation, required Indemnification Agreement, fee payments, timely notice of pending or actual changes to the system, and other required elements. Other Conditions of Approval (Conditions #24-25) address water rights and the Endangered Species Act; these are not required by District rules, but are included in all MPWMD WDS permits.
Special Condition #26 addresses the requirement that District staff have physical access to the two dedicated monitor wells owned by MPWMD on APN 011-501-014, in addition to the existing production well owned by SNG. The District’s wells must be maintained in good condition throughout construction. Special Condition #27 requires SNG and its successors to provide copies to the District of any report submitted to the Watermaster on water levels in its production well(s) on a monthly basis; the amount of water it has produced on a quarterly basis; and certain water quality test results on an annual basis each Fall. It also requires CAW to provide metered sales information to parcel APN 011-501-014 on an annual (water year) basis, and more frequently, if directed. Special Condition #28 requires Security National Guaranty, and its successors, to give notice to the District and copies of any correspondence with the Watermaster regarding transferring the right to produce water from the Basin under an Alternative Production Allocation right to a Standard Production Allocation right. The applicant has indicated that he understands and agrees with these conditions.
The
District Board action must comply with CEQA as well as MPWMD regulations. In the review of this application, MPWMD has
followed those guidelines adopted by the State of
As described in more detail below, the District Board also relies on a technical Addendum, prepared in October 2008 and updated in December 2008, which describes the reduced size and scope of the project, particularly its reduced water use due to new water-saving technologies that are now part of the project description. At a January 20, 2009 public hearing, the City of Sand City formally adopted the Addendum, including an errata sheet with minor corrections unrelated to water supply or hydrology. The City passed Resolution #SC 96-06 that determined: (1) no major revisions to the EIR are needed for the revised project, and (2) no Subsequent EIR is required for the revised project.
The October 2008 (brown cover) Revised Draft Addendum to the Environmental Impact Report for the Monterey Bay Shores Resort (SCH # 97091005) was provided to District staff, Board members, and was available for public review as part of the November 17, 2008 public hearing. In early December 2008, a revised version with minor changes (light blue cover, still dated October 2008) was provided to the District. Project description and water-related section of this December 2008 document were placed on the District website and a hard cover copy was provided in the District foyer. Exhibit 18-M provides December 2008 (light blue cover) Addendum pages 69, 70, 108 and 109, and marks the paragraphs where minor changes were made to the text.
As required by CEQA Sections 15091, 15092 and 15093, the District Board, through Findings (and cited evidence) #21, 22 and 23 (Exhibit 18-D) has determined that: (a) the project will not have a significant effect on the environment, (b) mitigation measures are not required as part of the District’s action on this WDS permit, and (c) a Statement of Overriding Considerations was not adopted by the District Board for this action. If the application is approved by the Board, the District will file its own Notice of Determination in compliance with Section 15096(i).
CEQA does not require an Addendum to be circulated for public comment. The Addendum was prepared for the City of Sand City because between the date that an environmental document was completed (in this case, 1998) and the date the project is fully implemented, one or more of the following changes may have occurred: (1) the project may change, be modified or revised; (2) the environmental setting in which the project is located may change, becoming more or less sensitive with respect to specific resources; (3) laws, regulations, or policies may change in way that may impact the environment; and/or (4) new or previously unknown information can arise. Before proceeding with a project, CEQA requires the Lead Agency to evaluate these changes to determine whether or not they affect the conclusions in the environmental document. It is noted that the project size has been reduced, “green” building practices have been incorporated, and the anticipated water demand has been reduced as compared to the project analyzed in 1998. Also the proposed WDS application anticipates production from CAW wells further inland rather than by coastal wells at the project site, which reduces the risk of seawater intrusion.
As stated in the Addendum, its purpose is to reevaluate the environmental impacts of the MBSE in compliance with CEQA Guidelines and based on the modifications made to the project to address concerns raised by the California Coastal Commission staff. CEQA Guidelines Section 15164 states that the lead agency or a responsible agency shall prepare an Addendum to a previously certified EIR if some changes or additions are necessary, but none of the conditions described in CEQA Section 15162 (Subsequent EIRs and Negative Declarations) have occurred. The Addendum will suffice for purposes of the District as a Responsible Agency, thus fulfilling the requirements of CEQA. Furthermore, CEQA Section 15164(c) states that an addendum need not be circulated for public review. As noted above, the City of Sand City adopted the Addendum at a public hearing on January 20, 2009. The District’s understanding is that the adopted Addendum has been provided to the Coastal Commission to assist staff and the commissioners in evaluating the revised project and its impacts. Although not legally required, the District’s understanding is that the adopted Addendum will be available to the public as part of the Coastal Commission review.
Public notice has been provided for this public hearing in several ways, including: (1) mailed notices to property owners within 300 feet of the subject parcel; (2) posted notices at the project site; (3) posted notice at the MPWMD office; (4) notice of the public hearing to recipients of District agendas for the January 29, 2009 meeting; (5) standard agenda/hearing notices to local media; and (6) posting of the CEQA documents and related materials on the District website at:
http://www.mpwmd.dst.ca.us/ceqa/ceqa.htm and for agenda items/meetings at:
http://www.mpwmd.dst.ca.us/asd/board/meetings/meeting.htm (see Jan. 29, 2009, Item 18).
To date (January 21, 2009 at 10:00 AM), fifty comment letters have been received; a listing is provided as Exhibit 18-N and the actual letters will be provided to the Board under separate cover. Any letters received after the printing deadline for this staff report will be provided to the Board at the January 29, 2009 hearing. All letters are available for inspection, upon request. Nearly all of the letters received have expressed support for the MBSE project and the benefits of the water-saving technologies; one letter written in mid-December 2008 expressed concern about access to the project EIR and requested a delay of the public hearing until February 2009; and one letter requested that a new Condition of Approval be imposed that relates to SWRCB Order 95-10. Due to its legal nature, this letter is copied as a separate exhibit and is addressed in the following paragraphs.
Exhibit 18-O is the 3-page letter dated January 15, 2009 from Laurens Silver of the California Environmental Law Project (CELP) on behalf of the Sierra Club. The letter on page 1:
“urges the District to include in its
Conditions of Approval for this project a condition that would require that the
water pumped by Cal Am for use on the SNG site (90 AFY) be subtracted from the CAW
system production limit of 11,285 [AFY] from the Carmel River, in accord with
SWRCB Order 95-10, Conditions 2 and 4.”
SWRCB Order 95-10 Condition No.
2 mandates one-for-one reductions in unlawful diversions from the
“
It is noted that the full text of Condition No. 4 was not quoted in the CELP letter. It is beyond the scope of District staff’s expertise to compare the merits of the applicant’s assertion of superior, independent water rights that CAW may use (see Exhibit 18-F, and discussion Item 4 above) with the assertions in the CELP letter. Another question is whether the District has the authority to reduce the 11,285 AFY diversion limit set by the SWRCB.
The CELP evidently has sent a separate letter to the SWRCB requesting a determination on this issue. The CELP letter to the District (on page 2) asks for deferred action as follows:
“If the District is not inclined to make a
determination on this issue itself, Sierra Club urges the District to defer
action on these applications until the Water Rights Division has made its
determination.”
As shown in Exhibit 18-P,
the applicant provided a January 20, 2009 e-mail from Kenneth Emanuel, a SWRCB/Water
Rights Division technical staff member, confirming the applicant’s
understanding of a meeting between the applicant and SWRCB staff regarding
SWRCB’s authority in the
On pages 2 and 3, the CELP letter
asserts that MPWMD Rule 22-B compels a reduction in
Printing deadlines do not allow a legal analysis by District Counsel in this staff report regarding the merits of the aforementioned assertions. It is anticipated that these issues will be discussed at the January 29, 2009 hearing. Exhibit 18-Q is a letter from the applicant’s attorney (Sheri L. Damon) received January 21, 2009 that responds to the CELP letter as well as a January 6, 2009 letter written by the League of Women Voters. The Damon letter notes that the District was consulted in all environmental documents associated with the project and did not challenge them; that the current MBSE project results in reduced impacts; that the City of Sand City has formally adopted the Addendum; describes Court-ordered water rights; and asserts that the CELP logic is flawed in relation to SWRCB Order 95-10. The letter notes that use of CAW water is the preferred option, but that the applicant has an alternation “Option 2” to use onsite wells. The letter requests action on this second option if for some reason use of CAW is denied.
The CELP letter also expresses concerns about CEQA compliance and reliance on an Addendum that has not yet been approved by the Lead Agency. The letter was written before January 20, 2009, when the City of Sand City formally adopted the Addendum (with minor corrections unrelated to water supply or hydrology) via Resolution #SC 09-06. In relation to water supply issues, the Addendum simply summarizes information that is already in the public record and/or has already been evaluated by MPWMD independently as part of the WDS approval process. The pertinent information in the Addendum includes:
·
Updated water rights status for SNG and
determination of 149 AFY available to the project site as a result of the
· Confirmation by the Watermaster that CAW may serve the MBSE parcel based on SNG water rights;
· Revised water use estimates, as confirmed by District staff, for MBSE as proposed in 2009; this amount is less than the original project evaluated in the 1998 EIR; and
· Description of MPWMD approval process for the subject WDS permit.
EXHIBITS
18-A Application #20080915MBS to amend the CAW WDS
(without attachments)
18–B Map of Project Location
18–C Seaside Basin Watermaster letter confirming water
rights
18–D MPWMD Draft Findings
of Approval, January 2009
18–E MPWMD Draft Conditions
of Approval, January 2009
18–F December 22, 2008 response by applicant to eight District
information requests
18–G December 23, 2008 letter from Monterey County
Health Department re: gray water reuse
18-H January 7, 2009 e-mail from RWQCB re:
concerns about gray water reuse
18-I January 7, 2009 letter and flow diagram
from Rana Creek with revised gray water reuse
18-J January 8, 2009 e-mail from RWQCB re:
confirm acceptance of revised flow diagram
18-K Summary table of water use estimates using
MPWMD figures
18-L Summary table comparing project with and
without reuse technologies
18-M December 2008 Addendum to Final EIR, four-page
excerpt
18-N List of comment letters received
18-O Letter from California Environmental Law
Project/ Sierra Club dated January 15, 2009
18-P Email from SWRCB (Kenneth Emanuel) dated
January 20, 2009 confirming applicant letter dated October 10, 2008 regarding
SWRCB jurisdiction over
18-Q Letter by applicant attorney (Sheri L.
Damon) received January 21, 2009 responding to California Environmental Law
Project/Sierra Club letter and attaching Sand City Resolution #SC09-06 adopting
the Addendum to the EIR
Prepared
by H. Stern, updated 01/21/09 at 10 AM
U:\staff\word\boardpacket\2009\20090129\PubHrgs\18\item18.doc