ITEM:		ACTION ITEM
13.	CONSIDER ADOPTION OF RESOLUTION NO. 2013-12 TO TEMPORARILY SUSPEND SETTING OF SYSTEM LIMITS FOR FRACTURED ROCK WELLS THAT SERVE ONE PARCEL
Meeting Date:			July 22, 2013	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: Reviewed resolution on 7/2/2013
Committee Recommendation: The Rules and Regulations Review Committee met on July 15, 2013 and recommended that the full Board discuss the Resolution.
CEQA Compliance: N/A Not a “project”

SUMMARY: The Board will consider the adoption of Resolution 2013-12 (Exhibit 13-A), which directs MPWMD staff to temporarily suspend setting System Limits (production and connection limits) for onsite Fractured Rock Wells that serve only one Parcel until District Rules and Regulations that guide the Water Distribution System (WDS) Permit process can be comprehensively amended. This action would not suspend the rules guiding the WDS Permit process. This action is recommended now for four reasons: (1) District Counsel recently advised the General Manager that the District does not have authority to set WDS limits in for Fractured Rock Wells in absence of a declared overdraft or other physical or legal constraints; (2) District monitoring of Fractured Rock Wells indicate no adverse effects on Neighboring Wells or the Carmel Valley Alluvial Aquifer; (3) the Well testing season for new Wells in Fractured Rock is scheduled to begin on August 1, 2013, and extra steps required by the District are more costly; (4) a new ordinance to comprehensively amend the District’s WDS Permit process will take many months to enact; and (5) Monterey County review procedures to issue a Well Construction Permit are now similar to MPWMD procedures. More detailed information is provided in the “Discussion” section below. Capitalized terms are defined in MPWMD Rule 11.

This temporary one-year suspension is not considered to be a “project” under the California Environmental Quality Act because (a) it would not result in a direct physical change or reasonably foreseeable indirect physical change to the environment, and (b) the current permitting process for WDS will remain in effect (ref: Public Resources Code 21065). Any new ordinance that changes the WDS Rules will undergo a full CEQA analysis.]

RECOMMENDATION: District staff recommends that the Board of Directors adopt Resolution 2013-12 as it is consistent with the Board’s direction to make the WDS process more streamlined, more user-friendly, and reduce duplication among agencies. If approved, the Resolution would take effect immediately and last for one year, unless modified by another Resolution or ordinance before then. The Rules & Regulations Review Committee, at its July 15, 2013 meeting, on a vote of 2 to 0, recommended that the full Board discuss the Resolution at its July 22, 2013 meeting.

BACKGROUND: The Findings in Resolution 2013-12 (Exhibit 13-A) describe the District’s comprehensive authority to integrate management of the ground and surface water resources in the Monterey Peninsula area. This includes a written permit system to regulate WDS, regardless of the number of connections served or the source of the water supply. District Rule 11 defines the terms used in the regulation of WDS and Mobile WDS. District Rules 20, 21, 22, 40, 54 – 56, 60, 114 and 173 further define procedural and substantive rules that regulate these systems. The first regulation was enacted with Ordinance No. 1 in February 1980. Significant refinements, changes and additions to the WDS Rules and Regulations were adopted as part of Ordinance No. 96 on March 19, 2001. The WDS Rules were then refined through Ordinance No. 105 on December 16, 2002; Ordinance No. 106 on February 27, 2003; Ordinance No. 118 on December 13, 2004; Ordinance 122 on August 15, 2005; Ordinance 127 on July 17, 2006; Ordinance 128 on June 18, 2007; Ordinance 136 on August 18, 2008; Ordinance 145 on September 20, 2010; and Ordinance No. 150 on May 12, 2012.

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). The ordinances are provided at: http://www.mpwmd.dst.ca.us/ordinances/ordinances.htm.

The Board’s Strategic Plan Update, adopted on April 15, 2013, included a goal to evaluate and revise the Water Distribution System regulations, including: assess District interests and overall goals; identify benefits to the District and to customers; explore alternative programs; assess which target areas need most regulation; recommend amendments to rules; and consider more exemptions. The Board desired a more streamlined and “user-friendly” process. The agenda materials for the District’s adopted Strategic Plan Update are available on the District website at:

http://www.mpwmd.dst.ca.us/asd/board/boardpacket/2013/20130415/13/item13.htm.

DISCUSSION: The proposed Resolution 2013-12 focuses on Fractured Rock Well(s) that serve only the one Parcel on which the Well(s) is located. Rule 11 defines Fractured Rock as:

FRACTURED ROCK – “Fractured Rock” (sometimes referred to as “fractured bedrock,” “hard rock” or “consolidated rock”) refers to water-bearing formations with generally limited production and reliability as compared to the less consolidated mixture of sand, gravel, silt and clay that characterize fluvial (river-related) strata. Groundwater occurrence and movement within Fractured Rock formations are primarily controlled by the “secondary porosity” associated with the fracture openings, as compared to the “primary porosity” associated with the pore spaces between grains in the granular matrix of fluvial sediments. In the context of Water Distribution Systems regulated by MPWMD, “Fractured Rock” refers to non-fluvial source water located outside of the Carmel Valley Alluvial Aquifer or the Seaside Groundwater Basin. For applications where the water source is unclear, the General Manager shall determine whether the water source is Fractured Rock, based on Well drilling logs and other available hydrogeologic data pertinent to the application.

Rule 11 defines System Limits as:

SYSTEM LIMITS – “System Limits” means the System (production) and Expansion

(Connection) Capacity of a Water Distribution System.

System Limits are typically based on (a) the physical capacity of the Well to meet anticipated water demand, (b) effect on Neighboring wells, and (c) effect on Sensitive Environmental Receptors (such as the alluvial aquifer or certain streams).

For this specific setting, Resolution 2013-12 would direct the General Manager to suspend: (a) setting System Limits, (b) requiring hydrogeologic testing above and beyond the standard testing required by the Monterey County Health Department, and (c) other MPWMD staff activities relevant to setting a System Limit as described in the current MPWMD Implementation Guidelines for Water Distribution Systems. It is noted that County testing procedures are similar to District procedures in that a 72-hour test is required at a minimum flow rate of 3 gallons per minute, except fewer data are required to be collected and analyzed by a certified hydrogeologist.

The Resolution further directs staff to confirm each subject Well is a Fractured Rock Well by reviewing Well logs submitted with the Pre-Application Form for any Well within 1,000 feet of the Carmel Valley Alluvial Aquifer, or within 1,000 feet of Tularcitos, Hitchcock Canyon, Garzas, Robinson Canyon or Potrero Creeks.

This Resolution applies to both Pre-Application/Exemption Requests and Water Distribution System Permits that are pending approval by District staff in addition to any new Pre-Applications and Applications received during the term of the Resolution. It would not be retroactive to WDS Permits and Confirmation of Exemptions that have been already approved and recorded.

Need for Resolution Now

The process to evaluate current MPWMD Rules and Regulations, prepare an ordinance that proposes comprehensive revisions, conduct environmental review and adopt a final ordinance takes many months, and will likely not be completed before December 2013. However, the Well-testing season for domestic Wells in Fractured Rock runs from August 1 through October 31 of each year. MPWMD regulations, as currently written, could result in several thousands of dollars incurred for MPWMD–required evaluations above and beyond standard testing required by the Monterey County Health Department. Thus, a temporary suspension for Fractured Rock Wells would help reduce the financial burden to applicants as they prepare for the summer/fall 2013 testing season.

The focus on Fractured Rock Wells is because, in response to questions about the District’s authority to set System Limits for WDS in Fractured Rock, in May 2013 District Counsel advised the District that it does not have the authority to set baseline production limits for exempt, non-alluvial Wells within the District in the absence of evidence of overdraft. This conclusion was partially based on the correlative water rights doctrine, which gives equal standing among property owners overlying the water source. Staff asked Counsel to also address the District’s authority to set System Limits for non-exempt Fractured Rock Wells that must obtain a WDS Permit. In July 2013, Counsel advised the District that MPWMD does not have the authority to establish System Limits for non-exempt, non-alluvial Wells in the absence of evidence of some physical or legal constraint affecting a specific water body. If a water source is uncertain, the District has the authority to require additional hydrogeologic data pertinent to the application.

An overdraft has not been declared for the non-alluvial, non-Seaside Groundwater Basin areas in which Fractured Rock Wells are located. District staff has been monitoring Fractured Rock Wells for the past two years and has not observed adverse effects to neighboring Wells or the Carmel Valley Alluvial Aquifer. Also, nearly all of the hydrogeologic assessments submitted with WDS Applications to date have shown a lack of hydrologic connectivity between Wells. The District plans to continue its hydrogeologic monitoring program to assess if any adverse changes are occurring.

In addition, District staff recently confirmed that registered geologists at the Monterey County Water Resources Agency, working as consultants to the Monterey County Environmental Health Bureau (MCEHB), perform calculations on the potential of a Well to (a) adversely affect another neighboring Well, and (b) adversely affect instream flow of specified streams and creeks. This evaluation is performed as part of the permit process to receive a Well Construction Permit from MCEHB in compliance with Monterey County General Plan Policy 3.3. Monterey County is drafting an ordinance to codify this evaluation process. Thus, the County performs a similar function as the MPWMD assessments. It is noted that the County assessments are calculations before the Well is permitted, while MPWMD assessments are based on numerous data collected after the Well is drilled and tested, but a similar purpose is met.

Based on the above legal, technical and regulatory information, it is reasonable to conclude that (a) current MPWMD rules are too stringent for Fractured Rock Wells that serve a single Parcel; and (b) action is needed now to avoid unnecessary expenses for applicants testing Fractured Rock Wells on single Parcels in the 2013 summer/fall season. Additional legal review will be conducted on various multi-Parcel situations in Fractured Rock as part of the future comprehensive ordinance to amend WDS Rules and Regulations.

IMPACT TO DISTRICT RESOURCES: Resolution 2013-12 would somewhat reduce District staff workload for each WDS Pre-Application/Exemption Request and WDS Application that is based on Fractured Rock Wells in the near-term. The submittals must still be processed but time will not be spent assessing hydrogeologic testing results or reviewing historical water use that is needed to determine production limits. Permanent changes to workload will be based on new MPWMD Rules & Regulations that guide the revised WDS Permit process.

EXHIBITS

13-A Draft Resolution 2013-12

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