EXHIBIT 2-A
DRAFT-VERSION 1 (HS 3/31/05)
ORDINANCE
NO. 123
AN
ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT
CREATING
AN IMPACT-BASED SYSTEM FOR
WATER
DISTRIBUTION SYSTEM PERMITS
FINDINGS
1. The Monterey Peninsula Water Management
District (MPWMD, Water Management District, or District) was authorized in 1977
by the California Legislature (Chapter 527 of the Statutes of 1977, as amended,
found at West’s Water Law Appendix Section 118-1, et seq.), and the voters of the
2. The Water Management District is authorized
to establish a written permit system to regulate water distribution systems,
regardless of the number of connections served or the source of the water
supply.
3. The Board of Directors finds that regulating
all water distribution systems, including mobile water distribution systems, is
necessary to protect District water resources and to assure that sufficient
water will be available for present and future beneficial use by all District
inhabitants and lands. The District’s
management efforts are necessary to protect District water resources and to
assure that sufficient water will be available for present and future
beneficial use by all District inhabitants and lands. The need for these protective efforts has
been heightened by the State Water Resources Control Board (SWRCB) Order WR
95-10, and the listing of the
4. The Water Management District has enacted, by
ordinance, a set of Rules and Regulations to implement its statutory
authority. District Rule 11 defines the
terms used in the regulation of water distribution systems and mobile water
distribution systems. District Rules 20,
21, 22, 40, 54 – 56, 60, 114 and 173 further define procedural and substantive
rules that regulate these systems.
Although these rules have been amended from time to time, the
fundamental scope of these regulations was first enacted in the early
1980s. Definitions for the terms “Water
Distribution System” and “Water-Gathering Facility” were enacted on February
11, 1980 by Ordinance No. 1. The
definition of “Source of Supply” was enacted on July 11, 1980 by Ordinance No.
3. The term “Mobile Water Distribution
System” was defined on July 13, 1981 by Ordinance No. 7. Significant refinements, changes and
additions to the rules and regulations governing water distribution systems
were adopted as part of Ordinance No. 96 on March 19, 2001; Ordinance No. 105
on December 16, 2002; Ordinance No. 106 on February 27, 2003; and Ordinance No.
118 on December 13, 2004.
5. The Water Management District has enacted a
comprehensive scheme to review and regulate the creation and expansion of water
distribution systems. That scheme was
first enacted on February 11, 1980, by Ordinance No. 1, and has since been
amended from time to time, most recently with Ordinance No. 118 adopted on December
13, 2004 (effective January 12, 2005).
6. Based on four years of experience since
Ordinance No. 96 was adopted in March 2001, the District believes that there is
a need to streamline the permit process and reduce the financial burden to
applicants requesting approval for water distribution systems that have a low
potential to adversely affect the water resources system, dependent habitat or
existing water systems. Conversely, the
District believes there is a need for more rigorous review of water distribution
systems that have a higher potential to affect sensitive environmental
resources or existing water systems.
Thus, a new “impact-based” permit process is recommended, where District
resources are focused on applications that have the most potential to affect
the environment and existing water systems.
The District’s environmental review is focused on surface and
groundwater hydrology, water quality and other water-resource related issues;
and not issues such as traffic, visual quality, cultural resources and other
elements that are not within the regulatory authority of this agency.
7. This Ordinance is intended to authorize a new, multi-level,
impact-based system that governs the review and approval of water distribution
system applications submitted to the Water Management District, including
revised fees consistent with the level of staff effort needed. This Ordinance is intended to be consistent
with the required findings, minimum standards of approval, and conditions of
approval described in Rule 22.
8. This Ordinance is intended to be consistent with current
enforcement procedures as recently clarified via Ordinance No. 118 in December
2004.
9. The Water Management District Board of
Directors has reviewed recommended ordinance concepts and received input from
the public at the Rules & Regulations Review Committee meetings of April 5,
2005 and _____ 2005; and at regular board meetings on April 18, 2005, _______
2005 and ______ 2005.
10. At its meeting of ______ 2005, the Water
Management District Board of Directors determined adopted a Negative
Declaration stating that Ordinance No. 123 would not have a significant effect
on the environment (CEQA Guidelines sections 15074). This determination was based on an Initial
Study circulated for public comment for a minimum of 20 days beginning on _____
2005. A Notice of Determination was
filed on _____ 2005 based on District Board adoption of Ordinance No. 123 at
its second reading on ____ 2005.
11. This ordinance is adopted to enhance the
District’s ability to protect water quality and quantity, to prevent diminution
of waters within the District, to protect environmental values, and is
consistent with the District’s authority to reasonably regulate in-stream,
surface, and subterranean water supplies within District boundaries.
12. This ordinance shall amend Rules 11,
20, 21, 22, and 60 of the Rules and Regulations of the Water Management
District, and shall add a new Rule ____ to those Rules and Regulations.
NOW THEREFORE be it ordained as follows:
ORDINANCE
Section
One: Short Title
This ordinance shall be known as the
Impact-Based Water Distribution System Permit Review Ordinance of the Monterey
Peninsula Water Management District.
Section
Two Purpose
This ordinance shall revise the permanent
Rules and Regulations of the Monterey Peninsula Water Management District to
amend procedures that affect the creation, amendment, expansion or extension of
water distribution systems and mobile water distribution systems. This ordinance shall also revise and set fees
consistent with the amended permit procedures.
Section
Three: Amendment of Rule 11
(Definitions)
District Rule 11 shall be amended by deleting
the following provisions shown in strikeout text (strikeout), and by
adding the following provisions set forth in italicized and bold face type (bold face).
ACTIVE WELL - **Existing definition—does this
need refinement??***
COMPLETION - **Existing definition—does this
need refinement??***
COMPLETION OF A WELL - **Existing definition—does
this need refinement??***
CREATE - **Existing definition—does this need
refinement??***
EXEMPT – NEW DEFINITION
INACTIVE WELL – NEW DEFINITION
LEVEL 1/WAIVER – NEW DEFINITION
LEVEL 2/ADMINISTRATIVE PERMIT – NEW
DEFINITION
LEVEL 3/HEARING OFFICER REVIEW – NEW
DEFINITION
LEVEL 4/BOARD HEARING – NEW DEFINITION
PERMIT REVIEW LEVEL – NEW DEFINITION
PRE-APPLICATION REVIEW – NEW DEFINITION processing
protocol
REPLACE A WELL - **Existing definition—does
this need refinement??***
SENSITIVE RECEPTOR – NEW DEFINITION
WELL - **Existing definition—does this need
refinement??***
WELL SOURCE AND PUMPING IMPACT ASSESSMENT –
NEW DEFINITION
***ANY OTHERS?? ***
Section Four: Amendment
of Rule 20 (Permits Required)
District
Rule 20 shall be amended by deleting the following provisions shown in
strikeout text (strikeout) and by adding the following provisions set
forth in italicized and bold face type (bold face).
RULE 20 – PERMITS REQUIRED
A. PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM
Before any person creates or establishes a water distribution system, such person shall first obtain a
written exemption or permit from the District.
Before any person creates or establishes a mobile water distribution system, such
person shall obtain a written permit from the District.
[NOTE: No further changes are made to Rules 20-A or
20-B]
C. EXEMPTIONS FOR WATER DISTRIBUTION SYSTEM
PERMIT
An MPWMD water distribution system permit is not
required for the following situations:
1. For properties that lie outside
the District boundary, Wwhere both: (a) the
property to be served is wholly outside of the boundaries of the Monterey
Peninsula Water Management District, and (b) the water source is
also located outside of the District boundary.
2. For
properties that straddle the District boundary, an MPWMD water distribution
system permit is not required where both: (a) the portion of the property
served by the water distribution system is outside of the District boundary,
and (b) the source of supply is outside of the District boundary.
3. [formerly
#2] A system that meets each of the following criteria: (a) comprised of
one or two parcels totaling less than 2.5 acres in size; (b) located outside of
the Carmel River Basin and Seaside Groundwater Basin as shown in maps provided
in the Implementation Guidelines; (c) located outside of the California
American Water (Cal-Am) service area (or not served by Cal-Am as a remote
meter); and (d) well site is located more than 1,000 feet from any “sensitive
receptor” as defined in Rule 11, Definitions. A single-parcel connection water
distribution system unless that system derives its source of supply from within
the Carmel River Basin, as shown in the map
provided in the Implementation Guidelines; and/or the Seaside Coastal Subareas of the Seaside Groundwater Basin.
The Coastal Subareas are defined in
Rule 11, Definitions.
[NOTE: Renumber subsections C-3 through C-11. No changes are made to Rule 20-D]
Section Five: Amendment
of Rule 21 (Applications)
District
Rule 21 shall be amended by deleting the following provisions shown in
strikeout text (strikeout) and by adding the following provisions set
forth in italicized and bold face type (bold face).
RULE 21 -
APPLICATIONS
A. APPLICATION FOR PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM
The applicant for a Permit to Create/Establish a Water
Distribution System shall submit the following:
1. A completed, written application “Pre-Application
Request Form”, signed by the system owner, in the manner and form prescribed
by the Implementation Guidelines. Based
on the information provided on the Pre-Application Request Form, District staff
shall determine: (a) whether the application qualifies for an Exemption from
Rule 20; (b) which one of four “permit review levels” is required (i.e., Level
1, Level 2, Level 3 or Level 4 described in Rule 22); and (c) whether the
application is for a mobile water distribution system. The applicant shall submit a completed,
written Application Form, signed by the system owner, specified for the type of
system and permit review level in the manner and form prescribed by the
Implementation Guidelines, which encompass the remaining numbered elements of
this Rule 21-A; and
[NOTE: No further changes are made to Rules 21-A
through 21-F]
Section Six: Amendment of Rule 22 (Action on
Application for Permit to Create/Establish a Water Distribution System)
District Rule 22 shall be amended by deleting
Rule 22-A, Process, in its entirety, and replacing the text with the following
provisions set forth in italicized and bold face type (bold face).
A. PROCESS
1. Review of Pre-Application Request Form
for All Systems
The General Manager (or staff designee) shall review each Pre-Application Request
Form to create/establish a water distribution system. If the Pre-Application is determined to be
complete pursuant to the Implementation Guidelines, the General Manager shall
determine the proper permit review level (i.e., Exempt, Level 1, Level 2, Level
3, or Level 4 as defined in Rule 11, Definitions). The General Manager shall notify the
applicant in writing of the permit level determination (to be confirmed by
information in the formal Application Form), applicable permit application fee,
and provide the proper written Application Form and associated materials
pursuant to the Implementation Guidelines.
If the Pre-Application Request Form is determined to be incomplete, the
General Manager shall notify the applicant concerning the missing or deficient
information, and request the applicant to submit that information.
2. Determination of Permit Review Level
Based on the information in the
Pre-Application Request Form (as confirmed by the formal Application Form), the
General Manager (or staff designee) shall determine the permit review level
as follows, using the attached Table 22-A as a guide:
Exempt:
A system meets each of the criteria identified in Rule 20-C-3.
Level 1/Permit Waiver:
A system meets all of the following criteria: (a) comprised of
one or two parcels totaling less than 2.5 acres; (b) well site is located in
Carmel Valley Upland more than 1,000 feet from any sensitive receptor as
defined in Rule 11; and (c) property is not within the Cal-Am service area or
served by Cal-Am as a remote meter. See
also the attached Table 22-A.
Level 2/Administrative Permit:
A system meets the criteria for Level 2 as shown in the attached Table
22-A.
Level 3/Hearing Officer Review:
A system meets the criteria for Level 3 as shown in the attached Table
22-A.
Level 4/MPWMD Board Hearing:
A system meets the criteria for Level 4 as shown in the attached Table
22-A.
3. Protocol for Exempt System
No Application Form or permit processing
is required for an exempt system. The General Manager (or staff designee) shall provide a written Confirmation of
Exemption to the applicant in the form and manner prescribed in the
Implementation Guidelines, including the applicable fee described in Rule 60.
4. Protocol for Level 1/Permit Waiver
The General Manager (or staff designee) shall provide an Application Form for a
Level 1 system in the form and manner prescribed in the Implementation
Guidelines, including the applicable fee described in Rule 60. The Application Form shall require written
documentation that the system meets the Level 1 criteria described in Rule
22-A-2 above. The General Manager shall
determine if the submitted Application is complete, pursuant to the
Implementation Guidelines, within thirty (30) days of receipt. If the Application is determined to be
complete, the General Manager shall issue a Permit Waiver within thirty (30)
days that specifies the terms and conditions of the Waiver that are independent
of, but consistent with, Rules 22-B, 22-C and 22-D. The Permit Waiver does not set system
limits. If the Application is
determined to be incomplete, the General Manager shall notify the applicant
concerning that information in which the Application is deficient and request
the applicant to submit that information, in compliance with Rule 22-F.
5. Protocol for Level 2/Administrative
Permit
The General Manager (or staff designee) shall provide an Application Form for a
Level 2 system in the form and manner prescribed in the Implementation
Guidelines, including the applicable fee described in Rule 60. The Application Form shall require written
documentation that the system meets the Level 2 criteria described in Rule
22-A-2 above as well as enable compliance with Rules 21-A, 22-B and 22-C. The General Manager shall determine if the
submitted Application is complete, pursuant to the Implementation Guidelines,
within thirty (30) days of receipt. If
the Application is determined to be complete, the General Manager shall issue
an Administrative Permit. The
Administrative Permit shall include Conditions of Approval in compliance with
Rule 22-D. The Level 2 process does not require a public hearing. If the Application is determined to be incomplete,
the General Manager shall notify the applicant concerning that information in
which the Application is deficient and request the applicant to submit that
information, in compliance with Rule 22-F.
6. Protocol for Level 3/Hearing Officer
Review
a. The
General Manager (or staff designee) shall provide an Application Form for a
Level 3 system in the form and manner prescribed in the Implementation
Guidelines, including the applicable fee described in Rule 60. The Application Form shall require written
documentation that the system meets the Level 3 criteria described in Rule
22-A-2 above as well as enable compliance with Rules 21-A, 22-B and 22-C. The General Manager shall determine if the
submitted Application is complete, pursuant to the Implementation Guidelines,
within thirty (30) days of receipt. If
the Application is determined to be incomplete, the General Manager shall
notify the applicant concerning that information in which the Application is
deficient and request the applicant to submit that information, in compliance
with Rule 22-F.
b. If
the Application is determined to be complete, the general Manager shall act
within thirty (30) days following satisfaction of CEQA requirements to set a public hearing on the Application for
such permit, and shall notify the applicant in writing and give public notice
of the hearing date in the manner and form prescribed in the Implementation
Guidelines. At the hearing, the General
Manager or staff designee shall sit as the sole Hearing Officer. At the hearing, the applicant shall be
entitled to present evidence in support of the Application. Interested persons may present evidence in opposition or
support of the Application. The Hearing
Officer, in conducting the public hearing, may
request hydrologic, geologic, legal opinions or other studies necessary to
obtain information required for his/her decision. The cost of such studies shall be borne by the
applicant. For every Application for
which a controversy, based on factual evidence
already in the record or introduced into the record, arises concerning the
extent or adequacy of water rights, the Hearing Officer may require and will
specify additional documentation needed to support each water right claim. The Hearing Officer shall continue the public hearing on the
application until the specified information is provided by the applicant.
c. The Hearing Officer may deny, approve,
or continue the permit Application based on the minimum standards as set forth
in Rule 22-C and its findings pursuant to Rule 22-B. The Hearing Officer may impose such
conditions on the permit that he/she deems necessary and proper, which must
include the Mandatory Conditions of Approval specified in Rule 22-D. The General Manager shall notify the
applicant within thirty (30) days in writing by mail or in person of the Hearing Officer action
taken; namely continuance, approval, conditional approval, or denial of the
Application. Notice of the action taken
shall be deemed to have been given when the written notification has been
deposited in the mail, postpaid, addressed to the address shown on the
application, or when personally delivered to the applicant or the applicant’s
representative.
d. The Hearing Officer’s decision may be
appealed to the MPWMD Board of Directors pursuant to Rule 70,
“Appeals,” upon payment of the fee specified in Rule 60. Permits granted under this provision may be appealed to the Board of Directors
for a de novo hearing. That hearing shall convene under the rules of process
set in Rule 70, “Appeals.”
7. Protocol for Level 4/MPWMD Board
Hearing
a. The
General Manager (or staff designee) shall provide an Application Form for a
Level 4 system in the form and manner prescribed in the Implementation
Guidelines, including the applicable fee described in Rule 60. The Application Form shall require written
documentation that the system meets the Level 4 criteria described in Rule
22-A-2 above as well as enable compliance with Rules 21-A, 22-B and 22-C. The General Manager shall determine if the submitted
Application is complete, pursuant to the Implementation Guidelines, within
thirty (30) days of receipt. If the
Application is determined to be incomplete, the General Manager shall notify
the applicant concerning that information in which the application is deficient
and request the applicant to submit that information, in compliance with Rule
22-F.
b. In the case of Level 4 permit review,
the procedures are identical to those described for Level 3 in Rule 22-A-6
above, except MPWMD Board of Directors, not the staff Hearing Officer, shall conduct the public hearing. Also, there is no appeal of the MPWMD Board’s
decision (i.e., Rule 22-A-6-d does not apply).
Section Seven: Amendment to Rule 60 (Fees and
Charges)
District Rule 60 shall be amended
by deleting the following provisions shown in strikeout text (strikeout)
and by adding the following provisions set forth in italicized and bold face
type (bold face).
RULE 60 FEES AND
CHARGES
[NOTE TO READER -- No changes are proposed for the text of Rule
60.]
[Changes to the Ordinance No. 120 “Fees and Charges Table” (to be Table 22-B in Ordinance No. 123; referred to as Exhibit 2-C for 4/5/05 R&RCom) are proposed as follows:
Pre-Application Request Form: A flat fee of $150 is payable at the
time a written Pre-Application Request Form is submitted.
Confirmation of Exemption Fee: A flat fee of $50 is payable at the
time a Confirmation of Exemption request is submitted.
Level 1/Permit Waiver Fee: A flat fee of $300 is payable at the time
a written Application for a Permit Waiver is submitted.
Level 2/Administrative Permit Fee: A fee of $1,400 is payable at the time a written Application for an Administrative Permit is submitted for up to 20 hours of MPWMD staff time.
Level 3/Hearing Officer Review: A fee of $2,450 is payable at
the time a written Application for a WDS Permit is submitted for up to 35 hours
of MPWMD staff time.
Level 4/MWMD Board Hearing Permit: A fee of $2,450 is payable
at the time a written Application for a WDS Permit is submitted for up to 35
hours of MPWMD staff time. ]
Section Ten: 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 titles and captions are provided for convenience and shall not be construed to limit the application of the text.
Section Eleven: Effective Date and Sunset
This ordinance shall be given effect at 12:01 a.m. on the 30th day after it has been enacted on second reading.
This Ordinance shall not have a sunset date.
Section Twelve: 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 Lehman, and second by Director Edwards, the foregoing ordinance is adopted upon this __th day of _______ , 2005, by the following vote:
AYES: Directors _____ ______
NAYS: Directors __________
ABSENT: Directors _________
I, David A. Berger, 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 __th day of ________, 2005.
Witness my hand and seal of the Board of Directors this _th day of _____, 2005.
__________________________________
David A. Berger, Secretary to the Board
U:\staff\word\committees\RulesRegsReview\2005\20050405\02\item2_exh2a.doc
Prepared by HS 3/30/05