EXHIBIT 2-A

 

PRELIMINARY DRAFT (May 19, 2009)

                                                                                                                                      

ORDINANCE NO. ___

 

AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE

MONTEREY PENINSULA WATER MANAGEMENT DISTRICT

AMENDING ITS RULES & REGULATIONS TO ENABLE INSTALLATION OF DUAL PLUMBING SYSTEMS

 

FINDINGS

 

1.         The Water Management District is charged under the Monterey Peninsula Water Management District Law with the integrated management of the ground and surface water resources in the Monterey Peninsula area.

2.                  The Water Management District has general and specific power to cause and implement water conservation activities as set forth in Sections 325 and 328 of the Monterey Peninsula Water Management District Law.

3.                  California State Water Resource Control Board (SWRCB) Order No. WR 95-10, issued in July 1995, ruled that California American Water (CAW) did not have a legal right to take approximately 69 percent of the water supplied by CAW to its customers at that time.  The SWRCB set specific goals for CAW to reduce water diversions from the Carmel River Basin.

 

4.                  Under SWRCB Order No. WR 95-10, CAW was ordered to reduce its historical diversion from the Carmel River Basin by 20 percent beginning with Water Year 1997 and in each subsequent year. 

 

5.                  By order of the Superior Court in California American Water v. City of Seaside, et al (Monterey Case No. M66343) the initial Operating Safe Yield for the Seaside Basin was determined to be 5,600 Acre-Feet (Coastal Subarea is 4,611 Acre-Feet and 989 Acre-Feet for the Laguna Seca Subarea).  The Court defined the “Operating Safe Yield” for the Seaside Basin as the maximum amount of Groundwater resulting from Natural Replenishment which can be produced from each Subarea for a finite period of years as these terms are defined in the decision.  Water conservation is required to achieve the Operating Safe Yield.

 

6.                  At this time, the Water Management District Rules & Regulations do not allow the use of “dual plumbing systems” whereby a single structure relies upon water from more than one Source of Supply due to concerns regarding public health and safety, system maintenance, regulatory consistency, and monitoring during a drought.  The District now believes dual sources of supply within a structure should be allowed with the proper controls to address these concerns.  The current District practice allows dual sources of supply for separate structures and/or for outdoor irrigation.

 

7.                  This measure is intended to enable the installation and use of dual plumbing whereby a single structure relies upon water from more than one Source of Supply as a means to reduce the use of water that is subject to the limits of SWRCB Order No. WR 95-10 and/or the adjudication order of the Superior Court in California American Water v. City of Seaside, et al (Monterey Case No. M66343).

 

8.                  Lack of adequate water supply adversely affects the economic well-being of citizens within the Water Management District.  To address this concern, the District desires to encourage creative, yet responsible, use of alternative water sources to meet the needs of water consumers within the District.

 

9.                  Installation and use of dual plumbing systems supports the Water Management District’s Mission, “To Manage, Augment and Protect Water Resources for the Benefit of the Community and the Environment.”  Such use also supports the District’s legislated mandate to conserve water.

 

  1. This ordinance shall revise, amend and republish Rules 11 and Rule 25.5 of the Rules and Regulations of the Water Management District.  This ordinance shall add a definition for Sub-potable Water Use Credit to Rule 11.  This ordinance shall add references to Sub-potable Water Use Credits in Rules 25.5 and 134. 

 

11.              This ordinance shall be reviewed and approved under the California Environmental Quality Act (CEQA) based upon a Negative Declaration.

 

NOW THEREFORE be it ordained as follows:


 

ORDINANCE

Section One:                             Short Title

 

This ordinance shall be known as the 2009 Dual Plumbing Ordinance of the Monterey Peninsula Water Management District.

 

 

Section Two:                Purpose

 

This ordinance amends the Water Management District Rules & Regulations to allow installation and use of dual plumbing systems so that a single structure may rely upon water from more than one Source of Supply, and enacts conditions upon such installation and use.

 

 

Section Three:              Amendments to Rule 11

           

Rule 11, Definitions, shall be amended as shown below, with added language as shown in bold italic type face. 

 

DUAL PLUMBING – “Dual Plumbing” shall mean all internal water pipes on the User’s side of any Connection within a single structure where the structure receives some or all of its water supply from two or more separate Sources of Supply.

 

 

Section Four:                Amendments to Rule 23, Action on Application for a Water Permit to Connect to or Modify an Existing Water Distribution System

 

Rule 23, Action on Application for a Water Permit to Connect to or Modify an Existing Water Distribution System, shall be amended as shown below, with added language as shown in bold italic type face. 

 

A.        A new sub-subparagraph shall be added to Rule 23-A-1 (Process), as shown in bold italic type face. 

 

q.         The General Manager shall not issue a Water Permit which results in installation of Dual Plumbing within a single structure without first requiring and imposing on that Water Permit each of the conditions set forth in subparagraph 4 of this Rule 23. 

 

B.         The following text shall be added as Rule 23-A-4, as shown below in bold italic type face. 

 

4.         Permits for Dual Plumbing.  Where two or more Water Distribution Systems provide water to a single Site or structure, the following shall apply: 

 

a.         Whenever practicable, a single Water Distribution System shall provide the sole source of water to each Site.  If this is not practicable, no more than one Water Distribution System shall provide the sole source of water to each detached structure such as a garage, building, guest house or other structure on a parcel, except as may be provided by subparagraph b below. 

 

b.         When it is not practicable for each site or separate structure to satisfy its entire water needs from a single Water Distribution System as required by subparagraph 23-A-4-a, above, more than one Water Distribution System may provide water to a single structure provided the Applicant clearly establishes that each Water Distribution supplies water to separate, discrete and clearly identified and designated portions of that structure, as approved by the General Manager. 

 

c.         A Water Permit using Dual Plumbing shall be approved only when the following conditions shall be met:

 

(1)        Two or more water sources shall not intermingle or otherwise form a single integrated plumbing system;

 

(2)        No Water Use Fixture within the structure shall receive water from more than one Water Distribution System;

 

(3)        Interior pipes connected to each Water Distribution System shall be clearly identified as being associated solely and exclusively with that plumbing system.  In addition to physical marking and/or coloring on a pipe to identify the Water Distribution System, water fixtures supplied by each plumbing system shall be set forth on the Water Permit and made a matter of record and set forth by deed restriction. 

 

c.         Prior to issuance of any Water Permit related to Dual Plumbing that may enable indoor access to water from more than one Water Distribution System, the Monterey County Health Department (MCHD) shall first provide written verification that the water quality of each Water Distribution System meets state health standards for indoor potable use, and that the MCHD does not oppose access to the proposed Sources of Supply within that structure. 

 

d.         Prior to issuance of any Water Permit related to Dual Plumbing that may enable indoor access to water from more than one Water Distribution System, the Owner or Operator of each affected Water Distribution System shall first provide written verification that it does not oppose installation of Dual Plumbing in that structure, and that adequate backflow devices shall be installed and maintained to protect each Water Distribution System. 

 

e.         Prior to issuance of any Water Permit related to Dual Plumbing that may enable indoor access to water from more than one Water Distribution System, the Jurisdiction in which the structure is located shall first provide written verification that each Water Distribution System complies with its regulations, and that the Jurisdiction does not oppose access to the proposed Sources of Supply within that structure. 

 

f.          Water Permits affecting the California American (CAW) Water Distribution System (CAW) that allows Dual Plumbing shall also comply with all applicable provisions of District Regulation II.  Any non-CAW Water Distribution System that provides a Source of Supply for a Water Permit related to Dual Plumbing shall be permitted as a Water Distribution System pursuant to Rules 20 to 22 and have an annual Capacity limit for that System set pursuant to Rules 22 and 40.

 

g.         Any Water Permit related to Dual Plumbing that enables indoor access to water from more than one Water Distribution System shall require each water Distribution System delivering water the structure to have a separate Connection.  Each Connection shall be separately metered.  The Owner or Operator of each Water Distribution System shall make an accurate account of Water Use through each Connection, and report this amount to the General Manager on an annual or more frequent basis, as directed by the General Manager.  The property owner shall consent to the release of this data, and the continuing requirement to provide the data shall be recorded by deed restriction for the duration of the Water Permit.

 

h.         All Water Use from any Water Distribution System providing water under the Dual Plumbing Water Permit shall be subject to conservation and rationing requirements pursuant to District Regulations XIV and Regulation XV. 

 

i.          Where more than one Water Distribution System provides water to a single site or structure, no interconnection shall be allowed or constructed between the Water Distribution Systems. 

 

(a)        Plumbing shall not allow water to intermingle or the pipes to form a single integrated plumbing system.

(b)        Each water use fixture shall be plumbed exclusively to a single Water Distribution System.

(c)        A backflow prevention device shall be installed and maintained on the customer side of any water meter that is connected to a multiple user Water Distribution System (i.e. California American Water, Seaside Municipal Water Co., etc.).

j.          Plumbing connected to each Water Distribution System shall be maintained in good repair.  Markings that identify piping associated with each Water Distribution System shall be clearly placed a maximum of 6 inches apart on all new interior water pipes when Dual Plumbing is installed.  Interior plumbing associated with each Water Distribution System shall not be modified or abandoned without the express written permission from the District, and amendment of the Water Permit. 

 

k.         Should water supply from any Water Distribution System supplying water pursuant to a Dual Plumbing Water Permit be interrupted as to quantity, or as to quality needed to meet state health standards for indoor potable use, the property owner and/or Operator of the Water Distribution System shall provide written notification to the General Manager and to the Monterey County Department of Environmental Health within ten (10) working days of the circumstance, and describe specific actions and timelines that shall be taken to correct the situation.  The General Manager may Permit temporary use of water from an alternate Source of Supply for a period not to exceed sixty (60) days to enable repair of the disabled system pursuant to Rule 23.  An extension of time not to exceed one hundred twenty (120) days thereafter may be granted by the General Manager to enable repair of the Water Distribution System.  Further extensions of time may be granted by the Board of Directors upon a reasonable showing of cause.  The Board may place conditions upon any such an extension. 

 

l.          Should water supply from any Water Distribution System supplying water pursuant to a Dual Plumbing Water Permit fail, and all reasonable good-faith efforts are not sufficient to repair, restore or replace the system, the property owner and/or Operator of the Water Distribution System shall provide written notice to the General Manager, and upon his approval, may apply for a Water Permit to either (1) enable the remaining system to serve the full water needs of the site, or (2) enable an alternate Water Distribution System provide a Source of Supply for the Dual Plumbing Water Permit.  No requirement applicable to the review and granting of the Water Permit shall be waived.  As a condition precedent to the application, the General Manager shall concur that reasonable good-faith efforts are not available to repair, restore or replace failing system.  This decision may be appealed to the Board pursuant to Rule 70. 

 

m.        If a Water Distribution System fails to supply the quantity and/or quality of potable water required to fulfill the Water Permit associated with Dual Plumbing, and replacement is not available in accord with subparagraphs “k” or “l” above, the General Manager shall revoke the Water Permit, in whole or in part, so that the remaining Water Permit correlates to the quantity and quality of potable water available to the Site.  The General Manager shall also “red tag” the property and seek a civil injunction, restraining order or other remedial action so that Water Use does not exceed potable water available to the Site.  The decision of the General Manager to revoke the Water Permit may be appealed to the Board pursuant to Rule 70, but such appeal shall be consolidated with any appeal brought under subparagraph l, above. 

 

n.         The recordation of the following deed restrictions shall be completed as a condition of any Water Permit that authorizes Dual Plumbing:

 

            (1)        Limitation of Use of Water on a Property

            (2)        Public Access to Water Use Data

(3)        Any other deed restriction(s) appropriate to the Water Permit application.

o.         Failure to comply with each condition imposed pursuant Rule 23 shall provide cause for revocation of the Water Permit.

 

 

Section Five:                 Amendments to Rule 24, Adjustment of Calculations Where Special Circumstances Exist

           

Rule 24-E shall be amended as shown below, with added language shown in bold italic type face, and deleted language shown in strikeout type face. 

 

E.         ADJUSTMENT OF CALCULATIONS WHERE SPECIAL CIRCUMSTANCES EXIST

 

1.         The General Manager may reduce (or increase) the Adjusted Water Use Capacity when Special Circumstances exist with respect to the anticipated water consumption resulting from that Permit.  Special Circumstances shall be deemed to exist in the following circumstances:

 

a.         After project completion and verification that Sub-potable Water or untreated Well water is the exclusive supply for all exterior uses, the General Manager may make a proportional adjustment for the final Adjusted Water Use Capacity and shall refund that portion of the Connection Charge and the portion of water debited from an Allocation or Water Entitlement. 

 

b.         Projects that utilize water in conjunction with a manufacturing process. 

 

c.         Non-Residential projects owned by a Public entity.

 

d.         Where Dual Plumbing exists within a single structure.

 

2.         The preliminary Estimated Annual Water Use Capacity Adjustment shall operate to exact a Connection Charge as it relates to the increment of water which is projected to be available to and subject to use by the Applicant as a function of the Connection or the use of water.  In the absence of a comparable water use factor on Table 2, the General Manager may make this adjustment based upon projected use figures supported by historical use or other relevant documentation.  In the absence of Special Circumstances, calculation of the Estimated Annual Water Use Capacity shall be made by use of Non-Residential Water Use Factors shown on Table 2. 

 

3.         The General Manager shall be granted authority to factor Adjusted Water Use Capacity and Connection Charges for Industrial and Public Projects based upon the actual average annual water use record following 60 months of occupancy and use without the necessity of a hearing before the Board of Directors.  The process shall require payment of an estimated Connection Charge and corresponding Allocation or Water Entitlement debit. The final Connection Charge and corresponding Allocation or Water Entitlement debit shall be adjusted upon the actual annual water use record for that Connection. 

 

4.         For all situations where the General Manager finds Special Circumstances with Substantial Uncertainty exist regarding the Estimated Annual Water Use Capacity proposed by the permit Applicant, the Board shall consider approving a Water Permit upon payment of an estimated Connection Charge and corresponding Allocation or Water Entitlement debit. The final Connection Charge and corresponding  Allocation or Water Entitlement debit shall be adjusted upon the actual average annual water use record for that Connection. 

 

5.         This Rule shall not apply where a single meter supplies more than one water User.

 

6.         All Water Permits issued with a finding of Special Circumstances shall be subject to the following conditions:

 

a.         A deed restriction listing the conditions of the Permit shall be recorded on the property prior to issuance of a Water Permit.

 

b.         By written communication, the Jurisdiction shall authorize the District to issue a Water Permit based on a finding of Special Circumstances consistent with CEQA compliance for the approved Project.

 

c.         The Jurisdiction shall acknowledge in writing to the District that annual average water use above the preliminary Estimated Annual Water Use Capacity shall either result in a debit to its Allocation or shall require additional action to reduce or offset water use as authorized by the District Board.

 

d.         Approval of Special Circumstances with Substantial Uncertainty is valid for thirty-six (36) months.  The project shall be completed within thirty-six (36) months of District approval.  One extension of time for twelve (12) months will be granted by the General Manager upon evidence of due diligence by the Applicant.

 

e.         The Project shall be exclusively equipped with all reasonable conservation measures as determined by the General Manager.

 

f.          The property owner shall agree to allow public access to water consumption records for the life of the Project.  Access shall be authorized by recordation of the appropriate deed restriction.

 

g.         A detailed landscape plan and Landscape Water Budget that complies with requirements set forth in Regulation II and Regulation XIV, including the MAWA calculation and the Estimated Applied Water calculation, shall be included with the Water Permit application.

 

h.         Prior to issuance of a Water Permit, the Water Permit Applicant shall submit Connection Charges and processing fees as outlined in Rule 24 and Rule 60.

 

i.          A water meter shall be installed to monitor all exterior water use, apart from any interior use.  In-line water meters for water using equipment may be required as a condition of approval.  District staff shall have access to the water meters and consumption reports upon reasonable request.

 

j.          The property owner or his agent shall annually complete and submit a Special Circumstances Review Form and applicable attachments to the District by February 1.  The Special Circumstances Review Form shall require the property owner to provide information about the Project’s annual water use and practices, copies of the past year’s water bills, information about the performance of any special appliances, and other information useful in reviewing Project-related water demand.  The Special Circumstances Review Form shall be submitted each year during construction and for ten years following full occupancy after completion of the Project.

 

k.         Water use will be reviewed annually after occupancy.  If actual water use exceeds the preliminary Water Use Capacity estimate during any annual review, the District will debit the Jurisdiction’s Allocation for the difference.  At the end of the monitoring period, if the average annual water use exceeds the preliminary Water Use Capacity estimate, the District will determine whether the Jurisdiction shall transfer some of its Allocation to the Project, or whether the Applicant shall pay the cost of District-approved water conservation projects within the District or on the Project Site to establish Water Use Credits to offset the increased increment of water needed by the Project. 

 

l.          The Applicant and any successor in interest to the Water Permit shall enter into an indemnification agreement with the District, whereby the Applicant agrees to indemnify, defend and hold harmless the District from any and all legal and financial responsibility that may arise in connection with approval of the application, including but not limited to attorney’s fees and costs that the District may incur.

 

7.         For all situations where the General Manager finds Special Circumstances with Substantial Uncertainty exist regarding the Estimated Annual Water Use Capacity proposed by the permit Applicant, the Board shall consider approving a Water Permit upon payment of an estimated Connection Charge and corresponding Allocation or Water Entitlement debit.   Conditions required for Special Circumstances shall also apply to Special Circumstances with Substantial Uncertainty.   

 

The final Connection Charge and corresponding Allocation or Water Entitlement debit shall be adjusted upon the actual average annual water use record for that Connection. 

 

78.       The Board shall specify the appropriate number of years to monitor actual annual water use when it finds Special Circumstances with Substantial Uncertainty exist.

 

9.         By written communication, the Jurisdiction shall authorize the District to issue a Water Permit based on a finding of Special Circumstances consistent with CEQA compliance for the approved Project.

 

10.       The Jurisdiction shall acknowledge in writing to the District that annual average water use above the preliminary Estimated Annual Water Use Capacity shall either result in a debit to its Allocation or shall require additional action to reduce or offset water use as authorized by the District Board.

 

11.       Water use will be reviewed annually after occupancy.  If actual water use exceeds the preliminary Water Use Capacity estimate during any annual review, the District will debit the Jurisdiction’s Allocation for the difference.  At the end of the monitoring period, if the average annual water use exceeds the preliminary Water Use Capacity estimate, the District will determine whether the Jurisdiction shall transfer some of its Allocation to the Project, or whether the Applicant shall pay the cost of District-approved water conservation projects within the District or on the Project Site to establish Water Use Credits to offset the increased increment of water needed by the Project.

 

812.     In all applications where evidence does not support the finding that Special Circumstances with Substantial Uncertainty exist regarding a Project’s Water Use Capacity, it shall be presumed that the Non-Residential Water Use Factors as shown on Table 2 apply to the Permit.

 

913.     Determinations of the General Manager pursuant to this Rule may be appealed to the Board.

 

 

Section Seven:              Publication and Application

 

The provisions of this ordinance shall cause the republication and amendment of the permanent Rules and Regulations of the Monterey Peninsula Water Management District. 

 

 

Section Eight:                Effective Date and Sunset

 

A.        This ordinance shall take effect at 12:01 a.m. on the first day of the month that commences thirty (30) days after it has been enacted on second reading.  

 

B.         This Ordinance shall not have a sunset date. 

 

 

Section Nine:                            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 ________________, 2009, by the following vote:

 

 

AYES: 

 

 

NAYS: 

 

 

ABSENT:       

 

 

I, Darby W. Fuerst, 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 _____________ 2009.

 

 

Witness my hand and seal of the Board of Directors this ________ day of ____________ 2009.

 

 

                                                                                                                                               

                                                                        Darby W. Fuerst, Secretary to the Board

 

 

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