EXHIBIT
3-A
ORDINANCE
NO. 138
AN ORDINANCE OF THE BOARD OF DIRECTORS OF
THE
MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT
TO RE-AUTHORIZE A WATER USER FEE TO FUND
AQUIFER STORAGE AND RECOVERY FACILITIES
AND RELATED WATER SUPPLY PROJECTS
1. The Monterey Peninsula Water Management
District (“District”) was created to address water problems in the Monterey
Peninsula area which the Legislature found required integrated management, and
was endowed with the powers set forth in the Monterey Peninsula Water
Management District Law (“District Law”), set forth in Chapter 527 of the
Statutes of 1977, West’s Water Code – Appendix, Section 118-1, et seq.
2.
The
District has general and specific power to do any and every lawful act
necessary in order that sufficient water may be available for present or future
beneficial use or uses, and to fix and collect rates and charges for the
providing or availability of any service as set forth in District Law, Sections
308, 325 and 326.
3.
California
American Water (“CAW”) is the Water Distribution System which provides water
from the Monterey Peninsula Water Resource System (“MPWRS”) to most residents
and businesses within the District. The
MPWRS includes the surface water in the
4.
The
Seaside Groundwater Basin is the underground water basin underlying the Seaside
Basin Area, corresponding to the Paso Robles aquifer, as illustrated in the
April 14, 2005, “Seaside Groundwater Basin: Update on Water Resource
Conditions” prepared by Gus Yates, Martin Feeney and Lewis Rosenberg (“Seaside
Basin Report”), at Figure E-1, Figure 1 and as discussed on page 18 of that
Report.
5. The annual quantity of groundwater that can be produced in the Coastal Subareas and the Laguna Seca Subarea of the Seaside Groundwater Basin without causing adverse effects, such as seawater intrusion, declining water levels, or land subsidence (characterized as “Safe Yield”) has been determined by the Superior Court in Monterey County in its final Judgment entered in California American Water Company v. City of Seaside (No. M66343). The Court’s Physical Solution, or a series of management actions required to reduce production of natural Basin water to its perennial safe yield, was initially set at 3,000 acre-feet per year. Steps include development of Aquifer Storage and Recovery, recycled water and other supplemental resources to inject or spread into the Basin; and potential pumping reductions from pre-Judgment levels of production in 10% increments every three years.
6.
The supply of water available to CAW in Water Year (WY)
2008 from the
7.
CAW is further limited in its ability to deliver
potable water by California State Water Resources Control Board (“SWRCB”) Order No. WR 95-10, dated
8.
The
District holds authority to manage and regulate use, reuse and reclamation of
surface and groundwater within its jurisdiction. It is charged with conservation and
augmentation responsibilities in addition to its responsibility to integrate management
of ground and surface water resources.
To this end, the District owns and jointly operates with CAW an Aquifer
Storage and Recovery (“ASR”) project which diverts excess flows from the
9.
The
District’s ASR project has artificially replenished groundwater supplies of the
Coastal Subarea of the
10.
The
District has determined that the ASR is needed to address and mitigate
potential adverse effects that may result from overproduction from the
11.
Related
components of the water supply project include future expansion of the ASR
project, and other facilities to increase water available to the CAW
system.
12.
The District regularly incurs expenses to create
and operate ASR, including but not
limited to operations and maintenance costs, and capital improvement
costs. ASR costs include planning,
specifications and engineering, site planning, and may include debt service. Operation and maintenance expenses include
costs of staff, consultants, rent, repair, replacement, rehabilitation, fuel,
power, electrical current, care, and supervision necessary to properly install,
operate and maintain ASR, and includes reserves needed to address reasonable
yet unanticipated contingencies such as emergencies and disasters.
13.
Expenses to maintain, repair, and facilitate the
ASR cannot be adequately funded without the water use fees authorized by this
Ordinance. ASR is necessary to protect
District water resources, satisfy water quantity and water quality
requirements, meet existing commitments for water demand, and provide sufficient water for present or
future beneficial use.
14.
In
addition to ASR activities, proceeds of the water use fee may also be allocated
to meet other water supply related expenses that confer benefit and/or service
to existing CAW Water Distribution System water users. These services include conservation,
rationing, irrigation, erosion control, mitigation, water supply planning, and
water augmentation program expenses such as planning for, acquiring and/or
reserving augmented water supply capacity, including engineering, hydrologic,
legal, geologic, fishery, appraisal, financial, and property acquisition
endeavors.
15. Based on reasonable and fair investigation, the District Board of Directors has determined that this water use fee is needed to fund ASR. The District budgeted ASR costs of $345,000 in fiscal year 2005-06, $2,630,000 in fiscal year 2006-07, $1,280,000 in fiscal year 2007-08, and $1,760,000 in fiscal year 2008-09. Actual capital expenditures through fiscal year 2007-08 totaled $2,391,700 and an additional $1,480,000 is budgeted for capital expenditures in fiscal year 2008-09, bringing total estimated ASR capital expenditures through fiscal year 2008-09 to $3,872,000. Ongoing ASR operation costs are estimated to be $275,000 per year. Authorization and extension of the CAW Water Distribution System in the amount of one and two tenths percent (1.2%) will generate approximately $525,000 per year. This is the portion that the District shall use to fund ASR costs, including capital expenditures and operating costs. This authorization shall result in a total use fee on the CAW water bill of 8.325%. The water use fee authorized and extended by this Ordinance is a fee imposed upon actual water use that varies by the amount consumed.
16. The District water user fee shall be equally applied to all water use categories, including residential, multi-residential, commercial, industrial, golf course and public agency water users.
17.
The Board of Directors finds that the water use
fees authorized and extended by this Ordinance shall not collect funds beyond
those required to maintain plant, equipment, facilities, supplies and personnel
necessary to provide water service, and that the charge to any specific water
user shall not exceed the proportional cost to provide or reserve water to that
water user.
18. This fee may not be used for any other purpose or to fund general governmental activities.
19.
Having made fair investigation into the facts
and circumstances requiring this Ordinance, each member of the District’s Board
of Directors finds the authorized and extended rates and charges are reasonable
based on his or her exercise of judgment and discretion.
20.
The need for ASR has been heightened by the lack
of legal CAW water supplies resulting from SWRCB Order WR 95-10, the listing of
the California red-legged frog and the steelhead trout as threatened species
under the federal Endangered Species Act (“ESA”), and the limitations on water from the Seaside Groundwater
Basin as determined by the Superior Court final Judgment in California
American Water Company v. City of Seaside.
21.
This Ordinance is exempt from CEQA pursuant to
CEQA Guidelines section 15273(a)(1) – Rates, Tolls, Fares, Charges. The Board of Directors determines and
declares that water use fee authorized and extended by this Ordinance is to
meet District operating expenses, including employee wage rates and fringe
benefits, consultant services, legal services and direct costs, including
permit processing, enforcement and associated litigation expenses. A Notice of Exemption shall be filed.
22.
This
Ordinance is intended to comply with the provisions of Article XIII D, §6(a)
of the California Constitution, as construed by the California Supreme Court in
Bighorn-Desert View Water Agency v.
Verjil, 39 Cal.4th 205 (2006) and as clarified by the Proposition 218
Omnibus Implementation Act (A.B. 1260 of 2007), codified in California
Government Code §53750 et seq.
23.
In
accord with the requirements of Article XIII D, §6(a) of the California
Constitution, and the Proposition 218 Omnibus Implementation Act (A.B. 1260 of
2007), codified in California Government Code §53750 et seq, the District mailed
notice of, and conducted a public hearing and protest proceeding on the user
fee proposed by this Ordinance on November 17, 2008. This hearing allowed property owners who use CAW
water within the District an opportunity to tell District officials their
thoughts, and to register protests, regarding the proposed re-authorization of
a portion of the existing District water user fee. Based thereon, the Board of Directors hereby
determines that a majority protest does not exist.
NOW THEREFORE be it ordained as follows:
Section One: Short Title
This Ordinance shall be known as the 2008 Aquifer Storage and Recovery (“ASR”)
and Water Supply Fee Ordinance of the Monterey Peninsula Water Management
District (“District”).
Section Two: Purposes
This Ordinance shall authorize and extend the
one and two tenths percent (1.2%) water use fee collected solely from CAW
system water users, factored upon actual water use and variable as to the
amount of water consumed in all subareas known as Northern Inland Subarea and
the Laguna Seca Subarea, and customers in CAW's Ryan Ranch, Hidden Hills, and
Bishop Units.
Proceeds of this fee shall fund District
water supply activities, including capital acquisition and operational costs
for present and future ASR purposes. In
addition to ASR activities, proceeds of this water use fee may also be expended,
in accord with Resolution adopted at the discretion of the District Board of
Directors, for other purposes that confer benefit and/or service to existing CAW
Water Distribution System water users.
These services may include conservation, rationing, irrigation, erosion
control, mitigation, water supply planning, water rights acquisition and water
augmentation program expenses.
Unexpended fee revenue in any single year may be placed in a reserve for
later use to fund expenses associated with planning for, acquiring and/or
reserving augmented water supply capacity, including but not limited to
engineering, hydrologic, legal, geologic, fishery, appraisal, financial, and
property acquisition endeavors.
Section Three: Fee
Implementation
This Ordinance shall authorize and
extend collection of the present water use fee in the aggregate amount of one
and two tenths percent (1.2%) of the Monterey District of CAW from each
customer’s current water bill. This
authorization results in a total District use fee applied to CAW water use of
8.325%.
Section Four: Publication
and Application
The provisions of this Ordinance
shall not cause amendment or republication of the permanent Rules and
Regulations of the Monterey Peninsula Water Management District. This Ordinance shall be read in conjunction
with and complement those provisions of the District’s Rules and
Regulations. All definitions used in the
District Rules and Regulations shall apply to this Ordinance.
This Ordinance shall take effect at 12:01 a.m. on the 30th day after it has been enacted on second reading. This Ordinance shall not have a sunset date, provided however, that fees set by this Ordinance shall not be collected to the extent proceeds exceed funds required to maintain plant, equipment, facilities, supplies, personnel and reasonable reserves necessary to provide water service.
So long as this water use fee is collected,
the Board of Directors shall hold a public hearing each calendar year in
connection with review of the annual District budget to review the amounts
collected and expended in relation to the purposes for which the fee is
imposed. The District shall require the
one and two tenths percent (1.2%) CAW user fee to sunset in full or in part unless
the Board determines that the purpose of the fee is still required, and the amount
of the fee is still appropriate. If the purpose had expired, the fee shall
be required to sunset. If the purpose
for the fee is determined to continue, but the amounts needed to fund that
purpose are decreased, the fee shall be reduced to that lesser amount.
Section
Six: Severability
If any subdivision, paragraph, sentence,
clause or phrase of this Ordinance is, for any reason, held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or enforcement of the remaining portions of this Ordinance,
or of any other provisions of the District Rules and Regulations. It is the District’s express intent that each
remaining portion would have been adopted irrespective of the fact that one or
more subdivisions, paragraphs, sentences, clauses, or phrases be declared
invalid or unenforceable.
On motion by Director
__________, and second by Director ____________, the foregoing Ordinance is
adopted upon this ______ day of ________________, 2008, by the following vote:
AYES:
NAYS:
ABSENT:
I, Darby W. Fuerst,
Secretary to the Board of Directors of the Monterey Peninsula Water Management
District, hereby certify the foregoing is a full, true and correct copy of an
ordinance duly adopted on the ________ day of _____________ 2008.
Witness my hand and
seal of the Board of Directors this ________ day of ____________ 2008.
Darby
W. Fuerst, Secretary to the Board
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