FILED

6-15-17
09:59 AM

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the Application 12-04-019
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and
Future Costs in Rates.

CALIFORNIA-AMERICAN WATER COMPANYS RESPONSE TO THE

THIRD WATER PLUS MOTION TO DISMISS
THE PROCEEDING OF THE MONTEREY PENINSULA WATER SUPPLY PROJECT

Sarah Leeper Lori Anne Dolqueist

Cathy Hongola-Baptista
California-American Water Company
555 Montgomery Street, Suite 816
San Francisco, CA 94111
Telephone: 415.863.2960
Facsimile:415.397.1586
Email: sarah.leeper@amwater.com
cathy.hongola-baptista@amwater.com
Nossaman LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone: 415.398.3600
Facsimile: 415.398.2438
Email: ldolqueist@nossaman.com

Attorneys for Applicant California-American Water Company

June 15, 2017

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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 12-04-019
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and Future
Costs in Rates.

CALIFORNIA-AMERICAN WATER COMPANYS RESPONSE TO THE

THIRD WATER PLUS MOTION TO DISMISS
THE PROCEEDING OF THE MONTEREY PENINSULA WATER SUPPLY PROJECT

I. INTRODUCTION

Pursuant to Rule 11.1(e) of the Rules of Practice and Procedure of the California Public

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

American Water) hereby responds to the Motion to Dismiss the Proceeding of the Monterey

Peninsula Water Supply Project (Motion), filed by Water Plus on June 1, 2017. This is Water

Pluss third motion to dismiss California American Waters request for a Certificate of Public

Convenience and Necessity (CPCN) for the Monterey Peninsula Water Supply Project

(MPWSP). In the instant Motion, Water Plus rehashes its previously rejected arguments

regarding (1) data tampering, fraud and faulty analysis with respect to the environmental review

model and (2) violations of the Agency Act and the validity of the Settlement Agreement on

Desalination Plant Return Water (Return Water Settlement). Water Pluss unsupported

arguments do not establish an entitlement to the draconian relief it seeks, however, because

Water Plus fails again to meet its burden on a motion to dismiss to (1) state the law

supporting the motion and ruling requested, and (2) establish the existence of undisputed

material facts and statements of law. Ignoring its burden, Water Plus highlights disputed facts

and does not cite any law supporting its requested relief. The Commission should reject Water

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Pluss baseless allegations and deny the request for dismissal because Water Plus does not and

cannot meet the Commissions standard for dismissal of an application.

II. RELEVANT BACKGROUND

In April 2012, California American Water filed the current application.

On October 1, 2015, Water Plus filed a motion to dismiss this proceeding based on

unsubstantiated accusations (1) that Geoscience Support Services tampered with data used in

groundwater modeling and (2) the Commissions involvement with the MPWSP increased the

opportunity for fraud. On October 9, 2015, California American Water filed its opposition. On
October 29, 2015, Administrative Law Judge Weatherford issued a ruling denying the motion

because (1) Water Plus failed to state the law supporting the motion and ruling requested, (2)

the papers filed by the parties disclose on their face that triable issues of material fact remain[,]

and (3) even construing the facts in the manner most favorable to Water Plus, Water Plus would

not be entitled to judgment as a matter of law.1

On March 30, 2016, after California American Water amended its application, Water

Plus filed a second motion to dismiss the application on several unmeritorious grounds, including

a renewed claim of data tampering and the assertion that California American Waters amended

project description, which discusses the seawater intake system, violated the Agency Act.

California American Water again opposed Water Pluss groundless motion, and, on August 30,

2016, Administrative Law Judge Weatherford again denied Water Pluss motion. The second

motion was denied for the same reasons as the first motion: (1) the Motion failed to state any

supporting law, (2) [n]one of the statements in the Motion are undisputed facts and matters of

law, and (3) the Motion itself demonstrates that triable issue of material fact remain.2

On June 1, 2017, Water Plus filed its third Motion to Dismiss, which contains the same

arguments and the same defects as its prior motions. The Motion should be denied.

1 Administrative Law Judges Ruling Denying Water Plus Motion to Dismiss, August 30, 2016
(2015 MTD Ruling), p. 2.
2 2015 MTD Ruling, pp. 3, 5.

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III. DISCUSSION

As set forth in the 2015 MTD Ruling, a motion must concisely state the law

supporting its motion and requires the Commission to determine whether the party bringing

the motion prevails solely on undisputed facts and matters of law.3 For a third time, Water

Plus cannot establish entitlement to the relief it seeks because the Motion does not cite

supporting law and does not establish the existence of undisputed facts and matters of law.

Regarding the accusations of data tampering, specifically Water Pluss assertions of

insufficient and corrupted data and flawed analysis regarding the model used for the
environmental review of the MPWSP, Administrative Law Judge Weatherford already ruled

twice that these claims do not provide justification for dismissing California American Waters

application.4 In the instant Motion, Water Plus (again) does not establish its credentials to assess

the hydrological analysis and (again) fails to provide a credible expert witness to defend its

statements. The statements made by Water Plus simply are not undisputed facts or matters of

law. Indeed, Water Plus fails to cite any law supporting dismissal of the application based on its

specious allegations regarding corrupt data and flawed analysis by the Commissions

consultants.

Furthermore, it remains true that [e]ven if the allegations made by Water Plus were both

entirely correct and uncontroverted, those allegations only go to the sufficiency of the CEQA

document, which the Commission can weigh when it decides whether or not to certify the EIR.5

There is no basis for the Commission to dismiss the application outright based on Water Pluss

unfounded accusations.

Water Pluss contentions regarding the validity of the Return Water Settlement and

purported violations of the Agency Act also do not establish a basis for dismissing California

3 2015 MTD Ruling, p. 3, citing Rule 11.1(d) and Campbell v. So. Cal. Edison Co., Decision
(D.) 15-07-009.
4 2015 MTD Ruling, pp.3-4; Administrative Law Judges Ruling Deny Motion to Dismiss,
October 29, 2015 (2016 MTD Ruling), pp. 5-6.
5 2016 MTD Ruling, p. 6.

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American Waters application. First, Water Plus again fails to state the law supporting the

ruling requested6 on the return water and Agency Act issues. Second, Water Pluss arguments

are nothing more than an improper and untimely attack on the Return Water Settlement.7 Water

Plus already filed its comments on the Return Water Settlement on June 28, 2016. The Joint

Consolidated Reply Comments in Support of the Joint Motion for Approval of the Settlement

Agreement on Desalination Plant Return Water, filed July 29, 2016 and incorporated herein by

reference, explained that there is ample law to support use of return water to prevent export of

water from the Salinas Groundwater Basin.8 Water Plus is not entitled to a new round of
comments on the Return Water Settlement or a sur-reply under the guise of a motion to dismiss.

Water Pluss arguments, however unmeritorious, regarding the Return Water Settlement can be

addressed in the context of proceedings on the Return Water Settlement. A motion to dismiss is

not the proper vehicle for analyzing Water Pluss defective return water theories.

The Commission has characterized the standard for granting a motion to dismiss as

follows:

The question becomes whether the Commission and the parties

would be squandering their resources by proceeding to an
evidentiary hearing when the outcome is a foregone conclusion
under the current law and policy of the Commission.9
Water Plus has repeatedly failed to demonstrate that the outcome it espouses is a foregone

conclusion under the current law and policy of the Commission. Instead, Water Plus ignores its

burden, fails to provide any legal justification for dismissing the current proceeding, and

highlights several triable issues of fact.

Early in this proceeding, Administrative Law Judge Weatherford denied a motion to

dismiss filed by Marina Coast Water District:

6 2016 MTD Ruling, p. 4.

7 The Joint Motion for Approval of Settlement Agreement on Desalination Plant Return Water
was filed on June 14, 2014 in this proceeding.
8 Joint Consolidated Reply Comments in Support of the Joint Motion for Approval of the
Settlement Agreement on Desalination Plant Return Water, filed July 29, 2016, pp. 16-19.
9 D.99-11-023, p. 7.

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 I deny the motion to dismiss because there is good cause for the
Commission to proceed with an examination of the Monterey
Peninsula Water Supply Project proposed in A.12-04-019. The
people and entities in the Monterey Division service area of the
Applicant face the risk of losing -- in less than five years -- most of
the water supply that presently serves them.Given the
overarching public interest in finding a source or sources of
replacement water for the Monterey Peninsula as soon as
practicable, it is reasonable to proceed with A.12-04-019.10

This reasoning is still applicable. California American Water urges the Commission to

deny Water Pluss Motion and proceed with its evaluation of the MPWSP.

Dated: June 15, 2017 Respectfully submitted,

By: /s/ Sarah E. Leeper

Sarah E. Leeper

Attorney for Applicant

California-American Water Company

10 Administrative Law Judges Ruling, June 1, 2012, pp. 2-3.

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