RULES AND REGULATIONS REVIEW COMMITTEE 

 

ITEM:

DISCUSSION ITEM

 

2.

DISCUSS AMENDMENT OF PROCEDURES FOR WATER DISTRIBUTION SYSTEM WELL TESTING – NOTICING REQUIREMENTS

 

Meeting Date:
January 18, 2012

 

 

 

From:

David J. Stoldt,

 

 

 

General Manager

 

 

 

 

Prepared By:

 

Henrietta Stern,

Project Manager

 

 

 

General Counsel Review:  not reviewed

 

 

Committee Recommendation: 

CEQA Compliance:  N/A

 

 

 

SUMMARY:  At its October 19, 2011 meeting, the Rules and Regulations Review Committee (Committee) discussed options regarding posting notice of well testing associated with the Water Distribution System (WDS) Permit application process.  District staff suggested a process similar to that used for public hearings for WDS permits, where the applicant is responsible for notification and posting, and must submit a certification form along with other information for the hearing to go forward. The October 2011 agenda materials are provided on the District website at:

http://www.mpwmd.dst.ca.us/asd/board/committees/rulesregscomm/2011/20111019/05/item5.htm.

 

On October 19, 2011, Committee members stated their preference that the District control the noticing function.  District staff expressed concerns about reduced staff in the Planning & Engineering Division, the fact that the well-testing schedule is controlled primarily by the Monterey County Health Department (MCHD), and the strong desire by District staff to not get caught up in the often-changing test scheduling details.  A neighboring well owner recently involved in the WDS well-testing process (Mr. Beech) described his experience, and felt there was not enough notice time or oversight of the applicant’s qualified hydrogeology consultant.  A variety of ideas were proposed to achieve the goal of early notification for neighboring well owners without significantly compromising District staff’s ability to carry out other priority work.  A summary of the October 19, 2011 Committee discussion is provided as Exhibit 2-A.

 

RECOMMENDATION:   District staff proposes a possible solution that considers the October 19, 2011 Committee discussion, and recognizes that well testing dates are not in the control of the District.  Notably, the well testing could occur many months after the District receives a WDS Pre-Application due to restricted summer/fall well testing periods mandated by state and Monterey County health laws. 

 

The following numbered list summarizes the recommended WDS process, with new steps identified in bold italics.  Notably, MPWMD staff will need to prepare revised materials for posting on the District website and other means to provide direction to potential WDS applicants on notification requirements for neighboring well owners and related timeline considerations that affect well test planning, pursuant to pertinent changes in WDS rules and procedures that are approved.  The recommended steps are:

 

  1. Pre-Application is filed by applicant with basic information about the proposed WDS.
  2. MPWMD determines if well meets exemption criteria or whether a WDS Permit is required.  [Go to Step 3 if WDS Permit is required.]
  3. District researches wells within 1,000 feet of the subject well (300 feet if alluvial), and prepares a map and table with hydrogeologic data about the neighboring wells for use by the applicant’s qualified consultant as defined by MPWMD Rule 21-A-9.
  4. District provides applicant/consultant a list of neighboring well owners with known contact information from the District database, along with written direction on notice requirements regarding well testing. 
  5. MPWMD notifies neighboring well owners that a WDS Pre-Application has been received and to expect communications from the applicant/consultant regarding the opportunity to have their well monitored during a well test.  See Exhibit 2-B as a conceptual example.
  6. Applicant’s consultant coordinates with MCHD and neighboring well owners to plan a well test and impact assessment, with well monitoring as desired by neighbors.  Applicant’s consultant prepares documentation of notification and response by neighbors pursuant to guidance provided by MPWMD.
  7. Applicant’s consultant conducts the well test and prepares hydrogeologic impact assessment report pursuant to MCHD and MPWMD technical procedures. 
  8. Applicant submits formal WDS Application package to MPWMD, including hydrogeologic assessment report, pursuant to Rule 21-A, as amended.   
  9. MPWMD staff prepares “complete” or “incomplete” determination, and posts on website as an appealable decision. In addition, MPWMD staff also notifies neighboring well owners of the determination, that they may review the application materials, and file an appeal pursuant to Rule 70.  Important Note:  This step could be changed pending Board direction on appealable WDS decisions.
  10. MPWMD evaluates Application and makes decision to approve or deny, pursuant to MPWMD Rule 22.  This decision is subject to appeal, and is posted on the District website. MPWMD staff also notifies neighboring well owners of the determination, that they may review the application materials, and file an appeal pursuant to Rule 70. 

 

Many parties are involved in setting the dates for a well test (i.e., applicant, MCHD staff, drillers, qualified consultant, neighbors, etc). It would be particularly onerous for District staff to be responsible for keeping track of various well drilling test dates during the busy well testing season (June through November).   Due to limited staff resources, and the complexities of well drilling and testing schedules, staff recommends that District staff not be responsible for setting up the well test monitoring and related logistics.  Instead, District staff should create and provide specific written direction to the applicant’s consultant that describes what documentation is required to verify that a proper effort was made to notify neighboring well owners and obtain permission to monitor wells. 

 

Please see the “Discussion” section below for more detail on the proposed protocol. 

 

BACKGROUND:  MPWMD Rules 20, 21 and 22 form the heart of the WDS Permit process.  Rule 20 states the WDS Permit is needed to create or amend a WDS, and lists a series of exemptions.   Rule 21 focuses on the application itself, while Rule 22 focuses on the approval criteria.  The MPWMD Rules & Regulations are provided on the District website at:

http://www.mpwmd.dst.ca.us/rules/2011/20111222/TOC.htm (click on desired rule).

 

Rule 21 refers to the “Implementation Guidelines” for more detailed information on various WDS actions or protocol.  The draft guidelines were originally approved by the Board in April 2001, when the original Ordinance 96 became effective, with the expectation that they would be revised over time as needed.  The Board has provided policy guidance via a series of ordinances when needed; these rule changes also resulted in changes to the permit process.  Staff has also provided clarifying guidance through a series of memos.  At this juncture, the Implementation Guidelines are disaggregated into a series of technical and procedural documents and memos that may be found on the District website Wells Page at:

http://www.mpwmd.dst.ca.us/pae/wds/wds.htm. 

 

Staff plans to consolidate, update and refine the Implementation Guidelines in 2012.  The topic of noticing and any other changes approved by the Board via ordinances and other action will be incorporated into the revised Implementation Guidelines.  Staff envisions that the Implementation Guidelines will have two major components:  (1) overall procedures, including forms and worksheets; and (2) technical procedures.  Staff envisions that direction regarding noticing would be part of the overall procedures.  The technical procedures are currently represented by the MPWMD Procedures for Preparation of Well Source and Pumping Impact Assessments.  They are written for the qualified consultant (e.g., registered hydrogeologist) and specify how well testing and data analysis should be performed.  They are provided on the District website at: 

http://www.mpwmd.dst.ca.us/pae/wds/WDSPermits/WellAssessProcedures_ver3edit_14sep05.pdf

 

The current WDS process requires that “nearby wells in the expected area of influence of the pumping well shall be monitored where feasible,” but does not prescribe specific steps, timelines or forms to use regarding notification of neighboring property owners who own wells that they have the right to have their well monitored.  

 

The MPWMD Procedures for Preparation of Well Source and Pumping Impact Assessments refers to monitoring neighboring wells in the following paragraph (page 3):

 

6. Wells Monitored. In all cases, the production well that is being tested shall be monitored as described in this section. In addition, nearby wells in the expected area of influence of the pumping well shall be monitored where feasible. The District recognizes that it may not be feasible to monitor all nearby wells due to logistical constraints (e.g., availability, monitoring equipment access, pumping requirements, etc.). Accordingly, in cases where nearby wells are not available for use as monitor wells during pumping tests, and the reasons for this are clearly documented in the Assessment, data developed from the production well shall be used to the extent possible to support the required analysis and evaluation.

 

Monterey County Health Department Role:  The MCHD issues the Well Construction Permit that allows the well to physically be drilled, and also has a variety of testing requirements pursuant to state law.  The County Well Construction Permit typically refers to compliance with the District’s WDS regulations as a condition of approval for wells within the MPWMD boundary.  County Health staff members are at the well site at least once for well drilling and initial data collection, or for more extensive 72-hour testing as required. 

 

DISCUSSION:  Current guidelines do not specify how neighboring well owners should be notified of a pending test and the opportunity to have their well monitored.  Thus, the recommended 10 steps listed above are intended to meet the following goals:

 

Notice of Well Testing (Step 5):  A form letter could be created that notifies the neighboring well owners within 1,000 feet (300 if alluvial) that a Pre-Application form has been received and well testing must occur prior to the applicant receiving a WDS permit.  This notice would also include basic information about MPWMD and County well testing rules, including when such a test may occur and how long it would last; describe required limitations in well use if the well is monitored; describe how impact assessments are done without well monitoring; describe neighbor’s rights and responsibilities; and provide contact information and resources for further information.  The notice would advise the neighbor that the exact testing dates are determined by MCHD and the applicant (not MPWMD).   The District Water Resources Manager should provide guidance based on good scientific practice, the rights of due process of the applicant, and the desire to minimize inconvenience to the neighboring well owner.  A conceptual sample letter is provided as Exhibit 2-B, which refers to detailed information yet to be developed.  The period of 14 days notice was based on Director Markey’s suggestions at the October 19, 2011 Committee meeting (see Exhibit 2-A); this amount can be adjusted. 

 

Coordination of Monitoring (Step 6):  The applicant’s consultant would be responsible to document a good-faith effort to communicate with well owners by letter, e-mail, phone or personal visit abiding by the minimum timeframes set by the District.  Documentation of the neighboring well owner’s responses is also important.  In setting these guidelines, the District will need to consider the due process rights of the applicants, and how to address lack of a response by neighbors (e.g., due to vacation).   

 

Submit WDS Application Package (Step 9):  The current Application Form could be revised to include a section on noticing with a checklist of tasks and required attachments.  A conceptual letter to neighboring well owners advising them of the complete or incomplete determination is provided as Exhibit 2-C. 

 

Make WDS Permit Determination (Step 10):  A conceptual letter to neighboring well owners advising them of the WDS determination is provided as Exhibit 2-D. 

 

Refinements to WDS Implementation Guidelines:  The overall guidance (non-technical) component should be amended to provide a section on notification and forms for use by the applicant or qualified consultant.  The applicant needs to know timelines and expectations.  Possible attachments might include forms to document:

 

For the Implementation Guidelines, the overall procedures will need to emphasize the need for the applicant to retain a qualified consultant at the Pre-Application phase in order to receive the pertinent information about neighboring wells.  MPWMD must comply with applicable water codes and laws regarding the release of information about water production facilities.  The applicant may need to start the WDS process earlier in order for District staff to assess nearby well data and property owner contact information, prepare the notices to the neighbors, and for the applicant to notify and coordinate with neighbors regarding well testing dates.  Also, the Pre-Application and/or WDS Application fees may need to be increased to cover these additional MPWMD staff tasks.

 

Refinements to MPWMD Rules for Noticing:  The pertinent paragraph 7 in Rule 21-A (materials required for a WDS Application) currently reads:

 

7.  The results of Well Capacity (Aquifer Pumping) Tests for the duration specified by the Implementation Guidelines, the cost of which tests shall be borne by the Applicant, and which shall be observed by a District representative or agent; and…

 

Rule 21-A-7 already refers to the Implementation Guidelines, so this rule need not be changed to address notification; the Implementation Guidelines is the document that would be changed.  However, if the Board wishes to emphasize notification, a new Rule 21-A-10 could be created that specifically requires “documentation of noticing to neighboring well owners as specified in the Implementation Guidelines.”  The current Rule 21-A-10 (fees) would become Rule 21-A-11.  This small change could potentially be included in one of several pending ordinances proposed by the Water Demand Division in early 2012.

 

On-Site Notice Not Recommended:  District staff considered on-site posting to advise the general public of a pending well test.  However, this is not recommended because the decision to allow construction and testing of a well on a parcel is solely that of the Monterey County Health Department, not MPWMD.  The District’s interest is resource management, specifically the hydrogeologic data obtained from any well test that relates to adequate supply, impacts to water resources and impacts to neighboring wells.  The District’s interest is adequately addressed through the 10 steps enumerated above.  The District may receive calls from neighbors who do not own wells who are curious about well-drilling activity in the vicinity.  Staff will assist them as feasible or refer the caller to MCHD. 

 

Related Matters

Separate related agenda items before the Committee on January 18, 2012 include:

Based on the October 19, 2011 Committee meeting discussion, District staff has already changed the noticing process for WDS public hearings.  In the past, the applicant had greater responsibility to post the hearing notice on the perimeter of the subject property and provide a mailing list and labels of all property owners of parcels within 300 feet of the subject property boundaries. The applicant had to properly file and return a Certificate of Posting form in order for the hearing to go forward.  For the November 21, 2011 Board meeting that considered the Beech appeal, a different noticing protocol was used with success.  The District GIS Specialist developed mailing lists and labels for neighboring properties, and administrative staff mailed notices written by Planning and Engineering (PAE) staff.  Water Demand Division staff physically posted the on-site notices written by PAE staff.  Intra-division coordination was needed for written materials to be mailed or posted in a timely manner.  The District also posts WDS hearing information on its website as part of the Board agenda process. 

 

EXHIBITS 

2-A      Overview of Oct 19, 2011 meeting re WDS Noticing (Item 5)

2-B      Conceptual notice to neighboring well owners re: receipt of WDS Pre-Application

2-C      Conceptual notice to neighboring well owners re: complete application determination

2-D      Conceptual notice to neighboring well owners re: permit issuance approval or denial

 

 

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