EXHIBIT 20-A
DRAFT URGENCY ORDINANCE
Version 3, dated January 20,
2010
ORDINANCE NO. 143
AN
ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT TEMPORARILY SUSPENDING PROCESSING AND RECEIPT OF APPLICATIONS FOR WATER
DISTRIBUTION SYSTEMS IN FRACTURED ROCK FORMATIONS
FINDINGS
1.
The
Monterey Peninsula Water Management District (MPWMD, Water Management District,
or District) was authorized in 1977 by the California Legislature (Chapter 527
of the Statutes of 1977, as amended, found at West’s Water Law Appendix Section
118-1, et seq.). Voters of the
2.
The
Water Management District is authorized to establish a written permit system to
regulate Water Distribution Systems (WDS), regardless of the number of
connections served or the source of the water supply.
3.
The
Board of Directors finds that regulating all WDS, including mobile WDS, is
necessary to protect District water resources and to assure that sufficient
water will be available for present and future beneficial use by all District
inhabitants and lands. The need for
these protective efforts has been heightened by the State Water Resources
Control Board (SWRCB) Order No. WR 95-10 against California American Water
(CAW), the Cease and Desist Order No. WR 2009-060 (CDO), the Monterey County Superior Court’s
adjudication of the Seaside Groundwater Basin, and the listing of the
California red-legged frog and steelhead as threatened species under the
federal Endangered Species Act (ESA), resulting in the need to protect the
public trust resources of the Carmel River.
Management efforts assess and minimize: (i) the cumulative impact of WDS
upon water resources; (ii) the demand burden on CAW that can result from
failure of small systems; (iii) fire risks presented by small systems; (iv)
water quality concerns; (v) cross-contamination of water supplies and water
systems; (vi) public utility service area limitations; (vii) lack of clear
identification of water rights for water systems; and (viii) other limits
associated with CAW supply as a result of SWRCB Order WR 95-10, the CDO and the
Seaside Basin Adjudication.
4.
The
Water Management District has enacted, by ordinance, a set of Rules and
Regulations to implement its statutory authority. District Rule 11 defines the terms used in
the regulation of water distribution systems and mobile water distribution
systems. District Rules 20, 21, 22, 40,
54 – 56, 60, 114 and 173 further define procedural and substantive rules that
regulate these systems.
5.
In the nine
years since Ordinance No. 96 was adopted in March 2001, more than 70 WDS
permits have been issued, primarily for residential use. Roughly seventy five percent (75%) of these permitted
WDS (55 approvals) are served by wells extracting water from consolidated
“fractured rock” geologic formations, which are known to be less productive and
less reliable than unconsolidated, river-based alluvial sources. An estimated 30 Pre-Applications, Exemption
Requests or applications in progress could potentially be approved. This is in
addition to 388 tabulated active non-CAW wells in fractured rock formations, including
292 in the Carmel Valley Upland area, and 96 in the “Miscellaneous” area
(primarily Jack’s Peak,
6.
Due to
the lack of available supply from the CAW water system, there have been an
increasing number of applications for wells within the CAW service area,
including a recent spate of applications on smaller lots in urban areas. There is a need to proactively assess the
situation, and determine whether modifications to MPWMD Rules & Regulations
are needed. The urgency is due to concern about the effect of wells
on small lots in urban areas; ramifications of well failure in light of the
CDO; and cumulative impacts to water resource systems within the District.
7. The Water Management District Board of
Directors has received input from the public on this matter at its Water Demand
Committee of December 7, 2009 and at the regular board meeting of December 14,
2009. General concepts for this
ordinance were reviewed by the District’s Technical Advisory Committee at its
January 5, 2010 meeting. Input to
District staff was provided by the staff of the Monterey County Health
Department and Monterey County Planning Department at a meeting on January 20,
2010.
8.
Because
this ordinance is a short-term, temporary suspension of ongoing permit
processing activities that were previously subject to California Environmental
Quality Act (CEQA) review, this ordinance it is not considered to be a
“project” under CEQA, and no environmental document need be prepared.
9.
This
ordinance is adopted to enhance the District’s ability to protect water quality
and quantity, to prevent diminution of waters within the District, to protect
environmental values, and is consistent with the District’s authority to
reasonably regulate all water resources within District boundaries. The urgent need for immediate enactment of
this measure has arisen as this ordinance responds to the increasing number of
applications for new wells that extract water from less reliable fractured rock
formations, and the potential ramifications of this increased use on the water
resources environment, as well as the potential ramifications of well
failure.
10.
This
ordinance shall not amend the Rules and Regulations of the Water Management
District.
11.
This
ordinance has been proposed for urgency enactment and shall take effect on
January 29, 2010 following a single reading provided it is approved by at least
five (5) members of the Board. This ordinance
shall preserve the health and safety of CAW water users and current well
owners.
NOW THEREFORE be it ordained as
follows:
Section One: Short Title
This ordinance shall be known as the “January 2010 Temporary Suspension
of Water Distribution System Permit Processing Ordinance” of the Monterey
Peninsula Water Management District.
Section Two: Purpose
The purpose of this ordinance is to enable the
understanding and evaluation of concerns about wells in Fractured Rock
formations, to determine whether current policies adequately protect the water
resources and water consumers within the District, or to draft an ordinance for
first reading at the May 17, 2010 board to address these issues, if needed.
Section Three: Definitions
Solely for the purposes of ordinance, the
following definitions shall apply:
APPLICATION IN PROGRESS -- An “Application in Progress” is defined as
a Water Distribution System application that has not received signed
authorization from the General Manager (or designee) or Staff Hearing Officer
(Level 2 and Level 3 Permits, respectively), or approval by the District Board
of Directors at a public hearing (Level 4 Permit).
FRACTURED ROCK– “Fractured Rock” or
a “Fractured Rock formation” refers to a water-bearing formation with
limited production and potentially uncertain reliability as compared to the
more productive formations such as river-based alluvial deposits. The more proper terminology is a geologic
formation that is primarily influenced by “secondary porosity” (e.g., fractured
granitic rocks, shales, etc.) rather than “primary porosity” (e.g., alluvium,
dune deposits, terrace deposits).
Section Four: Suspension of Receipt and Processing of WDS Applications
For the period beginning on the date of adoption
of this ordinance, and ending on May 31, 2010, MPWMD staff shall suspend (a) receipt of new
Water Distribution System Pre-Applications and Applications, pursuant to MPWMD
Rules 20 and 21, for wells extracting water from Fractured Rock; and (b)
processing of all Applications in Progress, pursuant to MPWMD Rule 22. This ordinance applies to all wells within
the boundaries of the Water Management District except for the situations
described in Section Five, Exceptions. For
clarity, the processing of Pre-Applications and Applications in non-fractured rock
settings (e.g., alluvial wells, desalination, wastewater reclamation, etc.)
shall not be affected by this ordinance.
Section Five: Exceptions Where Suspension Is
Not in Effect
A. The receipt and processing of WDS
Applications and Pre-Applications for new wells in Fractured Rock formations shall
not be suspended in the following situations:
[Each shaded entry is considered an option for the MPWMD Board to adopt
or reject –see staff summary for more details.]
1.
Any parcel that is outside of the CAW
service area.
2.
Any parcel 2.5 acres or larger in the CAW
service area, so long as (a) the well serves only irrigation needs, (b) the residence(s)
or business on the property is already fully served by an active CAW connection
for potable supply, and (c) the subject well(s) is not within 1,000 feet of a
Sensitive Environmental Receptor, as defined by MPWMD Rule 11.
3.
Applications submitted by CAW to amend
its integrated water system (e.g., merge Bishop and Ryan Ranch Units), which
require approval by the MPWMD Board at a public hearing.
4.
Any parcel in the
5.
Applications previously deemed to be
complete in year 2009 that are nearing their 6-month State Permit Streamlining
Act action deadlines.
6.
Qualified Exemption Requests
(Pre-Application form) for existing or replacement wells.
7.
Pre-Applications
for a New Well (WDS permit needed) received on or before January 28, 2010, if
the project meets [Category #1-#5] criteria [selected by Board].
This ordinance shall be adopted with urgency
effect and take effect at 12:01 a.m. on January 29, 2010. By its own terms, this ordinance shall have
no force or effect after May 31, 2010.
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 ________________, 2010, by the following vote:
AYES:
NAYS:
ABSENT:
I,
____________________, 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
_____________ 2010.
Witness my hand and
seal of the Board of Directors this ________ day of ____________ 2010.
U:\staff\word\boardpacket\2010\20100128\PubHrgs\20\item20_exh20a.doc