ITEM:		ACTION ITEMS
16.	CONSIDER DEVELOPMENT OF AN ORDINANCE THAT WOULD AMEND THE PROCESS BY WHICH THE DISTRICT ENFORCES ITS RULES AND REGULATIONS
Meeting Date:			August 20, 2007	Budgeted:	N/A
From:			David C. Laredo,	Program/	N/A
			General Counsel	Line Item No.:
Reviewed By:			General Manager	Cost Estimate:
General Counsel Approval: Yes
Committee Recommendation: The Rules and Regulations Review Committee reviewed this item on August 7, 2007 and recommended that the Board proceed with development of the suggested ordinance.
CEQA Compliance: N/A

SUMMARY: This matter enables the Board of Directors to review and comment on conceptual options available by which the District may enforce its District Rules and Regulations and other provisions of law, including ordinances. This draft concept ordinance was prepared in accord with a Strategic objective that was approved by the Board at its May 21, 2007 meeting following its most recent planning workshop. The proposed administrative enforcement process would facilitate improved and more consistent rule compliance, reduce obstacles and time delays that result from criminal or civil enforcement, and result in more uniform application of the District’s rules and procedures.

The Rules and Regulations Committee (Directors Pendergrass and Lehman; Director Foy unavailable) reviewed this item on August 7, 2007, and endorsed the recommendation of District Counsel and General Manager that the Board initiate drafting of the ordinance described in this report. The Committee members noted the following points in their discussion:

1) District counsel’s intent that appointees to the Hearing Officer Panel be community members, not Board or staff, should be made explicit.

2) District counsel and staff would provide appropriate training to Panel appointees regarding applicable District rules and hearing procedures.

3) A proactive effort to educate the public and media should be made coincident with the Board’s potential consideration of this ordinance, in order to emphasize the District’s goal of obtaining practical and less costly tools--both for the District and violators, in connection with future enforcement of unauthorized river works, Expanded Conservation Program “water waste” incidents and other regulation violations.

4) Adoption of the ordinance, itself, would not increase the District’s operational cost; and its streamlined administrative citation process could significantly reduce our future civil litigation enforcement expense. However, potential activation of the Hearing Officer Panel to handle potential appeals, in the event the District would need to move to Conservation Stages 2 and 3, for example, would require additional contract staff resource. This cost may be partially offset by the nuisance abatement and penalty expense recovery features in the concept ordinance.

5) Presuming that the Board supports the Committee’s recommendation to initiate development of the proposed ordinance, in submitting the initial draft General Counsel was asked to identify the cities with similar administrative citation enforcement mechanisms that he researched.

RECOMMENDATION: The Board should consider the enforcement options presented (attached as Exhibit 16-A.). If acceptable, the Board should direct staff and counsel to prepare an ordinance to adopt these concepts as the Board may amend or refine, forward that draft to the Rules and Regulations Committee for review and recommendation, and return the product for first reading at the September 17, 2007 Board meeting.

BACKGROUND: The District, by ordinance, has enacted rules that require occasional enforcement. Examples of enforcement situations include but are not limited to District regulation activities involving Water Conservation (Regulation (XIV); Expanded Water Conservation and Standby Rationing (Regulation XV), and “water waste” violations in particular; the Carmel River (Carmel River Management (Regulation XII); compliance with the Operational Water Supply Budgets (Regulation X – Rules 101 and 102); and permit activities (Regulation II). At this time, violations of District Rules and Regulations and ordinances can be enforced by civil court action, or in the alternative, constitute a misdemeanor subject to the provisions of the Penal Code, Section 17(d). This is a criminal prosecution that requires initiation by the District Attorney, and MPWMD efforts to seek such action would compete for limited prosecutorial resources with felonies and other misdemeanor violations. Misdemeanors may be charged as an infraction.

State law provides that infractions may be punishable by (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; and (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. For violations declared to be a nuisance, the District may provide for the summary abatement of the nuisance, and may provide for the initiation of civil proceedings to abate the nuisance. The person committing the nuisance shall be liable for the costs incurred by the district to abate the nuisance including, but not limited to, the costs of investigation, costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorneys’ fees, and costs of monitoring compliance. Civil penalties may be assessed by a court against persons found to have committed a nuisance.

As a Strategic Objective, the Board directed staff and counsel to explore options available to the District to enforce its Rules and Regulations and other provisions of law. Criminal prosecutions or civil court enforcement entail lengthy and expensive processes, both for the District and affected individuals. Criminal enforcement is inapt for many water conservation circumstances, yet limits imposed by law require adherence.

The attached draft sets forth an Administration Citation and Administrative Order enforcement process as allowed by Government Code Section 53069.4. A separate legal opinion is presented that provides the basis for this enforcement process (attached as Exhibit 16-B.). The draft rules allow administrative enforcement of District rules before an administrative hearing officer, but also allow a de novo court review of the administrative decision if any person desires to challenge the action. The draft provides that penalty fines shall be set by the Board by resolution. The current draft does not include that fine schedule. The draft enforcement process concurrently is being reviewed by affected District staff, and their comments would be addressed as part of developing a concept ordinance to be submitted to the Rules and Regulations Review Committee and full Board in September.

Administrative Citations generally address violations that are minor or transient in nature. For example, and not by exclusion, Administrative Citations may be used to enforce water waste, water rationing, permit condition and minor or non-recurring violations of the District’s Rules and Regulations. Whenever the General Manager determines that a violation of the Rules and Regulations has occurred, the General Manager may issue an Administrative Citation to any Person responsible for the violation.

Administrative Compliance Orders are used for violations that are not suitable for the Administrative Citation process. Administrative Compliance Orders are used for serious, continuing or recurring violations, or similar matters. The General Manager may issue a written compliance order to any Person responsible for the violation. It shall set forth a description of the observed violation(s), a description of what the Responsible Party is required to do to bring the water use or property into compliance, and the date by which compliance must be achieved. The Compliance Order provides notice as to administrative penalties that shall accrue if compliance with the Order is not achieved by the date listed on the Compliance Order. The Administrative Compliance Order may be contested through an administrative hearing process. The decision may contain an order to correct any violations determined to exist, together with an order to pay administrative penalties and costs. The District’s enabling legislation (Statutes of 1977, Chapter 527, as amended (found at West’s California Water Code Appendix, Chapters 118-1 to 118-901) includes a finding that in order to serve the people of the Monterey Peninsula efficiently, enactment of this special law is necessary “for the public welfare and for the protection of the environmental quality and the health and property of the residents therein.” The District law grants the District the power to adopt and enforce regulations.

District enforcement issues have become increasingly varied and complex over the years. The draft enforcement process would modify the manner in which the District enforces its and Rules and Regulations. District resources would be conserved and better utilized by adoption of streamlined enforcement. Administrative enforcement will facilitate improved and more consistent rule compliance, reduce obstacles and time delays that result from criminal or civil enforcement, and result in more uniform application of the District’s rules and procedures.

EXHIBITS

16-A Concept Draft of Enforcement Rules

16-B Opinion of General Counsel

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