BEFORE THE PUBLIC UTILITIES COMMISSION

FILED
OF THE STATE OF CALIFORNIA 03/21/18
04:59 PM

In the Matter of the Application of California- A.12-04-019

American Water Company (U 210 W) for (Filed April 23, 2012)
Approval of the Monterey Peninsula Water
Supply Project and Authorization to Recover
All Present and Future Costs in Rates.

JOINT MOTION FOR PROMPT REFERRAL OF QUESTION

TO STATE WATER RESOURCES CONTROL BOARD
FOR EXPEDITED HEARING AND DECISION

Mark Fogelman Sara Steck Myers

Friedman & Springwater LLP 122 – 28th Avenue
350 Sansome Street, Suite 210 San Francisco, CA 94121
San Francisco, CA 94104 For: City of Marina
For: Marina Coast Water District ssmyers@att.net
mfogelman@friedmanspring.com (415) 387-1904
(415) 834-3800

Linda T. Sobczynski Juli Hofmann

Adams Broadwell Joseph & Cardozo Lisa Berkley
601 Gateway Boulevard, Suite 1000 3138 Ocean Terrace
South San Francisco, CA 94080 Marina, CA 93933
For: California Unions for Reliable Energy For: Citizens for Just Water
lsobczynski@adamsbroadwell.com Laberkley@gmail.com
(650) 589-1660 (917) 251-3360

[ADDITIONAL PARTIES AND REPRESENTATIVES LISTED BELOW]

Date: March 21, 2018

Michael Warburton George Riley
The Public Trust Alliance 1198 Castro Road
187 East Blithedale Avenue Monterey, CA 93940
Mill Valley, CA 94941 For: Public Water Now
For: Public Trust Alliance georgetriley@gmail.com
warburton@sonic.net (831) 645-9914
michael@rri.org
(415) 928-3774

Ron Weitzman
23910 Fairfield Place
Carmel, CA 93923
For: Water Plus
ronweitzman@redshift.com
Telephone: (831) 375-8439
I. INTRODUCTION.

An important factual dispute exists among the parties to this proceeding. The dispute

goes to the legal and practical feasibility of the proposed project, but it has not been

addressed in evidentiary hearings. The dispute centers on disagreement regarding the

potential for the Monterey Peninsula Water Supply Project (“MPWSP” or “the Project”) to

cause injury to a community’s groundwater resources. The Moving Parties understand the

Applicant takes the position that the proposed project will not result in injury to groundwater

resources in the Marina area. The City of Marina (“Marina”) and the Marina Coast Water

District (“MCWD”) disagree. (See, e.g., Marina Opening Brief, pp. 59-67; MCWD Opening

Brief, pp. 34-44.) Resolution of this groundwater rights question is at the heart of the

Commission’s upcoming determinations concerning the Project’s legal feasibility, its public

convenience and necessity, its influence on the environment, and a host of other issues.1

Therefore, pursuant to Rule 11.1 of the Commission’s Rules of Practice and

Procedure, California Unions for Reliable Energy (“CURE”), Citizens for Just Water (“Just

Water”), the City of Marina, the Marina Coast Water District, the Public Trust Alliance

(“PTA”), Public Water Now (“PWN”) and Water Plus (together, the “Moving Parties”)

respectfully request that the question of whether the Applicant, California-American Water

Company (“Cal-Am”), has met the burden articulated by the State Water Resources Control

Board (“SWRCB”) in its July 31, 2013 Final Review (Ex. MCD-17,2 pp. ii, 42, 46) to

1
The legal feasibility of the initial MPWSP application was briefed in 2012 (see Att. 2, p. 1),
but the Commission has not yet decided the issue. Several of the Moving Parties (CURE,
Just Water and Marina) intervened subsequent to the 2012 briefing on legal issues.
2
A copy of Ex. MCD-17, which consists of the SWRCB’s July 31, 2013 Final Review
without attachments, is attached hereto as Attachment 1.
1
demonstrate that operation of the MPWSP, as configured in Cal-Am’s March 14, 2016

Amended Application herein, will result in a valid developed water right or other water right

and will not cause injury to other groundwater users and beneficial uses, be referred

promptly to the SWRCB for an expedited evidentiary hearing and decision.3 The Moving

Parties request that the SWRCB’s inquiry focus on groundwater conditions in all of the

aquifers within the 180/400 Foot Aquifer Subbasin south of the Salinas River and within the

adjacent Monterey Subbasin.

The Moving Parties respectfully request this referral so that the factual dispute

concerning whether Cal-Am has met the burden articulated by the SWRCB may be resolved

in a fair and expeditious manner in a forum with undisputed authority to resolve the matter,

and by same state agency that the Commission previously consulted for its expertise on the

matter. This motion is not intended to delay the Commission’s proceedings in this

application in any way, although the Moving Parties acknowledge that – if the requested

referral is made, and if the Commission awaits the SWRCB’s hearing and decision of the

question prior to issuing its Phase 1 decision herein – some delay will unavoidably ensue.

The Moving Parties respectfully suggest the Commission request the SWRCB provide its

decision as expeditiously as possible.

Furthermore, the Moving Parties recognize that, as noted in the parties’ Joint Case

Management Statement, the parties to this proceeding have been engaged in extensive

settlement discussions. (Feb. 22, 2018 Joint Case Mgmt. Stmt., pp. 37-38.) Those

3
The SWRCB’s evidentiary hearing procedures are governed by the SWRCB regulations in
Chapters 1 and 1.5, Division 3 of Title 23 of the California Code of Regulations and the
Government Code and Evidence Code provisions incorporated therein.
2
settlement discussions could continue while the SWRCB undertakes the referral of the

groundwater rights question.

In addition, the motion of a number of parties for limited further evidentiary hearings,

which was filed January 9, 2018, remains pending. As the motion explained, the primary

purpose of such additional hearings would be to augment the record with new information

concerning expansion of Pure Water Monterey, potentially for 2,250 AFY of additional

supply to Cal-Am, as well as the long-term availability of certain increments of water supply

for purchase by Cal-Am from MCWD. (Jan. 9, 2018 motion, pp. 3-6.) These additional

supply topics were introduced following the Assigned Commissioner and Administrative

Law Judges’ (“ALJs”) Ruling of August 31, 2017, which expressly solicited additional

evidence on them.

Should such evidentiary hearings go forward before the Commission and ultimately

result in Commission approval of Cal-Am’s entry into additional water purchase

agreements,4 the water supply needs of the Monterey Peninsula would be well provided for,

regardless of the status of any Certificate of Public Convenience and Necessity (“CPCN”)

decision on the MPWSP.5 In other words, the Commission could grant this motion for

4
Cal-Am’s purchase of up to 3,500 AFY (acre-feet per year) of water from the Pure Water
Monterey project was approved in the Commission’s Decision 16-09-021, and that project is
presently under construction.
5
As the Commission’s Executive Director informed the SWRCB in a May 20, 2016 letter
supporting modification of the SWRCB’s prior CDO, Cal-Am’s present average Carmel
River pumping exceeds its legal right by 4,280 AFY. (Ex. PCL-7, p. 3.) The Pure Water
Monterey project, now approved and presently under construction, will supply 3,500 AFY.
(D.16-09-021, Ordering Para. 1 and Appendix C, pp. 3, 8-9.) The deficit remaining is only
780 AFY, which would be more than made up by a 2,250 AFY expansion of Pure Water
Monterey. The resulting surplus should ensure both CDO compliance and lifting of the
3
referral of the groundwater rights question to the SWRCB and await the SWRCB’s answer

before determining whether or not to issue a CPCN, while the Commission also considers

and potentially approves additional purchased-water options for Cal-Am. Because those

options could be available as soon as the end of 2020 (see, e.g., Ex. PCA-1, p. 8 and Fig. 1,

Mr. Sciuto testifying for Monterey One Water), there would be no danger of insufficient

supply and no threat of non-compliance with the SWRCB’s cease-and-desist order (“CDO”)

deadline of December 31, 2021 during the time the water rights question is being addressed

by the SWRCB. Furthermore, as noted above, the parties’ ongoing settlement efforts

concerning the proposed desalination project could continue simultaneously.

The Moving Parties also recognize that the Commission may proceed to promptly

issue a decision denying the CPCN requested by Cal-Am. Several parties have argued in

their briefs for such an outcome. In the event the Commission declines to issue a CPCN for

the MPWSP, the relief requested in this motion would not be required, and the motion would

become moot.

II. BASIS FOR THE REQUEST FOR REFERRAL TO SWRCB.

As the Commission’s then-Executive Director stated in his September 26, 2012 letter6

to the SWRCB, at page 2:

present moratorium on new connections by or before 2022, as a number of parties have

suggested. (Feb. 22, 2018 Joint Case Mgmt. Stmt., pp. 6-7 (Monterey Peninsula Water
Management District, Monterey Peninsula Regional Water Authority, Monterey One Water,
joined by Surfrider and LandWatch), 10-12 (the Planning and Conservation League
Foundation (“PCLF”), joined by MCWD, LandWatch, Sierra Club, PTA, PWN, Just Water,
Water Plus, Surfrider Foundation).)
6
A copy of the Sept. 26, 2012 letter from Commission Executive Director Clanon to
SWRCB Executive Director Howard is attached hereto as Attachment 2.
4
 The Commission generally disclaims jurisdiction to determine water rights.
The Commission does have both jurisdiction and an obligation in this instance,
though, to determine whether any claim by Cal-Am to a right to feedwater that
would be essential to the reliable operation of the proposed desalination plant
is credible enough to support a finding of legal feasibility for the Project.

That letter requested the SWRCB’s “opinion as to whether Cal-Am’s claim to being able

lawfully to extract feedwater [for the MPWSP] is credible.” (Ibid.) The letter noted that the

parties had briefed the question of legal feasibility, and that their positions “vary widely on

the issue, and taken together indicate that the issue is complex.” (Id. at p. 1.)

The SWRCB duly provided its view on the matter on July 31, 2013. (Ex. MCD-17.)

Its July 31, 2013 Final Review indicated that additional information would be needed, the

effects of the project would need to be evaluated – including information derived from

boreholes, a test well and aquifer testing, and updated groundwater modeling that would

address, among other things, the “cumulative effects of the MPWSP, the Castroville

Seawater Intrusion Project, and the Salinas Valley Water Project on the Basin.” (Ex. MCD-

17, pp. ii-iii.) The SWRCB noted in the Final Review that the Commission “did not request

that the State Water Board make a water rights determination.” (Ex. MCD-17, p. 1.)

Consequently, the SWRCB did not make such a determination in its Final Review.

The Commission has not yet determined the legal feasibility of the Project. It is

indisputable that the Applicant’s asserted claim that it can lawfully pump source water for the

Project depends on the key factual question of whether that pumping would harm existing

groundwater users and present beneficial uses. The question is also relevant to other issues that

the Commission must resolve, including public convenience and necessity, influence on the

environment and the MPWSP’s compatibility with the new state mandate for local governance of

groundwater sustainability efforts. The SWRCB is the California agency with preeminent
5
expertise on this water rights question, and it has already been consulted once on this topic five

years ago before the Project evolved and more scientific information became available.

Moreover, it is important to understand that determining whether there are “significant impacts”

under the California Environmental Quality Act (“CEQA,” being covered in the ongoing CEQA

process) is an entirely different question than the water rights question of injury to legal users

and beneficial uses. Thus, the Commission should utilize the SWRCB’s expertise to provide the

necessary resolution of the parties’ factual dispute concerning groundwater rights so that the

Commission’s determinations on the questions of legal feasibility, public convenience and

necessity and other key issues are fully informed and legally defensible.

Since July of 2013, the Commission has issued its Draft Environmental Impact

Report/Draft Environmental Impact Statement (Draft “EIR/EIS”), multiple rounds of

evidentiary hearings have been held, and the parties have filed briefs addressing many of the

issues raised in Phase I of the proceeding, but not the related issue of the proposed project’s

influence on the environment, including the groundwater environment (Pub. Util. Code

§ 1002, subd. (a)(4)). (Nov. 21, 2017 ALJs’ Ruling, p. 2, pp. 5-6, citing Aug. 28, 2017

Ruling.) The Commission’s Final EIR/EIS has not yet been issued, and a further round of

briefing on the Final EIR/EIS and environmental matters has yet to occur. (Nov. 21, 2017

Ruling, p. 2.) Although portions of the 2016 and 2017 hearings addressed the MPWSP

return water proposal and settlement, no evidentiary hearing specifically dedicated to

groundwater matters has been held. MCWD has argued that a 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. (MCWD Opening Brief, pp. 1, 34-35, 41 at fn.
6
18, 42-43, 44; MCWD Reply Brief, p. 34.) Such due process includes presentation of

testimony and cross-examination of witnesses.

In addition, the relevant legal and factual circumstances have further developed in the

years since the SWRCB issued its Final Report. Importantly, the SWRCB assumed in 2013

that the MPWSP slant wells would be located closer to the mean high tide line, as described

in the 2012 Application, and would pump seawater. (See Ex. MCD-17, p. 4-5.) However,

Cal-Am amended its Application, moving the proposed well location further landward.

(Mar. 14, 2016 Amended Application, Appendices C, H.) Voluminous current data have

now been collected on groundwater in and around the project area, including through Cal-

Am’s Test Slant Well program, as well as an Airborne Electromagnetic (“AEM”) study

performed in 2017 by a research team from Stanford University.

Finally, California’s Sustainable Groundwater Management Act (“SGMA”) became

effective on January 1, 2015, providing an additional legal framework for the determination

of whether operation of the MPWSP could cause injury to other users and beneficial uses of

groundwater. SGMA does not limit the SWRCB’s authority. (Water Code § 10726.8, subd.

(c).) SGMA’s policies must be respected by all state agencies (Water Code § 10720.9), and

the SWRCB is the body empowered to conduct enforcement proceedings under SGMA

(Water Code § 10732.2).

Some parties have argued that a decision on matters pertaining to groundwater rights

or the MPWSP’s potential to interfere with existing groundwater rights may only be made by

7
the SWRCB or the courts.7 Indeed, the Moving Parties’ positions may differ on the

Commission’s authority to determine whether Cal-Am has met the burden articulated by the

SWRCB in its Final Review. However, the Moving Parties do agree that views among the

parties to this proceeding as to whether Cal-Am has met that burden “vary widely,” and the

issue remains “complex” and is particularly suited to the expertise of the SWRCB, as the

Commission acknowledged in 2012. (Att. 2, p. 1.)

As the SWRCB explained in the appendices to its Final Report, it is the state agency

with primary responsibility for regulation and adjudications in the field of water resources.

(SWRCB Final Report, p. 58, citing Water Code § 174.) Its powers include the ability to

exchange information with other state agencies, such as the Commission, and to participate

in proceedings before such other agencies. (Id. at p. 58, citing Water Code §§ 187, 275,

13163, subd. (b).) In addition, the SWRCB has existing authority under Water Code

Sections 2100 – 2102 to initiate an action to restrict groundwater pumping and/or prescribe a

physical solution to protect the quality of groundwater from destruction or irreparable injury.

Under the Water Code, the SWRCB may receive references of water rights issues from the

courts. (Id. at p. 59, citing National Audubon Society v. Superior Court (1983) 33 Cal.3d

419, 451 (courts may make use of SWRCB’s experience and expert knowledge) and San

Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 914-915 (Commission

has broad authority, including judicial powers).) The SWRCB concluded that “it is well

7
See, e.g., Opening Brief of MCWD, pp. 1, 3, 35-37, 42-44; Opening Brief of PWN, p. 10;
see also Opening Brief Marina, pp. 54, 62-63; Opening Brief of Water Plus, pp. 11-12; Reply
Brief of MCWD, pp. 4, 30-33; MCWD Opening Comments on HWG Report, pp. 2, 9-16;
Amended Consolidated Comments of MCWD on brine and return water settlements, pp. 4,
14; MCWD’s Protest of Amended Application, p. 6.

8
within the [SWRCB’s] authority and consistent with the execution of its statutory

responsibilities to report to the Commission on matters related to rights to diversion and use

of water, including diversions of percolating groundwater.” (Final Report, p. 59.)

As the California Supreme Court held in National Audubon Society v. Superior Court,

supra, 33 Cal.3d at 426, “We therefore conclude that the courts may continue to exercise

concurrent jurisdiction [with the SWRCB], but note that in cases where the board's

experience or expert knowledge may be useful the courts should not hesitate to seek such

aid.” The Court went on to explain that “[t]hus the courts, through the exercise of sound

discretion and the use of their reference powers, can substantially eliminate the danger that

litigation will bypass the board's expert knowledge and frustrate its duty of comprehensive

planning.” (Id. at 451.) The Moving Parties agree that the same referenced powers remain

available to aid the Commission in its decisionmaking process here.

Moreover, the SWRCB is intimately familiar with the longstanding need to address

and resolve Cal-Am’s water supply issues in its Monterey District, including the current

timing of reductions in Carmel River supply volume available to Cal-Am. (SWRCB Order

WR 2016-0016.) The SWRCB is well-informed on the background and history of this

proceeding and its genesis in the SWRCB’s prior orders regarding Cal-Am’s Carmel River

water supply. (SWRCB Order WR 95-10, SWRCB Order WR 2009-0060.) The fact that the

Moving Parties, the Applicant and the Commission are all working diligently and

cooperatively to assist Cal-Am in lawfully satisfying the milestones set forth in the

SWRCB’s latest order (SWRCB Order WR 2016-0016, pp. 20-22) would be evident to the

SWRCB in the event that any delay or previously unanticipated event, including the

9
SWRCB’s conducting a hearing on the referral requested herein, were to impact Cal-Am’s

ability to meet future milestones and/or necessitate a request for relief from those milestones.

Those milestones were established by the SWRCB and presumably could be adjusted by the

agency for good cause shown.8

Therefore, the Moving Parties respectfully request the referral of the question,

including the record developed before the Commission thus far, to the SWRCB for a prompt

evidentiary hearing and a final decision. The Public Utilities Code provides for expedited

treatment and calendar preference in the courts for all matters related to Commission

proceedings. (Pub. Util. Code § 1767 (such matters “shall be preferred over, and shall be

heard and determined in preference to, all other civil business except election causes,

irrespective of position on the calendar”).) Referral to the SWRCB could therefore be

accompanied by a Commission request for similarly expedited treatment.

The Moving Parties agree that referring the water rights question described below 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. Indeed, some parties contend that the Commission cannot

8
As indicated in the parties’ Joint Case Management Statement, many parties support the
proposal of PCLF to conduct a Phase 3 of this proceeding prior to any CPCN decision and to
seek modification of the current SWRCB milestones to include options related to progress
with expansion of the Pure Water Monterey project. (Feb. 22, 2018 Joint statement, pp. 5-8
(Monterey Peninsula Water Management District, Monterey Peninsula Regional Water
Authority, Monterey One Water, joined by Surfrider and LandWatch); pp. 9-13 (PCLF,
joined by MCWD, LandWatch, Sierra Club, PTA, PWN, Just Water, Water Plus, Surfrider
Foundation); pp. 15-16 (MCWD, Marina, Water Plus, PTA, PWN, Just Water, CURE); pp.
16-17 (Marina, supported by MCWD); pp. 19-20 (LandWatch, Surfrider Foundation).
10
lawfully issue a CPCN without the question sought to be referred having been answered by

the SWRCB or the courts. (See fn. 5, supra.) Therefore, if the Commission is in any way

inclined to grant Cal-Am a CPCN for the MPWSP, the Moving Parties believe that the delay

resulting from referral of the groundwater rights question to the SWRCB would be far less

disruptive and burdensome for the parties, the community and the Commission than the

likely litigation delay that would follow the grant of a CPCN without the benefit of the

SWRCB’s answer to the groundwater rights question. If, on the other hand, the Commission

declines to grant a CPCN for the MPWSP, referral to the SWRCB would no longer be

required.

III. SPECIFIC QUESTION TO BE REFERRED.

The Moving Parties agree on the following formulation of the key water rights

question that should be referred to the SWRCB for an evidentiary hearing and decision under

the standard formulated by the SWRCB in its July 31, 2013 Final Review:

Has Cal-Am met its burden of proof to show that operation of the MPWSP as
configured in Cal-Am’s March 14, 2016 Amended Application will result in a
valid developed water right or other water right, will not cause injury to other
groundwater users and will protect beneficial uses in the Basin?

(See Ex. MCD-17, pp. ii, 42, 46, 48.) The Moving Parties agree that groundwater conditions

in all of the aquifers within the 180/400 Foot Aquifer Subbasin south of the Salinas River

and within the adjacent Monterey Subbasin should be the focus of the SWRCB’s inquiry,

with particular attention to the current and reasonably-foreseeable future groundwater uses of

MCWD, Marina and other legal users. The record before the SWRCB should include the

record developed before the Commission thus far, including its CEQA/NEPA record to the

extent relevant and appropriate, as well as data developed through Cal-Am’s Test Slant Well
11
program, the Stanford team’s AEM data, data from ongoing groundwater clean-up at Fort

Ord, and such other relevant data as the parties may identify before the SWRCB.

IV. CONCLUSION.

For all the reasons stated, the Moving Parties respectfully request that the question set

forth above, of whether Cal-Am has met the burden articulated by the SWRCB in its Final

Review, be referred to the SWRCB for a prompt evidentiary hearing and expedited decision.

If, however, the Commission proceeds to promptly issue a decision denying the CPCN

requested by Cal-Am, the Moving Parties would no longer require the relief requested in this

motion.

Dated: March 21, 2018 Respectfully submitted,

By: /s/ Mark Fogelman

Mark Fogelman
Friedman & Springwater LLP
350 Sansome Street, Suite 210
San Francisco, CA 94104
For: Marina Coast Water District

By: /s/ Sara Steck Myers

Sara Steck Myers
122 – 28th Avenue
San Francisco, CA 94121
For: City of Marina

By: /s/ Linda Sobczynski

Linda Sobczynski
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
So. San Francisco, CA 94080
For: California Unions for Reliable Energy

12
 By: /s/ Lisa Berkeley
Lisa Berkeley
3138 Ocean Terrace
Marina, CA 93933
For: Citizens for Just Water

By: /s/ Michael Warburton

Michael Warburton
The Public Trust Alliance
187 East Blithedale Avenue
Mill Valley, CA 94941
For: Public Trust Alliance

By: /s/ George T. Riley

George T. Riley
1198 Castro Road
Monterey, CA 93940
For: Public Water Now

By: /s/ Ron Weitzman

Ron Weitzman
23910 Fairfield Place
Carmel, CA 93923
For: Water Plus

13

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