EXHIBIT
2-A
DRAFT
ORDINANCE
NO. 108
AN ORDINANCE OF THE BOARD OF DIRECTORS
OF THE
MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT
AMENDING RULE 28-B
TO CLARIFY THE DISCRETIONARY REVIEW OF
WATER CREDIT TRANSFER APPLICATIONS BY BOARD
OF DIRECTORS
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. Rule 28-B of the Water Management District enables transfer of water credits from an existing non-residential use to another expanding non-residential use or to a jurisdiction for use at its discretion. Although the stated purpose of the water credit transfer program is to promote and accelerate the permanent abandonment of water use, recent analysis shows that the existing water transfer rules have not resulted in the anticipated savings of water, and may have resulted in an increase in water usage by reason of the transfer.
4. The proposed ordinance amends Rule 28-B to clarify the Board of Directors discretionary authority to approve a water credit transfer, after consideration of the impacts of the application under consideration and the cumulative impacts of other transfers, if the transfer will not have an adverse impact on the water supply. The proposed ordinance thus provides for broad environmental review of water transfer applications, and clarifies the Board of Directors broad discretionary authority to consider those applications in light of the District’s mandate to maintain, restore, and enhance ground and surface water on the Monterey Peninsula for the benefit of the environment.
5. The Board of Directors determines that this ordinance is an action taken by a regulatory agency as authorized by state or local ordinance to assure the maintenance, restoration, and enhancement of a natural resource and to assure the maintenance, restoration, enhancement, and protection of the environment where the regulatory process involves procedures for protection of the environment, and therefore finds that enactment of this ordinance is categorically exempt from the requirements of the California Environmental Quality Act under sections 15307 and 15308 of the CEQA Guidelines.
6. This
ordinance shall revise, amend and republish Rule 28-B of the Rules and
Regulations of the Water Management District.
NOW THEREFORE be it ordained as follows:
Section One: Short Title
This ordinance shall be known as the Rule 28-B
Authority Amendment Ordinance.
Section Two: Purpose
This ordinance revises,
amends and republishes water use credit provisions set forth in District Rule
28- B.
Section Three: Amendment of Rule 28-B
(Property-To-Property And Property-To-Jurisdiction Transfers Of Water Use Credits For Commercial
And Industrial Uses)
District Rule 28-B, Property-To-Property And
Property-To-Jurisdiction Transfers Of Water Use Credits For Commercial And
Industrial Uses, shall be amended as follows, where the portion set forth in
strikeout type (strikeout) is deleted and the portion set forth in italicized and bold face type (bold
face) is added:
“28-B. Property-to-Property and Property‑to-Jurisdiction Transfers
of Water Use Credits For Commercial and Industrial Uses
Water use credits for existing water use
which has been allowed by the District on or after January 1, 1985, may be
transferred from one property to another for commercial and industrial
connections pursuant to this Rule and upon the approval of the Board of
Directors. Commercial and
industrial water credits may also be transferred directly into a jurisdiction’s
allocation upon the approval of the Board of Directors. Open space and residential water use shall
not be transferred. The following
conditions shall apply:
1.
Due
to the District’s ongoing concern about the viability of the available water
supply and the possibility that water transfers may result in additional water
usage, water transfers shall be approved by the Board of Directors, subject to
the other provisions of this Rule, if the transfer will not have an adverse impact on the
water supply. In exercising its
discretion, the Board of Directors shall consider the impacts of the
application under consideration, as well as the cumulative impacts of other
transfers, on the water supply.
1.2. Water use credit transfers shall only occur
within a single jurisdiction. No
inter-jurisdictional transfer shall be allowed.
Property-to-property transferred water credits shall not have any impact
on a jurisdiction’s allocation.
Property-to-jurisdiction transfers shall increase a jurisdiction’s
available allocation.
2.3. Water use credit transfers shall only occur
within a single water distribution system.
No inter-system transfers shall be allowed.
3.4. Water use credit transfers shall only occur
with the prior approval of the city, county or airport district.
4.5. Water use credit transfers shall only be
allowed from an existing commercial or industrial use, and must be applied to
the intensification of another existing commercial or industrial use or added
to a jurisdiction’s allocation. Other
than transfers which add to a jurisdiction’s allocation, transfer credits shall
not originate from, or be transferred to, any residential
use. Transfer credits shall not derive
from any prior open space water use.
5.6. Property-to-property water use credit
transfers shall only be used for intensification purposes. New water connections shall not be issued
based upon a property-to-property transferred water use credit.
6.7. Property-to-property commercial water use
credit transfers shall only enable intensification of an existing commercial or
industrial water use capacity, as proposed by a current application for a water
permit. Transfers shall not provide
water use capacity for new commercial or industrial water meter
connections. Transferred water credits
shall not be “banked” for future use at any new or different site.
7.8. The use of credits resulting from a
property-to-jurisdiction transfer shall be at the discretion of the
jurisdiction.
8.9. All water use credit transfers shall
originate only from prior documented commercial water use capacity and shall be
subject to each and every limitation on the calculation of water use credits
set forth in Rule 25.5.
9.10. All transfers of water use credits shall
occur only by the written (and recorded) agreement of the owner of record for
each parcel from which the transfer originates.
This agreement shall confirm that the transfer of water credit is
irrevocable, shall quantify remaining water use capacity required by the
originating parcel(s), and acknowledge that any intensification of water use
capacity on the originating site thereafter shall result in additional
connection charge fees. If all prior
water use capacity is transferred from a site (due to demolition of all
structures on that site), the recorded agreement and notice shall consent to
permanent removal of the meter connection from the originating site, and
acknowledge that the placement of a new meter shall be limited due to
unavailability of water.
10.11. Transfer of water use credits shall only
occur upon approval by the District Board of Directors. The District Board of Directors shall
have sole and exclusive authority to determine the water use capacity which
cannot be transferred by reason of capacity requirements for the originating
site. The District Board of
Directors shall have sole and exclusive authority to determine the
water use capacity requirements for the receiving site. The District Board of Directors shall
not approve any water credit transfer where money or other valuable
consideration has been given in exchange for the water credit transfer. The District Board of Directors shall
not approve any capacity for expanded water use deriving from a transferred
water credit in any circumstance where money or other valuable consideration
has been given in exchange for use of the water credit. These limitations shall nonetheless allow the
recipient of a water credit transfer to reimburse the donor of that credit for
connection fees previously paid to the District for that increment of water.
A.
Violation
of the prohibition on the transfer of water credit for money or other valuable
consideration shall result in immediate revocation of the transfer credit.
B.
Violation
of the prohibition on the transfer of water credit for money or other valuable
consideration is a misdemeanor as provided in Section 256 of the Monterey
Peninsula Water Management District Law.
11.12. Transfer of water use credits shall not be
approved by the Board of Directors District staff if the
effect of the transfer shall cause the originating site to have insufficient
water credit to meet the water use capacity requirements of all existing
structures on the transferring property site.
If all prior water use is transferred from a site (due to demolition of all
structures), the transfer shall be approved only upon the removal of the meter
connection from the originating site, and the recordation of the notice
specified above.
12.13. The effect of any approved water credit
transfer shall be the irrevocable extinction of any right or entitlement to the
actual water use, water use capacity, or water credit which has been
transferred from the originating (transferring) site.
13.14. Before any water use credit transfer shall
occur, the transfer fee required by Rule 60 for each originating site shall be
paid by the applicant.”
Section Five: 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.
This ordinance shall take
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 Seven: 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 ________________, 2003, by the following vote:
AYES:
NAYS:
ABSENT:
I, Fran Farina, 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 _____________ 2003.
Witness my hand and seal of the Board of Directors this ________ day of ____________ 2003.
Fran
Farina, Secretary to the Board