West Coast Basin Amended Judgment: VII Emergency Pumping

VII. ADDITIONAL PUMPING ALLOWED UNDER AGREEMENT WITH WRD DURING PERIODS OF EMERGENCY  

A. WRD overlies the West Coast Basin and engages in activities of replenishing the groundwaters thereof with Replenishment Water. During an actual or threatened temporary shortage of the Imported Water supply to West Coast Basin, WRD may, by resolution, determine to subsequently replenish the Basin for any water produced in excess of a Party's Adjudicated Rights hereunder, within a reasonable period of time, pursuant to Over-Production Agreements with such Parties. Such Over-Production Agreements shall not exceed in the aggregate ten thousand (10,000) acre-fee (the "Initial Cumulative Over-Production Cap"). WRD may determine that a quantity of water is available for such agreements that exceed the Initial Cumulative Over-Production Cap (the "Supplemental Over-Production Water") based on a  determination made after a public hearing and taking into account the water levels in the Basin  and the availability of water to replenish the Basin other than Imported Water. Over-Production  Agreements for, Supplemental Over-Production Water shall be made available on an equal basis  to all Parties with an Adjudicated Right who (i) possess no Carryover or Stored Water, (ii) have  purchased Imported Water in the immediately preceding Administrative Year or will receive less  water from a Water Purveyor due to the declared drought curtailing that Water Purveyor's  available supplies, (iii) have exercised or contractually agreed to not exercise its rights under  Section V.14 of this Amended Judgment, and (iv) provide important goods and services to the  general public, provided, however, that WRD shall give priority to Parties meeting those criteria  who have not entered into an Over-Production Agreement for an portion of the Initial Cumulative Over-Production Cap. Over-Production Agreements for Supplemental Over-Production Water shall be on the same terms as required under Sections VII.D and E. 

B. Notwithstanding any other provision of this Amended Judgment, any Party  with Adjudicated Rights who is (i) Water Purveyors, (ii) possess no Carryover or Stored Water,  and (iii) have exercised or contractually agreed to not exercise its rights under Section V.14 of  this Amended Judgment, is authorized to enter into agreements with WRD under which such  Water Purveyors may exceed their Adjudicated Rights for a particular Administrative Year (an  "Over-Production Agreement") when the following conditions are met:  

(1) WRD is in receipt of a resolution of the Board of Directors of MWD stating there is an actual or immediately threatened temporary shortage of MWD's Imported Water supply compared to MWD's needs, or a temporary inability to deliver MWD's Imported Water supply throughout its service area, which will be alleviated in part by over pumping from West Coast Basin.  

(2) The Board of Directors of both WRD and the Water Rights Panel, by resolutions, concur in the resolution of MWD's Board of Directors and each determine that the temporary overproduction in West Coast Basin will not adversely affect the integrity of the Basin or the sea water barrier maintained along the coast of the West Coast Basin. In said resolution, WRD's Board of Directors shall set a public hearing, and notice the time, place and date thereof (which may be continued from time to time without further notice) and which said notice shall be given by First Class Mail to all Parties. Said notice shall be mailed at least ten (10) days before said scheduled hearing date. At said public hearing, Parties shall be given full opportunity to be heard, and at the conclusion thereof the Board of Directors of WRD by resolution (a "Drought Resolution") decides to proceed with agreements under this Section VII.  

C. If WRD has not entered into Over-Production Agreements with Water Purveyors for the entirety of the Initial Cumulative Over-Production Cap within thirty (30) days  after the Drought Resolution, then WRD may enter into Over-Production Agreements with other  Parties to this Judgment, although the amount of said Agreements shall not cause an exceedance  of the Initial Cumulative Over-Production Cap. In considering such Agreements with other Parties, WRD shall accord priority to Parties who provide important goods and services to the general public.  

D. All Over-Production Agreements with WRD shall be subject to the following requirements, and such reasonable others as WRD's Board of Directors shall require:  

(1) The Over-Production Agreements shall be of uniform content except as to the quantity involved, and any special provisions considered necessary or desirable with respect to local hydrological conditions or good hydrologic practice.  

(2) The Over-Production Agreements shall be offered to Water Purveyors and Parties, excepting those which WRD's Board of Directors determine should not over-pump because such over-pumping would occur in undesirable proximity to a sea water barrier project designed to forestall sea water intrusion, or within, or in undesirable proximity to, an area within West Coast Basin wherein groundwater levels are at an elevation where over pumping is, under all the circumstances, undesirable.  

(3) The maximum term of any such Over-Production Agreement shall be four (4) months. All such Over-Production Agreements shall commence and end on the same day (and which may be executed at any time within said four month period), unless an extension thereof is authorized by the Court under this Amended Judgment.  

(4) The Over-Production Agreements shall contain provisions that the Water Purveyor or Party executing the agreement pay to WRD a price, in addition to the applicable Replenishment Assessment, determined on the following formula: The price per acre foot of West Basin Municipal Water District's treated domestic and municipal water for the Administrative Year in which the agreement is to run, less the total of: (a) an amount per acre foot as an allowance on account of incremental cost of pumping, as determined by WRD's Board of Directors; and (b) the rate of the replenishment assessment of WRD for the same Administrative Year. If the term of the Over-Production Agreement is for a period which will be partially in one Administrative Year and partially in another, and a change in either or both the price per acre-foot of West Basin Municipal Water District's treated domestic and municipal  water and rate of the replenishment assessment of WRD is scheduled, the price formula shall be determined by averaging the scheduled changes with the price and rate then in effect, based on the number of months each will be in effect during the term of the Over-Production Agreement. Any price for a partial acre-foot shall be computed pro rata. Payments shall be due and payable on the principle that over-extractions under the Over-Production Agreement are the last water pumped in the Administrative Year, and shall be payable as the Over-Production Agreement shall provide.  

(5) The Over-Production Agreements shall contain provisions that: (a) All of such agreements (but not less than all) shall be subject to termination by WRD if, in the judgment of WRD's Board of Directors, the conditions or threatened conditions upon which they were based have abated to the extent over-extractions are no longer considered necessary; and (b)  that any individual agreement or agreements may be terminated if the WRD's Board of Directors finds that Material Physical Harm has developed as a result of over-extractions by any Water Purveyor or Party which have executed said Over-Production Agreements, or for any other reason that WRD's Board of Directors find good and sufficient.  

E. Other matters applicable to such Over-Production Agreements and over pumping thereunder are as follows, and to the extent they would affect obligations of the WRD they shall be anticipated in said Over-Production Agreements:  (1) The quantity of over-pumping permitted shall be additional to that which the Water Purveyor or Party could otherwise over-pump under this Amended Judgment.  (2) The total quantity of permitted over-pumping under all said agreements during said four months shall not exceed ten thousand (10,000) acre-feet, but the individual Water Purveyor or Party shall not be responsible or affected by any violation of this requirement. That total is additional to over-extractions otherwise permitted under this Amended Judgment. (3) Only one four-month period may be utilized by WRD in entering into such Over-Production Agreements, as to any one emergency or continuation thereof declared by MWD's Board of Directors under Section VII.B(2) hereof.  

(4) If any Party claims that it is being damaged or threatened with damage by the over-extractions by any Party to such an Over-Production Agreement, the Water Rights Panel or any Party hereto may seek appropriate action of the Court for termination of any such Over-Production Agreement upon notice of hearing served on all Parties. Any such termination shall not affect the obligation of the Party having entered into an Over-Production Agreement pursuant to this Section to make payments under the Over-Production Agreement for over-extractions which previously occurred thereunder. 

(5) WRD shall maintain separate accounting and a separate fund of the proceeds from payments made pursuant to agreements entered into under this Section. Said fund shall be utilized solely for purposes of replenishment and the replacement of waters in West Coast Basin. WRD shall, as soon as practicable, cause replenishment in West Coast Basin by the amounts to be over-extracted pursuant to this Section, whether through spreading, injection, or in lieu agreements.  

(6) Over-extractions made pursuant to the said Over-Production  Agreements shall not be subject to the "make up" provisions provided in Section V.14, provided,  that if any Party fails to make payments as required by the Over-Production Agreement, Water  Rights Panel may require such "make up" under Section V.14.  

(7) The Water Purveyor or Party under any such Over-Production  Agreement may, and is encouraged to, enter into appropriate arrangements with customers who  have Adjudicated Rights in West Coast Basin under or pursuant to this Amended Judgment,  whereby the Water Purveyor or Party will be assisted in meeting the objectives of the agreement. 

(8) Nothing in this Section VII limits the exercise of the reserved and  continuing jurisdiction of the court as provided in Sections XII and XIII hereof.