20070404 Text of the consent agreement between
Text of the consent agreement between he City of
STATE OF MARYLAND DEPARTMENT OF THE ENVIRONMENT
SECRETARY OF THE ENVIRONMENT
WATER MANAGEMENT ADMINISTRATION
v.
THE MAYOR AND COMMON COUNCIL OF
CONSENT ORDER
This Consent Order is entered into between the State of Maryland, Department of the Environment ("MDE" or "Department"), pursuant to the powers, duties, and responsibilities vested in and imposed upon the Secretary of the Environment by Title 1, Title 5, Subtitle 5, and Title 9, Subtitles 2 and 5 of the Environment Article, Annotated Code of Maryland, as delegated to the Director of the Water Management Administration (the "Administration") and The Mayor and Common Council of Westminster, ("City") regarding the provision of a safe and adequate water supply for the City and surrounding areas in Carroll County dependant on the City’s water supply.
WHEREAS, the City owns and operates two Water Supply Systems ("Water Supply Systems") serving the City of
WHEREAS, the City is taking certain measures to bridge the gap between its water supply demand during drought conditions, including utilizing water from Medford Quarry,
employing water restrictions as an interim measure, and developing plans to reduce water losses and increase water conservation. The City is also preparing a plan to appropriately manage and allocate its water resources. To address the City’s long-term water needs to supply water for new growth, the City is investigating the feasibility of alternative sources and preparing a plan to bring one or more of these alternatives to fruition. The purpose of this Consent Order is to allow the City to meet its existing water needs while remedial measures are being developed and put on-line, accommodate a limited amount of interim growth and establish an effective system for managing future capacity in accordance with MDE guidelines.
Regulatory Scheme
WHEREAS, the General Assembly has enacted a comprehensive permitting and regulatory scheme governing the provision of safe and adequate drinking water to the citizens of Maryland; and
WHEREAS, the Secretary of the Department is charged with the responsibility for regulating the operation of Water Supply Systems in a manner that will protect the public health and comfort, and for enforcing State Laws regarding corrections to public Water Supply Systems or the operations of such systems in order to abate risks to the public health or comfort; and
WHEREAS, Title 1, Subtitle 3, of the Environment Article authorizes the Secretary of the Environment to carry out the statutes and regulations promulgated under the Article; and WHEREAS, under Title 9, Subtitle 2, of the Environment Article, MDE is responsible for overseeing and assuring the adequacy of Water Supply Systems; and
WHEREAS, Section 9-252 of the Environment Article provides that the Secretary may require any public water system "to be operated in a manner that will protect public health and comfort" and that the Secretary "has supervision and control over the sanitary and physical condition of the waters of this State to protect public health and comfort"; and
WHEREAS, under Section 9-206 of the Environment Article, land platted for subdivision may not be sold unless a plat has been submitted to the Department or to a delegated local authority, which includes a statement of the methods, consistent with title 9, Subtitle 5, by which the subdivision is to be supplied with water; and
WHEREAS, Section 9-222 of the Environment Article provides that, where the absence or incompleteness of a system operated by a political subdivision is prejudicial to the public health or comfort, the Secretary may order the political subdivision to install, alter, extend, utilize, operate or complete a water supply system; and
WHEREAS, under Section 9-512(b) of the Environment Article, the local authority has the responsibility not to issue building permits unless, taking into consideration all existing and approved development in the service area, the water system is adequate to serve the proposed development; and
WHEREAS, under Section 9-512(d) of the Environment Article, a subdivision plat may not be approved unless the water supply system would be completed in time to serve the proposed development and would be adequate to serve the proposed development once completed; and
WHEREAS, an adequate water supply system is one that is capable of meeting its average demand and its maximum demand under drought conditions. A water system’s capacity is determined by evaluating the ability of the sources and treatment facilities to produce water under drought conditions while taking into account the water sources, water storage, and water appropriation and use permit limits. A water system’s demand is determined from past usage patterns and the characteristics of the user community, including residential, commercial and industrial use. The projection of future growth is used to establish demand for future years. Demands under drought conditions are determined for average daily annual usage, average daily usage during the month of maximum use, and maximum day.
Factual Background
WHEREAS, the City’s Water Supply Systems are public water systems that are supplying water to apartments, businesses, churches, public facilities, residences and schools located within the City and portions of Carroll County, Maryland; and
WHEREAS, the City’s Water Supply Systems serve a population of approximately 33,000 located in Carroll County, Maryland. The City maintains 6.9 million gallons of available storage of treated water and owns and operates a series of eleven (11) wells and stream intake structures (on Cranberry Branch and West Branch (Hull Creek)); conveyance systems; a raw water reservoir; water treatment and pumping facilities; and a distribution system that includes water mains, fire hydrants, and water meters; and
WHEREAS, pursuant to nine separate water appropriation and use permits, the City is authorized to withdraw 1.476 mgd as an annual average from the City’s eleven (11) production wells. Pursuant to Water Appropriation and Use Permit CL1957S002(06), the City is authorized to withdraw 2 mgd as an annual average from Cranberry Branch and West Branch as long as the. stream flow is greater than 0.3 cubic feet per second (cfs) below the intake on Cranberry Branch and greater than 0.55 cfs in the West Branch; and
WHEREAS, as reflected in Table 1 below, an analysis of the safe yield of the Water Supply Systems under drought of record conditions revealed a total capacity of 2.229 mgd as an annual average, with 1.18 mgd from the City’s eleven production wells and 1.05 mgd from the two surface water sources;
WHEREAS, the annual average drought year demand, including the demand from all permitted but not yet connected users as of December 31, 2006 is 2.996 mgd, producing an estimated average annual drought year deficit of 0.767 mgd ("Drought Year Deficit"); and
WHEREAS, the City and MDE evaluated the capacity of the City’s sources to meet the average annual system demand during non-drought conditions. Well 11 was not included in this analysis as it does not have a permanent connection and would not be used during an average hydrologic year.
MDE’s analysis of the City’s production data showed that the average year capacity under non-drought conditions, as shown in Table 1, was 2.992 mgd; and
WHEREAS, the City determined that the average year demand under non-drought conditions (equivalent to a drought year demand with water restrictions in place) including the demand from all building permits issued prior to December 31, 2006, but not yet connected to the water system, is 2.853 mgd (also shown in Table 1), which represents a surplus of 139,000 gpd under average hydrologic conditions; and
WHEREAS, in order to address their drought year water shortages, the City applied for an emergency appropriation of 1.08 mgd on any single day from Medford Quarry during 2002 and again in 2005. MDE authorized temporary emergency withdrawals of 1.08 mgd for any one
day in 2002 and 2005 via Permits CL2002S042(01) and CL2005S028(O1). The annual average reported water uses were 0.15 mgd and 0.267 mgd in 2002 and 2005, respectively. In order to obtain a permanent emergency back up source of supply, the City secured an agreement with the owner of Medford Quarry in June of 2005; and
WHEREAS, after the Department completed its review of all the relevant information available and taking into account the amount of land owned by the Quarry, the Department issued a Water Appropriation and Use Permit (No. CL2002S042(02)) in June of 2006 to the City for up to 0.5 mad from the Quarry as a maximum daily amount. The use was permitted as a back up supply to the City’s other surface water withdrawals from Cranberry Run and West Branch (Hull Creek) to help address the existing deficit and not to support any new development; and
WHEREAS, in accordance with § 9-512(d) and after meeting with the Department and the City in June 2006, the Carroll County Environmental Health Department stopped signing record plats in July 2006 as the City had not demonstrated that its water system would be adequate to serve additional connections; and
WHEREAS, after reviewing the City’s final Capacity Management Plan, MDE directed the Carroll County Environmental Health Department in September 2006 to no longer approve building permits that would result in a net increase in water demand on the City’s water system; d.
WHEREAS, according to the City’s Water Supply Capacity Management Plan, dated August 2006, the City’s unaccounted for water was as high as 24% of the total water delivered from the City’s water sources. Water loss could include authorized unmetered water usage, water leakage, meter errors, unauthorized use or billing errors.
Recent Actions Taken by the City to Improve System Capacity
WHEREAS, the City has taken the following steps to improve the system capacity and cover the Drought Year Deficit:
a. Secured engineering services for the design and permitting of a pipeline from Medford Quarry to Cranberry Reservoir;
Submitted a revised application for funding (low interest loan) to MDE to begin construction of the said pipeline and received an award of $6.5 million;
c. Made an application to withdraw 2.0 mgd as an annual average from Big Pipe Creek in May 2006;
d. Submitted in January 2007 an application to increase its appropriation from Medford Quarry to 1 mgd during the month of maximum use and 250,000 gpd as an annual average;
e. Submitted an application in December 2006 to withdraw water from Hydes Quarry as a back-up source for Little Pipe Creek. The total average annual withdrawal request for these sources is approximately 1 mgd;
f. Submitted an application in December 2006 to withdraw water from Little Pipe Creek initially as a back-up source to increase operational flexibility but then, if and when the Hydes Quarry withdrawal is permitted and connected to the Water Supply Systems, to provide an additional water source;
g. Evaluated the benefit of increasing the size of Cranberry Reservoir on the safe yield of the water system. Other sites for additional storage are also being evaluated to provide raw water storage;
h. Issued a Request for Proposal of Engineering Services to design a water treatment system for the Koontz Creamery Well. Alternatives being evaluated are direct treatment and use and pumping the well to the Cranberry Reservoir via pipeline;
i. Negotiating easements for a permanent connection for Roops Mill Well #11. Design is at 85% completion;
j. Contracted for installation of ion exchange treatment for nitrate removal at Vo¬Tech well with a Spring 2007 completion date;
k. Hired staff to review water billing to determine what portion of the 24% unaccounted for water may be due to accounting and billing errors; and
l. Participated in forming a task force with the County to evaluate and implement joint solutions to the water capacity problem.
m. Drafted amendment to the City’s portion of the Carroll County Water and Sewer Plan which describes the means and methods by which the City is addressing the Drought Year Deficit and what sources of additional water sources the City is considering to meet its future water needs.
NOW, THEREFORE, it is this (blank) day of (blank), 2007, pursuant to Sections 9-252,9-220, 9-221, 9-222, 9-268, and 9-335, AGREED between the Water Management Administration and the City of Westminster and ORDERED by the Director of the Water Management Administration that:
1. The City shall complete its technical study and meet all other regulatory requirements in support of its application to withdraw additional water from Medford Quarry and submit the completed application to MDE by November 1, 2007.
2. Within sixty (60) days of MDE’s decision on the Medford Quarry application, the City shall submit to MDE a final plan and schedule to complete all phases of projects necessary to eliminate the Drought Year Deficit. If the Medford Quarry source, as permitted, does not completely satisfy the Drought Year Deficit, the City shall apply toward the deficit all demonstrated reductions in unaccounted for water due to repairing leaks until the deficit is fully addressed. If, after considering the Medford Quarry permit and reductions in water loss, other projects are needed to fully address the Drought Year Deficit, the City shall complete all water use and appropriation applications for such projects within six months of MDE’s Medford Quarry decision.
3. The City shall complete its evaluation of the sources of unaccounted for water and submit a Water Loss Reduction Plan by June 30, 2007. The evaluation shall be submitted to MDE for review and comment.
a. The evaluation shall identify the average daily quantity and percentage of unaccounted for water believed to be due to:
i. leaks in the water distribution system;
ii. accounting errors;
iii. faulty/under reading customer meters or other meter errors;
iv. unmetered usage;
v. fire fighting;
vi. theft; and
vii. unknown sources;
b. The evaluation shall justify the estimates provided in subparagraph a above. Range of estimates shall be provided as dictated by available data; and
c. The Water Loss Reduction Plan shall identify those actions necessary to achieve a goal often (10) percent (%) or less unaccounted for water loss by 2012. The plan shall include to a description of capital improvement projects needed to correct significant leaks in the water supply system’s infrastructure. The plan shall include methods to comprehensively review the system to identify potential leaks no less than three times per year. The City shall annually submit a water audit following MDE guidelines and report on progress for implementing its plan by February 15 of each year for the preceding year.
4. By June 15, 2007, the City shall develop a Water Conservation Plan to promote the wise use of water to reduce excessive water usage. The Water Conservation Plan shall be submitted to MDE for review and comment. The Water Conservation Plan shall address the following:
a. Recommend changes to City Ordinance to promote establishing conservation measures, such as prohibiting outdoor lawn watering during certain daytime hours, establishing odd/even days for outdoor watering, granting incentives for planting new developments with drought tolerant grasses and using stormwater for outdoor watering;
b. Consider further replacement/rebate programs to promote greater use of low-flow fixtures;
c. Establishing a public education and outreach campaign;
d. Conduct water audits of the largest water users; and
e. By February 15 of each year, the City shall annually report on water conservation activities.
5. MDE agrees to review and make timely comments on all plans and reports submitted by the City.
6. Upon signing this Consent Order, the City shall be granted 60,000 gpd as an annual average to allocate in accordance with an Interim Allocation Plan, which the City will develop within 30 days from the date of this Consent Order. A copy of said interim Allocation Plan will be provided to MDE for its records.
7. MDE shall permit the City to maintain a flow-by of 0.2 cfs for Cranberry Branch and 0.37 cfs for West Branch as long as mandatory water restrictions are in place and until the project constructing the water line from Medford Quarry to the Cranberry Reservoir is complete.
The City shall conduct stream surveys/biological assessments of Cranberry Branch and West Branch in accordance with procedures contained in the 2001 Maryland Biological Stream Survey (MBSS) Sampling Manual. The surveys/assessments shall be made upstream and downstream of each intake site, with the locations proposed by the City and approved by MDE. Sampling of water quality and benthic macroinvertebrates shall be completed during the Spring Index Period (March 1 to May l, 2007). Sampling of fish and herptofauna and evaluation of stream physical habitats shall be conducted during the Summer Index Period (June 1 to September 30). The City shall submit a comprehensive plan to conduct such monitoring by April 1, 2007 and a final report by December 31, 2007.
8. By June 30, 2007, the City shall have in place the contract(s) necessary to haul a sufficient quantity of water equal to the difference between a system demand of 2.992 mgd and a drought of record year capacity newly calculated to account for the adjustment of the flow-by for Cranberry Branch and West Branch under paragraph 7 of this Consent Order. The City shall submit the revised mass flow analysis at the lower flow-bys along with copy of contract(s) by June 30, 2007.
9. By July 1, 2007, the City shall complete all permit applications needed to make a permanent connection of Well 11. Within 30 days of receiving all permits and completing easement negotiations, the City shall advertise the project for construction. The City shall provide a -schedule to MDE for the permanent connection of Well 11 and report to MDE when this well is permanently connected to the system.
10. By March 1, 2008 the City shall submit an updated Capacity Management Plan to MDE for review and approval. The Capacity Management Plan shall be consistent with MDE’s Guidance Document (2006). The Capacity Management Plan shall describe in detail how the City will manage its existing and future water commitments, the criteria it will use for distributing future flow allocations, and how it will limit the issuance of building permits and approval of subdivision plats so as not to exceed the capacity of the water supply system. The City shall implement the approved plan.
11. By April 1, 2008 the City shall submit a plan and schedule to ensure that the Water Supply Systems have sufficient capacity to meet all existing demand and demand for future planned growth under drought of record conditions. The plan shall also provide for a water reserve capacity to ensure no water deficit in the future.
12. Upon MDE’s approval of the City’s plan and schedule, the Department will issue notice to the City allowing it to allocate the remaining 79,000 gpd (of the 139,000 gpd surplus under average hydrologic conditions) as an annual average if the following conditions are met:
a. The City has received all approvals needed to construct the emergency pipelines from Medford Quarry and is on schedule with construction of this conveyance system (see paragraph 2 above);
b. The City has entered into all contracts necessary to complete the connection of Well 11 and has begun construction of the connection; and
c. The City is in compliance with all other conditions of this Consent Order.
13. The City shall implement water use restrictions, both voluntary and mandatory, d shall haul water from an approved source in accordance with the City’s Drought Management Plan dated July 24, 2006, until all of the projects needed to eliminate the drought year deficit and supply the 139,000 gpd authorized by this Consent Order are completed.
14. MDE reserves the right to require measures to make habitat improvements, revise flow-by conditions (see paragraph 7) or revise contract hauling requirements (see paragraph 8) based on the stream surveys and biological assessments provided under paragraph 7 of this Consent Order.
15. The City waives any right it may have to request a contested case hearing concerning the terms of this Consent Order.
16. Nothing in this Consent Order shall be construed to limit any authority of the Administration to issue any orders, enforce any applicable permits, or to take any action it deems necessary to protect the public health or comfort, or to limit any authority the Administration has or may hereafter be delegated. Any delays in meeting the requirements of this Consent Order, whether justified or not, may result in termination of this Consent Order at the discretion of the Administration. Subject to the two preceding sentences and any amendment of this Consent Order, this Consent Order shall be in effect until the City’s long-term measures to ensure an adequate water supply come are completed.
17. The provisions of the Consent Order shall apply to and be binding upon the City of
18. It is the intent of the parties that the provisions of this Consent Order are severable and that, should any provisions by declared by a court of law to be invalid or unenforceable, the other provisions shall remain in effect to the maximum extent reasonable.
19. This Consent Order shall be governed by and construed in accordance with the laws of the State of
IT IS SO AGREED AND CONSENTED TO:
Date Virginia Kearney, Acting Director Water Management Administration
Date
The Mayor and Common Council of Westminster by
Thomas K. Ferguson, Mayor
Approved as to form and legal sufficiency This (blank) day of (blank), 2007.
Adam Snyder
Assistant Attorney General
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