WATER DEMAND COMMITTEE
ITEM:		ACTION ITEMS
3.	review potential change to district rule 20.C exempting that portion of former fort ord within the Mpwmd boundary from water distribution system expansion/extension permit requirments
Meeting Date:			January 23, 2006
From:			David A. Berger, General Manager
Prepared by:			Henrietta Stern
General Counsel Review:			Yes; prepared first draft Ordinance
CEQA Review: Ordinance will require CEQA Initial Study

SUMMARY: This is a policy matter that requires MPWMD Board action to eliminate the apparent regulatory conflict that exists between District Rule 20.B, and certain provisions of a 1992 Amended Memorandum of Agreement (Amended MOA) signed in May 1993 between MPWMD, Monterey County Water Resources Agency (MCWRA), and the Pajaro Valley Water Management Agency (PVWMA). Specifically, the Amended MOA addressed the issue of overlapping jurisdictional boundaries of MPWMD and MCWRA on former Fort Ord, by determining that MCWRA would be the sole regulator of water delivery systems to the former Fort Ord. At the same time, the MOA also stated that MPWMD shall have exclusive authority to regulate the management of the Seaside Groundwater Basin within Fort Ord boundaries.

MPWMD Rule 20.B was not subsequently revised to comport with the Amended MOA by “carving out” the portion of former Fort Ord within the District boundary from its permitting requirements, nor making it clear that waters derived from the Seaside Basin would be regulated by MPWMD. The Marina Coast Water District (MCWD) produces and distributes water from the Salinas Valley groundwater basin to serve potable demands within the existing city of Marina, and is the designated water service provider on former Fort Ord. MCWD will continue to expand and extend its water distribution system to serve existing and new housing, commercial retail and office buildings, educational facilities and other redeveloping properties within the County unincorporated area and cities that comprise portions of former Fort Ord. MCWD does not plan to tap Seaside Basin resources, according to Marc Lucca, MCWD Interim General Manager. MCWD and MCWRA management staff have asserted that MPWMD agreed to withdraw from regulating that portion of the former Fort Ord water distribution system lying within the MPWMD territory, under terms of the Amended MOA.

RECOMMENDATION: Staff recommends that the Water Demand Committee review this policy matter, and endorse staff’s proposals to:

1. Add text to Rule 20.C in the conceptual ordinance (Exhibit 3-A) that would exempt from the scope of Rule 20.B water distribution system extension/expansion permit requirements that portion of District territory lying within the former Fort Ord, if the source of supply is not derived from the Seaside Basin or Carmel River Basin; and
2. Consider proposing an addendum to the Amended MOA that would have MCWRA require MCWD to make arrangements for an emergency inter-tie with the Cal Am system as it extends and expands its water distribution system. The intertie is proposed in the best interest of the public to ensure continuity of service in the event of an emergency.

A schematic map of the Former Fort Ord, MPWMD and Seaside Basin boundaries is provided as Exhibit 3-B for general reference.

It is noted that reference to the Carmel River Basin and Carmel Valley Alluvial Aquifer is also made in the proposed ordinance. Though highly unlikely to be used as sources of water for the Former Fort Ord, these sources of supply were added for completeness and to ensure the District’s ability to regulate use of water from the Carmel River watershed.

BACKGROUND and DISCUSSION: On December 16, 1991 the MPWMD Board authorized the execution of a Memorandum of Understanding (MOU) between the MCWRA, PVWMA, and MPWMD. The proposed MOU was negotiated among the three entities in response to 1990 State legislation (SB 285 Mello), which eliminated the Monterey County Flood Control and Water Conservation District and replaced it with a newly created Monterey County Water Resources Agency (Stats. 1990, c. 1159). The provisions of SB 285 that are pertinent to this policy issue are as follows:

Sec. 85. (a) The Pajaro Valley Water Management Agency and the Monterey

Peninsula Water Management District shall work with the agency and shall use

their best efforts to cooperate with each other.

(b) The Agency, the Monterey Peninsula Water Management District, and the

Pajaro Valley Water Management Agency shall, on or before February 1, 1992,

make a good faith effort to enter into a memorandum of agreement as to the

manner in which the agency shall exercise powers in any area of overlapping

jurisdiction among the three local water entities.

Sec. 86. This act does not alter the authority of the Monterey Peninsula

Water Management District or the Pajaro Valley Management Agency.

Prior to its approval by all three entities, the original MOU was changed to resolve overlapping jurisdictional authority resulting from the federal government’s decision to close Fort Ord, and to address the Seawater Intrusion Program being implemented by the MCWRA using recycled wastewater produced by the Monterey Regional Pollution Control Agency. For clarity, the MOU was renamed a Memorandum of Agreement (MOA) and it included an addendum that gives MCWRA exclusive authority to regulate water delivery systems serving the Fort Ord area, including within MPWMD boundaries. The Amended MOA also provides that MPWMD is to exercise exclusive authority to regulate management of the Seaside groundwater basin within the Fort Ord boundary. The Amended MOA (Exhibit 3-C) was approved and executed by the three entities in May 1993, though September 28, 1992 is designated as the date of the MOA for reference purposes.

The pertinent text of the MOA is Sections 3(a) and 3(b) as follows:

The MCWRA shall have exclusive authority to regulate water delivery systems that deliver water to the area that is both within the present Fort Ord boundaries and within the MPWMD boundaries in existence at the time of the regulation, and the MPWMD will comply with any such ordinance enacted by MCWRA.

The MPWMD shall have exclusive authority to regulate the management of the Seaside groundwater basin within the present Fort Ord boundaries, and the MCWRA will comply with any such ordinance enacted by the MPWMD.

In relation to regulation of Water Distribution Systems (WDS), MPWMD General Counsel’s interpretation of the MOA is that WDS facilities operated by the MCWD within the Fort Ord area would not be regulated within District boundaries as long as the source of supply is not from the Seaside Basin. If Seaside Basin sources are contemplated by MCWD or any other user, the current WDS regulations would apply. It is noted that regulation of the Seaside Basin would be consistent with the Superior Court’s January 2006 Tentative Decision regarding the Seaside Basin adjudication. Specifically, the Tentative Decision (page 57) states that it “does not purport to forbid any regulation of the Basin which may be required by a public agency [such as MPWMD or MCWRA] possessing the power to impose such regulation.”

The MPWMD General Manager initiated a June 30, 2005 discussion with the general managers of MCWD and MCWRA on the subject of how best to resolve this apparent conflict. Both general managers asserted their belief that the intent of the Amended MOA was to avoid duplication of regulatory authority, and that the Amended MOA made it unnecessary for MCWD to obtain permits under Rule 20.B for its planned extension/expansion of the water distribution system serving former Fort Ord within MPWMD boundary. The managers were advised of MPWMD General Counsel Laredo’s opinion that the Amended MOA does not supersede MPWMD Rules and Regulations, and that the only way to eliminate the conflict would be to amend the applicable rule(s). In order to resolve this matter, in the June 30, 2005 meeting, the MPWMD General Manager expressed a willingness to propose the Rule 20.C text change described above. The proposed the emergency inter-tie concept was also suggested as being in the public interest of all effected entities due to the ability to provide assistance in the event of an emergency, which the MCWRA general manager supported. The MCWD and MCWRA managers offered to provide a joint letter summarizing their agencies’ position on the MPWMD regulatory issue, and to request that MPWMD change its rules to eliminate this apparent conflict. That letter has not yet been received.

In September 2005 Mr. Laredo met with MCWD’s general counsel, Lloyd Lowery. The two attorneys differed on their interpretations of the effect of the 1990 State law and the Amended MOA as it relates to pre-existing MPWMD Rules and Regulations.

EXHIBITS

3-A Proposed Rule 20.C draft text change

3-B Schematic map of Fort Ord, MPWMD and Seaside Basin boundaries

3-C 1992 Amended MOA

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Revised 1/19/06 at noon