MPWMD RULES AND REGULATIONS REVIEW COMMITTEE MEETING--JAN 18, 2012--ITEM 4--CLARIFY OPPORTUNITIES FOR APPEALS FOR WATER DISTRIBUTION SYSTEM PERMIT DECISIONS BY STAFF

RULES AND REGULATIONS REVIEW COMMITTEE

ITEM:		DISCUSSION ITEM

4.	CLARIFY OPPORTUNITIES FOR APPEALS FOR WATER DISTRIBUTION SYSTEM PERMIT DECISIONS BY STAFF

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, staff advised the Rules and Regulations Review Committee (Committee) that staff planned to revise and update the current Implementation Guidelines and well testing technical procedures associated with the Water Distribution System (WDS) Permit process. At the September 19, 2011 referral by Director Markey regarding the Flores/Pisenti WDS, the question of interpretation of District Rule 22-A-5 was mentioned in the agenda package, but was deemed as an issue to be addressed in the future.

The basic question is whether an appeal should be able to be filed at one or two milestones in the WDS Permit process where staff is the decision-maker. Specifically, should an appeal be allowed on the staff decision on whether the application is complete or not, or should appeals only be allowed on the final permit decision by staff. The wording of the rules is not perfectly clear and can be interpreted either way. The ultimate decision by the Committee and Board will affect the text of the MPWMD Rules & Regulations as well as the WDS Implementation Guidelines, and affects the Level 2 (administrative) and Level 3 (staff hearing officer) WDS Permit processes.

Rule 70 guides the appeals process, and is provided on the District website at: http://www.mpwmd.net/rules/2010/June/pdfs/RegVII/rule70.pdf. A hard copy iS provided as Exhibit 4-A.

Rule 22 is available on the District website at:

http://www.mpwmd.dst.ca.us/rules/2011/20110301/pdfs/RegII/RegII_rule22.pdf . Rule 22-A-5 and Rule 22-A-6 are provided in hard copy as Exhibit 4-B.

More information is provided in the “Discussion” section below.

RECOMMENDATION: The Committee should review Rule 70, Appeals, and Rules 22-A-5 and 22-A-6, and provide a recommendation to the Board on the number of opportunities for appeals in the WDS Permit process. Currently the staff interpretation is a notice of an appealable decision is placed on the District website for two milestones:

determination of a complete or incomplete application; and
authorization by staff to approve the WDS application.

DISCUSSION: The word “appealable” is defined in Rule 70 (second sentence), which requires an appeal to “reference the provision of these Rules and Regulations which has been violated.” The pertinent excerpt from Rule 70 is shown below:

Determinations of the General Manager or the District Engineer may be appealed to the District Board, in writing, within twenty-one (21) days after any such determination. Such appeal shall specify in writing the grounds upon which it is taken, and shall reference the provision of these Rules and Regulations which have been violated, and shall be accompanied by the fee prescribed in Rule 60, except where the issues raised in the appeal concern issues of public interest or environmental protection.

Rule 22-A-5 addresses the “Level 2” process, where a staff determination can be appealed, as follows:

5. Protocol for Level 2 (Administrative) Permit

The General Manager shall provide an Application Form for a Level 2 system in

the form and manner prescribed in the Implementation Guidelines, including the

applicable fee described in Rule 60. The Application Form shall require written

documentation that the system meets the Level 2 criteria described in Rule 22-A-

2 above, and enables compliance with Rules 21-A, 22-B and 22-C. The General

Manager shall determine if the submitted Application is complete, pursuant

to the Implementation Guidelines, within thirty (30) days of receipt. If the

Application is determined to be incomplete, the General Manager shall notify the

Applicant concerning that information in which the Application is deficient and

request the Applicant to submit that information, in compliance with Rule 22-F.

If the Application is determined to be complete, and complies with Rules 21-A,

22-B and 22-C, the General Manager shall issue a Level 2 Permit. The Level 2

Permit shall include conditions of approval in compliance with Rule 22-D. The

Level 2 process does not require a public hearing. District action is discretionary

and the Application is subject to CEQA review. Notice of the staff action shall

be provided to all MPWMD Board members. The staff determination may be

appealed to the MPWMD Board pursuant to Rule 70, “Appeals.”

Rule 22-A-5 (third sentence) states, “The General Manager shall determine if the submitted Application is complete, pursuant to the Implementation Guidelines, within thirty (30) days of receipt.” Rule 22-A-5 (last sentence) calls out the staff determination on whether to issue the WDS permit as being appealable pursuant to Rule 70. This last sentence raises the question of whether only the final permit determination is appealable, and not the decision of whether the application is complete. A similar question is posed for Rule 22-A-6 (staff hearing officer).

See Exhibit 4-A for the full text of Rule 70. See Exhibit 4-B for the full text of Rule 22-A-5 and 6.

The pros and cons (depending on one’s perspective) for the two options are briefly summarized in the following table:

Option	Pros	Cons
Appeal Permit Issuance Only	Less duplication of staff and board effort – only one hearing means less expense to applicant, who bears the cost.	Concerns of appellants not heard until late in process with less time to make needed corrections during limited well testing season.
Appeal Complete Determination and Permit Issuance	Issues raised early in the process can be corrected in a timely manner. Administrative record is more complete. Also provides a process for applicant if he disagrees with an “incomplete” determination made by staff.	Due process concerns of “repeated trial” from perspective of applicant, who bears the expense of two hearings rather than one.

Related Matters

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

changes to procedures regarding notice to neighboring well owners;
refinement of the Implementation Guidelines; and
whether the District should contract directly with hydrogeologists to conduct the applicants’ well tests; and

EXHIBITS

4-A MPWMD Rule 70, Appeals

4-B MPWMD Rules 22-A-5 and 22-A-6

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