EXHIBIT 11-E
DRAFT (9/4/2014)
FINDINGS of
APPROVAL
CONSIDER
APPLICATION TO AMEND CALIFORNIA AMERICAN WATER DISTRIBUTION SYSTEM – TRANSFER
OF CYPRESS PACIFIC WATER RIGHTS IN SEASIDE BASIN
Donor
Parcel: APN 011-011-020
Service area: Unspecified
Parcels in Seaside Groundwater Basin
Application #20140206CYP, Permit #M14-05-L4
Adopted by MPWMD
Board of Directors on September ___ 2014
Unless noted otherwise, all cited documents and
materials are available for review at the MPWMD Office,
It
is hereby found and determined as follows:
1. FINDING: Cypress Pacific
Investors LLC, a California limited liability company (Cypress), is the current
owner of the subject property in Sand City, California, identified as Assessor’s
Parcel Number (APN) 011-011-020, referred to herein as the “Donor Parcel.” A portion of the water rights associated with
the Donor Parcel is proposed to be transferred to the proposed water purveyor
and co-Applicant, California-American
Water Company, a California corporation (CAW), for future service to
unspecified recipient properties in the Seaside Groundwater Basin designated by
Cypress. This action is referred to herein as the “CAW/Cypress Amendment.” Cypress holds adjudicated rights, including
rights to an Alternative Producer Allocation of water totaling 14.0 acre-feet
per year (AFY) from the Seaside Groundwater Basin as ordered by the Monterey
County Superior Court in the Seaside Basin Adjudication Decision (as amended).
The Donor Parcel was previously owned by the Muriel E. Calabrese Trust, which
is named in that Decision.
EVIDENCE: Application #20140206CYP, site map and associated materials submitted February
6, 2014 as revised February 13, 2014, including deed to property (Recorder ID#200512745);
Draft “Agreement Regarding Front-Loading
Delivery of Water” (referred to herein as the “Front-Loading Agreement”)
dated September 2014; Seaside Groundwater Basin Adjudication Judgment dated
March 27, 2006, as amended, Monterey Superior Court Case #M66343, California American Water vs. City of
Seaside et al. (referred to herein
as the “Adjudication Decision”).
2. FINDING: The Donor Parcel is located within the CAW service area
but does not receive CAW service. Two
onsite Wells are owned by Cypress -- one inactive Well, and one active Well that
produces a nominal amount of water on the Donor Parcel at present.
EVIDENCE: Permit application materials specified in
Finding #1. Map of CAW service
area. MPWMD Well records for Donor
Parcel.
3. FINDING: No new Wells or other water supply facilities regulated by
MPWMD are associated with this application.
The Monterey County Superior Court, Seaside Groundwater Basin Watermaster, and Sixth District Court of Appeal have
confirmed that all or a portion of the 14.0 AFY Alternative Production
Allocation for the Donor Parcel may be delivered to recipient properties in the
Seaside Basin from offsite CAW Well(s) located in the
Seaside Basin. However, such offsite
delivery will be treated as a Standard Production Allocation subject to the
reductions specified in the Adjudication Decision.
EVIDENCE: Permit application specified in Finding
#1, including Seaside Basin Adjudication Decision. Letter from Seaside Basin Watermaster to Anthony Lombardo (attorney for Cypress) dated
January 27, 2014. Order After Hearing on SNG’s
Motion to Enforce and Clarify the Amended Decision, Case #M66343, filed by the Monterey
County Superior Court (Judge Roger Randall) on May 11, 2009 (referred to herein
as “Court Order”); Sixth District Court of Appeal Decision, Case #H034335,
dated April 1, 2010 (referred to herein as the “Appeal Decision”).
4. FINDING: The Applicants have applied for a Permit to amend the CAW
Water Distribution System (WDS) to enable CAW to produce (“wheel”) up to 8.0 AFY
of Cypress’ 14.0 water rights from the Donor Parcel to serve future unspecified
properties in the Seaside Basin via the Front-Loading Agreement. Pursuant to the formulas in the Adjudication
Decision, the 8.0 AFY amount is reduced to 3.41 AFY production in the year 2021
and beyond. The remaining 6.0 AFY Alternative
Producer Allocation may be extracted by the onsite Well(s)
for use only on the Donor Parcel.
EVIDENCE: Permit application materials specified in
Finding #1, including the Front-Loading Agreement and Adjudication
Decision. MPWMD table of allowed CAW Seaside
Basin production for years 2006 through 2021 and beyond specified by Watermaster. MPWMD
Permit #M14-05-L4, Conditions of Approval #1 through #4.
5. FINDING: Based on District staff analysis of the application, the
CAW production limit from the Coastal Subareas of the Seaside Basin is
increased by 3.41 AFY to meet the water needs of the unspecified recipient properties
that would benefit from the Donor Parcel specified in Finding #1. This is equivalent to metered sales (customer
water consumption) of 3.17 AFY that would be approved via MPWMD Water Permits
for use on the recipient properties, based on an assumed system loss factor
(unaccounted for water) of seven percent (7%).
This factor is considered as reasonable in light of the 7% goal set in
the MPWMD Rules & Regulations, the CPUC goal of 9% set in July 2009, and
other CPUC approvals to replace and repair water mains.
EVIDENCE: MPWMD Permit #M14-05-L4, Condition of Approval
#3. CPUC Decision 09-07-021 dated July 9, 2009 (issuance date
7/10/2009); MPWMD Rules & Regulations.
6. FINDING: The application to amend the CAW water distribution system, along with supporting materials, is in accordance with District Rules 21 and 22.
EVIDENCE: Permit application materials specified in
Finding #1; “Complete application” letter from MPWMD to Applicants dated March
12, 2014.
Required Findings (MPWMD Rule
22-B)
7. FINDING: The approval of the Permit would not cause unnecessary
duplication of potable water service with any existing system. The
proposed CAW/Cypress Amendment will be guided by the Adjudication Decision and
the Front-Loading Agreement. Two onsite Well(s) owned by Cypress on the Donor Parcel and could potentially
be used as a source of supply on that Parcel, with proper treatment for potable
use. A total of 6.0 AFY of Alternative
Production Allocation would remain for use on the Donor Parcel, which benefits
from overlying water rights to percolating groundwater as specified in the
Adjudication Decision. [Rule 22-B-1]
EVIDENCE: Permit application materials specified in
Finding #1, including Adjudication Decision and Front-Loading Agreement. MPWMD
Permit #M14-05-L4, Conditions of Approval #1 through #4.
8. FINDING: The approval of the Permit would not result in water
importation or exportation to or from the District, respectively. The
referenced properties are located wholly within the MPWMD. [Rule 22-B-2]
EVIDENCE: District boundary location maps.
9. FINDING: Approval of the application would not result in
significant adverse impacts to “Sensitive Environmental Receptors” (SER) as
defined by MPWMD Rule 11, including the Seaside Groundwater Basin and the
Carmel Valley Alluvial Aquifer (CVAA).
The Monterey County Superior Court has determined the Seaside Basin “natural
safe yield” and specified pumping rights of property owners as part of the
Adjudication Decision, including 14.0 AFY for Cypress. The Monterey County Superior Court has
determined that serving Seaside Basin recipient properties with CAW Wells
further inland (rather than using the full 14.0 AFY onsite) is an overall
benefit to the ongoing integrity of the Seaside Basin and is part of the
Physical Solution. On April 1, 2010, the Court of Appeal confirmed the findings
of the Superior Court. The Front-Loading
Agreement is consistent with the May 11, 2009 Court Order finding that with adequate
“front-loading,” there is no resultant adverse impacts to the Carmel River or
the CVAA. [Rule 22-B-3]
EVIDENCE: Permit application materials specified in
Finding #1, including Adjudication Decision and Front-Loading Agreement. May 11, 2009 Court Order and April 1, 2010
Appeal Decision specified in Finding #3. MPWMD Permit #M14-05-L4, Condition of Approval #30.
10. FINDING: The
application is based on specified water rights associated with the Donor Parcel
as determined by the Superior Court as part of the Seaside Basin Adjudication
Decision. [Rule 22-B-4]
EVIDENCE: Adjudication Decision specified in
Finding #1. May 11, 2009 Court Order and April 1, 2010 Appeal Decision specified
in Finding #3.
11. FINDING: A
long-term reliable source of water supply of 3.41 AFY is available to CAW as
this amount is less than the 14.0 AFY specified for the Donor Parcel under the
Seaside Basin Adjudication. [Rule
22-B-5]
EVIDENCE: Seaside Basin Adjudication Decision and Front-Loading
Agreement specified in Finding #1. May 11, 2009 Court Order and April 1, 2010
Appeal Decision specified in Finding #3. Letter from Seaside Basin Watermaster to Anthony Lombardo (Cypress) dated January 27,
2014.
12. FINDING: With
the actions referenced in MPWMD Condition of Approval, the source of water
supply is the CAW water distribution system, solely from Wells in the Coastal
Subareas of the Seaside Basin, consistent with the May 2009 Court Order, April
1, 2010 Appeal Decision, and Front-Loading Agreement. The cumulative effects of issuance of this
WDS Permit do not result in significant adverse impacts to the source of supply
or the species and habitats dependent on the source of supply due to actions by
the Superior Court to reduce
EVIDENCE: MPWMD Permit #M14-05-L4, Conditions of
Approval #1 through #4, and #30. Letter
from Craig Anthony, CAW General Manager, dated January 29, 2009. Letter from James Kassel, State Water
Resources Control Board (SWRCB) Assistant Deputy Director for Water Rights,
dated February 5, 2009. Adjudication
Decision and Front-Loading Agreement specified in Finding #1. May 11, 2009 Court
Order and April 1, 2010 Appeal Decision specified in Finding #3.
13. FINDING: With
the actions referenced in MPWMD Condition of Approval, the source of CAW supply
for the recipient properties is derived from the Paso Robles and Santa
Margarita Aquifers in the Coastal Subareas of the Seaside Basin, which is not within
the jurisdiction of the SWRCB. The
SWRCB has determined that the one-for-one replacement required in its Order WR
95-10 does not apply so long as CAW supply to the recipient properties is
derived solely from the Seaside Basin. [Rule
22-B-7]
EVIDENCE: MPWMD hydrogeologic
maps on file. January 20, 2009 e-mail confirmation of Kenneth Emanuel, SWRCB technical
staff member, confirming applicant written summary of October 10, 2008 meeting
regarding SWRCB jurisdiction in
14. FINDING: MPWMD
Permit #M14-05-L4 does not entail
a physical intertie to any other water distribution system as it enables solely
a transfer of water rights from the Donor Parcel. The proposed project will enable increased
production by CAW from several inland Wells in the Seaside Basin to serve
recipient properties. The two non-CAW Wells
on the Donor Parcel could be activated for onsite uses as allowed by the
Monterey County Health Department and Seaside Basin Watermaster. [Rule
22-B-8]
EVIDENCE: Permit application materials specified in
Finding #1, including Front-Loading Agreement.
MPWMD Permit #M14-05-L4, Conditions
of Approval #1 through #4, #13 and #31.
15. FINDING: A
back-flow protection device to prevent contamination of the CAW system is not necessary
as CAW is the water purveyor. CAW does
not serve the Donor Parcel. [Rule
22-B-9]
EVIDENCE: Permit application materials specified in
Finding #1. MPWMD Permit #M14-05-L4, Condition of Approval #14.
Minimum Standards for Granting a Permit
(MPWMD Rule 22-C)
16. FINDING: The
application adequately identifies the responsible parties as California-
American Water Company and Cypress Pacific Investors LLC. [Rule 22-C-1]
EVIDENCE: Permit application materials specified in
Finding #1.
17. FINDING: The
application meets the definition of a “Multiple-Parcel Connection System” as
water will be provided by CAW, a public utility with roughly 40,000 customers, for
commercial, residential and/or landscape use on the future recipient properties. Compliance with California Title 22 water
quality standards is the authority of the California Department of Public
Health. [Rule 22-C-2]
EVIDENCE: Permit application specified in Finding
#1. MPWMD Permit #M14-05-L4, Conditions
of Approval #1, #2, #3, and #15.
18. FINDING: The
application identifies the location of the source of supply for the water
distribution system as CAW Wells in the Coastal Subareas of the Seaside Groundwater
Basin. [Rule 22-C-3]
EVIDENCE: Permit application specified in Finding
#1. MPWMD Permit #M14-05-L4, Conditions of Approval #1 through #4, and #30.
19. FINDING: The
approval of the application would not create an overdraft or increase an
existing overdraft of a groundwater basin, and a superior right has been
demonstrated. The Superior Court has
determined the “natural safe yield” and specified pumping rights of property
owners in the Seaside Basin as part of the Adjudication Decision, and has
designated 14.0 AFY Alternative Production Allocation for the Donor Parcel identified
in Finding #1. [Rule 22-C-4]
EVIDENCE: Adjudication Decision and Front-Loading Agreement
specified in Finding #1. May 11, 2010 Court Order and April 1, 2010 Appeal
Decision specified in Finding #3. Letter
from Seaside Basin Watermaster to Anthony Lombardo
(Cypress) dated January 27, 2014. MPWMD Permit #M14-05-L4, Conditions of
Approval #1 though #4.
20. FINDING: The
approval of the application would not adversely affect the ability of existing
systems to provide water to users due to conditions of approval that limit
future water use to a reasonable and acceptable amount, consistent with the
water rights determinations of the Superior Court as the result of the Seaside
Basin Adjudication. [Rule 22-C-5]
EVIDENCE: Adjudication Decision specified in
Finding #1. Letter from Seaside Basin Watermaster to Anthony Lombardo (Cypress) dated January 27,
2014. May 11, 2009 Court Order and April 1, 2010 Appeal Decision specified in
Finding #3. MPWMD Permit #M14-05-L4, Conditions of Approval #1 through #4. California Water Code.
Compliance with California
Environmental Quality Act (CEQA)
21. FINDING: In
the review of this application, MPWMD has followed those guidelines adopted by
the State of California and published in the California Administrative Code,
Title 14, Section 15000, et seq. Specifically, the MPWMD has determined that a
Statutory Exemption applies as defined in CEQA Guidelines Section 15268
(Ministerial Projects), based on previous environmental determinations by the Courts. The Monterey County Superior Court concluded
that its Adjudication Decision included environmental determinations related to
the Seaside Basin and adjudication of the rights therein. The MPWMD action is also consistent with the
May 11, 2009 Court Order as confirmed by the Sixth District Court of Appeal,
which limits CEQA review of water-related issues to areas other than the
Seaside Basin.
EVIDENCE: Adjudication Decision and Front-Loading Agreement specified in Finding #1. May 11, 2010 Court Order and April 1, 2010 Appeal Decision specified in Finding #3.
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