MUS Bundle - Pueblo Del Sol Water Company Docket No. 12A … · 2013-02-06 · In The Matter Of:...

In The Matter Of:

Pueblo Del Sol Water CompanyDocket No. 12A-AWS001-DWR

Hearing - Volume INovember 26, 2012

Transcribed from an Audio Recording

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Phoenix, AZ 85004-1481(602) 274-9944

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In The Matter Of:Pueblo Del Sol Water Company

Docket No. 12A-AWS001-DWR

Hearing - Volume I

November 26, 2012

Transcribed from an Audio Recording

Arizona Reporting Service, Inc.

2200 North Central Avenue, Suite 502

Phoenix, AZ 85004-1481

(602) 274-9944

www.az-reporting.com

Original File 01_11262012_PuebloDelSol_Revised.txt

Min-U-Script® with Word Index

Pueblo Del Sol Water Company Docket No. 12A-AWS001-DWR

Transcribed from an Audio Recording Hearing - Volume INovember 26, 2012

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(1) THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. (2) (3) STATE OF ARIZONA (4) IN THE OFFICE OF ADMINISTRATIVE HEARINGS (5) In the Matter of the ) (6) Decision of the Director ) to Grant Pueblo Del Sol ) (7) Water Company's ) Docket No. 12A-AWS001-DWR Application for ) (8) Designation as Having an ) Adequate Water Supply ) (9) No. 40-700705.0000. ) )(10) (11) (12) TRANSCRIPT OF RECORDED PROCEEDINGS (13) VOLUME I (Pages 1 through 112, inclusive.)(14) November 26, 2012(15) Phoenix, Arizona (16) (17) (18) (19) ARIZONA REPORTING SERVICE, INC. Court Reporting(20) Suite 502 2200 North Central Avenue(21) Phoenix, Arizona 85004-1481 (22) (23) Transcribed by:(24) Katherine A. McNally CERTIFIED TRANSCRIBER(25) CET**323

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(1) THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. (2) I N D E X Page (3) Opening Statement by Ms. Ronald 50 (4) Opening Statement by Mr. Sullivan 55 Opening Statement by Mr. Gaudio 59 (5) Opening Statement by Mr. McDevitt 66 Opening Statement by Dr. Silver 69 (6) ANDREW CRADDOCK (7) Direct Examination by Ms. Ronald 75 (8) (9) EXHIBITS: Admitted (10) (None admitted.) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25)

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(1) THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. (2) TRANSCRIPT OF AUDIO RECORDED PROCEEDINGS was (3) taken on November 26, 2012, at the Office of (4) Administrative Hearings, 1400 West Washington, (5) Suite 101, Phoenix, Arizona 85007. (6) (7) Before: Honorable Thomas Shedden, Administrative Law Judge (8) COUNSEL APPEARING: (9) ARIZONA DEPARTMENT OF WATER RESOURCES By: Ms. Janet L. Ronald(10) Ms. Nicole D. Klobas 3550 North Central Avenue(11) Phoenix, Arizona 85012 Attorneys for Arizona Department of Water(12) Resources (13) CURTIS GOODWIN SULLIVAN UDALL & SCHWAB, PLC By: Mr. William P. Sullivan(14) 501 East Thomas Road Phoenix, Arizona 85012-3205(15) Attorneys for Pueblo Del Sol Water Company (16) UNITED STATES DEPARTMENT OF INTERIOR By: Mr. John L. Gaudio(17) 401 West Washington Street Suite 404 SPC 44(18) Phoenix, Arizona 85003-2151 Attorneys for Bureau of Land Management(19) ASU COLLEGE OF LAW(20) By: Mr. Joseph Feller Mr. David McDevitt, Certified Limited(21) Practice Student 1100 South McAllister Street(22) P.O. Box 877906 Tempe, Arizona 85287-7906(23) Attorneys for Patricia Gerrodette, appellant (24) ALSO PRESENT: Robin Silver, M.D., appellant, pro per(25)

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(1) THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING.

(2) (Commencement of electronically recorded (3) proceedings.) (4) * * * * * (5) ALJ SHEDDEN: All right. Good afternoon, we are

(6) on the record in the matter of the decision of the (7) director to grant Pueblo Del Sol Water Company's (8) application for designation as having an adequate water (9) supply number 40-700705.0000. This is Docket(10) Number 12A-AWS001-DWR. Today is November 26, 2012. It

(11) is a few minutes after 1:00 p.m. My name is(12) Administrative Law Judge Thomas Shedden. I've been(13) assigned by the Office of Administrative Hearings to(14) preside over this matter.(15) Our notice of hearing was issued on August 31st,(16) 2012, and it actually set a hearing date -- it looks(17) like it was going to be on October 16, and set a(18) location for the hearing down in Benson, Arizona. At(19) some point during our proceedings, the parties filed a(20) stipulation to change the hearing date until today --(21) and indeed we'll be going forward all of this week, if(22) necessary -- and then to change the location. We're(23) here in Phoenix, at the Office of Administrative(24) Hearings.(25) A couple of things I want to point out, just

Min-U-Script® ARIZONA REPORTING SERVICE, INC.(602) 274-9944 www.az-reporting.com

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(2) generally, and then I'm going to get the parties to (3) introduce themselves, and then we'll deal with some (4) additional preliminary issues. (5) One, I've turned on a little recording device (6) under the table here. That's what these microphones are (7) for. They don't provide any amplification of our (8) voices, but to get a clear recording, you've got to have (9) a microphone in front of you or in close proximity while(10) you're speaking. So I'll ask you to be aware of that as(11) we go forward, and I'll try and alert folks if it seems(12) like we -- we've had a breach of that, if you will.(13) That means whatever witnesses come on up here to my left(14) so that they can use that chair and have benefit of the(15) microphone there. So just be aware of that as we go(16) forward.(17) Coupled with that, to get a clearer recording(18) we've got to be cautious about talking over one another,(19) interrupting each other, these kind of things.(20) For the benefit of the witnesses, you need to(21) understand that the lawyers, quite frequently, like to(22) ask long questions, with a lot of subparts, so you need(23) to kind of hold your answers until they're done. And(24) similarly for the lawyers, I would ask you to allow the(25) witness to answer before moving on to a new question.

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(2) So that's the recording issue. (3) What I do want to let folks know, a couple of (4) other things, and then as I said, we'll get the (5) introduction. (6) In terms of our prehearing matters, I'm going to (7) give some information procedurally about the setup in (8) the room, including the use of the computers, that sort (9) of thing, have some discussion, if you will, about how(10) we're going to go forward with the presentation of our(11) evidence, and perhaps a couple of other issues as well.(12) When I'm done with all of that, I'm going to turn to the(13) parties and see if you have any preliminary issues that(14) you feel we need to address as well. And eventually(15) then, when all of that is out of the way, we'll move(16) forward with the presentation of evidence, but that may(17) take a while to get there, at this point.(18) Before I go to the introduction of folks, or(19) letting you make their appearances, as it were, I do(20) want to let folks know that our office, the Office of(21) Administrative Hearings, is an independent state agency,(22) and we invite everybody who comes to our hearings the(23) opportunity to give our director feedback on how we're(24) doing. There are some forms on the tables where the(25) parties are located that are for that purpose. If you

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(2) have difficulty locating those or need some more, our (3) front desk staff would be glad to help you with that. (4) There's a little black box right outside this hearing (5) room, just across the little hallway there, you could (6) put those in, or you could turn them in at the front (7) desk. It's strictly a voluntary process, and it's (8) anonymous in that our director shares the feedback only (9) very generally.(10) One of the reasons I'm mentioning that now at(11) the outset, rather than as we get a little further in,(12) obviously a lot of you are wearing suit coats today.(13) I'm not. If you'd be more comfortable without those(14) jackets, don't stand on formality for me. Go ahead, and(15) you can take those off; and indeed, as the days go on,(16) from my perspective, not a necessary feature.(17) With that, then, what I'm going to do is start(18) with DWR on my right here, and I'm going to ask you to(19) go ahead and make your appearances. If there are folks(20) attending in the crowd, and we've got a fairly full(21) house today, that you'd like to introduce as well, you'd(22) be welcome to. So with that, we'll take care of that(23) and then get back to information on how we're going to(24) go forward.(25) MS. RONALD: Thank you, Your Honor. Jan Ronald,

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(2) on behalf of the Department of Water Resources, with (3) Nicole Klobas, who is sitting to my right. Also here (4) today with me are a witness, Andrew Craddock; and our (5) administrative assistant, Sharon Scantlebury; and Frank (6) Corkhill, who is the chief hydrologist for the (7) Department of Water Resources. (8) ALJ SHEDDEN: All right. (9) Go ahead.(10) MR. SULLIVAN: Good afternoon, Your Honor.(11) We --(12) MS. RONALD: Oh, and I forgot one. I'm sorry.(13) Ayesha Vohra is also an attorney with our office, who is(14) here today. I'm sorry, Ayesha.(15) MR. SULLIVAN: Good afternoon, Your Honor.(16) William Sullivan, on behalf of the applicant,(17) Pueblo Del Sol Water Company. With me today, also, are(18) Rick Coffman, who is the vice president of Castle &(19) Cooke, as well as Pueblo Del Sol Water Company, and a(20) potential -- and who is also a potential witness. And(21) also Norm Fain, who is a potential witness.(22) ALJ SHEDDEN: All right. Go ahead.(23) MR. GAUDIO: Good afternoon, Judge. My name is

(24) John Gaudio. I'm here for the Department of the(25) Interior Solicitor's Office, here representing the BLM.


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(2) And I've got sitting next to me Ben Lomeli, hydrologist (3) with BLM, a representative of the agency. And then I've (4) got two witnesses, Jim Leenhouts, Dr. Leenhouts, with (5) the USGS, and Bill Wells, hydrologist at the BLM state (6) office. (7) MR. McDEVITT: Your Honor, my name is David (8) McDevitt. I'm a certified limited practice student, (9) representing Appellant Patricia Gerrodette with regard(10) to the legal issues in this matter, and in the motions(11) and response that we filed. The notice of appearance(12) was submitted to the OAH docket.(13) ALJ SHEDDEN: Okay. And then you are(14) Ms. Gerrodette, correct?(15) MS. GERRODETTE: That's correct.(16) ALJ SHEDDEN: Okay. And go ahead.(17) MR. SILVER: My name is Robin Silver. I'm a(18) property owner on the San Pedro in the Sierra Vista(19) Subbasin.(20) ALJ SHEDDEN: All right. Let me just make one(21) other introduction and -- and relating to Mr. McDevitt.(22) We also have present Professor Joseph Feller from the(23) ASU Law School, who is the supervising attorney,(24) correct?(25) MR. McDEVITT: Correct.

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(2) ALJ SHEDDEN: All right. Let me just make sure (3) I'm getting all of this down myself in my notes, and (4) then -- all right. Back on my list of -- of things (5) and -- and I -- I need to remind folks to turn off your (6) cell phones or put them on vibrate or -- or some other (7) such thing, that you can do that, please. Too, as I (8) said before we went on the record, water is the only (9) food or drink we're allowed to have, so please observe(10) that, if you will. I've mentioned the microphones, so(11) I'll not go into that again.(12) In terms of our timing, I do have a question for(13) the parties, and obviously we're starting at 1 o'clock(14) today. The intention would be to start generally at(15) 8:00 and go to 5:00 each day. I know there was some(16) talk when the stipulation was filed, as to whether or(17) not Thursday morning was going to be a day that we(18) needed to suspend proceedings, if you will. So let me(19) just ask directly. Where do we stand on that?(20) MR. SULLIVAN: Thank you, Your Honor. William

(21) Sullivan. It was Wednesday morning, and that hear- --(22) that oral argument has been cancelled. Unfortunately,(23) the special master is ill, and we got notice this(24) morning that he cancelled.(25) ALJ SHEDDEN: So we're good to go every morning

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(2) then? (3) MR. SULLIVAN: Yes. (4) ALJ SHEDDEN: All right. And let me -- I'm (5) assuming there's no problem with that from everyone's (6) perspective, but I guess I'm going to put it out in (7) terms of a question at this point, with respect to the (8) parties, whether it makes sense to defer our start time (9) until 8:15, give you folks the extra 15 minutes to get(10) in here, get set up, consult with your witnesses.(11) Similarly, at the end of the day, right around 4:35, I(12) like to start seeing if we're at a good place to stop.(13) If we need to push on, we can. But that way by(14) 5 o'clock, we wrap things up.(15) Having said that, though, that takes away from(16) our hearing time, and when you times it by five days,(17) it's not a small amount of time, but that's going to be(18) my proposal, assuming the parties think that we're not(19) going to be pressed for time, and I would guess having(20) recovered Wednesday morning, that may not be an issue.(21) Before I get into that, in detail, I'll let the(22) parties know that I have some -- I'm going to style them(23) concerns, if you will, as to how much evidence do we(24) really need to take in this matter, and it's perhaps(25) related to Ms. Gerrodette's motion to vacate and the

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(2) motion to dismiss that Pueblo Del Sol filed. Those (3) motions were both denied, but -- and coupled with the (4) motion to dismiss was a motion in limine, but those (5) legal issues are still in play, from my perspective, and (6) the parties agreed to raise those issues in their (7) closing arguments. (8) But despite the fact that I denied those (9) motions, some of it has to do with the way the issues(10) are set forth in the notice of hearing, and what I'm(11) going to do is just read those four issues into our(12) record just for completeness and to make sure we're all(13) on the same page here.(14) Starting on page 2 of the Notice of Hearing, the(15) appellants raised the following issues on appeal: (A)(16) whether Pueblo Del Sol failed to demonstrate and ADWR(17) erroneously determined that the water proposed to be(18) pumped will be continuously, legally, and physically(19) available to satisfy the proposed use for at least(20) 100 years; (B) whether ADWR erroneously refused to(21) consider impacts of the proposed pumping of the flow out(22) of San Pedro -- on the flow of the San Pedro River --(23) and it looks like there's a little typo in there, but --(24) (C) whether ADWR erroneously refused to consider impacts(25) of the proposed pumping on water rights of the Bureau of


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(2) Land Management, including federal reserved water rights (3) for the San Pedro Riparian National Conservation Area; (4) and (D) whether Pueblo Del Sol failed to demonstrate and (5) ADWR erroneously determined that the water proposed to (6) be pumped will be physically available for at least (7) 100 years, given evidence of declining groundwater (8) levels and increased pumping in the area. (9) So in particular, Items B and C, or Issues B and(10) C, jump out in light of primarily the Department's(11) prehearing brief. And the question I have, in terms of(12) how much evidence we're going to need to take, and what(13) I want to find out from the parties initially here is(14) whether those issues can be resolved as a matter of law,(15) and cut down on the amount of evidence that parties are(16) hoping to present.(17) It seems to me, effectively, that is what(18) Ms. Gerrodette was asking for in her motion to vacate,(19) that I rule summarily that DEQ did err on those issues,(20) send the matter back to the Department, and have DEQ(21) make a factual determination there.(22) Obviously -- I think it's fairly obvious anyway,(23) to me, that DWR and the water company have a different(24) view of whether there was an error or not, but it seems(25) to me -- and the concern I have is whether it makes

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(2) sense to take more than just the limited amount of (3) evidence as to what those impacts were or may not be, if (4) any at all, as opposed to just saving those points for (5) legal consideration at the end of the hearing. (6) Go ahead. Doctor, go ahead. (7) DR. SILVER: I have to ask, to be recognized, do (8) we stand up or do we just -- (9) ALJ SHEDDEN: There's no need to stand. Just --(10) sir, go ahead.(11) DR. SILVER: If you looked at -- if you -- it's(12) Robin Silver, if you looked through the list of(13) witnesses and some of the issues that you just(14) addressed, it seems like we could just stipulate, as a(15) group, and the -- including my own witness, most of what(16) they're going to tell us that has to do with the(17) physical connection or the water budget, we can agree on(18) already. We don't need a witness to tell us that.(19) So for instance, the fact that the groundwater(20) and the surface water are connected, I think that we(21) could agree. ADWR, Pueblo Del Sol, the BLM, the feds,(22) USGS have all said this, in writing, that there's a(23) connection between the groundwater and surface water.(24) We could agree on that.(25) If you look at the other issue that ultimately

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(2) you'll have to look at in terms of is it legally (3) available, the water budget becomes an issue because (4) when we get down and we start talking about, you know, (5) Gila III or some of the -- some of the nitty-gritty of (6) the legal issues, it's going to come down to whether or (7) not this subbasin is overallocated. (8) And again, if you start then looking through the (9) numbers from Arizona Department of Water Resources,(10) USGS, and BLM -- and I don't know if this is the(11) appropriate time or not, but let me just flat out say(12) it -- this is a subbasin that's overallocated. So that(13) has bearing on what you're going to have to tell us(14) (indiscernible).(15) ALJ SHEDDEN: Well, and I suspect that may be a(16) disputed issue, and leaving the term "allocated," the(17) buzzer that goes off with me for something like that is(18) you're talking about surface water generally when you(19) use a term like that. So the -- your point is taken,(20) though, more generally, and oftentimes, though,(21) particularly with the number of parties that are(22) present, reaching a stipulation can be difficult. I(23) understand that.(24) My point, though, and I guess I'll expand upon(25) it is if the parties want to take some time out this

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(2) afternoon, we're all here, and do some working together (3) to either, perhaps, stipulate to some facts that would (4) reduce the need for evidence -- alternatively, you (5) know -- and you're kind of aligned on two sides of the (6) room there, if you will -- alternatively, as well, the (7) appellants might benefit by spending some time together (8) to help streamline their presentations, perhaps can (9) eliminate some witnesses. I don't know if the same(10) would be true of the Department and Pueblo Del Sol.(11) As inducement, before I get comments from the(12) other folks in this regard, one of the things on my list(13) that -- that I need to address and put it up there in(14) the wings, if you will, I've got a statutory duty to(15) avoid letting folks present needless cumulative(16) evidence. It's always an open question as to when(17) cumulative evidence becomes needless, and I tell folks(18) that some of the judges think any cumulative evidence is(19) needless. But that's what the statute says, or pretty(20) darn close.(21) The other things that the statute says, and(22) these may go in more toward the way the issues are(23) couched and whether we need evidence at all, and it's --(24) there's a duty I need to avoid needless consumption of(25) time, and I'm allowed to exclude evidence if the


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(2) probative value is outweighed by waste of time. And (3) that's the one that really concerns me when we've got -- (4) and I'll let Ms. Ronald correct me, of course, if I'm (5) wrong here, but based on the prehearing filings, the (6) Department is pretty firm in the view, it seems, that (7) these were things that they shouldn't have considered. (8) If they're right about that, then, of course, taking (9) evidence on the impacts is not necessary. And if(10) they're wrong about that, it seems to me that the(11) certificate or the designation would need to be revoked(12) or never get out of draft form, however you want to put(13) it.(14) So it doesn't necessarily make a lot of sense in(15) my view, assuming you're all in agreement, to have a lot(16) of folks who have expert witnesses, that I assume have(17) other things that they can do, rather than coming down(18) here. So let me throw it out more generally, I guess,(19) for any of the parties to comment, and particularly with(20) respect to the thought that does it make sense to take a(21) little time and allow you folks to potentially work on(22) some stipulated facts, or any way to narrow, not the(23) scope of the issues for hearing, but what evidence would(24) be necessary in light of the issues set forth in the(25) notice?

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(2) And I'll go back to you first, Dr. Silver, since (3) you -- I kind of interrupted what you were getting (4) toward, a few minutes ago. (5) DR. SILVER: Do you want me to go ahead and (6) continue? So if I -- because I would almost like to -- (7) where I got off track, I think that we could stipulate (8) the connection. That's not a (indiscernible). (9) ALJ SHEDDEN: Well, I -- the problem with what(10) you think we can stipulate, that requires a discussion(11) and better served off the record, because -- there are a(12) couple of reasons -- it's not really a settlement talk,(13) but there's no need for me to hear it, because if you(14) reach a stumbling block where on a given issue one party(15) or more is not willing to, then it's just best that I(16) don't know who they are, for what reason, and I take the(17) evidence.(18) So -- but let me ask directly then, you would be(19) amenable to taking a little time off the record and(20) seeing if stipulations could be reached?(21) DR. SILVER: Yes. And I think it would save a(22) good amount of your time, as well as ours, because that(23) would take that off the table, and then you could focus(24) on whether or not it matters legally.(25) ALJ SHEDDEN: Well, I agree that it would

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(2) hopefully save some time, but, you know, you never know (3) until the end of the day. But I share that view, and (4) that's why I raised it. (5) Let me turn to Ms. Gerrodette and/or (6) Mr. McDevitt. (7) MR. McDEVITT: Well, Your Honor, we would agree

(8) to discussing -- stipulating with regard to certain (9) facts in order to limit the amount of testimony or(10) evidence needed, so long as we had a specific time frame(11) for which to do that, whether it be half an hour or an(12) hour, obviously, is to Your Honor's discretion. But we(13) wouldn't want those talks to go on and on.(14) ALJ SHEDDEN: I'm sorry, your last point was?(15) MR. McDEVITT: We -- we wouldn't want that to be

(16) an open-ended -- open-ended discussion.(17) ALJ SHEDDEN: Right. No, and with respect to(18) the time allotted for it, assuming everyone is going to(19) be in agreement, you know, if you're making good(20) progress and you're getting a lot of facts down, one(21) after another, then it seems silly to artificially stop.(22) On the other hand, if 30 minutes, 45 minutes(23) have gone by and anything that can be achieved has been(24) and the parties collectively don't want to continue to(25) discuss the matter, then, yeah, we need to get on the

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(2) record and move forward. So, you know, I guess the (3) problem with setting a time limit is without knowing (4) whether -- you know, 45 minutes may be way too long. (5) You take 10 minutes, and you find, no, we -- we have no (6) common ground here. (7) So let me turn to the BLM then. (8) MR. GAUDIO: Yeah. Judge, BLM's sole argument (9) in this matter is that DWR, you know, must consider the(10) impacts of Pueblo Del Sol's proposed pumping on the(11) federal reserved rights in the basin. And I'm(12) struggling a little conceptually with the purpose of the(13) hearing. It seems to me to be purely a legal question.(14) With that said, I'd be willing to -- to sit and talk(15) about what evidence can be, you know, trimmed away.(16) ALJ SHEDDEN: All right. And, you know, I will(17) say that as I look at the issues, they do seem to be(18) largely legal issues, in my view, but, you know, others(19) may have a different view, and so that's, I guess, why(20) we have hearings, but let me turn to Mr. Sullivan.(21) MR. SULLIVAN: Thank you, Your Honor.(22) Turning first to the issue of stipulation,(23) although we don't dismiss that possibility on hand, I(24) believe that the appropriate way to deal with that is(25) for any party who wants to stipulate to the facts, to


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(2) proposed stipulated facts outside of the time (3) for hearing -- we're already here -- and then to see if (4) the parties can agree on them. (5) I think the wording will be very critical. (6) That's an area where we may not ever be able to reach (7) agreements on facts, even though conceptually there may (8) be no disagreement on certain facts, conceptually, but (9) the wording of them may be very important. And so what(10) I would propose is that if a party has stipulated facts(11) that they want to present and wording for that, that(12) they do that after the hearing today and let DWR at(13) least get their witness on, which shouldn't be affected(14) much by the stipulation of facts, at least to the ones(15) that were being mentioned there. Because, as Your Honor(16) indicated when we first had a prehearing conference on(17) this, DWR will set the stage, if you will, to explain(18) what they did and how they did it, and as I read their(19) summary of testimony, that this was what you had(20) indicated.(21) I don't mean to put DWR on the spot as far as(22) having to go forward, but to me that makes much more(23) sense than just wasting that 45 minutes to an hour and a(24) half trying to reach agreement, when we don't even have(25) worded specific findings available. And the ones that

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(2) have been proposed, I would have difficulty, I would (3) think, in finding a stipulation to, that would be (4) mutually acceptable to all parties at the table, but I'm (5) not going to say I wouldn't be willing to look at it. (6) As to the issue of whether the statement of the (7) issues, as set forth in the notice, my understanding, (8) those came straight, basically, from BLM's Notice of (9) Hearing, and were intended to show what the appellants(10) cumulatively were arguing were potentially relevant(11) facts.(12) I think both the Department and ourselves,(13) Pueblo Del Sol, in their arguments and what has been(14) filed so far, have indicated that we do not believe that(15) the scope of those issues, as drafted, is what this(16) hearing is all about; that what was raised below was(17) much narrower; basically, the issue of whether or not(18) the claimed legal right to federal reserved water rights(19) is to be considered by the Department in this(20) proceeding, and whether -- because that was the only(21) issue that was really raised by all the parties below.(22) And since we filed a motion to dismiss on that(23) issue, I believe that the facts are pretty much(24) undisputed as to what the status of those rights are or(25) are not, and that they can be decided as a matter of

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(2) law, although some testimony on how the Department went (3) through the process may be helpful to Your Honor. I (4) assumed that when you denied the motions. (5) ALJ SHEDDEN: Well, a couple of points related (6) to the Notice of Hearing. I'm going to tell you, I (7) don't see any other issues in there. And when I look at (8) my statutes and the scope of my authority -- and when I (9) say "my statutes," I guess a better way to put it would(10) be the Office of Administrative Hearings' statutes found(11) at 41-1092, et seq. And I'm limited to the issues set(12) forth in the Notice of Hearing. So although there was a(13) motion to dismiss saying that the parties didn't(14) preserve these issues, the bottom line is they're the(15) only issues I have.(16) And whether the Pueblo Del Sol or the Department(17) feels like they were matters that weren't properly(18) preserved, that's certainly something I'm willing to(19) consider in closing argument, but at this point I think(20) I'm obligated to consider all the issues listed there.(21) And, you know, the Notice of Hearing isn't that long,(22) but -- in fact, it's only three pages, and there may(23) have been some more of a mailing list that I cut off a(24) fourth page, but we've got, in essence, two pages of(25) text. And so just taking a quick look at it in response

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(2) to your comments, but from my perspective, as a matter (3) of law, I've got to deal with all of those issues. (4) And at the end of the hearing, there's room to (5) say that a given issue wasn't properly preserved, based (6) on failure to raise it in the comments at the agency, so (7) be it. But at this point, I will see how I can just (8) dream up my own issues, and that sounds like what you'd (9) be asking me to do if I -- if I don't take the ones that(10) are in the Notice of Hearing. So --(11) MR. SULLIVAN: If I might follow up, just to(12) clarify.(13) ALJ SHEDDEN: Yes.(14) MR. SULLIVAN: I wasn't saying -- I was saying(15) that the statement included any issue that you could(16) hear, but it was more extensive, expansive than what you(17) should and are legally entitled to hear because of the(18) lack of comments. In other words, I believe the(19) Department, in sending forth a notice, attempted to be(20) fair to the appellants as to what they claim the issues(21) were, not necessarily saying that those issues were(22) properly raised and preserved below. And that's our(23) argument on a number of the issues, is that they were(24) not properly preserved below, and that therefore you can(25) rule as a matter of law whether they were or were not,


(6) Pages 21 - 24



Page 25


(2) because it's relatively simple as to whether -- what the (3) comments were or what there -- and whether they're (4) concluded in those issues as written. (5) But I'm not suggesting that you rephrase them or (6) create new issues to hear in this proceeding. I agree (7) with you, that would be improper. (8) ALJ SHEDDEN: And similar to my comment to (9) Dr. Silver, my guess would be some of the others(10) disagree with you as to whether it's simple or(11) straightforward as to whether those issues were(12) preserved, and I've not looked in too great of detail,(13) candidly, at the documents that were filed at the(14) Department of Water Resources, but, you know, just(15) reading DWR's prehearing brief, I would say it may not(16) be so simple, primarily based on how DWR couched the(17) BLM's filing.(18) So at any rate, all right, let me turn to(19) Ms. Ronald.(20) MS. RONALD: Well, I've listened to what all the(21) parties have said so far, and I am inclined to want to(22) try to agree on certain facts, in order to expedite the(23) hearing process, but at the same time, it's much more(24) complicated than just sitting down for an hour, and I(25) have to agree with Mr. Sullivan's observations about

Page 26


(2) wording and how these particular factual issues are (3) couched. (4) We've looked at the exhibits that have been (5) filed by the parties on issues that we believe are not (6) relevant regarding impacts on the San Pedro River and (7) impacts on SPRNCA in particular. We've looked at the (8) case law that deals with federal reserved water rights. (9) We are, as technical advisors to the adjudication court,(10) very aware of the status of the SPRNCA claims for(11) federal reserved water rights, and as I'm sitting here,(12) I wonder, and I'm not sure, admittedly, but I wonder(13) whether, as we go forward, it might be better to just(14) get an offer of proof on each one of these exhibits and(15) deal with it that way, because --(16) ALJ SHEDDEN: But, I'm sorry, isn't that(17) presupposing that I don't take the exhibits into(18) evidence?(19) MS. RONALD: If -- I assume that before you take(20) the evidence that -- an exhibit into evidence, we would(21) have an opportunity to raise objections to whether or(22) not we think it's relevant, and that they would have to(23) provide an offer of proof of why it is relevant. That's(24) what I was thinking when I made that statement. I'm not(25) presuming that you would not take it into evidence. But

Page 27


(2) these are exhibits at this point. They haven't been (3) taken into evidence yet. (4) ALJ SHEDDEN: Correct. But I'm assuming that (5) there'll be witnesses testifying about the exhibits (6) before they're offered, so -- but when -- (7) MS. RONALD: Certainly. But as to what issue? (8) And that -- that's -- it kind of, like, begs the (9) question to even go through the process, and I -- I(10) appreciate the dilemma that we all are in.(11) The appellants have their point of view. The(12) applicant and DWR has its point of view regarding the(13) relevance of any of this discussion, regarding regional(14) studies that have been done primarily by the USGS(15) regarding impacts on the river from groundwater pumping(16) in the region where Pueblo Del Sol proposes to put its(17) wells, and whether that's relevant or not.(18) And I know that our position is, as was stated(19) in our legal brief, it's not, because we don't have any(20) legal authority to consider that, regardless of whether(21) there's an impact or not. And it is regional. These(22) are regional studies that are not focused solely on(23) Pueblo Del Sol's proposed groundwater pumping.(24) So we have a great deal of difficulty trying to(25) come to some sort of an agreement about what those

Page 28


(2) reports mean, and how, even if you want to let them into (3) evidence, the scope of those reports, what are those (4) reports being offered to demonstrate, other than, yes, (5) there are regional studies; yes, groundwater pumping in (6) the region may have an impact on San Pedro River flows. (7) And so, I mean, that's our position. (8) So it -- it's -- I don't know. This is a -- I (9) have to say when we first started thinking about this(10) case, we too would have liked to have been able to(11) narrow the issues so that we didn't have to get into any(12) of these hydrologic principles that the appellants would(13) like to raise and spend time on at this hearing, because(14) it just doesn't matter to the Department in this(15) context, when we're dealing with an application for a(16) designation of adequate water supply. We're constrained(17) by statute and rule.(18) So I mean, what we're really talking about is(19) somebody should have filed a Motion for Summary Judgment(20) and put out some proposed facts, if that's what they(21) wanted to do, and we could all chime in and have our(22) alternate facts and -- you know, and deal with it that(23) way, but that's not the way we come to you today.(24) So as much as I would like to streamline this(25) hearing, because we really don't believe all of this


(7) Pages 25 - 28



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(2) information is relevant at all to DWR, I share (3) Mr. Sullivan's concerns. I'm not really sure how we can (4) do that. (5) ALJ SHEDDEN: All right. I'm going to -- go (6) ahead. (7) MR. McDEVITT: It's kind of a procedural (8) question again. So when ADWR says that these studies (9) are just regional studies and we disagree because they(10) look at the specific area that -- that Pueblo Del Sol is(11) going to be pumping, do I -- I sort of already expressed(12) my objection now, but how do we do this? So I mean,(13) that's --(14) ALJ SHEDDEN: Well, let me --(15) MR. McDEVITT: -- I guess I sort of already(16) answered, but, you know, we -- I disagree. I don't(17) think so. I think that you look at their study, you(18) pick their spot on the map, and you can see it's(19) specific, and that should help you as a judge. That's(20) why they're there.(21) ALJ SHEDDEN: Well, in essence, you're asking a(22) legal question in my view, or asking for legal advice,(23) but the bottom line is each party presents their(24) evidence, and if DWR feels that some of your evidence is(25) not relevant, I'm confident they'll object. I'll hear

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(2) from the various parties as to why or why -- why it (3) should be considered relevant or why it should not be (4) considered relevant. And I make a ruling. I don't have (5) any problem telling folks that consistent with the vast (6) majority of judges at the Office of Administrative (7) Hearings, I'm going to be very, very lenient on letting (8) the evidence in, because -- for a couple of reasons. (9) One, relevance is pretty well standard when you get(10) right down to it; and two, the director of the(11) Department doesn't have to accept my findings. She'll(12) be free to accept them, reject them, or modify them.(13) So if I go and exclude a bunch of evidence --(14) and it's not just the director of DWR, but virtually any(15) agency heads of 99 percent of the hearings we do. If I(16) exclude a bunch of evidence saying it's not relevant and(17) then the -- in this case, the director believes I made(18) an error, an error of law and that information should(19) have come in, she's left without a complete record to(20) make her determination.(21) On the other hand, if I take the evidence into(22) the record, I have no doubt in my mind that I can ignore(23) the evidence that's of extremely limited weight or at(24) the end of the day can produce a decision that focuses(25) on what is relevant. Again, I do have the concerns, the

Page 31


(2) statutory concerns, about probative value versus waste (3) of time, but the bottom line is, at an administrative (4) hearing, it's far better to err on the side of letting (5) evidence in, and then giving it no weight when all the (6) evidence is weighed, than to exclude a lot of evidence. (7) So anything else, Dr. Silver? (8) DR. SILVER: No. I think we're in a position (9) that, for instance, isn't even -- ADWR is going to have(10) witnesses today, and I presume, you know, Mr. Corkhill(11) is going to be one of them, right?(12) MS. RONALD: Mr. Corkhill is not listed as a(13) witness, Your Honor.(14) DR. SILVER: No? Okay. So then when -- when(15) ADWR's witnesses -- and we're forced to ask those basic(16) questions like, Do you believe in reality? Then I guess(17) we'll do that. That's fine. If we can't agree that --(18) on something so simple as to whether there's a(19) connection. That's fine.(20) ALJ SHEDDEN: All right. Well, and, you know,(21) whether folks should have filed, there's no obligation(22) for folks to file a proposed facts ahead of a hearing.(23) We're on a very short time frame. I know when we had(24) our first discussion was probably back in September. At(25) that time the appellants all were in favor of a longer

Page 32


(2) delay before the hearing. Pueblo Del Sol at that point (3) was concerned with meeting the requirements set out in (4) the statute, and I would suspect the compromise (5) position, here we are today. (6) So given that I don't hear unanimous consent to (7) take the time to discuss the issues and proposed (8) stipulated facts, I'm going to suggest we just go ahead (9) and move forward then, and I'll let the parties present(10) their evidence, I'll get to the objections that come in,(11) I'll make the rulings as necessary, and we'll leave it(12) at that.(13) But I do want to be clear that from my(14) perspective, the issues that I have to deal with are set(15) forth in those -- I'll call them numbered paragraphs --(16) A through D in the Notice of Hearing there, and(17) determine whether something is relevant. Those are the(18) issues I'll be looking to, along with the applicable(19) rules in the statutes, and I guess I'll just leave it at(20) that.(21) Yeah, go ahead.(22) MR. McDEVITT: Your Honor, might we take(23) 15 minutes for parties' counsels to confer, to see if(24) it -- we might be able to get some agreement out of(25) stipulating things like hydrological connection between


(8) Pages 29 - 32



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(2) surface water and groundwater? (3) ALJ SHEDDEN: All right. Let me ask, Is there (4) any objection to taking the 15-minute recess to (5) consider, at least preliminarily, some issues? (6) MS. RONALD: ADWR has no objection. (7) MR. SULLIVAN: We have no objection too. (8) ALJ SHEDDEN: All right. And Mr. Gaudio? (9) MR. GAUDIO: No, no objection.(10) ALJ SHEDDEN: All right. And the others have(11) already weighed in. So let me just see if -- and one(12) thing I'm going to do is throw another issue out that(13) you may want to just at least address preliminarily,(14) maybe not something you want to take the time at this(15) point, but at the end of the day or the end of the week,(16) we will be done with all the evidence, hopefully, and if(17) not, we'll just come back probably next year. But you(18) never can tell about that either.(19) But at any rate, the question I have for folks(20) is how we're going to go forward with our closing(21) arguments, whether it makes sense to do them in writing?(22) If so, whether we'll just have simultaneous filings for(23) everyone? Whether it makes sense to have the party with(24) the burden of persuasion, burden of proof, get the last(25) word. So if you haven't given any thought to that, you

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(2) can -- excuse me -- begin to give it some thought. If (3) you want to discuss that while you're on the break, (4) you're welcome to. (5) Let me just address one or two other things that (6) came up, and then we'll take our short recess and see (7) where we stand. (8) On the computer monitors -- I mean, I'm not even (9) sure what we -- what the staff opened up. It looks like(10) two copies of the exhibits have been opened, and it may(11) be that we've got some windows and tabs opened here, but(12) on the hard drive of this computer is a list called the(13) combined list of exhibits. It should have all the(14) exhibits that were filed. We've got a pending motion to(15) add an exhibit. I think that did get put on here; I'm(16) not 100 percent sure whether it did or not. Yeah, 36,(17) yeah, it does show it's been listed. They all should be(18) active links.(19) There -- the question that came up -- well, I'm(20) a little slow -- the question that came up was operating(21) the mouse and who might have control. My suggestion, as(22) we move forward, is this: That the party questioning a(23) witness should take control of the mouse and open up the(24) exhibit or exhibits that they want that witness to(25) address. If you're not comfortable doing that, you can,

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(2) of course, enlist the aid, often parties group up (3) with -- in this case we have appellants opposed to the (4) application, or you can have an assistant help you with (5) that, if need be. I can do it, but that slows the (6) process down, because if I'm operating the mouse, it's (7) tough for me to pay attention to what's going on around (8) me. But I have no problem doing it, if necessary. (9) The witness will have a mouse, and so we can get(10) the witness to help a little bit, particularly if(11) there's a map or something that the witness would like(12) to point at. They can use the mouse to use the cursor(13) to go ahead and kind of point the area they're(14) interested in.(15) Also -- and it did look like we had some(16) windows, some tabs opened up, is the entire docket in(17) this matter, as it stood -- I don't think there was(18) anything filed today or we would see it on here. So if(19) there's a need to call up any information from the(20) docket, we can put it on the screen in the same fashion.(21) And finally, if need be, of course, we can have access(22) to the Internet to pull up copies of statutes and rules(23) that may be helpful for witnesses to take a look at(24) while the questioning is going on.(25) Here's where we stand then: Those are pretty

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(2) much the only -- well, one other thing, I guess, and (3) then we'll move forward. At the prehearing conference, (4) we did have a discussion about how the evidence would be (5) presented in terms of the order of presentation. And (6) although there may have been some disagreement at that (7) time, it's my intention, absent any objection at this (8) point or need to vary from this, we do go to ADWR's (9) witnesses first and get an understanding of what they(10) did and why they did it.(11) The way I will work is Ms. Ronald or Ms. Klobas(12) will call a given witness. They'll ask whatever(13) questions they have of the witness. Then I will -- for(14) the DWR witnesses, I'll probably go to Pueblo Del Sol(15) next, group questions, then move my way down the(16) appellants, with not necessarily choosing a particular(17) order, I'll go in the order you're sitting, probably,(18) unless there's a desire to skip and go out of order.(19) Then we'll be back to DWR for follow-up(20) questions, and given the number of parties and the fact(21) that this is an administrative hearing, not a trial,(22) I'll let you go through as many times as necessary, as(23) long as we're getting new information that's, of course,(24) relevant to the matter. Once they're finished with(25) their first witness, we'll go to the second one, follow


(9) Pages 33 - 36



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(2) the same basic procedures. (3) After DWR has presented its evidence in that (4) fashion, I'm going to turn to the appellants. And if (5) you three can come to an agreement among yourselves as (6) to the appropriate order, I probably won't have any (7) problem with that, but if not, I have a tendency to do (8) things alphabetically, take sort of the risk of bias out (9) of there. If you're an A or a Z, that may be(10) problematic, having to spent your whole life at the(11) beginning or the end, but that's the way I'll go(12) forward. Follow the same basic procedure, questions(13) from the person calling that witness in this case, going(14) next to the appellants who, in theory, share the same(15) interests, getting their questions, and then over to the(16) Department or Pueblo Del Sol.(17) We'll work our way through the appellants.(18) We'll go to Pueblo Del Sol, get their evidence,(19) following the same procedure, and then I'll be asking(20) everyone, Is there any other evidence they'd like to(21) present? And we'll go through that whole cycle as many(22) times as is necessary for all the parties to feel(23) they've presented all their evidence.(24) The one thing that I do like to do is give the(25) parties with the burden of persuasion the last word.

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(2) That's a little tough when there's three of you here, (3) but that's what we'll work to. So at the end of the (4) first round, if DWR wants to present some additional (5) evidence, that'll, of course, open up the appellants to (6) get the last word. (7) And for all the witnesses' benefit, I may well (8) ask some questions of my own as we go forward. So don't (9) be surprised if that happens.(10) So aside from the taking a little time to have a(11) discussion among yourselves, let me ask, Are there any(12) questions or preliminary matters that any of you feel we(13) should be discussing before we move on?(14) MR. GAUDIO: Judge?(15) ALJ SHEDDEN: Yes.(16) MR. GAUDIO: It's John Gaudio. So I just want(17) to make sure that I'm understanding this correctly. The(18) dispute is about whether DWR needs to consider the(19) impacts on the rights of the -- of the BLM, and you're(20) saying that you'll make that determination after this(21) hearing is held, and you won't find it kind of necessary(22) to decide that before, you know, the hearing -- during(23) the hearing, in order to rule on whether the Department(24) evidence is relevant?(25) ALJ SHEDDEN: Well, kind of two parts to that.

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(2) The first part, correct, if that is one of the -- and B (3) and C have -- essentially, issues B and C, as set forth (4) in the Notice of Hearing, are similar, I guess one could (5) say. But, right, it seems to me that at the end of the (6) hearing, I've got to issue a decision, and in the (7) simplest form, you know, reading B, whether ADWR (8) erroneously refused to consider impacts of the proposed (9) pumping on the flow of the San Pedro River. Yes or no?(10) Seems to be, you know, in a nutshell, I suspect I fell(11) short of my statutory duties if I limited it to that,(12) but yes, at the end of the hearing, that will be --(13) those questions will be answered from my perspective.(14) As to the relevance, you know, I printed up --(15) it's Arizona Rule 401. And, you know, knowing that they(16) modified the rules beforehand in form, not substance, I(17) went ahead and printed, for my own benefit, Arizona Rule(18) of Evidence 401 that covers relevance, and what it says(19) is evidence is relevant if, A, it has a tendency to make(20) a fact more or less probable than it would be without(21) the evidence, and B, the fact is of consequence in(22) determining the action.(23) So I don't see how I can understand whether(24) something is of consequence without looking at those(25) issues, and perhaps the underlying rules in statutes.

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(2) So that's where the relevance comes in, in my view. (3) Perhaps the second part of your question is (4) potential confusion in what are facts of consequence to (5) this matter? To me, they've got to be tied to the (6) issues in the Notice of Hearing, absent an agreement of (7) the parties to change those issues. (8) Does that answer your question? (9) MR. GAUDIO: It does, but it just feels like a(10) purely legal question to me, whether -- on whether or(11) not DWR erred in not -- not considering the impacts.(12) I'm struggling with the kind of evidence that we would(13) be able to add.(14) ALJ SHEDDEN: Well, it may be that there's --(15) BLM doesn't want to present any evidence on that, and(16) that would be fine by me. It can be handled as a legal(17) question. But the problem -- or problems, and I use(18) those words loosely, are this or these: One, 41-1092.07(19) probably indeed, I think I have the statute here, but I(20) will not pull it out. It says something to the effect(21) that all parties may present evidence and legal argument(22) on disputed issues. So in a statute that allows parties(23) to present evidence and legal argument, that makes it(24) difficult for me to say, No, I'm not going to let you(25) present evidence. This is purely a legal issue.


(10) Pages 37 - 40



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(2) Coupled with that, again, back to the reality (3) that the director can reject my legal findings, so if I (4) rule -- and forget these issues for a minute, but if I (5) rule as a matter of law that -- on a dispositive issue, (6) then my decision moves over to the agency, and the (7) director says, I got it wrong, that director, she's left (8) without evidence in which to decide a matter and -- and (9) you're coming back here anyway.(10) So as a result of those two particular things,(11) there's a real aversion to what we would call piecemeal(12) litigation at the Office of Administrative Hearings, and(13) the better approach is to consider the legal issues at(14) the end of the hearing. And if parties feel that(15) there's no need to present evidence on a given point,(16) that it is purely legal, that's fine. We'll move along(17) more quickly.(18) Alternatively, I will say there have been times(19) that I've decided matters purely on stipulated facts,(20) but I need some facts if -- if even just when the(21) notices were issued, when -- when objections were filed,(22) these kind of things, and I don't think that's too(23) likely to happen here at this point.(24) So does that help clarify things?(25) MR. GAUDIO: Yes, it does.

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(2) ALJ SHEDDEN: All right. Anything else? (3) Mr. Gaudio, anything else? (4) MR. GAUDIO: No. (5) ALJ SHEDDEN: Go ahead. (6) MR. McDEVITT: Your Honor, I was going to ask, (7) for example, if parties were to stipulate for issue B (8) that proposed pumping does or can have an effect on the (9) flow of a river adjacent or downstream from the pumping(10) site? Would that allow you to make a legal conclusion?(11) Would that, in your opinion, make other evidence(12) irrelevant?(13) ALJ SHEDDEN: Well, I don't know, and, you know,

(14) here's the problem: If you stipulate to facts, I'm(15) going to take them. I'm not going to ignore stipulated(16) facts.(17) I -- it was a long time ago, but I remember(18) sitting in this room after getting a set of stipulated(19) facts on a matter and thinking, How does the appellant(20) possibly think they can prevail on these facts? But,(21) you know, that's what they went with; that's what I(22) take. If the -- and the point, I guess, another way to(23) look at it is, if that's a stipulated fact and one party(24) wants to present additional evidence, you know, I can(25) take that evidence in, subject to any objection to it.

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(2) You know, you're not limited by stipulated (3) facts. The hope would be that -- that we would limit (4) the need for the examination of the witnesses, which can (5) take a long time, particularly when five people, and (6) six, if you include me, are going to get an opportunity (7) to question each witness. (8) Anything else? (9) MR. McDEVITT: No, Your Honor.(10) ALJ SHEDDEN: All right. Any other questions or(11) comments?(12) MR. SULLIVAN: Off this point, Your Honor --(13) William Sullivan, on behalf of Pueblo Del Sol -- had(14) asked you a question about whether if we brought in a(15) flash drive with PDFs on it, so that we could do it in(16) order, whether that was possible to get it up on the(17) screen. I don't think you have an answer, but you said(18) we could take it on the record. So I just wanted to(19) make my question on the record.(20) ALJ SHEDDEN: Thank you. That was something(21) that came off the record. I guess the question I have(22) is it -- I -- I assume that if it's PDF, there's a PDF(23) reader on here, because we're looking at -- we will be(24) looking at PDF exhibits. I mean, that's what all of(25) these files on the exhibit list are.

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(2) The question I would have is what is the purpose (3) of getting documents that haven't been provided as (4) exhibits to this point? (5) MR. SULLIVAN: No, they would be exhibits. It (6) would be just so that we don't have to flip through, and (7) they would already be in order, and we wouldn't have to (8) flip them, you know, as we're going through it. It (9) would just be easier to present; that's all.(10) ALJ SHEDDEN: Oh, yeah. I -- you know, the(11) concern I have is you, in theory, all filed(12) certifications when you filed your exhibits saying that(13) these -- that we're going to look at the electronic(14) ones, to the best of your knowledge or some such thing,(15) are identical to the paper ones that were filed. And(16) the same doesn't hold true with the PDF, and if it(17) wasn't crystal clear, and, you know, this is good(18) timing, perhaps, because -- but Case Management Order(19) Number 1 set out the idea that those paper exhibits are(20) an official record. And that's why we need the(21) certification.(22) The Superior Court doesn't favor the electronic(23) exhibits for some reason, that it doesn't concern me,(24) and so that's why we need to get one copy on paper from(25) everybody and the certification, because now we've


(11) Pages 41 - 44



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(2) got -- we've met our obligation at the office to have a (3) file that we can send over to the Superior Court. (4) I'm sure you all agree we hope we don't end up (5) there, but every case we need to assume will be going (6) there, and so that's the approach. So my preference (7) would be that we just go ahead and use the ones that (8) have been put up in that regard anyway. (9) MR. SULLIVAN: I think we can do that,(10) Your Honor.(11) ALJ SHEDDEN: All right. Yeah.(12) MR. GAUDIO: Judge, one other thing. I missed(13) the prehearing conference, I apologize for that -- this(14) may have been discussed -- but I don't have real strong(15) feelings, but it seems maybe to make some sense that(16) Pueblo Del Sol follow DWR and then the appellants go,(17) since their interests are aligned, rather than bounce(18) from one side of the case, back and then back again.(19) ALJ SHEDDEN: Yeah. I'm going to do the -- the(20) problem with that approach is that the appellants bear(21) the burden of proof in the matter, and it may well be(22) that Pueblo Del Sol will decide not to present any(23) evidence after hearing the appellants' case.(24) What you did miss at the prehearing conference(25) was Ms. Ronald suggesting or objecting to having DWR go

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(2) first and -- and wanting to have the appellants present (3) their evidence first. And I set this order, because, (4) again, it's fairly typical of the way we do things, (5) hopefully to help narrow the issues by having the agency (6) present its evidence. (7) I mean, we do have the prehearing brief and (8) understanding of what they did and why, but I don't have (9) any evidence yet. And so the idea would be to help(10) narrow the scope of things. If there's a matter that's(11) not in dispute, the appellants don't need to go forward(12) that way. It's not necessarily as convenient when we've(13) got five separate parties, but absent some compelling(14) desire on Pueblo Del Sol's part to go after DWR and to(15) stick with the order that was set forth at the(16) prehearing conference. So you can consider that on the(17) break, if you'd like, or perhaps discuss it among(18) yourselves, and if we need to address it, we will.(19) All right. Here's what I'm doing to do. For(20) reasons that still escape me, when they painted our(21) hearing rooms, they decided not to put the clocks back(22) in. But because we have the computer going, we can use(23) computer time. What I'm going to do is suggest we take(24) about a 15-minute break to let you begin your(25) discussions, to let folks have a break as well. I'll

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(2) pop my head back in here at about 20 minutes after. If (3) you want more time, if the parties are in general (4) agreement that there's a benefit to continuing (5) discussions, from my perspective, you could have more (6) time. If it's clear to the parties that that's not (7) going to be a good use of time, then we'll just move (8) forward. (9) I didn't mention it, but I will let parties make(10) a brief opening statement, if they would care to do so.(11) It's not necessary. And for those who don't know, the(12) opening statements are not considered evidence, but a(13) good way to put it would be a preview or a road map, if(14) you will, of what you think the evidence will show.(15) The other thing, understanding that although I'm(16) calling it a break, if you're consulting among(17) yourselves, it's not really a break for the parties(18) concerned. If you need a little extra time before we(19) get on the record to -- to truly have a break, again,(20) just let me know when I come back, and we'll settle on(21) what time we're going to pick things back up.(22) With that, I'll see you in about 15 minutes.(23) (Recess taken.)(24) ALJ SHEDDEN: All right. We're back on the(25) record. The parties have engaged in an extended

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(2) discussion off the record. And let me just ask, are we (3) set to put any stipulations on the record or where do we (4) stand? (5) MR. McDEVITT: Your Honor, this is David (6) McDevitt on behalf of Ms. Gerrodette. We believe that (7) the parties are willing to stipulate, though we did not (8) entirely stipulate some -- so I'm opening this up for (9) objection, that ADWR did not --(10) MR. SULLIVAN: I'll object. We didn't --(11) ALJ SHEDDEN: Well --(12) MR. SULLIVAN: We didn't stipulate to anything,(13) Your Honor. And where we agreed to continue discussions(14) throughout this hearing to see if we could reach a(15) stipulation, then I would oppose any reading of a draft(16) stipulation that we did not agree to.(17) ALJ SHEDDEN: All right. And given if there's(18) no stipulation again, probably better served to keep any(19) partial stipulations or information off the record. So(20) with that, let me just ask, Do you want to add anything(21) else, Mr. McDevitt?(22) MR. McDEVITT: No, Your Honor.(23) ALJ SHEDDEN: All right. Then let me just ask,(24) we're set then to just move forward with opening(25) statements, I take it?


(12) Pages 45 - 48



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(2) MR. GAUDIO: Yes, Your Honor. (3) DR. SILVER: May I ask a question? (4) ALJ SHEDDEN: Yeah. (5) DR. SILVER: So -- and this goes back to our (6) initial discussion. If -- if we all agree that ADWR (7) just didn't consider the federal -- the federal water (8) rights, they said that -- they said they can't, and we (9) think they can, but the bottom line is they didn't do(10) it. So now, since the first witness is going to be(11) testimony on how they didn't consider it, what -- I(12) don't understand what the purpose is of having someone(13) come up here now, and what is he going to say --(14) ALJ SHEDDEN: Well --(15) DR. SILVER: -- of how they went through the(16) process? We don't -- it's -- it's irrelevant to the(17) ultimate decision is should they consider or not(18) consider the federal water rights?(19) ALJ SHEDDEN: Well, I don't know what the(20) witness is going to testify to either. And that's why(21) we're going to call him up here and hear from every(22) witness. Again, I can tell you that to me these do tend(23) to look like primarily issues of law. There's room for(24) uncertainty or ambiguity on some of that, I guess. But(25) again, going back to the statute 41-1092.07 that says,

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(2) All parties are entitled to present evidence and legal (3) argument on the issues, that's what we're here for, to (4) have a hearing and do that. If nobody wants to present (5) any evidence on a given issue and wants to -- and (6) everyone wants to present legal argument on it, that's (7) fine. But I would think that, you know, at a minimum, (8) the fact would come in that DWR's witness would confirm (9) that they did or didn't consider certain things, and(10) it's not beyond the realm of possibility that any of the(11) parties' witnesses may have a slightly different take on(12) things than the parties or their attorneys do.(13) So the bottom line is I don't know what the(14) evidence is going to be. I don't know what DWR's(15) witnesses or anyone else are going to testify to. I(16) have the brief summaries that the parties filed, but(17) it's been a while since I looked at those, so that's how(18) we're going to go forward.(19) All right. If there's nothing else, I can turn(20) to the parties for opening statements. You're not(21) required to make one. But just to make sure we don't(22) forgo the opportunity for that, I'm going to turn to DWR(23) first. Ms. Ronald, an opening statement, if you'd care(24) to make one.(25) MS. RONALD: Thank you, Your Honor.

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(2) We filed a prehearing legal memorandum, which (3) sets forth our theory of this case. And in that (4) memorandum we described the fact that by statute and (5) rule the Department of Water Resources must consider (6) certain criteria when determining whether to grant or (7) deny an application for an adequate water supply (8) designation. And in this case the Department did that, (9) and the statutes and rules that apply to that process(10) are set forth in the legal memorandum that ADWR provided(11) prior to this hearing.(12) In the rules, there are basically five criteria(13) or five sets of criteria that need to be complied with.(14) One deals with physical availability, one deals with(15) continuous availability, a third is legal availability,(16) a fourth is financial capability, and a fifth is(17) water -- the source of the water must be of an adequate(18) water quality for the intended use.(19) In this proceeding, it's our position that none(20) of the parties, none of the appellants challenged the(21) financial capability of the appellant or the water(22) quality determination that was made by ADWR, as provided(23) by rule.(24) It's also ADWR's position that Pueblo Del Sol,(25) the applicant in this matter, complied with the three

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(2) rules dealing with physical availability, continuous (3) availability, and legal availability. And that none of (4) the appellants, in our view, challenged the criteria and (5) its application to the PDS application. (6) Instead, the appellants assert that there is a (7) lack of physical, continuous, and legal availability, (8) because of potential impacts on the San Pedro River (9) and/or the San Pedro Riparian National Conservation(10) Area, also known as SPRNCA. By rule, as we set forth in(11) our legal memorandum, we do not and did not have the(12) authority to consider any potential impacts from the PDS(13) groundwater pumping on the surface flows of the(14) San Pedro River or SPRNCA.(15) In addition -- and we cited some case law,(16) Your Honor, I believe at page 11 of our brief -- that(17) deals with the jurisdiction of the Superior Court for(18) the Gila River Adjudication, to deal with federal(19) reserved water right claims that have been filed for(20) SPRNCA, and that's what's at the heart of the BLM(21) objection and notice of appeal.(22) As indicated in a case that's cited on page 11(23) of our memorandum, the Yavapai Apache Nation case, the(24) Gila River Adjudication court has exclusive jurisdiction(25) over those water -- those water right claims. These


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(2) claims have not yet been adjudicated. So even if ADWR (3) did have jurisdiction to examine them, there would be no (4) way to determine what any of the possible adverse (5) impacts would be from PDS's proposed groundwater (6) pumping. (7) And there's a case that the appellants rely on (8) that we do not believe is helpful. It's the Cappaert (9) decision, and the important part of that decision -- in(10) that case groundwater pumping was curtailed because of(11) impacts on the federal reserved water right. In that(12) case, however, the federal reserved water right had(13) already been quantified, and the limitations on pumping(14) that the court imposed had to be tailored to meet the(15) minimum needs of the reservation. Because we don't know(16) what the minimum needs of the federal reservation for(17) SPRNCA are, it's impossible to determine whether there(18) should be any limitations on pumping.(19) And, more importantly, all of those decisions(20) should be made by the Gila River Adjudication court, not(21) by DWR as part of an administrative process on an(22) application for a determination of adequate water supply(23) designation.(24) I think it's important to point out that ADWR is(25) an administrative agency, and it is required to follow

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(2) its own rules and regulations, and to do otherwise would (3) be unlawful. That statement is quoted in the AMWA (4) (phonetic) case that is cited at page 2 of DWR's (5) response to the Gerrodette motion to vacate. (6) Also in that case the court appropriately points (7) out that an agency's interpretation of its own (8) regulations is entitled to great weight. (9) The SPRNCA claims have not been adjudicated, and(10) so potential impacts on federal reserved water rights(11) are not proper grounds for a notice of appeal under(12) 41-1092.03, subpart (b). And that is argued again in(13) the ADWR response at pages 7 to 8.(14) This is really an easy case, in our view. We(15) have a statute that we're supposed to follow. We have(16) rules that we're supposed to follow. And in fact, to do(17) otherwise would be unlawful. We followed those rules.(18) Nobody, none of the appellants claim that we(19) inappropriately applied the criteria that are set forth(20) in the rules. Instead they make other arguments about(21) what ADWR should have considered outside of its rules.(22) We do not believe that that provides any basis(23) for the relief that the appellants are seeking, and it(24) was proper for ADWR to grant the application as a draft(25) decision and order for consideration by any objectors

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(2) who chose to file a notice of appeal. We believe that (3) the draft decision and order should be upheld, and that (4) the accompanying cover letter, with the draft decision (5) and order, outlines the Department's reasons for (6) rejecting the claims that were asserted by the (7) appellants, and that that reasoning should be upheld as (8) well. (9) ALJ SHEDDEN: All right. Anything else?(10) MS. RONALD: Not at this time.(11) ALJ SHEDDEN: Okay. Why don't I go to you,(12) Mr. Sullivan, if you would care to make an opening(13) statement?(14) MR. SULLIVAN: Thank you, Your Honor.(15) And I'll try not to duplicate too much of the(16) Department's statement, because I think she hit it on(17) the -- the nail on the head, and this is a fairly(18) simple, straightforward case.(19) The evidence will show -- the Department will(20) put on the administrative record and show that it did(21) follow the rules which implement the statute, the(22) statute which was passed after the rules were in(23) existence.(24) In other words, the legislature knew full well(25) what the rules were when they enacted that language.

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(2) They could have changed or ordered DWR to change the (3) law. They did not do so on these criteria. And I think (4) that's pretty important in the long run, because the (5) legislature has adopted a statute with the rules in (6) place. (7) The Department will go through, I believe, and (8) show what it did when it received an application from (9) Pueblo Del Sol. Pueblo Del Sol's witness will explain(10) what was involved in preparing that application and the(11) model that supported it. We'll -- the two entities will(12) show that the application, as reviewed by the(13) Department, confirmed that all the rules and regulations(14) that define what an adequate water supply is for -- and(15) entitles a designation for a water company, were, in(16) fact, met.(17) What you have are some appellants who want to(18) change the process. They want to rewrite the rules.(19) This is not the proceeding to rewrite the rules. There(20) are other processes to do it.(21) You'll have at least one appellant, BLM, who(22) wants the Department to consider what its currently(23) unquantified claim to a federal reserved water right(24) might be, and to consider that in this application.(25) Just -- just thinking about that out loud shows --


(14) Pages 53 - 56



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(2) should indicate how silly that request is. It's (3) unquantified. And if the Department were to try to take (4) that on, what would they be looking at? How would PDS (5) be required to quantify it for BLM? The place that will (6) be quantified, if it's quantified at all, is in the (7) general adjudication. The place where the BLM will have (8) any opportunity it may have -- want to enforce its (9) rights is in the general adjudication.(10) This is not that proceeding. This proceeding is(11) simply a determination of whether the rules, as applied,(12) have been met, because the rules require that when they(13) are met, the director shall issue the designation. And(14) the evidence will clearly show that PDS did, in fact,(15) comply with and satisfy those rules.(16) There appears to be a lot of desire on the part(17) of the appellants to submit a lot of redundant and(18) irrelevant evidence related to regional impacts of(19) groundwater on stream flows, both in the San Pedro and(20) elsewhere. I don't think we need to try to resolve all(21) the technical issues that are involved in many of those(22) reports, because that's not the issue before you. The(23) issue before you is whether PDS satisfied the criteria(24) for an adequate -- designation of adequate water supply,(25) which it has done.

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(2) There has been no other model presented -- there (3) has been no other testimony presented so far, and I (4) don't think there will be, as to what the impact of the (5) Pueblo Del Sol pumping will be. They have presented no (6) new evidence related to that. They haven't criticized (7) the model that PDS relied upon and the Department relied (8) upon. It clearly shows that the depth groundwater after (9) 100 years -- the depth of groundwater after 100 years(10) will be well within the statutory limits, as defined by(11) the Department.(12) The presumption in Arizona is that if you are(13) pumping from beneath the surface, you are pumping(14) groundwater. The Department -- the BLM argues that,(15) well, they may have a right at some point in time to(16) halt that pumping. It's a long ways away, and I believe(17) the evidence will show that if they were to try to(18) enforce their right, PDS is one of the last people that(19) they would go against because there are a lot of(20) additional wells well before that have much more impact(21) on the river.(22) Bottom line is, PDS filed an appropriate(23) application. The Department of Water Resources followed(24) its rules and regulations and determined that it was(25) complete, and that it -- a designation should be issued,

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(2) and the opinion and order properly makes that finding. (3) It should be upheld for those reasons. (4) ALJ SHEDDEN: All right. Mr. Gaudio? (5) MR. GAUDIO: Thanks, Judge. (6) As I mentioned earlier, BLM is here for, you (7) know, a very simple, simple reason. It's to object to (8) DWR granting the 100-year adequate water supply (9) determination to Pueblo Del Sol, without having first(10) considered the possible impacts on BLM's federal(11) reserved water rights in the San Pedro River Basin.(12) Congress expressly created these federal(13) reserved water rights for the purpose of protecting the(14) SPRNCA, effective upon its creation in 1988. And except(15) for the proceeding in the Gila River General Stream(16) Adjudication, the SPRNCA-contested case, is in the(17) process of confirming these rights and will do so(18) certainly within the next hundred years.(19) DWR and Pueblo Del Sol argue, based on an(20) applicable adequate water supply regulation, that DWR is(21) not authorized to consider such impacts, and so such(22) impacts are irrelevant, despite what applicable federal(23) and state law require.(24) So I agree this is a simple case, but to declare(25) it's not about what DWR Adequate Water Supply rules say,

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(2) but what DWR must require. And it's important when an (3) applicant's proposed pumping is a water that's (4) hydrologically connected to water that is the basis of (5) an express federal reserved water right, as is the case (6) here. (7) Now, despite what DWR claims, it's not confined (8) to can't we apply the Adequate Water Supply rule that (9) DWR itself wrote. But instead, DWR and this body, in(10) this very unique case involving federal reserved water(11) rights, must consider other legal -- other sources of(12) legal authority, as well. And that is the Arizona(13) statute requiring "legal availability," applicable(14) federal case law and Arizona case law.(15) The applicable statute is A.R.S. § 45-108(i),(16) which provides adequate water supply, meaning sufficient(17) groundwater will be continuously, legally, and(18) physically available, to satisfy the water needs of the(19) proposed use for at least 100 years.(20) However, based on this pretty plain statutory(21) language, Administrative Code R12-15-718 A and C, read(22) together, provide only, in relevant part, quote: The(23) director shall determine that an applicant will have(24) sufficient supplies of water that will be legally(25) available for at least 100 years, if the applicant


(15) Pages 57 - 60



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(2) submits evidence that the applicant has a certificate of (3) convenience and necessity approved by the ACC, (4) authorizing the applicant to serve the proposed use. (5) Apparently DWR interpreted the statutory (6) language to mean only that an applicant must be legally (7) authorized to pump the groundwater well, which is very (8) different from the clear meaning of the statutory (9) language, I believe, which specifies that instead the(10) groundwater itself must be legally available to pump it.(11) So what must it mean for the groundwater to be(12) legally available in this case? The analysis is(13) governed by the fact that when Congress created the(14) SPRNCA in 1988 to protect one of the best remaining(15) examples of a riparian habitat in the extremely arid(16) American Southwest, it expressly reserved to the U.S.,(17) all unappropriated water necessary to support the(18) purpose of the reservation.(19) And when the U.S. holds such federal reserved(20) water rights, the Arizona Supreme Court itself,(21) following an important earlier U.S. Supreme Court(22) decision, has held that these rights are protected from(23) junior groundwater pumping. And Cappaert, in 1976, the(24) U.S. Supreme Court held, quote: Federal water rights(25) are not dependent upon state law or state procedure.

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(2) And quote: The United States can protect its water from (3) subsequent diversion, whether the diversion is of (4) surface or groundwater. And then in Gila -- in the Gila (5) River III, which was the result of an interlocutory (6) review of issues raised in the Gila General Stream (7) Adjudication in 1999, the Arizona Supreme Court (8) concurred with these established federal reserved water (9) right principles and clarified that, quote: Owners of(10) federal reserve rights enjoyed greater protection from(11) groundwater pumping than do holders of state law rights,(12) to the extent that greater protection may be necessary(13) to maintain sufficient water to accomplish the purpose(14) of the reservation. And quote: We may not defer to(15) state law, where to do so would defeat federal water(16) rights. And finally, quote: We do not underestimate(17) the burden that the State of Arizona will face in(18) accommodating federal reserved water rights within its(19) water resource management.(20) And importantly, the Arizona Supreme Court held(21) further that these federal reserved water rights, this(22) doctrine, applies to federal reserved groundwater as(23) well as surface water.(24) Now, the DWR's actions in this case are(25) inconsistent with these holdings, we believe.

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(2) Pueblo Del Sol and DWR have argued that even if DWR were (3) authorized to consider impacts on BLM's federal reserved (4) water rights, because the water rights are only, quote, (5) a claim, none of this law applies. But Congress clearly (6) reserved the right, the Gila General Stream Adjudication (7) has recognized the existence of the right, and DWR (8) issued a report in the Gila General Stream Adjudication (9) finding nothing unreasonable about BLM's quantification(10) of the right provided in this claim.(11) Given these facts and considering that the U.S.(12) did not have the federal reserved right recorded in(13) Cappaert, as I understand it, rather than DWR assuming(14) that the water to be pumped is legally available, unless(15) BLM has a finalized decreed federal reserved water right(16) in hand, DWR must at least consider whether at some time(17) over the next 100 years Pueblo Del Sol's proposed(18) pumping could impact BLM's already vested, though not(19) today finally decreed, federal reserved water right.(20) Importantly, DWR's determination includes an(21) escape provision, which means pursuant to AAC(22) R12-15-715, the director may, at any time, revoke this(23) designation if the findings of fact or the conclusions(24) of law upon which the designations in the case change or(25) are invalid, or if an adequate water supply no longer

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(2) exists. So this language and regulation apparently (3) would allow ADWR to revoke this adequate water supply (4) determination after BLM has a finalized decree in the (5) Gila General Stream Adjudication. (6) So we believe that the sounder, more efficient (7) approach here would be to await the outcome of the (8) general stream adjudication, expected to be in the next (9) year or two, before issuing the adequate water supply(10) determination. This approach would prevent(11) Pueblo Del Sol and others from relying on a designation(12) that's destined to be revoked, makes no sense.(13) So what does BLM need to show to convince(14) everyone that this law does apply in this case? Very(15) simply, BLM needs to show how and the degree to which(16) the groundwater is connected to the surface water and(17) underground water in the San Pedro River Basin, which(18) BLM's federal reserved water rights depend on, and(19) therefore, that Pueblo Del Sol's proposed pumping could(20) cause harm to BLM's rights.(21) And BLM is going to do this by calling two(22) employees of the Department of Interior as witnesses.(23) First will be Dr. James Leenhouts, who is a hydrologist(24) and associate director of the United States Geological(25) Surveys, Arizona Water Science Center, in Tucson,


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(2) Arizona. He'll provide a general overview of (3) groundwater geology and how groundwater interacts with (4) surface water, and explain the specific connection (5) between the groundwater and the surface water in the (6) San Pedro River Basin itself, and how pumping in the (7) basin, including Pueblo Del Sol's proposed pumping, will (8) eventually impact San Pedro River Basin water that BLM's (9) rights depend on.(10) After Mr. Leenhouts, we'll call Bill Wells, a(11) hydrologist and federal water rights specialist in BLM's(12) Arizona state office in Phoenix, to describe the BLM(13) rights that are like -- that likely will be impacted by(14) Pueblo Del Sol's proposed pumping, as well as to discuss(15) the proceedings in the Gila General Stream Adjudication(16) that are related to BLM's federal reserved water rights.(17) The Department of Water Resources at(18) Pueblo Del Sol insist in this case that DWR has no(19) authority to consider the impacts that Pueblo Del Sol's(20) pumping on BLM -- impacts from Pueblo Del Sol's pumping(21) on BLM's federal reserved water rights. But(22) A.R.S. 45-108(i), Cappaert and Gila River III require(23) DWR to do just that, we believe.(24) And after hearing our case, we all understand(25) the connection between the groundwater and the water

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(2) that supports BLM's federal reserved water rights in the (3) San Pedro Basin. BLM hopes that you will recommend to (4) DWR that it consider -- reconsider its adequate water (5) supply determination to Pueblo, after taking into (6) account the likely impacts from Pueblo Del Sol's (7) proposed pumping over the next 100 years, on both the (8) groundwater and surface water that BLM's SPRNCA federal (9) reserved water rights depend on.(10) Thank you, Judge.(11) ALJ SHEDDEN: All right. Go ahead.(12) MR. McDEVITT: May it please Your Honor, I'm(13) David McDevitt, certified limited practice student,(14) representing Ms. Gerrodette -- Ms. Patricia Gerrodette.(15) Our client asks, Your Honor, to recommend that(16) DWR not grant the designation unless and until it has(17) found that groundwater will be legally available for at(18) least 100 years. DWR has made no such finding and asks(19) Your Honor to go against the Supreme Court's decision in(20) Gila River III, wherein the court held that Arizona's(21) water resource management may not ignore the impact of(22) groundwater pumping on federal reserved water rights.(23) DWR raises Yavapai as an example to the court(24) where water resource management and general stream(25) adjudication are separate and distinct in order to argue

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(2) that only the general stream adjudication has the (3) jurisdiction to make a decision about these claims. (4) The appellant, Ms. Gerrodette, does not dispute (5) that this is not the proceeding in which to grant a (6) vested final right. My client only argues that it must (7) be taken into consideration. (8) In Gila River III, the Supreme Court very (9) clearly makes both the distinction that there will be an(10) effect on the general stream adjudication as a result of(11) this ruling, which held specifically that groundwater(12) pumping may be averted by those who hold federal(13) reserved rights. And in addition, there will be an(14) effect on the water resource management process. And(15) the court acknowledges that this will be burdensome, and(16) that this will flip Arizona water law on its head, but(17) it made that holding because it is the sensible(18) decision.(19) The purpose of the designation of adequate water(20) supply is to let prospective buyers know whether a home(21) has a stable and reliable source of water. DWR's own(22) website states that it acts as a consumer advisory(23) program, ensuring that potential real estate buyers are(24) informed about any water supply limitations. Here we(25) actually know about a water supply limitation, and DWR

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(2) would like to, in the face of information to the (3) contrary, grant the designation anyway. Ignoring legal (4) realities and mechanically applying regulations vitiates (5) the purpose of this legislation. It not only diminishes (6) the significance of a designation, but it leaves (7) consumers worse off than if they'd been given no (8) assurances at all. That DWR may revoke the designation (9) in the future does nothing for home buyers who(10) detrimentally rely on the false designation in the(11) meantime.(12) The parties point out that there's an immunity(13) clause to argue that the State of Arizona cannot be held(14) liable for putting its seal on false designation.(15) Now, whether courts will uphold this clause has(16) yet to be seen, but Your Honor should take no comfort in(17) the argument that consumers will simply be without(18) relief upon warning of their substantially diminished(19) property values.(20) Pueblo Del Sol argues that DWR is without(21) statutory authority to consider the impacts of pumping(22) on the surface flows or reserve rights. This is simply(23) not true. The statute calls for a legal assessment.(24) Gila River III calls for a legal assessment based on(25) these factors.


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(2) While DWR's regulations do not address these (3) considerations, that is an argument for revising the (4) regulatory framework, if not an excuse for DWR to ignore (5) its own legislative mandate. (6) Our client asks Your Honor to recommend that DWR (7) not grant a false designation. DWR should reevaluate (8) the application and make a factual assessment regarding (9) what impact, if any, the proposed pumping will have on(10) the federal conservation area. If there will be no(11) impact, this issue is moot. But without an assessment,(12) the decision cannot be sustained.(13) In the alternative, DWR should deny the(14) application if it cannot find that groundwater will be(15) legally available for at least 100 years, based on(16) current legal statutes and case law.(17) Thank you very much.(18) ALJ SHEDDEN: All right. Dr. Silver?(19) DR. SILVER: Yes. ADWR used to evaluate these(20) situations fairly. They used to look at a situation(21) like this and say, Wow, we don't know what's going to(22) happen. We sort of know what's going to happen in(23) adjudication, because we're dealing with a basin that's(24) overallocated, where ADWR has permitted too many wells,(25) has permitted too many developers to pump water. We

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(2) know what's going to happen. But what they used to do (3) is they used to say, you know, We don't know what's (4) going to happen, even though we do, and so we're going (5) to say that your certificate is going to read inadequate (6) until we know. (7) Now, what they say is, Your certificate says (8) adequate because we -- and I can't wink for everybody -- (9) because we're not sure what's going to happen. Now, how(10) do they do that? They say that we have no choice.(11) Well, Congress said that Arizona does have a(12) choice. In fact, it's not a choice; you have no choice.(13) And that is that you have to recognize federal reserved(14) water rights. Cappaert was the case on point. Now, I(15) spent -- I'm not a lawyer, but I've spent a lot of time(16) talking to the lawyers and the witnesses in Cappaert.(17) There was a mark on the wall. None of the folks that I(18) talked to could provide me with the evidence of a(19) quantification, and they said, You can't -- it was a(20) basin pump so that this mark on the wall gets violated.(21) Please, if I'm wrong, because I'll ask your witness the(22) same thing, provide the evidence that Cappaert was(23) quantified and therefore it's not applicable.(24) And then we came to Gila III. These folks are in the(25) middle of this massive adjudication that seems like it's

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(2) never ending, we hope it will, and they recognize that (3) Congress said federal water rights count. And not only (4) did they say in recognizing they count, they recognize (5) that when the surface rights are provided for by (6) groundwater, then that extends to groundwater. (7) We tried to stipulate here that there's a (8) connection between groundwater and surface water, and, (9) you know, a good degree of it, you know, lawyerly or(10) social level, but it is connected. There's no(11) difference in this basin between the groundwater and the(12) surface water.(13) And while I think that folks have mentioned to(14) the numbers, you, as the judge, will have to look(15) through here and see that even in the state statutes(16) that exist, they ask that when the groundwater really is(17) surface water, that you show some proof that you have(18) access to the surface water. They don't have access to(19) the surface water because it's not legally theirs.(20) Now, how do we end up resolving this? I would(21) say, please, at some point, if we can't stipulate that(22) there's a connection, you can acknowledge it and you can(23) cite PDS's own procedures, if you need to have something(24) to cite. You can cite ADWR's publications about that(25) there's a connection. You can be very consistent with

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(2) Gila III, because in that they did have a qualifier and (3) they said, Well, you really shouldn't look beyond (4) surface water rights, unless there's not enough surface (5) water. And you can look, and you can look at ADWR's (6) numbers, you could look at the USGS numbers, and in this (7) basin, you can see that before there's any pumping right (8) now, the natural recharge, going -- what goes in is (9) equaling what's going on. That's before we start.(10) That's even before we have ADWR issuing their exempt(11) wells that an additional 4,680 just since Congress(12) designated that the -- the federal water rights, and to(13) developers, they added another 14,769 acre-feet. You(14) know, the summary is that we're about 20,000 acre-feet(15) already overallocated just based on what ADWR is(16) permitted by pretending that they can't do anything.(17) Now, when I look around the room -- and I have(18) to say that I don't see anybody else as old as me in(19) here, but I'm an Arizona native, and I grew up here.(20) And there was a fellow that was -- that was pretty(21) infamous when I was a kid. His name is Ned Warren. I(22) don't -- you -- I'm sorry, Judge, but you're not even(23) old enough to know who he was. But we got the Arizona(24) consumer fraud law because this fellow was selling land(25) to people that didn't have water. When someone looks at


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(2) buying property in the Sierra Vista area, they don't (3) need to be sitting there and be not sure what the fine (4) print says. It's very clear. There's an inadequate (5) supply of water from a very specific date, and that date (6) at this point, without any argument, is November 18, (7) 1988. That's when the San Pedro got its water rights, (8) and ultimately, that's what an adjudication court is (9) going to say.(10) We're not asking you to quantify the water that(11) is that federal reserved water rights, but you can(12) certainly see that we're overallocated, that it's(13) unfair, and that ADWR issues a certification that(14) there's adequacy when there's not. You can do that.(15) Thanks.(16) ALJ SHEDDEN: All right. We will go to DWR(17) then. Who will be the first witness?(18) MS. RONALD: We call Andrew Craddock.(19) ALJ SHEDDEN: Come on up and have a seat over(20) here.(21) DR. SILVER: You all right?(22) MALE SPEAKER: Yeah. My heel just -- right when

(23) I got up (indiscernible).(24) DR. SILVER: If we have to call one doctor in(25) the room, then --

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(2) MALE SPEAKER: Yeah. (3) DR. SILVER: One M.D., I guess. (4) (Indiscernible). (5) ALJ SHEDDEN: I'm going to get you sworn in, so (6) if you'd raise your right hand. (7) (Whereupon, Andrew Craddock was sworn by (8) ALJ Shedden.) (9) ALJ SHEDDEN: All right. Go ahead and state and(10) spell your name for the record, as a formality, please.(11) MR. CRADDOCK: My name is Andrew Craddock, and

(12) that's spelled A-N-D-R-E-W, the last name is(13) C-R-A-D-D-O-C-K.(14) ALJ SHEDDEN: All right. I'm going to turn it(15) over to Ms. Ronald.(16) I'll let you know, of course, our sight lines(17) with all the computer monitors can be off a little bit(18) at times. So if you need them to scoot around, just let(19) the witness know, and we'll do our best to adapt. But(20) whenever you're ready, go ahead.(21) MS. RONALD: Thank you, Your Honor.(22) (23) (24) (25)

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(2) ANDREW CRADDOCK, (3) a witness herein, having been first duly sworn, was (4) examined and testified as follows: (5) (6) DIRECT EXAMINATION (7) BY MS. RONALD: (8) Q. What's your educational background, (9) Mr. Craddock?(10) A. My educational background: I have a bachelor in(11) science from Northern Arizona University, where I(12) majored in geography, with a minor in geology. And I(13) also did graduate course at New Mexico State University,(14) in Las Cruces, New Mexico.(15) Q. When did you graduate?(16) A. From Northern Arizona University was 1999.(17) Q. And when did you complete your post-graduate(18) coursework?(19) A. I completed my coursework in December of 2003.(20) Q. Are you currently employed?(21) A. Yes, I am currently employed.(22) Q. By whom?(23) A. The Arizona Department of Water Resources.(24) Q. How long have you worked for DWR?(25) A. I was first hired by the Department in the

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(2) summer of 2005, so about seven and a half years. (3) Q. And what is your current position? (4) A. Currently, I'm the manager of the Recharge and (5) Assured and Adequate Supply Programs at the Department. (6) Q. What were your duties and responsibilities prior (7) to your current position? (8) A. Like I said, when I was first hired in 2005 by (9) the Department, I began learning general procedures,(10) basically the intake of annual reports, the review of(11) those annual reports, and data entry. And then as I(12) progressed throughout the Department, I had -- my focus(13) was on the Department's compliance program, and I had(14) increasing responsibilities under the compliance(15) program, up to -- I think the final position was the(16) compliance coordinator for the Department, was the last(17) previous station I had prior to this current job I have.(18) Q. And again, when did you start in your current(19) position?(20) A. In my position as manager of the Recharge and(21) Assured and Adequate Water Supply Programs was August of(22) last year, or August of 2011.(23) Q. What are the duties and responsibilities that(24) you have in that position?(25) A. My responsibilities in my current position, we


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(2) have a staff of seven people. We, you know, review the (3) intake of applications for both the Recharge and Assured (4) and Adequate Programs, the review of those applications. (5) We have staff meetings that discuss any issues we have (6) concerning the applications. And then so kind of a (7) day-to-day activities, making sure we're meeting our (8) licensing time frames that are associated with those (9) applications that are filed with the Department. And(10) then kind of outside of that program, manager(11) responsibility, I also coordinate with other programs(12) and divisions within the Department on water management(13) issues that affect, not only my program, but other(14) programs that we have at the Department.(15) Q. So you're a department manager then for the(16) Adequacy Program within the Department?(17) A. Yes. It's both the Assured and Adequate(18) Program. I'm the manager for both programs.(19) Q. And are you familiar with the statutes and rules(20) that relate to that program?(21) A. To the Adequacy Program?(22) Q. Yes, to the Adequacy Program.(23) A. Yes. I'm familiar with those rules and(24) statutes.(25) Q. And do you have any idea how the rules were

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(2) adopted for the Adequacy Program? (3) A. I mean, outside of the general context of (4) that -- how rules were created and they go to the (5) governor's regulatory review council, outside of that (6) thing, I haven't been involved in the rule-making (7) process, but that's my general understanding that (8) there's a -- you know, there's a formal process that has (9) public input, and there can be stakeholder process for(10) some of the stuff we do. That's my kind of general(11) understanding as far as, you know, how the statutes and(12) rules could be created or discussed.(13) Q. What rules apply to -- if you know off the top(14) of your head, that -- that apply to the Adequacy(15) Program?(16) A. To the Adequacy Program, as far as statutory(17) citations, we review Arizona Revised Statute 45-108 and(18) 45-108.01, are the two statutory references. And then(19) as far as the Administrative Code Rules, we look at(20) Rule 1215-714 through 720, and those are particular to(21) the Adequacy Program and discuss physical, legal,(22) continual availability -- continuous availability in(23) those rules.(24) Q. As you look at the statutes for 108 and 108.01,(25) and in the code there are pre- and post-October 2011

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(2) versions of that statute; is that correct? (3) A. Yeah. In the code there are two statutes for (4) both, 108 and 108.01, with different effective dates (5) when the revisions to both of those statutes occur. (6) Q. And basically what do the revisions deal with? (7) A. The revisions have what I would call basically a (8) statutory cross-reference amendment to them that relates (9) to county adoption, what we call mandatory adequacy(10) jurisdictions. There was a change in the county(11) process, and those revised statutes of 108 and 108.01(12) reflect that change.(13) Q. Under the statutes and rules, what criteria does(14) an application for designation of an adequate water(15) supply need to satisfy?(16) A. In this particular case, the Pueblo Del Sol(17) case, we look at -- there's five criteria the Department(18) looks at, and that's the physical, legal, and continuous(19) availability of the water supply for a hundred years,(20) also that the water supply is of adequate quality, and(21) that the applicant has the financial capability to(22) construct the necessary infrastructure, and things like(23) delivery works, storage, pumping capacity, that sort of(24) thing.(25) Q. Did you indicate that you were also the program

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(2) manager for the Assured Water Supply Program? (3) A. Yeah. I have the Recharge and the Assured and (4) Adequate Programs are all under my supervision. That's (5) correct. (6) Q. And what's the basic difference between the (7) Adequacy Program and the Assured Water Supply Program, (8) in terms of the criteria that need to be satisfied? (9) A. In terms of the basic five criteria that I(10) identified, for the Assured and Adequate Water Supply(11) Program, the Adequate Water Supply Program, in the case(12) of Pueblo Del Sol's application, are applicable to areas(13) in Arizona outside of specially designated Active(14) Management Areas. Locations within the Active(15) Management Areas, the Assured Water Supply statutes and(16) rules are applicable with the -- the difference being(17) for the Assured Water Supply statutes and rules, there's(18) two additional requirements that deal with the(19) management -- consistency with the management plan(20) that's adopted for each of these AMAs and consistency(21) with the management goal.(22) Q. Is there any difference in the physical(23) availability and determinations criteria for Assured and(24) Adequate Water Supply?(25) A. There's -- the difference between the two, as


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(2) far as how we look at the different demands that are (3) associated with the two, the calculations, as we get to (4) that, the calculations we use in both the Assured and (5) Adequate Water Supply are the same. (6) The difference is in the Assured Water Supply (7) Program versus the Adequate Water Supply Program, after (8) 100-years evaluation, we look at different depths to set (9) a groundwater level, and for those areas, like the(10) Pueblo Del Sol application, outside of Active Management(11) Areas, that maximum allowable is 1200 feet below land(12) surface; whereas, in three of the AMAs, it's 1,000(13) acre -- that's -- excuse me, 1,000 feet below land(14) surface, and then the Pinal Active Management Area is(15) 1,100 feet below land surface. So there's a difference(16) in the maximum allowable depth to groundwater after the(17) 100-year projection, but the calculation to get to that(18) projection is the same.(19) Q. What do you mean by that? What calculations are(20) you talking about?(21) MR. McDEVITT: Objection, Your Honor. We would

(22) just like to ask about the relevance of this testimony.(23) ALJ SHEDDEN: Ms. Ronald, you can respond, if(24) you'd like.(25) MS. RONALD: This is just to set forth the

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(2) process by which the Department of Water Resources (3) evaluates applications for designation of assured (4) water -- of adequate water supply. So this is just (5) background leading up to the review of the actual (6) Pueblo Del Sol application itself. (7) ALJ SHEDDEN: All right. I'm going to overrule (8) the objection, and we can take the background (9) information in.(10) BY MS. RONALD: (11) Q. So do you recall the last question?(12) A. Can you please repeat your last question?(13) Q. The last question that I asked dealt with the(14) calculation of the depth to groundwater under the(15) Adequacy Program and the Assured Water Supply Program.(16) What do you mean by the calculation? What are you(17) talking about?(18) A. The calculation that we use in the Assured and(19) Adequate Water Supply programs, we look at not only the(20) applicants or what I'll call the proposed pumping, that(21) the application entails in that geographic area, but we(22) also look at previously -- well, current demands that(23) are already there and previously approved demands in(24) that area. So we take basically what was existing in(25) that geographic area and then also the proposed demands,

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(2) in this case, from the Pueblo Del Sol application to (3) take all of those pumping values, as those are (4) incorporated in the model, to determine the results of (5) what 100 years of pumping, what that depth to (6) groundwater will be at the end of the hundred years, and (7) that's -- that's the basic same process for both assured (8) and adequate water supplies. (9) Q. What do you mean by "approved"?(10) A. Demands that have already been approved in that(11) area?(12) Q. Uh-huh.(13) A. In the case of the Pueblo Del Sol application,(14) the water reports that are already approved. In that(15) area it can also be analysis that are also approved by(16) the Department. If you're talking in the Active(17) Management Areas, under the Assured Water Supply(18) Program, you also look at certificates that have an(19) associated, you know, volume of pumping to them, and(20) also other designations in the area. So basically all(21) approved pumping by the different reports or(22) designations or certificates that are part of the(23) program.(24) Q. So what is the -- the normal terminology that's(25) used within the Department for these demand

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(2) calculations? What kinds of demands does the Department (3) refer to these as? (4) A. The demands, as included and listed on our (5) application and as defined in the rules, we look at (6) current demand, we look at committed demand, and we look (7) at projected demand, and those three calculations give (8) us a total demand value through the course or -- of what (9) the -- how far the designation is going to be issued(10) out.(11) Q. What's the difference between current demand and(12) committed demand?(13) A. The current demand refers to existing water(14) uses, carried at a hundred years, and we base that off(15) of the previous year's annual report, each water(16) provider, regardless if they're in the Active Management(17) Area, and have the Assured Water Supply rules or(18) adequate rules has to file an annual report that details(19) several things, you know, operations that go on within(20) the service area, one of them being the amount of water(21) that was pumped out of the ground. So the requirement(22) for the current demand is existing uses based off the(23) last calendar year's report, is what the rule requires.(24) Sorry, did you ask for committed?(25) Q. Yes. What about committed?


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(2) A. The committed demand numbers include demands for (3) plats that have been -- plats or lots that have been (4) recorded but have not yet been served by the applicant, (5) or water company that has not been served within the (6) service area. (7) Q. And you just mentioned lots that have been (8) recorded. How does that relate to platting and (9) everything else, by the local platting authority?(10) A. The -- the plats or the lots are recorded or(11) approved, for lack of a better term, by the -- like you(12) said, by the local platting authority. In this case the(13) platting authority would -- would be Cochise County.(14) Q. But they wouldn't be necessarily developed yet;(15) is that correct?(16) A. For the -- yeah, not necessarily -- and when(17) we're talking about the committed demand, it's demand(18) for those plats or lots that have been recorded but have(19) not yet been served water by the water company.(20) Q. Who is the local platting authority for the PDS(21) service area?(22) A. Pueblo Del Sol is located in Cochise County, and(23) they're the local platting -- what's termed the local(24) platting authority for this application.(25) Q. Now, you mentioned earlier something about a

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(2) mandatory adequacy jurisdiction. Is Cochise County a (3) mandatory adequacy jurisdiction? (4) A. Yes. Cochise County is a mandatory adequacy (5) jurisdiction. (6) Q. What does that mean? (7) A. Before lots are recorded or plats are recorded (8) within Cochise County, because they -- the platting (9) authority requires that the Department make a(10) determination that there's an adequate water supply for(11) the development or for the application or, in this case,(12) for the service area designation. So it's mandatory(13) that they have an adequacy determination before -- from(14) the Department prior to those lots being recorded by the(15) local platting authority.(16) Q. As program manager, were you aware when -- I'll(17) just go ahead and ask it this way: Were you aware when(18) Pueblo Del Sol had filed its application for a(19) designation of adequate water supply?(20) A. Yes. I believe they filed -- the initial(21) application was just prior to I took -- to when I took(22) my current position. I believe that was in June of(23) 2011.(24) Q. And was there a cover letter that was filed with(25) the application?

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(2) A. Yes, there was a cover letter. (3) Q. And I would direct your attention to DWR (4) Exhibit 1. Is that on your screen? (5) A. Yeah. (6) Q. Okay. Good? (7) A. Sorry. Is this where I don't control it and you (8) do? (9) Q. Yeah. That's right.(10) A. Okay.(11) Q. We're going to let Ms. Klobas control the screen(12) for you.(13) A. All right.(14) Q. So is that the cover letter that came in with(15) the initial application?(16) A. Yes. This is the cover letter that we received(17) on June 23rd, 2011.(18) Q. And does it describe the relationship of a(19) number of entities that have to do with the(20) Pueblo Del Sol service area?(21) A. Yes. The -- the letter was submitted by Fluid(22) Solutions on behalf of Pueblo -- the Pueblo Del Sol(23) Water Company, and that Pueblo Del Sol -- the owner of(24) the water company is Castle & Cooke Arizona,(25) Incorporated, and they are also the developer of the

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(2) Tribute MPC -- or, sorry, the master planned community, (3) the Tribute MPC, and that the owner, being (4) Pueblo Del Sol or Castle & Cooke, retained the services (5) of both Fluid Solutions and Brown and Caldwell to (6) develop the groundwater model to establish the water (7) supply. (8) Q. Okay. I'd like to direct your attention to DWR (9) Number 2. Is this a copy of the initial application(10) that was filed?(11) A. Yes. This is a copy of the June 2011(12) designation.(13) Q. Okay. Let's go to page 2 of that document. And(14) are there demand estimates included in page 2?(15) A. Yes. Page 2 includes demand estimates.(16) Q. So do you see current, committed, and projected,(17) and a total annual demand on that page?(18) A. Yes. There are four different lines for the(19) demands listed for current, committed, projected, and(20) total.(21) Q. Were there any attachments to this application,(22) do you recall?(23) A. Yes. I believe there were --(24) Q. All right.(25) A. -- four or five.


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(2) Q. Just pause for a second and we'll pull up (3) DWR 2-A. (4) A. Okay. (5) Q. What is this attachment? (6) A. Attachment A was the service area map. (7) Q. A hard copy? (8) A. Yeah. A paper version of the map. (9) Q. And then DWR 2-B?(10) A. Yeah. Attachment B was an electronic copy of(11) that same service area map.(12) Q. And then let's look at DWR 2-C, what is that?(13) A. Attachment C is the demand spreadsheet.(14) Q. Does it include the three categories of demands,(15) the current, committed, and projected?(16) A. Yeah. Yeah, it's kind of hard to see on the(17) screen, just because of the orientation, but it does(18) include current, committed, and the projected, and total(19) demand numbers, I believe, at the -- it would be the top(20) of the page.(21) Q. And then let's turn to DWR Exhibit 2-D. And(22) what is this?(23) A. Sorry. Attachment D, that's the -- the(24) ground -- the hydrologic groundwater model.(25) Q. And were there any attachments or appendices to

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(2) attachment D? (3) A. Yes. There were also several attachments to D. (4) Q. So on the screen now -- stop, yes -- there's (5) a -- I believe it's page i, maybe, of the table of (6) contents, I'm not sure -- maybe scroll up just a little (7) bit so we can see the page number. There it is. (8) So how many appendices are there? (9) A. The list of appendices goes through -- from(10) Appendix A through Appendix F, so there's six(11) appendices.(12) ALJ SHEDDEN: And -- and let me just drop in for

(13) a second with regard to the record we're creating via(14) the audio recording here.(15) Ms. Ronald is correct, we're looking at page i(16) on this particular document, as it was labeled in the(17) hard copy. The PDF numbers often don't match, and while(18) she could take some steps, I think you can work around(19) the default on PDF would be that the very first page,(20) which may be a cover of a report or something with a(21) different number would be page number 1, arabic 1, going(22) on in this case through, it looks like, 188.(23) We're looking at page 4 on the PDF version,(24) page i on the -- well, it would have been the hard copy(25) when it was submitted. I'm going to, as we go on, let

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(2) the parties identify the documents however they would (3) like to do so, which page we're on. Periodically, I may (4) jump in to try and make sure we're creating a good (5) recording here, but in theory there are people who are (6) going to rely on this recording. I assume you folks are (7) going to, perhaps, when you prepare for future day's (8) testimony and/or any closing briefs. I may be relying (9) on the recording, in addition to my notes, as I review(10) the evidence, and the director of DWR may want to rely(11) on portions of that as well, and if it goes further than(12) that.(13) So it's incumbent upon me to try and make sure I(14) complete a good, detailed audio record to help with(15) that. So again, I'll let folks try and identify the(16) information as they see fit, using whichever numbers,(17) but since everyone will have access to the PDF(18) electronic file at the appropriate time, those numbers(19) should probably work. And again, I may jump in(20) periodically to flesh out the recording if I think it's(21) necessary. And with that, I apologize for the(22) interruption.(23) Go ahead, Ms. Ronald.(24) MS. RONALD: Thank you. I see that in the(25) upper, right-hand corner, it looks like there's the PDF

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(2) pagination on the -- the exhibit, so I'll try to (3) cross-reference that as I move through it. (4) ALJ SHEDDEN: Yeah. And let me show folks (5) something else. I'm going to take the models, and you (6) know, all the -- (7) MS. RONALD: Oh, yeah. (8) ALJ SHEDDEN: -- versions of these programs seem

(9) a little bit different. But on the version that we're(10) using at OAH, you can see, down toward the bottom of the(11) screen, I've dragged the mouse over what then becomes an(12) invisible -- in theory it does, if I move -- maybe(13) someone else put it there -- little task bar of sorts.(14) And by clicking the little triangular Adobe, probably a(15) registered trademark, if you will, will open up(16) additional information on the side, including the(17) single-page views of things, and then that opens the(18) little box at the top that has all the page numbers.(19) And a couple of things with regard to this: If(20) you know what page you're going for, you can jump(21) straight in by typing the page number. Sometimes it's(22) also a little quicker if you use that version on the(23) side.(24) I -- I didn't say this in my opening remarks. I(25) bit my tongue, but we're preparing a little CLE that


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(2) will be presented this week on the electronic case (3) files. And so one of the lessons learned for me, as the (4) administrative law judge, is let the computer operator (5) do it however she wants to at a given time and be (6) content with that. (7) So, Ms. Klobas, I'll let you put it in whatever (8) form you'd like to at this point, but oftentimes folks (9) don't know all the options, and I can help set it up if(10) folks want me to. But again, like with most things on(11) the computer, I guess there are a number of different(12) ways to go about it, including getting the page numbers(13) and perhaps a little easier access. And I don't know if(14) all -- all of you use Windows, if you refer to them,(15) Ms. Ronald, they're going to be there. I see them on(16) some documents, but not on others.(17) So with that, again, I'll turn the mouse back(18) over to you, Ms. Klobas, and questioning back over to(19) Ms. Ronald.(20) MS. RONALD: Thank you, Your Honor.(21) BY MS. RONALD: (22) Q. Oh, yes, the list of appendices. We have A(23) through F, and Appendix A, what does that deal with?(24) A. Appendix A -- this says the B and C technical(25) memorandum. That --

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(2) Q. What -- what does B and C refer to? (3) A. That's Brown and Caldwell's technical (4) memorandum. (5) Q. And in that cover letter that came in with the (6) application, what was the role of Brown and Caldwell? (7) A. They were one of the -- the technical advisors (8) that helped prepare, along Fluid Solutions, the numeric (9) model that supported the hydro-analysis for the(10) application.(11) Q. Okay. After the application came in, did ADWR(12) review that application?(13) A. Yes. The Department reviewed the June 2011(14) submittal.(15) Q. Okay. Let's go to DWR 4.(16) A. Okay.(17) Q. And what is this?(18) A. This is a letter and response -- an initial(19) correspondence that the Department sent via email to(20) Fluid Solutions, regarding the incorrect current,(21) committed, and projected demand numbers, that they were(22) incorrect on the application filed.(23) Q. And whose signature does -- is that letter go(24) out over?(25) A. That is my signature.

Page 95


(2) Q. Okay. What happened after that? Did Fluid (3) Solutions submit new demand estimates? (4) A. Yes. Fluid Solutions, they submitted -- I think (5) we're looking at -- (6) Q. So this is DWR 5. What is this? (7) A. DWR 5 is an email to Aaron Young, who works for (8) Fluid Solutions -- or sorry, excuse me, from Aaron Young (9) at Fluid Solutions to Rick Obenshain, who works in the(10) DWR Water Supply Program. And it is clarifying some of(11) the -- well, the current demand, committed demand, and(12) projected demand numbers of the Department identified,(13) that were incorrect in the -- in the initial(14) application.(15) Q. Okay. Let's look at DWR 6. Scroll down through(16) there. What is this document?(17) A. This document -- can we scroll up just a little?(18) Q. Scroll up. I'm sorry.(19) A. Yeah. This -- this, again, is a letter to Aaron(20) Young from the Department, sent via email on(21) October 13th, 2011. And it discusses, I believe -- can(22) we scroll down a little bit? Based off of that earlier(23) email, which I believe was a couple days prior to this(24) correspondence, it requires Pueblo Del Sol to conduct a(25) new ground -- or a new model simulation to reflect the

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(2) revised demand numbers that were contained, and that (3) were -- that were discussed in that email, and that also (4) we determined that the applicant should be -- basically (5) have two simulations of the model, and that's identified (6) in numbers 1 and 2. (7) The first simulation should include basically (8) what I'm referring to as the pre-Tribute Master Planned (9) Community, or without Tribute simulation; and then a(10) second simulation that includes the proposed Tribute(11) Master Planned Community pumping.(12) Q. And let's look at DWR 7. What is this?(13) A. This is the January 2012 revised application(14) that Fluid Solutions submitted on behalf of the(15) applicant.(16) Q. Is this the application itself or a letter -- a(17) cover letter?(18) A. This looks like a cover letter directed to my(19) attention.(20) Q. And there I see paragraph number 1 and paragraph(21) number 2 on that first page. What are the topics that(22) the letter is addressing?(23) A. The topic number 1 is a response to our(24) correspondence from the previous fall -- or fall of(25) 2011, regarding the incorrect demand numbers. And then


(24) Pages 93 - 96



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(2) the second paragraph is the model revisions, again, that (3) with and without Tribute model simulations that we (4) required of the applicant. So it basically addresses (5) the two incomplete letters or correspondence that we had (6) with the applicant from that fall of 2011. (7) Q. Okay. Let's scroll down to the second page of (8) that letter. (9) A. Okay.(10) Q. Keep going, keep going, keep going, attachments.(11) Do you see that?(12) A. Yes.(13) Q. And what came in with this letter?(14) A. There were four attachments that came in with(15) this cover letter. Do you want me to read them out loud(16) for the record?(17) Q. Yes, please.(18) A. Attachment A was the revised committed demand(19) figures, Attachment B was the revised Pueblo Del Sol(20) designation, the letter -- the water supply application,(21) C was ADWR issued demands in the model, and D was(22) another Brown and Caldwell technical memorandum.(23) Q. Okay. Let's go to ADWR Exhibit 7A. Does this(24) reflect Attachment A to the cover letter we were just(25) looking at?

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(2) A. Yes. This looks like Attachment A, the (3) committed demand calculation. (4) Q. And let's look at ADWR 7B. What is this? (5) A. 7B was the revised, or the January 2012 (6) designation application. (7) Q. And let's pull up 7C. What is this -- what's in (8) 7C? What does this (indiscernible)? (9) A. 7C is a -- looks like a basic Excel spreadsheet(10) that includes Department issued demands. Well, it's(11) entitled: ADWR Issued Demands, Adequate and Inadequate(12) Within the Model Domain. So it's a list of issued(13) demands.(14) Q. And then we'll pull up 7D. What is this?(15) A. 7D is the revised or second technical memorandum(16) that Brown and Caldwell submitted.(17) Q. And were the model files included with this(18) particular exhibit, this technical memorandum, do you(19) recall?(20) A. I believe they were submitted with the technical(21) memorandum, but it was -- I believe it was on a DVD. I(22) mean, a lot of applicants submit them on DVDs.(23) Q. And why was -- why did Brown and Caldwell submit(24) a revised technical memorandum?(25) A. This revised technical memorandum that we're

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(2) looking at was in response to what I'm referring to as (3) the incomplete letter that requested the pre -- the with (4) and without Tribute simulations. So the technical (5) memorandum addresses those two model runs, one without (6) the Tribute Master Planned Community and one with the (7) proposed pumping included in it. (8) Q. The proposed groundwater pumping for Tribute; is (9) that correct?(10) A. The proposed groundwater pumping for the Tribute(11) Master Planned Community, yes.(12) Q. Okay. Let's scroll down to page 8. Is that(13) page -- is that page 8? No. It looks like page --(14) that's fine. Page 9 of the document, which is PDF -- do(15) we have a PDF -- corresponding PDF number? 9. Okay.(16) MALE SPEAKER: It's 8 now.(17) BY MS. RONALD: (18) Q. It's 8 in the hard copy and 9 in the PDF(19) version.(20) There's this technical -- excuse me --(21) A. Could we make it -- sorry. Could we make it a(22) little bigger, the size?(23) MR. McDEVITT: Objection, Your Honor, for the(24) appellant Ms. Gerrodette. We object to just simply(25) reading the exhibits. We don't -- we don't dispute that

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(2) these are true and exact copies of the application in (3) their exhibits and the correspondence, and we're (4) grasping at how this is relevant to any fact that's of (5) consequence in this matter. (6) ALJ SHEDDEN: So with -- and correct me if I'm (7) wrong, Ms. Ronald, you wanted the witness to read this (8) to reflect -- reflect his own recollection, correct, in (9) understanding what happened?(10) MS. RONALD: I wasn't going to ask him to read(11) the conclusion. I just was asking him to paraphrase the(12) conclusion about the -- I can't even read it -- the(13) model, yeah. This -- there it is.(14) ALJ SHEDDEN: All right. And --(15) MS. RONALD: -- that -- regarding the -- the(16) depth to, say, groundwater level, just to indicate what(17) that depth was as a conclusion in this particular model(18) report. But I wasn't going to ask him to read the(19) entire thing.(20) ALJ SHEDDEN: All right. And let me ask you,(21) Ms. Ronald, do you still see this as background(22) information related to the work that the agency did when(23) they had the application?(24) MS. RONALD: Yes, I do, Your Honor. I mean, in

(25) addition to the fact that the appellants have raised


(25) Pages 97 - 100



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(2) certain issues about the processing of the application, (3) I believe a complete record needs to be made of the (4) steps that the Department took in the review of the (5) application and the determinations that it made in (6) support of the draft decision and order that was issued (7) with the decision letter that addressed the objections (8) raised by the appellants. (9) MR. McDEVITT: Your Honor, none of the(10) appellants object or have raised an objection regarding(11) the 650-foot determination, and none of the appellants(12) have suggested that any of the exhibits that have been(13) presented so far were not actual real copies. We don't(14) see the -- the purpose of simply reading things that can(15) be more simply introduced by introducing the documents(16) themselves.(17) ALJ SHEDDEN: Well, let me tell folks how I'm(18) going to deal with the exhibits. There's been -- I(19) certainly haven't tried to count, and I haven't looked(20) at too many of them, candidly -- hundreds, if not(21) thousands, of pages of exhibits have been disclosed.(22) It's not my intention to read those exhibits. It's my(23) intent that the parties will point to the relevant(24) portions of them, and whether or not they subsequently(25) are admitted into evidence is a separate question, but

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(2) just suggesting that somehow I take a bunch of documents (3) into the record and then -- I forget how the Court of (4) Appeals put it in one matter, but judges aren't pigs (5) hunting for truffles, I think, is the way it was (6) phrased. And the bottom line is the parties are going (7) to have to point to what is germane, in their views, in (8) those documents. (9) And it may well be that whole documents will be(10) admitted into evidence, and they'll be part of our(11) record, but the intention I have generally is not to go(12) searching beyond the information that's presented. The(13) problem with that approach is sometimes I'm a curious(14) fellow, and if I look on a page where someone points(15) something out to me, I may want to see what came before(16) or after that, and if a document is in evidence, it's(17) all fair game. But in terms of the information, per se,(18) in the exhibits, and more directly back to the(19) objection, I'm going to let DWR present its evidence and(20) provide background information as to how they process(21) the application.(22) To the extent that there are information -- or(23) is information that Ms. Ronald or DWR feels is germane(24) to the matter, she will point me to it, and it may well(25) be that these exhibits will be entered.

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(2) So I'm going to overrule the objection. I (3) generally don't need folks reading large segments of (4) documents into the record, and Ms. Ronald has indicated (5) that wasn't her intent here. (6) And again, with respect to the document itself (7) and whether anyone disputes the 650-foot depth, that is (8) something that is within the background, I think, (9) because we need to get the facts on the record in terms(10) of the rule requiring it to be -- I'm struggling with(11) the negatives here, because we're talking about below(12) ground surface, but, of course, there's the 1200-foot(13) limit, and so that needs to be established.(14) So a couple of points: One, the objections are(15) overruled on the relevance, getting the -- a fairly(16) comprehensive record of what occurred at the agency I(17) think is important in an administrative hearing. Two,(18) with respect to the reading of large tracts of(19) information, I agree, and we don't want that to happen,(20) but we're not in danger of that here. And then three,(21) my own editorial comment, if you will, as to how we're(22) going to have to deal with large reports and a large(23) number of large technical reports. It's going to be(24) incumbent upon the witnesses, or the parties through(25) their witnesses, to point to the information that they

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(2) feel is germane -- and I use that world deliberately, (3) rather than relevant -- to allow for the understanding (4) that there may be relevance objections. (5) So with that, Ms. Ronald, you had asked the (6) witness to summarize the conclusion, correct? (7) MS. RONALD: Correct, Your Honor. (8) ALJ SHEDDEN: All right. Why don't you go ahead

(9) and you can go ahead and do that?(10) BY MS. RONALD: (11) Q. Just to rephrase, Mr. Craddock, are there any --(12) that you are looking at the page that is titled as(13) "Conclusions" in this particular exhibit; is that(14) correct?(15) A. Yes, I am.(16) Q. Okay. And is there any information in that(17) paragraph that deals with the depth to static water(18) level --(19) A. Yes.(20) Q. -- from the proposed PDS groundwater pumping?(21) And what does the --(22) A. Yes, there is.(23) Q. What does the report conclude in terms of the(24) depth?(25) A. It includes, after running the model


(26) Pages 101 - 104



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(2) simulations, that the area of influence by the PDS (3) pumping does not exceed 650 feet below the land surface (4) after 100 years. (5) Q. Okay. And this is just for clarification (6) purposes, I want to pull up DWR 8. What is this? (7) A. This is another -- this exhibit is another copy (8) of the revised designation application from (9) January 2012.(10) Q. And was this previously included as an exhibit(11) when the letter came in with the revised demand numbers?(12) A. Yeah, I believe it was one of the -- organized(13) as one of the attachments --(14) Q. Okay.(15) A. -- in the prior.(16) Q. So this is a duplicate?(17) A. Yes.(18) Q. And are there any attachments to this document?(19) A. Yes. There are more attachments.(20) Q. Okay. Let's look at the next -- and are(21) there -- I'm sorry, we'll go back for just a second.(22) And are there demand numbers included in this(23) application?(24) A. Yes. There are demand numbers in part B of the(25) application.

Page 106


(2) Q. Are the total demand numbers in this application (3) the same as those that were included in the October 2011 (4) email from Fluid Solutions? (5) A. No, not all of these demand numbers are the (6) same. (7) Q. Were they higher or lower, the total demand? (8) A. The total demand is a decrease from the (9) October 2011 email.(10) Q. And what about the relationship between these(11) numbers and the total demand number included in the(12) original application, higher or lower --(13) A. On this one --(14) Q. -- or the same?(15) A. On this revised application, the total demand(16) numbers are an increase from the original June 2011(17) application.(18) Q. And why is that?(19) A. This deals with -- back to the earlier exhibit(20) when I testified discussing that the current, committed,(21) and projected demand numbers needed to be changed. The(22) projected demand numbers, I believe, on the original(23) application just included the proposed groundwater(24) pumping for the Tribute Master Planned Community and not(25) projected demand for the entire service area, which is

Page 107


(2) being designated. So it's one development versus the (3) entire service area projected demand accounts for that (4) difference. (5) ALJ SHEDDEN: And let me just get some (6) clarification here, and I'll -- this way the question, (7) if the witness needs to answer, it may be something you (8) can clarify, Ms. Ronald. Looking at the list of (9) exhibits, I'm showing that -- and I may be wrong about(10) this -- that the January application, was that a portion(11) of Exhibit 7?(12) MS. RONALD: Yes.(13) ALJ SHEDDEN: Okay. And so it was 7 -- 7B, the

(14) cover letter with an application or just the cover(15) letter?(16) MS. RONALD: 7B is the actual revised(17) application. And ADWR, when we put together this(18) exhibit list, repeated, duplicated, the 7B application(19) in DWR 8, so that -- the reason for it was so that(20) separate numbers could be assigned 8A, 8B, et cetera, to(21) each one of the four attachments that was included with(22) the cover letter. And that would have been difficult to(23) do because the revised application had already been(24) assigned DWR Number 7B. So it was for purposes of(25) clarification and numbering issues.

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(2) ALJ SHEDDEN: Okay. And then let me go back to

(3) Mr. Craddock here and verify. So if I understood your (4) testimony correctly, the October application had more (5) demand than the first January application, correct? (6) THE WITNESS: Yes. The October email and the (7) letter that we sent to the applicant had a total annual (8) demand of approximately 6,300 acre-feet. That was the (9) revised demand number. And the original application(10) filed in June of 2011 -- June of 2011 had a total annual(11) demand, I believe, in the neighborhood of(12) 4,100 acre-feet.(13) ALJ SHEDDEN: Okay. And I gave a wrong month

(14) there. It was probably confusing the record. And then(15) just so I'm clear on this, so Exhibit 8 that's on the(16) screen now is not the same -- 100 percent the same as(17) 7B, or is it the same as 7B?(18) MS. RONALD: The application itself is the(19) same --(20) ALJ SHEDDEN: Okay.(21) MS. RONALD: -- in both exhibits.(22) ALJ SHEDDEN: All right.(23) MS. RONALD: But then in Exhibit 8, there is a(24) further breakdown of the attachments for the revised(25) application that included 8A, 8B, 8C, and 8D.


(27) Pages 105 - 108



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(2) ALJ SHEDDEN: And again, that was a choice in (3) terms of just housekeeping on the exhibits that make it (4) clearer. (5) All right. Let me ask Ms. Ronald, we're at (6) about 10 of. Will this be a good point to stop and pick (7) it up tomorrow, or do you want to tie up any loose ends (8) before we do that? (9) MS. RONALD: I think this would be a good(10) stopping point.(11) ALJ SHEDDEN: Okay. Then let me go back to(12) something I had broached this morning and just see if(13) there's any feeling one way or another. I'm going to(14) suggest we start at 8:15 each day. As I said, it gives(15) you folks a few extra minutes to get in here and get set(16) up. My guess would be the hearing room will be open by(17) about 7:30, although I can't necessarily verify that.(18) The other thing I'll tell you is there had been(19) a weeklong hearing scheduled in Room B that has resolved(20) in some way. So we'll have Room B available for(21) overflow in terms of discussions on break and that sort(22) of thing.(23) I don't know if we're going to have more or less(24) people attending each day. We're pretty well at our(25) capacity here today. If there is a desire for more

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(2) interested persons or members of the public or your own (3) clients, if you will, to attend the hearing, what I can (4) do is have our staff give us a limited feed to Room B to (5) the extent that there's a couple of monitors in there, (6) you would be able to see the exhibits, or whatever is on (7) our monitors would be able to be seen over there, and (8) then you could get the audio of all the conversations or (9) testimony going on in this room, but not a direct video(10) feed.(11) So given that we've all fit in here today, and(12) generally speaking, the demand tapers off the longer the(13) hearings go on in terms of people wanting to attend, I'm(14) not going to ask that to be set up tomorrow, but --(15) initially, but if we do need that, it can be done rather(16) quickly. I can find a staff person who can help us with(17) that, and we'll go ahead and get that done.(18) So if you've had folks who stayed away out of(19) concerns that it's too crowded or there's no seats, we(20) can help accommodate it with regard to that; but in any(21) event, the room will be open for folks to use for(22) discussions during the day or whatever.(23) If there are no matters that any of you think we(24) should address today, then I am going to, absent any(25) objection, let you know we'll start at 8:15 tomorrow

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(2) morning. Is that the -- all right. I'll see you all in (3) the morning then? (4) MS. RONALD: Thank you. (5) (Conclusion of audio recorded (6) proceedings.) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25)

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(1) THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. (2) (3) C E R T I F I C A T E (4) (5) I, Katherine McNally, Certified (6) Transcriptionist, do hereby certify that the foregoing (7) pages 1 through 111 constitute a full, true, and (8) accurate transcript, from electronic recording, of the (9) proceedings had in the foregoing matter, all done to the (10) best of my skill and ability. (11) The final transcription reflects changes which (12) the parties have submitted and stipulated agreement on (13) the wording of said changes. (14) (15) SIGNED and dated this 5th day of February (16) 2013. (17) (18) (19) (20) _______________________________ KATHERINE A. McNALLY(21) Certified Electronic Transcriber CET**D323(22) (23) (24) (25)


(28) Pages 109 - 112



A

AAC (1) 63:21Aaron (3) 95:7,8,19able (6) 21:6;28:10;32:24;40:13; 110:6,7absent (4) 36:7;40:6;46:13;110:24ACC (1) 61:3accept (2) 30:11,12acceptable (1) 22:4access (5) 35:21;71:18,18;91:17; 93:13accommodate (1) 110:20accommodating (1) 62:18accompanying (1) 55:4accomplish (1) 62:13account (1) 66:6accounts (1) 107:3achieved (1) 19:23acknowledge (1) 71:22acknowledges (1) 67:15acre (1) 81:13acre-feet (4) 72:13,14;108:8,12across (1) 7:5action (1) 39:22actions (1) 62:24active (7) 34:18;80:13,14;81:10,14; 83:16;84:16activities (1) 77:7acts (1) 67:22actual (3) 82:5;101:13;107:16actually (2) 4:16;67:25adapt (1) 74:19add (3)

34:15;40:13;48:20added (1) 72:13addition (4) 52:15;67:13;91:9;100:25additional (7) 5:4;38:4;42:24;58:20; 72:11;80:18;92:16address (8) 6:14;16:13;33:13;34:5,25; 46:18;69:2;110:24addressed (2) 14:14;101:7addresses (2) 97:4;99:5addressing (1) 96:22adequacy (15) 73:14;77:16,21,22;78:2,14, 16,21;79:9;80:7;82:15;86:2, 3,4,13adequate (38) 4:8;28:16;51:7,17;53:22; 56:14;57:24,24;59:8,20,25; 60:8,16;63:25;64:3,9;66:4; 67:19;70:8;76:5,21;77:4,17; 79:14,20;80:4,10,11,24;81:5, 7;82:4,19;83:8;84:18;86:10, 19;98:11adjacent (1) 42:9adjudicated (2) 53:2;54:9adjudication (19) 26:9;52:18,24;53:20;57:7, 9;59:16;62:7;63:6,8;64:5,8; 65:15;66:25;67:2,10;69:23; 70:25;73:8Administrative (17) 4:12,13,23;6:21;8:5;23:10; 30:6;31:3;36:21;41:12;53:21, 25;55:20;60:21;78:19;93:4; 103:17admitted (2) 101:25;102:10admittedly (1) 26:12Adobe (1) 92:14adopted (3) 56:5;78:2;80:20adoption (1) 79:9adverse (1) 53:4advice (1) 29:22advisors (2) 26:9;94:7advisory (1) 67:22ADWR (30) 12:16,20,24;13:5;14:21;

29:8;31:9;33:6;39:7;48:9; 49:6;51:10,22;53:2,24;54:13, 21,24;64:3;69:19,24;72:10, 15;73:13;94:11;97:21,23; 98:4,11;107:17ADWR's (5) 31:15;36:8;51:24;71:24; 72:5affect (1) 77:13affected (1) 21:13afternoon (5) 4:5;8:10,15,23;16:2again (21) 10:11;15:8;29:8;30:25; 41:2;45:18;46:4;47:19; 48:18;49:22,25;54:12;76:18; 91:15,19;93:10,17;95:19; 97:2;103:6;109:2against (2) 58:19;66:19agency (9) 6:21;9:3;24:6;30:15;41:6; 46:5;53:25;100:22;103:16agency's (1) 54:7ago (2) 18:4;42:17agree (15) 14:17,21,24;18:25;19:7; 21:4;25:6,22,25;31:17;45:4; 48:16;49:6;59:24;103:19agreed (2) 12:6;48:13agreement (8) 17:15;19:19;21:24;27:25; 32:24;37:5;40:6;47:4agreements (1) 21:7ahead (25) 7:14,19;8:9,22;9:16;14:6,6, 10;18:5;29:6;31:22;32:8,21; 35:13;39:17;42:5;45:7; 66:11;74:9,20;86:17;91:23; 104:8,9;110:17aid (1) 35:2alert (1) 5:11aligned (2) 16:5;45:17ALJ (75) 4:5;8:8,22;9:13,16,20;10:2, 25;11:4;14:9;15:15;18:9,25; 19:14,17;20:16;23:5;24:13; 25:8;26:16;27:4;29:5,14,21; 31:20;33:3,8,10;38:15,25; 40:14;42:2,5,13;43:10,20; 44:10;45:11,19;47:24;48:11, 17,23;49:4,14,19;55:9,11; 59:4;66:11;69:18;73:16,19; 74:5,8,9,14;81:23;82:7;

90:12;92:4,8;100:6,14,20; 101:17;104:8;107:5,13; 108:2,13,20,22;109:2,11allocated (1) 15:16allotted (1) 19:18allow (5) 5:24;17:21;42:10;64:3; 104:3allowable (2) 81:11,16allowed (2) 10:9;16:25allows (1) 40:22almost (1) 18:6along (3) 32:18;41:16;94:8alphabetically (1) 37:8alternate (1) 28:22alternative (1) 69:13alternatively (3) 16:4,6;41:18although (6) 20:23;23:2,12;36:6;47:15; 109:17always (1) 16:16AMAs (2) 80:20;81:12ambiguity (1) 49:24amenable (1) 18:19amendment (1) 79:8American (1) 61:16among (4) 37:5;38:11;46:17;47:16amount (6) 11:17;13:15;14:2;18:22; 19:9;84:20amplification (1) 5:7AMWA (1) 54:3analysis (2) 61:12;83:15and/or (3) 19:5;52:9;91:8Andrew (5) 8:4;73:18;74:7,11;75:2A-N-D-R-E-W (1) 74:12annual (7) 76:10,11;84:15,18;88:17; 108:7,10


(1) AAC - annual



anonymous (1) 7:8answered (2) 29:16;39:13Apache (1) 52:23apologize (2) 45:13;91:21Apparently (2) 61:5;64:2appeal (4) 12:15;52:21;54:11;55:2Appeals (1) 102:4appearance (1) 9:11appearances (2) 6:19;7:19appears (1) 57:16Appellant (6) 9:9;42:19;51:21;56:21; 67:4;99:24appellants (30) 12:15;16:7;22:9;24:20; 27:11;28:12;31:25;35:3; 36:16;37:4,14,17;38:5;45:16, 20;46:2,11;51:20;52:4,6; 53:7;54:18,23;55:7;56:17; 57:17;100:25;101:8,10,11appellants' (1) 45:23appendices (5) 89:25;90:8,9,11;93:22Appendix (4) 90:10,10;93:23,24applicable (8) 32:18;59:20,22;60:13,15; 70:23;80:12,16applicant (15) 8:16;27:12;51:25;60:23, 25;61:2,4,6;79:21;85:4;96:4, 15;97:4,6;108:7applicants (2) 82:20;98:22applicant's (1) 60:3application (64) 4:8;28:15;35:4;51:7;52:5, 5;53:22;54:24;56:8,10,12,24; 58:23;69:8,14;79:14;80:12; 81:10;82:6,21;83:2,13;84:5; 85:24;86:11,18,21,25;87:15; 88:9,21;94:6,10,11,12,22; 95:14;96:13,16;97:20;98:6; 100:2,23;101:2,5;102:21; 105:8,23,25;106:2,12,15,17, 23;107:10,14,17,18,23;108:4, 5,9,18,25applications (5) 77:3,4,6,9;82:3applied (2) 54:19;57:11

applies (2) 62:22;63:5apply (5) 51:9;60:8;64:14;78:13,14applying (1) 68:4appreciate (1) 27:10approach (6) 41:13;45:6,20;64:7,10; 102:13appropriate (5) 15:11;20:24;37:6;58:22; 91:18appropriately (1) 54:6approved (8) 61:3;82:23;83:9,10,14,15, 21;85:11approximately (1) 108:8arabic (1) 90:21Area (26) 13:3,8;21:6;29:10;35:13; 52:10;69:10;73:2;81:14; 82:21,24,25;83:11,15,20; 84:17,20;85:6,21;86:12; 87:20;89:6,11;105:2;106:25; 107:3areas (6) 80:12,14,15;81:9,11;83:17argue (3) 59:19;66:25;68:13argued (2) 54:12;63:2argues (3) 58:14;67:6;68:20arguing (1) 22:10argument (11) 10:22;20:8;23:19;24:23; 40:21,23;50:3,6;68:17;69:3; 73:6arguments (4) 12:7;22:13;33:21;54:20arid (1) 61:15Arizona (25) 4:18;15:9;39:15,17;58:12; 60:12,14;61:20;62:7,17,20; 64:25;65:2,12;67:16;68:13; 70:11;72:19,23;75:11,16,23; 78:17;80:13;87:24Arizona's (1) 66:20around (5) 11:11;35:7;72:17;74:18; 90:18ARS (2) 60:15;65:22artificially (1) 19:21

aside (1) 38:10assert (1) 52:6asserted (1) 55:6assessment (4) 68:23,24;69:8,11assigned (3) 4:13;107:20,24assistant (2) 8:5;35:4associate (1) 64:24associated (3) 77:8;81:3;83:19assume (5) 17:16;26:19;43:22;45:5; 91:6assumed (1) 23:4assuming (6) 11:5,18;17:15;19:18;27:4; 63:13assurances (1) 68:8Assured (19) 76:5,21;77:3,17;80:2,3,7, 10,15,17,23;81:4,6;82:3,15, 18;83:7,17;84:17ASU (1) 9:23attachment (10) 89:5,6,10,13,23;90:2; 97:18,19,24;98:2attachments (10) 88:21;89:25;90:3;97:10, 14;105:13,18,19;107:21; 108:24attempted (1) 24:19attend (2) 110:3,13attending (2) 7:20;109:24attention (4) 35:7;87:3;88:8;96:19attorney (2) 8:13;9:23attorneys (1) 50:12AUDIO (112) 4:1;5:1;6:1;7:1;8:1;9:1; 10:1;11:1;12:1;13:1;14:1; 15:1;16:1;17:1;18:1;19:1; 20:1;21:1;22:1;23:1;24:1; 25:1;26:1;27:1;28:1;29:1; 30:1;31:1;32:1;33:1;34:1; 35:1;36:1;37:1;38:1;39:1; 40:1;41:1;42:1;43:1;44:1; 45:1;46:1;47:1;48:1;49:1; 50:1;51:1;52:1;53:1;54:1; 55:1;56:1;57:1;58:1;59:1;

60:1;61:1;62:1;63:1;64:1; 65:1;66:1;67:1;68:1;69:1; 70:1;71:1;72:1;73:1;74:1; 75:1;76:1;77:1;78:1;79:1; 80:1;81:1;82:1;83:1;84:1; 85:1;86:1;87:1;88:1;89:1; 90:1,14;91:1,14;92:1;93:1; 94:1;95:1;96:1;97:1;98:1; 99:1;100:1;101:1;102:1; 103:1;104:1;105:1;106:1; 107:1;108:1;109:1;110:1,8; 111:1,5August (3) 4:15;76:21,22authority (13) 23:8;27:20;52:12;60:12; 65:19;68:21;85:9,12,13,20, 24;86:9,15authorized (3) 59:21;61:7;63:3authorizing (1) 61:4availability (12) 51:14,15,15;52:2,3,3,7; 60:13;78:22,22;79:19;80:23available (12) 12:19;13:6;15:3;21:25; 60:18,25;61:10,12;63:14; 66:17;69:15;109:20aversion (1) 41:11averted (1) 67:12avoid (2) 16:15,24await (1) 64:7aware (5) 5:10,15;26:10;86:16,17away (4) 11:15;20:15;58:16;110:18Ayesha (2) 8:13,14

B

bachelor (1) 75:10back (25) 7:23;10:4;13:20;18:2; 31:24;33:17;36:19;41:2,9; 45:18,18;46:21;47:2,20,21, 24;49:5,25;93:17,18;102:18; 105:21;106:19;108:2;109:11background (7) 75:8,10;82:5,8;100:21; 102:20;103:8bar (1) 92:13base (1) 84:14based (10) 17:5;24:5;25:16;59:19;


(2) anonymous - based



60:20;68:24;69:15;72:15; 84:22;95:22basic (7) 31:15;37:2,12;80:6,9;83:7; 98:9basically (11) 22:8,17;51:12;76:10;79:6, 7;82:24;83:20;96:4,7;97:4basin (11) 20:11;59:11;64:17;65:6,7, 8;66:3;69:23;70:20;71:11; 72:7basis (2) 54:22;60:4bear (1) 45:20bearing (1) 15:13becomes (3) 15:3;16:17;92:11beforehand (1) 39:16began (1) 76:9begin (2) 34:2;46:24beginning (1) 37:11begs (1) 27:8behalf (6) 8:2,16;43:13;48:6;87:22; 96:14believes (1) 30:17below (9) 22:16,21;24:22,24;81:11, 13,15;103:11;105:3Ben (1) 9:2beneath (1) 58:13benefit (6) 5:14,20;16:7;38:7;39:17; 47:4Benson (1) 4:18best (4) 18:15;44:14;61:14;74:19better (7) 18:11;23:9;26:13;31:4; 41:13;48:18;85:11beyond (3) 50:10;72:3;102:12bias (1) 37:8bigger (1) 99:22Bill (2) 9:5;65:10bit (6) 35:10;74:17;90:7;92:9,25; 95:22

black (1) 7:4BLM (22) 8:25;9:3,5;14:21;15:10; 20:7;38:19;40:15;52:20; 56:21;57:5,7;58:14;59:6; 63:15;64:4,13,15,21;65:12, 20;66:3BLM's (15) 20:8;22:8;25:17;59:10; 63:3,9,18;64:18,20;65:8,11, 16,21;66:2,8block (1) 18:14body (1) 60:9both (14) 12:3;22:12;57:19;66:7; 67:9;77:3,17,18;79:4,5;81:4; 83:7;88:5;108:21bottom (8) 23:14;29:23;31:3;49:9; 50:13;58:22;92:10;102:6bounce (1) 45:17box (2) 7:4;92:18breach (1) 5:12break (8) 34:3;46:17,24,25;47:16,17, 19;109:21breakdown (1) 108:24brief (7) 13:11;25:15;27:19;46:7; 47:10;50:16;52:16briefs (1) 91:8broached (1) 109:12brought (1) 43:14Brown (6) 88:5;94:3,6;97:22;98:16,23budget (2) 14:17;15:3bunch (3) 30:13,16;102:2burden (5) 33:24,24;37:25;45:21; 62:17burdensome (1) 67:15Bureau (1) 12:25buyers (3) 67:20,23;68:9buying (1) 73:2buzzer (1) 15:17

C

calculation (5) 81:17;82:14,16,18;98:3calculations (5) 81:3,4,19;84:2,7Caldwell (5) 88:5;94:6;97:22;98:16,23Caldwell's (1) 94:3calendar (1) 84:23call (11) 32:15;35:19;36:12;41:11; 49:21;65:10;73:18,24;79:7,9; 82:20called (1) 34:12calling (3) 37:13;47:16;64:21calls (2) 68:23,24came (13) 22:8;34:6,19,20;43:21; 70:24;87:14;94:5,11;97:13, 14;102:15;105:11can (75) 5:14;7:15;10:7;11:13; 13:14;14:17;15:22;16:8; 17:17;18:10;19:23;20:15; 21:4;22:25;24:7,24;29:3,18; 30:22,24;33:18;34:2,25;35:4, 5,9,12,20,21;37:5;39:23; 40:16;41:3;42:8,20,24;43:4; 45:3,9;46:16,22;49:9,22; 50:19;62:2;71:22,22,24,25; 72:5,5,7;73:11,14;74:17; 78:9;81:23;82:8,12;83:15; 90:7,18;92:10,20;93:9;95:17, 21;101:14;104:9;107:8; 110:3,15,16,16,20cancelled (2) 10:22,24candidly (2) 25:13;101:20capability (3) 51:16,21;79:21capacity (2) 79:23;109:25Cappaert (7) 53:8;61:23;63:13;65:22; 70:14,16,22care (4) 7:22;47:10;50:23;55:12carried (1) 84:14case (44) 26:8;28:10;30:17;35:3; 37:13;44:18;45:5,18,23;51:3, 8;52:15,22,23;53:7,10,12; 54:4,6,14;55:18;59:16,24; 60:5,10,14,14;61:12;62:24;

63:24;64:14;65:18,24;69:16; 70:14;79:16,17;80:11;83:2, 13;85:12;86:11;90:22;93:2Castle (3) 8:18;87:24;88:4categories (1) 89:14cause (1) 64:20cautious (1) 5:18cell (1) 10:6Center (1) 64:25certain (6) 19:8;21:8;25:22;50:9;51:6; 101:2certainly (5) 23:18;27:7;59:18;73:12; 101:19certificate (4) 17:11;61:2;70:5,7certificates (2) 83:18,22certification (3) 44:21,25;73:13certifications (1) 44:12certified (2) 9:8;66:13cetera (1) 107:20chair (1) 5:14challenged (2) 51:20;52:4change (8) 4:20,22;40:7;56:2,18; 63:24;79:10,12changed (2) 56:2;106:21chief (1) 8:6chime (1) 28:21choice (5) 70:10,12,12,12;109:2choosing (1) 36:16chose (1) 55:2citations (1) 78:17cite (3) 71:23,24,24cited (3) 52:15,22;54:4claim (5) 24:20;54:18;56:23;63:5,10claimed (1) 22:18claims (8)


(3) basic - claims



26:10;52:19,25;53:2;54:9; 55:6;60:7;67:3clarification (3) 105:5;107:6,25clarified (1) 62:9clarify (3) 24:12;41:24;107:8clarifying (1) 95:10clause (2) 68:13,15CLE (1) 92:25clear (7) 5:8;32:13;44:17;47:6;61:8; 73:4;108:15clearer (2) 5:17;109:4clearly (4) 57:14;58:8;63:5;67:9clicking (1) 92:14client (3) 66:15;67:6;69:6clients (1) 110:3clocks (1) 46:21close (2) 5:9;16:20closing (4) 12:7;23:19;33:20;91:8coats (1) 7:12Cochise (5) 85:13,22;86:2,4,8Code (4) 60:21;78:19,25;79:3Coffman (1) 8:18collectively (1) 19:24combined (1) 34:13comfort (1) 68:16comfortable (2) 7:13;34:25coming (2) 17:17;41:9Commencement (1) 4:2comment (3) 17:19;25:8;103:21comments (6) 16:11;24:2,6,18;25:3;43:11committed (15) 84:6,12,24,25;85:2,17; 88:16,19;89:15,18;94:21; 95:11;97:18;98:3;106:20common (1) 20:6

community (6) 88:2;96:9,11;99:6,11; 106:24Company (8) 8:17,19;13:23;56:15;85:5, 19;87:23,24Company's (1) 4:7compelling (1) 46:13complete (5) 30:19;58:25;75:17;91:14; 101:3completed (1) 75:19completeness (1) 12:12compliance (3) 76:13,14,16complicated (1) 25:24complied (2) 51:13,25comply (1) 57:15comprehensive (1) 103:16compromise (1) 32:4computer (7) 34:8,12;46:22,23;74:17; 93:4,11computers (1) 6:8conceptually (3) 20:12;21:7,8concern (3) 13:25;44:11,23concerned (2) 32:3;47:18concerning (1) 77:6concerns (6) 11:23;17:3;29:3;30:25; 31:2;110:19conclude (1) 104:23concluded (1) 25:4conclusion (6) 42:10;100:11,12,17;104:6; 111:5conclusions (2) 63:23;104:13concurred (1) 62:8conduct (1) 95:24confer (1) 32:23conference (5) 21:16;36:3;45:13,24;46:16confident (1)

29:25confined (1) 60:7confirm (1) 50:8confirmed (1) 56:13confirming (1) 59:17confusing (1) 108:14confusion (1) 40:4Congress (6) 59:12;61:13;63:5;70:11; 71:3;72:11connected (4) 14:20;60:4;64:16;71:10connection (10) 14:17,23;18:8;31:19; 32:25;65:4,25;71:8,22,25consent (1) 32:6consequence (4) 39:21,24;40:4;100:5Conservation (3) 13:3;52:9;69:10consider (27) 12:21,24;20:9;23:19,20; 27:20;33:5;38:18;39:8; 41:13;46:16;49:7,11,17,18; 50:9;51:5;52:12;56:22,24; 59:21;60:11;63:3,16;65:19; 66:4;68:21consideration (3) 14:5;54:25;67:7considerations (1) 69:3considered (7) 17:7;22:19;30:3,4;47:12; 54:21;59:10considering (2) 40:11;63:11consistency (2) 80:19,20consistent (2) 30:5;71:25constrained (1) 28:16construct (1) 79:22consult (1) 11:10consulting (1) 47:16consumer (2) 67:22;72:24consumers (2) 68:7,17consumption (1) 16:24contained (1) 96:2

content (1) 93:6contents (1) 90:6context (2) 28:15;78:3continual (1) 78:22continue (3) 18:6;19:24;48:13continuing (1) 47:4continuous (5) 51:15;52:2,7;78:22;79:18continuously (2) 12:18;60:17contrary (1) 68:3control (4) 34:21,23;87:7,11convenience (1) 61:3convenient (1) 46:12conversations (1) 110:8convince (1) 64:13Cooke (3) 8:19;87:24;88:4coordinate (1) 77:11coordinator (1) 76:16copies (4) 34:10;35:22;100:2;101:13copy (9) 44:24;88:9,11;89:7,10; 90:17,24;99:18;105:7Corkhill (3) 8:6;31:10,12corner (1) 91:25correctly (2) 38:17;108:4correspondence (5) 94:19;95:24;96:24;97:5; 100:3corresponding (1) 99:15couched (3) 16:23;25:16;26:3council (1) 78:5counsels (1) 32:23count (3) 71:3,4;101:19county (7) 79:9,10;85:13,22;86:2,4,8couple (10) 4:25;6:3,11;18:12;23:5; 30:8;92:19;95:23;103:14;


(4) clarification - couple



110:5Coupled (3) 5:17;12:3;41:2course (10) 17:4,8;35:2,21;36:23;38:5; 74:16;75:13;84:8;103:12coursework (2) 75:18,19court (19) 26:9;44:22;45:3;52:17,24; 53:14,20;54:6;61:20,21,24; 62:7,20;66:20,23;67:8,15; 73:8;102:3courts (1) 68:15Court's (1) 66:19cover (14) 55:4;86:24;87:2,14,16; 90:20;94:5;96:17,18;97:15, 24;107:14,14,22covers (1) 39:18Craddock (9) 8:4;73:18;74:7,11,11;75:2, 9;104:11;108:3C-R-A-D-D-O-C-K (1) 74:13create (1) 25:6created (4) 59:12;61:13;78:4,12creating (2) 90:13;91:4creation (1) 59:14criteria (12) 51:6,12,13;52:4;54:19; 56:3;57:23;79:13,17;80:8,9, 23critical (1) 21:5criticized (1) 58:6cross-reference (2) 79:8;92:3crowd (1) 7:20crowded (1) 110:19Cruces (1) 75:14crystal (1) 44:17cumulative (3) 16:15,17,18cumulatively (1) 22:10curious (1) 102:13current (19) 69:16;76:3,7,17,18,25; 82:22;84:6,11,13,22;86:22;

88:16,19;89:15,18;94:20; 95:11;106:20currently (4) 56:22;75:20,21;76:4cursor (1) 35:12curtailed (1) 53:10cut (2) 13:15;23:23cycle (1) 37:21

D

danger (1) 103:20darn (1) 16:20data (1) 76:11date (4) 4:16,20;73:5,5dates (1) 79:4David (3) 9:7;48:5;66:13day (9) 10:15,17;11:11;19:3; 30:24;33:15;109:14,24; 110:22days (3) 7:15;11:16;95:23day's (1) 91:7day-to-day (1) 77:7deal (13) 5:3;20:24;24:3;26:15; 27:24;28:22;32:14;52:18; 79:6;80:18;93:23;101:18; 103:22dealing (3) 28:15;52:2;69:23deals (6) 26:8;51:14,14;52:17; 104:17;106:19dealt (1) 82:13December (1) 75:19decide (3) 38:22;41:8;45:22decided (3) 22:25;41:19;46:21decision (17) 4:6;30:24;39:6;41:6;49:17; 53:9,9;54:25;55:3,4;61:22; 66:19;67:3,18;69:12;101:6,7decisions (1) 53:19declare (1) 59:24

declining (1) 13:7decrease (1) 106:8decree (1) 64:4decreed (2) 63:15,19default (1) 90:19defeat (1) 62:15defer (2) 11:8;62:14define (1) 56:14defined (2) 58:10;84:5degree (2) 64:15;71:9Del (53) 4:7;8:17,19;12:2,16;13:4; 14:21;16:10;20:10;22:13; 23:16;27:16,23;29:10;32:2; 36:14;37:16,18;43:13;45:16, 22;46:14;51:24;56:9,9;58:5; 59:9,19;63:2,17;64:11,19; 65:7,14,18,19,20;66:6;68:20; 79:16;80:12;81:10;82:6;83:2, 13;85:22;86:18;87:20,22,23; 88:4;95:24;97:19delay (1) 32:2deliberately (1) 104:2delivery (1) 79:23demand (44) 83:25;84:6,6,7,8,11,12,13, 22;85:2,17,17;88:14,15,17; 89:13,19;94:21;95:3,11,11, 12;96:2,25;97:18;98:3; 105:11,22,24;106:2,5,7,8,11, 15,21,22,25;107:3;108:5,8,9, 11;110:12demands (14) 81:2;82:22,23,25;83:10; 84:2,4;85:2;88:19;89:14; 97:21;98:10,11,13demonstrate (3) 12:16;13:4;28:4denied (3) 12:3,8;23:4deny (2) 51:7;69:13Department (54) 8:2,7,24;13:20;15:9;16:10; 17:6;22:12,19;23:2,16;24:19; 25:14;28:14;30:11;37:16; 38:23;51:5,8;55:19;56:7,13, 22;57:3;58:7,11,14,23;64:22; 65:17;75:23,25;76:5,9,12,16; 77:9,12,14,15,16;79:17;82:2;

83:16,25;84:2;86:9,14;94:13, 19;95:12,20;98:10;101:4Department's (4) 13:10;55:5,16;76:13depend (3) 64:18;65:9;66:9dependent (1) 61:25depth (10) 58:8,9;81:16;82:14;83:5; 100:16,17;103:7;104:17,24depths (1) 81:8DEQ (2) 13:19,20describe (2) 65:12;87:18described (1) 51:4designated (3) 72:12;80:13;107:2designation (28) 4:8;17:11;28:16;51:8; 53:23;56:15;57:13,24;58:25; 63:23;64:11;66:16;67:19; 68:3,6,8,10,14;69:7;79:14; 82:3;84:9;86:12,19;88:12; 97:20;98:6;105:8designations (3) 63:24;83:20,22desire (4) 36:18;46:14;57:16;109:25desk (2) 7:3,7despite (3) 12:8;59:22;60:7destined (1) 64:12detail (2) 11:21;25:12detailed (1) 91:14details (1) 84:18determination (14) 13:21;30:20;38:20;51:22; 53:22;57:11;59:9;63:20;64:4, 10;66:5;86:10,13;101:11determinations (2) 80:23;101:5determine (5) 32:17;53:4,17;60:23;83:4determined (4) 12:17;13:5;58:24;96:4determining (2) 39:22;51:6detrimentally (1) 68:10develop (1) 88:6developed (1) 85:14developer (1)


(5) Coupled - developer



87:25developers (2) 69:25;72:13development (2) 86:11;107:2device (1) 5:5difference (9) 71:11;80:6,16,22,25;81:6, 15;84:11;107:4different (12) 13:23;20:19;50:11;61:8; 79:4;81:2,8;83:21;88:18; 90:21;92:9;93:11difficult (3) 15:22;40:24;107:22difficulty (3) 7:2;22:2;27:24dilemma (1) 27:10diminished (1) 68:18diminishes (1) 68:5DIRECT (4) 75:6;87:3;88:8;110:9directed (1) 96:18directly (3) 10:19;18:18;102:18director (14) 4:7;6:23;7:8;30:10,14,17; 41:3,7,7;57:13;60:23;63:22; 64:24;91:10disagree (3) 25:10;29:9,16disagreement (2) 21:8;36:6disclosed (1) 101:21discretion (1) 19:12discuss (7) 19:25;32:7;34:3;46:17; 65:14;77:5;78:21discussed (3) 45:14;78:12;96:3discusses (1) 95:21discussing (3) 19:8;38:13;106:20discussion (9) 6:9;18:10;19:16;27:13; 31:24;36:4;38:11;48:2;49:6discussions (5) 46:25;47:5;48:13;109:21; 110:22dismiss (5) 12:2,4;20:23;22:22;23:13dispositive (1) 41:5dispute (4) 38:18;46:11;67:4;99:25

disputed (2) 15:16;40:22disputes (1) 103:7distinct (1) 66:25distinction (1) 67:9diversion (2) 62:3,3divisions (1) 77:12Docket (4) 4:9;9:12;35:16,20Doctor (2) 14:6;73:24doctrine (1) 62:22document (8) 88:13;90:16;95:16,17; 99:14;102:16;103:6;105:18documents (9) 25:13;44:3;91:2;93:16; 101:15;102:2,8,9;103:4Domain (1) 98:12done (7) 5:23;6:12;27:14;33:16; 57:25;110:15,17doubt (1) 30:22down (16) 4:18;10:3;13:15;15:4,6; 17:17;19:20;25:24;30:10; 35:6;36:15;92:10;95:15,22; 97:7;99:12downstream (1) 42:9Dr (19) 9:4;14:7,11;18:2,5,21;25:9; 31:7,8,14;49:3,5,15;64:23; 69:18,19;73:21,24;74:3draft (6) 17:12;48:15;54:24;55:3,4; 101:6drafted (1) 22:15dragged (1) 92:11dream (1) 24:8drink (1) 10:9drive (2) 34:12;43:15drop (1) 90:12duly (1) 75:3duplicate (2) 55:15;105:16duplicated (1) 107:18

during (3) 4:19;38:22;110:22duties (3) 39:11;76:6,23duty (2) 16:14,24DVD (1) 98:21DVDs (1) 98:22DWR (70) 7:18;13:23;20:9;21:12,17, 21;25:16;27:12;29:2,24; 30:14;36:14,19;37:3;38:4,18; 40:11;45:16,25;46:14;50:22; 53:21;56:2;59:8,19,20,25; 60:2,7,9,9;61:5;63:2,2,7,13, 16;65:18,23;66:4,16,18,23; 67:25;68:8,20;69:4,6,7,13; 73:16;75:24;87:3;88:8;89:3, 9,12,21;91:10;94:15;95:6,7, 10,15;96:12;102:19,23; 105:6;107:19,24DWR's (8) 25:15;50:8,14;54:4;62:24; 63:20;67:21;69:2

E

earlier (5) 59:6;61:21;85:25;95:22; 106:19easier (2) 44:9;93:13easy (1) 54:14editorial (1) 103:21educational (2) 75:8,10effect (4) 40:20;42:8;67:10,14effective (2) 59:14;79:4effectively (1) 13:17efficient (1) 64:6either (3) 16:3;33:18;49:20electronic (5) 44:13,22;89:10;91:18;93:2electronically (1) 4:2eliminate (1) 16:9else (12) 31:7;42:2,3;43:8;48:21; 50:15,19;55:9;72:18;85:9; 92:5,13elsewhere (1) 57:20email (8)

94:19;95:7,20,23;96:3; 106:4,9;108:6employed (2) 75:20,21employees (1) 64:22enacted (1) 55:25end (15) 11:11;14:5;19:3;24:4; 30:24;33:15,15;37:11;38:3; 39:5,12;41:14;45:4;71:20; 83:6ending (1) 71:2ends (1) 109:7enforce (2) 57:8;58:18engaged (1) 47:25enjoyed (1) 62:10enlist (1) 35:2enough (2) 72:4,23ensuring (1) 67:23entails (1) 82:21entered (1) 102:25entire (4) 35:16;100:19;106:25; 107:3entirely (1) 48:8entities (2) 56:11;87:19entitled (4) 24:17;50:2;54:8;98:11entitles (1) 56:15entry (1) 76:11equaling (1) 72:9err (2) 13:19;31:4erred (1) 40:11erroneously (5) 12:17,20,24;13:5;39:8error (3) 13:24;30:18,18escape (2) 46:20;63:21essence (2) 23:24;29:21essentially (1) 39:3establish (1)


(6) developers - establish



88:6established (2) 62:8;103:13estate (1) 67:23estimates (3) 88:14,15;95:3et (2) 23:11;107:20evaluate (1) 69:19evaluates (1) 82:3evaluation (1) 81:8even (14) 21:7,24;27:9;28:2;31:9; 34:8;41:20;53:2;63:2;70:4; 71:15;72:10,22;100:12event (1) 110:21eventually (2) 6:14;65:8everybody (3) 6:22;44:25;70:8everyone (6) 19:18;33:23;37:20;50:6; 64:14;91:17everyone's (1) 11:5evidence (78) 6:11,16;11:23;13:7,12,15; 14:3;16:4,16,17,18,23,25; 17:9,23;18:17;19:10;20:15; 26:18,20,20,25;27:3;28:3; 29:24,24;30:8,13,16,21,23; 31:5,6,6;32:10;33:16;36:4; 37:3,18,20,23;38:5,24;39:18, 19,21;40:12,15,21,23,25; 41:8,15;42:11,24,25;45:23; 46:3,6,9;47:12,14;50:2,5,14; 55:19;57:14,18;58:6,17;61:2; 70:18,22;91:10;101:25; 102:10,16,19exact (1) 100:2examination (2) 43:4;75:6examine (1) 53:3examined (1) 75:4example (2) 42:7;66:23examples (1) 61:15exceed (1) 105:3Excel (1) 98:9except (1) 59:14exclude (4)

16:25;30:13,16;31:6exclusive (1) 52:24excuse (5) 34:2;69:4;81:13;95:8; 99:20exempt (1) 72:10exhibit (17) 26:20;34:15,24;43:25; 87:4;89:21;92:2;97:23; 98:18;104:13;105:7,10; 106:19;107:11,18;108:15,23exhibits (27) 26:4,14,17;27:2,5;34:10, 13,14,24;43:24;44:4,5,12,19, 23;99:25;100:3;101:12,18, 21,22;102:18,25;107:9; 108:21;109:3;110:6exist (1) 71:16existence (2) 55:23;63:7existing (3) 82:24;84:13,22exists (1) 64:2expand (1) 15:24expansive (1) 24:16expected (1) 64:8expedite (1) 25:22expert (1) 17:16explain (3) 21:17;56:9;65:4express (1) 60:5expressed (1) 29:11expressly (2) 59:12;61:16extended (1) 47:25extends (1) 71:6extensive (1) 24:16extent (3) 62:12;102:22;110:5extra (3) 11:9;47:18;109:15extremely (2) 30:23;61:15

F

face (2) 62:17;68:2fact (17)

12:8;14:19;23:22;36:20; 39:20,21;42:23;50:8;51:4; 54:16;56:16;57:14;61:13; 63:23;70:12;100:4,25factors (1) 68:25facts (27) 16:3;17:22;19:9,20;20:25; 21:2,7,8,10,14;22:11,23; 25:22;28:20,22;31:22;32:8; 40:4;41:19,20;42:14,16,19, 20;43:3;63:11;103:9factual (3) 13:21;26:2;69:8failed (2) 12:16;13:4failure (1) 24:6Fain (1) 8:21fair (2) 24:20;102:17fairly (6) 7:20;13:22;46:4;55:17; 69:20;103:15fall (3) 96:24,24;97:6false (3) 68:10,14;69:7familiar (2) 77:19,23far (11) 21:21;22:14;25:21;31:4; 58:3;78:11,16,19;81:2;84:9; 101:13fashion (2) 35:20;37:4favor (2) 31:25;44:22feature (1) 7:16federal (45) 13:2;20:11;22:18;26:8,11; 49:7,7,18;52:18;53:11,12,16; 54:10;56:23;59:10,12,22; 60:5,10,14;61:19,24;62:8,10, 15,18,21,22;63:3,12,15,19; 64:18;65:11,16,21;66:2,8,22; 67:12;69:10;70:13;71:3; 72:12;73:11feds (1) 14:21feed (2) 110:4,10feedback (2) 6:23;7:8feel (5) 6:14;37:22;38:12;41:14; 104:2feeling (1) 109:13feelings (1) 45:15

feels (4) 23:17;29:24;40:9;102:23feet (4) 81:11,13,15;105:3fell (1) 39:10Feller (1) 9:22fellow (3) 72:20,24;102:14few (3) 4:11;18:4;109:15fifth (1) 51:16figures (1) 97:19file (5) 31:22;45:3;55:2;84:18; 91:18filed (27) 4:19;9:11;10:16;12:2; 22:14,22;25:13;26:5;28:19; 31:21;34:14;35:18;41:21; 44:11,12,15;50:16;51:2; 52:19;58:22;77:9;86:18,20, 24;88:10;94:22;108:10files (3) 43:25;93:3;98:17filing (1) 25:17filings (2) 17:5;33:22final (2) 67:6;76:15finalized (2) 63:15;64:4finally (3) 35:21;62:16;63:19financial (3) 51:16,21;79:21find (5) 13:13;20:5;38:21;69:14; 110:16finding (4) 22:3;59:2;63:9;66:18findings (4) 21:25;30:11;41:3;63:23fine (7) 31:17,19;40:16;41:16; 50:7;73:3;99:14finished (1) 36:24firm (1) 17:6first (23) 18:2;20:22;21:16;28:9; 31:24;36:9,25;38:4;39:2; 46:2,3;49:10;50:23;59:9; 64:23;73:17;75:3,25;76:8; 90:19;96:7,21;108:5fit (2) 91:16;110:11five (8)


(7) established - five



11:16;43:5;46:13;51:12, 13;79:17;80:9;88:25flash (1) 43:15flat (1) 15:11flesh (1) 91:20flip (3) 44:6,8;67:16flow (4) 12:21,22;39:9;42:9flows (4) 28:6;52:13;57:19;68:22Fluid (10) 87:21;88:5;94:8,20;95:2,4, 8,9;96:14;106:4focus (2) 18:23;76:12focused (1) 27:22focuses (1) 30:24folks (30) 5:11;6:3,18,20;7:19;10:5; 11:9;16:12,15,17;17:16,21; 30:5;31:21,22;33:19;46:25; 70:17,24;71:13;91:6,15;92:4; 93:8,10;101:17;103:3; 109:15;110:18,21follow (8) 24:11;36:25;37:12;45:16; 53:25;54:15,16;55:21followed (2) 54:17;58:23following (3) 12:15;37:19;61:21follows (1) 75:4follow-up (1) 36:19food (1) 10:9forced (1) 31:15forget (2) 41:4;102:3forgo (1) 50:22forgot (1) 8:12form (4) 17:12;39:7,16;93:8formal (1) 78:8formality (2) 7:14;74:10forms (1) 6:24forth (13) 12:10;17:24;22:7;23:12; 24:19;32:15;39:3;46:15;51:3, 10;52:10;54:19;81:25

forward (19) 4:21;5:11,16;6:10,16;7:24; 20:2;21:22;26:13;32:9; 33:20;34:22;36:3;37:12; 38:8;46:11;47:8;48:24;50:18found (2) 23:10;66:17four (5) 12:11;88:18,25;97:14; 107:21fourth (2) 23:24;51:16frame (2) 19:10;31:23frames (1) 77:8framework (1) 69:4Frank (1) 8:5fraud (1) 72:24free (1) 30:12frequently (1) 5:21front (3) 5:9;7:3,6full (2) 7:20;55:24further (4) 7:11;62:21;91:11;108:24future (2) 68:9;91:7

G

game (1) 102:17GAUDIO (16) 8:23,24;20:8;33:8,9;38:14, 16,16;40:9;41:25;42:3,4; 45:12;49:2;59:4,5gave (1) 108:13general (18) 47:3;57:7,9;59:15;62:6; 63:6,8;64:5,8;65:2,15;66:24; 67:2,10;76:9;78:3,7,10generally (9) 5:2;7:9;10:14;15:18,20; 17:18;102:11;103:3;110:12geographic (2) 82:21,25geography (1) 75:12Geological (1) 64:24geology (2) 65:3;75:12germane (3) 102:7,23;104:2Gerrodette (11)

9:9,14,15;13:18;19:5;48:6; 54:5;66:14,14;67:4;99:24Gerrodette's (1) 11:25gets (1) 70:20Gila (18) 15:5;52:18,24;53:20; 59:15;62:4,4,6;63:6,8;64:5; 65:15,22;66:20;67:8;68:24; 70:24;72:2given (14) 13:7;18:14;24:5;32:6; 33:25;36:12,20;41:15;48:17; 50:5;63:11;68:7;93:5;110:11gives (1) 109:14giving (1) 31:5glad (1) 7:3goal (1) 80:21goes (5) 15:17;49:5;72:8;90:9; 91:11Good (17) 4:5;8:10,15,23;10:25; 11:12;18:22;19:19;44:17; 47:7,13;71:9;87:6;91:4,14; 109:6,9governed (1) 61:13governor's (1) 78:5graduate (2) 75:13,15grant (7) 4:7;51:6;54:24;66:16;67:5; 68:3;69:7granting (1) 59:8grasping (1) 100:4great (3) 25:12;27:24;54:8greater (2) 62:10,12grew (1) 72:19ground (5) 20:6;84:21;89:24;95:25; 103:12grounds (1) 54:11groundwater (48) 13:7;14:19,23;27:15,23; 28:5;33:2;52:13;53:5,10; 57:19;58:8,9,14;60:17;61:7, 10,11,23;62:4,11,22;64:16; 65:3,3,5,25;66:8,17,22;67:11; 69:14;71:6,6,8,11,16;81:9,16; 82:14;83:6;88:6;89:24;99:8,

10;100:16;104:20;106:23group (3) 14:15;35:2;36:15guess (19) 11:6,19;15:24;17:18;20:2, 19;23:9;25:9;29:15;31:16; 32:19;36:2;39:4;42:22; 43:21;49:24;74:3;93:11; 109:16

H

habitat (1) 61:15half (3) 19:11;21:24;76:2hallway (1) 7:5halt (1) 58:16hand (5) 19:22;20:23;30:21;63:16; 74:6handled (1) 40:16happen (7) 41:23;69:22,22;70:2,4,9; 103:19happened (2) 95:2;100:9happens (1) 38:9hard (6) 34:12;89:7,16;90:17,24; 99:18harm (1) 64:20head (4) 47:2;55:17;67:16;78:14heads (1) 30:15hear (7) 18:13;24:16,17;25:6; 29:25;32:6;49:21hear- (1) 10:21hearing (46) 4:15,16,18,20;7:4;11:16; 12:10,14;14:5;17:23;20:13; 21:3,12;22:9,16;23:6,12,21; 24:4,10;25:23;28:13,25;31:4, 22;32:2,16;36:21;38:21,22, 23;39:4,6,12;40:6;41:14; 45:23;46:21;48:14;50:4; 51:11;65:24;103:17;109:16, 19;110:3Hearings (9) 4:13,24;6:21,22;20:20; 30:7,15;41:12;110:13Hearings' (1) 23:10heart (1) 52:20


(8) flash - heart



heel (1) 73:22held (7) 38:21;61:22,24;62:20; 66:20;67:11;68:13help (12) 7:3;16:8;29:19;35:4,10; 41:24;46:5,9;91:14;93:9; 110:16,20helped (1) 94:8helpful (3) 23:3;35:23;53:8herein (1) 75:3Here's (3) 35:25;42:14;46:19higher (2) 106:7,12hired (2) 75:25;76:8hit (1) 55:16hold (3) 5:23;44:16;67:12holders (1) 62:11holding (1) 67:17holdings (1) 62:25holds (1) 61:19home (2) 67:20;68:9Honor (34) 7:25;8:10,15;9:7;10:20; 19:7;20:21;21:15;23:3; 31:13;32:22;42:6;43:9,12; 45:10;48:5,13,22;49:2;50:25; 52:16;55:14;66:12,15,19; 68:16;69:6;74:21;81:21; 93:20;99:23;100:24;101:9; 104:7Honor's (1) 19:12hope (3) 43:3;45:4;71:2hopefully (3) 19:2;33:16;46:5hopes (1) 66:3hoping (1) 13:16hour (4) 19:11,12;21:23;25:24house (1) 7:21housekeeping (1) 109:3hundred (4) 59:18;79:19;83:6;84:14hundreds (1)

101:20hunting (1) 102:5hydro-analysis (1) 94:9hydrologic (2) 28:12;89:24hydrological (1) 32:25hydrologically (1) 60:4hydrologist (5) 8:6;9:2,5;64:23;65:11

I

idea (3) 44:19;46:9;77:25identical (1) 44:15identified (3) 80:10;95:12;96:5identify (2) 91:2,15ignore (4) 30:22;42:15;66:21;69:4Ignoring (1) 68:3III (8) 15:5;62:5;65:22;66:20; 67:8;68:24;70:24;72:2ill (1) 10:23immunity (1) 68:12impact (9) 27:21;28:6;58:4,20;63:18; 65:8;66:21;69:9,11impacted (1) 65:13impacts (25) 12:21,24;14:3;17:9;20:10; 26:6,7;27:15;38:19;39:8; 40:11;52:8,12;53:5,11;54:10; 57:18;59:10,21,22;63:3; 65:19,20;66:6;68:21implement (1) 55:21important (7) 21:9;53:9,24;56:4;60:2; 61:21;103:17importantly (3) 53:19;62:20;63:20imposed (1) 53:14impossible (1) 53:17improper (1) 25:7inadequate (3) 70:5;73:4;98:11inappropriately (1) 54:19

inclined (1) 25:21include (5) 43:6;85:2;89:14,18;96:7included (12) 24:15;84:4;88:14;98:17; 99:7;105:10,22;106:3,11,23; 107:21;108:25includes (5) 63:20;88:15;96:10;98:10; 104:25including (6) 6:8;13:2;14:15;65:7;92:16; 93:12incomplete (2) 97:5;99:3inconsistent (1) 62:25incorporated (2) 83:4;87:25incorrect (4) 94:20,22;95:13;96:25increase (1) 106:16increased (1) 13:8increasing (1) 76:14incumbent (2) 91:13;103:24indeed (3) 4:21;7:15;40:19independent (1) 6:21indicate (3) 57:2;79:25;100:16indicated (5) 21:16,20;22:14;52:22; 103:4indiscernible (5) 15:14;18:8;73:23;74:4; 98:8inducement (1) 16:11infamous (1) 72:21influence (1) 105:2information (20) 6:7;7:23;29:2;30:18;35:19; 36:23;48:19;68:2;82:9; 91:16;92:16;100:22;102:12, 17,20,22,23;103:19,25; 104:16informed (1) 67:24infrastructure (1) 79:22initial (6) 49:6;86:20;87:15;88:9; 94:18;95:13initially (2) 13:13;110:15

input (1) 78:9insist (1) 65:18instance (2) 14:19;31:9Instead (4) 52:6;54:20;60:9;61:9intake (2) 76:10;77:3intended (2) 22:9;51:18intent (2) 101:23;103:5intention (4) 10:14;36:7;101:22;102:11interacts (1) 65:3interested (2) 35:14;110:2interests (2) 37:15;45:17Interior (2) 8:25;64:22interlocutory (1) 62:5Internet (1) 35:22interpretation (1) 54:7interpreted (1) 61:5interrupted (1) 18:3interrupting (1) 5:19interruption (1) 91:22into (16) 10:11;11:21;12:11;26:17, 20,25;27:3;28:2,11;30:21; 66:5;67:7;101:25;102:3,10; 103:4introduce (2) 5:3;7:21introduced (1) 101:15introducing (1) 101:15introduction (3) 6:5,18;9:21invalid (1) 63:25invisible (1) 92:12invite (1) 6:22involved (3) 56:10;57:21;78:6involving (1) 60:10irrelevant (4) 42:12;49:16;57:18;59:22


(9) heel - irrelevant



issue (24) 6:2;11:20;14:25;15:3,16; 18:14;20:22;22:6,17,21,23; 24:5,15;27:7;33:12;39:6; 40:25;41:5;42:7;50:5;57:13, 22,23;69:11issued (10) 4:15;41:21;58:25;63:8; 84:9;97:21;98:10,11,12; 101:6issues (58) 5:4;6:11,13;9:10;12:5,6,9, 11,15;13:9,14,19;14:13;15:6; 16:22;17:23,24;20:17,18; 22:7,15;23:7,11,14,15,20; 24:3,8,20,21,23;25:4,6,11; 26:2,5;28:11;32:7,14,18; 33:5;39:3,25;40:6,7,22;41:4, 13;46:5;49:23;50:3;57:21; 62:6;73:13;77:5,13;101:2; 107:25issuing (2) 64:9;72:10Items (1) 13:9

J

jackets (1) 7:14James (1) 64:23Jan (1) 7:25January (5) 96:13;98:5;105:9;107:10; 108:5Jim (1) 9:4job (1) 76:17John (2) 8:24;38:16Joseph (1) 9:22Judge (11) 4:12;8:23;20:8;29:19; 38:14;45:12;59:5;66:10; 71:14;72:22;93:4judges (3) 16:18;30:6;102:4Judgment (1) 28:19jump (4) 13:10;91:4,19;92:20June (7) 86:22;87:17;88:11;94:13; 106:16;108:10,10junior (1) 61:23jurisdiction (7) 52:17,24;53:3;67:3;86:2,3, 5

jurisdictions (1) 79:10

K

keep (4) 48:18;97:10,10,10kid (1) 72:21kind (15) 5:19,23;16:5;18:3;27:8; 29:7;35:13;38:21,25;40:12; 41:22;77:6,10;78:10;89:16kinds (1) 84:2Klobas (5) 8:3;36:11;87:11;93:7,18knew (1) 55:24knowing (2) 20:3;39:15knowledge (1) 44:14known (1) 52:10

L

labeled (1) 90:16lack (3) 24:18;52:7;85:11Land (6) 13:2;72:24;81:11,13,15; 105:3language (5) 55:25;60:21;61:6,9;64:2large (5) 103:3,18,22,22,23largely (1) 20:18Las (1) 75:14last (12) 19:14;33:24;37:25;38:6; 58:18;74:12;76:16,22;82:11, 12,13;84:23Law (25) 4:12;9:23;13:14;23:2;24:3, 25;26:8;30:18;41:5;49:23; 52:15;56:3;59:23;60:14,14; 61:25;62:11,15;63:5,24; 64:14;67:16;69:16;72:24; 93:4lawyer (1) 70:15lawyerly (1) 71:9lawyers (3) 5:21,24;70:16leading (1) 82:5learned (1)

93:3learning (1) 76:9least (12) 12:19;13:6;21:13,14;33:5, 13;56:21;60:19,25;63:16; 66:18;69:15leave (2) 32:11,19leaves (1) 68:6leaving (1) 15:16Leenhouts (4) 9:4,4;64:23;65:10left (3) 5:13;30:19;41:7legal (37) 9:10;12:5;14:5;15:6;20:13, 18;22:18;27:19,20;29:22,22; 40:10,16,21,23,25;41:3,13, 16;42:10;50:2,6;51:2,10,15; 52:3,7,11;60:11,12,13;68:3, 23,24;69:16;78:21;79:18legally (13) 12:18;15:2;18:24;24:17; 60:17,24;61:6,10,12;63:14; 66:17;69:15;71:19legislation (1) 68:5legislative (1) 69:5legislature (2) 55:24;56:5lenient (1) 30:7less (2) 39:20;109:23lessons (1) 93:3letter (26) 55:4;86:24;87:2,14,16,21; 94:5,18,23;95:19;96:16,17, 18,22;97:8,13,15,20,24;99:3; 101:7;105:11;107:14,15,22; 108:7letters (1) 97:5letting (4) 6:19;16:15;30:7;31:4level (4) 71:10;81:9;100:16;104:18levels (1) 13:8liable (1) 68:14licensing (1) 77:8life (1) 37:10light (2) 13:10;17:24liked (1)

28:10likely (3) 41:23;65:13;66:6limine (1) 12:4limit (4) 19:9;20:3;43:3;103:13limitation (1) 67:25limitations (3) 53:13,18;67:24limited (8) 9:8;14:2;23:11;30:23; 39:11;43:2;66:13;110:4limits (1) 58:10line (7) 23:14;29:23;31:3;49:9; 50:13;58:22;102:6lines (2) 74:16;88:18links (1) 34:18list (12) 10:4;14:12;16:12;23:23; 34:12,13;43:25;90:9;93:22; 98:12;107:8,18listed (5) 23:20;31:12;34:17;84:4; 88:19listened (1) 25:20litigation (1) 41:12little (25) 5:5;7:4,5,11;12:23;17:21; 18:19;20:12;34:20;35:10; 38:2,10;47:18;74:17;90:6; 92:9,13,14,18,22,25;93:13; 95:17,22;99:22local (6) 85:9,12,20,23,23;86:15located (2) 6:25;85:22locating (1) 7:2location (2) 4:18,22Locations (1) 80:14Lomeli (1) 9:2long (10) 5:22;19:10;20:4;23:21; 36:23;42:17;43:5;56:4; 58:16;75:24longer (3) 31:25;63:25;110:12look (37) 14:25;15:2;20:17;22:5; 23:7,25;29:10,17;35:15,23; 42:23;44:13;49:23;69:20; 71:14;72:3,5,5,6,17;78:19,24;


(10) issue - look



79:17;81:2,8;82:19,22;83:18; 84:5,6,6;89:12;95:15;96:12; 98:4;102:14;105:20looked (7) 14:11,12;25:12;26:4,7; 50:17;101:19looking (13) 15:8;32:18;39:24;43:23, 24;57:4;90:15,23;95:5;97:25; 99:2;104:12;107:8looks (11) 4:16;12:23;34:9;72:25; 79:18;90:22;91:25;96:18; 98:2,9;99:13loose (1) 109:7loosely (1) 40:18lot (11) 5:22;7:12;17:14,15;19:20; 31:6;57:16,17;58:19;70:15; 98:22lots (6) 85:3,7,10,18;86:7,14loud (2) 56:25;97:15lower (2) 106:7,12

M

mailing (1) 23:23maintain (1) 62:13majored (1) 75:12majority (1) 30:6makes (9) 11:8;13:25;21:22;33:21, 23;40:23;59:2;64:12;67:9making (2) 19:19;77:7MALE (3) 73:22;74:2;99:16Management (16) 13:2;44:18;62:19;66:21, 24;67:14;77:12;80:14,15,19, 19,21;81:10,14;83:17;84:16manager (7) 76:4,20;77:10,15,18;80:2; 86:16mandate (1) 69:5mandatory (5) 79:9;86:2,3,4,12many (7) 36:22;37:21;57:21;69:24, 25;90:8;101:20map (6) 29:18;35:11;47:13;89:6,8, 11

mark (2) 70:17,20massive (1) 70:25master (7) 10:23;88:2;96:8,11;99:6, 11;106:24match (1) 90:17matter (24) 4:6,14;9:10;11:24;13:14, 20;19:25;20:9;22:25;24:2,25; 28:14;35:17;36:24;40:5;41:5, 8;42:19;45:21;46:10;51:25; 100:5;102:4,24matters (6) 6:6;18:24;23:17;38:12; 41:19;110:23maximum (2) 81:11,16may (46) 6:16;11:20;14:3;15:15; 16:22;20:4,19;21:6,7,9;23:3, 22;25:15;28:6;33:13;34:10; 35:23;36:6;37:9;38:7;40:14, 21;45:14,21;49:3;50:11;57:8; 58:15;62:12,14;63:22;66:12, 21;67:12;68:8;90:20;91:3,8, 10,19;102:9,15,24;104:4; 107:7,9maybe (5) 33:14;45:15;90:5,6;92:12McDEVITT (21) 9:7,8,21,25;19:6,7,15;29:7, 15;32:22;42:6;43:9;48:5,6, 21,22;66:12,13;81:21;99:23; 101:9MD (1) 74:3mean (17) 21:21;28:2,7,18;29:12; 34:8;43:24;46:7;61:6,11; 78:3;81:19;82:16;83:9;86:6; 98:22;100:24meaning (2) 60:16;61:8means (2) 5:13;63:21meantime (1) 68:11mechanically (1) 68:4meet (1) 53:14meeting (2) 32:3;77:7meetings (1) 77:5members (1) 110:2memorandum (14) 51:2,4,10;52:11,23;93:25; 94:4;97:22;98:15,18,21,24,

25;99:5mention (1) 47:9mentioned (6) 10:10;21:15;59:6;71:13; 85:7,25mentioning (1) 7:10met (4) 45:2;56:16;57:12,13Mexico (2) 75:13,14microphone (2) 5:9,15microphones (2) 5:6;10:10middle (1) 70:25might (7) 16:7;24:11;26:13;32:22, 24;34:21;56:24mind (1) 30:22minimum (3) 50:7;53:15,16minor (1) 75:12minute (1) 41:4minutes (12) 4:11;11:9;18:4;19:22,22; 20:4,5;21:23;32:23;47:2,22; 109:15miss (1) 45:24missed (1) 45:12model (18) 56:11;58:2,7;83:4;88:6; 89:24;94:9;95:25;96:5;97:2, 3,21;98:12,17;99:5;100:13, 17;104:25models (1) 92:5modified (1) 39:16modify (1) 30:12monitors (4) 34:8;74:17;110:5,7month (1) 108:13moot (1) 69:11more (24) 7:2,13;14:2;15:20;16:22; 17:18;18:15;21:22;23:23; 24:16;25:23;39:20;41:17; 47:3,5;53:19;58:20;64:6; 101:15;102:18;105:19;108:4; 109:23,25morning (8) 10:17,21,24,25;11:20;

109:12;111:2,3most (2) 14:15;93:10motion (10) 11:25;12:2,4,4;13:18; 22:22;23:13;28:19;34:14; 54:5motions (4) 9:10;12:3,9;23:4mouse (7) 34:21,23;35:6,9,12;92:11; 93:17move (12) 6:15;20:2;32:9;34:22;36:3, 15;38:13;41:16;47:7;48:24; 92:3,12moves (1) 41:6moving (1) 5:25MPC (2) 88:2,3much (12) 11:23;13:12;21:14,22; 22:17,23;25:23;28:24;36:2; 55:15;58:20;69:17must (10) 20:9;51:5,17;60:2,11;61:6, 10,11;63:16;67:6mutually (1) 22:4myself (1) 10:3

N

nail (1) 55:17name (8) 4:11;8:23;9:7,17;72:21; 74:10,11,12narrow (4) 17:22;28:11;46:5,10narrower (1) 22:17Nation (1) 52:23National (2) 13:3;52:9native (1) 72:19natural (1) 72:8necessarily (7) 17:14;24:21;36:16;46:12; 85:14,16;109:17necessary (14) 4:22;7:16;17:9,24;32:11; 35:8;36:22;37:22;38:21; 47:11;61:17;62:12;79:22; 91:21necessity (1) 61:3


(11) looked - necessity



Ned (1) 72:21need (41) 5:20,22;6:14;7:2;10:5; 11:13,24;13:12;14:9,18;16:4, 13,23,24;17:11;18:13;19:25; 35:5,19,21;36:8;41:15,20; 43:4;44:20,24;45:5;46:11,18; 47:18;51:13;57:20;64:13; 71:23;73:3;74:18;79:15; 80:8;103:3,9;110:15needed (3) 10:18;19:10;106:21needless (4) 16:15,17,19,24needs (8) 38:18;53:15,16;60:18; 64:15;101:3;103:13;107:7negatives (1) 103:11neighborhood (1) 108:11new (9) 5:25;25:6;36:23;58:6; 75:13,14;95:3,25,25next (9) 9:2;33:17;36:15;37:14; 59:18;63:17;64:8;66:7; 105:20Nicole (1) 8:3nitty-gritty (1) 15:5nobody (2) 50:4;54:18none (8) 51:19,20;52:3;54:18;63:5; 70:17;101:9,11Norm (1) 8:21normal (1) 83:24Northern (2) 75:11,16notes (2) 10:3;91:9notice (19) 4:15;9:11;10:23;12:10,14; 17:25;22:7,8;23:6,12,21; 24:10,19;32:16;39:4;40:6; 52:21;54:11;55:2notices (1) 41:21November (2) 4:10;73:6number (21) 4:9,10;15:21;24:23;36:20; 44:19;87:19;88:9;90:7,21,21; 92:21;93:11;96:20,21,23; 99:15;103:23;106:11;107:24; 108:9numbered (1) 32:15

numbering (1) 107:25numbers (26) 15:9;71:14;72:6,6;85:2; 89:19;90:17;91:16,18;92:18; 93:12;94:21;95:12;96:2,6,25; 105:11,22,24;106:2,5,11,16, 21,22;107:20numeric (1) 94:8nutshell (1) 39:10

O

OAH (2) 9:12;92:10Obenshain (1) 95:9object (5) 29:25;48:10;59:7;99:24; 101:10objecting (1) 45:25objection (16) 29:12;33:4,6,7,9;36:7; 42:25;48:9;52:21;81:21; 82:8;99:23;101:10;102:19; 103:2;110:25objections (6) 26:21;32:10;41:21;101:7; 103:14;104:4objectors (1) 54:25obligated (1) 23:20obligation (2) 31:21;45:2observations (1) 25:25observe (1) 10:9obvious (1) 13:22obviously (4) 7:12;10:13;13:22;19:12occur (1) 79:5occurred (1) 103:16o'clock (2) 10:13;11:14October (6) 4:17;95:21;106:3,9;108:4,6off (19) 7:15;10:5;15:17;18:7,11, 19,23;23:23;43:12,21;48:2, 19;68:7;74:17;78:13;84:14, 22;95:22;110:12offer (2) 26:14,23offered (2) 27:6;28:4

Office (12) 4:13,23;6:20,20;8:13,25; 9:6;23:10;30:6;41:12;45:2; 65:12official (1) 44:20often (2) 35:2;90:17oftentimes (2) 15:20;93:8old (2) 72:18,23Once (1) 36:24One (46) 5:5,18;7:10;8:12;9:20; 16:12;17:3;18:14;19:20; 26:14;30:9;31:11;33:11; 34:5;36:2,25;37:24;39:2,4; 40:18;42:23;44:24;45:12,18; 50:21,24;51:14,14;56:21; 58:18;61:14;73:24;74:3; 84:20;93:3;94:7;99:5,6; 102:4;103:14;105:12,13; 106:13;107:2,21;109:13ones (6) 21:14,25;24:9;44:14,15; 45:7only (15) 7:8;10:8;22:20;23:15,22; 36:2;60:22;61:6;63:4;67:2,6; 68:5;71:3;77:13;82:19open (6) 16:16;34:23;38:5;92:15; 109:16;110:21opened (4) 34:9,10,11;35:16open-ended (2) 19:16,16opening (8) 47:10,12;48:8,24;50:20,23; 55:12;92:24opens (1) 92:17operating (2) 34:20;35:6operations (1) 84:19operator (1) 93:4opinion (2) 42:11;59:2opportunity (5) 6:23;26:21;43:6;50:22; 57:8oppose (1) 48:15opposed (2) 14:4;35:3options (1) 93:9oral (1) 10:22

order (19) 19:9;25:22;36:5,17,17,18; 37:6;38:23;43:16;44:7,18; 46:3,15;54:25;55:3,5;59:2; 66:25;101:6ordered (1) 56:2organized (1) 105:12orientation (1) 89:17original (4) 106:12,16,22;108:9others (5) 20:18;25:9;33:10;64:11; 93:16otherwise (2) 54:2,17ours (1) 18:22ourselves (1) 22:12out (29) 4:25;6:15;11:6;12:21; 13:10,13;15:11,25;17:12,18; 28:20;32:3,24;33:12;36:18; 37:8;40:20;44:19;53:24; 54:7;56:25;68:12;84:10,21; 91:20;94:24;97:15;102:15; 110:18outcome (1) 64:7outlines (1) 55:5outset (1) 7:11outside (8) 7:4;21:2;54:21;77:10;78:3, 5;80:13;81:10outweighed (1) 17:2over (15) 4:14;5:18;37:15;41:6;45:3; 52:25;63:17;66:7;73:19; 74:15;92:11;93:18,18;94:24; 110:7overallocated (5) 15:7,12;69:24;72:15;73:12overflow (1) 109:21overrule (2) 82:7;103:2overruled (1) 103:15overview (1) 65:2own (12) 14:15;24:8;38:8;39:17; 54:2,7;67:21;69:5;71:23; 100:8;103:21;110:2owner (3) 9:18;87:23;88:3Owners (1)


(12) Ned - Owners



62:9

P

page (32) 12:13,14;23:24;52:16,22; 54:4;88:13,14,15,17;89:20; 90:5,7,15,19,21,23,24;91:3; 92:18,20,21;93:12;96:21; 97:7;99:12,13,13,13,14; 102:14;104:12pages (4) 23:22,24;54:13;101:21pagination (1) 92:2painted (1) 46:20paper (4) 44:15,19,24;89:8paragraph (4) 96:20,20;97:2;104:17paragraphs (1) 32:15paraphrase (1) 100:11part (10) 39:2;40:3;46:14;53:9,21; 57:16;60:22;83:22;102:10; 105:24partial (1) 48:19particular (11) 13:9;26:2,7;36:16;41:10; 78:20;79:16;90:16;98:18; 100:17;104:13particularly (4) 15:21;17:19;35:10;43:5parties (49) 4:19;5:2;6:13,25;10:13; 11:8,18,22;12:6;13:13,15; 15:21,25;17:19;19:24;21:4; 22:4,21;23:13;25:21;26:5; 30:2;32:9;35:2;36:20;37:22, 25;40:7,21,22;41:14;42:7; 46:13;47:3,6,9,17,25;48:7; 50:2,12,16,20;51:20;68:12; 91:2;101:23;102:6;103:24parties' (2) 32:23;50:11parts (1) 38:25party (7) 18:14;20:25;21:10;29:23; 33:23;34:22;42:23passed (1) 55:22Patricia (2) 9:9;66:14pause (1) 89:2pay (1) 35:7PDF (13)

43:22,22,24;44:16;90:17, 19,23;91:17,25;99:14,15,15, 18PDFs (1) 43:15PDS (11) 52:5,12;57:4,14,23;58:7, 18,22;85:20;104:20;105:2PDS's (2) 53:5;71:23Pedro (17) 9:18;12:22,22;13:3;26:6; 28:6;39:9;52:8,9,14;57:19; 59:11;64:17;65:6,8;66:3;73:7pending (1) 34:14people (7) 43:5;58:18;72:25;77:2; 91:5;109:24;110:13per (1) 102:17percent (3) 30:15;34:16;108:16perhaps (10) 6:11;11:24;16:3,8;39:25; 40:3;44:18;46:17;91:7;93:13Periodically (2) 91:3,20permitted (3) 69:24,25;72:16person (2) 37:13;110:16persons (1) 110:2perspective (7) 7:16;11:6;12:5;24:2;32:14; 39:13;47:5persuasion (2) 33:24;37:25Phoenix (2) 4:23;65:12phones (1) 10:6phonetic (1) 54:4phrased (1) 102:6physical (7) 14:17;51:14;52:2,7;78:21; 79:18;80:22physically (3) 12:18;13:6;60:18pick (3) 29:18;47:21;109:6piecemeal (1) 41:11pigs (1) 102:4Pinal (1) 81:14place (4) 11:12;56:6;57:5,7plain (1)

60:20plan (1) 80:19planned (6) 88:2;96:8,11;99:6,11; 106:24plats (5) 85:3,3,10,18;86:7platting (9) 85:8,9,12,13,20,23,24;86:8, 15play (1) 12:5please (8) 10:7,9;66:12;70:21;71:21; 74:10;82:12;97:17pm (1) 4:11point (35) 4:19,25;6:17;11:7;15:19, 24;19:14;23:19;24:7;27:2,11, 12;32:2;33:15;35:12,13;36:8; 41:15,23;42:22;43:12;44:4; 53:24;58:15;68:12;70:14; 71:21;73:6;93:8;101:23; 102:7,24;103:25;109:6,10points (5) 14:4;23:5;54:6;102:14; 103:14pop (1) 47:2portion (1) 107:10portions (2) 91:11;101:24position (14) 27:18;28:7;31:8;32:5; 51:19,24;76:3,7,15,19,20,24, 25;86:22possibility (2) 20:23;50:10possible (3) 43:16;53:4;59:10possibly (1) 42:20post-graduate (1) 75:17post-October (1) 78:25potential (8) 8:20,20,21;40:4;52:8,12; 54:10;67:23potentially (2) 17:21;22:10practice (2) 9:8;66:13pre (1) 99:3pre- (1) 78:25preference (1) 45:6prehearing (11)

6:6;13:11;17:5;21:16; 25:15;36:3;45:13,24;46:7,16; 51:2preliminarily (2) 33:5,13preliminary (3) 5:4;6:13;38:12prepare (2) 91:7;94:8preparing (2) 56:10;92:25present (22) 9:22;13:16;15:22;16:15; 21:11;32:9;37:21;38:4;40:15, 21,23,25;41:15;42:24;44:9; 45:22;46:2,6;50:2,4,6;102:19presentation (3) 6:10,16;36:5presentations (1) 16:8presented (9) 36:5;37:3,23;58:2,3,5;93:2; 101:13;102:12presents (1) 29:23preserve (1) 23:14preserved (5) 23:18;24:5,22,24;25:12preside (1) 4:14president (1) 8:18pressed (1) 11:19presume (1) 31:10presuming (1) 26:25presumption (1) 58:12presupposing (1) 26:17pretending (1) 72:16pre-Tribute (1) 96:8pretty (9) 16:19;17:6;22:23;30:9; 35:25;56:4;60:20;72:20; 109:24prevail (1) 42:20prevent (1) 64:10preview (1) 47:13previous (3) 76:17;84:15;96:24previously (3) 82:22,23;105:10primarily (4) 13:10;25:16;27:14;49:23


(13) page - primarily



principles (2) 28:12;62:9print (1) 73:4printed (2) 39:14,17prior (7) 51:11;76:6,17;86:14,21; 95:23;105:15probable (1) 39:20probably (10) 31:24;33:17;36:14,17; 37:6;40:19;48:18;91:19; 92:14;108:14probative (2) 17:2;31:2problem (10) 11:5;18:9;20:3;30:5;35:8; 37:7;40:17;42:14;45:20; 102:13problematic (1) 37:10problems (1) 40:17procedural (1) 29:7procedurally (1) 6:7procedure (3) 37:12,19;61:25procedures (3) 37:2;71:23;76:9proceeding (8) 22:20;25:6;51:19;56:19; 57:10,10;59:15;67:5proceedings (5) 4:3,19;10:18;65:15;111:6process (18) 7:7;23:3;25:23;27:9;35:6; 49:16;51:9;53:21;56:18; 59:17;67:14;78:7,8,9;79:11; 82:2;83:7;102:20processes (1) 56:20processing (1) 101:2produce (1) 30:24Professor (1) 9:22program (28) 67:23;76:13,15;77:10,13, 16,18,20,21,22;78:2,15,16, 21;79:25;80:2,7,7,11,11;81:7, 7;82:15,15;83:18,23;86:16; 95:10Programs (9) 76:5,21;77:4,11,14,18; 80:4;82:19;92:8progress (1) 19:20progressed (1)

76:12projected (11) 84:7;88:16,19;89:15,18; 94:21;95:12;106:21,22,25; 107:3projection (2) 81:17,18proof (5) 26:14,23;33:24;45:21; 71:17proper (2) 54:11,24properly (5) 23:17;24:5,22,24;59:2property (3) 9:18;68:19;73:2proposal (1) 11:18propose (1) 21:10proposed (32) 12:17,19,21,25;13:5;20:10; 21:2;22:2;27:23;28:20; 31:22;32:7;39:8;42:8;53:5; 60:3,19;61:4;63:17;64:19; 65:7,14;66:7;69:9;82:20,25; 96:10;99:7,8,10;104:20; 106:23proposes (1) 27:16prospective (1) 67:20protect (2) 61:14;62:2protected (1) 61:22protecting (1) 59:13protection (2) 62:10,12provide (7) 5:7;26:23;60:22;65:2; 70:18,22;102:20provided (5) 44:3;51:10,22;63:10;71:5provider (1) 84:16provides (2) 54:22;60:16provision (1) 63:21proximity (1) 5:9public (2) 78:9;110:2publications (1) 71:24Pueblo (55) 4:7;8:17,19;12:2,16;13:4; 14:21;16:10;20:10;22:13; 23:16;27:16,23;29:10;32:2; 36:14;37:16,18;43:13;45:16, 22;46:14;51:24;56:9,9;58:5;

59:9,19;63:2,17;64:11,19; 65:7,14,18,19,20;66:5,6; 68:20;79:16;80:12;81:10; 82:6;83:2,13;85:22;86:18; 87:20,22,22,23;88:4;95:24; 97:19pull (6) 35:22;40:20;89:2;98:7,14; 105:6pump (4) 61:7,10;69:25;70:20pumped (4) 12:18;13:6;63:14;84:21pumping (49) 12:21,25;13:8;20:10;27:15, 23;28:5;29:11;39:9;42:8,9; 52:13;53:6,10,13,18;58:5,13, 13,16;60:3;61:23;62:11; 63:18;64:19;65:6,7,14,20,20; 66:7,22;67:12;68:21;69:9; 72:7;79:23;82:20;83:3,5,19, 21;96:11;99:7,8,10;104:20; 105:3;106:24purely (5) 20:13;40:10,25;41:16,19purpose (10) 6:25;20:12;44:2;49:12; 59:13;61:18;62:13;67:19; 68:5;101:14purposes (2) 105:6;107:24pursuant (1) 63:21push (1) 11:13put (20) 7:6;10:6;11:6;16:13;17:12; 21:21;23:9;27:16;28:20; 34:15;35:20;45:8;46:21; 47:13;48:3;55:20;92:13; 93:7;102:4;107:17putting (1) 68:14

Q

qualifier (1) 72:2quality (3) 51:18,22;79:20quantification (2) 63:9;70:19quantified (4) 53:13;57:6,6;70:23quantify (2) 57:5;73:10quick (1) 23:25quicker (1) 92:22quickly (2) 41:17;110:16quite (1)

5:21quote (7) 60:22;61:24;62:2,9,14,16; 63:4quoted (1) 54:3

R

R12-15-715 (1) 63:22R12-15-718 (1) 60:21raise (5) 12:6;24:6;26:21;28:13; 74:6raised (9) 12:15;19:4;22:16,21; 24:22;62:6;100:25;101:8,10raises (1) 66:23rate (2) 25:18;33:19rather (6) 7:11;17:17;45:17;63:13; 104:3;110:15reach (4) 18:14;21:6,24;48:14reached (1) 18:20reaching (1) 15:22read (10) 12:11;21:18;60:21;70:5; 97:15;100:7,10,12,18;101:22reader (1) 43:23reading (7) 25:15;39:7;48:15;99:25; 101:14;103:3,18ready (1) 74:20real (4) 41:11;45:14;67:23;101:13realities (1) 68:4reality (2) 31:16;41:2really (11) 11:24;17:3;18:12;22:21; 28:18,25;29:3;47:17;54:14; 71:16;72:3realm (1) 50:10reason (4) 18:16;44:23;59:7;107:19reasoning (1) 55:7reasons (6) 7:10;18:12;30:8;46:20; 55:5;59:3recall (3) 82:11;88:22;98:19


(14) principles - recall



received (2) 56:8;87:16recess (3) 33:4;34:6;47:23recharge (5) 72:8;76:4,20;77:3;80:3recognize (3) 70:13;71:2,4recognized (2) 14:7;63:7recognizing (1) 71:4recollection (1) 100:8recommend (3) 66:3,15;69:6reconsider (1) 66:4record (29) 4:6;10:8;12:12;18:11,19; 20:2;30:19,22;43:18,19,21; 44:20;47:19,25;48:2,3,19; 55:20;74:10;90:13;91:14; 97:16;101:3;102:3,11;103:4, 9,16;108:14recorded (10) 4:2;63:12;85:4,8,10,18; 86:7,7,14;111:5RECORDING (117) 4:1;5:1,5,8,17;6:1,2;7:1; 8:1;9:1;10:1;11:1;12:1;13:1; 14:1;15:1;16:1;17:1;18:1; 19:1;20:1;21:1;22:1;23:1; 24:1;25:1;26:1;27:1;28:1; 29:1;30:1;31:1;32:1;33:1; 34:1;35:1;36:1;37:1;38:1; 39:1;40:1;41:1;42:1;43:1; 44:1;45:1;46:1;47:1;48:1; 49:1;50:1;51:1;52:1;53:1; 54:1;55:1;56:1;57:1;58:1; 59:1;60:1;61:1;62:1;63:1; 64:1;65:1;66:1;67:1;68:1; 69:1;70:1;71:1;72:1;73:1; 74:1;75:1;76:1;77:1;78:1; 79:1;80:1;81:1;82:1;83:1; 84:1;85:1;86:1;87:1;88:1; 89:1;90:1,14;91:1,5,6,9,20; 92:1;93:1;94:1;95:1;96:1; 97:1;98:1;99:1;100:1;101:1; 102:1;103:1;104:1;105:1; 106:1;107:1;108:1;109:1; 110:1;111:1recovered (1) 11:20reduce (1) 16:4redundant (1) 57:17reevaluate (1) 69:7refer (3) 84:3;93:14;94:2references (1)

78:18referring (2) 96:8;99:2refers (1) 84:13reflect (5) 79:12;95:25;97:24;100:8,8refused (3) 12:20,24;39:8regard (7) 9:9;16:12;19:8;45:8;90:13; 92:19;110:20regarding (9) 26:6;27:12,13,15;69:8; 94:20;96:25;100:15;101:10regardless (2) 27:20;84:16region (2) 27:16;28:6regional (6) 27:13,21,22;28:5;29:9; 57:18registered (1) 92:15regulation (2) 59:20;64:2regulations (6) 54:2,8;56:13;58:24;68:4; 69:2regulatory (2) 69:4;78:5reject (2) 30:12;41:3rejecting (1) 55:6relate (2) 77:20;85:8related (6) 11:25;23:5;57:18;58:6; 65:16;100:22relates (1) 79:8relating (1) 9:21relationship (2) 87:18;106:10relatively (1) 25:2relevance (8) 27:13;30:9;39:14,18;40:2; 81:22;103:15;104:4relevant (19) 22:10;26:6,22,23;27:17; 29:2,25;30:3,4,16,25;32:17; 36:24;38:24;39:19;60:22; 100:4;101:23;104:3reliable (1) 67:21relied (2) 58:7,7relief (2) 54:23;68:18rely (4)

53:7;68:10;91:6,10relying (2) 64:11;91:8remaining (1) 61:14remarks (1) 92:24remember (1) 42:17remind (1) 10:5repeat (1) 82:12repeated (1) 107:18rephrase (2) 25:5;104:11report (7) 63:8;84:15,18,23;90:20; 100:18;104:23reports (10) 28:2,3,4;57:22;76:10,11; 83:14,21;103:22,23representative (1) 9:3representing (3) 8:25;9:9;66:14request (1) 57:2requested (1) 99:3require (4) 57:12;59:23;60:2;65:22required (4) 50:21;53:25;57:5;97:4requirement (1) 84:21requirements (2) 32:3;80:18requires (4) 18:10;84:23;86:9;95:24requiring (2) 60:13;103:10reservation (4) 53:15,16;61:18;62:14reserve (2) 62:10;68:22reserved (34) 13:2;20:11;22:18;26:8,11; 52:19;53:11,12;54:10;56:23; 59:11,13;60:5,10;61:16,19; 62:8,18,21,22;63:3,6,12,15, 19;64:18;65:16,21;66:2,9,22; 67:13;70:13;73:11resolve (1) 57:20resolved (2) 13:14;109:19resolving (1) 71:20resource (4) 62:19;66:21,24;67:14Resources (9)

8:2,7;15:9;25:14;51:5; 58:23;65:17;75:23;82:2respect (5) 11:7;17:20;19:17;103:6,18respond (1) 81:23response (7) 9:11;23:25;54:5,13;94:18; 96:23;99:2responsibilities (4) 76:6,14,23,25responsibility (1) 77:11result (3) 41:10;62:5;67:10results (1) 83:4retained (1) 88:4review (10) 62:6;76:10;77:2,4;78:5,17; 82:5;91:9;94:12;101:4reviewed (2) 56:12;94:13Revised (17) 78:17;79:11;96:2,13;97:18, 19;98:5,15,24,25;105:8,11; 106:15;107:16,23;108:9,24revising (1) 69:3revisions (4) 79:5,6,7;97:2revoke (3) 63:22;64:3;68:8revoked (2) 17:11;64:12rewrite (2) 56:18,19Rick (2) 8:18;95:9right (69) 4:5;7:4,18;8:3,8,22;9:20; 10:2,4;11:4,11;17:8;19:17; 20:16;22:18;25:18;29:5; 30:10;31:11,20;33:3,8,10; 39:5;42:2;43:10;45:11; 46:19;47:24;48:17,23;50:19; 52:19,25;53:11,12;55:9; 56:23;58:15,18;59:4;60:5; 62:9;63:6,7,10,12,15,19; 66:11;67:6;69:18;72:7;73:16, 21,22;74:6,9,14;82:7;87:9, 13;88:24;100:14,20;104:8; 108:22;109:5;111:2right-hand (1) 91:25rights (45) 12:25;13:2;20:11;22:18, 24;26:8,11;38:19;49:8,18; 54:10;57:9;59:11,13,17; 60:11;61:20,22,24;62:10,11, 16,18,21;63:4,4;64:18,20; 65:9,11,13,16,21;66:2,9,22;


(15) received - rights



67:13;68:22;70:14;71:3,5; 72:4,12;73:7,11Riparian (3) 13:3;52:9;61:15risk (1) 37:8River (22) 12:22;26:6;27:15;28:6; 39:9;42:9;52:8,14,18,24; 53:20;58:21;59:11,15;62:5; 64:17;65:6,8,22;66:20;67:8; 68:24road (1) 47:13Robin (2) 9:17;14:12role (1) 94:6RONALD (50) 7:25,25;8:12;17:4;25:19, 20;26:19;27:7;31:12;33:6; 36:11;45:25;50:23,25;55:10; 73:18;74:15,21;75:7;81:23, 25;82:10;90:15;91:23,24; 92:7;93:15,19,20,21;99:17; 100:7,10,15,21,24;102:23; 103:4;104:5,7,10;107:8,12, 16;108:18,21,23;109:5,9; 111:4room (14) 6:8;7:5;16:6;24:4;42:18; 49:23;72:17;73:25;109:16, 19,20;110:4,9,21rooms (1) 46:21round (1) 38:4rule (15) 13:19;24:25;28:17;38:23; 39:15,17;41:4,5;51:5,23; 52:10;60:8;78:20;84:23; 103:10rule-making (1) 78:6rules (38) 32:19;35:22;39:16,25;51:9, 12;52:2;54:2,16,17,20,21; 55:21,22,25;56:5,13,18,19; 57:11,12,15;58:24;59:25; 77:19,23,25;78:4,12,13,19, 23;79:13;80:16,17;84:5,17, 18ruling (2) 30:4;67:11rulings (1) 32:11run (1) 56:4running (1) 104:25runs (1) 99:5

S

same (21) 12:13;16:9;25:23;35:20; 37:2,12,14,19;44:16;70:22; 81:5,18;83:7;89:11;106:3,6, 14;108:16,16,17,19San (17) 9:18;12:22,22;13:3;26:6; 28:6;39:9;52:8,9,14;57:19; 59:11;64:17;65:6,8;66:3;73:7satisfied (2) 57:23;80:8satisfy (4) 12:19;57:15;60:18;79:15save (2) 18:21;19:2saving (1) 14:4saying (7) 23:13;24:14,14,21;30:16; 38:20;44:12Scantlebury (1) 8:5scheduled (1) 109:19School (1) 9:23Science (2) 64:25;75:11scoot (1) 74:18scope (5) 17:23;22:15;23:8;28:3; 46:10screen (8) 35:20;43:17;87:4,11; 89:17;90:4;92:11;108:16scroll (7) 90:6;95:15,17,18,22;97:7; 99:12se (1) 102:17seal (1) 68:14searching (1) 102:12seat (1) 73:19seats (1) 110:19second (9) 36:25;40:3;89:2;90:13; 96:10;97:2,7;98:15;105:21seeing (2) 11:12;18:20seeking (1) 54:23seem (2) 20:17;92:8seems (12) 5:11;13:17,24;14:14;17:6,

10;19:21;20:13;39:5,10; 45:15;70:25segments (1) 103:3selling (1) 72:24send (2) 13:20;45:3sending (1) 24:19sense (9) 11:8;14:2;17:14,20;21:23; 33:21,23;45:15;64:12sensible (1) 67:17sent (3) 94:19;95:20;108:7separate (4) 46:13;66:25;101:25; 107:20September (1) 31:24seq (1) 23:11serve (1) 61:4served (5) 18:11;48:18;85:4,5,19service (9) 84:20;85:6,21;86:12; 87:20;89:6,11;106:25;107:3services (1) 88:4set (25) 4:16,17;11:10;12:10; 17:24;21:17;22:7;23:11;32:3, 14;39:3;42:18;44:19;46:3,15; 48:3,24;51:10;52:10;54:19; 81:8,25;93:9;109:15;110:14sets (2) 51:3,13setting (1) 20:3settle (1) 47:20settlement (1) 18:12setup (1) 6:7seven (2) 76:2;77:2several (2) 84:19;90:3shall (2) 57:13;60:23share (3) 19:3;29:2;37:14shares (1) 7:8Sharon (1) 8:5SHEDDEN (76) 4:5,12;8:8,22;9:13,16,20;

10:2,25;11:4;14:9;15:15; 18:9,25;19:14,17;20:16;23:5; 24:13;25:8;26:16;27:4;29:5, 14,21;31:20;33:3,8,10;38:15, 25;40:14;42:2,5,13;43:10,20; 44:10;45:11,19;47:24;48:11, 17,23;49:4,14,19;55:9,11; 59:4;66:11;69:18;73:16,19; 74:5,8,9,14;81:23;82:7; 90:12;92:4,8;100:6,14,20; 101:17;104:8;107:5,13; 108:2,13,20,22;109:2,11short (3) 31:23;34:6;39:11show (13) 22:9;34:17;47:14;55:19, 20;56:8,12;57:14;58:17; 64:13,15;71:17;92:4showing (1) 107:9shows (2) 56:25;58:8side (4) 31:4;45:18;92:16,23sides (1) 16:5Sierra (2) 9:18;73:2sight (1) 74:16signature (2) 94:23,25significance (1) 68:6silly (2) 19:21;57:2SILVER (20) 9:17,17;14:7,11,12;18:2,5, 21;25:9;31:7,8,14;49:3,5,15; 69:18,19;73:21,24;74:3similar (2) 25:8;39:4similarly (2) 5:24;11:11simple (8) 25:2,10,16;31:18;55:18; 59:7,7,24simplest (1) 39:7simply (7) 57:11;64:15;68:17,22; 99:24;101:14,15simulation (4) 95:25;96:7,9,10simulations (4) 96:5;97:3;99:4;105:2simultaneous (1) 33:22single-page (1) 92:17sit (1) 20:14site (1)


(16) Riparian - site



42:10sitting (7) 8:3;9:2;25:24;26:11;36:17; 42:18;73:3situation (1) 69:20situations (1) 69:20six (2) 43:6;90:10size (1) 99:22skip (1) 36:18slightly (1) 50:11slow (1) 34:20slows (1) 35:5small (1) 11:17social (1) 71:10Sol (41) 4:7;8:17,19;12:2,16;13:4; 14:21;16:10;22:13;23:16; 27:16;29:10;32:2;36:14; 37:16,18;43:13;45:16,22; 51:24;56:9;58:5;59:9,19; 63:2;64:11;65:18;68:20; 79:16;81:10;82:6;83:2,13; 85:22;86:18;87:20,22,23; 88:4;95:24;97:19sole (1) 20:8solely (1) 27:22Solicitor's (1) 8:25Sol's (12) 20:10;27:23;46:14;56:9; 63:17;64:19;65:7,14,19,20; 66:6;80:12Solutions (10) 87:22;88:5;94:8,20;95:3,4, 8,9;96:14;106:4somebody (1) 28:19somehow (1) 102:2someone (4) 49:12;72:25;92:13;102:14Sometimes (2) 92:21;102:13sorry (13) 8:12,14;19:14;26:16; 72:22;84:24;87:7;88:2; 89:23;95:8,18;99:21;105:21sort (8) 6:8;27:25;29:11,15;37:8; 69:22;79:23;109:21sorts (1)

92:13sounder (1) 64:6sounds (1) 24:8source (2) 51:17;67:21sources (1) 60:11Southwest (1) 61:16SPEAKER (3) 73:22;74:2;99:16speaking (2) 5:10;110:12special (1) 10:23specialist (1) 65:11specially (1) 80:13specific (6) 19:10;21:25;29:10,19; 65:4;73:5specifically (1) 67:11specifies (1) 61:9spell (1) 74:10spelled (1) 74:12spend (1) 28:13spending (1) 16:7spent (3) 37:10;70:15,15spot (2) 21:21;29:18spreadsheet (2) 89:13;98:9SPRNCA (10) 26:7,10;52:10,14,20;53:17; 54:9;59:14;61:14;66:8SPRNCA-contested (1) 59:16stable (1) 67:21staff (6) 7:3;34:9;77:2,5;110:4,16stage (1) 21:17stakeholder (1) 78:9stand (7) 7:14;10:19;14:8,9;34:7; 35:25;48:4standard (1) 30:9start (10) 7:17;10:14;11:8,12;15:4,8; 72:9;76:18;109:14;110:25

started (1) 28:9starting (2) 10:13;12:14state (13) 6:21;9:5;59:23;61:25,25; 62:11,15,17;65:12;68:13; 71:15;74:9;75:13stated (1) 27:18statement (8) 22:6;24:15;26:24;47:10; 50:23;54:3;55:13,16statements (3) 47:12;48:25;50:20States (3) 62:2;64:24;67:22static (1) 104:17station (1) 76:17status (2) 22:24;26:10statute (17) 16:19,21;28:17;32:4;40:19, 22;49:25;51:4;54:15;55:21, 22;56:5;60:13,15;68:23; 78:17;79:2statutes (19) 23:8,9,10;32:19;35:22; 39:25;51:9;69:16;71:15; 77:19,24;78:11,24;79:3,5,11, 13;80:15,17statutory (11) 16:14;31:2;39:11;58:10; 60:20;61:5,8;68:21;78:16,18; 79:8stayed (1) 110:18steps (2) 90:18;101:4stick (1) 46:15still (3) 12:5;46:20;100:21stipulate (12) 14:14;16:3;18:7,10;20:25; 42:7,14;48:7,8,12;71:7,21stipulated (9) 17:22;21:2,10;32:8;41:19; 42:15,18,23;43:2stipulating (2) 19:8;32:25stipulation (9) 4:20;10:16;15:22;20:22; 21:14;22:3;48:15,16,18stipulations (3) 18:20;48:3,19stood (1) 35:17stop (4) 11:12;19:21;90:4;109:6stopping (1)

109:10storage (1) 79:23straight (2) 22:8;92:21straightforward (2) 25:11;55:18stream (11) 57:19;59:15;62:6;63:6,8; 64:5,8;65:15;66:24;67:2,10streamline (2) 16:8;28:24strictly (1) 7:7strong (1) 45:14struggling (3) 20:12;40:12;103:10student (2) 9:8;66:13studies (5) 27:14,22;28:5;29:8,9study (1) 29:17stuff (1) 78:10stumbling (1) 18:14style (1) 11:22Subbasin (3) 9:19;15:7,12subject (1) 42:25submit (4) 57:17;95:3;98:22,23submits (1) 61:2submittal (1) 94:14submitted (7) 9:12;87:21;90:25;95:4; 96:14;98:16,20subpart (1) 54:12subparts (1) 5:22subsequent (1) 62:3subsequently (1) 101:24substance (1) 39:16substantially (1) 68:18sufficient (3) 60:16,24;62:13suggest (3) 32:8;46:23;109:14suggested (1) 101:12suggesting (3) 25:5;45:25;102:2


(17) sitting - suggesting



suggestion (1) 34:21suit (1) 7:12SULLIVAN (19) 8:10,15,16;10:20,21;11:3; 20:20,21;24:11,14;33:7; 43:12,13;44:5;45:9;48:10,12; 55:12,14Sullivan's (2) 25:25;29:3summaries (1) 50:16summarily (1) 13:19summarize (1) 104:6summary (3) 21:19;28:19;72:14summer (1) 76:2Superior (3) 44:22;45:3;52:17supervising (1) 9:23supervision (1) 80:4supplies (2) 60:24;83:8supply (44) 4:9;28:16;51:7;53:22; 56:14;57:24;59:8,20,25;60:8, 16;63:25;64:3,9;66:5;67:20, 24,25;73:5;76:5,21;79:15,19, 20;80:2,7,10,11,15,17,24; 81:5,6,7;82:4,15,19;83:17; 84:17;86:10,19;88:7;95:10; 97:20support (2) 61:17;101:6supported (2) 56:11;94:9supports (1) 66:2supposed (2) 54:15,16Supreme (7) 61:20,21,24;62:7,20;66:19; 67:8sure (15) 10:2;12:12;26:12;29:3; 34:9,16;38:17;45:4;50:21; 70:9;73:3;77:7;90:6;91:4,13surface (26) 14:20,23;15:18;33:2; 52:13;58:13;62:4,23;64:16; 65:4,5;66:8;68:22;71:5,8,12, 17,18,19;72:4,4;81:12,14,15; 103:12;105:3surprised (1) 38:9Surveys (1) 64:25

suspect (3) 15:15;32:4;39:10suspend (1) 10:18sustained (1) 69:12sworn (3) 74:5,7;75:3

T

table (4) 5:6;18:23;22:4;90:5tables (1) 6:24tabs (2) 34:11;35:16tailored (1) 53:14talk (3) 10:16;18:12;20:14talked (1) 70:18talking (10) 5:18;15:4,18;28:18;70:16; 81:20;82:17;83:16;85:17; 103:11talks (1) 19:13tapers (1) 110:12task (1) 92:13technical (14) 26:9;57:21;93:24;94:3,7; 97:22;98:15,18,20,24,25; 99:4,20;103:23telling (1) 30:5tend (1) 49:22tendency (2) 37:7;39:19term (3) 15:16,19;85:11termed (1) 85:23terminology (1) 83:24terms (14) 6:6;10:12;11:7;13:11;15:2; 36:5;80:8,9;102:17;103:9; 104:23;109:3,21;110:13testified (2) 75:4;106:20testify (2) 49:20;50:15testifying (1) 27:5testimony (9) 19:9;21:19;23:2;49:11; 58:3;81:22;91:8;108:4;110:9Thanks (2)

59:5;73:15that'll (1) 38:5theirs (1) 71:19theory (5) 37:14;44:11;51:3;91:5; 92:12therefore (3) 24:24;64:19;70:23there'll (1) 27:5thinking (4) 26:24;28:9;42:19;56:25third (1) 51:15Thomas (1) 4:12though (8) 11:15;15:20,20,24;21:7; 48:7;63:18;70:4thought (3) 17:20;33:25;34:2thousands (1) 101:21three (8) 23:22;37:5;38:2;51:25; 81:12;84:7;89:14;103:20throughout (2) 48:14;76:12throw (2) 17:18;33:12Thursday (1) 10:17tie (1) 109:7tied (1) 40:5times (5) 11:16;36:22;37:22;41:18; 74:18timing (2) 10:12;44:18titled (1) 104:12Today (17) 4:10,20;7:12,21;8:4,14,17; 10:14;21:12;28:23;31:10; 32:5;35:18;63:19;109:25; 110:11,24together (4) 16:2,7;60:22;107:17tomorrow (3) 109:7;110:14,25tongue (1) 92:25took (3) 86:21,21;101:4top (3) 78:13;89:19;92:18topic (1) 96:23topics (1)

96:21total (11) 84:8;88:17,20;89:18;106:2, 7,8,11,15;108:7,10tough (2) 35:7;38:2toward (3) 16:22;18:4;92:10track (1) 18:7tracts (1) 103:18trademark (1) 92:15TRANSCRIBED (108) 4:1;5:1;6:1;7:1;8:1;9:1; 10:1;11:1;12:1;13:1;14:1; 15:1;16:1;17:1;18:1;19:1; 20:1;21:1;22:1;23:1;24:1; 25:1;26:1;27:1;28:1;29:1; 30:1;31:1;32:1;33:1;34:1; 35:1;36:1;37:1;38:1;39:1; 40:1;41:1;42:1;43:1;44:1; 45:1;46:1;47:1;48:1;49:1; 50:1;51:1;52:1;53:1;54:1; 55:1;56:1;57:1;58:1;59:1; 60:1;61:1;62:1;63:1;64:1; 65:1;66:1;67:1;68:1;69:1; 70:1;71:1;72:1;73:1;74:1; 75:1;76:1;77:1;78:1;79:1; 80:1;81:1;82:1;83:1;84:1; 85:1;86:1;87:1;88:1;89:1; 90:1;91:1;92:1;93:1;94:1; 95:1;96:1;97:1;98:1;99:1; 100:1;101:1;102:1;103:1; 104:1;105:1;106:1;107:1; 108:1;109:1;110:1;111:1trial (1) 36:21triangular (1) 92:14Tribute (10) 88:2,3;96:9,10;97:3;99:4,6, 8,10;106:24tried (2) 71:7;101:19trimmed (1) 20:15true (4) 16:10;44:16;68:23;100:2truffles (1) 102:5truly (1) 47:19try (10) 5:11;25:22;55:15;57:3,20; 58:17;91:4,13,15;92:2trying (2) 21:24;27:24Tucson (1) 64:25turn (13) 6:12;7:6;10:5;19:5;20:7,


(18) suggestion - turn



20;25:18;37:4;50:19,22; 74:14;89:21;93:17turned (1) 5:5Turning (1) 20:22two (20) 9:4;16:5;23:24;30:10;34:5, 10;38:25;41:10;56:11;64:9, 21;78:18;79:3;80:18,25;81:3; 96:5;97:5;99:5;103:17typical (1) 46:4typing (1) 92:21typo (1) 12:23

U

ultimate (1) 49:17ultimately (2) 14:25;73:8unanimous (1) 32:6unappropriated (1) 61:17uncertainty (1) 49:24under (7) 5:6;54:11;76:14;79:13; 80:4;82:14;83:17underestimate (1) 62:16underground (1) 64:17underlying (1) 39:25understood (1) 108:3undisputed (1) 22:24unfair (1) 73:13Unfortunately (1) 10:22unique (1) 60:10United (2) 62:2;64:24University (3) 75:11,13,16unlawful (2) 54:3,17unless (4) 36:18;63:14;66:16;72:4unquantified (2) 56:23;57:3unreasonable (1) 63:9up (44) 5:13;11:10,14;14:8;16:13;

24:8,11;34:6,9,19,20,23;35:2, 16,19,22;38:5;39:14;43:16; 45:4,8;47:21;48:8;49:13,21; 71:20;72:19;73:19,23;76:15; 82:5;89:2;90:6;92:15;93:9; 95:17,18;98:7,14;105:6; 109:7,7,16;110:14upheld (3) 55:3,7;59:3uphold (1) 68:15upon (9) 15:24;58:7,8;59:14;61:25; 63:24;68:18;91:13;103:24upper (1) 91:25use (19) 5:14;6:8;12:19;15:19; 35:12,12;40:17;45:7;46:22; 47:7;51:18;60:19;61:4;81:4; 82:18;92:22;93:14;104:2; 110:21used (5) 69:19,20;70:2,3;83:25uses (2) 84:14,22USGS (5) 9:5;14:22;15:10;27:14; 72:6using (2) 91:16;92:10

V

vacate (3) 11:25;13:18;54:5value (3) 17:2;31:2;84:8values (2) 68:19;83:3various (1) 30:2vary (1) 36:8vast (1) 30:5verify (2) 108:3;109:17version (5) 89:8;90:23;92:9,22;99:19versions (2) 79:2;92:8versus (3) 31:2;81:7;107:2vested (2) 63:18;67:6via (3) 90:13;94:19;95:20vibrate (1) 10:6vice (1) 8:18video (1)

110:9view (12) 13:24;17:6,15;19:3;20:18, 19;27:11,12;29:22;40:2;52:4; 54:14views (2) 92:17;102:7violated (1) 70:20virtually (1) 30:14Vista (2) 9:18;73:2vitiates (1) 68:4Vohra (1) 8:13voices (1) 5:8volume (1) 83:19voluntary (1) 7:7

W

wall (2) 70:17,20wants (8) 20:25;38:4;42:24;50:4,5,6; 56:22;93:5warning (1) 68:18Warren (1) 72:21waste (2) 17:2;31:2wasting (1) 21:23Water (156) 4:7,8;8:2,7,17,19;10:8; 12:17,25;13:2,5,23;14:17,20, 23;15:3,9,18;22:18;25:14; 26:8,11;28:16;33:2;49:7,18; 51:5,7,17,17,18,21;52:19,25, 25;53:11,12,22;54:10;56:14, 15,23;57:24;58:23;59:8,11, 13,20,25;60:3,4,5,8,10,16,18, 24;61:17,20,24;62:2,8,13,15, 18,19,21,23;63:4,4,14,15,19, 25;64:3,9,16,17,18,25;65:4,5, 8,11,16,17,21,25;66:2,4,8,9, 21,22,24;67:14,16,19,21,24, 25;69:25;70:14;71:3,8,12,17, 18,19;72:4,5,12,25;73:5,7,10, 11;75:23;76:21;77:12;79:14, 19,20;80:2,7,10,11,15,17,24; 81:5,6,7;82:2,4,4,15,19;83:8, 14,17;84:13,15,17,20;85:5, 19,19;86:10,19;87:23,24; 88:6;95:10;97:20;104:17way (25) 6:15;11:13;12:9;16:22;

17:22;20:4,24;23:9;26:15; 28:23,23;36:11,15;37:11,17; 42:22;46:4,12;47:13;53:4; 86:17;102:5;107:6;109:13,20ways (2) 58:16;93:12wearing (1) 7:12website (1) 67:22Wednesday (2) 10:21;11:20week (3) 4:21;33:15;93:2weeklong (1) 109:19weighed (2) 31:6;33:11weight (3) 30:23;31:5;54:8welcome (2) 7:22;34:4Wells (6) 9:5;27:17;58:20;65:10; 69:24;72:11weren't (1) 23:17what's (13) 35:7;52:20;69:21,22;70:2, 3,9;72:9;75:8;80:6;84:11; 85:23;98:7whenever (1) 74:20whereas (1) 81:12wherein (1) 66:20Whereupon (1) 74:7whichever (1) 91:16whole (3) 37:10,21;102:9whose (1) 94:23William (3) 8:16;10:20;43:13willing (5) 18:15;20:14;22:5;23:18; 48:7windows (3) 34:11;35:16;93:14wings (1) 16:14wink (1) 70:8within (12) 58:10;59:18;62:18;77:12, 16;80:14;83:25;84:19;85:5; 86:8;98:12;103:8without (15) 7:13;20:3;30:19;39:20,24; 41:8;59:9;68:17,20;69:11;


(19) turned - without



73:6;96:9;97:3;99:4,5witness (31) 5:25;8:4,20,21;14:15,18; 21:13;31:13;34:23,24;35:9, 10,11;36:12,13,25;37:13; 43:7;49:10,20,22;50:8;56:9; 70:21;73:17;74:19;75:3; 100:7;104:6;107:7;108:6witnesses (20) 5:13,20;9:4;11:10;14:13; 16:9;17:16;27:5;31:10,15; 35:23;36:9,14;43:4;50:11,15; 64:22;70:16;103:24,25witnesses' (1) 38:7wonder (2) 26:12,12word (3) 33:25;37:25;38:6worded (1) 21:25wording (4) 21:5,9,11;26:2words (3) 24:18;40:18;55:24work (7) 17:21;36:11;37:17;38:3; 90:18;91:19;100:22worked (1) 75:24working (1) 16:2works (3) 79:23;95:7,9world (1) 104:2worse (1) 68:7Wow (1) 69:21wrap (1) 11:14writing (2) 14:22;33:21written (1) 25:4wrong (7) 17:5,10;41:7;70:21;100:7; 107:9;108:13wrote (1) 60:9

Y

Yavapai (2) 52:23;66:23year (3) 33:17;64:9;76:22years (17) 12:20;13:7;58:9,9;59:18; 60:19,25;63:17;66:7,18; 69:15;76:2;79:19;83:5,6; 84:14;105:4

year's (2) 84:15,23Young (3) 95:7,8,20

1

1 (8) 10:13;44:19;87:4;90:21, 21;96:6,20,231,000 (2) 81:12,131,100 (1) 81:151:00 (1) 4:1110 (2) 20:5;109:6100 (14) 12:20;13:7;34:16;58:9,9; 60:19,25;63:17;66:7,18; 69:15;83:5;105:4;108:16100-year (2) 59:8;81:17100-years (1) 81:8108 (3) 78:24;79:4,11108.01 (3) 78:24;79:4,1111 (2) 52:16,221200 (1) 81:111200-foot (1) 103:121215-714 (1) 78:2012A-AWS001-DWR (1) 4:1013th (1) 95:2114,769 (1) 72:1315 (3) 11:9;32:23;47:2215-minute (2) 33:4;46:2416 (1) 4:1718 (1) 73:6188 (1) 90:221976 (1) 61:231988 (3) 59:14;61:14;73:71999 (2) 62:7;75:16

2

2 (8) 12:14;54:4;88:9,13,14,15; 96:6,2120 (1) 47:220,000 (1) 72:142003 (1) 75:192005 (2) 76:2,82011 (14) 76:22;78:25;86:23;87:17; 88:11;94:13;95:21;96:25; 97:6;106:3,9,16;108:10,102012 (5) 4:10,16;96:13;98:5;105:923rd (1) 87:1726 (1) 4:102-A (1) 89:32-B (1) 89:92-C (1) 89:122-D (1) 89:21

3

30 (1) 19:2231st (1) 4:1536 (1) 34:16

4

4 (2) 90:23;94:154,100 (1) 108:124,680 (1) 72:114:35 (1) 11:11401 (2) 39:15,1840-700705.0000 (1) 4:941-1092 (1) 23:1141-1092.03 (1) 54:1241-1092.07 (2) 40:18;49:2545 (3) 19:22;20:4;21:2345-108 (1) 78:17

45-108.01 (1) 78:1845-108i (2) 60:15;65:22

5

5 (3) 11:14;95:6,75:00 (1) 10:15

6

6 (1) 95:156,300 (1) 108:8650 (1) 105:3650-foot (2) 101:11;103:7

7

7 (4) 54:13;96:12;107:11,137:30 (1) 109:17720 (1) 78:207A (1) 97:237B (8) 98:4,5;107:13,16,18,24; 108:17,177C (3) 98:7,8,97D (2) 98:14,15

8

8 (9) 54:13;99:12,13,16,18; 105:6;107:19;108:15,238:00 (1) 10:158:15 (3) 11:9;109:14;110:258A (2) 107:20;108:258B (2) 107:20;108:258C (1) 108:258D (1) 108:25

9

9 (3) 99:14,15,18


(20) witness - 9



99 (1) 30:15


(21) 99 - 99

Pueblo Del Sol Hearing Volume I 11-26-2012Transcribed from an Audio Recording

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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 3 STATE OF ARIZONA 4 IN THE OFFICE OF ADMINISTRATIVE HEARINGS 5 In the Matter of the ) 6 Decision of the Director ) to Grant Pueblo Del Sol ) 7 Water Company's ) Docket No. 12A-AWS001-DWR Application for ) 8 Designation as Having an ) Adequate Water Supply ) 9 No. 40-700705.0000. ) )10 11 12 TRANSCRIPT OF RECORDED PROCEEDINGS 13 VOLUME I (Pages 1 through 112, inclusive.)14 November 26, 201215 Phoenix, Arizona 16 17 18 19 ARIZONA REPORTING SERVICE, INC. Court Reporting20 Suite 502 2200 North Central Avenue21 Phoenix, Arizona 85004-1481 22 23 Transcribed by:24 Katherine A. McNally CERTIFIED TRANSCRIBER25 CET**323

ARIZONA REPORTING SERVICE, INC. (602) 274-9944 www.az-reporting.com Phoenix, AZ


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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 I N D E X Page 3 Opening Statement by Ms. Ronald 50 4 Opening Statement by Mr. Sullivan 55 Opening Statement by Mr. Gaudio 59 5 Opening Statement by Mr. McDevitt 66 Opening Statement by Dr. Silver 69 6 ANDREW CRADDOCK 7 Direct Examination by Ms. Ronald 75 8 9 EXHIBITS: Admitted 10 (None admitted.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 TRANSCRIPT OF AUDIO RECORDED PROCEEDINGS was 3 taken on November 26, 2012, at the Office of 4 Administrative Hearings, 1400 West Washington, 5 Suite 101, Phoenix, Arizona 85007. 6 7 Before: Honorable Thomas Shedden, Administrative Law Judge 8 COUNSEL APPEARING: 9 ARIZONA DEPARTMENT OF WATER RESOURCES By: Ms. Janet L. Ronald10 Ms. Nicole D. Klobas 3550 North Central Avenue11 Phoenix, Arizona 85012 Attorneys for Arizona Department of Water12 Resources 13 CURTIS GOODWIN SULLIVAN UDALL & SCHWAB, PLC By: Mr. William P. Sullivan14 501 East Thomas Road Phoenix, Arizona 85012-320515 Attorneys for Pueblo Del Sol Water Company 16 UNITED STATES DEPARTMENT OF INTERIOR By: Mr. John L. Gaudio17 401 West Washington Street Suite 404 SPC 4418 Phoenix, Arizona 85003-2151 Attorneys for Bureau of Land Management19 ASU COLLEGE OF LAW20 By: Mr. Joseph Feller Mr. David McDevitt, Certified Limited21 Practice Student 1100 South McAllister Street22 P.O. Box 877906 Tempe, Arizona 85287-790623 Attorneys for Patricia Gerrodette, appellant 24 ALSO PRESENT: Robin Silver, M.D., appellant, pro per25



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 (Commencement of electronically recorded 3 proceedings.) 4 * * * * * 5 ALJ SHEDDEN: All right. Good afternoon, we are 6 on the record in the matter of the decision of the 7 director to grant Pueblo Del Sol Water Company's 8 application for designation as having an adequate water 9 supply number 40-700705.0000. This is Docket 10 Number 12A-AWS001-DWR. Today is November 26, 2012. It 11 is a few minutes after 1:00 p.m. My name is 12 Administrative Law Judge Thomas Shedden. I've been 13 assigned by the Office of Administrative Hearings to 14 preside over this matter. 15 Our notice of hearing was issued on August 31st, 16 2012, and it actually set a hearing date -- it looks 17 like it was going to be on October 16, and set a 18 location for the hearing down in Benson, Arizona. At 19 some point during our proceedings, the parties filed a 20 stipulation to change the hearing date until today -- 21 and indeed we'll be going forward all of this week, if 22 necessary -- and then to change the location. We're 23 here in Phoenix, at the Office of Administrative 24 Hearings. 25 A couple of things I want to point out, just



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 generally, and then I'm going to get the parties to 3 introduce themselves, and then we'll deal with some 4 additional preliminary issues. 5 One, I've turned on a little recording device 6 under the table here. That's what these microphones are 7 for. They don't provide any amplification of our 8 voices, but to get a clear recording, you've got to have 9 a microphone in front of you or in close proximity while 10 you're speaking. So I'll ask you to be aware of that as 11 we go forward, and I'll try and alert folks if it seems 12 like we -- we've had a breach of that, if you will. 13 That means whatever witnesses come on up here to my left 14 so that they can use that chair and have benefit of the 15 microphone there. So just be aware of that as we go 16 forward. 17 Coupled with that, to get a clearer recording 18 we've got to be cautious about talking over one another, 19 interrupting each other, these kind of things. 20 For the benefit of the witnesses, you need to 21 understand that the lawyers, quite frequently, like to 22 ask long questions, with a lot of subparts, so you need 23 to kind of hold your answers until they're done. And 24 similarly for the lawyers, I would ask you to allow the 25 witness to answer before moving on to a new question.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So that's the recording issue. 3 What I do want to let folks know, a couple of 4 other things, and then as I said, we'll get the 5 introduction. 6 In terms of our prehearing matters, I'm going to 7 give some information procedurally about the setup in 8 the room, including the use of the computers, that sort 9 of thing, have some discussion, if you will, about how 10 we're going to go forward with the presentation of our 11 evidence, and perhaps a couple of other issues as well. 12 When I'm done with all of that, I'm going to turn to the 13 parties and see if you have any preliminary issues that 14 you feel we need to address as well. And eventually 15 then, when all of that is out of the way, we'll move 16 forward with the presentation of evidence, but that may 17 take a while to get there, at this point. 18 Before I go to the introduction of folks, or 19 letting you make their appearances, as it were, I do 20 want to let folks know that our office, the Office of 21 Administrative Hearings, is an independent state agency, 22 and we invite everybody who comes to our hearings the 23 opportunity to give our director feedback on how we're 24 doing. There are some forms on the tables where the 25 parties are located that are for that purpose. If you



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have difficulty locating those or need some more, our 3 front desk staff would be glad to help you with that. 4 There's a little black box right outside this hearing 5 room, just across the little hallway there, you could 6 put those in, or you could turn them in at the front 7 desk. It's strictly a voluntary process, and it's 8 anonymous in that our director shares the feedback only 9 very generally. 10 One of the reasons I'm mentioning that now at 11 the outset, rather than as we get a little further in, 12 obviously a lot of you are wearing suit coats today. 13 I'm not. If you'd be more comfortable without those 14 jackets, don't stand on formality for me. Go ahead, and 15 you can take those off; and indeed, as the days go on, 16 from my perspective, not a necessary feature. 17 With that, then, what I'm going to do is start 18 with DWR on my right here, and I'm going to ask you to 19 go ahead and make your appearances. If there are folks 20 attending in the crowd, and we've got a fairly full 21 house today, that you'd like to introduce as well, you'd 22 be welcome to. So with that, we'll take care of that 23 and then get back to information on how we're going to 24 go forward. 25 MS. RONALD: Thank you, Your Honor. Jan Ronald,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 on behalf of the Department of Water Resources, with 3 Nicole Klobas, who is sitting to my right. Also here 4 today with me are a witness, Andrew Craddock; and our 5 administrative assistant, Sharon Scantlebury; and Frank 6 Corkhill, who is the chief hydrologist for the 7 Department of Water Resources. 8 ALJ SHEDDEN: All right. 9 Go ahead. 10 MR. SULLIVAN: Good afternoon, Your Honor. 11 We -- 12 MS. RONALD: Oh, and I forgot one. I'm sorry. 13 Ayesha Vohra is also an attorney with our office, who is 14 here today. I'm sorry, Ayesha. 15 MR. SULLIVAN: Good afternoon, Your Honor. 16 William Sullivan, on behalf of the applicant, 17 Pueblo Del Sol Water Company. With me today, also, are 18 Rick Coffman, who is the vice president of Castle & 19 Cooke, as well as Pueblo Del Sol Water Company, and a 20 potential -- and who is also a potential witness. And 21 also Norm Fain, who is a potential witness. 22 ALJ SHEDDEN: All right. Go ahead. 23 MR. GAUDIO: Good afternoon, Judge. My name is 24 John Gaudio. I'm here for the Department of the 25 Interior Solicitor's Office, here representing the BLM.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And I've got sitting next to me Ben Lomeli, hydrologist 3 with BLM, a representative of the agency. And then I've 4 got two witnesses, Jim Leenhouts, Dr. Leenhouts, with 5 the USGS, and Bill Wells, hydrologist at the BLM state 6 office. 7 MR. McDEVITT: Your Honor, my name is David 8 McDevitt. I'm a certified limited practice student, 9 representing Appellant Patricia Gerrodette with regard 10 to the legal issues in this matter, and in the motions 11 and response that we filed. The notice of appearance 12 was submitted to the OAH docket. 13 ALJ SHEDDEN: Okay. And then you are 14 Ms. Gerrodette, correct? 15 MS. GERRODETTE: That's correct. 16 ALJ SHEDDEN: Okay. And go ahead. 17 MR. SILVER: My name is Robin Silver. I'm a 18 property owner on the San Pedro in the Sierra Vista 19 Subbasin. 20 ALJ SHEDDEN: All right. Let me just make one 21 other introduction and -- and relating to Mr. McDevitt. 22 We also have present Professor Joseph Feller from the 23 ASU Law School, who is the supervising attorney, 24 correct? 25 MR. McDEVITT: Correct.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: All right. Let me just make sure 3 I'm getting all of this down myself in my notes, and 4 then -- all right. Back on my list of -- of things 5 and -- and I -- I need to remind folks to turn off your 6 cell phones or put them on vibrate or -- or some other 7 such thing, that you can do that, please. Too, as I 8 said before we went on the record, water is the only 9 food or drink we're allowed to have, so please observe 10 that, if you will. I've mentioned the microphones, so 11 I'll not go into that again. 12 In terms of our timing, I do have a question for 13 the parties, and obviously we're starting at 1 o'clock 14 today. The intention would be to start generally at 15 8:00 and go to 5:00 each day. I know there was some 16 talk when the stipulation was filed, as to whether or 17 not Thursday morning was going to be a day that we 18 needed to suspend proceedings, if you will. So let me 19 just ask directly. Where do we stand on that? 20 MR. SULLIVAN: Thank you, Your Honor. William 21 Sullivan. It was Wednesday morning, and that hear- -- 22 that oral argument has been cancelled. Unfortunately, 23 the special master is ill, and we got notice this 24 morning that he cancelled. 25 ALJ SHEDDEN: So we're good to go every morning



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 then? 3 MR. SULLIVAN: Yes. 4 ALJ SHEDDEN: All right. And let me -- I'm 5 assuming there's no problem with that from everyone's 6 perspective, but I guess I'm going to put it out in 7 terms of a question at this point, with respect to the 8 parties, whether it makes sense to defer our start time 9 until 8:15, give you folks the extra 15 minutes to get 10 in here, get set up, consult with your witnesses. 11 Similarly, at the end of the day, right around 4:35, I 12 like to start seeing if we're at a good place to stop. 13 If we need to push on, we can. But that way by 14 5 o'clock, we wrap things up. 15 Having said that, though, that takes away from 16 our hearing time, and when you times it by five days, 17 it's not a small amount of time, but that's going to be 18 my proposal, assuming the parties think that we're not 19 going to be pressed for time, and I would guess having 20 recovered Wednesday morning, that may not be an issue. 21 Before I get into that, in detail, I'll let the 22 parties know that I have some -- I'm going to style them 23 concerns, if you will, as to how much evidence do we 24 really need to take in this matter, and it's perhaps 25 related to Ms. Gerrodette's motion to vacate and the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 motion to dismiss that Pueblo Del Sol filed. Those 3 motions were both denied, but -- and coupled with the 4 motion to dismiss was a motion in limine, but those 5 legal issues are still in play, from my perspective, and 6 the parties agreed to raise those issues in their 7 closing arguments. 8 But despite the fact that I denied those 9 motions, some of it has to do with the way the issues 10 are set forth in the notice of hearing, and what I'm 11 going to do is just read those four issues into our 12 record just for completeness and to make sure we're all 13 on the same page here. 14 Starting on page 2 of the Notice of Hearing, the 15 appellants raised the following issues on appeal: (A) 16 whether Pueblo Del Sol failed to demonstrate and ADWR 17 erroneously determined that the water proposed to be 18 pumped will be continuously, legally, and physically 19 available to satisfy the proposed use for at least 20 100 years; (B) whether ADWR erroneously refused to 21 consider impacts of the proposed pumping of the flow out 22 of San Pedro -- on the flow of the San Pedro River -- 23 and it looks like there's a little typo in there, but -- 24 (C) whether ADWR erroneously refused to consider impacts 25 of the proposed pumping on water rights of the Bureau of



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Land Management, including federal reserved water rights 3 for the San Pedro Riparian National Conservation Area; 4 and (D) whether Pueblo Del Sol failed to demonstrate and 5 ADWR erroneously determined that the water proposed to 6 be pumped will be physically available for at least 7 100 years, given evidence of declining groundwater 8 levels and increased pumping in the area. 9 So in particular, Items B and C, or Issues B and 10 C, jump out in light of primarily the Department's 11 prehearing brief. And the question I have, in terms of 12 how much evidence we're going to need to take, and what 13 I want to find out from the parties initially here is 14 whether those issues can be resolved as a matter of law, 15 and cut down on the amount of evidence that parties are 16 hoping to present. 17 It seems to me, effectively, that is what 18 Ms. Gerrodette was asking for in her motion to vacate, 19 that I rule summarily that DEQ did err on those issues, 20 send the matter back to the Department, and have DEQ 21 make a factual determination there. 22 Obviously -- I think it's fairly obvious anyway, 23 to me, that DWR and the water company have a different 24 view of whether there was an error or not, but it seems 25 to me -- and the concern I have is whether it makes



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 sense to take more than just the limited amount of 3 evidence as to what those impacts were or may not be, if 4 any at all, as opposed to just saving those points for 5 legal consideration at the end of the hearing. 6 Go ahead. Doctor, go ahead. 7 DR. SILVER: I have to ask, to be recognized, do 8 we stand up or do we just -- 9 ALJ SHEDDEN: There's no need to stand. Just -- 10 sir, go ahead. 11 DR. SILVER: If you looked at -- if you -- it's 12 Robin Silver, if you looked through the list of 13 witnesses and some of the issues that you just 14 addressed, it seems like we could just stipulate, as a 15 group, and the -- including my own witness, most of what 16 they're going to tell us that has to do with the 17 physical connection or the water budget, we can agree on 18 already. We don't need a witness to tell us that. 19 So for instance, the fact that the groundwater 20 and the surface water are connected, I think that we 21 could agree. ADWR, Pueblo Del Sol, the BLM, the feds, 22 USGS have all said this, in writing, that there's a 23 connection between the groundwater and surface water. 24 We could agree on that. 25 If you look at the other issue that ultimately



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 you'll have to look at in terms of is it legally 3 available, the water budget becomes an issue because 4 when we get down and we start talking about, you know, 5 Gila III or some of the -- some of the nitty-gritty of 6 the legal issues, it's going to come down to whether or 7 not this subbasin is overallocated. 8 And again, if you start then looking through the 9 numbers from Arizona Department of Water Resources, 10 USGS, and BLM -- and I don't know if this is the 11 appropriate time or not, but let me just flat out say 12 it -- this is a subbasin that's overallocated. So that 13 has bearing on what you're going to have to tell us 14 (indiscernible). 15 ALJ SHEDDEN: Well, and I suspect that may be a 16 disputed issue, and leaving the term "allocated," the 17 buzzer that goes off with me for something like that is 18 you're talking about surface water generally when you 19 use a term like that. So the -- your point is taken, 20 though, more generally, and oftentimes, though, 21 particularly with the number of parties that are 22 present, reaching a stipulation can be difficult. I 23 understand that. 24 My point, though, and I guess I'll expand upon 25 it is if the parties want to take some time out this



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 afternoon, we're all here, and do some working together 3 to either, perhaps, stipulate to some facts that would 4 reduce the need for evidence -- alternatively, you 5 know -- and you're kind of aligned on two sides of the 6 room there, if you will -- alternatively, as well, the 7 appellants might benefit by spending some time together 8 to help streamline their presentations, perhaps can 9 eliminate some witnesses. I don't know if the same 10 would be true of the Department and Pueblo Del Sol. 11 As inducement, before I get comments from the 12 other folks in this regard, one of the things on my list 13 that -- that I need to address and put it up there in 14 the wings, if you will, I've got a statutory duty to 15 avoid letting folks present needless cumulative 16 evidence. It's always an open question as to when 17 cumulative evidence becomes needless, and I tell folks 18 that some of the judges think any cumulative evidence is 19 needless. But that's what the statute says, or pretty 20 darn close. 21 The other things that the statute says, and 22 these may go in more toward the way the issues are 23 couched and whether we need evidence at all, and it's -- 24 there's a duty I need to avoid needless consumption of 25 time, and I'm allowed to exclude evidence if the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 probative value is outweighed by waste of time. And 3 that's the one that really concerns me when we've got -- 4 and I'll let Ms. Ronald correct me, of course, if I'm 5 wrong here, but based on the prehearing filings, the 6 Department is pretty firm in the view, it seems, that 7 these were things that they shouldn't have considered. 8 If they're right about that, then, of course, taking 9 evidence on the impacts is not necessary. And if 10 they're wrong about that, it seems to me that the 11 certificate or the designation would need to be revoked 12 or never get out of draft form, however you want to put 13 it. 14 So it doesn't necessarily make a lot of sense in 15 my view, assuming you're all in agreement, to have a lot 16 of folks who have expert witnesses, that I assume have 17 other things that they can do, rather than coming down 18 here. So let me throw it out more generally, I guess, 19 for any of the parties to comment, and particularly with 20 respect to the thought that does it make sense to take a 21 little time and allow you folks to potentially work on 22 some stipulated facts, or any way to narrow, not the 23 scope of the issues for hearing, but what evidence would 24 be necessary in light of the issues set forth in the 25 notice?



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And I'll go back to you first, Dr. Silver, since 3 you -- I kind of interrupted what you were getting 4 toward, a few minutes ago. 5 DR. SILVER: Do you want me to go ahead and 6 continue? So if I -- because I would almost like to -- 7 where I got off track, I think that we could stipulate 8 the connection. That's not a (indiscernible). 9 ALJ SHEDDEN: Well, I -- the problem with what 10 you think we can stipulate, that requires a discussion 11 and better served off the record, because -- there are a 12 couple of reasons -- it's not really a settlement talk, 13 but there's no need for me to hear it, because if you 14 reach a stumbling block where on a given issue one party 15 or more is not willing to, then it's just best that I 16 don't know who they are, for what reason, and I take the 17 evidence. 18 So -- but let me ask directly then, you would be 19 amenable to taking a little time off the record and 20 seeing if stipulations could be reached? 21 DR. SILVER: Yes. And I think it would save a 22 good amount of your time, as well as ours, because that 23 would take that off the table, and then you could focus 24 on whether or not it matters legally. 25 ALJ SHEDDEN: Well, I agree that it would



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 hopefully save some time, but, you know, you never know 3 until the end of the day. But I share that view, and 4 that's why I raised it. 5 Let me turn to Ms. Gerrodette and/or 6 Mr. McDevitt. 7 MR. McDEVITT: Well, Your Honor, we would agree 8 to discussing -- stipulating with regard to certain 9 facts in order to limit the amount of testimony or 10 evidence needed, so long as we had a specific time frame 11 for which to do that, whether it be half an hour or an 12 hour, obviously, is to Your Honor's discretion. But we 13 wouldn't want those talks to go on and on. 14 ALJ SHEDDEN: I'm sorry, your last point was? 15 MR. McDEVITT: We -- we wouldn't want that to be 16 an open-ended -- open-ended discussion. 17 ALJ SHEDDEN: Right. No, and with respect to 18 the time allotted for it, assuming everyone is going to 19 be in agreement, you know, if you're making good 20 progress and you're getting a lot of facts down, one 21 after another, then it seems silly to artificially stop. 22 On the other hand, if 30 minutes, 45 minutes 23 have gone by and anything that can be achieved has been 24 and the parties collectively don't want to continue to 25 discuss the matter, then, yeah, we need to get on the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 record and move forward. So, you know, I guess the 3 problem with setting a time limit is without knowing 4 whether -- you know, 45 minutes may be way too long. 5 You take 10 minutes, and you find, no, we -- we have no 6 common ground here. 7 So let me turn to the BLM then. 8 MR. GAUDIO: Yeah. Judge, BLM's sole argument 9 in this matter is that DWR, you know, must consider the 10 impacts of Pueblo Del Sol's proposed pumping on the 11 federal reserved rights in the basin. And I'm 12 struggling a little conceptually with the purpose of the 13 hearing. It seems to me to be purely a legal question. 14 With that said, I'd be willing to -- to sit and talk 15 about what evidence can be, you know, trimmed away. 16 ALJ SHEDDEN: All right. And, you know, I will 17 say that as I look at the issues, they do seem to be 18 largely legal issues, in my view, but, you know, others 19 may have a different view, and so that's, I guess, why 20 we have hearings, but let me turn to Mr. Sullivan. 21 MR. SULLIVAN: Thank you, Your Honor. 22 Turning first to the issue of stipulation, 23 although we don't dismiss that possibility on hand, I 24 believe that the appropriate way to deal with that is 25 for any party who wants to stipulate to the facts, to



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 proposed stipulated facts outside of the time 3 for hearing -- we're already here -- and then to see if 4 the parties can agree on them. 5 I think the wording will be very critical. 6 That's an area where we may not ever be able to reach 7 agreements on facts, even though conceptually there may 8 be no disagreement on certain facts, conceptually, but 9 the wording of them may be very important. And so what 10 I would propose is that if a party has stipulated facts 11 that they want to present and wording for that, that 12 they do that after the hearing today and let DWR at 13 least get their witness on, which shouldn't be affected 14 much by the stipulation of facts, at least to the ones 15 that were being mentioned there. Because, as Your Honor 16 indicated when we first had a prehearing conference on 17 this, DWR will set the stage, if you will, to explain 18 what they did and how they did it, and as I read their 19 summary of testimony, that this was what you had 20 indicated. 21 I don't mean to put DWR on the spot as far as 22 having to go forward, but to me that makes much more 23 sense than just wasting that 45 minutes to an hour and a 24 half trying to reach agreement, when we don't even have 25 worded specific findings available. And the ones that



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have been proposed, I would have difficulty, I would 3 think, in finding a stipulation to, that would be 4 mutually acceptable to all parties at the table, but I'm 5 not going to say I wouldn't be willing to look at it. 6 As to the issue of whether the statement of the 7 issues, as set forth in the notice, my understanding, 8 those came straight, basically, from BLM's Notice of 9 Hearing, and were intended to show what the appellants 10 cumulatively were arguing were potentially relevant 11 facts. 12 I think both the Department and ourselves, 13 Pueblo Del Sol, in their arguments and what has been 14 filed so far, have indicated that we do not believe that 15 the scope of those issues, as drafted, is what this 16 hearing is all about; that what was raised below was 17 much narrower; basically, the issue of whether or not 18 the claimed legal right to federal reserved water rights 19 is to be considered by the Department in this 20 proceeding, and whether -- because that was the only 21 issue that was really raised by all the parties below. 22 And since we filed a motion to dismiss on that 23 issue, I believe that the facts are pretty much 24 undisputed as to what the status of those rights are or 25 are not, and that they can be decided as a matter of



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 law, although some testimony on how the Department went 3 through the process may be helpful to Your Honor. I 4 assumed that when you denied the motions. 5 ALJ SHEDDEN: Well, a couple of points related 6 to the Notice of Hearing. I'm going to tell you, I 7 don't see any other issues in there. And when I look at 8 my statutes and the scope of my authority -- and when I 9 say "my statutes," I guess a better way to put it would 10 be the Office of Administrative Hearings' statutes found 11 at 41-1092, et seq. And I'm limited to the issues set 12 forth in the Notice of Hearing. So although there was a 13 motion to dismiss saying that the parties didn't 14 preserve these issues, the bottom line is they're the 15 only issues I have. 16 And whether the Pueblo Del Sol or the Department 17 feels like they were matters that weren't properly 18 preserved, that's certainly something I'm willing to 19 consider in closing argument, but at this point I think 20 I'm obligated to consider all the issues listed there. 21 And, you know, the Notice of Hearing isn't that long, 22 but -- in fact, it's only three pages, and there may 23 have been some more of a mailing list that I cut off a 24 fourth page, but we've got, in essence, two pages of 25 text. And so just taking a quick look at it in response



24

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 to your comments, but from my perspective, as a matter 3 of law, I've got to deal with all of those issues. 4 And at the end of the hearing, there's room to 5 say that a given issue wasn't properly preserved, based 6 on failure to raise it in the comments at the agency, so 7 be it. But at this point, I will see how I can just 8 dream up my own issues, and that sounds like what you'd 9 be asking me to do if I -- if I don't take the ones that 10 are in the Notice of Hearing. So -- 11 MR. SULLIVAN: If I might follow up, just to 12 clarify. 13 ALJ SHEDDEN: Yes. 14 MR. SULLIVAN: I wasn't saying -- I was saying 15 that the statement included any issue that you could 16 hear, but it was more extensive, expansive than what you 17 should and are legally entitled to hear because of the 18 lack of comments. In other words, I believe the 19 Department, in sending forth a notice, attempted to be 20 fair to the appellants as to what they claim the issues 21 were, not necessarily saying that those issues were 22 properly raised and preserved below. And that's our 23 argument on a number of the issues, is that they were 24 not properly preserved below, and that therefore you can 25 rule as a matter of law whether they were or were not,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 because it's relatively simple as to whether -- what the 3 comments were or what there -- and whether they're 4 concluded in those issues as written. 5 But I'm not suggesting that you rephrase them or 6 create new issues to hear in this proceeding. I agree 7 with you, that would be improper. 8 ALJ SHEDDEN: And similar to my comment to 9 Dr. Silver, my guess would be some of the others 10 disagree with you as to whether it's simple or 11 straightforward as to whether those issues were 12 preserved, and I've not looked in too great of detail, 13 candidly, at the documents that were filed at the 14 Department of Water Resources, but, you know, just 15 reading DWR's prehearing brief, I would say it may not 16 be so simple, primarily based on how DWR couched the 17 BLM's filing. 18 So at any rate, all right, let me turn to 19 Ms. Ronald. 20 MS. RONALD: Well, I've listened to what all the 21 parties have said so far, and I am inclined to want to 22 try to agree on certain facts, in order to expedite the 23 hearing process, but at the same time, it's much more 24 complicated than just sitting down for an hour, and I 25 have to agree with Mr. Sullivan's observations about



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 wording and how these particular factual issues are 3 couched. 4 We've looked at the exhibits that have been 5 filed by the parties on issues that we believe are not 6 relevant regarding impacts on the San Pedro River and 7 impacts on SPRNCA in particular. We've looked at the 8 case law that deals with federal reserved water rights. 9 We are, as technical advisors to the adjudication court, 10 very aware of the status of the SPRNCA claims for 11 federal reserved water rights, and as I'm sitting here, 12 I wonder, and I'm not sure, admittedly, but I wonder 13 whether, as we go forward, it might be better to just 14 get an offer of proof on each one of these exhibits and 15 deal with it that way, because -- 16 ALJ SHEDDEN: But, I'm sorry, isn't that 17 presupposing that I don't take the exhibits into 18 evidence? 19 MS. RONALD: If -- I assume that before you take 20 the evidence that -- an exhibit into evidence, we would 21 have an opportunity to raise objections to whether or 22 not we think it's relevant, and that they would have to 23 provide an offer of proof of why it is relevant. That's 24 what I was thinking when I made that statement. I'm not 25 presuming that you would not take it into evidence. But



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 these are exhibits at this point. They haven't been 3 taken into evidence yet. 4 ALJ SHEDDEN: Correct. But I'm assuming that 5 there'll be witnesses testifying about the exhibits 6 before they're offered, so -- but when -- 7 MS. RONALD: Certainly. But as to what issue? 8 And that -- that's -- it kind of, like, begs the 9 question to even go through the process, and I -- I 10 appreciate the dilemma that we all are in. 11 The appellants have their point of view. The 12 applicant and DWR has its point of view regarding the 13 relevance of any of this discussion, regarding regional 14 studies that have been done primarily by the USGS 15 regarding impacts on the river from groundwater pumping 16 in the region where Pueblo Del Sol proposes to put its 17 wells, and whether that's relevant or not. 18 And I know that our position is, as was stated 19 in our legal brief, it's not, because we don't have any 20 legal authority to consider that, regardless of whether 21 there's an impact or not. And it is regional. These 22 are regional studies that are not focused solely on 23 Pueblo Del Sol's proposed groundwater pumping. 24 So we have a great deal of difficulty trying to 25 come to some sort of an agreement about what those



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 reports mean, and how, even if you want to let them into 3 evidence, the scope of those reports, what are those 4 reports being offered to demonstrate, other than, yes, 5 there are regional studies; yes, groundwater pumping in 6 the region may have an impact on San Pedro River flows. 7 And so, I mean, that's our position. 8 So it -- it's -- I don't know. This is a -- I 9 have to say when we first started thinking about this 10 case, we too would have liked to have been able to 11 narrow the issues so that we didn't have to get into any 12 of these hydrologic principles that the appellants would 13 like to raise and spend time on at this hearing, because 14 it just doesn't matter to the Department in this 15 context, when we're dealing with an application for a 16 designation of adequate water supply. We're constrained 17 by statute and rule. 18 So I mean, what we're really talking about is 19 somebody should have filed a Motion for Summary Judgment 20 and put out some proposed facts, if that's what they 21 wanted to do, and we could all chime in and have our 22 alternate facts and -- you know, and deal with it that 23 way, but that's not the way we come to you today. 24 So as much as I would like to streamline this 25 hearing, because we really don't believe all of this



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 information is relevant at all to DWR, I share 3 Mr. Sullivan's concerns. I'm not really sure how we can 4 do that. 5 ALJ SHEDDEN: All right. I'm going to -- go 6 ahead. 7 MR. McDEVITT: It's kind of a procedural 8 question again. So when ADWR says that these studies 9 are just regional studies and we disagree because they 10 look at the specific area that -- that Pueblo Del Sol is 11 going to be pumping, do I -- I sort of already expressed 12 my objection now, but how do we do this? So I mean, 13 that's -- 14 ALJ SHEDDEN: Well, let me -- 15 MR. McDEVITT: -- I guess I sort of already 16 answered, but, you know, we -- I disagree. I don't 17 think so. I think that you look at their study, you 18 pick their spot on the map, and you can see it's 19 specific, and that should help you as a judge. That's 20 why they're there. 21 ALJ SHEDDEN: Well, in essence, you're asking a 22 legal question in my view, or asking for legal advice, 23 but the bottom line is each party presents their 24 evidence, and if DWR feels that some of your evidence is 25 not relevant, I'm confident they'll object. I'll hear



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 from the various parties as to why or why -- why it 3 should be considered relevant or why it should not be 4 considered relevant. And I make a ruling. I don't have 5 any problem telling folks that consistent with the vast 6 majority of judges at the Office of Administrative 7 Hearings, I'm going to be very, very lenient on letting 8 the evidence in, because -- for a couple of reasons. 9 One, relevance is pretty well standard when you get 10 right down to it; and two, the director of the 11 Department doesn't have to accept my findings. She'll 12 be free to accept them, reject them, or modify them. 13 So if I go and exclude a bunch of evidence -- 14 and it's not just the director of DWR, but virtually any 15 agency heads of 99 percent of the hearings we do. If I 16 exclude a bunch of evidence saying it's not relevant and 17 then the -- in this case, the director believes I made 18 an error, an error of law and that information should 19 have come in, she's left without a complete record to 20 make her determination. 21 On the other hand, if I take the evidence into 22 the record, I have no doubt in my mind that I can ignore 23 the evidence that's of extremely limited weight or at 24 the end of the day can produce a decision that focuses 25 on what is relevant. Again, I do have the concerns, the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 statutory concerns, about probative value versus waste 3 of time, but the bottom line is, at an administrative 4 hearing, it's far better to err on the side of letting 5 evidence in, and then giving it no weight when all the 6 evidence is weighed, than to exclude a lot of evidence. 7 So anything else, Dr. Silver? 8 DR. SILVER: No. I think we're in a position 9 that, for instance, isn't even -- ADWR is going to have 10 witnesses today, and I presume, you know, Mr. Corkhill 11 is going to be one of them, right? 12 MS. RONALD: Mr. Corkhill is not listed as a 13 witness, Your Honor. 14 DR. SILVER: No? Okay. So then when -- when 15 ADWR's witnesses -- and we're forced to ask those basic 16 questions like, Do you believe in reality? Then I guess 17 we'll do that. That's fine. If we can't agree that -- 18 on something so simple as to whether there's a 19 connection. That's fine. 20 ALJ SHEDDEN: All right. Well, and, you know, 21 whether folks should have filed, there's no obligation 22 for folks to file a proposed facts ahead of a hearing. 23 We're on a very short time frame. I know when we had 24 our first discussion was probably back in September. At 25 that time the appellants all were in favor of a longer



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 delay before the hearing. Pueblo Del Sol at that point 3 was concerned with meeting the requirements set out in 4 the statute, and I would suspect the compromise 5 position, here we are today. 6 So given that I don't hear unanimous consent to 7 take the time to discuss the issues and proposed 8 stipulated facts, I'm going to suggest we just go ahead 9 and move forward then, and I'll let the parties present 10 their evidence, I'll get to the objections that come in, 11 I'll make the rulings as necessary, and we'll leave it 12 at that. 13 But I do want to be clear that from my 14 perspective, the issues that I have to deal with are set 15 forth in those -- I'll call them numbered paragraphs -- 16 A through D in the Notice of Hearing there, and 17 determine whether something is relevant. Those are the 18 issues I'll be looking to, along with the applicable 19 rules in the statutes, and I guess I'll just leave it at 20 that. 21 Yeah, go ahead. 22 MR. McDEVITT: Your Honor, might we take 23 15 minutes for parties' counsels to confer, to see if 24 it -- we might be able to get some agreement out of 25 stipulating things like hydrological connection between



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 surface water and groundwater? 3 ALJ SHEDDEN: All right. Let me ask, Is there 4 any objection to taking the 15-minute recess to 5 consider, at least preliminarily, some issues? 6 MS. RONALD: ADWR has no objection. 7 MR. SULLIVAN: We have no objection too. 8 ALJ SHEDDEN: All right. And Mr. Gaudio? 9 MR. GAUDIO: No, no objection. 10 ALJ SHEDDEN: All right. And the others have 11 already weighed in. So let me just see if -- and one 12 thing I'm going to do is throw another issue out that 13 you may want to just at least address preliminarily, 14 maybe not something you want to take the time at this 15 point, but at the end of the day or the end of the week, 16 we will be done with all the evidence, hopefully, and if 17 not, we'll just come back probably next year. But you 18 never can tell about that either. 19 But at any rate, the question I have for folks 20 is how we're going to go forward with our closing 21 arguments, whether it makes sense to do them in writing? 22 If so, whether we'll just have simultaneous filings for 23 everyone? Whether it makes sense to have the party with 24 the burden of persuasion, burden of proof, get the last 25 word. So if you haven't given any thought to that, you



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 can -- excuse me -- begin to give it some thought. If 3 you want to discuss that while you're on the break, 4 you're welcome to. 5 Let me just address one or two other things that 6 came up, and then we'll take our short recess and see 7 where we stand. 8 On the computer monitors -- I mean, I'm not even 9 sure what we -- what the staff opened up. It looks like 10 two copies of the exhibits have been opened, and it may 11 be that we've got some windows and tabs opened here, but 12 on the hard drive of this computer is a list called the 13 combined list of exhibits. It should have all the 14 exhibits that were filed. We've got a pending motion to 15 add an exhibit. I think that did get put on here; I'm 16 not 100 percent sure whether it did or not. Yeah, 36, 17 yeah, it does show it's been listed. They all should be 18 active links. 19 There -- the question that came up -- well, I'm 20 a little slow -- the question that came up was operating 21 the mouse and who might have control. My suggestion, as 22 we move forward, is this: That the party questioning a 23 witness should take control of the mouse and open up the 24 exhibit or exhibits that they want that witness to 25 address. If you're not comfortable doing that, you can,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 of course, enlist the aid, often parties group up 3 with -- in this case we have appellants opposed to the 4 application, or you can have an assistant help you with 5 that, if need be. I can do it, but that slows the 6 process down, because if I'm operating the mouse, it's 7 tough for me to pay attention to what's going on around 8 me. But I have no problem doing it, if necessary. 9 The witness will have a mouse, and so we can get 10 the witness to help a little bit, particularly if 11 there's a map or something that the witness would like 12 to point at. They can use the mouse to use the cursor 13 to go ahead and kind of point the area they're 14 interested in. 15 Also -- and it did look like we had some 16 windows, some tabs opened up, is the entire docket in 17 this matter, as it stood -- I don't think there was 18 anything filed today or we would see it on here. So if 19 there's a need to call up any information from the 20 docket, we can put it on the screen in the same fashion. 21 And finally, if need be, of course, we can have access 22 to the Internet to pull up copies of statutes and rules 23 that may be helpful for witnesses to take a look at 24 while the questioning is going on. 25 Here's where we stand then: Those are pretty



36

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 much the only -- well, one other thing, I guess, and 3 then we'll move forward. At the prehearing conference, 4 we did have a discussion about how the evidence would be 5 presented in terms of the order of presentation. And 6 although there may have been some disagreement at that 7 time, it's my intention, absent any objection at this 8 point or need to vary from this, we do go to ADWR's 9 witnesses first and get an understanding of what they 10 did and why they did it. 11 The way I will work is Ms. Ronald or Ms. Klobas 12 will call a given witness. They'll ask whatever 13 questions they have of the witness. Then I will -- for 14 the DWR witnesses, I'll probably go to Pueblo Del Sol 15 next, group questions, then move my way down the 16 appellants, with not necessarily choosing a particular 17 order, I'll go in the order you're sitting, probably, 18 unless there's a desire to skip and go out of order. 19 Then we'll be back to DWR for follow-up 20 questions, and given the number of parties and the fact 21 that this is an administrative hearing, not a trial, 22 I'll let you go through as many times as necessary, as 23 long as we're getting new information that's, of course, 24 relevant to the matter. Once they're finished with 25 their first witness, we'll go to the second one, follow



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the same basic procedures. 3 After DWR has presented its evidence in that 4 fashion, I'm going to turn to the appellants. And if 5 you three can come to an agreement among yourselves as 6 to the appropriate order, I probably won't have any 7 problem with that, but if not, I have a tendency to do 8 things alphabetically, take sort of the risk of bias out 9 of there. If you're an A or a Z, that may be 10 problematic, having to spent your whole life at the 11 beginning or the end, but that's the way I'll go 12 forward. Follow the same basic procedure, questions 13 from the person calling that witness in this case, going 14 next to the appellants who, in theory, share the same 15 interests, getting their questions, and then over to the 16 Department or Pueblo Del Sol. 17 We'll work our way through the appellants. 18 We'll go to Pueblo Del Sol, get their evidence, 19 following the same procedure, and then I'll be asking 20 everyone, Is there any other evidence they'd like to 21 present? And we'll go through that whole cycle as many 22 times as is necessary for all the parties to feel 23 they've presented all their evidence. 24 The one thing that I do like to do is give the 25 parties with the burden of persuasion the last word.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 That's a little tough when there's three of you here, 3 but that's what we'll work to. So at the end of the 4 first round, if DWR wants to present some additional 5 evidence, that'll, of course, open up the appellants to 6 get the last word. 7 And for all the witnesses' benefit, I may well 8 ask some questions of my own as we go forward. So don't 9 be surprised if that happens. 10 So aside from the taking a little time to have a 11 discussion among yourselves, let me ask, Are there any 12 questions or preliminary matters that any of you feel we 13 should be discussing before we move on? 14 MR. GAUDIO: Judge? 15 ALJ SHEDDEN: Yes. 16 MR. GAUDIO: It's John Gaudio. So I just want 17 to make sure that I'm understanding this correctly. The 18 dispute is about whether DWR needs to consider the 19 impacts on the rights of the -- of the BLM, and you're 20 saying that you'll make that determination after this 21 hearing is held, and you won't find it kind of necessary 22 to decide that before, you know, the hearing -- during 23 the hearing, in order to rule on whether the Department 24 evidence is relevant? 25 ALJ SHEDDEN: Well, kind of two parts to that.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 The first part, correct, if that is one of the -- and B 3 and C have -- essentially, issues B and C, as set forth 4 in the Notice of Hearing, are similar, I guess one could 5 say. But, right, it seems to me that at the end of the 6 hearing, I've got to issue a decision, and in the 7 simplest form, you know, reading B, whether ADWR 8 erroneously refused to consider impacts of the proposed 9 pumping on the flow of the San Pedro River. Yes or no? 10 Seems to be, you know, in a nutshell, I suspect I fell 11 short of my statutory duties if I limited it to that, 12 but yes, at the end of the hearing, that will be -- 13 those questions will be answered from my perspective. 14 As to the relevance, you know, I printed up -- 15 it's Arizona Rule 401. And, you know, knowing that they 16 modified the rules beforehand in form, not substance, I 17 went ahead and printed, for my own benefit, Arizona Rule 18 of Evidence 401 that covers relevance, and what it says 19 is evidence is relevant if, A, it has a tendency to make 20 a fact more or less probable than it would be without 21 the evidence, and B, the fact is of consequence in 22 determining the action. 23 So I don't see how I can understand whether 24 something is of consequence without looking at those 25 issues, and perhaps the underlying rules in statutes.



40

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So that's where the relevance comes in, in my view. 3 Perhaps the second part of your question is 4 potential confusion in what are facts of consequence to 5 this matter? To me, they've got to be tied to the 6 issues in the Notice of Hearing, absent an agreement of 7 the parties to change those issues. 8 Does that answer your question? 9 MR. GAUDIO: It does, but it just feels like a 10 purely legal question to me, whether -- on whether or 11 not DWR erred in not -- not considering the impacts. 12 I'm struggling with the kind of evidence that we would 13 be able to add. 14 ALJ SHEDDEN: Well, it may be that there's -- 15 BLM doesn't want to present any evidence on that, and 16 that would be fine by me. It can be handled as a legal 17 question. But the problem -- or problems, and I use 18 those words loosely, are this or these: One, 41-1092.07 19 probably indeed, I think I have the statute here, but I 20 will not pull it out. It says something to the effect 21 that all parties may present evidence and legal argument 22 on disputed issues. So in a statute that allows parties 23 to present evidence and legal argument, that makes it 24 difficult for me to say, No, I'm not going to let you 25 present evidence. This is purely a legal issue.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Coupled with that, again, back to the reality 3 that the director can reject my legal findings, so if I 4 rule -- and forget these issues for a minute, but if I 5 rule as a matter of law that -- on a dispositive issue, 6 then my decision moves over to the agency, and the 7 director says, I got it wrong, that director, she's left 8 without evidence in which to decide a matter and -- and 9 you're coming back here anyway. 10 So as a result of those two particular things, 11 there's a real aversion to what we would call piecemeal 12 litigation at the Office of Administrative Hearings, and 13 the better approach is to consider the legal issues at 14 the end of the hearing. And if parties feel that 15 there's no need to present evidence on a given point, 16 that it is purely legal, that's fine. We'll move along 17 more quickly. 18 Alternatively, I will say there have been times 19 that I've decided matters purely on stipulated facts, 20 but I need some facts if -- if even just when the 21 notices were issued, when -- when objections were filed, 22 these kind of things, and I don't think that's too 23 likely to happen here at this point. 24 So does that help clarify things? 25 MR. GAUDIO: Yes, it does.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: All right. Anything else? 3 Mr. Gaudio, anything else? 4 MR. GAUDIO: No. 5 ALJ SHEDDEN: Go ahead. 6 MR. McDEVITT: Your Honor, I was going to ask, 7 for example, if parties were to stipulate for issue B 8 that proposed pumping does or can have an effect on the 9 flow of a river adjacent or downstream from the pumping 10 site? Would that allow you to make a legal conclusion? 11 Would that, in your opinion, make other evidence 12 irrelevant? 13 ALJ SHEDDEN: Well, I don't know, and, you know, 14 here's the problem: If you stipulate to facts, I'm 15 going to take them. I'm not going to ignore stipulated 16 facts. 17 I -- it was a long time ago, but I remember 18 sitting in this room after getting a set of stipulated 19 facts on a matter and thinking, How does the appellant 20 possibly think they can prevail on these facts? But, 21 you know, that's what they went with; that's what I 22 take. If the -- and the point, I guess, another way to 23 look at it is, if that's a stipulated fact and one party 24 wants to present additional evidence, you know, I can 25 take that evidence in, subject to any objection to it.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 You know, you're not limited by stipulated 3 facts. The hope would be that -- that we would limit 4 the need for the examination of the witnesses, which can 5 take a long time, particularly when five people, and 6 six, if you include me, are going to get an opportunity 7 to question each witness. 8 Anything else? 9 MR. McDEVITT: No, Your Honor. 10 ALJ SHEDDEN: All right. Any other questions or 11 comments? 12 MR. SULLIVAN: Off this point, Your Honor -- 13 William Sullivan, on behalf of Pueblo Del Sol -- had 14 asked you a question about whether if we brought in a 15 flash drive with PDFs on it, so that we could do it in 16 order, whether that was possible to get it up on the 17 screen. I don't think you have an answer, but you said 18 we could take it on the record. So I just wanted to 19 make my question on the record. 20 ALJ SHEDDEN: Thank you. That was something 21 that came off the record. I guess the question I have 22 is it -- I -- I assume that if it's PDF, there's a PDF 23 reader on here, because we're looking at -- we will be 24 looking at PDF exhibits. I mean, that's what all of 25 these files on the exhibit list are.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 The question I would have is what is the purpose 3 of getting documents that haven't been provided as 4 exhibits to this point? 5 MR. SULLIVAN: No, they would be exhibits. It 6 would be just so that we don't have to flip through, and 7 they would already be in order, and we wouldn't have to 8 flip them, you know, as we're going through it. It 9 would just be easier to present; that's all. 10 ALJ SHEDDEN: Oh, yeah. I -- you know, the 11 concern I have is you, in theory, all filed 12 certifications when you filed your exhibits saying that 13 these -- that we're going to look at the electronic 14 ones, to the best of your knowledge or some such thing, 15 are identical to the paper ones that were filed. And 16 the same doesn't hold true with the PDF, and if it 17 wasn't crystal clear, and, you know, this is good 18 timing, perhaps, because -- but Case Management Order 19 Number 1 set out the idea that those paper exhibits are 20 an official record. And that's why we need the 21 certification. 22 The Superior Court doesn't favor the electronic 23 exhibits for some reason, that it doesn't concern me, 24 and so that's why we need to get one copy on paper from 25 everybody and the certification, because now we've



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 got -- we've met our obligation at the office to have a 3 file that we can send over to the Superior Court. 4 I'm sure you all agree we hope we don't end up 5 there, but every case we need to assume will be going 6 there, and so that's the approach. So my preference 7 would be that we just go ahead and use the ones that 8 have been put up in that regard anyway. 9 MR. SULLIVAN: I think we can do that, 10 Your Honor. 11 ALJ SHEDDEN: All right. Yeah. 12 MR. GAUDIO: Judge, one other thing. I missed 13 the prehearing conference, I apologize for that -- this 14 may have been discussed -- but I don't have real strong 15 feelings, but it seems maybe to make some sense that 16 Pueblo Del Sol follow DWR and then the appellants go, 17 since their interests are aligned, rather than bounce 18 from one side of the case, back and then back again. 19 ALJ SHEDDEN: Yeah. I'm going to do the -- the 20 problem with that approach is that the appellants bear 21 the burden of proof in the matter, and it may well be 22 that Pueblo Del Sol will decide not to present any 23 evidence after hearing the appellants' case. 24 What you did miss at the prehearing conference 25 was Ms. Ronald suggesting or objecting to having DWR go



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 first and -- and wanting to have the appellants present 3 their evidence first. And I set this order, because, 4 again, it's fairly typical of the way we do things, 5 hopefully to help narrow the issues by having the agency 6 present its evidence. 7 I mean, we do have the prehearing brief and 8 understanding of what they did and why, but I don't have 9 any evidence yet. And so the idea would be to help 10 narrow the scope of things. If there's a matter that's 11 not in dispute, the appellants don't need to go forward 12 that way. It's not necessarily as convenient when we've 13 got five separate parties, but absent some compelling 14 desire on Pueblo Del Sol's part to go after DWR and to 15 stick with the order that was set forth at the 16 prehearing conference. So you can consider that on the 17 break, if you'd like, or perhaps discuss it among 18 yourselves, and if we need to address it, we will. 19 All right. Here's what I'm doing to do. For 20 reasons that still escape me, when they painted our 21 hearing rooms, they decided not to put the clocks back 22 in. But because we have the computer going, we can use 23 computer time. What I'm going to do is suggest we take 24 about a 15-minute break to let you begin your 25 discussions, to let folks have a break as well. I'll



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 pop my head back in here at about 20 minutes after. If 3 you want more time, if the parties are in general 4 agreement that there's a benefit to continuing 5 discussions, from my perspective, you could have more 6 time. If it's clear to the parties that that's not 7 going to be a good use of time, then we'll just move 8 forward. 9 I didn't mention it, but I will let parties make 10 a brief opening statement, if they would care to do so. 11 It's not necessary. And for those who don't know, the 12 opening statements are not considered evidence, but a 13 good way to put it would be a preview or a road map, if 14 you will, of what you think the evidence will show. 15 The other thing, understanding that although I'm 16 calling it a break, if you're consulting among 17 yourselves, it's not really a break for the parties 18 concerned. If you need a little extra time before we 19 get on the record to -- to truly have a break, again, 20 just let me know when I come back, and we'll settle on 21 what time we're going to pick things back up. 22 With that, I'll see you in about 15 minutes. 23 (Recess taken.) 24 ALJ SHEDDEN: All right. We're back on the 25 record. The parties have engaged in an extended



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 discussion off the record. And let me just ask, are we 3 set to put any stipulations on the record or where do we 4 stand? 5 MR. McDEVITT: Your Honor, this is David 6 McDevitt on behalf of Ms. Gerrodette. We believe that 7 the parties are willing to stipulate, though we did not 8 entirely stipulate some -- so I'm opening this up for 9 objection, that ADWR did not -- 10 MR. SULLIVAN: I'll object. We didn't -- 11 ALJ SHEDDEN: Well -- 12 MR. SULLIVAN: We didn't stipulate to anything, 13 Your Honor. And where we agreed to continue discussions 14 throughout this hearing to see if we could reach a 15 stipulation, then I would oppose any reading of a draft 16 stipulation that we did not agree to. 17 ALJ SHEDDEN: All right. And given if there's 18 no stipulation again, probably better served to keep any 19 partial stipulations or information off the record. So 20 with that, let me just ask, Do you want to add anything 21 else, Mr. McDevitt? 22 MR. McDEVITT: No, Your Honor. 23 ALJ SHEDDEN: All right. Then let me just ask, 24 we're set then to just move forward with opening 25 statements, I take it?



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 MR. GAUDIO: Yes, Your Honor. 3 DR. SILVER: May I ask a question? 4 ALJ SHEDDEN: Yeah. 5 DR. SILVER: So -- and this goes back to our 6 initial discussion. If -- if we all agree that ADWR 7 just didn't consider the federal -- the federal water 8 rights, they said that -- they said they can't, and we 9 think they can, but the bottom line is they didn't do 10 it. So now, since the first witness is going to be 11 testimony on how they didn't consider it, what -- I 12 don't understand what the purpose is of having someone 13 come up here now, and what is he going to say -- 14 ALJ SHEDDEN: Well -- 15 DR. SILVER: -- of how they went through the 16 process? We don't -- it's -- it's irrelevant to the 17 ultimate decision is should they consider or not 18 consider the federal water rights? 19 ALJ SHEDDEN: Well, I don't know what the 20 witness is going to testify to either. And that's why 21 we're going to call him up here and hear from every 22 witness. Again, I can tell you that to me these do tend 23 to look like primarily issues of law. There's room for 24 uncertainty or ambiguity on some of that, I guess. But 25 again, going back to the statute 41-1092.07 that says,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 All parties are entitled to present evidence and legal 3 argument on the issues, that's what we're here for, to 4 have a hearing and do that. If nobody wants to present 5 any evidence on a given issue and wants to -- and 6 everyone wants to present legal argument on it, that's 7 fine. But I would think that, you know, at a minimum, 8 the fact would come in that DWR's witness would confirm 9 that they did or didn't consider certain things, and 10 it's not beyond the realm of possibility that any of the 11 parties' witnesses may have a slightly different take on 12 things than the parties or their attorneys do. 13 So the bottom line is I don't know what the 14 evidence is going to be. I don't know what DWR's 15 witnesses or anyone else are going to testify to. I 16 have the brief summaries that the parties filed, but 17 it's been a while since I looked at those, so that's how 18 we're going to go forward. 19 All right. If there's nothing else, I can turn 20 to the parties for opening statements. You're not 21 required to make one. But just to make sure we don't 22 forgo the opportunity for that, I'm going to turn to DWR 23 first. Ms. Ronald, an opening statement, if you'd care 24 to make one. 25 MS. RONALD: Thank you, Your Honor.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 We filed a prehearing legal memorandum, which 3 sets forth our theory of this case. And in that 4 memorandum we described the fact that by statute and 5 rule the Department of Water Resources must consider 6 certain criteria when determining whether to grant or 7 deny an application for an adequate water supply 8 designation. And in this case the Department did that, 9 and the statutes and rules that apply to that process 10 are set forth in the legal memorandum that ADWR provided 11 prior to this hearing. 12 In the rules, there are basically five criteria 13 or five sets of criteria that need to be complied with. 14 One deals with physical availability, one deals with 15 continuous availability, a third is legal availability, 16 a fourth is financial capability, and a fifth is 17 water -- the source of the water must be of an adequate 18 water quality for the intended use. 19 In this proceeding, it's our position that none 20 of the parties, none of the appellants challenged the 21 financial capability of the appellant or the water 22 quality determination that was made by ADWR, as provided 23 by rule. 24 It's also ADWR's position that Pueblo Del Sol, 25 the applicant in this matter, complied with the three



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 rules dealing with physical availability, continuous 3 availability, and legal availability. And that none of 4 the appellants, in our view, challenged the criteria and 5 its application to the PDS application. 6 Instead, the appellants assert that there is a 7 lack of physical, continuous, and legal availability, 8 because of potential impacts on the San Pedro River 9 and/or the San Pedro Riparian National Conservation 10 Area, also known as SPRNCA. By rule, as we set forth in 11 our legal memorandum, we do not and did not have the 12 authority to consider any potential impacts from the PDS 13 groundwater pumping on the surface flows of the 14 San Pedro River or SPRNCA. 15 In addition -- and we cited some case law, 16 Your Honor, I believe at page 11 of our brief -- that 17 deals with the jurisdiction of the Superior Court for 18 the Gila River Adjudication, to deal with federal 19 reserved water right claims that have been filed for 20 SPRNCA, and that's what's at the heart of the BLM 21 objection and notice of appeal. 22 As indicated in a case that's cited on page 11 23 of our memorandum, the Yavapai Apache Nation case, the 24 Gila River Adjudication court has exclusive jurisdiction 25 over those water -- those water right claims. These



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 claims have not yet been adjudicated. So even if ADWR 3 did have jurisdiction to examine them, there would be no 4 way to determine what any of the possible adverse 5 impacts would be from PDS's proposed groundwater 6 pumping. 7 And there's a case that the appellants rely on 8 that we do not believe is helpful. It's the Cappaert 9 decision, and the important part of that decision -- in 10 that case groundwater pumping was curtailed because of 11 impacts on the federal reserved water right. In that 12 case, however, the federal reserved water right had 13 already been quantified, and the limitations on pumping 14 that the court imposed had to be tailored to meet the 15 minimum needs of the reservation. Because we don't know 16 what the minimum needs of the federal reservation for 17 SPRNCA are, it's impossible to determine whether there 18 should be any limitations on pumping. 19 And, more importantly, all of those decisions 20 should be made by the Gila River Adjudication court, not 21 by DWR as part of an administrative process on an 22 application for a determination of adequate water supply 23 designation. 24 I think it's important to point out that ADWR is 25 an administrative agency, and it is required to follow



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 its own rules and regulations, and to do otherwise would 3 be unlawful. That statement is quoted in the AMWA 4 (phonetic) case that is cited at page 2 of DWR's 5 response to the Gerrodette motion to vacate. 6 Also in that case the court appropriately points 7 out that an agency's interpretation of its own 8 regulations is entitled to great weight. 9 The SPRNCA claims have not been adjudicated, and 10 so potential impacts on federal reserved water rights 11 are not proper grounds for a notice of appeal under 12 41-1092.03, subpart (b). And that is argued again in 13 the ADWR response at pages 7 to 8. 14 This is really an easy case, in our view. We 15 have a statute that we're supposed to follow. We have 16 rules that we're supposed to follow. And in fact, to do 17 otherwise would be unlawful. We followed those rules. 18 Nobody, none of the appellants claim that we 19 inappropriately applied the criteria that are set forth 20 in the rules. Instead they make other arguments about 21 what ADWR should have considered outside of its rules. 22 We do not believe that that provides any basis 23 for the relief that the appellants are seeking, and it 24 was proper for ADWR to grant the application as a draft 25 decision and order for consideration by any objectors



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 who chose to file a notice of appeal. We believe that 3 the draft decision and order should be upheld, and that 4 the accompanying cover letter, with the draft decision 5 and order, outlines the Department's reasons for 6 rejecting the claims that were asserted by the 7 appellants, and that that reasoning should be upheld as 8 well. 9 ALJ SHEDDEN: All right. Anything else? 10 MS. RONALD: Not at this time. 11 ALJ SHEDDEN: Okay. Why don't I go to you, 12 Mr. Sullivan, if you would care to make an opening 13 statement? 14 MR. SULLIVAN: Thank you, Your Honor. 15 And I'll try not to duplicate too much of the 16 Department's statement, because I think she hit it on 17 the -- the nail on the head, and this is a fairly 18 simple, straightforward case. 19 The evidence will show -- the Department will 20 put on the administrative record and show that it did 21 follow the rules which implement the statute, the 22 statute which was passed after the rules were in 23 existence. 24 In other words, the legislature knew full well 25 what the rules were when they enacted that language.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 They could have changed or ordered DWR to change the 3 law. They did not do so on these criteria. And I think 4 that's pretty important in the long run, because the 5 legislature has adopted a statute with the rules in 6 place. 7 The Department will go through, I believe, and 8 show what it did when it received an application from 9 Pueblo Del Sol. Pueblo Del Sol's witness will explain 10 what was involved in preparing that application and the 11 model that supported it. We'll -- the two entities will 12 show that the application, as reviewed by the 13 Department, confirmed that all the rules and regulations 14 that define what an adequate water supply is for -- and 15 entitles a designation for a water company, were, in 16 fact, met. 17 What you have are some appellants who want to 18 change the process. They want to rewrite the rules. 19 This is not the proceeding to rewrite the rules. There 20 are other processes to do it. 21 You'll have at least one appellant, BLM, who 22 wants the Department to consider what its currently 23 unquantified claim to a federal reserved water right 24 might be, and to consider that in this application. 25 Just -- just thinking about that out loud shows --



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 should indicate how silly that request is. It's 3 unquantified. And if the Department were to try to take 4 that on, what would they be looking at? How would PDS 5 be required to quantify it for BLM? The place that will 6 be quantified, if it's quantified at all, is in the 7 general adjudication. The place where the BLM will have 8 any opportunity it may have -- want to enforce its 9 rights is in the general adjudication. 10 This is not that proceeding. This proceeding is 11 simply a determination of whether the rules, as applied, 12 have been met, because the rules require that when they 13 are met, the director shall issue the designation. And 14 the evidence will clearly show that PDS did, in fact, 15 comply with and satisfy those rules. 16 There appears to be a lot of desire on the part 17 of the appellants to submit a lot of redundant and 18 irrelevant evidence related to regional impacts of 19 groundwater on stream flows, both in the San Pedro and 20 elsewhere. I don't think we need to try to resolve all 21 the technical issues that are involved in many of those 22 reports, because that's not the issue before you. The 23 issue before you is whether PDS satisfied the criteria 24 for an adequate -- designation of adequate water supply, 25 which it has done.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 There has been no other model presented -- there 3 has been no other testimony presented so far, and I 4 don't think there will be, as to what the impact of the 5 Pueblo Del Sol pumping will be. They have presented no 6 new evidence related to that. They haven't criticized 7 the model that PDS relied upon and the Department relied 8 upon. It clearly shows that the depth groundwater after 9 100 years -- the depth of groundwater after 100 years 10 will be well within the statutory limits, as defined by 11 the Department. 12 The presumption in Arizona is that if you are 13 pumping from beneath the surface, you are pumping 14 groundwater. The Department -- the BLM argues that, 15 well, they may have a right at some point in time to 16 halt that pumping. It's a long ways away, and I believe 17 the evidence will show that if they were to try to 18 enforce their right, PDS is one of the last people that 19 they would go against because there are a lot of 20 additional wells well before that have much more impact 21 on the river. 22 Bottom line is, PDS filed an appropriate 23 application. The Department of Water Resources followed 24 its rules and regulations and determined that it was 25 complete, and that it -- a designation should be issued,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 and the opinion and order properly makes that finding. 3 It should be upheld for those reasons. 4 ALJ SHEDDEN: All right. Mr. Gaudio? 5 MR. GAUDIO: Thanks, Judge. 6 As I mentioned earlier, BLM is here for, you 7 know, a very simple, simple reason. It's to object to 8 DWR granting the 100-year adequate water supply 9 determination to Pueblo Del Sol, without having first 10 considered the possible impacts on BLM's federal 11 reserved water rights in the San Pedro River Basin. 12 Congress expressly created these federal 13 reserved water rights for the purpose of protecting the 14 SPRNCA, effective upon its creation in 1988. And except 15 for the proceeding in the Gila River General Stream 16 Adjudication, the SPRNCA-contested case, is in the 17 process of confirming these rights and will do so 18 certainly within the next hundred years. 19 DWR and Pueblo Del Sol argue, based on an 20 applicable adequate water supply regulation, that DWR is 21 not authorized to consider such impacts, and so such 22 impacts are irrelevant, despite what applicable federal 23 and state law require. 24 So I agree this is a simple case, but to declare 25 it's not about what DWR Adequate Water Supply rules say,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 but what DWR must require. And it's important when an 3 applicant's proposed pumping is a water that's 4 hydrologically connected to water that is the basis of 5 an express federal reserved water right, as is the case 6 here. 7 Now, despite what DWR claims, it's not confined 8 to can't we apply the Adequate Water Supply rule that 9 DWR itself wrote. But instead, DWR and this body, in 10 this very unique case involving federal reserved water 11 rights, must consider other legal -- other sources of 12 legal authority, as well. And that is the Arizona 13 statute requiring "legal availability," applicable 14 federal case law and Arizona case law. 15 The applicable statute is A.R.S. § 45-108(i), 16 which provides adequate water supply, meaning sufficient 17 groundwater will be continuously, legally, and 18 physically available, to satisfy the water needs of the 19 proposed use for at least 100 years. 20 However, based on this pretty plain statutory 21 language, Administrative Code R12-15-718 A and C, read 22 together, provide only, in relevant part, quote: The 23 director shall determine that an applicant will have 24 sufficient supplies of water that will be legally 25 available for at least 100 years, if the applicant



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 submits evidence that the applicant has a certificate of 3 convenience and necessity approved by the ACC, 4 authorizing the applicant to serve the proposed use. 5 Apparently DWR interpreted the statutory 6 language to mean only that an applicant must be legally 7 authorized to pump the groundwater well, which is very 8 different from the clear meaning of the statutory 9 language, I believe, which specifies that instead the 10 groundwater itself must be legally available to pump it. 11 So what must it mean for the groundwater to be 12 legally available in this case? The analysis is 13 governed by the fact that when Congress created the 14 SPRNCA in 1988 to protect one of the best remaining 15 examples of a riparian habitat in the extremely arid 16 American Southwest, it expressly reserved to the U.S., 17 all unappropriated water necessary to support the 18 purpose of the reservation. 19 And when the U.S. holds such federal reserved 20 water rights, the Arizona Supreme Court itself, 21 following an important earlier U.S. Supreme Court 22 decision, has held that these rights are protected from 23 junior groundwater pumping. And Cappaert, in 1976, the 24 U.S. Supreme Court held, quote: Federal water rights 25 are not dependent upon state law or state procedure.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And quote: The United States can protect its water from 3 subsequent diversion, whether the diversion is of 4 surface or groundwater. And then in Gila -- in the Gila 5 River III, which was the result of an interlocutory 6 review of issues raised in the Gila General Stream 7 Adjudication in 1999, the Arizona Supreme Court 8 concurred with these established federal reserved water 9 right principles and clarified that, quote: Owners of 10 federal reserve rights enjoyed greater protection from 11 groundwater pumping than do holders of state law rights, 12 to the extent that greater protection may be necessary 13 to maintain sufficient water to accomplish the purpose 14 of the reservation. And quote: We may not defer to 15 state law, where to do so would defeat federal water 16 rights. And finally, quote: We do not underestimate 17 the burden that the State of Arizona will face in 18 accommodating federal reserved water rights within its 19 water resource management. 20 And importantly, the Arizona Supreme Court held 21 further that these federal reserved water rights, this 22 doctrine, applies to federal reserved groundwater as 23 well as surface water. 24 Now, the DWR's actions in this case are 25 inconsistent with these holdings, we believe.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Pueblo Del Sol and DWR have argued that even if DWR were 3 authorized to consider impacts on BLM's federal reserved 4 water rights, because the water rights are only, quote, 5 a claim, none of this law applies. But Congress clearly 6 reserved the right, the Gila General Stream Adjudication 7 has recognized the existence of the right, and DWR 8 issued a report in the Gila General Stream Adjudication 9 finding nothing unreasonable about BLM's quantification 10 of the right provided in this claim. 11 Given these facts and considering that the U.S. 12 did not have the federal reserved right recorded in 13 Cappaert, as I understand it, rather than DWR assuming 14 that the water to be pumped is legally available, unless 15 BLM has a finalized decreed federal reserved water right 16 in hand, DWR must at least consider whether at some time 17 over the next 100 years Pueblo Del Sol's proposed 18 pumping could impact BLM's already vested, though not 19 today finally decreed, federal reserved water right. 20 Importantly, DWR's determination includes an 21 escape provision, which means pursuant to AAC 22 R12-15-715, the director may, at any time, revoke this 23 designation if the findings of fact or the conclusions 24 of law upon which the designations in the case change or 25 are invalid, or if an adequate water supply no longer



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 exists. So this language and regulation apparently 3 would allow ADWR to revoke this adequate water supply 4 determination after BLM has a finalized decree in the 5 Gila General Stream Adjudication. 6 So we believe that the sounder, more efficient 7 approach here would be to await the outcome of the 8 general stream adjudication, expected to be in the next 9 year or two, before issuing the adequate water supply 10 determination. This approach would prevent 11 Pueblo Del Sol and others from relying on a designation 12 that's destined to be revoked, makes no sense. 13 So what does BLM need to show to convince 14 everyone that this law does apply in this case? Very 15 simply, BLM needs to show how and the degree to which 16 the groundwater is connected to the surface water and 17 underground water in the San Pedro River Basin, which 18 BLM's federal reserved water rights depend on, and 19 therefore, that Pueblo Del Sol's proposed pumping could 20 cause harm to BLM's rights. 21 And BLM is going to do this by calling two 22 employees of the Department of Interior as witnesses. 23 First will be Dr. James Leenhouts, who is a hydrologist 24 and associate director of the United States Geological 25 Surveys, Arizona Water Science Center, in Tucson,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Arizona. He'll provide a general overview of 3 groundwater geology and how groundwater interacts with 4 surface water, and explain the specific connection 5 between the groundwater and the surface water in the 6 San Pedro River Basin itself, and how pumping in the 7 basin, including Pueblo Del Sol's proposed pumping, will 8 eventually impact San Pedro River Basin water that BLM's 9 rights depend on. 10 After Mr. Leenhouts, we'll call Bill Wells, a 11 hydrologist and federal water rights specialist in BLM's 12 Arizona state office in Phoenix, to describe the BLM 13 rights that are like -- that likely will be impacted by 14 Pueblo Del Sol's proposed pumping, as well as to discuss 15 the proceedings in the Gila General Stream Adjudication 16 that are related to BLM's federal reserved water rights. 17 The Department of Water Resources at 18 Pueblo Del Sol insist in this case that DWR has no 19 authority to consider the impacts that Pueblo Del Sol's 20 pumping on BLM -- impacts from Pueblo Del Sol's pumping 21 on BLM's federal reserved water rights. But 22 A.R.S. 45-108(i), Cappaert and Gila River III require 23 DWR to do just that, we believe. 24 And after hearing our case, we all understand 25 the connection between the groundwater and the water



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 that supports BLM's federal reserved water rights in the 3 San Pedro Basin. BLM hopes that you will recommend to 4 DWR that it consider -- reconsider its adequate water 5 supply determination to Pueblo, after taking into 6 account the likely impacts from Pueblo Del Sol's 7 proposed pumping over the next 100 years, on both the 8 groundwater and surface water that BLM's SPRNCA federal 9 reserved water rights depend on. 10 Thank you, Judge. 11 ALJ SHEDDEN: All right. Go ahead. 12 MR. McDEVITT: May it please Your Honor, I'm 13 David McDevitt, certified limited practice student, 14 representing Ms. Gerrodette -- Ms. Patricia Gerrodette. 15 Our client asks, Your Honor, to recommend that 16 DWR not grant the designation unless and until it has 17 found that groundwater will be legally available for at 18 least 100 years. DWR has made no such finding and asks 19 Your Honor to go against the Supreme Court's decision in 20 Gila River III, wherein the court held that Arizona's 21 water resource management may not ignore the impact of 22 groundwater pumping on federal reserved water rights. 23 DWR raises Yavapai as an example to the court 24 where water resource management and general stream 25 adjudication are separate and distinct in order to argue



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 that only the general stream adjudication has the 3 jurisdiction to make a decision about these claims. 4 The appellant, Ms. Gerrodette, does not dispute 5 that this is not the proceeding in which to grant a 6 vested final right. My client only argues that it must 7 be taken into consideration. 8 In Gila River III, the Supreme Court very 9 clearly makes both the distinction that there will be an 10 effect on the general stream adjudication as a result of 11 this ruling, which held specifically that groundwater 12 pumping may be averted by those who hold federal 13 reserved rights. And in addition, there will be an 14 effect on the water resource management process. And 15 the court acknowledges that this will be burdensome, and 16 that this will flip Arizona water law on its head, but 17 it made that holding because it is the sensible 18 decision. 19 The purpose of the designation of adequate water 20 supply is to let prospective buyers know whether a home 21 has a stable and reliable source of water. DWR's own 22 website states that it acts as a consumer advisory 23 program, ensuring that potential real estate buyers are 24 informed about any water supply limitations. Here we 25 actually know about a water supply limitation, and DWR



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 would like to, in the face of information to the 3 contrary, grant the designation anyway. Ignoring legal 4 realities and mechanically applying regulations vitiates 5 the purpose of this legislation. It not only diminishes 6 the significance of a designation, but it leaves 7 consumers worse off than if they'd been given no 8 assurances at all. That DWR may revoke the designation 9 in the future does nothing for home buyers who 10 detrimentally rely on the false designation in the 11 meantime. 12 The parties point out that there's an immunity 13 clause to argue that the State of Arizona cannot be held 14 liable for putting its seal on false designation. 15 Now, whether courts will uphold this clause has 16 yet to be seen, but Your Honor should take no comfort in 17 the argument that consumers will simply be without 18 relief upon warning of their substantially diminished 19 property values. 20 Pueblo Del Sol argues that DWR is without 21 statutory authority to consider the impacts of pumping 22 on the surface flows or reserve rights. This is simply 23 not true. The statute calls for a legal assessment. 24 Gila River III calls for a legal assessment based on 25 these factors.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 While DWR's regulations do not address these 3 considerations, that is an argument for revising the 4 regulatory framework, if not an excuse for DWR to ignore 5 its own legislative mandate. 6 Our client asks Your Honor to recommend that DWR 7 not grant a false designation. DWR should reevaluate 8 the application and make a factual assessment regarding 9 what impact, if any, the proposed pumping will have on 10 the federal conservation area. If there will be no 11 impact, this issue is moot. But without an assessment, 12 the decision cannot be sustained. 13 In the alternative, DWR should deny the 14 application if it cannot find that groundwater will be 15 legally available for at least 100 years, based on 16 current legal statutes and case law. 17 Thank you very much. 18 ALJ SHEDDEN: All right. Dr. Silver? 19 DR. SILVER: Yes. ADWR used to evaluate these 20 situations fairly. They used to look at a situation 21 like this and say, Wow, we don't know what's going to 22 happen. We sort of know what's going to happen in 23 adjudication, because we're dealing with a basin that's 24 overallocated, where ADWR has permitted too many wells, 25 has permitted too many developers to pump water. We



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 know what's going to happen. But what they used to do 3 is they used to say, you know, We don't know what's 4 going to happen, even though we do, and so we're going 5 to say that your certificate is going to read inadequate 6 until we know. 7 Now, what they say is, Your certificate says 8 adequate because we -- and I can't wink for everybody -- 9 because we're not sure what's going to happen. Now, how 10 do they do that? They say that we have no choice. 11 Well, Congress said that Arizona does have a 12 choice. In fact, it's not a choice; you have no choice. 13 And that is that you have to recognize federal reserved 14 water rights. Cappaert was the case on point. Now, I 15 spent -- I'm not a lawyer, but I've spent a lot of time 16 talking to the lawyers and the witnesses in Cappaert. 17 There was a mark on the wall. None of the folks that I 18 talked to could provide me with the evidence of a 19 quantification, and they said, You can't -- it was a 20 basin pump so that this mark on the wall gets violated. 21 Please, if I'm wrong, because I'll ask your witness the 22 same thing, provide the evidence that Cappaert was 23 quantified and therefore it's not applicable. 24 And then we came to Gila III. These folks are in the 25 middle of this massive adjudication that seems like it's



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 never ending, we hope it will, and they recognize that 3 Congress said federal water rights count. And not only 4 did they say in recognizing they count, they recognize 5 that when the surface rights are provided for by 6 groundwater, then that extends to groundwater. 7 We tried to stipulate here that there's a 8 connection between groundwater and surface water, and, 9 you know, a good degree of it, you know, lawyerly or 10 social level, but it is connected. There's no 11 difference in this basin between the groundwater and the 12 surface water. 13 And while I think that folks have mentioned to 14 the numbers, you, as the judge, will have to look 15 through here and see that even in the state statutes 16 that exist, they ask that when the groundwater really is 17 surface water, that you show some proof that you have 18 access to the surface water. They don't have access to 19 the surface water because it's not legally theirs. 20 Now, how do we end up resolving this? I would 21 say, please, at some point, if we can't stipulate that 22 there's a connection, you can acknowledge it and you can 23 cite PDS's own procedures, if you need to have something 24 to cite. You can cite ADWR's publications about that 25 there's a connection. You can be very consistent with



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Gila III, because in that they did have a qualifier and 3 they said, Well, you really shouldn't look beyond 4 surface water rights, unless there's not enough surface 5 water. And you can look, and you can look at ADWR's 6 numbers, you could look at the USGS numbers, and in this 7 basin, you can see that before there's any pumping right 8 now, the natural recharge, going -- what goes in is 9 equaling what's going on. That's before we start. 10 That's even before we have ADWR issuing their exempt 11 wells that an additional 4,680 just since Congress 12 designated that the -- the federal water rights, and to 13 developers, they added another 14,769 acre-feet. You 14 know, the summary is that we're about 20,000 acre-feet 15 already overallocated just based on what ADWR is 16 permitted by pretending that they can't do anything. 17 Now, when I look around the room -- and I have 18 to say that I don't see anybody else as old as me in 19 here, but I'm an Arizona native, and I grew up here. 20 And there was a fellow that was -- that was pretty 21 infamous when I was a kid. His name is Ned Warren. I 22 don't -- you -- I'm sorry, Judge, but you're not even 23 old enough to know who he was. But we got the Arizona 24 consumer fraud law because this fellow was selling land 25 to people that didn't have water. When someone looks at



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 buying property in the Sierra Vista area, they don't 3 need to be sitting there and be not sure what the fine 4 print says. It's very clear. There's an inadequate 5 supply of water from a very specific date, and that date 6 at this point, without any argument, is November 18, 7 1988. That's when the San Pedro got its water rights, 8 and ultimately, that's what an adjudication court is 9 going to say. 10 We're not asking you to quantify the water that 11 is that federal reserved water rights, but you can 12 certainly see that we're overallocated, that it's 13 unfair, and that ADWR issues a certification that 14 there's adequacy when there's not. You can do that. 15 Thanks. 16 ALJ SHEDDEN: All right. We will go to DWR 17 then. Who will be the first witness? 18 MS. RONALD: We call Andrew Craddock. 19 ALJ SHEDDEN: Come on up and have a seat over 20 here. 21 DR. SILVER: You all right? 22 MALE SPEAKER: Yeah. My heel just -- right when 23 I got up (indiscernible). 24 DR. SILVER: If we have to call one doctor in 25 the room, then --



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 MALE SPEAKER: Yeah. 3 DR. SILVER: One M.D., I guess. 4 (Indiscernible). 5 ALJ SHEDDEN: I'm going to get you sworn in, so 6 if you'd raise your right hand. 7 (Whereupon, Andrew Craddock was sworn by 8 ALJ Shedden.) 9 ALJ SHEDDEN: All right. Go ahead and state and 10 spell your name for the record, as a formality, please. 11 MR. CRADDOCK: My name is Andrew Craddock, and 12 that's spelled A-N-D-R-E-W, the last name is 13 C-R-A-D-D-O-C-K. 14 ALJ SHEDDEN: All right. I'm going to turn it 15 over to Ms. Ronald. 16 I'll let you know, of course, our sight lines 17 with all the computer monitors can be off a little bit 18 at times. So if you need them to scoot around, just let 19 the witness know, and we'll do our best to adapt. But 20 whenever you're ready, go ahead. 21 MS. RONALD: Thank you, Your Honor. 22 23 24 25



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ANDREW CRADDOCK, 3 a witness herein, having been first duly sworn, was 4 examined and testified as follows: 5 6 DIRECT EXAMINATION 7 BY MS. RONALD: 8 Q. What's your educational background, 9 Mr. Craddock? 10 A. My educational background: I have a bachelor in 11 science from Northern Arizona University, where I 12 majored in geography, with a minor in geology. And I 13 also did graduate course at New Mexico State University, 14 in Las Cruces, New Mexico. 15 Q. When did you graduate? 16 A. From Northern Arizona University was 1999. 17 Q. And when did you complete your post-graduate 18 coursework? 19 A. I completed my coursework in December of 2003. 20 Q. Are you currently employed? 21 A. Yes, I am currently employed. 22 Q. By whom? 23 A. The Arizona Department of Water Resources. 24 Q. How long have you worked for DWR? 25 A. I was first hired by the Department in the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 summer of 2005, so about seven and a half years. 3 Q. And what is your current position? 4 A. Currently, I'm the manager of the Recharge and 5 Assured and Adequate Supply Programs at the Department. 6 Q. What were your duties and responsibilities prior 7 to your current position? 8 A. Like I said, when I was first hired in 2005 by 9 the Department, I began learning general procedures, 10 basically the intake of annual reports, the review of 11 those annual reports, and data entry. And then as I 12 progressed throughout the Department, I had -- my focus 13 was on the Department's compliance program, and I had 14 increasing responsibilities under the compliance 15 program, up to -- I think the final position was the 16 compliance coordinator for the Department, was the last 17 previous station I had prior to this current job I have. 18 Q. And again, when did you start in your current 19 position? 20 A. In my position as manager of the Recharge and 21 Assured and Adequate Water Supply Programs was August of 22 last year, or August of 2011. 23 Q. What are the duties and responsibilities that 24 you have in that position? 25 A. My responsibilities in my current position, we



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have a staff of seven people. We, you know, review the 3 intake of applications for both the Recharge and Assured 4 and Adequate Programs, the review of those applications. 5 We have staff meetings that discuss any issues we have 6 concerning the applications. And then so kind of a 7 day-to-day activities, making sure we're meeting our 8 licensing time frames that are associated with those 9 applications that are filed with the Department. And 10 then kind of outside of that program, manager 11 responsibility, I also coordinate with other programs 12 and divisions within the Department on water management 13 issues that affect, not only my program, but other 14 programs that we have at the Department. 15 Q. So you're a department manager then for the 16 Adequacy Program within the Department? 17 A. Yes. It's both the Assured and Adequate 18 Program. I'm the manager for both programs. 19 Q. And are you familiar with the statutes and rules 20 that relate to that program? 21 A. To the Adequacy Program? 22 Q. Yes, to the Adequacy Program. 23 A. Yes. I'm familiar with those rules and 24 statutes. 25 Q. And do you have any idea how the rules were



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 adopted for the Adequacy Program? 3 A. I mean, outside of the general context of 4 that -- how rules were created and they go to the 5 governor's regulatory review council, outside of that 6 thing, I haven't been involved in the rule-making 7 process, but that's my general understanding that 8 there's a -- you know, there's a formal process that has 9 public input, and there can be stakeholder process for 10 some of the stuff we do. That's my kind of general 11 understanding as far as, you know, how the statutes and 12 rules could be created or discussed. 13 Q. What rules apply to -- if you know off the top 14 of your head, that -- that apply to the Adequacy 15 Program? 16 A. To the Adequacy Program, as far as statutory 17 citations, we review Arizona Revised Statute 45-108 and 18 45-108.01, are the two statutory references. And then 19 as far as the Administrative Code Rules, we look at 20 Rule 1215-714 through 720, and those are particular to 21 the Adequacy Program and discuss physical, legal, 22 continual availability -- continuous availability in 23 those rules. 24 Q. As you look at the statutes for 108 and 108.01, 25 and in the code there are pre- and post-October 2011



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 versions of that statute; is that correct? 3 A. Yeah. In the code there are two statutes for 4 both, 108 and 108.01, with different effective dates 5 when the revisions to both of those statutes occur. 6 Q. And basically what do the revisions deal with? 7 A. The revisions have what I would call basically a 8 statutory cross-reference amendment to them that relates 9 to county adoption, what we call mandatory adequacy 10 jurisdictions. There was a change in the county 11 process, and those revised statutes of 108 and 108.01 12 reflect that change. 13 Q. Under the statutes and rules, what criteria does 14 an application for designation of an adequate water 15 supply need to satisfy? 16 A. In this particular case, the Pueblo Del Sol 17 case, we look at -- there's five criteria the Department 18 looks at, and that's the physical, legal, and continuous 19 availability of the water supply for a hundred years, 20 also that the water supply is of adequate quality, and 21 that the applicant has the financial capability to 22 construct the necessary infrastructure, and things like 23 delivery works, storage, pumping capacity, that sort of 24 thing. 25 Q. Did you indicate that you were also the program



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 manager for the Assured Water Supply Program? 3 A. Yeah. I have the Recharge and the Assured and 4 Adequate Programs are all under my supervision. That's 5 correct. 6 Q. And what's the basic difference between the 7 Adequacy Program and the Assured Water Supply Program, 8 in terms of the criteria that need to be satisfied? 9 A. In terms of the basic five criteria that I 10 identified, for the Assured and Adequate Water Supply 11 Program, the Adequate Water Supply Program, in the case 12 of Pueblo Del Sol's application, are applicable to areas 13 in Arizona outside of specially designated Active 14 Management Areas. Locations within the Active 15 Management Areas, the Assured Water Supply statutes and 16 rules are applicable with the -- the difference being 17 for the Assured Water Supply statutes and rules, there's 18 two additional requirements that deal with the 19 management -- consistency with the management plan 20 that's adopted for each of these AMAs and consistency 21 with the management goal. 22 Q. Is there any difference in the physical 23 availability and determinations criteria for Assured and 24 Adequate Water Supply? 25 A. There's -- the difference between the two, as



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 far as how we look at the different demands that are 3 associated with the two, the calculations, as we get to 4 that, the calculations we use in both the Assured and 5 Adequate Water Supply are the same. 6 The difference is in the Assured Water Supply 7 Program versus the Adequate Water Supply Program, after 8 100-years evaluation, we look at different depths to set 9 a groundwater level, and for those areas, like the 10 Pueblo Del Sol application, outside of Active Management 11 Areas, that maximum allowable is 1200 feet below land 12 surface; whereas, in three of the AMAs, it's 1,000 13 acre -- that's -- excuse me, 1,000 feet below land 14 surface, and then the Pinal Active Management Area is 15 1,100 feet below land surface. So there's a difference 16 in the maximum allowable depth to groundwater after the 17 100-year projection, but the calculation to get to that 18 projection is the same. 19 Q. What do you mean by that? What calculations are 20 you talking about? 21 MR. McDEVITT: Objection, Your Honor. We would 22 just like to ask about the relevance of this testimony. 23 ALJ SHEDDEN: Ms. Ronald, you can respond, if 24 you'd like. 25 MS. RONALD: This is just to set forth the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 process by which the Department of Water Resources 3 evaluates applications for designation of assured 4 water -- of adequate water supply. So this is just 5 background leading up to the review of the actual 6 Pueblo Del Sol application itself. 7 ALJ SHEDDEN: All right. I'm going to overrule 8 the objection, and we can take the background 9 information in. 10 BY MS. RONALD: 11 Q. So do you recall the last question? 12 A. Can you please repeat your last question? 13 Q. The last question that I asked dealt with the 14 calculation of the depth to groundwater under the 15 Adequacy Program and the Assured Water Supply Program. 16 What do you mean by the calculation? What are you 17 talking about? 18 A. The calculation that we use in the Assured and 19 Adequate Water Supply programs, we look at not only the 20 applicants or what I'll call the proposed pumping, that 21 the application entails in that geographic area, but we 22 also look at previously -- well, current demands that 23 are already there and previously approved demands in 24 that area. So we take basically what was existing in 25 that geographic area and then also the proposed demands,



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 in this case, from the Pueblo Del Sol application to 3 take all of those pumping values, as those are 4 incorporated in the model, to determine the results of 5 what 100 years of pumping, what that depth to 6 groundwater will be at the end of the hundred years, and 7 that's -- that's the basic same process for both assured 8 and adequate water supplies. 9 Q. What do you mean by "approved"? 10 A. Demands that have already been approved in that 11 area? 12 Q. Uh-huh. 13 A. In the case of the Pueblo Del Sol application, 14 the water reports that are already approved. In that 15 area it can also be analysis that are also approved by 16 the Department. If you're talking in the Active 17 Management Areas, under the Assured Water Supply 18 Program, you also look at certificates that have an 19 associated, you know, volume of pumping to them, and 20 also other designations in the area. So basically all 21 approved pumping by the different reports or 22 designations or certificates that are part of the 23 program. 24 Q. So what is the -- the normal terminology that's 25 used within the Department for these demand



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 calculations? What kinds of demands does the Department 3 refer to these as? 4 A. The demands, as included and listed on our 5 application and as defined in the rules, we look at 6 current demand, we look at committed demand, and we look 7 at projected demand, and those three calculations give 8 us a total demand value through the course or -- of what 9 the -- how far the designation is going to be issued 10 out. 11 Q. What's the difference between current demand and 12 committed demand? 13 A. The current demand refers to existing water 14 uses, carried at a hundred years, and we base that off 15 of the previous year's annual report, each water 16 provider, regardless if they're in the Active Management 17 Area, and have the Assured Water Supply rules or 18 adequate rules has to file an annual report that details 19 several things, you know, operations that go on within 20 the service area, one of them being the amount of water 21 that was pumped out of the ground. So the requirement 22 for the current demand is existing uses based off the 23 last calendar year's report, is what the rule requires. 24 Sorry, did you ask for committed? 25 Q. Yes. What about committed?



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. The committed demand numbers include demands for 3 plats that have been -- plats or lots that have been 4 recorded but have not yet been served by the applicant, 5 or water company that has not been served within the 6 service area. 7 Q. And you just mentioned lots that have been 8 recorded. How does that relate to platting and 9 everything else, by the local platting authority? 10 A. The -- the plats or the lots are recorded or 11 approved, for lack of a better term, by the -- like you 12 said, by the local platting authority. In this case the 13 platting authority would -- would be Cochise County. 14 Q. But they wouldn't be necessarily developed yet; 15 is that correct? 16 A. For the -- yeah, not necessarily -- and when 17 we're talking about the committed demand, it's demand 18 for those plats or lots that have been recorded but have 19 not yet been served water by the water company. 20 Q. Who is the local platting authority for the PDS 21 service area? 22 A. Pueblo Del Sol is located in Cochise County, and 23 they're the local platting -- what's termed the local 24 platting authority for this application. 25 Q. Now, you mentioned earlier something about a



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 mandatory adequacy jurisdiction. Is Cochise County a 3 mandatory adequacy jurisdiction? 4 A. Yes. Cochise County is a mandatory adequacy 5 jurisdiction. 6 Q. What does that mean? 7 A. Before lots are recorded or plats are recorded 8 within Cochise County, because they -- the platting 9 authority requires that the Department make a 10 determination that there's an adequate water supply for 11 the development or for the application or, in this case, 12 for the service area designation. So it's mandatory 13 that they have an adequacy determination before -- from 14 the Department prior to those lots being recorded by the 15 local platting authority. 16 Q. As program manager, were you aware when -- I'll 17 just go ahead and ask it this way: Were you aware when 18 Pueblo Del Sol had filed its application for a 19 designation of adequate water supply? 20 A. Yes. I believe they filed -- the initial 21 application was just prior to I took -- to when I took 22 my current position. I believe that was in June of 23 2011. 24 Q. And was there a cover letter that was filed with 25 the application?



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. Yes, there was a cover letter. 3 Q. And I would direct your attention to DWR 4 Exhibit 1. Is that on your screen? 5 A. Yeah. 6 Q. Okay. Good? 7 A. Sorry. Is this where I don't control it and you 8 do? 9 Q. Yeah. That's right. 10 A. Okay. 11 Q. We're going to let Ms. Klobas control the screen 12 for you. 13 A. All right. 14 Q. So is that the cover letter that came in with 15 the initial application? 16 A. Yes. This is the cover letter that we received 17 on June 23rd, 2011. 18 Q. And does it describe the relationship of a 19 number of entities that have to do with the 20 Pueblo Del Sol service area? 21 A. Yes. The -- the letter was submitted by Fluid 22 Solutions on behalf of Pueblo -- the Pueblo Del Sol 23 Water Company, and that Pueblo Del Sol -- the owner of 24 the water company is Castle & Cooke Arizona, 25 Incorporated, and they are also the developer of the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Tribute MPC -- or, sorry, the master planned community, 3 the Tribute MPC, and that the owner, being 4 Pueblo Del Sol or Castle & Cooke, retained the services 5 of both Fluid Solutions and Brown and Caldwell to 6 develop the groundwater model to establish the water 7 supply. 8 Q. Okay. I'd like to direct your attention to DWR 9 Number 2. Is this a copy of the initial application 10 that was filed? 11 A. Yes. This is a copy of the June 2011 12 designation. 13 Q. Okay. Let's go to page 2 of that document. And 14 are there demand estimates included in page 2? 15 A. Yes. Page 2 includes demand estimates. 16 Q. So do you see current, committed, and projected, 17 and a total annual demand on that page? 18 A. Yes. There are four different lines for the 19 demands listed for current, committed, projected, and 20 total. 21 Q. Were there any attachments to this application, 22 do you recall? 23 A. Yes. I believe there were -- 24 Q. All right. 25 A. -- four or five.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Just pause for a second and we'll pull up 3 DWR 2-A. 4 A. Okay. 5 Q. What is this attachment? 6 A. Attachment A was the service area map. 7 Q. A hard copy? 8 A. Yeah. A paper version of the map. 9 Q. And then DWR 2-B? 10 A. Yeah. Attachment B was an electronic copy of 11 that same service area map. 12 Q. And then let's look at DWR 2-C, what is that? 13 A. Attachment C is the demand spreadsheet. 14 Q. Does it include the three categories of demands, 15 the current, committed, and projected? 16 A. Yeah. Yeah, it's kind of hard to see on the 17 screen, just because of the orientation, but it does 18 include current, committed, and the projected, and total 19 demand numbers, I believe, at the -- it would be the top 20 of the page. 21 Q. And then let's turn to DWR Exhibit 2-D. And 22 what is this? 23 A. Sorry. Attachment D, that's the -- the 24 ground -- the hydrologic groundwater model. 25 Q. And were there any attachments or appendices to



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 attachment D? 3 A. Yes. There were also several attachments to D. 4 Q. So on the screen now -- stop, yes -- there's 5 a -- I believe it's page i, maybe, of the table of 6 contents, I'm not sure -- maybe scroll up just a little 7 bit so we can see the page number. There it is. 8 So how many appendices are there? 9 A. The list of appendices goes through -- from 10 Appendix A through Appendix F, so there's six 11 appendices. 12 ALJ SHEDDEN: And -- and let me just drop in for 13 a second with regard to the record we're creating via 14 the audio recording here. 15 Ms. Ronald is correct, we're looking at page i 16 on this particular document, as it was labeled in the 17 hard copy. The PDF numbers often don't match, and while 18 she could take some steps, I think you can work around 19 the default on PDF would be that the very first page, 20 which may be a cover of a report or something with a 21 different number would be page number 1, arabic 1, going 22 on in this case through, it looks like, 188. 23 We're looking at page 4 on the PDF version, 24 page i on the -- well, it would have been the hard copy 25 when it was submitted. I'm going to, as we go on, let



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the parties identify the documents however they would 3 like to do so, which page we're on. Periodically, I may 4 jump in to try and make sure we're creating a good 5 recording here, but in theory there are people who are 6 going to rely on this recording. I assume you folks are 7 going to, perhaps, when you prepare for future day's 8 testimony and/or any closing briefs. I may be relying 9 on the recording, in addition to my notes, as I review 10 the evidence, and the director of DWR may want to rely 11 on portions of that as well, and if it goes further than 12 that. 13 So it's incumbent upon me to try and make sure I 14 complete a good, detailed audio record to help with 15 that. So again, I'll let folks try and identify the 16 information as they see fit, using whichever numbers, 17 but since everyone will have access to the PDF 18 electronic file at the appropriate time, those numbers 19 should probably work. And again, I may jump in 20 periodically to flesh out the recording if I think it's 21 necessary. And with that, I apologize for the 22 interruption. 23 Go ahead, Ms. Ronald. 24 MS. RONALD: Thank you. I see that in the 25 upper, right-hand corner, it looks like there's the PDF



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 pagination on the -- the exhibit, so I'll try to 3 cross-reference that as I move through it. 4 ALJ SHEDDEN: Yeah. And let me show folks 5 something else. I'm going to take the models, and you 6 know, all the -- 7 MS. RONALD: Oh, yeah. 8 ALJ SHEDDEN: -- versions of these programs seem 9 a little bit different. But on the version that we're 10 using at OAH, you can see, down toward the bottom of the 11 screen, I've dragged the mouse over what then becomes an 12 invisible -- in theory it does, if I move -- maybe 13 someone else put it there -- little task bar of sorts. 14 And by clicking the little triangular Adobe, probably a 15 registered trademark, if you will, will open up 16 additional information on the side, including the 17 single-page views of things, and then that opens the 18 little box at the top that has all the page numbers. 19 And a couple of things with regard to this: If 20 you know what page you're going for, you can jump 21 straight in by typing the page number. Sometimes it's 22 also a little quicker if you use that version on the 23 side. 24 I -- I didn't say this in my opening remarks. I 25 bit my tongue, but we're preparing a little CLE that



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 will be presented this week on the electronic case 3 files. And so one of the lessons learned for me, as the 4 administrative law judge, is let the computer operator 5 do it however she wants to at a given time and be 6 content with that. 7 So, Ms. Klobas, I'll let you put it in whatever 8 form you'd like to at this point, but oftentimes folks 9 don't know all the options, and I can help set it up if 10 folks want me to. But again, like with most things on 11 the computer, I guess there are a number of different 12 ways to go about it, including getting the page numbers 13 and perhaps a little easier access. And I don't know if 14 all -- all of you use Windows, if you refer to them, 15 Ms. Ronald, they're going to be there. I see them on 16 some documents, but not on others. 17 So with that, again, I'll turn the mouse back 18 over to you, Ms. Klobas, and questioning back over to 19 Ms. Ronald. 20 MS. RONALD: Thank you, Your Honor. 21 BY MS. RONALD: 22 Q. Oh, yes, the list of appendices. We have A 23 through F, and Appendix A, what does that deal with? 24 A. Appendix A -- this says the B and C technical 25 memorandum. That --



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. What -- what does B and C refer to? 3 A. That's Brown and Caldwell's technical 4 memorandum. 5 Q. And in that cover letter that came in with the 6 application, what was the role of Brown and Caldwell? 7 A. They were one of the -- the technical advisors 8 that helped prepare, along Fluid Solutions, the numeric 9 model that supported the hydro-analysis for the 10 application. 11 Q. Okay. After the application came in, did ADWR 12 review that application? 13 A. Yes. The Department reviewed the June 2011 14 submittal. 15 Q. Okay. Let's go to DWR 4. 16 A. Okay. 17 Q. And what is this? 18 A. This is a letter and response -- an initial 19 correspondence that the Department sent via email to 20 Fluid Solutions, regarding the incorrect current, 21 committed, and projected demand numbers, that they were 22 incorrect on the application filed. 23 Q. And whose signature does -- is that letter go 24 out over? 25 A. That is my signature.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Okay. What happened after that? Did Fluid 3 Solutions submit new demand estimates? 4 A. Yes. Fluid Solutions, they submitted -- I think 5 we're looking at -- 6 Q. So this is DWR 5. What is this? 7 A. DWR 5 is an email to Aaron Young, who works for 8 Fluid Solutions -- or sorry, excuse me, from Aaron Young 9 at Fluid Solutions to Rick Obenshain, who works in the 10 DWR Water Supply Program. And it is clarifying some of 11 the -- well, the current demand, committed demand, and 12 projected demand numbers of the Department identified, 13 that were incorrect in the -- in the initial 14 application. 15 Q. Okay. Let's look at DWR 6. Scroll down through 16 there. What is this document? 17 A. This document -- can we scroll up just a little? 18 Q. Scroll up. I'm sorry. 19 A. Yeah. This -- this, again, is a letter to Aaron 20 Young from the Department, sent via email on 21 October 13th, 2011. And it discusses, I believe -- can 22 we scroll down a little bit? Based off of that earlier 23 email, which I believe was a couple days prior to this 24 correspondence, it requires Pueblo Del Sol to conduct a 25 new ground -- or a new model simulation to reflect the



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 revised demand numbers that were contained, and that 3 were -- that were discussed in that email, and that also 4 we determined that the applicant should be -- basically 5 have two simulations of the model, and that's identified 6 in numbers 1 and 2. 7 The first simulation should include basically 8 what I'm referring to as the pre-Tribute Master Planned 9 Community, or without Tribute simulation; and then a 10 second simulation that includes the proposed Tribute 11 Master Planned Community pumping. 12 Q. And let's look at DWR 7. What is this? 13 A. This is the January 2012 revised application 14 that Fluid Solutions submitted on behalf of the 15 applicant. 16 Q. Is this the application itself or a letter -- a 17 cover letter? 18 A. This looks like a cover letter directed to my 19 attention. 20 Q. And there I see paragraph number 1 and paragraph 21 number 2 on that first page. What are the topics that 22 the letter is addressing? 23 A. The topic number 1 is a response to our 24 correspondence from the previous fall -- or fall of 25 2011, regarding the incorrect demand numbers. And then



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the second paragraph is the model revisions, again, that 3 with and without Tribute model simulations that we 4 required of the applicant. So it basically addresses 5 the two incomplete letters or correspondence that we had 6 with the applicant from that fall of 2011. 7 Q. Okay. Let's scroll down to the second page of 8 that letter. 9 A. Okay. 10 Q. Keep going, keep going, keep going, attachments. 11 Do you see that? 12 A. Yes. 13 Q. And what came in with this letter? 14 A. There were four attachments that came in with 15 this cover letter. Do you want me to read them out loud 16 for the record? 17 Q. Yes, please. 18 A. Attachment A was the revised committed demand 19 figures, Attachment B was the revised Pueblo Del Sol 20 designation, the letter -- the water supply application, 21 C was ADWR issued demands in the model, and D was 22 another Brown and Caldwell technical memorandum. 23 Q. Okay. Let's go to ADWR Exhibit 7A. Does this 24 reflect Attachment A to the cover letter we were just 25 looking at?



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. Yes. This looks like Attachment A, the 3 committed demand calculation. 4 Q. And let's look at ADWR 7B. What is this? 5 A. 7B was the revised, or the January 2012 6 designation application. 7 Q. And let's pull up 7C. What is this -- what's in 8 7C? What does this (indiscernible)? 9 A. 7C is a -- looks like a basic Excel spreadsheet 10 that includes Department issued demands. Well, it's 11 entitled: ADWR Issued Demands, Adequate and Inadequate 12 Within the Model Domain. So it's a list of issued 13 demands. 14 Q. And then we'll pull up 7D. What is this? 15 A. 7D is the revised or second technical memorandum 16 that Brown and Caldwell submitted. 17 Q. And were the model files included with this 18 particular exhibit, this technical memorandum, do you 19 recall? 20 A. I believe they were submitted with the technical 21 memorandum, but it was -- I believe it was on a DVD. I 22 mean, a lot of applicants submit them on DVDs. 23 Q. And why was -- why did Brown and Caldwell submit 24 a revised technical memorandum? 25 A. This revised technical memorandum that we're



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 looking at was in response to what I'm referring to as 3 the incomplete letter that requested the pre -- the with 4 and without Tribute simulations. So the technical 5 memorandum addresses those two model runs, one without 6 the Tribute Master Planned Community and one with the 7 proposed pumping included in it. 8 Q. The proposed groundwater pumping for Tribute; is 9 that correct? 10 A. The proposed groundwater pumping for the Tribute 11 Master Planned Community, yes. 12 Q. Okay. Let's scroll down to page 8. Is that 13 page -- is that page 8? No. It looks like page -- 14 that's fine. Page 9 of the document, which is PDF -- do 15 we have a PDF -- corresponding PDF number? 9. Okay. 16 MALE SPEAKER: It's 8 now. 17 BY MS. RONALD: 18 Q. It's 8 in the hard copy and 9 in the PDF 19 version. 20 There's this technical -- excuse me -- 21 A. Could we make it -- sorry. Could we make it a 22 little bigger, the size? 23 MR. McDEVITT: Objection, Your Honor, for the 24 appellant Ms. Gerrodette. We object to just simply 25 reading the exhibits. We don't -- we don't dispute that



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 these are true and exact copies of the application in 3 their exhibits and the correspondence, and we're 4 grasping at how this is relevant to any fact that's of 5 consequence in this matter. 6 ALJ SHEDDEN: So with -- and correct me if I'm 7 wrong, Ms. Ronald, you wanted the witness to read this 8 to reflect -- reflect his own recollection, correct, in 9 understanding what happened? 10 MS. RONALD: I wasn't going to ask him to read 11 the conclusion. I just was asking him to paraphrase the 12 conclusion about the -- I can't even read it -- the 13 model, yeah. This -- there it is. 14 ALJ SHEDDEN: All right. And -- 15 MS. RONALD: -- that -- regarding the -- the 16 depth to, say, groundwater level, just to indicate what 17 that depth was as a conclusion in this particular model 18 report. But I wasn't going to ask him to read the 19 entire thing. 20 ALJ SHEDDEN: All right. And let me ask you, 21 Ms. Ronald, do you still see this as background 22 information related to the work that the agency did when 23 they had the application? 24 MS. RONALD: Yes, I do, Your Honor. I mean, in 25 addition to the fact that the appellants have raised



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 certain issues about the processing of the application, 3 I believe a complete record needs to be made of the 4 steps that the Department took in the review of the 5 application and the determinations that it made in 6 support of the draft decision and order that was issued 7 with the decision letter that addressed the objections 8 raised by the appellants. 9 MR. McDEVITT: Your Honor, none of the 10 appellants object or have raised an objection regarding 11 the 650-foot determination, and none of the appellants 12 have suggested that any of the exhibits that have been 13 presented so far were not actual real copies. We don't 14 see the -- the purpose of simply reading things that can 15 be more simply introduced by introducing the documents 16 themselves. 17 ALJ SHEDDEN: Well, let me tell folks how I'm 18 going to deal with the exhibits. There's been -- I 19 certainly haven't tried to count, and I haven't looked 20 at too many of them, candidly -- hundreds, if not 21 thousands, of pages of exhibits have been disclosed. 22 It's not my intention to read those exhibits. It's my 23 intent that the parties will point to the relevant 24 portions of them, and whether or not they subsequently 25 are admitted into evidence is a separate question, but



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 just suggesting that somehow I take a bunch of documents 3 into the record and then -- I forget how the Court of 4 Appeals put it in one matter, but judges aren't pigs 5 hunting for truffles, I think, is the way it was 6 phrased. And the bottom line is the parties are going 7 to have to point to what is germane, in their views, in 8 those documents. 9 And it may well be that whole documents will be 10 admitted into evidence, and they'll be part of our 11 record, but the intention I have generally is not to go 12 searching beyond the information that's presented. The 13 problem with that approach is sometimes I'm a curious 14 fellow, and if I look on a page where someone points 15 something out to me, I may want to see what came before 16 or after that, and if a document is in evidence, it's 17 all fair game. But in terms of the information, per se, 18 in the exhibits, and more directly back to the 19 objection, I'm going to let DWR present its evidence and 20 provide background information as to how they process 21 the application. 22 To the extent that there are information -- or 23 is information that Ms. Ronald or DWR feels is germane 24 to the matter, she will point me to it, and it may well 25 be that these exhibits will be entered.



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So I'm going to overrule the objection. I 3 generally don't need folks reading large segments of 4 documents into the record, and Ms. Ronald has indicated 5 that wasn't her intent here. 6 And again, with respect to the document itself 7 and whether anyone disputes the 650-foot depth, that is 8 something that is within the background, I think, 9 because we need to get the facts on the record in terms 10 of the rule requiring it to be -- I'm struggling with 11 the negatives here, because we're talking about below 12 ground surface, but, of course, there's the 1200-foot 13 limit, and so that needs to be established. 14 So a couple of points: One, the objections are 15 overruled on the relevance, getting the -- a fairly 16 comprehensive record of what occurred at the agency I 17 think is important in an administrative hearing. Two, 18 with respect to the reading of large tracts of 19 information, I agree, and we don't want that to happen, 20 but we're not in danger of that here. And then three, 21 my own editorial comment, if you will, as to how we're 22 going to have to deal with large reports and a large 23 number of large technical reports. It's going to be 24 incumbent upon the witnesses, or the parties through 25 their witnesses, to point to the information that they



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 feel is germane -- and I use that world deliberately, 3 rather than relevant -- to allow for the understanding 4 that there may be relevance objections. 5 So with that, Ms. Ronald, you had asked the 6 witness to summarize the conclusion, correct? 7 MS. RONALD: Correct, Your Honor. 8 ALJ SHEDDEN: All right. Why don't you go ahead 9 and you can go ahead and do that? 10 BY MS. RONALD: 11 Q. Just to rephrase, Mr. Craddock, are there any -- 12 that you are looking at the page that is titled as 13 "Conclusions" in this particular exhibit; is that 14 correct? 15 A. Yes, I am. 16 Q. Okay. And is there any information in that 17 paragraph that deals with the depth to static water 18 level -- 19 A. Yes. 20 Q. -- from the proposed PDS groundwater pumping? 21 And what does the -- 22 A. Yes, there is. 23 Q. What does the report conclude in terms of the 24 depth? 25 A. It includes, after running the model



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 simulations, that the area of influence by the PDS 3 pumping does not exceed 650 feet below the land surface 4 after 100 years. 5 Q. Okay. And this is just for clarification 6 purposes, I want to pull up DWR 8. What is this? 7 A. This is another -- this exhibit is another copy 8 of the revised designation application from 9 January 2012. 10 Q. And was this previously included as an exhibit 11 when the letter came in with the revised demand numbers? 12 A. Yeah, I believe it was one of the -- organized 13 as one of the attachments -- 14 Q. Okay. 15 A. -- in the prior. 16 Q. So this is a duplicate? 17 A. Yes. 18 Q. And are there any attachments to this document? 19 A. Yes. There are more attachments. 20 Q. Okay. Let's look at the next -- and are 21 there -- I'm sorry, we'll go back for just a second. 22 And are there demand numbers included in this 23 application? 24 A. Yes. There are demand numbers in part B of the 25 application.



106

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Are the total demand numbers in this application 3 the same as those that were included in the October 2011 4 email from Fluid Solutions? 5 A. No, not all of these demand numbers are the 6 same. 7 Q. Were they higher or lower, the total demand? 8 A. The total demand is a decrease from the 9 October 2011 email. 10 Q. And what about the relationship between these 11 numbers and the total demand number included in the 12 original application, higher or lower -- 13 A. On this one -- 14 Q. -- or the same? 15 A. On this revised application, the total demand 16 numbers are an increase from the original June 2011 17 application. 18 Q. And why is that? 19 A. This deals with -- back to the earlier exhibit 20 when I testified discussing that the current, committed, 21 and projected demand numbers needed to be changed. The 22 projected demand numbers, I believe, on the original 23 application just included the proposed groundwater 24 pumping for the Tribute Master Planned Community and not 25 projected demand for the entire service area, which is



107

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 being designated. So it's one development versus the 3 entire service area projected demand accounts for that 4 difference. 5 ALJ SHEDDEN: And let me just get some 6 clarification here, and I'll -- this way the question, 7 if the witness needs to answer, it may be something you 8 can clarify, Ms. Ronald. Looking at the list of 9 exhibits, I'm showing that -- and I may be wrong about 10 this -- that the January application, was that a portion 11 of Exhibit 7? 12 MS. RONALD: Yes. 13 ALJ SHEDDEN: Okay. And so it was 7 -- 7B, the 14 cover letter with an application or just the cover 15 letter? 16 MS. RONALD: 7B is the actual revised 17 application. And ADWR, when we put together this 18 exhibit list, repeated, duplicated, the 7B application 19 in DWR 8, so that -- the reason for it was so that 20 separate numbers could be assigned 8A, 8B, et cetera, to 21 each one of the four attachments that was included with 22 the cover letter. And that would have been difficult to 23 do because the revised application had already been 24 assigned DWR Number 7B. So it was for purposes of 25 clarification and numbering issues.



108

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: Okay. And then let me go back to 3 Mr. Craddock here and verify. So if I understood your 4 testimony correctly, the October application had more 5 demand than the first January application, correct? 6 THE WITNESS: Yes. The October email and the 7 letter that we sent to the applicant had a total annual 8 demand of approximately 6,300 acre-feet. That was the 9 revised demand number. And the original application 10 filed in June of 2011 -- June of 2011 had a total annual 11 demand, I believe, in the neighborhood of 12 4,100 acre-feet. 13 ALJ SHEDDEN: Okay. And I gave a wrong month 14 there. It was probably confusing the record. And then 15 just so I'm clear on this, so Exhibit 8 that's on the 16 screen now is not the same -- 100 percent the same as 17 7B, or is it the same as 7B? 18 MS. RONALD: The application itself is the 19 same -- 20 ALJ SHEDDEN: Okay. 21 MS. RONALD: -- in both exhibits. 22 ALJ SHEDDEN: All right. 23 MS. RONALD: But then in Exhibit 8, there is a 24 further breakdown of the attachments for the revised 25 application that included 8A, 8B, 8C, and 8D.



109

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: And again, that was a choice in 3 terms of just housekeeping on the exhibits that make it 4 clearer. 5 All right. Let me ask Ms. Ronald, we're at 6 about 10 of. Will this be a good point to stop and pick 7 it up tomorrow, or do you want to tie up any loose ends 8 before we do that? 9 MS. RONALD: I think this would be a good 10 stopping point. 11 ALJ SHEDDEN: Okay. Then let me go back to 12 something I had broached this morning and just see if 13 there's any feeling one way or another. I'm going to 14 suggest we start at 8:15 each day. As I said, it gives 15 you folks a few extra minutes to get in here and get set 16 up. My guess would be the hearing room will be open by 17 about 7:30, although I can't necessarily verify that. 18 The other thing I'll tell you is there had been 19 a weeklong hearing scheduled in Room B that has resolved 20 in some way. So we'll have Room B available for 21 overflow in terms of discussions on break and that sort 22 of thing. 23 I don't know if we're going to have more or less 24 people attending each day. We're pretty well at our 25 capacity here today. If there is a desire for more



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 interested persons or members of the public or your own 3 clients, if you will, to attend the hearing, what I can 4 do is have our staff give us a limited feed to Room B to 5 the extent that there's a couple of monitors in there, 6 you would be able to see the exhibits, or whatever is on 7 our monitors would be able to be seen over there, and 8 then you could get the audio of all the conversations or 9 testimony going on in this room, but not a direct video 10 feed. 11 So given that we've all fit in here today, and 12 generally speaking, the demand tapers off the longer the 13 hearings go on in terms of people wanting to attend, I'm 14 not going to ask that to be set up tomorrow, but -- 15 initially, but if we do need that, it can be done rather 16 quickly. I can find a staff person who can help us with 17 that, and we'll go ahead and get that done. 18 So if you've had folks who stayed away out of 19 concerns that it's too crowded or there's no seats, we 20 can help accommodate it with regard to that; but in any 21 event, the room will be open for folks to use for 22 discussions during the day or whatever. 23 If there are no matters that any of you think we 24 should address today, then I am going to, absent any 25 objection, let you know we'll start at 8:15 tomorrow



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 morning. Is that the -- all right. I'll see you all in 3 the morning then? 4 MS. RONALD: Thank you. 5 (Conclusion of audio recorded 6 proceedings.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25



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1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 3 C E R T I F I C A T E 4 5 I, Katherine McNally, Certified 6 Transcriptionist, do hereby certify that the foregoing 7 pages 1 through 111 constitute a full, true, and 8 accurate transcript, from electronic recording, of the 9 proceedings had in the foregoing matter, all done to the 10 best of my skill and ability. 11 The final transcription reflects changes which 12 the parties have submitted and stipulated agreement on 13 the wording of said changes. 14 15 SIGNED and dated this 5th day of February 16 2013. 17 18 19 20 _______________________________ KATHERINE A. McNALLY21 Certified Electronic Transcriber CET**D32322 23 24 25


Pueblo Del Sol Hearing Volume I 11-26-2012 Page 1

1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 3 STATE OF ARIZONA 4 IN THE OFFICE OF ADMINISTRATIVE HEARINGS 5 In the Matter of the ) 6 Decision of the Director ) to Grant Pueblo Del Sol ) 7 Water Company's ) Docket No. 12A-AWS001-DWR Application for ) 8 Designation as Having an ) Adequate Water Supply ) 9 No. 40-700705.0000. ) )101112 TRANSCRIPT OF RECORDED PROCEEDINGS13 VOLUME I (Pages 1 through 112, inclusive.)14 November 26, 201215 Phoenix, Arizona16171819 ARIZONA REPORTING SERVICE, INC. Court Reporting20 Suite 502 2200 North Central Avenue21 Phoenix, Arizona 85004-14812223 Transcribed by:24 Katherine A. McNally CERTIFIED TRANSCRIBER25 CET**323

ARIZONA REPORTING SERVICE, INC.


1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 I N D E X Page 3 Opening Statement by Ms. Ronald 50 4 Opening Statement by Mr. Sullivan 55 Opening Statement by Mr. Gaudio 59 5 Opening Statement by Mr. McDevitt 66 Opening Statement by Dr. Silver 69 6 ANDREW CRADDOCK 7 Direct Examination by Ms. Ronald 75 8 9 EXHIBITS: Admitted10 (None admitted.)111213141516171819202122232425



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 TRANSCRIPT OF AUDIO RECORDED PROCEEDINGS was 3 taken on November 26, 2012, at the Office of 4 Administrative Hearings, 1400 West Washington, 5 Suite 101, Phoenix, Arizona 85007. 6 7 Before: Honorable Thomas Shedden, Administrative Law Judge 8 COUNSEL APPEARING: 9 ARIZONA DEPARTMENT OF WATER RESOURCES By: Ms. Janet L. Ronald10 Ms. Nicole D. Klobas 3550 North Central Avenue11 Phoenix, Arizona 85012 Attorneys for Arizona Department of Water12 Resources13 CURTIS GOODWIN SULLIVAN UDALL & SCHWAB, PLC By: Mr. William P. Sullivan14 501 East Thomas Road Phoenix, Arizona 85012-320515 Attorneys for Pueblo Del Sol Water Company16 UNITED STATES DEPARTMENT OF INTERIOR By: Mr. John L. Gaudio17 401 West Washington Street Suite 404 SPC 4418 Phoenix, Arizona 85003-2151 Attorneys for Bureau of Land Management19 ASU COLLEGE OF LAW20 By: Mr. Joseph Feller Mr. David McDevitt, Certified Limited21 Practice Student 1100 South McAllister Street22 P.O. Box 877906 Tempe, Arizona 85287-790623 Attorneys for Patricia Gerrodette, appellant24 ALSO PRESENT: Robin Silver, M.D., appellant, pro per25



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 (Commencement of electronically recorded 3 proceedings.) 4 * * * * * 5 ALJ SHEDDEN: All right. Good afternoon, we are 6 on the record in the matter of the decision of the 7 director to grant Pueblo Del Sol Water Company's 8 application for designation as having an adequate water 9 supply number 40-700705.0000. This is Docket10 Number 12A-AWS001-DWR. Today is November 26, 2012. It11 is a few minutes after 1:00 p.m. My name is12 Administrative Law Judge Thomas Shedden. I've been13 assigned by the Office of Administrative Hearings to14 preside over this matter.15 Our notice of hearing was issued on August 31st,16 2012, and it actually set a hearing date -- it looks17 like it was going to be on October 16, and set a18 location for the hearing down in Benson, Arizona. At19 some point during our proceedings, the parties filed a20 stipulation to change the hearing date until today --21 and indeed we'll be going forward all of this week, if22 necessary -- and then to change the location. We're23 here in Phoenix, at the Office of Administrative24 Hearings.25 A couple of things I want to point out, just



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 generally, and then I'm going to get the parties to 3 introduce themselves, and then we'll deal with some 4 additional preliminary issues. 5 One, I've turned on a little recording device 6 under the table here. That's what these microphones are 7 for. They don't provide any amplification of our 8 voices, but to get a clear recording, you've got to have 9 a microphone in front of you or in close proximity while10 you're speaking. So I'll ask you to be aware of that as11 we go forward, and I'll try and alert folks if it seems12 like we -- we've had a breach of that, if you will.13 That means whatever witnesses come on up here to my left14 so that they can use that chair and have benefit of the15 microphone there. So just be aware of that as we go16 forward.17 Coupled with that, to get a clearer recording18 we've got to be cautious about talking over one another,19 interrupting each other, these kind of things.20 For the benefit of the witnesses, you need to21 understand that the lawyers, quite frequently, like to22 ask long questions, with a lot of subparts, so you need23 to kind of hold your answers until they're done. And24 similarly for the lawyers, I would ask you to allow the25 witness to answer before moving on to a new question.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So that's the recording issue. 3 What I do want to let folks know, a couple of 4 other things, and then as I said, we'll get the 5 introduction. 6 In terms of our prehearing matters, I'm going to 7 give some information procedurally about the setup in 8 the room, including the use of the computers, that sort 9 of thing, have some discussion, if you will, about how10 we're going to go forward with the presentation of our11 evidence, and perhaps a couple of other issues as well.12 When I'm done with all of that, I'm going to turn to the13 parties and see if you have any preliminary issues that14 you feel we need to address as well. And eventually15 then, when all of that is out of the way, we'll move16 forward with the presentation of evidence, but that may17 take a while to get there, at this point.18 Before I go to the introduction of folks, or19 letting you make their appearances, as it were, I do20 want to let folks know that our office, the Office of21 Administrative Hearings, is an independent state agency,22 and we invite everybody who comes to our hearings the23 opportunity to give our director feedback on how we're24 doing. There are some forms on the tables where the25 parties are located that are for that purpose. If you



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have difficulty locating those or need some more, our 3 front desk staff would be glad to help you with that. 4 There's a little black box right outside this hearing 5 room, just across the little hallway there, you could 6 put those in, or you could turn them in at the front 7 desk. It's strictly a voluntary process, and it's 8 anonymous in that our director shares the feedback only 9 very generally.10 One of the reasons I'm mentioning that now at11 the outset, rather than as we get a little further in,12 obviously a lot of you are wearing suit coats today.13 I'm not. If you'd be more comfortable without those14 jackets, don't stand on formality for me. Go ahead, and15 you can take those off; and indeed, as the days go on,16 from my perspective, not a necessary feature.17 With that, then, what I'm going to do is start18 with DWR on my right here, and I'm going to ask you to19 go ahead and make your appearances. If there are folks20 attending in the crowd, and we've got a fairly full21 house today, that you'd like to introduce as well, you'd22 be welcome to. So with that, we'll take care of that23 and then get back to information on how we're going to24 go forward.25 MS. RONALD: Thank you, Your Honor. Jan Ronald,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 on behalf of the Department of Water Resources, with 3 Nicole Klobas, who is sitting to my right. Also here 4 today with me are a witness, Andrew Craddock; and our 5 administrative assistant, Sharon Scantlebury; and Frank 6 Corkhill, who is the chief hydrologist for the 7 Department of Water Resources. 8 ALJ SHEDDEN: All right. 9 Go ahead.10 MR. SULLIVAN: Good afternoon, Your Honor.11 We --12 MS. RONALD: Oh, and I forgot one. I'm sorry.13 Ayesha Vohra is also an attorney with our office, who is14 here today. I'm sorry, Ayesha.15 MR. SULLIVAN: Good afternoon, Your Honor.16 William Sullivan, on behalf of the applicant,17 Pueblo Del Sol Water Company. With me today, also, are18 Rick Coffman, who is the vice president of Castle &19 Cooke, as well as Pueblo Del Sol Water Company, and a20 potential -- and who is also a potential witness. And21 also Norm Fain, who is a potential witness.22 ALJ SHEDDEN: All right. Go ahead.23 MR. GAUDIO: Good afternoon, Judge. My name is24 John Gaudio. I'm here for the Department of the25 Interior Solicitor's Office, here representing the BLM.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And I've got sitting next to me Ben Lomeli, hydrologist 3 with BLM, a representative of the agency. And then I've 4 got two witnesses, Jim Leenhouts, Dr. Leenhouts, with 5 the USGS, and Bill Wells, hydrologist at the BLM state 6 office. 7 MR. McDEVITT: Your Honor, my name is David 8 McDevitt. I'm a certified limited practice student, 9 representing Appellant Patricia Gerrodette with regard10 to the legal issues in this matter, and in the motions11 and response that we filed. The notice of appearance12 was submitted to the OAH docket.13 ALJ SHEDDEN: Okay. And then you are14 Ms. Gerrodette, correct?15 MS. GERRODETTE: That's correct.16 ALJ SHEDDEN: Okay. And go ahead.17 MR. SILVER: My name is Robin Silver. I'm a18 property owner on the San Pedro in the Sierra Vista19 Subbasin.20 ALJ SHEDDEN: All right. Let me just make one21 other introduction and -- and relating to Mr. McDevitt.22 We also have present Professor Joseph Feller from the23 ASU Law School, who is the supervising attorney,24 correct?25 MR. McDEVITT: Correct.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: All right. Let me just make sure 3 I'm getting all of this down myself in my notes, and 4 then -- all right. Back on my list of -- of things 5 and -- and I -- I need to remind folks to turn off your 6 cell phones or put them on vibrate or -- or some other 7 such thing, that you can do that, please. Too, as I 8 said before we went on the record, water is the only 9 food or drink we're allowed to have, so please observe10 that, if you will. I've mentioned the microphones, so11 I'll not go into that again.12 In terms of our timing, I do have a question for13 the parties, and obviously we're starting at 1 o'clock14 today. The intention would be to start generally at15 8:00 and go to 5:00 each day. I know there was some16 talk when the stipulation was filed, as to whether or17 not Thursday morning was going to be a day that we18 needed to suspend proceedings, if you will. So let me19 just ask directly. Where do we stand on that?20 MR. SULLIVAN: Thank you, Your Honor. William21 Sullivan. It was Wednesday morning, and that hear- --22 that oral argument has been cancelled. Unfortunately,23 the special master is ill, and we got notice this24 morning that he cancelled.25 ALJ SHEDDEN: So we're good to go every morning



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 then? 3 MR. SULLIVAN: Yes. 4 ALJ SHEDDEN: All right. And let me -- I'm 5 assuming there's no problem with that from everyone's 6 perspective, but I guess I'm going to put it out in 7 terms of a question at this point, with respect to the 8 parties, whether it makes sense to defer our start time 9 until 8:15, give you folks the extra 15 minutes to get10 in here, get set up, consult with your witnesses.11 Similarly, at the end of the day, right around 4:35, I12 like to start seeing if we're at a good place to stop.13 If we need to push on, we can. But that way by14 5 o'clock, we wrap things up.15 Having said that, though, that takes away from16 our hearing time, and when you times it by five days,17 it's not a small amount of time, but that's going to be18 my proposal, assuming the parties think that we're not19 going to be pressed for time, and I would guess having20 recovered Wednesday morning, that may not be an issue.21 Before I get into that, in detail, I'll let the22 parties know that I have some -- I'm going to style them23 concerns, if you will, as to how much evidence do we24 really need to take in this matter, and it's perhaps25 related to Ms. Gerrodette's motion to vacate and the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 motion to dismiss that Pueblo Del Sol filed. Those 3 motions were both denied, but -- and coupled with the 4 motion to dismiss was a motion in limine, but those 5 legal issues are still in play, from my perspective, and 6 the parties agreed to raise those issues in their 7 closing arguments. 8 But despite the fact that I denied those 9 motions, some of it has to do with the way the issues10 are set forth in the notice of hearing, and what I'm11 going to do is just read those four issues into our12 record just for completeness and to make sure we're all13 on the same page here.14 Starting on page 2 of the Notice of Hearing, the15 appellants raised the following issues on appeal: (A)16 whether Pueblo Del Sol failed to demonstrate and ADWR17 erroneously determined that the water proposed to be18 pumped will be continuously, legally, and physically19 available to satisfy the proposed use for at least20 100 years; (B) whether ADWR erroneously refused to21 consider impacts of the proposed pumping of the flow out22 of San Pedro -- on the flow of the San Pedro River --23 and it looks like there's a little typo in there, but --24 (C) whether ADWR erroneously refused to consider impacts25 of the proposed pumping on water rights of the Bureau of



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Land Management, including federal reserved water rights 3 for the San Pedro Riparian National Conservation Area; 4 and (D) whether Pueblo Del Sol failed to demonstrate and 5 ADWR erroneously determined that the water proposed to 6 be pumped will be physically available for at least 7 100 years, given evidence of declining groundwater 8 levels and increased pumping in the area. 9 So in particular, Items B and C, or Issues B and10 C, jump out in light of primarily the Department's11 prehearing brief. And the question I have, in terms of12 how much evidence we're going to need to take, and what13 I want to find out from the parties initially here is14 whether those issues can be resolved as a matter of law,15 and cut down on the amount of evidence that parties are16 hoping to present.17 It seems to me, effectively, that is what18 Ms. Gerrodette was asking for in her motion to vacate,19 that I rule summarily that DEQ did err on those issues,20 send the matter back to the Department, and have DEQ21 make a factual determination there.22 Obviously -- I think it's fairly obvious anyway,23 to me, that DWR and the water company have a different24 view of whether there was an error or not, but it seems25 to me -- and the concern I have is whether it makes



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 sense to take more than just the limited amount of 3 evidence as to what those impacts were or may not be, if 4 any at all, as opposed to just saving those points for 5 legal consideration at the end of the hearing. 6 Go ahead. Doctor, go ahead. 7 DR. SILVER: I have to ask, to be recognized, do 8 we stand up or do we just -- 9 ALJ SHEDDEN: There's no need to stand. Just --10 sir, go ahead.11 DR. SILVER: If you looked at -- if you -- it's12 Robin Silver, if you looked through the list of13 witnesses and some of the issues that you just14 addressed, it seems like we could just stipulate, as a15 group, and the -- including my own witness, most of what16 they're going to tell us that has to do with the17 physical connection or the water budget, we can agree on18 already. We don't need a witness to tell us that.19 So for instance, the fact that the groundwater20 and the surface water are connected, I think that we21 could agree. ADWR, Pueblo Del Sol, the BLM, the feds,22 USGS have all said this, in writing, that there's a23 connection between the groundwater and surface water.24 We could agree on that.25 If you look at the other issue that ultimately



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 you'll have to look at in terms of is it legally 3 available, the water budget becomes an issue because 4 when we get down and we start talking about, you know, 5 Gila III or some of the -- some of the nitty-gritty of 6 the legal issues, it's going to come down to whether or 7 not this subbasin is overallocated. 8 And again, if you start then looking through the 9 numbers from Arizona Department of Water Resources,10 USGS, and BLM -- and I don't know if this is the11 appropriate time or not, but let me just flat out say12 it -- this is a subbasin that's overallocated. So that13 has bearing on what you're going to have to tell us14 (indiscernible).15 ALJ SHEDDEN: Well, and I suspect that may be a16 disputed issue, and leaving the term "allocated," the17 buzzer that goes off with me for something like that is18 you're talking about surface water generally when you19 use a term like that. So the -- your point is taken,20 though, more generally, and oftentimes, though,21 particularly with the number of parties that are22 present, reaching a stipulation can be difficult. I23 understand that.24 My point, though, and I guess I'll expand upon25 it is if the parties want to take some time out this



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 afternoon, we're all here, and do some working together 3 to either, perhaps, stipulate to some facts that would 4 reduce the need for evidence -- alternatively, you 5 know -- and you're kind of aligned on two sides of the 6 room there, if you will -- alternatively, as well, the 7 appellants might benefit by spending some time together 8 to help streamline their presentations, perhaps can 9 eliminate some witnesses. I don't know if the same10 would be true of the Department and Pueblo Del Sol.11 As inducement, before I get comments from the12 other folks in this regard, one of the things on my list13 that -- that I need to address and put it up there in14 the wings, if you will, I've got a statutory duty to15 avoid letting folks present needless cumulative16 evidence. It's always an open question as to when17 cumulative evidence becomes needless, and I tell folks18 that some of the judges think any cumulative evidence is19 needless. But that's what the statute says, or pretty20 darn close.21 The other things that the statute says, and22 these may go in more toward the way the issues are23 couched and whether we need evidence at all, and it's --24 there's a duty I need to avoid needless consumption of25 time, and I'm allowed to exclude evidence if the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 probative value is outweighed by waste of time. And 3 that's the one that really concerns me when we've got -- 4 and I'll let Ms. Ronald correct me, of course, if I'm 5 wrong here, but based on the prehearing filings, the 6 Department is pretty firm in the view, it seems, that 7 these were things that they shouldn't have considered. 8 If they're right about that, then, of course, taking 9 evidence on the impacts is not necessary. And if10 they're wrong about that, it seems to me that the11 certificate or the designation would need to be revoked12 or never get out of draft form, however you want to put13 it.14 So it doesn't necessarily make a lot of sense in15 my view, assuming you're all in agreement, to have a lot16 of folks who have expert witnesses, that I assume have17 other things that they can do, rather than coming down18 here. So let me throw it out more generally, I guess,19 for any of the parties to comment, and particularly with20 respect to the thought that does it make sense to take a21 little time and allow you folks to potentially work on22 some stipulated facts, or any way to narrow, not the23 scope of the issues for hearing, but what evidence would24 be necessary in light of the issues set forth in the25 notice?



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And I'll go back to you first, Dr. Silver, since 3 you -- I kind of interrupted what you were getting 4 toward, a few minutes ago. 5 DR. SILVER: Do you want me to go ahead and 6 continue? So if I -- because I would almost like to -- 7 where I got off track, I think that we could stipulate 8 the connection. That's not a (indiscernible). 9 ALJ SHEDDEN: Well, I -- the problem with what10 you think we can stipulate, that requires a discussion11 and better served off the record, because -- there are a12 couple of reasons -- it's not really a settlement talk,13 but there's no need for me to hear it, because if you14 reach a stumbling block where on a given issue one party15 or more is not willing to, then it's just best that I16 don't know who they are, for what reason, and I take the17 evidence.18 So -- but let me ask directly then, you would be19 amenable to taking a little time off the record and20 seeing if stipulations could be reached?21 DR. SILVER: Yes. And I think it would save a22 good amount of your time, as well as ours, because that23 would take that off the table, and then you could focus24 on whether or not it matters legally.25 ALJ SHEDDEN: Well, I agree that it would



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 hopefully save some time, but, you know, you never know 3 until the end of the day. But I share that view, and 4 that's why I raised it. 5 Let me turn to Ms. Gerrodette and/or 6 Mr. McDevitt. 7 MR. McDEVITT: Well, Your Honor, we would agree 8 to discussing -- stipulating with regard to certain 9 facts in order to limit the amount of testimony or10 evidence needed, so long as we had a specific time frame11 for which to do that, whether it be half an hour or an12 hour, obviously, is to Your Honor's discretion. But we13 wouldn't want those talks to go on and on.14 ALJ SHEDDEN: I'm sorry, your last point was?15 MR. McDEVITT: We -- we wouldn't want that to be16 an open-ended -- open-ended discussion.17 ALJ SHEDDEN: Right. No, and with respect to18 the time allotted for it, assuming everyone is going to19 be in agreement, you know, if you're making good20 progress and you're getting a lot of facts down, one21 after another, then it seems silly to artificially stop.22 On the other hand, if 30 minutes, 45 minutes23 have gone by and anything that can be achieved has been24 and the parties collectively don't want to continue to25 discuss the matter, then, yeah, we need to get on the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 record and move forward. So, you know, I guess the 3 problem with setting a time limit is without knowing 4 whether -- you know, 45 minutes may be way too long. 5 You take 10 minutes, and you find, no, we -- we have no 6 common ground here. 7 So let me turn to the BLM then. 8 MR. GAUDIO: Yeah. Judge, BLM's sole argument 9 in this matter is that DWR, you know, must consider the10 impacts of Pueblo Del Sol's proposed pumping on the11 federal reserved rights in the basin. And I'm12 struggling a little conceptually with the purpose of the13 hearing. It seems to me to be purely a legal question.14 With that said, I'd be willing to -- to sit and talk15 about what evidence can be, you know, trimmed away.16 ALJ SHEDDEN: All right. And, you know, I will17 say that as I look at the issues, they do seem to be18 largely legal issues, in my view, but, you know, others19 may have a different view, and so that's, I guess, why20 we have hearings, but let me turn to Mr. Sullivan.21 MR. SULLIVAN: Thank you, Your Honor.22 Turning first to the issue of stipulation,23 although we don't dismiss that possibility on hand, I24 believe that the appropriate way to deal with that is25 for any party who wants to stipulate to the facts, to



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 proposed stipulated facts outside of the time 3 for hearing -- we're already here -- and then to see if 4 the parties can agree on them. 5 I think the wording will be very critical. 6 That's an area where we may not ever be able to reach 7 agreements on facts, even though conceptually there may 8 be no disagreement on certain facts, conceptually, but 9 the wording of them may be very important. And so what10 I would propose is that if a party has stipulated facts11 that they want to present and wording for that, that12 they do that after the hearing today and let DWR at13 least get their witness on, which shouldn't be affected14 much by the stipulation of facts, at least to the ones15 that were being mentioned there. Because, as Your Honor16 indicated when we first had a prehearing conference on17 this, DWR will set the stage, if you will, to explain18 what they did and how they did it, and as I read their19 summary of testimony, that this was what you had20 indicated.21 I don't mean to put DWR on the spot as far as22 having to go forward, but to me that makes much more23 sense than just wasting that 45 minutes to an hour and a24 half trying to reach agreement, when we don't even have25 worded specific findings available. And the ones that



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have been proposed, I would have difficulty, I would 3 think, in finding a stipulation to, that would be 4 mutually acceptable to all parties at the table, but I'm 5 not going to say I wouldn't be willing to look at it. 6 As to the issue of whether the statement of the 7 issues, as set forth in the notice, my understanding, 8 those came straight, basically, from BLM's Notice of 9 Hearing, and were intended to show what the appellants10 cumulatively were arguing were potentially relevant11 facts.12 I think both the Department and ourselves,13 Pueblo Del Sol, in their arguments and what has been14 filed so far, have indicated that we do not believe that15 the scope of those issues, as drafted, is what this16 hearing is all about; that what was raised below was17 much narrower; basically, the issue of whether or not18 the claimed legal right to federal reserved water rights19 is to be considered by the Department in this20 proceeding, and whether -- because that was the only21 issue that was really raised by all the parties below.22 And since we filed a motion to dismiss on that23 issue, I believe that the facts are pretty much24 undisputed as to what the status of those rights are or25 are not, and that they can be decided as a matter of



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 law, although some testimony on how the Department went 3 through the process may be helpful to Your Honor. I 4 assumed that when you denied the motions. 5 ALJ SHEDDEN: Well, a couple of points related 6 to the Notice of Hearing. I'm going to tell you, I 7 don't see any other issues in there. And when I look at 8 my statutes and the scope of my authority -- and when I 9 say "my statutes," I guess a better way to put it would10 be the Office of Administrative Hearings' statutes found11 at 41-1092, et seq. And I'm limited to the issues set12 forth in the Notice of Hearing. So although there was a13 motion to dismiss saying that the parties didn't14 preserve these issues, the bottom line is they're the15 only issues I have.16 And whether the Pueblo Del Sol or the Department17 feels like they were matters that weren't properly18 preserved, that's certainly something I'm willing to19 consider in closing argument, but at this point I think20 I'm obligated to consider all the issues listed there.21 And, you know, the Notice of Hearing isn't that long,22 but -- in fact, it's only three pages, and there may23 have been some more of a mailing list that I cut off a24 fourth page, but we've got, in essence, two pages of25 text. And so just taking a quick look at it in response



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 to your comments, but from my perspective, as a matter 3 of law, I've got to deal with all of those issues. 4 And at the end of the hearing, there's room to 5 say that a given issue wasn't properly preserved, based 6 on failure to raise it in the comments at the agency, so 7 be it. But at this point, I will see how I can just 8 dream up my own issues, and that sounds like what you'd 9 be asking me to do if I -- if I don't take the ones that10 are in the Notice of Hearing. So --11 MR. SULLIVAN: If I might follow up, just to12 clarify.13 ALJ SHEDDEN: Yes.14 MR. SULLIVAN: I wasn't saying -- I was saying15 that the statement included any issue that you could16 hear, but it was more extensive, expansive than what you17 should and are legally entitled to hear because of the18 lack of comments. In other words, I believe the19 Department, in sending forth a notice, attempted to be20 fair to the appellants as to what they claim the issues21 were, not necessarily saying that those issues were22 properly raised and preserved below. And that's our23 argument on a number of the issues, is that they were24 not properly preserved below, and that therefore you can25 rule as a matter of law whether they were or were not,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 because it's relatively simple as to whether -- what the 3 comments were or what there -- and whether they're 4 concluded in those issues as written. 5 But I'm not suggesting that you rephrase them or 6 create new issues to hear in this proceeding. I agree 7 with you, that would be improper. 8 ALJ SHEDDEN: And similar to my comment to 9 Dr. Silver, my guess would be some of the others10 disagree with you as to whether it's simple or11 straightforward as to whether those issues were12 preserved, and I've not looked in too great of detail,13 candidly, at the documents that were filed at the14 Department of Water Resources, but, you know, just15 reading DWR's prehearing brief, I would say it may not16 be so simple, primarily based on how DWR couched the17 BLM's filing.18 So at any rate, all right, let me turn to19 Ms. Ronald.20 MS. RONALD: Well, I've listened to what all the21 parties have said so far, and I am inclined to want to22 try to agree on certain facts, in order to expedite the23 hearing process, but at the same time, it's much more24 complicated than just sitting down for an hour, and I25 have to agree with Mr. Sullivan's observations about



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 wording and how these particular factual issues are 3 couched. 4 We've looked at the exhibits that have been 5 filed by the parties on issues that we believe are not 6 relevant regarding impacts on the San Pedro River and 7 impacts on SPRNCA in particular. We've looked at the 8 case law that deals with federal reserved water rights. 9 We are, as technical advisors to the adjudication court,10 very aware of the status of the SPRNCA claims for11 federal reserved water rights, and as I'm sitting here,12 I wonder, and I'm not sure, admittedly, but I wonder13 whether, as we go forward, it might be better to just14 get an offer of proof on each one of these exhibits and15 deal with it that way, because --16 ALJ SHEDDEN: But, I'm sorry, isn't that17 presupposing that I don't take the exhibits into18 evidence?19 MS. RONALD: If -- I assume that before you take20 the evidence that -- an exhibit into evidence, we would21 have an opportunity to raise objections to whether or22 not we think it's relevant, and that they would have to23 provide an offer of proof of why it is relevant. That's24 what I was thinking when I made that statement. I'm not25 presuming that you would not take it into evidence. But



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 these are exhibits at this point. They haven't been 3 taken into evidence yet. 4 ALJ SHEDDEN: Correct. But I'm assuming that 5 there'll be witnesses testifying about the exhibits 6 before they're offered, so -- but when -- 7 MS. RONALD: Certainly. But as to what issue? 8 And that -- that's -- it kind of, like, begs the 9 question to even go through the process, and I -- I10 appreciate the dilemma that we all are in.11 The appellants have their point of view. The12 applicant and DWR has its point of view regarding the13 relevance of any of this discussion, regarding regional14 studies that have been done primarily by the USGS15 regarding impacts on the river from groundwater pumping16 in the region where Pueblo Del Sol proposes to put its17 wells, and whether that's relevant or not.18 And I know that our position is, as was stated19 in our legal brief, it's not, because we don't have any20 legal authority to consider that, regardless of whether21 there's an impact or not. And it is regional. These22 are regional studies that are not focused solely on23 Pueblo Del Sol's proposed groundwater pumping.24 So we have a great deal of difficulty trying to25 come to some sort of an agreement about what those



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 reports mean, and how, even if you want to let them into 3 evidence, the scope of those reports, what are those 4 reports being offered to demonstrate, other than, yes, 5 there are regional studies; yes, groundwater pumping in 6 the region may have an impact on San Pedro River flows. 7 And so, I mean, that's our position. 8 So it -- it's -- I don't know. This is a -- I 9 have to say when we first started thinking about this10 case, we too would have liked to have been able to11 narrow the issues so that we didn't have to get into any12 of these hydrologic principles that the appellants would13 like to raise and spend time on at this hearing, because14 it just doesn't matter to the Department in this15 context, when we're dealing with an application for a16 designation of adequate water supply. We're constrained17 by statute and rule.18 So I mean, what we're really talking about is19 somebody should have filed a Motion for Summary Judgment20 and put out some proposed facts, if that's what they21 wanted to do, and we could all chime in and have our22 alternate facts and -- you know, and deal with it that23 way, but that's not the way we come to you today.24 So as much as I would like to streamline this25 hearing, because we really don't believe all of this



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 information is relevant at all to DWR, I share 3 Mr. Sullivan's concerns. I'm not really sure how we can 4 do that. 5 ALJ SHEDDEN: All right. I'm going to -- go 6 ahead. 7 MR. McDEVITT: It's kind of a procedural 8 question again. So when ADWR says that these studies 9 are just regional studies and we disagree because they10 look at the specific area that -- that Pueblo Del Sol is11 going to be pumping, do I -- I sort of already expressed12 my objection now, but how do we do this? So I mean,13 that's --14 ALJ SHEDDEN: Well, let me --15 MR. McDEVITT: -- I guess I sort of already16 answered, but, you know, we -- I disagree. I don't17 think so. I think that you look at their study, you18 pick their spot on the map, and you can see it's19 specific, and that should help you as a judge. That's20 why they're there.21 ALJ SHEDDEN: Well, in essence, you're asking a22 legal question in my view, or asking for legal advice,23 but the bottom line is each party presents their24 evidence, and if DWR feels that some of your evidence is25 not relevant, I'm confident they'll object. I'll hear



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 from the various parties as to why or why -- why it 3 should be considered relevant or why it should not be 4 considered relevant. And I make a ruling. I don't have 5 any problem telling folks that consistent with the vast 6 majority of judges at the Office of Administrative 7 Hearings, I'm going to be very, very lenient on letting 8 the evidence in, because -- for a couple of reasons. 9 One, relevance is pretty well standard when you get10 right down to it; and two, the director of the11 Department doesn't have to accept my findings. She'll12 be free to accept them, reject them, or modify them.13 So if I go and exclude a bunch of evidence --14 and it's not just the director of DWR, but virtually any15 agency heads of 99 percent of the hearings we do. If I16 exclude a bunch of evidence saying it's not relevant and17 then the -- in this case, the director believes I made18 an error, an error of law and that information should19 have come in, she's left without a complete record to20 make her determination.21 On the other hand, if I take the evidence into22 the record, I have no doubt in my mind that I can ignore23 the evidence that's of extremely limited weight or at24 the end of the day can produce a decision that focuses25 on what is relevant. Again, I do have the concerns, the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 statutory concerns, about probative value versus waste 3 of time, but the bottom line is, at an administrative 4 hearing, it's far better to err on the side of letting 5 evidence in, and then giving it no weight when all the 6 evidence is weighed, than to exclude a lot of evidence. 7 So anything else, Dr. Silver? 8 DR. SILVER: No. I think we're in a position 9 that, for instance, isn't even -- ADWR is going to have10 witnesses today, and I presume, you know, Mr. Corkhill11 is going to be one of them, right?12 MS. RONALD: Mr. Corkhill is not listed as a13 witness, Your Honor.14 DR. SILVER: No? Okay. So then when -- when15 ADWR's witnesses -- and we're forced to ask those basic16 questions like, Do you believe in reality? Then I guess17 we'll do that. That's fine. If we can't agree that --18 on something so simple as to whether there's a19 connection. That's fine.20 ALJ SHEDDEN: All right. Well, and, you know,21 whether folks should have filed, there's no obligation22 for folks to file a proposed facts ahead of a hearing.23 We're on a very short time frame. I know when we had24 our first discussion was probably back in September. At25 that time the appellants all were in favor of a longer



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 delay before the hearing. Pueblo Del Sol at that point 3 was concerned with meeting the requirements set out in 4 the statute, and I would suspect the compromise 5 position, here we are today. 6 So given that I don't hear unanimous consent to 7 take the time to discuss the issues and proposed 8 stipulated facts, I'm going to suggest we just go ahead 9 and move forward then, and I'll let the parties present10 their evidence, I'll get to the objections that come in,11 I'll make the rulings as necessary, and we'll leave it12 at that.13 But I do want to be clear that from my14 perspective, the issues that I have to deal with are set15 forth in those -- I'll call them numbered paragraphs --16 A through D in the Notice of Hearing there, and17 determine whether something is relevant. Those are the18 issues I'll be looking to, along with the applicable19 rules in the statutes, and I guess I'll just leave it at20 that.21 Yeah, go ahead.22 MR. McDEVITT: Your Honor, might we take23 15 minutes for parties' counsels to confer, to see if24 it -- we might be able to get some agreement out of25 stipulating things like hydrological connection between



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 surface water and groundwater? 3 ALJ SHEDDEN: All right. Let me ask, Is there 4 any objection to taking the 15-minute recess to 5 consider, at least preliminarily, some issues? 6 MS. RONALD: ADWR has no objection. 7 MR. SULLIVAN: We have no objection too. 8 ALJ SHEDDEN: All right. And Mr. Gaudio? 9 MR. GAUDIO: No, no objection.10 ALJ SHEDDEN: All right. And the others have11 already weighed in. So let me just see if -- and one12 thing I'm going to do is throw another issue out that13 you may want to just at least address preliminarily,14 maybe not something you want to take the time at this15 point, but at the end of the day or the end of the week,16 we will be done with all the evidence, hopefully, and if17 not, we'll just come back probably next year. But you18 never can tell about that either.19 But at any rate, the question I have for folks20 is how we're going to go forward with our closing21 arguments, whether it makes sense to do them in writing?22 If so, whether we'll just have simultaneous filings for23 everyone? Whether it makes sense to have the party with24 the burden of persuasion, burden of proof, get the last25 word. So if you haven't given any thought to that, you



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 can -- excuse me -- begin to give it some thought. If 3 you want to discuss that while you're on the break, 4 you're welcome to. 5 Let me just address one or two other things that 6 came up, and then we'll take our short recess and see 7 where we stand. 8 On the computer monitors -- I mean, I'm not even 9 sure what we -- what the staff opened up. It looks like10 two copies of the exhibits have been opened, and it may11 be that we've got some windows and tabs opened here, but12 on the hard drive of this computer is a list called the13 combined list of exhibits. It should have all the14 exhibits that were filed. We've got a pending motion to15 add an exhibit. I think that did get put on here; I'm16 not 100 percent sure whether it did or not. Yeah, 36,17 yeah, it does show it's been listed. They all should be18 active links.19 There -- the question that came up -- well, I'm20 a little slow -- the question that came up was operating21 the mouse and who might have control. My suggestion, as22 we move forward, is this: That the party questioning a23 witness should take control of the mouse and open up the24 exhibit or exhibits that they want that witness to25 address. If you're not comfortable doing that, you can,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 of course, enlist the aid, often parties group up 3 with -- in this case we have appellants opposed to the 4 application, or you can have an assistant help you with 5 that, if need be. I can do it, but that slows the 6 process down, because if I'm operating the mouse, it's 7 tough for me to pay attention to what's going on around 8 me. But I have no problem doing it, if necessary. 9 The witness will have a mouse, and so we can get10 the witness to help a little bit, particularly if11 there's a map or something that the witness would like12 to point at. They can use the mouse to use the cursor13 to go ahead and kind of point the area they're14 interested in.15 Also -- and it did look like we had some16 windows, some tabs opened up, is the entire docket in17 this matter, as it stood -- I don't think there was18 anything filed today or we would see it on here. So if19 there's a need to call up any information from the20 docket, we can put it on the screen in the same fashion.21 And finally, if need be, of course, we can have access22 to the Internet to pull up copies of statutes and rules23 that may be helpful for witnesses to take a look at24 while the questioning is going on.25 Here's where we stand then: Those are pretty



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 much the only -- well, one other thing, I guess, and 3 then we'll move forward. At the prehearing conference, 4 we did have a discussion about how the evidence would be 5 presented in terms of the order of presentation. And 6 although there may have been some disagreement at that 7 time, it's my intention, absent any objection at this 8 point or need to vary from this, we do go to ADWR's 9 witnesses first and get an understanding of what they10 did and why they did it.11 The way I will work is Ms. Ronald or Ms. Klobas12 will call a given witness. They'll ask whatever13 questions they have of the witness. Then I will -- for14 the DWR witnesses, I'll probably go to Pueblo Del Sol15 next, group questions, then move my way down the16 appellants, with not necessarily choosing a particular17 order, I'll go in the order you're sitting, probably,18 unless there's a desire to skip and go out of order.19 Then we'll be back to DWR for follow-up20 questions, and given the number of parties and the fact21 that this is an administrative hearing, not a trial,22 I'll let you go through as many times as necessary, as23 long as we're getting new information that's, of course,24 relevant to the matter. Once they're finished with25 their first witness, we'll go to the second one, follow



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the same basic procedures. 3 After DWR has presented its evidence in that 4 fashion, I'm going to turn to the appellants. And if 5 you three can come to an agreement among yourselves as 6 to the appropriate order, I probably won't have any 7 problem with that, but if not, I have a tendency to do 8 things alphabetically, take sort of the risk of bias out 9 of there. If you're an A or a Z, that may be10 problematic, having to spent your whole life at the11 beginning or the end, but that's the way I'll go12 forward. Follow the same basic procedure, questions13 from the person calling that witness in this case, going14 next to the appellants who, in theory, share the same15 interests, getting their questions, and then over to the16 Department or Pueblo Del Sol.17 We'll work our way through the appellants.18 We'll go to Pueblo Del Sol, get their evidence,19 following the same procedure, and then I'll be asking20 everyone, Is there any other evidence they'd like to21 present? And we'll go through that whole cycle as many22 times as is necessary for all the parties to feel23 they've presented all their evidence.24 The one thing that I do like to do is give the25 parties with the burden of persuasion the last word.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 That's a little tough when there's three of you here, 3 but that's what we'll work to. So at the end of the 4 first round, if DWR wants to present some additional 5 evidence, that'll, of course, open up the appellants to 6 get the last word. 7 And for all the witnesses' benefit, I may well 8 ask some questions of my own as we go forward. So don't 9 be surprised if that happens.10 So aside from the taking a little time to have a11 discussion among yourselves, let me ask, Are there any12 questions or preliminary matters that any of you feel we13 should be discussing before we move on?14 MR. GAUDIO: Judge?15 ALJ SHEDDEN: Yes.16 MR. GAUDIO: It's John Gaudio. So I just want17 to make sure that I'm understanding this correctly. The18 dispute is about whether DWR needs to consider the19 impacts on the rights of the -- of the BLM, and you're20 saying that you'll make that determination after this21 hearing is held, and you won't find it kind of necessary22 to decide that before, you know, the hearing -- during23 the hearing, in order to rule on whether the Department24 evidence is relevant?25 ALJ SHEDDEN: Well, kind of two parts to that.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 The first part, correct, if that is one of the -- and B 3 and C have -- essentially, issues B and C, as set forth 4 in the Notice of Hearing, are similar, I guess one could 5 say. But, right, it seems to me that at the end of the 6 hearing, I've got to issue a decision, and in the 7 simplest form, you know, reading B, whether ADWR 8 erroneously refused to consider impacts of the proposed 9 pumping on the flow of the San Pedro River. Yes or no?10 Seems to be, you know, in a nutshell, I suspect I fell11 short of my statutory duties if I limited it to that,12 but yes, at the end of the hearing, that will be --13 those questions will be answered from my perspective.14 As to the relevance, you know, I printed up --15 it's Arizona Rule 401. And, you know, knowing that they16 modified the rules beforehand in form, not substance, I17 went ahead and printed, for my own benefit, Arizona Rule18 of Evidence 401 that covers relevance, and what it says19 is evidence is relevant if, A, it has a tendency to make20 a fact more or less probable than it would be without21 the evidence, and B, the fact is of consequence in22 determining the action.23 So I don't see how I can understand whether24 something is of consequence without looking at those25 issues, and perhaps the underlying rules in statutes.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So that's where the relevance comes in, in my view. 3 Perhaps the second part of your question is 4 potential confusion in what are facts of consequence to 5 this matter? To me, they've got to be tied to the 6 issues in the Notice of Hearing, absent an agreement of 7 the parties to change those issues. 8 Does that answer your question? 9 MR. GAUDIO: It does, but it just feels like a10 purely legal question to me, whether -- on whether or11 not DWR erred in not -- not considering the impacts.12 I'm struggling with the kind of evidence that we would13 be able to add.14 ALJ SHEDDEN: Well, it may be that there's --15 BLM doesn't want to present any evidence on that, and16 that would be fine by me. It can be handled as a legal17 question. But the problem -- or problems, and I use18 those words loosely, are this or these: One, 41-1092.0719 probably indeed, I think I have the statute here, but I20 will not pull it out. It says something to the effect21 that all parties may present evidence and legal argument22 on disputed issues. So in a statute that allows parties23 to present evidence and legal argument, that makes it24 difficult for me to say, No, I'm not going to let you25 present evidence. This is purely a legal issue.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Coupled with that, again, back to the reality 3 that the director can reject my legal findings, so if I 4 rule -- and forget these issues for a minute, but if I 5 rule as a matter of law that -- on a dispositive issue, 6 then my decision moves over to the agency, and the 7 director says, I got it wrong, that director, she's left 8 without evidence in which to decide a matter and -- and 9 you're coming back here anyway.10 So as a result of those two particular things,11 there's a real aversion to what we would call piecemeal12 litigation at the Office of Administrative Hearings, and13 the better approach is to consider the legal issues at14 the end of the hearing. And if parties feel that15 there's no need to present evidence on a given point,16 that it is purely legal, that's fine. We'll move along17 more quickly.18 Alternatively, I will say there have been times19 that I've decided matters purely on stipulated facts,20 but I need some facts if -- if even just when the21 notices were issued, when -- when objections were filed,22 these kind of things, and I don't think that's too23 likely to happen here at this point.24 So does that help clarify things?25 MR. GAUDIO: Yes, it does.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: All right. Anything else? 3 Mr. Gaudio, anything else? 4 MR. GAUDIO: No. 5 ALJ SHEDDEN: Go ahead. 6 MR. McDEVITT: Your Honor, I was going to ask, 7 for example, if parties were to stipulate for issue B 8 that proposed pumping does or can have an effect on the 9 flow of a river adjacent or downstream from the pumping10 site? Would that allow you to make a legal conclusion?11 Would that, in your opinion, make other evidence12 irrelevant?13 ALJ SHEDDEN: Well, I don't know, and, you know,14 here's the problem: If you stipulate to facts, I'm15 going to take them. I'm not going to ignore stipulated16 facts.17 I -- it was a long time ago, but I remember18 sitting in this room after getting a set of stipulated19 facts on a matter and thinking, How does the appellant20 possibly think they can prevail on these facts? But,21 you know, that's what they went with; that's what I22 take. If the -- and the point, I guess, another way to23 look at it is, if that's a stipulated fact and one party24 wants to present additional evidence, you know, I can25 take that evidence in, subject to any objection to it.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 You know, you're not limited by stipulated 3 facts. The hope would be that -- that we would limit 4 the need for the examination of the witnesses, which can 5 take a long time, particularly when five people, and 6 six, if you include me, are going to get an opportunity 7 to question each witness. 8 Anything else? 9 MR. McDEVITT: No, Your Honor.10 ALJ SHEDDEN: All right. Any other questions or11 comments?12 MR. SULLIVAN: Off this point, Your Honor --13 William Sullivan, on behalf of Pueblo Del Sol -- had14 asked you a question about whether if we brought in a15 flash drive with PDFs on it, so that we could do it in16 order, whether that was possible to get it up on the17 screen. I don't think you have an answer, but you said18 we could take it on the record. So I just wanted to19 make my question on the record.20 ALJ SHEDDEN: Thank you. That was something21 that came off the record. I guess the question I have22 is it -- I -- I assume that if it's PDF, there's a PDF23 reader on here, because we're looking at -- we will be24 looking at PDF exhibits. I mean, that's what all of25 these files on the exhibit list are.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 The question I would have is what is the purpose 3 of getting documents that haven't been provided as 4 exhibits to this point? 5 MR. SULLIVAN: No, they would be exhibits. It 6 would be just so that we don't have to flip through, and 7 they would already be in order, and we wouldn't have to 8 flip them, you know, as we're going through it. It 9 would just be easier to present; that's all.10 ALJ SHEDDEN: Oh, yeah. I -- you know, the11 concern I have is you, in theory, all filed12 certifications when you filed your exhibits saying that13 these -- that we're going to look at the electronic14 ones, to the best of your knowledge or some such thing,15 are identical to the paper ones that were filed. And16 the same doesn't hold true with the PDF, and if it17 wasn't crystal clear, and, you know, this is good18 timing, perhaps, because -- but Case Management Order19 Number 1 set out the idea that those paper exhibits are20 an official record. And that's why we need the21 certification.22 The Superior Court doesn't favor the electronic23 exhibits for some reason, that it doesn't concern me,24 and so that's why we need to get one copy on paper from25 everybody and the certification, because now we've



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 got -- we've met our obligation at the office to have a 3 file that we can send over to the Superior Court. 4 I'm sure you all agree we hope we don't end up 5 there, but every case we need to assume will be going 6 there, and so that's the approach. So my preference 7 would be that we just go ahead and use the ones that 8 have been put up in that regard anyway. 9 MR. SULLIVAN: I think we can do that,10 Your Honor.11 ALJ SHEDDEN: All right. Yeah.12 MR. GAUDIO: Judge, one other thing. I missed13 the prehearing conference, I apologize for that -- this14 may have been discussed -- but I don't have real strong15 feelings, but it seems maybe to make some sense that16 Pueblo Del Sol follow DWR and then the appellants go,17 since their interests are aligned, rather than bounce18 from one side of the case, back and then back again.19 ALJ SHEDDEN: Yeah. I'm going to do the -- the20 problem with that approach is that the appellants bear21 the burden of proof in the matter, and it may well be22 that Pueblo Del Sol will decide not to present any23 evidence after hearing the appellants' case.24 What you did miss at the prehearing conference25 was Ms. Ronald suggesting or objecting to having DWR go



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 first and -- and wanting to have the appellants present 3 their evidence first. And I set this order, because, 4 again, it's fairly typical of the way we do things, 5 hopefully to help narrow the issues by having the agency 6 present its evidence. 7 I mean, we do have the prehearing brief and 8 understanding of what they did and why, but I don't have 9 any evidence yet. And so the idea would be to help10 narrow the scope of things. If there's a matter that's11 not in dispute, the appellants don't need to go forward12 that way. It's not necessarily as convenient when we've13 got five separate parties, but absent some compelling14 desire on Pueblo Del Sol's part to go after DWR and to15 stick with the order that was set forth at the16 prehearing conference. So you can consider that on the17 break, if you'd like, or perhaps discuss it among18 yourselves, and if we need to address it, we will.19 All right. Here's what I'm doing to do. For20 reasons that still escape me, when they painted our21 hearing rooms, they decided not to put the clocks back22 in. But because we have the computer going, we can use23 computer time. What I'm going to do is suggest we take24 about a 15-minute break to let you begin your25 discussions, to let folks have a break as well. I'll



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 pop my head back in here at about 20 minutes after. If 3 you want more time, if the parties are in general 4 agreement that there's a benefit to continuing 5 discussions, from my perspective, you could have more 6 time. If it's clear to the parties that that's not 7 going to be a good use of time, then we'll just move 8 forward. 9 I didn't mention it, but I will let parties make10 a brief opening statement, if they would care to do so.11 It's not necessary. And for those who don't know, the12 opening statements are not considered evidence, but a13 good way to put it would be a preview or a road map, if14 you will, of what you think the evidence will show.15 The other thing, understanding that although I'm16 calling it a break, if you're consulting among17 yourselves, it's not really a break for the parties18 concerned. If you need a little extra time before we19 get on the record to -- to truly have a break, again,20 just let me know when I come back, and we'll settle on21 what time we're going to pick things back up.22 With that, I'll see you in about 15 minutes.23 (Recess taken.)24 ALJ SHEDDEN: All right. We're back on the25 record. The parties have engaged in an extended



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 discussion off the record. And let me just ask, are we 3 set to put any stipulations on the record or where do we 4 stand? 5 MR. McDEVITT: Your Honor, this is David 6 McDevitt on behalf of Ms. Gerrodette. We believe that 7 the parties are willing to stipulate, though we did not 8 entirely stipulate some -- so I'm opening this up for 9 objection, that ADWR did not --10 MR. SULLIVAN: I'll object. We didn't --11 ALJ SHEDDEN: Well --12 MR. SULLIVAN: We didn't stipulate to anything,13 Your Honor. And where we agreed to continue discussions14 throughout this hearing to see if we could reach a15 stipulation, then I would oppose any reading of a draft16 stipulation that we did not agree to.17 ALJ SHEDDEN: All right. And given if there's18 no stipulation again, probably better served to keep any19 partial stipulations or information off the record. So20 with that, let me just ask, Do you want to add anything21 else, Mr. McDevitt?22 MR. McDEVITT: No, Your Honor.23 ALJ SHEDDEN: All right. Then let me just ask,24 we're set then to just move forward with opening25 statements, I take it?



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 MR. GAUDIO: Yes, Your Honor. 3 DR. SILVER: May I ask a question? 4 ALJ SHEDDEN: Yeah. 5 DR. SILVER: So -- and this goes back to our 6 initial discussion. If -- if we all agree that ADWR 7 just didn't consider the federal -- the federal water 8 rights, they said that -- they said they can't, and we 9 think they can, but the bottom line is they didn't do10 it. So now, since the first witness is going to be11 testimony on how they didn't consider it, what -- I12 don't understand what the purpose is of having someone13 come up here now, and what is he going to say --14 ALJ SHEDDEN: Well --15 DR. SILVER: -- of how they went through the16 process? We don't -- it's -- it's irrelevant to the17 ultimate decision is should they consider or not18 consider the federal water rights?19 ALJ SHEDDEN: Well, I don't know what the20 witness is going to testify to either. And that's why21 we're going to call him up here and hear from every22 witness. Again, I can tell you that to me these do tend23 to look like primarily issues of law. There's room for24 uncertainty or ambiguity on some of that, I guess. But25 again, going back to the statute 41-1092.07 that says,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 All parties are entitled to present evidence and legal 3 argument on the issues, that's what we're here for, to 4 have a hearing and do that. If nobody wants to present 5 any evidence on a given issue and wants to -- and 6 everyone wants to present legal argument on it, that's 7 fine. But I would think that, you know, at a minimum, 8 the fact would come in that DWR's witness would confirm 9 that they did or didn't consider certain things, and10 it's not beyond the realm of possibility that any of the11 parties' witnesses may have a slightly different take on12 things than the parties or their attorneys do.13 So the bottom line is I don't know what the14 evidence is going to be. I don't know what DWR's15 witnesses or anyone else are going to testify to. I16 have the brief summaries that the parties filed, but17 it's been a while since I looked at those, so that's how18 we're going to go forward.19 All right. If there's nothing else, I can turn20 to the parties for opening statements. You're not21 required to make one. But just to make sure we don't22 forgo the opportunity for that, I'm going to turn to DWR23 first. Ms. Ronald, an opening statement, if you'd care24 to make one.25 MS. RONALD: Thank you, Your Honor.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 We filed a prehearing legal memorandum, which 3 sets forth our theory of this case. And in that 4 memorandum we described the fact that by statute and 5 rule the Department of Water Resources must consider 6 certain criteria when determining whether to grant or 7 deny an application for an adequate water supply 8 designation. And in this case the Department did that, 9 and the statutes and rules that apply to that process10 are set forth in the legal memorandum that ADWR provided11 prior to this hearing.12 In the rules, there are basically five criteria13 or five sets of criteria that need to be complied with.14 One deals with physical availability, one deals with15 continuous availability, a third is legal availability,16 a fourth is financial capability, and a fifth is17 water -- the source of the water must be of an adequate18 water quality for the intended use.19 In this proceeding, it's our position that none20 of the parties, none of the appellants challenged the21 financial capability of the appellant or the water22 quality determination that was made by ADWR, as provided23 by rule.24 It's also ADWR's position that Pueblo Del Sol,25 the applicant in this matter, complied with the three



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 rules dealing with physical availability, continuous 3 availability, and legal availability. And that none of 4 the appellants, in our view, challenged the criteria and 5 its application to the PDS application. 6 Instead, the appellants assert that there is a 7 lack of physical, continuous, and legal availability, 8 because of potential impacts on the San Pedro River 9 and/or the San Pedro Riparian National Conservation10 Area, also known as SPRNCA. By rule, as we set forth in11 our legal memorandum, we do not and did not have the12 authority to consider any potential impacts from the PDS13 groundwater pumping on the surface flows of the14 San Pedro River or SPRNCA.15 In addition -- and we cited some case law,16 Your Honor, I believe at page 11 of our brief -- that17 deals with the jurisdiction of the Superior Court for18 the Gila River Adjudication, to deal with federal19 reserved water right claims that have been filed for20 SPRNCA, and that's what's at the heart of the BLM21 objection and notice of appeal.22 As indicated in a case that's cited on page 1123 of our memorandum, the Yavapai Apache Nation case, the24 Gila River Adjudication court has exclusive jurisdiction25 over those water -- those water right claims. These



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 claims have not yet been adjudicated. So even if ADWR 3 did have jurisdiction to examine them, there would be no 4 way to determine what any of the possible adverse 5 impacts would be from PDS's proposed groundwater 6 pumping. 7 And there's a case that the appellants rely on 8 that we do not believe is helpful. It's the Cappaert 9 decision, and the important part of that decision -- in10 that case groundwater pumping was curtailed because of11 impacts on the federal reserved water right. In that12 case, however, the federal reserved water right had13 already been quantified, and the limitations on pumping14 that the court imposed had to be tailored to meet the15 minimum needs of the reservation. Because we don't know16 what the minimum needs of the federal reservation for17 SPRNCA are, it's impossible to determine whether there18 should be any limitations on pumping.19 And, more importantly, all of those decisions20 should be made by the Gila River Adjudication court, not21 by DWR as part of an administrative process on an22 application for a determination of adequate water supply23 designation.24 I think it's important to point out that ADWR is25 an administrative agency, and it is required to follow



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 its own rules and regulations, and to do otherwise would 3 be unlawful. That statement is quoted in the AMWA 4 (phonetic) case that is cited at page 2 of DWR's 5 response to the Gerrodette motion to vacate. 6 Also in that case the court appropriately points 7 out that an agency's interpretation of its own 8 regulations is entitled to great weight. 9 The SPRNCA claims have not been adjudicated, and10 so potential impacts on federal reserved water rights11 are not proper grounds for a notice of appeal under12 41-1092.03, subpart (b). And that is argued again in13 the ADWR response at pages 7 to 8.14 This is really an easy case, in our view. We15 have a statute that we're supposed to follow. We have16 rules that we're supposed to follow. And in fact, to do17 otherwise would be unlawful. We followed those rules.18 Nobody, none of the appellants claim that we19 inappropriately applied the criteria that are set forth20 in the rules. Instead they make other arguments about21 what ADWR should have considered outside of its rules.22 We do not believe that that provides any basis23 for the relief that the appellants are seeking, and it24 was proper for ADWR to grant the application as a draft25 decision and order for consideration by any objectors



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 who chose to file a notice of appeal. We believe that 3 the draft decision and order should be upheld, and that 4 the accompanying cover letter, with the draft decision 5 and order, outlines the Department's reasons for 6 rejecting the claims that were asserted by the 7 appellants, and that that reasoning should be upheld as 8 well. 9 ALJ SHEDDEN: All right. Anything else?10 MS. RONALD: Not at this time.11 ALJ SHEDDEN: Okay. Why don't I go to you,12 Mr. Sullivan, if you would care to make an opening13 statement?14 MR. SULLIVAN: Thank you, Your Honor.15 And I'll try not to duplicate too much of the16 Department's statement, because I think she hit it on17 the -- the nail on the head, and this is a fairly18 simple, straightforward case.19 The evidence will show -- the Department will20 put on the administrative record and show that it did21 follow the rules which implement the statute, the22 statute which was passed after the rules were in23 existence.24 In other words, the legislature knew full well25 what the rules were when they enacted that language.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 They could have changed or ordered DWR to change the 3 law. They did not do so on these criteria. And I think 4 that's pretty important in the long run, because the 5 legislature has adopted a statute with the rules in 6 place. 7 The Department will go through, I believe, and 8 show what it did when it received an application from 9 Pueblo Del Sol. Pueblo Del Sol's witness will explain10 what was involved in preparing that application and the11 model that supported it. We'll -- the two entities will12 show that the application, as reviewed by the13 Department, confirmed that all the rules and regulations14 that define what an adequate water supply is for -- and15 entitles a designation for a water company, were, in16 fact, met.17 What you have are some appellants who want to18 change the process. They want to rewrite the rules.19 This is not the proceeding to rewrite the rules. There20 are other processes to do it.21 You'll have at least one appellant, BLM, who22 wants the Department to consider what its currently23 unquantified claim to a federal reserved water right24 might be, and to consider that in this application.25 Just -- just thinking about that out loud shows --



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 should indicate how silly that request is. It's 3 unquantified. And if the Department were to try to take 4 that on, what would they be looking at? How would PDS 5 be required to quantify it for BLM? The place that will 6 be quantified, if it's quantified at all, is in the 7 general adjudication. The place where the BLM will have 8 any opportunity it may have -- want to enforce its 9 rights is in the general adjudication.10 This is not that proceeding. This proceeding is11 simply a determination of whether the rules, as applied,12 have been met, because the rules require that when they13 are met, the director shall issue the designation. And14 the evidence will clearly show that PDS did, in fact,15 comply with and satisfy those rules.16 There appears to be a lot of desire on the part17 of the appellants to submit a lot of redundant and18 irrelevant evidence related to regional impacts of19 groundwater on stream flows, both in the San Pedro and20 elsewhere. I don't think we need to try to resolve all21 the technical issues that are involved in many of those22 reports, because that's not the issue before you. The23 issue before you is whether PDS satisfied the criteria24 for an adequate -- designation of adequate water supply,25 which it has done.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 There has been no other model presented -- there 3 has been no other testimony presented so far, and I 4 don't think there will be, as to what the impact of the 5 Pueblo Del Sol pumping will be. They have presented no 6 new evidence related to that. They haven't criticized 7 the model that PDS relied upon and the Department relied 8 upon. It clearly shows that the depth groundwater after 9 100 years -- the depth of groundwater after 100 years10 will be well within the statutory limits, as defined by11 the Department.12 The presumption in Arizona is that if you are13 pumping from beneath the surface, you are pumping14 groundwater. The Department -- the BLM argues that,15 well, they may have a right at some point in time to16 halt that pumping. It's a long ways away, and I believe17 the evidence will show that if they were to try to18 enforce their right, PDS is one of the last people that19 they would go against because there are a lot of20 additional wells well before that have much more impact21 on the river.22 Bottom line is, PDS filed an appropriate23 application. The Department of Water Resources followed24 its rules and regulations and determined that it was25 complete, and that it -- a designation should be issued,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 and the opinion and order properly makes that finding. 3 It should be upheld for those reasons. 4 ALJ SHEDDEN: All right. Mr. Gaudio? 5 MR. GAUDIO: Thanks, Judge. 6 As I mentioned earlier, BLM is here for, you 7 know, a very simple, simple reason. It's to object to 8 DWR granting the 100-year adequate water supply 9 determination to Pueblo Del Sol, without having first10 considered the possible impacts on BLM's federal11 reserved water rights in the San Pedro River Basin.12 Congress expressly created these federal13 reserved water rights for the purpose of protecting the14 SPRNCA, effective upon its creation in 1988. And except15 for the proceeding in the Gila River General Stream16 Adjudication, the SPRNCA-contested case, is in the17 process of confirming these rights and will do so18 certainly within the next hundred years.19 DWR and Pueblo Del Sol argue, based on an20 applicable adequate water supply regulation, that DWR is21 not authorized to consider such impacts, and so such22 impacts are irrelevant, despite what applicable federal23 and state law require.24 So I agree this is a simple case, but to declare25 it's not about what DWR Adequate Water Supply rules say,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 but what DWR must require. And it's important when an 3 applicant's proposed pumping is a water that's 4 hydrologically connected to water that is the basis of 5 an express federal reserved water right, as is the case 6 here. 7 Now, despite what DWR claims, it's not confined 8 to can't we apply the Adequate Water Supply rule that 9 DWR itself wrote. But instead, DWR and this body, in10 this very unique case involving federal reserved water11 rights, must consider other legal -- other sources of12 legal authority, as well. And that is the Arizona13 statute requiring "legal availability," applicable14 federal case law and Arizona case law.15 The applicable statute is A.R.S. § 45-108(i),16 which provides adequate water supply, meaning sufficient17 groundwater will be continuously, legally, and18 physically available, to satisfy the water needs of the19 proposed use for at least 100 years.20 However, based on this pretty plain statutory21 language, Administrative Code R12-15-718 A and C, read22 together, provide only, in relevant part, quote: The23 director shall determine that an applicant will have24 sufficient supplies of water that will be legally25 available for at least 100 years, if the applicant



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 submits evidence that the applicant has a certificate of 3 convenience and necessity approved by the ACC, 4 authorizing the applicant to serve the proposed use. 5 Apparently DWR interpreted the statutory 6 language to mean only that an applicant must be legally 7 authorized to pump the groundwater well, which is very 8 different from the clear meaning of the statutory 9 language, I believe, which specifies that instead the10 groundwater itself must be legally available to pump it.11 So what must it mean for the groundwater to be12 legally available in this case? The analysis is13 governed by the fact that when Congress created the14 SPRNCA in 1988 to protect one of the best remaining15 examples of a riparian habitat in the extremely arid16 American Southwest, it expressly reserved to the U.S.,17 all unappropriated water necessary to support the18 purpose of the reservation.19 And when the U.S. holds such federal reserved20 water rights, the Arizona Supreme Court itself,21 following an important earlier U.S. Supreme Court22 decision, has held that these rights are protected from23 junior groundwater pumping. And Cappaert, in 1976, the24 U.S. Supreme Court held, quote: Federal water rights25 are not dependent upon state law or state procedure.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 And quote: The United States can protect its water from 3 subsequent diversion, whether the diversion is of 4 surface or groundwater. And then in Gila -- in the Gila 5 River III, which was the result of an interlocutory 6 review of issues raised in the Gila General Stream 7 Adjudication in 1999, the Arizona Supreme Court 8 concurred with these established federal reserved water 9 right principles and clarified that, quote: Owners of10 federal reserve rights enjoyed greater protection from11 groundwater pumping than do holders of state law rights,12 to the extent that greater protection may be necessary13 to maintain sufficient water to accomplish the purpose14 of the reservation. And quote: We may not defer to15 state law, where to do so would defeat federal water16 rights. And finally, quote: We do not underestimate17 the burden that the State of Arizona will face in18 accommodating federal reserved water rights within its19 water resource management.20 And importantly, the Arizona Supreme Court held21 further that these federal reserved water rights, this22 doctrine, applies to federal reserved groundwater as23 well as surface water.24 Now, the DWR's actions in this case are25 inconsistent with these holdings, we believe.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Pueblo Del Sol and DWR have argued that even if DWR were 3 authorized to consider impacts on BLM's federal reserved 4 water rights, because the water rights are only, quote, 5 a claim, none of this law applies. But Congress clearly 6 reserved the right, the Gila General Stream Adjudication 7 has recognized the existence of the right, and DWR 8 issued a report in the Gila General Stream Adjudication 9 finding nothing unreasonable about BLM's quantification10 of the right provided in this claim.11 Given these facts and considering that the U.S.12 did not have the federal reserved right recorded in13 Cappaert, as I understand it, rather than DWR assuming14 that the water to be pumped is legally available, unless15 BLM has a finalized decreed federal reserved water right16 in hand, DWR must at least consider whether at some time17 over the next 100 years Pueblo Del Sol's proposed18 pumping could impact BLM's already vested, though not19 today finally decreed, federal reserved water right.20 Importantly, DWR's determination includes an21 escape provision, which means pursuant to AAC22 R12-15-715, the director may, at any time, revoke this23 designation if the findings of fact or the conclusions24 of law upon which the designations in the case change or25 are invalid, or if an adequate water supply no longer



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 exists. So this language and regulation apparently 3 would allow ADWR to revoke this adequate water supply 4 determination after BLM has a finalized decree in the 5 Gila General Stream Adjudication. 6 So we believe that the sounder, more efficient 7 approach here would be to await the outcome of the 8 general stream adjudication, expected to be in the next 9 year or two, before issuing the adequate water supply10 determination. This approach would prevent11 Pueblo Del Sol and others from relying on a designation12 that's destined to be revoked, makes no sense.13 So what does BLM need to show to convince14 everyone that this law does apply in this case? Very15 simply, BLM needs to show how and the degree to which16 the groundwater is connected to the surface water and17 underground water in the San Pedro River Basin, which18 BLM's federal reserved water rights depend on, and19 therefore, that Pueblo Del Sol's proposed pumping could20 cause harm to BLM's rights.21 And BLM is going to do this by calling two22 employees of the Department of Interior as witnesses.23 First will be Dr. James Leenhouts, who is a hydrologist24 and associate director of the United States Geological25 Surveys, Arizona Water Science Center, in Tucson,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Arizona. He'll provide a general overview of 3 groundwater geology and how groundwater interacts with 4 surface water, and explain the specific connection 5 between the groundwater and the surface water in the 6 San Pedro River Basin itself, and how pumping in the 7 basin, including Pueblo Del Sol's proposed pumping, will 8 eventually impact San Pedro River Basin water that BLM's 9 rights depend on.10 After Mr. Leenhouts, we'll call Bill Wells, a11 hydrologist and federal water rights specialist in BLM's12 Arizona state office in Phoenix, to describe the BLM13 rights that are like -- that likely will be impacted by14 Pueblo Del Sol's proposed pumping, as well as to discuss15 the proceedings in the Gila General Stream Adjudication16 that are related to BLM's federal reserved water rights.17 The Department of Water Resources at18 Pueblo Del Sol insist in this case that DWR has no19 authority to consider the impacts that Pueblo Del Sol's20 pumping on BLM -- impacts from Pueblo Del Sol's pumping21 on BLM's federal reserved water rights. But22 A.R.S. 45-108(i), Cappaert and Gila River III require23 DWR to do just that, we believe.24 And after hearing our case, we all understand25 the connection between the groundwater and the water



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 that supports BLM's federal reserved water rights in the 3 San Pedro Basin. BLM hopes that you will recommend to 4 DWR that it consider -- reconsider its adequate water 5 supply determination to Pueblo, after taking into 6 account the likely impacts from Pueblo Del Sol's 7 proposed pumping over the next 100 years, on both the 8 groundwater and surface water that BLM's SPRNCA federal 9 reserved water rights depend on.10 Thank you, Judge.11 ALJ SHEDDEN: All right. Go ahead.12 MR. McDEVITT: May it please Your Honor, I'm13 David McDevitt, certified limited practice student,14 representing Ms. Gerrodette -- Ms. Patricia Gerrodette.15 Our client asks, Your Honor, to recommend that16 DWR not grant the designation unless and until it has17 found that groundwater will be legally available for at18 least 100 years. DWR has made no such finding and asks19 Your Honor to go against the Supreme Court's decision in20 Gila River III, wherein the court held that Arizona's21 water resource management may not ignore the impact of22 groundwater pumping on federal reserved water rights.23 DWR raises Yavapai as an example to the court24 where water resource management and general stream25 adjudication are separate and distinct in order to argue



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 that only the general stream adjudication has the 3 jurisdiction to make a decision about these claims. 4 The appellant, Ms. Gerrodette, does not dispute 5 that this is not the proceeding in which to grant a 6 vested final right. My client only argues that it must 7 be taken into consideration. 8 In Gila River III, the Supreme Court very 9 clearly makes both the distinction that there will be an10 effect on the general stream adjudication as a result of11 this ruling, which held specifically that groundwater12 pumping may be averted by those who hold federal13 reserved rights. And in addition, there will be an14 effect on the water resource management process. And15 the court acknowledges that this will be burdensome, and16 that this will flip Arizona water law on its head, but17 it made that holding because it is the sensible18 decision.19 The purpose of the designation of adequate water20 supply is to let prospective buyers know whether a home21 has a stable and reliable source of water. DWR's own22 website states that it acts as a consumer advisory23 program, ensuring that potential real estate buyers are24 informed about any water supply limitations. Here we25 actually know about a water supply limitation, and DWR



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 would like to, in the face of information to the 3 contrary, grant the designation anyway. Ignoring legal 4 realities and mechanically applying regulations vitiates 5 the purpose of this legislation. It not only diminishes 6 the significance of a designation, but it leaves 7 consumers worse off than if they'd been given no 8 assurances at all. That DWR may revoke the designation 9 in the future does nothing for home buyers who10 detrimentally rely on the false designation in the11 meantime.12 The parties point out that there's an immunity13 clause to argue that the State of Arizona cannot be held14 liable for putting its seal on false designation.15 Now, whether courts will uphold this clause has16 yet to be seen, but Your Honor should take no comfort in17 the argument that consumers will simply be without18 relief upon warning of their substantially diminished19 property values.20 Pueblo Del Sol argues that DWR is without21 statutory authority to consider the impacts of pumping22 on the surface flows or reserve rights. This is simply23 not true. The statute calls for a legal assessment.24 Gila River III calls for a legal assessment based on25 these factors.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 While DWR's regulations do not address these 3 considerations, that is an argument for revising the 4 regulatory framework, if not an excuse for DWR to ignore 5 its own legislative mandate. 6 Our client asks Your Honor to recommend that DWR 7 not grant a false designation. DWR should reevaluate 8 the application and make a factual assessment regarding 9 what impact, if any, the proposed pumping will have on10 the federal conservation area. If there will be no11 impact, this issue is moot. But without an assessment,12 the decision cannot be sustained.13 In the alternative, DWR should deny the14 application if it cannot find that groundwater will be15 legally available for at least 100 years, based on16 current legal statutes and case law.17 Thank you very much.18 ALJ SHEDDEN: All right. Dr. Silver?19 DR. SILVER: Yes. ADWR used to evaluate these20 situations fairly. They used to look at a situation21 like this and say, Wow, we don't know what's going to22 happen. We sort of know what's going to happen in23 adjudication, because we're dealing with a basin that's24 overallocated, where ADWR has permitted too many wells,25 has permitted too many developers to pump water. We



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 know what's going to happen. But what they used to do 3 is they used to say, you know, We don't know what's 4 going to happen, even though we do, and so we're going 5 to say that your certificate is going to read inadequate 6 until we know. 7 Now, what they say is, Your certificate says 8 adequate because we -- and I can't wink for everybody -- 9 because we're not sure what's going to happen. Now, how10 do they do that? They say that we have no choice.11 Well, Congress said that Arizona does have a12 choice. In fact, it's not a choice; you have no choice.13 And that is that you have to recognize federal reserved14 water rights. Cappaert was the case on point. Now, I15 spent -- I'm not a lawyer, but I've spent a lot of time16 talking to the lawyers and the witnesses in Cappaert.17 There was a mark on the wall. None of the folks that I18 talked to could provide me with the evidence of a19 quantification, and they said, You can't -- it was a20 basin pump so that this mark on the wall gets violated.21 Please, if I'm wrong, because I'll ask your witness the22 same thing, provide the evidence that Cappaert was23 quantified and therefore it's not applicable.24 And then we came to Gila III. These folks are in the25 middle of this massive adjudication that seems like it's



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 never ending, we hope it will, and they recognize that 3 Congress said federal water rights count. And not only 4 did they say in recognizing they count, they recognize 5 that when the surface rights are provided for by 6 groundwater, then that extends to groundwater. 7 We tried to stipulate here that there's a 8 connection between groundwater and surface water, and, 9 you know, a good degree of it, you know, lawyerly or10 social level, but it is connected. There's no11 difference in this basin between the groundwater and the12 surface water.13 And while I think that folks have mentioned to14 the numbers, you, as the judge, will have to look15 through here and see that even in the state statutes16 that exist, they ask that when the groundwater really is17 surface water, that you show some proof that you have18 access to the surface water. They don't have access to19 the surface water because it's not legally theirs.20 Now, how do we end up resolving this? I would21 say, please, at some point, if we can't stipulate that22 there's a connection, you can acknowledge it and you can23 cite PDS's own procedures, if you need to have something24 to cite. You can cite ADWR's publications about that25 there's a connection. You can be very consistent with



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Gila III, because in that they did have a qualifier and 3 they said, Well, you really shouldn't look beyond 4 surface water rights, unless there's not enough surface 5 water. And you can look, and you can look at ADWR's 6 numbers, you could look at the USGS numbers, and in this 7 basin, you can see that before there's any pumping right 8 now, the natural recharge, going -- what goes in is 9 equaling what's going on. That's before we start.10 That's even before we have ADWR issuing their exempt11 wells that an additional 4,680 just since Congress12 designated that the -- the federal water rights, and to13 developers, they added another 14,769 acre-feet. You14 know, the summary is that we're about 20,000 acre-feet15 already overallocated just based on what ADWR is16 permitted by pretending that they can't do anything.17 Now, when I look around the room -- and I have18 to say that I don't see anybody else as old as me in19 here, but I'm an Arizona native, and I grew up here.20 And there was a fellow that was -- that was pretty21 infamous when I was a kid. His name is Ned Warren. I22 don't -- you -- I'm sorry, Judge, but you're not even23 old enough to know who he was. But we got the Arizona24 consumer fraud law because this fellow was selling land25 to people that didn't have water. When someone looks at



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 buying property in the Sierra Vista area, they don't 3 need to be sitting there and be not sure what the fine 4 print says. It's very clear. There's an inadequate 5 supply of water from a very specific date, and that date 6 at this point, without any argument, is November 18, 7 1988. That's when the San Pedro got its water rights, 8 and ultimately, that's what an adjudication court is 9 going to say.10 We're not asking you to quantify the water that11 is that federal reserved water rights, but you can12 certainly see that we're overallocated, that it's13 unfair, and that ADWR issues a certification that14 there's adequacy when there's not. You can do that.15 Thanks.16 ALJ SHEDDEN: All right. We will go to DWR17 then. Who will be the first witness?18 MS. RONALD: We call Andrew Craddock.19 ALJ SHEDDEN: Come on up and have a seat over20 here.21 DR. SILVER: You all right?22 MALE SPEAKER: Yeah. My heel just -- right when23 I got up (indiscernible).24 DR. SILVER: If we have to call one doctor in25 the room, then --



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 MALE SPEAKER: Yeah. 3 DR. SILVER: One M.D., I guess. 4 (Indiscernible). 5 ALJ SHEDDEN: I'm going to get you sworn in, so 6 if you'd raise your right hand. 7 (Whereupon, Andrew Craddock was sworn by 8 ALJ Shedden.) 9 ALJ SHEDDEN: All right. Go ahead and state and10 spell your name for the record, as a formality, please.11 MR. CRADDOCK: My name is Andrew Craddock, and12 that's spelled A-N-D-R-E-W, the last name is13 C-R-A-D-D-O-C-K.14 ALJ SHEDDEN: All right. I'm going to turn it15 over to Ms. Ronald.16 I'll let you know, of course, our sight lines17 with all the computer monitors can be off a little bit18 at times. So if you need them to scoot around, just let19 the witness know, and we'll do our best to adapt. But20 whenever you're ready, go ahead.21 MS. RONALD: Thank you, Your Honor.22232425



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ANDREW CRADDOCK, 3 a witness herein, having been first duly sworn, was 4 examined and testified as follows: 5 6 DIRECT EXAMINATION 7 BY MS. RONALD: 8 Q. What's your educational background, 9 Mr. Craddock?10 A. My educational background: I have a bachelor in11 science from Northern Arizona University, where I12 majored in geography, with a minor in geology. And I13 also did graduate course at New Mexico State University,14 in Las Cruces, New Mexico.15 Q. When did you graduate?16 A. From Northern Arizona University was 1999.17 Q. And when did you complete your post-graduate18 coursework?19 A. I completed my coursework in December of 2003.20 Q. Are you currently employed?21 A. Yes, I am currently employed.22 Q. By whom?23 A. The Arizona Department of Water Resources.24 Q. How long have you worked for DWR?25 A. I was first hired by the Department in the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 summer of 2005, so about seven and a half years. 3 Q. And what is your current position? 4 A. Currently, I'm the manager of the Recharge and 5 Assured and Adequate Supply Programs at the Department. 6 Q. What were your duties and responsibilities prior 7 to your current position? 8 A. Like I said, when I was first hired in 2005 by 9 the Department, I began learning general procedures,10 basically the intake of annual reports, the review of11 those annual reports, and data entry. And then as I12 progressed throughout the Department, I had -- my focus13 was on the Department's compliance program, and I had14 increasing responsibilities under the compliance15 program, up to -- I think the final position was the16 compliance coordinator for the Department, was the last17 previous station I had prior to this current job I have.18 Q. And again, when did you start in your current19 position?20 A. In my position as manager of the Recharge and21 Assured and Adequate Water Supply Programs was August of22 last year, or August of 2011.23 Q. What are the duties and responsibilities that24 you have in that position?25 A. My responsibilities in my current position, we



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 have a staff of seven people. We, you know, review the 3 intake of applications for both the Recharge and Assured 4 and Adequate Programs, the review of those applications. 5 We have staff meetings that discuss any issues we have 6 concerning the applications. And then so kind of a 7 day-to-day activities, making sure we're meeting our 8 licensing time frames that are associated with those 9 applications that are filed with the Department. And10 then kind of outside of that program, manager11 responsibility, I also coordinate with other programs12 and divisions within the Department on water management13 issues that affect, not only my program, but other14 programs that we have at the Department.15 Q. So you're a department manager then for the16 Adequacy Program within the Department?17 A. Yes. It's both the Assured and Adequate18 Program. I'm the manager for both programs.19 Q. And are you familiar with the statutes and rules20 that relate to that program?21 A. To the Adequacy Program?22 Q. Yes, to the Adequacy Program.23 A. Yes. I'm familiar with those rules and24 statutes.25 Q. And do you have any idea how the rules were



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 adopted for the Adequacy Program? 3 A. I mean, outside of the general context of 4 that -- how rules were created and they go to the 5 governor's regulatory review council, outside of that 6 thing, I haven't been involved in the rule-making 7 process, but that's my general understanding that 8 there's a -- you know, there's a formal process that has 9 public input, and there can be stakeholder process for10 some of the stuff we do. That's my kind of general11 understanding as far as, you know, how the statutes and12 rules could be created or discussed.13 Q. What rules apply to -- if you know off the top14 of your head, that -- that apply to the Adequacy15 Program?16 A. To the Adequacy Program, as far as statutory17 citations, we review Arizona Revised Statute 45-108 and18 45-108.01, are the two statutory references. And then19 as far as the Administrative Code Rules, we look at20 Rule 1215-714 through 720, and those are particular to21 the Adequacy Program and discuss physical, legal,22 continual availability -- continuous availability in23 those rules.24 Q. As you look at the statutes for 108 and 108.01,25 and in the code there are pre- and post-October 2011



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 versions of that statute; is that correct? 3 A. Yeah. In the code there are two statutes for 4 both, 108 and 108.01, with different effective dates 5 when the revisions to both of those statutes occur. 6 Q. And basically what do the revisions deal with? 7 A. The revisions have what I would call basically a 8 statutory cross-reference amendment to them that relates 9 to county adoption, what we call mandatory adequacy10 jurisdictions. There was a change in the county11 process, and those revised statutes of 108 and 108.0112 reflect that change.13 Q. Under the statutes and rules, what criteria does14 an application for designation of an adequate water15 supply need to satisfy?16 A. In this particular case, the Pueblo Del Sol17 case, we look at -- there's five criteria the Department18 looks at, and that's the physical, legal, and continuous19 availability of the water supply for a hundred years,20 also that the water supply is of adequate quality, and21 that the applicant has the financial capability to22 construct the necessary infrastructure, and things like23 delivery works, storage, pumping capacity, that sort of24 thing.25 Q. Did you indicate that you were also the program



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 manager for the Assured Water Supply Program? 3 A. Yeah. I have the Recharge and the Assured and 4 Adequate Programs are all under my supervision. That's 5 correct. 6 Q. And what's the basic difference between the 7 Adequacy Program and the Assured Water Supply Program, 8 in terms of the criteria that need to be satisfied? 9 A. In terms of the basic five criteria that I10 identified, for the Assured and Adequate Water Supply11 Program, the Adequate Water Supply Program, in the case12 of Pueblo Del Sol's application, are applicable to areas13 in Arizona outside of specially designated Active14 Management Areas. Locations within the Active15 Management Areas, the Assured Water Supply statutes and16 rules are applicable with the -- the difference being17 for the Assured Water Supply statutes and rules, there's18 two additional requirements that deal with the19 management -- consistency with the management plan20 that's adopted for each of these AMAs and consistency21 with the management goal.22 Q. Is there any difference in the physical23 availability and determinations criteria for Assured and24 Adequate Water Supply?25 A. There's -- the difference between the two, as



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 far as how we look at the different demands that are 3 associated with the two, the calculations, as we get to 4 that, the calculations we use in both the Assured and 5 Adequate Water Supply are the same. 6 The difference is in the Assured Water Supply 7 Program versus the Adequate Water Supply Program, after 8 100-years evaluation, we look at different depths to set 9 a groundwater level, and for those areas, like the10 Pueblo Del Sol application, outside of Active Management11 Areas, that maximum allowable is 1200 feet below land12 surface; whereas, in three of the AMAs, it's 1,00013 acre -- that's -- excuse me, 1,000 feet below land14 surface, and then the Pinal Active Management Area is15 1,100 feet below land surface. So there's a difference16 in the maximum allowable depth to groundwater after the17 100-year projection, but the calculation to get to that18 projection is the same.19 Q. What do you mean by that? What calculations are20 you talking about?21 MR. McDEVITT: Objection, Your Honor. We would22 just like to ask about the relevance of this testimony.23 ALJ SHEDDEN: Ms. Ronald, you can respond, if24 you'd like.25 MS. RONALD: This is just to set forth the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 process by which the Department of Water Resources 3 evaluates applications for designation of assured 4 water -- of adequate water supply. So this is just 5 background leading up to the review of the actual 6 Pueblo Del Sol application itself. 7 ALJ SHEDDEN: All right. I'm going to overrule 8 the objection, and we can take the background 9 information in.10 BY MS. RONALD:11 Q. So do you recall the last question?12 A. Can you please repeat your last question?13 Q. The last question that I asked dealt with the14 calculation of the depth to groundwater under the15 Adequacy Program and the Assured Water Supply Program.16 What do you mean by the calculation? What are you17 talking about?18 A. The calculation that we use in the Assured and19 Adequate Water Supply programs, we look at not only the20 applicants or what I'll call the proposed pumping, that21 the application entails in that geographic area, but we22 also look at previously -- well, current demands that23 are already there and previously approved demands in24 that area. So we take basically what was existing in25 that geographic area and then also the proposed demands,



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 in this case, from the Pueblo Del Sol application to 3 take all of those pumping values, as those are 4 incorporated in the model, to determine the results of 5 what 100 years of pumping, what that depth to 6 groundwater will be at the end of the hundred years, and 7 that's -- that's the basic same process for both assured 8 and adequate water supplies. 9 Q. What do you mean by "approved"?10 A. Demands that have already been approved in that11 area?12 Q. Uh-huh.13 A. In the case of the Pueblo Del Sol application,14 the water reports that are already approved. In that15 area it can also be analysis that are also approved by16 the Department. If you're talking in the Active17 Management Areas, under the Assured Water Supply18 Program, you also look at certificates that have an19 associated, you know, volume of pumping to them, and20 also other designations in the area. So basically all21 approved pumping by the different reports or22 designations or certificates that are part of the23 program.24 Q. So what is the -- the normal terminology that's25 used within the Department for these demand



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 calculations? What kinds of demands does the Department 3 refer to these as? 4 A. The demands, as included and listed on our 5 application and as defined in the rules, we look at 6 current demand, we look at committed demand, and we look 7 at projected demand, and those three calculations give 8 us a total demand value through the course or -- of what 9 the -- how far the designation is going to be issued10 out.11 Q. What's the difference between current demand and12 committed demand?13 A. The current demand refers to existing water14 uses, carried at a hundred years, and we base that off15 of the previous year's annual report, each water16 provider, regardless if they're in the Active Management17 Area, and have the Assured Water Supply rules or18 adequate rules has to file an annual report that details19 several things, you know, operations that go on within20 the service area, one of them being the amount of water21 that was pumped out of the ground. So the requirement22 for the current demand is existing uses based off the23 last calendar year's report, is what the rule requires.24 Sorry, did you ask for committed?25 Q. Yes. What about committed?



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. The committed demand numbers include demands for 3 plats that have been -- plats or lots that have been 4 recorded but have not yet been served by the applicant, 5 or water company that has not been served within the 6 service area. 7 Q. And you just mentioned lots that have been 8 recorded. How does that relate to platting and 9 everything else, by the local platting authority?10 A. The -- the plats or the lots are recorded or11 approved, for lack of a better term, by the -- like you12 said, by the local platting authority. In this case the13 platting authority would -- would be Cochise County.14 Q. But they wouldn't be necessarily developed yet;15 is that correct?16 A. For the -- yeah, not necessarily -- and when17 we're talking about the committed demand, it's demand18 for those plats or lots that have been recorded but have19 not yet been served water by the water company.20 Q. Who is the local platting authority for the PDS21 service area?22 A. Pueblo Del Sol is located in Cochise County, and23 they're the local platting -- what's termed the local24 platting authority for this application.25 Q. Now, you mentioned earlier something about a



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 mandatory adequacy jurisdiction. Is Cochise County a 3 mandatory adequacy jurisdiction? 4 A. Yes. Cochise County is a mandatory adequacy 5 jurisdiction. 6 Q. What does that mean? 7 A. Before lots are recorded or plats are recorded 8 within Cochise County, because they -- the platting 9 authority requires that the Department make a10 determination that there's an adequate water supply for11 the development or for the application or, in this case,12 for the service area designation. So it's mandatory13 that they have an adequacy determination before -- from14 the Department prior to those lots being recorded by the15 local platting authority.16 Q. As program manager, were you aware when -- I'll17 just go ahead and ask it this way: Were you aware when18 Pueblo Del Sol had filed its application for a19 designation of adequate water supply?20 A. Yes. I believe they filed -- the initial21 application was just prior to I took -- to when I took22 my current position. I believe that was in June of23 2011.24 Q. And was there a cover letter that was filed with25 the application?



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. Yes, there was a cover letter. 3 Q. And I would direct your attention to DWR 4 Exhibit 1. Is that on your screen? 5 A. Yeah. 6 Q. Okay. Good? 7 A. Sorry. Is this where I don't control it and you 8 do? 9 Q. Yeah. That's right.10 A. Okay.11 Q. We're going to let Ms. Klobas control the screen12 for you.13 A. All right.14 Q. So is that the cover letter that came in with15 the initial application?16 A. Yes. This is the cover letter that we received17 on June 23rd, 2011.18 Q. And does it describe the relationship of a19 number of entities that have to do with the20 Pueblo Del Sol service area?21 A. Yes. The -- the letter was submitted by Fluid22 Solutions on behalf of Pueblo -- the Pueblo Del Sol23 Water Company, and that Pueblo Del Sol -- the owner of24 the water company is Castle & Cooke Arizona,25 Incorporated, and they are also the developer of the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Tribute MPC -- or, sorry, the master planned community, 3 the Tribute MPC, and that the owner, being 4 Pueblo Del Sol or Castle & Cooke, retained the services 5 of both Fluid Solutions and Brown and Caldwell to 6 develop the groundwater model to establish the water 7 supply. 8 Q. Okay. I'd like to direct your attention to DWR 9 Number 2. Is this a copy of the initial application10 that was filed?11 A. Yes. This is a copy of the June 201112 designation.13 Q. Okay. Let's go to page 2 of that document. And14 are there demand estimates included in page 2?15 A. Yes. Page 2 includes demand estimates.16 Q. So do you see current, committed, and projected,17 and a total annual demand on that page?18 A. Yes. There are four different lines for the19 demands listed for current, committed, projected, and20 total.21 Q. Were there any attachments to this application,22 do you recall?23 A. Yes. I believe there were --24 Q. All right.25 A. -- four or five.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Just pause for a second and we'll pull up 3 DWR 2-A. 4 A. Okay. 5 Q. What is this attachment? 6 A. Attachment A was the service area map. 7 Q. A hard copy? 8 A. Yeah. A paper version of the map. 9 Q. And then DWR 2-B?10 A. Yeah. Attachment B was an electronic copy of11 that same service area map.12 Q. And then let's look at DWR 2-C, what is that?13 A. Attachment C is the demand spreadsheet.14 Q. Does it include the three categories of demands,15 the current, committed, and projected?16 A. Yeah. Yeah, it's kind of hard to see on the17 screen, just because of the orientation, but it does18 include current, committed, and the projected, and total19 demand numbers, I believe, at the -- it would be the top20 of the page.21 Q. And then let's turn to DWR Exhibit 2-D. And22 what is this?23 A. Sorry. Attachment D, that's the -- the24 ground -- the hydrologic groundwater model.25 Q. And were there any attachments or appendices to



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 attachment D? 3 A. Yes. There were also several attachments to D. 4 Q. So on the screen now -- stop, yes -- there's 5 a -- I believe it's page i, maybe, of the table of 6 contents, I'm not sure -- maybe scroll up just a little 7 bit so we can see the page number. There it is. 8 So how many appendices are there? 9 A. The list of appendices goes through -- from10 Appendix A through Appendix F, so there's six11 appendices.12 ALJ SHEDDEN: And -- and let me just drop in for13 a second with regard to the record we're creating via14 the audio recording here.15 Ms. Ronald is correct, we're looking at page i16 on this particular document, as it was labeled in the17 hard copy. The PDF numbers often don't match, and while18 she could take some steps, I think you can work around19 the default on PDF would be that the very first page,20 which may be a cover of a report or something with a21 different number would be page number 1, arabic 1, going22 on in this case through, it looks like, 188.23 We're looking at page 4 on the PDF version,24 page i on the -- well, it would have been the hard copy25 when it was submitted. I'm going to, as we go on, let



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the parties identify the documents however they would 3 like to do so, which page we're on. Periodically, I may 4 jump in to try and make sure we're creating a good 5 recording here, but in theory there are people who are 6 going to rely on this recording. I assume you folks are 7 going to, perhaps, when you prepare for future day's 8 testimony and/or any closing briefs. I may be relying 9 on the recording, in addition to my notes, as I review10 the evidence, and the director of DWR may want to rely11 on portions of that as well, and if it goes further than12 that.13 So it's incumbent upon me to try and make sure I14 complete a good, detailed audio record to help with15 that. So again, I'll let folks try and identify the16 information as they see fit, using whichever numbers,17 but since everyone will have access to the PDF18 electronic file at the appropriate time, those numbers19 should probably work. And again, I may jump in20 periodically to flesh out the recording if I think it's21 necessary. And with that, I apologize for the22 interruption.23 Go ahead, Ms. Ronald.24 MS. RONALD: Thank you. I see that in the25 upper, right-hand corner, it looks like there's the PDF



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 pagination on the -- the exhibit, so I'll try to 3 cross-reference that as I move through it. 4 ALJ SHEDDEN: Yeah. And let me show folks 5 something else. I'm going to take the models, and you 6 know, all the -- 7 MS. RONALD: Oh, yeah. 8 ALJ SHEDDEN: -- versions of these programs seem 9 a little bit different. But on the version that we're10 using at OAH, you can see, down toward the bottom of the11 screen, I've dragged the mouse over what then becomes an12 invisible -- in theory it does, if I move -- maybe13 someone else put it there -- little task bar of sorts.14 And by clicking the little triangular Adobe, probably a15 registered trademark, if you will, will open up16 additional information on the side, including the17 single-page views of things, and then that opens the18 little box at the top that has all the page numbers.19 And a couple of things with regard to this: If20 you know what page you're going for, you can jump21 straight in by typing the page number. Sometimes it's22 also a little quicker if you use that version on the23 side.24 I -- I didn't say this in my opening remarks. I25 bit my tongue, but we're preparing a little CLE that



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 will be presented this week on the electronic case 3 files. And so one of the lessons learned for me, as the 4 administrative law judge, is let the computer operator 5 do it however she wants to at a given time and be 6 content with that. 7 So, Ms. Klobas, I'll let you put it in whatever 8 form you'd like to at this point, but oftentimes folks 9 don't know all the options, and I can help set it up if10 folks want me to. But again, like with most things on11 the computer, I guess there are a number of different12 ways to go about it, including getting the page numbers13 and perhaps a little easier access. And I don't know if14 all -- all of you use Windows, if you refer to them,15 Ms. Ronald, they're going to be there. I see them on16 some documents, but not on others.17 So with that, again, I'll turn the mouse back18 over to you, Ms. Klobas, and questioning back over to19 Ms. Ronald.20 MS. RONALD: Thank you, Your Honor.21 BY MS. RONALD:22 Q. Oh, yes, the list of appendices. We have A23 through F, and Appendix A, what does that deal with?24 A. Appendix A -- this says the B and C technical25 memorandum. That --



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. What -- what does B and C refer to? 3 A. That's Brown and Caldwell's technical 4 memorandum. 5 Q. And in that cover letter that came in with the 6 application, what was the role of Brown and Caldwell? 7 A. They were one of the -- the technical advisors 8 that helped prepare, along Fluid Solutions, the numeric 9 model that supported the hydro-analysis for the10 application.11 Q. Okay. After the application came in, did ADWR12 review that application?13 A. Yes. The Department reviewed the June 201114 submittal.15 Q. Okay. Let's go to DWR 4.16 A. Okay.17 Q. And what is this?18 A. This is a letter and response -- an initial19 correspondence that the Department sent via email to20 Fluid Solutions, regarding the incorrect current,21 committed, and projected demand numbers, that they were22 incorrect on the application filed.23 Q. And whose signature does -- is that letter go24 out over?25 A. That is my signature.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Okay. What happened after that? Did Fluid 3 Solutions submit new demand estimates? 4 A. Yes. Fluid Solutions, they submitted -- I think 5 we're looking at -- 6 Q. So this is DWR 5. What is this? 7 A. DWR 5 is an email to Aaron Young, who works for 8 Fluid Solutions -- or sorry, excuse me, from Aaron Young 9 at Fluid Solutions to Rick Obenshain, who works in the10 DWR Water Supply Program. And it is clarifying some of11 the -- well, the current demand, committed demand, and12 projected demand numbers of the Department identified,13 that were incorrect in the -- in the initial14 application.15 Q. Okay. Let's look at DWR 6. Scroll down through16 there. What is this document?17 A. This document -- can we scroll up just a little?18 Q. Scroll up. I'm sorry.19 A. Yeah. This -- this, again, is a letter to Aaron20 Young from the Department, sent via email on21 October 13th, 2011. And it discusses, I believe -- can22 we scroll down a little bit? Based off of that earlier23 email, which I believe was a couple days prior to this24 correspondence, it requires Pueblo Del Sol to conduct a25 new ground -- or a new model simulation to reflect the



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 revised demand numbers that were contained, and that 3 were -- that were discussed in that email, and that also 4 we determined that the applicant should be -- basically 5 have two simulations of the model, and that's identified 6 in numbers 1 and 2. 7 The first simulation should include basically 8 what I'm referring to as the pre-Tribute Master Planned 9 Community, or without Tribute simulation; and then a10 second simulation that includes the proposed Tribute11 Master Planned Community pumping.12 Q. And let's look at DWR 7. What is this?13 A. This is the January 2012 revised application14 that Fluid Solutions submitted on behalf of the15 applicant.16 Q. Is this the application itself or a letter -- a17 cover letter?18 A. This looks like a cover letter directed to my19 attention.20 Q. And there I see paragraph number 1 and paragraph21 number 2 on that first page. What are the topics that22 the letter is addressing?23 A. The topic number 1 is a response to our24 correspondence from the previous fall -- or fall of25 2011, regarding the incorrect demand numbers. And then



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 the second paragraph is the model revisions, again, that 3 with and without Tribute model simulations that we 4 required of the applicant. So it basically addresses 5 the two incomplete letters or correspondence that we had 6 with the applicant from that fall of 2011. 7 Q. Okay. Let's scroll down to the second page of 8 that letter. 9 A. Okay.10 Q. Keep going, keep going, keep going, attachments.11 Do you see that?12 A. Yes.13 Q. And what came in with this letter?14 A. There were four attachments that came in with15 this cover letter. Do you want me to read them out loud16 for the record?17 Q. Yes, please.18 A. Attachment A was the revised committed demand19 figures, Attachment B was the revised Pueblo Del Sol20 designation, the letter -- the water supply application,21 C was ADWR issued demands in the model, and D was22 another Brown and Caldwell technical memorandum.23 Q. Okay. Let's go to ADWR Exhibit 7A. Does this24 reflect Attachment A to the cover letter we were just25 looking at?



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 A. Yes. This looks like Attachment A, the 3 committed demand calculation. 4 Q. And let's look at ADWR 7B. What is this? 5 A. 7B was the revised, or the January 2012 6 designation application. 7 Q. And let's pull up 7C. What is this -- what's in 8 7C? What does this (indiscernible)? 9 A. 7C is a -- looks like a basic Excel spreadsheet10 that includes Department issued demands. Well, it's11 entitled: ADWR Issued Demands, Adequate and Inadequate12 Within the Model Domain. So it's a list of issued13 demands.14 Q. And then we'll pull up 7D. What is this?15 A. 7D is the revised or second technical memorandum16 that Brown and Caldwell submitted.17 Q. And were the model files included with this18 particular exhibit, this technical memorandum, do you19 recall?20 A. I believe they were submitted with the technical21 memorandum, but it was -- I believe it was on a DVD. I22 mean, a lot of applicants submit them on DVDs.23 Q. And why was -- why did Brown and Caldwell submit24 a revised technical memorandum?25 A. This revised technical memorandum that we're



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 looking at was in response to what I'm referring to as 3 the incomplete letter that requested the pre -- the with 4 and without Tribute simulations. So the technical 5 memorandum addresses those two model runs, one without 6 the Tribute Master Planned Community and one with the 7 proposed pumping included in it. 8 Q. The proposed groundwater pumping for Tribute; is 9 that correct?10 A. The proposed groundwater pumping for the Tribute11 Master Planned Community, yes.12 Q. Okay. Let's scroll down to page 8. Is that13 page -- is that page 8? No. It looks like page --14 that's fine. Page 9 of the document, which is PDF -- do15 we have a PDF -- corresponding PDF number? 9. Okay.16 MALE SPEAKER: It's 8 now.17 BY MS. RONALD:18 Q. It's 8 in the hard copy and 9 in the PDF19 version.20 There's this technical -- excuse me --21 A. Could we make it -- sorry. Could we make it a22 little bigger, the size?23 MR. McDEVITT: Objection, Your Honor, for the24 appellant Ms. Gerrodette. We object to just simply25 reading the exhibits. We don't -- we don't dispute that



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 these are true and exact copies of the application in 3 their exhibits and the correspondence, and we're 4 grasping at how this is relevant to any fact that's of 5 consequence in this matter. 6 ALJ SHEDDEN: So with -- and correct me if I'm 7 wrong, Ms. Ronald, you wanted the witness to read this 8 to reflect -- reflect his own recollection, correct, in 9 understanding what happened?10 MS. RONALD: I wasn't going to ask him to read11 the conclusion. I just was asking him to paraphrase the12 conclusion about the -- I can't even read it -- the13 model, yeah. This -- there it is.14 ALJ SHEDDEN: All right. And --15 MS. RONALD: -- that -- regarding the -- the16 depth to, say, groundwater level, just to indicate what17 that depth was as a conclusion in this particular model18 report. But I wasn't going to ask him to read the19 entire thing.20 ALJ SHEDDEN: All right. And let me ask you,21 Ms. Ronald, do you still see this as background22 information related to the work that the agency did when23 they had the application?24 MS. RONALD: Yes, I do, Your Honor. I mean, in25 addition to the fact that the appellants have raised



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 certain issues about the processing of the application, 3 I believe a complete record needs to be made of the 4 steps that the Department took in the review of the 5 application and the determinations that it made in 6 support of the draft decision and order that was issued 7 with the decision letter that addressed the objections 8 raised by the appellants. 9 MR. McDEVITT: Your Honor, none of the10 appellants object or have raised an objection regarding11 the 650-foot determination, and none of the appellants12 have suggested that any of the exhibits that have been13 presented so far were not actual real copies. We don't14 see the -- the purpose of simply reading things that can15 be more simply introduced by introducing the documents16 themselves.17 ALJ SHEDDEN: Well, let me tell folks how I'm18 going to deal with the exhibits. There's been -- I19 certainly haven't tried to count, and I haven't looked20 at too many of them, candidly -- hundreds, if not21 thousands, of pages of exhibits have been disclosed.22 It's not my intention to read those exhibits. It's my23 intent that the parties will point to the relevant24 portions of them, and whether or not they subsequently25 are admitted into evidence is a separate question, but



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 just suggesting that somehow I take a bunch of documents 3 into the record and then -- I forget how the Court of 4 Appeals put it in one matter, but judges aren't pigs 5 hunting for truffles, I think, is the way it was 6 phrased. And the bottom line is the parties are going 7 to have to point to what is germane, in their views, in 8 those documents. 9 And it may well be that whole documents will be10 admitted into evidence, and they'll be part of our11 record, but the intention I have generally is not to go12 searching beyond the information that's presented. The13 problem with that approach is sometimes I'm a curious14 fellow, and if I look on a page where someone points15 something out to me, I may want to see what came before16 or after that, and if a document is in evidence, it's17 all fair game. But in terms of the information, per se,18 in the exhibits, and more directly back to the19 objection, I'm going to let DWR present its evidence and20 provide background information as to how they process21 the application.22 To the extent that there are information -- or23 is information that Ms. Ronald or DWR feels is germane24 to the matter, she will point me to it, and it may well25 be that these exhibits will be entered.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 So I'm going to overrule the objection. I 3 generally don't need folks reading large segments of 4 documents into the record, and Ms. Ronald has indicated 5 that wasn't her intent here. 6 And again, with respect to the document itself 7 and whether anyone disputes the 650-foot depth, that is 8 something that is within the background, I think, 9 because we need to get the facts on the record in terms10 of the rule requiring it to be -- I'm struggling with11 the negatives here, because we're talking about below12 ground surface, but, of course, there's the 1200-foot13 limit, and so that needs to be established.14 So a couple of points: One, the objections are15 overruled on the relevance, getting the -- a fairly16 comprehensive record of what occurred at the agency I17 think is important in an administrative hearing. Two,18 with respect to the reading of large tracts of19 information, I agree, and we don't want that to happen,20 but we're not in danger of that here. And then three,21 my own editorial comment, if you will, as to how we're22 going to have to deal with large reports and a large23 number of large technical reports. It's going to be24 incumbent upon the witnesses, or the parties through25 their witnesses, to point to the information that they



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 feel is germane -- and I use that world deliberately, 3 rather than relevant -- to allow for the understanding 4 that there may be relevance objections. 5 So with that, Ms. Ronald, you had asked the 6 witness to summarize the conclusion, correct? 7 MS. RONALD: Correct, Your Honor. 8 ALJ SHEDDEN: All right. Why don't you go ahead 9 and you can go ahead and do that?10 BY MS. RONALD:11 Q. Just to rephrase, Mr. Craddock, are there any --12 that you are looking at the page that is titled as13 "Conclusions" in this particular exhibit; is that14 correct?15 A. Yes, I am.16 Q. Okay. And is there any information in that17 paragraph that deals with the depth to static water18 level --19 A. Yes.20 Q. -- from the proposed PDS groundwater pumping?21 And what does the --22 A. Yes, there is.23 Q. What does the report conclude in terms of the24 depth?25 A. It includes, after running the model



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 simulations, that the area of influence by the PDS 3 pumping does not exceed 650 feet below the land surface 4 after 100 years. 5 Q. Okay. And this is just for clarification 6 purposes, I want to pull up DWR 8. What is this? 7 A. This is another -- this exhibit is another copy 8 of the revised designation application from 9 January 2012.10 Q. And was this previously included as an exhibit11 when the letter came in with the revised demand numbers?12 A. Yeah, I believe it was one of the -- organized13 as one of the attachments --14 Q. Okay.15 A. -- in the prior.16 Q. So this is a duplicate?17 A. Yes.18 Q. And are there any attachments to this document?19 A. Yes. There are more attachments.20 Q. Okay. Let's look at the next -- and are21 there -- I'm sorry, we'll go back for just a second.22 And are there demand numbers included in this23 application?24 A. Yes. There are demand numbers in part B of the25 application.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 Q. Are the total demand numbers in this application 3 the same as those that were included in the October 2011 4 email from Fluid Solutions? 5 A. No, not all of these demand numbers are the 6 same. 7 Q. Were they higher or lower, the total demand? 8 A. The total demand is a decrease from the 9 October 2011 email.10 Q. And what about the relationship between these11 numbers and the total demand number included in the12 original application, higher or lower --13 A. On this one --14 Q. -- or the same?15 A. On this revised application, the total demand16 numbers are an increase from the original June 201117 application.18 Q. And why is that?19 A. This deals with -- back to the earlier exhibit20 when I testified discussing that the current, committed,21 and projected demand numbers needed to be changed. The22 projected demand numbers, I believe, on the original23 application just included the proposed groundwater24 pumping for the Tribute Master Planned Community and not25 projected demand for the entire service area, which is



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 being designated. So it's one development versus the 3 entire service area projected demand accounts for that 4 difference. 5 ALJ SHEDDEN: And let me just get some 6 clarification here, and I'll -- this way the question, 7 if the witness needs to answer, it may be something you 8 can clarify, Ms. Ronald. Looking at the list of 9 exhibits, I'm showing that -- and I may be wrong about10 this -- that the January application, was that a portion11 of Exhibit 7?12 MS. RONALD: Yes.13 ALJ SHEDDEN: Okay. And so it was 7 -- 7B, the14 cover letter with an application or just the cover15 letter?16 MS. RONALD: 7B is the actual revised17 application. And ADWR, when we put together this18 exhibit list, repeated, duplicated, the 7B application19 in DWR 8, so that -- the reason for it was so that20 separate numbers could be assigned 8A, 8B, et cetera, to21 each one of the four attachments that was included with22 the cover letter. And that would have been difficult to23 do because the revised application had already been24 assigned DWR Number 7B. So it was for purposes of25 clarification and numbering issues.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: Okay. And then let me go back to 3 Mr. Craddock here and verify. So if I understood your 4 testimony correctly, the October application had more 5 demand than the first January application, correct? 6 THE WITNESS: Yes. The October email and the 7 letter that we sent to the applicant had a total annual 8 demand of approximately 6,300 acre-feet. That was the 9 revised demand number. And the original application10 filed in June of 2011 -- June of 2011 had a total annual11 demand, I believe, in the neighborhood of12 4,100 acre-feet.13 ALJ SHEDDEN: Okay. And I gave a wrong month14 there. It was probably confusing the record. And then15 just so I'm clear on this, so Exhibit 8 that's on the16 screen now is not the same -- 100 percent the same as17 7B, or is it the same as 7B?18 MS. RONALD: The application itself is the19 same --20 ALJ SHEDDEN: Okay.21 MS. RONALD: -- in both exhibits.22 ALJ SHEDDEN: All right.23 MS. RONALD: But then in Exhibit 8, there is a24 further breakdown of the attachments for the revised25 application that included 8A, 8B, 8C, and 8D.



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 ALJ SHEDDEN: And again, that was a choice in 3 terms of just housekeeping on the exhibits that make it 4 clearer. 5 All right. Let me ask Ms. Ronald, we're at 6 about 10 of. Will this be a good point to stop and pick 7 it up tomorrow, or do you want to tie up any loose ends 8 before we do that? 9 MS. RONALD: I think this would be a good10 stopping point.11 ALJ SHEDDEN: Okay. Then let me go back to12 something I had broached this morning and just see if13 there's any feeling one way or another. I'm going to14 suggest we start at 8:15 each day. As I said, it gives15 you folks a few extra minutes to get in here and get set16 up. My guess would be the hearing room will be open by17 about 7:30, although I can't necessarily verify that.18 The other thing I'll tell you is there had been19 a weeklong hearing scheduled in Room B that has resolved20 in some way. So we'll have Room B available for21 overflow in terms of discussions on break and that sort22 of thing.23 I don't know if we're going to have more or less24 people attending each day. We're pretty well at our25 capacity here today. If there is a desire for more



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 interested persons or members of the public or your own 3 clients, if you will, to attend the hearing, what I can 4 do is have our staff give us a limited feed to Room B to 5 the extent that there's a couple of monitors in there, 6 you would be able to see the exhibits, or whatever is on 7 our monitors would be able to be seen over there, and 8 then you could get the audio of all the conversations or 9 testimony going on in this room, but not a direct video10 feed.11 So given that we've all fit in here today, and12 generally speaking, the demand tapers off the longer the13 hearings go on in terms of people wanting to attend, I'm14 not going to ask that to be set up tomorrow, but --15 initially, but if we do need that, it can be done rather16 quickly. I can find a staff person who can help us with17 that, and we'll go ahead and get that done.18 So if you've had folks who stayed away out of19 concerns that it's too crowded or there's no seats, we20 can help accommodate it with regard to that; but in any21 event, the room will be open for folks to use for22 discussions during the day or whatever.23 If there are no matters that any of you think we24 should address today, then I am going to, absent any25 objection, let you know we'll start at 8:15 tomorrow



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 morning. Is that the -- all right. I'll see you all in 3 the morning then? 4 MS. RONALD: Thank you. 5 (Conclusion of audio recorded 6 proceedings.) 7 8 910111213141516171819202122232425



1 THIS TEXT WAS TRANSCRIBED FROM AN AUDIO RECORDING. 2 3 C E R T I F I C A T E 4 5 I, Katherine McNally, Certified 6 Transcriptionist, do hereby certify that the foregoing 7 pages 1 through 111 constitute a full, true, and 8 accurate transcript, from electronic recording, of the 9 proceedings had in the foregoing matter, all done to the10 best of my skill and ability.11 The final transcription reflects changes which12 the parties have submitted and stipulated agreement on13 the wording of said changes.1415 SIGNED and dated this 5th day of February16 2013.17181920 _______________________________ KATHERINE A. McNALLY21 Certified Electronic Transcriber CET**D32322232425


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