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HomeMy WebLinkAbout2010-08-18 Packet - Special Water WorkshopCITY OF UKIAH CITY COUNCIL AGENDA Special Meeting Ukiah Valley Conference Center "Cabernet Room" 200 S. School Street Ukiah, CA 95482 August 18, 2010 1:30 PM WATER WORKSHOP ROLL CALL 2. PRESENTATION a. Workshop To Examine Impact Of Pending Petitions To Amend City's Appropriative Water Right Permit On City's Ability To Put The Full Amount Of Diversion Authorized By The Permit To Beneficial Use 3. PUBLIC COMMENTS 4. ADJOURNMENT Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific accommodations or interpreter services are needed in order for you to attend. The City complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. Materials related to an item on this Agenda submitted to the City Council after distribution of the agenda packet are available for public inspection at the front counter at the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, CA 95482, during normal business hours, Monday through Friday, 7:30 am to 5:00 pm. I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda. Dated this 13th day of August, 2010 JoAnne M. Currie, City Clerk ITEM NO. 2a DATE: August 18, 2010 c-i`y al zrkiah AGENDA SUMMARY REPORT SUBJECT: WORKSHOP TO EXAMINE IMPACT OF PENDING PETITIONS TO AMEND CITY'S APPROPRIATIVE WATER RIGHT PERMIT ON CITY'S ABILITY TO PUT THE FULL AMOUNT OF DIVERSION AUTHORIZED BY THE PERMIT TO BENEFICIAL USE SUMMARY: The purpose of this workshop is to discuss the impact on the City's appropriative water right permit of limiting future use of water under that permit to the sphere of influence proposed in the City's 1995 General Plan. If future use is limited to that area, the City could lose a portion of the 20 cubic feet per second ("cfs") its current permit authorizes it to divert.' Staff would like direction from the City Council on which of several policy options the City should pursue to either accept or avoid this potential reduction in the City's water right. In the course of this discussion, the City Council will also address the issues Councilmember Baldwin has indicated he would like to address in the workshop: 1. Current City source capacity. 2. City wells as percolating groundwater or as underflow. 3. Future of the Ranney Collector and the Water Treatment Plant. 4. City use of well water in summer months during drought. 5. Place of use expansion and potential for City water sales beyond City limits. 6. Should the City drop out of the Coyote Dam Feasibility Study? 7. Conflicts of interest of City water engineering firm. 8. Water permit extension and beneficial use of 20 cfs. BACKGROUND: The City has filed petitions with the State Water Resources Control Board ("SWRCB") to amend its permit to appropriate water as follows: 1. Change the points of diversion to include an additional well and designated well fields; ' It is possible that the SWRCB will not approve the full time extension requested or could reduce the permit entitlement for other reasons. City staff hopes that discussion of these other possibilities does not divert the City Council from focusing on the issue posed by staff. (continued on page 2) RECOMMENDED ACTION: Provide policy direction to staff ALTERNATIVE COUNCIL POLICY OPTION: N/A Citizens Advised: Local Water Purveyors Requested by: David Rapport, City Attorney Prepared by: David Rapport, City Attorney Coordinated with: Bob Wagner, Consultant; Charley Stump, Planning Director, Tim Eriksen, Public Works Director, Jane Changers, City Manager Attachments: Outline Approved: S,,g J erne C tubers, City Manag r ITEM NO: 2a Meeting Date: August 18, 2010 2. Expand the place of use where water under the permit may be applied to include the sphere of influence proposed in the City's 1995 General Plan (1995 S01"); and 3. Extend the deadline for putting water diverted under the permit to beneficial use from 2000 to 2035. In preparing the initial study for the Environmental Impact Report ("EIR") for these proposed changes to the City's permit, Leonard Charles, who is the consultant performing this work, has proposed examining the impacts from diverting only as much of the 20 cfs available for diversion under the City's permit as it is likely to use based on the following build-out projections within the 1995 SOL That is the amount of water needed to serve an additional 128 single-family units, 1,341 multi-family units, and 400,000 square feet of non-residential development. Based on the calculations presented in the City's [Urban Water Management Plan,] UWMP, this growth correlates to an additional 1,280 connections that would require approximately an additional 1,469 acre feet of water per year, which is about a 38% increase over the 3,831 acre feet per year supplied in 2006. (Proposed Initial Study, p. 8.) These uses are based on the maximum development possible under the draft Ukiah Valley Area Plan, but retaining Lover's Lane in its current agricultural use classification.2 Using these projections the City could not put the full 20 cfs to beneficial use within the requested time extension to 2035. This could result in the SWRCB reducing the City's maximum diversion under the permit from the current 20 cfs. OUTLINE FOR DISCUSSION Staff has prepared a detailed outline which is attached to this ASR. That outline is intended to include information the City Council needs to make a decision about three policy options proposed by staff. There could be others staff has not considered, but the staff's goal for this workshop is for the City Council to provide policy direction to staff. A summary of the detailed outline follows. 1) Background a) Sources and use of water i) City water by source ii) Maximum use (1) By City currently 2 Staff hopes the discussion does not focus on these development assumptions. Others may or may not be more appropriate, but the assumptions are not important for this discussion. What is important is that even under the most intense development assumptions, the City won't use its full 20 cfs entitlement within the 1995 SOI over the next 25 years. Page 2 of 3 ITEM NO: 2a Meeting Date: August 18, 2010 (2) Estimated future use within proposed service area b) Overview of City water rights (permit, pre-1914, percolating groundwater) 2) Dilemma posed by pending petitions (can't use full 20 cfs in currently proposed place of use - 1995 SOI) Consequence: SWRCB may limit City to amount of water it can put to beneficial use within extended time period, resulting in a reduction of its appropriative water right. 3) Policy options a) Expand proposed place of use b) Pursue transfer of surplus water c) Make no changes 4) Pros and cons of policy options 5) Next steps for each option 6) Discuss whether City should continue funding Coyote Dam Feasibility Study Page 3 of 3 ATTACHMENT WATER WORKSHOP OUTLINE August 18, 2010 1) BACKGROUND a) Current quantity of water (in cfs, mgd, afa) from existing City water sources, including Ranney Collector, Gobbi St. Well, Oak Manor Well, Well No. 4, Well No. 3 (See Exhibit A- Water Source Speadsheets.) b) Current maximum amount of water (in cfs, mgd, afa) used by City (See Exhibit A.) c) Estimate maximum amount of water(in cfs, mgd, afa) required, if City service area expanded to include Sphere of Influence proposed in 1995 General Plan ("1995 Sphere") (See Exhibit A.) d) Pertinent water rights i) Basic information about groundwater and surface water rights (1) Groundwater - SWRCB permitting authority - SWRCB has permitting authority over groundwater flowing in a known and definite channel underground (a) Criteria for establishing subterranean stream (i) Garrapatta Creek test 1. Is there a subsurface channel? 2. Does it have relatively impermeable bed and banks? 3. Is the course of the channel known or capable of being known by reasonable inference? 4. Is groundwater flowing in the channel? (ii) North Gualala decision by court of appeal seems to confirm SWRCB's use of these criteria (b) Implication for Ukiah Valley (i) Subsurface channel criteria is poorly defined. 1. Based on "relative impermeability" 2. Lacks dimension (ii) Almost any alluvial valley will meet criteria (iii) Water quality differences between wells and river indicate different source 1. Source differences do not necessarily indicate lack of jurisdiction 2. Source, like proximity to the river, are not defining criteria 3. Source is important for water right priority a. Project water restricted to East Fork (iv) Presumption remains that groundwater is not subject to SWRCB permitting authority. However, it is likely that, at some point, SWRCB staff will consider the Ukiah Valley a subterranean stream (2) Water Right Priorities (a) Pre-1914 appropriative (i) Senior to most other appropriative diverters including project water (ii) Senior to some riparian diversions (iii) Less sensitive to reduction in Eel River import reduction (b) SWRCB Permit (i) Junior to other appropriations commenced prior to 1954 (ii) Senior to some riparian diversions (iii) Junior to Project Water (iv) More sensitive to Eel River import reductions (c) Access to sources not available to Project (i) West Fork (ii) Tributaries downstream from Coyote Dam (iii) Groundwater discharge (iv) Incident precipitation (3) Impact of Return Flow (a) Not all water diverted is consumed (b) Return flow to Wastewater treatment plant is significant (c) Reduces impact on groundwater depletion (d) Can be put to beneficial uses ii) Permit to appropriate Russian River underflow (1) 1954 priority date (2) All sources of water to Main Stem Russian River subject to right, including East and West Fork, other tributary creeks (Gibson, Orr, Doolan, etc.) flow from groundwater aquifer, return flows (3) Flood Control District and SCWA permits have earlier priority date (1949), but only East Fork Russian River water stored in Lake Mendocino subject to those permits (4) To perfect by going to license, must put to beneficial use within time allowed by permit (5) Well No. 3 already included as point of diversion under permit (6) Pending petition seeks to add Well No. 5 and designated certain areas as well fields. In addition, Gobbi and Oak Manor wells identified on map with notation that they are included in the event it is later determined that they are pumping from an underground stream, but City currently regards them as pumping from percolating groundwater (7) In determining that RR fully appropriated, SWRCB counted full 20 cfs as being appropriated by City (SWRCB Decision 98-07) iii) Pre-1914 right (1) Arises from development and use of water tributary to or in Main Stem Russian River, beginning with formation of Ukiah Water Company, Inc. in 1872, its contracting with City to provide water beginning in 1886 and purchase of water system and rights by City in 1922. (2) Water claimed or diverted prior to 1914, when State first required permits to appropriate surface water, not subject to jurisdiction of SWRCB. (3) Quantity generally based on actual use prior to 1914, but if intent to use more established prior to 1914, may include increased use after 1914 (subject to development plan consistent with City growth over time). 2 (4) Decision 1030 approving City's permit recognizes that City was using 2.8 cfs in 1949. (5) Changes in points of diversion and place of use possible (Water Code 1706). (6) Transfers authorized but require consideration of "no injury" rule. (See Water Code § 1006.1) (7) Use does not count toward perfection of permit water, but see limited exceptions in Water Code Sections 1005.4 and 1011.5(b). iv) Percolating groundwater (1) Not subject to SWRCB control. (2) Use does not count toward perfection of permit water, but see limited exceptions in Water Code Sections 1005.4 and 1011.5(b). (3) SWRCB taking an increasingly aggressive position that groundwater in alluvial valleys like the Ukiah Valley part of an underground stream and, therefore, require a permit to use. (See 1)d)i)(1) above.) (4) Nevertheless, presumption remains that groundwater is percolating groundwater and burden on SWRCB to establish otherwise. (5) City collecting hydro-geologic and chemical data about Gobbi Street, Oak Manor and No. 4 wells which may support position that wells pumping percolating groundwater (Tabor Report, Balance Hydrologics). But see ld)i)(1)(b)(iii), above. (6) Until SWRCB formally notifies City that it regards wells as requiring a permit, City entitled to treat them as percolating groundwater. 2) SCOPE OF EIR - a) Conflict arises from current amendments to: i) change place of use to include only 1995 Sphere and ii) receive time extension to 2035 to put full 20 cfs to beneficial use b) Problem - i) State Board will require City to establish that it can put the full 20 cfs to beneficial use within the requested 25 year time extension (given past growth, suggest requesting 50 years). If the City cannot provide evidence that it can put the full 20 cfs to use within the extended time, the SWRCB may reduce the maximum available under the permit to the amount the City could put to use within that time period. (23 CCR 840-844.) ii) Under any supportable growth projections, the City cannot put full 20 cfs to beneficial use within a service area expanded to include only 1995 sphere (within 25 years; see graph of growth of water demand). iii) Other issues also affect the City's ability to perfect its permit right to the full 20 cfs (1) Status of Gobbi Street Well, Oak Manor Well and Well No. 4. (a) If percolating ground water, use not counted toward use of 20 cfs. 1 Nothing in this division affects or limits in any manner whatsoever the right or power of any municipality which, prior to December 19, 1914, had appropriated or acquired water for municipal purposes, to use, sell, or otherwise dispose of such water either within or without its limits for domestic, irrigation, or other purposes in accordance with laws in effect on that date. (b) Other consequences: (i) If the water pumped by those wells is flowing in a definite channel underground (i.e., is found not to be percolating groundwater), extraction would require a permit from SWRCB, and City could not use the wells until the SWRCB has approved adding them as points of diversion under the City's permit, unless it could use those wells as points of diversion under it pre-1914 water right. (ii) Even if considered underflow, source probably not East Fork which means City's use not junior to and not in competition with Flood Control District or Sonoma County Water Agency permits, which are limited to East Fork water. With the exception of its 2.8 cfs of pre-1949 water, the City could not rely on its permit to appropriate water from RR, if the only water in the river was East Fork water. This would be highly unlikely, especially with respect to Well No. 4, Gobbi Street Well and Oak Manor Well. (2) Quantifying City's pre-1914 water right, the use of which is not counted toward perfecting the 20 cfs entitlement under the City's permit. (a) Recent legislation required the City by July 1, 2010, to file a statement with the SWRCB that it is diverting water under a pre-1914 water right and identifying the points of diversion. By January 2012, the City is required to file a statement of the quantity of water it is diverting under its pre-1914 right from each diversion point. (Water Code 5100- 5107.) The statements or the failure to file them does not affect the City's right to claim or establish the extent of its pre-1914 water right. (b) The City has not performed the historic research necessary to quantify its pre-1914 water right. This is a valuable right that should be quantified with necessary steps taken to preserve it. This may require hiring qualified professionals. (3) Water conservation, whether necessary due to draught or mandated by state. (See Water Code 10608-10608.8, requiring urban retail water suppliers to set targets for water reduction with statewide goal of reducing urban water use by 20% by 2020.) 3) POLICY OPTIONS a) Expand place of use to encompass larger area in order to sell water to districts which may need it (e.g., Millview, Redwood Valley, Calpella, Willow, Hopland). b) Pursue transfer of surplus water to Flood Control District or other water districts pursuant to Water Code 381-387. c) Make no changes to pending petitions and risk SWRCB limiting permit to amount of water City can reasonably put to beneficial use within existing limits and 1995 Sphere or approximately 11 cfs. (See 1)c) above.) 4) CONSEQUENCES OF POLICY OPTIONS a) Expand place of use i) Pros- (1) Maximizes City water right 4 (2) Preserves water for inland Mendocino County (3) Makes water available to other districts that lack an adequate supply for current users as well as future uses. ii) Cons - (ITRequires amendment of petition to change place of use (2) Political opposition (3) May require LAFCO approval, if City purports to serve without annexing area or obtaining SWRCB approval of water transfer (4) May impact future development (5) May enable development outside City limits (6) May delay preparation and increase cost of EIR. b) Pursue transfer of surplus water i) Pros - (1) Encouraged by State water policy. (See Water Code §380.2) (2) Supersedes LAFCO approval. (See Water Code §381.3) (3) Allows for written agreement which can establish the terms and conditions under which water is being transferred or sold ii) Cons- (1) Could enable urban development outside City limits (2) Requires additional petition to be filed with SWRCB (3) Will delay preparation of EIR until City ready to proceed (see Next Steps below) (4) May increase cost of EIR 2 Water Code § 380. Findings and declarations The Legislature hereby finds and declares as follows: (a) The various regions of the state differ widely in the availability of water supplies and in the need for water to meet beneficial uses. (b) Decisions regarding operations to meet water needs can depend in part upon regional differences. (c) Many water management decisions can best be made at a local or regional level, to the end that local and regional operational flexibility will maximize efficient statewide use of water supplies. (d) The authority granted by this chapter to local and regional public agencies, as defined in subdivision (a) of Section 65930 of the Government Code and not including federal agencies, is in furtherance of the policy declared in Section 2 of Article X of the California Constitution and in Section 109. 3 Water Code § 381. Authority over conflicting law The authority of local or regional public agencies pursuant to this chapter shall control over any other provision of law which contains more stringent limitations on the authority of a particular public agency to serve water for use outside the agency, to the extent those other laws are inconsistent with the authority granted herein. c) Leave proposed amendments unchanged and risk losing the portion of 20 cfs City cannot put to beneficial use within next 25 years. i) Pros - (1) Avoids filing any additional petition or amendments with S WRCB (2) Existing project description adequate and Leonard Charles can prepare draft EIR without further delay or increased cost (3) Makes less water available for development outside current and probable future City limits ii) Cons- (1) Reduction in valuable water right (2) Loss of water right to inland Mendocino County in favor of downstream users, including SCWA (3) May inhibit future expansion of Sphere of Influence, if such desired by future City Council 5) NEXT STEPS FOR EACH POLICY OPTION a) Expand place of use i) Notify and meet with Redwood Valley, Calpella, Millview, Willow Water Districts to explain proposed expansion and reason therefor ii) Direct Wagner/Bonsignore to file revised amended petition iii) Revise project description for EIR iv) New scoping session for EIR b) Pursue transfer of surplus water i) Decide whether to offer to Flood Control District or to individual water districts or both ii) Meet informally with selected district or districts to discuss proposal iii) If district or districts are interested, negotiate terms of agreement for approval of governing bodies iv) File petition with State for approval c) Make no changes to pending petitions i) Instruct staff to proceed with current petitions, current project description, and currently proposed initial study COUK117.DOC 6 EXHIBIT A 2 a Y LL O H U r O LL Q I-- O 00 00 r- ~ V (D O CY) N H m 7 C 00 r- N O O O a Ur N N ,It O cn N 06 IT 00 O 0 LO 00 O to CO N N ~ cn O LO rn (O rn LO LL cr M r- N r- LO U o o r- r- L Q ~ r M f~ f~ O Ln 00 r f- O r O O O O r co LO O r- O O LO U- N r- I~ O N L U (o cri o o E E m CO Q O LO O N ~ O O M lzY (O Il O M O O O r N . 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