EXHIBIT 11-A
DRAFT 7
ORDINANCE
NO. 118
AN
ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT
REFINING
THE WATER DISTRIBUTION SYSTEM PERMIT PROCESS, SETTING FEES, AND AUTHORIZING
ENFORCEMENT
FINDINGS
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 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.
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, 22, 40, 54 – 56, 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 and Ordinance No.
105 on December 16, 2002.
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. 105 adopted on December 16, 2002 (effective
January 15, 2003).
6.
Since Ordinance
No. 105 became effective in January 2003, the District has encountered
situations that were not anticipated or explicitly addressed in the Rules and
Regulations. Based on this information,
recommended refinements and clarifications to the Rules and Regulations were
suggested.
7. This Ordinance is intended to authorize the collection of
administrative fees for staff time required to secure compliance with the
refinements and clarifications contained herein. Pursuant to California
Environmental Quality Act (CEQA) Guidelines section 15273(a)(1) (Rates, Tolls, Fares, Charges), this
ordinance is exempt from CEQA as its intent is to meet operating expenses,
including employee wage rates and fringe benefits, consultant services, legal
services and direct costs associates with each water distribution system
application, including permit
processing, enforcement and litigation.
8. This Ordinance is intended to authorize the enforcement of these
refinements and clarifications in addition to the authority granted in District
Rules 110, 111, and 112.
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 June 22, 2004, August 2, 2004 and October 27, 2004
and at regular board meetings on August 16, 2004, November 15, 2004 and
_____________.
10.
At its meeting
of __________, 2004, the Water Management District Board of Directors
determined that this Ordinance No. 118 is exempt from CEQA as it can be seen
with certainty that there is no possibility that these procedural refinements,
fee setting and enforcement authorization may have a significant effect on the
environment (CEQA Guidelines section 15063(b)(3)). The MPWMD Board also found that Ordinance No. 118 is exempt from
CEQA pursuant to statutory and categorical exemptions described in CEQA
Guidelines sections 15273(a)(1) and 15321(a).
A Notice of Exemption was filed on ________ based on Board direction at
its meeting of _____________.
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, 40 and 60 of the Rules and
Regulations of the Water Management District, and shall add a new Rule 20.4 and
114 to those Rules and Regulations.
NOW THEREFORE be it ordained as follows:
ORDINANCE
Section
One: Short Title
This ordinance shall be known as the Water
Distribution System Regulation Refinement Ordinance of the Monterey Peninsula
Water Management District.
Section
Two Purpose
This ordinance shall revise the permanent
Rules and Regulations of the Water Management District to clarify procedures
that affect the creation, amendment, expansion or extension of water
distribution systems and mobile water distribution systems. This ordinance shall also set fees and
authorize enforcement related to the clarified procedures.
Section
Three: Addition of Rule 20.4
(Permit Rule Noncompliance)
Monterey Peninsula Water Management District
Rule 20.4 shall be added, as follows:
RULE 20.4 PERMIT RULE NONCOMPLIANCE
A.
NOTIFICATION
When the General Manager first becomes aware that a water distribution system is operating without a permit, he/she shall provide written notification to the owner and operator, if known, of the water distribution system that District Rule 20 has been violated. Copies of this notice shall be provided to each property owner receiving water from the unpermitted water distribution system, to the extent known. Notice shall be deemed to have been given when the written notification has been deposited in the U.S. mail, postpaid, addressed to the responsible party, or when personally delivered. The owner of the water distribution system shall file an application for a permit in accord with District Rule 21 within sixty (60) days of notification.
B.
RECORD
NOTICE OF NON-COMPLIANCE
1.
If the owner of
a water distribution system has not filed the application within sixty (60)
days of the date required in Section A above, the General Manager shall record
Notices of Non-Compliance against all properties receiving water from the
unpermitted water distribution system.
2.
The General
Manager shall cause Notices of Compliance to be recorded only at such time as
the water distribution system has received a permit pursuant to District Rules
20 and 22.
C. AUTHORIZATION TO FILE LAWSUIT & IMPOSE LIENS
If the owner of an unpermitted water
distribution system fails to file an application within thirty (30) days of the
date a Notice of Non-Compliance is recorded, the General Manager is authorized
to file suit in Monterey County Superior Court to compel compliance with any
and all permit requirements applicable to that water distribution system. Causes of action and relief sought may
include, but are not limited to, nuisance, temporary restraining order, and
injunction. The General Manager shall
recover all legal fees, costs and administrative expenses incurred in such
action as a fee imposed by the District upon the unpermitted water distribution
system. The General Manager shall
record a lien against each and every property receiving water from the
unpermitted water distribution system if the fee for these costs or expenses is
not paid in full within ninety (90) days of invoice mailed to the owner,
provided the property upon which a lien is to be filed (i) has received a copy
of that invoice, and (ii) that property has received water from the unpermitted
water distribution system. Any lien
authorized by this section shall not require prior Board further approval as
may be required for other liens pursuant to District Rule 113.
D. ADDITIONAL AUTHORITY
Creation,
establishment, expansion or extension of a water distribution system without a
written permit from the District is a misdemeanor punishable as an infraction
as provided by Section 256 of the Monterey Peninsula Water Management District
Law, Statutes of 1981, Chapter 986. The
District may seek criminal prosecution and/or civil enforcement of its rules
pursuant to this Section.
Section Four: 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 ESTABLISH/CREATE 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, signed by the system owner, in the manner and form prescribed by the Implementation Guidelines;
and
2.
Environmental
information as required by the California Environmental Quality Act (CEQA); and
3.
Zoning and land use
designations for the property; identify land use approvals which may be
required for the proposed project by the municipal unit in which proposed
system would be located (i.e., tentative map, use permit, etc.), or by other
governmental agencies, consistent with state and local regulations that require
proof of available water supply; and
9. An evaluation of the hydrogeologic
information in the manner and form required in the Implementation
Guidelines. This evaluation shall be
prepared by a qualified individual or firm as determined by the District. The costs of this evaluation shall be borne
by the applicant; and
9. 10. The applicable fees
prescribed in Rule 60.
Amended and renumbered by Ordinance No. 96
(3/19/2001)
B. APPLICATION FOR PERMIT TO EXPAND/EXTEND
EXTEND/EXPAND A WATER DISTRIBUTION SYSTEM
The
applicant for a Permit to Expand/Extend a Water Distribution System
shall submit the following:
[NOTE:
No changes are proposed for the balance of this Section B.]
C. APPLICATION
FOR AMENDMENT TO PERMIT
The applicant shall submit the following:
1.
A completed written application in the manner and form
prescribed by the General Manager, under Rule 22 or Rule 23 as appropriate to
the proposed amendment. An
amendment to a water distribution system permit under Rule 22 E shall require
the signature of the system owner. When
the application involves the
expansion or annexation to an existing water distribution system service area
the application shall be processed as an amendment of the Permit to
Create/Establish a Water Distribution System.
When the application involves expansion of
the water distribution system beyond its prior authorized system capacity
(annual production) limit or its prior authorized expansion capacity
(connection) limit, the application shall be processed as an amendment of the
Permit to Create/Establish a Water Distribution System.
2.
No owner or
operator of a water distribution system shall modify, add to or change his/her
source of supply, location of uses, change annual production or connection
limits, or expand the service area unless that person first files an
application to do so with the District and receives an amended
creation/establishment permit.
2. 3. The
fee prescribed in Rule 60.
3. 4. The
applicable connection charge prescribed in Rule 24, Connection Charges.
[NOTE: No changes are proposed for the balance of Section D, E, or F.]
Section Five: Amendment of Rule 22 (Action on
Application for Permit to Create/Establish a Water Distribution System)
District Rule 22 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).
[NOTE: No changes are proposed to Sections A
through D 1.]
2.
Every applicant, as a condition to holding a permit pursuant
to this rule, shall report annually in the form and manner
prescribed by the District,: (i) the quantity of water delivered from each
source of supply, (ii) the total water produced, and (iii) the average daily number of connections in the
system, and (iv) the number of new connections and
disconnections, (v) provide
a map or maps of the service area,
and (vi) list the identity and address of each responsible
party as of June September 30th
of the previous year.
E.
AMENDMENTS
TO PERMIT
No owner or operator of a water distribution
system shall modify, add to or change his/her source of supply, location of
uses, expand the system beyond the system
capacity (annual production) limit or the expansion capacity (connection) limit, or expand the
service area including annexations, unless
that person first files an application to do so with the District and receives
an amended creation/establishment permit.
Such applications shall be made pursuant to Regulation II (Permits),
shall comply with each rule therein, and shall be investigated, considered,
determined and acted upon on the same terms and conditions as provided for the
approval, conditional approval, or denial of a permit, as provided in this
rule.
F. CANCELLATION
OF APPLICATIONS
In
processing an application for a Permit to Create/Establish a Water Distribution
System, an applicant who receives an incomplete letter must provide the needed
information within the period of time specified in the letter. Failure to comply shall result in
cancellation of the application, without prejudice.
G. CANCELLATION OF UNISSUED PERMITS
A
successful applicant must execute the indemnification agreement required by
Rule 22 D 1 (d), pay all applicable fees as required by Rules 22 D 1 (g) and
(l), sign the Acceptance of Permit Conditions pursuant to Rule 22 D 1 (m), and
comply with all conditions precedent within sixty (60) days from permit
approval. The General Manager shall
cancel, without prejudice, any unissued permit that does not meet these
requirements.
Section Six: Amendment of Rule 40
(Determination of System Capacity and Expansion Capacity Limits)
District Rule 40 shall be amended by adding
the following provisions set forth in italicized and bold face type (bold face).
RULE 40 DETERMINATION OF SYSTEM CAPACITY AND EXPANSION CAPACITY LIMITS
A. DETERMINATION OF SYSTEM CAPACITY (PRODUCTION) AND EXPANSION CAPACITY (CONNECTION) LIMITS (“SYSTEM LIMITS”)
[NOTE: No changes are proposed for to Section A.]
B. ANNUAL WATER DELIVERY SYSTEM REPORT
The
General Manager shall annually compile a report stating the quantity of water
delivered from each source of supply, the total water produced, the average
daily number of connections in the system, and the number of new connections in
the system, and the number of new connections and disconnections in the
previous water year for each water distribution system in the District. The General Manager shall compile this
report from the reports submitted by the owner/operator of water distribution
systems pursuant to Rule 22 and other sources as appropriate. The General Manager shall identify all water
distribution systems that meet all three of the following criteria: (i) have ten (10) or more connections, and
(ii) of these connections, at least fifty percent (50%) are active connections,
and (iii) the system (production)
capacity exceeds the pro rata expansion capacity as defined in Rule 11. Such report shall be submitted to
the Board.
Amended by Ordinance No. 105 (12/16/2002)
C. SYSTEMS
EXCEEDING PRO RATA EXPANSION CAPACITY
If
the General Manager determines that a water distribution system exceeds its pro
rata expansion capacity and meets all other criteria stated in Section B above,
the General Manager shall:
1. Notify
the owner or operator of a water distribution system that (i) the pro rata
expansion capacity is not in balance with the system capacity, and (ii) that
the owner or operator is required to prepare and implement a plan to bring the
system back into balance. Plan measures
may include installation of low water-use plumbing fixtures, landscape audits,
removal of turf/landscape acreage, modification of rate structure, or other
measures deemed acceptable by the General Manager;
2. Require
systems with multiple use types to provide a detailed breakdown of consumption
reporting by individual use types (e.g., Single-Family Dwellings in each area
of the system, Multi-Family Residential, Public Authority, Commercial, and
Industrial) together with comparison of trends in average use per
connection type over time;
3. Increase
system reporting for all times system water use exceeds the pro rata expansion
capacity, and for twelve (12) consecutive months after the system water use is
less than its pro rata expansion capacity;
4. Suspend
receipt of expansion or extension applications for any system that exceeded its
pro rata expansion capacity within the preceding twelve (12) months;
5. For
any system that exceeds its authorized pro rata expansion capacity on more than
one occasion, the suspension on receipt of expansion or extension applications
shall continue after the system again returns to compliance until the General
Manager has reviewed and concurs with credible expert analysis that the system
can and will remain in compliance; and
6. Collect administrative fees as required by Rule 60 for services required to implement these requirements.
C.D. FINDINGS HEARINGS
1. For systems which have not exceeded their system or expansion capacity limit but have exceeded their pro rata expansion capacity limit on more than one occasion, and a credible expert indicates the water distribution system cannot sustain the pro rata expansion capacity, the Board of Directors shall provide notice and hold a public hearing to consider an adjustment to the system limits based on credible evidence and make modifications in accordance therewith.
2. The
Board of Directors shall hold a public hearing to review the annual
water delivery system report and other evidence as necessary, and determine if
any water distribution system has reached or exceeded its system or expansion
capacity limit or that the system limits require modification. Where a water distribution system has
reached or exceeded its system or expansion capacity limit or
where the system limits have been modified, the Board shall direct the
General Manager or the delegated agent to deny any application for permit to
expand or extend that system until the permit is amended.
D.E.
NOTIFICATION
The General Manger shall, within thirty (30) days, notify all delegated agents and the owner/operator of the findings of the Board regarding any water distribution system that has reached or exceeded its system or expansion capacity limit or that the system limits have been modified. 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 responsible party, or when personally delivered to the applicant or his representative.
Added
by Ordinance No. 1 (2/11/80), amended by Ordinance No. 3 (7/11/80); formerly
Rule 400, renumbered by Ordinance No. 6 (5/11/81)
Section
Seven: Amendment of Rule 11 (Definitions)
District Rule 11 shall be amended by adding
the following provisions set forth in italicized and bold face type (bold face).
PRO RATA EXPANSION CAPACITY—“Pro Rata
Expansion Capacity” means the projected water use anticipated to meet the needs
of each connection as determined by the system capacity. For example, if the system capacity (annual
production) limit is 10 acre feet and the expansion capacity is 20 connections,
the pro rata expansion capacity shall be 0.50 acre feet/connection.
SYSTEM LIMITS – “System Limits”
means the system (production) and expansion (connection) capacity of a water
distribution system.
Section Eight: Amendment
to Rule 60 (Permit Fees)
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 PERMIT
FEES
A. Administrative fee for each Permit to Create/Establish a Water Distribution System, and each amendment to a Permit to Create/Establish a Water Distribution System:
[NOTE: No changes are proposed to Section A 2 through 4.]
5. Charge for Legal Fees: Any legal work performed by MPWMD Counsel associated with the permit application process is charged to the applicant at actual cost, based on the hourly rate of retained MPWMD legal counsel at the time services are rendered. This fee shall include, but not be limited to, efforts expended by District Counsel pursuant to any indemnification agreement.
6. Charge
for Direct Costs: The applicant will be
charged for direct costs associated with the permit application process. Examples include notices of public hearings and,
filing fees and recording fees charged by the Monterey County Clerk.
[NOTE: No changes are proposed to Sections A 7 and
8 or B through J]
K. FEES
RELATING TO CHALLENGES TO PERMITS
1. An
Administrative Fee based on MPWMD staff time shall be imposed and collected at
a rate of $70.00 per hour for all activity associated with any challenge to the
issuance, validity or denial of any Permit under the District Rules &
Regulations, including, but not be limited to, efforts expended by District
staff pursuant to any indemnification agreement.
2. A
Legal Defense Fee shall be imposed and collected for any legal work performed
by MPWMD Counsel associated with responding to any challenge to the issuance,
validity or denial of any Permit under the District Rules & Regulations, to
the imposition or validity of any condition imposed on such a Permit, or to any
defect in process relating to the review and action on the Permit or Permit
Conditions. This fee shall be charged
at actual cost, based on the hourly rate of retained MPWMD legal counsel at the
time services are rendered. This fee
shall include, but not be limited to, efforts expended by District Counsel
pursuant to any indemnification agreement.
L. FEES
RELATING TO PERMIT MODIFICATION OR ENFORCEMENT
1. An
Administrative Fee based on MPWMD staff time shall be imposed and collected at
a rate of $70.00 per hour for any Permit violation, Condition compliance, Water
Distribution System or expansion capacity limit modification, or other
enforcement activity.
2. A
Legal Enforcement Fee shall be imposed and collected for any legal work
performed by MPWMD Counsel associated with any Permit violation, Condition
compliance, Water Distribution System or expansion capacity limit modification,
or other enforcement activity. This fee
shall be charged at actual cost, based on the hourly rate of retained MPWMD
legal counsel at the time services are rendered. This fee shall include, but not be limited to, efforts expended
by District Counsel pursuant to any indemnification agreement.
M.
UNPAID FEES & CHARGES
The General Manager shall collect all fees
required by this Rule 60. For any
permit that has been issued, but for which outstanding fees have not been paid,
the General Manager shall record a lien against that property affected by the
Permit if the unpaid fee or charge is not paid in full within ninety (90) days
of invoice mailed to the owner, provided the property upon which a lien is to
be filed has received a copy of that invoice.
Any lien authorized by this section shall not require prior Board
approval as may be required for other liens pursuant to District Rule 113.
N. REFUNDS OF FEES & CHARGES
Fees and charges pursuant to Regulation VI
are paid to or due the District in consideration of, and as reimbursement for,
District incurred costs and expenses relating to the administration and
processing of applications, permits, variances, appeals, notices,
investigations, and District enforcement activities. These include, but are not limited to, costs and expenses
incurred by the District in planning for, acquiring, reserving, protecting, and
maintaining capacity in present or future water distribution facilities, water
resources, and conservation activities.
At the conclusion of any activity (e.g. issuance or cancellation of a
permit, conclusion of an enforcement action, or any other final action on a
matter) the General Manager may refund remaining fees or charges paid by the
applicant to the extent the remainder exceeds costs or expenses incurred by the
District for that matter. Requests for
refunds shall be in writing, include a clear reference to the water permit
number or otherwise identify the matter, and state clearly the reason a refund
has been requested. This provision
authorizes the General Manager to calculate and issue a refund to the extent that
the remainder exceeds costs or expenses incurred by the District for that
matter, but shall not confer a right upon any applicant to receive a refund. Any refund shall be determined as a
delegated exercise of the General Manager’s discretion. Any refund shall be made solely to the party
who initially paid the fee or charge.
Section
Nine: Addition of Rule 114 (Permit
Rule Noncompliance)
Monterey Peninsula Water Management District
Rule 114 shall be added, as follows:
Rule
114. PERMIT RULE NONCOMPLIANCE
Creation,
establishment, expansion, extension or amendment of a water distribution system
without a written permit from the District is a misdemeanor punishable as an
infraction as provided by Section 256 of the Monterey Peninsula Water
Management District Law, Statutes of 1981, Chapter 986. The District may seek criminal prosecution
and/or civil enforcement of its rules pursuant to this Rule.
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 _______, and second by Director ________, the foregoing ordinance is adopted upon this ___ day of _____, 2004, by the following vote:
AYES:
NAYS:
ABSENT:
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 ___ day of _____, 2004.
Witness my hand and seal of the Board of Directors this ___ day of _____, 2004.
__________________________________
David A. Berger, Secretary to the Board
U:\staff\word\boardpacket\2004\2004boardpacket\20041115\PublicHrgs\11\item11_exh11a.doc
Prepared
by DCL/FF; revised 11/2/04