West Coast Basin Amended Judgment: V Physical Solution

V. PHYSICAL SOLUTION — BASIN STORAGE, CARRYOVER, BASIN OPERATING RESERVE, AND EXCESS PRODUCTION  

1. Determination of Available Dewatered Space  

A. There exists within the Basin Available Dewatered Space which has not been optimally utilized for Basin management and storage of native water and Developed Water.  The Court finds and determines that: (i) there is up to one hundred and twenty thousand (120,000)  acre-feet of Available Dewatered Space in the Basin; (ii) use of the Available Dewatered Space  will increase reasonable and beneficial use of the Basin by permitting the more efficient  procurement and management of Replenishment Water and allowing Parties to have Stored Water  in the Basin, thereby increasing the conservation of water and reliability of the water supply  available to all Parties; and (iii) compliance with the terms, conditions and procedures set forth in  this Amended Judgment is meant to prevent Material Physical Harm to the Basin associated with  the use of the Available Dewatered Space for Stored Water. If the Court determines, pursuant to Section XIII of this Judgment, that the amount of Available Dewatered Space is more than or less than 120,000 acre-feet, then the Court shall equitably adjust the amount of the Basin Operating Reserve and Adjudicated Storage Capacity such that no more than 40.9% of the Available Dewatered Space is allocated to the Basin Operating Reserve. No Party shall Store Water in the Basin except in the Available Dewatered Space in conformity with this Amended Judgment.  

B. It is essential that use of the Available Dewatered Space be undertaken for the greatest public benefit pursuant to uniform, certain and transparent regulation that encourages the conservation of water and reliability of the water supply, avoids Material Physical Harm, and promotes the reasonable and beneficial use of water. Accordingly, in the event the Watermaster becomes aware of the development of Material Physical Harm, or a reasonably foreseeable or imminent threat of the development of Material Physical Harm, relating to the use of the  Available Dewatered Space, the Watermaster shall (i) promptly take all reasonably necessary  action to cease or avoid such harm as authorized under this Amended Judgment and the  Watermaster Rules, and (ii) notice a hearing within thirty (30) days before the Court and  concurrently file a report with the Court, served on all Parties, which shall explain the relevant  facts then known by the Watermaster relating to the Material Physical Harm, or imminent threat  thereof, including without limitation, the location of the occurrence, the source or cause, existing  and potential physical impacts or consequences of the identified or threatened Material Physical  Harm, all actions taken by the Watermaster to cease or avoid such harm, and any other  recommendations to remediate the identified or threatened Material Physical Harm.  

C. To fairly balance the needs of the divergent interests of Parties having Adjudicated Rights in the Basin, on the one hand, and the role of WRD on the other hand, and in  consideration of the shared desire and public purpose of removing impediments to the voluntary  conservation, storage, exchange and transfer of water, the Available Dewatered Space is  apportioned into complementary classifications of forty-nine thousand one hundred (49,100) acre feet of Basin Operating Reserve and seventy thousand nine hundred (70,900) acre-feet of  Adjudicated Storage Capacity as set forth in this Section V. The apportionment contemplates flexible administration of storage capacity where use is apportioned among competing needs, while allowing Available Dewatered Space to be used from time to time as Space-Available Storage, subject to the priorities specified in this Amended Judgment.  

2. Basin Operating Reserve  

A. It is in the public interest for WRD to prudently exercise its discretion to purchase, spread, and inject water, to provide for in-lieu replenishment, and otherwise to fulfill its replenishment function within the Basin in accordance with the WRD Act. Accordingly, this Amended Judgment expressly recognizes that WRD may use the Basin Operating Reserve to manage available sources of water and otherwise fulfill its replenishment functions. WRD may allow naturally occurring water to occupy the Basin Operating Reserve, as needed and in its discretion, but cannot thereupon assert ownership, control or possession over naturally occurring water as Replenishment Water or Stored Water. WRD's priority right to use the Basin Operating Reserve is not intended to allow WRD to sell or lease Stored Water within that portion of the Available DeWatered Space.  

B. WRD shall have forty-nine thousand, one hundred (49,100) acre-feet of Available Dewatered Space as the Basin Operating Reserve in accordance with the WRD Act.  C. WRD shall have a first priority right to use the Basin Operating Reserve in accordance with the WRD Act. WRD's first priority right to the Basin Operating Reserve is absolute. To the extent that there is a conflict between WRD and any other Party regarding the availability of and desire to use any portion of the Basin Operating Reserve, the interests of WRD will prevail. Any dispute as to the use of any portion of the Basin Operating Reserve shall be heard directly by the Court, after notice of hearing served on all Parties.  

D. To the extent WRD does not require the use of some or all of the Basin Operating Reserve, that portion of the Basin Operating Reserve that is not then being used shall be available for Space-Available Storage in accordance with Section V.10 of this Amended Judgment and provided that such Space-Available Storage will not impede WRD's use of the Basin Operating Reserve. WRD's failure to use any portion of the Basin Operating Reserve for any time will not cause forfeiture or limit WRD's absolute right to make use of the Basin Operating Reserve in the future without compensation. Nothing herein shall permit WRD to limit or encumber its right to use the Basin Operating Reserve in accordance with the WRD Act.  

3. Adjudicated Storage Capacity  

The Adjudicated Storage Capacity is further allocated among the following classifications of Stored Water:  

• Individual Storage Allocation: twenty-five thousand eight hundred (25,800) acre-feet.  
• Community Storage Pool: thirty-five thousand five hundred (35,500) acre-feet.  
• Regional Storage Allocation: nine thousand six hundred (9,600) acre-feet.  

4. Carryover  

A. In order to add flexibility to the operation of this Amended Judgment and  to assist in a physical solution to meet the water requirements in the West Coast Basin, each of  the Parties who is adjudged to have an Adjudicated Right and who, by the end of an  Administrative Year, does not extract from the Basin all of such Party's Total Adjudicated Production Right, is permitted to carry over from such Administrative Year the right to extract from the Basin in the immediately following Administrative Year an amount of water equivalent  to the amount of its Total Adjudicated Production Right that exceeds the amount of its actual extraction during said Administrative Year of water pursuant to its Total Adjudicated Production Right (hereinafter referred to as "Carryover"). Carryover, as computed above for a Party, shall be reduced by the quantity of Stored Water then held in the Available Dewatered Space by that Party at the commencement of the immediately following Administrative Year, although such reduction shall not cause the amount of Carryover to be less than 20% of the Party's Total Adjudicated Production Right. 

B. A Party having Carryover may, from time to time, elect to convert all or part of such Party's Carryover to Stored Water, as authorized herein, upon payment of the Replenishment Assessment to WRD. The WRD shall maintain, account and use the Replenishment Assessment paid for Carryover Conversion in accordance with the provisions of Section XI.2(A)(5) of this Amended Judgment. Such Stored Water shall be assigned to that Party's Individual Storage Allocation, if available, and otherwise to the Community Storage Pool, and thereafter to then existing excess capacity within other Individual Storage Allocation, the Regional Storage Allocation, and only then if all remaining space is fully occupied, to the Basin  Operating Reserve for Space-Available Storage.  

C. By reason of this Court's Orders dated June 2, 1977 and September 29, 1977, for the water years 1976-77 and 1977-78 any Party (including any successor in interest) can Carryover until utilized any Adjudicated Right (including any authorized Carryover from prior years) unexercised during said water years. This Amended Judgment shall not abrogate the rights of any additional Carryover of unused Adjudicated Rights of the Parties as may exist pursuant to the Orders filed as of June 2, 1977 and September 29, 1977.  

5. Individual Storage Allocations  

A. Up to twenty-five thousand eight hundred (25,800) acre-feet of Available Dewatered Space is apportioned among the Parties as "Individual Storage Allocation" for the purpose of providing each Party holding an Adjudicated Right under the Amended Judgment with a first priority right to use an amount of that Available Dewatered Space equal to approximately forty percent (40%) of their respective Adjudicated Right. Water may be deposited into storage and assigned to an Individual Storage Allocation either through Carryover Conversion or by other means authorized under the Amended Judgment. The Individual Storage Allocation will be held in the name of the Party holding the Adjudicated Right upon notice to the Storage Panel. To the extent a Party does not require the use of some or all of its Individual Storage Allocation, that portion of the Individual Storage Allocation that is not then being used shall be available for Space-Available Storage as provided in Section V10.A.  

B. A Party's first priority right to its Individual Storage Allocation is absolute.  To the extent that there is a conflict between a Party holding an Adjudicated Right and any other Party or WRD regarding the availability of and desire to use any portion of their Individual Storage Allocation, the interests of the Party with the Individual Storage Allocation will prevail.  Any dispute as to the use of any portion of a Party's Individual. Storage Allocation shall be heard directly by the Court, after notice of hearing served on all Parties.  

6. Community Storage Pool  

A. Up to thirty-five thousand five hundred (35,500) acre-feet of Available Dewatered Space is apportioned for the use by all Parties to the Amended Judgment with Adjudicated Rights on a shared or community basis, hereafter referred to as the "Community Storage Pool." A Party that has fully occupied its Individual Storage Allocation may, on a first-in time, first in right basis (subject to the limits expressed below) place water into storage in the Community Storage Pool upon notice to the Storage Panel. So long as there is available capacity in the Community Storage Pool, any Party may store water in the Community Storage Pool, through Carryover Conversion as provided herein or by any other means authorized under the Amended Judgment, provided such Party has first fully occupied that Party's available Individual Storage Allocation.

B. So long as there is adequate storage capacity available within the Community Storage Pool, any Party may store water through any authorized method up to the prescribed limits of available capacity within the Community Storage Pool upon notice to the Storage Panel. 

C. After a Party effectively occupies Available Dewatered Space within the Community Storage Pool and then withdraws water from the Community Storage Pool, that Party shall be allowed a period of twenty-four (24) months to completely refill the vacated storage capacity before the capacity will be determined abandoned and available for use by other Parties.  However, once the Basin's Community Storage Pool has been filled (35,500 acre-feet in storage), a Party may exercise its twenty-four (24) month refill priority only once, and thereafter only provided there is then capacity available to permit that Party to refill the vacated space. Except as to space subject to the refill right, as provided herein, all access to the Community Storage Pool shall be made available pursuant to a basis of first in time, first in right.

D. A Party that has maintained Stored Water in the Community Storage Pool  for ten (10) consecutive years shall be subject to the following provisions whenever the  Community Storage Pool is at least twenty-five percent (25%) occupied with Stored Water based  on an aggregate of all Parties holding Adjudicated Rights who have Stored Water in the  Community Storage Pool: (i) the Party may elect to have that Stored Water deemed transferred to  Space-Available Storage in accordance with Section V.10 of this Amended Judgment, but if such  an election is not made or there is no Space-Available Storage, then (ii) the Stored Water shall be  deemed extracted first in advance of all other extraction rights in subsequent years  (notwithstanding the order of production set forth in Section IX.2) until the Party's entire  Community Storage account has been extracted. After the Stored Water is either transferred to Space Available Storage or extracted as provided herein, then said Party may thereafter make a renewed use of Community Storage on terms equal to other Parties on a first in time, first in right, and space-available basis.  

7. Regional Storage Allocation  

A. Up to nine thousand six hundred (9,600) acre feet of Available Dewatered Space in the West Coast Basin (the "Regional Storage Allocation") is designated for "Regional Storage Project(s)" that: (i) do not constitute Water Augmentation Projects by enhancing the long-term reliable yield of the Basin; and (ii) require storage capacity in excess of Individual Storage Allocations and the Community Storage Pool.

B. Regional Storage Projects must be pre-approved by the Storage Panel of the Watermaster, as provided in Section V.12. The Storage Panel shall not approve a Regional Storage Project unless the applicant demonstrates (i) a proposed place of use and beneficial use for the water identified at the time of storage, and (ii) that the Regional Storage Project is  Technically Feasible, will not cause Material Physical Harm and will confer a "Regional  Benefit".  

C. It is anticipated that Regional Storage Projects will be the principal category of storage for potential Storage Projects sponsored by, or for the benefit of, entities that do not hold an Adjudicated Right, although any Party to the Judgment may also propose a Regional Storage Project. Any entity which is not a Party to the Judgment who receives approval of a Regional Storage Project shall intervene into the Judgment as a Party prior to commencing the Regional Storage Project. A Regional Storage Project approved by the Storage Panel that occupies space within the nine thousand six hundred (9,600) acre-feet of Available Dewatered Space shall have a priority right to occupy the Regional Storage Allocation over any other use being made on a space-available basis.

D. Regional Storage Projects may include in-lieu, Carryover Conversion, physical improvements, recharge of "wet water" by spreading or injection, reducing the overall cost for the WRD to perform its replenishment function, and other measures that propose to make beneficial use of the designated storage capacity.  

E. Parties receiving a right to Store Water pursuant to an approved Regional Storage Project shall have the first priority right to Regional Storage Allocation. Stored Water held in the Regional Storage Allocation by a Party with an Adjudicated Right as Space-Available  Storage is subject to the limits of an annual extraction of one hundred and twenty percent (120%)  of the storing Party's Total Adjudicated Production Right or as otherwise specified in accordance  with Section IX.1 herein.  

F. To the extent that some or all of the Regional Storage Allocation is unused, that portion of the Regional Storage Allocation that is not then being used shall be available for Space-Available Storage as provided in Section V10.A.  

8. Limitations on Storage  

A. Irrespective of the category of storage utilized, each Party with an Adjudicated Right shall not cumulatively have in storage in the Available Dewatered Space at any time Stored Water totaling more than two hundred percent (200%) of that Party's Adjudicated Right. However, a Party with an Adjudicated Right less than 100 acre feet may store water in the Available Dewatered Space up to 200 acre feet.  

B. Notwithstanding the foregoing, a Party with an Adjudicated Right may store additional water up to 50% of its Adjudicated Right in excess of the aforementioned limit of 200% of its Adjudicated Right in Space-Available Storage as provided in Section V.10 of this Amended Judgment for a cumulative total of up to 250% of the Party's Adjudicated Right. Any Party with an Adjudicated Right seeking to store water in excess of 200% of its Adjudicated Right shall apply for additional storage from the Storage Panel, which shall determine whether additional storage space is available in light of the amount of storage space being utilized by all Parties and providing adequate protection for planned or anticipated storage projects by other Parties. The Storage Panel shall establish requirements as part of the Watermaster Rules including providing notice of such applications to all Parties, a means for objection, standards for granting or denying such requests, and promulgate requirements governing the extraction of the additional storage.  

C. A Party without an Adjudicated Right who holds rights to store water in the Regional Storage Allocation by virtue of an approved Regional Storage Project shall comply with any extraction limits established by the Storage Panel in its approval of said Regional Storage Project. Subject to the foregoing, the right to extract Stored Water in the Basin may be freely transferred to another Party to this Amended Judgment, as permitted by Section IV.  

9. Extraction of Stored Water; Exemption from Replenishment Assessment  

The Court finds and declares that the extraction of Stored Water as permitted hereunder does not constitute "production of groundwater" within the meaning of Water Code Section 3 60317 and that no Replenishment Assessment shall be levied on the extraction of Stored Water.  This determination reflects the practical application of certain provisions of this Amended Judgment concerning storage of water and extraction of Stored Water, including without limitation the following: (1). payment of the Replenishment Assessment is required upon Carryover Conversion, which allows WRD to replenish the Basin (as addressed under Section 9 V.4(B); (2) Developed Water introduced into the Basin through spreading or injection for storage  10 by or on behalf of a Party using Individual Storage Allocation or Community Storage Pool (as  authorized under Sections V.5 and V.6), or pursuant to a Water Augmentation Project (as  authorized under Section V.11), which needs not be replenished by WRD requiring payment of  the Replenishment Assessment; and (3) with respect to Regional Storage Projects, a Regional  Benefit must be established as a prerequisite of such a project, the water from which need not be  replenished by WRD requiring payment of the Replenishment Assessment.  

10. Space-Available Storage, Relative Priority, and Dedication of Abandoned Water  

A. To balance the need to protect first priority uses of storage and to  encourage the full utilization of the Adjudicated Storage Capacity and the Basin Operating  Reserve within the Available Dewatered Space, any Party with an Adjudicated Right may make  interim, temporary use of then currently unused Available Dewatered Space within (i) any category of Adjudicated Storage Capacity, and then (ii) if all Adjudicated Storage Capacity is being fully used for Stored Water, then within the Basin Operating Reserve ("Space-Available Storage"), subject to the following criteria: 

(1) Any Party with an Adjudicated Right may engage in Space Available Storage without prior approval from the Storage Panel of the Watermaster provided that the storing Party or Parties with an Adjudicated Right shall assume all risks of waste and loss regardless of the hardship. 

(2) No Party with an Adjudicated Right may use any portion of the Basin Operating Reserve for Space-Available Storage unless that Party with an Adjudicated Right has already maximized its allowed storage pursuant to its Individual Storage Allocation and all available Community Storage and Regional Storage is already in use. 

(3) Space-Available Storage shall first utilize unused storage space within the Individual Storage Allocation category, subject to the provisions in this Amended Judgment, and the Regional Storage Allocation before utilizing any available unused storage space within Community Storage. No utilization of Community Storage under Space-Available Storage shall be counted in making determinations under Sections V.6.C. or V.6.D. 

(4) Whenever the Administrative Body determines that a Party with an  Adjudicated Right is making use of excess Available Dewatered Space for Space-Available  Storage without prior approval from the Storage Panel, the Administrative Body shall issue  written notice to the Party with an Adjudicated Right informing them of the risk of loss and  inform that Party what space (Individual Allocation, Regional Storage, Community Pool or Basin  Operating Reserve) it is occupying on a Space-Available basis. 

(5) Use of Space-Available Storage shall be administered in accordance with the rule of first in time, first in right. The Party with an Adjudicated Right holding the lowest priority right in Space-Available Storage shall assume responsibility for evacuating their Stored Water as may be necessary to accommodate a Party with an Adjudicated Right holding superior priority right. Any dispute concerning Space-Available Storage priorities, except as to Basin Operating Reserve or the Individual Storage Allocation, shall be submitted first to the Storage Panel for hearing and determination. The Storage Panel's determination, or lack thereof, may be appealed by motion to the Court by any Party to the dispute. Any dispute concerning the Community Storage Pool Allocation or the Regional Storage Allocation shall be submitted first to the Storage Panel for hearing and determination. The Storage Panel's determination, or lack thereof, may be appealed by motion to the Court by any Party to the dispute.

(6) Whenever the Available Dewatered Space is needed to accommodate the priority use within a respective category of Adjudicated Storage Capacity, or WRD seeks to make use of its priority right to the Basin Operating Reserve to fulfill its replenishment function, the Storage Panel shall issue a notice to evacuate within ninety (90) days the respective category of Adjudicated Storage Capacity or Basin Operating Reserve. Within sixty (60) days after receipt of such a notice to evacuate, the Party with an Adjudicated Right receiving the notice may provide a written election to the Storage Panel that it will store its Stored Water in any other excess Available Dewatered Space first within the Adjudicated Storage Capacity, if available, and then if all Adjudicated Storage Capacity is being fully used for Stored Water, then within the Basin Operating Reserve, if available. The Party with an Adjudicated Right's Stored Water shall be deemed spilled and dedicated to the Basin in furtherance of replenishment of the Adjudicated Rights without compensation if the Party with an Adjudicated Right does not make a timely election or if there is no excess Available Dewatered Space. No Stored Water will be deemed so dedicated unless the cumulative quantity of water held as Stored Water in the Available Dewatered Space exceeds one hundred and twenty thousand (120,000) acre-feet in the West Coast Basin. Any dispute as to Stored Water threatening to be spilled or dedicated to the Basin shall be submitted to the Court pursuant to a motion by any Party to the dispute after to the expiration of sixty (60) days of the ninety-day period in the notice to evacuate.  B. A Party with an Adjudicated Right that seeks to convert the Stored Water held as Space-Available Storage to a more firm right, may in their discretion, contract for the use of another Party with an Adjudicated Right's Individual Storage Allocation, or may apply for approval of its request as a Regional Storage Project, or may add such water to the Community Storage Pool once space therein becomes available.

11. Water Augmentation  

A. Physical and management actions of the Parties in consultation with WRD shall add to the long-term reliable yield of the Basin. Innovations and improvements in management practices that increase the conservation and maximization of the reasonable and beneficial use of water should be promoted. To the extent that Parties to the Amended Judgment in consultation with WRD implement a project that provides additional long-term reliable water supply to the West Coast Basin, the annual extraction rights in the West Coast Basin will be increased commensurately in an amount to be determined by the Storage Panel to reflect the actual yield enhancement associated with the project. Augmented supplies of water resulting from such a project may be extracted or stored as permitted in this Amended Judgment in the same manner as other water.

B. Participation in any Water Augmentation Project shall be voluntary. The terms of participation will be at the full discretion of the participating Parties. Parties who propose a Water Augmentation Project ("Project Leads") may do so in their absolute discretion, upon such terms as they may determine and with Storage Panel approval. All other Parties will be offered a reasonable opportunity to participate in any Water Augmentation Project on condition that they share proportionately in generally common costs and benefits, and assume the obligation to bear exclusively the cost of any improvements that are required to accommodate their individual or peculiar needs. 

C. Advance written notice shall be provided which reasonably describes the potential project and the proposed terms under which a Party may "opt-in." Parties shall be afforded a reasonable time under the then prevailing circumstances for appropriate deliberation and 'action by the Parties. Disputes as to the adequacy of the notice and the time for project approval may be referred to the Storage Panel and then to the Court under its continuing jurisdiction.  

D. Parties may elect, in their discretion, to opt into a Water Augmentation Project ("Project Participants") so long as they agree to offer customary written and legally binding assurances that they will bear their proportionate share of all costs attributable to the Water Augmentation Project or provide other valuable consideration that is deemed sufficient by the Project Leads and Project Participants. 

E. All Water Augmentation Projects must be pre-approved by the Storage Panel, as provided in Section V.12. The Storage Panel shall determine the amount of additional groundwater extraction authorized as a result of a Water Augmentation Project, which determination shall be based upon substantial evidence. The amount of additional groundwater extraction shall not exceed the amount by which the Water Augmentation Project will increase the long-term sustainable yield of the Basin. No extraction right shall be established and no extraction shall occur until new water has been actually introduced into the Basin as a result of the Water Augmentation Project. Any approval for a Water Augmentation Project shall include provisions: (i) requiring regular monitoring to determine the actual amount of such new water made available; (ii) requiring make up water or equivalent payment therefore to the extent that actual water supply augmentation does not meet projections; and (iii) adjusting water rights attributable to the Water Augmentation Project to match the actual water created. Any approval for a Water Augmentation Project shall be based on a finding the Water Augmentation Project is  Technically Feasible and will not cause Material Physical Harm.  

F. The right to extract augmented water from the Basin pursuant to a Water Augmentation Project shall be accounted for separately and shall not be added to a Party's Adjudicated Right.  

G. A Party that elects to participate and pays its full pro-rata share of costs associated with any Water Augmentation Project, and/or reaches an agreement with other participants based upon other valuable consideration acceptable to the Lead Parties and the remaining Project Participants, will receive a proportionate right to extract the water resulting from the Water Augmentation Project.

H. A Party that does not elect to participate ("Non-Participating Party") will not receive a right to extract water resulting from to the Water Augmentation Project. Non Participating Parties will not be required to pay any costs, fees or assessments of any kind attributable to the respective Water Augmentation Project including the fees required hereunder for the Watermaster duties or directly or indirectly as the WRD Replenishment Assessment.  I. Because water made available for Water Augmentation will be produced  annually, fluctuations in groundwater levels will be temporary, nominal, and managed within the Basin Operating Reserve.  

J WRD shall not obtain any extraction right or other water right under the Amended Judgment by virtue of its consultation in any Water Augmentation Project.  

12. Storage Procedure  

A. Storage Reporting and Monitoring  The Administrative Body (defined below) shall: (i) prescribe forms and procedures for the orderly reporting of Stored Water and water from a Water Augmentation Project; (ii) maintain  records of all water stored in the Basin; (iii) undertake the monitoring and modeling of Storage Projects, Water Augmentation Projects and New Storage Facilities required by this Judgment; and (iv) provide an accounting of Stored Water and/or water from a Water Augmentation Project within thirty (30) days of a written request by an Adjudicated Rights holder or a Party with rights  to Stored Water. For purposes of Sections V.12 and V.13 of this Amended Judgment, Water Augmentation Project(s), New Storage Facilities and Storage Projects that require the approval of  the Storage Panel shall collectively be referred to as "Projects." 

B. Application and Notification Procedure  

(1) Nothing in this Amended Judgment shall alter a Party's duty to comply with CEQA or any other applicable legal requirements as to any Project imposed by applicable law. Further, no action or approval under this Amended Judgment shall constitute a bar to a Party's duty to comply with CEQA or any other legal requirements as to any imposed by applicable law. However, a Party to this Amended Judgment who is undertaking or engaging in CEQA review for a Project that requires approval by the Storage Panel shall provide  to the Watermaster copies of the notices required under CEQA to be provided to the public within the time periods proscribed by CEQA.

(2) For Projects that require review and approval by the Storage Panel, as provided in Section V.13, the Administrative Body shall provide appropriate applications, and shall work with Project applicant(s) to complete the application documents for presentation to the Storage Panel.  

(3) The Administrative Body shall conduct the groundwater modeling necessary to support a Party's application for approval of a Project prior to the Storage Panel's hearing on said Project. Upon receipt of a notice of a lead agency's intention to prepare a CEQA  Review Document, the Administrative Body shall conduct the modeling described in Section  28 V.12 of this Amended Judgment and submit such modeling to the lead agency for inclusion in the proposed or draft CEQA documentation and the CEQA Review Document, subject to the Party's payment of the costs of that modeling. Such modeling is not required to be conducted by the Administrative Body if the Administrative Body and the Chair of the Water Rights Panel determine in writing that (i) the likely rise in water levels from the proposed Project would be  minimal, (ii) other evidence (including any modeling prepared by the Project proponent) demonstrates that the Project will not cause Material Physical Harm after consideration of the factors outlined in Section V.13.B(3), and (iii) an Environmental Impact Report is not required  under CEQA. If the Administrative Body and the Chair of the Water Rights Panel make such a determination, they shall promptly inform the entire Storage Panel. Such modeling shall thereafter be conducted by the Administrative Body if either the Water Rights Panel or the Board of Directors of WRD request that such modeling be conducted.

(4) The Party which is the proponent of a proposed Project shall bear all costs associated with the Watermaster's preparation and review of the application for approval of the Project and all costs associated with its implementation, including reimbursement of fees and costs incurred by the Administrative Body in conducting the necessary modeling and other technical studies.  

(5) Within 30 days of receipt of an application for a Project or any notification(s) associated with the CEQA review for such Project, the Administrative Body shall provide written notice (either by electronic mail or U.S. postal mail) and access to a copy of the Project application and/or any available CEQA documentation, including the CEQA Review Document, to all Parties to the Amended Judgment. Any Party to the Amended Judgment shall be entitled to submit its own report related to the Project, and the Administrative Body shall consider such report in its processing of the Project application.  

(6) As part of the application process, the Administrative Body shall cause the preparation of any study or analysis necessary to determine that the Project is Technically Feasible and will not cause Material Physical Harm, including the appropriate modeling of the cumulative effect of the particular Project on water levels in the West Basin. The Administrative Body may rely on CEQA documentation, including the CEQA Review Document, a Project for the information necessary to make a determination on Technical Feasibility and Material Physical Harm and not prepare any additional analyses if the CEQA documentation contains the necessary information for consideration of the Project including the groundwater  5 modeling required by this Amended Judgment.  

C. Notice Process  

Within thirty (30) days after submission of the final and complete Project application documents (including the technical reports, CEQA Review Document and modeling results), the Administrative Body shall provide notice (either by electronic mail or U.S. postal mail), and access to copies of the final and complete application documents to all Parties to the Amended  10 Judgment.  

13. Review/Approval Process 

A. Projects Subject to Review 

(1) Storage Projects exempt from the review and approval process provided in this Section V.13 include:  

• use of Total Adjudicated Production Rights, except for extraction above one hundred and twenty percent (120%) of a Party's extraction right, as set out in Section IX.1;  

• replenishment of the Basin with Replenishment Water by WRD;  

• WRD's operations within the Basin Operating Reserve;  

• Carryover Conversion; and  

• Use of Existing Facilities to store water in the Individual Storage Allocation or the Community Storage Pool. 

(2) All other Projects shall be subject to review and approval, as provided in this Section V.13, including, but not limited to, those projects involving:  • material variances to substantive criteria governing projects exempt from the review and approval process;  

• modifications to previously approved Projects and related agreements; 

• a Party's proposal for Carryover Conversion in quantities greater than the express apportionment of Adjudicated Storage Capacity on a non-priority, space-available, interim basis, and

• any other means of storage not exempt by Section V.13.A(1).  

B. Hearing and Approval Process for Watermaster Review  

The following procedures shall be followed by the Watermaster where Storage Panel review is required or permitted under this Amended Judgment.  

(1) No later than thirty (30) days after notice has been issued in accordance with Section V.12, the matter shall be set for hearing before the Storage Panel. A staff report shall be submitted by the Administrative Body in conjunction with the completed application documents, which report shall include proposed conditions of approval if the recommendation in the staff report is to approve the Project. The Water Rights Panel may prepare a separate independent staff report, if it elects to do so. Any Party to the Amended Judgment shall be entitled to submit its own report, and such report shall be considered by the Storage Panel as part of its review; however, a Party shall not be entitled to raise issues to the Storage Panel that it failed to raise as part of any previously completed CEQA process for the Project under consideration by the Storage Panel.  

(2) Whenever feasible, the WRD Board of Directors and the Water Rights Panel shall conduct a joint hearing (i.e., the presumption shall be in favor of joint hearings). If a joint hearing is not held, the Water Rights Panel hearing shall be conducted in the manner prescribed for public agency hearings under the Brown Act.  

(3) Factors to be considered in reviewing a Project include (i) facilities  in the vicinity of the Project; (ii) proximity to drinking water wells and depths at which such wells  are screened; (iii) depth at which water will be added under the Project; (iv) resulting  groundwater elevations from the Project based on groundwater modeling conducted by the  Administrative Body and, if they elect to do so, the Project proponent, (v) existing contamination,  if any, in the vicinity of the Project; (vi) preferential groundwater pathways; (vii) the source of the  water for the Project; and (v) information provided by any Party.  

(4) The WRD Board of Directors and the Water Rights Panel shall each adopt written findings explaining their decision on the Project, although if both entities reach the same decision, they shall work together to adopt a uniform set of findings. The findings must include the evaluation of the factors identified in Section V.13.B(3) and a determination that the Project is Technically Feasible and will not cause Material Physical Harm.  

(5) The Storage Panel shall not be required to conduct a hearing on a  Project if it (i) reviews the CEQA Review Document adopted by a lead agency; (ii) the CEQA  Review Document includes the groundwater modeling required under this Amended Judgment;  (iii) determines that the CEQA Review Document evaluated the factors identified in Section  V.13.B(3); and (iv) determines that the CEQA Review Document demonstrates that the Project is  Technically Feasible and will not cause Material Physical Harm.  

(6) Unless both the WRD Board of Directors and Water Rights Panel  approve the Project, the application shall be deemed denied (a "Project Denial"), provided,  however, that if either the WRD Board of Directors or the Water Rights Panel is unable to render  a decision on the application due to a conflict of interest arising under Section V.13 (A)(8) of this  Amended Judgment, then the application shall be deemed approved if the remaining body of the  Storage Panel approves the application. If both the WRD Board of Directors and Water Rights Panel approve the Project, the Project shall be deemed approved (a "Project Approval").  

(7) If the Storage Panel approves the Project, it may impose reasonable conditions of approval on matters relevant to the Project, which shall include mandatory conditions of approval including annual limits on the amount of Stored Water, annual extraction limits of Stored Water, and water quality standards. The WRD Board of Directors and the Water Rights Panel shall work together to adopt a uniform set of conditions of approval promulgated after adoption of the Rules pursuant to Section X.1(E) and following the same review and comment process set forth in Section XI.1(E).  

(8) Neither WRD nor any member of the Water Rights Panel shall render any decision on Projects subject to Watermaster review under Section V.13 of this Amendment Judgment if said entity has a conflict of interest under applicable law or the rules and regulations promulgated pursuant to Section XI.1(E) with respect to said Project.  

(9) Any factual determinations made by the Watermaster, or any constituent body thereof, pursuant to this section, shall be based on the substantial evidence test.  

C. Trial Court Review  

An applicant, Adjudicated Rights holder or a Party holding rights to Stored Water may seek the Storage Panel's reconsideration of a Project Denial or Project Approval. However, there shall be no process for mandatory reconsideration or mediation of a Project Approval or a Project Denial either before the Administrative Body or the Water Rights Panel. Any Party may file an appeal from a Project Approval or Project Denial with this Court, as further described in Section  XI.4.D. The Trial Court shall review the decisions of the Watermaster, Storage Panel and Water Rights Panel in accordance with Section XI.4(D).

14. Excess Production  

In order to meet possible emergencies, each of the Parties who is adjudged to have an  Adjudicated Right and not possessing Stored Water, is permitted to extract from the Basin in any Administrative Year for beneficial use an amount in excess of each such Party's Total  Adjudicated Production Rights not to exceed two (2) acre-feet or ten percent (10%) of such  Party's Total Adjudicated Production Rights, whichever is the larger, and in addition thereto, such greater amount as may be approved by the Court. Notwithstanding Section XI.4 herein, if such greater amount is recommended by the Water Rights Panel, such order of Court may be made ex parte. Each such Party so extracting water in excess of its Total Adjudicated Production Rights shall be required to reduce its extractions below its Total Adjudicated Production Rights by an equivalent amount in the Administrative Year next following. Such requirement shall be subject to the proviso that in the event the Court determines that such reduction will impose upon such a Party, or others relying for water service upon such Party, an unreasonable hardship, the Court may grant an extension of time within which such Party may be required to reduce its extractions by the amount of the excess theretofore extracted by such Party.