ITEM: 

PUBLIC HEARING    

 

13.

CONSIDER FIRST READING OF ORDINANCE NO. 160 – COMPREHENSIVE  CHANGES TO MPWMD RULES AND REGULATIONS FOR WATER DISTRIBUTION SYSTEM PERMITS

 

Meeting Date:
March 17, 2014

Budgeted: 

N/A

 

From:

David J. Stoldt,

Program/

N/A

 

General Manager

Line Item No.:

N/A

 

 

 

Prepared By:

Henrietta Stern

Cost Estimate:

N/A

 

General Counsel Review:  Concurs with staff’s recommendation.  

Committee Recommendation:  The Rules and Regulations Review Committee met on March 4, 2014 and voted 3 to 0 to bring this item to the full Board due to its importance.

CEQA Compliance:  This is not a “project.”  

 

 

 

SUMMARY:  The Board will consider the first reading of MPWMD Ordinance No. 160 (Exhibit 13-A) that amends several rules associated with issuing Water Distribution System (WDS) and Mobile WDS Permits.   The proposed changes would implement a more streamlined process, reduce duplication between MPWMD and Monterey County for permitting certain types of wells, and bring the District’s Rules into conformance with generally accepted legal theories concerning rights to percolating groundwater.  No changes are proposed for systems located in, or those which could have an impact on, the Monterey Peninsula Water Resource System (MPWRS)[1], which includes the Carmel River and its tributaries, the Carmel Valley Alluvial Aquifer (CVAA), and the Seaside Groundwater Basin.  Exhibit 13-B summarizes staff’s proposal for the revised WDS Permit process, which would expand the Exemptions and create three WDS Permit Review Levels.  Please see the “Discussion” section below for further details.

 

Due to the extensive proposed changes, Ordinance No. 160 completely replaces certain rule sections in their entirety rather than specifying each change to the current rules.  A marked up copy of the rules was available at the March 4, 2014 Rules and Regulations Review Committee.

 

The proposed ordinance and its associated Implementation Guidelines comply with the Board’s April 2013 Strategic Plan goal and its policy direction in December 2013 to:

·         make the WDS process more streamlined and reduce duplication of effort between agencies;

·         comply with the District enabling legislation (District Law);

·         address concerns about the District’s authority to set System Limits in certain situations;

·         be consistent with changes being considered for Monterey County’s well regulations;

·         comply with the District’s mandate to protect water resources of the Monterey Peninsula; and

·         maintain District Board oversight on staff permit determinations. 

In brief, the following rules are proposed to be changed as follows:

·         Rule 11, Definitions:  Terms are deleted, added or amended for clarity.

·         Rule 20-A, Permits Required:  Text is revised for clarity and consistency.

·         Rule 20-C, Exemptions:  Exemptions are expanded, including for use of percolating groundwater subject to correlative rights, and criteria are clarified. Additional information is provided about Mobile WDS.

·         Rule 21-A, Application:  Required information is clarified and expanded.

·         Rule 22, Action on Application:  Revisions are made regarding the Permit Review Levels and the permit processing protocol (Rule 22-A).  Reference to analysis and documentation by the Monterey County Environmental Health Bureau (MCEHB) is included in Rules 22-B (Findings) and 22-C (Minimum Standards).  Guidance is provided on when production and connection limits are to be imposed (Rule 22-D).  A simplified “Matrix of Permit Review Levels” replaces the current Table 22-A.

·         Rule 173, Mobile WDS:  Minor refinements are made to be consistent with other rules. 

 

Some rules refer to Implementation Guidelines for details on permit processing.  Currently, MPWMD’s Implementation Guidelines for issuing WDS permits include a series of Memoranda and procedural statements developed in response to periodic rule changes.  The attached Draft Implementation Guidelines provided as Exhibit 13-C are intended to provide a “road map” for the public and District staff processing the application.   This exhibit focuses on the proposed rule changes and would be supported by forms, worksheets or other reference materials already provided on the District website at: http://www.mpwmd.dst.ca.us/pae/wds/wds.htm.   

 

After adoption of Ordinance No. 160, the current website information will be reviewed for consistency with the new rules, and revised as needed.     A new master Implementation Guidelines document will be prepared by the effective date of the ordinance. 

 

Ordinance No. 160 “does not have the potential to result in either a direct or reasonably foreseeable indirect physical effect in the environment” and so is not considered a “project” under the California Environmental Quality Act (CEQA) Guidelines, Section 15378.   The function of the ordinance (and its associated Implementation Guidelines) is to clarify permit processing protocol.  In contrast, each future application received will be subject to CEQA review in order to determine whether the proposal is exempt under CEQA or will require environmental review in compliance with the pertinent CEQA sections.  District action on WDS permits for potable supply partly relies on assessments by Monterey County agencies on the potential physical effects of new wells that are part of the County Well Construction Permit approval process.  This County permit must be attached to an application to MPWMD.  It should be noted that in most non-exempt permit applications, MPWMD would act as a CEQA Responsible Agency.

       

RECOMMENDATION:   District staff recommends that the Board:

·         Approve the first reading of Ordinance No. 160, shown as Exhibit 13-A, or provide recommended text changes.

·         Direct staff to prepare a final version for second reading and adoption at the April 21, 2014 meeting. 

·         Direct staff to finalize the Implementation Guidelines (Exhibit 13-C), prior to the effective date of the Ordinance.   

·         Confirm its December 9, 2013 policy direction that the proposed new rules may apply to qualified non-MPWRS applications in progress, in addition to qualified new applications received before the effective date, as determined by the General Manager.

The Rules and Regulations Review Committee met on March 4, 2014 and voted 3 to 0 to bring this item to the full Board due to its importance.

 

BACKGROUND:  The Board’s Strategic Plan Update adopted on April 15, 2013 included a goal to evaluate and revise the WDS regulations.  In mid-2013, it was determined that the District’s authority to set System Limits (production and connection limits) is narrower than previously thought, particularly for wells located outside of the MPWRS and that rely on percolating groundwater subject to correlative water rights.  In addition, Monterey County is also assessing and revising its Well Ordinance in consultation with District staff and other entities.  Based on this information, the Board took the following actions:

 

Ø  Adopted Resolution 2013-12 on July 22, 2013– The Resolution directed the General Manager to suspend for one year several actions for Fractured Rock Wells located on a single parcel until the WDS regulations could be amended.  The District would not: (a) set System Limits, (b) require hydrogeologic testing above and beyond the standard testing required by the Monterey County Environmental Health Bureau, and (c) perform other MPWMD staff activities relevant to setting a System Limit, including assessment of the impact to Neighboring Wells (Ordinance No. 150). 

 

Ø  Provided policy guidance to staff on December 9, 2013— The Board approved comprehensive policy changes for all water system situations and directed that a new ordinance be prepared that reflects the Board’s policy direction. 

 

For detailed background information, please consult the District website under “Board Meeting Agendas and Packets” and select the above dates.   

 

DISCUSSION:  MPWMD Rules 20, 21 and 22 form the heart of the WDS Permit process.  Rule 20 states that a WDS Permit is needed to create or amend a WDS, and lists a series of exemptions.   Rule 21 focuses on the application package itself, while Rule 22 focuses on the approval process, including (a) protocol for different Permit Levels, (b) required findings, (c) minimum standards for approval, and (d) mandatory condition of approval, and others.  Rule 173 addresses Mobile WDS (i.e., bulk hauling of water in trucks).  Other rules also address WDS, such as Rule 11, Definitions.  The MPWMD Rules & Regulations are provided on the District website.

 

Staff believes the proposed ordinance and Rule changes reflect the policy direction of the Board on December 9, 2013.  These changes would:

 

·         delete the Pre-Application step;

·         simplify the decision matrix on how to process an application;

·         revise the categories of permit review;

·         expand exemptions for systems that are located outside of the Monterey Peninsula Water Resource System and would not have an adverse effect on the MPWRS;

·         cease setting System Limits (annual production and connection limits) for non-MPWRS systems that qualify for an exemption or Level 1 Permit;

·         scrutinize non-MPWRS facilities located within 1,000 feet of the MPWRS to ensure there is no adverse effect to the MPWRS;

·         set System Limits only for systems within the MPWRS or those that could affect the MPWRS;

·         consider impact assessments performed by Monterey County as part of its Well Construction Permit process for non-MPWRS wells; require more detailed testing only for systems within the MPWRS or those that could potentially adversely affect the MPWRS (within 1,000 feet);

·         include a permit process for non-well situations;

·         address different types of Mobile WDS; 

·         designate staff (General Manager or his designee) to process all applications administratively, except for large, complex, or controversial projects in sensitive areas;

·         maintain the provision that all staff decisions can be appealed to the Board;

·         revise the definition of a Single-Parcel Connection System to a system located on one legal parcel that serves only that legal parcel.

·         revise the definition of a Sensitive Environmental Receptor to include all Carmel River tributaries within the District boundary that are not in the Ventana Wilderness.

 

Currently, Rule 22 (Table 22-A) includes a complex matrix of well location, parcel size, water production, land use and number of parcels served, which is used to determine procedures for issuing a WDS Permit, resulting in an Exemption or one of four WDS Permit Review Levels.  The revised proposal would expand the Exemptions and result in one of three WDS Permit Review Levels.

 

Implementation Guidelines:  The Implementation Guidelines (Exhibit 13-C) provide a “road map” to staff and the public on how an application will be processed.  Sections 1.0, 2.0 and 3.0 provide background information, describe required information submitted with an application, and explain the different levels of review.  Sections 4.0, 5.0 and 6.0 address the non-MPWRS areas, Seaside Basin, and CVAA, respectively.  Section 7.0 and 8.0 address non-well situations and Mobile WDS, respectively.   Attachments include application forms and other information (to be completed in May 2014 pending District Board approval of Ordinance).

 

An application is reviewed based on a series of questions, which include:

·         Is the proposed WDS based on a well or not?

·         If not a well, what facilities are proposed, and where?

·         Is the well located within or outside the MPWRS? 

·         Is the well located within 1,000 feet of the MPWRS?

·         If the well is within the MPWRS, which component is affected (CVAA, Seaside Basin, tributary etc)?

·         How much water production is anticipated?

·         How many parcels are served by the water system?

 

Based on the answers, the application would follow one of four pathways:

 

·         Confirmation of Exemption

·         Level 1 WDS Permit (Basic Non-MPWRS; no System Limits)

·         Level 2 WDS Permit (Basic Seaside Basin; General Adjudication Limits)

·         Level 3 WDS Permit (Project-Specific MPWRS/Other with System Limits).

 

These designations differ from the “Level A, B, C and D” described on December 9, 2013, but the result is very similar.  The exemption is based on CEQA Guidelines section 15268 (“ministerial” actions), where specific measurable criteria are met.  Generally speaking, Level 1 would be used for non-MPWRS situations with correlative water rights that would not have an adverse effect on the MPWRS, but would serve four or more parcels and thus need a permit.  Hydrogeologic analysis above and beyond that already performed for the MCEHB would not be required.  Level 2 would be for certain Seaside Basin situations where production is less than 5.0 AFY, the trigger amount set by the Superior Court, or for other quantities have been approved by the Court or Watermaster.  Level 3 would be very similar to current requirements and applies to the MPWRS in Carmel Valley, certain Seaside Basin projects, and larger non-well projects.  The level of review for Mobile WDS depends on the water source location and number of parcels served.  Mobile WDs may not be used for long-term potable (drinking water) supply and are allowed only in a health-related emergency.

 

The following paragraphs highlight the key information provided in the lengthy discussion on December 9, 2013 (Item 13) and how it is applied to the proposed ordinance (in italics).  Please refer to the District website for the full discussion of the current regulations and proposed changes described at the December 9, 2013 meeting.   

 

Multiple Parcels:  District Law gives MPWMD the authority to regulate water-producing facilities within its boundaries.  Water Code Appendix 118-363 states that a written permit from the MPWMD Board is needed to create, establish, extend or expand a WDS, with various rules and regulations to guide that process.  Further, the Water Code allows the District to issue an exemption for a WDS serving three or fewer parcels.  A WDS serving four or more parcels must obtain a WDS Permit.  

Ordinance No. 160 proposes different procedures for Multiple-Parcel Connection Systems that serve two or three parcels than for those that serve four or more parcels.

 

Systems Outside of MPWRS:  Current rules entail setting System Limits (annual water production and connections) for all approved Exemptions to serve as a baseline, and also for all WDS Permits as a mandatory condition of approval (Rule 22-D-1).  While the District has the authority to regulate wells within its boundaries, including requiring a WDS Permit, it appears that the District does not have the authority to set System Limits for most non-MPWRS water producing facilities in the absence of evidence of overdraft or some physical or legal constraint affecting a specific water body.  This is because most non-MPWRS situations rely on correlative water rights that are shared among overlying basin property owners.  The District has the authority to require hydrogeologic testing for non-MPWRS facilities that could potentially impact the MPWRS or Sensitive Environmental Receptors.  In situations where an adverse effect to the MPWRS is shown to be likely, the District has the authority to set System Limits and impose conditions to reduce impacts.  

Ordinance No. 160 expands the types of Exemptions described in Rule 20-C and clarifies the required criteria that can be used as part of a ministerial action as defined by CEQA Guidelines section 15268 and 15369.  In most correlative rights situations, Rule 21-A (Applications) is amended to delete (a) notification and assessment of impacts to Neighboring Well owners, and (b) hydrogeologic evaluations above and beyond that required by Monterey County, if greater than 1,000 feet from the MPWRS.  A new Level 1 WDS Permit category (Basic Non-MPWRS) is also created for Rule 22 (Action on Permit), where System Limits are not imposed.

 

Systems Within MPWRS/Seaside Groundwater Basin:  Because there is a declared overdraft in the Seaside Basin, the District has the authority to set System Limits on water-producing facilities in that area, consistent with the Superior Court’s 2006 Final Decision (as amended).  The court set 5.0 acre-feet per year (AFY) as a key criterion, where systems producing less than 5.0 AFY were considered to have nominal effects on the basin, while those producing 5.0 AFY or greater need approval from the Seaside Basin Watermaster. 

Ordinance No. 160 expands the types of Exemptions described in Rule 20-C to include single-parcel (“Alternative Producer”) systems that produce less than 5.0 AFY.  It also creates a Level 2 WDS Permit category (Basic Seaside Basin) for multiple-parcel (“Standard Producer”) systems with production less than 5.0 AFY, or for a single-parcel situation with production over 5.0 if approved by the Court or Watermaster. 

 

Systems Within MPWRS/Carmel River Basin:  Components of the MPWRS include the Carmel River, tributaries to the river, and the Carmel Valley Alluvial Aquifer.  These areas are also subject to regulation by state and federal entities.  The State Water Resources Control Board (SWRCB) has determined that the Carmel River and associated CVAA is fully appropriated between May 1 and December 31, and recent water rights permits issued by the SWRCB are subject to meeting instream flow requirements throughout the remainder of the year.  Federal agencies have designated the Carmel River and several tributary streams as critical habitat for steelhead, and much of the Carmel River watershed is designated as critical habitat for California red-legged frogs under the federal Endangered Species Act. 

Ordinance No. 160 creates a Level 3 WDS Permit category where a System Capacity is set primarily based on potential effects to the MPWRS.  Also, Rule 11, Definitions, is changed to amend the definition of Sensitive Environmental Receptor to include all tributaries to the Carmel River within the District boundary that are not located within the Ventana Wilderness (i.e., add San Clemente, Pine, and Cachagua Creeks). 

 

Monterey County Evaluations:  Since adoption of the 2010 General Plan, Monterey County staff have revised and updated their procedures and policies for wells in the non-coastal unincorporated areas of the County.  Changes to existing County well regulations are in process, including consultation with MPWMD and other entities.  Registered hydrogeologists at the Monterey County Water Resources Agency (MCWRA), working as consultants to the Monterey County Environmental Health Bureau, currently perform calculations on the potential of all drinking water wells to adversely affect nearby wells and in-stream flow of specified rivers and creeks that sustain steelhead, including those in Carmel Valley.  This evaluation is performed as part of the process to approve a MCEHB Well Construction Permit in compliance with Monterey County General Plan Policy 3.3.  The MCEHB issues a “Source Water Quality and Quantity Analysis Certification Form” based on well testing that indicates the flow in gallons per minute (gpm) that the well is expected to reliably produce along with water quality data.  Both the County and MPWMD require a 72-hour test at a minimum pumping rate of 3 gpm, and the amount and type of data collected during the test are similar.  However, the County has minimal regulations regarding “irrigation only” wells, and the District has more stringent standards than the County for the assessment of potential impacts to streamflow. 

Ordinance No. 160 amends Rule 21-A, Applications, to delete (a) notification and assessment of impacts to Neighboring Well owners for several situations, and (b) hydrogeologic evaluations above and beyond that required by Monterey County in manyt non-MPWRS situations greater than 1,000 feet due to evaluations performed by the County before a WDS application is submitted to the District.  County assessment documents are new required WDS application materials. However, for any well within 1,000 feet of the MPWRS, MPWMD may require additional testing to assess impacts depending on the site-specific situation.  

 

No “Bailout” of Failed Well System by California American Water (Cal-Am):  At the December 9, 2013 meeting, Director Markey requested that District Counsel research the possibility that Cal-Am could be compelled to provide service to a property served by a private well that fails.  Exhibit 13-D is a February 11, 2014 memorandum from Counsel that explains why this would not occur, except under a very rare circumstance.  Thus, the proposed ordinance does not address this subject.

 

Neighboring Wells:  Removing the requirement to set System Limits for non-MPWRS well owners with correlative water rights will result in fewer notifications of owners of Neighboring Wells as currently embodied in Ordinance No. 150, which was passed in 2012 to increase awareness of new well construction.  Many of the Ordinance No. 150 requirements would not apply to most of the non-MPWRS situations.  Due to the Seaside Basin Adjudication, rights to water have been established among well owners and overlying property owners.  Wells in the CVAA have either riparian, pre-1914, or appropriative rights.  Thus, there are only limited situations where Ordinance 150 notification procedures would apply.  However, as noted above, the County has increased its review of impact to nearby wells before a MCEHB Well Construction Permit is issued, so there is greater protection sooner in the overall process.

 

Irrigation Wells:  The District does not distinguish between irrigation (non-potable) wells and drinking water (potable) wells in relation to impact assessments because the same quantity of water is extracted from the source of supply regardless of eventual treatment and use.  The MCEHB or District may impose different testing requirements and standards for irrigation wells depending on the location.

 

Monitoring of Wells:  Importantly, all regulatory paths require the applicant to allow the District to physically monitor the wells or other facilities, as needed.  This is in addition to current requirements to register, meter, and annually report production each water year.  The District will continue to monitor the physical situation and make adjustments through future ordinances as needed.  In addition, the Implementation Guidelines (Section 3.1) include a specific process for a property owner to request that his/her old well be added to the MPWMD Monitor Well Network.  If the well is accepted, water level monitoring equipment will be installed (at the well owner’s expense) for regular data gathering.

 

IMPACT TO DISTRICT RESOURCES:  This comprehensive revision to the MPWMD Rules & Regulations governing WDS should reduce the staff workload, reduce costs for applicants, reduce duplication with Monterey County and be consistent with the District’s authority over Monterey Peninsula water resources.  MPWRS-related applications will still receive full review similar to the current Rules and Regulations; non-MPWRS submittals greater than 1,000 feet will be processed without assessing hydrogeologic testing results or historical water use that had been used to determine production limits.  Time coordinating monitoring of Neighboring Wells (Ordinance No. 150) also would be significantly reduced for non-MPWRS wells. 

 

A related task is changing Rule 60, Fees, to reflect the reduced staff time anticipated for the non-MPWRS applications.  This would occur under a separate action where all fees are re-assessed, which should come before the Board by the June 2014 agenda.

 

EXHIBITS

13-A    Ordinance No. 160

13-B    Summary table for proposed WDS exemptions and permits

13-C    Draft Implementation Guidelines

13-D    February 11, 2014 memo from Counsel re Cal-Am service for failed wells

 

 

 

U:\staff\Boardpacket\2014\20140317\PublicHrngs\13\item13.docx


[1] The Monterey Peninsula Water Resource System (MPWRS) is defined as the “surface water in the Carmel River and its tributaries, Groundwater in the Carmel Valley Alluvial Aquifer which underlies the Carmel River, and Groundwater in the Seaside Groundwater Basin” (Rule 11).