ITEM:		PUBLIC HEARING
14.	CONSIDER APPEAL OF STAFF DETERMINATION TO AUTHORIZE PERMIT FOR FLORES (Well #1) WATER DISTRIBUTION SYSTEM, APPLICATION #20110401FLO ON APN 103-071-002 AT 564 MONHOLLAN ROAD, CARMEL
Meeting Date:			August 20, 2012	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: At an appeal hearing in November 2011, the Board determined that the Flores and Pisenti Water Distribution System (WDS) applications were complete, which enabled District staff to continue processing the applications. On July 12, 2012, District staff authorized issuance of MPWMD Permit #S12-03-L2 for the Flores WDS and MPWMD Permit #S12-04-L2 for the neighboring Pisenti WDS, pursuant to District Rule 22. Though the two applications have a shared history, the Board will hear two separate agenda items for the two permits to avoid confusion. The Flores WDS Permit authorization package is provided as Exhibit 14-A, which includes a Staff Determination plus five exhibits, as follows:

1. Original application form;

2. Hydrogeologic review by District consultant, Pueblo Water Resources;

3. Draft Findings of Approval approved by District Engineer (General Manager designee);

4. Draft Permit, including Conditions of Approval, site map and Indemnification Agreement; and

5. Notice of CEQA Exemption.

The Staff Determination in Exhibit 14-A summarizes the administrative history, hydrogeologic testing conclusions, and the rationale for the WDS Permit authorization. Careful review of this exhibit is suggested as this staff review contains several references to it.

Pursuant to District Rules 70 and 71, the District received a referral for both the Flores and Pisenti permits from Director Markey in July 2012, as shown in e-mails provided as Exhibit 14-B. The District also received an appeal by David and Judy Beech (Beech or Appellant) for both the Flores and Pisenti WDS Permits, dated August 1, 2012 (Exhibit 14-C). Exhibit 14-D provides a map that shows the Flores, Pisenti and Beech parcels and wells.

Rule 70 requires that the appellant “specify in writing the grounds upon which it is taken, and shall reference the provision of these Rules and Regulations which have been violated.” The full text of these rules is provided on the District website at: http://www.mpwmd.dst.ca.us/ (click on “Rules and Regulations,” then desired rule number).

Markey Referral: According to District Counsel, the two issues identified by Director Markey in Exhibit 14-B are:

1. Whether or not notice to the neighboring property owner provided an adequate opportunity to have that well tested (thus, will the well have an adverse effect on a neighbor's well)? [associated with Rule 22-C-5]

2. Whether or not a conclusion can be supported that sufficient water exists (a health and safety issue if there is insufficient reliable water) to enable the well to be permitted?  [associated with Rule 22-B-5]

These are the only issues to be reviewed under the Markey referral because District rules require a specific assertion of matters to be raised on appeal.

Beech Appeal: The Beech appeal dated August 1, 2012 (Exhibit 14-C) addresses both the Flores and Pisenti permits. In summary, the stated grounds for appeal include:

1. Failure to monitor impact on neighboring wells;

2. Failure to comply with documentation requirements for drawdown and recovery;

3. Denial of due process during the original appeal process in 2011; and

4. Lack of evidence to support Findings of Approval #6, #9, #11 and #12 (Exhibit 14-A3).

The appeal did not identify which District Rules were violated. The four concerns above relate primarily to Rules 22- B and 22-C.

The requested relief in the appeal is for the Flores and Pisenti Wells to be tested again concurrently pursuant to MPWMD procedures, and that the Beech Well should be monitored during this time. Specifically, the requested relief in the appeal (page 4) is the following:

A. The Flores Well #1 and Pisenti Well #2 shall be fully tested again “pursuant to MPWMD procedures” and not “some ad hoc partial test.”

B. Well #1 and #2 should be tested concurrently in October to replicate 2010 conditions and assess the combined effect on the Beech Well. Concurrent testing would also reduce the number of days Beech could not use his well during the testing. [Note: Concurrent testing of two wells on separate parcels is not consistent with District procedures.]

C. A 95% recovery within six days shall be demonstrated by actual measurements of wells #1 and #2 rather than estimates. [Note: This request somewhat conflicts with Request #1 as it does not follow District procedures].

D. Well capacity shall be determined by the actual pumping rates chosen for the tests, with no use of estimates. [Note: This request conflicts with Request #1 as it does not follow District procedures.]

Beech requests that the $750 appeal fee be waived in light of “issues of public interest.” Rule 70 allows the Board to take such action.

Suggested changes to District rules and procedures are not part of this hearing, and do not apply to an applicant’s compliance to the rules and procedures in place at the time of application. It is noted that the recently approved Ordinance No. 150 improves future notification for Neighboring Well Owners of the opportunity to be monitored during a well pumping test, and enables better communication earlier in the WDS process.

Some of the issues in the referral and appeal were already resolved by the Board in its action on November 21, 2011, and will not be addressed again in this hearing. The “Discussion” section below addresses the components of the referral and appeal. It includes a memorandum from the District Water Resources Division Manager, Joe Oliver, about certain assertions or calculations in the appeal related to hydrogeology that are incorrect (Exhibit 14-E).

The District also received a communication from the applicant’s hydrogeologist, Aaron Bierman, which is provided as Exhibit 14-F. This provides 2011 well monitoring data and new 2012 data showing lack of connectivity between the Flores/Pisenti Wells and the Beech Well. This submittal also includes a previously submitted timeline of events and letters from the Monterey County Health Department regarding the adequacy of supply for the two wells.

The Flores and Pisenti applications have an extensive administrative history. Please refer to the District website for previous Board action in September and November 2011 at:

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

http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20111121/16/item16.htm. Also refer to the overview in the July 2012 Staff Determination in Exhibit 14-A.

RECOMMENDATIONS: The Board has several options for action. Rule 71-C states the Board must “consider the record and such additional evidence as may be offered, and shall find whether, in its opinion, an error was made” by staff. The Board “may affirm, reverse, or modify the action appealed as it deems just and equitable…” Similarly, Rule 70 states, “The Board may deny, approve or continue any appeal. The General Manager shall notify the appellant and/or Applicant within ten (10) days in writing by mail of the Board action taken; namely continuance, approval, conditional approval, or denial.”

The applicants’ right of due process compels the District to show that any finding of adverse impact or permit denial is based on scientific evidence in the record. The allowable evidence for this hearing is site specific to the subject parcels. Thus, concerns or information about hydrogeologic issues in other parts of the District or Monterey County are not allowable evidence in this hearing.

Based on the hearing record, the Markey referral and Beech appeal, the General Manager recommends that the Board consider each of the following options, in descending order of preference, and select one. The Board should direct staff to prepare Findings in support of the Board’s choice to be included in the Consent Calendar of the September 17, 2012 meeting.

Option 1- Approval of Permit: Extensive evidence supports affirmation of Permit S12-03-L2 as written (Exhibit 14-A) for the Flores WDS (Well #1), which means denial of the appeal. Primary reasons include: (a) previous action and substantive determinations by the Board on November 21, 2011 about the completeness and adequacy of the application, including well monitoring evidence that showed no hydrogeologic connection between the Beech Well and the Flores and Pisenti Wells, confirmed again in 2012 (Exhibit 14-F); (b) lack of scientific evidence showing a potential adverse impact to the Beech Well; (c) lack of new evidence since the November 21, 2011 hearing to support permit denial; (d) inaccurate assertions by the Appellant about the calculations used for assessment of reliable supply; and (e) the Appellant’s apparent misunderstanding of, or disagreement with, State of California, County of Monterey and District standards used for well pumping tests are insufficient grounds. Stated concerns about existing procedures and rules, and how they should be improved, are separate issues. These reasons are more fully explained in the “Discussion” section below.

Option 2- Approval of Permit with Added Special Condition: At both the September 19 and November 21, 2011 hearings, several Board members stated a desire for actual monitoring of the Beech Well during a pumping test to conclusively demonstrate a lack of impact and cleanly resolve this issue. As described in the November 21, 2011 agenda package, a mutually agreed upon test appeared to be scheduled for mid-October 2011, but negotiations between the parties broke down over the type and extent of testing, and other legal issues. The appeal requests concurrent retesting of the Flores and Pisenti Wells in October.

As noted in Option 1 above, the scientific evidence available does not compel a re-test, but at one time, all parties agreed such a test would be an effective means to address concerns about impacts to the Beech water system. If the Board prefers this option, Permit S12-03-L2 would be issued with an additional Special Condition #27 that requires testing of Well #1 prior to issuance of the MPWMD Water Permit for a proposed structure (needed for a building permit). The test results would be reviewed by MPWMD to confirm no significant adverse effect to the Beech Well before a Water Permit is issued.

Testing to assess supply reliability would not be required as this has already been demonstrated. The District would waive its normal procedure for separate tests and allow Flores Well #1 to be tested in conjunction with Pisenti Well #2 in order to minimize the number of days Beech could not use their well. The standards provided in the Implementation Guidelines for Ordinance No. 150 would be used regarding notice and timing of the test. The District Water Resources Division Manager would have authority to specify the specific well-testing protocol, and the test would not be bound by the requests in the appeal. If Beech does not provide permission to monitor the well pursuant to Ordinance No. 150 timelines, Special Condition #27 would be waived. The well testing period is between June 1 and November 30. The appeal requests testing in October; staff believes the driest three months (September-November) is reasonable. Potential text for Special Condition #27 is provided in the “Discussion” section below. It is noted that the estimated cost for each applicant to carry out this condition would be over $10,000, or over $20,000 total. There is also the potential for litigation by applicants due to perceived violation of due process rights.

Option 3- Continue Consideration of Flores Permit Hearing Until Well Testing Occurs: This would be similar to Option 2, except that no action on the Flores WDS Permit would be taken by the Board until a test is performed that confirms lack of adverse impact to the Beech Well. The same restrictions and protocol described in Option 2 would be in place. From the applicant’s perspective, this would be a de facto approval of the Beech appeal, with some refinement and greater oversight by District staff. The Board would need to specify the rationale for such action, which is not supported by the technical evidence in the record. There is also the potential for litigation by applicants due to perceived violation of due process rights.

Option 4- Overturn Staff Authorization for Flores WDS Permit: This option would deny the Flores WDS Permit without prejudice, meaning Flores could return with a new WDS Permit Application under the District rules, protocols and fees that exist at the time of application, including the noticing requirements of Ordinance No. 150. This action would be granting the Beech appeal, except the changes in District procedures or the interpretation of hydrogeologic data suggested by Beech would not necessarily be in place in the future.

This option would require development of Findings of Permit Denial to be adopted at a subsequent Board meeting. The Board would need to specify the rationale for such action. This may be difficult as no substantive evidence exists to deny the Flores WDS Permit, based on the Board’s previous determinations in November 2011 and lack of new substantive information since then. Assertions by the Appellant based on speculation, problems in other geographic areas, misunderstanding of hydrogeologic information, and incorrect use and interpretation of hydrogeologic formulas do not support this option. There is also the potential for litigation by applicants due to perceived violation of due process rights.

Staff does not have a recommendation regarding the Beech request that the $750 appeal fee be waived as that is a Board policy decision. Rule 70 directs that:

Upon hearing the appeal, the Board shall also have the discretion to reduce and rebate in full or in part the fee for appeal otherwise set by Rule 60 if the Board finds that the appeal has provided a significant benefit to the public and/or the environment or in unusual matters.

BACKGROUND: A detailed background and timeline is provided in the November 21, 2011 agenda package, available on the District website at:

http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20111121/16/item16.htm.

An abbreviated overview is provided under the “Administrative Notes” section of the Staff Determination (Exhibit 14-A). It is noted that the issues regarding the compliance of the Beech and Anastasia wells described in November 2011 have been resolved. Exhibit 14-D provides a map of the relevant parcels and wells:

Ø “Flores Well #1” on parcel APN 103-071-002

Ø “Pisenti Well #2” on parcel APN 103-071-019

Ø “Beech Well” on APN 103-071-007.

Exhibit 14-D incorporates the lot line adjustments approved by Monterey County in June 2011, which are memorialized in the Record of Survey dated November 10, 2011 (Vol 31 Sur Pg 97).

Additional information received after the printing deadline and before the hearing date will be provided in a supplemental packet at the August 20, 2012 Board meeting.

Notice of the staff administrative decision on July 12, 2012 (Exhibit 14-A) was immediately posted on the District website under “Appealable Decisions.” Also, courtesy copies of the permit package and appeals information were electronically provided to the applicants, Beech and attorney, and Board members. The District mailed hearing notices to property owners within 300 feet of the Flores and Pisenti parcels, and staff posted hearing notices on Monhollan Road.

DISCUSSION: This section reviews the referral and appeal, and clarifies which concerns are germane to this hearing and which are not. The referral and appeal occasionally refer to perceived flaws or suggested changes to District Rules or procedures, which are not the subject of this hearing. Rather, the application is judged based on District Rules and procedures at the time of application. Exhibit 14-E addresses key misunderstandings or inaccuracies contained in the appeal about technical issues.

Issues Previously Addressed by Board: Some matters raised by the referral and appeal have already been addressed by the Board at its November 21, 2011 meeting, when it determined that the Flores and Pisenti applications are “complete,” and will not be addressed again. The November 21, 2011 staff note explained that a “complete” determination means that the applicant properly followed MPWMD procedures for well testing that existed at that time, and submitted adequate information needed to make required Findings of Approval specified in Rule 22. Specifically, the staff conclusions confirmed by the Board in November 2011 include:

Ø Testing of the Flores and Pisenti wells in October 2010 did not have an adverse effect on the Beech WDS based on available evidence;

Ø Well testing procedures to assess supply reliability were properly followed;

Ø Well testing procedures to assess impact to neighboring wells were initially not properly followed in 2010, but were corrected as feasible in 2011.

Review of Referral and Appeal Components: The following table briefly summarizes the issues in the referral and appeal, and notes which were addressed previously by the Board and which are germane to this hearing.

DOCU-MENT	PAGE	ISSUE	PAST ACTION	NOTES (8/20/2012 Hearing Topics in Bold)
Referral	Pg 1 top	1. Lack of notice to neighboring well owner re: monitoring	11/21/2011	Lack of notice in 2010 was corrected as feasible in 2011
Referral	Pg 1 top	2. Lack of monitoring of Beech well means there could potentially be an impact	----	8/20/2012 hearing topic: Is retesting in October necessary to assess impact to Beech or is evidence adequate?
Referral	Pg 1 top	3. Conclusion of adequate supply was based on a formula rather than actual testing data.	----	8/20/2012 hearing topic: Was data properly collected during testing to show adequate supply?
Referral	Pg 1 top	4. Approval process contained [unspecified] flaws	5/21/2012	Ord 150 approved to clarify noticing; revisions to procedures planned
Appeal	Pg 1	5. Request waiver of $750 fee for appeal as in the public interest	----	8/20/2011 hearing topic: Should appeal fee be waived?
Appeal	Pg 2 top	6. Cites efforts to enable well monitoring in 2011	11/21/2011	Board addressed history of interaction and disagreement between parties regarding conditions under which Beech would allow monitoring
Appeal	Pg 2 top	7. Concern that homes constructed on Flores and Pisenti parcels might run out of water and deprive Beech of water rights	11/21/2011	Inadequate supply to Flores or Pisenti homes would not deprive Beech of water rights given lack of connectivity between wells
Appeal	Pg 2 bottom	8. History re Beech well pump “running dry” coincident with well testing	11/21/2011	Agenda materials note additional factor of then-unlawful multi-parcel system and Anastasia well impact
Appeal	Pg 3 top	9. Requests October 2012 retest to replicate October 2010, and more convincingly assess impact	----	8/20/2012 hearing topic: Same as Issue #2 above.
Appeal	Pg 3 top and middle	10. Concern re low recovery and precedent for future applications; concern re “grossly erroneous” technique)	11/21/2011	Applicants properly followed procedures in place at that time; refining procedures is a separate topic. For 8/20/2012 hearing, Joe Oliver addresses misconceptions in Exhibit 14-E.
Appeal	Pg 3 mid, bottom	11. Failure to notify and monitor neighboring wells; due process concerns	11/21/2011	Board determined application was complete and applicants corrected initial noticing mistake as feasible
Appeal	Pg 4 top	12. Unsupported Finding #6 re accordance with rules	11/21/2011	Application deemed complete
Appeal	Pg 4 top	13. Unsupported Finding #9 re impacts to neighboring wells	----	8/20/2012 hearing topic: Same as Issue #2 above.
Appeal	Pg 4 top	14. Unsupported Finding #11 re reliable source	----	8/20/2012 hearing topic: Does data support finding of adequate supply?
Appeal	Pg 4 top	15. Unsupported Finding #12 re cumulative impacts	----	8/20/2012 hearing topic: Does evidence indicate potential for adverse cumulative impacts?
Appeal	Pg 4 bottom	16. Requested Relief #1—Retest wells per MPWMD procedures	----	8/20/2012 hearing topic: Should wells be retested for supply and impact?
Appeal	Pg 4 bottom	17. Requested Relief #2—Retest wells simultaneously in October	----	8/20/2012 hearing topic: Should wells be tested together in October?
Appeal	Pg 4 bottom	18. Requested Relief #3— Demonstrate 95% recovery in 6 days via actual measurement	----	8/20/2012 hearing topic: Should test procedures be altered as requested?
Appeal	Pg 5 top	19. Requested Relief #4— Determine well capacity by actual pumping rates rather than estimates	----	8/20/2012 hearing topic: Should test procedures be altered as requested?
Appeal	Pg 5 + P6 top	20. Time line of events Oct 2010 to Nov 2011	11/21/2011	Issues already addressed in hearing before MPWMD Board
Appeal	Pg 6 top	21. Additional concerns about noticing issues and compliance with procedures	11/21/2011	Board determined application was complete and applicants corrected initial noticing mistake as feasible
Appeal	Pg 6	22. Asserts inadequate drawdown and recovery documentation [based on incorrect calculations]	11/21/2011	Applicants properly followed procedures in place at that time; refining procedures is a separate topic. For 8/20/2012 hearing, Joe Oliver addresses incorrect calculations and misconceptions about testing in Exhibit 14-E.
Appeal	Pg 7 top	23. Concerns re due process relating to 2011 appeal	11/21/2011	Board already determined application is complete and followed procedures

Beech Appeal Exhibits: The appeal refers to, but does not attach, several exhibits. Nearly all are found in the November 21, 2001 agenda materials.

8/1/2012 APPEAL EXHIBIT	CONTENTS	PREVIOUS LOCATION FOR REFERENCE
A	MPWMD well testing procedures	11/21/2011 packet, pages 140-148 or website at: http://www.mpwmd.dst.ca.us/pae/wds/WDSPermits/WellAssessProcedures_ver3edit_14sep05.pdf
B	Beech appeal of July 11, 2011	11/21/2011 packet, pages 105-121, plus exhibits on pages 122-155; or website at: http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20111121/16/item16_exh16b.pdf
C	Map of wells within 1000 feet	11/21/2011 packet pages 101; or website at: http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20111121/16/item16_exh16d.pdf
D	June 24, 2011 letter from Darby Fuerst	11/21/2011 packet pages 123-130; or website at: http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2011/20111121/16/item16_exh16b.pdf
E	July 2012 Findings of Approval for Flores and Pisenti	In August 20, 2012 agenda packet, Findings are third attachment in Exhibit 14-A for Flores and Exhibit 15-A for Pisenti
F	Bierman report for Flores Well #1, March 2011	Hard copy or CD available for review at District office; or see Bierman report for Flores Well #1
G	Bierman report for Pisenti Well #2, March 2011	Hard copy or CD available for review at District office; or see Bierman report for Pisenti Well #1

Substantive Issues for Review in 2012: The following paragraphs address the substantive issues in the Markey referral and Beech appeal. To save resources, the reader is referred to the District website as much as possible regarding materials already reviewed by the Board. Some documents are reprinted again herein for clarity. The referral and appeal elements in the tables above can be broken down to the following two key questions and topics:

Key Question 1: Should the Flores and Pisenti Wells be retested in October to confirm lack of impact to Beech Well and adequate supply before a WDS Permit is issued?

Topic A: Is retesting necessary to assess impact to Beech Well or is evidence adequate to show a less than significant effect?

Topic B: Was data properly collected during testing to show adequate supply?

Topic C: Is retesting necessary to demonstrate an adequate supply or does existing evidence support a finding of adequate supply?

Topic D: If retesting is needed, should MPWMD test procedures be altered as requested in the appeal?

Answer #1: The General Manager and technical staff believe the evidence in the record supports WDS Permit approval without a retest based on the evidence in the record. No new evidence has been brought forth in the 2012 referral or appeal to change this conclusion. Thus, Option 1- Permit Approval, is the first recommendation.

A. The lack of hydrogeologic connectively between the Flores/Pisenti Wells and the Beech Well was demonstrated by a total of four weeks of monitoring in 2011 and 2012 (Exhibit 14-F). That data, in conjunction with the calculations using District protocol, indicate that retesting with monitoring of the Beech well is not necessary.

B. Contrary to the referral assertion (see Issue #3 in summary table above), supply adequacy was based on collected data during a 72-hour pumping test in October 2010, not simply a formula. The data were properly collected. It is noted that all well testing involves calculations based on data collected as an industry practice. 

C. The data support a finding of adequate supply. The Monterey County Health Department also approved both wells for the intended residential use (letters part of Exhibit 14-F). The testing methods are the same as used by all other wells that have received a WDS Permit. The appeal makes inaccurate conclusions and calculations based on an incomplete knowledge of hydrogeology, as explained in Exhibit 14-E. The Appellant is not a hydrogeologist and appears to lack knowledge of key hydrogeologic principles.

D. As explained in Exhibit 14-E, MPWMD testing procedures should not be altered as recommended by the appeal. Even if they should, such changes would not be retroactively applied to the WDS Permits in question. However, the text of District procedures could be refined to foster better understanding by the non-technical reader. The professional hydrogeologists regularly communicate with the District Water Resources Division Manager if there are procedural questions, and receive direct guidance from him regarding interpretation of the procedures text.

The above conclusions are based on technical information, evidence in the record, and due process rules.

If the Board feels strongly that a retest to confirm lack of impact is needed, Option 2- Add Special Condition of Approval, may also be considered. The possible text of the Special Condition #27 appears below:

Special Condition #27: Prior to issuance of a MPWMD Water Permit for structures on the subject Parcel, testing of Flores Well #1 shall be performed in the September 1 - November 30 period pursuant to MPWMD procedures in place at the time of testing, and reviewed by MPWMD to confirm there is no significant adverse effect to the Beech Well. Testing to assess supply reliability is not required as this has already been demonstrated. Flores Well #1 shall be tested in conjunction with Pisenti Well #2. The District Water Resources Division Manager shall have the authority to specify the specific well-testing protocol if there are questions about the current protocol as written. If owners of the Beech Well do not provide permission to monitor the well pursuant to Ordinance No. 150 timelines, this Special Condition shall be waived.

From the applicants’ perspective, a key issue for Option 2 is the $20,000 estimated cost for both Flores and Pisenti to carry out this condition, which may be considered onerous given the time and money spent to date. In phone conversations, the applicant has asserted that such retesting would be punitive given the body of evidence which supports permit approval, and their unsuccessful attempt to work with Mr. Beech in 2011.

Key Question 2: Should the appeal fee be waived?

Answer #2: This is a policy decision for the Board to determine whether the appeal has provided a significant benefit to the public and/or the environment or in unusual matters.

Hearing Does Not Address Adequacy of MPWMD Rules and Procedures: In previous hearings on this matter, and in the 2012 referral and appeal, various opinions have been expressed about the adequacy of State, County or District rules and procedures regarding water well testing and analysis. Importantly, the issue of what the District rules or procedures should be is not the subject of this hearing. This hearing addresses whether or not the District rules and procedures in place at the time of application were properly followed and/or if an error was made by staff in authorizing the subject WDS Permit.

Previous Board Determination that Application is Complete: At the November 21, 2011 hearing, the Board determined that the Flores and Pisenti applications were “complete,” that is, the information provided by the applicant met the requirements of Rule 21 (Applications) and provided adequate information to enable staff to make the findings and conclusions described in Rule 22 (Action on Application). The basic questions raised in 2011 were:

1. Did testing of the Flores and Pisenti wells in October 2010 have an adverse effect on the Beech WDS (i.e., loss of tanks storage in the Beech WDS) that would indicate a future impact if the Flores and Pisenti WDS permits are approved? Staff determined that

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?

The Board action confirmed staff recommendations about the following topics:

Q1, Adverse Impact to Beech WDS During Testing: No scientific evidence existed to support the contention that reduced tank storage was caused by the October 2010 well pumping tests. The well monitoring evidence available indicates that there is not a direct hydrogeologic connection between the Flores/Pisenti wells and the Beech well. There was also possible influence by other wells/irrigation of parcels that could have played a substantive role in the October 2010 tank dewatering.

Q2A- Proper Procedures for Well Reliability: The applicants properly followed District procedures for well reliability, as interpreted by the District staff person and consultant who wrote them. The Monterey County Health Department (MCHD) also determined that the subject wells are reliable to meet their respective residential needs. The District’s protocol is consistent with California Drinking Water regulations that guide recovery of wells.

Q2B- Proper Procedures for Impact on Nearby Wells: In October 2010, the applicants did not properly follow District procedures for well impact assessment in that neighbors were not given notice regarding the opportunity to have their wells monitored during the well pumping test.

Q3- Corrective Action: The applicants followed District staff and Board directions in 2011 to correct the October 2010 well monitoring notice inadequacy. A potential retest in July 2011 was rescheduled to mid-October 2011 after the September 2011 Board hearing on this issue. A retest did not occur within the June-November 2011 window due to disagreements between the parties, resulting in Beech not granting access to monitor his well. Thus, full correction is not feasible. The applicants properly followed District procedures to be used when well monitoring data are not available.

Question 4- Complete Application: The Board determined that the Flores and Pisenti applications were complete based on the weight of evidence. Direct monitoring of the Beech well would provide the best resolution to concerns about impact. The applicants tried to follow the District staff and the Board’s instructions to correct the October 2010 well monitoring deficiencies, but could not monitor the Beech well in 2011 without his permission. Mr. Beech’s refusal to allow access was partially tied to land use issues that are not in the District’s jurisdiction.

Given the Board’s action in November 2011, these issues are not being re-heard in August 2012 unless there is substantive new evidence in the record.

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 .

At the time of the application, the District procedures did not include a specific protocol for providing notice to neighboring well owners of the opportunity to have their well monitored during testing. The procedures stated 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) stated:

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.

Improvements to the MPWMD Procedures are being addressed by the Rules and Regulations Review Committee. For example, the Board passed Ordinance No. 150, effective June 20, 2012, to provide much more detailed guidance to applicants, consultants and Neighboring Well Owners regarding the opportunity to have their wells monitored during a pumping test.

EXHIBITS

14-A Staff Determination, including five exhibits supporting Permit #S12-03-L2

14-B Director Markey referral (print of e-mail exchange)

14-C Beech appeal of staff action dated August 1, 2012

14-D Map of Flores, Pisenti, and Beech parcels and well locations

14-E Memorandum from Joe Oliver responding to Beech technical requests

14-F August 6, 2012 submittal from Aaron Bierman, including well monitoring graphs

U:\staff\Boardpacket\2012\20120820\PubHrng\14\item14.docx