EXHIBIT 15-B
SUMMARY OF IMPLEMENTATION GUIDELINES FOR ORDINANCE No. 118
Prepared by Henrietta Stern, Project Manager, December 1, 2004
BACKGROUND:
MPWMD Ordinance No. 118 was adopted by the Board of Directors on December 13, 2004, and becomes effective on January 12, 2004. Ordinance No. 118 refines the water distribution system (WDS) permit process, set fees and authorize enforcement of specific WDS rules and regulations. Ordinance No. 118 is considered to be a “housecleaning” ordinance that helps clarify the existing WDS permit process, and describes what is expected of applicants and staff. At its December 13, 2004 meeting, the Board directed staff to prepare Implementation Guidelines for Ordinance No. 118 by the January 12, 2005 effective date. This outline provides an overview of what the Implementation Guidelines will include.
IMPLEMENTATION
GUIDELINE ELEMENTS FOR ORDINANCE No. 118:
The following paragraphs include a summary of each section of Ordinance No. 118, and how Implementation Guidelines will be developed to correspond to that section.
Ordinance No. 118 adds a new Rule 20.4, which describes the consequences of not obtaining a WDS permit, if one is required. It describes a series of actions, including notification to the system owner/operator with adequate time to file a permit application. If compliance does not occur, subsequent actions include recording a Notice of Non-Compliance, authorization to file a lawsuit and impose liens on the property, or seek prosecution as a misdemeanor. Implementation Guideline elements will include:
Ø Notification (Rule 20.4-A): Staff with assistance by General Counsel will develop a template for a notification form or letter, including (a) regulation citation, (b) why it is believed an unpermitted system is being operated, (c) a timeline for compliance (60 days); (d) an opportunity for the owner to provide evidence that the system is lawful; and (e) mailing list of affected properties. Staff should develop a tracking form or other means to document the procedural steps in Rule 20.4.
Ø Record Notice of Non-Compliance and Notice of Compliance (Rule 20.4-B): General Counsel will develop a proper Notice of Non-Compliance and Notice of Compliance for use by staff, and advise staff on how and where the Notices should be properly filed.
Ø Authorize Filing Lawsuit and Imposing Liens (Rule 20.4-C): General Counsel will prepare the appropriate legal documents and/or templates of documents for use by staff, and ensure that the documents are properly filed.
Ø Additional Authority (Rule 20.4-D): On a case-by-case basis, General Counsel will advise whether criminal prosecution and/or civil enforcement of District rules is warranted, and the proper procedures to effect compliance.
Section Four, Refine Rule 21, Applications
Ordinance No. 118 adds refinements to the application process that include: (a) an application to create or amend a system must be signed by the system owner, but the owner’s signature is not required for a water connection permit for an individual structure; (b) an evaluation of hydrogeologic information (well pumping test data) shall be prepared by a qualified individual or firm as part of the application; and (c) annexations to the service area or increases to the production or connection limit are processed as amendments to a WDS. Implementation Guideline elements will include:
Ø Develop New Application Form (Rule 21-A): Staff will develop a new revised application form that incorporates changes referenced in Ordinance No. 118 as well as Ordinance No. YY. In the period between approval of Ordinance No. 118 and Ordinance No. YY, an Interim Application Form with either replacement pages or supplemental pages is suggested. A summary of the key components of the application will be developed as a checklist for applicants. At a minimum, staff will amend the application form and associated worksheets to advise the applicant of the required signatures, the need to perform the hydrogeologic investigation, and clarify the difference between an amendment to a WDS and an expansion/extension permit (see also Rule 22-E). Staff will develop a form for applicants to request identification of wells within 1,000 feet of the subject well located in consolidated bedrock. Well locations are needed for the hydrogeologic impact analysis.
Ø Complete Technical Procedures for Consultants (Rule 21-A-9): Staff is nearing completion of a Technical Procedures Manual for use by consultants. The manual specifies proper techniques to perform pumping tests, assess well capacity, and assess impact to nearby receptors such as rivers, streams and other wells.
Ø
Update List of Qualified Consultants (Rule
21-A-9): Staff will update its
list of qualified consultants based partly on the current
Rule 22-E refinements emphasize the need to comply with the system capacity (annual production) limit as well as the expansion capacity (connection limit). New Rules 22-F and 22-G address cancellation of applications and unissued permits, respectively. Implementation Guideline elements will include:
Ø Highlight Need to Comply with System Limits (Rule 22-E): As part of an overall information handout, staff will emphasize the importance of complying with the system limits (water production and connections), and that an amended permit is needed if these limits are exceeded. See also Rules 40-D and 40-E below.
Ø Set Timelines for Information Requests for Incomplete Applications (Rule 22-F): New Rule 22-F states that an application can be cancelled without prejudice for failure to respond to a Notice of Incomplete Application letter within the timeframe stated in the letter. Staff will ensure that letters advise the applicant of a minimum of 60 days to respond; this response time may be longer if staff believes a longer time is needed, on a case-by-case basis. Staff will advise the applicant that one extension request will be considered at the discretion of the General Manager.
Ø Set Timelines for Near-Term Action on Approved Permits (Rule 22-G): New Rule 22-G states that the WDS permit can be cancelled without prejudice if the applicant fails to perform required follow-up action within 60-days (e.g., action specified in Rules 22-D-1-g, l and m). Examples of required action include: payment of fees (if required), sign required indemnity agreement, and sign permit condition acceptance form. Staff will ensure that approval letters advise the applicant of need for timely follow-up action.
Ø Clarify Fee Payment and Refund Procedures for Cancellations: Staff will develop text to explain that a partial refund of the application fee will be provided (fee minus costs to process fee to date of cancellation) for a cancelled application. The new text will also explain that all payment and refund procedures described for Rule 60 (see below) apply if a permit is cancelled due to lack of action.
Section Six amends and reorganizes Rule 40 as it relates to (a) procedures to track whether a system is in compliance with its system limits, including the “pro rata expansion capacity” (PREC); and (b) action to take if a system exceeds its system limits and/or PREC. For reference, system limits include two components: (1) the “system capacity” is commonly called the “production limit” and is measured in acre-feet per year (AFY); and (2) the “expansion capacity limit” is commonly called the “connection limit” and is measured in number of water connections. Pro rata expansion capacity is a measure of the balance between the system production and number of connections served to date, and is intended to be an “early warning” to alert larger WDS that may potentially exceed their production limit before all their connections have been served with water (Rule 40-C). Rule 40-D expands the public hearing process to include compliance with system limits and PREC. Implementation Guideline elements will include:
Ø Explain Concept of “Pro Rata Expansion Capacity” (Rule 40): Staff will develop materials that explain how and why measurement of “pro rata expansion capacity” is needed, and will emphasize that PREC applies only to systems with at least 10 connections, of which at least 50% are active (i.e., developed with water service). Pro rata expansion capacity is a measure of the balance between the system production and number of connections served. For a simple hypothetical system with a production limit of 100 AFY for 100 connections, one would expect 1 AFY used for each connection. If the actual water use is 80 AF in a year, one would expect that about 80 connections should be active that same year. If only 60 connections are using 80% of the supply, then an imbalance exists that should be addressed.
Ø Develop Ways to Identify Balanced PREC for Complex, Mixed Use Settings (Rule 40-B and C): It is acknowledged that a properly balanced PREC is more challenging to quantify for complex, multiple-use situations, and the simple one-for-one ratio described above are not adequate. Working with affected system owners, staff will develop procedures and formulas to determine when a system is considered to be in and out of balance, on a case-by-case basis. Note that Rule 40-C-2 requires systems with multiple types of uses to provide a detailed breakdown of water use by type. This information will be used to develop PREC for subcomponents of the system.
Ø Develop List of Systems Subject to PREC Measurement (Rule 40-B): Staff will identify which systems exist with at least 10 connections that need to be monitored for a balanced PREC. Assessment should be done as part of the annual Well Reporting Update.
Ø Develop Tracking/Assessment Procedures for Systems with Imbalanced PREC (Rule 40-C). Staff will develop tracking forms and inter-division communications regarding systems that are out-of-balance. Monthly rather than annual monitoring is needed, as well as reporting of rolling 12-month performance. Thus effective communications and reporting forms for system owners are also needed. Accurate tracking is especially important because Rule 40-C-4 states that applications for new construction and remodels will not be accepted if a system (or components of a system) PREC is determined to be out of balance for 12 consecutive months.
Ø Identify Criteria for “Credible Expert” and Provide Guidelines Used to Assess Whether Long-Term Compliance with System Limits is Feasible (Rule 40-C-5 and 40-D): Staff will prepare criteria used to define a “credible expert” who can judge the ability of a system to reduce water use to achieved a balanced PREC. Staff will develop general guidelines to be used by the expert to assess compliance feasibility. Given the many situations that could potentially exist, the guidelines will be more general in nature to allow the expert to apply his/her knowledge and expertise. At a minimum, the expert will be required to provide historical water use and other factual data about the system in question to support conclusions. The expert may use similar examples from other areas regarding action that could be taken to reduce water use, and the expected savings.
Ø Educate System Owners about Payment of Fees to Implement Rule 40 (Rule 40-C-6): As part of the education process, affected system owners will be advised the administrative fees will be charged for actual costs (staff, consultant, legal and direct costs) associated with monitoring, reporting, evaluation and other elements of Rule 40 implementation.
Ø Describe Public Hearing and Notification for Non-Complying Systems: Rule 40-D requires a public hearing to assess if any system has exceeded its system limits as well as if the expert does not believe the system can come back into balance. Standard MPWMD public hearing practices, including public notice procedures, would apply. Staff will develop a flier to advise all systems of their status based on the annual Well Reporting Update performed by the Water Resources Division.
Ordinance No. 118 will cause amendments to Rule 11 to add the definition of the terms “pro rata expansion capacity” and “system limits.” Implementation Guideline elements will include:
Ø Highlight Key Definitions and Acronyms for WDS (Rule 11): As part of WDS outreach materials, staff will highlight key definitions and acronyms associated with WDS regulations, and will direct readers to the District website, which will include the MPWMD Rules & Regulations.
Section Eight amends Rule 60, Permit Fees, to be more precise about services covered by District permit fees. It adds a new Rule 60-K regarding legal fees associated with challenges to an MPWMD permit. A new Rule 60-L describes fees associated with permit and legal enforcement activities by staff and counsel, respectively. A new Rule 60-M describes the collection process for unpaid fees. A new Rule 60-N clarifies procedures relating to refunds of application fees. These four new rules were added at the advise of counsel to ensure the public is properly notified of potential fees. Implementation Guideline elements will include:
Ø Highlight Requirement to Pay Fees (Rule 60): As part of WDS outreach materials, staff will highlight the fact that fees are associated with many components of the WDS permit process, including efforts spent on compliance before and after permit issuance. The materials will explain the types of charges that may be imposed, describe the potential consequences of non-compliance.
Ø Describe Available Refunds and Associated Process (Rule 60-N): As part of WDS outreach materials, staff will explain that refunds may be in order under certain circumstances. The materials will explain how to obtain a refund. Currently, staff advises the applicant if a refund is in order. Staff will prepare a “Request for Refund” form to ensure compliance with Rule 60-N.
Section Nine creates a new Rule 114 that formally notifies the public that creation, establishment, expansion, extension or amendment of a WDS without a written permit from the District is a misdemeanor. Implementation Guideline elements will include:
Ø Highlight Requirement to Obtain WDS Permit (Rule 114): As part of general outreach materials, staff will highlight the importance of compliance with WDS regulations, and the potential consequences on non-compliance.
SUMMARY:
As described above, a variety of materials and procedures will be developed by staff and Counsel to address the elements of Ordinance No. 118. The intent is for staff and the public to have a clear understanding of the WDS permit process to avoid confusion, apply regulations fairly and equally, and foster excellent customer service, while achieving full compliance with MPWMD Rules & Regulations.
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