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HomeMy WebLinkAbout2002-09RESOLUTION NO. 2002-09 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH REQUESTING THE MENDOCINO COUNTY RUSSIAN RIVER FLOOD CONTROL & WATER CONSERVATION IMPROVEMENT DISTRICT TO SUSPEND ACTION ON INTERIM WATER SUPPLY AGREEMENTS AND TO INSTITUTE PARTICIPATORY PROCESS WHEREAS, the Mendocino County Russian River Flood Control & Water Conservancy District ("District") adopted an Ordinance No. 00-1 (June 26, 2000) establishing regulations and rules for water service; and WHEREAS, the District adopted Policy #01-2 on June 22, 2001, in which it stated that it has put its 8,000 acre-foot water right under Permit No. 12947B to beneficial use; and WHEREAS, the District by letter of July 23, 2001, has circulated application and interim water supply agreement forms, and set the period between August 15 and September 30, 2001, for accepting and processing completed applications; and WHEREAS, those District forms raise substantial issues as to the District's intent and position relative to water rights held by individuals and entities within the Mendocino County portion of the Russian River drainage; and WHEREAS, the City of Ukiah has water uses and rights that pre-date the District's Permit No. 12947B and uses that it expects the District to protect by the 8,000 acre-foot water right; and WHEREAS, the District stated in its July 23 letter and in its agreement form that it intends to give priority consideration to customers entering the interim water supply agreements, appearing thereby to establish preferential treatment for a class of customers solely on the basis of when they subscribe for water service; and WHEREAS, the District has not presented to potential customers, or other relevant stakeholders, the hydrological or water use data, findings or assumptions underlying its water supply agreement program; and WHEREAS, the upper Russian River drainage is covered by a complex skein of water fight claims and confronts water shortages that demand broad-based, in-depth and participatory problem-solving attention, NOW, THEREFORE, BE IT RESOLVED that the city Council of the City of Ukiah hereby urges the Mendocino County Russian River Flood Control & Water Conservation Improvement District AYES: 1. to suspend the September 30, 2001, deadline for the application submission and review process, and reconsider the form of that application; 2. to withdraw and not execute any of the form Interim Water Supply Agreements for the time being, and reconsider the form of that agreement; and 3. to initiate a participatory process hy which the District, potential customers and other relevant stakeholders can define issues of mutual concern and gather and share information relating to the implementation of a water supply contract program within the boundaries of the District. PASSED AND ADOPTED this 5th day of September by the following roll call vote: Councilmembers Larson, Smith, Libby, Baldwin, and Mayor Ashiku NOES: None. ABSENT: None ABSTAIN: None ATTEST: Marie Ulvila, City Clerk P~illip ~[shikt~, M~yor ATFACHMENT Selective Issues Posed by District's Application and Interim Water Suool~ Agreement Forms 1. Water Sources. The application asks that "Water Sources" (plural) be identified. Is this intended to elicit all water sources, or all types of water rights, on which an applicant currently relies (e.g., groundwater and surface, pre-1914 appropriative, pre-1949 vested or unvested, riparian or Coyote Project appropriative rights)? Or is it intended to elicit only the identification of the District's Coyote Project water that is the subject of the proposed interim water supply agreement (in which case it ought to be "Water Source," singular)? Similarly, does the SWRCB permit information sought by the application pertain to all SWRCB permits held by the applicant, irrespective of water source, or to only those permits, if any, that the applicant believes may be implicated, in part or in whole, by the District's exercise of its Coyote Project water right permit? Such clarification is of critical importance for several reasons. The administrative history underlying the Districts' Permit No. 12947B suggests an intent by the State to recognize and protect pre-1949 uses. It is our understanding that over the life of that permit, the District has treated those particular uses variously as being within and without the coverage of the permit. The July 23, 2001 cover letter from the District states that "customers entering into those Interim Water Supply Agreements with the District will be given priority in consideration of their applications to purchase water over those customers who opt not to enter into an Interim Water Supply Agreement with the District." Is it intended that pre-1949 uses, for example, be covered by the District's water supply agreements? If so, is it intended that those uses pay the same price and share the same preference (gained by entry into an Interim Water Supply Agreement) as post-1949 (including newly proposed) uses? 2. Scope of Uses for which Information Sought. In issuing the District's Permit No. 12947B, the SWRCB was cognizant that part of the City of Ukiah's Russian River water use was pre-1949. In addition to pre-1914 appropriative and some riparian fights, the City of Ukiah holds SWRCB Permit No. 12952 (max. 20 CFS) and License No. 4143 (31.77AFY) pertaining to Russian River water. There is no language in the present form of the application or the interim water supply agreement recognizing or protecting historic uses, fights or priorities, either within or without the District's Permit No. 12947B River water. Is the District seeking through its application form an inventory of uses under all these rights for purposes of water supply and demand studies in the Russian River drainage portion of Mendocino County? If so, something more than an application process and river-float reconnaissance would be required for that portion of the valley lying within Mendocino County. 3. Quantity of Water Requested. The foregoing uncertainties make it extraordinarily difficult for any applicant holding independent water rights to responsibly fill in the blank on the application entitled "Quantity of Water Requested." Moreover, the announced proffer by the District of preferences for applicants who do enter the form Interim Water Supply Agreement represents a threat for users who may feel that the creation of a new preferential class of customers is injurious to their water rights or otherwise unlawful. 4. Administrative Fee. Is any differential contemplated under Section 2, Paragraph 7, between the administrative fee rate for agricultural customers and domestic customers? If so, when will that be announced? Would the cost of any litigation defending this contract program be a burden that the District might impose on customers through administrative fees or otherwise? 5. Term of Interim Water Supply Agreement. The July 23 letter referred to terms of 12 to 18 months and the form agreement (Sec. 3, Para. 9) states 365 days. Whichever it is, what would occur if the supply and demand studies were not yet complete at the end of the term? If all the interim agreements did not have the same effective date, how would the "first option" provision (Se. 4, Para. 11) operate? 6. First Option Feature. Is it intended that the first option provision (Sec. 4, Para. 11) create a contract right to service that would be superior to the right to receive water of a water right holder (e.g. pre-1949 right holder) who either was a junior applicant for interim water or refrained from applying for interim water? What is the legal authority for creating a preference class among contractors on the basis of temporal execution of a water supply agreement? 7. C.E.Q.A. Why must a signatory agree "that the transaction contemplated hereby is exempt from the requirements of CEQA" (Sec. 5, Para. 12)? Can a would-be customer reasonably make a representation about what CEQA requires on the basis of the information provided by the District to date? 8. Effect on Water Rights. The agreement expressly purports to protect the District's water rights (Sec. 6, Para. 17) while giving no recognition or protection to any water rights, independent or related, of the customer. This and other provisions make the form agreement lopsided in favor of the District. 9. Contingent Reductions in Supply. There does not appear to be any domestic use preference built into the prorata reduction formula contained in Section 9, Paragraph 26. Is that the intent? Also, there does not appear to be any special protection given to customers whose uses pre-date 1949. Is that the intent?