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ITEM: |
ACTION
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22. |
CONSIDER ADOPTION OF PROPOSED
NEGATIVE DECLARATION AND FIRST |
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Meeting
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June 22, 2006 |
Budgeted: |
N/A |
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From: |
David A.
Berger, |
Program/ |
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General
Manager |
Line Item No.: |
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Prepared
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Cost Estimate: |
N/A |
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General Counsel Review: Yes |
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Committee Recommendation: At its January 23, 2006 meeting, the Water Demand Committee expressed support for revised rules that would provide clear guidelines for the public and staff, and voted unanimously that the Board should review the conceptual draft ordinance prior to first reading. At its March 7, 2006 meeting, the Technical Advisory Committee (TAC) unanimously supported the proposed changes and recommended the Board consider the draft ordinance. |
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CEQA Compliance:
Negative Declaration Proposed |
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SUMMARY: Draft Ordinance No. 125 (Exhibit 22-A) updates permit and water credit-related rules to conform to adopted policies and administrative practices. This is accomplished by adding new language and definitions, by deleting obsolete and redundant text, by simplifying text to make it understandable to the public, and by focusing the subject matter of the rules. This draft ordinance also serves to fill in the gaps where practices are not supported by language in the existing rules, but where administrative memorandums, Board-approved policies not incorporated in the rules, past practice and other Board directives have supported staff’s actions and policy interpretations.
The Board reviewed the provisions of Ordinance No. 125 at the April 17 and May 15, 2006 meetings. As a result of the Board’s comments and direction, the proposed ordinance excludes changes to the District’s affordable housing definitions or Rule 24.5. The applicable rules were referred to the Technical Advisory Committee (TAC) at the Board’s request for further consideration of a uniform definition that would apply to all jurisdictions. It is anticipated that changes for affordable housing will be submitted as part of a follow-up ordinance in August 2006.
Text edits to Rule 23.5, Permits for Water from the Cal-Am Water Distribution System Dedicated for Use in Connection with the Plan to Finance the Recycled Water Project, are not included in this ordinance because staff plans to review the edits with the parties involved in the adoption of Ordinance No. 109, which most-recently amended this rule. The draft ordinance considered by the Board at the April and May 2006 meetings did not include Rule 23.5 edits. Amendments to the text of Rule 23.5 are being prepared, and it is anticipated that amendments Rule 23.5 will be submitted in the follow-up ordinance.
An Initial Study and Notice of Intent to Adopt a Negative Declaration were filed with the Monterey County Clerk on June 2, 2006 (Exhibit 22-B). The comment period runs through June 22, 2006. The Negative Declaration states that adoption of Ordinance No. 125 has no significant effect on the environment, in compliance with the California Environmental Quality Act (CEQA). The Initial Study concluded that the ordinance would have no actual or potentially significant adverse environmental impacts; in fact, the ordinance could result in beneficial effects by the reduction of existing inconsistencies in the current rules. The “Notice of Intent to Adopt a Negative Declaration for MPWMD Ordinance No. 125,” along with an Initial Study and Ordinance No. 125, was circulated to roughly 40 local agencies and libraries and other individuals on June 2, 2006, and was posted on the District’s website as well as at the County Clerk’s office. It is notable that Negative Declarations for projects of local importance require only a 20-day comment period (CEQA 21092.3). The Board will consider adoption of a Negative Declaration for MPWMD Ordinance No. 125 prior to consideration of first reading. Staff will report on any comments that have been received during the oral presentation of this item.
DISCUSSION: At the May 15, 2006 meeting, the Board asked staff to explain the policy changes associated with Draft Ordinance No. 125. Proposed policy changes were initiated or endorsed by the Water Demand Committee, and new and updated residential and non-residential water use factors are added in this ordinance and are identified below. Staff has also included two policy changes not previously identified (#10 and #18) and two language revisions that were formerly characterized as policy changes (#16 and #17). The following explanations give details about the previously-identified policy changes, and include a citation to the proposed ordinance, where appropriate:
1. This ordinance adds the landscape water budget and MAWA calculation for exterior demand on new non-residential, multi-family and mixed uses. Calculations based on the landscape plans have been the practice for many years, as it is the only method to estimate exterior water use without using the fixture unit methodology. This ordinance adds this practice to the rules. (Rule 21-B-3)
2. This ordinance implements a 24-month term for temporary water permits. This change clarifies the term from “on the date specified on the permit, and if no date is specified, shall terminate one (1) year after the temporary permit is issued.” The proposed 2-year term is reasonable based on experience. (Rule 23-A-2-c)
3. This ordinance clarifies the timeframe for applying to extend a conditional water permit. This replaces existing language with a specific time window (i.e. no earlier than 90 days and no later than 45 days prior to expiration). (Rule 23-A-3-i)
4. This ordinance adds mandatory conditions of approval for water permits to Rule 23. The conditions are currently in use but not codified in the Rules and Regulations. (Rule 23-B-1)
5. This ordinance adds dual flush ultra-low flush toilets to the Residential Fixture Unit Count Values (Rule 24, Table 1) and to the table showing ultra-low consumption appliance credits (Rule 25.5, Table 4). Dual flush ultra-low flush toilets have been proven to save at least as much water as one-gallon ULF models and offer the user the option of a half-flush or a full flush.
6. This ordinance adds a reduced landscape
factor for properties that are subject to jurisdiction-mandated and enforced
native landscape requirements. A
reduced factor was recommended for projects subject to landscaping restrictions
by the jurisdiction. These situations
occur mostly in
7. This ordinance allows changes to Table 2: Non-Residential Water Use Factors to be made by Board resolution, rather than by ordinance. This amendment allows additions and modifications to the non-residential water use factors to be made and implemented in an expedient and timely manner. (Rule 24-B)
8. This ordinance makes the following list of additions/amendments to Table 2: Non-Residential Water Use Factors (Rule 24, Table 2: Non-Residential Water Use Factors):
a. Assisted Living – This factor was updated by staff in May 2004 in response to a number of water permit applications involving assisted living units which were approved by the Board.
b. Dormitory -- Adds a footnote regarding the characterization of dormitory water use as residential in nature as directed by the Board at its February 23, 2006 meeting.
c. Self-Storage -- Revised factor for self-storage approved by the Board on October 17, 2005.
d. Hotel – Adds a factor for large bathtubs in a hotel room.
e. Luxury Hotel – Deletes all-inclusive factor. Hotels are calculated using factors for each type of use within the hotel.
f. Nail Salon – Specifies nail salons as a Group I use.
g. Dental/Medical/Veterinary clinics – Low water uses moved from Group II to Group I based on information gathered after 1991 commercial water use survey.
h. Fast Photo -- Low water use moved from Group II to Group I based on information gathered after 1991 commercial water use survey.
i. Irrigated areas not immediately adjacent to building -- This ordinance designates the area that can be considered immediately adjacent to a non-residential use. The water use factor for the various types of uses includes minimal exterior water use.
j. Public Toilets – Adds factor developed in mid-1990’s.
k. Public Urinals– Adds factor developed in mid-1990’s.
l. Waterless Urinals – Adds this new technology plumbing fixture.
m. Outdoor water use for new connections – States requirement for landscape water budget and MAWA.
9. This ordinance adds a new commercial category (Modified Non-Residential Uses) to Table 2: Non-Residential Water Use Factors, for properties that have been granted a “credit” for installing ultra-low consumption technology. This category is for properties that have been granted a water credit for installing ultra-low consumption technology and as a result have changed the capacity of the building/use to a reduced capacity. Once retrofitted, the use no longer “fits” into the other water use categories. (Rule 24, Table 2)
10. This ordinance deletes the monetary residential retrofit credit formerly shown as Rule 24-C-3 for non-mandatory toilet replacements that occur at the time a water permit is issued. This credit was implemented by Ordinance No. 71, adopted December 20, 1993, and predates the District’s rebate program. The rebate program offers up to $100 per non-ULF toilet that is retrofit voluntarily. This item was not previously identified as a policy change, although the stricken text was provided in the previous staff reports and was reviewed by the Water Demand Committee.
11. This ordinance sets a specific term for water permits. The amendment changes the current one year or as specified by the jurisdiction to two years. Reapplication can be made after two years if a building permit has not been issued: When a building permit has been issued, the permit runs concurrently. A two year term simplifies administration of the permit program. (Rule 25-A)
12. This ordinance changes authority to suspend processing an application from the Board to the General Manager. Suspension of a processing a water permit application may occur only when very specific conditions exist: The decision to revoke a water permit remains with the Board. The General Manger’s decision is appealable. (Rule 25-B and 25-C)
13. This ordinance eliminates language in Rule
25.5-A for pre- and post-retrofit water credit applications that included two
standards for credit and an 18-month application window. The two processes for credit have been
particularly confusing to the public, and the 18-month window results in an
inordinate amount of staff time working with the public. The proposed process reflects the practice that
was implemented.
14. This ordinance eliminates the ability to
obtain a Water Use Credit for landscaping removal. This has been problematic in the cases where
it has been requested: It is as
difficult for staff to determine historic landscape water use as it is to
enforce permanent removal, particularly if there are other areas where
landscaping may be added and/or changed.
The amendment allows an exception only where a water permit was issued
(and connection charges assessed) for specific exterior water use, and the
water permit identifies the type and area of landscaping. (Rule 25.5-E-1-a)
15. This ordinance changes authority from the Board to the General Manager to approve resubmission of a denied application. This change is made to facilitate the District’s responsiveness to the public. An application could be denied for something as simple as not providing sufficient water from a jurisdiction’s allocation. (Rule 26)
16. This ordinance deletes language in the former Rule 28-B-11 stating that the Board determines the water use capacity for a receiving site. The determination of water use capacity is ministerial. The language change is made to reflect the administrative process and does not change how the rule is implemented. Although this is included in this list of policy changes, this item is more a clarification of the current language. (Rule 28-B-10)
17. This ordinance clarifies that the General Manager reviews the water permit applications that utilize transferred water credits and determines if the applicant is within the monetary reimbursement limitation imposed by the Board as a condition of approval. This was incorrectly characterized at the May 2006 Board meeting as being a change in authority. Similar to the previous paragraph, this item is included in this list although it is a clarification of the existing language. (Rule 28-B-10)
In addition to discussing policy amendments, the Board requested that staff respond to the following questions by Mr. David Dilworth, a member of the public. Mr. Dilworth’s questions were asked during the public comment period. Staff’s responses are shown in italicized print.
District
staff has not issued a water permit for a golf course since this calculation
became available. There is no MAWA calculation
on file at the District office for a golf course.
The
permitted amount is the estimated water use capacity for a type of use based on
regional averages. The factors are
averages; therefore, actual consumption will be higher or lower depending on
individual demand. The factor is the
District’s best estimate of the potential water use. There is no penalty for using more or less
than permitted, unless there are specific conditions attached to a water permit
that limit the actual consumption.
A
hot tub does not require a water permit and the removal of a hot tub does not
result in a water credit. This change
was made with Resolution 2001-09 on July 16, 2001 and was added to the Rules
and Regulations by Ordinance No. 111 on January 29, 2004. Resolution 2001-09 addressed a number of
exterior water fixtures that could be added without review by the
jurisdiction. Staff identified a number
of instances where water fixtures (such as hot tubs, fountains, ponds, utility
sinks, etc.) had been added prior to District inspection to gain water
credits.
Residential
swimming pools are considered less water intensive than non-residential
pools. The residential swimming pool is
based on a fixture unit per 100 square-feet of surface area, and the
non-residential pool is calculated using 0.02 af per 100 square-feet of surface
area.
RECOMMENDATION: The Board should adopt the proposed Negative Declaration provided on the second page of Exhibit 22-B. The full text of the Negative Declaration states:
Based on the finding that adoption of
Ordinance No. 125, the 2006 Water Permit and Water Credit Clarification
Ordinance of the Monterey Peninsula Water Management District, has no significant effect on the
environment, the Monterey Peninsula Water Management District makes this
Negative Declaration regarding MPWMD Ordinance No. 125 under the
California Environmental Quality Act.
Following adoption of the Negative Declaration, staff recommends the Board approve the first reading of Ordinance No. 125. If first reading is approved, the ordinance will be presented to the Board for second reading and adoption on July 17, 2006. As proposed, the ordinance would become effective on October 1, 2006, allowing staff sufficient time to incorporate the changes into the Rules and Regulations before implementation.
BACKGROUND:
Ordinance No. 125 facilitates completion of a Policies and Procedures Manual. Before the manual can be completed, a significant number of policy interpretations, procedures, and practices must be incorporated into the rules and regulations to allow consistency in application. In addition, stand-alone policies approved by the Board have been added. There are two staff members who have institutional knowledge of these policy interpretations, procedures, and practices. This institutional knowledge is captured in the revised rules. Clarification and inclusion of these Board policies, policy interpretations, procedures, and practices in the rules will also facilitate the accuracy of the Water Demand Division database project.
Draft Ordinance No. 125 was developed after careful review of existing rules and staff-suggested changes by the Water Demand Committee. During committee meetings held on June 14, August 2, September 1, October 11, December 8, 2005 and January 24, 2006, Water Demand Committee members provided comments and feedback to staff. The Water Demand Committee and staff’s goal while drafting the ordinance was to reorganize and rewrite the rules in ways that make them easier for permit applicants to understand. With this in mind, Rule 20 was revamped to address under what circumstances a water permit is required. Rule 21 deals exclusively with the application, and Rule 23 outlines the process for reviewing an application and issuing a water permit. Rule 24 explains how water use capacity is calculated and how to determine the appropriate connection charges. Rule 25 has been clarified to state a definitive water permit expiration date. Rule 25.5 has been revised to simplify the Water Use Credit process by eliminating two application timelines and now includes the existing administrative process for documenting the credit. This rule also speaks to other administrative practices and policies related to water credits. Rule 26 addresses the reapplication process, and Rule 28 has been edited to reduce redundancy. Rule 30 has been modified to delete obsolete language regarding water credits. Finally, definitions have been added to Rule 11 associated with the water permit and water credit process and other definitions have been modified to conform to District rules, policies and practices.
The draft ordinance was reviewed by the TAC on February 7 and March 7, 2006. The TAC unanimously endorsed the ordinance.
EXHIBITS
22-A Draft Ordinance No. 125 - Clarifying Rules Related to Water Permits and Water Credits
22-B Initial Study and Proposed Negative Declaration
U:\staff\word\boardpacket\2006\2006boardpackets\20060622\PubHrgs\22\item22.doc