ITEM:

PUBLIC HEARINGS   

 

18.

CONSIDER APPROVAL OF APPLICATION #20090709RAN TO AMEND THE RANCHO DEL ROBLEDO WATER DISTRIBUTION SYSTEM TO SERVE ASSESSOR’S PARCEL NUMBERS 197-151-003 THROUGH -011, -016 AND -017

 

Meeting Date:
September 21, 2009

Budgeted:

N/A

 

From:

Darby Fuerst

Program/

N/A

 

General Manager

Line Item No.:     N/A

 

Prepared By:

Henrietta Stern

Cost Estimate:

N/A

 

General Counsel Review:  Counsel has provided guidance and reviewed this item.    

Committee Recommendation:  N/A

CEQA Compliance:  MPWMD, as Lead Agency, prepared a Mitigated Negative Declaration dated August 5, 2009, which was filed with the State Clearinghouse and the County Clerk for 30-day review beginning August 7, 2009. 

 

SUMMARY:  The Board will consider Application #20090709RAN (Exhibit 18-A) to amend the Rancho del Robledo Water Distribution System (RDRWDS), a Multi-Parcel Connection System formally recognized by MPWMD in a letter dated January 22, 2001 as a pre-existing system with nearly a 100-year history.  The January 2001 letter from MPWMD set a limit of nine connections but no production limit.  The RDRWDS presently serves the irrigation needs for up to nine parcels, including domestic (drinking water) service to two of the nine parcels within the 13-parcel Rancho del Robledo Subdivision (recorded by Monterey County in 1973).  The current service area comprises roughly 27 acres, as shown in Exhibit 18-B.  Since 1939, the system has derived its supply from a well on parcel APN 197-151-017.  The well lot and parcels served all overlie the Carmel Valley Alluvial Aquifer (CVAA) in the upper reach known as Aquifer Subunit #1 (AQ1).  Five of the homes in the Subdivision receive water from California American Water (CAW), which is not affected by this action.

 

The July 9, 2009 original Application requested annexation of one Subdivision parcel into the RDRWDS and potable water service to two potential new Single-Family Dwellings as follows:

 

APN 197-151-004 – currently in system for irrigation; add domestic supply for new home;

APN 197-151-016 – annex into system for irrigation and domestic supply for new home.

 

As explained in more detail below, questions about water rights for parcel 197-151-004 posed on September 8, 2009 by the National Marine Fisheries Services (NMFS), and limited time/resources on the part of the applicant, resulted in a written request (Exhibit 18-C) by the applicant on September 9, 2009 to amend the application to delete the request for domestic service to parcel 197-151-004.  Thus, the action before the Board at this time is to consider annexation and domestic water service to parcel 197-151-016.  District Counsel and the General Manager have advised the applicant that parcel 197-151-004 may be considered at a future time when additional water rights documentation and analysis is provided to the District for review. 

 

The Findings, Conditions and related Permit documents referenced below will focus only on annexation of parcel 197-151-016.

 

If the revised application is approved, the well on parcel APN 197-151-017 will serve up to 10 connections, including parcel 197-151-016.  The estimated water use of 0.5 acre-foot per year (AFY) for the potential new home has been offset by extensive system infrastructure repairs in Spring 2009, resulting in significantly reduced conveyance losses due to leaks.  Most importantly, permit conditions to be imposed on the amended RDRWDS include an enforceable production limit of 14.07 AFY (reduced from the 14.57 AFY shown in the environmental review documents), which is less than the 14.74 AFY metered average of the past five years.  Please refer to the “Discussion” section below for more detailed information.

 

In compliance with the California Environmental Quality Act (CEQA), the District circulated an Initial Study/Notice of Intent to Adopt a Mitigated Negative Declaration (IS/MND) for the original application to amend the RDRWDS for 30-day review from August 7 through September 8, 2009. It is posted on the District website at:

http://www.mpwmd.dst.ca.us/ceqa/RanchoDelRobledo/notice.pdf.  Staff and Counsel believe the CEQA documentation is still valid as the revised Application would result in 0.5 AFY less permitted water production than that described in the IS/MND. 

 

As of the September 8, 2009 deadline, two comment letters were received from: (1) NMFS, and (2) California Regional Water Quality Control Board, Central Coast Region (RWQCB).  The “Discussion” section below provides more information on the specific comments by the agencies and District staff responses as reviewed by General Counsel. 

 

Pursuant to MPWMD Rule 22-A, Board approval for this Level 4 Permit is needed because the RDRWDS it is located in the CVAA and entails more than 3 parcels.   District policy on alluvial applications is provided on the District website at:

http://www.mpwmd.dst.ca.us/pae/wds/WDSPermits/WDSMemo3.pdf. Notably, the policy states that future total use of well water and CAW supply combined shall be less than or equal to past combined use (average of 10 years if metered data are available) for a Mitigated Negative Declaration to be considered.   

 

RECOMMENDATIONS:  District staff recommends that the Board take the following actions:

 

1.      Adopt the MPWMD Findings of Approval for Application #20090709RAN (as revised) shown as Exhibit 18-D with specific reference to Findings #21 through 23, which address District compliance with CEQA as a Lead Agency.  This includes adopting the Mitigated Negative Declaration for the approval of the RDRWDS application, with the correction that the permitted production limit would be 14.07 AFY, not 14.57 AFY.

 

  1. Approve Application #20090709RAN; authorize issuance of MPWMD Permit #M09-24-L4 with the 28 Conditions of Approval specified in Exhibit 18-E, and direct staff to file a Notice of Determination with the Monterey County Clerk.  The Conditions of Approval include required conditions as specified in MPWMD Rule 22-D as well as three special conditions, described more fully in the “Discussion” section below.  The amended RDRWDS will be held to a production limit of 14.07 AFY as compared to the current situation, where there is no limit.  The number of allowed connections would increase from nine to ten.  Special Condition #26 requires continued diligence and reporting regarding leak detection and repair, including installation of meters to each parcel served for better water use tracking.  Special Condition #27 requires that the combined RDRWDS and CAW water use be less than past use and sets a numerical limit.  Special Condition #28 urges the applicant to pursue rainwater harvesting (cisterns) to the degree practicable to help minimize well pumping in the dry season.

 

BACKGROUND:  The key documents associated with the RDRWDS application are noted below.  All cited documents are available for review at the District office; some are attached herein as exhibits.  They include:

 

Ø      July 9, 2009 Permit Application to Amend Existing RDRWDS and several supporting attachments, including water use history and detailed description (text and photographs) of 2009 water system repairs, along with an analysis of water savings;

Ø      Title 22 water quality analysis dated June 1, 2009;

Ø      Chain of Title commencing in 1880 and water rights review dated March 6, 2009;

Ø      Letters from District Counsel and staff dated April 14 and April 22, respectively,  concurring with adequacy of riparian water rights documentation for the purpose of the WDS Application;

Ø      September 9, 2009 letter from applicant requesting removal of parcel 197-151-004 as part of the Application for consideration on September 21, 2009.

 

Existing Setting:  The RDRWDS is located on the south side of Carmel River in an area of rural low-density residential development, though a visitor-serving facility (Stonepine Inn) is adjacent to the project immediately upstream.  As noted above, the project area is in the AQ1 river reach, which runs year-round in all types of water years.  Depending on the water year, the AQ1 dry season flow is a combination of natural inflow from the upper Carmel River watershed, tributaries upstream from the project site, and releases of stored water from Los Padres Reservoir.  The existing well on parcel APN 197-151-017 has been in continuous use since approximately 1939.  The current pump and motor were installed in 2004 with a current pumping capacity of 43 gallons per minute (gpm).  Prior to year 2004, the well reportedly had a pumping capacity of 75 gpm.  Five homes within the Subdivision (parcels 197-151-005 through -009) receive CAW water for domestic supply and RDRWDS well water for their irrigation needs.  One parcel (197-151-011) has a CAW “emergency” meter and backflow protection device.  This active meter has enabled CAW service on an occasional basis when the RDRWDS experienced a temporary outage.  The parcel to be annexed (197-151-016) has an inactive CAW “standby” meter which does not have (and will not have) access to CAW service due to regulatory restrictions on the CAW system. 

 

Following is a summary of the RDRWDS parcels and their size; their location is shown on Exhibit 18-B:

 

197-151-003 =     7.35 ac.                        197-151-004 =            1.02 ac.

197-151-005 =     1.25 ac.                        197-151-006 =            1.23 ac.

197-151-007 =     1.13 ac.                        197-151-008 =            1.07 ac.

197-151-009 =     1.00 ac.                        197-151-010 =            1.39 ac.

197-151-011 =     8.87 ac.                        197-151-017 =            0.78 ac. (well lot) 

197-151-016 =     2.00 ac.                        (proposed to be annexed for domestic service)

 

Proposed Use:  The applicant proposes to amend the existing RDRWDS in order to provide domestic water service to one existing legal lot of record (APN 197-151-016) within the Subdivision that he owns, but is not currently served by the RDRWDS.   This parcel is immediately adjacent to the well lot, and is adjacent to the Carmel River.  The following chart summarizes the current status of each parcel and proposed changes, indicated as “New”:

RDRWDS Parcel Summary

APN

WDS Irrigation

WDS Domestic

CAW Domestic

197-151-003

x

 

 

197-151-004

x

 

 

197-151-005

x

 

x

197-151-006

x

 

x

197-151-007

x

 

x

197-151-008

x

 

x

197-151-009

x

 

x

197-151-010

x

x

 

197-151-011

x

x

Active emergency meter

197-151-016

New

New

Inactive “Standby” meter

197-151-017

Well lot

n/a

n/a

 

Water Rights:  The alluvial location of the RDRWDS is within the jurisdiction of the State Water Resources Control Board (SWRCB), but riparian right holders do not need a SWRCB appropriative permit.  The applicant demonstrated his riparian water rights to the satisfaction of MPWMD Counsel for the purposes of the WDS Application, though the legal review noted, “No documentation was provided regarding the subdivision and whether the water rights were adequately preserved for use on all parcels.”  District standard Permit Condition #24 states that the MPWMD permit “does not grant or confirm water rights” as that is the function and authority of the SWRCB.

 

DISCUSSION:  The staff recommendations are based on the following information: 

 

Well Adequacy as Sustainable Supply:  A new well capacity test was not required by the District for this application because of the long-standing record of supply, the alluvial location of the well in river reach AQ1, and the fact that the requested production limit is lower than the amount currently used (5-year average).    

 

Water Use Estimates and Limits:  The following chart summarizes how the 14.07 AFY proposed production limit was estimated:

 

Past five-year metered water use:                                  14.74 AFY

Savings from recent system repairs:                               - 2.42  

Add water for home on parcels 197-151-016:              + 0.50 

Add pasture irrigation on parcel 197-151-003:              + 1.25 

Requested future production limit:                           14.07 AFY

 

The 5-year metered average RDRWDS production of 14.74 AFY is expected to be reduced by 2.42 AFY due to repairs made in 2009 and related water conservation.  The IS/MND, attached as Exhibit 18-F, provides detailed information on how the 2.42 AFY water savings due to system repairs in April-May 2009 and related water use information was tabulated.  The 2.42 AFY savings will more than offset the estimated increase in water use (0.5 AFY) related to the proposed new home.  It is noted that five years of metered data were used (rather than the preferred 10 years) because either no metered data were available before Water Year 2004, or the data were unreliable due to a malfunctioning meter, as explained in a December 2, 2008 letter from MPWMD Associate Hydrologist, Tom Lindberg, to the applicant.  The factor of 0.5 AFY for the proposed home is the WDS Permit default estimate used for a Single-Family Dwelling on a large parcel in areas such as Carmel Valley, based on actual water use data collected over the years by CAW.  The home is conceptual only, so a more detailed fixture unit count is not available.  The summary below also accounts for the possibility that modest irrigation on the 7.35-acre parcel 197-151-003 could be re-activated if needed for pasture for horses or other stock.  There are currently two horses grazing on the parcel, but no irrigated pasture, according to the applicant.  Using the District factors of 2.1 AFY/acre for irrigated pasture, and 0.05 AFY per horse (or cattle), the allotment of 1.25 AFY represents two animals grazing on approximately one-half acre of pasture, or irrigation of roughly 7% of the acreage for parcel 197-151-003.

 

Notably, the amended RDRWDS system, if approved, shall not exceed the enforceable production limit of 14.07 AFY, which encompasses existing and future irrigation and domestic service on all parcels served.  The District sets a production limit for a WDS system as a whole, not for individual uses on each parcel.  The system owner must manage his/her system to stay within the production limit.  Also, future RDRWDS production shall be less than or equal to past production in an alluvial setting.  Current District rules and policy do not specify how much lower such production should be.  In this case, the production limit is 95% of past use.

 

CAW water use on five Subdivision parcels is independent of MPWMD’s action on the RDRWDS, and is expected to continue the documented trend toward water savings described in Exhibit 18-F.  It is notable that all CAW water customers have more incentive to save water due to recent and anticipated rate increases approved by the California Public Utilities Commission (CPUC), as well as increased restrictions on CAW’s Carmel River diversions through a proposed Cease and Desist Order promulgated by the SWRCB on July 27, 2009.  Thus, the future combined CAW and non-CAW water use in the RDRWDS service area is expected to be less than in the past in compliance with District policy for WDS permits in the alluvial aquifer.  Special Condition #27 requires such a reduction (Exhibit 18-E). 

 

Potential Off-Site Impacts:  There are no other active wells within 300 feet of the subject well; 300 feet is the distance used by MPWMD for impact assessments in an alluvial setting.   The existing RDRWDS well is located immediately adjacent to the Carmel River and within the CVAA, which is characterized by a rapid recharge rate.  The subject well has been in existence since 1939, and pumped at a higher capacity prior to 2004, when new equipment was installed.  The AQ1 river reach benefits from year-round flow in all water years due to natural inflow, releases from Los Padres Reservoir and relatively modest diversions upstream as compared to the bulk of diversions which occur downstream.  As described in the IS/MND attached as Exhibit 18-F, diversions from the subject well have cumulatively contributed to adverse environmental effects to the Carmel River as a whole, though AQ1 is considered to be in relatively good health.  However, MPWMD’s action to approve the RDRWDS application will include an enforceable production limit (where none exists today) that allows up to 95% of the current diversions (5-year metered average).  In a small way, this is a beneficial step.

 

Water Quality:  A Title 22 water quality analysis was included in the application and shows that the well water quality test results indicated that the water met all the primary and secondary drinking water standards.  For the MPWMD WDS permit to remain valid, District Rule 22-D-1-c mandates that WDS Permit conditions for Multiple-Parcel Connection Systems include approval by and/or compliance with Monterey County Health Department regulations. It is noted that Monterey County approved the Rancho del Robledo Subdivision in 1972, and the RDRWDS has provided water for irrigation and potable use to various parcels since that time.

 

Approval of Rancho del Robledo Application #20090709RAN

The Findings of Approval (Exhibit 18-D) are based on evidence provided in the application materials as well as research by District staff.  Staff believes the application meets the criteria and minimum standards for approval set by District Rules 22-B and C.  Pertinent information includes the IS/MND and cited references (Exhibit 18-F), correspondence/meetings between MPWMD staff and the applicant, water rights documentation, and previous approvals by other governmental entities.  MPWMD approval of the application, as conditioned, is not anticipated to result in a significant adverse effect to the Carmel River, the CVAA, or other wells.  

 

The Conditions of Approval (Exhibit 18-E) proposed for Permit #M09-24-L4 for the Rancho del Robledo WDS are consistent with MPWMD Rule 22-D governing approval of water distribution systems.  Conditions #1 through 4 define the permitted system, including the parcels served, the subject well, a System Capacity (production limit) of 14.07 AFY, and an Expansion Capacity Limit of 10 connections.  There is no jurisdictional water allocation associated with this Permit.  Condition #3 adds the additional requirement to separately meter water delivery to each parcel.

 

Conditions #5 through #23 reflect standard mandatory conditions of the MPWMD, including water quality, metering and annual reporting, conservation, required Indemnification Agreement, fee payments, etc.  Notably, Condition #13 adds language clearly defining how CAW water may be used.  Conditions #24 and #25 are standard conditions for all WDS permits that address water rights and compliance with the Endangered Species Act. 

 

Special Condition #26 requires continued diligence and annual reporting of leak detection and repair efforts with a goal to achieve the 5% loss rate standard deemed appropriate for small WDS.  The 5% factor is described in the General Manager’s “WDS Memorandum #6” dated August 6, 2009, available on the District website at:

http://www.mpwmd.dst.ca.us/pae/wds/WDSPermits/WDSMemo6_20090806.pdf. This condition also entails installation of meters to separately track water delivery to each of the 10 connections (parcels) to more effectively assess system losses. 

Special Condition #27 requires that total water use on the ten parcels to be served by the RDRWDS shall not exceed 15.05 AFY when both metered water production from the RDRWDS and CAW metered consumption well are combined.  This value comes from adding the proposed RDRWDS production limit of 14.07 AFY plus 0.98 AFY CAW use (based on 8-year metered average provided in Exhibit 18-F).  This condition reflects the expectation that there shall be no increase in diversions from the Carmel River for the RDRWDS service area, accounting for both the private well and CAW. The system owner shall annually provide these water use data to MPWMD, or more frequently, if deemed as necessary by the General Manager. 

 

Special Condition #28 urges the applicant to pursue rainwater harvesting (cisterns) and other alternatives to the degree practicable to help minimize well pumping in the dry season. Cisterns would be most applicable to landscaping/gardens adjacent to current and future homes served by the RDRWDS.

 

Staff has provided the applicant a copy of the Conditions of Approval; the applicant understands them and verbally has indicated concurrence.  For reference, a mandatory condition of approval is a signed and notarized Permit Acceptance Form, and a deed restriction that attaches the permit and conditions is also recorded with the Monterey County Recorder.

 

CEQA Compliance

The District Board action must comply with CEQA as well as MPWMD regulations.  In the review of this application, MPWMD has followed those guidelines adopted by the State of California and published in the California Administrative Code, Title 14, Section 15000, et seq.  Specifically, the MPWMD, as a Lead Agency under CEQA for this action, has complied with CEQA Guidelines Section 15050. 

 

An Initial Study/Negative Declaration dated August 5, 2009 (Exhibit 18-F) was prepared and circulated by the District to interested and responsible parties via direct mail, the State Clearinghouse, County Clerk, and AMBAG for a period of 30-days, commencing on August 7, 2009 and ending on September 8, 2009.  State Clearinghouse staff verbally (by phone) confirmed receipt and filing of the IS/MND documents on Friday, August 7, 2009 but no formal documentation or identification number has been received at this writing (September 14, 2009). 

 

All the documentation of potential water use and water production limits described in the IS/MND was based on the potential construction of two homes on two parcels, rather than one.  As noted above, the revised application would reduce estimated water use by 0.5 AFY.    

 

The District’s CEQA review is focused only on the RDRWDS. The County of Monterey is responsible for future CEQA review of any construction project that may be contemplated on any property within the RDRWDS. 

 

Comment letters: were received from NMFS and RWQCB staff by the September 8, 2009 deadline.  The paragraphs below will address each letter.  Notably, some of the agency comments reflect policies or activities these agencies believe MPWMD should be implementing.  The MPWMD staff response does not engage in a policy debate or defense of existing policies.  The staff response focuses on current MPWMD rules and policies and how they are applied to the RDRWDS application, consistent with similar applications that have been approved previously, such as the St. Dunstan WDS in July 2008.  It is possible that late comments will be submitted after September 8, 2009; District staff will endeavor to respond in writing to any comments before the public hearing date, as feasible.

 

National Marine Fisheries Service: In its 3-page letter dated September 8, 2009 (Exhibit 18-G), NMFS reiterates its concern about current conditions for the threatened steelhead population and the cumulative effects of Carmel River diversions from CAW and private wells.  It opposes any increase in diversions from the river.  NMFS remains concerned about any diversion of water in the low-flow season and cites its June 2002 report, “Instream Flow Needs for Steelhead in the Carmel River—Bypass Flow Recommendations for Water Supply Projects Using Carmel River Water,”  which recommends, “No new diversions should be permitted, authorized or otherwise sanctioned for the period June 1 to October 31.”  NMFS questions the riparian water rights associated with parcel APN 197-151-004 (for which a new home was planned in the original application, but is now not being considered as part of the September 21, 2009 action), and believes a SWRCB appropriative water rights permit is needed.  NMFS concurs with the riparian water rights for the well lot and parcel APN 197-151-016, for which a new home is planned and would be annexed into the RDRWDS if the application is approved.  NMFS requested that the RDRWDS project be revised to include:

 

(1)  require the project to obtain legal water rights;

 

(2)  require the RDRWDS to adhere to the 2002 NMFS Flow Bypass Guidelines, that is, allow use of the well only between November 1 through May 31,

 

(3)  decrease the amount of water per new house to the average used on the Monterey Peninsula (0.25 AFY rather than 0.5 AFY); and

 

(4) use an alternative source of supply other than Carmel River water for irrigation [in June through October]. NMFS encouraged the applicant to consider rainwater harvesting (cisterns) as an alternative supply source.

 

MPWMD Staff Response to NMFS Letter:  The following paragraphs address the four topics raised by NMFS.

 

Regarding Water Rights, as noted above, District Counsel in April 2009 reviewed the water rights documentation provided for the application, and determined that it was adequate for the purposes of the WDS Permit process, but noted that water rights documentation regarding each parcel within the Subdivision was not included.  After reviewing the NMFS letter, Counsel opined that additional water rights information on the subdivided parcels (including a formal legal review) would be needed from the applicant if the applicant wished to continue with the original July 9, 2009 request, which included domestic service to parcel 197-151-004.   Alternatively, the applicant could move forward solely with annexation of parcel 197-151-016 at this time, which the applicant chose to do on September 9, 2009 (Exhibit 18-C).  NMFS did not indicate a concern with this parcel, which is immediately adjacent to the well lot and the Carmel River, and is owned by the applicant.  There are a variety of legal theories that could be expounded regarding water rights associated with subdivided parcels that overlie the CVAA, and are served by a long-standing water system.  The District’s role is not to determine a property owner’s water rights or advocate for or against an applicant regarding this matter.  The SWRCB is the proper agency to make such determinations and take any formal action. 

Regarding adherence to the 2002 NMFS Bypass Flow Guidelines, this report recommends that “no new diversions should be permitted.” However, irrigation and domestic water service by the RDRWDS via the subject well has occurred since 1939 (and since 1972 for the Subdivision), and is not “new.”  The MPWMD Conditions of Approval would set an enforceable production limit that is less than the average actual use in the past five years, and would represent a decrease in diversions.  Thus, approval of the RDRWDS application, as conditioned, would comply with the NMFS recommendation about no new diversions or no increase in diversions. 

 

Closely related is limiting use of the well to November 1 through May 31.  Notably, the NMFS bypass limits were originally developed in the context of a large municipal water supply project such as aquifer storage and recovery.  District staff understands NMFS’ intent, concerns and rationale, but questions whether it is reasonable to impose such limits on a small water system with a sole source of supply (the river), which has already made a good-faith effort to reduce water use via system improvements.  The MPWMD permit will require the applicant to sign deed restrictions that limit total water production to amounts that do not exceed historical metered use.  As written, the bypass limits would result in a prohibition of using the well in five out of 12 months, which would be a de facto denial of the application.  District Conditions of Approval (Exhibit 18-E) set enforceable annual production limits; require monitoring and reporting; and already require conservation, best management practices and continued leak reduction.  For the above reasons, District staff recommends that the Board not include the NMFS bypass flow requirement as a permit condition.

 

Regarding the requested lower estimate of residential water use, 0.5 AFY is the documented average water use for larger lots in the Carmel Valley area based on extensive CAW data from various parts of their main service area, and from homogeneous systems like Hidden Hills.  The 0.25 AFY cited by NMFS for the Monterey Peninsula is the average use in urban settings on smaller lots such as those found in the cities of Carmel, Del Rey Oaks, Monterey, Pacific Grove, Seaside and Sand City.  For all its WDS permits in rural/semi-rural settings with large lots, the District uses a factor of 0.5 AFY as the default amount for a Single-Family Dwelling unless site-specific data (e.g., detailed fixture unit counts based on County-approved construction drawings) indicate a larger or smaller amount is needed.  Staff believes it would be inconsistent to impose the urban Monterey Peninsula factor to a rural Carmel Valley situation, where the lots range from one to nearly nine acres; for reference, parcel 197-151-016 is two acres in size. 

 

Regarding alternative sources of supply such as rainwater harvesting, it is questionable whether cisterns could store enough water from the residents’ roofs in winter (especially in dry years) to serve as a true alternative source of supply in the June-October period, especially for domestic supply and/or irrigated pasture/water for livestock on these rural lots.  No evidence exists at present that such a supply is considered a viable supply source for this five-month period.  The Monterey County Health Department (and State law) severely constrain the use of rainwater harvesting for drinking water purposes and surface irrigation.  It also prohibits importation (trucking) of water for long-term domestic (drinking water) use.  It is questionable whether trucked water would be available and affordable, not to mention the carbon footprint of such trucking. Both the Seaside Basin and Salinas Basin are highly unlikely sources of supply due to existing constraints and policies.  Other undefined options might be available, but are speculative at this point in time.  It is also noted that irrigation of land in close proximity to the river will result in some recharge of the alluvial aquifer.  In conclusion, staff recommends that the applicant be urged to consider cisterns and other alternative supply sources to reduce diversions in the dry season as much as possible, but not require these measures.  Also, Special Condition #26 to continue leak detection and repair will help reduce diversions in the future.

 

Regional Water Quality Control Board:  In its 9-page letter dated September 8, 2009 (Exhibit 18-H), the RWQCB includes specific comments about the RDRWDS as well as assertions about MPWMD programs, budget priorities and other policy matters not related to the RDRWDS application (itemized below).  The RWQCB notes that it is commenting due to its expertise and concern about the Carmel River and Carmel River Lagoon, and does not have permit authority over the water supply issues causing impairments to these resources, and has no approval oversight for this project unless a waste discharge is involved. The MPWMD staff response below focuses solely on RWQCB comments that relate to environmental issues associated with the RDRWDS application.  The staff response to the NMFS letter above already addresses the RWQCB concern about use of 0.5 AFY as the residential water production estimate.  The pertinent RWQCB concerns about the RDRWDS include:

 

·        Inadequate mitigation for cumulative off-site impacts to the Carmel River and Lagoon, riparian and aquatic habitat of river and federally listed species dependent on them (page 2). 

 

·        Disagrees with less than significant determinations for Biological Resources, because “additional wasteful losses…. will likely negate the estimated water diversion reduction,” inferring that the RDRWDS will actually go over its production limit due to leaks and other losses (page 2).

 

·        Mitigation should not be based on yet-to-be realized water supply projects by entities other than the applicant (page 3). 

 

·        Ability of MPWMD to enforce the production limit is questioned (page 3). 

 

·        Allowing additional diversions is inconsistent with the public trust doctrine (page 3).

 

·        Proposed project may have a significant effect on the environment and a MND is not consistent with CEQA. (page 5). 

 

MPWMD Staff Response to RWQCB Letter:  The following paragraphs address the above six topics raised by RWQCB:

 

Regarding adequate mitigation for cumulative off-site impacts to the Carmel River, lagoon, associated habitat and listed species, case law has clearly established that one applicant is not responsible for cumulative effects caused by hundreds of others.  Water diversions by the RDRWDS will be less with the MPWMD permit than without it, as there is currently no limit to the applicant’s diversion.  Permit Conditions #3 and #13, combined with Special Conditions #26, and 27 (Exhibit 18-E) were added to ensure diversions are reduced as compared to recent historical levels. 

 

RWQCB’s assertion about additional wasteful losses negating the production limit appears to be based on speculation and distrust of MPWMD’s enforcement abilities; RWQCB provides no supporting evidence to justify these fears.  Indeed, MPWMD carefully tracks production and takes action if overages occur, such as recent actions in the Ryan Ranch and Hidden Hills WDS.  As noted above, the Conditions of Approval (Exhibit 18-E) include several provisions to reduce the potential for water waste and/or production greater than the amount permitted.  

 

Regarding mitigation based on yet-to-be realized water supply projects, RWQCB apparently misunderstood the IS/MND text.  Water supply projects planned by various entities were not discussed as mitigation for the RDRWDS.  They were mentioned in the cumulative context of a reasonable expectation of reduced CAW diversions from the river in the next 5-10 years.  The conclusion of a less than significant effect of approving the RDRWDS amendment is based on reductions in diversions by RDRWDS and ensuring that combined CAW/RDRWDS use is not increased (see Conditions #3, #13, #26 and #27, Exhibit 18-E).

 

Regarding the ability of MPWMD to enforce its production limits, RWQCB misinterprets Rule 20.4 and the impact that a recorded Notice of Non-Compliance has on a property owner.  District staff’s experience is that a Notice of Non-Compliance has a great impact on the ability of the property owner to sell the property or engage in any activity that entails a building permit, and owners are anxious to clear their title.  RDRWDS already is a permitted WDS that has been in existence for many decades.

 

The District agrees that allowing additional diversions is inconsistent with the public trust doctrine, but this is not applicable to the RDRWDS action herein because additional diversions are not allowed by way of Conditions #3, #13, #26 and #27 (Exhibit 18-E).  

 

RWQCB states that the proposed project (i.e., amend the RDRWDS) may have a significant effect on the environment, but provides no evidence or rationale to support the statement besides concerns about the current and future settings.  The fact remains that there currently is no production limit, and the applicant could double his water use next year if he so desired.  The RDRWDS amended permit would set a limit roughly 5% less than current use (5-year average).  Notably, the reduction is more pronounced when the most recent two years of data are considered; the 14.07 AFY revised value is 2.02 AFY less than the recent two-year average of 16.09 AFY for WY 2007 and 2008, which represents a 12.5% reduction.  

 

Policy statements in the RWQCB letter (Exhibit 18-H) that do not relate to the RDRWDS application and associated documentation are not addressed in this staff response.  They include:

  • Need incentives to reduce ongoing cumulative impacts to Carmel River and Lagoon (page 3, fourth paragraph);
  • Citing SWRCB CDO against CAW, public trust resources must be protected; do not permit new diversions from the river to enable increased growth (page 3 bottom continuing to top of page 4);
  • Diversions by CAW and others cumulatively harm public trust resources and are not adequately mitigated; impacts will continue until alternative supplies and conservation measures are implemented (page 2, second paragraph in bold);
  • The MPWMD Mitigation Program does not adequately address the adverse impacts of CAW diversions allowed via the MPWMD Water Allocation Program (page 4, third paragraph, including footnotes 3 and 4);
  • Use of water offsets generated by conservation efforts does not provide incentives for local communities to develop alternative water supplies, and should not be allowed to enable new growth; (bottom of page 4 continuing to middle of page 5);
  • CAW, MPWMD and the Monterey Peninsula communities have failed to develop alternative water supplies to reduce river diversions; a greater portion of the MPWMD budget should be used for water supply (page 5, second full paragraph);
  • Findings of significance (listed in letter) should be applied to any and all projects that entail use of water within the CAW service area or within Carmel Valley that are not within the CAW service area, regardless of size (page 6, third and fourth paragraphs);
  • The District should be commended for its Mitigation Program but should not allow new development from river diversion offsets; it should use its authority over projects to help improve the Carmel River situation (bottom of page 6 to top of page 7). 

 

Noticing

Public notice has been provided no later than 10 days prior to this public hearing in several ways, including: (1) mailed notices to property owners within 300 feet of the subject parcel; (2) posted notice at the District office; (3) on-site posting as certified by the applicant; (4) notice of the public hearing to recipients of District agendas for the September 21, 2009 meeting, including local print media; and (5) agenda and staff note materials on the District website.  All files associated with the application are available for review at the District office.  The applicant has also filed the proper MPWMD Ex Parte Communication forms with the District.

 

EXHIBITS

18-A    Application #20090709RAN to Amend the Rancho del Robledo WDS

18-B    Map of proposed system service area and well location

18-C    Applicant’s September 9, 2009 request to amend application

18-D    Draft Findings of Approval for Application #20090709RAN

18-E    Draft Conditions of Approval for Application #20090709RAN

18-F     Initial Study and Notice of Intent to Adopt a Mitigated Negative Declaration

18-G    Comment letter from NMFS dated September 8, 2009

18-H    Comment letter from RWQCB dated September 8, 2009

 

 

 

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