A public hearing on the draft ordinance will be conducted by the MPWMD Board of Directors on August 21, 2000, at 7:00 PM in the Monterey City Council Chambers. Please refer to the August 21, 2000, Board meeting agenda.
DRAFTB3
ORDINANCE NO. 96
AN ORDINANCE OF THE BOARD OF DIRECTORS
OF THE
MONTEREY
PENINSULA WATER MANAGEMENT DISTRICT
REVISING THE DEFINITION AND REGULATION
OF WATER DISTRIBUTION SYSTEMS
FINDINGS
1.
The
Water Management District is charged under the Monterey Peninsula Water Management
District Law with the integrated management of the ground and surface water
resources in the Monterey Peninsula area.
2.
The
Water Management District is authorized to establish a written permit system
for regulation of water distribution systems, regardless of the number of
connections served or the source of the water supply.
3.
The
board of directors finds that regulating all water distribution systems, including
mobile water distribution systems, is necessary to protect District water
resources and to assure that sufficient water will be available for present
and future beneficial use by all District inhabitants and lands.
4.
The
Water Management District has enacted, by ordinance, a set of Rules and Regulations
to implement its statutory authority. District Rule 11 defines the terms AWater Distribution System@ and AMobile Water Distribution System@ in such a manner as to exempt from regulation certain small systems.
District Rules 20, 22, and 173 further define procedural and substantive
rules that regulate these systems. Although
these rules have been amended from time to time, the fundamental scope of
these regulations was first enacted in the early 1980=s. Definitions
for the terms Awater distribution system@ and Awater-gathering facility@ were enacted on February 2, 1980, by Ordinance No. 1. The definition of ASource of Supply@ was enacted on July 11, 1980, by Ordinance
No. 3. The term Amobile water distribution system@ was defined on July 13, 1981, by Ordinance
No. 7.
5.
The
Water Management District has enacted a comprehensive scheme to review and
regulate the creation and expansion of water distribution systems. That scheme was first enacted on February 11,
1980, by Ordinance No. 1, and has since been amended from time to time.
6.
Several
issues of concern have arisen respecting the fact that small water distribution
systems and small mobile water distribution systems are exempt from the
District=s existing regulatory review. Among other matters, these concerns address
(i) the cumulative impact that an increase of small systems can have upon the
water resource, (ii) the demand burden on other systems that can result from
failure of small systems, (iii) the adequacy of fire suppression afforded by
small systems, (iv) water quality issues, (v) cross-contamination of water
supplies and water systems, (vi) public utility service area limits, and (vii)
clear identification of water rights for those systems.
7.
The
State Water Resources Control Board (SWRCB) issued its Order No. WR 95-10 in
1995. This order, among other things,
ruled that California-American Water Company (Cal-Am) did not have a legal
right to take approximately sixty-nine (69) percent of the water currently
supplied to Cal-Am users. The SWRCB set
specific goals to reduce water diversions from the Carmel River Basin that,
among other things, required Cal-Am to reduce its historical diversion from the
Carmel River Basin to no more than 11,285 acre-feet per annum.
8.
Since
the issuance of SWRCB Order No. WR 95-10, there has been an increase of small
water systems. Proposals have also been
made to base development upon single source water systems, including single
wells, desalination units, and by trucked-in water.
9.
Several
members of the public have requested that small water distribution systems and
small mobile water distribution systems be included in the same process that
the Water Management District uses to review creation and expansion of larger
water systems.
10.
The
Water Management District board of directors has sought input from the Policy
Advisory Committee on the issue of regulating small water distribution systems
and small mobile water distribution systems.
11.
The
board of directors determines that this ordinance will not result in an adverse
impact to the environment, based on an Initial Study and Proposed Negative
Declaration dated July 7, 2000.
12.
This
ordinance is adopted to enhance the District=s ability to protect water quality and
quantity, to prevent diminution of waters within the District, to protect
environmental values, and is consistent with the District=s authority to declare rights in stream, surface, and subterranean
water supplies within District boundaries.
13.
This
ordinance shall amend Rules 11, 20, 21, 22, 52, 60 and 173 of the Rules and
Regulations of the Water Management
District.
NOW THEREFORE be
it ordained as follows:
ORDINANCE
Section
One: Short Title
This ordinance
shall be known as the Small Water System Regulation Ordinance of the Monterey
Peninsula Water Management District.
Section
Two: Purpose
This ordinance
shall revise the permanent Rules and Regulations of the Water Management
District to clarify procedures and substantive limitations that affect creation
or expansion of small water distribution systems and small mobile water
distribution systems.
Section
Three: Amendment of Rule 11 (Definitions)
District Rule 11
shall be amended by deleting the following provisions shown in strikeout text (strikeout),
and by adding the following provisions set forth in italicized and bold face
type (bold face).
MOBILE WATER DISTRIBUTION
SYSTEM - AMobile Water Distribution System@ means any mobile water supply process, including but not limited to
trucked water, used for distribution of water from a source of supply to a user
for utilization upon the user's property. This definition shall not apply to
systems furnishing domestic water to three or fewer parcels in the District
serving three or fewer users. This definition shall not apply to
deliveries of water by commercial companies in volumes less than or equal to 55
gallons per container.
SOURCE OF SUPPLY -
ASource of Supply@ means the groundwater, surface water, or
reclaimed water sources,
or any other water resource where a person, owner or operator
gains access by a water-gathering facility.
WATER DISTRIBUTION
SYSTEM - AWater Distribution System@ means all works within the District used for the collection, storage,
transmission or distribution of water from the source of supply to the
connection of a system providing water service to any two or more connections,
including all water-gathering facilities and water-measuring devices but excluding the
user's piping. In systems where there is a water
meter at the point of connection, the term AWater
Distribution System@ shall not refer to
the user=s piping; in
systems where there is no water meter at the point of connection, the term AWater
Distribution System@ shall refer to the
user=s piping.
WATER-GATHERING FACILITY ‑ AWater-Gathering
Facility@
means any device or method, mechanical or otherwise, for the production of
water from dams, groundwater, surface water, water courses, or reclaimed
water sources, or any
other source of supply within the Monterey Peninsula Water
Management District, or a zone thereof.
Water-gathering facilities shall include any water-production facility
as defined in the Monterey Peninsula Water Management District Law. Water-gathering facilities shall further include any
desalination facility. This definition shall not apply to
on-site cisterns on existing single-family lots that capture rainwater for
on-site landscape irrigation use.
Section Four: Amendment of Rule 20 (Permits
Required)
District Rule 20 shall be amended by deleting the
following provisions shown in strikeout text (strikeout), and by adding
the following provisions set forth in italicized and bold face type (bold face).
RULE 20. PERMITS REQUIRED
A. PERMIT
TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM
OR A MOBILE WATER DISTRIBUTION SYSTEM.
Before any person creates or establishes a water
distribution system, such person shall obtain a written permit from the
District. Before any person creates or establishes a mobile water
distribution system, such person shall obtain a written permit from the
District.
Persons who hold a valid permit for construction and
operation of such a water distribution system from the Monterey County
Health Department, prior to March 12, 1980, or a water distribution system in
existence prior to that date operated by a public utility, shall be deemed to
have been issued a permit in compliance with these Rules and Regulations. Persons who hold a valid permit from the Monterey County
Health Department for construction and operation of a well serving a water
distribution system of less than two connections prior to October 1, 2000,
shall be deemed to have been issued a permit in compliance with these Rules and
Regulations provided: (1) the system
was completed and was delivering water on or before April 1, 2001; (2) each
water-gathering facility of that system was registered with the District; and
(3) the water produced by that water-gathering facility had been reported to
the District for each applicable reporting year.
No mobile water
distribution system shall be issued a permit under the provisions of the
previous paragraph. Each such system
shall be required to apply for and obtain a permit in accord with Rules 21 and
22.
The expansion capacity limit and system capacity of
previously existing systems shall be determined pursuant to Rule 40 (A).
B. PERMITS
TO EXPAND/EXTEND A WATER DISTRIBUTION SYSTEM
Before any person expands/extends a water distribution
system or any mobile
water distribution system, such person shall obtain a written
permit from the District or the District=s delegated
agent. The addition of any connection or any water-gathering facility
to a water distribution system and/or the intensification of use of an existing
connection shall be deemed an expansion or extension of that system. Any change in use, size, location, or
relocation of a connection or water-measuring device which may allow an
intensification of use or increased water consumption, or any permit transfer
pursuant to Rule 28 which may allow an intensification of use or increased
water consumption, shall be deemed an expansion or extension of that
system. A proper applicant for such an
expansion/extension permit may be either the owner or operator of the water
distribution system, the prospective user of the proposed connection as the
real party in interest, or any agent thereof.
Section Five: Amendment of Rule 21 (Applications)
District Rule 21 A and Rule 21 B shall be amended by
deleting the following provisions shown in strikeout text (strikeout),
and by adding the following provisions set forth in italicized and bold face
type (bold face). These amendments shall not affect any other
paragraph of Rule 21.
RULE 21. APPLICATIONS
A. APPLICATION
FOR PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION
SYSTEM
The applicant shall submit the following:
(1) A
completed written application in the manner and form prescribed by the General
Manager; and
(2) Environmental
information as required by the
California Environmental Quality Act (CEQA) the District
Environmental Guidelines; and
(3) Proof
of land use approval which may be required for the proposed project by the municipal unit in which proposed system
would be located (i.e., tentative map,
use permit, etc.), consistent with state and local regulations that require
proof of available water supply;
and
(4) A statement explaining the claim of water right
applicable to each water-gathering facility and each source of supply for the
system; the statement should quantify the scope of each claimed water right,
note any applicable priority dates, and state every known limitation or
condition that may attach to each claim.
For every application deriving from a source of supply from the Monterey
Peninsula Water Resources System, the application shall include as an
attachment proof of each water right claim such as an appropriation permit from
the SWRCB, a judicial declaration of right, or a full title opinion prepared by
an attorney with expertise in water law, or such other proof as deemed adequate
by the General Manager; and
(5) A copy of
the application submitted to the Monterey County Environmental Health
Department for Creation of a Water Distribution System; and
(6) The name and address of each responsible
party; and
(7) The results of a aquifer pumping
tests for the duration specified by the
General Manager, the
cost of which tests shall
be borne by the applicant, and which shall
be observed by a District representative or agent; and
(8) The results of water quality tests as specified
by the District, the cost of which test shall be borne by the applicant; and
(9) The applicable fees prescribed in Rule 60.
B. APPLICATION
FOR PERMIT TO EXTEND/EXPAND A WATER DISTRIBUTION SYSTEM
The applicant shall submit the following:
(1) A completed
written application in the manner and form prescribed by the General Manager.
(2) For those applications for which a building
permit has been granted, proof of the building permit by municipal unit in
which extension or expansion is proposed (including demonstration of adequate water where required by
state and local regulations), or statement of need for proposed
expansion/extension.
(3) For those potable system applications for which a
building permit has not yet been granted, architectural contract drawings of
sufficient detail to reflect water use pursuant to Tables 1 or 2 of Rule 24,
together with any amendment, addition, or modification of those drawings which
may be made prior to use or occupancy of the project, and any drawings which
may be submitted to the municipal unit for land use or building approvals, a statement
of near‑term need for the proposed expansion/extension, and demonstration of adequate water
pursuant to state and local regulations.
(4)
For subpotable systems, and for all exterior
use for all systems, an itemized estimate of water use.
(5) Architectural
contract drawings for each change in the project made prior to use or occupancy
which may affect the project=s capacity to use water.
(6) The
applicable fees prescribed in Rule 60.
(7) The
connection charge prescribed in Rule 24.
Section
Six: Amendment of Rule
22 (Action on Application for Permit to Create/Establish a Water Distribution
System)
District Rule 22
shall be amended by deleting the following provisions shown in strikeout text (strikeout),
and by adding the following provisions set forth in italicized and bold face
type (bold face).
RULE
22. ACTION ON
APPLICATION FOR PERMIT TO CREATE/ESTABLISH A WATER DISTRIBUTION SYSTEM.
1.
PROCESS
1. Potable Water
Distribution Systems and Mobile Water Distribution Systems.
(a) The
General Manager shall review the each application to create or
establish a water distribution system designed to deliver potable water, or any
mobile water distribution system; and if he determines the
application to be is
determined to be complete, the
General Manager shall
act within thirty (30) days subsequent to satisfaction of environmental review,
to set a public hearing by the board on the application for such permit, and shall
notify the applicant in writing and give public notice of the hearing date.
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.
At the hearing, the applicant shall be entitled to present evidence in
support of his the
application. Interested
persons may present evidence in opposition or support of the application. The board, in conducting the public hearing, may
request hydrologic, geologic, legal opinions or other studies necessary to obtain
information required for its decision.
The cost of such studies shall be borne by the applicant. For every application for which a controversy arises
concerning the extent or adequacy of water rights, the board may require proof
of each water right claim such as an appropriation permit from the SWRCB, or a
judicial declaration of right, or a full title opinion prepared by an attorney
with expertise in water law, or such other proof as deemed adequate by the
board. The board may deny,
approve, or continue any permit application based on the minimum standards as set forth
in Rule 22 (B) and its findings pursuant to Rule 22 (C). The board may impose such conditions on the
permit that it deems necessary and proper.
The General Manager shall notify the applicant within thirty (30) days
in writing by mail or in person of the board action taken; namely continuance,
approval, conditional approval, or denial.
Notice of the action taken shall be deemed to have been given when the
written notification has been deposited in the mail, postpaid, addressed
to the address shown on the application, or when personally delivered to the
applicant or his the
applicant=s representative.
(b) In the case of water distribution system
applications for potable water use that (i) derive from sources outside the
Monterey Peninsula Water Resources System, and (ii) have two (2) or less
connections, the General Manager, not the Board, shall function as the hearing
officer as set forth in Rule 22-A-2.
2. Subpotable Water Distribution Systems.
(a) The
General Manager shall review each application to create or establish a water
distribution system that is designed to deliver water exclusively for
subpotable uses, and applications that meet the criteria in 22-A-1-b above; if
the application is determined complete, the General Manager shall act within
thirty (30) days subsequent to satisfaction of environmental review, (i) to
determine if a hearing exemption applies as provided below, and if not (ii) to
set a public hearing on the application for that permit, and shall notify the
applicant in writing and give public notice of the hearing date. If the application is determined to be
incomplete, the applicant shall be notified as to information in which the
application is deficient and allowed to submit that information.
At the hearing, the
General Manager shall sit as the sole hearing officer. The applicant and any interested person
shall be entitled to present evidence in opposition or support of the
application. The General Manager in
conducting the public hearing, may request hydrologic, geologic, legal opinions
or other studies necessary to obtain information required for his
decision. The cost of such studies
shall be borne by the applicant. For
every application for which a controversy arises concerning the extent or
adequacy of water rights, the General Manager may require proof of each water
right claim such as an appropriation permit from the SWRCB, a judicial
declaration of right, a full title opinion prepared by an attorney with
expertise in water law, or such other proof as deemed adequate by the General
Manager. The General Manager may deny, approve, or condition any permit
application based on the minimum standards as set forth in Rule 22 (B) and
findings pursuant to Rule 22 (C).
Conditions on the permit may be imposed as are necessary and
proper.
The General Manager
shall notify the applicant within thirty (30) days in writing by mail or in
person of the action taken; namely continuance, approval, conditional approval,
or denial. Notice of the action taken
shall be deemed to have been given when the written notification has been
deposited in the mail, postpaid, addressed to the address shown on the
application, or when personally delivered to the applicant or the applicant=s representative. The decision may be appealed to the board of directors pursuant
to Rule 70, AAppeals,@ upon payment of the fee specified in Rule
63 (4).
(b) Notwithstanding any other provision of this
Rule, a hearing exemption shall apply to any application to create or establish
a water distribution system that is designed (i) to deliver water exclusively
for subpotable uses; and (ii) derives its supply from sources outside of the
Monterey Peninsula Water Resources System; and (iii) is limited to no more than
two (2) connections. This hearing
exemption shall apply only after the application is determined complete and has
completed necessary environmental review.
The General Manager may deny, approve, or condition the permit based on
the minimum standards as set forth in Rule 22 (B) and (C).
Permits granted under this provision may be appealed to
the board of directors for a de novo hearing.
That hearing shall convene under the rules of process set in Rule 70, AAppeals.@ The fee specified in Rule 63 (4), however,
shall be waived.
B. MINIMUM
STANDARDS FOR GRANTING PERMIT
1. An
application shall be denied unless it complies with each of the following
minimum standards:
(a) The application identifies at least one
responsible party who, at all times, will be available and legally responsible
for the proper performance of those things required of a permit holder by this
ordinance; and
(b) The ability of the source of supply for any water distribution system
designed to deliver water for any potable use to two (2) or more connections,
to provide water that complies
with the standards set forth in Title 22 of the California Administrative Code;
and
(c) The application identifies the location of each
source of supply for the water distribution system, and the location of each
use supplied by a mobile distribution system.
2. Every
applicant as a condition to holding a permit pursuant to this rule shall report
annually by August 1st in the form and manner prescribed by the District, the
quantity of water delivered from each source of supply, total water produced,
and average daily number of connections in the system, and the number of new
connections and disconnections, a map or maps of the service area, and a
listing of permits filed in the previous water year (July 1 to June 30) in each
municipal unit, and the identity and address of each responsible party as
of June 30th of the previous year.
3. As a condition precedent to use or enjoyment
of any permit pursuant to this rule, each applicant shall be required to first
obtain and comply with any required certificate from the California Public
Utilities Commission, and shall first be required to obtain and comply with any
required permit or approval of the California Coastal Commission. Failure to comply with this prerequisite
shall provide cause for revocation of any permit issued pursuant to this rule.
C. FINDINGS
Prior to making its
discretionary decision to grant or deny any permit to create or establish any
water distribution system, or to create or establish any mobile water
distribution system, the board (or the General Manager for certain
systems) shall determine:
(1) Whether the
system for which a permit is sought would cause unnecessary duplication of the
same types of services by any existing system; and
(2) Whether the
permit would result in exportation or importation of water outside or into the
District; and
(3) Whether the permit
proposed water
distribution system would result in significant environmental
effects that cannot be mitigated by conditions attached to the permit; and
(4) Whether the application adequately identifies
the claim of right for each source of supply for the water distribution system,
whether it provides adequate supporting documentation thereto, and/or whether
the system relies on any non-existent or questionable claim of right; and
(5) Whether the application demonstrates the
existence of a long-term reliable and non interruptible source of supply; and
(6) Whether the source of supply is shared by any
other water distribution system, and if so, the extent to which cumulative
impacts may affect each source of supply, and species and habitat dependent
upon those sources of supply; and
(7) Whether the source of supply derives from (a)
the Monterey Peninsula Water Resources System, and/or (b) waters within the
jurisdiction of the State Water Resources Control Board, and/or (c) waters
tributary to the source of supply for any other system; and
(8) Whether the proposed water distribution
system (a) shall intertie to any other system, (b) shall be able to obtain
emergency supplies in the event of system failure, (c) shall provide fire flow
requirements for development served by that system; and (d) the extent other
water distribution systems shall be required to provide emergency supplies
and/or meet fire flow requirements; and
(9) Whether the proposed water distribution
system shall incorporate adequate cross contamination and backflow measures to
protect other systems and sources of supply.
D. MINIMUM
STANDARDS
Notwithstanding the above determinations, no permit
shall be granted if issuance
of the Board finds and determines that the permit will:
(1) Create
an overdraft or increase an existing overdraft; or
(2) Adversely
affect the ability of existing systems to provide water to users.
If the board approves the permit, it shall establish
for each system: (i) an expansion capacity
limit, (ii) a the
system capacity,
and (iii) a municipal
unit allocation. for that water distribution system. The board may impose other conditions in granting
the permit.
E. AMENDMENTS
TO PERMIT
No owner or operator of a water distribution system
shall modify, add to or change his source of supply, location of uses,
expand the system beyond the expansion capacity limit, or expand the service
area, unless that person first files an application to do so with the District
and receives an amended creation/establishment permit. Such applications shall
be made pursuant to Rule
21, Regulation II
(Permits), shall comply with each rule therein, and shall be
investigated, considered, determined and acted upon on the same terms and
conditions as provided for the approval, conditional approval, or denial of a
permit, as provided in this rule.
Section Seven: Amendment of Rule
173 (Regulation of Mobile Distribution Systems)
District Rule 173 shall be amended by deleting the
following provisions shown in strikeout text (strikeout), and by adding
the following provisions set forth in italicized and bold face type (bold face).
RULE 173. REGULATION
OF MOBILE WATER DISTRIBUTION
SYSTEMS
DURING A WATER SUPPLY EMERGENCY
A. No person,
extractor, owner or operator shall operate a mobile water distribution system
without first securing a written permit permission from the
District. In accordance with Monterey County Code Title 15.20, no
applications will be accepted or permitted for bulk hauled water for permanent
potable use.
Applications for establishment of a Mobile Water Distribution System
shall be made pursuant to Rule 22 (Action On Application For Permit To
Create/Establish A Water Distribution System) and shall be investigated,
considered, determined, and acted upon on the same terms and conditions as
provided for the approval, conditional approval or denial of a
creation/establishment permit as stated in that rule.
The application
shall identify each source of supply and the location of each use. For any subpotable mobile water distribution
system within the California-American Water Company (Cal-Am) service area, a
condition of approval shall require that Cal-Am be notified so that a back-flow
protection device can be installed pursuant to Monterey County Code Title 17.
B. In the event
prior authorization is not obtained by reason of an emergency or health related
situation, authorization for the Mobile Water Distribution System permit shall be sought obtained
from the District by
submittal of a complete application compliant with Rule 22, within
five working days following
commencement of the emergency or health related event.
C. Delivery and/or receipt of water
from an unpermitted Mobile Water
Distribution System shall be deemed water waste, and shall be subject to fine,
restriction, and cease and desist order as set forth in Rule 171.
Section Eight: Amendment of Rule
52 (Registration)
District Rule 52 shall be amended to delete references
to an obsolete form and to insert reference to the form in present use. Provisions shown in strikeout text (strikeout)
are to be deleted, and those shown in italicized and bold face type (bold face) shall be
added. All other provisions of this
Rule 52 shall remain unaltered.
RULE 52. REGISTRATION
REQUIRED
52 A. 2 An
executed Declaration of Reporting Status, as more fully described in Rule
54(C)
Water Well
Registration Form.
52 B. 2 An
executed Declaration of Reporting Status, as more fully described in Rule 54
(C)
Water Well
Registration Form.
Section Nine: Amendment of Rule
62 (Fees)
District Rule 62 shall be amended to delete references
to an obsolete form and to insert reference to the form in present use. Provisions shown in strikeout text (strikeout)
are to be deleted, and those shown in italicized and bold face type (bold face) shall be
added. All other provisions of this
Rule 62 shall remain unaltered. The fee
imposed by Rule 62 shall not be increased or decreased by this amendment.
RULE 62. WELL
MONITORING FEES
62 3. Fee for amendment of Declaration of
Reporting Status Water
Well Registration Form
- $25.
Section Ten: Publication and Application
The provisions of this ordinance shall cause the
republication and amendment of the permanent Rules and Regulations of the
Monterey Peninsula Water Management District.
Section titles and captions are provided for
convenience and shall not be construed to limit the application of the text.
Section Eleven: Effective Date and Sunset
This ordinance shall be given effect at 12:01 a.m. on
the day following its adoption on second reading. This Ordinance shall not have any Sunset Date.
Section Twelve: Severability
If any subdivision, paragraph, sentence, clause or
phrase of this ordinance is, for any reason, held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or enforcement of the remaining portions of this ordinance,
or of any other provisions of the Monterey Peninsula Water Management District
Rules and Regulations. It is the
District's express intent that each remaining portion would have been adopted
irrespective of the fact that one or more subdivisions, paragraphs, sentences,
clauses, or phrases be declared invalid or unenforceable.
On motion of Director , and second by Director ,
the foregoing ordinance is adopted upon this
____________ day of ____________ ,
2000, by the following vote:
AYES:
NAYS:
ABSENT:
I, Darby W. Fuerst, Secretary to the Board of Directors
of the Monterey Peninsula Water Management District, hereby certify the
foregoing is a full, true and correct copy of an ordinance duly adopted on the day of , 2000.
Witness my hand and seal of the Board of Directors this
________ day of ________ , 2000.
___________________________________________________
Darby W. Fuerst, Secretary to the Board