2. DISCUSS PROPOSED MODIFICATIONS TO ORDINANCES 96 AND 105 REVISING THE DEFINITION AND REGULATION OF WATER DISTRIBUTION SYSTEMS
Meeting Date: June 3, 2004 (R&RRC) Budgeted: N/A
Staff Contact: Henrietta Stern Cost
Estimate: N/A
General Counsel Approval: Not reviewed as of May 26, 2004
Committee
Recommendation: The Rules &
Regulations Review Committee discussed this item on June 3, 2004 and
recommended ______________________.
CEQA Compliance: Needed to
pursue new ordinance with substantive changes.
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SUMMARY: District
staff will provide an historical overview of MPWMD Rules and Regulations governing water distribution systems (WDS),
including registration and metering of wells, and provide concepts for
potential changes to streamline the permit process while continuing to protect
water resources. The California
Environmental Quality Act (CEQA) requirements for a new ordinance will also be
reviewed.
RECOMMENDATION: The Board should discuss the regulatory concepts presented herein, and provide direction regarding preparation of materials for formal Board consideration at a future meeting. At its June 3, 2004 meeting, the Rules & Regulations Review Committee recommended that _________.
BACKGROUND AND HISTORY:
Since the District was created in 1978, the District has approved a series of
ordinances, beginning with Ordinance No. 1 in 1980, that created or amended
MPWMD Rules and Regulations that govern WDS within the District as well as
metering and registration of wells. Ordinances since 1988 are briefly
summarized below:
Ø Ordinance No. 31, adopted January 11, 1988. Enacted the MPWMD well registration and reporting requirements. Allowed well owners three options to report water usage: (1) land use method (parcels less than 2.5 acres only); (2) power consumption method; or (3) water meter method.
Ø
Ordinance
No. 48, adopted March 12, 1990. Deleted the power consumption method of
reporting for large wells, and required water meters for those wells.
Ø
Ordinance
No. 56, adopted November 25, 1991. Required that all medium,
large and new wells be measured and reported by the water meter method.
Ø Ordinance No. 96, adopted March 19, 2001. Expanded requirements for a permit to create a WDS. Single-parcel systems within the Carmel River Alluvial Aquifer, 1000 feet from the alluvial aquifer and specific tributaries, and the Seaside Basin Coastal Subareas as well as some previously exempted multiple-parcel systems need a WDS permit.
Ø Ordinance No. 105, adopted December 16, 2002. Changed and refined Ordinance No. 96 requirements, including a WDS permit required for all wells within Carmel River Basin (watershed) located within the MPWMD boundary.
Ø Ordinance No. 106, adopted February 27, 2003. Revised fee structure to ensure that the WDS permit program is self-funded. Set a standard of $70 per hour for all MPWMD staff time.
In April 2001, the District Board approved
draft Implementation Guidelines, including a Supplement to the Guidelines,
which provide guidance on the water distribution system permit process, and
include worksheets, information sheets, an application form and other relevant
information. At its July 15, 2002 meeting, the Board authorized additional
refinements to the Guidelines recommended by staff.
Current
Status
Since
Ordinance No. 96 was adopted, staff has processed nine (9) permit applications;
all were eventually approved, with conditions that varied with the complexity
of the project. The approved permits
include seven single-family parcels, one multiple-parcel (4 or fewer lots), and
one major subdivision application.
Twenty requests for written Exemption Confirmation letters were also
completed, along with numerous oral confirmations that a parcel is outside of
the regulatory area for single-parcels.
Currently, there are eight active pending applications, including five
single-parcel applications (residential, agricultural and a church) and three
multiple-connection systems. Three
applications that were deemed as incomplete appear to be inactive, and will be
confirmed in the near future. Several
inquiries regarding potential new applications have been received in the past
2-3 months.
The District
well registration program currently tracks water use in 44 water distribution
systems. In water year 2003 (October 1,
2002-September 30, 2003), there were 996 registered wells, with 696 active and
257 inactive (and 43 unknown).
Ninety-nine percent (99%) of the groundwater production within the
District was reported by the water meter method and 95% of registered well
owners reported their water production.
Concepts for
Streamlining WDS Permit Process
Based on the
nine permits processed to date, the current permit process takes a minimum of
roughly 25-35 staff hours and 2-4 months between receipt of an application and
final approval, depending on the type and complexity of the application. At the request of the Board Chairperson,
staff has proposed modifications to current regulations that would lessen
impact to property owners and reduce staff effort, while continuing the
District’s mandate to protect water resources and the environment.
Staff recommends a new process whereby all owners of new wells permitted by the Monterey County Health Department (or other types of systems), except for specific situations that would be exempt, submit an application form that briefly describes key characteristics of the property and proposed uses so that a rough estimate of water use can be made. Based on this first screening, the application would be assigned as Level 1, 2, or 3, which reflects the level of scrutiny needed. The level of regulation is proportional to anticipated impact and sensitivity of the geographic area. A basic assumption is that the higher the water use, the higher the potential impact. In short, the four types of action include:
Ø
Exempt from
MPWMD Rule 20
Ø
Level 1, Permit
Waiver -- permit issued but no system limits set
Ø
Level 2, Staff
Permit – staff sets system limits and other conditions; no public hearing
Ø
Level 3, Public
Hearing – Staff hearing officer or MPWMD Board, depending on situation.
The four
types of action are described in more detail below.
Selection Criteria:
Placement in one of the three levels will depend on the
characteristics, or combination of characteristics, of an application. These factors can include:
Ø
Geographic
area, such as inside or
outside the alluvial aquifer; based on environmental sensitivity of the area,
or similar compelling reason such as water rights, overdraft etc.
Ø
Size of lot, with a cut-off assumption that less than
"x" acres is low impact.
Ø
Purpose of
use, such as single-family
residential, or commercial or agricultural.
Ø
Number of
parcels/connections, that
is, single-parcel versus multiple parcel.
Ø Type of water, that is, subpotable (agricultural/irrigation only) versus potable (domestic drinking water supply).
Ø
Relation to
Cal-Am, that is, is a
property inside or outside the Cal-Am service area, and is it already served by
Cal-Am. Until SWRCB Order 95-10 is
resolved, the District does not wish to encourage situations where a private
system may fail, leading to a petition for Cal-Am service. It is notable that applicants who are
drilling a well in non-alluvial situations to avoid high Cal-Am bills to
irrigate gardens and livestock would reduce direct diversions by Cal-Am from
the alluvial aquifer.
A rough estimate of anticipated water use and potential impact would be
based on the factors above. Following
are proposed characteristics for each of the four action levels. In the
discussion below, the term “parcel” means an existing legal lot of record (see
Rule 11), and refers to a residential setting unless noted otherwise. The term “subdivision” means creation of new
legal lots.
Exemption/No Permit Needed:
Staff would continue to screen all Monterey County well construction permits sent to the District to assess whether an MPWMD WDS permit is needed. Properties that meet all of the following criteria would not need an MPWMD WDS permit:
Ø one or two parcels totaling less than 2.5 acres;
Ø location outside of the Carmel River Basin and Seaside Basin;
Ø location not within the Cal-Am service area (or not served by Cal-Am as a remote meter).
Ø may be potable or non-potable supply.
Level l, Permit
Waiver
Level 1 is geared toward anticipated low impact use such as single-family residential situations on a small lot in a non-sensitive area as described below. A Permit Waiver would be issued with a basic set of assumptions that must hold true, or the waiver is invalid. No production or connection limits would be set. The well must be registered and metered, and report use annually. There are three subcategories for Level 1: residential less than 2.5 acres; residential 2.5 to 10 acres, and commercial/industrial use with less than 1 AFY anticipated water use. For each subcategory, all criteria must be met in order to be classified as Level 1.
Ø One or two parcels totaling less than 2.5 acres within the Carmel River Basin, but more than 1,000 feet from any other well, named tributary, alluvium or other designated receptor. If potable supply, must be outside Cal-Am service area; non-potable supply can be within Cal-Am.
Ø One or two parcels totaling 2.5 to 10 acres, outside of the Carmel River Basin and Seaside Basin. If potable supply, must be outside Cal-Am service area; non-potable supply can be within Cal-Am.
Ø Commercial/industrial use of any parcel size with estimated water use less than 1 AFA; outside of the Seaside Basin; if within Carmel River Basin, must be more than 1,000 feet from any other well, named tributary, alluvium or other designated receptor. May not be within Cal-Am service area.
Level 2, Staff Permit
Level 2 would be similar to the Corps of Engineers "Nationwide
Permit," where the process is streamlined for situations that meet certain
criteria. There would be no public hearing, but there would be a production and
connection limit associated with a permit, along with other conditions, as
determined by staff (General Manager or his/her designee). Additional information from the applicant, such as a hydrogeologic
study, and analysis by staff (or consultant, if needed) may be required in
certain situations, such as location of a well within 1,000 feet of certain
named creeks known to support habitat for sensitive species. Water rights are not a key issue as Level 2
permits are for parcels outside the Carmel River Alluvial Aquifer.
Level 2 would
apply to all situations other than Exemption, Level 1 or Level 3. Level 2
involves situations where potable supply is provided by Cal-Am.
Level 3, Public
Hearing
Level 3 would entail formal notice and a public hearing before the MPWMD Board or staff Hearing Officer, depending on the situation. Level 3 is very similar to the current situation. Hearings before the Board would be reserved for larger, potentially controversial projects, and/or well location within known sensitive areas such as the Carmel River Alluvial Aquifer. The following criteria apply to Level 3:
Ø Any application within Carmel River alluvial aquifer (except for single-parcel system with SWRCB Domestic Registration or riparian rights demonstrated; becomes Level 2). Goes to Board if one or two parcels with total acreage over 10 acres.
Ø Any application with 3-4 parcels totaling over 2.5 acres (Board level only if within alluvial aquifer).
Ø Any application involving 5 or more parcels is at Board level.
Ø Any subdivision of any size; Board level if within alluvial aquifer, or 3+ lots involved.
Ø
Any commercial/industrial application using more than 1
AFA is at Board level.
This proposed structure would expand the MPWMD “regulatory net” in sensitive areas, but streamline it in many others. Staff believes it is a reasonable compromise to focus staff and Board attention on situations that require the most oversight and could cause the most impact to the community water resources.
An example of expanded regulation is the need for a Level 2 permit for single parcels within all areas of the Seaside Basin, not just the Coastal Subareas. This reflects the recent hydrogeologic work in the Laguna Seca Subarea as well as other Basin-wide issues. Also, Level 1 or 2 review is needed for larger (over 2.5 acres) single-parcel systems in areas other than the Carmel River and Seaside Basins. Currently, no permit is needed for these two types of uses.
Examples of a more streamlined process (Level 1 or 2, depending on the situation) is that a public hearing would not be required for (a) two-parcel systems outside of the alluvial aquifer; (b) 3-4 parcels with total acreage less than 2.5 acres outside of the alluvial aquifer; and (c) multi-parcel commercial situations with expected water use less than 1 AFA outside of the alluvial aquifer. Currently, all these situations would require a public hearing before the MPWMD Board. Under the proposed concept, staff would handle these applications administratively.
A sliding scale fee structure is proposed as follows, based on staff’s best estimate of actual time need to process the permit, follow up on conditions, and track use annually. The staff hourly rate is $70 per hour; fees may be rounded for simplicity.
Ø Basic Application/Screening: $50 for review and determination of level.
Ø Exemption Confirmation: $50 for written Confirmation of Exemption, provided upon request (not required).
Ø Level 1: $300 to review application, provide Permit Waiver with Conditions, track use.
Ø Level 2: $1,500 application fee, assuming 20 hours as base, plus County CEQA Exemption fee, etc. Charge at $70 per hour (over 20 hours) and all other expenses for more complex cases similar to Ordinance No. 106.
Ø Level 3: $2,500 application fee, assuming 35 staff hours as base. Charge $70 per hour for all time over 35 hours as well as actual legal and consultant costs (See Ord. 106).
Staff has noticed that the current Rules and Regulations do not reflect the importance of remaining within the production limit set as part of the permit conditions; text revisions to the Rules and Regulations (example: Rule 40-C) should be made to make this more clear. The Rules and Regulations should also clearly state what happens when a system goes over its limit, and describe options available (or required) to correct the situation.
In a related matter, the Rules and Regulations should clearly state the process of enforcement and penalties associated with the need to obtain a permit, including characterization of the proposed water distribution system. Currently, the emphasis is on revocation of losing a permit if conditions of approval are not carried out.
Staff has delayed revising the Implementation
Guidelines until changes to the Rules and Regulations are finalized. A major effort is needed to create
procedures manuals for staff as well as worksheets and booklets for applicants,
and put all relevant information on the District website. Additional staff should be trained to help
applicants rather than the few individuals who now answer nearly all questions.
Case law has determined that creation of an ordinance may be considered a “project” under CEQA. Previous Ordinances No. 96, 105 and 106 complied with CEQA via a Categorical Exemption or via a Negative Declaration. It is assumed that an Initial Study will be circulated for a new ordinance with any substantive change (excludes text solely for clarification or changes that result only in a fiscal effect). Depending on the extent and impact of the changes, an EIR could be required. Staff’s initial assessment is that the concepts described above could be covered under a Negative Declaration, as there are adequate safeguards to protect environmentally sensitive areas.
IMPACT ON RESOURCES:
Implementation of Ordinances No. 96 and 105 has increased District staff
workload. Each week, District staff
consistently receives many requests for assistance regarding WDS regulations
from property owners, real estate agents and agency staff. Each permit
application processed to completion to date has taken roughly 25-35 hours
minimum of total staff time, more if complex hydrologic issues are
involved. A consultant has assisted
District staff on a regular basis since April 2003 in order to ensure that the
tight timelines associated with the State Permit Streamlining Act are met. To date, the staff members most affected by
the water distribution system regulations are the Water Resources Division
Manager (registered hydrogeologist reviews technical data) and Project Manager
within the Planning and Engineering Division (permit processing and CEQA review).
The fee structure associated with Ordinance No. 106 has helped enable the WDS
permit program to be self-funding; staff recommends that the existing fee
structure be continued.
The multi-level revisions described above were developed to address concerns
about regulatory impact to the “small” property owner, increase efficiency, and
continue to properly manage and protect sensitive water resources.
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