EXHIBIT 2-D
Concepts for Ordinance No. YY, Impact-Based Assessment of WDS
Approved
by the Board on August 16, 2004
(Updated April 2005 refinements are in strikeout
and bold italics)
OVERVIEW:
Staff was directed to develop proposed modifications to current regulations to streamline the WDS permit process to reduce unnecessary staff effort and lessen financial impact to property owners with less anticipated environmental impact, while continuing to protect water resources and the environment. The concept described in the following paragraphs is termed an “impact-based” review of water distribution systems. A new Ordinance No. YY would codify the concepts described below. It is envisioned that a CEQA Initial Study/Negative Declaration would be circulated for public review prior to the first reading of the ordinance.
Staff recommends a new process whereby all owners of new wells permitted by Monterey County (or other types of non-well systems), except for specific applications defined as exempt, submit an application form to MPWMD that briefly describes key characteristics of the property and proposed uses so that a rough estimate of water use and/or potential impact can be made.
Based on this first screening, the application would be assigned as Exempt, Level 1, Level 2, Level 3, or Level 4. The level of regulation is proportional to anticipated impact based on the sensitivity of the geographic area, size of parcel, number of parcels served, proximity to other existing wells, and whether the application is residential or non-residential. In short, the five types of action include:
Ø Exempt from MPWMD Rule 20 to obtain WDS
permit (ministerial action).
Ø Level 1, Permit Waiver – simplified permit
issued; no system limits set (discretionary).
Ø Level 2, Staff Permit – staff sets system
limits and other conditions; no public hearing; can be appealed to General
Manager and Board (discretionary).
Ø Level 3, Staff Public Hearing – Staff hearing
officer makes decision; can be appealed to Board (discretionary).
Ø Level 4, Board Public Hearing – Board makes
decision (discretionary).
The determination of whether an application is Exempt or Level 1
through 4 will depend on the characteristics, or combination of
characteristics, of an application. The
characteristics are intended to give a general estimate of water use and
potential impact. These factors can
include:
Ø
Land
Use Type, such as
single-family residential, commercial or agricultural.
Ø
Number
of parcels/connections, that
is, how many parcels are served by the water system.
Ø
Size
of lot, for example, larger
lots are assumed to have the potential for greater water use, especially in
residential use. Due to the intensity of
possible water in a small space, lot size is not as an important factor in a
commercial setting. The lot acreages
should be consistent with other MPWMD and Monterey County regulations.
Ø
Geographic
area/location, such as
inside or outside the Carmel Valley Alluvial Aquifer (alluvium) or Seaside
Groundwater Basin, based on the environmental sensitivity of the area and
similar compelling reasons such as threatened species, critical habitat,
water rights, overdraft, etc. The
proximity of the proposed well or other facility to major Carmel River
tributaries, alluvial aquifer boundaries or the Pacific Ocean shoreline (reflecting
seawater intrusion potential) is reflected. The proximity to
existing wells is also important.
Ø Relation to Cal-Am, that is, whether or not a property is
inside or outside the Cal-Am service area, and is already served by
Cal-Am.
There is no distinction between a potable
(domestic drinking water) and non-potable (agricultural/irrigation only)
supply. The reason is that the quantity
of water being extracted out of the ground is the key factor in assessing
environmental effect, not how it may be treated and used by the property
owner. Also, a property owner on a
single parcel could initially apply for a non-potable well, ostensibly for
irrigation use only, and subsequently convert the well for potable use without
the knowledge of the County or District.
This scenario is of concern because, until SWRCB Order 95-10 is
resolved, the District does not wish to exempt system applications where a
private potable system may fail, leading to a petition for Cal-Am service. For this reason, any supply (potable or
non-potable) proposed within the “main” Cal-Am service area (within Monterey
Peninsula Water Resources System) begins at Level 2.
Following are proposed characteristics for each of the five 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 “new subdivision”
means a proposal to create new legal lots of record. For all applications, the well must be
properly registered and metered, and report use annually.
The definition of “Sensitive Environmental Receptors (SER)” referenced below is based on the following:
Ø The
1,000-foot delineation for the zone of influence of a well drilled in Carmel
Valley upland formations or other areas is based on extensive hydrogeologic
studies associated with the Santa Lucia Preserve EIR certified by Monterey
County in 1996. District staff members
were part of a peer review team for these studies, which offer the best
available information. An existing
well is included as a “sensitive receptor.”
Ø The Carmel Valley Alluvial Aquifer (alluvium) is delineated due to the water rights determinations in SWRCB Order 95-10.
Ø The listed tributaries described in Rule 20 include: Tularcitos, Hitchcock Canyon, Garzas, Robinson Canyon and Potrero Creeks. These creeks were selected because: (1) they reflect the majority of contributed streamflow to the Carmel River in the lower Carmel Valley; (2) portions of each stream are mapped as part of the alluvial aquifer; (3) they are regularly monitored by MPWMD staff (including stream gauges); (4) extensive baseline data currently exist; and (5) data for these tributaries are included in the District’s CVSIM computer model; and/or (6) they are known to support habitat for sensitive species. Other smaller, intermittent tributaries are not recommended to be listed because it would be difficult to make environmental findings about them based on evidence in the record.
Ø The Pacific Ocean shoreline is included to address potential seawater intrusion that potentially could be caused by a well within 1,000 feet of the mean high tide line, depending on the characteristics of the well.
The impact of a
proposed WDS on existing wells is also included as an important criterion. The
existing wells must be registered with the District and/or included in the
District well database at the time of application.
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. As shown in Exhibit 2-B, properties that meet all of the following criteria would be exempt from the requirement to obtain a WDS permit:
Ø one or two parcels totaling less than 2.5 acres;
Ø location outside of the Carmel River Basin and Seaside Basin (entire basin);
Ø location
not within the Cal-Am service area (or not served by Cal-Am as a remote meter);
Ø location
more than 1,000 feet from existing wells or SER as defined above.
Only a very limited number of properties and applications would qualify as exempt. Examples include certain areas within the Carmel Highlands, Aguajito/Jack’s Peak, and Highway 68 uplands (not within Laguna Seca Subarea). MPWMD action would be ministerial and exempt from the application of CEQA pursuant to Guidelines Sections 15268 and 15300.1.
Level l, Permit Waiver
Level 1 properties are distinguished from exempt properties by being located in the upland areas of the Carmel River watershed as shown in Exhibit 2-B. 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. Characteristics for Level 1 include:
Ø one or two parcels totaling less than 2.5 acres;
Ø location
in Carmel Valley Upland more than 1,000 feet from existing wells or SER
as defined above.
Ø location
not within the Cal-Am service area (or not served by Cal-Am as a remote meter).
MPWMD action would be discretionary but Level 1 applications would meet the criteria for a CEQA categorical exemption pursuant to Guidelines Section 15301 et seq. MPWMD would file a CEQA Notice of Exemption.
Level 2, Administrative
Permit
Level 2 would be similar to the Corps of Engineers "Nationwide
Permit," where the process is streamlined for certain types of
applications that meet specific criteria. There would be no public hearing, but
production and connection limits would be set, along with other conditions, as
determined by staff (General Manager or designee). The applicant
would need to provide a hydrogeologic assessment by a qualified consultant as
defined in Rule 21-A-9 as amended by Ordinance No. 118. Water rights are not a key issue because Level
2 permits are for parcels outside the Carmel River Alluvial Aquifer (see Exhibit
2-B). Level 2 is the minimum level of review for any application within the
main Cal-Am service area (Monterey Peninsula Water Resources System). MPWMD action would be
discretionary and Level 2 applications would be reviewed pursuant to CEQA.
Level 3, Hearing
Officer Review
Level 3 would entail formal notice and a public hearing before the MPWMD staff Hearing Officer, similar to the current regulatory setting. As shown in Exhibit 2-B, Level 3 applications reflect potential effects to SER such as the Carmel River Alluvial Aquifer and Seaside Basin (Laguna Seca and Coastal Subareas); larger parcels more than 1,000 feet from SER; and systems serving three or more parcels. All new subdivisions and commercial or industrial applications are either Level 3 or 4. A low-acreage new subdivision (less than 2.5 acres total) more than 1,000 feet from SER would be Level 3. A commercial/industrial application expected to use less than 1 AFY would be Level 3. MPWMD action would be discretionary and Level 3 applications would be reviewed pursuant to CEQA.
Level 4, MPWMD Board
Hearing
Level 4 would entail formal notice and a public hearing before the MPWMD Board, similar to the current regulatory setting. As shown in Exhibit 2-B, hearings before the Board would be reserved for larger, potentially controversial projects, and/or wells located in or within 1,000 feet of SER. New subdivisions of any size in SER areas are Level 4. A commercial/industrial application expected to use more than 1 AFY in Carmel Valley would be Level 4. Level 4 would apply to any commercial/industrial entity with anticipated water use over 10 AFY. MPWMD action would be discretionary and Level 4 applications would be reviewed pursuant to CEQA.
This proposed structure would expand the MPWMD “regulatory net” in or near SER, but streamline it for potentially lower impact applications. Staff believes this is a reasonable compromise to focus staff and Board attention on applications that require the most oversight and could cause the most impact to the community water resources. All boxes shown in gray in Exhibit 2-B are applications where the level of review is streamlined. All boxes shown in black are applications where the level of review is increased. Boxes in white are applications where the same level of regulation would occur.
Expanded Regulation
The most prominent example of expanded regulation is the need for a Level 3 or 4 permit for single parcels within the Laguna Seca Subarea as well as the Coastal Subareas of the Seaside Basin. Previously, no WDS permit was needed for a single-parcel system in the Laguna Seca Subarea. This change reflects the findings of the Phase III Hydrogeologic Study for the Laguna Seca Subarea, which demonstrated that current water extractions are roughly double the reliable yield of the Subarea (overdraft condition), and that the Subarea is in a water supply deficit. Also, regulation of some single-parcel systems that are outside the Carmel River Basin and Seaside Basin Coastal Subareas, but still within the Cal-Am service would increase. For example, lots with wells in Pebble Beach would not be exempt.
An example of a more streamlined process (Level 1 or 2, depending on the application) is that a public hearing would not be required for two-parcel systems outside of the alluvial aquifer. Currently, any two-parcel system would require a public hearing before the MPWMD Board. Under the proposed concept, staff would handle these applications administratively. Also, 3+ parcel applications less than 2.5 acres that currently require a public hearing before the Board would be heard by a staff hearing officer under the proposed refinements.
A sliding scale fee structure is proposed as follows, based on staff’s best estimate of actual time needed to process the permit, follow up on conditions, and track use annually. The staff hourly rate is currently $70 per hour; fees may be rounded for simplicity.
Ø Pre-Application Screening: $150 for review and determination of exemption or level. Includes assessment and graphing of location of nearby wells and SER within 1,000 feet.
Ø Exemption Confirmation: $50 for written Confirmation of Exemption.
Ø
Level 1: $300 $375
to review application, provide Permit Waiver with Conditions, track use, write
CEQA Notice of Exemption and file with County Clerk.
Ø Level 2: $1,400 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 according to Rule 60.
Ø Level 3 or 4: $2,450 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 Ordinance No. 118).
U:\staff\word\committees\RulesRegsReview\2005\20050503\02\item2_exh2d.doc
Revised
4/27/05 at 8:30 PM