ITEM:		PUBLIC HEARING
13.	CONSIDER FIRST READING OF ORDINANCE NO. 150 AMENDING RULE 21-A -- NOTICING REQUIREMENTS FOR WATER DISTRIBUTION SYSTEM WELL CAPACITY TESTING
Meeting Date:			March 19, 2012	Budgeted:	N/A
From:			David J. Stoldt,	Program/	N/A
			General Manager	Line Item No.:	N/A
Prepared By:			Henrietta Stern, Project Manager	Cost Estimate:	N/A
General Counsel Review: approved 3/9/2012
Committee Recommendation: The Rules and regulations Review Committee, at its March 7, 2012 meeting, voted 2-0 to recommend approval of the ordinance.
CEQA Compliance: N/A Not a “project”

SUMMARY: The Board will consider approval of the first reading of MPWMD Ordinance No. 150 (Exhibit 13-A) that amends rules associated with the Water Distribution System (WDS) Permit application process. The proposed ordinance would amend Rule 21-A (WDS Applications) to require that Neighboring Well owners (as defined in Rule 11) be notified of an impending Well Capacity Test, and have the opportunity to have their wells monitored during the test. A reasonable effort to accommodate neighbors’ schedules must be made, and documentation of notice and responses by neighbors must be received by the District before the well test begins in order for it to be accepted by the District. This action is part of an overall review and refinement of the WDS Permit process, including the associated Implementation Guidelines, conducted by District staff with oversight by the Rules and Regulations Review Committee (RRCom). More detailed information is provided in the “Discussion” section below.

RECOMMENDATION: District staff recommends that the Board approve the first reading of Ordinance No. 150, shown as Exhibit 13-A. The Board should direct staff to prepare the “Noticing” component of the Implementation Guidelines, with review by the RRCom, prior to the effective date of the Ordinance. Assuming approval tonight and adoption of the second reading on April 16, 2012, the effective date would be May 16, 2012. The Board should clarify that the new rules refer to well testing beginning with the June-November 2012 testing season, and are not retroactive to applications in progress, where testing occurred in 2011 or earlier.

This simple notification requirement is not considered to be a “project” under CEQA. Thus, no CEQA documentation is needed.

BACKGROUND: MPWMD Rules 20, 21 and 22 form the heart of the WDS Permit process. Rule 20 states the WDS Permit is needed to create or amend a WDS, and lists a series of exemptions. Rule 21 focuses on the application itself, while Rule 22 focuses on the approval criteria. The MPWMD Rules & Regulations are provided on the District website at:

http://www.mpwmd.dst.ca.us/rules/2011/20111222/TOC.htm (click on desired rule).

Rule 21 refers to the “Implementation Guidelines” for more detailed information on the application process and requirements. The draft guidelines were originally approved by the Board in April 2001, when the original Ordinance No. 96 became effective, with the expectation that they would be revised over time as needed. The Board has provided policy guidance via a series of ordinances over the past 10 years; these rule changes also resulted in changes to the permit process. Staff has also provided clarifying guidance through a series of memoranda. At this juncture, the Implementation Guidelines are disaggregated into a series of technical and procedural documents and memos that may be found on the District website at:

http://www.mpwmd.dst.ca.us/pae/wds/wds.htm.

Staff plans to consolidate, update and refine the Implementation Guidelines in 2012. The topic of noticing and any other changes approved by the Board via ordinances and other action will be incorporated into the revised Implementation Guidelines. The RRCom has been charged with oversight of this process. The January 18, 2012 RRCom agenda packet has more detailed information on proposed changes and concepts at:

http://www.mpwmd.dst.ca.us/asd/board/committees/rulesregscomm/2012/20120118/0118agenda.htm.

The proposed ordinance is one of several steps recommended by staff and the RRCom to meet the following goals:

• inform neighbors of the potential new well and monitoring opportunity early in the WDS process;
• document noticing efforts by applicant and neighbor responses;
• inform neighbors of results of MPWMD staff review in a timely manner; and
• minimize adverse effects on staff resources and workload.

The wording of the ordinance also facilitates the ability of an appeal to be made earlier in the permit process and to resolve problems earlier as well. This goal was important to the RRCom members at their meeting of March 7, 2012.

DISCUSSION: MPWMD Rule 21-A, Application for Permit to Create/Establish a Water Distribution System, lists materials and information required for a WDS Application. As shown in Exhibit 13-A, Ordinance No. 150 would reorganize Rule 21-A, and add new Rules 21-A-2, 21-A-3 and 21-A-12 to require noticing of Well Capacity Tests and documentation of Neighboring Well owners’ responses as described in WDS Implementation Guidelines.

Specifically, the following changes would be made to Rule 21-A:

• Old Rule 21-A-1 is amended to remove the last few sentences.
• A new Rule 21-A-2 is added, which states:

2. Documentation regarding notification to Neighboring Well owners. Based on information provided by the District, the Applicant shall provide notice to Neighboring Well owners regarding the opportunity to monitor Wells as specified in the Implementation Guidelines. Applicant shall make reasonable efforts to accommodate the Neighboring Well owners’ schedules. Applicant shall provide documentation of the Neighboring Well owners’ responses, if any, to the District prior to the commencement of Well Capacity (Aquifer Pumping) Tests, as specified in the Implementation Guidelines.

• New Rule 21-A-3 adds back the sentences that were removed from Rule 21-A-1.
• Paragraphs are renumbered with no change to text.
• New Rule 21-A-12 is added, which states:

12. Documentation of notice to, and responses by, Neighboring Well owners regarding the opportunity to monitor Wells during Well Capacity (Aquifer Pumping) Tests as referenced in Rule 21-A-2.

The ordinance would also add the definition of “Neighboring Well” to Rule 11, Definitions:

NEIGHBORING WELL – “Neighboring Well” means a Well within 1,000 feet of a Well owned by the Applicant for a Water Distribution System Permit if the Applicant’s Well is located outside of the Carmel Valley Alluvial Aquifer, or within 300 feet of the Applicant’s Well if located within the Carmel Valley Alluvial Aquifer.

It is noted that the other capitalized nouns are already defined in Rule 11.

It is noted that the existing Rule 21-A-7 already refers to the Implementation Guidelines for guidance on well testing, and no changes are planned. It reads:

7. The results of Well Capacity (Aquifer Pumping) Tests for the duration specified by the Implementation Guidelines, the cost of which tests shall be borne by the Applicant, and which shall be observed by a District representative or agent;

Implementation Guidelines: The current Implementation Guidelines require notification of neighbors when feasible, but do not specify how and when neighboring well owners should be notified of a pending test and the opportunity to have their well monitored. With the approval of Ordinance No. 150, the WDS Implementation Guidelines will be amended to provide a section on notification and will attach forms and other specific guidance for use by the WDS applicant or their qualified consultant. The Implementation Guidelines would be changed to ensure consistency with the new rules and Board policy to better notify neighbors of impending tests of nearby wells. Examples of notification forms and process are provided in the January 18, 2012 RRCom agenda packet at:

http://www.mpwmd.dst.ca.us/asd/board/committees/rulesregscomm/2012/20120118/0118agenda.htm.

The general (non-technical) guidance for applicants should be amended to identify process steps and emphasize the need to start the WDS process earlier in the overall planning process for a project. The applicant will need to retain a qualified consultant earlier in their planning process in order for District staff to assess nearby well data, transmit pertinent information about neighboring wells and property owner contact information, prepare the notices for neighbors, and for the applicant to notify and coordinate with neighbors regarding well testing dates. Advance planning is needed to ensure that these tasks are completed, and documentation is provided to the District before the well testing commences. This should not be a problem for applicants who start well before the June 1 through November 30 well testing season, but time constraints could arise for applicants who begin their process in mid-summer or fall.

Given that the 2012 testing season starts on June 1, 2012 and the ordinance becomes effective on May 16, 2012, some timing issues could arise with this year’s applicants. Based on the Board’s action on first reading on March 19, 2012, District staff will endeavor to advise all current Pre-Applicants and consultants of the likely need to incorporate the extra notification steps into their well testing timelines, and to start coordination early.

Of note is the fact that some Pre-Applicants performed their well testing in summer and fall 2011, and have yet to submit their formal applications. As noted in the “Recommendations” section above, these applicants should not be subject to the new rules.

IMPACT TO DISTRICT RESOURCES: Ordinance No. 150 will entail additional time by District staff for each Pre-Application and Application, as more oversight is involved than at present. Thus, the Pre-Application and/or WDS Application fees should be increased via Rule 60 to cover these additional MPWMD staff tasks. The actual amount can be based on a few months experience with the notification process later this year. District staff and other direct costs will be captured at the end of the WDS Permit process, so this is not essential. However, the goal is to set the initial WDS fees to match the expected District costs as accurately as possible in order to minimize unexpected final fees at the end of the process.

EXHIBITS

13-A Draft Ordinance No. 150

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