ITEM:		PUBLIC HEARING
19.	CONSIDER FIRST READING OF ORDINANCE NO. 158 -- AN ORDINANCE TO AMEND RULE 28-B TO ESTABLISH THE JURISDICTION AS LEAD AGENCY FOR EVALUATION OF A WATER USE CREDIT TRANSFER AND TO ALLOW APPROVAL OF AN APPLICATION BY THE GENERAL MANAGER
Meeting Date:			November18, 2013	Budgeted:	N/A
From:			David J. Stoldt,	Program/	N/A
			General Manager	Line Item No.:
Prepared By:			Stephanie Pintar	Cost Estimate:	N/A
General Counsel Review: Completed
Committee Recommendation: On November 6, 2013, the Water Demand Committee (2-1 vote) referred this ordinance to the Board
CEQA Compliance: This ordinance is not a “project” according to CEQA Guideline §15378 (b) (5)

SUMMARY: Draft Ordinance No. 158 (Exhibit 19-A) amends District Rule 28-B, Property-To-Property and Property-To-Jurisdiction Transfers of Water Use Credits for Commercial and Industrial Uses. The proposed amendments designate California Environmental Quality Act (CEQA) lead agency status to the land use Jurisdiction to review a proposed Water Use Credit transfer. The lead agency must undertake CEQA review and make a determination and findings before referring a transfer application to the District (the responsible agency). The ordinance contemplates that final review occurs by the General Manager. All decisions are appealable to the Board of Directors pursuant to Regulation VII.

CEQA Guidelines, Article 4, §15050 states: “Where a project is to be carried out or approved by more than one public agency, one public agency shall be responsible for preparing an EIR or negative declaration for the project. This agency shall be called the lead agency.” The Jurisdiction, as the land use agency, must approve a Water Credit transfer prior to consideration of a transfer by the District (Rule 28-B-4). As the Jurisdiction must act before the District, it is appropriate that the Jurisdiction assumes lead agency status.

Section 15050 (b) of the CEQA Guidelines states: “the decision-making body of each responsible agency shall consider the lead agency’s EIR or negative declaration prior to acting upon or approving the project. Each responsible agency shall certify that its decision-making body reviewed and considered the information contained in the EIR or negative declaration on the project.” The “decision-making body” is defined in the CEQA Guidelines as person or group of people within a public agency permitted by law to approve or disapprove the project at issue. As proposed, the General Manager serves as the decision-maker and is required to consider the adequacy of the lead agency’s evaluation prior to making a determination. Should the documentation be found inadequate, the General Manager may deny the application. Any decision made by the General Manager is appealable to the Board.

If this process is adopted, staff would work with the Jurisdictions to develop guidelines to ensure that adequate review of the effects on the water supply are conducted before referring the transfer to the District. After an application is referred to the District by the Jurisdiction, staff would review the CEQA analysis and the transfer application for completion and compliance with the remaining provisions of Rule 28 before making a determination on the transfer.

The proposed ordinance is not a project under CEQA and is therefore not subject to CEQA evaluation. CEQA Guideline §15378 (a) defines a “project” as an action that has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The proposed amendments to Rule 28 do not contemplate approval of any transfer, and does not meet the “project” definition according to CEQA Guideline §15378 (b) (5) which states: “Organizational or administrative activities of governments that will not result in direct or indirect physical changes to the environment.” This ordinance does not approve a Water Credit transfer.

To assist with review of this ordinance, the current text of Rule 28 is provided as Exhibit 19-B and a list of Rule 11 Definitions relevant to the ordinance are included as Exhibit 19-C.

RECOMMENDATION: The Board should receive public comment and consider the first reading of Ordinance No. 158.

EXHIBITS

19-A Draft Ordinance No. 158

19-B Existing Rule 28

19-C Definitions

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