45-565.01. Non-per capita conservation program for municipal providers; second management period

A. In addition to the provisions of the management plan for the second management period prescribed by section 45-565, subsection A, not later than January 1, 1995 the director shall include in the management plan a non-per capita conservation program for municipal providers that requires a municipal provider approved for the program to implement specific conservation programs within its service area, including all of the following:

1. Residential and nonresidential conservation programs for interior and exterior water use.

2. A public education program relating to water conservation.

3. A program to meter all service area connections, except connections to fire services, dwelling units in multifamily residential structures, mobile homes in mobile home parks with master meters and construction users.

B. In a non-per capita conservation program established under this section, the director shall establish a standard incidental recharge factor for all municipal providers that apply for the program, except for municipal providers that are members of a groundwater replenishment district established under title 48, chapter 27. A municipal provider that applies for the non-per capita conservation program may request in its application that the director establish an incidental recharge factor for the municipal provider that is different than the standard incidental recharge factor established in the program. The director may establish a different incidental recharge factor for the municipal provider if the municipal provider demonstrates to the satisfaction of the director that the ratio of the average annual amount of incidental recharge expected to be attributable to the municipal provider during the management period to the average annual amount of water expected to be withdrawn, diverted or received for delivery by the municipal provider for use within its service area during the management period is different than the standard incidental recharge factor.

C. A municipal provider may apply for a non-per capita conservation program established under this section if any of the following applies:

1. The municipal provider is a member of a groundwater replenishment district established under title 48, chapter 27.

2. The service area of the municipal provider has qualified as a member service area under title 48, chapter 22, or as a water district member service area under title 48, chapter 28, and the conditions established under section 45-576.01, subsection B, paragraphs 2 and 3 are met by the conservation district or the water district, as applicable, for the active management area in which the service area is located.

3. The municipal provider has developed a plan to both:

(a) Reduce the proportion of mined groundwater supplied by it for use within its service area such that the result computed by dividing the volume of mined groundwater supplied by the provider for use within its service area in a year by the volume of all water supplied by the provider for use within its service area in that year does not exceed:

(i) Fourteen-fifteenths for 1996.

(ii) Thirteen-fifteenths for 1997.

(iii) Four-fifths for 1998.

(iv) Eleven-fifteenths for 1999.

(v) Two-thirds for 2000.

(vi) Three-fifths for 2001.

(vii) Eight-fifteenths for 2002.

(viii) Seven-fifteenths for 2003.

(ix) Two-fifths for 2004.

(x) One-third for 2005.

(xi) Four-fifteenths for 2006.

(xii) One-fifth for 2007.

(xiii) Two-fifteenths for 2008.

(xiv) One-fifteenth for 2009.

(b) Deliver no mined groundwater for use within its service area after January 1, 2010.

4. The municipal provider is designated as having an assured water supply under rules adopted by the director pursuant to section 45-576.

5. The municipal provider has applied to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576 and the director has not yet granted or denied the application.

6. The municipal provider is a city or town that is deemed to have an assured water supply under section 45-576, subsection E and both of the following apply:

(a) The municipal provider has not applied to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576.

(b) The municipal provider can demonstrate that if it was applying to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576, its projected groundwater use would be found to be consistent with achieving the management goal of the active management area under the criteria contained in those rules.

D. The director shall prescribe and furnish an application form for a non-per capita conservation program established under this section that includes the following:

1. If the municipal provider requests an incidental recharge factor different than the standard incidental recharge factor established by the director pursuant to subsection B of this section:

(a) A copy of a hydrological study that demonstrates the amount of water withdrawn, diverted or received for delivery by the municipal provider for use within its service area during each of the preceding five years and the amount of incidental recharge that was attributable to the municipal provider during each of those years.

(b) A copy of a hydrological study that projects the average annual amount of water that will be withdrawn, diverted or received for delivery by the municipal provider for use within its service area during the management period and the average annual amount of incidental recharge that will be attributable to the municipal provider during the management period.

2. If the municipal provider is applying for the program under subsection C, paragraph 3 of this section, a copy of the plan described in that paragraph.

3. If the municipal provider is applying for the program under subsection C, paragraph 6 of this section, information demonstrating that if the municipal provider was applying to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576, the municipal provider's projected groundwater use would be found to be consistent with achieving the management goal of the active management area under the criteria contained in those rules.

4. A description of the conservation programs currently being implemented by the municipal provider, and any conservation programs that the municipal provider intends to implement if it is approved for the non-per capita conservation program, including a time schedule for implementing the programs.

5. Any other information that the director may require.

E. The director shall approve a municipal provider's application for a non-per capita conservation program established under this section only if the following conditions are satisfied:

1. The municipal provider agrees in writing to implement specific conservation programs that will result in achieving water use efficiency in the municipal provider's service area equivalent to the water use efficiency that was assumed by the director in establishing the municipal provider's per capita conservation requirements pursuant to section 45-565, subsection A, paragraph 2, including the programs described in subsection A of this section.

2. If the municipal provider is applying for the program under subsection C, paragraph 3 of this section, the municipal provider has demonstrated to the satisfaction of the director that it will reduce the proportion of mined groundwater supplied by it for use within its service area to the proportions described in subsection C, paragraph 3, subdivision (a) of this section, and that it will not deliver mined groundwater for use within its service area after January 1, 2010.

3. If the municipal provider is applying for the program under subsection C, paragraph 5 of this section, the director has made a preliminary determination that the municipal provider's projected groundwater use is consistent with achieving the management goal of the active management area under the criteria contained in rules adopted by the director pursuant to section 45-576. A preliminary determination for purposes of this paragraph is not binding on the director at the time the director determines whether to designate the municipal provider as having an assured water supply.

4. If the municipal provider is applying for the program under subsection C, paragraph 6 of this section, the director has made a preliminary determination that if the municipal provider was applying to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576, the municipal provider's projected groundwater use would be found to be consistent with achieving the management goal of the active management area under those rules. A preliminary determination of the director for purposes of this paragraph is not binding on the director at the time the director determines whether to designate the municipal provider as having an assured water supply.

F. A municipal provider that is approved for a non-per capita conservation program established under this section shall comply with any individual user requirements prescribed pursuant to section 45-565, subsection A, paragraph 2, except as provided in section 45-571.02.

G. The director shall include in a non-per capita conservation program established under this section:

1. A requirement that a municipal provider that applied for the program under subsection C, paragraph 3 of this section shall reduce the proportion of mined groundwater supplied by it for use within its service area to the proportions described in subsection C, paragraph 3, subdivision (a) of this section. The director may excuse a municipal provider's failure to comply with the requirement during any year if the municipal provider demonstrates to the satisfaction of the director that the municipal provider's failure to comply with the requirement was due to drought conditions or the failure of a surface water distribution system.

2. A requirement that a municipal provider that applied for the program under subsection C, paragraph 4 or 5 of this section shall not supply groundwater for use within its service area in an amount that exceeds that amount of groundwater that the municipal provider may supply for use within its service area consistent with rules adopted by the director pursuant to section 45-576. For purposes of this requirement, if a municipal provider has applied to the director to be designated as having an assured water supply under rules adopted by the director pursuant to section 45-576 and the application is not approved, the amount of groundwater that the municipal provider may supply for use within its service area consistent with the rules is the amount of groundwater that the director determines the municipal provider would have been allowed to supply consistent with the rules if the application had been granted.

H. A municipal provider that applies for a non-per capita conservation program under this section shall comply with the per capita conservation requirements established under section 45-565, subsection A, paragraph 2 until the director approves the application. If the municipal provider's application for the non-per capita conservation program is approved by the director, the provider is exempt from the per capita conservation requirements prescribed under section 45-565, subsection A, paragraph 2.