MPWMD BOARD MEETING--JUNE 22, 2006--ITEM 21--CONSIDER ADOPTION OF NEGATIVE DECLARATION AND APPROVE FIRST READING OF ORDINANCE NO. 124, WATER DISTRIBUTION SYSTEM REGULATION AMENDMENT ORDINANCE (RULE 20-C)

ITEM:		PUBLIC HEARINGS

21.	CONSIDER ADOPTION OF NEGATIVE DECLARATION AND APPROVE FIRST READING OF ORDINANCE NO. 124, water distribution system REGULATION AMENDMENT ORDINANCE (RULE 20-C)

Meeting Date:			June 22, 2006	Budgeted:	N/A

From:			David A. Berger,	Program/	N/A
			General Manager	Line Item No.:

Prepared by:			Henrietta Stern	Cost Estimate:	N/A

General Counsel Review: Yes; reviewed Ordinance
CEQA Review: Initial Study and Proposed Negative Declaration circulated 20 days
Committee Review: Board approved concept ordinance on February 23, 2006. Certain additional changes subsequently identified by staff were reviewed by Rules and Regulations Review Committee on June 12, 2006, which voted unanimously to approve the proposed ordinance.

SUMMARY: Current MPWMD Rules & Regulations require a Water Distribution System (WDS) permit for any new or amended WDS within the District, unless specific criteria for an exemption are met. The Board will consider two actions related to proposed Ordinance No. 124 (Exhibit 21-A) that amends MPWMD Rule 20-C, Exemptions, as well as related Definitions found in Rule 11, as follows:

Consider adopting the Initial Study and Proposed Negative Declaration for Ordinance No. 124 (Exhibit 21-B) that was circulated from April 17 through May 8, 2006 in compliance with the California Environmental Quality Act (CEQA).

Consider approving the first reading version of Ordinance No. 124 (Version 6 dated June 12, 2006), known as the “Water Distribution System Regulation Amendment Ordinance (Rule 20-C).”

Ordinance No. 124 creates a new exemption for areas of the Former Fort Ord within MPWMD boundaries that are not served by water sources from the Seaside Groundwater Basin or the Carmel River Basin, including the Carmel Valley Alluvial Aquifer. The ordinance was initially proposed to eliminate the apparent regulatory conflict that exists between MPWMD Rule 20 and certain provisions of a 1992 Amended Memorandum of Agreement (Amended MOA) signed in May 1993 between MPWMD, Monterey County Water Resources Agency (MCWRA), and the Pajaro Valley Water Management Agency (PVWMA). The proposed Ordinance No. 124 also removes a current exemption for new wells that are constructed but not yet activated due to confusion and enforcement issues associated with the current language. Related changes include revising Rule 11, Definitions, to better clarify the above changes to Rule 20-C.

The Board approved a conceptual version of this ordinance (Concept Ordinance AA) at its February 23, 2006 meeting. Since then, revisions were made to the concept ordinance prior to circulation of the Initial Study and Proposed Negative Declaration in mid-April 2006. Additional refinements to Rule 11, Definitions, were made in early May 2006 to enhance clarity, and do not affect the conclusions of the Initial Study. Please refer to the “Discussion” section below for a review of the changes from the February 23, 2006 concept ordinance.

RECOMMENDATIONS: Staff recommends that the Board take the following actions:

Adopt the Initial Study and proposed Negative Declaration for Ordinance No. 124 as shown in Exhibit 21-B.

Approve the first reading of Ordinance No. 124 (Version 6 dated June 12, 2006) as shown in Exhibit 21-A.

The Board Rules and Regulations Review Committee considered staff requested changes to WDS definitions described below at its June 12, 2006 meeting. The Committee voted 3 to 0 to recommend approval, including a further clarification to the definition of a Monitor Well.

District Counsel has reviewed the changes to Rule 11, Definitions, in Versions 5 and 6 that were added after Version 4 was circulated along with the Initial Study. Counsel concurs with staff that these changes were made solely for clarity and do not alter the conclusions of the Initial Study. Version 6 does not need to be recirculated for environmental review.

DISCUSSION: Concept Ordinance AA, approved by the Board on February 23, 2006, focused solely on the need to reconcile the MPWMD Rules & Regulations with the MOA and Addendum signed in May 1993 between MPWMD, MCWRA and PVWMA. This change is shown as the bold italic text as the new Exemption #11 (Rule 20-C-11) shown on page 4 of Exhibit 21-A. Specifically, the new exemption reads:

11. For a Water Distribution System that serves water to Parcels within the Former Fort Ord Lands within MPWMD, but that does not derive water from the Seaside Groundwater Basin or the Carmel River Basin, including the Carmel Valley Alluvial Aquifer.

The practical ramification of this change is that water system expansions for new construction in the Former Fort Ord area served by the Marina Coast Water District (MCWD) from Salinas Groundwater Basin water sources would not be regulated by MPWMD. It is noted that the ordinance text refers to the Carmel River Basin, including the Carmel Valley Alluvial Aquifer, in addition to the Seaside Groundwater Basin. Though highly unlikely to be used as sources of water for Former Fort Ord, the Carmel Valley sources of supply were added for completeness and to ensure the District’s ability to regulate use of water from the Carmel River watershed. For background information on the concept ordinance, please refer to the February 23, 2006 meeting package (Item 18) or the District website at:

http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2006/20060223/18/item18.htm

Concept Ordinance AA became Ordinance No. 124 Version 4 (April 14, 2004), which was circulated for CEQA review. The only change from the Board-approved concept ordinance is the deletion of old Exemption #11 shown on page 4 of Exhibit 21-A. Specifically, the old exemption that was deleted reads:

~~11. To only construct (but not use) the system components. The District permit enables use of a water well or any other water distribution system component.~~

This change would close an enforcement loophole that would allow a well to escape MPWMD regulatory review under certain circumstances. This loophole was discovered after the February 2006 Board meeting as Water Resources Division staff began a detailed review of WDS enforcement issues at the direction of the General Manager. Also a new Finding was added (see Finding #5 on page 2 of Exhibit 21-A) to provide the rationale for deleting the exemption.

Ordinance No. 124, Version 5 (dated June 6, 2006) was circulated to the Rules and Regulations Review Committee for its review at its June 12, 2006 meeting. It differed from Version 4 in that (1) new definitions related to WDS exemptions have been added to amend Rule 11 (see below); and (2) a new Finding #6 was added to reflect the need for clarified definitions. Prior to the final version for second reading and adoption, staff plans to capitalize words that are defined in Rule 11 to indicate that a definition for the word exists.

Ordinance No. 124, Version 6 is proposed for first reading approval by the Board. It is the same as Version 5, except for a minor change in the text of the new definition for a monitor well.

Version 6 includes one new definition and two revised definitions as follows:

Ø Monitor Well (new definition)

Ø Replace a Well (revised definition)

Ø Completion of a Well (revised definition)

The new definition of “Monitor Well” is shown below in bold italic. It is needed because the definition of “Replace a Well” refers to a Monitor Well, which is currently undefined:

MONITOR WELL – shall mean a water well to monitor groundwater level and/or groundwater quality. The owners or operators of any formerly active well that is to be converted to a Monitor Well shall properly register the well by filing forms provided by the District, including an amended Water Well Registration form. Water shall not be produced from a Monitor Well without written permission from the District. Exceptions to this restriction shall be allowed for production to collect water quality samples in accordance with standard sample collection protocol. Short-term emergency use from a Monitor Well may be allowed, but only with written consent from the District.

For “Replace a Well”, the modification (an added sentence) is shown in bold italic below, and explains what “proper registration” means:

REPLACE A WELL – An active or inactive well is considered to be replaced when a new well is completed in a separate borehole, or when the same borehole is modified, such as by deepening. A replacement well must be located on the same legal parcel as the original well, and may not be located in the riparian zone, as defined by District Rule 11, unless a river work permit has been applied for and issued by the District. The well that is being replaced must be abandoned and destroyed in conformance with local and state well regulations unless it serves as a properly constructed, maintained and registered Monitor Well. Proper registration means the owner of the well that is being replaced must file an amended Water Well Registration form if the old well is converted to a Monitor Well, and must file a completed form provided by the District indicating that no water will be produced from the Monitor Well without written permission from the District.

The definition of “Completion of a Well” relates to District Rule 20-A that requires either a written permit or exemption for all new wells. The definition needed refinement because it conflicted with other MPWMD Rules and did not make sense upon close reading in the context of other rules. Deleted text is shown as ~~strikeout~~ and new text is shown in bold italic below:

COMPLETION OF A WELL – “Completion of a Well” shall means the completion of all physical tasks necessary, so that the well is producing or is capable of producing ground water, including an operable pumping facility. This shall include acquisition of a Monterey County Health Department Water Well Construction Permit, installation of any water meter(s) required by MPWMD, and MPWMD inspection and approval of the meter(s). a water well pursuant to a Monterey County Health Department Division of Environmental Health Water Well Construction Permit, and the date of completion shall correspond to the “Date Work Finished” as shown on the State of California Division of Water Resources Well Completion Report.

CEQA REVIEW: The Initial Study/Proposed Negative Declaration (Exhibit 21-B) was mailed on April 14, 2006 to 42 responsible and interested agencies and groups, including local libraries. The comment period was set from April 17 through May 8, 2006 in compliance with CEQA; a 20-day review period is allowed for projects of local interest. A notice was also posted at the District office. The original hearing date was May 15, 2006. A notice was sent to all recipients that the hearing date was changed to June 22, 2006. A notice of this public hearing on June 22, 2006 was also placed in The Monterey County Herald. As of May 8, 2006, no comments were received. One comment letter from AMBAG was received on May 15, 2006 stating that the AMBAG Board had no comment.

EXHIBITS

21-A Ordinance No. 124 (Version 6 dated June 12, 2006)

21-B Initial Study and Proposed Negative Declaration for Ordinance No. 124; package dated April 14, 2006.

U:\staff\word\boardpacket\2006\2006boardpackets\20060622\PubHrgs\21\item21.doc

June 22, 2006

Budgeted:

N/A

General Counsel Review: Yes; reviewed Ordinance

CEQA Review: Initial Study and Proposed Negative Declaration circulated 20 days

Committee Review: Board approved concept ordinance on February 23, 2006. Certain additional changes subsequently identified by staff were reviewed by Rules and Regulations Review Committee on June 12, 2006, which voted unanimously to approve the proposed ordinance.