FILED

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water

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

11-30-16
03:31 PM

Application 12-04-019
(Filed April 23, 2012)

JOINT RESPONSE TO
MOTION FOR PARTY STATUS OF CITIZENS FOR JUST WATER
Sarah E. Leeper
Nicholas A. Subias
California American Water
555 Montgomery Street, Suite 816
San Francisco, CA 94111
For: California-American Water Company
sarah.leeper@amwater.com
(415) 863-2960

Bob McKenzie
Water Issues Consultant
Coalition of Peninsula Businesses
P.O. Box 223542
Carmel, CA 93922
For: Coalition of Peninsula Businesses
jrbobmck@gmail.com
(831) 596-4206

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
norm@montereycfb.com
(831) 751-3100

Russell M. McGlothlin
Brownstein Hyatt Farber Schreck, LLP
21 East Carrillo Street
Santa Barbara, CA 93101
For: Monterey Peninsula Regional Water
Authority
rmcglothlin@bhfs.com
(805) 963-7000

[ADDITIONAL COUNSEL LISTED BELOW]

November 30, 2016

34459750.v2

David C. Laredo
De Lay & Laredo
606 Forest Avenue
Pacific Grove, CA 93950-4221
For: Both Monterey Peninsula Water
Management District &
City of Pacific Grove
dave@laredolaw.net
(831) 646-1502
Nancy Isakson, President
Salinas Valley Water Coalition
3203 Playa Court
Marina, CA 93933
For: Salinas Valley Water Coalition
nisakson@mbay.net
(831) 224-2879

34459750.v2

Roger B. Moore
Rossmann and Moore, LLP
2014 Shattuck Avenue
Berkeley, CA 94704
For: Planning and Conservation
League Foundation
rbm@landwater.com
(510) 548-1401

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water

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

Application 12-04-019
(Filed April 23, 2012)

JOINT RESPONSE TO
MOTION FOR PARTY STATUS OF CITIZENS FOR JUST WATER

I.

INTRODUCTION
In accordance with Rule 11.1(e) of the Rules of Practice and Procedure (Rules) of the

California Public Utilities Commission (Commission), California-American Water Company

(Cal-Am), Coalition of Peninsula Businesses, the City of Pacific Grove (Pacific Grove),
Monterey County Farm Bureau (MCFB), Monterey Peninsula Regional Water Authority
(MPRWA), Monterey Peninsula Water Management District (MPWMD), Planning and
Conservation League Foundation (PCL), and Salinas Valley Water Coalition (SVWC)
(collectively Joint Parties) 1 hereby respond to the Motion for Party Status of Citizens for Just
Water (CJW Motion). As discussed in more detail below, the motion of Citizens for Just
Water (CJW): (1) is untimely, (2) addresses topics that have already been considered in this
proceeding, and (3) raises issues that are properly addressed in the environmental review of the
Monterey Peninsula Water Supply Project (MPWSP). The Joint Parties urge the Commission
to deny the CJWs request to become a party to this proceeding.

Pursuant to Commission Rule 1.8(d), counsel for all Joint Parties other than Cal-Am have
authorized counsel for Cal-Am to sign this Joint Motion on their behalf.

34459750.v2

II.

THE MOTION IS NOT TIMELY AND GRANTING IT WOULD PREJUDICE

EXISTING PARTIES
Cal-Am filed its application for approval of the MPWSP in 2012. Since that time, there

have been multiple rounds of testimony, workshops, evidentiary hearings and briefing. In its
Motion, CJW states that its members have participated widely in many meetings addressing
the MPWSP. 2 The named representative of the CJW, Dr. Margaret-Anne Coppernoll, addressed
the MPWSP at a Marina City Council meeting in September 2014, 3 submitted questions to the
Commissions environmental review team in June 2015, 4 and spoke at a Cal-Am public meeting
in August 2015. 5 Thus, it is apparent that members of CJW have been aware of the MPWSP and
this proceeding for several years. CJW failed, however, to explain why it and its members
waited to until this proceeding is almost over to request party status.
In its Motion, CJW identifies several key issues that it will seek to address in this
proceeding. One of these issues, relevant regional water rights, has already been the subject of
extensive briefing by the Parties and cooperative analysis by the Commission and the State
Water Resources Control Board. CJW also asserts that it intends to provide new compelling
evidence. 6 However, the evidence cited by CJW, the work being done by Dr. Rosemary
Knight, is not new. Dr. Knight has discussed her research in numerous public presentations.
Additionally, Dr. Knight worked with at least one party to this proceeding to conduct the

CJW Motion, p. 2.
3 July 29, 2015, Monterey Peninsula Water Supply Project, Marina Coast Water Districts
Comments in Response to July 9, 2015 Notice to All Parties, Exhibit 7, City of Marina transcript,
dated September 3, 2014, p. 131.
4 http://www.cpuc.ca.gov/environment/info/esa/mpwsp/deir_comments/I_Coppernoll.pdf
5 Johnson, Jim, Cal Am Board gets full blast Peninsula vetting, Monterey Herald, August 19,
2015.
6 CJW Motion, p. 6.
34459750.v2

research, 7 and her research was referenced at a public participation hearing 8 and in DEIR
comments. 9
There have been two separate rounds of evidentiary hearings in this proceeding. The
groundwater impacts on which CJW seeks to submit evidence was the subject of extensive
competing testimony from three experts from Cal-Am, Marina Coast Water District (MCWD)
and the Monterey Peninsula Regional Water Authority. Under the current procedural schedule,
in particular, the record on the effects of the MPWSP on the Salinas Valley Groundwater Basin
was closed at the conclusion of the Phase 1 evidentiary hearings. 10
This proceeding has been lengthy. It has provided numerous opportunities for interested
entities to engage with the process. The parties and the Commission have expended considerable
time and resources to participate and develop the record in a timely manner. While the
Commission must consider the relevant facts in evaluating Cal-Ams application, it also has an
obligation to reach a decision without undue delay. Allowing CJW to participate as a party
could cause a delay in the proceeding. CJWs late presentation of factual or legal contentions
will prejudice existing parties by reopening issues that already have been fully briefed and
considered.
Under the Commissions rules, an assigned Administrative Law Judge (ALJ) may deny
party status where the circumstances warrant. 11 In other proceedings, similar motions have been
denied because they were not considered timely. 12 Since CJW has not provided good cause for
7

Marina Coast Water District, Regular Board Meeting, November 4, 2013, Item 10-C.
8 Reporters Transcript, p. 3372.
9 Comments on DEIR, Kathy and Harvey Biala, May 27, 2015.
10 Administrative Law Judges Ruling Setting Evidentiary Issue and Schedule to Complete the
Record for Phases 1 and 2, November 17, 2015, p. 7.
11 CPUC Rule 1.4(c).
12 See A.07-04-013, Application by Sacramento Natural Gas Storage, LLC for a Certificate of
Pubic Convenience and Necessity for Construction and Operation of Natural Gas Storage
Facilities and Requests for Related Determinations, Administrative Law Judges Ruling
Denying Party Status to the Southern California Gas Company, January 5, 2010. The assigned
ALJ denied the Southern California Gas Companys motion as untimely because it was filed
34459750.v2

the failure of it and its members to participate in this proceeding over the last several years, the
assigned ALJ should deny its motion for party status.
III.

CJW MAY RAISE ITS ISSUES AS PART OF THE COMMISSIONS

ENVIRONMENTAL REVIEW
The assigned Commissioner and ALJs have been clear from the beginning that the

Commissions review of the MPWSP would proceed on two parallel tracks. 13 In this
proceeding, the Commission is examining whether Cal-Am had justified its request for a
Certificate of Public Convenience and necessity. On a parallel track, the Commission is
conducting its environmental review of the MPWSP, in accordance with the requirements of the
California Environmental Quality Act (CEQA) and the National Environmental Policy Act
(NEPA), culminating in the issuance on Environmental Impact Report (EIR)/Environmental
Impact Statement (EIS).
CJW states that it has evidence to support the use of subsurface mapping techniques in
assessing the environmental effects of the MPWSP. CJW will have the opportunity to address
this issue as part of the environmental review process. The Commission has made it quite clear
that these types of issues are not to be considered as part of the CPCN phase of the proceeding.
As has been reiterated several times, the environmental track provides ample opportunity for
comments on environmental issues. 14
Similarly, in its Motion, CJW states that it intends to provide a comparative analysis of
alternative desalination projects. 15 The assigned Commissioner has already ruled, however,
that alternative proposals are to be considered as part of the environmental review process and
will not be considered as part of this phase of the proceeding:

after evidentiary hearings were held and briefs were submitted.

13 Assigned Commissioners Scoping Memo and Ruling, June 28, 2012, p. 2. Administrative
Law Judges Directives to Applicant and Ruling on Motions Concerning Scope, Schedule and
Official Notice, August 29, 2012, p. 7.
14 Amended Scoping Memo and Assigned Commissioner Ruling, September 25, 2013, p. 5.
15 CJW Motion, p. 6.
34459750.v2

Feasible alternatives to the Monterey Peninsula Water Supply

Project will be considered in the California Environmental Quality
Act (CEQA) track of the proceeding and by the Commission. This
proceeding is for the purpose of determining whether the appliedfor project should be approved; it is not a general forum for
entertaining water supply options unrelated to the application of a
Commission-regulated utility. 16
Party status is not necessary to participate in the CEQA/NEPA process. Under the
current environmental review schedule, the Commission will issue the draft EIR/EIS on
December 21, 2016. 17 Interested individuals and entities, including CJW and its members, will
have the opportunity to review the draft EIR/EIS and provide comments, which the Commission
will consider before it issues its final EIR/EIS.
Entities have previously been denied party status on the basis that their issues will be
addressed as part of the environmental review process. 18 The Commission should similarly
deny CJWs motion.
IV.

CJWS INTERESTS ARE ALREADY REPRESENTED

CJW states that its interest in this proceeding is to protect an affordable and long-term

water supply for the Marina and Fort Ord communities. 19 As noted above, CJW also expresses
concern regarding the impact of the MPWSP on the Salinas Valley Groundwater Basin and seeks
consideration of alternative projects. These issues have already been addressed, often at length,
by other parties to this proceeding. For example, CJWs interest in protecting the water supply
used to serve the Marina and Ford Ord communities appears to be identical to the interests of

16

Assigned Commissioners Scoping Memo and Ruling, June 28, 2012, p. 2.

17 http://www.cpuc.ca.gov/environment/info/esa/mpwsp/ann_and_sched.html; Third Amended
Scoping memo and Ruling of the Assigned Commissioner Extending Deadline to June 30, 2018,
November 21, 2016, p. 3 (Third Amended Scoping Memo).
18 A.06-08-010, Application of San Diego Gas & Electric Company (U 902E) for a Certificate of
Public Convenience and Necessity for the Sunrise Powerlink Transmission Project,
Administrative Law Judges Ruling Denying Motion of California Botanical Habitat to Become
a Party, November 21, 2008. In denying the motion, the assigned ALJ stated, that the moving
partys actual focus is the preparation of the Environmental Impact Report/Environmental
Impact Statement (EIR/EIS) which has occurred on a track parallel to the Commissions formal
review of the certificate for public convenience and necessity. (Ruling, p. 1.)
19 CJW Motion, p. 2.
34459750.v2

MCWD, which has been very active in this proceeding and has advocated to protect the water
supply for its service areas in the Marina and Fort Ord Communities. Similarly, parties such as
the Salinas Valley Water Coalition and LandWatch have addressed CJWs interest in the Salinas
Valley Groundwater Basin by raising concerns and providing evidence regarding the potential
effects of the MPWSP on the Basin. Finally, CJWs interest in options beyond the MPWSP
match those of Water Plus and others who have advocated for alternative projects. Therefore,
the interests of CJW and its members will still be represented in this proceeding without the need
to grant SJW status.
V.

CONCLUSION
In determining whether to grant a motion for party status, particularly one filed so late

in a proceeding, the assigned ALJ must balance the interests of the entity seeking party status
with the burden on the existing parties and the process if the entity is allowed to enter the
proceeding. As discussed above, CJW did not provide good cause for the failure of it and its
members to participate in a more timely fashion. Granting CJWs motion would prejudice
existing parties and could cause a delay in this already lengthy proceeding, in which a final
decision is now not expected until sometime in March 2018 at the earliest. 20 The issues that
CJW seeks to address by becoming a party have either already been considered or are more
properly considered during environmental review of the MPWSP, where party status is not
necessary to participate. Finally, the interests that CJW purports to represent are already well
represented in this proceeding. The Joint Parties urge the assigned ALJ to deny CJWs motion.

20

Third Amended Scoping Memo, p. 4. Noting it is possible that the proposed decision will be
held and additional time will be required before the Commission reaches its final decision, the
Third Amended Scoping Memo extended the statutory deadline for this proceeding to June 30,
2018.
34459750.v2

Dated: November 30, 2016

Dated: November 30, 2016

Dated: November 30, 2016

Dated: November 30, 2016

34459750.v2

By:

/s/ Sarah E. Leeper

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

By:

/s/ Bob McKenzie

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

By:

/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

By:

/s/ Russell M. McGlothlin

Russell M. McGlothlin, Attorney
Brownstein Hyatt Farber Schreck, LLP
21 East Carrillo Street
Santa Barbara, CA 93101
For: Monterey Peninsula Regional Water
Authority

Dated: November 30, 2016

Dated: November 30, 2016

Dated: November 30, 2016

34459750.v2

By:

/s/ David C. Laredo

David C. Laredo, Attorney
De Lay & Laredo
606 Forest Avenue
Pacific Grove, CA 93950-4221
For: Both the Monterey Peninsula Water
Management District and the City of Pacific
Grove

By:

/s/ Roger B. Moore

Roger B. Moore
Rossmann and Moore, LLP
2014 Shattuck Avenue
Berkeley, CA 94704
For: Planning and Conservation League
Foundation

By:

/s/ Nancy Isakson

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