MPWMD BOARD MEETING--NOV 21, 2011--ITEM 16--CONSIDER APPEAL OF GENERAL MANAGER DETERMINATION OF “COMPLETE” APPLICATIONS FOR FLORES (Well #1) AND PISENTI (Well #2) WATER DISTRIBUTION SYSTEMS

ITEM:		PUBLIC HEARING

16.	CONSIDER APPEAL OF GENERAL MANAGER DETERMINATION OF “COMPLETE” APPLICATIONS FOR FLORES (Well #1) AND PISENTI (Well #2) WATER DISTRIBUTION SYSTEMS (Well #1: Application #20110401FLO on APN 103-071-002 at 564 Monhollan Road, Monterey; Well #2: Application #20110401PIS on APN 103-071-019 at 577 Monhollan Road, Monterey)

Meeting Date:			November 21, 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: Pending review
Committee Recommendation: N/A
CEQA Compliance: N/A

SUMMARY: Pursuant to an August 5, 2011 referral by Director Markey (Exhibit 16-A), the MPWMD Board at its September 19, 2011 meeting determined that it would hear an appeal by David and Judy Beech (“Beech” or “appellant”) submitted on July 11, 2011 (Exhibit 16-B). The questions about adequate compliance with District well testing procedures raised by the Beech appeal functionally address whether or not the Water Distribution System (WDS) applications for the Flores Well #1 WDS and Pisenti Well #2 WDS should be deemed to be “complete” despite the issuance by the General Manager on July 20, 2011 of two “complete” letters for Well #1 and #2 (Exhibit 16-C). Suggested changes to District rules and procedures are not part of this hearing, and should be addressed in future separate actions of the Rules and Regulations Review Committee.

A “complete” designation means that the General Manager has determined that: (a) the applicant has properly followed MPWMD procedures for well testing and has submitted other information needed to make required Findings of Approval specified in Rule 22; and/or (b) has submitted information that was deemed to be missing in an earlier “incomplete” letter. In nearly all cases, a “complete” letter means that District staff will begin preparing permit approval documents in compliance with Rule 22. A “complete” letter is an appealable decision posted on the District website. As a courtesy, the appellant was provided a timely copy of the July 20, 2011 “complete” letters, but the appellant never submitted an appeal within the 21-day response period. It is noted that future issuance of a WDS permit by the District can also be appealed

This situation is complex, and has been marked by rapidly changing conditions and agreements that have continued to evolve to date. A map showing the four wells and five parcels that are now involved is provided as Exhibit 16-D. Please refer to the agenda materials for the September 19, 2011 hearing for detailed background information at:

http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20110919/17/item17.htm.

Some information from the September 19, 2011 meeting is reprinted herein. This staff review also includes new information and actions since September 19, 2011. Please refer to the “Background” section below for more detailed information.

The basic questions raised by the Beech appeal and Markey referral for Board consideration today are:

1. Did testing of the Flores and Pisenti wells in October 2010 have an adverse effect on the Beech WDS, specifically the loss of storage in the Beech WDS tanks, that would indicate a future impact if the Flores and Pisenti WDS permits are approved? This has been the primary concern expressed by Beech since June 2011.

2. Did the hydrogeologist for Flores and Pisenti properly follow District well testing procedures in October 2010? This addresses both: (a) well reliability, and (b) impacts to other wells.

3. If a procedure was not properly followed in 2010, were corrections made in 2011, as practicable, that adequately address the well testing procedures?

4. Based on Questions #1, #2 and #3 above, are the “complete” application determinations of July 20, 2011 valid?

Assertions in the Beech appeal (Exhibit 16-B) or Director Markey’s referral (Exhibit 16-A) about perceived deficiencies in District procedures, or suggestions on how procedures could be improved, are not part of this hearing. These issues are being addressed by the Rules & Regulations Review Committee (RRCom), which may recommend future action by the Board. For example, the RRCom agenda for October 19, 2011 included noticing for well tests, and further review of this topic is planned. For more information on that RRCom meeting, please see the District website at:

http://www.mpwmd.dst.ca.us/asd/board/committees/rulesregscomm/2011/20111019/1019agenda.htm

This situation now involves four wells, as follows (see map as Exhibit 16-D):

Ø “Flores Well #1” on parcel APN 103-071-002 (Paul Flores, WDS applicant, represented by hydrogeologist Aaron Bierman).

Ø “Pisenti Well #2” on parcel APN 103-071-019 (Pisenti Family Trust/Ed Kramar, WDS applicant, represented by hydrogeologist Aaron Bierman).

Ø “Beech Well” on APN 103-071-007 (David and Judith Beech, owners, represented by attorney Molly Erickson). This well is permitted to serve only one parcel, but the District learned as part of this proceeding that it had been serving three parcels as an unpermitted WDS for roughly 10 years. This situation is relevant to Question #1 above. Corrective action was initiated by Beech in August 2011 to address non-compliance issues.

Ø “Anastasia Well” on APN 103-071-009 (Joe Anastasia, owner, represented by hydrogeologist Martin Feeney). The existence of this well was unknown to the District until late October 2011, and was not disclosed by Beech as being part of the Beech WDS. The District has learned that the Beech and Anastasia parcels are served by an unpermitted system comprised of two wells that pump water into four shared tanks which serve three parcels. The existence of the unpermitted multi-parcel WDS, the discovery of the undisclosed second well, and the shared tank system is substantive new information that is pertinent to Question #1 above. Two separate enforcement actions are under way to address this situation. In mid-November 2011, the combined system was physically split into two separate systems. Each well will also be required to be separately metered. Full compliance with District rules by both Beech and Anastasia is anticipated in the near future.

RECOMMENDATIONS: The General Manager recommends that the Board (a) not reverse the “complete” letters, and (b) instruct staff to proceed with processing the WDS permits for Flores Well #1 and Pisenti Well #2. The issuance of these permits in the future is appealable under District Rule 70. Further, the General Manager recommends that any potential changes to District procedures be referred to the Rules and Regulations Review Committee and not be applied retroactively in this case. These recommendations are reflected in the following discussion with respect to Questions #1 through #4 listed above.

Q1: Did testing of the Flores and Pisenti wells in October 2010 have an adverse effect on the Beech WDS, specifically the loss of storage in the Beech WDS tanks?

No scientific evidence exists to support Mr. Beech’s contention that reduced tank storage was caused by the October 2010 tests of Well #1 and Well #2. The well monitoring evidence that is available indicates that there is not direct connectivity between the Flores/Pisenti wells and the Beech well, and thus does not support Beech’s contention. Additionally, the unpermitted multi-parcel WDS (two wells, 4 shared tanks and three irrigated parcels), particularly the previously undisclosed Anastasia well, could also have played a substantive role in the October 2010 tank dewatering. Permission was not granted by Beech to monitor his well for a combined pumping test of the Flores/Pisenti wells in October 2011 that would have helped resolve the question of impact. The Beech and Anastasia wells are not metered and modern pumping tests have never been performed, so it is unknown whether the irrigation of a combined six acres of landscape in October 2010 exceeded the Beech/Anastasia well production capacity.

Furthermore, three weeks of well monitoring data collected by Bierman every 10 minutes from the Flores and Pisenti wells from June 14 through July 6, 2011, when Beech was using his well to irrigate 4 to 6 acres indicate that there is not a direct hydrogeologic connection between the Flores/Pisenti wells and the Beech well (i.e., water levels in the monitored Flores and Pisenti wells did not change with Beech’s irrigation cycles). These data are provided as Exhibit 16-E. The small oscillations (roughly 2.5 inches) seen in the graphs reflect background changes in daily barometric pressure that affect groundwater levels in a hard-rock aquifer.

The applicants’ (Flores/Pisenti) right of due process compels the District to show that any finding of adverse impact is based on solid scientific evidence in the record. A defensible finding of impact cannot be made given the numerous factors and uncertainties associated with this situation, and the fact that the only well monitoring data available shows a lack of direct connectivity between the Flores/Pisenti and Beech wells.

Q2: Did the hydrogeologist for Flores and Pisenti properly follow District well testing procedures in October 2010? This addresses both: (a) well reliability, and (b) impacts to other wells.

District staff believes the applicants have properly followed District procedures for well reliability, as interpreted by the District staff person (Water Resources Division Manager, Joe Oliver) and the consultant (Robert Marks of Pueblo Water Resources) who wrote the procedures. The consultant’s review of the applicant’s hydrogeology reports are provided as Exhibit 16-F and Exhibit 16-G for Well #1 and Well #2, respectively. It is noted that the Monterey County Health Department (MCHD) has already determined that Well #1 and Well #2 are reliable to meet their respective residential needs (Exhibit 16-H). This determination is important in that California Drinking Water regulations guide recovery of wells. The District’s protocol is very similar, but not identical, to the County’s protocol.

The Beech appeal includes an alternate interpretation of the procedures by Beech’s attorney. The procedures were written for a technical audience familiar with hydrogeology (qualified consultants as defined in District Rule 21-A). Qualified consultants are encouraged to contact District staff for clarification if there are any questions about the procedures, given the limitations of the English language as applied to a sometimes complex task in the field. The procedures also note that exceptions to the procedures may be made on a case-by-case basis. However, no exceptions to the procedures were made in this case regarding well reliability assessments. For reference, pertinent excerpts of the District procedures are provided as Attachment C in the Beech appeal (Exhibit 16-B).

District procedures were not properly followed in October 2010 in that neighbors were not given the proper notice regarding the opportunity to have their wells monitored for impact or connectivity of the new wells, as described in Darby Fuerst’s letter of June 24, 2011 (included as Attachment A in Exhibit 16-B). There are presently no specific District procedures for noticing associated with providing the opportunity for well monitoring. The applicants did properly follow the District procedures to be used when well monitoring data are not available.

Q3: If a procedure was not properly followed in 2010, were corrections made in 2011, as practicable, that adequately address the well testing procedures?

Yes. As described in the July 20, 2011 “complete” letters (Exhibit 16-C), the applicants followed District directions to correct the 2010 monitoring well error which initially focused on a test in July 2011. In the June 2011 letter of the General Manager, the Beeches were given almost three weeks to elect to have their well monitored for a re-test. They did not do so. The reasonableness of the timelines set by the previous General Manager is a key subject of the Beech appeal. However, the applicants were not responsible for setting the timelines; their job was to follow them as directed by the General Manager.

Later, when the Board determined not to sustain the General Manager’s direction on September 19, 2011, the applicants and Beech then worked to arrange a re-test in October 2011 that included simultaneous well testing at a lower production rate, as originally requested by Beech. Dozens of e-mails indicated that a mutually acceptable simultaneous well test would begin on or about October 17, 2011. As the test date neared, Beech imposed additional requirements to allow monitoring of the Beech well, specifically a written contract that required Well #1 and #2 re-testing in addition to the agreed-upon simultaneous well testing. Flores and Pisenti refused to sign the agreement because the individual well tests had already been approved by the District and MCHD, and felt such a demand violated their rights of due process. Beech refused to allow access to monitor his well unless the agreement was signed. Thus, the desired October 2011 re-testing opportunity did not occur and a November test does not appear to be feasible or desired by any of the parties.

District staff believes the record shows that the applicants followed District staff and Board directions in 2011 to correct the October 2010 well monitoring inadequacy. Full correction is not feasible without Beech’s permission to monitor his well. Beech has not provided a valid hydrologic reason why permission to monitor his well for the October 2011 combined well re-test he has demanded since June 2011 is contingent on two new re-tests of Wells #1 and #2 individually.

Q4: Based on Questions #1, #2 and #3 above, are the “complete” application determinations of July 20, 2011 valid?

The staff recommendation is to confirm that the Flores Well #1 and Pisenti Well #2 applications are complete. The weight of evidence and the questions about the potential effect of the undisclosed second well and shared 4-tank system do not support a finding of impact to the Beech well by the Flores and Pisenti wells. The applicants followed the District procedures for well reliability as interpreted by the staff and consultant experts who wrote them. The District and MCHD have concluded that the well tests show that Well #1 and Well #2 are adequate to meet their respective residential needs. The applicants showed a good faith effort to follow the District staff and Board’s instructions to correct the October 2010 deficiencies regarding well monitoring, but could not monitor Beech’s well in 2011 without his permission. The decision by Beech to tie monitoring permission to a re-test of two wells already deemed to be adequate by two agencies, consistent with state law, is not reasonable.

BACKGROUND: This section provides a timeline of events and describes the pertinent MPWMD well testing procedures relevant to Questions #1 through #4 above. It then explains why enforcement actions associated with the Beech WDS are relevant to this hearing.

Timeline of Events

Exhibit 16-I provides a sequential timeline of key events, many of which were occurring concurrently under changing conditions. The original October 2010 well testing occurred when both Well #1 and Well #2 were located on the Pisenti parcel (APN 103-071-019), with potential service to the Flores parcel on APN 103-071-002. This configuration would have been a multiple-parcel WDS if it remained in that state. However, an application was before Monterey County for a lot line adjustment, which, if approved, would result in Well #1 being located on the Flores parcel for uses therein, and Well #2 providing service to the Pisenti parcel, that is, two separate single-parcel WDSs.

Pre-Applications for the Flores Well #1 WDS and Pisenti Well #2 WDS were submitted to the District on November 8, 2010, prior to action by the County on the lot line adjustment. Separate WDS application packages were submitted for Flores Well #1 and Pisenti Well #2 in April 2011 in anticipation of County approval, which eventually occurred on June 30, 2011.

The April 1, 2011 application packages included the required hydrogeologic assessments (Well #1 report dated March 23, 2011; Well #2 report dated March 22, 2011). District consultants and the Water Resources Division Manager reviewed the two Bierman hydrogeologic reports and concurred with its conclusions on May 23, 2011 (Flores Well #1) and April 29, 2011 (Pisenti Well #2).

However, at that time, the District consultants and staff were not aware of Beech’s February 15, 2011 letter to the County expressing concern about adverse impacts to his well and the lack of monitoring of his well during the test. District staff missed the footnote in the Bierman reports that indicated Bierman had not contacted Beech and other neighbors to enable well monitoring, and instead used the calculations appropriate for situations when well monitoring was not available. This is the first instance of such a noticing omission of which the District is aware. Bierman’s reports often include monitoring data from neighboring wells.

Mr. Beech subsequently submitted a written challenge to the hydrogeologist assessment on June 7, 2011. Copies were provided to all parties via e-mail. In his June 9, 2011 e-mail, Bierman indicated the error was his responsibility and that he would redo the pumping tests and monitor the Beech well as soon as possible, potentially as early as June 20, 2011, in compliance with District and County Health protocol that allows testing from June 1 through November 30. Beech felt strongly that the tests should be performed in October 2011 to better replicate the October 2010 test. This disagreement about timing of the test became a key point that General Manager Fuerst tried to explain and resolve in his June 24, 2011 letter, included in the Beech appeal package as Attachment A (Exhibit 16-B).

In the meantime, because of the Beech concerns about possible impacts to his well and the realization that neighbors had not been provided an opportunity to have their wells monitored, the District issued “incomplete” application letters to Flores and Pisenti dated June 16, 2011. The District’s letter of June 24, 2011 further clarified the actions to be taken by the applicants and neighbors, and a July 5, 2011 deadline was originally set for three neighbors to determine whether or not they wished their wells to be monitored. The letter stated that if no neighbor indicated the need for monitoring, then a new pumping test is not required. Due to the July 4 holiday, the deadline was extended one week to July 12, 2011. No neighbor agreed by the July 12, 2011 deadline to have their well monitored. It is understood that Mr. Beech wished to have a test in October 2011 but MPWMD and County Health protocol allow a test anytime between June 1 and November 30. If there is a physical connection between wells, that fact will not be affected by the month the test occurs.

The July 11, 2011 appeal package (Exhibit 16-B) addressed the June 24, 2011 direction by Mr. Fuerst, who determined in a July 26, 2011 letter that the July 11, 2011 appeal was not valid as there was no citation of a District rule that was being violated, in compliance with MPWMD Rule 70.

Based on the fact that no neighboring well owner requested that his well be monitored in a July 2011 test, on July 20, 2011, Mr. Fuerst determined that the Flores and Pisenti WDS applications were complete (Exhibit 16-C). This determination was partly based on summary of events prepared on July 15, 2011 by Bierman (included in the “complete” letters), which satisfied the General Manager that a timely, good faith effort to notify and communicate with each neighbor was made, and that no neighbor agreed by the July 12, 2011 deadline to have their well monitored for a pumping test planned in July 2011. Thus, the “complete” determinations were based on the MPWMD protocol that applies when monitoring of neighboring wells is not available.

When a “complete” application letter is issued, the action is posted on the MPWMD website under “Appealable Decisions” for 21 days. A courtesy copy of the Flores and Pisenti “complete” letters were provided to Beech and their attorney, but such an appeal was never filed.

In the meantime, technical responses were also being prepared to address hydrogeologic issues raised in the Beech appeal, including a “cursory review” by hydrogeologist Derrik Williams, as well as a variety of e-mail questions separately submitted by Beech or his attorney. An example is the August 2, 2011 letter by Fuerst (Exhibit 16-J) which addresses three key issues raised by Williams. This letter also notes a phone conference between District staff, consultants and Williams in July 2011 to clarify the District procedures, and the need for consistency with County and State procedures. The Williams letter is cited as Attachment E in the Beech appeal (Exhibit 16-B). In the cover letter, Williams describes his letter as a “cursory review” with no independent analysis of data. He specifically states, “Note that my opinions are not based on a thorough review of the report or re-analysis of the data included in the report.” On the conference call, Williams indicated that the review was quickly performed as he was leaving for vacation, and he did not have the time to contact District staff with questions or to seek clarification on certain procedures before he transmitted the letter to Mr. Beech.

In an August 5, 2011 e-mail, Director Markey requested that the July 11, 2011 appeal be referred to the Board, pursuant to Rule 71. Her concerns focused on:

· Fairness of timelines raised in the July 11, 2011 appeal,

· Completeness of the Flores and Pisenti WDS applications based on well testing protocol, and

· Ambiguity in MPWMD Rules and Regulations (Note: this issue is not addressed in this hearing; such issues are to be addressed by the Board in the future).

On September 19, 2011, pursuant to Rule 71 (Board referral), the Board voted to hear the substantive matters in the original appeal in a separate public hearing, which in essence is a review of the completeness of the application. This hearing was originally envisioned on October 17, 2011 unless a resolution (well test) was carried out by the parties before then.

On October 14, 2011, with the final agenda deadline looming, based on numerous e-mails from Beech and Bierman, District General Manager Stoldt advised the Board via e-mail that an October 17 test is scheduled and that a hearing in October 2011 should be postponed (and potentially cancelled) depending in the test results. The District’s understanding, based on dozens of e-mails exchanged by the parties in the previous weeks, and previous correspondence, is that the primary goal of Beech is to have his well monitored in October when the Flores and Pisenti wells are both tested simultaneously at 3 gallons per minute , thus trying to recreate the October 2010 situation with testing rates that would be closer to those actually approved by the District WDS permits.

In the October 14-17, 2011 timeframe (over a weekend), the District learned that Beech/Erickson wanted Flores and Pisenti to sign a written contract governing how the test will be conducted and require additional testing of each well individually to demonstrate their reliability. Flores and Pisenti refused to sign the agreement as they felt the additional request was redundant in that the adequacy of the two wells had already been approved by MPWMD and MCHD, and would preclude their right of due process. Beech denied permission to monitor his well unless the contract as written was signed; thus the test to commence on October 17 was cancelled. Because limited testing opportunities were available in November 2011, and further cooperation was unlikely, a hearing was then set for November 21, 2011.

On October 21 through 25, 2011, General Manager Stoldt asked Erickson/Beech why the well reliability re-testing is essential when Beech’s concern has been potential impacts to his well. Erickson replied that Beech will be vulnerable to possible “severe later impact” if the Pisenti Well #2 is approved and a large new house, guesthouse and pool are built next door, which would then remain standing if the well later failed. Mr. Stoldt asked for an explanation of how Beech would be harmed rather than the owner of the Pisenti parcel, and that land use concerns about home construction are not germane to the hydrogeologic issues that are regulated by the District via the WDS process. No response has been received to his question to date.

MPWMD Well Testing Procedures

The MPWMD Procedures for Preparation of Well Source and Pumping Impact Assessments, Revised May 2006 (“procedures”) are written for a technical audience and are provided in full on the District website at:

http://www.mpwmd.dst.ca.us/pae/wds/WDSPermits/WellAssessProcedures_ver3edit_14sep05.pdf .

Pertinent to Question #1, the procedures do not include a specific protocol for providing notice to neighboring well owners that they have the opportunity to have their well monitored during testing. They state that nearby wells shall be monitored when feasible, and provide direction on how to calculate impacts when monitoring is not available. The text for general well testing methodology (page 3) states:

6. Wells Monitored. In all cases, the production well that is being tested shall be monitored as described in this section. In addition, nearby wells in the expected area of influence of the pumping well shall be monitored where feasible. The District recognizes that it may not be feasible to monitor all nearby wells due to logistical constraints (e.g., availability, monitoring equipment access, pumping requirements, etc.). Accordingly, in cases where nearby wells are not available for use as monitor wells during pumping tests, and the reasons for this are clearly documented in the Assessment, data developed from the production well shall be used to the extent possible to support the required analysis and evaluation.

Specific steps are identified to be followed. However, page 5 of the procedures notes that other analytical methods not conforming to the procedures may be acceptable, but shall be approved in advance on a case-by-case basis (often via e-mail and/or phone consultation with the Water Resources Division Manager). It is not unusual for applicants’ hydrogeologists to request clarification or a slight variation on the procedures given the specific field situation for a WDS.

David J. Stoldt,

General Manager