WATER DEMAND COMMITTEE
ITEM:		ACTION ITEM
3.	CONSIDER DEVELOPMENT OF RECOMMENDATION TO THE BOARD RE FIRST READING OF ORDINANCE NO. 158, AN ORDINANCE TO DIRECT THAT MPWMD ACT AS A RESPONSIBLE AGENCY UNDER CEQA FOR WATER CREDIT TRANSFERS AND TO DEFER LEAD AGENCY STATUS TO THE LAND USE JURISDICTION
Meeting Date:			November 6, 2013	Budgeted:	N/A
From:			David J. Stoldt,	Program/	N/A
			General Manager	Line Item No.:
Prepared By:			Stephanie Pintar	Cost Estimate:	N/A
General Counsel Review: Preliminary review completed
Committee Recommendation: N/A
CEQA Compliance: N/A

SUMMARY: Draft Ordinance No. 158 (Exhibit 3-A) amends District Rule 28-B, Property-To-Property and Property-To-Jurisdiction Transfers of Water Use Credits for Commercial and Industrial Uses. The proposed amendments designate California Environmental Quality Act (CEQA) lead agency status to the land use Jurisdiction to review a proposed Water Credit transfer. The lead agency must undertake CEQA review and make a determination before referring a transfer application to the District (the responsible agency) for final review. The ordinance contemplates that final review occurs at the District staff level. Determinations of the General Manager are appealable to the Board of Directors pursuant to Regulation VII.

CEQA Guidelines, Article 4, §15050 states: “Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or negative declaration for the project. This agency shall be called the lead agency.” The Jurisdiction, as the land use agency, must approve a Water Credit transfer prior to consideration of a transfer by the District (Rule 28-B-4). As the Jurisdiction must act before the District, it is appropriate that the Jurisdiction assumes lead agency status.

Section 15050 (b) of the CEQA Guidelines states: “the decision-making body of each responsible agency shall consider the lead agency’s EIR or negative declaration prior to acting upon or approving the project. Each responsible agency shall certify that its decision-making body reviewed and considered the information contained in the EIR or negative declaration on the project.” The “decision-making body” is defined in the CEQA Guidelines as person or group of people within a public agency permitted by law to approve or disapprove the project at issue. As proposed, the General Manager serves as the decision-maker and is required to consider the adequacy of the lead agency’s evaluation prior to making a determination. Should the documentation be found inadequate, the General Manager may disapprove the project or assert the lead agency role and re-evaluate the project. Any decision made by the General Manager is subject to appeal to the Board pursuant to District Rules.

If this process is adopted, staff would work with the Jurisdictions to develop guidelines to ensure that adequate review of the effects on the water supply are conducted before referring the transfer to the District. Once referred to the District by the Jurisdiction, staff would review the CEQA analysis and the transfer application for completion and compliance with the remaining provisions of Rule 28 before making a determination on the transfer.

The proposed ordinance is not a project under CEQA and is therefore not subject to CEQA evaluation. CEQA Guideline §15378 (a) defines a “project” as an action that has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The proposed amendments to Rule 28 do not contemplate approval of any transfer, and does not meet the “project” definition according to CEQA Guideline §15378 (b) (5) which states: “Organizational or administrative activities of governments that will not result in direct or indirect physical changes to the environment.” This ordinance does not approve a Water Credit transfer.

RECOMMENDATION: The Water Demand Committee should review the ordinance and consider a recommendation to the Board. A copy of the current Rule 28 is attached as Exhibit 3-B.

EXHIBITS

3-A Draft Ordinance No. 158

3-B Rule 28

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