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POLICY ADVISORY
COMMITTEE/TECHNICAL ADVISORY COMMITTEE |
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DEVELOP RECOMMENDATION TO THE BOARD REGARDING BIFURCATING AMENDMENTS
TO THE CONSERVATION REGULATION TO DELAY REQUIREMENTS FOR HIGH EFFICIENCY TOILETS
AND REVISIONS THAT AFFECT TABLE 4: ULTRA-LOW CONSUMPTION APPLIANCE CREDITS |
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Meeting
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October 12, 2009 |
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General
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General Counsel Review: Counsel has reviewed the ordinance. |
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Committee Recommendation: The Water Demand Committee recommends the Board consider Ordinance Nos. 141-a and 141-b and delay consideration of Ordinance No. 143 until the State Water Resources Control Board has made a decision on the proposed Cease and Desist Order against California American Water. |
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CEQA Compliance: This
ordinance is Categorically Exempt under CEQA. |
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SUMMARY: Amendments to Regulation XIV were reviewed by the Policy Advisory Committee (PAC) and Technical Advisory Committee (TAC) on September 4, 2009. At that time, the joint committee recommended that the Board delay consideration of first reading that was scheduled for September 21, 2009. The committee also recommended that staff solicit further public comment, including placing an ad in the paper, contacting the Monterey Commercial Property Owner’s Association, and providing additional notification of the relationship of the ordinance to the potential reduction in the number of available water credits.
In response to the PAC/TAC requests, staff made numerous contacts during the past month, but has not received any notable comments. Most comments received have been positive and related to the thorough vetting of the ordinance and the helpful relationship of the proposed Non-Residential revisions to the proposed expansion of the Rebate Program. Some concern about the reduction in the number of possible water credits was received from the Monterey County Association of Realtors, but this concern was not raised to the Board level during the public hearing on the ordinance at the September Board meeting.
The draft ordinance was discussed under Action Items at the September 2009 Board meeting. A public hearing was a part of the action. The Board noted the potential reduction of credits for the voluntary installation of water saving fixtures that become mandated by the proposed ordinance and referred the ordinance back to committee (Water Demand Committee and PAC/TAC) for further discussion.
The Water Demand Committee met and discussed the ordinance on October 1, 2009. The committee requested that the comprehensive Regulation XIV revision be split up, with the proposed revisions that impact Residential Water Credits delayed until after the State Water Resources Control Board (SWRCB) takes action in October 2009 on the pending Cease and Desist Order. Staff has accommodated this request, and will present two ordinances to the Board for consideration of first reading on October 19, 2009.
DISCUSSION: The PAC/TAC has two ordinances to consider recommendations for:
1. Ordinance No. 141-A (Exhibit 3-A) updates the conservation regulation with clarifying language and removes outdated requirements. It adds Non-Residential retrofit requirements that must be achieved by the end of 2012 (three years), and adds a requirement for water efficient pre-rinse spray valves by July 2010. The proposed revisions add a requirement for Rain Sensors upon Change of Ownership and Change of Use when an automatic irrigation system is installed, but Rain Sensors do not qualify for a Water Credit. Changes proposed to the New Construction or Change of Ownership/Change of Use requirements for Residential uses do not currently qualify for Water Credits. Non-Residential credit requires a Site-specific water use and savings analysis by a third party and may still be considered pursuant to Rule 25.5. Water Credits granted pursuant to Rule 25.5 expire after ten years (longer for Redevelopment Agency Sites). Water Credits for implementing Non-Residential retrofits addressed in the ordinance will be allowed until the mandate applies on December 31, 2012.
Draft Ordinance No. 142 adds landscape requirements for New Construction of New Structures and for extensive landscaping renovations that are triggered by a permit requirement of the Jurisdiction. This ordinance complies with Assembly Bill (AB) 1881, adopted September 28, 2006, which requires that local jurisdictions adopt landscape requirements by January 1, 2010, that are at least as effective as the State Model Water Efficient Landscape Ordinance (MWELO). The MWELO was approved by the Office of Administrative Law (OAL) on September 10, 2009. Further discussion of this requirement will take place at the PAC/TAC meeting, and a copy of AB 1881 and the MWELO are attached as Exhibits 3-B and 3-C.
2.
Ordinance No. 141-B (Exhibit 3-D) is the complete
revision to Regulation XIV, Water Conservation, and includes all of the above, plus
it includes additional water efficient technology requirements for New
Construction of New Structures, Remodels and modifications, and Change of
Ownership/Use. This version of the
Regulation XIV amendments was discussed at the September 4, 2009, PAC/TAC
meeting.
The reason for the two versions of the revisions to Regulation XIV is
the effect the proposed conservation revisions have on the availability of
Water Credits, particularly as water from Jurisdiction’s allocations are
expended, the regulatory restrictions continue/increase, and no new water
supply is anticipated in the near-term that would loosen the current
limitations. Without water from a Jurisdiction’s allocation, Water Use Credits and
On-Site Water Credits (Rule 25.5) are essentially the only means to add water
fixtures in a home or to expand the square-footage or use in a Non-Residential
use. The proposed revisions to
Regulation XIV are intended to reduce consumptive use of potable water. This action benefits the community and the
environment. The benefit to the
community of reduced demand should be carefully weighed against the benefit
allowed by the reuse of saved water.
Residential credit is based on the Fixture Unit value and a specific list of water fixtures available for credit and their value is listed in Table 4: Ultra-Low Consumption Appliance Credits. Non-Residential credit must be documented through a more rigorous procedure outlined in Rule 25.5-F-4-d. Water Permits based on new technology are issued with conditions that require a Jurisdiction to agree to a debit to its allocation if the reduced consumption is not achieved. Because of limitations in data available to the District, the long-term accuracy of Residential water savings assumptions is not available. Savings could be greater (or less) than expected. By continuing to allow credit for wasteful water use and the associated potential reuse of the savings defeats the legislated function, mission and vision of the District.
Rule 25.5-B disallows Water Use Credits for water savings resulting from mandatory District programs, including water savings resulting from the fixtures/appliances required by the District’s New Construction, Remodel/Addition, Change of Ownership and Change of Use retrofit requirements. Rule 25.5-B is quoted below:
“Water savings resulting from mandatory District programs, including water savings resulting from the installation of Low Water Use Plumbing Fixtures Mandated by the District, shall not result in a Water Use Credit. Such savings shall be set aside as permanent water conservation savings essential to the District’s 15 percent conservation goal approved by the Board in March 1984.”
It should be
noted that the District and California American Water received funding of
around $3.5 million for 2009-2011 to reduce water use on the
In 2006, when the Board considered Ordinance No. 125, there was discussion about the appropriateness of allowing savings to be reused. At that time, during review of the ordinance with respect to the Superior Court decision in SOCR v. MPWMD (H029242), legal counsel identified several areas of the proposed ordinance that could be vulnerable to challenge during the adoption process. A legal opinion was submitted on July 7, 2006 by District Associate Counsel that indicated that the proposed modifications to Rule 25.5 did not conflict with the court’s determination. However, a confidential follow-up memo was distributed to the Board on July 11, 2006, with a second follow-up memo on July 11, 2006. The July 11, 2006 memo suggested that further review of Rule 25.5 should be conducted. It was further discussed in a memorandum to staff dated August 1, 2006. At that time, staff took the position that water savings beyond the retrofits required by Regulation XIV could be reused.
To ensure achievement of conservation savings, Ordinance No. 125 (adopted September 18, 2006) added two provisions to Rule 25.5: First, new language was added to Rule 25.5-B: “Water savings resulting from mandatory District programs, including water savings resulting from the installation of Low Water Use Plumbing Fixtures Mandated by the District, shall not result in a Water Use Credit. Such savings shall be set aside as permanent water conservation savings essential to the District’s 15 percent conservation goal approved by the Board in March 1984.” Second, the ordinance was amended to include a provision that when actual water consumption records are used to assess a Water Use Credit (in the case of non-residential retrofits), and when the project applicant cannot demonstrate that the credit site has continuously met the District’s mandated conservation requirements for the entire water use record, the District will reduce the water savings estimate by 15 percent to meet the original intent of the conservation goal.
The most recent version of the State Water Resources
Control Board (SWRCB) Cease and Desist Order (CDO), the recently-approved
conservation budget adopted by the California Public Utilities Commission
(CPUC), and recent correspondence from the Regional Water Quality Control Board
clearly expect ongoing and escalating water conservation programs on the
It is apparent from these three sources that the District’s proactive conservation program, including the proposed expansion and revisions, is necessary for the continued well-being of the community during our current water supply crisis. It is also apparent that the the reuse of water savings associated with mandated retrofits should be disallowed. However, staff acknowledges that there are limited circumstances that may justify the addition of water fixtures, such as the second bathroom provision.
RECOMMENDATION: The PAC and TAC should make a recommendation to the Board on its consideration of the three versions of the proposed Conservation Regulation revisions.
EXHIBITS
3-A Draft Ordinance No. 140-A
3-B AB 1881
3-C Model Water Efficient Landscape Ordinance
3-D Draft Ordinance No. 141-B
U:\staff\word\committees\pactac\2009\20091012\03\item3.doc
[1] September 8, 2009 response by Roger Briggs, Executive Office, California Regional Water Quality Control Board, Central Coast Region, to Initial Study and Notice of Intent to Adopt a Mitigated Negative Declaration for the Rancho Del Robledo Water Distribution System in Carmel Valley.