BEFORE THE PUBLIC UTILITIES COMMISSION

FILED
OF THE STATE OF CALIFORNIA 04/05/18
04:59 PM

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the (Filed April 23, 2012)
Monterey Peninsula Water Supply Project and
Authorization to Recover All Present and
Future Costs in Rates.

JOINT RESPONSE OF CALIFORNIA-AMERICAN WATER COMPANY, COALITION

OF PENINSULA BUSINESSES, MONTEREY COUNTY FARM BUREAU AND
SALINAS VALLEY WATER COALITION TO
JOINT MOTION FOR PROMPT REFERRAL OF QUESTION TO
STATE WATER RESOURCES CONTROL BOARD
FOR EXPEDITED HEARING AND DECISION

Sarah E. Leeper Bob McKenzie

Cathy Hongola-Baptista Water Issues Consultant
California American Water Coalition of Peninsula Businesses
555 Montgomery Street, Suite 816
San Francisco, CA 94111 P.O. Box 223542
For: California-American Water Company Carmel, CA 93922
sarah.leeper@amwater.com For: Coalition of Peninsula Businesses
(415) 863-2960 jrbobmck@gmail.com
(831) 596-4206

Norman C. Groot Nancy Isakson

Monterey County Farm Bureau President
P.O. Box 1449 Salinas Valley Water Coalition
1140 Abbott Street, Suite C 3203 Playa Court
Salinas, CA 93902-1449 Marina, CA 93933
For: Monterey County Farm Bureau For: Salinas Valley Water Coalition
norm@montereycfb.com nisakson@mbay.net
(831) 751-3100 (831) 224-2879

Dated: April 5, 2018

 TABLE OF CONTENTS

I.  INTRODUCTION ............................................................................................. 1 

II.  DISCUSSION .................................................................................................... 4 

A.  Cal-Am’s Burden is to Establish Project Feasibility .............................. 4 

B.  As a Lead Agency the Commission Must Determine the

Project Is Feasible................................................................................... 5 

C.  The SWRCB Does Not Have Authority in the Present

Circumstances to Resolve the Water Rights Issue ................................. 7 

D.  SGMA Does Not Give the SWRCB Authority to Resolve

Cal-Am’s Water Rights .......................................................................... 8 

E.  The Threat of Possible Future Litigation Does Not Give the
SWRCB Authority to Resolve Cal-Am’s Water Rights ........................ 9 

F.  Moving Parties’ Additional Arguments Do Not Give the

SWRCB Authority to Resolve Cal-Am’s Water Rights ...................... 10 

III.  CONCLUSION ............................................................................................... 11 

i
 TABLE OF AUTHORITIES

Cases 

Bozung v. Local Agency Formation Commission of Ventura County (1975) 13 Cal.3d 263
.......................................................................................................................................... 6
City of Lodi v. East Bay Mun. Util. Dist. (1936) 7 Cal.2d 316 ........................................... 5
Kleist v. City of Glendale (1976) 56 Cal.App.3d 770 ......................................................... 6
Nelson v. County of Kern (2010) 190 Cal.App.4th 252 ....................................................... 6
Planning and Conservation League v. Department of Water Resources (2000) 83
Cal.App.4th 892 ................................................................................................................ 6
Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489 .............................. 5
Statutes 

Pub. Resources Code § 21067 ............................................................................................. 5

Pub. Resources Code § 21165(a)......................................................................................... 5
Water Code § 10720.5 ......................................................................................................... 9
Water Code §§ 2000-2001................................................................................................... 8
Water Code §§ 2100-2102................................................................................................... 8
Other Authorities 

SWRCB Order WR 2009-0060 ........................................................................................... 3

SWRCB Order WR 2016-0016 ........................................................................................... 3

ii
 BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the (Filed April 23, 2012)
Monterey Peninsula Water Supply Project and
Authorization to Recover All Present and
Future Costs in Rates.

JOINT RESPONSE OF CALIFORNIA-AMERICAN WATER COMPANY, COALITION

OF PENINSULA BUSINESSES, MONTEREY COUNTY FARM BUREAU AND
SALINAS VALLEY WATER COALITION TO
JOINT MOTION FOR PROMPT REFERRAL OF QUESTION TO
STATE WATER RESOURCES CONTROL BOARD
FOR EXPEDITED HEARING AND DECISION

Pursuant to Rule 11.1(e) of the California Public Utilities Commission’s Rules of

Practice and Procedure, California-American Water Company (“Cal-Am”), Coalition of

Peninsula Businesses, Monterey County Farm Bureau and Salinas Valley Water Coalition submit

this joint response to the Joint Motion for Prompt Referral of Question to State Water Resources

Control Board for Expedited Hearing and Decision (“Joint Motion”).

I. INTRODUCTION

The Joint Motion should be denied because any reference to the State Water Resources

Control Board (“SWRCB”) regarding water rights prior to the California Public Utilities

Commission’s (the “Commission”) approval of a Certificate of Public Convenience and

Necessity (“CPCN”) and Final Environmental Impact Report (“FEIR”)1 for the Monterey

Peninsula Water Supply Project (“MPWSP”) is untimely and inappropriate. The alleged water

rights “issue” raised in the Joint Motion is whether Cal-Am can establish an appropriative

groundwater right in the event the MPWSP extracts fresh or brackish water from the Salinas

1 The March 2018 CalAm Monterey Peninsula Water Supply Project Final Environmental
Impact Report/Environmental Impact Statement is referred to herein as the “FEIR”.

{00436104;1} 1
Valley Groundwater Basin (“Basin”).2 As discussed below, the Moving Parties3 request that the

Commission ask the SWRCB to determine whether Cal-Am met its purported burden of proof,

citing to the SWRCB’s Final Review, to establish an appropriative groundwater right. The

Moving Parties base their request on an apparent misinterpretation of the “burden” Cal-Am must

meet in order to obtain the requested CPCN for the MPWSP. Here, in the context of the

Commission’s California Environmental Quality Act (“CEQA”) review, the test is whether the

project is feasible. Feasibility with respect to water rights is a question of whether “there is a

sufficient degree of likelihood that Cal-Am will possess rights to the water that would supply the

desalination plant.”4

In 2012, the Commission sought the SWRCB’s opinion “as to whether Cal-Am’s claim to

being able lawfully to extract feedwater is credible. That opinion can inform the Commission’s

determination of whether the proposed project is legally feasible.”5 Based on an extensive

CEQA record,6 the recently released FEIR addresses that question of feasibility, and concludes

that the effects on groundwater conditions and groundwater uses from the proposed MPWSP will

either be insignificant, less than significant, or less than significant with mitigation. On that

basis, the FEIR concludes that the proposed MPWSP will not cause adverse impacts to

groundwater conditions or groundwater uses, and therefore Cal-Am could feasibly develop

2 To be clear, there is no dispute that Cal-Am “needs no groundwater right or other water right to
extract seawater from Monterey Bay.” Exh. MCD-17 (Attachment 1 to the Joint Motion),
SWRCB Final Review of California American Water Company’s Monterey Peninsula Water
Supply Project, dated July 31, 2013, p. 33 (“Final Review”).
3 Marina Coast Water District (“MCWD”), City of Marina (“Marina”), California Unions for
Reliable Energy, Citizens for Just Water, Public Trust Alliance, Public Water Now, and Water
Plus each signed onto the Joint Motion and are referred to herein collectively as “Moving
Parties.”
4 FEIR, Section 2.6, p. 2-32.
5 Joint Motion, Attachment 2, p. 2.
6 See FEIR, Section 1.4.3, pp. 1-10 to 1-11, and Section 1.5.2, pp. 1-15 to 1-16, detailing the
extensive number of comments and numerous public meetings held prior to release of the FEIR.
Page 1-16 details specific additional comments received from MCWD after the close of the
comment period. Chapter 8 of the FEIR also provides Master Responses to address numerous
common issues raised during the public review. The Master Responses show active participation
in the CEQA process by many of the Moving Parties.

{00436104;1} 2
groundwater rights to withdraw water from the Basin to supply the MPWSP desalination plant.7

Ultimately, as lead agency under CEQA and the regulatory agency that would approve the

project and issue a CPCN, the Commission must determine whether the project is feasible, what

environmental impacts will result, and may adopt feasible mitigation measures if needed.

Asking the SWRCB to make a determination on groundwater rights is premature. Asking

the SWRCB to review the record before the Commission and to make a determination about

potential groundwater impacts is unnecessary, a waste of time and resources, and improper

delegation of the Commission’s obligations under CEQA. Although the Moving Parties attempt

to distinguish a determination about environmental impacts under CEQA from the question of

injury to legal users as part of a water rights determination, the only determination that can

currently be made is the question of whether the project will cause environmental harm,

including harm to existing groundwater users. That is a question for the Commission.

Moving Parties recognize that “some delay will unavoidably ensue” as a result of a

referral, but ask the Commission, Cal-Am and Cal-Am’s customers accept this delay because it

would be “evident” to the SWRCB that this delay was “unanticipated” and thus excuse Cal-Am

for its failure to comply with the SWRCB’s Cease and Desist Order (“CDO”).8 It is pure

speculation as to what would be “evident” to the SWRCB and how the SWRCB would view Cal-

Am’s failure to meet the upcoming September 20, 2018 milestone to obtain issuance of a CPCN.

Indeed, inasmuch as the Commission, Cal-Am and the other Settling Parties developed a

substantial environmental and technical record analyzing the potential groundwater effects of the

MPWSP based on the recommendations and direction in the SWRCB’s 2013 Report, and that

record is pending before the Commission, Cal-Am is skeptical that the SWRCB will look

favorably at delaying the September 2018 milestone. Failure to meet the CDO milestones comes

with very real consequences and Cal-Am and its customers cannot afford to put the September

7 FEIR, Sections 2.6.2, pp. 2-36 to 2-40.

8 See SWRCB Order WR 2009-0060, as modified by SWRCB Order WR 2016-0016.

{00436104;1} 3
30, 2018 milestone deadline at risk by asking the SWRCB to review the same voluminous

CEQA record that is now before the Commission.

Indeed, the Commission has amassed an extensive record and held numerous meetings

and hearings in both the CEQA review process and the CPCN portion of this proceeding.9 There

is no need for additional hearings by the SWRCB or the Commission to reach a determination on

the feasibility of the project. The Moving Parties’ unfounded attempt to delay the Commission’s

decision on the MPWSP must be denied.

II. DISCUSSION

A. Cal-Am’s Burden is to Establish Project Feasibility

Moving Parties argue Cal-Am must meet “the burden articulated by the State Water

Resources Control Board (“SWRCB”) in its July 31, 2013 Final Review (Ex. MCD-17, pp. ii,

42, 46) to demonstrate that operation of the MPWSP, as configured in Cal-Am’s March 14, 2016

Amended Application herein, will result in a valid develop water right.” As Cal-Am previously

explained in Cal-Am’s HWG Report Reply Comments, the Final Review outlines the factual

record that should be developed by the Commission and Cal-Am to inform an assessment of

whether Cal-Am has a credible claim to development of appropriative water rights for the

MPWSP.10 Cal-Am and the Commission have performed all of the analyses and undertaken all
of the studies recommended in the Final Review, and Cal-Am submits that the record will

support a Commission determination that water rights are feasible for the MPWSP.

In its September 26, 2012 letter to the SWRCB, the Commission noted that “several

parties in the proceeding are questioning Cal-Am’s claim that it will have a legal right to extract

feedwater through the proposed test and permanent slant wells,” and that “approval of the project

9 See FEIR Sections 1.4.3, 1.5.1 – 1.5.2 regarding public input and participation in the
environmental review process. Evidentiary hearings took place before the Commission in this
proceeding in April, May and December of 2013, April and May 2016, and October and
November 2017.
10 California-American Water Company’s Reply Comments Regarding Hydrogeologic Study and
Technical Report, dated January 4, 2018 (“HWG Report Reply Comments”), pp. 8-11.

{00436104;1} 4
would require a Commission finding of legal feasibility.” Thus, the Commission requested the

SWRCB’s “opinion as to whether Cal-Am’s claim to being able lawfully to extract feed water is

credible” to inform legal feasibility, but it explicitly stated that it was “not asking for a

determination of water rights.”

In the Final Review, the SWRCB gave its opinion that in order to make a feasibility

determination, “additional information is needed,” and recommended the types of information

that should be developed: well depth, aquifer conditions, test wells, updated groundwater

modeling, etc.11 That “additional information” has properly been developed through the CEQA

process. As stated above and as reflected in the FEIR, the CEQA record is extensive and there

have been numerous opportunities for public participation.12 The Commission therefore has an
adequate record to find that the MPWSP is feasible. There is nothing in the Final Review – or

any other document or authority cited by Moving Parties – that requires additional evidentiary

hearings before the SWRCB (or any other agency or court) on groundwater impacts in order for

the Commission to issue the requested CPCN.13

B. As a Lead Agency the Commission Must Determine the Project Is Feasible

CEQA requires the Commission, as the lead agency for the MPWSP EIR, to exercise its

independent judgment in assessing the environmental effects of the MPWSP and the conditions

upon which the project is approved.14 The lead agency is “required by CEQA to consider and

11 Final Review, pp. ii, 50.

12 As an example of public participation specifically on water rights, see FEIR section 8.2.3,
Master Response on Water Rights. In the Water Rights Master Response, the Lead Agencies
addressed comments submitted by the following Moving Parties: MCWD, Marina, Citizens for
Just Water, Public Trust Alliance, Public Water Now and some of their individual members. See
FEIR Section 8.2.3, p. 8.2-4.
13 To the extent that unmitigated impacts may result to existing legal users of groundwater in the
basin from operation of the MPWSP, such impacts would be addressed consistent with the
physical solution principles discussed in the Final Review. Any party that might challenge
operation of the MPWSP in court on the basis of injury to pre-existing appropriative rights
would have the burden of proving such injury. City of Lodi v. East Bay Mun. Util. Dist. (1936) 7
Cal.2d 316, 339; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489, 535.
14 Pub. Resources Code §§ 21067, 21165(a); Bozung v. Local Agency Formation Commission of
Ventura County (1975) 13 Cal.3d 263, 285; Planning and Conservation League v. Department of
Water Resources (2000) 83 Cal.App.4th 892, 903, 905 (lead agency responsible for writing,

{00436104;1} 5
evaluate the potential environmental effects of the entire project.”15 Delegation of the

Commission’s responsibility to another agency is prohibited:

So significant is the role of the lead agency that CEQA proscribes

delegation. . . . “Neither the CEQA nor the state guidelines
authorize the [lead agency] to delegate its review and consideration
function to another body. . . . Delegation is inconsistent with the
purposes of the EIR itself.”16

On the issue of feasibility, the FEIR/FEIS specifically examined “whether, based upon

the evidence currently available, the Commission could conclude that there is a sufficient degree

of likelihood that CalAm will possess rights to the water that would supply the desalination plant

such that the proposed project can be deemed to be feasible.”17 Using the legal framework
provided in the SWRCB’s Final Review, the FEIR/FEIS examines in detail “whether Basin

water rights holders would be injured or harmed by virtue of withdrawal from the Basin of any

amount of water that is not purely seawater.”18 FEIR/FEIS concludes “that the MPWSP would

not result in harm or injury to Basin water rights holders such that CalAm would possess the

right to withdraw water from the Basin as ‘developed water.’”19

Disguising the Joint Motion as a water rights issue, the Moving Parties remarkably seek

to have the entire record developed before the Commission, including the CEQA record, referred

to the SWRCB. The current record will not provide the SWRCB with any more basis to

adjudicate or determine Cal-Am’s water rights than it would provide for the Commission to

determine whether there is a potentially significant effect on the groundwater basin or

groundwater uses. Moving Parties improperly seek to transfer the only question at issue, that of

approving and certifying EIR and approving project).

15 Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 270.
16 Planning and Conservation League, 83 Cal.App.4th at 907, quoting Kleist v. City of Glendale
(1976) 56 Cal.App.3d 770, 779.
17 FEIR, Section 2.6, p. 2-32.
18 FEIR, Section 2.6.2, p. 2-36; see also FEIR, Sections 2.6 to 2.6.4, pp. 2-31 to 2-43, Sections
8.2.3 to 8.2.3.9, pp. 8.2-4 to 8.2-16.
19 FEIR, Section 2.6.2, p. 2-39.

{00436104;1} 6
the MPWSP’s impacts on groundwater, from the Commission to the SWRCB. In the present

circumstances, a referral would be a tremendous waste of resources and time, would violate

CEQA, and would unnecessarily put Cal-Am’s ability to comply with the CDO milestones at

serious risk.

C. The SWRCB Does Not Have Authority in the Present Circumstances to

Resolve the Water Rights Issue

Moving Parties argue that “[r]esolution of this groundwater rights question is at the heart

of the Commission’s upcoming determinations concerning the Project’s legal feasibility” and

that the issues must be “referred promptly to the SWRCB for an expedited hearing and decision.”

As Cal-Am has previously stated, and as explained in detail in the FEIR/FEIS, development of

“water rights” for the Project cannot occur until the MPWSP is actually operating:20

Numerous commenters express concern that the MPWSP project

review and consideration process is proceeding without CalAm
having secured water rights for the project, urging that water rights
should first be established before the Lead Agencies consider
approval of the project.
This position may reflect a misunderstanding of the nature of an
appropriative right to “developed water” under water rights law.
As explained in Draft EIR/EIS Section 2.6, on page 2-29, “no
government agency will formally grant water rights to CalAm for
the project.” There is no state or local agency with authority to
approve CalAm’s water rights for the MPWSP. As stated on page
35 of the State Water Resources Control Board (SWRCB) report
on water rights for the MPWSP (EIR/EIS Appendix B2, referred to
as the “Report”), “No permit is required by the State Water Board
to acquire or utilize appropriative groundwater rights.” The rights
to pump and use groundwater in California in a non-adjudicated
basin (such as the SVGB) are established by actual diversion,
pumping and use, and are governed by a long line of court cases.
In the event that one or more parties believe that the extraction and
use of groundwater by another party is inconsistent with the law,
the concerned parties may initiate a civil action against the
extracting party to contest the right of that party to take and use
groundwater. As applied here, someone could bring a legal action
against CalAm challenging the right of CalAm to use SVGB
groundwater incidentally withdrawn by the slant wells for the

20 HWG Report Reply Comments, pp. 8-11; California-American Water Company Opening
Brief on Legal Issues for Early Resolution, dated July 11, 2012, pp. 10-15.

{00436104;1} 7
 desalination project. 21

In short, no agency or court could “resolve” whether or not Cal-Am has acquired groundwater

rights prior to operation of the project.

The Moving Parties nonetheless argue that referral now is appropriate because the

SWRCB has authority pursuant to (1) Water Code sections 2100-2102 to initiate a court action to

restrict groundwater pumping, and (2) Water Code sections 2000-2001 to “receive references of

water rights issues from the courts.” First, the basin adjudication process authorized by Water

Code section 2100 is inapposite to the narrow issue raised in the Joint Motion; the fact that the

SWRCB may institute a civil action to comprehensively adjudicate groundwater rights in a basin

does not authorize the SWRCB to adjudicate Cal-Am’s groundwater rights at this time. Second,

Water Code sections 2000-2001 authorize a court in a suit for the determination of water rights

to refer the suit to the SWRCB. Sections 2000-2001 do not give the SWRCB authority to

adjudicate water rights and make binding findings of fact or law based on a reference from the

Commission. The SWRCB’s authority to determine groundwater rights is narrow, and there is

simply nothing in the Water Code gives the SWRCB jurisdiction to adjudicate or determine

whether Cal-Am will have appropriative groundwater rights under the present circumstances.
Indeed, the authorities relied upon by the Moving Parties in the Joint Motion are the same

authorities relied upon by the SWRCB to issue the Final Review, in which the SWRCB was

clear it was not making a “water rights determination,” but instead providing an “outline of legal

considerations.”22 The Joint Motion is an unmeritorious delay tactic and should be denied.

D. SGMA Does Not Give the SWRCB Authority to Resolve Cal-Am’s Water
Rights

Moving Parties argue, “California’s Sustainable Groundwater Management Act

(“SGMA”) became effective on January 1, 2015, providing an additional legal framework for the

21 FEIR, Section 8.2.3, p. 8.2-6.

22 Final Review, pp. i, 1.

{00436104;1} 8
determination of whether operation of the MPWSP could cause injury to other users and

beneficial uses of groundwater.” Notably, Moving Parties fail to explain how SGMA would

alter the water rights analysis included in the Final Review. Moving Parties also do not cite to

any part of SGMA that alters groundwater rights law or that would give the SWRCB authority to

resolve the water rights issue in the current context. Indeed, SGMA specifically states that

“[n]othing in [SGMA]… determines or alters surface water rights or groundwater rights under a

common law or any provision of law that determines or grants surface water rights.”23 Simply

put, nothing in SGMA changes the feasibility analysis for the project or makes an adjudication or

determination of water rights proper at this time.

E. The Threat of Possible Future Litigation Does Not Give the SWRCB

Authority to Resolve Cal-Am’s Water Rights

The Moving Parties argue that referral to the SWRCB “for a prompt evidentiary hearing

and resolution would be far preferable to litigating the water rights question in a protracted

rehearing process and judicial challenge to any Commission decision that would grant an

unqualified CPCN made without the benefit of the SWRCB’s determination.” As stated in the

FEIR/FEIS, the threat of lawsuits against large, complex project like the MPWSP is not

uncommon and does not change the feasibility analysis:

Commenters point out that the uncertainty concerning project

water rights could inhibit MPWSP construction or operation, and
possibly even make the project infeasible in the end. It is true that a
water rights judicial challenge, if one were to ensue, could indeed
impair the ability of the project to move forward and timely meet
the project objectives. It would at this juncture be speculative for
the Lead Agencies to forecast whether such a judicial challenge
would be filed, when it would occur, whether an injunction would
be issued to halt project progress, how long resolution of it would
take and what the outcome may be of such an action. Any
development project, and certainly any complex project such as the
MPWSP, is subject to myriad legal hurdles on the permitting and
judicial fronts. It is precisely because the Lead Agencies
understand that water rights is a topic of considerable interest for
the MPWSP that the EIR/EIS includes a robust discussion of water
rights in an effort to ascertain whether it appears likely based on

23 Water Code § 10720.5.

{00436104;1} 9
 the evidence in the record that CalAm will have water rights such
that the project can be deemed feasible.

Furthermore, because the SWRCB may only provide non-binding advisory opinions or

analysis at this time, as it did in the Final Report, a referral now would not preclude the Moving

Parties from filing a lawsuit to resolve the issue when it is ripe for adjudication. As such, referral

to the SWRCB will not save time or avoid delays associated with litigation, but would simply

protract the administrative review process.

F. Moving Parties’ Additional Arguments Do Not Give the SWRCB Authority

to Resolve Cal-Am’s Water Rights

Moving Parties raise numerous additional issues, none of which support referral to the

SWRCB or would permit the SWRCB to resolve water rights issues under the present

circumstances. First, Moving Parties suggest referral to the SWRCB makes sense because “the

parties to this proceeding have been engaged in extensive settlement discussions.” (Emphasis

added.) As of the date of this filing, no new settlements have been reached and there are no

formal all-party settlement meetings currently scheduled. Even if additional settlement meetings

were scheduled, those could continue to take place without a referral to the SWRCB.

Second, Moving Parties suggest that while the Commission awaits a determination by the
SWRCB, the Commission could hold hearings as requested in the Motion for Additional

Evidentiary Hearings served on January 9, 2018. As noted by Administrative Law Judge Houck

at the February 27, 2018 status conference, the parties supporting the Motion for Additional

Evidentiary Hearings needed to offer proof that what would be presented at the requested

additional hearings is more than speculative and could not have been presented at the October
and November 2018 hearings.24 Respectfully, the parties to the Motion for Additional

Evidentiary Hearings did not meet that burden. Moreover, consideration of the issues identified

in the Motion for Additional Evidentiary Hearings would not enable the SWRCB to resolve the

groundwater rights issue in the current circumstances. To the extent Moving Parties use the Joint

24 RT Vol. 28, February 27, 2018, p. 5027:19-26, p. 5032:2-8.

{00436104;1} 10
Motion as an opportunity to argue in favor of expanded GWR or other options, those arguments

are inappropriate and should be ignored. The parties already filed opening and closing briefs on

those issues. Further argument was not invited, is not warranted and should be rejected.

Finally, the renewed claim that “the failure to resolve the groundwater rights question

through a contested hearing before a forum with jurisdiction to do so would violate constitutional

due process guarantees as well as the Commission’s obligations under the Public Utilities Code”

remains unfounded. As discussed above and in prior filings, referral to the SWRCB or the courts

would be premature and any opinion issued would be advisory.25 To the extent groundwater

rights are required, such rights would be appropriative in nature and would be acquired,

developed and perfected consistent with well-established principals of California water law.26
Appropriative water rights cannot be acquired by Cal-Am until the MPWSP is actually

operating. MCWD’s argument remains fatally flawed and provides no basis for granting the

Joint Motion.

III. CONCLUSION

Based on the foregoing, the Commission should deny the Joint Motion in its entirety

because it is untimely and inappropriate.

Dated: April 5, 2018

/s/ Sarah Leeper

Sarah Leeper, Attorney
California-American Water Company
555 Montgomery Street, Suite 816
San Francisco, CA 94111
For: California-American Water Company

25 HWG Report Reply Comments, pp. 8-11.

26 California-American Water Company Opening Brief on Legal Issues for Early Resolution,
dated July 11, 2012, pp. 10-15.

{00436104;1} 11
 Dated: April 5, 2018

/s/ Bob McKenzie

Bob McKenzie
Water Issues Consultant
Coalition of Peninsula Businesses
P.O. Box 223542
Carmel, CA 93922
For: Coalition of Peninsula Businesses

Dated: April 5, 2018

/s/ Norman C. Groot

Norman C. Groot
Monterey County Farm Bureau
P.O. Box 1449
1140 Abbott Street, Suite C
Salinas, CA 93902-1449
For: Monterey County Farm Bureau

Dated: April 5, 2018

/s/ Nancy Isakson
Nancy Isakson
President
Salinas Valley Water Coalition
3203 Playa Court
Marina, CA 93933
For: Salinas Valley Water Coalition

{00436104;1} 12

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