ORDINANCE NO. 3299
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FULLERTON, CALIFORNIA, AMENDING FULLERTON MUNICIPAL CODE CHAPTER 12. 06
PERTAINING TO WATER CONSERVATION PLANNING
WHEREAS, California, including Orange County, experienced significant dry year conditions in 2012-2017 which led local water agencies to declare water shortage conditions that triggered drought actions.
WHEREAS, as a result, the City experienced a direct impact on the reliability of available water supplies. The agency's reliability increased through customer curtailment due to the implementation of demand management measures. The adopted 2015 Urban Water Management Plan, Water Shortage Contingency Plan Chapter 8 specifies these actions based on levels of drought severity and provided the legal authority for implementation and enforcement through the Water Shortage Contingency Response Ordinance.
WHEREAS, the California Legislature modified the Urban Water Management Planning Act following the end of the drought in 2018 to include additional water shortage planning requirements. California Water Code Section 10632 now mandates new elements to Urban Water Management and Water Shortage Contingency Plans including an annual drought risk assessment, State Water Shortage Levels and statewide water use prohibitions.
WHEREAS, the Water Shortage Allocations determined by the Metropolitan Water District of Southern California ( Metropolitan) apply to the imported water supplies in the City. When triggered, Metropolitan, as a wholesaler, will curtail deliveries of imported water based on Metropolitan' s Water Shortage Allocation Plan which Metropolitan may activate when in a state of shortage.
WHEREAS, both Metropolitanand the City must preparean Annual Water Supplyand Demand Assessment and Drought Risk Assessment as part of their Urban Water Management Plan for submission to the California Department of Water Resources. By July 1s' of each year, beginning the year following the adoption of the 2020 UWMP, Metropolitan and the City must monitor, report and, if declared a drought emergency, notify the Department of Water Resources, in order to comply with the State' s Water Code Section 10632.1 reporting requirements.
WHEREAS, the City has adopted a Water Shortage Contingency Plan to establish standards and procedures to enable implementation and enforcement of local water shortage contingency measures. These measures align with the State of California Water Code Section 353 which specifies that " when the governing body has so determined and declared the existence of an emergency condition of water shortage within its service area, it shall thereupon adopt such regulations and restrictions on the delivery of water and the consumption within said area of water supplied for public use as will in the sound discretion of such governing body conserve the water supply for the greatest public benefit with particular regard to domestic use, sanitation, and fire protection." The State of California also directsthe City to adopt a water conservationprogram to mitigate demands in Water Code Section 375.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FULLERTON DOES ORDAIN AS FOLLOWS:
Ordinance No. 3299
SECTION 1. That the City has deleted Fullerton MunicipalCode Chapter 12.06 and replacedwith the following:
WATER SUPPLY SHORTAGE CONSERVATION PLAN
12. 06. 010 Declaration of Purpose and Intent
This chapterestablisheswater managementrequirements necessary toconservewater, enable effective water supply planning, assure reasonable and beneficial use of water, prevent waste of water, prevent unreasonable use of water, prevent unreasonable method of use of water within the Cityin orderto assureadequatesupplies ofwaterto meetthe needs ofthe publicandfurther the public health, safety and welfare, recognizing that water is a scarce natural resource that requires careful management not only in times of drought but at all times.
This chapter establishes six levels of Water Shortage Levels most often triggered due to drought conditions to provide defined response actions to implement during times of declared water shortage or declaredwater shortage emergencywith increasingrestrictionson water use in response to worsening drought or emergency conditions and decreasing supplies.
12. 06. 020 Definitions
1. " Applicant" means the person, association, developer, corporation or governmental agency applying for water service.
2. " Applied water" means the portion of water supplied by the irrigation system to the landscape.
3. " BillingCycle" meansthe billing periodinwhichthe agencymeasures customer's water use for purposes of calculating the amount of the water service fees it shall collect for the water service provided.
4. " Billing Unit" meansthe unitof waterusedto applywaterratesfor purposes ofcalculating water chargesfor a person's water usage and equals 1,000 gallons ofwater.
5. " CitizensAppeals Board" means a board consistingof not more than five members appointed by City Council to hear appeals concerning applications for relief or violations thata customeror waterusercannotresolvewiththe HearingOfficer.
6. " Cost" meansthe actualcostto the Utility, includingall labor, material, supplies, equipment and miscellaneousitems, togetherwith anyapplicableindirectand generalcharges, plus the generaladministrativeoverheadin accordancewith theaccountingpracticesof the Utility.
7. " Customer' means water user.
Ordinance No. 3299
8. " Excessivewater use penalty" means the administrative penaltythe City may impose during Level 3, 4 or 5 as set forth in this chapter.
9. " Gray Water" shall have the same meaning as in California Health and Safety Code 17922.12, as amended. In general, gray water may includeuntreatedwastewaterfrom bathtubs, showers, bathroomwashbasins, clotheswashingmachinesand laundrytubs but does not include wastewater from kitchen sinks or dishwashers.
10. "Hardscapes" means any durable materialor feature (perviousandnon -pervious) installed in or around a landscaped area such as pavements or walls. This ordinance considers pools and other water features part of the landscaped area and not considered hardscapes for purposes of this Water Efficient Landscape Ordinance.
11. "HearingOfficer means thepersonappointedby the City Managerat theutilitylevelto resolve applications for relief.
12. "Landscaped area" means all the planting areas, turf areas and water features in a landscape design plan subject to the Maximum Applied Water Allowance and Estimated Applied Water Use calculations. The landscaped area does not include footprints of buildings orstructures, sidewalks, driveways, parking lots, decks, patios, gravelor stone walks, other pervious or non -pervious hardscapes and other non -irrigated areas designated fornon -development (e.g., open spaces and existing native vegetation).
13. "Metropolitan" means the Metropolitan Water District of Southern California.
14. "Non -pervious" meansany surfaceor natural materialthat doesnotallowfor the passage ofwaterthroughthe materialand intothe underlyingsoil.
15. 'Permit' meansan authorizing documentissued by localagencies fornewconstructionor rehabilitated landscape.
16. "Person" meansany individual, group, developeror organization operatingas a single entity.
17. 'Pervious" means anysurface or materialthat allowsthe passageof water throughthe material and into the underlying soil.
18. 'PotableWater' meanswaterthat is suitable fordrinking.
19. 'ResidentialCustomer' meansa singlefamilyor multi -family residentialwateruser.
20. "SinglePassCooling Systems" meansequipment wherewatercirculatesonlyoncetocool equipment before disposal.
Ordinance No. 3299
21. "Summer" meansthe waterseasonthat includes themonths of April, May, June, July, August and September.
22. "Turf' meansa groundcoversurfaceof mowedgrass. Annual bluegrass, Kentucky bluegrass, Perennialryegrass, Redfescue and Tall fescue are cool - season grasses.
Bermudagrass, Kikuyugrass, Seashore Paspalum, St. Augustinegrass, Zoysiagrass, and Buffalograss are warm -seasongrasses.
23. "Utility" means the municipalwaterorganization, itsstaffandthesystemservingthe City.
24. "Utilityrates, rulesandregulations" meansthe ratestructure ofthe Utilityandany rules and regulations adopted by the City.
25. "Watercustomer" meansthe personinwhosenameserviceisrenderedasevidencedby the signature on the application, contract or agreement for that service, or in the absence of a signedinstrument, bythe receipt and paymentof billsregularlyissuedin theirname, regardless of the identity of the actual user of the service.
26. "Water feature" means a design elementwhere open water performsan aestheticor recreational function. Water features include ponds, lakes, waterfalls, fountains, artificial streams, spas and swimming pools (where water is artificially supplied). The high water use hydrozone of the landscaped area includes the surface area of water features.
Constructedwetlandsusedfor on -site wastewatertreatment, habitatprotectionor storm water best managementpracticesnot irrigatedand used solelyfor watertreatmentor storm water retention are not water features and not subject to the water budget calculation.
27. "Water Shortage Emergency" meansa condition existingwithinthe Cityinwhichthe City cannotsatisfythe ordinarywater demandsand requirements of personswithinthe City without depleting thewater supply of the City to theextent that insufficient waterfor human consumption, sanitationand fire protectionwould exist. A water shortageemergency includesboth animmediate emergency, inwhichtheCitycannotmeetcurrentwaterneeds withinthe City, as well as athreatenedwatershortage, inwhichthe Citydeterminesthat its supply cannot meet an increased future demand.
28. "Wateruser" meansany user ofwater, includinga water customer.
29. "Winter" means the water season that includes the months of October, November, December, January, February and March.
30. "WSCP" meanstheWaterShortageContingencyPlanadoptedby CityCouncil.
12. 06. 030 Applications
Ordinance No. 3299
A. The provisions of this chapter apply to all customers, water users and premises served by the Utility wherever situated.
B. The provisions of this chapter do not apply to uses of water necessary to protect public health and safety or for essential government services such as police, fire and other similar emergency services.
C. The provisions of this chapter do not apply to the use of Gray Water.
D. The provisions of this chapter do not apply to the use of water by commercial nurseries and commercial growers to sustain plants, trees, shrubs, crops or other vegetation intended for commercial sale.
E. The provisions of this chapter do not apply to use of water from private wells.
F. This chapter solely intends to further the conservation of water. This chapter does not intend to implement any provision of federal, state or local statutes, ordinances or regulations relating to protection of water quality or control of drainage or runoff.
12. 06. 040 Procedures for Determination of Water Supply Shortage and Level Implementation A. Pursuant to Water Code Section 10632. 1, the City must submit a water shortage assessment report to the California Department of Water Resources by July 1 of each year.
B. The City will follow the written decision -making process defined in the WSCP to assess water supply reliability on an annual basis.
C. City staff will determine if a water shortage exists based on the water shortage criteria and stages defined in the WSCP.
D. In the event a water shortage exists pursuant to the WSCP, the City Manager will recommend to City Council to declare a shortage according to the defined water shortage levels.
E. The City will inform the public of the shortage according to the Procedures and Protocols for Communication identified in 12. 06. 050 of this Chapter.
When the City Manager determines that a sudden event has, or threatens to, significantly diminish the reliability or quality of the City's water supply, the City Manager may declare a catastrophic water supply shortage and impose whatever emergency water allocation or conservation actions deemed necessary, in the City Manager' s professional judgment, to protect the reliability and quality of the City's water supply, until the emergency passes or the City takes other action.
12. 06. 050 Procedures and Protocols for Communication
Ordinance No. 3299
Upondeclaration ofa WaterShortageEmergency, the Citywill informall relevantstakeholders, suchascustomers, thepublic, interested partiesandlocal, regionalandstategovernmentsofthe effectivedateofthewatershortage response actions associated withthe relevantstage according tothe communication proceduresidentifiedinthe CityWSCP, including:
A. Any currentor predicted shortagesasdeterminedbytheannualwatersupplyanddemand assessment.
B. Anyshortageresponseactionstriggeredoranticipatedto betriggeredbytheannualwater supply and demand assessment.
C. Any other relevant communications.
12. 06. 060 Permanent Water Conservation Requirements — Prohibition Against Waste The following water conservation requirements are permanent and remain in effect at all times.
The City considers violations of this section as waste and an unreasonable use of water:
A. Washing down sidewalks, walkways, driveways, parkingareasor otherpavedsurfacesis prohibited, except as whenrequiredto alleviatesafetyor sanitaryhazardsandthen only by use of a hand-held bucket or a pressure washer or hand- held hose equipped with a positive self -closing water shut-off device.
B. Usingwaterto washor cleana vehicle, includingbut notlimitedto anyautomobile, truck, van, bus, motorcycle, boator trailer is prohibited, exceptby use of a hand-heldbucketor hand-held hose equipped with a positive self -closing device or water shut-off nozzle. This subsectiondoes not applyto any commercialcar washingfacility.
C. The use of water to clean, fill or maintainlevelsin decorative fountains, ponds, lakesor othersimilaraestheticstructuresis prohibitedunlesssuchwateris partof a re -circulating system. The only exception is a water feature listed in the National Register of Historic Placeswhere water use is deemed necessary for integrity ofthe feature.
D. It is prohibitedto irrigateoutdoor landscapesduring or within forty-eight hours after measurable rainfall of one- fourth of one inch or more of rain.
E. Theirrigationwith potablewaterof ornamentalturfon publicstreetmediansisprohibited.
The irrigation withpotablewater of landscapesoutside ofnewly constructedhomesand buildingsin a manner inconsistentwith regulationsor otherrequirements establishedby the CaliforniaBuildingStandards Commissionand the Department ofHousing and Community Development is prohibited.
G. All leaks, breaks orother malfunctionsin the water user's plumbing, irrigationor distribution systemmustberepaired within seventy-twohoursof notificationbytheCity, unless other arrangements are made with the City.
Ordinance No. 3299
H. Watering or irrigating of any lawn, landscape or other vegetated area in a manner that causes or allows excessivewater flow or runoff from the property onto an adjoining sidewalk, driveway, street, alleygutter or ditch is prohibited.
I. Foodpreparation establishmentssuchas restaurantsor cafesareprohibited fromusing non -water conserving dish wash pre -rinse spray valves.
J. No installationof non -recirculatingwatersystemsin commercialcar washand laundry systems.
K. No installationor operationof singlepasscoolingsystem.
L. Commercialcar wash system. EffectiveJanuary 1, 2012, all commercial conveyorcar wash systemsmust have installedoperationalre -circulatingwatersystemsor must have secureda waiverof this requirementfromthe City.
12. 06. 070 Levels of Declared Water Supply Shortage
The City Manager has authorization to require or impose reductions in the use of water if such reductionsarenecessaryto comply withWaterSupply Shortageconditionsas definedinthe City WSCP.
TheWCSP definesthe shortageresponse actionsthatalign witheachLevelof WaterSupply Shortageandinclude, at a minimum, all ofthefollowing:
A. Locally appropriate supply augmentation actions.
B. Locallyappropriatedemand reductionactionsto adequatelyrespondto shortages.
C. Locally appropriate operational changes.
D. Additional, mandatory prohibitions against specificwaterusepracticesinadditiontostate - mandated prohibitions and appropriate to the local conditions.
E. For each action, an estimate of the extent to which implementation of the action will reduce the gap between supplies and demand.
F. Eachelevated shortagelevelwill includethe elements oftheprevious shortagelevel(s), including the mandatory restrictions on water waste detailed in the WSCP. Each elevated shortagelevelis intendedto be morerestrictivethanthe previouslevel(s).
G. Asdeemed necessary, the Citymayimplementanallocation ofwatersupplyunderawater supplyemergencyconditionbeyondWSCPdefinedactionswhenwatersupplyconditions dictate necessity.
Ordinance No. 3299
12. 06.080 Hardship Waiver
A. Undue and DisproportionateHardship: If, due to unique circumstances, a specific requirementof this chapterwould resultin unduehardshipto a personusingwater orto propertyuponwhichwater is useddisproportionatetothe impactsto water usersgenerally or to similarproperty of classes ofwaterusers, thenthe personmayapplyfor a waiverto the requirements as provided in this section.
B. WrittenFinding: The City maygrantor conditionallygrantthe waiveronlyupona written findingof theexistenceof factsdemonstratinganunduehardshiptoa person usingwater or to property upon which water is used disproportionate to the impacts to water users generally or to similar property or classes of water use due to specific and unique circumstances of the user or the user's property.
C. Application: Applicantsmust requestawaiveron aformprescribedbythe City.
D. Supporting Documentation: Photographs, maps, drawings and other information, includingawritten statementoftheapplicantasrequiredbythe City, mustaccompanythe application.
E. Required Findingsfor Waiver: The CityManager, or theirdesignee, maygranta waiverif the City Manager, or their designee, finds, basedon the informationprovidedin the application and supporting documents, or such additional information as requested, and on water use informationfor the propertyas shown bythe records ofthe City or itsAgent, all of the following:
1. That the waiver does not constitute a grant of special privilegeinconsistentwith the limitations upon other residents and businesses.
2. That becauseof specialcircumstances applicableto the propertyor its use, the strict application of this chapter would have a disproportionate impact on the property ofusethatexceedsthe impactsto residentsandbusinessesgenerally.
3. That the authorizing of such waiver will not impose substantial detriment to adjacent properties, will not materially affectthe ability of the City to effectuatethe purpose of this chapter and will not be detrimental to the public interest.
4. That the conditionor situation ofthe subject propertyor the intendeduse of the propertyfor whichthe waiver is soughtis not common, recurrentor generalin nature.
F. ApprovalAuthority: The CityManageror their designeemust actuponanycompleted applicationnolater thantenbusiness daysaftersubmittalandmayapprove, conditionally approveor denythe waiver. The City mustpromptlynotify theapplicantrequestingthe waiver in writing of any action taken. Unless specified otherwise at the time of waiver Ordinance No. 3299
approval, thewaiverwill applyto the subject propertyduringthe periodofthe mandatory water supply shortage condition. The decision of the City Manager will be final.
12. 06. 090 Penalties, Violations, and Enforcement
Penalties. It shall be unlawfulfor any water user to fail to comply with any of the provisions of this chapter. The penalties set forth in this section shall be additionalto those penalties providedin any other section of this code. The penaltiesfor failureto comply with any of the prohibiteduse provisions of this chapter shall be as follows:
A. First Violation: The City willissuea writtenwarningby mail or posting (i.e., door hanger).
B. SecondViolation: Asecondviolationwithintwelve monthsof a FirstViolationis punishable by a fine not to exceed one hundred dollars.
C. ThirdViolation: A third violationwithintwelve) monthsof a SecondViolationis punishable by a fine not to exceed two hundred and fifty dollars.
D. Fourth and Subsequent Violations: A fourth and any subsequent violations within twelve months of a Third Violation is punishable by a fine not to exceed five hundred dollars for each violation.
Terminationof Service: In additionto any fines, the City may disconnectand/or terminate a customer's water service for repeated violation of mandatory restrictions in this Conservation Program.
2. Cost of Disconnecting Service: A person or entity that violates this chapter is responsible for payment of the City's charges for disconnecting and/or reconnecting service. The person or entity must pay all fees in full prior to service restoration. Nonpayment of the penalties will be subject to the same remedies as nonpayment of basicwater rates pursuantto the City's Water Rates, Rules and Regulations.
3. Separate Offenses: Each day that a violation of this chapter occurs is a separate offense.
4. Notice and Hearing:
a. The City willissuea Noticeof Violationby mailor personaldeliveryat least ten business days before taking enforcement action. Such notice must describe the violation and the date by which the customer must take corrective action. A customer may appeal the Notice of Violation by submittinga written letterof appealto the HearingOfficer no laterthan the close of business on the day before the date scheduled for enforcement action. If notsatisfiedwiththe HearingOfficer'sdecision, the customermay appeal the Hearing Officer's decision by filing a written notice of appeal with the CitizensAppealBoardwithin ten business daysof the Hearing Officer's determination. Any Notice ofViolationnottimely appealedwill be Ordinance No. 3299
final. Upon receipt of a timely appeal, the City will schedule a hearingon the appeal and mail written notice of the hearing date to the customer at least ten business days beforethe hearing date.
b. Pending receipt of a written appeal or pending a hearing pursuant to an appeal, the City may take appropriate steps to prevent the unauthorized use of water as appropriate to the nature and extent of the violations and the current declared water Phase condition.
If any personfails or refuses to complywith this Chapter, the City Manager, or their designee, shall provide that person with written notice of the violation and an opportunity to correct the noncompliance. The City shall include the following in the written notice:
A. Mail or post to the address of the violation, to the party billed for the water or to the Owner of the property, as appropriate.
B. State the time, date and place of violation.
C. State a general description of the violation.
D. State the means to correct the violation.
E. State a date by which correction is required.
F. State the possible consequences of failing to correct the violation.
12.06. 100 Other Provisions
A. CustomerWaterConservationReports: The City may, by writtenrequest, requirea commercial, residentialor industrialcustomerusingtwenty million or more gallons per year to submita water conservationplan andto submit quarterlyprogress reportson such plan. The conservation plan must include recommendations for increased water savings, separation ofusesincludingincreasedwaterrecycling basedonfeasibilityand thereports must include progress to date on implementation of such recommendations.
B. Model Water Efficient Landscape Ordinance: This ordinance adopts the California Departmentof Water ResourcesModel Water Efficient LandscapeOrdinance by reference and incorporates it as part of this chapter. The City provides the full text of the Model Water Efficient Landscape Ordinance on the City's website at www.cityoffullerton.com and as well as in the Office of the City Clerk..
C. Asdeemed necessary, the Citymayimplementanallocation ofwatersupplyunderawater supply emergency condition, beyond WSCP defined actions, when water supply conditions dictate necessity. The City Manager is authorized to require or impose allocationof water in the use of water if such reductionsare necessaryto complywith Water Supply Shortage conditionsas definedin the City WSCP.
Ordinance No. 3299
D. The City may provide water efficiency devices either directly or through supported programs.
SECTION 2. Exemptionfrom California EnvironmentalQuality Act. The City Council finds that Chapter 12.06 and actions taken hereafter pursuant to the Chapter are exempt from the provisions of the California Environmental Quality Act ( CEQA) of 1970 as specific actions necessary to prevent or mitigate an emergency pursuant to Section 15307 of the CEQA Guidelines.
SECTION3. Severability. If a court of competent jurisdiction finds any section, subsection, sentence, clause or phrase in Chapter 12.06 or the application thereof to any person or circumstances invalid, the validity of the remainder of the Ordinance or the application of such provision to other persons or circumstances shall not be affected. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that one or more sections, subjections, sentences, clauses or phrases is declared invalid.
SECTION 4. The City Clerk shall certify to the passage and adoption of this Ordinance and shall publishedthe samein the mannerrequiredby law. This Ordinanceshallbecomeeffectivethirty days from and after its passage.
ADOPTED BY THE FULLERTON CITY COUNCIL ON JUNE 1, 2021.
Bruce Whitaker
Mayor
City of Fullerton
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF FULLERTON )
ORDINANCE NO. 3299
I, LucindaWilliams, CityClerkand ex-officioClerkof the City Councilof the Cityof Fullerton, California, hereby certifiesthatthewholenumberof themembersofthe CityCouncilof the Cityof Fullertonisfive; and that the aboveand foregoingOrdinanceNo. 3299 hadfirst readingby title only, introductionand furtherreadingwaivedatthe May18, 2021CityCouncil regularmeetingandwasadoptedat theJune1, 2021 CityCouncilregularmeeting bythe following vote:
COUNCIL MEMBER AYES:
COUNCIL MEMBER NOES:
COUNCIL MEMBER ABSTAINED:
Whitaker, Jung, Silva, Zahra
None
None
COUNCIL MEMBER ABSENT: Dunlap