ITEM:		PUBLIC HEARING
12.	CONSIDER SECOND READING AND ADOPTION 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:			December 9, 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 12-A) amends District Rule 28-B, Property-To-Property and Property-To-Jurisdiction Transfers of Water Use Credits for Commercial and Industrial Uses to designate that the Jurisdiction must review a Water Use Credit transfer application as the lead agency under the California Environmental Quality Act (CEQA). The Jurisdiction (lead agency) must make a determination and findings before referring a transfer application to the District (the responsible agency). The ordinance contemplates that final review and approval/denial is completed 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.” District Rule 28-B-4 requires that the Jurisdiction, as the land use agency, approve a Water Credit transfer prior to consideration of the application by the District. As the District rule requires the Jurisdiction to act first, it is appropriate that the Jurisdiction take the 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 District’s 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. Again, decisions of the General Manager are appealable to the Board.

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 do 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.

A letter was received from attorney Molly Erickson on behalf of Save Our Carmel River (SOCR) prior to the November 18, 2013 Board meeting (first reading of Ordinance No. 158). Ms. Erickson questioned the District’s CEQA determination on the ordinance and the ability of a Jurisdiction to adequately review a project’s effects on the environment as a whole. Ms. Erickson also expressed concern about notification of decisions and the cost to appeal a decision of the General Manager. District counsel reviewed the letter. Counsel advises that the Board may continue with consideration of adoption of Ordinance No. 158.

In response to Ms. Erickson’s concern regarding notification of decisions and the cost of appealing a decision: Determinations of the General Manager are posted every Friday at the District’s office and on the District’s website. There is also a quarterly report on credit transfers. In addition to appeals submitted by the public, any member of the Board of Directors may refer an appealable subordinate decision to the Board of Directors within 21 days for review on the basis that the determination affects, impacts, or deals with matters of general policy of the District, or may have a significant environmental, economic, or physical impact on a District facility or service. There is no charge for a Board member appeal. As a matter of discretion in determining the outcome of an appeal, the Board may decide to refund the appeal fees paid by a member of the public.

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

EXHIBIT

12-A Draft Ordinance No. 158

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