Review Draft Ordinance 21-04, Critical Water Deficiency Regulations

Purpose:
The purpose of this case is to review draft Ordinance 21-04, Critical Water Deficiency Regulations, along with the attached documents and information presented within this case, and to receive consensus direction from Council on any amendments required to draft Ordinance 21-04 before introducing it at a future City Council meeting.
 
Background:
On January 7, 2021, draft Ordinance 21-04, Critical Water Deficiency Regulations, was published as item 7.2 of the January 12 regular City Council agenda. However, on January 11 this item was pulled from the agenda due to the numerous requests Staff received from Council members for documents and information concerning the draft ordinance. Attached is a copy of item 7.2, including draft ordinance 21-04. At the time, Council was informed Staff would reschedule this item, and that the City has until April 15 to adopt a Critical Water Deficiency ordinance.
 
Staff has since researched the statutory and regulatory rules that require the City to adopt a Critical Water Deficiency ordinance, as well as alternatives available to the City Council, in an attempt to respond to the numerous requests received from Council members. Below are bullet points summarizing Staff’s findings based on communications with Minnesota Department of Natural Resources (DNR) and League of Minnesota Cities (LMC) Staff, and from online searches.

• The DNR is responsible for interpretation and application of water supply laws.
• The sole legal authority for Critical Water Deficiency ordinances comes from Minnesota Statute 103G.291.
• Minnesota Statute 103G.291 refers to rules the DNR Commissioner would adopt in the event the governor declares a critical water deficiency.
• DNR Commissioner Rules did not inform the development of the Critical Water Deficiency model ordinance.
• The Critical Water Deficiency model ordinance was developed by the Minnesota Rural Water Association in cooperation with the LMC.
• The City is not required to adopt a Critical Water Deficiency Ordinance until the governor declares a critical water deficiency by executive order, but the DNR recommends developing our ordinance now to practice good preparedness planning.
• The City can amend the LMC model ordinance language, but at a minimum the ordinance must reference Minnesota Statute 103G.291 and must limit lawn sprinkling, vehicle washing, golf course and park irrigation, and other nonessential uses, and have appropriate penalties for failure to comply with the restrictions in accordance with Subdivision 1(b).

 
Staff believes these findings address the numerous requests received from City Council members regarding draft Ordinance 21-04. However, if any questions remain or new questions surface, Staff will follow up and report back with our findings.
 
As previously noted, Staff initially believed the City had until April 15 to adopt a Critical Water Deficiency ordinance based on the attached email from the DNR approving the City’s Water Supply Plan. Since then, Staff received the following information from the DNR. The purpose of developing the ordinance now, rather than waiting for a crisis, is just a matter of good preparedness planning. The statute doesn’t require the City to take action until the governor declares the deficiency, but by then the City may be in crisis mode. LMC attorneys agreed that the statute is required by cities so they developed a model ordinance. There is no statute or rule requiring the City to adopt an ordinance within 6 months of receiving DNR approval of the City’s Water Supply Plan.
 
The following documents are attached to this case. Some of the documents are referenced within draft ordinance 21-04. Others are attached as supporting documents or because they were requested by Council members.

• Agenda item 7.2 with draft Ordinance 21-04 (pulled from January 12 agenda)
• Model Ordinance used by Staff to develop draft Ordinance 21-04
• Minnesota Statute 103G.291
• Minnesota Statute 103G.261
• Minnesota Rules Chapter 6115
• DNR email approving Water Supply Plan
• City Code Section 58-118

 
In summary, the City is not required to adopt a critical water deficiency ordinance before the governor declares a critical water deficiency, and the language within the attached draft ordinance can be amended to some extent.
 
Adopting a critical water deficiency ordinance before an emergency is declared would allow the City to enact targeted water use restrictions on short notice if the governor were to declare a critical water deficiency. A deficiency could be driven by a prolonged drought, insufficient water quantities within the municipal water supply aquifer, or if the aquifer were to become polluted.
 
It is important to note that the DNR approves the City’s water appropriation permit, which allows the City to withdraw a maximum volume of groundwater each year from our water supply aquifer. Based on the volume of water the City withdrew last year, which was a relatively wet year, the City will likely soon need to apply for a new water appropriation permit from the DNR with an increased appropriation volume. Minnesota Rule 6115.0690 Subpart 3 states, “Appropriation permits issued to public water supply authorities shall be subject to requirements of Minnesota Statutes, section 103G.291, relating to critical water deficiency periods and restriction of nonessential uses.” Therefore, when the City applies for a new water appropriation permit, the DNR could potentially deny the permit if they think the City is not complying with Statute 103G.291.   

Staff anticipates 20 minutes will be required to present this case, to respond to questions, and to receive consensus direction from Council on any amendments required to draft Ordinance 21-04.  

No costs are required to amend draft Ordinance 21-04. Staff can complete this work as part of their regular duties.  

The City Engineer will present this case and will respond to questions.  The Civil Engineer IV, who prepared draft ordinance 21-04 and item 7.2, will also be available to respond to questions as needed.  

Receive consensus direction from Council on any amendments required to draft Ordinance 21-04 before introducing an amended ordinance at a future City Council meeting. Alternatively, an amended ordinance could be presented at a future work session if additional discussions or information is desired.