ITEM:		PUBLIC HEARING
17.	CONSIDER BOARD MEMBER REFERRAL REGARDING GENERAL MANAGER DIRECTION FOR ASSESSMENT OF FLORES WELL #1 AND PISENTI WELL #2 (APN 103-071-002 and 103-071-019, Respectively)
Meeting Date:			September 19, 2011	Budgeted:	N/A
From:			David J. Stoldt,	Program/	N/A
			General Manager	Line Item No.:	N/A
Prepared By:			Henrietta Stern	Cost Estimate:	N/A
General Counsel Review: Concurs with staff review
Committee Recommendation: N/A
CEQA Compliance: N/A

SUMMARY: Pursuant to MPWMD Rule 71A, the Board will consider a request by Director Markey (Exhibit 17-A) to overrule certain “appealable subordinate decisions” by Darby Fuerst, the previous General Manager. District Rule 71 is provided as Exhibit 17-B. Rule 71 directly refers to District Rule 70, Appeals, which is provided as Exhibit 17-C.

The request primarily involves District procedures to assess the impact of a proposed Water Distribution System (WDS) on a neighboring well; a secondary issue is whether test data show the wells are able to provide adequate supply, which affects whether the applications for the subject wells are complete or not.

At this time, the Board must follow the process set forth in Rule 71 to (a) take no action, (b) make the subordinate decision final, or (c) set the matter for hearing as an appeal. This staff note does not set forth facts about the specific applications; such information would be provided at a future meeting, depending on Board action this evening. Rule 71-C requires the Board to receive the full administrative record and additional evidence at the appeal hearing, and to make findings as to whether or not an error was made. If the Board selections option (c) to hear this as an appeal, the hearing will be noticed for a future meeting.

This request elicits several questions as follows:

1. What decisions by the General Manager are appealable, and which are not appealable?
2. Should the District change procedures or rules if the current situation is not satisfactory to the Board?
3. What action should be taken pursuant to Rule 71-B, which directs that the Board may “take no action, make the subordinate decision final, or upon the request of any Board member, [set] the matter for hearing as an appeal?”

This situation involves three parties, as follows:

Ø Mr. Flores, WDS applicant and owner of Well #1 on parcel APN 103-071-002, represented by hydrogeologist Aaron Bierman;

Ø The Pisenti Family Trust, WDS applicant and owner of Well #2 on parcel APN 103-071-019, represented by hydrogeologist Aaron Bierman; and

Ø David and Judith Beech (Beech), owners of the neighboring well on APN 103-071-007, represented by attorney Molly Erickson of Law Offices of Michael Stamp. This well serves three parcels.

Beech asserts their well was adversely affected during the Flores and Pisenti well tests in October 2010, that they were not given the opportunity to have their well monitored at that time, and that they would like the test to be repeated in October 2011 with monitoring in place. He also has technical questions about District procedures and interpretations of data.

Applicants Flores and Pisenti believe Beech’s well was overtaxed by extensive irrigation of the three parcels. They are willing to redo the well test and monitor Beech’s well, but not wait until October because District and Monterey County well testing procedures allow a test anytime between June 1 and November 30.

The previous General Manager provided direction by the letter of June 24, 2011 (Exhibit 17-D) in an attempt to resolve the concerns of all parties. He identified a process and timeline to determine whether a re-test in July 2011 was needed or not. Beech requested a one-week extension, which was granted. Beech (and other neighboring well owners) declined to allow their well to be monitored in July 2011, and thus no re-test was performed. On July 20, 2011 General Manager Fuerst wrote letters that deemed the Flores and Pisenti applications to be complete (Exhibit 17-E). These determinations were based on the MPWMD protocol that applies when well monitoring is not available.

On July 11, 2011, Beech’s attorney submitted an appeal of the General Manager’s June 24, 2011 letter and its direction as to how neighboring well owners should be notified, how much time to respond regarding a test, and the well testing protocol. Because the submitted appeal (Exhibit 17-F) did not meet the criteria in Rule 70, the appeal was not accepted, and the fee was returned, as explained in Fuerst’s letter of July 26, 2011 (Exhibit 17-G).

Director Markey has now submitted her request to the Board (Exhibit 17-A) to overrule certain “appealable subordinate decisions” by the previous General Manager.

RECOMMENDATIONS: After consultation with District Counsel and a careful review of MPWMD Rules & Regulations, District staff makes the following recommendations to the Board:

1. The General Manager’s July 20, 2011 determinations that the Flores and Pisenti applications are complete are “appealable subordinate decisions” (Rule 71). The word “appealable” is defined in Rule 70, which requires an appeal to “reference the provision of these Rules and Regulations which has been violated.” Rule 22-A-5 (third sentence) states, “the General Manager shall determine if the submitted Application is complete, pursuant to the Implementation Guidelines….” Rule 22-A-5 (last sentence) calls out the staff determination on whether to issue the WDS permit as being appealable pursuant to Rule 70. This raises the question of whether only the final permit determination is appealable, and not the decision of whether the application is complete. The Board may provide direction on this question for future reference. To date, staff has taken a broader interpretation to include the determination of a complete application as an appealable decision, and lists these as such on the District website. As to Director Markey’s request to overrule these decisions by then-General Manager Fuerst, the Board should decide to (a) take no action, (b) make the subordinate decision final, or (c) set the matter for hearing as an appeal.

2. Intermediate actions by the General Manager to correct a noticing omission by the applicants and resolve a disagreement between neighbors are not appealable (Rule 70). Examples of non-appealable actions include: (1) determining who is responsible for providing notice; (2) providing direction to the applicants’ hydrogeologist regarding proper noticing; (3) providing direction on period of time to respond to a well monitoring request; and (4) whether to provide an extension of time. Similarly, written standards regarding well recovery data included in the District’s Procedures for Well Source and Pumping Impact Assessments (Procedures) are not appealable. District Rules refer to Implementation Guidelines prepared by staff, but do not address the technical contents, which are refined and amended over time. When the Board originally approved Ordinance No. 96 in 2001, the Board specifically chose not to spell out the well testing procedures in the MPWMD Rules & Regulations (rules 20, 21 and 22) knowing that such technical matters are best left to staff; this also enables refinements to the procedures without going through a multiple-month ordinance process each time a change is made. As to Director Markey’s request to overrule intermediate decisions by the General Manager or technical protocol, the Board should decide to take no action as these decisions are not appealable under Rule 70.

3. An appeal is not appropriate to address suggestions and opinions on how to improve the District’s rules, procedures and policies. Consideration of such a legislative option should be referred to the Rules & Regulations Review Committee, with Board action to follow, if appropriate. Any policy change would be applied only in the future, and would not be retroactively applied to an application in progress under the current rules and policies. The agenda for the next Rules & Regulations Review Committee includes a discussion of procedures for notification of nearby well owners of a pending well test.

BACKGROUND AND DISCUSSION: Background is provided in the “Summary” section above and in the cited exhibits. Questions #1 through #3 above go to Board policy on how much technical oversight of the General Manager’s decisions is desired, and/or whether changes to rules, procedures, and policies are desired.

If, pursuant to Rule 71-B, the Board wishes to set a hearing on the Board member referral, staff will prepare materials for Board consideration at the October 17, 2011 meeting. The materials will focus on whether the District procedures were properly followed and whether evidence in the record supports a conclusion of a complete application based on those procedures.

EXHIBITS

17-A Director Markey referral (print of e-mail)

17-B MPWMD Rule 71

17-C MPWMD Rule 70

17-D Darby Fuerst June 24, 2011 letter of direction to Flores, Pisenti and Beech

17-E Darby Fuerst July 20, 2011 “complete” application letters for Flores and Pisenti WDS

17-F Beech July 11, 2011 appeal of General Manager’s June 2011 direction

17-G Darby Fuerst July 26, 2011 letter explaining non-acceptance of appeal