Opening Brief of California Unions For Reliable Energy 04-19-18

FILED
04/19/18
04:59 PM
BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
Application of California-American Water

Company (U210W) for Approval of the
Application No. 12-04-019
Monterey Peninsula Water Supply Project and
(Filed April 23, 2012)
Authorization to Recover All Present and Future
Costs in Rates
OPENING BRIEF OF
CALIFORNIA UNIONS FOR RELIABLE ENERGY
April 19, 2018
Linda Sobczynski
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
So. San Francisco, CA 94080
LSobczynski@AdamsBroadwell.com
(650) 589-1660
Attorney for California Unions for Reliable

Energy (CURE)
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Subject Index
TABLE OF AUTHORITIES .......................................................................................................... ii

SUMMARY OF RECOMMENDATIONS ................................................................................... vi
I. INTRODUCTION.................................................................................................................... 1
II. FEIR/FEIS ISSUES ................................................................................................................ 3
A. Water Demand, Supply and Water Rights .......................................................................... 3
B. Project Description.............................................................................................................. 3
C. Environmental Setting, Impacts and Mitigation Measures: The CPUC should decline to
certify the FEIR/S because there is substantial evidence that the Project will have significant
effects on the environment that the FEIR/S fails to disclose and mitigate. ................................ 3
1. The Project has significant Marine Biological Resources impacts that the FEIR/S fails
to adequately disclose and mitigate. ....................................................................................... 9
2. The Project has significant Terrestrial Biological Resources impacts that the FEIR/S
fails to adequately disclose and mitigate .............................................................................. 17
3. The Project has significant Air Quality impacts that the FEIR/S fails to adequately
disclose and mitigate............................................................................................................. 22
4. The Project has significant Greenhouse Gas impacts that the FEIR/S fails to
adequately disclose and mitigate .......................................................................................... 26
5. The Project has significant Valley Fever impacts that the FEIR/S fails to adequately
disclose and mitigate............................................................................................................. 31
D. Alternatives ....................................................................................................................... 33
E. Other: The FEIR/S Must Withdrawn and Revised, and Necessarily Recirculated........... 35
III. PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY OF PROJECT
– ENVIRONMENTAL FACTORS .............................................................................................. 35
A. Public Utilities Code Section 1002(a)(4) and Other Law ................................................. 35
B. Other ................................................................................................................................. 36
IV. CONCLUSION ................................................................................................................... 36
i
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TABLE OF AUTHORITIES
COURT DECISIONS
Andrus v. Sierra Club

(1979) 442 U.S. 347.............................................................................................................6
Bakersfield Citizens for Local Control v. Bakersfield

(2004) 124 Cal.App.4th 1184 ..............................................................................................8
Ballona Wetlands Land Trust v. City of Los Angeles

(2011) 201 Cal.App.4th 455..........................................................................................17, 22
Berkley Keep Jets Over the Bay Comm. v. Board of Port Commissioners
(2001) 91 Cal.App. 4th 1344...............................................................................5, 11, 22, 32
CCEC v. Woodland
225 Cal.App.4th 203................................................................................................34
Cleary v. County of Stanislaus

(1981) 118 Cal.App.3d 348...........................................................................................16, 32
Citizens of Goleta Valley v. Board of Supervisors

(1990) 52 Cal. 3d 553...........................................................................................................4
City of Sausalito v. O’Neill

386 F.3d 1186...........................................................................................................7
Competitive Enter. Inst. v. National Highway Traffic Safety Admin.

901 F.2d 107.............................................................................................................6
County of Amador v. El Dorado County Water Agency

(1999) 76 Cal.App.4th 931..................................................................................................5
Federation of Hillside & Canyon Ass’ns v. City of Los Angeles

(2000) 83 Cal.App.4th 1252.........................................................................................20 , 29
Flanders Foundation v. City of Carmel-by-the-Sea

(2012) 202 Cal.App. 4th 603...........................................................................................5, 23
Galante Vineyards v. Monterey Peninsula Water Management Dist.

(1997) 60 Cal.App.4th 1109..............................................................................................5, 8
Great Basin Mine Watch v. Hankins

456 F. 3d 955............................................................................................................6
ii
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Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376..............................................................................................5, 17, 35
Mid States Coalition for Progress v. Surface Transp. Bd.

345 F.3d 520..........................................................................................................6
Northern Plains Resource Council, Inc. v. Surface Transp. Bd.

668 F.3d 1067........................................................................................................7
Oregon Natural Desert Ass'n v. Bureau of Land Management

625 F.3d 1092........................................................................................................6
People v. County of Kern

(1976) 62 Cal.App. 3d 761................................................................................................2
Re S. California Edison Co.

37 CPUC 3d 413...............................................................................................1, 36
Robertson v. Methow Valley Citizens Counsel

(1989) 490 U.S. 332..........................................................................................................5
Rural Landowners Association v. City Council

(1983) 143 Cal.App.3d 1013........................................................................................5, 23
San Francisco Baykeeper, Inc. v. California State Lands Commission

(2015) 242 Cal.App.4th 202.................................................................................11, 28, 32
San Francisco Ecology Center v. City & County of San Francisco

(1975) 48 Cal.App.3d 584..................................................................................4, 10, 26, 32
San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus

(1994) 27 Cal.App.4th 713..................................................................................................5
Save Our Peninsula Com. v. Monterey Bd. Of Supervisors

(2001) 87 Cal.App.4th 99 ..................................................................................................18
Towards Responsibility in Planning v. City Council

(1988) 20 Cal.App.3d 671.............................................................................................26, 32
iii
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STATUTES
Federal
5 U.S.C. §706(2)(A)..............................................................................................................7
State
Government Codes
§65009(b)...................................................................................................................8
Public Resources Codes
§21081...........................................................................................4, 16, 19, 25, 29, 33

§21081.6........................................................................................................20, 25, 29
§21082.1(c)(3).............................................................................................................2
§21083.5(a).................................................................................................................2
§21083.7(b).................................................................................................................2
§21091.........................................................................................................................2
§21091.1...................................................................................................................2, 8
§21091(d).....................................................................................................................4
§21100.........................................................................................................................3
§21177(a).....................................................................................................................8
Public Utilities Codes
§1001..........................................................................................................................1
§1002(a) ....................................................................................................................1
REGULATIONS
Federal
40 CFR §1500.1(c) ............................................................................................................3, 5

40 CFR §1502........................................................................................................................5
40 CFR §1502.14...................................................................................................................6
40 CFR §1502.14(c) .............................................................................................................6
40 CFR§1502.14(f) ...............................................................................................................6
40 CFR §1503.4.....................................................................................................................6
40 CFR §1503.4(a) ...............................................................................................................6
40 CFR §1506.3(a) ...............................................................................................................2
40 CFR §1508.20(b) .............................................................................................................6
iv
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State
14 CCR §15002(a)(1) .......................................................................................................3, 23

14 CCR §15002(a)(2) ............................................................................................................4
14 CCR §15002(a)(2)&(3) ....................................................................................................4
14 CCR §15088.5.............................................................................................................8, 35
14 CCR §15088(a).................................................................................................................4
14 CCR §15088(c)..........................................................................................4, 10, 16, 26, 32
14 CCR §15090(b).................................................................................................................2
14 CCR §15091....................................................................................................................25
14 CCR §15092(b)(2)(A)&(B)...................................................................2, 4, 16, 19, 29, 33
14 CCR §15093....................................................................................................................25
14 CCR §15126.4(a)(2).............................................................................................20, 25, 29
14 CCR §15126.6..................................................................................................................34
14 CCR §15132.......................................................................................................................4
14 CCR §15221-15222............................................................................................................2
14 CCR §15384(a) ...........................................................................................................28, 32
14 CCR §15384(b) .....................................................................................................12, 28, 32
COMMISSION DECISIONS
D.00-05-048, 28...................................................................................................................2
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SUMMARY OF RECOMMENDATIONS
 The California Public Utilities Commission (“CPUC”) cannot grant CalAm’s application for
a Certificate of Public Convenience and Necessity (“CPCN”) until the CPUC’s
Environmental Impact Report and Environmental Impact Statement (“EIR/S”) complies with
the California Environmental Quality Act.
 The CPUC cannot certify the Final EIR/S (“FEIR/S”) as complete because the FEIR/S lacks
substantial evidence to support its impact conclusions and therefore fails to comply with
CEQA.
 On the other hand, there is substantial evidence that the Project will have significant effects
on the environment that the FEIR/S fails to disclose and mitigate.
 The FEIR/S must be withdrawn and revised to address these errors and deficiencies before
the CPUC may consider the application.
 Because of the substantial omissions in the information disclosed in the FEIR/S, revisions
necessary to comply with CEQA will be, by definition, significant. In addition, substantial
revisions will be required to address significant impacts that were not disclosed in the
FEIR/S. Because these revisions are significant, the revised EIR/S must be recirculated for
additional public comment.
 So long as the EIR/S remains flawed, any agency action would be premature and violate
CEQA.
vi
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BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
Application of California-American Water

Company (U210W) for Approval of the
Application No. 12-04-019
Monterey Peninsula Water Supply Project and
(Filed April 23, 2012)
Authorization to Recover All Present and Future
Costs in Rates
OPENING BRIEF OF CALIFORNIA UNIONS FOR RELIABLE ENERGY
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California Unions for Reliable Energy (“CURE”) respectfully submits its opening brief in
this proceeding pursuant to Rule 13.11 of the Rules of Practice and Procedure (“Rules) of the
California Public Utilities Commission (“CPUC” or “Commission”), and the schedule in the
Assigned Commissioner’s E-mail Ruling dated April 4, 2018 (“E-mail Ruling”). This brief
follows the common briefing outline developed in accordance with the E-mail Ruling. The
common briefing outline is organized by the issues identified for this proceeding in the E-mail
Ruling.
I. INTRODUCTION
Under Public Utilities Code (“PUC”) section 1001, California-American Water Company
(“CalAm”), as a regulated water utility, must acquire a Certificate of Public Convenience and
Necessity (“CPCN”) before it can begin construction of Monterey Peninsula Water Supply
Project (“Project”). PUC section 1001 et seq. establishes the two-part framework for a CPCN
application.
First, pursuant to section 1001, before the CPUC can authorize a CPCN, the CPUC must
determine that the “present or future public convenience and necessity require or will require”
construction of the proposed project.1
Second, the CPUC will consider four factors pursuant to section 1002(a) to determine if it
should authorize a CPCN: community values; recreational and park areas; historical and
aesthetic values; and influence on the environment.2 With respect to the last factor, influence on
1
Public Utilities Code § 1001; see also Commission Rule 3(e) (applications for a CPCN pursuant to PU Code §
1001 contain “[f]acts showing that public convenience and necessity require, or will require, the proposed
construction or extension, and its operation.”)
2
Public Utilities Code § 1002(a).
1
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the environment, the CPUC has determined that this factor is appropriately addressed through the
California Environmental Quality Act (“CEQA”) process.3
The CPUC, as the CEQA lead agency, and the Monterey Bay National Marine Sanctuary
(“Sanctuary”), as the NEPA lead agency, prepared a joint Environmental Impact
Report/Environmental Impact Statement (“EIR/S”) for this Project.4 The CPUC cannot issue a
CPCN until it has certified that the Final EIR/S is complete:
If it is determined that the project will still have a significant impact on the environment
even after all reasonable mitigation measures are applied, the CPCN must be
accompanied by a statement of overriding consideration explaining why the project
should still be approved. In any event, the lead agency cannot approve the CPCN until it
has certified that the Final EIR is complete.”5
CURE has reviewed the Final EIR/S in conjunction with its expert consultants, and
concludes that the CPUC cannot certify the FEIR/S as complete. The FEIR/S fails to comply
with both CEQA’s and NEPA’s legal requirements. So long as the document remains flawed6 the
CPUC cannot certify the FEIR/S7 or decide to grant or deny the application for a CPCN.8
Though separate from these CPCN proceedings, the Sanctuary is also restricted in issuing a
Record of Decision since the joint FEIR/S fails to comply with NEPA.9
3
Application of Lodi Gas Storage for CPCN for Gas Storage Facilities, D.00-05-048, 28 (“[T]he appropriate place
for the parties to address [the issue of a project’s influence on the environment] was the EIR, so that the parties
would not duplicate their efforts in both portions of the proceeding.”)
4
When CEQA imposes a more stringent substantive requirement than its NEPA equivalent, the document must
satisfy the stricter CEQA requirement in addition to applicable NEPA requirements. PRC §§ 21083.5(a),
21083.7(b); 14 CCR §§ 15221-15222; see also § 15090(b) (duties of a lead agency).
5
Re S. California Edison Co. (Sept. 12, 1990) 37 CPUC 2d 413, 417; Pub. Res. Code § 21082.1(c)(3), CEQA
Guidelines § 15090.
6
PRC §§ 21083.5(a), 21083.7(b); 14 CCR §§ 15221-15222.
7
Pub. Resources Code, § 21091; 14 CCR § 15092(b)(2)(A) & (B).
8
See Re S. California Edison Co. (Sept. 12, 1990) 37 CPUC 2d 413, 417.
9
40 CFR 1506.3(a), “[a]n agency may adopt a Federal draft or final environmental impact statement [EIS] or
portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under
these [the Council on Environmental Quality (CEQ)] regulations.”
2
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II. FEIR/FEIS ISSUES
A. Water Demand, Supply and Water Rights
No comments.
B. Project Description
No comments.
C. Environmental Setting, Impacts and Mitigation Measures: The CPUC should

decline to certify the FEIR/S because there is substantial evidence that the
Project will have significant effects on the environment that the FEIR/S fails
to disclose and mitigate.
CURE has reviewed the FEIR/S in conjunction with its expert consultants, and concludes
that there is substantial evidence demonstrating that the Project continues to have numerous,
significant environmental impacts that the FEIR/S fails to disclose and mitigate. These impacts,
and additional feasible mitigation measures to reduce significant impacts, are discussed in this
Section.
Both CEQA and NEPA require that the state lead agency and federal lead agency analyze
the potential environmental impacts of the proposed actions in an EIR/S.10 Because the CPUC
and Sanctuary prepared a joint EIR/S, CURE addresses the legal requirements that both lead
agencies must satisfy prior to certification by the CPUC and prior to issuing a ROD by the
Sanctuary.
CEQA has two primary purposes. First, CEQA is designed to inform decision makers
and the public about the potential, significant environmental effects of a project.11 “Its purpose is
10
See, e.g., PRC § 21100 (EIR required except in certain limited circumstances); 40 C.F.R. § 1500.1(c).
11
14 CCR § 15002(a)(1).
3
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to inform the public and its responsible officials of the environmental consequences of their
decisions before they are made. Thus, the EIR ‘protects not only the environment but also
informed self-government.’”12
Second, CEQA requires public agencies to avoid or reduce environmental damage when
“feasible” by requiring “environmentally superior” alternatives and all feasible mitigation
measures.13 The EIR serves to provide agencies and the public with information about the
environmental impacts of a proposed project and to “identify ways that environmental damage
can be avoided or significantly reduced.”14 If the project will have a significant effect on the
environment, the agency may approve the project only if it finds that it has “eliminated or
substantially lessened all significant effects on the environment where feasible” and that any
unavoidable significant effects on the environment are “acceptable due to overriding concerns.”15
CEQA also requires lead agencies to evaluate and respond to comments on a draft EIR.16
Responses to significant environmental issues raised in comments must be detailed, reasoned,
good faith responses.17 Conclusory statements unsupported by specific references to empirical
information, scientific authorities or explanatory information are insufficient.18 The need for a
reasoned, factual response is especially important when comments are made by agencies or
12
Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.
13
14 CCR§ 15002(a)(2) and (3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, 52
Cal.3d at 564.
14
14 CCR §15002(a)(2).
15
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
16
Pub. Resources Code, § 21091(d); 14 Cal. Code Regs. §§ 15088(a), 15132 (hereinafter, “CEQA Guidelines”).
17
14 CCR, § 15088(c); Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475;
Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671, 683; San Francisco Ecology Center
v. City & County of San Francisco (1975) 48 Cal.App.3d 584, 596.
18
14 CCR, § 15088(c); Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348.
4
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experts.19 Failure of a lead agency to respond to comments raising significant environmental
issues before approving a project frustrates CEQA’s informational purpose and may render the
EIR legally insufficient.20
While the courts review an EIR using an “abuse of discretion” standard, “the reviewing
court is not to ‘uncritically rely on every study or analysis presented by a project proponent in
support of its position. A clearly inadequate or unsupported study is entitled to no judicial
deference.”21 As the courts have explained, “a prejudicial abuse of discretion occurs “if the
failure to include relevant information precludes informed decision making and informed public
participation, thereby thwarting the statutory goals of the EIR process.”22
The same concepts hold true for federal agencies’ responsibilities pursuant to NEPA.
First, NEPA’s purpose is “to help public officials make decisions that are based on
understanding of environmental consequences, and take actions that protect, restore, and enhance
the environment.”23 NEPA requires a full and fair discussion of every significant impact, as well
as disclosure to the decision makers and the public of reasonable alternatives, which would avoid
or minimize adverse impacts.24 NEPA therefore requires federal agencies to take a “hard look at
[the] environmental consequences” of their proposed actions.25 In so doing, NEPA makes
19
Berkeley Keep Jets Over the Bay Comm. v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1367,
1371; People v. County of Kern (1976) 62 Cal.App.3d 761, 772).
20
Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 615; Rural Landowners
Association v. City Council (1983) 143 Cal.App.3d 1013, 1020.
21
Berkeley Jets, supra, 91 Cal. App. 4th 1344, 1355 (emphasis added) (quoting Laurel Heights Improvement Assn.
v. Regents of University of California (1988) 47 Cal.3d 376, 391 409, fn. 12).
22
Berkeley Jets, supra, 91 Cal.App.4th at 1355; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus
(1994) 27 Cal.App.4th 713, 722; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60
Cal.App.4th 1109, 1117; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.
23
40 C.F.R. § 1500.1(c).
24
40 C.F.R. § 1502.
25
Robertson v. Methow Valley Citizens Council (1989) 490 U.S. 332, 350.
5
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certain “that environmental concerns will be integrated into the very process of agency decision-
making.”26
Second, pursuant to NEPA, an EIS must include a discussion of “appropriate mitigation
measures not already included in the proposed action or alternatives.”27 Mitigation includes
“minimizing impacts by limiting the degree or magnitude of the action and its
implementation.”28And, NEPA regulations identify the need to consider reasonable
alternatives.29 NEPA requires substantial treatment of each alternative, including the proposed
action, so that reviewers may evaluate their comparative merits.30
NEPA also has similar provisions to CEQA regarding responses to comments. An agency
preparing a final environmental impact statement is required to assess and consider comments
both individually and collectively, and must respond by, among others, supplementing,
improving, or modifying its analyses, making factual corrections, and modifying alternatives or
developing alternatives that were not previously given serious consideration.31 Failure to
meaningfully assess, consider, and respond to all comments, undermines “NEPA’s purpose of
ensuring well-informed government decisions and stimulating public comment on agency
actions.”32
26
Andrus v. Sierra Club, 442 U.S. 347, 350 (1979).
27
40 C.F.R., § 1502.14(f).
28
40 C.F.R., § 1508.20(b).
29
40 C.F.R. § 1502.14(c).
30
Id., at § 1502.14.
31
40 C.F.R. § 1503.4
32
Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 123 (D.C.Cir.1990); see also
Oregon Natural Desert Ass’n v. Bureau of Land Management (9th Cir. 2010) 625 F.3d 1092, 1120; Mid States
Coalition for Progress v. Surface Transp. Bd. (8th Cir. 2003) 345 F.3d 520, 537 (“the Council on Environmental
Quality (CEQ) regulations impose upon an agency preparing an FEIS the duty to assess, consider, and respond to all
comments, see 40 C.F.R. § 1503.4(a)); Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006) (“all
that is required of ‘[p]ersons challenging an agency’s compliance with NEPA’ is that they ‘structure their
6
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Pursuant to the Administrative Procedures Act (“APA”), a reviewing court will set aside
a federal administrative agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.”33 An agency’s decision made pursuant to NEPA is
reviewed under this standard.34 Although, the standard is deferential to the judgment and
expertise of the agency, the agency must support its conclusions with studies that the agency
deems reliable.35 ”The agency will have acted arbitrarily and capriciously when ‘the record
plainly demonstrates that [the agency] made a clear error in judgment in concluding that a
project meets the requirements’ of NEPA.”36
CURE’s comments on the DEIR/S included the technical comments of several highly
qualified experts, including Radoslaw Sobczynski, Ph.D., Renee Owens, M.Sc., and Phyllis Fox,
Ph.D., PE.37 The FEIR/S provided responses to comments (“Responses”), which addressed some
of the issues raised by CURE’s experts. The FEIR/S included corresponding revisions to the
FEIR/S and to some of the mitigation measures that corrected some of the deficiencies that
CURE and its experts identified in the DEIR/S. However, in several instances, the Responses
failed to meaningfully address significant technical issues raised by CURE’s experts. As a result,
the FEIR/S still does not adequately evaluate, analyze, mitigate or disclose significant impacts
that the experts identified in their comments on the DEIR/S.
participation so that it ... alerts the agency to the parties’ position and contentions, in order to allow the agency to
give the issue meaningful consideration.’”); Oregon Natural Resources Council v. Marsh (9th Cir. 1995) 52 F.3d
1485, 1490, as amended on denial of reh’g (June 29, 1995),
33
5 U.S.C. § 706(2)(A)
34
Northern Plains Resource Council, Inc. v. Surface Transp. Bd. (9th Cir. 2011) 668 F.3d 1067, 1074-1075 (citing
City of Sausalito v. O’Neill (9th Cir. 2004) 386 F.3d 1186, 1205–06).
35
Northern Plains Resource Council, Inc., supra, 668 F.3d at p. 1075 (citing Lands Council (9th Cir. 2006) 537
F.3d 981, 994).
36
Northern Plains Resource Council, Inc., supra, 668 F.3d at p. 1074-1075.
37
We incorporate by reference as if fully set forth herein our earlier comments on the DEIR/S and all attachments
thereto. See FEIR/S, 8.6.2.
7
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Supplemental comments from Dr. Sobczynski,38 Ms. Owens,39 and Dr. Fox40 addressing
the continued deficiencies in the FEIR/S and the inadequate Responses are attached hereto as
Exhibits A, B, and C (collectively, “Supplemental Comments”). CURE requests that these
Supplemental Comments are included in the record of proceedings.41 Each of them provides
substantial evidence demonstrating that the Project continues to have significant impacts that the
FEIR/S fails to disclose and mitigate. The FEIR/S must be withdrawn and revised to address
these errors and deficiencies before the CPUC may consider the application.
Because of the substantial omissions in the information disclosed in the FEIR/S, revisions
revisions will be required to address significant impacts that were not disclosed in the FEIR/S.
Because these revisions are significant, the revised EIR/S will need to be recirculated for
additional public comment.42
In sum, the CPUC and Sanctuary must address these deficiencies in the FEIR/S before
either of them can make a finding that the FEIR/S has been completed in compliance with CEQA
38
Declaration and Letter from Radoslaw Sobczynski, Ph.D. to Ms. Linda Sobczynski (Apr. 17, 2018), Subject:
Comments on the CalAm Monterey Peninsula Water Supply Project Final Environmental Impact
Report/Environmental Impact Statement (hereinafter “Sobczynski Comments”), Exhibit A (declaration and letter
provided in hard copy and electronic references in support of Exhibit A are enclosed on a USB).
39
Declaration and Letter from Renee Owens, M.Sc. to Linda Sobczynski (Apr. 16, 2018), Subject: Comments on the
CalAm Monterey Peninsula Water Supply Project Final Environmental Impact Report/Environmental Impact
Statement (hereinafter “Owens Comments”), Exhibit B (declaration and letter provided in hard copy and electronic
references in support of Exhibit B are enclosed on a USB).
40
Declaration and Letter from Phyllis Fox, Ph.D., P.E. to Linda Sobczynski (April 17, 2018), Subject: Comments on
the Final Environmental Impact Report/ Environmental Impact Statement for the CalAm Monterey Peninsula Water
Supply Project (Monterey County, California) (hereinafter, “Fox Comments”), Exhibit C (declaration and letter
provided in hard copy and electronic references in support of Exhibit C are enclosed on a USB).
41
CURE reserves the right to supplement these comments at later hearings and proceedings related to this Project.
Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal. App.
4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121; 40 CFR
1506.10(b) (30-day review period following publication of FEIR/S required under NEPA prior to agency approval).
CURE reserves all rights to file supplemental comments on the FEIR/S during that period, and in any subsequent
appeal or permitting proceedings undertaken by any Federal or State permitting agency for the Project.
42
Pub. Resources Code, § 21091.1; CEQA Guidelines, § 15088.5.
8
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and NEPA. If the CPUC certifies this legally flawed FEIR/S to later certificate the Project, its
decision will amount to an abuse of discretion. Though, separate from this CPCN proceeding, if
the Sanctuary deems the FEIR/S complete and issues a Record of Decision (ROD), its decision
will also amount to an abuse of discretion.
1. The Project has significant Marine Biological Resources impacts that

the FEIR/S fails to adequately disclose and mitigate.
The FEIR/S failed to adequately respond to Dr. Sobczynski’s comments on the DEIR/S
regarding significant impacts on marine biological resources.43 In particular, Dr. Sobczynski
commented that slant well operations would cause infiltration44 and excessive bioaccumulation
of small organic matter.45 As a result of the bioaccumulation, toxic conditions in the aquatic
habitat are reasonably expected to occur.46 The lead agencies identify an impact to marine
biological resources as significant if, among others, it will result in a substantial adverse effect,
either directly or through habitat modifications.47 In evaluating the impact, the lead agencies
consider that impacts to marine biological resources would occur as a result of alterations to, or
deterioration of marine aquatic habitats.48
Despite Dr. Sobczynski’s comments that the slant wells will adversely affect the marine
aquatic habitat, the lead agencies did not fix the analysis in the FEIR/S.49 The FEIR/S’s impact
analysis still maintains that the slant well operations will have a less than significant impact on
43
Sobczynski Comments, §§ II-III.
44
Sobczynski Comments, § II.a, p. 4.
45
Sobczynski Comments, § III.b, p. 6.
46
Sobczynski Comments, § III.c., p. 9.
47
FEIR/S, 4.5-52.
48
FEIR/S, 4.5-44.
49
Sobczynski Comments, § III, p. 4.
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the environment, despite lacking substantial evidence to support the conclusion.50
In Dr. Sobczynski supplemental comments, he continues to provide substantial evidence
that the slant well operations will cause a significant impact to marine biological resources.51
Accordingly, the FEIR/S is legally inadequate for failure to disclose this significant impact on
the environment.52
The lead agencies provided unsupported, conclusory responses to Dr. Sobczynski’s
expert comments on the significant environmental issues of infiltration and accumulation.53
As previously noted, responses to significant environmental issues raised in comments
must be detailed, reasoned, good faith responses.54
In response to Dr. Sobczynski’s comments on infiltration and bioaccumulation of small
organic matter, the lead agencies did not provide a detailed, reasoned, good faith response.
Instead, they continue to rely upon inapplicable theories that do not address Dr. Sobczynski’s
comments.55
As Dr. Sobczynski explains in his supplemental comments, the FEIR/S utilizes the wrong
predictive models to state that organic matter will not infiltrate into the subsurface as it relies on
studies that specifically address irrelevant, larger particulate matter rather than the relevant
organic matter.56 The studies (McCave and Van Rijn) that the FEIR/S relies upon do not actually
50
FEIR/S, 4.5-52-54.
51
Sobczynski Comments, § III.e., p. 12.
52
Sobczynski Comments, p. 15.
53
Sobczynski Comments, § III(a)-(b), pp. 4-7.
54
CEQA Guidelines, § 15088(c); Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671,
683; San Francisco Ecology Center v. City & County of San Francisco (1975) 48 Cal.App.3d 584, 596.
55
Sobczynski Comments, § III(a), p.4.
56
Sobczynski Comments, § III(a), pp. 4-5.
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discuss the physics of filtering for small organic matter.57 Rather McCave’s and Van Rijn’s
studies pertain to sediment transport and deposition of fine sediments and have limited use in
addressing forced infiltration of small organic matter, namely: Dissolved Organic Matter
(“DOM”), Suspended Organic Matter (“SOM”), and Particulate Organic Matter (“POM”).58 Dr.
Sobczynski explains:
Unlike the sediment matter discussed in McCave and Van Rijn, organic matter can be
much smaller. This is important because these small particles in the slow moving lower
water are trapped in the thin, boundary layer on the sea floor. Once in the boundary layer,
this organic material is subject to the sucking force of the slant well and gets infiltered to
the sand or any permeable sediment on the sea floor.59
Neither study can be used to support the FEIR/S conclusion about organic matter infiltrating and
accumulating in the seafloor.60
In failing to provide adequate responses to Dr. Sobczynski’s comments on the FEIR/S
and to correct the FEIR/S’s fundamental flaws, the lead agencies lack substantial evidence to
support their less than significant impact conclusion.
A lead agency must support its impact conclusions with substantial evidence.61 Whereas
clearly erroneous or inaccurate evidence does not constitute substantial evidence,62 expert
57
58
Sobczynski Comments, § III(a), pp. 4-5; Sobczynski Comments, § II., p. 3. (these small organic matters are on the
scale of microns, or one-millionth of a meter.)
59
Sobczynski Comments, § III(a), p. 5.
60
61
San Francisco Baykeeper, Inc. v. California State Lands Commission (2015) 242 Cal.App.4th 202, 228 (“[t]he
substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to
the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or
accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.”
[Citation.]
62
14 CCR, § 15384(a); Berkeley Jets, supra, 91 Cal. App. 4th 1344, 1355 (“A clearly inadequate or unsupported
study is entitled to no judicial deference.” (quoting Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 391 409, fn. 12).)
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opinion supported by facts constitutes substantial evidence.63
Whereas the lead agencies fail to support their conclusions with substantial evidence, Dr.
Sobczynski provides substantial evidence that there will be a significant impact on the aquatic
habitat due to slant well operations.64 Indeed the lead agencies appear to concede that there may
in fact be a substantial impact if two situations happen (1) accumulation, and (2) lack of oxygen
in the subsurface.65 Though they claim neither (1) nor (2) will occur, the lead agencies lack
substantial evidence to make either of these conclusions; Dr. Sobczynski, on the other hand,
provides substantial evidence that these two circumstances will happen.66
Dr. Sobczynski provides expert opinion supported by facts that the Project will have a
significant effect on the environment.67 He explains that the lead agencies continue to ignore that
ocean water consists of suspended and dissolved organic matter in the water, and any water that
is drawn into the seabed will have these components.68 Dr. Sobczynski comments that DOM,
SOM, and POM can be expected to infiltrate into the subsurface in substantial quantities (60 to
100kg/day)69 and accumulate there by binding to inorganic matter.70
The lead agencies rely heavily on the notion that waves are strong enough to prevent any
infiltration. Settlement of the material on the seafloor (also known as impingement) is not
necessary for infiltration.71 Even if waves are strong enough to push away larger particles from
63
14 CCR § 15384(b)
64
Sobczynski Comments, § III(c), p. 9.
65
FEIR/S, p. 8.6-516.
66
Sobczynski Comments, § III(e), p. 12.
67
Sobczynski Comments, § III(e), p. 12.
68
69
Sobczynski Comments, § III(b), p. 8.
70
71
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the seafloor (thereby preventing infiltration), very small organic matter will not be pushed
away.72 And, indeed, Dr. Sobczynski provides evidence that the subsurface is already filled with
DOM and SOM indicating that the small organic matter can infiltrate into the seafloor.73 Thus,
“[w]hether or not impingement will occur, small organic matter will infiltrate into the subsurface
with the flux of seawater.”74 Over time, Dr. Sobczynski comments, this constant influx of ocean
water will lead to accumulation of the organic matter in the subsurface.75 In fact, the
accumulated organic matter will be pushed deeper and deeper into the subsurface with the flux of
seawater, increasing the zone of bioaccumulation.76
Dr. Sobczynski provides substantial evidence that, as a result of bioaccumulation, slant
well operation will adversely change the subsurface and therefore have a significant impact on
the environment.77 In his comments on the DEIR/S, Dr. Sobczynski indicated that if there are
anaerobic conditions, for example, when slant wells go offline, then accumulated biomass in the
filter medium will become toxic.78 In response to his comments, the CPUC and MBNMS state
that Dr. Sobczynski’s concerns are unwarranted because slant well technology will pull in
oxygenated seawater.79 Therefore, the lead agencies claim, the oxygenated seawater will
oxygenate the subsurface.80 However, as Dr. Sobczynski provides in his supplemental comments
anoxic conditions will occur in the subsurface regardless of whether slant wells are online or
72
73
74
75
Sobczynski Comments, § III(b), pp. 8-9.
76
77
Sobczynski Comments, § III(e), pp. 12-13, (g), p. 15.
78
Sobczynski Comments, § III(e), pp. 12-13.
79
Sobczynski Comments, § III(d), pp. 11-12 (citing FEIR/S, 8.6-516).
80
Sobczynski Comments, § III(d), pp. 11-12.
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offline.81 Induced infiltration may somewhat extend the depth of oxygenation, but not enough to
oxygenate the entire subsurface that will have accumulated biomatter.82 First, Dr. Sobczynski
explains that even in wave dynamic conditions, only the top few centimeters of the seafloor are
oxygenated.83 Beyond that the subsurface is anaerobic.84 Second, slant well technology will not
oxygenate the entire subsurface because it relies on a slow infiltration method.85 Dr. Sobczynski
estimates that any dissolved oxygen will be consumed by biochemical processes within the top
90cm of the subsurface.86 Except for the narrow band at the top, the hundreds of feet of distance
between the seafloor and the slant well will be anaerobic (slant wells are approximately 190 to
210 feet beneath the seafloor).87
As stated above, the sourcewater will carry small organic matter through the subsurface.
During their transport DOM, SOM, and POM will bind to variously sized inorganic particles,
such as silica grains, clays, and other minerals, thus forming humus, gels, and other aggregates in
the subsurface.88 And, the constant flux of seawater will continue to push the small organic
matter deeper into subsurface, extending the zone of accumulated biomatter.89 Moreover, slant
well technology cannot oxygenate the entire subsurface area. Considering both of these factors,
accumulation and low oxygen conditions, Dr. Sobczynski comments that sulfate reducing
81
82
83
84
85
86
87
88
Sobczynski Comments, §III(b), p. 6.
89
Sobczynski Comments, §III(b), p. 7.
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bacteria (“SRB”) will take over digestion of accumulated biomass.90 This bacteria proliferates in
low oxygen conditions and will reduce sulfates present in the accumulation biomatter into toxic
hydrogen sulfides (H2S) and other sulfo-organics such as S(CH3)2.91 As Dr. Sobczynski describes
in his comments, releases of toxic hydrogen sulfides from anaerobic sediments can cause a fish
kill event.92
These SRBs also cause acidification of water.93 Dr. Sobczynski observed that test slant
well data shows the source water (i.e., the ocean water) is becoming more acidic from the time it
is in the ocean to the time it reaches the shore via the test slant well.94 He suggests that SRBs are
responsible for acidifying the source water.95 Thus, the implication of his observation is that
SRBs are already digesting the biomass that has accumulated in the subsurface due to test slant
well operations.96 The problem will increase once all slant wells are operational.97 Even the
reduced project alternative will adversely impact the aquatic habitat.98
Dr. Sobczynski provided substantial evidence of a significant marine biological resources
impact due to slant well operations, in particular due to the slant wells promoting the production
of toxic hydrogen sulfide.99
Accordingly, since the project will have a significant effect on the environment, the
agency may approve the project only if it finds that it has “eliminated or substantially lessened
90
Sobczynski Comments, § III (c), p. 9, (e), p. 12.
91
Sobczynski Comments, § III p. 9, (e), p. 12.
92
Sobczynski Comments, § III (e), p. 13.
93
Sobczynski Comments, § III (e), pp. 12-13.
94
95
96
97
Sobczynski Comments, § III (b), pp. 6-7.
98
Sobczynski Comments, § III (b), p. 8.
99
Sobczynski Comments, §III(e), p. 12.
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all significant effects on the environment where feasible” and that any unavoidable significant
effects on the environment are “acceptable due to overriding concerns.”100
Dr. Sobczynski determined that there are no feasible mitigation measures to reduce the
impact to less than significant.101 The very nature of operating slant wells will cause
accumulation of small organic matter in the subsurface.102 And, contrary to the lead agencies’
response about oxygenation, the small organic matter will be exposed to low oxygen conditions
regardless of whether slant wells are operating. Although maintaining the flux of source water
through the subsurface can somewhat reduce the impact of the SRB, it is not enough to prevent
the development of toxic hydrogen sulfide.103 The severity of the problem will be worse when
the slant wells’ area is abandoned at the end of the Project’s life.104
The lead agencies were required to provide detailed, reasoned, good faith responses to
Dr. Sobczynski’s technical comments about infiltration and bioaccumulation of small organic
matter. Instead, the lead agencies provided unsupported, conclusory responses about another
issue — impingement of larger particulate matter.105 Moreover, substantial evidence shows that
the slant wells will have a significant impact on the environment and that there are no feasible
mitigation measures to lessen this significant impact. In failing to disclose this significant
impact, the FEIR/S fails as an information disclosure document and its less than significant
impact conclusion cannot be relied upon. The EIR/S must be withdrawn and revised to address
these errors and deficiencies.
100
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
101
Sobczynski Comments, § III (f), p. 13.
102
Sobczynski Comments, § III (f). p. 13.
103
Sobczynski Comments, § III (f), pp. 13-14.
104
Sobczynski Comments, § III (f), pp. 13-14.
105
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2. The Project has significant Terrestrial Biological Resources impacts
that the FEIR/S fails to adequately disclose and mitigate
The FEIR/S failed to adequately respond to Ms. Owens’s comments regarding the
Project’s potentially significant impacts on terrestrial biological resources. In particular, Ms.
Owens commented that the DEIR/S lacked substantial evidence regarding terrestrial biological
impacts and that the proposed mitigation measures were inadequate to reduce the impacts to
below significant.106 These issues remain unresolved in the FEIR/S. As a result, the Project
continues to have potentially significant biological impacts that the FEIR/S fails to disclose and
mitigate.
The lead agencies provided unsupported, conclusory responses to Ms. Owens’s
comments on terrestrial biological resources impacts.107 For example, Ms. Owens provided
comments on the DEIR/S’s failure to include analyses on two sensitive species: the Globose
dune beetle and the Salinas kangaroo rat.108 Additionally, Ms. Owens wrote extensive comments
on the DEIR/S’s lack of focused, species-specific, wildlife taxon-specific surveys.109
Responses to CEQA comments are an integral part of the environmental review process.
“The primary reason for soliciting comments from interested parties is to allow the lead agency
to identify, at the earliest possible time, the potential significant adverse effects of the project and
alternatives and mitigation measures that would substantially reduce these effects.”110 The
responses must not be mere “[c]onclusory statements unsupported by factual information.”111
106
Owens Comments, §§ 2-3.
107
Owens Comments, p. 2.
108
109
Owens Comments, pp. 2-3.
110
Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129.
111
Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475 (internal citations omitted).
17
1840-072j
The lead agencies failed to provide any new data on the two species.112 The FEIR/S
merely inserted the names of these two species in the FEIR/S’s terrestrial biological resources
analysis without providing any adequate analysis about unique considerations of these species.113
As for the surveys, the FEIR/S is still missing adequate surveys.114 Despite Ms. Owens’s
comments about how databases and reconnaissance level surveys do not provide a complete
assessment of the existing conditions, the FEIR/S continues to heavily rely on these analyses.115
When considering if an impact on a species is a significant impact under CEQA, the
Project’s lead agencies must consider “the magnitude or intensity and duration of the impact;
rarity and context of the affected resource; and susceptibility of the affected resource to
disturbance.”116
As Ms. Owens comments, adequate surveys are necessary to understand the Project’s
effect on existing conditions, or the rarity and context of the affected resource.117 Although the
lead agencies claim that new clarifying, evidence was added to the FEIR/S, Ms. Owens reviewed
the new information and determined that the FEIR/S’s still lacks a current, detailed analysis of
existing conditions.118
The environmental setting, or baseline, refers to the conditions on the ground and is a
starting point to measure whether a proposed project may cause a significant environmental
impact.119 Describing the environmental setting is a prerequisite to an accurate and meaningful
112
113
114
115
116
Owens Comments, p. 13 (FEIR/S, 4.6-127).
117
118
119
Save Our Peninsula Com. v. Monterey Bd. of Supervisors (2001) 87 Cal.App.4th 99, 125.
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evaluation of the Project’s environmental impacts, as the lead agency must support its impact
conclusions with substantial evidence.120 Without this information, an appropriate analysis
cannot be performed, effective mitigation cannot be designed, and alternatives cannot be
developed. Furthermore, the failure to provide a proper baseline precludes the public from
evaluating the scope of potential biological impacts that may result from Project-related
activities.
In failing to establish an accurate environmental setting, the lead agencies lack substantial
evidence to support their ultimate conclusion that terrestrial biological resources will have a less
than significant impact with mitigation.121
On the other hand, Ms. Owens provides substantial evidence that the mitigation measures
as they relate to the snowy plover,122 and other terrestrial species,123 will not reduce the impact to
less than significant. Accordingly, the impacts to several species remains significant.124
Since the Project will have a significant effect on the environment, the CPUC may
approve the project only if it finds that it has “eliminated or substantially lessened all significant
effects on the environment where feasible” and that any unavoidable significant effects on the
environment are “acceptable due to overriding concerns.”125
With respect to impacts to the snowy plover, Ms. Owens provided comments on the
120
[Citation.]
121
122
123
Owens Comments, p. 27-29.
124
125
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
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DEIR/S about the unique challenges the snowy plover faces and that an undisturbed breeding
season is critical for its recovery.126 Ms. Owens reviewed the FEIR/S’s revised mitigation and
she provides substantial evidence that the measure will not adequately reduce impacts to snowy
plovers to less than significant because it is impermissibly deferred.127 As for the other terrestrial
species, she also provides substantial evidence that mitigation measures for other terrestrial
species are also impermissibly deferred.128
CEQA requires that mitigation measures be specific and enforceable through conditions
of approval, contracts or other means that are legally binding.129 The purpose of this
requirement is so that the mitigation measure will actually be implemented, not merely adopted
and then ignored.130
As Ms. Owens comments, CalAm is required to prepare a Habitat Mitigation and
Monitoring Plan that is reviewed and approved outside the CEQA process.131 The Plan contains
generic performance standards for numerous species without any degree of specificity to ensure
that impacts will actually be reduced for these species.132 She concludes that the Plan fails as a
means to guarantee impacts to terrestrial species will be reduced to below significant.
Moreover, with respect to the mitigation measure for the snowy plover, Ms. Owens
comments that its requirement for three-to-one compensatory mitigation is not only
impermissibly deferred, but also infeasible.133 As Ms. Owens explains, compensatory mitigation
126
127
128
129
PRC § 21081.6; CEQA Guidelines § 15126.4(a)(2)
130
Federation of Hillside & Canyon Ass’ns v City of Los Angeles (2000) 83 CA4th 1252, 1261.
131
132
133
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of 3:1 is infeasible and unenforceable because without specific details regarding the location,
accessibility, and specific management procedures, it cannot be ensured the mitigation will occur
and that compensatory habitat will reduces significant impacts to plovers.134 As currently
proposed, the lead agencies lack substantial evidence that the mitigation will reduce significant
impacts on the snowy plover.135
Additionally Ms. Owens comments that the conditions in the vicinity of the CEMEX site
are uncertain. Due to conflicting responsibilities and obligations between the Applicant and the
operators at the CEMEX site, there is doubt that the mitigation measures will be effectively
enforced.136
The FEIR/S fails to adequately disclose and mitigate potentially significant impacts to
terrestrial biological resources. As Ms. Owens comments, the biological species analysis remains
inadequate for failure to include necessary information about the environmental baseline.137
Mitigation measures for terrestrial species, including the snowy plover, are impermissibly
deferred; therefore, there is no guarantee that the measures will reduce impacts.138 Additionally,
Ms. Owens provides substantial evidence that impacts to snowy plovers will not be reduced to
less than significant because the mitigation measures proposed for the species are infeasible and
unenforceable.139 Accordingly, the lead agencies must revise the EIR/S to disclose, analyze, and
mitigate the significant impacts to the species.
134
135
136
Owens Comments, pp. 30-31
137
138
139
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3. The Project has significant Air Quality impacts that the FEIR/S fails to
adequately disclose and mitigate
The FEIR/S’s air quality analysis falls short of CEQA’s requirements. The lead agencies
failed to respond to comments that called for additional emissions analysis. The impact
conclusions and mitigation measures associated with air quality impacts are unsupported and
cannot be relied upon.
The lead agencies failed to adequately respond to Dr. Fox’s DEIR/S comments about
indirect emissions from the generation of electricity.140 As Dr. Fox comments, “[t]he inclusion of
these emissions would increase the emissions of all criteria pollutants, likely resulting in new
significant impacts not otherwise disclosed.”141 The lead agencies’ responded that these
emissions were excluded because “it would be impractical and impossible to do so with any
certainty.” 142 This response fails to comply with CEQA’s requirements.
“If the agency rejects a recommendation or objection concerning a significant
environmental issue, the response must explain the reasons why.”143 The need for a reasoned,
factual response is especially important when comments are made by agencies or experts.144
As Dr. Fox explains in her supplemental comments, the lead agencies have failed to
provide a reasoned response about why indirect emissions were excluded from the analysis.145
Dr. Fox notes: “While it is not possible to identify the specific source of electricity and emission
140
Fox Comments, § 3.2, pp. 15-16.
141
Fox Comments, § 3.2, p. 15.
142
143
Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201
Cal.App.4th 455, 475
144
Berkeley Keep Jets Over the Bay Comm. v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1367,
1371; People v. County of Kern (1976) 62 Cal.App.3d 761, 772).
145
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factors for electricity supplied at any given moment, it is feasible to identify the potential
generation sources (and thus their location) that would supply the electricity; and based on this,
to estimate a range of likely electricity generation emission factors that could be used to estimate
indirect emissions.”146
The lead agencies should have considered these indirect emissions when evaluating the
Project’s impact on the environment.147 By failing to provide a reasoned response for why this
analysis was excluded when expert opinion shows how it is feasible and not “speculative,” the
FEIR/S fails as an information disclosure document and its conclusions remain unsupported.
Additionally, the FEIR/S fails to address whether the Project will cause or contribute to
violations of all published federal and state ambient air quality standards.148 Despite Dr. Fox’s
comments that the DEIR/S failed to evaluate all air quality impacts, the FEIR/S is still missing
an ambient air quality analysis.149
An EIR serves as an information disclosure document to explain the effects of the
proposed project on the environment.150 The failure of a lead agency to respond to comments
raising significant environmental issues before approving a project frustrates CEQA’s
informational purpose and may render the EIR legally insufficient.151
The FEIR/S states an air quality impact is significant if it exceeds federal and state
ambient air quality standards. As Dr. Fox comments, to determine whether the Project violates
federal and state ambient air quality standards, the lead agencies must estimate emission rates
146
147
148
149
150
14 CCR § 15002(a)(1).
151
Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 615; Rural Landowners
Association v. City Council (1983) 143 Cal.App.3d 1013, 1020.
23
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consistent with each standard and use air dispersion modeling to convert the emissions into
ambient concentrations.152 At that point, the lead agencies may compare the results to determine
if the emissions will exceed ambient air quality standards.153 The FEIR/S calculated the Project’s
emissions, but did not take the next step to estimate emissions rate to determine if the emissions
exceed state and federal ambient air quality standards.
As a separate matter, the lead agencies did not conduct any analysis of air quality and
public health impacts from PM2.5, sulfate, or lead emissions on the basis that the Monterey Bay
Unified Air Pollution Control District does not have significance thresholds for these
pollutants.154 As Dr. Fox comments this is inconsistent with the Monterey Bay Unified Air
Pollution Control District’s CEQA guidance that requires an analysis if a Project will exceed
state ambient air quality standards. 155 The FEIR/S was required to estimate all emissions sources
to determine if the Project would exceed state and federal ambient air quality standards. In
failing to conduct air quality dispersion modeling altogether for some pollutants, the FEIR/S fails
as an information disclosure document rendering the conclusions contained therein unreliable.156
The FEIR/S fails to comply with CEQA because it does not include all feasible
mitigation measures for the significant and unavoidable construction air quality impacts.157 Dr.
Fox provided comments on the DEIR/S that MM 4.10-1a must require Tier 4 equipment, and in
the absence of Tier 4 equipment, that the lower tier engines should be retrofitted to meet Tier 4
152
153
Fox Comments, § 3.3, p.18.
154
155
156
Fox Comments, § 3.3, pp. 19.
157
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standards. 158 Tier 4 equipment generates fewer emissions than its lower tier equivalents. The
lead agencies responded by revising MM 4.10-1a to include Tier 4 equipment “where
feasible.”159
Under CEQA, an impact can only be labeled as “significant and unavoidable” after all
available, feasible mitigation has been implemented.160 The mitigation measures must be specific
and enforceable through conditions of approval, contracts or other means that are legally
binding.161
The lead agencies must revise Mitigation Measure 4.10-1a to remove the overly broad
term “where feasible” and require that the Applicant use Tier 4 engines, or engines retrofitted
with controls to meet Tier 4 standards. 162 Obtaining Tier 4 equipment, or requiring that engines
are retrofitted to meet Tier 4 controls, is feasible. 163 Moreover, the measure contains no
procedures for the determination of feasibility during implementation of the Project. As
currently proposed in the FEIR/S, the lead agencies cannot make a determination that the air
quality impact is significant and unavoidable.164
The FEIR/S’s air quality impact analysis and mitigation measures lack substantial
evidence and cannot be relied upon. Dr. Fox identified numerous deficiencies in the DEIR/S’s air
quality analysis and these deficiencies remain in the FEIR/S. Most critically, the air quality
impact remains undisclosed and cannot be deemed significant and unavoidable so long as there
are feasible mitigation measures that can be adopted. A revised EIR/S must incorporate the
158
159
160
14 CCR §§ 15091, 15093; see also PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
161
162
163
164
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feasible mitigation measure proposed above.
4. The Project has significant Greenhouse Gas impacts that the FEIR/S
fails to adequately disclose and mitigate
The lead agencies failed to adequately respond to Dr. Fox’s comments on impacts from
greenhouse gas (“GHG”) emissions. Although the FEIR/S revised GHG mitigation measures in
response to Dr. Fox’s and other entities’ DEIR/S comments, deficiencies remain. Until those
deficiencies are fixed, the FEIR/S’s impact conclusion and mitigation measures for greenhouse
gas emissions cannot be relied upon.
The FEIR/S fails to provide detailed, reasoned, good faith responses to comments that
were made on the DEIR/S. CURE, in addition to other entities, commented that the DEIR/S fails
as an information disclosure document because it failed to quantify, and demonstrate mitigation
for, certain emissions.165 The lead agencies provided unsupported, conclusory responses to Dr.
Fox’s and other experts’ comments on significant environmental issues associated with
greenhouse gas emissions.
Responses to significant environmental issues raised in comments must be detailed,
reasoned, good faith responses.166
The FEIR/S fails to provide detailed, reasoned, good faith responses to comments.167 In
particular, comments on the DEIR/S indicated that the lead agencies ignored certain sources of
GHG emissions.168 Despite these comments, the FEIR/S continues to state that there is
insufficient information to describe in detail the Project’s impacts. For example, in responding to
165
166
167
168
See Fox Comments, § 2.5, p. 10.
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the City of Marina’s comments on the DEIR/S, the lead agencies stated that “[t]here is not
enough project design information” “to describe in detail the carbon footprint for all operational
components.”169 Elsewhere, the lead agencies responses to comments stated that evaluation of
indirect energy sources “is outside the scope of this CEQA/NEPA review because the types,
amounts, and processes associated with those energy sources is unknown.”170
In a complete reversal from the lead agencies’ perspective on the DEIR/S, they responded
in the FEIR/S that indirect energy demand “would not be expected to be substantial because
information to make that determination is not available.”171 Compare that response to the
conclusion in the DEIR/S that a lack of evidence resulted in a significant and unavoidable
impact: “the CPUC cannot substantiate that the mitigated GHG emissions would be reduced to a
less than significant level. Therefore, this impact is considered to be significant and
unavoidable, even with implementation of mitigation.”172 The FEIR/S’ inconsistent rationales
reveal an obvious attempt to create legal arguments to defend its lack of analysis and lack of
substantial evidence.
In failing to adequately respond to comments, the lead agencies lack substantial evidence
to support their less than significant with mitigation impact conclusion. In particular, Dr. Fox
comments that the lead agencies lack substantial evidence to demonstrate that GHG mitigation
measures will reduce the significant impact to less than significant with mitigation.173
169
170
171
Fox Comments, § 2.5, p. 12 (citing FEIR, p. 8.5-714.)
172
Fox Comments, § 2.3, p. 9; FEIR, p. 4.11-23.
173
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A lead agency must support its impact conclusions with substantial evidence.174 On the
one hand, clearly erroneous or inaccurate evidence does not constitute substantial evidence.175
On the other hand, expert opinion supported by facts constitutes substantial evidence.176
Dr. Fox provided comments that the DEIR/S should be revised to include indirect
electricity generation emissions for all criteria pollutions, including GHG emissions.177 The
FEIR/S responded with respect to all criteria pollutants but not GHG emissions.178 Dr. Fox
comments that direct and indirect energy use emissions for construction are likely individually
significant as well as cumulatively significant when added to other construction emission
sources.179 Calculating these emissions is feasible, yet the lead agency did not calculate them.180
Having never calculated GHG from indirect electricity demand for construction, the lead
agencies cannot conclude that MM 4.11-1 would reduce GHG emissions below the significance
threshold.181 The EIR/S should have included indirect construction GHG emissions as part of the
Project’s total GHG emissions.182
Dr. Fox reviewed the revised GHG mitigation measures and determined that they fail to
comply with CEQA’s requirements. The mitigation measures are impermissibly deferred and are
174
[Citation.].)
175
176
14 CCR § 15384(b)
177
178
179
180
181
182
28
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not enforceable.183 Accordingly, the lead agencies cannot rely upon the revised mitigation
measures to support their less than significant with mitigation conclusion about greenhouse gas
impacts.
If the project will have a significant effect on the environment, the agency may approve
the project only if it finds that it has “eliminated or substantially lessened all significant effects
on the environment where feasible.”184 The mitigation measures must be specific and
enforceable through conditions of approval, contracts or other means that are legally binding.185
The requirement ensures that mitigation measure will actually be implemented, not merely
adopted and then ignored.186
Mitigation Measures 4.11-1(a)-(b) and MM 4.18-1 fail to adhere to CEQA’s
requirements.
First, the revised operational GHG mitigation measure, Mitigation Measure 4.11-1(a),
requires the Applicant to prepare a “GHG Emissions Reduction Plan” prior to the start of
construction, but after approval of the FEIR/S.187 The revisions do not remedy the problem that
the measure still impermissibly defers mitigation and, as a result, the Plan has never been subject
to public review.188
Second, the FEIR/S replaced MM 4.11-1(b) with a new plan that relies on a novel offset
program, coupled with “loading orders” based on economic feasibility that carries uncertainties
183
PRC § 21081.6; 14 CCR § 15126.4(a)(2).
184
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
185
186
Federation of Hillside & Canyon Ass’ns v City of Los Angeles (2000) 83 CA4th 1252, 1261.
187
188
29
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in its implementation.189 Dr. Fox explains that the “loading order” allows CalAm to meet its net
zero GHG emissions requirement by implementing a number of different options ranging from
on-site solar panels, to off-site carbon offsets. CalAm’s choice to develop this mitigation is
improperly developed outside of the CEQA review process.
Also, as Dr. Fox explains, “by allowing unrestrained use of off-site and distant offsets,
the offset program forgoes the benefits of local mitigation. PV panels and renewable energy
from nearby off-site sources, for example, replace energy that would be generated by fossil fuel
sources, thus reducing not only GHG emissions, but also other criteria pollutants.”190
Third, the FEIR/S does not resolve the problem that the GHG mitigation measures are
improperly deferred.191 Initially, the DEIR/S stated that GHG impacts were significant and
unavoidable.192 Then, the FEIR/S changed this conclusion that based on revised mitigation
measures MM 4.11-1 and 4.18-1 the impact is now less than significant with mitigation.193
However, the mitigation measures are developed outside the CEQA review process.194
Therefore, the public has been deprived a meaningful opportunity to investigate if the mitigation
measures will actually reduce the impact to less than significant and, if the impact remains
significant, if all feasible mitigation measures were included.195 The same is true for MM 4.18-1
that applies to mitigation of construction emissions.196 The Construction Equipment Efficiency
Plan is submitted after approval of the FEIR/S and has never been the subject of meaningful
189
190
191
192
193
194
195
196
30
1840-072j
public review.197 Moreover, it fails to set standards or otherwise demonstrate how significant
construction GHG impacts will be mitigated.198
Fourth, the construction GHGs are estimated based on an assumed 40-year Project life
span.199 However, there are no enforceable conditions that would limit the Project life to 40-
years.200 The same is true for MM 4.18-1, which is silent on the assumed Project life.201
Accordingly, the mitigation measure is fatally flawed because it does not contemplate mitigating
emissions if the Project operates beyond 40 years.202
The FEIR/S remains inadequate with respect to impacts from GHG emissions. The
mitigation measures fail to comply with the requirements of CEQA and cannot be relied upon to
reduce the GHG impact from significant and unavoidable to less than significant with mitigation.
According to Dr. Fox, the impact remains significant, must be disclosed, and mitigated.
5. The Project has significant Valley Fever impacts that the FEIR/S fails to
adequately disclose and mitigate
Dr. Fox provided comments that put the lead agencies on notice of potentially significant
Valley Fever impacts. Dr. Fox’s comments also provided substantial evidence that conventional
dust control measures are well known to be ineffective because the fungal spores that cause
Valley Fever are very small.
The lead agencies provided unsupported, conclusory responses to Dr. Fox’s comments on
the significant Valley Fever impacts. Rather than acknowledge that the Project site, and indeed
197
198
199
200
201
202
31
1840-072j
all of Monterey County, are in an endemic zone, the lead agencies respond that they are “not
aware of any evidence that suggests that these soils definitely contain the spores. Thus, there is
no basis to conclude that impacts would be significant.”203 The lead agencies also suggest that
conventional dust mitigation measures will mitigate construction workers’ and the public’s
exposure to Valley Fever spores.
Responses to significant environmental issues raised in comments must be detailed,
reasoned, good faith responses.204 Conclusory statements unsupported by specific references to
empirical information, scientific authorities or explanatory information are insufficient.205 The
lead agency must support its impact conclusions with substantial evidence.206 On the one hand,
clearly erroneous or inaccurate evidence does not constitute substantial evidence.207 On the other
hand, expert opinion supported by facts constitutes substantial evidence.208
The lead agencies failed to comply with CEQA by providing unsupported, conclusory
statements in response to Dr. Fox’s DEIR/S comments. Their response (that they are “not aware
of any evidence”) clearly demonstrates that they ignored the evidence Dr. Fox provided in her
comments. Claiming unawareness is not sufficient for the purposes of CEQA.
In dismissing Dr. Fox’s substantial evidence about potentially significant Valley Fever
203
204
205
206
[Citation.]
207
208
14 CCR § 15384(b)
32
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impacts, the lead agencies lack substantial evidence to support their less than significant impact
conclusion. Dr. Fox reiterates in her supplemental comments that there is substantial evidence
that there will be a significant Valley Fever impact.
Since the lead agencies lack substantial evidence that the Valley Fever impact is less than
significant, and Dr. Fox provides substantial evidence that there will be a significant impact on
the environment, CEQA requires that the lead agency adopt feasible mitigation measures.
If the project will have a significant effect on the environment, the agency may approve
the project only if it finds that it has “eliminated or substantially lessened all significant effects
on the environment where feasible” and that any unavoidable significant effects on the
environment are “acceptable due to overriding concerns.”209
Dr. Fox provided a list of additional feasible mitigation measures in her comment letter
on the DEIR/S.210 Feasible mitigation measures includes continuously wetting soil before and
while digging or moving earth; providing HEP-filtered, air-conditioned enclosed cabs on heavy
equipment; using NIOSH-approved respirators; and improved medical surveillance for
employees.211
The FEIR/S failed to adequately respond to Dr. Fox’s comments about the potentially
significant Valley Fever impact. The FEIR/S fails as an information disclosure document and its
less than significant conclusion cannot be relied upon.
D. Alternatives
The Final EIR/S identifies Alternative 5a as the environmentally superior/
209
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
210
211
33
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environmentally preferred alternative, assuming implementation of the Pure Water Monterey
Groundwater Replenishment Project.212 Alternative 5a is also the NOAA-preferred alternative.213
However, Alternative 5a, which calls for seven slant wells as opposed to ten, carries the same
risks with respect to slant well operation that the Proposed Project carries.
An EIR must identify the environmentally superior alternative.214 In cases when the No
Project Alternative is the environmentally superior alternative, an EIR must also identify an
environmentally superior alternative from among the other alternatives.215 CEQA prohibits a
lead agency from approving a project if feasible alternatives or mitigation measures exist which
would substantially lessen a project’s significant environmental effects.216
The FEIR/S fails as an information disclosure document because it does not disclose the
significant and unavoidable impact on marine biological resources from slant well operation.217
As Dr. Sobczynski provides in his comments, even if the slant well operation is reduced by half
(i.e., to five wells), there will still be substantial bioaccumulation and a significant risk that the
aquatic habitat will be exposed to toxic hydrogen sulfide.218 Alternative 5a is not a true
alternative because it relies on the same technology that will have a significant impact on the
environment.
The lead agencies must revise and recirculate the EIR/S to disclose the significant and
unavoidable impact from slant well operations and re-evaluate feasible alternatives to the
Project.
212
FEIR/S, ES.7.2.
213
FEIR/S, ES.7.2.
214
14 CCR § 15126.6(a), (e)(2).
215
Id.
216
PRC §21002; CCEC v. Woodland, 225 Cal. App. 4th at 203; 14 CCR §15126.6.
217
See, supra, Scoping Ruling Issue II.C.1.
218
Sobczynski Comments, § III (b).
34
1840-072j
E. Other: The FEIR/S Must Withdrawn and Revised, and Necessarily
Recirculated
As described above, the lead agencies lacked substantial evidence to support their impact
conclusions for marine biological resources, terrestrial biological resources, air quality,
greenhouse gas emissions, and Valley Fever. On the other hand, CURE’s technical experts
provide substantial evidence that the FEIR/S fails to disclose and mitigate significant
environmental impacts. The FEIR/S must be withdrawn and revised to disclose, analyze, and
mitigate them.
Because of the substantial omissions in the information disclosed in the FEIR/S, revisions
revision will be required to address significant impacts that were not disclosed in the FEIR/S.
Recirculation is “required when the information added to the EIR changes the EIR in a
way that deprives the public of a meaningful opportunity to comment upon a substantial adverse
environmental effect of the project or a feasible project alternative or mitigation measure that
would clearly reduce such an effect and that the project’s proponents have declined to
implement.”219 Because these revisions are significant, the revised DEIR must be recirculated for
additional public comment.
III. PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY OF

PROJECT – ENVIRONMENTAL FACTORS
A. Public Utilities Code Section 1002(a)(4) and Other Law
Due to the inadequacies of the FEIR/S, the Project’s influence on the environment is not
fully disclosed, evaluated and mitigated. Accordingly, the CPUC is unable to consider section
219
14 CCR § 15088.5 Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal. 4th
1112, 1120
35
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1002(a) factors in deciding whether to grant or deny the CPCN. The EIR/S must be revised in
accordance with CEQA’s requirements.
B. Other
No comments.
IV. CONCLUSION
The CPUC cannot grant CalAm’s application for a CPCN until the CPUC’s
environmental review document is revised to comply with CEQA. As set forth above, the
FEIR/S is legally inadequate and cannot be certified. Once the EIR/S is revised and recirculated,
as required by CEQA, the CPUC may consider the application. So long as the document remains
flawed, any agency action would be premature and violate CEQA.220
Dated: April 19, 2018 Respectfully submitted,
/s/
______________________________
Linda Sobczynski
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
So. San Francisco, CA 94080
LSobczynski@adamsbroadwell.com
(650) 589-1660
Attorney for California Unions for

Reliable Energy (CURE)
220
See Re S. California Edison Co. (Sept. 12, 1990) 37 CPUC 2d 413, 417.
36
1840-072j
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FILED

OF THE STATE OF CALIFORNIA

Application of California-American Water

April 19, 2018

Attorney for California Unions for Reliable

TABLE OF AUTHORITIES .......................................................................................................... ii

Andrus v. Sierra Club

Bakersfield Citizens for Local Control v. Bakersfield

Ballona Wetlands Land Trust v. City of Los Angeles

Cleary v. County of Stanislaus

Citizens of Goleta Valley v. Board of Supervisors

City of Sausalito v. O’Neill

Competitive Enter. Inst. v. National Highway Traffic Safety Admin.

County of Amador v. El Dorado County Water Agency

Federation of Hillside & Canyon Ass’ns v. City of Los Angeles

Flanders Foundation v. City of Carmel-by-the-Sea

Galante Vineyards v. Monterey Peninsula Water Management Dist.

Great Basin Mine Watch v. Hankins

Mid States Coalition for Progress v. Surface Transp. Bd.

Northern Plains Resource Council, Inc. v. Surface Transp. Bd.

Oregon Natural Desert Ass'n v. Bureau of Land Management

People v. County of Kern

Re S. California Edison Co.

Robertson v. Methow Valley Citizens Counsel

Rural Landowners Association v. City Council

San Francisco Baykeeper, Inc. v. California State Lands Commission

San Francisco Ecology Center v. City & County of San Francisco

San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus

Save Our Peninsula Com. v. Monterey Bd. Of Supervisors

Towards Responsibility in Planning v. City Council

Public Resources Codes

§21081...........................................................................................4, 16, 19, 25, 29, 33

Public Utilities Codes

40 CFR §1500.1(c) ............................................................................................................3, 5

14 CCR §15002(a)(1) .......................................................................................................3, 23

a Certificate of Public Convenience and Necessity (“CPCN”) until the CPUC’s

the California Environmental Quality Act.

on the environment that the FEIR/S fails to disclose and mitigate.

the CPUC may consider the application.

additional public comment.

OF THE STATE OF CALIFORNIA

Application of California-American Water

OPENING BRIEF OF CALIFORNIA UNIONS FOR RELIABLE ENERGY

construction of the proposed project.1

California Environmental Quality Act (“CEQA”) process.3

(“Sanctuary”), as the NEPA lead agency, prepared a joint Environmental Impact

CPCN until it has certified that the Final EIR/S is complete:

A. Water Demand, Supply and Water Rights

C. Environmental Setting, Impacts and Mitigation Measures: The CPUC should

“feasible” by requiring “environmentally superior” alternatives and all feasible mitigation

Responses to significant environmental issues raised in comments must be detailed, reasoned,

good faith responses.17 Conclusory statements unsupported by specific references to empirical

EIR legally insufficient.20

support of its position. A clearly inadequate or unsupported study is entitled to no judicial

participation, thereby thwarting the statutory goals of the EIR process.”22

[the] environmental consequences” of their proposed actions.25 In so doing, NEPA makes

Second, pursuant to NEPA, an EIS must include a discussion of “appropriate mitigation

implementation.”28And, NEPA regulations identify the need to consider reasonable

action, so that reviewers may evaluate their comparative merits.30

ensuring well-informed government decisions and stimulating public comment on agency

a federal administrative agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or

project meets the requirements’ of NEPA.”36

that the experts identified in their comments on the DEIR/S.