ANTELOPE VALLEY WATERMASTER ADVISORY COMMITTEE MEETING AGENDA

Transcription

1 February 20, 2018 ANTELOPE VALLEY WATERMASTER ADVISORY COMMITTEE February 21, :00 p.m. Quartz Hill Water District 5034 West Avenue L Quartz Hill, CA Introductions MEETING AGENDA Conference Call Number: (877) Access Code: Approval of January 18, 2018 meeting minutes. 3. Discussion of AV Watermaster Board action items on February 28, 2018 (per draft agenda). a) Well Application Rules and Regulations for Replacement or New Wells (8.A). b) Resolution No. R Requesting change in Annual Report timing (8.B). c) Resolution No. R Setting Replacement Water Cost within AVEK (8.D). d) Resolution No. R New Goldensands Investment LLC Judgement Stipulation (8.E). e) Calculation of Pre-Rampdown Production for Exhibit 3 Producers (8.F). 4. Discussion of AV Watermaster Board discussion items on February 28, 2018 (per draft agenda). a) Administrative Staff Roles and Responsibilities (8.G). b) Hierarchy of Production Rights (8.H). c) Rules and Regulations for Transfers (8.I). d) Rules and Regulations for Water Storage Agreements (8.J). e) Presentation by Southern California Water Bank Authority (Willow Springs Water Bank) (8.M). 5. Information Items 6. Requests for future discussion items from Committee Members and Other Producers Enclosures: Draft February 28, 2018 AV Watermaster Board Agenda distributed February 16, 2018 AV Watermaster Engineer and Committee Member Memo s. Operating Procedures and Roster

2 ITEM 2.0 January 22, 2018 ANTELOPE VALLEY WATERMASTER ADVISORY COMMITTEE January 18, :00 p.m. Quartz Hill Water District 5034 West Avenue L Quartz Hill, CA Introductions MEETING MINUTES Conference Call Number: (877) Access Code: Approval of December 5, 2017 meeting minutes. Unanimously approved. 3. Discussion of potential AV Watermaster Board agenda items on January 24, a) Administrative Assessments Rules and Regulations The Committee had no further comments on these rules and regulations. b) 2018 AV Watermaster Budget c) 2018 Administrative Assessment These items were considered together. After discussion, the Committee voted unanimously to accept the proposed $5.00/per AF Administrative Assessment. The Draft 2018 Budget was also considered acceptable if the following concerns are addressed: Legal Costs must be controlled as it is a new, very large expense to the Producers. Ideas discussed to do this include a well-defined chain-ofcommand for directing legal work, an oversight committee of Producers to review how the time is spent and billing, and disclosure of full billing details to the public. Replacement Water Assessments should be removed from the Administrative Budget. Concern about the proposed budget versus amount of work required of Todd Groundwater. d) AV Watermaster Administration

3 There was no discussion on this item as it did not appear on the January 24, 2018 AV Watermaster Board (AVWB) agenda. e) Phelan Pinon Hills CSD Rampdown Production Costs The legal memo on this item was not yet available. The Committee recognized this is a legal issue, not a discretionary issue and there was not discussion. 4. Discussion of potential future items to present to the AV Watermaster. a) Hierarchy of Production Rights There was no discussion on this item other than to clarify it. It refers to the future discussion of the order in which various production rights are used by Producers. b) Procedures for handling pending well applications Todd Groundwater gave an overview of the draft memo. After various concerns were raised it was noted the AVWB agenda item was Resolution R to direct Todd Groundwater to write rules and regulations consistent with the Watermaster Attorney s memo. Therefore, the Committee will have a future opportunity the thoroughly review and comment on draft rules and regulations before they are considered for approval by the AVWB and the discussion ended. 5. Information Items Summary of Watermaster Engineer well application actions. No discussion Status of court motions No discussion about the pending motions. Technical Advisor Rottman did express several concerns about the accuracy of the information used by the Judgement in describing and managing the Antelope Valley Groundwater Basin (Basin). These included the following: Whether the Basin is a closed basin, differences in expert testimony, potential areas not in overdraft, public water agencies compliance with commitments to purchase imported water. 6. Requests for future agenda items - Provide input to Todd Groundwater on well network used to gauge the Basin s status in annual reports and for the future Safe Yield evaluation;

4 - Provide input into determining the Replacement Water Assessment; - Identifying non-stipulating or known producers in the Basin and consequences for unauthorized groundwater pumping, and; - Initiate the formation of the Sub Area Advisory Committees. Enclosures: Operating Procedures and Roster

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8 ITEM 3.a February 15, 2018 FINAL REVISED DRAFT MEMORANDUM To: Robert Parris, Chair Antelope Valley Watermaster Board of Directors Craig Parton, Price Postel & Parma LLP, Watermaster Legal Counsel From: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Re: Procedures for New Production Requests and for Review of Well Applications for New or Replacement Production Wells by the Antelope Valley Watermaster Engineer This memorandum describes draft procedures for review and subsequent approval or denial of requests for new production and Well Applications for new or replacement production wells from: applicants with a right to produce groundwater under the Judgment 1, and applicants not identified in the Judgment as having a right to produce groundwater. Applicants that are not identified individually in the Judgment as having rights to produce groundwater are referred to herein as applicants with unknown production rights. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. Note that production rights for this usage is not capitalized to avoid confusion with the term Production Rights defined in the Judgment that is specifically linked to the Native Safe Yield. This draft text is being provided to the Advisory Committee, the Watermaster Board, and posted to the Watermaster website for comments, edits, and subsequent inclusion in the Antelope Valley Watermaster Rules and Regulations (R&Rs). Pending legal review and final edits, the Board will approve the text for use in the R&Rs. The process incorporates four separate forms that will be developed once the draft procedures have been finalized. Information to be included on the forms are listed herein for illustration and 1 Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties, and other parties identified in the Judgment as having a right to produce groundwater, such as Phelan Piñon Hills Community Services District and the City of Lancaster Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

9 consideration by the Board. Once the procedures are finalized, forms will be posted on the Watermaster website, the name of each form will be incorporated into the R&R text, and the list of items to be included on the forms may be removed from this text to avoid duplication. According to the Judgment ( ), the Watemaster will adopt the R&Rs and provide them to the Court for approval. Prior to adoption, the Watermaster must hold a public hearing on the R&Rs. Draft Rules and Regulations must be provided to all parties 30 days prior to the date of the hearing ( ). Because sections of the R&Rs are being developed over time, this process is being repeated as portions of the R&Rs are ready for adoption. This draft text on the review procedures for New or Replacement Well Applications is being provided to all parties 30 days prior to a public hearing scheduled for February 28, Because the R&Rs are being developed over time by section, the draft text provided herein likely includes more context or references to the Judgment than will be needed when incorporated into the final R&Rs. It is recognized that this draft text may be edited for clarity as new sections are added to the R&Rs. All new or revised draft text will be available for review by the Advisory Committee and the public before approval by the Board and incorporation into the R&Rs. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 2 REVISED

10 SECTION X NEW OR REPLACEMENT WELL APPLICATIONS AND NEW PRODUCTION REQUESTS 1.1. Purpose. New and replacement wells drilled in the Adjudication Area of the Antelope Valley are subject to approval by the Antelope Valley Watermaster. A new well is any well that does not presently exist but is proposed to be constructed. A replacement well is a specific kind of new well that is located within 300 feet of an existing well and owned by the same Party that intends to construct the new well. The following sections describe the procedures to be followed by the Watermaster Engineer for evaluating requests for new and replacement wells and to make recommendations to the Watermaster for approval or denial. These procedures incorporate requirements in the Judgment and support the Watermaster Engineer s duties to provide proper water accounting and tracking of groundwater production. Procedures for applications for new and replacement wells would involve an initial determination as to whether or not a party has a known right to produce groundwater under the Judgment. For applicants without a known right, the well application may relate to whether the well will be used by an unknown member of the Small Pumper Class or for New Production. For completeness, these procedures also include how to address applicants that may be unknown members of the Small Pumper Class or applicants for New Production Basis. The Judgment allows Parties to change a point of extraction for any Production Right so long as such change of a point of extraction does not cause Material Injury ( 17). A replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to change a point of extraction for any Production Right shall notify the Watermaster of the location of a new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in a point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from the intended new point of extraction on the Basin and on other Producers ( 17.2). The Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for recordkeeping purposes. With regard to applications for New Production, the Watermaster shall consider and determine whether to approve applications for New Production after consideration of the recommendation of the Watermaster Engineer ( ). The process and requirements for New Production applications are described in Section of the Judgment ( through ). In addition, the Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 3 REVISED

11 Watermaster decision on a New Production application may be subject to Court Review (pursuant to 20.3) ( ) Process for Review of Well Applications The Watermaster Engineer will follow a process described in the following sections for review of well approval applications. This process is shown schematically by the flow chart on Figure 1. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 4 REVISED

12 Figure 1: Process for Well Application Review Watermaster Engineer Well Request Yes Known Right to Produce Groundwater under the Judgment? No Confirmed Small Pumper Form 2 Yes Unknown Small Pumper? No Yes Replacement Well? (<300 from original well) No New Point of Extraction New Production Form 1 Form 3 Form 4 Material Injury Analysis Material Injury Analysis Recommend Approval/ Denial Recommend Approval/ Denial Recommend Approval/ Denial Notes: Form 1: Replacement Well Application (for Existing Production Rights) Form 2: Small Pumper Qualifying Documentation Form 3: New Point of Extraction Application Form 4: New Production Application February 2018

13 There are four questions associated with the review process: 1. Does the Applicant have a known right to produce groundwater under the Judgment? 2. Does the Applicant qualify as an unknown Small Pumper? 3. Is there be a change in a point of extraction (i.e., request for a new well more than 300 feet from the original well)? 4. Is there a Material Injury associated with any change in point of extraction or new production? The answers to these questions ultimately lead to a Watermaster Engineer recommendation for approval or denial of the well application. The Watermaster will consider this recommendation and approve or deny the application. The components of this review process are summarized below and discussed in more detail in the sections that follow. Known Right to Produce Groundwater. If the Applicant has a known right to produce groundwater under the Judgment and is requesting a replacement well. Applicant will need to provide the applicable information in Section 1.4 and on Form 1, as described below. This process is illustrated on the left side of Figure 1, ending with the subsequent recommendation for approval or denial. New Point of Extraction. For new wells other than replacement wells, the Applicant will need to provide the applicable information in Section 1.4 and on Form 3, as described below. This is considered a change in point of extraction and is illustrated in the central portion of the flow chart on Figure 1 (New Point of Extraction flow path), ending in subsequent recommendation of approval or denial. Unknown Small Pumper. The Watermaster Administrative staff or Watermaster Engineer will assist a pumper with the determination if they could potentially be an unknown Small Pumper. If so, an unknown Small Pumper can demonstration their eligibility as a Small Pumper Class Member under the Judgment by providing the information in Section 1.5, including information for Form 2, as described below (see Figure 1). A confirmed Small Pumpers can then request a replacement well by providing the applicable information in Section 1.4, including Form 1, as described below (represented as the flow path ending in approval/denial of Form 1 on Figure 1). For new wells that are not replacement wells, the Applicant will need to provide change in point of extraction information in Section 1.5 below (New Point of Extraction represented as the Form 3 flow path on Figure 1). New Production. If the applicant has no production rights, including being ineligible for the Small Pumper Class, they will also need to submit a New Production Application. The Applicant will also need to provide the information in Section 1.7, including completion of Form 4, as described below. This is illustrated on the right side of Figure 1 by the New Production/Form 4 flow path. Material Injury. A Material Injury review is required if there is a new point of extraction or new production (Forms 3 and 4 on Figure 1). If there is no evidence of Material Injury, the Watermaster Engineer will recommend approval by the Watermaster; if there is evidence for a potential Material Injury that cannot be mitigated, the Watermaster Engineer will recommend denial by the Watermaster. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 6 REVISED

14 1.4. Requests for New or Replacement Wells from Applicants with Known Rights to Produce Groundwater. Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties; and other parties identified in the Judgment as having a right to produce groundwater (e.g., Phelan Pinon Hills CSD, City of Lancaster). This section of the R&Rs describes a process whereby those with known rights to produce groundwater can request new or replacement wells. The Judgment allows Parties to change a point of extraction for any Production Right so long as such change of a point of extraction does not cause Material Injury ( 17). In addition, a replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to add a new point of extraction for any Production Right shall notify the Watermaster of the location of a new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42 and not be subject to Material Injury review. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in a point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from an intended new point of extraction on the Basin and on other Producers ( 17.2). Because the change in point of extraction could potentially result in a Material Injury analysis, the U.S. Federal Government will also be subject to notification requirements in 17.1 and submittal of a well application for all new or replacement wells associated with these procedures. The Watermaster Engineer acknowledges that the U.S. can change a point of extraction within its boundaries at its sole discretion without a Material Injury analysis; nonetheless, the Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for record-keeping purposes. With regard to Small Pumper Class members, the Judgment further states that their pumping rights are not transferable separately from the parcel of property on which the water is pumped unless the Small Pumper Class member received Court approval to move their water right to another parcel they own. If a Small Pumper Class member parcel is sold, absent a written contract stating otherwise and subject to the provisions of the Judgment, the water right for that Small Pumper Class member parcel shall transfer to the new owners of that parcel. The pumping rights of Small Pumper Class Members may not be aggregated for use by a purchaser of more than one Small Pumper Class Member s property. ( ). Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 7 REVISED

15 Applicants with known production rights requesting to install a replacement well within 300 feet of an existing well must provide the following information. Form 1 Information (Replacement Well Application for Existing Production Rights) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing materials, depth, surface seal material and depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude (or X,Y coordinates), ground surface elevation, depth to water, status (active, inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity (gpm) future annual production from the new well. Well locations and distance between new well and the old well. If a new well is proposed in order to stop sharing an existing well (also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. Agreement that the well will be metered (unless Small Pumper Class 2 ) in accordance with the metering requirements in Section XX of these R&Rs. Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review. Applicants with known production rights requesting to install a new well at a new point of extraction must provide the following information. 2 The Watermaster is tasked with monitoring all the Safe Yield components (18.5.1). As per Section of the Judgment The primary means for monitoring the Small Pumper Class Members Groundwater use under the Physical Solution will be based on physical inspection by the Watermaster, including the use of aerial photographs and satellite imagery. All Small Pumper Class Members agree to permit the Watermaster to subpoena the electrical meter records associated with their Groundwater wells on an annual basis. Should the Watermaster develop a reasonable belief that a Small Pumper Class Member household is using in excess of 3 acre-feet per Year, the Watermaster may cause to be installed a meter on such Small Pumper Class Member s well at the Small Pumper Class Member s expense. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 8 REVISED

16 Form 3 Information (New Point of Extraction Application) Property owner s name, mailing address, parcel APN number where the new point of extraction will be located and property address (if different than mailing address), and phone number. Location and description of each existing well on the well owner s property: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, status (active, inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity and future annual production from the new well. Well locations and distance between the new and existing wells. If a new well is proposed in order to stop sharing an existing well (Also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , additional expertise added). Agreement that the well will be metered (unless Small Pumper Class) in accordance with the metering requirements in Section XX of these R&Rs. Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review Requests for New or Replacement Wells from Unknown Small Pumpers. Some well owners may not be identified individually in the Judgment as having rights to produce groundwater, but may qualify as an unknown Small Pumper as defined by the Judgment. Such well owners must first provide Small Pumper Class qualifying documentation and be confirmed as a member of the Small Pumper Class. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. This process must be completed first before an applicant can request a new or replacement well. The Small Pumper Class is defined in the Judgment as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, and that have been pumping less than 25 acre-feet per Year on their property during any Year from 1946 to the present. The Small Pumper Class excludes the defendants in Wood v. Los Angeles Co. Waterworks Dist. 40, et al., any Person, firm, trust, corporation, or other entity in which any such defendants has a controlling interest or which is Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 9 REVISED

17 related to or affiliated with any such defendants, and the representatives, heirs, affiliates, successors-ininterest or assigns of any such excluded party. The Small Pumper Class also excludes all Persons and entities that are shareholders in a mutual water company. The Small Pumper Class does not include those who opted out of the Small Pumper Class. ( ). The Judgment also states: The Small Pumper Class shall be permanently closed to new membership upon issuance by the Court of its order granting final approval of the Small Pumper Class Settlement (the Class Closure Date ), after the provision of notice to the Class of the Class Closure Date. Any Person or entity that does not meet the Small Pumper Class definition prior to the Class Closure Date is not a Member of the Small Pumper Class. Similarly, any additional household constructed on a Small Pumper Class Member parcel after the Class Closure Date is not entitled to a Production Right as set forth in Paragraphs and ( ). The Judgment acknowledges that there are unknown members of the Small Pumper Class: Unknown Small Pumper Class Members are defined as: (1) those Persons or entities that are not identified on the list of known Small Pumper Class Members maintained by class counsel and supervised and controlled by the Court as of the Class Closure Date; and (2) any unidentified households existing on a Small Pumper Class Member parcel prior to the Class Closure Date. Within ten (10) Court days of the Class Closure Date, class counsel for the Small Pumper Class shall publish to the Court website and file with the Court a list of the known Small Pumper Class Members. ( ). Given the limited number of additions to the Small Pumper Class during the more than five Years since the initial notice was provided to the Class, the Court finds that the number of potentially unknown Small Pumper Class Members and their associated water use is likely very low, and any Production by unknown Small Pumper Class Members is hereby deemed to be de minimis in the context of this Physical Solution and shall not alter the Production Rights decreed in this Judgment. However, whenever the identity of any unknown Small Pumper Class Member becomes known, that Small Pumper Class Member shall be bound by all provisions of this Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members. ( ). Collectively, these Judgment sections indicate that pumpers meeting the definition of a Small Pumper as of December 23, 2015 are included in the Judgment and bound by the Judgment. Once identified, unknown Small Pumpers will need to agree to be bound by all the terms of the Judgment and be listed as a member of the Small Pumper Class under the Judgement. Unknown Small Pumper s request for a replacement well must contain information to demonstrate eligibility as a Small Pumper Class Member under the Judgment (Form 2 on Figure 1) and must contain the information requested in Section 1.4 above (Form 1 on Figure 1). For new wells other than replacement wells, change in point of extraction information is needed (Form 3 on Figure 1). Well Applicants who seek eligibility for the Small Pumper Class shall supply the following: Form 2 Information (Small Pumper Qualifying Documentation) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 10 REVISED

18 Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, and a copy of the DWR Well Completion Report, if available. Proof that the well on the owner s property has been pumped between 1946 and 2015 and the production amount has always been less than 25 acre-feet per year (AFY) during any year between 1946 and 2015 ( ). Supporting documentation should include all pertinent information available as listed below: o Documentation that the well was drilled on the property prior to December 23, 2015 (e.g., County well permit, DWR Well Completion Report, etc.). o If sufficient documentation is not provided in bullet above, property owner agrees to allow Watermaster Engineer or designated agent access to the property at a mutuallyagreed upon time to physically inspect the well and property. o Uses of the existing well including domestic, irrigation, livestock, etc. Also provide an estimate of annual household occupancy (number of residents), history of land irrigation and acreage, and history of livestock/animals that resided on the property and that relied on the well during the 1946 to 2015-time period. o land deed/parcel information indicating use of land and/or historical aerial photographs of land showing land use. o other pertinent information that demonstrates the use and production amounts of the well during the 1946 to 2015-time period. Statement affirming that the applicant and parcel associated with this request are not part of the Non-Pumper Class, nor a shareholder in a mutual water company, nor opted out of the Small Pumper Class ( ). Statement affirming that the applicant and associated parcel is for private (i.e., nongovernmental) use and that the applicant owns the property ( ). Statement that the applicant agrees to be bound by all provisions of the Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members ( ). Notarized affidavit confirming: o the well was active and that total water use on property was below 25 AFY in any year from 1946 to December 23, o the Small Pumper Class Member will not pump more than 3 AFY from the well, recognizes that the rights are not transferable from the parcel, and agrees to be bound by all applicable terms in the Judgment. o that the other information and statements provided are true. Payment of a well application fee as set by the Watermaster to recover costs of material review. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 11 REVISED

19 1.6. Requests for a New Well from Small Pumper Class Members that Currently Share a Well but want to Segregate those Rights and use Individual Wells. The Judgment permits Small Pumpers to share a well: A Small Pumper Class Member who is lawfully, by permit, operating a shared well with an adjoining Small Pumper Class Member, shall have all of the same rights and obligations under this Judgment without regard to the location of the shared well, and such shared use is not considered a prohibited transfer of a pumping right under Paragraph ( 5.1.3). An applicant who wants to drill a new well in lieu of using a shared well will retain their status as a member of the Small Pumper Class with a right to produce no more than 3 AFY from the applicant s parcel. Even though this new well would appear be considered New Production as defined by the Judgment, there would be no Material Injury because pumping is not increased. Therefore, the requirements for New Production (Form 4) are waived for the Small Pumper Class member. If the new well is within 300 feet of the shared well, the Applicant would need to submit Form 1. If the new well is greater than 300 feet from the shared well, it is considered a new point of extraction and the Applicant would need submit Form 3. If either of the Parties that share a well are not listed as a member of the Small Pumper Class (i.e., are unknown Small Pumpers), they will have to first demonstrate eligibility as a Small Pumper Class Member under the Judgment as provided in Section 1.5 of the R&Rs (Form 2 on Figure 1). The Applicant requesting the new well will need to provide the information listed in Section 1.4 of the R&Rs (Form 1 on Figure 1 if the new well is within 300 feet of the shared well or Form 3 on Figure 1 if the new well is greater than 300 feet from shared well) Request for New Production from New Wells. New Production is defined as: Any Production of Groundwater from the Basin not of right under this Judgment, as of the date of this Judgment. ( ). The Non-Pumper Class is defined as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, that are not presently pumping water on their property and did not do so at any time during the five Years preceding January 18, The Non-Pumper Class includes the successors-in-interest by way of purchase, gift, inheritance, or otherwise of such Non- Pumper Class members land within the Basin. The Non-Pumper Class excludes (1) all Persons to the extent their properties are connected to a municipal water system, public utility, or mutual water company from which they receive water service, (2) all properties that are listed as improved by the Los Angeles County or Kern County Assessor's offices, unless the owners of such properties declare under penalty of perjury that they do not pump and have never pumped water on those properties, and (3) those who opted out of the Non-Pumper Class. The Non-Pumper Class does not include landowners who have been individually named under the Public Water Suppliers' cross-complaint, unless such a landowner has opted into such class. ( , emphasis added). Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 12 REVISED

20 The Non-Pumper Class Rights are stated as: The Non-Pumper Class members claim the right to Produce Groundwater from the Native Safe Yield for reasonable and beneficial uses on their overlying land as provided for in this Judgment. On September 22, 2011, the Court approved the Non-Pumper Class Stipulation of Settlement through an amended final judgment that settled the Non-Pumper Class claims against the Public Water Suppliers ( Non-Pumper Class Judgment ). This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. Future Production by a member of the Non-Pumper Class is addressed in the Physical Solution. ( 5.1.2). The Non-Pumper Class members shall have no right to transfer water pursuant to this Judgment. ( ). The Judgment provides a summary of the Non-Pumper Class Stipulation of Settlement and also indicates that New Production for the Non-Pumper Class members may be subject to a replacement assessment: The Non-Pumper Class Stipulation of Settlement, executed by its signatories and approved by the Court in the Non-Pumper Class Judgment, specifically provides for imposition of a Replacement Water Assessment on Non-Pumper Class members. This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. The Non-Pumper Class members specifically agreed to pay a replacement assessment if that member produced more than its annual share of the Native Safe Yield less the amount of the Federal Reserved Right. (See Appendix B at paragraph V, section D. Replacement Water.) In approving the Non-Pumper Class Stipulation of Settlement this Court specifically held in its Order after the Hearing dated November 18, 2010, that the court determination of physical solution cannot be limited by the Class Settlement. The Court also held that the Non-Pumper Class Stipulation of Settlement may not affect parties who are not parties to the settlement. ( 9.2.1, emphasis added). Non-Pumper Class Stipulation of Settlement (Appendix B, paragraph V, section D) Replacement Water. The Settling Parties recognize the right of any Settling Party to produce groundwater from the Basin above their share of the Native Safe Yield, subject to the Physical Solution and to any Replacement Assessment. The Settling Parties agree to provide or purchase Imported Water for all groundwater pumping that exceeds a Settling Party s share of the Federally Adjusted Native Safe Yield. The Settling Parties agree that any Settling Party who produces more than its annual share of the Federally Adjusted Native Safe Yield in any year will be responsible to provide Replacement Water or pay a Replacement Assessment to the Watermaster so that the Watermaster can purchase Imported Water to recharge the Basin. Finally, the Judgment requires any New Production, including that by a member of the Non-Pumper Class, must comply with the New Production Application Procedure specified in paragraph ( 9.2.2). Additional requirements on the Non-Pumper Class, as well as requirements of the Watermaster s determination as to the approval, scope, nature and priority of any New Production is provided in the remaining portions of Paragraph Sections under Paragraph provide the framework of the New Production Application Procedure, including provision of a written application ( ) and payment for review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production. ( ). Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 13 REVISED

21 In accordance with the Judgment, All Parties or Person(s) seeking approval from the Watermaster to commence New Production of Groundwater shall submit a written application to the Watermaster Engineer which shall include the following: ( ). Form 4 Information (New Production Application) Payment of an application fee sufficient to recover all costs of application review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production ( ). Written summary describing the proposed quantity, sources of supply, reason of use, purpose of use, place of use, manner of delivery, and other pertinent information regarding the New Production ( ). Maps identifying the location of the proposed New Production, including Basin Subarea ( ). Well information including proposed well design, estimated annual pumping, and agreement to install a meter in accordance with the Rules & Regulations. Plus, a statement that once the well is installed, the applicant will provide water well permits, specifications and well-log reports, pump specifications and testing results, and water meter specifications associated with the New Production ( ). Written confirmation that applicant has obtained all necessary entitlements and permits including all applicable Federal, State, County, and local land use entitlements and other permits necessary to commence the New Production ( ). Written confirmation that applicant has complied with applicable laws and regulations including all applicable Federal, State, County, and local laws, rules and regulations, including but not limited to, the California Environmental Quality Act (Public Resources Code 21000, et. seq.) ( ). Preparation of a water conservation plan, approved and stamped by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, demonstrating that the New Production will be designed, constructed and implemented consistent with California best water management practices ( ). Preparation of an analysis of the economic impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). Preparation of an analysis of the physical impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , expertise in groundwater hydrology added). Written confirmation that the applicant agrees to pay the applicable Replacement Water Assessment for any New Production ( ). Other pertinent information which the Watermaster Engineer may require ( ). Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 14 REVISED

22 1.8. Material Injury Determination. Upon receipt the appropriate completed and accurate form (Form 3 or Form 4), the Watermaster Engineer will determine if the change in point of extraction or New Production will cause a Material Injury. The Judgment states Material Injury. Material Injury means impacts to the Basin caused by pumping or storage of Groundwater that: Causes material physical harm to the Basin, any Subarea, or any Producer, Party or Production Right, including, but not limited to, Overdraft, degradation of water quality by introduction of contaminants to the aquifer by a Party and/or transmission of those introduced contaminants through the aquifer, liquefaction, land subsidence and other material physical injury caused by elevated or lowered Groundwater levels. Material physical harm does not include "economic injury that results from other than direct physical causes, including any adverse effect on water rates, lease rates, or demand for water If fully mitigated, Material Injury shall no longer be considered to be occurring Finding of No Material Injury. The Watermaster Engineer shall not make recommendation for approval of an application to commence New Production of Groundwater unless the Watermaster Engineer finds, after considering all the facts and circumstances including any requirement that the applicant pay a Replacement Water Assessment required by this Judgment or determined by the Watermaster Engineer to be required under the circumstances, that such New Production will not cause Material Injury. If the New Production is limited to domestic use for one single-family household, the Watermaster Engineer has the authority to determine the New Production to be de minimis and waive payment of a Replacement Water Assessment; provided, the right to Produce such de minimis Groundwater is not transferable, and shall not alter the Production Rights decreed in this Judgment. Factors to be considered in the Material Injury analysis include those sustainability indicators defined in the Sustainable Groundwater Management Act. 1. Chronic lowering of groundwater levels, including adverse impacts to neighboring wells 2. Reduction of groundwater storage 3. Degraded water quality 4. Land subsidence that substantially interferes with land use 5. Depletions of interconnected surface water such that beneficial uses of the surface water are impacted, and 6. Any other considerations identified by the Watermaster Engineer relevant to evaluating whether material physical harm is caused to the Basin, and Subarea, or any Producer, Party, or Production Right. If the change in point of extraction or New Production cause these conditions to occur in a significant and unreasonable manner, the Watermaster Engineer may determine that the production will result in Material Injury. Procedures for New Production Requests and Review of Well Applications / Rules and Regulations 15 REVISED

23 February 15January 29, 2018 FINAL REVISED DRAFT MEMORANDUM To: Robert Parris, Chair Antelope Valley Watermaster Board of Directors Craig Parton, Price Postel & Parma LLP, Watermaster Legal Counsel From: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Re: Procedures for New Production Requests and for Review of Well Applications for New or Replacement Production Wells by the Antelope Valley Watermaster Engineer This memorandum describes draft procedures for review and subsequent approval or denial of requests for new production and Well Applications for new or replacement production wells from: applicants with a right to produce groundwater under the Judgment 1, and applicants not identified in the Judgment as having a right to produce groundwater 2. Applicants that are not identified individually in the Judgment as having rights to produce groundwater are referred to herein as applicants with unknown production rights. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. Note that production rights for this usage is not capitalized to avoid confusion with the term Production Rights defined in the Judgment that is specifically linked to the Native Safe Yield. 1 Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties, and other parties identified in the Judgment as having a right to produce groundwater, such as Phelan Piñon Hills Community Services District and the City of Lancaster. 2 Applicants that are not identified individually in the Judgment as having rights to produce groundwater are referred to herein as applicants with unknown production rights. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. Note that production rights for this usage is not capitalized to avoid confusion with the term Production Rights defined in the Judgment that is specifically linked to the Native Safe Yield Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

24 This draft text is being provided to the Advisory Committee, the Watermaster Board, and posted to the Watermaster website for comments, edits, and subsequent inclusion in the Antelope Valley Watermaster Rules and Regulations (R&Rs). Pending legal review and final edits, the Board will approve the text for use in the R&Rs. The process incorporates four separate forms that will be developed once the draft procedures have been finalized. Information to be included on the forms are listed herein for illustration and consideration by the Board. Once the procedures are finalized, forms will be posted on the Watermaster website, the name of each form will be incorporated into the R&R text, and the list of items to be included on the forms may be removed from this text to avoid duplication. According to the Judgment ( ), the Watemaster will adopt the R&Rs and provide them to the Court for approval. Prior to adoption, the Watermaster must hold a public hearing on the R&Rs. Draft Rules and Regulations must be provided to all parties 30 days prior to the date of the hearing ( ). Because sections of the R&Rs are being developed over time, this process is being repeatedduplicated as portions of the R&Rs are ready for adoption. This draft text on the review procedures for New or Replacement Well Applications is being provided to all parties 30 days prior to a public hearing scheduled for February 28, Because the R&Rs are being developed over time by section, the draft text provided herein likely includes more context or references to the Judgment than will be needed when incorporated into the final R&Rs. It is recognized that this draft text may be edited for clarity as new sections are added to the R&Rs. All new or revisedthe draft text will be available for review by the Advisory Committee and the public before approval by the Board and reviewed by legal counsel prior to incorporation into the R&Rs. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

25 SECTION X NEW OR REPLACEMENT WELL APPROVAL APPLICATIONS AND NEW PRODUCTION REQUESTS 1.1. Purpose. New and replacement wells drilled in the Adjudication Area of the Antelope Valley are subject to approval by the Antelope Valley Watermaster. A new well is any well that does not presently exist but is proposed to be constructed. A replacement well is a specific kind of new well that is located within 300 feet of an existing well and owned by the same Party that intends to construct the new well. The following sections describe the procedures to be followed by the Watermaster Engineer for evaluating requests for new and replacement wells and to make recommendations to the Watermaster for approval or denial. These procedures incorporate requirements in the Judgment and support the Watermaster Engineer s duties to provide proper water accounting and tracking of groundwater production. Procedures for applications for new and replacement wells would involve an initial determination as to whether or not a party has a known right to produce groundwater under the Judgment. For applicants without a known right, the well application may relate to whether the well will be used by an unknown member of the Small Pumper Class or for New Production. For completeness, these procedures also include how to address applicants that may be unknown members of the Small Pumper Class or applicants for New Production Basis. The Judgment allows Parties to change athe point of extraction for any Production Right so long as such change of athe point of extraction does not cause Material Injury ( 17). A replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to change athe point of extraction for any Production Right shall notify the Watermaster of the location of athe new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in athe point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from the intended new point of extraction on the Basin and on other Producers ( 17.2). The Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for recordkeeping purposes. With regard to applications for New Production, the Watermaster shall consider and determine whether to approve applications for New Production after consideration of the recommendation of the Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

26 Watermaster Engineer ( ). The process and requirements for New Production applications are described in Section of the Judgment ( through ). In addition, the Watermaster decision on a New Production application may be subject to Court Review (pursuant to 20.3) ( ) Process for Review of Well Applications The Watermaster Engineer will follow a process described in the following sections for review of well approval applications. This process is shown schematically by the flow chart on Figure 1. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

27 Figure 1: Process for Well Application Review Watermaster Engineer Well Request Yes Known Right to Produce Groundwater under the Judgment? No Confirmed Small Pumper Form 2 Yes Unknown Small Pumper? No Yes Replacement Well? (<300 from original well) No New Point of Extraction New Production Form 1 Form 3 Form 4 Material Injury Analysis Material Injury Analysis Recommend Approval/ Denial Recommend Approval/ Denial Recommend Approval/ Denial Notes: Form 1: Replacement Well Application (for Existing Production Rights) Form 2: Small Pumper Qualifying Documentation Form 3: New Point of Extraction Application Form 4: New Production Application February 2018

28 There are four questions associated with the review process: 1. Does the Applicant have a known right to produce groundwater under the Judgment? 2. Does the Applicant Qqualify as an uunknown Small Pumper? 3. Is there be a change in athe point of extraction (i.e., request for a replacement new well more than 300 feet from the original well)? 4. Is there a Material Injury associated with any cchange in ppoint of eextraction or new pproduction? The answers to these questions ultimately lead to a Watermaster Engineer recommendation for approval or denial of the well application. The Watermaster will consider this recommendation and approve or deny the application. The components of this review process are summarized below and discussed in more detail in the sections that follow. Known Right to Produce Groundwater. If the Applicant has a known right to produce groundwater under the Judgment and is requesting a replacement well that is within 300 feet of the original well,. Applicant will need to provide the applicable information in Section 1.4 and on Form 1, as described below. This process is illustrated on the left side of Figure 1, ending with the subsequent recommendation for approval or denial based on the documentation provided in Form 1. Change innew Point of Extraction. For new wells other than replacement wellsif a requested replacement well is more than 300 feet from the original well or if a new well is proposed, the Applicant will need to provide the applicable information in Section 1.4 and on Form 3, as described below. This is considered a change in point of extraction and is illustrated in the central portion of the flow chart on Figure 1 (New Point of Extraction flow path), including submittal of Form 3 and an evaluation of the potential for Material Injuryending in subsequent recommendation of approval or denial. Unknown Small Pumper. The Watermaster Administrative staff or Watermaster Engineer will assist a pumper with the determination if they could potentially be an unknown Small Pumper. If so, Aan unknown Small Pumper can demonstration their eligibility as a Small Pumper Class Member under the Judgment by providing the information in Section 1.5, including information for Form 2, as described below (see Figure 1). A confirmed Small Pumpers can then If a requested a replacement well is within 300 feet of the original well, the Applicant will need toby providinge the applicable information in Section 1.4, including Form 1, as described below (represented as the flow path ending in approval/denial of Form 1 on Figure 1). For new wells that are notif the replacement wells is more than 300 feet from the original well or a new well is proposed, the Applicant will need to provide change in point of extraction the information in Section 1.5 below (Change innew Point of Extraction represented as the Form 3 flow path on Figure 1). New Production. If the applicant has no production rights, including being ineligible for the Small Pumper Class, theyir will also need to submit well application is considereda New Production Application. The Applicant will also need to provide the information in Section 1.7, including completion Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

29 of Form 4, as described below. This is illustrated on the right side of Figure 1 by the New Production/Form 4 flow path. Material Injury. A Material Injury review is required if there is a newchange in point of extraction or new production (Forms 3 and 4 on Figure 1). If there is no evidence of Material Injury, the Watermaster Engineer will recommend approval by the Watermaster; if there is evidence for a potential Material Injury that cannot be mitigated, the Watermaster Engineer will recommend denial by the Watermaster Requests for New or Replacement Wells from Applicants with Known Rights to Produce Groundwater. Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties; and other parties identified in the Judgment as having a right to produce groundwater (e.g., Phelan Pinon Hills CSD, City of Lancaster). This section of the R&Rs describes a process whereby those with known rights to produce groundwater can request new or replacement wells. The Judgment allows Parties to change athe point of extraction for any Production Right so long as such change of athe point of extraction does not cause Material Injury ( 17). In addition, a replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to add a newchange the point of extraction for any Production Right shall notify the Watermaster of the location of athe new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42 and not be subject to Material Injury review. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in athe point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from anthe intended new point of extraction on the Basin and on other Producers ( 17.2). Because the change in point of extraction could potentially result in a Material Injury analysis, the U.S. Federal Government will also be subject to notification requirements in 17.1 and submittal of a well application for all new or replacement wells associated with these procedures. The Watermaster Engineer acknowledges that the U.S. can change athe point of extraction within its boundaries at its sole discretion without a Material Injury analysis; nonetheless, the Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for record-keeping purposes. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

30 With regard to Small Pumper Class members, the Judgment further states that their pumping rights are not transferable separately from the parcel of property on which the water is pumped unless the Small Pumper Class member received Court approval to move their water right to another parcel they own. If a Small Pumper Class member parcel is sold, absent a written contract stating otherwise and subject to the provisions of the Judgment, the water right for that Small Pumper Class member parcel shall transfer to the new owners of that parcel. The pumping rights of Small Pumper Class Members may not be aggregated for use by a purchaser of more than one Small Pumper Class Member s property. ( ). Applicants with known production rights requesting to install a new well or a replacement well within 300 feet of an existing well must provide the following information. Form 1 Information (New or Replacement Well Application for Existing Production Rights) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing materials, depth, surface seal material and depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude (or X,Y coordinates), ground surface elevation, depth to water, status (active, inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity (gpm) future annual production from the new well. Well locations and distance between new well and the old well. If a new well is proposed in order to stop sharing an existing well (also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. Agreement that the well will be metered (unless Small Pumper Class 3 ) in accordance with the metering requirements in Section XX of these R&Rs. 3 The Watermaster is tasked with monitoring all the Safe Yield components (18.5.1). As per Section of the Judgment The primary means for monitoring the Small Pumper Class Members Groundwater use under the Physical Solution will be based on physical inspection by the Watermaster, including the use of aerial photographs and satellite imagery. All Small Pumper Class Members agree to permit the Watermaster to subpoena the electrical meter records associated with their Groundwater wells on an annual basis. Should the Watermaster develop a reasonable belief that a Small Pumper Class Member household is using in excess of 3 acre-feet per Year, the Watermaster may cause to be installed a meter on such Small Pumper Class Member s well at the Small Pumper Class Member s expense. Draft Issue Paper / Procedures for New Production Requests and REVISEDDRAFT 21- Review of Well Applications / Rules and Regulations 8

31 Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review. Applicants with known production rights requesting to install a new or replacement well at a new greater than 300 feet from an existing well (change in point of extraction) must provide the following information. Form 3 Information (NewChange in Point of Extraction Application) Property owner s name, mailing address, parcel APN number where the new point of extraction will be located and property address (if different than mailing address), and phone number. Location and description of each existing well on the well owner s property: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, status (active, inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity and future annual production from the new well. Well locations and distance between the new and existing wells. If a new well is proposed in order to stop sharing an existing well (Also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , additional expertise added). Agreement that the well will be metered (unless Small Pumper Class) in accordance with the metering requirements in Section XX of these R&Rs. Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review Requests for New or Replacement Wells from Unknown Small Pumpers. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

32 Some well owners may not be identified individually in the Judgment as having rights to produce groundwater, but may qualify as an unknown Small Pumper as defined by the Judgment. Such well owners must first provide Small Pumper Class qualifying documentation and be confirmed as a member of the Small Pumper Class. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. This process must be completed first before an applicant can request a new or replacement well. The Small Pumper Class is defined in the Judgment as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, and that have been pumping less than 25 acre-feet per Year on their property during any Year from 1946 to the present. The Small Pumper Class excludes the defendants in Wood v. Los Angeles Co. Waterworks Dist. 40, et al., any Person, firm, trust, corporation, or other entity in which any such defendants has a controlling interest or which is related to or affiliated with any such defendants, and the representatives, heirs, affiliates, successors-ininterest or assigns of any such excluded party. The Small Pumper Class also excludes all Persons and entities that are shareholders in a mutual water company. The Small Pumper Class does not include those who opted out of the Small Pumper Class. ( ). The Judgment also states: The Small Pumper Class shall be permanently closed to new membership upon issuance by the Court of its order granting final approval of the Small Pumper Class Settlement (the Class Closure Date ), after the provision of notice to the Class of the Class Closure Date. Any Person or entity that does not meet the Small Pumper Class definition prior to the Class Closure Date is not a Member of the Small Pumper Class. Similarly, any additional household constructed on a Small Pumper Class Member parcel after the Class Closure Date is not entitled to a Production Right as set forth in Paragraphs and ( ). The Judgment acknowledges that there are unknown members of the Small Pumper Class: Unknown Small Pumper Class Members are defined as: (1) those Persons or entities that are not identified on the list of known Small Pumper Class Members maintained by class counsel and supervised and controlled by the Court as of the Class Closure Date; and (2) any unidentified households existing on a Small Pumper Class Member parcel prior to the Class Closure Date. Within ten (10) Court days of the Class Closure Date, class counsel for the Small Pumper Class shall publish to the Court website and file with the Court a list of the known Small Pumper Class Members. ( ). Given the limited number of additions to the Small Pumper Class during the more than five Years since the initial notice was provided to the Class, the Court finds that the number of potentially unknown Small Pumper Class Members and their associated water use is likely very low, and any Production by unknown Small Pumper Class Members is hereby deemed to be de minimis in the context of this Physical Solution and shall not alter the Production Rights decreed in this Judgment. However, whenever the identity of any unknown Small Pumper Class Member becomes known, that Small Pumper Class Member shall be bound by all provisions of this Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members. ( ). Collectively, these Judgment sections indicate that pumpers meeting the definition of a Small Pumper as of December 23, 2015 are included in the Judgment and bound by the Judgment. Once identified, unknown Small Pumpers will need to agree to be bound by all the terms of the Judgment and be listed as a member of the Small Pumper Class under the Judgement. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

33 Unknown Small Pumper s request for a replacement well must contain information to demonstrate eligibility as a Small Pumper Class Member under the Judgment (Form 2 on Figure 1) and must contain the information requested in Section 1.4 above (Form 1 on Figure 1). For new wells other than If the replacement wells is greater than 300 feet from the old well, change in point of extraction information is needed (Form 3 on Figure 1). Well Applicants who are seek eligibility for the Small Pumper Class shall supply the following: Form 2 Information (Small Pumper Qualifying Documentation) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, and a copy of the DWR Well Completion Report, if available. Proof that the well on the owner s property has been pumped between 1946 and 2015 and the production amount has always been less than 25 acre-feet per year (AFY) during any year between 1946 and 2015 ( ). Supporting documentation should include all pertinent information available as listed below: o Documentation that the well was drilled on the property prior to December 23, 2015 (e.g., County well permit, DWR Well Completion Report, etc.). o If sufficient documentation is not provided in bullet above, property owner agrees to allow Watermaster Engineer or designated agent access to the property at a mutuallyagreed upon time to physically inspect the well and property. o Uses of the existing well including domestic, irrigation, livestock, etc. Also provide an estimate of annual household occupancy (number of residents), history of land irrigation and acreage, and history of livestock/animals that resided on the property and that relied on the well during the 1946 to 2015-time period. o land deed/parcel information indicating use of land and/or historical aerial photographs of land showing land use. o other pertinent information that demonstrates the use and production amounts of the well during the 1946 to 2015-time period. Statement affirming that the applicant and parcel associated with this request are not part of the Non-Pumper Class, nor a shareholder in a mutual water company, nor opted out of the Small Pumper Class ( ). Statement affirming that the applicant and associated parcel is for private (i.e., nongovernmental) use and that the applicant owns the property ( ). Statement that the applicant agrees to be bound by all provisions of the Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members ( ). Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

34 Notarized affidavit confirming: o the well was active and that total water use on property was below 25 AFY in any year from 1946 to December 23, o the Small Pumper Class Member will not pump more than 3 AFY from the well, recognizes that the rights are not transferable from the parcel, and agrees to be bound by all applicable terms in the Judgment. o that the other information and statements provided are true. Payment of a well application fee as set by the Watermaster to recover costs of material review Requests for a New Well from Small Pumper Class Members that Currently Share a Well but want to Decouple Segregate those Rights and use Individual Wells. The Judgment permits Small Pumpers to share a well: A Small Pumper Class Member who is lawfully, by permit, operating a shared well with an adjoining Small Pumper Class Member, shall have all of the same rights and obligations under this Judgment without regard to the location of the shared well, and such shared use is not considered a prohibited transfer of a pumping right under Paragraph ( 5.1.3). An applicant who wants to drill a new well in lieu of using a shared well will retain their status as a member of the Small Pumper Class with a right to produce no more than 3 AFY from the applicant s parcel. Even though this new well would appear be considered New Production as defined by the Judgment, there would be no Material Injury because pumping is not increased. Therefore, the requirements for New Production (Form 4) are waived for the Small Pumper Class member. If the new well is within 300 feet of the shared well, the Applicant would need to submit Form 1. If the new well is greater than 300 feet from the shared well, it is considered a newchange in point of extraction and the Applicant would need submit Form 3. If either of the Parties that share a well are not listed as a member of the Small Pumper Class (i.e., are unknown Small Pumpers), they will have to first demonstrate eligibility as a Small Pumper Class Member under the Judgment as provided in Section 1.5 of the R&Rs (Form 2 on Figure 1). The Applicant requesting the new well will need to provide the information listed in Section 1.4 of the R&Rs (Form 1 on Figure 1 if the new well is within 300 feet of the shared well or Form 3 on Figure 1 if the new well is greater than 300 feet from shared well) Request for New Production from New Wells. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

35 New Production is defined as: Any Production of Groundwater from the Basin not of right under this Judgment, as of the date of this Judgment. ( ). The Non-Pumper Class is defined as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, that are not presently pumping water on their property and did not do so at any time during the five Years preceding January 18, The Non-Pumper Class includes the successors-in-interest by way of purchase, gift, inheritance, or otherwise of such Non- Pumper Class members land within the Basin. The Non-Pumper Class excludes (1) all Persons to the extent their properties are connected to a municipal water system, public utility, or mutual water company from which they receive water service, (2) all properties that are listed as improved by the Los Angeles County or Kern County Assessor's offices, unless the owners of such properties declare under penalty of perjury that they do not pump and have never pumped water on those properties, and (3) those who opted out of the Non-Pumper Class. The Non-Pumper Class does not include landowners who have been individually named under the Public Water Suppliers' cross-complaint, unless such a landowner has opted into such class. ( , emphasis added). The Non-Pumper Class Rights are stated as: The Non-Pumper Class members claim the right to Produce Groundwater from the Native Safe Yield for reasonable and beneficial uses on their overlying land as provided for in this Judgment. On September 22, 2011, the Court approved the Non-Pumper Class Stipulation of Settlement through an amended final judgment that settled the Non-Pumper Class claims against the Public Water Suppliers ( Non-Pumper Class Judgment ). This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. Future Production by a member of the Non-Pumper Class is addressed in the Physical Solution. ( 5.1.2). The Non-Pumper Class members shall have no right to transfer water pursuant to this Judgment. ( ). The Judgment provides a summary of the Non-Pumper Class Stipulation of Settlement and also indicates that New Production for the Non-Pumper Class members may be subject to a replacement assessment: The Non-Pumper Class Stipulation of Settlement, executed by its signatories and approved by the Court in the Non-Pumper Class Judgment, specifically provides for imposition of a Replacement Water Assessment on Non-Pumper Class members. This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. The Non-Pumper Class members specifically agreed to pay a replacement assessment if that member produced more than its annual share of the Native Safe Yield less the amount of the Federal Reserved Right. (See Appendix B at paragraph V, section D. Replacement Water.) In approving the Non-Pumper Class Stipulation of Settlement this Court specifically held in its Order after the Hearing dated November 18, 2010, that the court determination of physical solution cannot be limited by the Class Settlement. The Court also held that the Non-Pumper Class Stipulation of Settlement may not affect parties who are not parties to the settlement. ( 9.2.1, emphasis added). Non-Pumper Class Stipulation of Settlement (Appendix B, paragraph V, section D) Replacement Water. The Settling Parties recognize the right of any Settling Party to produce groundwater from the Basin above their share of the Native Safe Yield, subject to the Physical Solution and to any Replacement Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

36 Assessment. The Settling Parties agree to provide or purchase Imported Water for all groundwater pumping that exceeds a Settling Party s share of the Federally Adjusted Native Safe Yield. The Settling Parties agree that any Settling Party who produces more than its annual share of the Federally Adjusted Native Safe Yield in any year will be responsible to provide Replacement Water or pay a Replacement Assessment to the Watermaster so that the Watermaster can purchase Imported Water to recharge the Basin. Finally, the Judgment requires any New Production, including that by a member of the Non-Pumper Class, must comply with the New Production Application Procedure specified in paragraph ( 9.2.2). Additional requirements on the Non-Pumper Class, as well as requirements of the Watermaster s determination as to the approval, scope, nature and priority of any New Production is provided in the remaining portions of Paragraph Sections under Paragraph provide the framework of the New Production Application Procedure, including provision of a written application ( ) and payment for review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production. ( ). In accordance with the Judgment, All Parties or Person(s) seeking approval from the Watermaster to commence New Production of Groundwater shall submit a written application to the Watermaster Engineer which shall include the following: ( ). Form 4 Information (Requests for New Production Application) Payment of an application fee sufficient to recover all costs of application review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production ( ). Written summary describing the proposed quantity, sources of supply, reason of use, purpose of use, place of use, manner of delivery, and other pertinent information regarding the New Production ( ). Maps identifying the location of the proposed New Production, including Basin Subarea ( ). Well information including proposed well design, estimated annual pumping, and agreement to install a meter in accordance with the Rules & Regulations. Plus, a statement that once the well is installed, the applicant will provide water well permits, specifications and well-log reports, pump specifications and testing results, and water meter specifications associated with the New Production ( ). Written confirmation that applicant has obtained all necessary entitlements and permits including all applicable Federal, State, County, and local land use entitlements and other permits necessary to commence the New Production ( ). Written confirmation that applicant has complied with applicable laws and regulations including all applicable Federal, State, County, and local laws, rules and regulations, including but not Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

37 limited to, the California Environmental Quality Act (Public Resources Code 21000, et. seq.) ( ). Preparation of a water conservation plan, approved and stamped by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, demonstrating that the New Production will be designed, constructed and implemented consistent with California best water management practices ( ). Preparation of an analysis of the economic impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). Preparation of an analysis of the physical impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , expertise in groundwater hydrology added). Written confirmation that the applicant agrees to pay the applicable Replacement Water Assessment for any New Production ( ). Other pertinent information which the Watermaster Engineer may require ( ) Material Injury Determination. Upon receipt the appropriate completed and accurate form (Form 3 or Form 4), the Watermaster Engineer will determine if the change in point of extraction or New Production will cause a Material Injury. The Judgment states Material Injury. Material Injury means impacts to the Basin caused by pumping or storage of Groundwater that: Causes material physical harm to the Basin, any Subarea, or any Producer, Party or Production Right, including, but not limited to, Overdraft, degradation of water quality by introduction of contaminants to the aquifer by a Party and/or transmission of those introduced contaminants through the aquifer, liquefaction, land subsidence and other material physical injury caused by elevated or lowered Groundwater levels. Material physical harm does not include "economic injury that results from other than direct physical causes, including any adverse effect on water rates, lease rates, or demand for water If fully mitigated, Material Injury shall no longer be considered to be occurring Finding of No Material Injury. The Watermaster Engineer shall not make recommendation for approval of an application to commence New Production of Groundwater unless the Watermaster Engineer finds, after considering all the facts and circumstances including any requirement that the applicant pay a Replacement Water Assessment required by this Judgment or determined by the Watermaster Engineer to be required under the circumstances, that such New Production will not cause Material Injury. If the New Production is limited to domestic use for one single-family household, the Watermaster Engineer has the authority to determine the New Production to be de minimis and waive payment of a Replacement Water Assessment; provided, the right to Produce such de minimis Groundwater is not transferable, and shall not alter the Production Rights decreed in this Judgment. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

38 Factors to be considered inin order to provide guidance and general criteria for the Material Injury analysis include those sustainability indicators defined in the Sustainable Groundwater Management Act, the following conditions will be considered. 1. Chronic lowering of groundwater levels, including adverse impacts to neighboring wells 2. Reduction of groundwater storage 3. Degraded water quality 4. Land subsidence that substantially interferes with land use 5. Depletions of interconnected surface water such that beneficial uses of the surface water are impacted, and 6. Any other considerations identified by the Watermaster Engineer relevant to evaluating whether material physical harm is caused to the Basin, and Subarea, or any Producer, Party, or Production Right. If the change in point of extraction or New Production cause these conditions to occur in a significant and unreasonable manner, the Watermaster Engineer may determine that the production will result in Material Injury. Draft Issue Paper / Procedures for New Production Requests and Review of Well Applications / Rules and Regulations REVISEDDRAFT 21-

39 400 Capitol Mall, 27th Floor Sacramento, CA T F Stanley C. Powell spowell@kmtg.com MEMORANDUM VIA ELECTRONIC MAIL ONLY TO: FROM: Phyllis Stanin and Kate White, Todd Groundwater Watermaster Engineer Stanley C. Powell DATE: February 8, 2018 RE: Comments on January 29, 2018 Final Draft Memorandum on Procedures for Review of Well Applications This memorandum presents comments on the subject memorandum. This includes some general comments of broad applicability to the document more detailed and specific comments are made in the attached redline-strikeout version of the memorandum. Definitions of New Wells and Replacement Wells The primary subjects of the memorandum are new and replacement wells. The Judgment does not formally define either new wells or replacement wells, though it uses both of those terms in Section 17 of the Judgment. I think it would be helpful to define both types of wells in the memorandum, as I am confused in several places in the Well Applications Memo exactly what is meant. As I read the Judgment, I think that a new well is any well that does not presently exist, but is proposed to be constructed. I think that a replacement well is a specific kind of new well that is located within 300 feet of an existing well owned by the same Party that intends to construct the new well. The apparent significance of using these two terms is that replacement wells are not considered to be a new point of extraction, and do not require an evaluation of Material Injury. If the above definitions are correct and added to the Well Applications Memo, then there would be some follow-up changes throughout the draft memorandum the following are some selected examples: In Figure 1, Form 1 would be a Replacement Well Application rather than a New or Replacement Well Application. Kronick, Moskovitz, Tiedemann & Girard, A Professional Corporation Attorneys at Law

40 Phyllis Stanin and Kate White, Todd Groundwater February 8, 2018 Page 2 On page 5, the discussion under the bold heading Known Right to Produce Groundwater talks about a replacement well that is within 300 feet of the original well. This could be replaced with the term replacement wells. Also on page 5, the discussion under the bold heading Change in Point of Extraction talks about either a replacement well that is more than 300 feet from the original well, or a new well if the suggested definitions above are correct, then I think the memo can simply reference a new well. Treatment of Non-Production Wells As a practical matter, I believe that the Watermaster Engineer has been reviewing and approving certain types of non-production well applications, for example for monitoring wells and test wells. These wells may involve some insignificant amounts of production (for performing test pumping, or for obtaining water samples). The Rules and Regulations should probably formalize the basis of the common-sense judgments that the Watermaster Engineer has been making to-date (for example, perhaps identifying a level of annual production that would be considered insignificant). Treatment of New Production New Production as defined in Section of the Judgment would seem to require construction of a new well, and so is related to new or replacement well approval applications. However, I think there are important distinctions between issues related to New Production versus issues related to New Wells which might deserve more discussion and clarity in the memorandum the following are a few selected examples: On Figure 1, it appears that the approval of New Production somehow gets combined with an approval for a new well to accomplish that New Production. However, I think it may be possible that an entity would have an application for New Production approved, but have an application for a specific well location denied due to Material Injury related to that location. Section of the Judgment (dealing with the New Production Application Procedure) requires the Watermaster Engineer to investigate the proposed New Production and make a recommendation to the Watermaster whether or not to approve the application. This to me suggests that the approval decision on New Production should be made separate from the approval decision for a specific new well. I think these concerns could be addressed in part by including an Application for New Production (which is a document specifically referenced in the Judgment) in these Rules and Regulations (and perhaps Form 4 on Figure 1 is really the Application for New Production). Under this approach, Form 3 could then be used for any associated new wells, whether they are for Parties with existing Production Rights or for New Production

41 Phyllis Stanin and Kate White, Todd Groundwater February 8, 2018 Page 3 Evaluation of Material Injury The Judgment seems to have a potential internal contradiction as to who makes the determination of Material Injury. For example, Section indicates that for the Watermaster Engineer to recommend approval of an Application for New Production, the Watermaster Engineer [must] find[] that, after considering all the facts and circumstances... that such New Production will not cause Material Injury. However, Section requires a written statement, signed by a California licensed and registered professional civil engineer, determining that the New Production will not cause Material Injury, where the licensed Engineer does not appear to have to be the Watermaster Engineer. One way to try and resolve the potential contradiction would be for the Watermaster Engineer to make the ultimate Material Injury determination. Under this approach, while a different engineer might make an initial determination of Material Injury as part of the well application, the Watermaster Engineer would make the ultimate determination (presumably relying in part on the data and analysis provided in the well application). There are probably other approaches to address this issue, but I wanted to at least provide the above as a possible starting point to discuss and evaluate this issue

42 January 29, 2018 F I N AL DRAFT MEMORANDUM To: Robert Parris, Chair Antelope Valley Watermaster Board of Directors Craig Parton, Price Postel & Parma LLP, Watermaster Legal Counsel From: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Re: Procedures for Review of Well Applications for New or Replacement Production Wells by the Antelope Valley Watermaster Engineer This memorandum describes draft procedures for review and subsequent approval or denial of Well Applications for new or replacement production wells from: applicants with a right to produce groundwater under the Judgment 1, and applicants not individually identified in the Judgment as having a right to produce groundwater 2. This draft text is being provided to the Advisory Committee, the Watermaster Board, and posted to the Watermaster website for comments, edits, and subsequent inclusion in the Antelope Valley Watermaster Rules and Regulations (R&Rs). Pending legal review and final edits, the Board will approve the text for use in the R&Rs. Commented [PS1]: This point is made in footnote 2, but I think it is worth being addressed in the main body of the text. 1 Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties, and other parties identified in the Judgment as having a right to produce groundwater, such as Phelan Piñon Hills Community Services District and the City of Lancaster. 2 Applicants that are not identified individually in the Judgment as having rights to produce groundwater are referred to herein as applicants with unknown production rights. The procedures in this section of the Rules and Regulations describe a process whereby production rights, if any, for these applicants can be defined. Note that production rights for this usage is not capitalized to avoid confusion with the term Production Rights defined in the Judgment that is specifically linked to the Native Safe Yield Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

43 The process incorporates four separate forms that will be developed once the draft procedures have been finalized. Information to be included on the forms are listed herein for illustration and consideration by the Board. Once the procedures are finalized, forms will be posted on the Watermaster website, the name of each form will be incorporated into the R&R text, and the list of items to be included on the forms may be removed from this text to avoid duplication. According to the Judgment ( ), the Watemaster will adopt the R&Rs and provide them to the Court for approval. Prior to adoption, the Watermaster must hold a public hearing on the R&Rs. Draft Rules and Regulations must be provided to all parties 30 days prior to the date of the hearing ( ). Because sections of the R&Rs are being developed over time, this process is being duplicated repeated as portions of the R&Rs are ready for adoption. This draft text on the review procedures for New or Replacement Well Applications is being provided to all parties 30 days prior to a public hearing scheduled for February 28, Because the R&Rs are being developed over time by section, the draft text provided herein likely includes more context or references to the Judgment than will be needed when incorporated into the final R&Rs. It is recognized that this draft text may be edited for clarity as new sections are added to the R&Rs. The draft text will be reviewed by legal counsel prior to incorporation into the R&Rs. Commented [PS2]: When does this editing for clarity occur is it after approval by the Watermaster? Similarly, when does the review by legal counsel happen in the process before or after approval by the Watermaster? I think this timing needs to be defined in the Rules and Regulations, particularly with respect to the ability of Parties to comment on any proposed revisions. Draft Issue Paper / Procedures for Review of Well Applications 2 DRAFT

44 SECTION X NEW OR REPLACEMENT WELL APPROVAL APPLICATIONS AND NEW PRODUCTION APPLICATIONS 1.1. Purpose. New and replacement wells drilled in the Adjudication Area of the Antelope Valley are subject to approval by the Antelope Valley Watermaster. The following sections describe the procedures to be followed by the Watermaster Engineer for evaluating requests for new and replacement wells and to make recommendations to the Watermaster for approval or denial. These procedures incorporate requirements in the Judgment and support the Watermaster Engineer s duties to provide proper water accounting and tracking of groundwater production. Applications for new and replacement wells may relate to whether the well will be used by an "unknown" member of Small Pumper or for New Production. These procedures also consider how to address applicants that may be unknown members of the Small Pumper class, or applicants for New Production Basis. The Judgment allows Parties to change thea point of extraction for any Production Right so long as such change of the point of extraction does not cause Material Injury ( 17). A replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to change athe point of extraction for any Production Right shall notify the Watermaster of the location of the new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in the point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from the intended new point of extraction on the Basin and on other Producers ( 17.2). The Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for recordkeeping purposes. Commented [PS3]: I think the approval of New Production Applications is an important element of these Rules and Regulations that should probably be called out in the title. Commented [PS4]: This may be the place to define the terms "New Wells" and "Replacement Wells." Formatted: Indent: Left: 0" Commented [PS5]: I think it is appropriate to call out these items in the introduction, as these proposed Rules and Regulations deal with these matters. Commented [PS6]: Parties with multiple wells have multiple points of extraction, while use of the word "the" to me implies a single point of extraction. This same comment applies at other locations in this document, and I have not tried to identify everywhere this occurs. Commented [PS7]: Depending on how a Party's distribution system is set up, it could be complicated to define where the water from the well may end up. Will this be recognized in evaluating the application? What type of analysis is envisioned for inclusion in the application? With regard to applications for New Production, the Watermaster shall consider and determine whether to approve applications for New Production after consideration of the recommendation of the Watermaster Engineer ( ). The process and requirements for New Production applications are described in Section of the Judgment ( through ). In addition, the Watermaster decision on a New Production application may be subject to Court Review (pursuant to 20.3) ( ) Process for Review of Well Applications Draft Issue Paper / Procedures for Review of Well Applications 3 DRAFT

45 The Watermaster Engineer will follow a process described in the following sections for review of well approval applications. This process is shown schematically by the flow chart on Figure 1. Commented [PS8]: While Figure 1 shows that the Watermaster Engineer makes recommendations to the Watermaster of whether to approve or deny New Well applications, do we also need to discuss how the Watermaster makes its decision? There probably needs to be some reference to the Watermaster role in these Rules and Regulations and how it relates to the role of the Watermaster Engineer. This might include such things as requiring the Watermaster Engineer to provide the basis for its recommendation to the Watermaster in writing. Commented [PS9]: With respect to Figure 1, I note that: 1. The "Yes" diamond next to Form 2 seems to be on the wrong side of Form 2. Form 2 applies if we answer the question "Is the applicant an unknown Small Pumper" yes. 2. The "Change in Point of Extraction" oval might be better termed as "New Point of Extraction." 3. Form 4 would seem to combine both an "Application for New Production" and an "Application for a New Well." I think the figure should probably show an initial New Production Application that would have it's own "Approve or Deny" recommendation, and a separate Application for a New Well (which I think could probably use the Form 3). 4. The implication of the question "Is there Material Injury" is that this is the sole question to be answered by the Watermaster Engineer. However, I think the Watermaster Engineer review of Form 3 and Form 4 could be more broad. For example, it appears that the Watermaster Engineer can recommend denying an application for a replacement well, which would be on some basis other than a Material Injury analysis, and the same thing could presumably happen in reviewing Form 3. Draft Issue Paper / Procedures for Review of Well Applications 4 DRAFT

46 Figure 1. Watermaster Engineer Process for Well Approval Application Review INSERT THE FLOW CHART HERE OR HAVE AS SEPARATE PAGE Draft Issue Paper / Procedures for Review of Well Applications 5 DRAFT

47 There are four questions associated with the review process: 1. Does the Applicant have a known right to produce groundwater under the Judgment? 2. Does the Applicant Qualify as an Unknown Small Pumper? 3. Is there be a change in the point of extraction (i.e., request for a replacement well more than 300 feet from the original well)? 4. Is there a Material Injury associated with any Change in Point of Extraction or new Production? The answers to these questions ultimately lead to a Watermaster Engineer recommendation for approval or denial of the well application. The Watermaster will consider this recommendation and approve or deny the application. The components of this review process are summarized below and discussed in more detail in the sections that follow. Known Right to Produce Groundwater. If the Applicant has a known right to produce groundwater under the Judgment and is requesting a replacement well that is within 300 feet of the original well, Applicant will need to provide the applicable information in Section 1.4 and on Form 1, as described below. This process is illustrated on the left side of Figure 1, ending with the subsequent recommendation for approval or denial based on the documentation provided in Form 1. Change in Point of Extraction. If a requested replacement well is more than 300 feet from the original well or if a new well is proposed, the Applicant will need to provide the applicable information in Section 1.4 and on Form 3, as described below. This is considered a change in point of extraction and is illustrated in the central portion of the flow chart on Figure 1, including submittal of Form 3 and an evaluation of the potential for Material Injury. Unknown Small Pumper. An unknown Small Pumper can demonstration their eligibility as a Small Pumper Class Member under the Judgment by providing the information in Section 1.5, including information for Form 2, as described below (see Figure 1). If a requested replacement well is within 300 feet of the original well, the Applicant will need to provide the applicable information in Section 1.4, including Form 1, as described below (represented as the flow path ending in approval/denial of Form 1 on Figure 1). If the replacement well is more than 300 feet from the original well or a new well is proposed, the Applicant will need to provide the information in Section 1.5 below (Change in Point of Extraction represented as the Form 3 flow path on Figure 1). New Production. If the applicant has no production rights, including being ineligible for the Small Pumper Class, they will also need to submit ir well application is considered a New Production Application. The Applicant will also need to provide the information in Section 1.7, including completion of Form 4, as described below. This is illustrated on the right side of Figure 1 by the New Production/Form 4 flow path. Material Injury. A Material Injury review is required if there is a change in point of extraction or new production (Forms 3 and 4 on Figure 1). If there is no evidence of Material Injury, the Watermaster Engineer will recommend approval by the Watermaster; if there is evidence for a potential Material Injury, the Watermaster Engineer will recommend denial by the Watermaster. Draft Issue Paper / Procedures for Review of Well Applications 6 DRAFT Commented [PS10]: Depending on how we define "replacement well," this language may not be needed. Commented [PS11]: If there is no material injury in this scenario, what is the potential basis to deny the application? I ask this in part because it appears that a Material Injury seems to be the only basis in Figure 1 to reject an application for a new point of extraction. There seems to be an inconsistency in the evaluation of Replacement Wells (which could be rejected on a basis other than Material Injury) and new wells (which are only rejected if there is Material Injury). Commented [PS12]: Depending on how we define "replacement well," I think this might simply be for new wells that are not replacement wells. Commented [PS13]: As a practical matter, will an "unknown Small Pumper" know that they should fill out this form? I don't have a positive suggestion how to address this, but I think that it may be the Watermaster Engineer that will identify an applicant as a potential unknown Small Pumper. Commented [PS14]: Depending on how we define "replacement well," this language may not be needed. Commented [PS15]: Depending on how we define "replacement well," I think this might simply be for new wells that are not replacement wells. Commented [PS16]: I think the need for this New Production Application is implied from Section of the Judgment. Commented [PS17]: This language makes it sound like the only reason a well application would be rejected for a new point of extraction is based on the outcome of the Material Injury analysis. As noted above, that seems inconsistent with the ability to deny an application for a Replacement Well. Also, Section provides that "if fully mitigated, Material Injury shall no longer be considered to be occurring." Does this discussion of Material Injury need to include some mention of mitigation?

48 1.4. Requests for New or Replacement Wells from Applicants with Known Rights to Produce Groundwater. Parties with a right to produce groundwater under the Judgment include the State of California; the U.S. Federal Government; parties listed on Exhibit 3 (Non-Overlying Producers), Exhibit 4 (Overlying Producers), and Exhibit C (Small Pumper Class); the Non-Stipulating Parties; and other parties identified in the Judgment as having a right to produce groundwater (e.g., Phelan Pinon Hills CSD, City of Lancaster). This section of the R&Rs describes a process whereby those with known rights to produce groundwater can request new or replacement wells. The Judgment allows Parties to change the point of extraction for any Production Right so long as such change of the point of extraction does not cause Material Injury ( 17). In addition, a replacement well located within 300 feet of a Party s existing well is not considered a change in point of extraction ( 17). Any Party seeking to construct a new well in order to change theadd a new point of extraction for any Production Right shall notify the Watermaster of the location of the new point of extraction and the intended place of use of the water produced at least 90 days in advance of drilling any new well ( 17.1). The United States can change its point(s) of extraction for the Federal Reserved Water Right at the sole discretion of the United States to any point or points within the boundaries of Edwards Air Force Base or Plant 42 and not be subject to Material Injury review. The point(s) of extraction for the Federal Reserved Water Right may be changed to points outside the boundaries of Edwards Air Force Base or Plant 42, provided such change in the point of extraction does not cause Material Injury. The United States shall consider information in its possession regarding the effect of Production from the intended new point of extraction on the Basin and on other Producers ( 17.2). Because the change in point of extraction could potentially result in a Material Injury analysis, the U.S. Federal Government will also be subject to notification requirements in 17.1 and submittal of a well application for all new or replacement wells associated with these procedures. The Watermaster Engineer acknowledges that the U.S. can change the point of extraction within its boundaries at its sole discretion without a Material Injury analysis; nonetheless, the Watermaster Engineer has a duty to track locations and amounts of groundwater production and therefore, is requiring the U.S. to submit Change in Point of Extraction forms for record-keeping purposes. Applicants with known production rights requesting to install a new well or a replacement well within 300 feet of an existing well must provide the following information. Form 1 Information (New or Replacement Well Application for Existing Production Rights) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing materials, depth, surface seal material and depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude (or X,Y coordinates), ground surface elevation, depth to water, status (active, Draft Issue Paper / Procedures for Review of Well Applications 7 DRAFT

49 inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity (gpm) future annual production from the new well. Well locations and distance between new well and the old well. If a new well is proposed in order to stop sharing an existing well (also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. Agreement that the well will be metered (unless Small Pumper Class 3 ) in accordance with the metering requirements in Section XX of these R&Rs. Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review. Applicants with known production rights requesting to install a new or replacement well at a new point of extractiongreater than 300 feet from an existing well (change in point of extraction) must provide the following information. Form 3 Information (Change in Point of Extraction) Property owner s name, mailing address, parcel APN number where new Point of Extraction is located and property address (if different than mailing address), and phone number. Location and description of each existing well on the well owner s property: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, status (active, inactive), site plan showing old and new well locations, and a copy of the DWR Well Completion Report, if available. Proposed new well construction, driller, driller address, and phone number. Estimate of production capacity and future annual production from the new well. Well locations and distance between the new and existing wells. Commented [PS18]: "Any other information requested by the Watermaster Engineer" seems unduly broad here. I added some generic language to limit this, but can more specificity be added about what information might be relevant? Commented [PS19]: I think it is better to discuss a new well in terms of a new point of extraction, rather than in terms of a change in point of extraction. For example, I think a Party can add a new well without abandoning an existing well, in which case the term "change in point of extraction" seems inaccurate. Commented [PS20]: I assume the is the purpose of defining the APN where the new well will be located, and not to define all APN's owned by the Party (which I think will ultimately prove repetitive and onerous to all involved). Commented [PS21]: To me, this seems highly repetitive and onerous to those with multiple wells. I think this may reflect the Watermaster Engineer desire to know more about the wells of the Parties, but requiring all this information to be submitted every time that there is a new point of extraction seems like an inefficient way to accomplish this. Commented [PS22]: See comments above. 3 The Watermaster is tasked with monitoring all the Safe Yield components (18.5.1). As per Section of the Judgment The primary means for monitoring the Small Pumper Class Members Groundwater use under the Physical Solution will be based on physical inspection by the Watermaster, including the use of aerial photographs and satellite imagery. All Small Pumper Class Members agree [HAVE THEY AGREED TO THIS ALREADY? RULES AND REGS ARE NOT A PLACE TO TRY AND CREATE SUCH AN AGREEMENT IF IT IS NEEDED] to permit the Watermaster to subpoena the electrical meter records associated with their Groundwater wells on an annual basis. Should the Watermaster develop a reasonable belief that a Small Pumper Class Member household is using in excess of 3 acre-feet per Year, the Watermaster may cause to be installed a meter on such Small Pumper Class Member s well at the Small Pumper Class Member s expense. Draft Issue Paper / Procedures for Review of Well Applications 8 DRAFT

50 If a new well is proposed in order to stop sharing an existing well (Also see requirements described in Section 1.6 below): o Estimate of annual production from the shared well for the 1946 to 2015-time period by year (if not provided above). o Estimate of future annual production from new well(s) and from the previously shared well (not to exceed 3 AFY each). o Well locations and distance between new well(s) and shared well. A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , additional expertise added). Agreement that the well will be metered (unless Small Pumper Class) in accordance with the metering requirements in Section XX of these R&Rs. Any other information requested by the Watermaster Engineer that is needed to evaluate the well application. Payment of a well application fee as set by the Watermaster to recover costs of review Requests for New or Replacement Wells from Unknown Small Pumpers. The Small Pumper Class is defined in the Judgment as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, and that have been pumping less than 25 acre-feet per Year on their property during any Year from 1946 to the present. The Small Pumper Class excludes the defendants in Wood v. Los Angeles Co. Waterworks Dist. 40, et al., any Person, firm, trust, corporation, or other entity in which any such defendants has a controlling interest or which is related to or affiliated with any such defendants, and the representatives, heirs, affiliates, successors-ininterest or assigns of any such excluded party. The Small Pumper Class also excludes all Persons and entities that are shareholders in a mutual water company. The Small Pumper Class does not include those who opted out of the Small Pumper Class. ( ). Commented [PS23]: This language is taken from a requirement for those with New Production, but it seems appropriate to recognize here that those with existing Production Rights will also require an analysis of Material Injury. However, I think it would be helpful for these proposed Rules and Regulations to be clear about who ultimately makes the determination about Material Injury (is it the Watermaster Engineer, or could it be a registered engineer hired by the applicant). Commented [PS24]: "Any other information requested by the Watermaster Engineer" seems unduly broad here. I added some generic language to limit this, but can more specificity be added about what information might be relevant? Commented [PS25]: An applicant for a new well is probably not going to know if they are an "unknown small pumper" The Judgment also states: The Small Pumper Class shall be permanently closed to new membership upon issuance by the Court of its order granting final approval of the Small Pumper Class Settlement (the Class Closure Date ), after the provision of notice to the Class of the Class Closure Date. Any Person or entity that does not meet the Small Pumper Class definition prior to the Class Closure Date is not a Member of the Small Pumper Class. Similarly, any additional household constructed on a Small Pumper Class Member parcel after the Class Closure Date is not entitled to a Production Right as set forth in Paragraphs and ( ). The Judgment acknowledges that there are unknown members of the Small Pumper Class: Unknown Small Pumper Class Members are defined as: (1) those Persons or entities that are not identified on the list of known Small Pumper Class Members maintained by class counsel and supervised and controlled by the Court as of the Class Closure Date; and (2) any unidentified households existing on a Small Pumper Class Member parcel prior to the Class Closure Date. Within ten (10) Court days of the Class Closure Date, class counsel for the Small Pumper Class shall publish to the Court website and file with the Court a list of the known Small Pumper Class Members. ( ). Given the limited number of additions to the Small Pumper Class during the more than five Years since the initial notice was provided to the Class, the Court finds that the number of potentially unknown Small Pumper Class Members and their associated water use is likely very low, and any Production by unknown Small Pumper Class Members is hereby deemed to be de minimis in the context of this Physical Solution and shall not alter Draft Issue Paper / Procedures for Review of Well Applications 9 DRAFT

51 the Production Rights decreed in this Judgment. However, whenever the identity of any unknown Small Pumper Class Member becomes known, that Small Pumper Class Member shall be bound by all provisions of this Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members. ( ). Collectively, these Judgment sections indicate that pumpers meeting the definition of a Small Pumper as of December 23, 2015 are included in the Judgment and bound by the Judgment. Once identified, unknown Small Pumpers will need to agree to be bound by all the terms of the Judgment and be listed as a member of the Small Pumper Class under the Judgement. Unknown Small Pumper s request for a replacement well must contain information to demonstrate eligibility as a Small Pumper Class Member under the Judgment (Form 2 on Figure 1) and must contain the information requested in Section 1.4 above (Form 1 on Figure 1). If the replacement well is greater than 300 feet from the old well, change in point of extraction information is needed (Form 3 on Figure 1). Well Applicants who are eligible for the Small Pumper Class shall supply the following: Form 2 Information (Small Pumper Qualifying Documentation) Property owner s name, mailing address, parcel APN number and property address (if different than mailing address), and phone number. Location and description of existing well: use (domestic, agricultural, etc.), construction date, diameter, casing material, depth, screened interval, pumping capacity (gallons per minute), annual production (acre-feet/year), latitude and longitude, ground surface elevation, depth to water, and a copy of the DWR Well Completion Report, if available. Proof that the well on the owner s property has been pumped between 1946 and 2015 and the production amount has always been less than 25 acre-feet per year (AFY) during any year between 1946 and 2015 ( ). Supporting documentation should include all pertinent information available as listed below: o Documentation that the well was drilled on the property prior to December 23, 2015 (e.g., County well permit, DWR Well Completion Report, etc.). o If sufficient documentation is not provided in bullet above, property owner agrees to allow Watermaster Engineer or designated agent access to the property at a mutuallyagreed upon time to physically inspect the well and property. o Uses of the existing well including domestic, irrigation, livestock, etc. Also provide an estimate of annual household occupancy (number of residents), history of land irrigation and acreage, and history of livestock/animals that resided on the property and that relied on the well during the 1946 to 2015-time period. o land deed/parcel information indicating use of land and/or historical aerial photographs of land showing land use. o other pertinent information that demonstrates the use and production amounts of the well during the 1946 to 2015-time period. Draft Issue Paper / Procedures for Review of Well Applications 10 DRAFT

52 Statement affirming that the applicant and parcel associated with this request are not part of the Non-Pumper Class, nor a shareholder in a mutual water company, nor opted out of the Small Pumper Class ( ). Statement affirming that the applicant and associated parcel is for private (i.e., nongovernmental) use and that the applicant owns the property ( ). Statement that the applicant agrees to be bound by all provisions of the Judgment, including without limitation, the assessment obligations applicable to Small Pumper Class Members ( ). Notarized affidavit confirming: o the well was active and that total water use on property was below 25 AFY in any year from 1946 to December 23, o the Small Pumper Class Member will not pump more than 3 AFY from the well, recognizes that the rights are not transferable from the parcel, and agrees to be bound by all applicable terms in the Judgment. o that the other information and statements provided are true. Payment of a well application fee as set by the Watermaster to recover costs of material review Requests for a New Well from Small Pumper Class Members that Currently Share a Well but want to Decouple those Rights and use Individual Wells. The Judgment permits Small Pumpers to share a well: A Small Pumper Class Member who is lawfully, by permit, operating a shared well with an adjoining Small Pumper Class Member, shall have all of the same rights and obligations under this Judgment without regard to the location of the shared well, and such shared use is not considered a prohibited transfer of a pumping right under Paragraph ( 5.1.3). An applicant who wants to drill a new well in lieu of using a shared well will retain their status as a member of the Small Pumper Class with a right to produce no more than 3 AFY from the applicant s parcel. Because a member of the Small Pumper Class has a Production Right under the Judgment, this Production would not be New Production (i.e., it is not Production not of right under Section of the Judgment), and the requirements for New Production (Form 4) are not relevant. Even though this new well would appear be considered New Production as defined by the Judgment, there would be no Material Injury because pumping is not increased. Therefore, the requirements for New Production (Form 4) are waived for the Small Pumper Class member. If the new well is within 300 feet of the shared well, the Applicant would need to submit Form 1. If the new well is greater than 300 feet from the shared well, it is considered a newchange in point of extraction and the Applicant would need submit Form 3. Commented [PS26]: As I read the Judgment, Production by a member of the Small Pumper Class would be under that member's Production Right, and so would not be "New Production." Commented [PS27]: It seems to me that Material Injury can occur without an increase in pumping, as it is not just the amount of pumping but also the location that is of interest. Commented [PS28]: I don't think the New Production requirements are "waived" I think they are not applicable because this is not New Production. If either of the Parties that share a well are not listed as a member of the Small Pumper Class (i.e., are unknown Small Pumpers), they will have to first demonstrate eligibility as a Small Pumper Class Member under the Judgment as provided in Section 1.5 of the R&Rs (Form 2 on Figure 1). The Applicant requesting the new well will need to provide the information listed in Section 1.4 of the R&Rs (Form 1 on Figure 1 if the new well is within 300 feet of the shared well or Form 3 on Figure 1 if the new well is greater than 300 feet from shared well). Draft Issue Paper / Procedures for Review of Well Applications 11 DRAFT

53 1.7. Request for New Production from New Wells. New Production is defined as: Any Production of Groundwater from the Basin not of right under this Judgment, as of the date of this Judgment. ( ). The Non-Pumper Class is defined as: All private (i.e., non-governmental) Persons and entities that own real property within the Basin, as adjudicated, that are not presently pumping water on their property and did not do so at any time during the five Years preceding January 18, The Non-Pumper Class includes the successors-in-interest by way of purchase, gift, inheritance, or otherwise of such Non- Pumper Class members land within the Basin. The Non-Pumper Class excludes (1) all Persons to the extent their properties are connected to a municipal water system, public utility, or mutual water company from which they receive water service, (2) all properties that are listed as improved by the Los Angeles County or Kern County Assessor's offices, unless the owners of such properties declare under penalty of perjury that they do not pump and have never pumped water on those properties, and (3) those who opted out of the Non-Pumper Class. The Non-Pumper Class does not include landowners who have been individually named under the Public Water Suppliers' cross-complaint, unless such a landowner has opted into such class. ( , emphasis added). The Non-Pumper Class Rights are stated as: The Non-Pumper Class members claim the right to Produce Groundwater from the Native Safe Yield for reasonable and beneficial uses on their overlying land as provided for in this Judgment. On September 22, 2011, the Court approved the Non-Pumper Class Stipulation of Settlement through an amended final judgment that settled the Non-Pumper Class claims against the Public Water Suppliers ( Non-Pumper Class Judgment ). This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. Future Production by a member of the Non-Pumper Class is addressed in the Physical Solution. ( 5.1.2). The Non-Pumper Class members shall have no right to transfer water pursuant to this Judgment. ( ). The Judgment provides a summary of the Non-Pumper Class Stipulation of Settlement and also indicates that New Production for the Non-Pumper Class members may be subject to a replacement assessment: The Non-Pumper Class Stipulation of Settlement, executed by its signatories and approved by the Court in the Non-Pumper Class Judgment, specifically provides for imposition of a Replacement Water Assessment on Non-Pumper Class members. This Judgment is consistent with the Non-Pumper Class Stipulation of Settlement and Judgment. The Non-Pumper Class members specifically agreed to pay a replacement assessment if that member produced more than its annual share of the Native Safe Yield less the amount of the Federal Reserved Right. (See Appendix B at paragraph V, section D. Replacement Water.) In approving the Non-Pumper Class Stipulation of Settlement this Court specifically held in its Order after the Hearing dated November 18, 2010, that the court determination of physical solution cannot be limited by the Class Settlement. The Court also held that the Non-Pumper Class Stipulation of Settlement may not affect parties who are not parties to the settlement. ( 9.2.1, emphasis added). Draft Issue Paper / Procedures for Review of Well Applications 12 DRAFT

54 Non-Pumper Class Stipulation of Settlement (Appendix B, paragraph V, section D) Replacement Water. The Settling Parties recognize the right of any Settling Party to produce groundwater from the Basin above their share of the Native Safe Yield, subject to the Physical Solution and to any Replacement Assessment. The Settling Parties agree to provide or purchase Imported Water for all groundwater pumping that exceeds a Settling Party s share of the Federally Adjusted Native Safe Yield. The Settling Parties agree that any Settling Party who produces more than its annual share of the Federally Adjusted Native Safe Yield in any year will be responsible to provide Replacement Water or pay a Replacement Assessment to the Watermaster so that the Watermaster can purchase Imported Water to recharge the Basin. Finally, the Judgment requires any New Production, including that by a member of the Non-Pumper Class, must comply with the New Production Application Procedure specified in paragraph ( 9.2.2). Additional requirements on the Non-Pumper Class, as well as requirements of the Watermaster s determination as to the approval, scope, nature and priority of any New Production is provided in the remaining portions of Paragraph Sections under Paragraph provide the framework of the New Production Application Procedure, including provision of a written application ( ) and payment for review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production. ( ). In accordance with the Judgment, All Parties or Person(s) seeking approval from the Watermaster to commence New Production of Groundwater shall submit a written application to the Watermaster Engineer which shall include the following: ( ). Form 4 Information (Requests Application for New Production) Payment of an application fee sufficient to recover all costs of application review, field investigation, reporting, and hearing, and other associated costs, incurred by the Watermaster and Watermaster Engineer in processing the application for New Production ( ). Written summary describing the proposed quantity, sources of supply, reason of use, purpose of use, place of use, manner of delivery, and other pertinent information regarding the New Production ( ). Maps identifying the location of the proposed New Production, including Basin Subarea ( ). Well information including proposed well design, estimated annual pumping, and agreement to install a meter in accordance with the Rules & Regulations. Plus, a statement that once the well is installed, the applicant will provide water well permits, specifications and well-log reports, pump specifications and testing results, and water meter specifications associated with the New Production ( ). Written confirmation that applicant has obtained all necessary entitlements and permits including all applicable Federal, State, County, and local land use entitlements and other permits necessary to commence the New Production ( ). Written confirmation that applicant has complied with applicable laws and regulations including all applicable Federal, State, County, and local laws, rules and regulations, including but not Commented [PS29]: I think the term "Application for New Production" is better, because that term is used in the Judgment. Draft Issue Paper / Procedures for Review of Well Applications 13 DRAFT

55 limited to, the California Environmental Quality Act (Public Resources Code 21000, et. seq.) ( ). Preparation of a water conservation plan, approved and stamped by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, demonstrating that the New Production will be designed, constructed and implemented consistent with California best water management practices ( ). Preparation of an analysis of the economic impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). Preparation of an analysis of the physical impact of the New Production on the Basin and other Producers in the Subarea of the Basin ( ). A written statement, signed by a California licensed and registered professional civil engineer with expertise in groundwater hydrology, determining that the New Production will not cause Material Injury ( , expertise in groundwater hydrology added). Written confirmation that the applicant agrees to pay the applicable Replacement Water Assessment for any New Production ( ). Other pertinent information which the Watermaster Engineer may require ( ) Material Injury Determination. Upon receipt the appropriate completed and accurate form (Form 3 or Form 4), the Watermaster Engineer will determine if the change in point of extraction or New Production will cause a Material Injury. The Judgment states Material Injury. Material Injury means impacts to the Basin caused by pumping or storage of Groundwater that: Causes material physical harm to the Basin, any Subarea, or any Producer, Party or Production Right, including, but not limited to, Overdraft, degradation of water quality by introduction of contaminants to the aquifer by a Party and/or transmission of those introduced contaminants through the aquifer, liquefaction, land subsidence and other material physical injury caused by elevated or lowered Groundwater levels. Material physical harm does not include "economic injury that results from other than direct physical causes, including any adverse effect on water rates, lease rates, or demand for water If fully mitigated, Material Injury shall no longer be considered to be occurring. Commented [PS30]: As noted earlier: 1. I think an argument can be made that Form 4 really is a New Production Application rather than a New Well Application 2. An applicant for New Production may need to prepare both a New Production Application (Form 4), and a separate New Well Application (Form 3). Commented [PS31]: This says that the Watermaster Engineer will make the determination about Material Injury, while the suggested language for both Form 3 and Form 4 allows the Material Injury determination to potentially be "outsourced" to a registered PE other than the Watermaster Engineer Finding of No Material Injury. The Watermaster Engineer shall not make recommendation for approval of an application to commence New Production of Groundwater unless the Watermaster Engineer finds, after considering all the facts and circumstances including any requirement that the applicant pay a Replacement Water Assessment required by this Judgment or determined by the Watermaster Engineer to be required under the circumstances, that such New Production will not cause Material Injury. If the New Production is limited to domestic use for one single-family household, the Watermaster Engineer has the authority to determine the New Production to be de minimis and waive payment of a Replacement Water Assessment; provided, the right to Produce such de minimis Groundwater is not transferable, and shall not alter the Production Rights decreed in this Judgment. Factors to be considered in In order to provide guidance and general criteria for the Material Injury analysis include those defined in the Sustainable Groundwater Management Act, the following: conditions will be considered.: Draft Issue Paper / Procedures for Review of Well Applications 14 DRAFT

56 1. Chronic lowering of groundwater levels, including adverse impacts to neighboring wells 2. Reduction of groundwater storage 3. Degraded water quality 4. Land subsidence that substantially interferes with land use 5. Depletions of interconnected surface water such that beneficial uses of the surface water are impacted, and 6. Any other considerations identified by the Watermaster Engineer relevant to evaluating whether material physical harm is caused to the Basin, any Subarea, or any Producer, Party, or Production Right. If the change in point of extraction or New Production cause these conditions to occur in a significant and unreasonable manner, the Watermaster Engineer may determine that the production will result in Material Injury. Commented [PS32]: I think the term "any other considerations identified by the Watermaster Engineer" is too broad, and I tried to limit it based on language in Section of the Judgment. Commented [PS33]: I think this language may have been added to try and parallel the Sustainable Groundwater Management Act. However, I am not sure the language "occurs in a significant and unreasonable manner" is really any more clear than the language in the Judgment that we are concerned with "material physical harm to the Basin, any Subarea, or any Producer, Party, or Production Right." If there is not a compelling reason to add language from SGMA into the Rules and Regulations, I question whether we should add it in. Draft Issue Paper / Procedures for Review of Well Applications 15 DRAFT

57 Dennis, et al, I recommend changes to the method of verification of Small Pumper status and the additional documentation requirements for replacement wells not within 300' of the existing well. A. I recommend adding an "On-Site Inspection" as a means of verification of Small Pumper status: 1. The suggested documentation requirements would create an undue burden on Small Pumper replacement well applicants. The history of the uses of a small wells, such as mine, is lost in time through multiple sales and cannot be recovered. County records can be difficult to obtain and, in many cases, may not exist. One example being a well near me which meets the Adjudication definition of a Small Pumper but has no county record because it was never permitted. The Adjudication does not exclude such wells and, at least in the Southern Kern County area, there may be a large number of these. 2. The suggested documentation requirements would create an undue burden on anyone who's Small Pumper status is questioned. This could be a large number of people when it comes time to bill them for administrative fees and other costs. It is unlikely that a judge would accept a known flawed document as evidence for claiming someone is or is not a Small Pumper. Which means that there could be hundreds, if not thousands, of verifications required. 3. A simple inspection should verify the Small Pumper status of most such wells. a. Many could be verified by satellite or aerial imagery. In my case the size and obvious age of the house, lack of agriculture, and the characteristic hatch on the outbuilding (used for replacing the pump) clearly identify the property as meeting the Adjudication's definition of a Small Pumper. On the other hand, to prove that I'm a Small Pumper through documentation would be very expensive for me, if even possible. b. An additional number of properties could be verified with a drive-by or on-site inspection, often taking only a few minutes. I suggest caution on charging for on-site inspections, however, because even a nominal fee for this could result in unwanted media attention and many legal challenges. B. I recommend reducing the need for, and cost of, verification that no potential material injury exists for Small Pumper replacement wells more than 300' from the existing well. I don't believe the proposed rules take into account the vast openness of the AV. 1. Many properties with small wells far exceed 300' in both directions. For example, my property is 5 acres measuring 330' x 660'. I believe the county minimum for my area is 2.5 acres and many properties are 10 acres or more. Because of existing buildings, future planning, nearby wells, livestock pens (chickens, goats, etc), terrain, easements, landscaping, and etc. it may be very difficult, if not contrary to Building Codes, to stay within 300'. 2. In heavily populated areas the registered engineer's review may be justified. But in the less

58 populated areas, which includes most of the adjudicated area and most of the small wells, the average distance between wells is often thousands of feet. In my location there are only about 20 houses within a mile of me. In much of the adjudicated area the ground water situation changes little for many miles in all directions. In light of this, moving a well 300' is insignificant. The lack of potential for material injury for most replacement small wells can be easily verified by a quick desk-level review. 3. I recommend that the Watermaster Engineer first perform a desk-level review of the possibility of Material Injury before requiring a registered engineeer's costly review. Failing this review I recommend that such engineers be given the option of performing a low-cost review, possibly from their desk. Thank you for your time. Glenn Olson AV Watermaster Board Advisory Committee, Small Pumper Feb 6

59 February 14, 2018 To: Todd Groundwater From: Richard A. Wood Re: Procedures for Review of Well Applications. Phyliss, As of 14 February 2018 these are Richard Wood s personal, preliminary comments on the Draft Procedures. They are subject to change pending any feedback I may receive. These comments are the result of reviewing notes, searching my memory of discussions during the out-of-court settlement discussions, and a brief discussion with the Small Pumper Class lawyer. 1. There appears to be an emphasis on a replacement well being less than or more than 300 feet from its current position. It appears to me there is no Material Injury review if the replacement well is less than 300 feet from its current position. However, moving the well only 100 feet could impact a close-by neighboring well. 2. It appears to me the Procedures and Figure 1 are conflating two separate procedures. One procedure is getting an Unknown Small Pumper onto the Small Pumper list and the other procedure is approving a new or moved well. A Small Pumper who wishes to move a well is handled just like everybody else. All Unknown Small Pumpers should become Known and put on the list period! It has nothing to do with moved or new wells. In my opinion an Unknown Small Pumper should want to make sure they are identified and put on the list to avoid confusion down the road. At this point in time they may not realize the advantage of being on the list. I suggest you have a separate procedure for Unknowns becoming Known (which you do have). It can be included in the same document as the Procedures if you like. Clearly call it out as a different process from moved/new wells, or anything else. Once they are on the Small Pumper list they enter the moved well process just like everybody else. On Figure 1 the Unknown Small Pumper path would be eliminated. Then I believe paragraph 1.5 goes away from the current document. I m also having difficulty with Request for a new well (as it is stated in the title of paragraph 1.5). A legitimate Small Pumper already has a well except for the shared well folks which I am about to discuss. 1

60 3. I am now of the opinion that the second paragraph in 1.6 is the intent and correct interpretation of the Stipulation. All members of the shared group had, and have, a vested right to pump water. Paragraph allows a Small Pumper to move their right to another parcel with Court approval. Since the Watermaster is an arm of the Court does that mean the Watermaster can do it? Or does it have to go to the Judge? The issue with a party of the shared well agreement being on what appears to be a Willis Class property was, in my opinion, not clearly explained in the Stipulation; an unfortunate oversight. There is a legal procedure for correcting the verbiage if necessary. This complication comes in part, in my opinion, from a long discussion during the litigation over does the right go with the land or person. I am not sure that was ever clearly stated. I do know there were a lot of lawyers discussing that at the beginning of this process. This issue with the one person who wants to leave a shared pump agreement caused me to remember some of those agreements. In one case two properties share a well and a covenant (I think that is the correct word) was placed on both Deeds stating the well would be shared both now and forever more. That particular agreement is also a shared cost agreement; that has implications. The issue with one of five members wanting to leave a shared agreement has some potential complications. If the five, collectively, are pumping 14 acre-feet per year (af/y) they are below the 15 af/y that would trigger a replenishment fee. If one of them is using 10 af/y and the others 1 af/y there is no problem. When a 1af/y member departs the agreement that leaves the other four with 13 af/y. They are now collectively (4x3) over the 12 af/y and a replenishment fee is incurred. These issues are not necessarily the Watermaster/Engineer/Lawyer s problem. But it causes me to recommend the Water Engineer, if possible, obtain a copy of the shared well agreement before making a recommendation or deciding the issue. Motherhood philosophy tells me; better to make a decision with all the facts to avoid any potential unforeseen problems. In addition I can only assume (always a bad thing to do) the individual who wants to leave the shared agreement has done their homework. Meaning, for example, do they realize how much money it costs to put in a new well. I do not believe that is the Watermaster/Engineer/Lawyer s problem but as good neighbors it may save someone from making what turns out to be a bad decision on their part. 2

61 4. I continue to have a problem with issuing new production permits while so many people are cutting back their water production so much. This, in my opinion, is going to be a public relations and political issue for the Watermaster. How do we know we have not just entered the next 10-year draught? How do we know last winter s rain was not just a one-time anomaly of a 30-year draught? There very well may not be replenishment water available. With no, or very little, rain our basin will not recharge. In addition the City of Lancaster is continuing to extend Tentative Track maps that made use of EIR s that are over ten years old; before anybody knew what the results of the adjudication would be. Lancaster has also begun entertaining new development requests. All this adds up to more water use which will be dependent on imported water. (I do not know what Palmdale is doing) Even if local farmers sell water to the public water suppliers that water has to be pumped up hill, over many miles, to get to the treatment plants; a long and expensive process. So here is the scenario. People with vested rights are reducing their water use by about 40%. The Watermaster is issuing what amounts to will serve letters to people without vested rights. Meanwhile, however slowly or quickly, the basin is being pumped out. At some point in time people are coming to the Watermaster asking why are you putting new straws in the ground while I m reducing my water use and/or paying a replenishment fee for water that isn t available? 3

62 P A L M D A L E W A T E R D I S T R I C T DATE: February 14, 2018 TO: FROM: COPY: RE: Phyllis Stanin, Todd Groundwater Mr. Dennis D. LaMoreaux, General Manager Advisory Committee Comments on Memo Titled Review of Well Applications for New or Replacement Well Production Wells by the Antelope Valley Watermaster Engineer, Dated January 29, 2018 Thank you for the opportunity to make comments on the above-referenced memo. The following are general comments after reviewing the memo and other comments made to date. Form 1: This can be used as the initial submittal with the following modifications. a. Add a question of whether an existing well will be abandoned; b. Add a question of whether an existing well will be unpaired between adjacent residential pumpers; c. Add a question of whether the proposed well is for non-production purposes. These suggestions would lead to the draft, rough revised flowchart that is attached. Form 2: Include a field inspection/verification process. Form 3: Material Injury determination if well is greater than 300 from existing well (Information supplied on Form 1) or is a new well. Determination would also address potential mitigation methods. Forms 2, 3, and 4: Remove duplicate requests for information provided in Form 1. I also suggest the flowchart be revised. The initial determination could be on whether the new well will replace an existing well either by abandonment of the existing well or by unpairing a shared residential well. This seems to be a more important point than having a production right under the Judgement and may simplify the residential (Small Pumper or Unknown Small Pumper) analysis. Also, if the new well will be used for a non-production purpose, only reporting requirements would be required for approval. I plan to include these ideas in the Advisory Committee meeting discussion along with the comments of other Committee members prior to the February 28, 2018 AV Watermaster Board meeting.

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64 ITEM 3.e February 16, 2018 DRAFT MEMORANDUM To: Robert Parris, Chair Antelope Valley Watermaster Board of Directors Dennis LaMoureaux, Chair Advisory Committee From: Re: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Pre-Rampdown Production Amounts Antelope Valley Producers Except Exhibit 4 Overlying Producers In a hearing on January 31, 2018, the Honorable Jack Komar (Ret.) considered three separate but related post-judgment motions requesting an interpretation of whether the provisions of Section 8.3 apply only to the parties listed in Exhibit 4 to the Judgment or whether certain other parties also are accorded with the benefit of limitations on imposition of the Replacement Water Assessments during the rampdown period. On February 5, 2018, the Court issued an Order requiring the Watermaster to accord the benefits of Sections 8.1, 8.2, and 8.3 to the Public Water Producers (Exhibit 3) and to Clan Keith (a Non-Stipulating Party) and to determine the appropriate Pre-Rampdown Production amounts and reduced pumping requirements over time for these parties. In response to the Order, the Watermaster Engineer has developed a methodology consistent with the Judgment that provides a Pre-Rampdown Production amount based on data provided in the Final Judgment and supporting court documents. The methodology, supporting data, references, and draft Pre-Rampdown Production amounts are described in this memorandum and summarized on Table 1. These recommended Pre-Rampdown Production amounts are being provided to the Advisory Committee and Watermaster Board for meetings on February 21 and 28, 2018 respectively, for review and comment. Once the Pre-Rampdown Production amounts have 2490 Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

65 been finalized and approved by the Watermaster, the amounts will be posted on the Watermaster website, along with the incremental reductions during each period of rampdown. The posted table will inform the Parties of their respective rights to produce groundwater during the Rampdown Period and ensure proper water accounting by the Watermaster Engineer. Tables documenting the Pre-Rampdown Production amount, the Production Right, and the incremental reductions required to achieve the Production Right by the end of the Rampdown Period will also be incorporated into the 2017 Annual Report. A final table with Pre-Rampdown Production amounts and reductions during each year of the Rampdown Period will also be incorporated into the Rules and Regulations for application and reference. METHODOLOGY Pre-Rampdown Production is defined in the Judgment as The reasonable and beneficial use of Groundwater, excluding Imported Water Return Flows, at a time prior to this Judgment, or the Production Right, whichever is greater. ( ). Further, the February Order notes that clear records of pumping are reflected in the evidence produced for the court. To the extent that imported water is included in the pumping records, evidence of imported water quantities is also available. The order makes it clear that these data are to be used to determine the Pre-Rampdown Production Amounts for parties to the Judgment that have not already been defined in Exhibit 4. A methodology was developed by the Watermaster Engineer for determining Pre- Rampdown Production amounts that is consistent with the Order and definitions in the Judgment. That methodology averages 2011 and 2012 production and subtracts the average Imported Water return flows for that same period. The Pre-Rampdown Production amounts developed by the Watermaster Engineer for parties in the Judgment other than Exhibit 4 parties are provided on Table 1. The table is divided into four parts: Exhibit 3 Non- Overlying Producers, State of California, Supporting Landowner Parties (Non-Stipulating Parties) and Other Parties with Rights to Produce Groundwater. The supporting data are listed for each party, if available from the Judgment. The average of the 2011 and 2012 production data is used as the reasonable and beneficial use of groundwater in the Pre-Rampdown determination. Annual production data for 2011 and 2012 were documented for most parties in the Amended Statement of Partial Decision for Phase IV Trial with Party Name Corrections (June 29, 2013) as indicated in the footnotes to Table 1. Although data were unavailable in this document for all Producers, additional Pre-Rampdown Production Amounts 2 Draft

66 data were available for eight of the missing producers 1 in 2015 declarations provided to the Court, which were downloaded from the Glotrans website, reviewed, and used in the calculation (see footnotes on Table 1). AVEK provided Imported Water use for 2011 and 2012 for most of the parties on Table 1. For the remaining parties, the California Public Water Supply Systems website was checked to confirm that those parties did not use imported water ( (see footnotes on Table 1). AVEK is in the process of checking records to confirm that parties without Imported Water amounts on Table 1 did not use Imported Water during that time period. For those parties that did use Imported Water, the average of 2011 and 2012 Imported Water use was multiplied by 39 percent to estimate Imported Water return flows (see Table 1). The estimated Imported Water return flows were then subtracted from the average 2011/2012 production to generate an initial Pre-Rampdown Production amount, consistent with the definition in the Judgment that the Pre-Rampdown production amounts exclude Imported Water return flows. Finally, the initial estimates above were compared with each Party s Production Right (or right to produce groundwater if no Production Right is designated) and the greater amount was determined to be each Party s recommended Pre-Rampdown Production amount, consistent with the definition in the Judgment. The recommended Pre-Rampdown Production amounts are provided in the final column on Table 1. When approved, these amounts will be used to determine the incremental reductions allowed during the Rampdown period. 1 West Valley County Water District (WVCWD), Desert Breeze MHP, Reesdale MWC, Clan Keith, LV Ritter Ranch, Eyherabide Sheep Company, Milana/Rosamond MHP, and AVJUHSD. Pre-Rampdown Production Amounts 3 Draft

67 Type ID Past Production (AFY) Imported Water Use (AFY) Average Average RED: Pre-Rampdown less than Production Right 1000 Boron Community Services District California Water Services Company Desert Lake Community Services District Littlerock Creek Irrigation District 1, , , , , , Los Angeles County Waterworks District No. 40, 1000 Antelope Valley 16, , , , , , , , , , , North Edwards Water District Palm Ranch Irrigation District , , , , , Palmdale Water District 7, , , , , , , , , , , Quartz Hill Water District 1, , , , , , , , Rosamond Community Services District 2, , , , , , West Valley County Water District Type ID Exhibit 3 Non-Overlying Producers Total 31, , , , , , , , , , State of California Average Average 1500 Department of Water Resources Not Reported Department of Parks and Recreation Not Reported Department of Transportation Not Reported State Lands Commission Not Reported Department of Corrections and Rehabilitation Not Reported th District Agricultural Association Not Reported Department of Veteran Affairs Not Reported Highway Patrol Not Reported Department of Military Not Reported 3.00 Total Type ID Supporting Landowner Parties (Non-Stipulating Parties) Past Production (AFY) Imported Water Use (AFY) Imported Water Return Flows Past Production (AFY) Average Average 1675 Desert Breeze MHP, LLC Milana VII, LLC dba Rosamond Mobile Home Park Provided estimate Not reported Reesdale Mutual Water Company Not reported Juanita Eyherabide, Eyherabide Land Co., LLC and Provided gallons per day 1675 Eyherabide Sheep Company estimate Not reported Clan Keith Real Estate Investments, LLC dba Leisure 1675 Lake Mobile Estates White Fence Farms Mutual Water Company No. 3 Not Available Gets water from AVEK Not reported LV Ritter Ranch, LLC , Not reported Robar Enterprises, Inc., HI-Grade Materials, Co., and Not metered, provided 1675 CJR, a General Partnership estimate Not reported Total , , , , Type ID DRAFT Table 1. Pre-Rampdown Determinations for Producers Other Than Exhibit 4 Overlyers Other Rights to Produce Imported Water Use (AFY) Average Average Imported Water Return Flows (AFY) [average*0.39] (AFY) [average*0.39] Imported Water Return Flows (AFY) [average*0.39] Past Production (AFY) Imported Water Use (AFY) Imported Water Return Flows (AFY) [average*0.39] Average Production - Imported Water Return Flows (AFY) Average Production - Imported Water Return Flows (AFY) Average Production - Imported Water Return Flows (AFY) Average Production - Imported Water Return Flows (AFY) Production Right (AFY) Production Right (AFY) Production Right (AFY) Production Right (AFY) 1100 Antelope Valley Joint Union High School District Total Groundwater Production (AF) 2016 Total Groundwater Production (AF) 2016 Total Groundwater Production (AF) 2016 Total Groundwater Production (AF) Reported with 2016 Production 1600 City of Lancaster Phelan Pinon Hills CSD 1, , , , , , Small Pumper Class Not available Not available 3, Not available - Total 1, , , , , , , LV Ritter Ranch 11/9/15: DECLARATION OF MARK RITTER, INDIVIDUALLY AND AS SUCCESSOR TRUSTEE OF THE RITTER FAMILY TRUST IN SUPPORT OF WATER USAGE Eyherabide Sheep Company 8/17/15: DECLARATION OF JUANITA EYHERABID ON BEHALF OF HERSELF, THE EYHERABIDE SHEEP COMPANY, AND EYHERABIDE LAND CO., LLC, IN SUPPORT OF EYHERABIDE'S CLAIM TO OVERLYING GROUNDWATER Milana VII, LLC dba Rosamond Mobile Home Park 7/21/15: DECLARATION OF SCOTT MONROE IN SUPPORT OF CROSS-DEFENDANT MILANA VII, LLC, db& ROSAMOND I MOBILE HOME PARK'S CLAIMED I PRODUCTION RIGHT OF 21.7 ACRE FEET PER YEAR 2011 and 2012 Imported Water use from AVEK or California Drinking Water Watch, Water System Details ( ) AVEK is in the process of checking Imported Water use for parties with no data in Table 1. February 16, 2018 Recommended Pre-Rampdown Production (AF) Recommended Pre-Rampdown Production (AF) Recommended Pre-Rampdown Production (AF) Recommended Pre-Rampdown Production (AF) 2011 & 2012 Production from AMENDED STATEMENT OF PARTIAL DECISION FOR PHASE IV TRIAL WITH PARTY NAME CORRECTIONS (6/29/13) with the exceptions of WVCWD. Desert Breeze MHP, Reesdale MWC, Clan Keith, LV Ritter Ranch, Eyherabide Sheep Company, Milana/Rosamond MHP, and AVJUHSD. WVCWD 9/23/15: DECLARATION OF MARK CROSBY, GENERAL MANAGER OF PUBLIC WATER SUPPLIER / CROSS DEFENDANT WEST VALLEY COUNTY WATER DISTRICT REGARDING WEST VALLEY'S WATER PUMPING AND USAGE Desert Breeze MHP 9/24/15: CROSS DEFENDANT DESERT BREEZE MHP, LLC'S DECLARATION OF DANIEL EPSTEIN IN SUPPORT OF THE PHASE VI TRIAL PROVE UP Reesdale MWC 9/28/15: FURTHER DECLARATION OF PATRICIA PARKER IN SUPPORT OF REESEDALE MUTUAL WATER COMP ANY'S REQUEST TO BE INCLUDED IN STIPULATED SETTLEMENT AGREEMENT AVJUHSD 10/6/15: SECOND SUPPLEMENTAL DECLARATION OF MAT HAVENS OF ANTELOPE VALLEY JOINT UNION HIGH SCHOOL DISTRICT IN LIEU OF COURT TESTIMONY FOR PHASE VI TRIAL REGARDING SCHOOL DISTRICT'S PRODUCTION/PUMPING Robar/Highgrade: 10/7/15: CROSS-DEFENDANTS HI-GRADE MATERIALS CO.; ROBAR ENTERPRISES, INC.; AND CJR'S DECLARATION IN SUPPORT OF PROVE-UP FOR PHASE VI TRIAL; DECLARATION OF CHRIS GIAMPIETRO 67.12

68 ITEM 4.b February 16, 2018 DRAFT ISSUE PAPER To: Dennis LaMoreaux, Chair Antelope Valley Watermaster Advisory Committee Robert Parris, Chair Antelope Valley Watermaster Board Craig A. Parton, Price Postel & Parma LLP Antelope Valley Watermaster Legal Counsel From: Re: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Order of Water Use Under the Judgment This Draft Issue Paper recommends an order for sequential use by Producers of their various groundwater rights (e.g., Production Rights, Carry Over, Imported Water Return Flows, etc.) as interpreted from the Judgment. The Issue Paper recommends an order that complies with the Judgment, provides information for a dialog with Producers for planning purposes, and ensures proper water accounting by the Watermaster Engineer. An additional objective of this Issue Paper is to provide a summary of various types of water accounts and related sections of the Judgment pertaining to associated requirements on the use of those accounts. The summary information contained herein can be included in initial sections of the Rules and Regulations to provide context and understanding for the various sections within that document. Although the Rules and Regulations are meant to develop processes and procedures to implement the Judgment rather than simply repeat portions of the Judgment, inclusion of summary information can provide needed context and make the Rules and Regulations more accessible. Paragraphs from the Judgment ( ) are referenced where applicable. This Draft Issue Paper is being presented to the Advisory Committee, Antelope Valley Watermaster Board, and Watermaster Counsel to facilitate review and discussion on the order of water use by Producers. After incorporation of comments, the Draft Issue Paper will be posted for a 30-day comment period, reviewed during a Public Hearing, approved by the Board, and submitted to the Court for final approval Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

69 GROUNDWATER RIGHTS UNDER THE JUDGMENT The distinct types of groundwater accounts that may be available for a Producer s use are listed below. Production Right. The amount of Native Safe Yield that may be Produced each Year free of any Replacement Water Assessment and Replacement Obligation. The total of the Production Rights decreed in this Judgment equals the Native Safe Yield. A Production Right does not include any right to Imported Water Return Flows pursuant to Paragraph 5.2. ( ). Pre-Rampdown Production. The reasonable and beneficial use of Groundwater, excluding Imported Water Return Flows, at a time prior to this Judgment, or the Production Right, whichever is greater. ( ). Unused Federal Reserved Water Right. In the event the United States does not Produce its entire 7,600 acre-feet in any given Year, the unused amount in any Year will be allocated to the Non-Overlying Production Rights holders, except for Boron Community Services District and West Valley County Water District, in the following Year, in proportion to Production Rights set forth in Exhibit 3. ( ). Carry Over. The right to Produce an unproduced portion of an annual Production Right or a Right to Imported Water Return Flows in a Year subsequent to the Year in which the Production Right or Right to Imported Water Return Flows was originally available. ( 3.5.9). Imported Water Return Flows. Imported Water that net augments the Basin Groundwater supply after use. ( ). Stored Water. Water held in storage in the Basin, as a result of direct spreading or other methods, for subsequent withdrawal and use pursuant to agreement with the Watermaster and as provided for in this Judgment. Stored Water does not include Imported Water Return Flows. ( ). Transfers. Pursuant to terms and conditions to be set forth in the Watermaster rules and regulations, and except as otherwise provided in this Judgment, Parties may transfer all or any portion of their Production Right to another Party so long as such transfer does not cause Material Injury. All transfers are subject to hydrologic review by the Watermaster Engineer. ( 16.1). New Production. Any Production of Groundwater from the Basin not of right under this Judgment, as of the date of this Judgment. ( ). Other types of water (non-groundwater) are also available for use but are not included in this hierarchy. These include in-lieu production ( 15.1), recycled water ( 5.3), and imported or local surface water. In-lieu production use is encouraged as it reduces groundwater pumping directly. Use of these other water sources is also encouraged if groundwater pumping can be reduced. Draft Issue Paper / Water Use Hierarchy 2 DRAFT

70 ORDER OF GROUNDWATER USE The Judgment provides flexibility to Producers to accumulate and access a variety of water accounts as described above. The Watermaster Engineer does not wish to dictate which accounts a Producer may access unless limited by the Judgment or other practical considerations. Nonetheless, it is incumbent on the Watermaster Engineer to develop a system of water accounting that complies with the Judgment. Therefore, the Judgment has been reviewed for requirements and restrictions on use of water accounts. In brief, the Judgment requires that the Production Right be used first before any other water is used. An exception to this is the option for In Lieu Production, whereby Imported Water is purchased to preserve the Production Right and the Production Right is subject to Carry Over. Two additional types of water, the unused Federal Reserved Water Right and the Rampdown Production amounts, are restricted with respect to the timing of the use. Because these two types of water must be used in the year that they are available, these accounts are prioritized for use. Incorporating these two guidelines, water accounts have been categorized into three groups for use as listed below. Category 1 water is to be used in full before Category 2;Category 2 water would also likely be used in full before Category 3. When several different types of water are in one category, the Producer can use them at their discretion in any order and percentage. Producers may not have all categories of water available to them at all times. Category 1 Production Rights from Native Safe Yield Category 2 Unused Federal Reserved Water Rights Rampdown Production (amount above Production Right) Category 3 Imported Water Return Flows Carry Over Water Stored Water New Production Other Rights to Produce Water Transfers are not listed above because the transferred water will retain the category as the source water (e.g., transferred Production Rights will be Category 1 water, transferred Imported Water Return Flows will be Category 3 water, transferred Carry Over will be Category 4 water and will also retain the same number of years for which it has already been carried over, transferred Stored Water will be Category 5 water, etc.). DISCUSSION AND RELEVANT JUDGMENT TEXT Category 1. Production Rights. All Production Rights from Native Safe Yield must be used before using other types of groundwater. As per the Judgment: A Producer must Produce its full current Draft Issue Paper / Water Use Hierarchy 3 DRAFT

71 Year s Production Right before any Carry Over water is Produced. ( 15.1) and A Producer must Produce its full Production Right before any Carry Over water, or any other water, is Produced. ( 15.2 and 15.3, emphasis added). Category 2. Unused Federal Reserved Water Rights and Rampdown Production above Production Right. Producers with Unused Federal Reserved Water Rights and/or Rampdown Production above their Production Right can use these water sources once they have used all Production Rights from Native Safe Yield for the year. These two sources are prioritized because they are not subject to Carry Over and will not be available in subsequent years if not produced in the year available. Additional relevant information and limitations from the Judgment are included below. Other Rights to Produce Water. These Category 3 water types can be used after a Producer uses its Production Rights (Category 1) and electively uses its Category 2 water (Unused Federal Reserved Water Rights and Rampdown Production above Production Right) since Category 2 water cannot be carried over. REPORTING All Producers are required 2 to provide the Watermaster with a detailed annual accounting of the water used in the previous calendar year. This information will be documented by Producers on an Annual Water Production Report form. These forms will be available on the Watermaster website and are due by March 1, 2018 for 2017 water use. Annual Water Production Report forms will also be mailed or ed to Producers with addresses or s on record. In future years, the Antelope Valley Watermaster Annual Report will contain tables with the types of water available for each party for use that year 3. However, much of this data was not available for the 2016 Annual Report. Accordingly, the Watermaster will post tables on its website to assist with completing 2017 Production Reporting forms; tables will include: Rampdown amounts for Production Rights and other rights to produce water for each Party Unused Federal Reserved Water Rights available for use in 2017 Imported Water Return Flows available in 2017, and Carry Over Water available in Production Reports. The Watermaster Engineer shall require each Producer, other than unmetered Small Pumper Class Members, to file an annual Production report with the Watermaster. Producers shall prepare the Production reports in a form prescribed by the rules and regulations. The Production reports shall state the total Production for the reporting Party, including Production per well, rounded off to the nearest tenth of an acre foot for each reporting period. The Production reports shall include such additional information and supporting documentation as the rules and regulations may reasonably require. 3 The Watermaster will be requesting that the due date for Annual Reports be permanently moved from April 1 to August 1 to better accommodate collection and analysis of the required data. Draft Issue Paper / DRAFT Water Use Hierarchy 4

72 Water available for use in 2018 will be tallied once the 2017 Annual Water Production Reports are received and the 2017 Annual Report is complete. Each Producer is responsible for keeping track of their production throughout each year to ensure that they do not incur Replacement Water Assessments unintentionally. Producers who pump more than 10 AFY are also required to submit quarterly production meter reading reports by the end of the first month after each quarter (January 31, April 30, July 31, and October 31). Additional metering requirements are posted on the Watermaster website. Draft Issue Paper / Water Use Hierarchy 5 DRAFT

73 ITEM 4.c February 16, 2018 DRAFT ISSUE PAPER To: Dennis LaMoreaux, Chair Antelope Valley Watermaster Advisory Committee Robert Parris, Chair Antelope Valley Watermaster Board Craig Parton, Price Postel & Parma LLP Watermaster Legal Counsel From: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Re: Transfer Request Procedures This Draft Issue Paper discusses the application of Transfers as defined in the Judgment. The primary purpose of the Issue Paper is to provide information on the details of Transfers, as interpreted from the Judgment, to ensure proper water accounting by the Watermaster Engineer. Once the proper determination is clear, the information in the Issue Paper will be revised for inclusion in the Antelope Valley Watermaster Rules and Regulations. The Rules and Regulations are meant to develop processes and procedures to implement the Judgment rather than simply repeat portions of the Judgment. However, for the purposes of this Issue Paper, relevant sections and definitions from the Judgment are included for context and to facilitate proper determination of Transfer eligibility. Paragraphs from the Judgment ( ) are referenced where applicable. This Draft Issue Paper is being presented to the Advisory Committee and the Watermaster Board to facilitate discussion on the Transfer procedures. After considering comments from the Advisory Committee and the Watermaster Board, procedures will be revised into a format appropriate for the Rules and Regulations, a 30-day public comment period will be provided, and the Board will adopt the information for court approval. We recognize that a legal determination may be necessary for some of the details provided herein. Therefore, we are also transmitting the Issue Paper to the Watermaster Legal Counsel for review as directed by the Watermaster Board Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com

74 CONDITIONS AND PROCEDURES APPLICABLE FOR TRANSFERS Transfers of Production Rights are allowed in the Judgment as follows: Pursuant to terms and conditions to be set forth in the Watermaster rules and regulations, and except as otherwise provided in this Judgment, Parties may transfer all or any portion of their Production Right to another Party so long as such transfer does not cause Material Injury. All transfers are subject to hydrologic review by the Watermaster Engineer. ( 16.1). Both one-time temporary transfers and permanent transfers of a Production Right are allowed. A transfer of a Production Right could also occur as a result of a property sale. In this case, the Production Rights would transfer to the new owner of the property associated with that sale as indicated by the definition of Party in the Judgment. Party (Parties). Any Person(s) that has (have) been named and served or otherwise properly joined, or has (have) become subject to this Judgment and any prior judgments of this Court in this Action and all their respective heirs, successors-in-interest and assigns. For purposes of this Judgment, a Person includes any natural person, firm, association, organization, joint venture, partnership, business, trust, corporation, or public entity. ( ). The Watermaster Engineer will record all transfers as dictated in the Judgment: Transfers. On an annual basis, the Watermaster shall prepare and maintain a report or record of any transfer of Production Rights among Parties. Upon reasonable request, the Watermaster shall make such report or record available for inspection by any Party. A report or records of transfer of Production Rights under this Paragraph shall be considered a ministerial act. ( ). Allowed Transfers Transfers are allowed for the following Parties under the described conditions: Exhibit 4 Overlying Production Right Parties: Overlying Production Rights may be transferred pursuant to the provisions of Paragraph 16 of this Judgment. ( ). Exhibit 4 Overlying Production Right Parties Transfers to Exhibit 3 Non-Overlying Production Right Holders: Overlying Production Rights that are transferred to Non-Overlying Production Right holders shall remain on Exhibit 4 and be subject to adjustment as provided in Paragraph , but may be used anywhere in the transferee s service area. ( 16.2). State of California Internal Transfers: The State of California s Production Right in the amount of 207 acre-feet per Year is allocated separately to each of the State agencies, departments, and associations as listed below in Paragraph Notwithstanding the separate allocations, any Production Right, or portion thereof, of one of the State agencies, departments, and associations may be transferred or used by the other State agencies, departments, and associations on parcels within the Basin. This transfer shall be done by agreement between the State agencies, departments, or associations without a Replacement Water Assessment and without the need for Watermaster approval. Prior to the transfer of another State agency, department, or association s Production Right, the State agency, department, or association receiving the ability to use the Production Right shall obtain written consent from the Draft Issue Paper / Transfers 2 DRAFT

75 transferor. Further, the State agency, department, or association receiving the Production Right shall notify the Watermaster of the transfer. ( ). Stored Production Rights or Carry Over Water: In Lieu Production Right Carry Over The Producer may transfer any Carry Over water or Carry Over water stored pursuant to a Storage Agreement. ( 15.1). Antelope Valley United Mutuals Group Transfer Limitations: Limitation on Transfers of Water by Antelope Valley United Mutuals Group. After the date of this Judgment, any Overlying Production Rights pursuant to Paragraph 5.1.1, rights to Imported Water Return Flows pursuant to Paragraph 5.2, rights to Recycled Water pursuant to Paragraph 5.3 and Carry Over water pursuant to Paragraph 15 (including any water banked pursuant to a Storage Agreement with the Watermaster) that are at any time held by any member of the Antelope Valley United Mutuals Group may only be transferred to or amongst other members of the Antelope Valley United Mutuals Group, except as provided in Paragraph Transfers amongst members of the Antelope Valley United Mutuals Group shall be separately reported in the Annual Report of the Watermaster pursuant to Paragraphs and Transfers amongst members of the Antelope Valley United Mutuals Group shall not be deemed to constitute an abandonment of any member s non-transferred rights. ( 16.3). Nothing in Paragraph 16.3 shall prevent Antelope Valley United Mutuals Group members from transferring Overlying Production Rights to Public Water Suppliers who assume service of an Antelope Valley United Mutuals Group member s shareholders. ( ). Prohibited Transfers Transfers are not allowed for: Non-Pumper Class: The Non-Pumper Class members shall have no right to transfer water pursuant to this Judgment. ( ). Small Pumper Class: The pumping rights of Small Pumper Class Members are not transferable separately from the parcel of property on which the water is pumped, provided however a Small Pumper Class Member may move their water right to another parcel owned by that Small Pumper Class Member with approval of the Court. If a Small Pumper Class Member parcel is sold, absent a written contract stating otherwise and subject to the provisions of this Judgment, the water right for that Small Pumper Class Member parcel shall transfer to the new owners of that Small Pumper Class Member parcel. The pumping rights of Small Pumper Class Members may not be aggregated for use by a purchaser of more than one Small Pumper Class Member s property. ( ). In recognition of his service as class representative, Richard Wood has a Production Right of up to five 5 acre-feet per Year for reasonable and beneficial use on his parcel free of Replacement Water Assessment. This Production Right shall not be transferable and is otherwise subject to the provisions of this Judgment. ( ). Non-Stipulating Parties: Production Rights Claimed by Non-Stipulating Parties. Any claim to a right to Produce Groundwater from the Basin by a Non-Stipulating Party shall be subject to procedural or legal objection by any Stipulating Party. Should the Court, after taking evidence, rule that a Non-Stipulating Draft Issue Paper / Transfers 3 DRAFT

76 Party has a Production Right, the Non-Stipulating Party shall be subject to all provisions of this Judgment, including reduction in Production necessary to implement the Physical Solution and the requirements to pay assessments, but shall not be entitled to benefits provided by Stipulation, including but not limited to Carry Over pursuant to Paragraph 15 and Transfers pursuant to Paragraph 16. ( ). Boron Community Services District: Notwithstanding section 16.1, the Production Right of Boron Community Services District shall not be transferable. If and when Boron Community Services District permanently ceases all Production of Groundwater from the Basin, its Production Right shall be allocated to the other holders of Non-Overlying Production Rights, except for West Valley County Water District, in proportion to those rights. ( 16.4). REPORTING Prior to a transfer, Parties are required to submit a Transfer Request Form to the Watermaster for approval. A draft Transfer Request Form is attached to this Memorandum. It includes specific information for the Watermaster Engineer to track and record each transfer as well as conducting a hydrologic review and make a recommendation if a Material Injury would occur. Draft Issue Paper / Transfers 4 DRAFT

77 DRAFT TRANSFER REQUEST FORM ANTELOPE VALLEY WATERMASTER Attach application fee of $XXX for review and processing. Make check out to: Antelope Valley Watermaster Please mail to: Antelope Valley Watermaster, P.O. Box 3025, Quartz Hill, California OR to: PERMANENT TRANSFER? Yes or No or TEMPORARY/ONE-TIME TRANSFER? Yes or No Date Requested Amount Requested acre-feet If Temporary, Calendar Year(s) to be Used Sale Price: $ /acre-foot, for a total amount of $ Is either Party a member of the Antelope Valley United Mutuals Group? Yes or No TRANSFER FROM (SELLER/TRANSFEROR): Name Street Address City State Zip Code Phone APN#(s) transfer originating from TRANSFER TO (BUYER/TRANSFEREE): Name Street Address City State Zip Code Phone APN#(s) transfer going to Purpose of Transfer: Property Transfer, explain Pump when other sources of supply are curtailed (e.g., less available imported water) Pump to meet current or future demand over and above Production Right Pump as necessary to reduce future assessment amounts Other, explain Water is to be Transferred from/to: (transferred water retains its original water type): Current Year Production Right: amount acre-feet Carry Over Water: amount acre-feet Storage: amount acre-feet Other, explain (Transferred water retains its original water type e.g., transferred Carry Over Water remains Carry Over water) Page 1 of 2 2/16/18

78 WATER QUALITY AND WATER LEVELS (not required if transfer is in association of change of land ownership) Are Parties aware of any water quality issues that exist in either the area transferred from or to? Yes or No If yes, please explain: Are Parties aware of any water level issues that exist in either the area transferred from or to? Yes or No If yes, please explain: MATERIAL INJURY (not required if transfer is in association of change of land ownership) Are Parties aware of any potential Material Injury to a Party to the Judgment or the Basin that may be caused by the action covered by the transfer? Yes or No If yes, what are the proposed mitigation measures, if any, that might reasonably be imposed to ensure that the action does not result in Material Injury to a Party to the Judgment and the Basin? MAPS Please include a map of the area where the water was used by the Transferor and a map of the area where the water is intended to be used by the Transferee. Include locations of production facilities involved in or affected by the Transfer. The transfer shall be conditioned upon: 1. Transferee shall exercise said right on behalf of Transferor under the terms of the Judgment. 2. Transferee shall put all Transferred waters to reasonable and beneficial use. 3. Any Transferee not already of Party of the Judgment must intervene and become a Party to the Judgment. SIGNATURES I understand and agree to abide by the terms of the Antelope Valley Adjudication Judgment. I certify that the information provided on this Transfer Form is correct to the best of my knowledge and that the signature below, whether original, electronic, or photocopied, is authorized and valid, and is affixed with the intent to be enforceable. I understand that it is my responsibility to notify the Antelope Valley Watermaster of any changes in any of the information provided on this form within 15 days. I also understand that additional information may be required if there is a suspected potential for a material injury as defined in the Judgment. Signature of Transferor Date Signature of Transferee Date Approved by Date Transfer Requests review could take up to 60 days. Page 2 of 2 2/16/18

79 ITEM 4.d February 19, 2018 REVISED DRAFT MEMORANDUM To: Robert Parris, Chair Antelope Valley Watermaster Board of Directors Dennis LaMoreaux, Chair Antelope Valley Watermaster Advisory Committee cc: Craig Parton, Price Postel & Parma LLP Legal Counsel From: Phyllis Stanin, Vice President/Principal Geologist Kate White, Senior Engineer Todd Groundwater, Watermaster Engineer Re: Draft Groundwater Storage Agreements Section for the Rules and Regulations The proposed process and procedures for implementing Storage Agreements in compliance with the Final Judgment are presented on the following pages. This draft text is provided for final comments, edits, and subsequent inclusion in the Antelope Valley Watermaster Rules and Regulations (R&Rs). Previous drafts of this text have been reviewed by the Advisory Committee and the Watermaster Board; comments and additional minor edits have been incorporated into this revised draft. Pending legal review and final edits, the Board will approve the text for use in the R&Rs Mariner Square Loop, Suite 215 Alameda, CA toddgroundwater.com