Loading...
SAN JUAN CAPISTRANO , CITY OF (3)SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO AMENDMENT TO AGREEMENT This Amendment to Agreement is made this 1 st day of March 1998, by and among the San Juan Basin Authority (the "Authority"), the Capistrano Valley Water District (the "District"), and the City of San Juan Capistrano (the "City"). RECITALS A. On the 21 st day of November, 1995, the Authority, the District and the City entered into an agreement (the "1995 Agreement") to clarify the parties' agreement with respect to the extraction of water from the Basin for the District and City relative to the Authority's extraction of water from the Basin for its water development project. That project is the subject of the Authority's application to appropriate to the State Water Resources Control Board (Application No. 30123.) The Authority is in the process of entering into protest settlement agreements and other agreements in order to obtain the SWRCB's approval of its application. B. In furtherance of monitoring and, to the extent feasible, management of Basin's subterranean water supply for beneficial uses, the Authority recently established Project Committee Number 10. Among the functions of that Project Committee is Basin monitoring and determination of Available Safe Yield. The Authority may create additional committees and/or amend their functions as it deems appropriate. C. At the time the 1995 Agreement was entered into, Project Committee Number 10 was neither envisioned nor did it exist. The provisions of the 1995 Agreement limiting its applicability to Project Committee No. 4 are no longer relevant or appropriate. Furthermore, the parties want to clarify that the Authority's project may AW 4ft Amendment to 1995 Agreement Pape 2 change from time to time, and that the year to be used will be the water year from October 1 to September 30. The Authority, the District, and the City now desire to amend the 1995 Agreement as follows. AGREEMENT 1. The agreement made November 21 st, 1995 by and among the San Juan Basin Authority, the Capistrano Valley Water District, and the City of San Juan Capistrano is hereby amended as follows: E: A. Recital E shall be deleted entirely and replaced by the following new Recital E. Pursuant to the Projects Agreement, the Members established several Project Committees to study and implement a water management and use program within the San Juan Creek Basin and tributaries (the "Basin"). The Authority made a study of the feasibility of extracting water from the Basin, treating that water to improve its quality as appropriate, and supplying the resulting water to the Members and other water users (the "San Juan Basin Ground Water Management and Facility Plan", as revised). The Authority intends to proceed with the Project based upon this original study and subsequent hydrologic, environmental and other work. The "Project" shall refer to this project as it may change from time to time. 1c5`vn`89s April 7, 1998 SAN JUAN BASIN AUTHORITY 27500 LA PAZ ROAD • LAGUNA NIGUEL, CA 92677 • (714) 448-4055 • FAX (714) 831-5651 Ms. Cheryl Johnson City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Regarding: Amendment to 1995 Agreement Dear Cheryl: Enclosed is a fully executed copy of the above -referenced agreement. We have retained a copy for our files. If you have any questions or comments concerning this matter, please do not hesitate to contact me. Sincerely, AN JUAN BASIN AUTHORITY ��- c'J ran Bailey Administrative Assistant Enclosure 0 0 MARCH 24, 1998 MEETING OF THE CAPISTRANO VALLEY WATER DISTRICT BOARD OF DIRECTORS The Special Meeting of the Board of Directors of the Capistrano Valley Water District was called to order by Chairhian Jones, at 4:30 p.m. in the City Council Chamber. ROLL CALL: PRESENT: Gil Jones, Chairman Collett Campbell, Director (arrived at 4:33 p.m.) \ Wyatt Hart, Director \ John Greiner, Director ABSENT: David M. Swerdlin, Vice Chairman STAFF PRESENT: George Sca-borou , General Manager; Cheryl Johnson, Clerk of the Board, Cynthia L. Pendleton, Administrative Servic's Director; Amy Amirani, Public Works Director; Bob Clark, District Engineer_ \\ ORAL COMMUNICATIONS - None BOARD ACTIONS I . APPROVAL OF "SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO AMENDMENT TO AGREEMENT" - SAN JUAN CREEK BASIN WATER RIGHTS (600.70) Written Communications: Report dated March 24, 1998, from the Public Works Director, advising that on November 21, 1995, the Water District, the City and the San Juan Basin Authority had signed an agreement designed to protect the District's and the City's water rights and groundwater production facilities from potential impacts of the San Juan Basin Authority's proposed Desalination Plant, also known as Project Committee No. 4. At the time of approval, only the members of Project Committee No. 4 were bound by the agreement. Since that time the water rights situation had changed. It was recommended that all members of the San Juan Basin Authority should be bound by the November, 1995 agreement and the Report forwarded an Amendment to that Agreement. The Report further advised that the District and the City had requested that the State Regional Water Quality Control Board, Division of Water Rights, give the District/City application to appropriate their current and projected groundwater supplies (2,900 acre feet annually for the District and 425 acre feet annually for the City) from the San Juan Creek, Trabuco Creek and their tributaries (identified as the San Juan Basin) priority over all other applications pen:;ing on the San Juan Basin. Assurances had been negotiated from the San Juan Basin Authority and the Capistrano Beach Water District that the District's and the City's entitlements would be preserved; therefore, staff recommended the request for priority be withdrawn. CVWD Minutes -1- 3/24/98 0 9 The Public Works Director made an oral report. A2proval of Agreement Amendment/Letter Withdrawing Priority Reguest: It was moved by Director Hart, seconded by Director Greiner and unanimously carried to approve the San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement; and, to authorize the Chairman to sign the letter to the State Water Resources Control Board requesting the withdrawal of the District's and City's requested priority over all other applications pending on the San Juan Basin. ADOPTION OF RESOLUTION SUPPORTING THE MEMBERSHIP OF Report dated Marc 24, 1998, from the Public Works Director, advising that while the Capistrano Beach Wat District was one of the founding members of the San Juan Basin Authority in 1971, the Dis ct had withdrawn from the San Juan Basin Authority in 1987. The Capistrano Beach Water ' trict had asked to rejoin the San Juan Basin Authority and a Resolution of support was forw ded for consideration. The Report further advised that the San Juan Basin Authority had filed application with the State Water Resources Control Board to appropriate water rights for their mineralization project; that application had been protested by the Capistrano Beach Water trict. The Capistrano Beach Water District subsequently filed an application with the State rd for a similar project; their application was protested by the San Juan Basin Authority. Th eport forwarded a protest settlement agreement between the Basin Authority and the C istrano Beach Water District for ratification by the Basin Authority Members. The Agree nt provided that the Capistrano Beach Water District would participate in Basin Management, nown as Project Committee No. 10, and the General Fund only. The Capistrano Beach Wat District demineralization project will be separate from the Basin Authority's project and the location of water from the Basin Authority project will not include the Capistrano Beach Wa r District. The Public Works Director made an oral report. Supporting Membership in Authorityaatifying Protest Settlement Agreement: It was moved by Director Hart, seconded by Director Greiner that the following Rvsolution supporting the Capistrano Beach Water District membership in the San Juan Basin At�hority be adopted and that the Protest Settlement Agreement Between San Juan Basin Authoritt and Capistrano Beach Water District be ratified: CVWD Minutes -2- 3/24/98 0 0 AGENDA ITEM March 24, 1998 TO: George Scarborough, City Manager and General Manager FROM: Amy Amirani, Public Works Director SUBJECT: Consideration of"San Juan Basin Authority -Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement" - San Juan Basin Water Rights By motion, Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement; 2. Authorize the Chairman/Mayor to sign the letter to the State Water Resources Control Board requesting the withdrawal of the City's and District's requested priority over all other applications pending on the San Juan Basin. SITUATION On November 21, 1995, the City and District entered into an agreement with the San Juan Basin Authority (Authority) to protect the District's and City's water rights and groundwater production facilities from potential impacts of the proposed Authority Desalination Plant. In the original agreement, only those Authority members participating in the Desalination Plant (Project Committee No. 4) were bound under the terms of the agreement to study and implement a water management and use program within the San Juan Creek Basin. Since the agreement was approved, the Authority members and the water rights situation have changed. With Capistrano Beach Water District (CBWD) becoming an Authority member and developing their own desalination project independent of the Authority, it became apparent that the agreement needed to apply to all Authority members, not just those in Project Committee No. 4. This amendment makes the terms of the agreement binding to all members of the Authority. This amendment was crafted by Michelle Staples of the Law Offices of Susan Trager, counsel to the District and City on water rights. A copy of the amendment is attached for your consideration. This item was approved by the Authority Board at their March 3`" meeting. Staff recommends approval of this amendment. On January 15, 1998, the District and City submitted a letter to the State Regional Water Quality Control Board Division of Water Rights requesting that our water rights application be given priority over all other applications pending in the San Juan Basin. Staff and counsel have met with members of the Authority and CBWD to resolve our concerns which led to this letter being sent. We have negotiated assurances from the Authority and CBWD that the District's and City's entitlement will be preserved. Staff is requesting that the CounciUBoard of Directors authorize the Chairman/Mayor to sign the attached letter to the State Water Resources Control Board asking FOR CITY COU.XIL AC _Ir cc OV WD CI 0 AGENDA ITEM March 24, 1998 Page 2 • that the District and City request for priority over all other applications pending on the San Juan Basin be withdrawn. NOTIFICATION San Juan Basin Authority c/o Moulton Niguel Water District 27500 La Paz Road Laguna Niguel, California 92656 Capistrano Beach Water District Post Office Box 2008 Capistrano Beach, California 92624 COMMISSIONBOARD REVIEW, RECOMMENDATIONS None. FINANCIAL CONSIDERATIONS None. ALTERNATE ACTION 1. Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement, and authorize the Chairman/Mayor to sign the letter to the State Water Resources Control Board requesting the withdrawal of the City's and District's requested priority over all other applications pending on the San Juan Basin, 2. Deny approval of the amendment and letter. 3. Request additional information from staff. RECOMMENDATION By motion, 1. Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement; 2. Authorize the Chairman/Mayor to sign the letter to the State Water Resources Control Board requesting the withdrawal of the City's and District's requested priority over all other p:\er g1agncyAba\amd95 agr. doc • AGENDA ITEM March 24, 1998 Page 3 applications pending on the San Juan Basin. Respectfully submitted, `�"VVI Amy Amirani Public Works Director L Prepared by, Robert W. Clark District Engineer Attachments: Amendment to Agreement - San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Letter to Mr. Ed Anton, Chief- State Water Resources Control Board pAeng\agncy\sjbalamd95agr.doc SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO AMENDMENT TO AGREEMENT This Amendment to Agreement is made this 1 st day of March 1998, by and among the San Juan Basin Authority (the "Authority"), the Capistrano Valley Water District (the "District"), and the City of San Juan Capistrano (the "City"). RECITALS A. On the 21 st day of November, 1995, the Authority, the District and the City entered into an agreement (the "1995 Agreement") to clarify the parties' agreement with respect to the extraction of water from the Basin for the District and City relative to the Authority's extraction of water from the Basin for its water development project. That project is the subject of the Authority's application to appropriate to the State Water Resources Control Board (Application No. 30123.) The Authority is in the process of entering into protest settlement agreements and other agreements in order to obtain the SWRCB's approval of its application. B. in furtherance of monitoring and, to the extent feasible, management of Basin's subterranean water supply for beneficial uses, the Authority recently established Project Committee Number 10. Among the functions of that Project Committee is Basin monitoring and determination of Available Safe Yield. The Authority may create additional committees and/or amend their functions as it deems appropriate. C. At the time the 1995 Agreement was entered into, Project Committee Number 10 was neither envisioned nor did it exist. The provisions of the 1995 Agreement limiting its applicability to Project Committee No. 4 are no longer relevant or appropriate. Furthermore, the parties want to clarify that the Authority's project may 0 0 Amendment to 1995 Agreement Payne 2 change from time to time, and that the year to be used will be the water year from October 1 to September 30. The Authority, the District, and the City now desire to amend the 1995 Agreement as follows. AGREEMENT 1. The agreement made November 21 st, 1995 by and among the San Juan Basin Authority, the Capistrano Valley Water District, and the City of San Juan Capistrano is hereby amended as follows: E: A. Recital E shall be deleted entirely and replaced by the following new Recital E. Pursuant to the Projects Agreement, the Members established several Project Committees to study and implement a water management and use program within the San Juan Creek Basin and tributaries (the "Basin"). The Authority made a study of the feasibility of extracting water from the Basin, treating that water to improve its quality as appropriate, and supplying the resulting water to the Members and other water users (the "San Juan Basin Ground Water Management and Facility Plan", as revised). The Authority intends to proceed with the Project based upon this original study and subsequent hydrologic, environmental and other work. The "Project" shall refer to this project as it may change from time to time. Amendment to 1995 Agreement Page 3 B. The last sentence only of Section 2 shall be deleted and replaced with the following sentence: For purposes of this Agreement, "extraction" or "extract" shall include diversion of surface or subsurface water from the Basin by any method; and "year" shall mean water year (October 1 to September 30). C. Section 16 shall be deleted entirely and replaced with the following new Section 16: Binding Effect, This Agreement shall be binding upon full execution by or on behalf of all parties hereto. 2. Except as specifically amended herein, the 1995 Agreement and all its terms and conditions shall remain in full force and effect. 3. Each representative affixing his or her signature below thereby warrants and represents that he or she has the full legal authority to bind his or her respective party to all of the terms, conditions and provisions of this Agreement, and that no further approvals or consents are necessary from his or her respective party in connection therewith. 4. This Amendment to Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Amendment to 1995 Agreement Page 4 IN WITNESS WHEREOF, the Authority has caused this Amendment to Agreement to be executed by the Chairman of the Board of Directors and attested by the Secretary thereof, the District has caused this Amendment to Agreement to be executed by its President of the Board of Directors, and attested to by its Secretary, and the City has caused this Amendment to Agreement to be executed by its Mayor and Chair of the City Council, and attested to by its Clerk, effective the date first written above. Attest: Secretary "Authority" SAN JUAN BASIN AUTHORITY By: _ Name: Title: John Schatz President, Board of Directors San Juan Basin Authority 27500 La Paz Road Laguna Niguel, CA. 92656-3489 Phone: (714) 448-4055 Facsimile: (714) 831-5651 Attest: Secretary APPROVED BY: Michele A. Staples Amendment to 1995 Agreement Page 5 "District" CAPISTRANO VALLEY WATER DISTRICT By: Name: Gil Jones Title: President, Board of Directors Capistrano Valley Water District 32450 Paseo Adelanto San Juan Capistrano, CA 92675 Phone: (714) 493-1515 Facsimile: (714) 493-3955 Attest: Secretary APPROVED BY: John Shaw, City Attorney c: nva: 1:5 5:030698: cmd: amen dag.036 Amendment to 1995 Agreement Page 6 f,Cit,,, CITY OF SAN JUAN CAPISTRANO By: _ Name: Title: Gil Jones Mayor City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone: (714) 493-1515 Facsimile: (714) 493-3955 E 32400 PASEO ADEIANTO SAN JUAN CAPISTRANO, CA 92675 (714)493-1171 (714) 493-1053 (FAX) Jaime anlo o o��uo nuul,." � 1961 1776 March 13, 1998 Mr. Ed Anton, Chief State Water Resources Control Board Division of Water Rights 901 "P" Street P.O. Box 2000 Sacramento, California 95812-2000 MEMEBEFS OF 7HE CITY COUNCIL COLLENE CAMPBELL JOHN GREINER WYATT HART GILJONES DAVID SWERDLIN CITY MANAGER GEORGESCARBOROUGH Re: Request for Priority of Application Filed By Capistrano Valley Water District/City of San Juan Capistrano (Reference Application Nos. 30123, 30171, 30337, and 30637) Dear Mr. Anton: This letter is jointly submitted on behalf of the San Juan Basin Authority ("SJBA"), Capistrano Beach Water District ("CBWD"), Capistrano Valley Water District ("CVWD"), and the City of San Juan Capistrano ("City"). CVWD and the City have filed an as yet unnumbered application to appropriate their current and projected groundwater supplies (2,900 acre feet annually ("afa") and 425 afa, respectively) from the San Juan Creek, Trabuco Creek, and their tributaries (collectively, the "San Juan Basin") located in Orange County, California. SJBA and CBWD each have previously filed applications to appropriate waters of the San Juan Basin (application numbers 30123 and 30337, respectively). By letter dated January 15, 1998, CVWD and the City requested that their water right application be given priority over all other applications pending on the San Juan Basin. By agreement dated November 21, 1995, a copy of which is enclosed, SJBA agreed that it will operate its project in a manner that does not impair CVWD's or the City's extraction of water up to 2,900 afa and 425 afa, respectively. That agreement further provides that SJBA may pump all or a portion of these amounts whenever CVWD and/or the City are not doing so. The environmental analysis prepared for the SJBA project evaluates ;;e'„; JSE capA21t298a.mas 3� San Juan Capistrano: Preserving the Past to Enhance the FwLire Mr. Ed Anton, Chief March 13, 1998 Page 2 and mitigates the environmental impacts of the project assuming groundwater production totalling 3,325 afa by CVWD and the City. By agreement dated March 1, 1998 (copy enclosed), CBWD likewise agreed to operate its project in a manner that does not impair CVWD's or the City's extraction of water up to 2,900 afa and 425 afa, respectively. The enclosed agreements eliminate any potential adversity among the three applications and effectively reserve to CVWD and the City the groundwater supplies set forth in their water right application. CVWD and the City withdraw their request for priority over applications 30123 and 30337 on condition that, consistent with the provisions of the enclosed agreements, the current and projected San Juan Basin groundwater supplies relied upon by CVWD and the City are not considered water which is available for appropriation in connection with application nos. 30123 or 30337. We will be submitting proposed permit terms to accomplish this, and look forward to your response after you have received those terms. Sincerely, SAN JUAN BASIN AUTHORITY By: John Schatz Chairman of the Board CAPISTRANO BEACH WATER DISTRICT By: Ross Capenter Chairman of the Board [signatures continued on the next page] cap\21t298a.mas 0 Mr. Ed Anton, Chief March 13, 1998 Page 3 CAPISTRANO CAPISTRANO VALLEY WATER cap\21t298a.mas Works Director made an oral report. It was moved by Direc art, seconded by Director Greiner and unanimously carried to approve the San Juan Basin Aut Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement; a , authorize the Chairman to sign the letter to the State Water Resources Control Board requestm ithdrawal of the District's and City's requested priority over all other applications pending on t ire P-Juaan Basin, 2. ADOPTION OF RESOLUTION SUPPORTING THE MEMBERSHIP OF CAPISTRANO BEACH WATER DISTRICT IN THE SAN JUAN BASIN AUTHORITY AND THE RATIFICATION OF THE PROTEST SETTLEMENT AGREEMENT BETWEEN SAN JUAN BASIN AUTHORITY AND Written Communications: Report dated March 24, 1998, from the Public Works Director, advising that while the Capistrano Beach Water District was one of the founding members of the San Juan Basin Authority in 1971, the District had withdrawn from the San Juan Basin Authority in 1987. The Capistrano Beach Water District had asked to rejoin the San Juan Basin Authority and a Resolution of support was forwarded for consideration. The Report further advised that the San Juan Basin Authority had filed an application with the State Water Resources Control Board to appropriate water rights for their demineralization project, that application had been protested by the Capistrano Beach Water District. The Capistrano Beach Water District subsequently filed an application with the State Board for a similar project; their application was protested by the San Juan Basin Authority. The Report forwarded a protest settlement agreement between the Basin Authority and the Capistrano Beach Water District for ratification by the Basin Authority Members. The Agreement provided that the Capistrano Beach Water District would participate in Basin Management, known as Project Committee No. 10, and the General Fund only. The Capistrano Beach Water District demineralization project will be separate from the Basin Authority's project and the allocation of water from the Basin Authority project will not include the Capistrano Beach Water District. The Public Works Director made an oral report. Sunoortine Membershin in Authoritv/Rafitvinia Protest -Settlement Aereement: It was moved by Director Hart, seconded by Director Greiner that the following Resolution supporting the Capistrano Beach Water District membership in the San Juan Basin Authority be adopted and that the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District be ratified: CVWD Minutes -2- 3/24/98 I. AUTHORITY - A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CAPISTRANO VALLEY WATER DISTRICT, ORANGE COUNTY, AUTHORIZING AN ADDENDUM TO THE JOINT EXERCISE OF POWERS AGREEMENT CREATING THE SAN JUAN BASIN AUTHORITY, APPROVING CAPISTRANO BEACH WATER DISTRICT AS A MEMBER OF THE AUTHORITY The motion carried by the following vote: AYES: Directors Greiner, Hart, Campbell and Chairman Jones NOES: None ABSTAIN: None ABSENT: Director Swerdlin There be' no further business before the Board, the meeting was adjourned at 4:35 p.m., to the next regular meng date of Tuesday, May 5, 1998 p.m at 5:30 p.m., in the City Council Chamber. ATTEST: GIL-JONES, CHAIRMAN CVWD Minutes Respectfully submitted, (zz/ z _ . /CHERYL✓✓.I�— • 9 W CLERK OF I :•'' • -3- 3/24/98 0 0 AGENDA ITEM March 24, 1998 TO: George Scarborough, General Manager FROM: Amy Amirani, Public Works Director SUBJECT: Consideration of Resolution Supporting the Membership of Capistrano Beach Water District in the San Juan Basin Authority and the Ratification of the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District RECOMMENDATION By motion, 1. Adopt a Resolution Supporting Capistrano Beach Water District Becoming a Member of the San Juan Basin Authority. 2. Ratify the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District SITUATION Capistrano Beach Water District (CBWD) was one of the founding members of the San Juan Basin Authority (SJBA) in 1971 along with Capistrano Valley Water District and Santa Margarita Water District. In 1987, CBWD withdrew from the Authority. CBWD has now requested to rejoin SJBA. CBWD will participate in Project Committee No. 10 (PC -10, Basin Management) and the General Fund only. Their demineralization project will be considered separate from the SJBA project. The allocation of water from the SJBA project will not include CBWD. Presented for your consideration is a Resolution supporting the membership of Capistrano Beach Water District in the San Juan Basin Authority. Staff recommends adoption of this resolution. In 1992, SJBA filed an application with the State Water Resources Control Board to appropriate water rights for their demineralization project. CBWD was among those who protested the SJBA application. CBWD also has an application before the State Board for their similar project within the San Juan Basin. A protest settlement agreement has been negotiated between SJBA and CBWD. A copy of the agreement is enclosed for your consideration. As a SJBA member, the Board is urged to ratify this agreement in support of the District's representative to the Authority's action approving the agreement. The participation of CBWD in the management of the Basin (PC -10) is a vital part of the Protest Settlement Agreement between SJBA and CBWD since one project has a major impact on the other and entire basin. The rights of CVWD and the City are preserved in SJBA's agreements with both CBWD, CVWD and the City. (2v vvb FOR CITY COUivCIL AGEA� C cZ 0 0 AGENDA ITEM March 24, 1998 Page 2 NOTIFICATION Capistrano Beach Water District Post Office Box 2008 Capistrano Beach, CA 92675 San Juan Basin Authority c/o Moulton Niguel Water District 27500 La Paz Road Laguna Niguel, CA 92656 COMMISSIONBOARD REVIEW, RECOMMENDATIONS None. FINANCIAL CONSIDERATIONS None. ALTERNATE ACTION 1. a. Adopt a Resolution Supporting Capistrano Beach Water District Becoming a Member of the San Juan Basin Authority. b. Ratify the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District. 2. a. Deny adoption of a Resolution Supporting Capistrano Beach Water District Becoming a Member of the San Juan Basin Authority. b. Oppose the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District. 3. Request additional information from staff. RECOMMENDATION By motion, 1. Adopt a Resolution Supporting Capistrano Beach Water District Becoming a Member of the San Juan Basin Authority. 2. Ratify the Protest Settlement Agreement Between San Juan Basin Authority and Capistrano Beach Water District AGENDA ITEM March 24, 1998 Page 3 Respectfully submitted, Cts � Amy Amirani Public Works Director Attachments: Resolution 0 Prepared by, Robert W. Clark District Engineer Protest Settlement Agreement between San Juan Basin Authority and Capistrano Beach Water District pAeng\agncy\sjba\mbrshprs. doc 0 0 RESOLUTION NO. CVWD 98-3-24-1 1 h j 1 C,1 L A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CAPISTRANO VALLEY WATER DISTRICT, ORANGE COUNTY, AUTHORIZING AN ADDENDUM TO THE JOINT EXERCISE OF POWERS AGREEMENT CREATING THE SAN JUAN BASIN AUTHORITY, APPROVING CAPISTRANO BEACH WATER DISTRICT AS A MEMBER OF THE AUTHORITY WHEREAS, the Capistrano Valley Water District (the "District"), the Santa Margarita Water District and the Moulton Niguel Water District are the present members of the San Juan Basin Authority (the "Authority") created by the "Joint Exercise of Powers Agreement Creating the San Juan Basin Authority, Orange County, California" dated as of the 22nd day of November, 1971 (the "Agreement"), and, WHEREAS, the Capistrano Beach Water District has requested approval to become a member of the Authority and of Project Committee No. 10; and, WHEREAS, pursuant to Section 38 of the Agreement, additional public entities may become members of the Authority upon such terms and conditions as provided by the Board of Directors of the Authority and the unanimous consent of each existing member of the Authority; and, WHEREAS, the Board of Directors of the Authority has recommended that Capistrano Beach Water District become a member of the Authority. NOW, THEREFORE, the Board of Directors of the Capistrano Valley Water District DOES HEREBY RESOLVE, DETERMINE and ORDER as follows: SECTION 1. That Capistrano Beach Water District is approved as an additional member of the San Juan Basin Authority, said membership to be evidenced by a written addendum to the Agreement in the form attached hereto as Exhibit A to be executed by the Chairman of the Board of Directors of the District on behalf of the District. SECTION 2. The Secretary of the District is authorized and directed to submit a copy of this Resolution to the Authority. PASSED, APPROVED, AND ADOPTED this 24th day of March, 1998. rGIL JONES, C� ATTEST: CLERK OF TffE BOARD -1- STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, CHERYL JOHNSON, Clerk of the Board of the Capistrano Valley Water District, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. CVWD 98-3-24-1 adopted by the Capistrano Valley Water District Board of Directors at a regular meeting thereof held on the 24th day of March, 1998, by the following vote: AYES: Directors Greiner, Hart, Campbell and Chairman Jones NOES: None ABSTAIN: None ABSENT: Director Swerdlin (SEAL) CHERYL JOUNSON, CLERK OF THE BOARD -2- ADDENDUM NO. 3 JOINT EXERCISE OF POWERS AGREEMENT CREATING THE SAN JUAN BASIN AUTHORITY, ORANGE COUNTY, CALIFORNIA The Capistrano Beach Water District has been approved by each of the undersigned present members of the San Juan Basin Authority to be a new member of the Authority effective on the date that the last of the present members has executed this Addendum No. 3. DATED: DATED: DATED: 3/24/98 APPROVED BY: Fe t G PRESENT MEMBERS MOULTON NIGUEL WATER DISTRICT Un CAPISTRANO VALLEY WATER DISTRICT By Gil Jones; Chairman SANTA MARGARITA WATER DISTRICT M CAPISTRANO BEACH WATER DISTRICT M 1 s 1 n 1. rzzorr.0000 A-1 PROTEST SETTLEMENT AGREEMENT BETWEEN SAN JUAN BASIN AUTHORITY AND CAPISTRANO BEACH WATER DISTRICT Effective this 1 st day of March, 1998, the San Juan Basin Authority ( "Authority") and Capistrano Beach Water District ("CBWD") agree as follows. RECITALS A. In 1992, the Authority filed Application No. 30123 with the State Water Resources Control Board (SWRCB) to appropriate water from the San Juan Basin. CBWD protested the Authority's Water Right Application. B. In 1994, CBWD filed Application No. 30337 with the SWRCB to appropriate water from the San Juan Basin. The Authority protested the CBWD Water Right Application. C. It is the desire of the Authority to construct facilities to extract and where necessary treat water from the San Juan Basin and to put the water to beneficial use within member agency jurisdictions. Likewise, it is the desire of the CBWD to construct and operate a separate well and treatment plant to extract and treat water from the San Juan Basin and put the water to beneficial use within the CBWD. D. It is recognized and agreed by the parties that it is mutually desirable to agree to a mechanism for the management of their respective extractions from the Basin, and for 0 • S]BA-CBWD Protest Settlement Agreement Page 2 the Authority to act as "Basin Manager" for the purpose of defining and managing the water supply available to CBWD and Authority from the Basin on an ongoing basis. The Authority has created a committee now known as "Project Committee No. 10" for that purpose'. The parties envision that CBWD may become a member of the Authority and will participate in that committee. The Authority recommends that, upon full execution of this Agreement, CBWD's- membership be expeditiously approved by each existing member of the Authority subject to the terms and conditions of this Agreement. Pending CBWD's joinder of the Authority, the parties agree that CBWD should participate in that committee as a non-voting member. E. It is intended that the parties' facilities will be separate and apart from each other, and that CBWD shall remain exclusively responsible for all aspects of its well and water treatment facilities and operations. The parties do not intend that CBWD will have any interest in the Authority's Water Right or Project. F. As between the Authority and CBWD, the Authority envisions division of water pursuant to Applications 30123 and 30337 in accordance with the parties' respective water demands or acreage in the Basin watershed, or similar objective formula. This would not provide to CBWD the volume of water it desires. Solely and on condition of settling the parties' dispute, avoiding further expense and hearings, and reaching 1 The parties understand and acknowledge that the nature, scope and composition of committees may change from time to time. 0 SJBA-CBWD Protest Settlement Agreement Page 3 agreement on Basin management and other terms and conditions as described herein, CBWD is accorded a significantly enhanced volume of water as described below. F. The parties acknowledge that the quantity of water in the Basin at any given time is subject to pumping by persons other than the parties hereto, and the quantity and quality of water flowing in and through the Basin may be diminished by drought conditions, others' pumping, and other events beyond the control of the parties hereto, including the Authority as Basin Manager. By this Agreement the parties seek to inaugurate a more cohesive and coordinated approach to the use of Basin water resources, commencing with their own diversions. The parties now desire to resolve their differences and therefore agree as follows. AGREEMENT 1. Definitions a. "Artificial Replenishment" shall mean all effective and feasible methods of replenishing or charging the Basin other than natural replenishment or recharge, including but not limited to the importation and spreading of supplemental water (for example, imported water purchased directly or indirectly from the Metropolitan Water District of Southern California), and in -lieu recharge. b. "Authority" shall mean the San Juan Basin Authority as it may be constituted from time to time, and the Authority's assignees and/or successors in interest. In the event that CBWD becomes a member of the Authority, "Authority" as used in this Agreement shall 0 • SJBA-CBWD Protest Settlement Agreement Page 4 exclude CBWD for purposes of the Authority's rights and interests in (i) the Authority Water Right (now adminstered by Project Committee No. 7), including without limitation its percentage of Available Safe Yield, and (ii) the Authority Project (now administered by Project Committee No. 4), as the Authority Water Right and Project may change from time to time. CBWD shall not obtain any interest in the Authority's Water Right or Project and the Authority shall not obtain any interest in CBWD's Water Right or Project. C. "Authority Water Right" shall mean the Authority's water right application no. 30123, and any permit and/or license issued pursuant thereto, in an amount not to exceed 12,500 acre feet per year, as they may be amended from time to time. The application alone is referred to as Authority Application or Application 30123. d. "Available Safe Yield." (i) Available Safe Yield shall mean native and imported subsurface waters of the San Juan Basin which CBWD and Authority are entitled to divert consistent with Basin sustained safe yield principles, as determined by the Basin Manager in a manner consistent with the Authority and CBWD Water Rights. Available Safe Yield would not include, for example, imported or reclaimed water intentionally spread or otherwise added to the Basin for purposes of recharge and recapture; recognized diversions from the Basin by parties other than the CBWD and Authority; amounts giving rise to an obligation or need to artificially replenish the Basin; amounts which could cause significant adverse environmental or similar impacts; or amounts or methods of diversion which would be inconsistent with contractual or S]BA-CBWD Protest Settlement Agreement Page 5 other obligations' of the Authority as they may change from time to time; all of the foregoing as determined by the Basin Manager. (ij) The amount and parameters of Available Safe Yield, the amounts the parties may divert to maximize beneficial use of the Basin, and any obligation to provide artificial replenishment, shall be as determined by the Basin Manager from time to time, consistent with subparagraph (i) above. e. "Basin" shall mean the San Juan Basin, consisting of the Upper San Juan, Middle San Juan, Lower San Juan and Trabuco subbasins as generally illustrated in Exhibit A. f. "Basin Management" shall mean the Basin Manager's activities and functions, including Basin monitoring and water right administration, as determined by the Authority. "Basin Manager" shall be the Authority. g. "CBWD Water Right" shall mean CBWD's water right application no. 30337, and any permit andfor license issued pursuant thereto, in an amount not to exceed 1300 acre z Such obligations include, but are not limited to, the joint exercise of powers agreement creating the San Juan Basin Authority dated November 22, 1971 ("JPA Agreement"), the San Juan Basin Projects Agreement, the agreement dated November 21, 1995 among the Authority, the Capistrano Valley Water District, and the City of San Juan Capistrano (the "1995 Agreement"), and the agreement between the Authority and San Juan Golf, Inc. dated March 15, 1997. �J LI SJBA-CBWD Protest Settlement Agreement Page 6 feet per year, as they may be amended from time to time. The application alone is referred to as CBWD Application or Application 30337. h. "Divert" or "diversion" shall include all methods of producing water from the Basin, whether by pumping, extraction, or otherwise. "Governmental Approvals" shall mean any applicable authorizations, approvals, permits, licenses, consents, waivers, exceptions, judgments, rulings, decisions, filings, registrations and other requirements of any federal, state or local government or governmental agency, including the courts and arbitrators. j. "Member" shall mean the members of the Authority, as they may change from time to time, excluding CBWD should it become a member to the extent provided in subparagraph l .b above and paragraphs 6 and 15 below. k. "Person" shall mean any natural person, a body corporate, a partnership, a trust, a joint venture, an unincorporated association, a government or governmental authority or agency or any other entity. I. "Project" shall mean all aspects of each party's project or projects to divert and use water from the Basin pursuant to their respective Water Rights, including but not limited to real property interests, facilities, works, improvements, design, construction, repair, maintenance, operation, and all other conduct employed to divert, treat, deliver, convey, distribute, use, sell, and otherwise handle such water. The Authority's project is the same as SJBA-CBWD Protest Settlement Agreement Page 7 the "Project" referred to in the 1995 Agreement, as amended. The CBWD's project is as described in CBWD's Proposed Demonstration Groundwater Treatment Facility. M. "Year" shall mean the water year, that 12 month period from October 1 to September 30 annually. 2. Dismissal of Protests. Immediately upon full execution of this Agreement: A. Authority shall in writing dismiss its protest against CBWD's Application. B. CBWD shall in writing dismiss its protest against the Authority's Application. C. The parties shall jointly submit their settlement conditions for inclusion in the permits and/or licenses issued by the SWRCB, to the extent appropriate. This Agreement shall be valid and binding whether included in the SWRCB permits and/or licenses in whole, in part, or not at all. 3. Allocation of Water. The Basin Manager shall annually determine the amounts of Available Safe Yield which can be diverted pursuant to the CBWD and SJBA Water Rights in a manner consistent with the definition of Available Safe Yield in Paragraph 1 above and this Paragraph 3. The parties each agree to comply with conditions applicable to, and to not exceed, the amounts so determined. A. Base Allocations. (i) CBWD Base Allocation. Twenty percent (20%) of Available Safe Yield shall be allocated to CBWD, up to a maximum of 1300 acre feet per year. u S)BA-CBWD Protest Settlement Agreement Page 8 (ii) Authority Base Allocation. Eighty percent (80%) of Available Safe Yield or the difference between 3A(i) above and total Available Safe Yield, whichever is greater, shall be allocated to the Authority, up to a maximum of 12,500 acre feet per year. B. Use of Unused Base Allocation. Whenever either party will use less than its Base Allocation in any given year, the other party may divert the unused amount during that same year, consistent with any conditions prescribed by the Basin Manager and all applicable Governmental Approvals. C. Obligation to Artificially Replenish. CBWD agrees that when and to the extent that artificial replenishment of the Basin is required due to, or in order to enable, CBWD's diversions from the Basin, CBWD shall accomplish that replenishment in a timely manner, all as determined by the Basin Manager. CBWD and the Authority shall work cooperatively to seek to avoid diversions that will result in the need for such artificial replenishment by CBWD except as requested by or without advance notice to CBWD, however, CBWD understands and agrees that such need may arise for reasons outside of the Authority's control. 4. Similar Terms and Conditions. Both Water Rights and Projects shall be subject to and operated under similar terms and conditions so as to avoid significant adverse impacts to the Basin, the environment, and other legal users of water, except where differences in the parties' respective Projects make modifications to a pardcular term or condition necessary or 9 • SJBA-CBWD Protest Settlement Agreement Page 9 appropriate, or a particular term or condition inapplicable, as determined by the Authority (and/or the SWRCB). 5. Basin Manager and Management. A. CBWD agrees that the Authority is entitled to act as Basin Manager and to perform the functions of Basin Management, as determined by the Authority. The Authority has created a Project Committee 10 ("the Basin Management Committee") which shall perform the Basin Manager and Management functions subject to the review of the Authority Board of Directors and in a manner consistent with this and other applicable agreements (including but not limited to those agreements referenced in subparagraph l .d above), and all applicable laws. B. In order to develop an adequate and effective program of Basin monitoring, Available Safe Yield allocation, and other functions as determined appropriate by the Basin Manager, the Basin Manager shall have broad discretion in the making of Basin management decisions. The Basin Manager shall develop a program of Basin Management including a Basin monitoring plan, further operating criteria, and an operating agreement, if appropriate. These shall be reviewed and approved by the Basin Management Committee and the Authority Board of Directors. C. CBWD shall fully cooperate on an ongoing basis by complying with the Basin Manager and Basin Management determinations and decisions, and by supplying the Authority 0 r SJBA-CBWD Protest Settlement Agreement Page 10 with all information that CBWD has developed or acquired regarding water production by CBWD, water production by other pumpers in the Basin, Basin hydrology, and any other factors that may affect or inform Basin Management, and implementation of this Agreement. D. The Basin Manager may employ or retain such administrative, engineering, geologic, accounting, hydrologic, legal or other specialized personnel and consultants as may be deemed appropriate in carrying out its powers pursuant to this Agreement. The Basin Manager shall maintain records for purposes of allocation of costs of such services consistent with this and other applicable agreements. E. The parties recognize and acknowledge that as of the effective date of this Agreement, the Basin Manager has limited authority over extractions from the Basin, and that the SWRCB has jurisdiction to the extent provided by law. 6. CBWD Membership in AuthoriV. The Authority shall recommend to each of its existing Members that, upon full execution of this Agreement, CBWD's proposed membership in the Authority be expeditiously approved by those Members in a manner consistent with the JPA Agreement, subject to the terms and conditions of and provided that CBWD remains in full compliance with this Agreement. In the event that CBWD joins the Authority, it shall be entitled to participate as a Member thereof in the same manner and subject to the same terms and conditions as other Members, except as otherwise provided by and subject to the terms and conditions of this Agreement. CBWD acknowledges and agrees that only Members 0 • S]BA-CBWD Protest Settlement Agreement Page 11 participating in a particular committee are entitled to vote on matters within that committee's purview, as provided by the JPA Agreement. CBWD agrees that since it will not have any interest in the Authority's Water Right or Project and will not be a member of the Committees on those matters (now Project Committees 4 and 7), CBWD will not be entitled to be present at or to participate in those committee meetings or closed sessions regarding those matters, nor will it be entitled to request or obtain information or records on those matters which the Authority determines to be confidential pursuant to the Public Records Act. 7. Cost Sharing, A. CBWD agrees to pay its proportionate share of the costs, expenses, and fees ("Costs") of the Basin Management Committee and the Basin Manager along with participating members of the Authority, in accordance with formula(e) adopted by the Basin Manager. Cost allocation may be accomplished on an annual, average, or other equitable basis, as determined by the Basin Manager. Pending adoption of Cost allocation formula(e) and at any time that no formula(e) are in effect, these Costs shall be divided such that CBWD pays twenty percent (20%) and the Authority eighty percent (80%). Costs attributable exclusively to either the CBWD's Water Right or Project, or to the Authority's Water Right or Project, as determined by the Basin Manager, shall be paid promptly and in full by that party. SJBA-CBWD Protest Settlement Agreement Page 12 B. CBWD shall pay other costs of Membership in the Authority and of participation in any other committee of the Authority it may join in the same manner and under the same terms and conditions as other Members of the Authority, except as otherwise provided herein. 8. Compliance With Water Rights. Each party shall comply with all terms, conditions and laws applicable to its Water Right. CBWD agrees that it shall not divert from the Basin any amount greater than 1300 acre feet per year (or the amount permitted by the CBWD Water Right, if less), will not interfere with current and projected water use by the Capistrano Valley Water District or the City of San Juan Capistrano in amounts totalling 2900 acre feet per year and 425 acre feet per year, respectively, and shall indemnify, hold harmless and defend the Authority from any claims, actions, losses or damages arising from or relating to alleged or actual violations of the CBWD Water Right terms or conditions, Governmental Approvals and laws applicable thereto, or enforcement thereof. 9. Water Available for Appropriation. ation. The parties have concluded that there is adequate water available to issue permits in the amounts of 1300 acre feet per year pursuant to CBWD's Application and 12,500 acre feet per year pursuant to the Authority's Application. The parties agree to cooperate in providing the hydrologic and Basin management information they have developed to the SWRCB. 0 E S]BA-CBWD Protest Settlement Agreement Page 13 10. Steri uladon re: Ground Water Classification. CBWD stipulates that the ground water to be diverted per the parties' two applications is subject to SWRCB jurisdiction. 11. Stearate an Independent Projects. The parties agree that their respective Projects shall be separate and independent from each other, except as specifically provided herein. Each party shall be exclusively responsible for obtaining and complying with all Governmental Approvals for their respective Projects, including but not limited to those pertaining to water rights and quality, and for mitigating any environmental or other impacts caused by their respective Projects. 12. Indemnification. A. CBWD shall defend, indemnify, and hold harmless the Authority, its directors, members, officers, agents and employees from all claims, suits, actions, liabilities or losses of any kind, arising out of or in connection with CBWD's Water Right or Project or both, including but not limited to the CBWD's (1) construction, reconstruction, maintenance, repair, or operation of facilities for diversion, treatment, control, conveyance or distribution of water from the Basin pursuant to the CBWD Water Right, or (2) CBWD's use or disposal of such water or use or disposal made by any person receiving such water from CBWD. B. Authority shall defend, indemnify and hold harmless CBWD, its directors, officers, agents and employees from all claims, suits, actions, liabilities or losses of any kind, arising out of or in connection with Authority's Water Right or Project or both, including but u S]BA-CBWD Protest Settlement Agreement Page 14 not limited to the Authority's (1) construction, reconstruction, maintenance, repair, or operation of facilities for diversion, treatment, control, conveyance or distribution of water from the Basin pursuant to the Authority Water Right, or (2) Authority's use or disposal of such water or use or disposal made by any person receiving such water from Authority. This subparagraph 12B expressly excludes all Authority conduct as Basin Manager. 13. Term and Termination. A. This Agreement shall become effective on the date first written above upon occurrence of both of the following: (1) full execution of this Agreement and (2) unanimous approval of CBWD's joinder of the Authority by all current Members of the Authority. B. This Agreement shall terminate if any of the following events occurs: (1) no permit is issued by the SWRCB pursuant to Application no. 30337; (ii) no permit is issued by the SWRCB pursuant to Application no. 30123; or (iii) the Water Right of one or both parties becomes null or void for any reason. if CBWD has become or becomes a Member of the Authority, that membership shall not be terminated by this subparagraph 13.13, and, the provisions of this Agreement pertaining to CBWD's membership shall remain in full force and effect. C. The provisions of this Agreement shall survive CBWD's joinder of the Authority. n U•t • . • • i_11 that the Authority is no longer able or willing to perform the Basin Management function, as 0 • SJBA-CBWD Protest Settlement Agreement Page 15 determined in the Authority's sole discretion, and the parties do not agree in writing on any alternative to achieve the annual allocations of water described in Paragraph 3 hereof, the parties shall thereafter each be accorded a fixed volume of water which they will be entitled to divert pursuant to their respective Water Rights. The fixed volumes shall be based upon the average Available Safe Yield over the immediately preceding ten years3, as determined by the Basin Manager: (i) twenty percent (20%) to CBWD, up to a maximum of 1300 acre feet per year; and (ii) eighty percent (80%) to the Authority or the difference between the average Available Safe Yield and subparagraph 14(i) above, whichever is greater, up to a maximum of 12,500 acre feet per year. The Authority shall provide written notice of such determination and the resulting quantification of water rights to CBWD. The notice and resulting fixed quantification shall take effect sixty days after the date of such notice, at which time this Agreement shall be appropriately conformed. 15. No CBWD Interest in Authority Water Right or Project. CBWD has and shall have no interest whatsoever in the Authority Water Right or the Authority Project including 3 if Basin Manager determinations of Available Safe Yield for the immediately preceding ten years are not available, then the maximum number of such Available Safe Yield determinations shall be used. 0 • S)BA-CBWD Protest Settlement Agreement Page 16 without limitation Project Water and Facilities, and CBWD hereby knowingly waives and disclaims any and all claims thereto. 16. Authority Members. This Agreement governs the parties' rights to divert water from the Basin pursuant to the Authority and the CBWD Water Rights. This Agreement shall not affect or prejudice the rights of individual Authority Members, excluding CBWD should it join the Authority. CBWD agrees that it will not in any way object to or oppose the Authority's Water Rights or Project as they may change from time to time. The Authority agrees that it will not object to or oppose the CBWD Water Rights or Project as they may change from time to time provided that CBWD is in full compliance with this Agreement, and provided that CBWD does not divert or seek to divert water at any location at or upstream of Stonehill Boulevard, as that road is located and aligned as of the date of this Agreement (see Exhibit B hereto.) 17. Specific Performance. Each party's obligations under this Agreement are unique. The parties each acknowledge that, if any parry should default in performance of the duties and obligations imposed by this Agreement, it would be extremely impracticable to measure the resulting damages. Accordingly, the nondefaulting party, in addition to any other available rights or remedies, may sue in equity for specific performance, and the parties each expressly waive the defense that a remedy in damages will be adequate. E 0 SJBA-CBWD Protest Settlement Agreement Page 17 18. Dispute Resolution. In the event of any dispute arising out of those portions of this Agreement involving monitoring, hydrology, or other technical (as opposed to legal) issue, the parties agree to promptly submit the dispute to binding arbitration in accordance with Code of Civil Procedure section 1280 et sea. Such arbitration shall be conducted by two civil engineers with expertise in hydrology or other technically competent persons and one attorney familiar with California water rights law. The parties shall each choose one of the technical arbitrators, and the two technical arbitrators shall jointly choose the attorney. Legal issues shall be submitted to binding arbitration in the same manner, except that the arbitration shall be conducted by two attomeys familiar with California water rights law and one civil engineer with expertise as described above. The parties shall each choose one of the attorneys, and the two attorneys shall jointly choose the civil engineer. No person shall be chosen as arbitrator if he or she has represented or worked for one of the parties within ten years prior to the date the dispute arose. 19. Successors in Interest and Assignment. This Agreement shall be binding upon full execution by or on behalf of all parties hereto. This Agreement shall inure to the benefit of and be binding upon successors and assigns of the parties. The Authority and CBWD shall retain their respective rights to assign, transfer, convey or otherwise alienate or encumber their respective Water Rights or the right to use water pursuant thereto. Neither Paragraph 3B nor any other provision of this Agreement shall be used to in any way interfere or conflict with SJBA-CBWD Protest Settlement Agreement Page 18 such alienability provided that the successor(s) in interest remain in full compliance with this Agreement, subject to the following. In the event that the Authority assigns or conveys all or a portion of its Water Right or Project, that assignee or other successor -in -interest ("Assignee") shall not be subject to any of the Authority's obligations as Basin Manager unless both the Authority and the Assignee specifically so agree. The Authority shall continue to function as Basin Manager, subject to the termination provisions of Paragraph 14. 20. Captions, Interpretation and Further Actions. Paragraph, titles, or captions contained herein are inserted as a matter of convenience and for reference, and shall not be considered in construing this document. This Agreement and each provision hereof shall be interpreted as if drafted equally by both parties. The parties agree to take all reasonable actions necessary or convenient to carry out the purposes and intent of this Agreement. 21. Waiver. Any of the terms or conditions of this Agreement may be waived at anytime by the parties entitled to the benefits thereof, but no such waiver shall effect or impair the right of the waiving party to require observance, performance, or satisfaction either of that term or condition as it applies on a subsequent occasion or of any other term or condition hereof. 22. Severance Clause. If any portion of this Agreement is found to be in conflict with any other provision of law, the particular term or terms of the Agreement found to be in SJBA-CBWD Protest Settlement Agreement Paee 19 conflict shall be void unless amended to comply with all appropriate local, state, and federal laws. 23. Entire Agreement. This document constitutes the entire agreement between the parties, all oral agreements being merged herein, and supersedes all prior representations. 24. Amendment. The provisions of this Agreement may be modified at any time by agreement of the parties. Any such agreement hereafter made shall be ineffective to modify this Settlement Agreement in any respect unless in writing and signed by the parties against whom enforcement of the modifications or discharge is sought. 25. Notices. Any notice or notices provided for in this Agreement must be in writing and may be personally served upon the parry or parties to receive such notice either within or out of the State of California, or may be deposited in the United States Mail, postage fully prepaid, registered or certified mail, return receipt requested, and addressed to the party or parties to be served at the addresses indicated after their signatures below. Notices may also be sent via facsimile at the facsimile numbers indicated after their signatures below. Each parry shall provide written notice of any changes to their address or facsimile number. 26. Author! . Each representative affixing his or her signature below thereby warrants and represents that he or she has the full legal authority to bind his or her respective party to all of the terms, conditions and provisions of this Agreement, and that no further approvals or consents are necessary from his or her respective party in connection therewith. 0 S)BA-CBWD Protest Settlement Agreement Page 20 27. Execution in Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The parties hereto execute this Agreement as of the date first above written. Attest: Secretary Attest: Secretary "CBWD° CAPISTRANO BEACH WATER DISTRICT By: _ Name: Title: Ross Carpenter President, Board of Directors Capistrano Beach Water District 25752 Victoria Boulevard Capistrano Beach, CA. 92624 Phone: (714) 248-3940 Facsimile: (714) 496-4283 "Authority" SAN JUAN BASIN AUTHORITY By: Name: John Schatz Title: President, Board of Directors San Juan Basin Authority 27500 La Paz Road Laguna Niguel, CA. 92656-3489 Phone: (714) 448-4055 Facsimile: (714) 831-5651 Am w z j z a m J O O I1 '7 1'111 IIII1�1�11 ca ir + +1111111111 W ,1, + X111111111 3 + + 1111111/ 0 + } + +,111111111111 I + + + + �11111111�1�111 11111111/ 111111111 111 11 1 1 1 1 1! I I 1 1 1 1 1 1 1 1 1 1 1 1 I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 I I I I I I I I I I I I I I I I I 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 I I I I I I I I I I I I I I I I 1111111111 1 11111111 11111 I Em qr H/w1E'Y/oEl—\,Ca'I.MIE9 M" yyy s°W R Yv r Y �� 3 � Sr Y ���n fELa1EX6l� OP�WV Ff.0 ry S / 07) 6 \„r= b. U��^�x[x C Q;, Es µ � —anRr I iV a� rw �'�• EO GO ..;� y ti F`i I r 3 frosV. v.wE i . NrR - ,�,,d Eo p +rwm j`mr JW HILLS <}y wan - r } 7 W.. �<, �g�l . �; t•\� GLLE OELCAW _...- buu J G SE A< QE uFR ofl [4F g I .a I" vLHVEHLo W=,N e 'ry d`�° p�, fGr� cu,WR•�-.d,r' .3`y i°a,w�8 SEE wR iwfNf fn 4t4 , 1. g ter: , NCj. �D;i N 41.E 4r ° °nimcw'Fe u � �� wrr COnHIX1Agi OM1 eP � �/� �� fAfi� f RYfWifP fN °NFO- d ° : yet Y" u� i wfr oc"�iorn w rrn 8 4 4.�\Y' aYNgfnS Acu GnY rAR P� l �` R u`Lvrr xx 1� �y �' � ual5i "D 4 Y V`si� CAMIXO 4 �S RI .,y p[ps4ab �'s rEAa� 3e A °•° m t o n. G L r,_ •- n>.MWLVA TARN/ va' 4} hN 4 UDR 4` lyg �/ aA ,V411 Yy GLLE a hu's ro10 nLUNENY ,X Pat c Y t ' SfnTE' - C M S !E OOHENY P,gCrF� STATE wits n v BEACH- Sl ` ` 4 © 1996 Thomas Bros. Maps Prc 1 1 - ft ♦ "1 � "ryd EfUt aux .Gw,•(.Ma �; Jo rIXEe 4 £ � r ' $AnAR1TAX �N ;G. r� 1 .ic+sr Yxur CE87FNF P CS' ` CJq Es . aw •I s uua''a 4�, Not to Scale N to San Juan Basin Authority EXHIBIT B 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (714) 493-1171 (714) 493-1053 (FAX) March 26, 1998 Mr. Don Martinson San Juan Basin Authority c/o Moulton Niguel Water District 27500 La Paz Road Laguna Niguel, California 92656 ISTAuMllfl 1961 1776 Re: Amendment to 1995Amendment to 1995 Awe Dear Mr. Martinson: MEMBERS OE THE CITY CCUNaL COLLENE CAMPBELL JOHN GREINER WYATT HART GIL JONES DAVID SWERDLIN CITY MANAGER GEORGESCARBOROUGM At their meeting of March 24, 1998, the City Council of the City of San Juan Capistrano and the Capistrano Valley Water District Board of Directors took the following actions: (1) Approved an Agreement entitled "San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano Amendment to Agreement" which binds the terms of the November 25, 1995 Agreement on all San Juan Basin Authority members. (2) Authorized the signing of a letter to the State Water Resources Control Board asking that the City's and District's request for priority over all other water applications pending on the San Juan Basin be withdrawn. (3) Adopted a Resolution supporting the membership of the Capistrano Beach Water District in the San Juan Basin Authority; and, (4) Ratified the Protest Settlement Agreement between the San Juan Basin Authority and the Capistrano Beach Water District. Two original copies of the Amendment Agreement, signed by the City and the Water District are enclosed. Upon signature by the San Juan Basin Authority, please return a fully -signed copy to the City Clerk's office. Also enclosed are a copy of the letter to the State Water Resources Control Board and Resolution No. 98-3-24-1. DRUG USE Is AS SE San Juan Capistrano: Preserving the Past to Enhance the Future 0 0 Don Martinson -2- March 26, 1998 The Resolution contained Exhibit A for signature by the present member agencies. I have enclosed an additional Exhibit Awith an original signature of the Water District Chairman. If you need any additional information from the City or the District, please feel free to contact Bob Clark, District Engineer, at 443-4307. Very truly yours, l / /I-' Cheryl Johnson City Clerk Enclosures cc: Capistrano Beach Water District (with enclosures) Public Works Director (with enclosures) Bob Clark (with enclosures) Georg'Ann Scott (with enclosures) 32400 PASEO AOEL NTO SAN JUAN CAPISTRANO, CA 92675 (714) 493-1171 (714) 493-1053 (FAX) March 13, 1998 Mr. Ed Anton, Chief State Water Resources Control Board Division of Water Rights 901 "P" Street P.O. Box 2000 Sacramento, California 95812-2000 MEMEBERS OF THE CITY COUNCIL COLLENE CAMPBELL JOHN GREINER WYATT HART GILJONES DAVID SWERDLIN CITY MANAGER GEORGESCARBOROUGH Re: Request for Priority of Application Filed By Capistrano Valley Water District/City of San Juan Capistrano (Reference Application Nos. 30123, 30171, 30337, and 30637) Dear Mr. Anton: This letter is jointly submitted on behalf of the San Juan Basin Authority ("SJBA"), Capistrano Beach Water District ("CBWD"), Capistrano Valley Water District ("CVWD"), and the City of San Juan Capistrano ("City"). CVWD and the City have filed an as yet unnumbered application to appropriate their current and projected groundwater supplies (2,900 acre feet annually ("afa") and 425 afa, respectively) from the San Juan Creek, Trabuco Creek, and their tributaries (collectively, the "San Juan Basin") located in Orange County, California. SJBA and CBWD each have previously filed applications to appropriate waters of the San Juan Basin (application numbers 30123 and 30337, respectively). By letter dated January 15, 1998, CVWD and the City requested that their water right application be given priority over all other applications pending on the San Juan Basin. By agreement dated November 21, 1995, a copy of which is enclosed, SJBA agreed that it will operate its project in a manner that does not impair CVWD's or the City's extraction of water up to 2,900 afa and 425 afa, respectively. That agreement further provides that SJBA may pump all or a portion of these amounts whenever CVWD and/or the City are not doing so. The environmental analysis prepared for the SJBA project evaluates CRUG 1LISE 6S ,Yp221t298a.mas qg $E San Juan Capistrano: Presenting the Past to Enhance the Future 0 • Mr. Ed Anton, Chief March 13, 1998 Page 2 and mitigates the environmental impacts of the project assuming groundwater production totalling 3,325 afa by CVWD and the City. By agreement dated March 1, 1998 (copy enclosed), CBWD likewise agreed to operate its project in a manner that does not impair CVWD's or the City's extraction of water up to 2,900 afa and 425 afa, respectively. The enclosed agreements eliminate any potential adversity among the three applications and effectively reserve to CVWD and the City the groundwater supplies set forth in their water right application. CVWD and the City withdraw their request for priority over applications 30123 and 30337 on condition that, consistent with the provisions of the enclosed agreements, the current and projected San Juan Basin groundwater supplies relied upon by CVWD and the City are not considered water which is available for appropriation in connection with application nos. 30123 or 30337. We will be submitting proposed permit terms to accomplish this, and look forward to your response after you have received those terms. Sincerely, SAN JUAN BASIN AUTHORITY By: ohn Schat Chairman f the Board CAPISTRANO BEACH WATER DISTRICT gy;� -- Ross—eapenter - 1�k�1g5 (i. Cr(tii*wn (signatures continued on the next page] cap\21t298a.mas • 0 Mr. Ed Anton, Chief March 13, 1998 Page 3 CITY OF SAN JUAN CAPISTRANO By: / it 'Plies Mayor Mayor CAPISTRANO VALLEY WATEFj%DISTRICT By: ,Gil Jones ,Chairman of the Board ,ap\21t298a.ma, RESOLUTION NO. CRA 95-12-5-1. DEPOSIT A1.Q INVESTMENT OF AGENCY FUNDS AND AUTHORIZING I NAT IRES - A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, DELEGATING TO THE AGENCY FINANCE OFFICER AUTHORITY TO DEPOSIT AGENCY FUNDS AND TO INVEST AND REINVEST AGENCY FUNDS, AUTHORIZING SIGNATURES, AND REPEALING RESOLUTION NO. CRA 94-12-6-1 The motion carried by the following vote: AYES: Directors Campbell, Hart, Jones, Nash, and Chairman Swerdlin NOES: None ABSENT: None — 1. AGREEMENT B T N SAN JUAN BASIN AUTHORITY- CAPISTRANO VALLEY WATER DISTRICT. AND CITY OF SAN JUN CAPISTRANO RELATIVE TO WATER RIGHTS AND GROUNDWATER PRODUCT FACILITIES (600.50) Written Communication: Report dated December 5, 1995, from Council Member Jones, recommending that the proposed Agreement with the San Juan Basin Authority, the Capistrano Valley Water District, and the City be approved to protect the District's and the City's water rights and groundwater production facilities from potential impacts of the proposed SJBA Desalination Plant. The Agreement would ensure that the proposed pumping from SJBA wells will not impact the District's production of 2,900 acre feet or the City's production of 425 acre feet from the groundwater basin. Approval of Agreement Re: Water Rights and Groundwater Product Facilities: It was moved by Council Member Nash, seconded by Council Member Swerdlin, and unanimously carried that the Agreement with the San Juan Basin Authority, the Capistrano Valley Water District, and the City be approved to protect the District's and the City's water rights and groundwater production facilities from potential impacts of the proposed SJBA Desalination Plant. The Mayor was authorized to execute the Agreement on behalf of the City. City Council Mmutes -15- 12/5195 cbg AGENDA ITEM December 5, 1995 TO: Honorable Mayor and Members of the City Council FROM: Gil Jones, City Council Member SUBJECT: San Juan Basin Authority, Capistrano Valley Waster District, City of San Juan Capistrano Agreement By motion, approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the District. The attached agreement has been negotiated between the San Juan Basin Authority (SJBA), the District and the City to protect the District's and City's water rights and groundwater production facilities from potential impacts of the proposed SJBA Desalination Plant. The basic terms of the agreement are to make sure that the proposed pumping from SJBA wells will not impact the District's production of 2900 acre feet or the City's production of 425 acre feet from the groundwater basin. The agreement provides remedies such as cessation of pumping by SJBA, or providing replacement water if our facilities are impacted. The agreement also provides that the District and City will not object to or challenge the SJBA water rights application, and will withdraw the protest to this application upon full execution of the Agreement. The SJBA Board of Directors approved this agreement on November 21, 1995. The agreement needs to be approved by the City before December 31, 1995, in order for the District and City to comply with a deadline established by the State Water Resources Control Board. There is no direct financial impact associated with approving this agreement. The amount of groundwater produced by the District and City under the terms of the agreement provide a savings of approximately $1.0 million per year as compared with purchasing a similar amount of water from MWD. The agreement of SJBA not to challenge this production of groundwater is very important. Not applicable. FOR CITY COUNCIL AGEN6 0 t Agenda Item -2- December 5, 1995 1. Approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the District. 2. Request additional information from staff. By motion, approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the District. Respectfully submitted, .�5"`.0` Gil Jones City Council Member SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO AGREEMENT This Agreement is made this 21st day of November, 1995, by and among the San Juan Basin Authority (the "Authority") , the Capistrano Valley Water District (the "District"), and the City of San Juan Capistrano (the "City"). RECITALS A. On November 22, 1971, the Authority was formed pursuant to Article I, Chapter 5, Division 7, Title 1 of Government C:. -'e of the State of California (Government Code 6500 et seq.) and established for the purpose of jointly funding certain water system facilities and water conservation projects necessary to conserve and make water resources available to the areas within the San Juan Creek Watershed serviced by the members of the Authority. B. The present members of the Authority are Capistrano Valley Water District, Moulton Niguel Water District, Santa Margarita Water District and the Trabuco Canyon Water District (hereinafter sometimes referred to as the "Members"). The Members excluding Capistrano Valley Water District are hereinafter sometimes referred to as the "Other Members." C. Capistrano Valley Water District, a member of the Authority, serves water to the City of San Juan Capistrano and has been appointed by the City to act on its behalf in matters relating to water supply. The Board of Directors of the District is comprised exclusively of members of the City Council. E SJBA/CVWD/City Agreement Page 2 D. On February 5, 1991, the Authority and the Members entered into the "San Juan Basin Authority Projects Agreement" (the "Projects Agreement") to set forth a process by which the Authority may select and complete those projects and water system facilities necessary to carry out the purpose of the Authority. E. Pursuant to the Projects Agreement, the Members established several Project Committees to study and implement a water management and use program within the San Juan Creek Basin and tributaries (the "Basin"). The Authority made a study of the feasibility of extracting water from the Basin, treating that water to improve its quality as appropriate, and supplying the resulting water to the Members and other water users (the "San Juan Basin Ground Water Management and Facility Plan", as revised). The Authority intends to proceed with the Project based upon this study and subsequent hydrologic, environmental and other work (the "Project"). The Members of the Authority participating in the Project are those which are members of Project Committee No. 4. The parties to this Agreement intend that only those Members of the Authority which are members of Project Committee No. 4 shall be bound by this Agreement. F. To assure itself of a dependable water supply for the Project, the Authority has taken several steps, including the filing of an application dated April 3, 1992 (Application No. 30123) to appropriate water from the Basin with the State Water Resources Control Board, Division of Water Rights (hereinafter the "State Board"). G. The District filed a protest to the Authority's application based upon its contention that the City has pueblo rights, which rights the District exercises and administers on behalf of the City. On March 28, 1995, the State Board, acting by and through the Chief r SJBA/CVWD/City Agreement Page 3 of the Division of Water Rights, did not accept that protest. The District subsequently filed a request for reconsideration of this decision. On June 22, 1995, the State Board granted the District's request solely for purposes of allowing time to reach this and other agreements. H. The Projects Agreement sets forth each Member's entitlement to existing water from the Basin relative to the Project. The District's entitlement as described in Attachment No. 5 of the Projects Agreement is 2,900 acre feet per year of water. I. The District extracts potable and nonpotable water for municipal and agricultural purposes from the first six wells listed on Exhibit B. The District serves the City as well as other users within the District. The City's water service is provided entirely by the District, except for the City's extraction of water for agricultural/greenbelt irrigation from the last three wells and well locations listed on Exhibit B and graphically shown on Exhibit C hereto. J. The parties acknowledge that the quantity of water in the Basin at any given time is subject to pumping by parties other than the parties hereto, and the quantity and quality of water flowing in and into the Basin may be diminished by drought conditions, others' pumping, and other events beyond the control of the parties hereto. K. The purpose of this Agreement is to clarify the parties' agreement with respect to the extraction of water from the Basin for the District and City relative to the Authority's extraction of water from the Basin for the Project. 0 0 SJBA/CVWD/City Agreement Page 4 NOW, THEREFORE, the parties agree as follows: Section 1. District -City Relationship. The City and District have chosen to have the District act on behalf of the City in certain matters relating to water supply, including the operation of certain of the wells, delivery of water supply and other respects. The District and City each claim separate entitlements to water and use separate facilities, notwithstanding the District's role as agent for the City in certain respects. The District and City are solely responsible for the division of facility use and water supply as between them, and for all aspects and ramifications of their relationship, and agree to indemnify and defend the Authority for any disputes or other issues to the extent caused by or arising as a result of the relationship between the City and District, including but not limited to the allocation of water and facilities. Both City and District are directly responsible to Authority for compliance with their obligations pursuant to this Agreement. Where District alone is referenced herein, District shall act on behalf of and bind the City. District and City represent that District is duly authorized to do so. Section 2. District/City Annual Entitlement. The Authority recognizes and agrees that it will not challenge the District's extraction from the Basin of up to 2,900 acre feet of water each year and the City's extraction from the Basin of up to 425 acre feet of water each year (hereafter collectively "Annual Entitlement" or separately "Annual Entitlement Allocation"). Of the District's 2900 acre feet, 1500 acre feet is considered potable water from the existing District wells known as Rosenbaum #1, Rosenbaum #2, Hollywood #2A, and 1400 acre feet is considered non -potable water from existing District wells known as Well No 4, ("CVWD #4"), Well No. 5 ("CVWD # 5") and 0 0 SJBA/CVWD/City Agreement Page 5 Mission Street Well. Of the City's 425 acre feet, 150 acre feet are from the Kinoshita SJBA #2 Well, 250 acre feet are from the City's Northern Open Space well, and 25 acre feet are from the Torson Well. These wells are used by or for the City for agricultural and green belt irrigation, all nonpotable uses. The District or City may relocate or add wells in order to continue to extract up to their Annual Entitlement provided that such change has no adverse effect upon the Project. Any such changes will be reflected by modification to Exhibit B hereto, subject to the mutual agreement of the Authority, the City and the District, which agreement shall not be unreasonably withheld. For purposes of this Agreement, "extraction" or "extract" shall include diversion of surface or subsurface water from the Basin by any method; and "year" shall mean fiscal year (July 1 - June 30). Section 3. Annual Entitlement Cap and Protections. Subject to the terms and conditions set forth in this Agreement, the Authority agrees that it will not operate the Project in a manner that will infringe upon the District's or City's extraction of water in accordance with -Exhibit B for reasonable and beneficial use up to the Annual Entitlement. District and City each agree that they will not individually or collectively extract water from the Basin in excess of the Annual Entitlement. The Annual Entitlement and Annual Entitlement Allocation shall be measured based upon the fiscal year and shall not carry over from year to year. 0 SJBA/CV WD/City Agreement Page 6 Section 4. Determination of Project Impact and Remedy. A. Remedy for Project Caused Impacts: Quantity. In the event that (i) either the District or the City is not able to extract its Annual Entitlement Allocation to meet its needs either in accordance with the production quantities outlined on Exhibit B (B-1), or by operating the City's and District's then -existing Basin extraction facilities in any combination or manner that would achieve a production quantity to meet then existing needs without incurring substantial additional expense; and (ii) the water levels in any of the above referenced District or City wells are less than the applicable Trigger Level(s) stated in Exhibit B (B-2) hereto; and (iii) the Authority Project is extracting water from the Basin at a location which could adversely impact the supply of water to the affected well(s); and (iv) the District or City demonstrate by reasonably clear evidence the foregoing three factors and that the Project extractions of water from the Basin, and not other causes including but not limited to the extractions of other pumpers, are causing all or a specified percentage of the interference, the burden shall shift to the Authority for rebuttal.' The District or City shall provide written documentation of the facts supporting each of the foregoing four factors including a description of the changed conditions and all relevant data. The District or City shall also provide any other existing information the Authority reasonably requests. In the event that the aforementioned demonstration by District or City is successfully made, the Authority shall have the opportunity to rebut the evidence and conclusions submitted by the District or City, or any of the above listed factors prerequisite thereto. Regardless of which entity provides the notice, District and City shall cooperate fully in providing information regarding District and City V This shifting of the burden shall not apply to the Rosenbaum #2 well (see Exhibit B). 0 0 STBA/CVWD/City Agreement Page 7 facilities, operations, and other information requested by the Authority. In the event that the District or City demonstrate that each of the factors prerequisite to shifting the burden to the Authority is satisfied, and the Authority does not rebut any of them, and on written request of District or City, the Authority shall reduce or cease Project pumping to the extent necessary to alleviate the demonstrated Project interference with the District or City well(s). In the alternative, the Authority shall have the option of selecting and undertaking one or more of the following steps to remedy the impacts to the extent caused by the Project: (1) provide a replacement supply of water to the District, or City via the District, of a like quality and quantity equal to the quantity which the District or City would be extracting but for Project interference (not to exceed the appropriate Annual Entitlement Allocation nor to exceed the quantity of Project water then available); (2) pay any substantial additional expense of operating the District and/or City Basin extraction facilities in a manner which will alleviate the Project caused water supply impact; or (3) take other measures to alleviate the impact to the extent caused by Project operation as reasonably agreed by the Authority and the District. B. Remedy for Project Caused Impacts: Quality. In the event that (i) the water extracted by the District or City in accordance with the production quantities set forth in Exhibit B (B-1) does not meet the water quality parameters stated in Exhibit B (B-2); and (ii) the District or City or both cannot obtain water of sufficient quality for delivery to meet its needs by operating the City's and District's then -existing Basin extraction facilities in any 0 Ll SIBA/CVWD/City Agreement Page 8 combination or manner that would achieve a production quantity and quality to meet then existing needs without incurring substantial additional expense; and (iii) the Authority Project is extracting water from the Basin at a location which could adversely impact the supply of water to the affected well(s); and (iv) the District or City demonstrate by reasonably clear evidence the foregoing three factors and that Project extractions of water from the Basin, and not other causes including but not limited to the extractions of other pumpers, are causing all or a specified percentage of the decline in water quality of the District's or City's extractions, the burden shall shift to the Authority for rebuttal.' The District or City shall provide written documentation of the facts supporting each of the foregoing four factors including a description of the changed conditions and all relevant data. The District or City shall also provide any other existing information the Authority reasonably requests. In the event that the aforementioned demonstration is successfully made, the Authority shall have the opportunity to rebut the evidence and conclusions submitted by the District or City, or to rebut any of the above listed factors prerequisite thereto. Regardless of which entity provides the notice, District and City shall cooperate fully in providing information regarding their facilities, operations, and other information requested by Authority. In the event that the District or City demonstrate that each of the factors prerequisite to shifting the burden to the Authority is satisfied, and the Authority does not rebut any of them, and on written request of District or City, the Authority shall reduce or cease Project pumping to the extent necessary to alleviate the demonstrated Project interference with the water quality of the District or City '/ This shifting of the burden shall not apply to the Rosenbaum #2 well (see Exhibit B). 0 L SJBA/CVWD/City Agreement Page 9 well(s). In the alternative, the Authority shall have the option of selecting and undertaking one or more of the following steps to remedy the impacts to the extent caused by the Project: (1) provide a replacement supply of water to the District or City via the District, either in an amount equal to that rendered unusable by the Project caused interference and of a quality which satisfies the Exhibit B (B-2) criteria, or water of sufficient quality to blend with the District and City's other sources of supply to accomplish the same (not to exceed the appropriate Annual Entitlement Allocation, nor to exce-- the quantity of Project water then available); or (2) pay any substantial additional expense of operating the District and/or City Basin extraction facilities in a manner which will alleviate the water quality impact; or (3) take other measures to remedy the impacts to the extent caused by Project operation as reasonably agreed by the Authority and the District. The parties recognize that the District's or City's water quality may vary depending, among other things, upon the quality of imported water the District or City introduces into its system, which may reduce the water quality referenced herein. This shall be the subject of an objective determination in the event that a valid request for remedy is made as provided above. C. Accelerated Remedy to Avoid Injury. After District or City satisfaction of the section 4A or 4B requirements, and where necessary to avoid imminent significant adverse impacts to District or City, the Authority shall undertake the appropriate remedy pursuant to section 4A or B above as soon as possible, notwithstanding any dispute or question regarding whether the i i SIBA/CVWD/City Agreement Page 10 Project is causing the impact. The Authority may provide this accelerated remedy even if the Authority disputes the adequacy of the City or District section 4A or 4B demonstration or otherwise disputes that the Project caused or is causing the alleged interference, and shall remain fully entitled to resolve the causation issue. District and City shall use this accelerated remedy provision solely to address impacts caused by Project operations. D. Reimbursement. In the event that the District or City do not or have not made the requisite section 4A or 4B demonstration, or Authority either rebuts the presumption that the Project is causing the impacts, or makes the appropriate showing as referenced in Section 4A or 4B above, and the Authority has already provided or commenced to provide any remedy pursuant to Section 4A and/or 4B, the entity or entities which provided notice pursuant to Section 4A and/or 4B (District and/or City) shall promptly reimburse the Authority in kind or in cash, or a combination thereof, as requested by the Authority. The Authority shall not require in kind reimbursement if the District and City reasonably demonstrate that all of the water available to them is then needed for reasonable and beneficial use by their customers. Reimbursement shall cover the full replacement costs for any water provided by the Authority to District or City and the costs of so providing water, or for the water supply impacts and costs incurred to or by the Authority if Project pumping is reduced or ceased or if any other form of remedy is provided, and for any other consequential costs or losses to the Authority. If the Authority's rebuttal or showing is that a portion rather than all of the remedy was unjustified, the reimbursement shall be appropriately adjusted. 0 0 SJBA/CV WD/City Agreement Page 11 Section 5. In Lieu Water. Where the Authority elects to provide water to the District or to the City via the District pursuant to subsection 4A(1) or 413(1) hereof (hereafter "In Lieu Water"), the provisions of this section shall apply. In Lieu Water excludes Project Water provided to the District by the Authority for any reason other than described in Section 4 above, and is subject to the limitations stated in subsections 4A(1) and 413(1). A. Nonpotable or Reclaimed Water. The Authority may use nonpotable or reclaimed water as In Lieu Water to remedy Project impacts on the District's or City's nonpotable water supplies, which supplies are identified in section 2 above. The Authority may not provide reclaimed water as In Lieu Water if doing so would prevent use of the water in the same manner as would have occurred had the affected well water been used instead of the In Lieu Water. Any delivery of nonpotable or reclaimed water as In Lieu Water must be made by the Authority to the District's then -existing nonpotable delivery system, if feasible to provide adequate In Lieu Water consistent with this Agreement. Upon request by the Authority, the parties shall take all actions necessary or convenient to enable the Authority to take measures to permit such delivery of nonpotable or reclaimed water as In Lieu Water, including the acquisition of any necessary regulatory approvals. B. Sources. The Authority may use Project or other sources of water as In Lieu Water. District and City shall fully cooperate to the extent necessary to make other sources of water available for use as In Lieu Water, and shall be reimbursed for any additional costs incurred to District or City thereby. 9 0 SJBA/CVWD/City Agreement Page U C. Point of Delivery. Except for nonpotable or reclaimed water, In Lieu Water to be provided to the District or to the City pursuant to this Agreement may be delivered to the District at any of the following points of delivery: (1) the point of delivery for Project Water to be delivered to the District pursuant to the Project, which is anticipated to be located in the 425 pressure zone near the intersection of Ortega Highway and Rancho Viejo Road, or other Project point of delivery mutually agreed to by the Authority and the District ("Project point of delivery"); (2) any then existing point of delivery intertie between the Metropolitan Water District of Southern California system and the District system ("MWD point of delivery") upon mutual agreement between the parties and provided that capacity for such delivery is available in the MWD and District systems, or (3) another point of delivery as mutually agreed by the Authority and District ("Alternative point of delivery"). Delivery of reclaimed or nonpotable water as In Lieu Water shall be made to the District's then -existing nonpotable delivery system. D. Costs. The costs for delivery of In Lieu Water to the District or City at the Project Point of Delivery and the costs for delivery of non potable or reclaimed water as In Lieu Water shall be borne by the Authority, except as follows. The District or City shall be responsible to reimburse the Authority in an amount equal to the avoided costs of pumping, conveyance, treatment, and related costs. Costs associated with delivery of In Lieu Water to the Alternative point of delivery or the MWD point of delivery shall be allocated by agreement between the Authority and the District, which agreement shall not be unreasonably withheld. E. Schedule for Delivery. In Lieu Water shall be provided to the District or to the City via the District, on a schedule to be provided by the District to the Authority. The schedule 0 0 SJBA/CVWD/City Agreement Page 13 shall take into account the needs of the party for whom the water is being delivered and Authority's operating capability. Where accelerated delivery is necessary to avoid impacts as described in subsection 4C above, the Authority shall initiate accelerated delivery consistent therewith. Section 6. Responsibility for Well Facilities. The District and the City shall be responsible for maintaining, repairing, replacing and operating all of the wells referenced on Exhibit B, related facilities, and all replacement wells and related facilities, such that they are in good condition, and for keeping records thereof. Should the District or City fail to do so, such failure shall eliminate or offset any obligation of the Authority to provide any remedy pursuant to Section 4 hereof to the extent that such failure contributes to or causes the impairment of the City's or the District's water supply or quality. Section 7. Responsibilities for Delivery and Distribution of Water. Neither the Authority, the other Members, nor any of their officers, agents or employees shall be liable for the control, carriage, handling, use, disposal, or distribution of (1) water extracted by District or City or (2) Project Water or In Lieu Water delivered by Authority in accordance with the provisions of this Agreement after any such water has reached the point of delivery; nor for claims or damages of any nature whatsoever, including but not limited to property damage, personal injury or death, arising out of or connected with the control, carriage, handling, use, disposal or distribution of any such water beyond said point of delivery; and District or City hereby agree to jointly and severally defend, indemnify and hold SJBA/CVWD/City Agreement Page 14 harmless the Authority, the other Members and their officers, agents, and employees, from any such damages or claims of damages. Section 8. Project Monitoring Plan. The Authority agrees that within one year of the effective date of this Agreement it.will develop a Project monitoring plan. The basic outline of such a program, which shall be subject to modification by the Authority from time to time, is attached in Exhibit A hereto. The District and City shall cooperate on an ongoing basis by supplying the Authority with all information that either or both have developed or acquired regarding water production by District, Other Members, City, and other pumpers in the Basin. Section 9. Authority Use of Unused Annual Entitlement A. The Authority shall be entitled to use for Project purposes any portion of the Annual Entitlement not to be used in any given year by District and/or City. District and City shall provide written notice to the Authority on or before April 1 of each year stating the quantities they each reasonably intend to use during the following fiscal year in acre-feet (the sum of those quantities is referred to as "9A Quantity"). The Authority shall be entitled to extract the difference between the Annual Entitlement and the 9A Quantity (that difference is referred to hereafter as "Q"), at times determined by Authority during the following fiscal year. B. In the event that the actual quantities extracted by the City and District during the above referenced fiscal year are forecast to vary from the 9A Quantity, the City or District shall provide written notification to the Authority as soon as possible setting forth the revised quantities provided that the sum of the revised quantities ("913 Quantity") shall not exceed the Annual Entitlement, and the Authority shall accordingly increase or reduce Q (`Revised Q"). 0 0 SJBA/CVWD/City Agreement Page 15 If pursuant to this section the Authority has already extracted an amount greater than Revised Q, the Authority shall cease extraction pursuant to this section; the City and/or District shall extract water as necessary to supply then -existing demands to the extent consistent with this Agreement and not to exceed the 9B Quantity; and the City and/or District shall increase the 9A Quantity for the immediately following fiscal year by an amount equal to the difference between Q and Revised Q, however neither the District nor the City shall extract the amount of the increase (the difference between Q and Revised Q) during the immediately following fiscal year, but shall leave that amount in the Basin. C. City and District will cooperate with and support Authority's acquisition of a permit and/or license from the Water Board to divert water in accordance with this section. Section 10. Authority Project Water Protections. Subject to the terms and conditions of this Agreement, the District and City each agree that they will not individually or collectively, directly or indirectly object to or infringe upon the Authority's production of water for Project purposes. Section 11. SJBA Facility Use Agreement The City contracted for the right to use certain Authority facilities, including but not limited to the "Kinoshita SJBA #2 Well" referenced in Section 2 and Exhibit B hereof, pursuant to an agreement entitled Agreement for the Use of San Juan Basin Authority Wells, Pipelines and Production Facilities dated May 19, 1992 ("1992 Agreement"). The terms of that Agreement are incorporated herein by reference. In the event of a conflict, the terms of the 1992 Agreement shall prevail. SJBA/CVWD/City Agreement Page 16 Section 12. Imported Water. The Authority shall have the right to pump any return flow tributary to the Basin from water imported by the Authority, the District, the City, Other Members, and otherwise as authorized by law, and any water imported by the Authority and stored in the Basin. Notwithstanding the foregoing, this section shall not impair or diminish the Annual Entitlement or the Annual Allocation Entitlements of the City or District. In the event that any Authority Member participating in the Project refuses to, or provides only a partial consent to Project extraction of the return flow from water imported by that Member which return flow is tributary to the Basin, and that Member's rights or responsibilities are not proportionately reflected in other Project related agreements, this section shall not apply and the parties shall renegotiate this section in good faith to ensure that the District's dedication of imported water return flow is proportional to its rights and responsibilities regarding the Project as reflected in this and other Project related agreements. Section 13. Withdrawal of Protest and Objection. The District and City agree that they will not, in any way, object to or challenge application to appropriate no. 30123 or any permit or license issued pursuant thereto, and will take all actions necessary to withdraw the petition for reconsideration and to dismiss the protest to said application, or other action as appropriate to effectively dismiss the protest as requested by the Authority, promptly upon full execution of this Agreement. Section 14. CEQA Compliance. The District, the City, and Authority agree that the terms and conditions of this Agreement are contingent on the satisfactory completion by the Authority of all requirements pursuant to the 0 0 SJBA/CVWD/City Agreement Page 17 California Environmental Quality Act (Public Resources Code Section 21000 et. seq.) for the Project. Section 15. Water Rights. This Agreement does not address and is not intended to affect the asserted claims of historical water rights by the District and City, except that District and City shall not assert any water rights claims against water rights application 30123, or any permit or license issued pursuant thereto, or against the Project in any manner, provided that this Agreement is in full force and effect. Section 16. Members of the Authority Bound. The rights and obligations pursuant to this Agreement shall inhere to the benefit of and be binding upon only those Members of the Authority who are members of Project Committee No. 4 to the extent and in accordance with their respective percentages of interest in the Project. In the event that the mechanism for participation in the Project is changed from membership in Project Committee No. 4 to another mechanism, this provision shall be accordingly amended. Section 17. Notices. All notices, payments, transmittals of documentation and other writings required or permitted to be delivered or transmitted to any of the parties under this Agreement shall be in writing, personally served or deposited in a United States mail depository, first class postage prepaid, and addressed as follows: • C7 SJBaCV WD/City Agreement Page 18 If to District (for District and/or City) : Capistrano Valley Water District 32450 Paseo Adelanto San Juan Capistrano, CA 92675 Ann. General Manager If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn. City Manager If to Authority: San Juan Basin Authority 30290 Rancho Viejo Road San Juan Capistrano, CA 92675 Arta. General Manager or such other address or person as any party may direct to the other in writing. Except where service is by personal delivery or by registered or certified mail, return receipt requested, service of any instrument or writing shall be deemed completed forty-eight (48) hours after deposit in a United States mail depository. Section 18. Amendments. This Agreement may be amended at any time by agreement of all the parties set forth in writing, except insofar as any proposed amendments are in any way contrary to applicable law. Section 19. Assignment. No assignment or transfer of this Agreement or any part hereof, rights hereunder, or interest herein shall be valid unless and until it is approved by all parties to this agreement. E 0 SJBA/CV WD/City Agreement Page 19 Section 20. Dispute Resolution. In the event of any dispute arising out of those portions of this Agreement involving monitoring, water quality degradation, water quality or quantity restoration, availability of water, or other technical (as opposed to legal) issue, the parties agree to promptly submit the dispute to binding arbitration in accordance with Code of Civil Procedure section 1280 et seq. Such arbitration shall be conducted by two civil engineers with expertise in hydrology or other technically competent persons and one attorney familiar with California water rights law. The parties shall each choose one of the technical arbitrators, and the two technical arbitrators shall jointly choose the attorney. Legal issues shall be submitted to binding arbitration in the same manner, except that the arbitration shall be conducted by two attorneys familiar with California water rights law and one civil engineer with expertise as described above. Section 21. Authority. Each officer of Authority, District, and City affixing his or her signature below thereby warrants and represents that he or she has the full legal authority to bind his or her respective party to all of the terms, conditions and provisions of this Agreement, that his or her respective party has the full legal right, power, capacity and authority to enter into this Agreement and perform all of the obligations herein, and that no other approvals or consents are necessary from his or her respective party in connection therewith. Section 22. Waiver and Delay. No failure to exercise or delay in exercising any right, power or remedy accruing to either party on any breach or default of the other hereunder shall impair any such right, power or STBA/CVWD/City Agreement Page 20 remedy, or be construed as a waiver of any such breach or default, and no waiver of any single breach or default shall be construed as a waiver of any other breach or default theretofore or thereafter occurring. Section 23. Termination. This Agreement shall terminate in the event that (a) the Project is abandoned, which shall occur if the Authority or its successor affirms in writing that it is abandoning the Project or if the Project operations have commenced but cease for more than five (5) years and there are no plans to reactivate it; or (b) District or City cease or abandon their water use, which shall occur if the City or District affirm in writing that it is ceasing or abandoning use of that water, or if such water use has been ceased for whatever reason by final order of an administrative agency or court with jurisdiction. In the latter event the Authority's right to divert that water pursuant to Section 9 hereof shall survive. Section 24. Entire Agreement. This Agreement represents the entire understanding of the Authority, the City and the District as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Agreement. This Agreement shall be governed by the laws of the State of California and construed as if drafted by all parties hereto equally. This Agreement may not be modified, altered or amended except in writing signed by the Authority, the District, and the City. 0 0 SJBA/CVWD/City Agreement Page 21 Section 25. Successors In Interest. This Agreement, and all of the terms, conditions and provisions herein, shall inure to the benefit of, and be binding upon, the Authority, the District, the City, and their respective successors and assigns. IN WITNESS WHEREOF, the Authority has caused this Agreement to be executed by the Chairman of the Board of Directors and attested by the Secretary thereof, the District has caused this Agreement to be executed by its President of the Board of Directors, and attested to by its Secretary, and the City has caused this Agreement to be executed by its Mayor and Chair of the City Council, and attested to by its Clerk, effective the date first written above. SAN JUAN BASIN AUTHORITY ATTEST. ) � J /✓ retary CAPISTRANO VALLEY WATER-DMTRICT President._- , ATTEST: G wj-ro'7j� 1!11L7J=�� Approved by: �/li, Al• � (_ ar' OCG Michel A. Staples 171 0 SJBA/CVWD/City Agreement Page 22 CITY OF SAN JUAN CAPISTRANO Mayor ATTEST: APPROVED BY:, r ��L chard Denhalter, City Attorney lligf26 EXHIBIT A DRAFT PROJECT MONITORING PLAN The Authority shall annually prepare and adopt an annual report (herein the "Annual Report"). The Annual Report shall be finalized on or before April 1 of each year and shall be based on data for the preceding calendar year. The Authority shall have the authority to amend the Annual Report at any time it determines that amendment is necessary or desirable. The Annual Report shall describe the condition of the water resources within and affecting the Basin, proposing a Basin groundwater production and replenishment and/or direct imported water deliveries for the ensuing year and shall include, but not be limited to the following information: Quantity of water storage within the Basin and the relative change of water storage from the prior year(s). 2. Water quality conditions within the Basin and the relative change in such conditions from the prior year(s). 3. An accounting of the Basin water production, and to the extent possible other persons and entities producing water from the Basin. 4. An accounting of any and all imported water stored in the Basin during such year by Authority, including but not limited to the imported water storage by the Authority for purposes of banking and the conditions or circumstances under which such water was stored. An accounting of any other imported water delivered by the Authority directly to a member or as in lieu water to a Basin pumper. 6. An assessment of the extent to which the Authority's Project program of the immediately preceding year was implemented and quality and quantity goals achieved with regard to Basin water. A proposed Basin water management program for the ensuing year based upon recommended water quality and water level goals. The management program should include, but not be limited to the annual project yield and other Basin groundwater production goals for the Authority and estimates of other parties' production of Basin water. Basin water storage goals for the Authority should include banking goals and the amount and timing of any anticipated imported water deliveries. 0 0 .'N.. .CO.. ago ^ C v G fD < to Q c � � m O ^� O Q G LA pp, O O O N LA pU ola C N w a° S U 4 LL a n 8N LA S O O C LA vS7 8 O p 8 w 7 g $ g Ln 7C se S' ay S O N OTD b U fNA CA ►� A � O N S � U R MARCH 24, 1998 SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA The Sped Meeting of the City Council of the City of San Juan Capistrano, California was called to order by or Jones at 4:30 p.m. in the City Council Chamber. ROLL CALL: PRESENT: Gil Jones, Mayor John Greiner, Mayor pro tem Collette Campbell, Council Member (arrived at 4:33 p.m.) Wyatt Hart, Council Member ABS T: David M. Swerdlin, Council Member STAFF PRESENT: George Scar rough, City Manager; Cheryl Johnson, City Clerk; Cynthia L. Pendleton, Administrative Services ' ector; Amy Amirani, Public Works Director; Bob Clark, District Engineer. ORAL COMMUNICATIONS - None ADMINISTRATIVE ITEMS PUBLIC WORKS DIRECTOR 1. APPROVAL OF "SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO AMENDMENT TO AGREEMENT" - SAN JUAN CREEK BASIN WATER RIGHTS (6000.70) Written Communications: Report dated March 24, 1998, from the Public Works Director, advising that on November 21, 1995, the City, the Water District and the San Juan Basin Authority had signed an agreement designed to protect the City and District water rights and groundwater production facilities from potential impacts of the San Juan Basin Authority's proposed Desalination Plant, also known as Project Committee No. 4. At the time of approval, only the members of Project Committee No. 4 were bound by the agreement. Since that time the water rights situation had changed. It was recommended that all members of the San Juan Basin Authority should be bound by the November, 1995 agreement and the Report forwarded an Amendment to that Agreement. The Report further advised that the City and the District had requested that the State Regional Water Quality Control Board, Division of Water Rights, give the City/District application to appropriate their current and projected groundwater supplies (425 acre feet annually to, the City and 2,900 acre feet annually for the District) from the San Juan Creek, Trabuco Creek and their tributaries (identified as the San Juan Basin) priority over all other applications pending on the San Juan Basin. Assurances had been negotiated from the San Juan Basin Authority and the Capistrano Beach Water City Council Minutes -1- 3/24/98 • • District that the City's and the District's entitlements would be preserved; therefore, staff recommended the request for priority be withdrawn. The Public Works Director made an oral report. Approval of Agreement Amendment/Letter Withdrawing PrioriRequest: It was moved by Council Member Hart, seconded by Council Member Greiner and unanimously carried to approve the San Juan Basin Authority - Capistrano Valley Water District and City of San Juan Capistrano At.icndment to Agreement; and, to authorize the Mayor to sign the letter to the State Water Resources Control Board requesting the withdrawal of the City's and the District's requested priority over all other applications pending on the San Juan Basin. There being no fu business before the Council, the meeting was adjourned at 4:35 p.m. to the next regular meeting date Tuesday, April 7, 1998, at 5:30 p.m. in the City Council Chambers. Respectfully submitted, ATTEST: GIL JONES, CLERK City Council Minutes -2- 3/24/98 CaUEPA State Water Resources Control Board Division of Water Rights Mailing Address: P.O. Box 2000 Sacramento, CA 95812-2000 901 P Street Sacramento, CA 95814 (916) 657-1359 FAX (916) 657-1485 • APRIL is 096 1* �:.-. To: Attached Mailing List Pete Wilson Governor Ladies and Gentlemen: REQUEST FOR PRIORITY OF APPLICATION FILED BY CAPISTRANO VALLEY WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO — APPLICATIONS 30123, 30171, 30337 AND 30637 — SAN JUAN CREEK IN ORANGE COUNTY On March 13, 1998, the following entities issued a joint letter regarding processing of the applications noted above: San Juan Basin Authority (SJBA), Capistrano Beach Water District (CBWD), Capistrano Valley Water District (CVWD) and the City of San Juan Capistrano (City). The March 13 letter also served to transmit two agreements regarding application processing to the Division of Water Rights (Division). The first issue that is addressed is the relative priorities of the applications vis-a-vis one another. By letter dated January 15, 1998, CVWD and the City requested that their water right application be given priority over all other applications pending in the San Juan Basin. At this time, there are five pending applications. The applications are noted below: Application Number Applicant Quantity Purpose Of Use 30123 SJBA 17.26 cfs Municipal 30171 San Juan Hills Country Club 1.34 cfs Irrigation 30337 CVWD 4.0 cfs Municipal 30637 Rancho Mission Viejo 4.92 cfs Municipal X002087 CVWD and the City 1 5.0 cfs Municipal The March 13 letter withdraws the request for reversal of priority contingent on the condition that the 2,900 acre-feet per annum that CVWD plans to utilize under Application 30337 and the 425 afa that the City plans to utilize under X002087 is not considered water available for appropriation in connection with Applications 30123 or 30337. The letter states that the three entities will be submitting permit conditions to accomplish this. During an April 1, 1998 telephone conversation between Division staff person Katherine Mrowka and the City's attorney Ms. Michelle Staples, we learned that the parties no longer feel that specific permit conditions are needed to make unappropriated water available to serve the junior applicants. According to Ms. Staples, the Division can find that unappropriated water is available for these applicants on the basis of municipal preference (Water Code section 1460). Per Ms. Staples, the Division can utilize the Recycled Paper Our mission is to preserve and enhance the quality of California's water resources, and ZV4 /Llntl A, ensure their proper allocation and efficient use for the benefit of present and future generations. APR 2 0 1998 a -2- APRIL to 'i9bb municipal preference principle to exclude Applications 30171 and 30637 from its initial calculations regarding availability of water. Ms. Staples' opinion is that Application 30637 is not entitled to municipal preference since the applicant plans to provide water to municipalities, but is not a municipality. Actions taken pursuant to Water Code section 1460 serve to readjust priorities for water use among applicants, based upon municipal preference. Adjustment of the priorities is a matter requiring the approval of the State Water Resources Control Board (SWRCB). Furthermore, in order for the SWRCB to recognize any adjustment of priorities, there must be permit terms approved by the SWRCB incorporated into the permits. Private agreements regarding such matters serve an important role in resolving disputed issues; however, they do not take the place of approved permit conditions for the purpose of administering water right permits. Proposed permit terms are often developed by the applicant and protestants and can be used as a condition of protest withdrawal. In addition to making necessary findings on availability of unappropriated water, the classification of the groundwater basin underlying the stream system needs to be addressed. Division staff has previously expressed the opinion that use of these waters is subject to the permitting authority of the SWRCB. In order to provide opportunity for public comment and submittals on the classification issue, we intend to elevate this matter to the SWRCB for consideration at either a SWRCB workshop or hearing. You will receive advance notification of any proceeding the SWRCB initiates on these issues and allowed the opportunity to participate. If you require further assistance, I can be contacted at (916) 657-1359. Katherine Mrowka is the staff person presently assigned to this matter, and she can be contacted at (916) 657-1951. Sincerely, 161 EdN %&d C.Vnton, Chief Division of Water Rights Recycled Paper Our mission is to preserve and enhance the quality of California's water resources, and 0* ensure their proper allocation and efficient use for the benefit ofpresent and future generations. -3- APRIL io 19% Mr. Gil Jones, Mayor City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Mr. John Schatz, Chairman San Juan Basin Authority 30290 Rancho Viejo Road San Juan Capistrano, CA 92675 Mr. Douglas A. Erdman, Vice President Capistrano Beach Water District 25752 Victoria Boulevard Capistrano Beach, CA 92624 Mr. Gil Jones, Chairman Capistrano Valley Water District 32450 Paseo Adelanto San Juan Capistrano, CA 92675 Ms. Michele A. Staples Law Offices of Susan M. Trager 2100 S. E. Main Street, Suite 104 Irvine, CA 92614 Ms. Martha Lennihan Law Office of Martha Lennihan 455 Capitol Mall, Suite 300 Sacramento, CA 95814-4406 Recycled Paper Our mission is to preserve and enhance the quality of California's water resources, and Ca ensure their proper allocation and efficient use for the benefit ofpresent and future generations.