1.
FIRST
READING (ON RECONSIDATION) OF ORDINANCE NO. 109 – REVISING RULE 23.5 AND
ADOPTING ADDITIONAL PROVISIONS TO FACILITATE THE FINANCING AND EXPANSION OF THE
CARMEL AREA WASTEWATER DISTRICT (CAWD)/PEBBLE BEACH COMMUNITY SERVICES DISTRICT
(PBCSD) RECYCLED WATER PROJECT, APPROVAL OF RELATED CEQA FINDINGS
Program/Line Item No.: N/A
Staff
Contact: David Laredo Cost Estimate: N/A
General Counsel Approval: Yes
Committee Recommendation: None
SUMMARY
OF PRIOR ACTION:
Ordinance
No. 109 is an ordinance to enable upgrades to the Carmel Area Wastewater District
(CAWD)/Pebble Beach Community Services District (PBCSD) Recycled Water
Project. This ordinance would enable
water entitlements presently held by the Pebble Beach Company to be made
available to properties throughout Del Monte Forest, rather than only to
properties owned by the Pebble Beach Company (PBC) in order to finance the
Project Expansion. This measure has had
a lengthy history before the Board, partially summarized below:
The
original financing plan to facilitate construction of the Wastewater
Reclamation Project was approved by the MPWMD Board in 1989 by Ordinance No.
39. This financing plan was followed by
agreements among MPWMD, CAWD, PBCSD, PBC, and other recycled water users to
finance, construct and operate, and sell recycled water. Problems have arisen relating to the quality
of recycled water available for its intended use and inadequate quantities of
recycled water. As a consequence, a
significant amount of potable water has been needed each year to supplement or
replace recycled water. Plans to
physically improve the existing project have been developed. The purpose of proposed Ordinance 109 is to facilitate the financing of the contemplated
improvements to the existing project.
To fund project improvements, the
Pebble Beach Company has proposed a financing plan whereby water entitlements
held by the PBC, in accordance with MPWMD Ordinance No. 39, would be made
available to residential properties throughout Del Monte Forest, rather than
only to properties owned by the PBC.
Ordinance No. 109, as approved on first reading, would modify MPWMD Rule 23.5 to re-define benefited
properties and provide a framework for the ancillary agreements for financing,
construction and operation, and sale of recycled water.
Draft
CEQA Findings support the Board’s determination that the criteria of CEQA
Guideline Section 15162 enable the Board to rely on the prior EIR certified for
the original recycled wastewater project.
The Board is required to review and approve the final set of CEQA
findings after it closes the hearing, and before it takes its roll call vote on
the second reading of Ordinance No. 109.
October 20, 2003 - The Board passed Ordinance No. 109 on
October 20, 2003 on First Reading by the unanimous vote of 7 – 0 (Motion by
Henson, Second by Edwards).
November 24, 2003 - The Board adopted Ordinance No. 109 on
second reading by the unanimous vote of 7– 0 (Motion by Henson, Second by
Lindstrom). This motion followed
adoption of a motion that Ordinance No. 109 “does not involve any new or
different environmental circumstances that would trigger a need for further
environmental review under Public Resources Code section 21166.”
The Motion by Henson,
Second by Erickson, was adopted on a vote of 5 - 2.
December 15, 2003
– In accord with District Rule No. 23, Director Edwards requested
reconsideration of the November 24, 2003 action of the Board to adopt Ordinance
No. 109 on second reading. The Motion
by Edwards, Second by Potter, was adopted on a vote of 7 - 0.
Current – The present draft of version of Ordinance No. 109 (Exhibit 1-A) is changed from the version approved by Board on second reading on November 24, 2003. The primary changes to the draft Ordinance from the version are in (i) provisions that describe the Project Expansion financing, (ii) inclusion of a placeholder provision (“as required by the SWRCB”) to enable the process to move forward without a resolution of the dispute about measurement of Entitlement Water use, (iii) additional detail concerning the process by which MPMWMD will make select determinations, procedures by which the parties can challenge those MPWMD determinations, (iv) recognition that the various obligations of the parties do not all begin at the same time, and (v) removal of duplicative CEQA findings.
Draft
CEQA Findings (Exhibit 1-B) support the Board’s
determination that the criteria of CEQA Guideline Section 15162 enable the
Board to rely on the prior EIR certified for the original recycled wastewater
project. The Board is required to
review and approve the CEQA Findings before it takes its roll call vote on
Ordinance No. 109.
RECOMMENDATION: Staff
recommends that the Board take the following actions:
1.
Consider
approval of the CEQA Findings (Exhibit 1-B) supporting enactment of Ordinance No.
109. The Board may vote to adopt
Ordinance No. 109 only after it approves the CEQA Findings.
2.
Consider,
following public hearing, approval of Ordinance No. 109, as presented, on first
reading. A second reading and public
hearing is scheduled for May 27, 2004 on Ordinance No. 109.
3.
Direct
staff and counsel to continue finalize the Supplemental Financing
Agreement (Exhibit 1-C), Supplemental Construction and Operation
Agreement (Exhibit 1-D), and Agreements for Sale of Recycled Water (Exhibit 1-E) in order to implement Ordinance No.
109. Staff should be directed to return
these revised documents to the Board for review and approval.
BACKGROUND: The
CAWD/PBCSD Wastewater Reclamation Project began operation in August 1994. Since operation began, the recycled water
users have experienced apparent stress-related symptoms in some of their turf
areas, primarily the greens, due to the combination of high levels of sodium in
the recycled water with low-salt-tolerant grass species used in those portions
of the golf courses. As a result,
significant quantities of potable water have been needed to meet the recycled
water users’ water quality needs. In
addition, potable water has been required to provide sufficient quantity of
irrigation water during periods when demand for irrigation water exceeded the
available supply of recycled water.
To
address the problems of recycled water quantity and quality, all parties
involved in the project have been working since 1995 to develop solutions. The parties now all agree that the best,
most cost-effective solution is to (1) retrofit Forest Lake Reservoir in Del
Monte Forest, formerly owned by California-American Water Co. but taken out of
service several years ago, to provide the additional recycled water storage
capacity needed to meet the water quantity requirements, and (2) add additional
treatment facilities at the CAWD treatment plant to produce final treated water
quality that meets the recycled water users’ needs.
In
order to fund these improvements, the Pebble Beach Company has proposed a
financing plan whereby water entitlements held by the Pebble Beach Company in
accordance with MPWMD Ordinance No. 39 and current project agreements would be
made available to residential properties throughout Del Monte Forest, rather
than only to properties owned by the Pebble Beach Company. Ordinance No. 109 would change MPWMD Rule 23.5 to re-define
benefited properties and provide a framework for the ancillary agreements for
financing, construction and operation, and sale of recycled water.
As noted above, the
Board reviewed earlier versions of Ordinance No. 109. The Board passed Ordinance No. 109 on October 20, 2003 on First
Reading by the unanimous vote of 7– 0 (Motion by Henson, Second by Edwards). On November, 24, 2003, the Board adopted
Ordinance No. 109 on second reading by the unanimous vote of 7– 0 (Motion by
Henson, Second by Lindstrom). On
December 15, 2003, acting pursuant to District Rule No. 23, Director Edwards
requested reconsideration of the November 24, 2003 action of the Board to adopt
Ordinance No. 109 on second reading.
The Motion by Edwards, Second by Potter, was adopted on a vote of 7 - 0.
Ordinance
No. 109 proposes to change MPWMD Rule 23.5 to re-define benefited properties
and provide a framework for the ancillary agreements for financing,
construction and operation, and sale of recycled water.
As
characterized below, a series of additional documents is needed to complete the
proposed Financing Plan, including:
(a) the Supplemental Financing Agreement, (b) the Supplemental
Construction and Operation Agreement, and (c) the Agreement for Sale of
Recycled Water. Preliminary draft
versions of these documents were provided to the Board in the October 20, 2003
meeting packet. (Reference Exhibits 2-B
(1), 2-B (2), 2-C (1), 2-C (2), 2-D (1) and 2-D (2) to the October 20, 2003
meeting packet.) More recent versions
of these draft agreements are provided in this packet, but remain subject to negotiation,
review and modification.
The Supplemental Financing Agreement (Exhibit 1-C) is a draft agreement between MPWMD and PBC that sets forth the detailed financing plan that will fund both the existing project and physical improvements to that project. This document confirms the Financial Commitment of PBC and provides details by which entitlement water can be used. The Supplemental Financing Agreement has been and will be further revised to more closely track and “flesh out” the provisions of Section Three, the provisions describing the financing mechanism proposed for funding the Project Expansion. The agreement will likely become considerably shorter, due to the “deal point” that the existing financing not be affected; recent review of some of the 1992 agreements that encapsulated the COP financing process impacted several proposed revisions to the handling of funds in connection with the Supplemental Construction and Operation Agreement, which contained definitions incorporated into the core agreements comprising the COP financing agreements.
The draft Supplemental Construction and Operation Agreement (Exhibit 1-D) is an agreement between MPWMD, CAWD/PBCSD and PBC that sets forth details relating to production and ownership of the Recycled Water. A great deal of uncertainty exists about certain of the revisions sought in the Supplemental Construction and Operation Agreement in light of the financing documents. An agreement in principle exists between CAWD/PBCSD and MPWMD staff relating to aspects of this document, but a “final” draft is not yet available. The pending issue concerns use of Recycled Water that may not be temporarily usable by Recycled Water users, primarily due to limited storage capacity in Forest Lake Reservoir.
The Agreements for Sale of Recycled Water (Exhibit 1-E) are a series of agreements between MWPMD and the owners of the properties that use Recycle Water to irrigate their lands. These agreements require Recycled Water be used for irrigation, and define the limited circumstances and consequences under which potable water may be used for irrigation.
One primary change in the Water Sales Agreement template reflects the recognition that the key changes concerning the use of potable water (the Interruption procedures) cannot take effect until the Project Expansion is “Completed.” Another change is the Recyled Water users’ agreement to pay higher than potable prices (if needed to meet expenses) for the higher quality water, thus eliminating the need for MPWMD to make sure that the price is “comparable” as a condition to non-consensual use of recycled water. Finally, CAWD/PBCSD and the Recycled Water users agree on a fact-based set of water quality criteria (to be added as Exhibit F in lieu of the former Exhibit A), the definition of “Capital Costs” has been eliminated, and the Recycled Water users agree to revise a portion of Exhibit D addressing the right of first refusal for surplus Recycled Water.)
As
noted in the Board meeting packet of October 20, 2003, the State Water
Resources Control Board (SWRCB) promulgated letters on March 27, 1998, and
on October 18, 2001 stating its acquiescence to the conceptual transfer of not
more than 380 acre-feet per annum of potable water supplies freed up through
use of treated wastewater on the Del Monte Forest property for new purposes,
provided that diversions from the Carmel River do not exceed 11,285 acre-feet
per year plus the quantity of potable water provided to Pebble Beach Company
and other sponsors under this entitlement for use on the Del Monte Forest
properties. Copies of the referenced
letters from the SWRCB were provided to the Board as Exhibit 2-F and Exhibit
2-G in the October 20, 2003 meeting packet.
CEQA REVIEW:
The following documents have been prepared pursuant to the California Environmental Quality Act (CEQA) relating to the CAWD/PBCSD Project:
· MPWMD Resolution No. 89-21 adopted on October 3, 1989, certifying MPWMD’s reliance, as responsible agency, on the Final EIR for CSD/PBCSD Waste Water Reclamation Project certified September 21, 1989 by CAWD.
· Final Expanded Initial Study, Phase II – CAWD/PBCSD Wastewater Reclamation Project, dated February 23, 1996 and Negative Declaration adopted in PBCSD Resolution No. 96-04 adopted February 23, 1996.
Guideline
15162 provides a logic tree under which the Board is authorized to determine
whether or not the present action (a) would cause a substantial change in the
project which will involve new significant environmental effects or a
substantial increase in the severity of identified significant effects, or (b)
would involve changed circumstances or new information relating to significant
new effects of the project or as to the severity of impacts of the
project.
The
ordinance, as proposed, will support findings under this Guideline, enabling
the adoption of Ordinance No. 109 upon existing CEQA documents, as supplemented
by the Findings, attached as (Exhibit 1-B).
The Board reviewed the prior draft of these findings at the October 20, 2003 meeting. On November 24, 2003, the Board, instead of adopting CEQA Findings as proposed by staff, adopted a motion that Ordinance No. 109 “does not involve any new or different environmental circumstances that would trigger a need for further environmental review under Public Resources Code section 21166.” (Motion by Henson, Second by Erickson, adopted on a vote of 5-2.)
As an alternative to this action, staff proposes that the Board instead review and approve the CEQA
findings included in this staff note after it closes the public hearing draft
Ordinance No. 109.
IMPACT
ON STAFF/RESOURCES: MPWMD’s legal and other expenses
associated with development of this ordinance and subsequent agreements for implementation
of the project improvements are eligible for reimbursement from the current
CAWD/PBCSD Wastewater Reclamation Project.
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