Opening Brief of City of Marina On Feir & Feis 04-19-18

BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA FILED

04/19/18
04:59 PM
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.
OPENING BRIEF OF CITY OF MARINA ON FINAL ENVIRONMENTAL

IMPACT REPORT AND FINAL ENVIRONMENTAL IMPACT STATEMENT
PAUL P. (“SKIP”) SPAULDING, III SARA STECK MYERS

Farella, Braun + Martel LLP Attorney at Law
235 Montgomery Street, 17th Floor 122 - 28th Avenue
San Francisco, CA 94104 San Francisco, CA 94121
Telephone: 415-954-4918 Telephone: 415-387-1904
Email: sspaulding@fbm.com Facsimile: 415-387-4708
Email: ssmyers@att.net
ATTORNEYS FOR THE CITY OF MARINA
Dated: April 19, 2018

TABLE OF CONTENTS
Page
Table of Contents ............................................................................................................................. i

Table of Authorities ....................................................................................................................... vi
Summary of Recommendations ................................................................................................... viii
I. INTRODUCTION.................................................................................................................1
A. Overview ...........................................................................................................................1
B. Commission EIR Review Legal Framework ....................................................................2
1. The Monterey Peninsula Water Supply Project Is Unique
Among Projects for which the Commission Has Been the
Lead Agency for Preparing an Environmental Impact Report
Pursuant to CEQA and Imposes a Special Responsibility on
The Commission to Scrutinize this Contested Project Regarding
Its Serious, Unmitigable Environmental Impact Effects and
Infeasibility .................................................................................................................2
2. CEQA Provides Important Legal Requirements and Standards
That Must be Carefully “Applied by the Commission in
Determining the Legal Adequacy of the Final EIR/EIS .............................................5
a. CEQA Contains Important Definitions Relating to
Determining “Feasibility” in the Context of Project
Environmental Impact Reports .............................................................................6
b. The Final EIR/EIS Deficiencies and Legal Inadequacies
That Are Explained in this Brief Also Make it Inadequate for
Use by MBNMS and the Other Federal Agencies Issuing
Permits or Authorizations for the Project .............................................................7
3. CEQA Statutes and Guidelines Applicable to the MPWSP
Final EIR Must Also be Interpreted and Applied Consistent with
The Commission’s Statutory Duties, Governing Case Law,
And Commission Precedent........................................................................................7
II. FINAL EIR/EIS ISSUES ...................................................................................................11

A. Water Demand, Supply and Water Rights .................................................................11
1. Overview ...................................................................................................................11
2. The Water Demand and Supply Portions of the Final EIR/EIS
Are Legally Inadequate Because They Fail to Discuss and Evaluate
Significant New Information Developed in Commission Hearings
And Their Conclusions Lack Substantial Evidence in the Record ...........................12
a. Governing Legal Framework ..............................................................................12
i
TABLE OF CONTENTS
Continued
Page
b. The Final EIR/EIS Analysis of Water Demand and Supply

Is Plagued by Procedural Deficiencies that Make It Inadequate ........................14
c. Serious Substantive Issues Undermine the Conclusions in the
Final EIR/EIS and Render It Legally Inadequate ...............................................16
(1) Water Demand .............................................................................................17
(2) Water Supply................................................................................................21
3. Water Rights Have Not Been Correctly Addressed or Considered in
The Final EIR/EIS and Render the Project Legally Infeasible. ................................23
a. Introduction .........................................................................................................23
b. The Final EIR/EIS Fails to Articulate an Appropriate Feasibility
Test for Determining Whether CalAm Has or Will Have Water
Rights for the Project ..........................................................................................26
c. It Is Undisputed that CalAm Does Not Have Any Current
Rights to Extract Water from the Salinas Valley Groundwater
Basin ...................................................................................................................28
d. CalAm Plans to Assert a Novel, Risky and Unrelated Right
To “Salvage” Water that in Fact Has No Real Chance of
Success ................................................................................................................30
e. Contrary to the Final EIR/EIS Statements, the State Board
Report Does Not Determine that CalAm Has a Likelihood of
Demonstrating that It Is Entitled to Appropriate Water on a
Developed or Salvaged Water Theory ................................................................33
f. Since CalAm Has Not Demonstrated that There Will be No
Injury to Lawful Water Users, and Substantial Scientific Evidence
Has Demonstrated that There Likely Will Be, the Water Right
Almost Certainly Will Not Be Established and the Project Is
Therefore Not Feasible .......................................................................................34
4. The Project’s Plans to Export Water Out of the Basin Conflict
With and Violate the Agency Act .............................................................................38
5. The Project Will Violate the Groundwater Extraction Limitation
Embedded in the CEMEX Property Annexation Agreement ...................................43
ii
TABLE OF CONTENTS
Continued
Page
B. Project Description........................................................................................................45
1. The Final EIR/EIS Incorrectly and Misleadingly States the

Location and Source of the Water for the Project ...................................................45
2. The Final EIR/EIS Still Attempts to Avoid Conceding that the
Proposed Slant Wells Are a Risky and Unproven Technology
With No Operational Track Record ..........................................................................47
3. Significant New Information Has Been Added to the
Final EIR/EIS that Must be Made Available for Public
Review and Comment ...............................................................................................50
4. There Are Other Inaccuracies in the Project Description that
Need to be Corrected or Clarified to Meet CEQA/NEPA
Requirements ............................................................................................................51
C. Environmental Setting, Impacts, and Mitigation Measures .....................................53
1. Governing Legal Framework ....................................................................................53
2. Environmental Setting/Baseline ...............................................................................54
3. Groundwater Resources ............................................................................................55
a. The Factual Predicate for the Groundwater Analysis Is
Inadequate Because It Fails To Properly Recognize The
Applicable Regulatory Framework, Including The
Impact of SGMA ................................................................................................57
b. The Final EIR/EIS Is Scientifically and Legally Inadequate
In Every Respect With Regard To Its Analysis and
Conclusions Regarding the Potential Individual and
Cumulative Impacts of the Project On Groundwater
Resources ............................................................................................................58
c. The Applicant Proposed Mitigation Measure 4.4-3 Is
Inadequate to Address Potential Harm or Injury to Water
Users in the Basin ...............................................................................................63
4. Terrestrial Biological Resources ...............................................................................64
5. Cultural and Paleontological Resources ...................................................................70
6. Air Quality and Greenhouse Gas Emissions.............................................................73
a. Overview .............................................................................................................73
b. Air Quality ..........................................................................................................74
(1) Impact 4.10-1 and Mitigation Measure 4.10-1a
(Construction Impacts).................................................................................75
iii
TABLE OF CONTENTS
Continued
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(2) Impact 4-10-C (Cumulative Impacts) ..........................................................78

c. Greenhouse Gas Emissions .................................................................................78
7. Socioeconomics and Environmental Justice .............................................................80
a. Legal Framework ................................................................................................80
b. The City of Marina Provided Compelling, Comprehensive
And Virtually Unchallenged Testimony Regarding
The Extensive Social, Economic, Cultural And
Environmental Impacts of The Project ...............................................................81
c. The Final EIR/EIS Fails To Take Into Account the
2017 Evidentiary Hearing Testimony Or The City’s
Comments On the Draft EIR/EIS And Thereby
Incorrectly Determines, Without Substantial Evidence,
That The Socioeconomic and Environmental Justice
Impacts Of The Project Are Less than Significant .............................................86
D. Alternatives ....................................................................................................................90
1. Selection and Evaluation of Alternatives..................................................................90
a. Introduction .........................................................................................................90
b. The Final EIR/EIS’s Failure to Adequately State
Project Objectives/Need or to Adequately Analyze Project
Environmental Impacts Fatally Undermine the Alternatives
Analysis ..............................................................................................................93
c. The Final EIR/EIS Is Not Adequate Because It Failed to
Determine that Groundwater Resource Impacts Are
Significant, Thereby Fatally Undermining the Selection and
Comparison of Alternatives ................................................................................96
d. The Draft EIR/EIS’s Screening of Alternatives Was Fatally
Flawed and Not Corrected in the Final EIR/EIS ................................................96
(1) The Final EIR/EIS Is Legally Inadequate for Failing to
Include a Smaller Project Alternative ...........................................................97
(2) The Intake Option Analysis Omitted Key Technology
Considerations ..............................................................................................98
(3) No Alternatives Were Selected to Avoid or Lessen
Significant and Unavoidable Impacts..........................................................98
e. The Description of the Projects Evaluated in Detail Is
Legally Deficient ................................................................................................99
iv
TABLE OF CONTENTS
Continued
Page
f. The Alternatives Impact Analyses Are Legally Inadequate ................................99

g. The Selection of the Environmentally Superior/Preferred
Alternative Is Legally Inadequate due to the Accumulated
Deficiencies in the Project Description, Impact Analyses,
Mitigation Measures and Selection of Alternatives ..........................................100
E. Other.............................................................................................................................103
1. The Commission Cannot Find that There are “Overriding
Considerations” that Would Support Adoption of the
Environmentally Superior Alternative ....................................................................103
2. Recirculation of an EIR Is Required When Significant
New Information Is Added to an EIR After Public Notice
Of the Draft EIR Is Given .......................................................................................106
III. PRESENT AND FUTURE PUBLIC CONVENIENCE OF

THE PROJECT – ENVIRONMENTAL FACTORS ....................................................110
A. Public Utilities Code Section 1002(a)(4) and Other Law ........................................110
B. Other............................................................................................................................111
VI. RULE 13.13 REQUEST FOR ORAL ARGUMENT ...................................................112
V. CONCLUSION ...............................................................................................................113
v
TABLE OF AUTHORITIES
Page
COURT DECISIONS
Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,

606 F.3d 1058, 1061 (9th Cir. 2010). ...................................................................................97
City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224 (2000) ........................................... 28
Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal. 4th 1 (1998) ..................... 41, 42
Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal.,
6 Cal. 4th 1112 (1993) ............................................................................................13, 90, 110
Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 574 (1990). ....................6, 90
California Manufacturers Association v. Public Utilities Commission,
24 Cal.3d 251 (1979) ............................................................................................................13
City of Los Angeles v. Public Utilities Commission,
7 Cal.3d 331 (1972).) .....................................................................................................13, 14
Allen v. California Water & Tel. Co., 29 Cal. 2d 466 (1946) .............................................. 29, 34
Lodi v. East Bay Municipal Utility District, 7 Cal. 2d 316 (1936) ............................................34
Corona Foothill Lemon Co. v. Lillibridge, 8 Cal. 2d 522 (1937) ..............................................29
Pomona Land and Water Co. v. San Antonio Water Company,
152 Cal. 618 (1908) .......................................................................................................32, 34
Cohen v. La Canada Land & Water Co., 151 Cal. 680 (1907) ................................................. 33
Churchill v. Rose, 136 Cal. 576 (1902) ................................................................................33, 34
Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182 (1896) ........................................33, 34
Habitat & Watershed Caretakers v. City of Santa Cruz,
213 Cal. App. 4th 1277 (2013) ............................................................................................ 90
City of Santa Maria v. Adam, 211 Cal. App. 4th 266 (2012) ......................................................32
Santa Clarita Org. for Planning the Env’t v. Cty. of Los Angeles,
106 Cal. App. 4th 715 (2003) .............................................................................................. 23
Save Our Peninsula Comm. v. Monterey Cty. Bd. of Supervisors,
87 Cal. App. 4th 99, 131 (2001) ...................................................................................23, 107
Cadiz Land Co. v. Rail Cycle, LP, 83 Cal. App. 4th 74, 92-93 (2000) .............................23, 107
Dry Creek Citizens Coal. v. Cty. of Tulare, 70 Cal. App. 4th 20, 26 (1999) .............................45
Mountain Lion Coal. v. Fish and Game Comm’n,
214 Cal. App. 3d 1043 (1989). ...........................................................................................110
County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 192-93 (1977). .......................... 45
vi
TABLE OF AUTHORITIES
Continued
Page
California Water Service Co. v. Edward Sidebotham & Son,
224 Cal. App. 2d 715, 725 (1964). ...................................................................................... 28
CALIFORNIA PUBLIC UTILITIES CODE

PU Code §399.2.5 .......................................................................................................................10
PU Code §451 .............................................................................................................................19
PU Code §454 .............................................................................................................................19
PU Code §1001 .............................................................................................................................7
PU Code §1002 ................................................................................................................... passim
PU Code §1705 ...........................................................................................................................13
PU Code §1757.1 ........................................................................................................................13
OTHER CODES
Pub. Res. Code §§2710-2796......................................................................................................67
Pub. Res. Code §21002 .................................................................................................................6
Pub. Res. Code §21061.1 ..............................................................................................................6
Pub. Res. Code §21082.1 ............................................................................................................13
Pub. Res. Code §21092.1 ............................................................................................................13
Cal.Water Code §1702 ................................................................................................................34
Cal.Water Code §10721 ..............................................................................................................46
Cal.Water Code App. 52 .............................................................................................................38
Cal.Water Code App. 52-8..........................................................................................................42
CPUC DECISIONS
D.18-01-022 ..............................................................................................................................80
D.17-12-052 ..............................................................................................................................85
D.16-05-050 ..............................................................................................................................85
D.14-06-051 ............................................................................................................................105
D.13-07-018 ...................................................................................................................... passim
D.10-12-016 ...................................................................................................................... passim
D.09-12-017 ................................................................................................................................3
D.09-12-044 ...................................................................................................................... passim
D.04-08-046 ........................................................................................................................27, 73
D.03-09-022 ............................................................................................................................... 3
D.00-05-048 ...................................................................................................................... passim
Application of Southern California Edison for CPCN for Kramer-Victor
Transmission Line 37 CPUC 2d 413 (1990) .......................................................6, 8, 110, 111
COMMISSION RULES OF PRACTICE AND PROCEDURE

Rule 13.11 .....................................................................................................................................1
Rule 13.13 .................................................................................................................................112
vii
SUMMARY OF RECOMMENDATIONS
Rule 13.11 of the Commission’s Rules of Practice and Procedure requires that a
“summary of the briefing party’s recommendations [follow] the table of authorities.” In
summary, the City of Marina (“City” or “Marina”) recommends and requests that the
Commission’s decision on Certificate of Public Convenience and Necessity (“CPCN”) issues in
Application (A.) 12-04-019 consider, conclude, and find as follows with respect to the Final
Environmental Impact Report and Final Environmental Impact Statement (“Final EIR/EIS”) for
California American Water Company’s (CalAm’s) proposed Monterey Peninsula Water Supply
Project (“MPWSP” or “Project”):
1. The findings of the Final EIR/EIS are not supported by applicable law or substantial
evidence based on the record in this proceeding.
2. The findings of the Final EIR/EIS rely on new, “significant” information that was not
previously distributed for public comment, which prevents the adoption of the Final
EIR/EIS, if it were legally sufficient, without prior recirculation for public review and
comment.
3. There is significant new information regarding a substantial increase in the severity of
Project impacts, the availability of new and viable Project alternatives, and other matters
that has emerged since January 2017, both before and after issuance of the Final EIR/EIS,
that has not been evaluated in the Final EIR/EIS and which must be added to the
document and then recirculated for public review and comment.
4. The Project is not feasible because the applicant does not have either current water rights
or a reasonably certain path forward to successfully obtaining such rights within a
reasonable period of time.
5. The Project is not feasible because it is likely that its extraction of groundwater from the
Salinas Valley Groundwater Basin is barred by the export prohibition in the Agency Act
and violates the groundwater withdrawal limitation in the Annexation Agreement
applying to the CEMEX property on which the slant wells would be installed.
6. The Alternatives considered by the Final EIR/EIS are based on outdated and unsupported
assumptions regarding CalAm’s projected customer demand and water supply, which
conflict with and fail to identify how or what part of the evidentiary record on updated
viii
demand and supply held in October/November 2017 was considered in developing and
selecting the Alternatives.
7. The Alternatives considered by the Final EIR/EIS did not include a reasonable range of
alternatives in part because they did not consider a “reduced size” project that would
produce a total of less than 10,750 acre-feet per year and did not include viable new
project alternatives that were identified in recent evidentiary hearings.
8. The Alternatives considered by the Final EIR/EIS, including, but not limited to, the
Environmentally Superior Alternative, have been improperly screened, evaluated,
compared and selected and therefore do not comply with CEQA’s requirements.
9. The environmental setting/baseline relied upon by the Final EIR/EIS is flawed and
legally inadequate.
10. The environmental justice and socioeconomic impacts of the Project on impacted, low-
income and diverse communities, particularly on the City of Marina, are significant and
by themselves require denial of this CPCN.
11. The assessment of environmental impacts, mitigation measures, levels of significance and
other aspects of the resource areas studied in the Final EIR/EIS, including for surface
water resources, groundwater resources, terrestrial biological resources, marine biological
resources, hazards, aesthetic resources, historic resources, noise and vibration, air
quality, greenhouse gas emissions, and environmental justice are inappropriately limited,
legally inadequate, and fail to correctly identify environmental effects that are significant
and cannot be mitigated.
12. The Final EIR is factually, scientifically and legally inadequate under the California
Environmental Quality Act (CEQA) due to all of its many deficiencies and will not be
used by the Commission in making any discretionary decisions, including for the
decision on whether to issue a CPCN for the Project.
13. There are no overriding considerations that exist related to the Project that outweigh,
override, or offset the significant environmental impacts that cannot be mitigated.
14. Section 1002(a) imposes on the Commission the requirement to determine the
environmental impacts of a Project that is “independent of” and “not limited by” the
California Environmental Quality Act (CEQA) to identify and consider the impacts of
Project Alternatives, including the Environmentally Superior Alternative, on all four
ix
factors identified by that statute, including not only “influence on the environment,” but
also an impacted community’s community values, recreational and park areas, and
historical and aesthetic values, all of which can be “instructive” as to the Alternative, if
any, adopted by the Commission.
15. The Commission must conclude that none of the Alternatives considered by the Final
EIR/EIS, including the Environmentally Superior Alternative, are legally sufficient, and
each creates significant impacts that cannot be mitigated and for which no overriding
considerations exist.
16. The Commission must conclude that the Final EIR/EIS is legally inadequate and
deficient, its analysis is fundamentally flawed, and it cannot be certified.
x
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.
OPENING BRIEF OF CITY OF MARINA ON FINAL ENVIRONMENTAL

IMPACT REPORT AND FINAL ENVIRONMENTAL IMPACT STATEMENT
The City of Marina (“City” or “Marina”) respectfully submits this Opening Brief on the
Final Environmental Impact Report and Final Environmental Impact Statement (“Final
EIR/EIS”) on the Monterey Peninsula Water Supply Project (“MPWSP” or “Project”) for which
California American Water Company (“CalAm”) seeks a Certificate of Public Convenience and
Necessity (“CPCN”) by this Application. This Opening Brief is timely filed and served pursuant
to the Commission’s Rules of Practice and Procedure (Rule 13.11) and the Administrative Law
Judges’ (ALJs’) Ruling of April 4, 2018.
This Opening Brief follows the Briefing Outline adopted by the April 4, 2018 Ruling.
However, it also includes and renews a Request for Oral Argument pursuant to Rule 13.13 of the
Commission’s Rules of Practice and Procedure, to which each party has a “right” as long as the
request for Oral Argument is made in its brief in a rate-setting matter such as this Application.
I.
INTRODUCTION
A. OVERVIEW
The City of Marina, which is a responsible agency for the Project, provided extensive
comments to the Lead Agencies on the Draft EIR/EIS in March 2017. During the one-year
period between receipt of that letter and issuance of the Final EIR/EIS, neither the Lead
Agencies nor any of the staff and consultants working on the document, made any effort to reach
out to the City with questions regarding its Draft EIR/EIS adequacy issues, potential ways to
address, avoid or mitigate some or all of the City’s concerns, or any other aspect of the adequacy
issues raised in the City’s comments. Rather, in late March 2018, the City was sent the Final
EIR/EIS, which almost completely ignores, dismisses or disagrees with these concerns.
1
For all of the reasons set forth in this Opening Brief and Marina’s Comments also
submitted today on the Final EIR/EIS, including its Appendices, 1 the Commission must find and
conclude that the Final EIR/EIS is inadequate for the Lead Agencies or any Responsible
Agencies to make any decisions relating to the Project. In particular, it is inadequate for the City
of Marina’s use as a responsible agency within the meaning of Section 15096 of the CEQA
Guidelines. Marina wants to ensure, that in making its decision on the Coastal Development
Permit, it has a legally adequate Final EIR/EIS. We invite the Lead Agencies again to confer
with the City to work together to address the Final EIR/EIS inadequacies.
In the meantime, to the extent that the Commission moves forward with a decision on the
Final EIR/EIS, Marina requests that any such decision include Marina’s recommendations stated
in the Summary of Recommendations at pages viii through x of this Opening Brief and order that
the Final EIR/EIS cannot be certified. Based on the Final EIR/EIS and the record in this
proceeding, only those findings and conclusion are supported.
B. COMMISSION EIR REVIEW LEGAL FRAMEWORK
1. The Monterey Peninsula Water Supply Project Is Unique Among Projects for which
the Commission Has Been the Lead Agency for Preparing an Environmental Impact
Report Pursuant to CEQA and Imposes a Special Responsibility on the Commission
to Scrutinize this Contested Project Regarding Its Serious, Unmitigable
Environmental Impact Effects and Infeasibility.
A review of the Commission’s listing of “past” and “present” projects for which it has
conducted environmental reviews 2 pursuant to the California Environmental Quality Act
(“CEQA”) over the past twenty-three years makes one thing very clear. The Commission’s
experience has been almost wholly focused on electric or gas transmission, storage, or generation
replacement facilities and telecommunications fiber optic installations.
Thus, of the total 168 projects included in these lists, only five projects are identified as
“Water.” Two of these relate to either a water transmission pipeline or a service area extension.
The remaining three all relate to water projects proposed by California American Water
Company (“CalAm”) applications to provide a “new water supply to replace existing supply
1
Concurrently with the submission of this Opening Brief, the City of Marina is filing an April
19, 2018 Comment Letter, with Appendices, regarding the Final EIR/EIS with the Lead
Agencies. This Opening Brief will comment on and/or incorporate portions of those comments
and appendices and should be read in conjunction with those materials.
2
For “Past Projects,” see: http://www.cpuc.ca.gov/General.aspx?id=4397 ; for “Current Projects,” see:
http://www.cpuc.ca.gov/General.aspx?id=4389 .
2
taken from the Carmel River to serve its Monterey Division customers.” 3 However, as to these
three water projects, the first (A.97-03-052) never resulted in the preparation of an
Environmental Impact Report and was ultimately dismissed without prejudice in favor of a new
application that would propose the “Monterey Desalination Coastal Water Project.” 4
The second water project is the “Coastal Water Project,” later identified as the “Regional
Desalination Project,” for which CalAm sought a Certificate of Public Convenience and
Necessity (“CPCN”) in A.04-09-019. Despite the Commission certifying and adopting a Final
EIR and granting a CPCN for the Coastal Water Project in that application, 5 CalAm withdrew
from the Coastal Water Project in 2012 in favor of filing the instant application (A.12-04-019)
for the Monterey Peninsula Water Supply Project (“MPWSP” or “Project”) and the Coastal
Water Project is labeled by the Commission as “site no longer available.” 6
More significantly, both the CPCN and Final EIR prepared for the Coastal Water Project
were granted and certified with virtually no opposition. 7 While the Commission did find that
this project was an expensive facility that would result in significant environmental impacts that
could not be mitigated, the Commission found that there were “substantial benefits that outweigh
those impacts and which constitute overriding considerations under CEQA.” 8 Namely, the
issuance of the CPCN was based on approval of a broadly supported settlement that created a
regional project, which project was supported by the community and involved the participation
by CalAm and several public agencies, including the Marina Coast Water District (“MCWD”),
Monterey County Water Resources Agency (“MCWRA”), and the Monterey Regional Water
Pollution Control Authority (“MRWPCA”), and offered numerous cost and legal safeguards. 9
Further, the Commission found that this Coastal Water Project solution was in contrast to
a “long and contentious history of trying to find a viable solution” to Monterey Peninsula water
constraints, “[c]onflicting community values,” which had “rendered other proposals unworkable
and unachievable,” and offered a “viable framework” to address the State Water Resources
Control Board’s Cease and Desist Order prohibiting unauthorized diversions from the Carmel
3
Decision (D.) 03-09-022, at p. 2.
4
D.03-09-022, at p. 1.
5
D.09-12-017; D.10-12-016
6
The Commission labels this project as “site no longer available.”
http://www.cpuc.ca.gov/General.aspx?id=4397
7
D.09-12-017.
8
D.10-12-016, at p. 9.
9
Id., at p. 5.
3
River (“Carmel River CDO”). 10 Instead, the Commission determined that the Coastal Water
Project would provide adequate, reliable water supplies to residents of the Monterey Peninsula,
including both CalAm and MCWD customers; 11 would protect and promote the Monterey
economy (on a county-wide basis); would result in significant environmental benefits to the
Carmel River; would involve low-cost financing options from the participating public agencies
that would benefit ratepayers; would allow for more coordinated and comprehensive planning of
water supplies on the Monterey Peninsula (“not only within CalAm’s service territory, but also
in other areas of northern Monterey County”); and would maintain the hydrologic balance of the
Salinas Valley Groundwater Basin “by adhering to the Agency Act.” 12
The Coastal Water Project never materialized and the project at issue in this Application
(A.12-04-019) – the MPWSP – stands in stark contrast to and is significantly different from the
Coastal Water Project in many critical respects, only some of which are recognized by the Final
EIR prepared for the MPWSP and at issue in these briefs. 13 Thus, the Final EIR states: “The
MPWSP includes many of the same elements previously analyzed in the CWP [Coastal Water
Project] EIR; however, key components, including the source water intake system and
desalination plant, have been relocated and/or modified under the current proposal.” 14
This statement neglects other critical differences between the two projects (Coastal Water
Project v. MPWSP), which also undermine or eliminate claimed benefits of the MPWSP on its
face. In sum, the MPWSP will supply water only to CalAm customers; will not be part of any
regional cooperation to the benefit of the Monterey Peninsula beyond CalAm’s service territory
to reduce its excessive costs; has not been supported by any settlement that encompasses the
most affected parties; is not feasible where, among other things, CalAm does not even hold, or
have any reasonable path forward to obtain, legal rights to water required to operate the facility;
will be located in, around and through an environmental justice community (the City of Marina)
that is not served by CalAm and that will be unduly burdened by the Project and suffer wide
ranging community values and environmental impacts from the Project; and will have
10
Id., at pp. 9-10.
11
D.10-12-016, at p. 87.
12
Id., Appendix B, at p. 88-90.
13
While the Final EIR states that the “MPWSP includes many of the same elements previously analyzed
in the CWP [Coastal Water Project] EIR,” key components, including the source water intake system and
desalination plant, have been relocated and/or modified under the current proposal. (Final EIR/EIS,
Executive Summary, Section ES.2 (Project Background), at p. ES-2.)
14
Final EIR/EIS, Executive Summary, Section ES.2 (Project Background), at p. ES-2.
4
significant, adverse environmental impacts and influences on the City of Marina, which cannot
be mitigated, and for which no “overriding” considerations exist that outweigh or offset those
adverse impacts.
In this case of a unique and controversial Project for purposes of Commission EIR
review, it is incumbent upon the Commission in reviewing the Final EIR/EIS to closely
scrutinize all of these adverse Project effects and, to do so, with reference to the applicable law
and the evidentiary record in A.12-04-019, especially as recently updated in hearings held in
October and November 2017 and briefed in December 2017 and January 2018. As this brief
details, the Final EIR and its findings are not supported by the applicable law or record.
2. CEQA Provides Important Legal Requirements and Standards That Must Be
Carefully Applied By The Commission In Determining The Legal Adequacy Of The
Final EIR/EIS.
As we will explain in greater detail in the sections below, the City of Marina strongly
believes that the Final EIR/EIS is legally inadequate in multiple important respects that make it
insufficient for use by the Commission, by MBNMS, and by responsible agencies (including the
City) to make any discretionary decisions. In this section, we will explain certain important
CEQA concepts that apply to this document.
At the outset, it is important to recognize that the Commission, unlike some California
public agencies, does not have a certified state regulatory program that takes the place of
CEQA’s requirements. Instead, the Commission’s Rules of Practice and Procedure, General
Orders, and decisions commit to following both CEQA statutes and guidelines for utility plant
additions to which it applies. 15 Thus, all of CEQA’s standards, procedures, substantive
provisions and other legal requirements apply to environmental documents which the
Commission prepares, including the Final EIR/EIS for the Project. However, as noted above,
while PU Code Section 1002 imposes a “responsibility independent of CEQA to include
15
See, e.g., D.09-12-044, at pp. 4, 20-22; Commission’s Rules of Practice and Procedure, Rule 2.4 (a)
(“Applications for authority to undertake any projects that are subject to the California Environmental
Quality Act of 1970, Public Resources Code Sections 21000 et seq. (CEQA) and the guidelines for
implementation of CEQA, California Code of Regulations, Title 14, Sections 15000 et seq., shall be
consistent with these codes and this rule”; General Order 131-D (although this General Order pertains to
transmission projects, it also mandates compliance with CEQA where required for such a project
addition).
5
environmental influences and community values in our consideration of a request for a CPCN,” 16
that circumstance does not conflict with the requirement that the Final EIR being reviewed by
the Commission must comply with all CEQA standards, procedures, and legal requirements.
a. CEQA Contains Important Definitions Relating To Determining “Feasibility” In
the Context Of Project Environmental Impact Reports.
The concept of “feasibility” runs throughout CEQA and its implementing regulations
(often referred to as the “CEQA Guidelines”). CEQA provides that “it is the policy of the state
that agencies should not approve projects as proposed if there are feasible alternatives or feasible
mitigation measures available which would substantially lessen the significant environmental
effects of such projects, . . . .” 17 Both CEQA and the CEQA Guidelines state: “Feasible means
capable of being accomplished in a successful manner within a reasonable period of time, taking
into account economic, environmental, social, and technological factors.” 18
An EIR must “describe feasible mitigation measures which could minimize significant
adverse effects.” 19 It must also examine a range of “feasible alternatives” and “a range of
reasonable alternatives . . . which would feasibly attain most of the basic objectives of the
project. . . .” 20 When looking at feasible alternatives, the lead agency must examine a group of
factors, including whether “the proponent can reasonably acquire, control or otherwise have
access to the alternative site (or the site is already owned by the proponent).” 21 Many cases have
examined the feasibility of alternatives, and one leading case in the context of alternative sites
stated: “Surely whether a property is owned or can reasonably be acquired by the project
proponent has a strong bearing on the likelihood of a project’s ultimate cost and the chances for
an expeditious and ‘successful accomplishment.’” 22
These CEQA feasibility formulations and requirements will be discussed in three
contexts in this brief: (1) the feasibility of the Project itself, (3) the feasibility of mitigation
measures, and (3) the feasibility of alternatives to the Project.
16
Application of Southern California Edison for CPCN for Kramer-Victor Transmission Line (1990) 37
CPUC2d 413, 453 (emphasis added); D.09-12-044, at p. 22.
17
Pub. Res. Code §21002.
18
Pub. Res. Code § 21061.1; CEQA Guidelines § 15364.
19
CEQA Guidelines §15126.4(a).
20
Id. at § 15126.6(a) and (f).
21
Id. at § 15126.6(f).
22
Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 574 (1990).
6
b. The Final EIR/EIS Deficiencies and Legal Inadequacies That Are Explained In
This Brief Also Make It Inadequate for Use by MBNMS and the Other Federal
Agencies Issuing Permits or Authorizations for the Project.
The Commission also follows CEQA Guideline § 15222 in recognizing its ability to
jointly prepare documents with appropriate federal agencies for projects subject to the National
Environmental Protection Act, 42 USC §§ 4321, et seq, (“NEPA”) Here the Project will be
partially located within the Monterey Bay National Marine Sanctuary (“MBNMS”) of the
National Oceanic and Atmospheric Administration (“NOAA”), with MBNMS serving as the
“lead Federal agency considering through its authorization process whether or not to allow
otherwise prohibited MPWSP activities within MBNMS.” 23
In applying CEQA Guidelines § 15222 in the preparation of a joint EIR/EIS, however,
the Commission has always made clear that, for purposes of the Final EIS, it is the federal
agency that will conduct a detailed review of the impacts and determine how to proceed and will
not issue its Final EIS or Record of Decision until that review is complete. 24 However, the flaws
that exist in the Final EIR/EIS that are addressed in this brief should also lead to its rejection by
the MBNMS.
3. CEQA Statutes and Guidelines Applicable to the MPWSP Final EIR Must Also be
Interpreted and Applied Consistent with the Commission’s Statutory Duties,
Governing Case Law, and Commission Precedent.
While CEQA is the “primary means of environmental review” of utility projects by the
Commission and requires application of all relevant CEQA statutory provisions (Pub.Res.Code
§§ 21000 through 21189) and Guidelines, the Commission has also made clear that its “legal
framework” for such review starts with its statutory duties as defined by Public Utilities Code
Sections 1001 and 1002. Thus, application of Section 1001 requires the Commission to “find a
need” for the proposed project or “an alternative evaluated” in the proceeding. 25 Section 1002(a)
“requires that we consider four additional factors: community values; recreational and park
areas; historical and aesthetic values; and influence on the environment.” 26
While rulings have been issued in this Application that suggest that the instant brief
should exclude consideration of Section 1002(a) factors other than “influence on the
23
Final EIR/EIS, Chapter 1 (Introduction and Background), Section 1 (Introduction), at p. 1-1.
24
See, e.g., D.09-12-044, at p. 23.
25
Id.
26
Id.
7
environment,” Commission precedent makes clear that there is no such bright line exclusion of
the first three factors when weighing the benefits or impacts of project alternatives considered in
the Final EIR/FEIS. Thus, the Commission has concluded that “our responsibility to respond to
the health, safety and environmental concerns of those exposed to utility facilities is not limited
to CEQA,” and “Section 1002 imposes a “responsibility independent of CEQA to include
environmental influences and community values in our consideration of a request for a CPCN.” 27
Thus, the Commission has determined that the fourth factor – consideration of a project’s
“influence on the environment” – is appropriately addressed through the CEQA process, 28 but
that “does not mean that the EIR would determine the outcome of this issue.” 29 Of equal
importance, all of these factors must be accounted for in weighing the environmental effects of
each alternative considered in the Final EIR. In other words, to the extent that adverse
environmental impacts on community values exists from a project, the Commission will look to
the Final EIR to see if they have been effectively mitigated for any alternative studied. 30 This
analysis is of particular importance to the Commission’s review of the “Environmentally
Superior Alternative” adopted in the Final EIR. 31 Thus, “[c]ommunity values may be
instructive” in making determinations among the alternatives being considered,
“notwithstanding” considerations of that factor with respect to need. 32 As detailed in this brief,
the Alternatives considered by the Final EIR/EIS, including the Environmentally Superior
Alternative, have significant and unmitigable impacts on Marina and its values.
The Commission has also determined that adverse environmental impacts to those values
that cannot be mitigated can only be outweighed if there are “overriding statewide values” that
can be demonstrated to exist. 33 While CEQA Guidelines §15093(a) includes consideration by a
decision-making agency of “region-wide or statewide environmental benefits” of a proposed
project against its unavoidable environmental risks whether to approve a project, the MPWSP
has neither. The MPWSP is only a local solution to a serve a single Utility’s customers and can
no longer even be considered a “regional” solution to water supply issues in the greater
27
Application of Southern California Edison for CPCN for Kramer-Victor Transmission Line, supra, 37
CPUC2d at 453 (emphasis added); D.09-12-044, at p. 22.
28
D.00-05-048, at p. 28; D.09-12-044, at p. 22.
29
D.00-05-048, at p. 28.
30
D.09-12-044, at pp. 46-49; D.00-05-048, at p. 32.
31
D.09-12-044, at pp. 46-49.
32
Id., at p. 47.
33
Id., at p. 47; emphasis added.
8
Monterey Peninsula area. The Commission has already made clear that, even if “statewide”
benefits exist, adverse, unmitigable singular impacts or an “undue burden” created by the Project
on an individual community must still be addressed and may require an adoption of “alternative”
to the segment of that project located in that community. 34
Adverse environmental impacts from a utility plant proposed to be located in, around, or
through environmental justice communities located in coastal areas of California have been
under increased scrutiny and have gained elevated importance over the past year. Thus, in the
California Energy Commission’s review of the Puente Power Project to be located on a beach in
the disadvantaged community of Oxnard, the assigned Commissioner, in noticing parties of the
status of their deliberations, advised that it is “clear to us that the Project will be inconsistent
with several Laws, Ordinances, Regulations or Standards (LORS) …and will create significant
unmitigable environmental effects” and further, based on the record in that case, “we are
unwilling to override the significant impacts or LORs inconsistencies.” 35 That record includes a
letter sent from and signed by multiple California Legislators, including then Senate President
Pro Tempore to the CEC on October 25, 2017, which indicates that, chief among those impacts,
is that the Project “would disproportionately burden environmental justice communities in the
City of Oxnard,” which had already “long borne” the burdens of providing energy and ensuring
clean-up of a Superfund site, and “must not be saddled with this burden.” 36
Clearly, the Commission’s assessment of the “Environmentally Superior Alternative”
identified by the Final EIR/EIS, in this proceeding must also address whether there are any
“overriding” considerations for significant impacts that cannot be mitigated, 37 which include
those that adversely impact the community of Marina and its values. Clearly, that issue could not
have been briefed, nor have the parties had the opportunity to do so, until this Final EIR/EIS was
published and is available for evaluation here.
34
D.13-07-018 (Tehachapi 2).
35
CEC Docket No. 15-AFC-01, Committee Statement Regarding the State of the Presiding Member’s
Proposed Decision (October 5, 2017), at pp. 1-2 (http://docketpublic.energy.ca.gov/PublicDocuments/15-
AFC-01/TN221401_20171005T173308_Committee_Statement_re_PMPD_Status.pdf ).
36
CEC Docket No. 15-AFC-01, TN # 221644 (October 31, 2017), at pp. 1-2
(http://docketpublic.energy.ca.gov/PublicDocuments/15-AFC-
01/TN221644_20171031T105534_Senator's_Jackson_De_Leon_Stern_Assemblymembers_Limon_Irwin
_Com.pdf ).
37
D.09-12-044, at pp. 46-49.
9
Further, the City of Marina strongly disputes the conclusion in the Final EIR/FEIS that,
on the parameter of “disproportionately high and adverse effects on low-income communities,”
there are “less than significant impacts,” 38 which, in turn, do not have to be mitigated and for
which no overriding considerations are necessary. This is an absurd and unsupported conclusion
that is only one example of the significant flaws of the Final EIR/FEIS that prevents its adoption
by the Commission as written.
With respect to any “overriding” considerations that the Commission is required to
identify to support adoption of the “Environmentally Superior Alternative,” again, there are
certainly no “region-wide” or “statewide” benefits for the MPWSP that have been demonstrated,
as detailed below. Further, no statutory benefits have been identified for the MPWSP, such as is
the case for transmission additions “necessary to facilitate achieve of the renewable power goals”
of the State. 39 The April 4, 2018 ALJ’s Ruling also directs that parties are to “refrain from
duplicating or incorporating by reference arguments made in prior briefs or comments.”
However, the Commission is to make “CEQA Findings” that “accurately reflect the independent
analysis contained in the Final EIR and are supported by substantial evidence in the
administrative record.” 40 To that end, comparison between Final EIR “findings” and the record
in this case will be inevitable and required as part of the Commission’s “independent analysis.”
In doing so in this brief, as detailed below, it is quite apparent that the Final EIR/EIS
reaches determinations in conflict with that “administrative record” and seeks to compromise,
rather than advance, the Commission’s independent analysis of the Final EIR by prejudging the
outcome of multiple issues that have been contested in evidentiary hearings held and briefs filed
on that record over the last six months. Quite simply, that record cannot be ignored, and no
“finding” made by the Final EIR/EIS that ignores or conflicts with that record can be adopted.
38
Final EIR/EIS, Chapter 4 (Environmental Setting, Impacts, and Mitigation Measures), Section 4.20
(Socioeconomics and Environmental Justice), at pp. 4.20-1, et seq.
39
PU Code §399.2.5.
40
D.09-12-044, at p. 46; emphasis added.
10
II.
FINAL EIR/EIS ISSUES
A. Water Demand, Supply and Water Rights
1. Overview
In the Joint Motion on the common Final EIR/EIS briefing outline filed in this
proceeding on March 9, 2018 (March 9 Joint Motion), five alternatives were presented with
parties taking position in support or opposition on each. Notably, CalAm, along with certain
other parties, opposed the recommendation by City of Marina and MCWD to include as Section
II.A. “Water Demand, Supply and Water Rights” and stated: 41
“CalAm’s position is the discussion of water demand and supply in the Draft
EIR/EIS is background, baseline information, and the parties recently provided
the Commission with updated information on supply and demand. [Footnote
citation to Draft EIR/EIS, at page 2-1.] Another round of briefing on these issues
in the EIR/EIS phase will not provide additional factual information that has not
already been briefed previously to the CPUC, and will possibly confuse issues
between the two tracks of evidence…..Furthermore, the Draft EIR/EIS states at
Section 2.6 that ‘[t]he topic of water rights is not one typically addressed in an
EIR/EIS.’” 42
Very appropriately, however, the April 4 ALJs’ Ruling rejected such claims by adopting
the Marina-MCWD proposal (Attachment 5) to include Section II.A. “Water Demand, Supply
and Water Rights” in the common outline for these Final EIR/EIS briefs. In doing so, the April 4
ALJ’s Ruling concludes: “As a common briefing outline we believe the version presented in
Attachment 5 provides the best framework.” 43
The topic of “Water Demand, Supplies, and Water Rights” comprises Chapter 2 of the
Final EIR/EIS. Within the section specific to “Water Rights” (Chapter 2, Section 2.6), the Final
EIR/EIS separate addresses “Project Water Rights” (Subsection 2.6.2), “Effect of Monterey
County Water Resources Agency Act” (Subsection 2.6.3), and “Effect of Annexation
Agreement” (Subsection 2.6.4). As a result, this portion of the brief addresses all parts and
subparts of Chapter 2 as identified therein, including any related Comments and Responses
contained in Chapter 8 of the Final EIR/EIS.
41
March 9 Joint Motion, at p. 2.
42
Id.
43
April 4 ALJ’s Ruling.
11
2. The Water Demand and Supply Portions of the Final EIR/EIS Are Legally
Inadequate Because They Fail To Discuss and Evaluate Significant New
Information Developed in Commission Hearings and Their Conclusions Lack
Substantial Evidence in the Record.
a. Governing Legal Framework
The reasons for inclusion of “Water Demand, Supply and Water Rights” in this brief as
the “best framework” for briefing the Final EIR/EIS are made clear by the Final EIR/EIS itself.
These subjects are a prominent part of the Final EIR/EIS, and each influences and forms the
bases for the alternatives studied and, ultimately, the Environmentally Superior Alternative
adopted. 44 Yet, as to those alternatives, the Final EIR/EIS’s erroneous assumptions on water
supply and demand unreasonably limit the selection of potential CEQA/NEPA alternatives to
only desalination water supply project alternatives that generate a total of 10,750 AFY of
water. 45
Significantly, the Final EIR/EIS includes both “demand to be met by the proposed
project” and “groundwater modeling, impacts and water rights” as “areas of controversy known
to the lead agency…and the issues to be resolved (including the choice among alternatives and
whether or how to mitigate the significant effects.” 46 Thus, what clearly has never been briefed
with reference to the Final EIR/EIS is how that environmental analysis has used its assumptions
and legal analysis on demand, supply, and water rights to support the Alternatives it proposes,
compares, and, ultimately, finds to be “Environmentally Superior.”
As detailed below, and in contravention of CEQA, the Final EIR/EIS fails to discuss and
evaluate the significant new information and evidence developed in the October – November
47
2017 hearings on “updated” information on supply and demand. To make matters worse, the
Final EIR/EIS wrongly introduces and seeks to rely on new, “significant” information and
analysis on demand (Appendix L (Alternative Supply-Demand Scenarios)) that was not
previously offered for public review and comment and is not part of any evidentiary record.
44
Final EIR-EIS, Chapter 2 (Water Demand, Supplies, and Water Rights); Chapter 8 (Draft EIR/EIS
Comments and Responses); Appendix L (Alternative Supply-Demand Scenarios).
45
Final EIR/EIS, Chapter 5 (Alternative Screening and Analysis).
46
Final EIR/EIS, Executive Summary, Section ES.8 (Areas of Controversy and Issues to be Resolved), at
p. ES-16 (emphasis added); see, CEQA Guidelines § 15123(b)(1).
47
Assigned Commissioner’s and ALJs’ Ruling of August 28, 2017, at p. 3.
12
While these errors contribute to the overall inadequacy of the Final EIR/EIS, they
unquestionably require recirculation of the Final EIR/EIS. 48
Further, adoption by the Commission of the Final EIR/EIS as written, inclusive of its
demand and supply assumptions, could be highly prejudicial to parties’ due process rights to the
extent that it is used to prejudge the outcome of the October –November 2017 evidentiary
hearings and briefs on supply and demand issues related to the MPWSP that conflict with these
assumptions. Such a result is a violation of due process and certainly compromises the
Commission’s “independent judgment” and “analysis” of the Final EIR/EIS. 49
Finally, the Commission has confirmed that the “findings” of the Final EIR cannot be
adopted unless “supported by substantial evidence” in the “evidentiary” or “administrative”
record. 50 Clearly, where the Final EIR fails to consider or conflicts with that record, the
Commission is foreclosed from adopting its findings.
Equally importantly, the Commission has a separate statutory obligation under PU Code
§§ 1705 and 1757.1, as further interpreted by relevant case law, to support its decisions on the
Project “by the findings.” 51 Pursuant to Section 1705, a Commission decision must “contain,
separately stated, findings of fact and conclusions of law by the commission on all issues
material to the order or decision….” In applying this provision, the California Supreme Court
has found:
“Findings are essential to ‘afford a rational basis for judicial review and
assist the reviewing court to ascertain the principles relied upon by the
commission and to determine whether it acted arbitrarily, as well as assist parties
to know why the case was lost and to prepare for rehearing or review, assist others
planning activities involving similar questions, and serve to help the commission
avoid careless or arbitrary action.’” 52
48
By statute, guideline, and case law, Pub. Res.Code § 21092.1 and CEQA Guidelines § 15088.5 require
the lead agency to issue a new notice and recirculate the EIR for comments and consultation if significant
new information is added to an EIR after notice of public review has been given, but before final
certification of the EIR. (Pub. Res.Code § 21092.1; CEQA Guidelines § 15088.5; Laurel Heights
Improvement Ass’n v. Regents of Univ. of Cal., 6 Cal. 4th 1112, 1130 (1993).)
49
D.09-12-044, at pp. 46, 89; Pub. Res. Code § 21082.1(c)(3); CEQA Guidelines § 15090.
50
D.09-12-044, at pp. 46, 89.
51
PU Code § 1757.1(a)(4).
52
California Manufacturers Association v. Public Utilities Commission, 24 Cal.3d 251, 258-259 (1979)
(citing five other California Supreme Court decisions in support, including City of Los Angeles v. Public
Utilities Commission, 7 Cal.3d 331, 337 (1972).)
13
Thus, for a CPCN, the Commission must “state what those factors are and to make findings on
the material issues which ensue from the factors.” 53
Clearly, the issues of “Water Demand, Supply, and Water Rights,” in addition to all
Section 1002 “factors,” including environmental influence, are among the most material, highly
contested issues in this application - a fact further confirmed by the Final EIR/EIS identifying
them as “known” “areas of controversy.” 54 It certainly will not be enough for the Commission to
satisfy its statutory duty to make findings on those issue that merely rely on any “CEQA
findings” included in or based on the faulty, unsubstantiated, and outdated analysis contained in
the Final EIR/EIS and certainly cannot be done without consideration of the “administrative
record” in this Application that has been developed in and since the October/November 2017
evidentiary hearings.
b. The Final EIR/EIS Analysis of Water Demand and Supply Is Plagued By
Procedural Deficiencies That Make It Inadequate.
The Final EIR/EIS’s analysis and “information” on water supply and demand contains a
bloated and unsupported water demand “need” for the Project that fails to reflect the updated
record on CalAm’s service area demand and supply resulting from the evidentiary hearings held
in A.12-04-019 from October 25 through November 3, 2017, including the post-hearing briefs
and pleadings. Chapter 2 and Master Response 13 reveal that the only record evidence relied
upon by the Final EIR/EIS for its demand/supply analysis almost exclusively relies on CalAm
testimony and predates 2014, with limited updates from 2016. 55
While Chapter 2 makes no reference to the evidentiary record on supply and demand
developed in the October/November 2017 hearings, Master Response 13 makes the following
claim:
“Note also that evidence concerning supply and demand is being gathered
by the CPUC in a process that is separate from, but parallel to, the CEQA and
NEPA process. Such evidence will be considered, along with all of the data within
the EIR/EIS, to inform and shape the decision on the size of project and the
possibility of phasing in the project or alternatives. The Lead Agencies have
endeavored to consider and reflect in the EIR/EIS evidence that has been
53
City of Los Angeles v. Public Utilities Commission, 7 Cal.3d 331, 337 (1972).
54
p. ES-16 (emphasis added).
55
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), References, at pp. 2-44 to 2-
50; Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.2.13 (Master Response 13: Demand
(Project Need) and Growth), References, at pp. 8.2-119 – 8.2-120.
14
presented in the general CPUC proceeding. It will be up to the decisionmakers to
weigh all of the evidence in the record, determine which, if any, option best suits
the project purpose and need/satisfies the project objectives, and take appropriate
actions based upon findings. This means that the CPUC could decide (for
example only) that it is most likely that there will be no further hospitality
industry economic recovery such that water need not be supplied for that purpose.
So long as substantial evidence supports that ultimate decision, the state
permitting agencies may judge the evidence as they see fit.” 56
The Final EIR/EIS has made a fundamental error: rather than including and evaluating in
the Final EIR/EIS the significant new evidence relating to demand/supply admitted into the
record for this proceeding from the October-November 2017 hearings, it instead states that the
Lead Agencies have “endeavored to consider” this evidence. 57 A reader will search Chapters 2.1
to 2.5 in vain for any summary of the significant new evidence developed on this issue, which
state only that it “will be up to the decisionmakers to weigh all of the evidence in the record” and
“determine” what “option best suits the project purpose and need” and “take appropriate action
based upon the findings.” 58 But the remainder of the above statements are wholly misleading
and inappropriate for a document that is supposed to represent the Final EIR/EIS to be addressed
in this brief. The public must have the opportunity to review and comment on such significant
new information.
Assumptions made by the Final EIR/EIS on CalAm customer demand and water supply
have directly influenced the alternatives considered, including the identified Environmentally
Superior Alternative. As such, the Commission “process” that addressed and updated those
assumptions is not somehow disconnected or “separate from…the CEQA and NEPA process,”
but directly relates to and should have been considered in the Final EIR/FEIS alternatives
analysis for public review and comment. Contrary to its claim, there is nothing in the Final
EIR/EIS that “evidence that has been presented in the general CPUC proceeding” since 2016 has
in fact been “consider[ed] and reflect[ed] in the EIR/EIS.” 59 Instead, none of that testimony or
record developed in October through November 2017 is cited anywhere or included in Chapter 2
or Master Response 13.
56
Final EIR/EIS, Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.2.13 (Master Response
13: Demand (Project Need) and Growth), at p. 8.2-100; emphasis added.
57
Id.
58
Id.
59
Id.
15
Worse, Master Response 13 relies on a new Appendix, Appendix L (“Alternative Supply-
Demand Scenarios”) that was not part of the Draft EIR/EIS, yet newly offers “two demand
scenarios, each coupled with six alternative supply scenarios.” 60 These scenarios suffer from the
same dated shortcomings as the other demand and supply analysis contained in Chapter 2,
looking backwards to 2013 and 2015 as their basis, and, again, failing to account for any of the
record evidence on supply and demand provided in the October-November 2017 evidentiary
hearing. Further, while text in Appendix L is dated “March 2018,” the actual scenarios are based
on information from October 4, 2017, which predates this hearing record.
Appendix L also includes assumptions and statements that were contested during those
hearings and clearly has never been made part of the evidentiary record in A.12-04-019.
Certainly no party has had an opportunity to challenge its “results” in such a hearing.
Inclusion of Appendix L in the Final EIR/EIS also violates well-accepted CEQA law and
guidelines by representing “significant new information” in the Final EIR/EIS process for which
parties have not had an opportunity to review and comment prior to its release. CEQA statutes,
guidelines, and case law make clear that this information should have triggered “recirculation” of
the EIR/EIS before the Final EIR/EIS was published. As such, the Commission has two choices:
(1) either direct the recirculation of the Final EIR/EIS based on this “significant new
information” or (2) determine that its inclusion renders the analysis of demand and supply by the
Final EIR/EIS flawed and legally inadequate.
c. Serious Substantive Issues Undermine the Conclusions In The Final EIR/EIS
and Render It Legally Inadequate.
There are many substantive reasons why the Final EIR/EIS analysis of CalAm customer
demand and water supply should be discounted and rejected. More notably, the reasons for
doing so are embedded in the evidentiary record from October/November 2017, which must be
included in the Final EIR/EIS. That record clearly demonstrates that the Final EIR/EIS demand
assumptions are greatly inflated, and coupled with erroneous supply assumptions, improperly
skew the Final EIR/EIS environmental impact and alternatives analyses, rendering them legally
inadequate. While the April 4 ALJ’s Ruling urges parties from “duplicating or incorporating by
reference arguments made in prior briefs or comments,” reference to the October/November
60
Final EIR/EIS, Appendix L (Alternative Supply-Demand Scenarios).
16
2017 evidentiary hearing record is required to demonstrate the significant inadequacies in the
Final EIR/EIS analysis of water demand and supply.
(1) Water Demand
The Final EIR/EIS assumption that the selected project must be able to deliver 10,750
acre-feet per year (“afy”) is not only inconsistent with that updated record through 2017, but
exceeds the total water deliveries by CalAm to its customers in each of past years 2014 and 2015
noted in the Final EIR/EIS. With the Project, CalAm would have a future water supply of over
16,000 afy, of which only about 9,500 afy is for currently existing demand. The remaining 7,000
afy is for uncertain, unnecessary, or unspecified future uses. 61
Instead, CalAm’s true “need” for new water is actually much less and could be supplied
by other projects. To begin with, as the Final EIR/EIS confirms in Table 2-2, CalAm’s annual
service area demand has declined consistently over a ten-year period from 14,176 afy in 2006 to
9,545 afy in 2015. 62 Yet, 12,351 afy is identified as the “average annual” demand. 63 This
decline, however, cannot be ignored, and, based on the October-November 2017 evidentiary
record, is a result of many factors, including permanent water conservation measures, for which
there is no basis to claim such will change in the future.
Thus, four different experts testifying at the October-November 2017 evidentiary
hearings calculated that the future reasonable total water demand estimates for CalAm’s existing
customers, lots of record, Pebble Beach entitlements and a hypothecated rebound in tourism
were all lower than this 12,351 afy figure and averaged at or below the 9,545 afy recorded in
2015. 64 These experts also disputed claims by CalAm that its customer water demand would
grow approximately 41% in the next few years given the existence permanent conservation
measures mandated in CalAm’s Monterey District and the strong continuing water conservation
policies of the State. 65 Record evidence provided by Marina expert witness, Dr. Lon House, also
demonstrated that, because CalAm’s Monterey District water rates are already the highest in the
61
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), Section 2.4 (Available
Supplies), Table 2-4, at p. 2-18.
62
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), Section 2.3.1 (Existing System
Demand), Table 2-2, at p. 2-11.
63
Id.
64
Ex. MNA-2, at p. 2, ll. 4-6 (Marina (House)); Ex. MCD-36, at p. 4 (MCWD (Van Der Maaten)); Ex.
SF-12, at p. 5 (Surfrider (Minton)); Ex. WD-15, at p. 15 (MPWMD (Stoldt)).
65
Ex. MNA-2, at p. 2, ll. 4-6 (Marina (House)).
17
nation, the necessary further increase in rates to pay for a desalination plant would inevitably
suppress water demand and could in fact create a CalAm utility “death spiral.” 66
This expert testimony also refuted CalAm’s vague claims that customer demand would
increase in response to population growth, a supposed end of the drought, or relaxation in usage
restrictions. Thus, these experts demonstrated that the CalAm service area is growing at a very
slow rate, that State conservation policies will remain in place in wet and dry years; and water
conservation “now constitutes a new normal in California, making it illogical to assume any
significant increase in water demand,” making it such that “a rebound cannot be soundly
predicted, nor is it likely.” 67
All of the experts who contested CalAm’s claims of an anticipated “tourism rebound”
demonstrated that the economy and spending in Monterey County had already completely
rebounded and been fully recouped from the 2008 recession and any claimed increase should “be
assigned a demand volume of zero.” 68 For “lots of record,” the evidentiary record shows that
CalAm’s claim of 1,181 afy was an outdated and unreliable estimate, with the actual number
being as little as half of that amount. 69
Finally, Marina’s expert witness Dr. Lon House testified that “[p]rice is a critical variable
in determining demand” 70 and that accepted studies on “price elasticity” establishes that “as the
price of water increases, people use less” water. 71 Specific to CalAm, in a comparison of
historic water demand and average water cost for the ten years from 2006 through 2016, Dr.
House’s testimony demonstrates that “[w]hen CalAm increases the price for water, the demand
for it falls in proportion to the price increase” 72 down to some minimum level of usage, 73
a
result that would become more dramatic with the construction of the MPWSP where that “desal
66
RT at 4477, ll. 15-28 (Marina (House)).
67
Ex. MNA-2, at p. 1, ll. 15-16; pp. 6 - 9 (Marina (House)); Ex. WD-15, at p. 9, ll. 4-12 (MPWMD
(Stoldt)). See also, Ex. SF-12, at p. 5 (Surfrider (Minton) (noting these same circumstances that made it
“unlikely” that “demand will significantly increase.”); Ex. MCD-36, at pp. 5, 7-8 (MCWD (Van Der
Maaten)).
68
Ex. MCD-36, at p. 5 (MCWD (Van Der Maaten). See also: Ex. MNA-2, at pp. 10-11 (Marina
(House)); Ex. SF-12, at pp. 8-9 (Surfrider (Minton)); Ex. WD-15, at p. 14 (MPWMD (Stoldt)).
69
Ex. MCD-36, at pp. 4-5 (MCWD (Van Der Maaten)); Ex. SF-12, at p. 8 (Surfrider (Minton));
Ex. MNA-2, at p. 10 (Marina (House)).
70
71
Id., at p. 3, ll. 9-10 (Marina (House)).
72
Ex. MNA-2, at pp. 4-5 (including Figure 1) (Marina (House).
73
RT at 4495, ll. 7-10 (Marina (House)).
18
water is the most expensive water Cal-Am has access to, and is not going to reduce water
price.” 74
Yet, the Final EIR/EIS completely ignores this significant new information in the
Commission record and thereby does not make it available for public review and comment. In
Chapter 2, its reliance on a demand figure of 12,351 afy disregards this most recent evidence on
CalAm’s current and expected demand by at least 3,000 afy. It does so by continuing to rely on
flawed and inflated assumptions about future increases in demand. These include failing to
account for the fact that the tourist industry had already strongly rebounded by 2014-2015, a fact
reflected not only in the October-November 2017 evidentiary record, but also in the Dean
Runyon Associates Study, 2016, cited in the Final EIR/EIS in Chapter 6 (Other
Considerations). 75
Thus, the Final EIR/EIS’s reliance on dated analysis that “if the economy improved,
occupancy rates would go up, and the demand for water would rise,” in turn requiring the
“proposed project” to be “sized to accommodate an increase in water use,” conflicts with the
record evidence showing that the recession ended years ago, the economy rebounded years ago,
and that any claimed increase in water use based on that factor should “be assigned a demand
volume of zero.” 76 There is no substantial evidence in the record to support the Final EIR/EIS’s
conclusions on this topic.
Remarkably, in addressing “Potential Future Changes in Demand” in Chapter 2, the Final
EIR/EIS acknowledges, as Dr. House has testified, that “[w]hen water is less expensive, people
typically use more of it; when water is more expensive, people typically conserve more.” 77 The
Final EIR/EIS also recognizes that the Commission “requires that water service providers charge
their customers ‘just and reasonable rates.’ (Pub. Util. Code §§ 451 and 454).” 78
Yet, instead of applying that principle or legal constraint to the actual circumstances of
the increased price for water that customers will face should the MPWSP be built, the Final
EIR/EIS concludes: “But no one knows how much water will cost in the future, or how the
74
75
Final EIR/EIS, Chapter 6 (Other Considerations), Section 6.3 (Growth-Inducing Impacts), at p. 6-16.
76
Ex. MCD-36, at p. 5 (MCWD (Van Der Maaten). See also: Ex. MNA-2, at pp. 10-11 (Marina
(House)); Ex. SF-12, at pp. 8-9 (Surfrider (Minton)); Ex. WD-15, at p. 14 (MPWMD (Stoldt)).
77
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), Section 2.5 (Other Supply and
Demand Considerations), at p. 2-25.
78
Final EIR/EIS, Chapter 1 (Introduction and Background), Section 1.2 (Lead Agency Roles), at p. 1-4.
19
Commission will structure CalAm’s water rates.” 79 This conclusion is completely at odds with
CalAm’s own testimony in the October/November 2017 evidentiary hearings that established
that the addition of a 6.4 mgd MPWSP (selected by the Final EIR/EIS as the “Environmentally
Superior Alternative”) will increase the price for water supplied by CalAm, already the most
expensive in the nation, by 75% more. 80
Clearly, water supplied by the addition of a 6.4 mgd MPWSP will be “more expensive”
and will lead to “people…conserv[ing] more,” as the Final EIR/EIS concludes. 81 In these
circumstances, and given the evidentiary record cited above regarding the permanency of
conservation in the Monterey District, the Final EIR/EIS has no basis, and none is given, that the
lifting of constraints “might induce people to use more water even if that water is also becoming
more expensive.” 82
The Final EIR/EIS’s claim that the “number of variables involved” make “speculating
about what effect future water prices might have on behavior…futile” is an absurd conclusion in
the face of the evidentiary record in this proceeding. 83 In addition, it is only “speculative” as far
as the Final EIR/EIS is concerned since this document undertook no analysis of the effects of
price on customer demand in CalAm’s service territory. Given the significant expense of this
desalination project (MPWSP) and the high rates already being paid by CalAm customers,
failure to have accounted for this effect is fatal to the Final EIR/EIS’s assumptions on any
increase in water demand that requires this Project – sized at 9.6 mgd or 6.4 mgd – at all.
The Final EIR/EIS takes little notice, if any, of price impacts on customers that will result
from the Project, and certainly provides nothing to support the finding by the Final EIR/EIS that
“the supply and demand assumptions in these scenarios would not change the Draft EIR/EIS
conclusions about the project’s growth inducing impact.” 84 Reliance on new Appendix L is no
support for this finding.
Instead, Appendix L is a contrived analysis that appears to have been created to justify
the failure to add the updated project demand and supply evidence from the October-November
79
Demand Considerations), at p. 2-25.
80
Ex. CA-53, Attachment 4 (6.4 MGD plant) (CalAm (Linam))
81
Demand Considerations), at p. 2-25; emphasis added.
82
Id.
83
Id.
84
Final EIR/EIS, Appendix L (Alternative Supply-Demand Scenarios), at p. L-6.
20
2017 hearings to the Final EIR/EIS. It appears to have been used to conclude that, even if the
project demand were 3,000 afy less, CalAm would still need to build a 6.4 mgd plant. Yet, this
analysis does not include any lower demand scenarios and appears to be used to avoid the
recirculation requirement triggered by new lower project demand/supply figures.
The fundamental assumption that underlies Appendix L appears to be that all scenarios
must be satisfied (including the 14,270 afy demand figure) for the plant to be
downsized. However, that is not how it should work. Rather, if reduced demand figures are
accurate, the plant production size should be less. The analysis also fails to include any
consideration of the 3,500 afy in supply that will come from the GWR/PWM project, which
would in turn increase the “total other supplies” identified in Appendix L. Appendix L adds
text, not included in the Draft EIR/EIS, that identifies possible ASR supply problems in drought
conditions, reducing this supply to 0 in drought conditions. No such claim was included either in
the evidence in this proceeding or the Draft EIR/EIS - ASR was always listed as 1,300 afy.
Inclusion of such an assumption in the Final EIR/EIS, if it is even true, is clearly significant new
information on which the public should have had a chance to comment.
Further, these adjusted “demand” assumptions included in Appendix L were clearly not
taken into account in the Alternatives analysis undertaken by the Final EIR/EIS. If appropriate
assumptions of reduced demand had been used, it would have significantly changed the
identification and selection of alternatives and greatly affected the feasibility and necessity for
the Project.
It is also unacceptable for the Final EIR/EIS in calculating demand to ignore the fact that
the Project will supply CalAm with additional water supply of up to 2,719 afy of water that is
not attributed to any need or demand. Instead, this water supply will be made available for
unspecified “other uses.” 85 This surplus and unallocated quantity is obviously not part of
CalAm’s actual “need” for the Project and should therefore also be subtracted from the asserted
water demand for this Project.
(2) Water Supply
These errors in demand assumptions committed by the Final EIR/EIS are further
exacerbated by its miscalculations of CalAm’s water supply, especially with reference to the
85
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights) Section 2.4 (Available
Supplies), Table 2-4, at p. 2-18.
21
October-November 2017 evidentiary record. Based on that record, CalAm’s water supply
witness testified that CalAm expected to have 9,044 AFY of water available in a normal water
supply year before any supply from a desalination plant. Yet, MCWD’s witness Van Der
Maaten demonstrated that upward revisions to this figure were required based on the actual
yields from the Sand City desalination facility and the Seaside Basin, increasing this figure to a
total supply of 9,924 AFY. 86
Clearly, given the small total projected shortfalls in supply, the Project is not needed or
justified by any reasonable projection in demand. Further, both the record from the October-
November 2017 evidentiary hearing and a Joint Motion filed on January 9, 2018, demonstrate
that multiple efforts are moving forward to make additional water supplies available to CalAm,
again without the necessity of building the Project.
Thus, the undisputed testimony of Paul Sciuto, the General Manager of Monterey
Regional Water Pollution Control Agency (“MRWPCA”), demonstrated that additional water
supply would be available from the expansion of the Pure Water Monterey (“PWM”) Project
that, for its initial phase, “has acquired all of the necessary permits for construction and water
rights,” “is not facing any litigation,” and for which construction is underway and it is expected
to be completed in 2019. 87 Not only would this project produce 3,500 AFY of purified recycled
water (all of which is allocated to CalAm) and 200 AFY more in most years as a drought
reserve, 88 but three other potential expansion scenarios could provide additional water for
CalAm. 89 Finally, MCWD has made written proposals for the sale of water related to
entitlements or allocations related to the PWM and the Seaside Basin, which would be made
available for sale or increase the water supply for CalAm. 90 These water sales opportunities
have also been the subject of the Joint Motion for additional evidentiary hearings filed in A.12-
04-019 on January 9, 2018.
The current record in A.12-04-019 on CalAm service area supply and demand clearly
was not factored into the text of the Final EIR/EIS or, in turn, the Alternatives it elected to study
or its adopted Environmentally Superior Alternative. Yet, this record conclusively demonstrates
86
Ex. MCD-36, at p. 9 (MCWD (Van Der Maaten)).
87
Ex. WD-15, at p. 2 (MPWMD (Sciuto)).
88
Id., at p. 2.
89
Id., at pp. 4-12 (MPWMD (Sciuto)).
90
Ex. MCD-43 (MCWD Cross Exhibit (Stoldt/Sabolsice)); Ex. MCD-44 ((MCWD Cross Exhibit
(Stoldt/Sabolsice)); Ex. MCD-36, at pp. 11, 13-14 (MCWD (Van Der Maaten)).
22
that there is no need for CalAm to construct any desalination plant, which is a very expensive
technology to build for new water. No credible estimate supports CalAm’s inflated estimate of a
supply shortfall of about 6,000 AFY, and this lack of substantial evidence in the record makes
the Final EIR/EIS analysis and conclusions on these topics legally inadequate. Any shortfalls,
some of which would only occur after an extended period of time because a large portion of the
increased demand (such as lots of record and Pebble Beach entitlements) will not occur in the
near future, can reasonably be met by the alternative water proposals addressed above, obviating
the need for any new desalination plant.
3. Water Rights Have Not Been Correctly Addressed or Considered in the Final
EIR/EIS and Render the Project Legally Infeasible.
a. Introduction
It is absolutely essential that a water supply project demonstrate that it has a firm right to
obtain water from an identified source, particularly since the sole purpose of such a project is to
procure water for customers. In many cases under CEQA, courts have invalidated EIRs in which
the document does not adequately analyze a project’s water rights and sources. 91
The City of Marina provided extensive comments on CalAm’s lack of water rights in its
Draft EIR/EIS Comments. 92 The City explained why it is critical for a water supply project to
demonstrate that it has firm water rights, particularly since its viability is completely dependent
on the project’s ability to deliver water to its customers. The City demonstrated that it is highly
unlikely that CalAm would ever be able to successfully navigate the daunting series of legal,
scientific and other hurdles to establish rights for the Project to utilize its targeted source water in
the Salinas Valley Groundwater Basin (“SVGB” or “Basin”). The City concluded: “In sum, the
91
See, e.g., Santa Clarita Org. for Planning the Env’t v. Cty. of Los Angeles, 106 Cal. App. 4th 715, 723
(2003) (“Instead of undertaking a serious and detailed analysis of SWP supplies, the EIR does little more
than dismiss project opponents’ concerns about water supply. Water is too important to receive such
cursory treatment.”); Save Our Peninsula Comm. v. Monterey Cty. Bd. of Supervisors, 87 Cal. App. 4th
99, 131-33 (2001) (the failure to discuss asserted riparian rights required invalidation of the EIR); Cadiz
Land Co. v. Rail Cycle, LP, 83 Cal. App. 4th 74, 92-93 (2000) (EIR failed to “discuss the volume of the
aquifer groundwater, particularly potable water, which is a valuable and relatively scarce resource in the
region” and other water supply information was needed because “an informed decision cannot be made as
to whether it is worth taking the risk of subjecting a valuable water source to contamination.”).
92
Final EIR/EIS, Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.5 (Local Agency
Comments and Responses), Subsection 8.5.1 (Local Agency Comment Letters – City of Marina (March
29, 2017)), at pp. 8.5-5, 8.5-13 – 8.5-23.
23
Draft EIR/EIS analysis of water rights is inaccurate, legally flawed and factually unsupported
and therefore legally inadequate.” 93
The Lead Agencies have failed to provide a reasoned analysis in response to these Draft
EIR/EIS Comments. Rather, in contravention of CEQA’s requirements, 94 the Final EIR/EIS
provides only conclusory statements unsupported by factual information and non-credible legal
assertions. The specific responses to Marina on water rights consist of only three brief
paragraphs which attempt (inaccurately) to distinguish three cases cited by the City and then
incorporate several Master Responses. 95 In Master Response 3, the Lead Agencies attempt to
explain the standard they will use to determine whether the water rights situation impairs Project
feasibility, suggest that commenters “misunderstand” what an appropriative water right consists
of, confuse the concepts of “surplus water” and “developed water,” and reach the same flawed
conclusion as before that CalAm has a “likelihood” of being able to establish water rights. 96
Unfortunately, the Final EIR/EIS analysis is simplistic, legally incorrect and fails to meet
the legal and factual requirements for determining Project feasibility in the context of potential
water rights. This outcome is demonstrated below and as further supported by Marina’s Final
EIR/EIS Comments, submitted today (April 19, 2018), including the Technical Memorandum of
expert Mike Tietze, which is Appendix 1 thereto (“Marina Final EIR/EIS Comments, Appendix
1”).
In summary:
• The Final EIR/EIS takes a “hands off” approach to scrutinizing water rights and thereby
trivializes the importance of this determination. Although a court might eventually need
to determine if such rights exist, this does not excuse the Commission from proactively
ensuring through a robust “feasibility” determination that such water rights are definitely
available and can be successfully implemented in a cost-effective manner within a
reasonable time. The Commission is an important gatekeeper and should not authorize a
93
Id., at p. 8.5-18..
94
See CEQA Guidelines § 15088(c).
95
Final EIR/EIS, Chapter 8 (Draft EIR Comments and Responses), Section 8.5 (Local Agencies
Comments and Responses), Subsection 8.5.1.1 (Responses to Local Agency Comment Letters – City of
Marina), at pages 8.5-559 to 8.5-560.
96
Final EIR/EIS, Chapter 8 (Draft EIR Comments and Responses), Section 8.2 (Master Responses),
Subsection 8.2.3 (Master Response 3: Water Rights), at p. 8.2-4.
24
$300+ million project that ratepayers must fund unless it is virtually certain that such
water rights will be present. 97
• It is undisputed (and the Final EIR/EIS agrees) that CalAm does not possess any current
water rights that would authorize it to extract groundwater from the Basin for the Project.
CalAm lacks any overlying, appropriative or prescriptive rights to this groundwater. (See
section C, infra.)
• It is also undisputed that CalAm lacks any conventional path forward to obtain any of
these groundwater rights in the future. CalAm cannot obtain overlying rights because it
is not planning to use the groundwater it extracts on the CEMEX property where it plans
to locate its slant wells. CalAm cannot obtain conventional appropriative rights to the
groundwater through future pumping of its wells because there is no “surplus” water in
the Basin that it could appropriate. Rather, as part of its Sustainable Groundwater
Management Act (SGMA) responsibilities, the California Department of Water
Resources has conclusively determined that the Basin is “critically overdrafted.” CalAm
also cannot obtain future prescriptive rights through pumping of its wells because SGMA
directly bars anyone from obtaining prescriptive rights in this groundwater basin after
January 1, 2015. Thus, CalAm has no reasonable and accepted path forward for
obtaining such water rights in the future. 98
• Instead, CalAm hopes to obtain such water rights by using a theory of “developed” or
“salvaged water.” This is a risky and untested legal theory based on CalAm’s incorrect
idea that water with TDS above 500 mg/l in this Basin is “wasted” and it will be
“salvaging” the water through its desalination plant. No California case has recognized
or authorized this theory in this or any similar context. Rather, CalAm is attempting to
rely on a scattered handful of cases in which an appropriator actually imports water into a
basin, diverts and saves surface water that would otherwise be lost, or increases the flow
of a spring into groundwater. There is no “salvaged” or “developed” water decision
directly on point and CalAm has a negligible chance of success on this theory. 99
• CalAm’s “salvaged water” theory is also undermined at the outset because the State
Board has a long-standing Sources of Drinking Water Policy (Resolution No. 88-63),
directly applicable to the CEMEX site through incorporation in the Basin Plan, which
provides that all groundwater under land in the State is presumptively considered suitable
or potentially suitable for the municipal or domestic water supply beneficial use.
Although this beneficial use can be de-designated by a Regional Board, no such de-
97
See, Section II.A.3.b., infra.
98
See, Section II.A.3.c., infra.
99
See, Section II.A.3.d., infra.
25
designation has ever occurred for this site. Even if this de-designation were attempted, it
would fail because the water must exceed TDS levels of 3,000 mg/l and it must be
determined that “it is not reasonably expected by Regional Boards to supply a public
water system.” In this case, neither prong of this standard could be met. Therefore, this
groundwater is not “waste” under long-standing State policy and is not subject to being
salvaged or developed by a new appropriator for export outside the Basin. 100
• Even if CalAm could overcome these huge hurdles and potentially establish a basis for a
developed water right, it would then bear the burden to demonstrate that its extraction of
groundwater will not cause injury to any other user of the Basin. CalAm fails to
appreciate the wide variety of injuries that are involved and confuses significant impacts
under CEQA with legal injury for water rights. CalAm has not been able to show that no
injury would occur. To the contrary, as the expert reports of Mike Tietze and many other
experts show, such injury is highly likely. 101
b. The Final EIR/EIS Fails To Articulate An Appropriate Feasibility Test For

Determining Whether CalAm Has Or Will Have Water Rights For The Project.
The Draft EIR/EIS stated (and the Final EIR/EIS Master Response 3 (Water Rights)
repeats) that the legal standard for assessing the feasibility of Project water rights is if ‘“the
CPUC could conclude that there is a sufficient degree of likelihood that CalAm will possess
rights to the water that would supply the desalination plant.’” 102 However, this standard is
unclear, unusable and legally insufficient. First, what exactly is the “sufficient” degree of
likelihood that is necessary? Almost certain? Very likely? More probable than not? No
likelihood of any kind is specified. Second, exactly when “will” CalAm be required to have
these water rights – is it within a reasonable and sufficient period of time? Or is it 5-10 years
after a Basin water adjudication takes place? Third, why is the test articulated to be that the
Commission “could conclude” that it is feasible? If the requisite certainty is not present,
shouldn’t the Commission be required to conclude that it is not feasible? This is not a legal test
that can be applied in a transparent and understandable manner.
Later in Master Response 3, the Lead Agencies articulate a new test for the Final
EIR/EIS’s water rights findings in the feasibility context. The document states that the
Commission itself will use the standard of “whether substantial evidence in the record” supports
100
See, Section II.A.3.d. and e., infra.
101
See, Section II.A.3.f., infra.
102
Subsection 8.2.3 (Master Response 3: Water Rights) at p. 8.2-5; emphasis added.).
26
the water rights finding made in the Final EIR/EIS. 103 However, although this might be a
deferential standard that a court might apply in reviewing some aspects of a decision of the
CPUC, it is certainly not the standard that the Commission itself should apply in determining if a
project is feasible. Rather, the Commission is the Lead Agency, not a reviewing court, and must
determine if the Project is “feasible” in the first instance before deciding to issue a CPCN. It
should not apply a “substantial evidence” deferential standard of review to conclusions of the
authors of a CEQA document – indeed, it would clearly be legal error to do so.
In the context of an alternatives analysis, the Commission recognizes and follows CEQA
Guidelines § 15364 as requiring that “the alternatives must be capable of being accomplished in
a successful manner within a reasonable period of time taking into account economic,
environmental, legal, social, and technological factors.” 104 To that end, the Commission’s EIR
preparation as lead agency routinely includes consideration of “legal feasibility,” including
whether an “alternative involve[s] lands” that have legal protections or requirements that might
“prohibit or substantially limit the feasibility of permitting” the project facilities. 105
The Final EIR/EIS recognizes, as it should, that the Commission does not have legal
jurisdiction to determine water rights – rather, that function is left to the courts. The document
then states that a “feasibility” analysis in an EIR/EIS “is not the same as the more exacting level
of detail, proof and legal arguments that would pertain in a court challenge on water rights.” 106
However, this argument trivializes the importance of the Commission’s feasibility finding for the
Project. It is absolutely critical that the Commission satisfy itself that the Project is definitely
feasible and that there is a strong assurance that these water rights will be obtained and can be
successfully implemented within a reasonable period of time. As the Final EIR/EIS observes,
feasibility includes determining that the Project is “viable, cost effective and can timely be
implemented.” 107
The most significant problem evident in the Final EIR/EIS’s discussion of the difference
between the Commission’s feasibility finding and a court’s potential adjudication of this issue
103
Subsection 8.2.3 (Master Response 3: Water Rights) at p. 8.2-5.
104
D.04-08-046, at p. 88.
105
See, http://www.cpuc.ca.gov/environment/info/dudek/sbsrp/c_alternatives.pdf .
106
Subsection 8.2.3 (Master Response 3: Water Rights) at p. 8.2-5.
107
Id., at p. 8.2-6.
27
many years in the future is that the Commission appears to be abdicating its responsibility to
closely examine and resolve this issue. The fact that there is no permit or authorization that
CalAm can obtain to establish water rights should be a huge concern to the Commission. The
idea that CalAm simply plans to start pumping groundwater without any authorization and then
will almost certainly be embroiled in a major water rights lawsuit or adjudication (many of
which last 5-10 years or longer) is not by any measure a viable or feasible path to establishing a
water source that is the foundation of a $300+ million project paid for by ratepayers. Rather, it is
more in the nature of a “Hail Mary pass” in football parlance. The Commission must and should
insist on a much greater level of water rights certainty before authorizing a CPCN or it should
deny the CPCN on this basis.
As explained below, the Project’s claim to “future water rights” fails to meet any
feasibility standard. There is, at best, a slight likelihood of success and the reality is that it will
almost certainly generate years of litigation, and it will never be implemented in a cost-effective
manner in a reasonable time.
c. It Is Undisputed That CalAm Does Not Have Any Current Rights To Extract
Water From The Salinas Valley Groundwater Basin.
California courts typically classify water rights in an underground basin in three
categories as: (1) overlying rights, (2) appropriative rights, or (3) prescriptive rights. 108 An
overlying right is the “right to take water from the ground underneath for use on his land within
the basin or watershed; it is based on the ownership of the land and is appurtenant thereto.” 109
An appropriative right is the right to take “surplus water” in the basin and is established by the
actual taking of such water. 110 A prescriptive right is not established by the taking of surplus or
excess water – rather, it is the “wrongful” appropriative taking of water in a basin that is not
surplus, but which ripens into a right through open and notorious adverse use for the required
prescriptive period. 111
There are important characteristics of these rights that must be recognized. Overlying
rights have priority over all prescriptive rights (no matter when established) and, “[a]s between
appropriators, … the one first in time is the first in right, and a prior appropriator is entitled to all
108
City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224, 1240 (2000)(“Barstow”).
109
Id., quoting from California Water Service Co. v. Edward Sidebotham & Son, 224 Cal. App. 2d 715,
725 (1964).
110
Id., Barstow, supra, at p. 1241.
111
Id.
28
the water he needs, up to the amount he has taken in the past, before a subsequent appropriator
may take any…” 112 Thus, any new appropriator who would attempt to establish water rights in
the Basin would hold rights junior to all present and future water users and to all prior
appropriative water rights, including those held by any water agencies. Finally, it is well
accepted that the burden is on the claimant of a new appropriative right “to prove that a surplus
exists.”113
The key inquiry in determining whether an appropriative right can be established is
whether there is “surplus water” in the Basin and the burden of proving the existence of a surplus
is on the appropriator seeking to use the surplus. 114 In situations where an appropriator attempts
to take water in a basin that is not surplus (often characterized as taking water beyond the safe
yield or safe net yield of the basin), the courts have not hesitated to issue injunctions enjoining
such appropriation. 115
There certainly have been situations in which appropriators have simply started pumping
water in a basin when it is unclear whether the basin is in a condition of overdraft, and an
appropriator has been able to establish a prescriptive right to water by doing so for the requisite
prescriptive period. This is deemed to be a “wrongful” taking of groundwater that can lead to the
recognition of water rights. However, as explained below, that approach is not available to
CalAm under any circumstances here because SGMA explicitly bars the establishment of
prescriptive rights in this Basin.
In this case, it is undisputed that CalAm has no overlying water rights, no existing
appropriative rights, and no existing prescriptive water rights for the Project in the SVGB.
Indeed, it has no accepted path forward to obtain any overlying water rights in the future because
it will not be using the water on land it owns in the Basin. It also is barred from establishing
future appropriative water rights in “surplus water” because it is undisputed that this basin is
critically overdrafted (as designated by the California Department of Water Resources for
purposes of SGMA). There is no reasonable argument that there is a safe yield available for
112
Id.
113
Hutchins, The California Law of Water Rights (1956), at 455.
114
Allen v. California Water & Tel. Co., 29 Cal. 2d 466, 481 (1946)(“Allen”).
115
E.g., Barstow, supra at 1238-39 and 1253-54 (court upholds injunction protecting the rights of
overlying landowners against claims by appropriators); Allen, supra at 481 (court upholds injunction
against water company attempting to extract water for export from basin in which no surplus water
exists); Corona Foothill Lemon Co. v. Lillibridge, 8 Cal. 2d 522 (1937)(court enjoins the pumping and
exportation from an underground basin because there is no surplus water).115
29
appropriation from the Basin. Finally, since SGMA established an absolute bar on appropriators
obtaining prescriptive water rights in high priority basins after January 1, 2015, CalAm has
missed the deadline for establishing future prescriptive rights in the SVGB.
In sum, given the recognized overdraft condition of this Basin and the legal requirements
imposed on it by SGMA, it is undisputed that CalAm has no current right to water in the Basin
and no path forward to establish future overlying or prescriptive rights. It also lacks any
conventional avenue to establishing appropriative rights given the undisputed overdraft
condition. Rather, it hope to establish any rights hinge on its ability to prove that it can
“develop” water or use “salvaged water,” but this is a very limited exception, and there is no case
law on point to support this novel use as explained in the next section.
Thus, in stark contrast to almost any applicant that has or likely will come before the
Commission, CalAm lacks any rights today, or any recognized or approved path, to obtain the
water that is the most important component that is needed to make the Project a success. Indeed,
it differs greatly from the Commission’s decision in CalAm’s application for the Coastal Water
Project in this same basin. In that matter, MCWD was a participant in that project and would be
using a portion of the water produced within the Basin.
d. CalAm Plans To Assert A Novel, Risky And Untested Right to “Salvage” Water
That In Fact Has No Real Chance Of Success.
As explained in Master Response 3 of the Final EIR/EIS, CalAm plans to assert at a later
time that it is creating “developed water” or “salvaged water” which is “surplus” to the water
currently in the Basin and which therefore will supposedly be available for appropriation. 116 It is
based on CalAm’s unsupported belief that any water in which the Total Dissolved Solids
(“TDS”) exceed the amount of 500 milligrams per liter (“mg/l”) is “waste” because it supposedly
is not available for “beneficial uses” by Basin users. 117 However, there many fundamental flaws
in this assertion.
First, this analysis completely ignores the State Board’s important and long-standing
Sources of Drinking Water Policy (No. 88-63). This policy, which is incorporated into all Basin
Plans in the State, provides that all groundwater in the State (regardless of its TDS concentration)
is presumptively considered suitable or potentially suitable for the drinking water beneficial use.
116
Subsection 8.2.3 (Master Response 3: Water Rights), at p. 8.2-8.
117
Id., at pp. 8.2-8 - 8.2-9.
30
The groundwater which CalAm hopes to extract from its slant wells is thus suitable or potentially
suitable for this beneficial use and cannot constitute “waste.” The only way to change this
beneficial use designation is to have the Central Coast Regional Board and State Board de-
designate this use of the water in that particular basin or geographic area, which has never
occurred here. It is possible to have the Board de-designate this use, but only in very limited
circumstances, including if the TDS in the water exceeds 3,000 mg/l and “it is not reasonably
expected by Regional Boards to supply a public water system.”
Even if CalAm attempted to obtain such a de-designation (which it has not), it would be
unsuccessful both because there are large areas of water in this Basin that is under the 3,000 TDS
standard and there are a number of providers using this water in this and nearby basins, which
eliminates use of the second prong of the test. Accordingly, this water is already considered
drinking water and is not eligible to be considered as “developed” or “salvaged” water under any
theory.
Second, even apart from Resolution No. 88-63, CalAm has chosen an artificially low
concentration of TDS to support its claims that large amounts of water in the Basin are
supposedly waste. As explained in Marina’s Final EIR/EIS Comments, Appendix 1 (Technical
Memorandum of expert Mike Tietze), there are many other State standards that provide higher
TDS levels for determining whether water is potentially available for beneficial uses. Thus, for
example, the federal Clean Water Act defines groundwater containing less than 10,000 mg/l as
an Underground Source of Drinking Water. 118 CalAm’s selection of 500 mg/l as a TDS level for
determining whether water is available or potentially for a beneficial use lacks substantial
evidence in the record and by no means defines a concentration at which water should be
considered “waste.”
Third, the Final EIR/EIS incorrectly states what constitutes “surplus water” in
groundwater that is subject to appropriation and confuses this concept with developed or
salvaged water. This leads to the erroneous conclusion that desalinated water would be “surplus
water.” 119 In fact, “surplus water” in the groundwater context is a well-understood concept that
refers to when there is “surplus water” already existing in the Basin above the safe yield that is
118
40 C.F.R. § 144.3.
119
Subsection 8.2.3 (Master Response 3: Water Rights), at 8.2-10.
31
available for appropriation. It is beyond dispute that there is no “surplus water” available in this
Basin as determined by DWR in its “critical overdraft” determination.
Fourth, the Final EIR/EIS makes the massive error of assuring the reader that an
appropriator’s planned desalination of brackish water in an overdrafted basin for export is an
accepted and feasible avenue to obtaining an appropriative water right. In fact, it would be
unprecedented. Indeed, the Final EIR/EIS has conspicuously failed to cite to even one case in
which a court found that such a right to groundwater could even exist in these circumstances.
We will review these concepts of developed and salvaged groundwater below.
At the outset, there is a key difference between “developed” and “salvaged” water:
Developed water is new water that is added to a stream or basin, while salvaged water is water
already existing in a basin that is “rescued” and restored to the stream or basin. 120 In this case,
the plan by CalAm is properly characterized as an attempt to “salvage” water rather than
“develop” water. However, we will address both types of cases below and, as you will see,
CalAm’s approach does not meet the requirements of either.
One recent case examining developed and salvaged waters in the groundwater context,
which involved adjudication of the Santa Maria Valley Groundwater Basin, is City of Santa
Maria v. Adam, 121 In the pertinent part of the case, the court found that, if an appropriator
imported surface waters from outside the basin into the basin that would not otherwise be there,
this would be “developed water” to which it is entitled to use, even if it is composed of return
flows to the aquifer after the importer already utilized the water. It also held that a person who
“rescued” surface water from a Bureau of Reclamation Project by a dam and allowed it to
infiltrate into the underlying groundwater had salvaged groundwater which it was entitled to later
appropriate. This water was “saved from waste” because it would otherwise have gone down the
river and been lost. 122
120
Hutchins, supra at 383.
121
City of Santa Maria v. Adam, 211 Cal. App. 4th 266 (2012)(“Santa Maria”).
122
The Santa Maria decision identified the case of Pomona Land and Water Co. v. San Antonio Water
Company, 152 Cal. 618, 620 (1908) as one other decision to support this salvaged water principle. In
Pomona, it was determined that a litigant had salvaged surface water because it had detained behind a
dam the percentage of water that was calculated to be lost through seepage, percolation or evaporation.
The Pomona court found that this was “rescued” water that could be used by the litigant. As you can see,
one of these “salvage” cases (Santa Maria) involved the importing of new surface water that infiltrated
into a groundwater basin and the other (Pomona) involved the use of surface water that had been saved
through construction of a dam.
32
There are only a handful of other “salvaged water” cases. One case involving surface
water was a situation where water was saved from evaporation/absorption or where a pipeline
was established that avoided loss of water in a streambed. 123 There are also a few cases in the
“developed water” context, but they all involve similar situations where water is saved or added
to the supply through use of a tunnel or improved spring. 124 These cases essentially constitute
the universe of cases relating to “salvaged water” rights.
As can be seen, none of these cases bears any relationship to the specific “salvaged
water” theory that CalAm is proposing to utilize here. CalAm is not planning to import new
water from outside the basin to add to the basin, or to rescue new surface water for percolation
into groundwater, or to add a tunnel or spring improvement to increase the flow of water into
groundwater. Rather, it asserts that it will taking brackish water already present within the basin
that it labels as “waste” (contrary to applicable state and federal policy) and will be exporting it
out of the basin after desalination treatment. None of these cases provide any legal support for
this theory and it is not even a plausible or reasonable argument for the extension of existing case
law. Although we understand that CalAm would like to make this argument and establish new
law, this effort has almost no chance of success and should not be the basis for approving this
Project.
It is remarkable that the Final EIR/EIS fails to recognize or acknowledge the non-existent
legal underpinnings and the highly risky and unproven nature of this legal theory. Neither the
Draft nor the Final EIR/EIS provides any citation of legal authority to support this theory or its
application in this circumstance. Rather, it simply asserts that this right exists and refers to the
State Water Board Report as authority, which we will address in the next section.
e. Contrary To The Final EIR/EIS Statements, The State Board Report Did Not
Determine That CalAm Has A Likelihood Of Demonstrating That It Is Entitled
To Appropriate Water On a Developed or Salvaged Water Theory.
In its 2013 Report (appended to the Final EIR/EIS as Appendix B2), the State Board was
very circumspect in opining on whether the developed or salvaged water theory would be a
reasonable or feasible basis for the Project. Its ultimate conclusion was that “if overlying
groundwater users are protected from injury, appropriation of water consistent with the
123
Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182 (1896).
124
See, e.g., Cohen v. La Canada Land & Water Co., 151 Cal. 680 (1907); Churchill v. Rose, 136 Cal.
576 (1902).
33
principles discussed in this report may be possible.” 125 This is a far cry from stating that it is
likely or definitely feasible – rather, it instead regarded this approach as uncertain and risky.
The State Board Report has only a short discussion of the developed/salvaged water right
theory, which essentially tracks what Marina discussed in the prior section. The primary cases it
cites are the Cohen, Pomona and Wiggins cases addressed in the section above, none of which
involve similar facts, and essentially states that CalAm might be able to use this as a theory to
obtain water. 126 The only additional case it identifies on this point, Lodi v. East Bay Municipal
Utility District,127 does not add anything new to the discussion because it involves the addition of
new surface water to a groundwater basin.
In short, CalAm’s proposed salvaged water theory in this desalination context (or
anything similar to it) is completely untested, unsupported by existing precedent, only
recognized by the State Board as a possible legal basis for appropriation, and has almost no
chance of success.
f. Since CalAm Has Not Demonstrated That There Will Be No Injury to Lawful
Water Users, and Substantial Scientific Evidence Has Demonstrated That There
Likely Will Be, The Water Right Almost Certainly Will Not Be Established And
The Project Is Therefore Not Feasible.
The next impediment to establishing water rights is that CalAm must demonstrate that the
Project “will not harm or cause injury to any other legal user” of the groundwater. This “no
injury” rule has been a bedrock principle of California surface water and groundwater law since
the 1800s. It is codified in multiple sections of the Water Code with respect to surface waters. 128
A landmark California Supreme Court case applied the “no injury” rule to exports from
groundwater basins. 129 This case was an action by overlying and prior appropriative users to
enjoin a water company from exporting water from an underground river basin. The plaintiffs
alleged that extraction of the large quantity of water which the company proposed to export
would leave insufficient water for other users and would impair the water quality (salinity and
125
Final EIR/EIS, Appendix B2, Executive Summary, at p. ii (emphasis added).
126
Id. at pp. 37-38.
127
Lodi v. East Bay Municipal Utility District, 7 Cal. 2d 316 (1936)
128
See, e.g., Cal. Water Code § 1702 (a change to an appropriative water right requires a finding “that the
change will not operate to the injury of any legal user of the water involved”); Id. § 1706 (changes can be
made “if others are not injured by such change”); Id. § 1727 (a temporary change requires demonstration
that it “would not injure any legal user of the water”). See also: State Water Res. Control Bd. Cases, 136
Cal. App. 4th 674, 736-44 (2006).
129
Allen v. Cal. Water and Tel. Co., 29 Cal. 2d 466 (1946).
34
other components) for domestic and agricultural use. The trial court agreed and found that there
was no surplus available for export because all of the water was necessary to meet the
“paramount rights” of the overlying users and prior appropriative rights. Moreover, the court
found that the water company could not establish that no injury to water quality or water levels
would occur. The Supreme Court affirmed these findings although it adopted slight
modifications to the injunction.
The Allen case illustrates both the extreme difficulties that a proposed water exporter
such as CalAm will face in meeting the stringent “no injury” rule and the likelihood of a court
injunction barring its plans based on the current situation. According to the State Board Report,
to show lack of injury, CalAm would need to demonstrate no injury to legal users in each of the
following subject areas: (1) the amount of fresh water it will use, (2) the lack of pumping
impacts to the water table level in existing wells, (3) that pumping is not affecting seawater
intrusion within the Basin, (4) the plans for return of fresh water to the Basin if CalAm plans to
propose a physical solution, and (5) the potential future impacts of changes in the fresh water and
seawater on groundwater rights. Moreover, this demonstration must be made not only for
existing users, but also for overlying landowners and other appropriators using the Basin who
can be reasonably expected to extract groundwater in the future. 130
The State Board Report does not state that CalAm is likely to meet any of these tests or
establish water rights. Rather, the most the Report can state is that it “may be possible” for
CalAm to establish a right to extract this groundwater. 131 And the Report repeatedly identifies
many areas of missing information that prevented it from drawing any definitive conclusions,
including whether the aquifers are confined or unconfined, what the actual extent of water use is,
specific information about the aquitards, whether gravity or pumping wells will be used (because
pumping wells generally have more extensive impacts), key hydrogeological information, and a
credible groundwater model that also examines cumulative impacts. 132 Given these and other
“significant unknowns,” the Board could not provide any definitive conclusions regarding this
Project’s water rights or its potential effect on water quality.
130
Final EIR/EIS, Appendix B2, State Board Report, at p. 55 (the analysis must examine “all present and
potential reasonable potential uses,” in part because “[p]otential overlying uses are often inherently
implicated in determining whether a long-term surplus actually exists”).
131
Final EIR/EIS, Appendix B2, State Board Report, at p. ii.
132
Id., at pp. i-iii, 5, 21-23, 50-51.
35
The Final EIR/EIS discussion of CalAm’s potential water rights in Chapter 2 (Water
Demand, Supplies, and Water Rights), Section 2.6 (beginning at page 2-31), fails to address or
resolve these critical data gaps and legal issues. It confuses the concept of “significant impacts”
under CEQA with the “no injury” water law rule (which is not based on or equivalent to a
significant impacts CEQA test), fails to address the missing technical information identified by
the State Board Report, and simply does not analyze the series of legal hurdles that CalAm
would need to surmount to establish such rights. It also ignores the fact that, if there is
uncertainty regarding whether a type of injury is occurring, this would prevent CalAm’s future
establishment of a water right because CalAm would have failed to meet its proof burden.
Rather, in contravention of over a century of water rights law, the Final EIR/EIS turns this proof
burden on its head: the Final EIR/EIS asserts that since it has not found “significant impacts” to
a few water supply and quality issues, then CalAm will meet its burden to show that no injury to
legal users is present.
It is not surprising that, after creating this faulty analytical framework, the Draft EIR
improperly concluded: “it seems reasonable to conclude that the MPSWP would not cause harm
or injury to Basin water rights holders such that CalAm would possess the right to withdraw
water from the Basin to produce ‘developed water’ for beneficial use and under the physical
solution doctrine.” 133 The section also points out that no water right is needed for seawater
extraction and states that no permit is needed for groundwater withdrawal (implying that this
somehow makes it more likely that the right will exist). These assertions, perpetuated in the
Final EIR/EIS, 134 reflect a misunderstanding of water rights procedure and jurisprudence. It is
undisputed that the proposed slant wells will extract substantial amounts of groundwater (which
the State Board Report asserts could be as high as 762-3250 acre-feet each year), so the seawater
point is immaterial. Since no permit system exists for the water right CalAm hopes to establish,
CalAm’s path to establish such rights will be more difficult and time-consuming than if a permit
system was available.
133
29, 2017)), at p. 8.5-17.
134
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), Section 2.6 (Water Rights),
Subsection 2.6.2 (Project Water Rights), at pp. 2-38 - 2.39.
36
Thus, any claim to such water rights likely will be tied up for years in judicial and/or
regulatory water rights proceedings, indefinitely delaying the onset of the Project. In fact, the
available hydrogeologic and scientific data strongly indicate that the Project will not be able to
surmount the three tiers of legal hurdles for the following reasons:
• It is undisputed that the Basin is “critically overdrafted” – therefore, no surplus water is
available for export.
• Large amounts of groundwater, including some municipal water for the City of Marina,
are extracted by current legal users from the 180/400 Foot Aquifers in which CalAm
proposes to install its slant wells.
• It appears from scientific studies that there could be injury to water quality in the 180/400
Foot Aquifers and potentially the 900 Foot Aquifer given the communication between
these aquifers and other available data.
• The slant wells are a new and unproven technology as described in the comments on
chapter 3 herein.
• The groundwater model described in the Final EIR/EIS does not credibly or sufficiently
analyze the impacts of the proposed slant well extractions, thereby failing to demonstrate
the lack of injury to legal users.
• The CalAm replacement water proposal recited in the Final EIR/EIS fails to meet legal
requirements. Rather than restoring the groundwater resources in the Basin through
injection or other means, it involves delivery of water to a few selected users in the hopes
that they will cease pumping groundwater in that amount. It is unworkable and infeasible
because it does not restore Basin groundwater hydrology and supplies, protect a full
range of legal users, or contain necessary regulatory controls.
In sum, the Final EIR/EIS analysis of water rights is inaccurate, legally flawed and
factually unsupported and therefore legally inadequate. There are a variety of injuries to present
and future legal users of this groundwater that have not been analyzed and, if the technical
information is not sufficient to demonstrate that an injury is not occurring, CalAm will not
establish any water right. The three tiers of legal criteria that CalAm must navigate to establish
an appropriate water right are extremely daunting and must be supported by credible scientific
evidence every step of the way. It appears unlikely that CalAm will ever be able to successfully
run this legal gauntlet. Although it is theoretically possible (as the State Board Report
recognized when it said that it “may be possible” for CalAm to do so), it is highly unlikely that
CalAm ever can or will. The absence of any demonstrated water rights is a fundamental Project
37
deficiency that prevents the Project from being “feasible” at the current time within the meaning
of applicable law.
4. The Project’s Plans To Export Water Out Of This Basin Conflict With And Violate
The Agency Act.
In 1990, the California Legislature adopted the Monterey County Water Resources
Agency Act (“Agency Act”). 135 Section 21 of the Agency Act states:
“[n]o groundwater from that basin [Salinas River Groundwater Basin] may be
exported for any use outside the basin, except that use of water from the basin on
any part of Fort Ord shall not be deemed such an export. If any export of water
from the basin is attempted, [the Monterey County Water Resources Agency] may
obtain from the superior court, and the court shall grant, injunctive relief
prohibiting that exportation of groundwater.” 136
Both CEQA and NEPA require conflicts with existing plans and law to be identified and
addressed. For example, the Council on Environmental Quality (“CEQ”) regulations
implementing NEPA contain very specific requirements, directly implicated here, that
“statements [EISs] shall discuss any inconsistency of a proposed action with any approved State
or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the
statement should describe the extent to which the agency would reconcile its proposed action
with the plan or law.”137
It is undisputed that the Project proposes to extract groundwater from the Salinas Valley
Groundwater Basin in the geographic area covered by the Agency Act for export to non-
overlying users. Accordingly, the proposed Project extraction and export plans are directly
prohibited by the Agency Act.
In its Draft EIR/EIS Comments, the City explained that the Agency Act explicitly
provides that “[n]o groundwater from that basin [Salinas Valley Groundwater Basin] may be
exported for any use outside the basin” except for one exception relating to Fort Ord not
applicable here. 138 In response to the Draft EIR/EIS’s unwarranted conclusion that the Project
probably would be consistent with the Agency Act, the City explained how there is no textual,
135
Cal. Water Code App., § 52.
136
Cal Water Code App. § 52-21; emphasis added.
137
40 C.F.R. § 1506.2(d) (emphasis added).
138
29, 2017)), at p. 8.5-20.
38
legal or factual support for the Lead Agencies’ interpretation that the export ban in the Agency
Act does not really mean what it says. 139
In response to the many similar comments it received on this issue, the Lead Agencies
prepared Master Response 4 in the Final EIR/EIS on this topic. 140 With regard to the Agency
Act, Master Response 4 states that the word “export” is not defined in the Act and that it thinks a
reasonable interpretation of how to get around the export ban would be the delivery of “return
water” to CSIP pursuant to a formula which CalAm has proposed for calculating which water is
Basin groundwater covered by the ban. It also cites the Regional Board Report as supporting
this view of the Agency Act and asserts vaguely that the Monterey County Water Resources
Agency “indicates some level of endorsement” for supposedly achieving compliance with the
Agency Act. 141
However, none of these contentions have any validity. First, the direct export prohibition
in the Act is unequivocal and means exactly what it says. Section 21 states “no groundwater
from that basin may be exported for any use outside of the basin. . .” (Emphasis added.) CalAm
would like to reinterpret “groundwater” to mean “fresh water” or “usable groundwater,” but that
is not what the prohibition states. Indeed, when the Legislature meant to refer to these different
concepts, it did so. For example, in Section 8 of the Agency Act, the Legislature referred to
“usable groundwater” when it referred to the prevention of groundwater intrusion, but again
utilized only “groundwater” when referring to the exportation prohibition. It is undisputed that
groundwater refers to all water under the ground within the County boundaries, which is exactly
where this extraction would take place. 142
The Final EIR/EIS’s interpretation of what constitutes groundwater has no textual or
other support. CalAm would like “groundwater” to mean only water that has TDS
concentrations of less than 500 mg/l, which it defines as “fresh water.” However, this definition
of “fresh water” is only a definitional construct of the Final EIR/EIS and is certainly nowhere to
be found in the Agency Act. As explained above, the Legislature knew how to distinguish
between “groundwater” and “usable groundwater” when drafting the sections of the Act and
139
Id., at pp. 8.5.20 – 8.5.21.
140
See Final EIR/EIS, Chapter 8 (Draft EIR Comments and Responses), Section 8.2 (Master Responses),
Subsection 8.2.4 (Master Response 4: The Agency Act and Return Water), at pp. 8.2-17 – 8.2-19.
141
Id., at p. 8.2-19.
142
SWRCB Resolution No. 88-63.
39
chose the more comprehensive term of “groundwater” for the export prohibition. Accordingly,
the tortured attempt in the Final EIR/EIS to argue that “groundwater” really means “fresh water”
of a certain salinity has no chance of success.
Second, the proposed Return Water Settlement Agreement, which contains the “return
water” concept, provides no legal or factual relevance to the Agency Act extraction and export
prohibition. This is a partial settlement agreement entered into by some parties to the proceeding
(but not the City of Marina, Marina Coast Water District or certain other parties) which has
never been approved by the Commission and is therefore of no force and effect. This kind of
partial settlement is of no relevance in interpreting the Act or in determining whether it has been
violated. It certainly does not authorize, and the Commission itself would not have the power to
authorize, an activity that is directly prohibited by this State legislation.
Third, it is absolutely clear from the Agency Act that MCWRA has no authority to waive
or vary this export prohibition. Although, in Section 9 of the Act, it is given a list of explicit
authority, there is no grant of authority to waive or modify this provision. Indeed, the only
power it has in relation to the prohibition in Section 9 is to “[p]revent unlawful exportation of
water from the agency.” This limited responsibility relating to this prohibition is repeated in
Section 21. CalAm refers to other inapplicable powers granted to MCWRA, such as “control of
groundwater extractions as required to deter the loss of usable groundwater through intrusion of
seawater” and authority to reclaim and exchange water, but none of these concepts apply to or
vary the exportation provision. Rather, by their terms, they apply only to lawful extractions of
water within the basin.
Fourth, the participation of MCWRA in the unapproved Return Water Settlement
Agreement is of no evidentiary value in interpreting the Act. MCWRA does not make any
statement in the Settlement that the proposed extractions and export will be in compliance with
the Agency Act. Rather, it clearly states that “CalAm shall comply with the Agency Act” and it
adds several further statements therein that it preserves all of its rights under the Agency Act to
contend that CalAm desalination plant extractions violate the Act. 143 The new statement in the
Final EIR/EIS that MCWRA “indicates some level of endorsement” for this interpretation of the
Act is speculative at best and not pertinent because their opinion is of no value in this
143
Return Water Settlement, at p. 9, section 3.
40
situation. 144 It is a weak attempt to transform MCWRA’s clear reservation of rights in the
unapproved Agreement into supposed approval of CalAm’s proposed export of groundwater – it
has no basis and is unreasonable.
It is also important to note that, although MCWRA has authority to enforce the Agency
Act export prohibition, so do other public agencies and citizens, who can directly challenge any
violation of the prohibition or can challenge actions or inactions of MCWRA that are
inconsistent with the prohibition. In addition to their general enforcement powers under law,
public agencies and citizens have explicit authority to challenge actions and decisions of the
agency in court and otherwise. 145 Indeed, Ordinance No. 3709, which partially implements the
export prohibition, declares that any violation of it is a public nuisance, 146 which also is directly
enforceable by citizens. Thus, the participation by MCWRA in a settlement, whether approved
or unapproved, does not in any way prevent a court from exercising its independent authority to
determine if a violation of the export prohibition has occurred.
In this same vein, Monterey Peninsula Regional Water Authority (“MPRWA”) has
contended in its Opening Brief on CPCN Issues (December 15, 2017) that a court would likely
afford substantial deference to MCWRA’s interpretation of the Act and has cited the case of
Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal. 4th 1 (1998) in support. 147
However, MPRWA is mistaken. In Yamaha, the California Supreme Court reversed an appellate
court holding that had accorded such deference to an administrative agency interpretation
because it independently found that the legislation did not mean what the agency said it did. The
court stated that “the binding power of an agency’s interpretation of a statute or regulation is
contextual” and that quasi-legislative interpretations (adoption of regulations on a specific topic
delegated to the agency in the statute) are entitled to the greatest amount of deference. 148 On the
other hand, the court stated that “[t]he ultimate interpretation of a statute is an exercise of the
judicial power…” and that “[c]ourts must, in short, independently judge the text of the
statute.” 149
144
Final EIR/EIS, Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.2 (Master Responses),
Subsection 8.2.4 (Master Response 4: The Agency Act and Return Water), at p. 8.2-19.
145
See, e.g., Agency Act, Sections 39 and 82.
146
MCWRA Ordinance No. 3709, Section 1.01.20(B).
147
MPRWA Opening Brief, at p. 8 and fn. 36.
148
Id., at pp. 7-8.
149
Id.
41
The Yamaha case is precisely on point and compels a conclusion that a MCWRA position
regarding the export ban articulated in a settlement agreement will not receive any judicial
deference. MCWRA has not been delegated any authority to promulgate regulations regarding
the basin export prohibition, so there is not any quasi-legislative authority being exercised here.
Moreover, a position in a settlement agreement is not the kind of consistent and long-standing
regulation or policy interpretation that would be entitled to any deference. To the contrary,
based on Yamaha, a court would exercise its own independent authority to determine if the
export of groundwater violates the state legislative prohibition.
Fifth, the finding of the Commission regarding a return water concept in a different
proceeding and the preliminary advice of the State Water Board in the 2013 State Board Report
would be of no evidentiary value and would receive no deference in a court proceeding relating
to this prohibition. Neither agency has any direct authority to interpret this legislation.
Moreover, this is not a situation where the Commission could exercise preemption because this
is State legislation.
Sixth, the Agency Act does not provide any textual support for an argument that a blanket
prohibition on export actually means that export is allowed so long as the “net effect” (with
return groundwater) is not to take water out of the basin. This “net effect” approach is based on
the faulty and unsupported assumption that any water with a TDS level above 500 mg/l TDS is
“waste.” The Agency Act has a broad range of groundwater purposes, which include “to
increase, and prevent the waste or diminution of the water supply in the agency, including the
control of groundwater extractions as required to prevent or deter the loss of usable groundwater
through intrusion of seawater” and “to prohibit groundwater exportation” from the Basin. 150
In sum, contrary to the original and new information provided in the Final EIR/EIS, the
export ban in the Agency Act is a fatal problem for the Project because it is an unequivocal
prohibition on extraction and export of groundwater directly on point. It makes the Project
“infeasible” and constitutes a clear legal constraint that cannot be overcome. The assertions of
the Final EIR/EIS authors to the contrary are no more than wishful speculation unsupported by
substantial evidence.
150
Cal. Water Code App. § 52-8.
42
5. The Project Will Violate The Groundwater Extraction Limitation Embedded In The
CEMEX Property Annexation Agreement.
In 1996, the City of Marina entered into an Annexation Agreement with RMC Lonestar,
the owner at that time of what is now called the CEMEX Property and other parties. 151 In its
Draft EIR/EIS Comments, Marina recited that one main purpose of the Annexation Agreement
was to ‘“help reduce seawater intrusion and protect the groundwater resource and preserve the
environment of the Salinas River Groundwater Basin.’” 152 One key part of this Agreement was a
condition, that became effective in 1996, limiting the “withdrawal and use of groundwater from
the Basin” to 500 afy. This provision is applicable to all successors and assigns, including
CalAm. 153
The Draft EIR/EIS concluded that this groundwater withdrawal limitation “does not
apply” to the Project because: (1) this limitation supposedly only came into effect when the
property is formally annexed, and (2) the limitation would not be applicable to the Project if the
“return water” concept was used, thereby allegedly making the “net effect” that no water is being
extracted from the Basin. 154 In its Draft EIR/EIS Comments, the City explained that the first
contention was wrong and had no textual support in the Agreement and that the second
contention was not authorized by the Agreement and did meet the seawater intrusion reduction,
groundwater resource protection and environmental protection purposes of the Agreement. 155
Although the Draft EIR/EIS also stated that a new reinjection well could instead be drilled to
meet these goals, the City pointed out that this new component was not in the project description
and its environmental impacts had not been studied.
The Lead Agencies substantially changed their position on the meaning and interpretation
of the Annexation Agreement in the Final EIR/EIS, although they conclude that “it appears that
151
The Annexation Agreement has been admitted into evidence as Ex. MCD-1 (MCWD (Lowrey)). The
citations in this section refer to paragraphs or sections of the Agreement in this exhibit.
152
Final EIR/EIS, Chapter 8 Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.5 (Local
Agency Comments and Responses), Subsection 8.5.1 (Local Agency Comment Letters – City of Marina
(March 29, 2017)), at pp. 8.5-21 – 8.5-23.
153
Ex. MCD-1, Annexation Agreement, at ¶ 15.
154
Final EIR/EIS, Chapter 8 Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.5 (Local
Agency Comments and Responses), Subsection 8.5.1 (Local Agency Comment Letters – City of Marina
(March 29, 2017)), at p. 8.5-22.
155
Id.
43
operation of the MPWSP would still be feasible.” 156 First, the Final EIR/EIS deletes all
references to an injection well solution. Second, it admits its error on the first contention above,
stating: “Per the terms of the Annexation Agreement, it appears that the 500 afy groundwater
withdrawal limitation may currently apply to the CEMEX parcel, though annexation has not
occurred.” 157 However, it adds two new arguments: (1) that the intent of the Agreement is to
limit groundwater pumping from “the deeper aquifers;” and (2) that this limitation would
supposedly not apply to “developed water” and that the return water would supposedly “keep the
Basin whole.” 158
However, none of these arguments has any validity. The “return water/net effect”
argument has no legal basis and no real chance of success. The unsupported statement that the
return water program would “keep the Basin whole, serving the purpose of the Annexation
Agreement” is not correct for the same suite of reasons identified in the Agency Act section.
The Annexation Agreement is designed to reduce seawater intrusion, protect groundwater
resources and preserve the environment of the Basin. It is simply not credible to assert that
delivery of water to Castroville customers will have all of these positive hydrologic and
environmental effects on the Basin.
The two new arguments are on equally flimsy grounds. There is absolutely no basis for
the assertion that the Annexation Agreement is intended to limit pumping from “the deeper
aquifers” and supposedly “is not intended to limit brackish water pumping from the shallow
aquifers.” The Agreement states, in relevant part, that “Lonestar shall limit withdrawal and use
of groundwater from the Basin to Lonestar’s historical use of 500 afy of groundwater.” 159 It is
not limited to any particular aquifer in the Basin and, given the care with which the Agreement
was drafted, a particular aquifer would have been identified. Moreover, the seawater intrusion
issues it identifies were most prominent in the shallow aquifers, so it would make no sense to
construe the Agreement to mean that pumping in the shallow aquifers was allowed. The Final
EIR/EIS provides no factual or legal authority for this contention. This speculative argument is
sure to be a “non-starter” with a court.
156
Final EIR/EIS, Chapter 2 (Water Demand, Supplies, and Water Rights), Section 2.6 (Water Rights),
Subsection 2.6.4 (Effect of Annexation Agreement), at p. 2-43
157
Id. at p. 2-43.
158
Id.
159
Ex. MCD-1, Annexation Agreement, at § 7.2.
44
The second new argument is that this extraction prohibition would not apply to
“developed water” in the Basin, but only applies to exercising of overlying landowner rights.
However, once again, this is not a distinction made in the Agreement. The pumping limitation
applies, without any limitation, to withdrawal and use of groundwater by CEMEX and its
successors and assigns, and has no limitation on the exercise of certain kinds of rights. Since the
purpose was to protect the Basin from overpumping, it also is nonsensical to interpret it as only
barring pumping for overlying rights, but somehow allowing the use of appropriate rights to
pump 20 times that amount of groundwater and export it out of the Basin.
In short, the Annexation Agreement clearly and directly bars CalAm’s proposed
groundwater extraction at the CEMEX property site. Accordingly, it makes the Project
infeasible at this location.
B. Project Description
In its Draft EIR/EIS Comments, the City explained that is essential that the project
description in an EIR/EIS be accurate, stable and include all elements of a Project. 160 The Draft
EIR/EIS failed to meet these standards in the respects identified below. These comments
described the deficiencies of the Draft EIR/EIS in several key areas. Unfortunately, as described
below, these deficiencies have not been corrected in the Final EIR/EIS and the Project
description is still inadequate.
1. The Final EIR/EIS Incorrectly And Misleadingly States The Location And Source
Of The Water For The Project.
The Draft EIR/EIS repeatedly and inaccurately asserted that the Project’s water source is
seawater and that the Project’s slant wells “would draw seawater from beneath the ocean
floor.” 161 The wells that will accomplish the extraction of seawater under the ocean floor “would
be drilled from an onshore location and would extend under the seafloor within MBMNS using a
160
29, 2017)), at p. 8.5-23. See, e.g., Dry Creek Citizens Coal. v. Cty. of Tulare, 70 Cal. App. 4th 20, 26
(1999) (an EIR needs to be “prepared with a sufficient degree of analysis to provide decision makers with
information which enables them to make a decision which intelligently takes account of environmental
consequences”); County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 192-93 (1977).
161
29, 2017)), at p. 8.5-23.
45
36-inch- to 22-inch-diameter steel casing.” 162 However, these descriptions incorrectly described
the location and source of the Project source water because only a very small percentage of each
well would extend beneath the ocean floor within the MBNMS (defined as beyond the mean
high water line), ranging from 7 percent to 25 percent of the total length, and one well would not
extend under the ocean at all. 163 Thus, 75-93 percent or more of the water captured by the wells
would be withdrawn from groundwater aquifers within the City of Marina, not from areas under
MBNMS jurisdiction.
This is an important distinction that strikes at a fundamental misconception at the heart of
the Project. This Project is not an ocean water desalination project. Rather, it is specifically
targeted to extract groundwater from the Dune Sand Aquifer and 180/400 Foot Aquifers beneath
land under Marina’s jurisdiction (rather than the MBNMS) that it recharacterizes as “seawater”
based on a faulty argument that it is too saline for use by the current legal users. However, both
State Board Resolution No. 88-63 (discussed in the chapter 4.4 comments) and the Water Code
establish that all underground water not in a defined channel is groundwater. 164 The quality of
this water may be degraded by seawater intrusion, but that does not somehow transform this
groundwater in aquifers underlying the City of Marina into ocean water.
In the Final EIR/EIS, the Lead Agencies attempt to address these factual
misrepresentations. They now assert that the slant wells will extract “water” rather than
“seawater” from groundwater aquifers “that extend beneath the ocean floor.” 165 The document
now provides new definitions of fresh water, seawater and brackish water. 166 However, there are
two serious issues that undermine this attempt to provide more transparency.
First, the Final EIR/EIS mistakenly defines “source water” for the Project slant wells as
only consisting of seawater and brackish water (and not fresh water). Thus, in Section 3.1.1.1, it
states that the source water “would be a combination of brackish groundwater representing the
ambient conditions in the water-bearing sediments of the Dune Sand and 180-FTE Aquifers at
the coast, and the seawater that is drawn in through the aquifer sediments to recharge the capture
162
Id.
163
Id., at pp. 8.5-23 – 8.5-24.
164
See, e.g., Cal. Water Code § 10721.
165
Final EIR/EIS, Chapter 3 (Description of the Proposed Project), Section 3.2 (Project Components), at
p. 3-9.
166
Final EIR/EIS, Chapter 3 (Description of the Proposed Project), Section 3.1 (Introduction), subpart
3.1.1.1 (Source Water Components and Definitions), at p. 3-7.
46
zone.” 167 However, this is false. The source water will also contain a large percentage of “fresh
water” as defined in this section. Unfortunately, this is yet another attempt to wrongly assert that
no freshwater or usable groundwater will be extracted by the slant wells.
Indeed, the Final Report of Dr. Rosemary Knight discloses that there a large areas of
fresh and usable groundwater in both the Dune Sand and 180-foot Aquifers. Accordingly, it is
untrue to define the Project’s “source water” to exclude fresh water.
Second, the Final EIR/EIS improperly limits the definition of “fresh water” to an
unreasonably limited standard of no more than 500 mg/l of TDS. 168 This definition flies in the
face of many legal standards of groundwater usable for water and other purposes. For example,
the State Water Board’s longstanding Sources of Drinking Water Policy (Resolution No. 88-63)
establishes that all groundwater is presumptively considered suitable or potential suitable for
drinking water purposes, and it establishes a 3,000 mg/l standard for considering de-designations
for this use. In addition, there are other state and federal standards for drinking water and water
of potential beneficial use identified in Marina Final EIR/EIS Comments, Appendix 1(Mike
Tietze’s Technical Memorandum).
Accordingly, this definition of fresh water, to the extent it attempts to identify water that
could be used as a source of drinking water, is incorrect. However, this issue becomes a major
problem because this 500 mg/l standard is what CalAm proposes to use to calculate its “return”
to the a few users in another part of the Basin to supposedly compensate for its taking of this
groundwater under the City of Marina. If an accurate definition of usable groundwater was used,
the return water amount would be substantially higher.
2. The Final EIR/EIS Still Attempts To Avoid Conceding That The Proposed Slant
Wells Are A Risky And Unproven Technology With No Operational Track Record.
In its Draft EIR/EIS Comments, the City described how the description of the proposed
subsurface slant wells in Section 3.2.1.1 was flawed because it does not disclose to the reader
that slant wells are a new and unproven technology whose long-term reliability is unknown. 169
These comments summarized several recent reports relating to proposed slant well options for
desalination plants in other California coastal cities which contained observations such as “the
167
Id.
168
Id.
169
29, 2017)), at p. 8.5-24.
47
long-term performance of the technology has yet to be confirmed” and “no full-scale
desalination plants exist that employ slant wells for source seawater collection.” 170 Marina
pointed out that nowhere in the Draft EIR/EIS or the Appendix I2 (that evaluated the various
intake options) were these technology, reliability and performance issues discussed. Indeed, they
were not even a factor in selecting among the alternatives. 171
The Final EIR/EIS makes a mild effort to address these deficiencies. Rather than
conceding that this technology is risky and unproven, it spins the description of the wells to be
that they are “a new and evolving technology.” 172 Master Response 11, at section 8.2.11.8, page
8.2-74, attempts to provide more information on this point by conceding that “slant well
technology has not yet been used for a full-scale desalination project.” 173 It then provides some
discussion relating to a few of the other potential desalination projects that the City raised in its
Draft EIR/EIS Comments.
However, some of the new information it provides is significant and creates technical
concerns about the use of slant wells for the Project. For example, the response reveals that the
Final Report of the Independent Advisory Panel for the Huntington Beach Desalination Project
reached several dramatic conclusions about the adverse impacts of slant wells there. First, it
found that “slant wells completed in the Talbert aquifer would draw large volumes of water from
the Orange County Groundwater Basin, which in itself is considered a fatal flaw.” Second, the
panel report concluded that “slant wells tapping into the Talbert aquifer would interfere with the
management of the salinity barrier and the management of the freshwater basin, and further,
would likely have geochemical issues with the water produced from the aquifer.” 174 It then
concluded that the slant wells were not technologically feasible for that project.
The Final EIR/EIS response attempts to minimize the impacts of these dramatic
conclusions regarding feasibility by stating that they “are not directly transferable to the Marina
location due to different hydrogeologic and oceanographic conditions and since the MPWSP is
170
Id.
171
Id., at p. 8.5-25.
172
Final EIR/EIS, Chapter 3 (Description of the Proposed Project), Section 3.2 (Project Components), at
p. 3-9.
173
Subsection 8.2.11 (Master Response 11: CalAm Test Slant Well), at p. 8.2-74.
174
Id., at p. 8.2-75.
48
approximately 1/10th the size of the proposed Huntington Beach project.” 175 However, this
dismissal of these findings is unsupported and unpersuasive. The CalAm Project, like the
Huntington Beach project, will draw large volumes of water from the underlying groundwater
aquifers and very well could interfere with the management of the salinity barrier and the basin.
We believe that the resulting impacts could be the same or even more pronounced. Why isn’t
this Project then technologically infeasible and the slant well impacts also a “fatal flaw”.
The Final EIR/EIS description of the Santa Barbara Subsurface Intake Feasibility Study
is no more encouraging. This Study apparently concluded that “none of the subsurface intake
alternatives considered in this study were determined to be potentially feasible based upon the
study objectives,” with one primary concern resulting in elimination of the slant wells being the
amount of beachfront they would require. 176 The Final EIR/EIS attempts to distinguish this
“infeasibility” finding for slant wells by asserting that there is different “stratigraphy” at the
CEMEX site and a larger beach in Marina on which to locate these industrial slant wells. 177
There are several conclusions to be drawn from this information. First, it qualifies as
significant new information relating to the infeasibility of slant wells that is directly relevant
because it involves commissioned studies at other California coastal cities that have found slant
wells to be infeasible and having a “fatal flaw” when they draw large amounts of groundwater.
Accordingly, the Final EIR/EIS must be recirculated. Second, the Final EIR/EIS and the
appendix involving a choice among alternatives did not provide any of this important
information, which resulted in an unequal selection process and the inappropriate selection of the
slant well technology.
Nowhere in the Final EIR/EIS alternatives section are these technology, reliability and
performance issues for subsurface slant wells discussed. The technical document (Appendix I2)
that discusses the intake options for the Project fails to make any mention that this is a new and
unproven technology with no track record at any desalination plant in the world, and it does not
allude to any of the performance or environmental issues identified in the Huntington Beach and
Santa Barbara intake option studies referenced above. In fact, all of the other intake options
except for open water intake were eliminated, without any discussion of technical performance
or track record factors, because of the supposedly superior performance and lesser environmental
175
Id., at p. 8.2-76.
176
Id., at p. 8.2-76.
177
Id.
49
impacts of the slant well option. The failure to address such issues renders the selection of intake
alternatives legally inadequate.
Since the track record, performance and reliability of such an important component of the
Project is a critical factor to impact assessment, alternative selection, and feasibility here, the
failure to disclose this information in the Project Description and to analyze it sequentially in the
environmental impact assessments and alternatives analyses is a significant inadequacy that
requires full disclosure and recirculation of a new Draft EIR/EIS.
3. Significant New Information Has Been Added to the Final EIR/EIS That Must Be
Made Available For Public Review and Comment
In the City’s comments on the Draft EIR/EIS, the City commented that the EIR/EIS’s
failure to describe the results of the slant test well pumping program was a fatal flaw, rendering
the analysis, which was based on more hypothetical modeling, inadequate. 178 The response to the
City’s comment explains that the test well was a separate project under CEQA and NEPA and
therefore “extensive details of its construction and implementation are not appropriate for
inclusion in Chapter 3,” 179 but does not respond to the comments raised.
During permitting of the test well, CalAm repeatedly insisted that the test well and test
pumping program were necessary to inform and finalize the design of the MPWSP, yet the
pumping results were apparently not taken into account in design of the Project as analyzed in
the EIR/EIS. The test results have been added to the Final EIR/EIS as Appendix E3, but no
disclosure or analysis of the pumping results and how closely they matched previous modeling
and, more importantly, where they differed from the model has been provided. The response
dismissively states: “There is generally good agreement between the model-calculated and
measured timing of drawdown and recovery.” 180
It is well established that a Lead Agency cannot rely on highly technical information
hidden in an appendix to provide substantial evidence of potential impacts in the public
environmental document. The main purpose of an EIR/EIS is to discuss and disclose this type of
technical information in a way that allows the public to understand the likely environmental
178
29, 2017)), at p. 8.5-25.
179
Comments and Responses), Subsection 8.5.1 (Responses to Local Agency Comment Letters – City of
Marina) at p. 8.5-563.
180
Id.
50
effects of a project. The City and its residents want to know how the short-term and long-term
pumping programs have been used to inform the design of the Project. This discussion is entirely
missing in the body of the EIR/EIS.
The recommendations in Appendix E3 (HWG Hydrogeologic Investigation Technical
Report) of the Final EIR/EIS also assume a 15.5 mgd feedwater supply project (6.4 mgd product
water) is likely to move forward, and does not include recommendations for the proposed
Project. The failure to explain in the Final EIR/EIS what was learned through test pumping, and
how it’s being incorporated into the Project, deprives the public of the right to adequately
comment on this issue of critical importance. This information must be better analyzed in the
EIR/EIS and the public must be given an opportunity to analyze it in a recirculated document.
Addressing the concerns raised in by the City of Marina as the Final EIR/EIS does by adding
additional technical information to an appendix after the public comment period has ended does
not meet the purpose and intent of CEQA.
Other project components have been added, which require additional analysis and
discussion of potential impacts in a recirculated EIR/EIS. For example, two “surge tank”
locations have been added to Figure 3-3a in response to comments from CalAm, with absolutely
no discussion or explanation as to what these components are and how they may affect the
environment provided in the Final EIR/EIS, 181 other than a brief reference in Table 5.4-9 that
they would be located in the dunes on the CEMEX parcel under Alternative 5A. 182 What are
these components? How would they operate? What would be required for regular maintenance?
Would they increase the amount of concrete foundations being constructed in coastal dunes
within the City of Marina? Have they been evaluated in relation to the City’s Local Coastal Plan?
None of this information is provided in the Final EIR/EIS.
4. There Are Other Inaccuracies In The Project Description That Need To Be
Corrected Or Clarified To Meet CEQA/NEPA Requirements.
The Project Description contained in Chapter 3 (Description of the Project Project) of the
Final EIR/EIS is missing key information and needs clarification of other significant issues. As
the City previously commented, the project area boundary included in Figures 3-6 through 3-9 of
the EIR/EIS does not appear adequate to accommodate necessary access for construction
181
Final EIR/EIS, Chapter 3 (Description of the Proposed Project), Figure 3-3a, at p. 3-15.
182
Final EIR/EIS, Chapter 5 (Alternatives Screening and Analysis), Section 5.4 (Description of
Alternatives Evaluated in Detail), at p. 5.4-55.
51
equipment and laydown areas for trenchless construction. The City appreciates that Figures 3-3a
through 3-8 have been revised to more accurately reflect laydown areas. However, in response
to Marina-23, the Lead Agencies failed to disclose that the identification and addition of these
areas has resulted in an expanded project footprint. 183
Figures 3-3a, 3-6, 3-7, and 3-8 in the Final EIR/EIS show a revised project area boundary
that has been expanded to include necessary laydown areas. 184 Laydown areas on Figure 3-4 are
clearly shown to extend beyond the original project area boundary, but for unknown reasons, no
revisions to the boundary have been made to this figure. No evaluation of potentially sensitive
resources within these areas is included in the EIR/EIS and no evaluation of potential
environmental effects associated with use of these areas for construction staging and pipe
laydown has been provided. The Final EIR/EIS provides a clear reference that the “Project area
boundary refers to the areas within which all construction related disturbance would occur.” 185
This is inaccurate (in regards to areas shown on Figure 3-4) 186 and the EIR/EIS is inadequate in
that it failed to even evaluate areas that were shown to be within the project area boundary.
The changes in the project area boundary must be analyzed in a revised and recirculated
EIR/EIS. What habitat types would be impacted in these areas? Are sensitive plant species
present? Is soil contamination an issue? It is well known that CEQA/NEPA requires the lead
agency to consider all components of the project. Because the sensitivity and potential presence
of environmental resources has not been evaluated in the expanded laydown areas; the Final
EIR/EIS is deficient and must be revised to adequately consider all areas of disturbance and
recirculated for public review and comment.
Multiple commenters suggested the EIR/EIS be revised to state the anticipated lifespan of
the Project, yet no changes have been made in response to Comment Marina-30. It seems well
understood that the Applicant is anticipating a 40-year lifespan for the project; why would the
Lead Agencies fail to accurately disclose this in the EIR/EIS? Instead, the Final EIR/EIS’s
response to this comment states that “the operational impacts of a capital project of this
183
29, 2017)), at p. 8.5-28; Response, at p. 8.5-566.
184
Final EIR/EIS, Chapter 3 (Description of the Proposed Project), at pp. 3-15, 3-33 to 3-35.
185
Id., at p. 3-15.
186
Id., at p. 3-23.
52
magnitude are assumed to occur indefinitely.” 187 This approach fails to meet CEQA/NEPA
requirements for several reasons.
First, there is little to no chance the Project will operate “indefinitely”; therefore, any
analysis which has assumed so is based on inherently false information which leads to an
inaccurate identification of impacts. The inaccurate statement of impacts is often less
conservative and fails to capture the true extent of the Project’s potential effect on the
environment. For example, decommissioning of the plant and related infrastructure would not be
necessary and potential impacts related to this component of the project would be assumed not to
occur. Second, even if the Project were to continue “indefinitely,” the EIR/EIS’s analysis of
many environmental impacts would be understated using this approach. For example, potential
impacts related to sea-level rise and coastal erosion would be much greater than currently
identified in the EIR/EIS. The GHG analysis that assumes a 40-year lifespan would not be a
conservative approach, but instead would have grossly understated and failed to account for the
ongoing emissions beyond the 40 years evaluated.
C. Environmental Setting, Impacts, and Mitigation Measures
1. Governing Legal Framework
It is the case that three of the four Section 1002(a) factors (community values,
recreational and park areas, and historical and aesthetic values) were addressed in the October-
November 2017 hearings that focused on CPCN issues. However, as stated in the Introduction,
the Commission has made clear that, while the fourth factor of a Project’s “influence on the
environment” is appropriately addressed through the CEQA process, 188 the Commission must
still assess any adverse impacts of the Project Alternatives, especially the designated
Environmentally Superior Alternative, on these three other values or factors in its evaluation of
the Final EIR/EIS to determine if they have been effectively mitigated. 189 Thus, as an example,
“[c]ommunity values may be instructive in determining a route amongst several alternatives,
notwithstanding … discussion … regarding need.” 190
187
Comments and Responses), Subsection 8.5.1 (Local Agency Comment Letters – Response to City of
Marina), at p. 8.5-675.
188
D.00-05-048, at p. 28.,
189
D.00-05-048, at p. 32; D.09-12-044, at pp. 46-50.
190
53
In reviewing the Final EIR/EIS consideration of impacts, many have not been adequately
considered or mitigated. Moreover, where identified, the Final EIR/EIS’s assessment of these
impacts does not account for or mitigate against the additional harm to the City of Marina’s
community values, recreational and park areas, and historical and aesthetic values as established
on the evidentiary record in this proceeding. The Commission cannot make the same mistake
and must apply that record in “determining” whether the Final EIR/EIS has considered
appropriate Alternatives to the Project and correctly identified the “Environmentally Superior”
project from “amongst” those alternatives. Marina submits the Final EIR/EIS has not done so.
2. Environmental Setting/Baseline
Chapter 4.1 (Overview of Environmental Setting (Affected Environment), Impacts, and
Mitigation Measures) of the Final EIR/EIS contains information regarding several important
environmental assessment parameters, including the Project “baseline” and the treatment of
Project inconsistencies. The Final EIR/EIS, like the Draft EIR/EIS, states that the Project
environmental “baseline” is the existing conditions in 2012, which is six years ago. 191 Although
the Final EIR/EIS adds a short Master Response 10 on this issue, 192 this response simply repeats
the earlier text and contentions. This baseline is apparently based on the CEQA Guideline which
states the existing physical conditions at the time the Notice of Preparation (“NOP”) is published
“will normally constitute the baseline physical conditions.” 193
However, the Final EIR/EIS perpetuates a fundamental error. This is a situation where a
more recent baseline must be utilized because the federal government did not join and notice its
intent to make this an EIS for federal purposes until August 2015. Federal law mandates that the
baseline for NEPA review be the physical condition at the time the EIS is prepared, which is
August 2015 at the earliest. The CEQA Guidelines require that an EIS include the alternative of
no action. 194 These and other NEPA authorities require that the condition of the environment at
the time the EIS is undertaken or the action will be implemented (which can sometimes be at
some point in the future) be utilized for the analysis. There is no authority for using a
significantly earlier date such as 2012. When a joint EIR/EIS is being drafted, it is sometimes
191
Final EIR/EIS, Chapter 4 (Environmental Setting (Affected Environment), Impacts, and Mitigation
Measures), Section 4.1 (Overview), Subsection 4.1.3 (Baseline Conditions), at p. 4.1-8.
192
Subsection 8.2.10 (Master Response 10: Environmental Baseline under CEQA and NEPA), at p. 8.2-63.
193
CEQA Guidelines § 15125(a).
194
40 C.F.R. § 1502.14(d).
54
necessary to have two impact analyses, one for CEQA and one for NEPA, so that the proper
baseline is established for each. Thus, since the wrong NEPA baseline was chosen, the NEPA
impact analyses need to be redone with the correct baseline and recirculated for public review.
In fact, this does not qualify as a “normal” situation under CEQA either in which a 2012
baseline should be utilized. Although the original Project NOP was issued in 2012, the proposed
Project reflected in the Final EIR/EIS was substantially modified in March 2016 from the version
originally noticed in 2012 and the public was first notified in late 2015 that the environmental
document was now a joint EIR/EIS. Moreover, there have been significant environmental
developments, technical studies and new information in the last five years that make a 2012
baseline an improper choice. The Final EIR/EIS is therefore inadequate because it chose the
wrong environmental baseline for both NEPA and CEQA purposes.
In addition, the Final EIR/EIS description of how inconsistencies of the Project are to be
treated under NEPA is incomplete and inaccurate. According to the document, NEPA and
CEQA require that there be a discussion of “possible conflicts between the proposed project and
the objectives of federal, regional, state and local land use plans and policies.” 195 In fact, NEPA
also requires an analysis of any inconsistencies with state and local “laws” and requires a
reconciliation analysis when such inconsistencies are found:
“To better integrate environmental impact statements into State or local planning
processes, statements shall discuss any inconsistency of a proposed action with
any approved State or local plan and laws (whether or not federally sanctioned).
Where an inconsistency exists, the statement should describe the extent to which
the agency would reconcile its proposed action with the plan or law. 196
This federal inconsistency and reconciliation analysis requirement is very important
because the Project is inconsistent with, and in fact directly prohibited by, state or local laws and
plans. Although the Final EIR/EIS corrects its summary of the standard, it fails to correct its
deficiencies in analyzing these inconsistencies.
3. Groundwater Resources
In its Draft EIR/EIS Comments, the City provided a wide range of comments on all
aspects of the groundwater resource impact analysis in the Draft EIR/EIS, which had improperly
concluded that the individual and cumulative impacts of the Project on groundwater were
195
Measures), Section 4.1 (Overview), Subsection 4.1.4 (Impact Terminology), at p. 4.1-9.
196
40 C.F.R. § 1506.2(d); emphasis added.
55
supposedly “less than significant.” The City provided an expert report by Dr. Robert Abrams
that discussed the deficiencies in these groundwater impact analyses and, in its comments in a
variety of areas, explained how the Draft EIR/EIS was legally inadequate in its evaluation and
conclusions in this area. 197
The Final EIR/EIS made virtually no change in the original analyses and conclusions
regarding groundwater resources. Although it introduced some new definitions and clarified
some questions regarding what the original document intended to state, it otherwise refused to
meaningfully change its thresholds of significance, its analyses of the impacts, the flawed
groundwater model on which it based its conclusions, or its ultimate determination that the
Project’s impacts on groundwater resources are “less than significant.” Unfortunately, since the
Final EIR/EIS analysis on this subject retains all of the fatal flaws and legal deficiencies in the
Draft EIR/EIS, it is legally inadequate for use by the Lead Agencies or by responsible agencies
such as the City of Marina.
As summarized above, a great deal of significant new information regarding the nature,
extent and severity of the Project’s individual and cumulative impacts to groundwater resources
has emerged since the Draft EIR/EIS was issued in January 2017. Most recently, in March 2018,
an important new report by Dr. Rosemary Knight was released, which the City of Marina
understands will be submitted by MCWD in its Final EIR/EIS Comments and which is briefly
summarized by in Marina Final EIR/EIS Comments, Appendix 1(Technical Memorandum of
Mike Tietze). Since none of the new scientific information on this critical environmental impact
issue was available 15 months ago, CEQA requires that this information be added to the Final
EIR/EIS and that the document be recirculated for public review and comment.
The City will summarize, in the sections below, many of the key deficiencies in the Final
EIR/EIS analysis and explain why the Final EIR/EIS’s the conclusion that the Project will not
have significant impacts on these resources is unsupported by substantial evidence in the record.
197
29, 2017)), at pp. 8.5-34 to 8.5-45; pp. 8.5-100 to 8.5-128.
56
a. The Factual Predicate For The Groundwater Analysis Is Inadequate Because it
Fails To Properly Recognize The Applicable Regulatory Framework, Including
The Impact Of SGMA.
In its Draft EIR/EIS Comments, the City identified key regulatory regimes that were
either ignored or misstated in the Draft EIR/EIS. Several of these comments need to be revisited
because of their importance to the groundwater impact analysis.
To begin with, Marina’s comments correctly pointed out that the Draft EIR/EIS failed to
identify and discuss the application of State Board Resolution No. 88-63, California’s Sources of
Drinking Water Policy, and the corresponding provisions in the Basin Plan, in the context of
Project impacts. 198 In Response Marina-44, the Final EIR/EIS attempts to rectify this
omission.199 This Response summarizes a portion of the Resolution and Basin Plan, but does not
get it right in key particulars. The Basin Plan provides that the groundwater underneath the
CEMEX site is “suitable” (not just “potentially suitable” as the EIR asserts) for three different
beneficial uses: “agricultural water supply, municipal and domestic water supply, and industrial
use.” 200 The Final EIR/EIS also misstates the two-prong test for de-designation of the municipal
and domestic water supply use. It requires a finding that the water exceeds TDS of 3,000 mg/l
and that it is not reasonably expected to supply a water system. It also identifies that there are
“water quality objectives” set at lower TDS concentration levels, but does not forthrightly
acknowledge that these levels are only intended to establish a base or reference point, not to
establish levels at which the groundwater is considered usable.
Equally importantly, the Responses to comments make the blanket, unsupported and
incorrect statement that the water that could be withdrawn by the Project slant wells does not
meet the Resolution No. 88-63 or water quality objective levels. It even states more globally
(inaccurately again) that “groundwater in the Dune Sand, 180-FTE and 400-foot Aquifer is,
198
29, 2017)), at pp. 8.5-34 to 8.5-35.
199
Comments and Responses), Subsection 8.5.1 (Local Agency Response to Comment Letters – City of
Marina), at pp. at pp. 8.5-574 – 8.5-575.
200
Basin Plan, at p. 7.
57
therefore, unsuitable for potable water use.” 201 However, as prior scientific data indicated and
the new March 2018 study by Dr. Knight demonstrates, there are large areas of higher quality
groundwater present in these aquifers that is likely to drawn into the slant wells. Moreover,
contrary to the Final EIR/EIS assertion, the Basin Plan explicitly provides that this groundwater
is “suitable” for all three beneficial uses identified above.
Although the Final EIR/EIS attempts to correctly summarize the requirements of SGMA,
it again presents only a skewed analysis of SGMA’s requirements. It contends that it has now
accurately analyzed the impact of the Project using all of SGMA’s “undesirable results,” but in
fact has not done so as reflected in Marina’s Draft EIR/EIS comments and in the technical
reports of Mike Tietze and others. 202
b. The Final EIR/EIS Is Scientifically And Legally Inadequate In Every Respect
With Regard To Its Analysis And Conclusions Regarding The Potential
Individual And Cumulative Impacts Of The Project On Groundwater
Resources.
In its Draft EIR/EIS Comments and the attached expert memorandum prepared by Dr.
Robert Abrams, the City explained the full range of inadequacies in the Draft EIR/EIS’s analysis
of groundwater impacts. In brief, they included: (1) failure to utilize the results of the important
Electrical Resistivity Tomography (“ERT”) studies by Dr. Rosemary Knight; (2) failure to take
into account new information regarding Basin conditions; (3) failure to analyze the potential
impacts of the Project on groundwater in the 900 Foot Aquifer; (4) failure to analyze foreseeable
changes in the groundwater gradient due to ongoing efforts to address seawater intrusion; and (5)
the many deficiencies in the groundwater model that prevented it from accurately evaluating a
full range of potential adverse impacts to groundwater resources. 203 In sum, our comments
identified the many reasons why the Draft EIR/EIS conclusion that the potential impacts of the
Project on groundwater were “less than significant” was not supported by substantial evidence.
Unfortunately, the Final EIR/EIS made no substantive changes to its analysis, no changes
to its flawed model and no change to its “less than significant” impact conclusion in response to
201
Comments and Responses), Subsection 8.5.1 (Local Agency Response to Comment Letters – City of
Marina), at pp. at p. 8.5-576.
202
See, Final EIR/EIS, Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.5 (Local Agency
29, 2017)), at pp. 8.5-34 to 8.5-45; pp. 8.5-100 to 8.5-128; Marina Final EIR/EIS Comments, Appendix 1
(Technical Memorandum of Mike Tietze).
203
Id.
58
Marina’s Draft EIR/EIS Comments. Rather, its responses mainly consist of repeating the
original analysis and prior conclusions. In the Marina Final EIR/EIS Comments Appendix 1
(Technical Memorandum of Mike Tietze), expert Mike Tietze summarizes his technical view of
the Final EIR/EIS groundwater resource as follows:
“Based on our review, we find that in almost all cases a good faith response to our
comments was not provided and substantive changes were not made to the impact
analysis. The resulting Final EIR/EIS impact analysis is fundamentally
inadequate, and it provides no scientific or other credible basis to support the
speculative conclusion that the Project will have only “less than significant”
impacts on groundwater supplies and resources. Meaningful identification and
evaluation of Project alternatives or mitigation measures that could lessen the
water quality impacts of the Project is not possible based on the approach to water
quality effects analysis taken in the Final EIR/EIS. As a result, the Final EIR/EIS
does not adequately describe the Project’s individual or cumulative direct, indirect
and long-term environmental effects, especially as they pertain to water quality,
water supply and water rights. 204
The Tietze Memorandum contains a lengthy review of major deficiencies in the Final
EIR/EIS, which we will not detail here, but focus on a few key groundwater impact topics and
the Memorandum’s overall conclusions. In this regard, at the outset, Mr. Tietze explains the
importance and direct relevance of the new March 2018 groundwater report by Dr. Knight and
her research team. He observes: “”The report presents the only truly continuous three-
dimensional investigation of the extent and continuity of the major hydrostratigraphic units that
control seawater migration in the area, the lateral and vertical extent of seawater intrusion into
the aquifer system, and the location and extent of pockets and lenses of freshwater and recharge
areas in the area surrounding the proposed Project.” 205 It demonstrates that hydrogeologic
conditions in the area most affected by the Project slant wells “are much more complex than was
assumed in the Final EIR/EIS, and that the existing model used for impact assessment is
inadequate to evaluate Project impacts under existing conditions.” 206 Moreover, “the seawater
migration pathways, freshwater recharge areas and distribution of saline water and freshwater are
mischaracterized in the Final EIR/EIS.” 207
204
Marina Final EIR/EIS Comments, Appendix 1 (Technical Memorandum of Mike Tietze), at p. 3
(emphasis added).
205
Id. at p. 5.
206
Id.
207
Id.
59
This Memorandum also summarizes the practical impact of the findings of this
significant new research report by Dr. Knight’s team as follows:
“In summary, the recent work by Dr. Knight indicates that there is a credible and
relatively high risk that the Project’s slant wells will have significant and wide-
ranging impacts on basin groundwater resources and supplies because they will
capture significantly more usable groundwater, and remove or significantly
deplete the fresh water wedge that currently impedes further inland seawater
migration, thereby causing saline water to migrate further inland and contaminate
portions of the 180-Foot and 400-Foot Aquifers.” 208
Mr. Tietze also explains, following up on several technical comments made in the Draft
EIR/EIS Comments, that the Final EIR/EIS fails to consider the effects of reasonably foreseeable
changes in groundwater gradients because of ongoing and future foreseeable efforts mandated by
SGMA to address this issue. The Final EIR/EIS approach is “based on the incorrect assumption
that the currently observed landward groundwater gradients will dominate regional groundwater
flow through the life of the Project.” 209 Id. at 10. Instead, it is reasonably foreseeable that such
gradients will decrease and may reverse, thereby causing the slant well capture zone to “reverse
orientation and primarily capture groundwater from the on-land portions of the DSA and 180-
foot Aquifer, . . . .” 210
Mr. Tietze’s Memorandum also catalogues the many issues that render the groundwater
model relied on by the Final EIR/EIS for its conclusions on groundwater impacts as completely
inadequate for assessing Project impacts in this Basin. It explains:
“In short, the Final EIR/EIS fails to use a reasonable and appropriate model for
evaluating the potentially significant groundwater impacts to the aquifer system
from slant well pumping at this location. A wealth of significant new and specific
information about the hydrology of this aquifer has been obtained which the
simplistic model used in the Final EIR/EIS does not consider. The model is
therefore unable to evaluate to determine if significant impacts will occur.
Furthermore, the model is not appropriate to evaluate solute transport and has
never been calibrated for that purpose. Thus, due to is inherent limitations, it is
the “wrong model in the wrong situation” and is failing to look for or detect likely
impacts that an appropriate model would see. It has become clear that a more
sophisticated model must be utilized to perform a scientifically credible analysis
of these impacts.” 211
208
Id. at p. 10.
209
Id.
210
Id. at p. 11.
211
Id. at pp. 15-16.
60
Finally, the Memorandum described the inability of the groundwater model to assess
cumulative impacts to groundwater resources. He observes that “[t]he totality of current stresses
might be manageable at the basin level, but the addition of significant new MPWSP pumping
could potentially cause the new state of stresses to be unmanageable and to induce migration of
seawater or degraded groundwater into new areas. 212 The model did not take into account or
evaluate existing municipal and agricultural pumping, forecasted urban demand increases, or
existing agricultural water supply trends. Rather, they were described in the Final EIR/EIS as
“having introduced ‘discrepancies’ and ‘bias’ into the SVIGSM.” 213
After considering these and other deficiencies in the Final EIR/EIS groundwater impact
analyses, the Tietze Memorandum summarizes all of its conclusions as follows:
“It is the opinion of JJ&A that the Final EIR/EIS takes a fundamentally
inadequate approach to evaluation of potential Project impacts to groundwater
resources, water quality, water supplies and water rights. The conclusion that
impacts to these areas will be less than significant cannot be supported with the
analysis conducted. In addition, the evaluation failed to consider significant new
information that indicates impacts may well occur which are not recognized in the
Final EIR/EIS, and that impacts that are recognized may well be more severe than
indicated. The failure of the Final EIR/EIS to utilize an adequate and complete
approach to impact assessment makes it impossible to identify or evaluate
appropriate project alternatives that can minimize or avoid potential project
impacts, or to adopt appropriate mitigation measures. Specifically, we find the
following:
• Significant new information was available in reports prepared by
the MCWRA and Dr. Knight’s team of researchers from Stanford
University that indicates the aquifers surrounding the proposed
slant well location are more complex than has been recognized in
the Final EIR/EIS, that numerous gaps exist in the 180/400-Foot
Aquitard through which saline water migration is occurring, and
that lenses of fresh water and fresh water recharge areas occur in
the vicinity of the Project. The Final EIR/EIS fails to consider or
analyze this information.
• New data collected from AEM studies in the immediate vicinity of
the proposed slant well locations indicates the presence of a
sinking saltwater wedge, an over-riding fresh water wedge, a
source of fresh water recharge and a discontinuity in the 180/400-
Foot Aquitard. The impact analysis in the Final EIR/EIS did not
consider these features, and instead dismissed them prematurely
based on a limited and speculative evaluation. There is a
212
Id. at p. 16.
213
Id.
61
significant risk that Project feedwater pumping will cause further
migration of saline water in the 180-Foot and 400-Foot Aquifers.
In addition, the OWP of the feedwater is likely underestimated.
• The discussion of water quality impacts in the Final EIR/EIS is
misleading in that it focuses only on the lowest available water
quality standard related to TDS in drinking water, and fails to
mention or consider that other standards are relevant and
commonly used when assessing the beneficial uses of water for
municipal and domestic supply.
• The failure of the impact analysis to consider reasonably
foreseeable changes in the groundwater gradient is a fundamental
inadequacy and leads to underestimation of the feedwater OWP,
the amount of fresh aquifer water captured by the Project, and the
extent of seawater intrusion induced by pumping of the slant wells.
• The impact analysis fails to consider the basic hydrogeological
principle that pumping from the slant wells will mobilize seawater
outside the capture zones of the wells that will not be captured by
the wells, and thus underestimates the area impacted by directly
inducing seawater intrusion into the DSA and the 180-Foot
Aquifer.
• The approach to assessment of impacts to the Deeper Aquifer
System uses circular reasoning and fails to consider an existing
risk of seawater intrusion recognized by the MCWRA.
• The computer model used for impact analysis was constructed only
for the assessment of drawdown and Project-induced changes to
groundwater flow paths. It includes gross simplifications that are
not consistent with known aquifer conditions, and does not predict
solute transport or density-driven flow. These limitations likely
make it impossible for the model to accurately predict water
quality outcomes. Although the model is used to evaluate water
quality impacts, it has never been calibrated for that purpose.
• The superposition approach used in the modeling analysis ignores
the potential cumulative effects of Project pumping combined with
other known and reasonably foreseeable pumping and stresses in
the basin. As such, the cumulative impact analysis is incomplete
and the water quality effects of the Project, which are dependent on
cumulative stresses, is inadequate.” 214
214
Id. at pp. 16-17.
62
c. The Applicant Proposed Mitigation Measure 4.4-3 Is Inadequate To Address
Potential Harm Or Injury To Water Users In The Basin.
The Final EIR/EIS states that the Applicant has proposed Mitigation Measure 4.4-3 in
connection with the “depletion of groundwater supplies” potential impact. Since this impact was
found to be less than significant, the Final EIR/EIS states that it “is not required to reduce a
potential impact to less than significant.” 215 However, regardless of whether it is required or
voluntarily proposed, it is completely inadequate to serve its purposes.
In brief, this measure proposes to expand the regional groundwater monitoring network.
Its supposed purpose is to ensure that owners of existing public and private wells in a defined
area “suffer no harm” as a result of the Project slant well pumping. Owners can elect to
voluntarily join the program to receive monitoring of their wells and information shall be
collected to determine if slant well pumping is “causing consistent and measurable drawdown of
local groundwater levels.” If certain high proof burdens are sustained by the well owner and
CalAm “verifies” the adverse effects and damage, CalAm and the hydrogeologist and owner will
“develop and implement a mutually agreed upon course of action.”
There are many flaws in this proposed mitigation measure, and it should be rejected in its
entirety. First, it takes a very narrow and unjustified view of what constitutes harm or injury to
well owners and fails to cover the range of injuries prescribed by California water law and
SGMA. Second, it reverses the normal burden of proof in such situations (in which a new
appropriator in a basin must prove that it is not causing injury to any other legal user) and
requires the well owner to demonstrate by a stringent proof burden that such damage is
occurring. Third, it improperly puts CalAm in the driver’s seat (through the concurrence
requirement) of determining when injury it is occurring, whether it is due to the slant wells, and
what will be done about it. Fourth, it is vague and ambiguous in defining what remedies will be
implemented. Finally, it violates CEQA standards by deferring mitigation to a future time
without providing sufficient performance standards.
Therefore, this Mitigation Measure should not be considered or adopted by the
Commission. Although Marina has demonstrated that the Project will likely have a significant
impact on this groundwater impact parameter, this proposed mitigation measure is poorly
targeted to address this issue and would impose unfair and illegal restrictions on any well owners
215
Measures), Section 4.4 (Groundwater Resources), at p. 4.4-87.
63
who elect to join the program. It also does nothing to address the basin-wide injury issues that
Mr. Tietze and other experts have identified.
4. Terrestrial Biological Resources
The Final EIR/EIS and the responses to the City of Marina’s comments pertaining to
Section 4.6 (Terrestrial Biological Resources) fail to adequately address the City’s comments or
incorporate necessary changes recommended by the City. Additionally, Section 4.6 (Terrestrial
Biological Resources) presents new substantive information that was not included in the Draft
EIR/EIS that should be recirculated for public review and consideration for the purpose of full
disclosure.
Specifically, the Final EIR/EIS Section 4.6 at page 4.6-8 and in Section 4.6.1.6 (Wetlands
and Other Waters) includes a Jurisdictional Delineation prepared for the proposed project in
April 2017 that was not included in the Draft EIR/EIS. This report and associated findings
constitute substantive new information that should have been completed prior to circulation of
the Draft EIR/EIS to ensure impact analysis was adequate and accurate. This new information
and revised section should be circulated for public review and consideration.
Similarly, the Final EIR/EIS includes substantial new information related to
Environmentally Sensitive Habitat Areas (ESHA). 216 New information not only includes general
regulatory information relating to the Coastal Act, the City of Marina’s Local Coastal Land Use
Plan, the Monterey County North County Land Use Plan, and City of Seaside Local Coastal
Program Land Use Plan, but also new information and figures that supposedly describe and
identify ESHA in relation to the study area. Considering the fact that the Final EIR/EIS identified
a significant and unavoidable impact related to inconsistencies with local policies or ordinance
protecting biological resources, this new information included in the Final EIR/EIS is critical for
informing the impact analysis and determination and should have been included in the Draft
EIR/EIS and circulated for public review. Therefore, it is necessary for the Final EIR/EIS to be
recirculated.
In the Response to the City’s Comment Marina-71, the Final EIR/EIS attempts to defend
the use of a 50-foot buffer around the project area as being adequate for evaluating impacts and,
216
Final EIR/EIS, Chapter 4 (Environmental Setting, Impacts, and Mitigate Measures), Section 4.6
(Terrestrial Biological Resources), Section 4.6.1 (Setting/Affected Environment), at pp. 4.6-36 – 4.6-40.
64
with respect to potential noise impacts, refers to Section 4.12.2 in the Final EIR/EIS. 217 This
response and 50-foot buffer methodology are still inadequate because, although Section 4.12.2
evaluated noise and vibration impacts in the project area and the nearest potentially affected
sensitive receptors to the proposed facilities, sensitive receptors in the context of Section 4.12.2
are considered “residences, schools, hotels, hospitals, …nursing homes, … churches, libraries,
and cemeteries…” 218
Impacts related to noise and vibration in Section 4.12 (Noise and Vibration) do not
evaluate potential impacts to special-status species because those impacts are expected to be
evaluated in the Biological Resources sections of the EIR/EIS. Nevertheless, Section 4.12 still
concludes that there is a significant and unavoidable impact related to temporary or periodic
increases in ambient noise levels in the project vicinity during construction. 219 As stated in the
City’s Comment Marina-71, noise impacts to sensitive animals, such as nesting birds, are known
to exceed 50 feet. 220
Therefore, this buffer and response are inadequate. For example, if a nesting bird
protected by the Migratory Bird Treaty Act was nesting just beyond the 50-foot survey buffer,
impact analysis and mitigation included in the Final EIR/EIS would not have adequately
captured potential worst-case scenario impacts or mitigation measures for potential project-
related impacts such as noise, vibration, dust, etc. to this species. Therefore, this methodology
should be revised to adequately evaluate biological resources present within the maximum extent
of disturbance associated with the proposed project to accurately analyze all potential impacts
and include appropriate mitigation.
The Final EIR/EIS Response to the Comment Marina-73 states:
“[S]poils returned from drilling the slant wells (approximately 1,600 cubic yards)
would be composed of sand and would form a layer less than 2 inches thick when
217
Marina), at p. 8.5-590.
218
(Noise and Vibration), Subsection 4.12.2 (Setting/Affected Environment), at p. 4.12-7.
219
(Noise and Vibration), Subsection 4.12.6 (Direct and Indirect Effects of the Proposed Project), Impact
4.12-1, at p. 4.12-21.
220
29, 2017), at p. 8.5-53.
65
spread within the 8-acre permanent disturbance area….Spoils would not be placed
on top of the topsoil because topsoil would be salvaged and replaced after
disturbance as required by Mitigation Measure 4.6-2b.” 221
This response is inaccurate, directly contradicts information included in the Project
Description in the Final EIR/EIS, underrepresents impacts, and is misleading. The Project
Description indicates that these spoils would be obtained via the settling out of the lower drilling
materials, as follows:
“The water and sediment mixture generated during the lower portion of slant well
drilling and construction would be placed in settling tanks, as necessary, to allow
sediment to settle out. Drilling spoils generated during the lower portion of slant
well drilling (i.e., not containing bentonite mud or other additives) would be
spread within the construction disturbance area and would not require offsite
disposal.” 222
If this is accurate, the Project Description fails to disclose how bentonite drilling muds,
other additives, or non-native soil material (soil from the lower drilling column) would be
removed from the sand that is to be spread out in the disturbance area. The sediment that is
captured in the settling tanks would likely consist of sand, drilling muds, and other soil types
from the drilling column. If this material is removed from the settling tanks and distributed in the
disturbance area, the result would be an approximately two-inch thick layer of non-native fill
material under the native topsoil that is redistributed over the drilling spoils. There is no evidence
that this fill material and resulting new soil composition in the disturbance area would be
appropriate for the recolonization of native plant species that are specifically adapted to native
sands that comprise the local dune system.
Redistribution of these spoils in the disturbance area has the potential to alter the native
soil composition of the dune sands in such a way that native plant species would not be able to
recolonize the site. This is a potential permanent loss of 8-acres of the dune system, which is a
significant impact that severely misrepresented as a less-than-significant impact. The Project
Description and Section 4.6 must be revised to accurately describe this action, associated impact
analysis, an appropriate impact determination, and mitigation measures, as necessary. These
221
Marina), at pp. 8.5-591 – 8.5-592.
222
Final EIR/EIS, Chapter 3 (Description of the Project), Section 3.3 (Construction), Subsection 3.3.2
(Well Drilling and Development and Related Site Improvements), subpart 3.3.2.1 (Subsurface Slant
Wells), at p. 3-50.
66
revisions would constitute substantive changes that should be recirculated for public review and
consideration.
The Final EIR/EIS also fails to adequately address the potential increase in permanent
impacts to native dune habitat and central dune scrub associated with permanent and ongoing
operation-related disturbance that would occur in sensitive native dune areas at the CEMEX site,
as identified in the City’s Comment Marina-74. 223 The Final EIR/EIS Response to Marina-74
purports that “the closure of the CEMEX plant and planned restoration of the site now offers
opportunities to implement compensatory mitigation for the project within adjacent, potentially
high-quality habitat areas.” 224 However, restoration of the CEMEX site is already required under
applicable Surface Mining and Reclamation Act (SMARA) 225 regulations and the site’s
approved Reclamation Plan. The applicant cannot use already required restoration within the
CEMEX site to meet its mitigation requirements for this Project.
Finally, even though the Final EIR/EIS acknowledges that these impacts would not be
less than significant, 226 they are still inaccurate and misrepresented in this section. As stated in
the City’s original comment, the impact analysis should be revised to accurately reflect increased
permanent impacts to native dune habitat and central dune scrub associated with
operational/maintenance activities. 227
The Final EIR/EIS fails to incorporate the City’s requested revisions to Mitigation
Measure 4.6-1j, which changes would provide a reasonable threshold or parameter for the
biologist to determine that the American badger den(s) is inactive. In the case of the badger,
where an incidental take permit or other agency enforced permit and associated conditions is not
provided, the biologist must decide if a den is active or not. Very few biologists at the
monitoring pay scale have this skill set. The mitigation must provide the monitoring biologist
223
29, 2017)), at p. 8.5-54.
224
Marina), at p. 8.5-592.
225
Pub. Res. Code, §§2710-2796.
226
Final EIR/EIS, Chapter 4.6 (Terrestrial Biological Resources), Section 4.6.5 (Direct and Indirect
Effects of the Proposed Project), subpart 4.6.5.1 (Construction Impacts), Impact 4.6-4, at p. 4.6-234.
227
29, 2017)), at p. 8.5-54.
67
with a reasonable method to determine if a den is active or inactive. The current measure puts the
responsibility on a biologist that is being pressured by the contractors to clear an area in the
shortest amount of time possible. Without written guidance on the methods to do so, the biologist
does not have the tools to do their job correctively. For the measures to work in the field, the
measure(s) need to support the monitor and their goals.
Therefore, in order for this measure to be effective, it should be revised to include the use
of game cameras on the potentially active den(s) for at least three nights prior to the den(s) being
collapsed. Then, only after badgers were not photographed entering or leaving a den for three
nights, may that den be collapsed.
The Final EIR/EIS also fails to adequately respond to the City’s comment Marina-75. 228
The Lead Agencies acknowledge that impacts related to slant well maintenance are evaluated in
Final EIR/EIS Section 4.6.5.2; however, the response just reiterates the minimal level of
detail/analysis included in that EIR/EIS section and fails to provide additional supporting
analysis. Simply stating that “[a]pproximately every 5 years, periodic maintenance of the
subsurface slant wells would require use of heavy construction equipment and would result in
substantial ground disturbance in the CEMEX active mining area” 229 is an inadequate impact
analysis. The Final EIR/EIS fails to evaluate secondary impacts related to these periodic
maintenance activities. Therefore, the Final EIR/EIS must be revised to adequately evaluate
these impacts and include mitigation measures where appropriate or justify why mitigation
measures are not necessary. Once revised, this impact analysis should be recirculated to allow for
public review and consideration.
Additionally, the impact analysis included under Impact 4.6-6 has been revised to state
that “the project (including both construction and maintenance) would result in a net permanent
impact on 7 acres and temporary impact on 2 acres of western snowy plover habitat.” 230 This is
an increase from the previously circulated Draft EIR/EIS which stated the project would result in
228
29, 2017)), at p. 8.5-54
229
Measures), Subsection 4.6 (Terrestrial Biological Resources), Subsection 4.6.5 (Direct and Indirect
Effects of the Proposed Project), subpart 4.6.5.2 (Operational and Facility Siting Impacts), at p. 4.6-246.
230
Id., Impact 4.6-6, at p. 4.6-247.
68
the permanent loss of a reduced acreage of western snowy plover habitat. This increased impact
should be recirculated to allow for public review and consideration.
Impact 4.6-6 in the Final EIR/EIS fails to adequately explain how the Final EIR/EIS
determined that only 1.6 acres of Smith’s blue butterfly habitat would be disturbed during
ongoing maintenance activities. Coast buckwheat, host plant for Smith’s blue butterfly, occurs
throughout the CEMEX Property and has the potential to occur throughout the entire 6 acre area
of disturbance. Unless it can be clearly established that the majority of the disturbance area does
not provide habitat for Smith’s blue butterfly, the Final EIR/EIS also fails to evaluate indirect
impacts related to construction/maintenance activities conducted adjacent to suitable habitat. The
Final EIR/EIS significantly understated the level of impact to Smith’s blue butterfly habitat. The
Final EIR/EIS fails to identify the actual amount of habitat that would be affected; if all six acres
of the disturbance area would be affected, the Final EIR/EIS should be revised to accurate state
the level of impact and recirculated to disclose the substantial increase in the severity of this
effect.
The discussion of Impact 4.6-6 also fails to explain how and to what extent identified
mitigation measures would be applied prior to each five-year slant well maintenance operation.
Would a new Hazardous Materials Management Plan (“HMMP”) and compensatory mitigation
be required each time to minimize impacts related to project disturbance?
Final EIR/EIS Response to the Comment Marina-80 states that CEQA/NEPA does not
require mitigation measures to identify the necessary permits to implement the mitigation. 231
This may be true; however, identification of the necessary permits is good practice that provides
specific direction for the Lead Agency. As currently written, the mitigation is poorly crafted and
us not comprehensive, measurable, or enforceable in many cases.
Finally, the Final EIR/EIS fails to adequately address the City’s Comment Marina-82
through a response or revisions to the Final EIR/EIS. Therefore, all of the comments included in
Marina-82 are considered to still apply to the Final EIR/EIS. 232 The Final EIR/EIS should be
231
Marina), at pp. 8.5-96 – 8.5-97.
232
The City’s Comment Marina-82 is included in the Final EIR/EIS in Chapter 8 (Draft EIR/EIS
Comments and Responses), Section 8.5 (Local Agency Comments and Responses), Subsection 8.5.1
(Local Agency Comment Letters – City of Marina (March 29, 2017)), at pp. 8.5-60 – 8.5-61. The
inadequate “response” can be found at p. 8.5-597.
69
revised, either through an adequate response or revisions, to address these comments
appropriately and recirculated for review and consideration by the City and the public.
5. Cultural and Paleontological Resources
Inexplicably, the Final EIR/EIS fails to correct the Draft EIR/EIS’s oversight of a direct
impact or revise the blatant misstatement on historical resources. Thus, the Final EIR/EIS
continues to wrongly state:
“No historical resources listed in or eligible for listing in the California
Register or historic properties listed in or eligible for listing in the National
Register are within the direct or indirect APE of all project components.
Therefore, no impact on historical resources or historic properties would result
from construction of any project facilities.” 233
The Final EIR/EIS Response to Comment Marina-123 fails entirely to properly address
and understand this significant oversight. 234 In its Comments on the Draft EIR/EIS, the City (in
coordination with MBNMS and qualified consultants) previously evaluated the Lapis Sand
Mining Plant for eligibility in the National Register of Historic Places (NRHP) and determined
that it was eligible for listing as a historic district. Through that evaluation, which was readily
available to the EIR/EIS team at the time the Draft EIR/EIS was prepared, the Lapis Siding (a
contributing resource to the Lapis Sand Mining Plant Historic District) was identified as
extending from the eastern boundary of the Lapis Sand Mining Plant northwesterly for
approximately 285 feet “before it becomes covered by sand and dirt.” 235
The Lapis Siding is documented on both sides of the proposed Source Water Pipeline,
and “becomes covered by sand and dirt” in the area that extends across the location of this
proposed project component. 236 There is no evidence in the EIR/EIS to indicate the presence of
this contributing resource was present in the proposed area of disturbance or whether
233
Measures), Subsection 4.15 (Cultural and Paleontological Resources), Subsection 4.15.6 (Direct and
Indirect Effects of the Proposed Project), subpart 4.15.6.1 (Construction Effects), at p. 4.15-45.
234
Marina), at pp. 8.5-613– 8.5-614.
235
The City’s Comment Marina-82 is included in the Final EIR/EIS in Chapter 8 (Draft EIR/EIS
Comments and Responses), Section 8.5 (Local Agency Comments and Responses), Subsection 8.5.1
(Local Agency Comment Letters – City of Marina (March 29, 2017)), at pp. 8.5-80 -; emphasis added.
236
Id., at pp. 8.5-79 – 8.5-80.
70
construction of the Source Water Pipeline would directly or indirectly affect this significant
resource.
The Final EIR/EIS Response to Comment Marina-123 accurately recognizes that the
City, in its evaluation of the slant test well, recommended that the project be redesigned to avoid
direct impacts on the Lapis Siding and that “in order to avoid the Lapis Siding… the proposed
Source Water Pipeline would follow the CEMEX access road.” 237 Despite the fact that it was
clearly pointed out in the City’s previous comments, the Final EIR/EIS still fails to recognize
that the Lapis Siding is likely covered by sand and dirt under the CEMEX access road. It does
not end at the mapped location; it goes underground and continues further north for an unknown
length before moving above ground again east of the Sorting Plant. Locating the Source Water
Pipeline to within the CEMEX access road has not avoided direct impacts to this significant
resource, as the Source Water Pipeline and Lapis Siding would cross at a 90-degree angle within
the access road. This remains a direct impact to a significant impact that has failed to be
adequately addressed in the Draft or Final EIR/EIS.
Although not mentioned in the Final EIR/EIS Response to Comment Marina-123, other
sections of the document have been revised in response to comments received by the project
applicant (CalAm) to now reflect horizontal directional drilling (HDD) techniques in the area
following the CEMEX access road. 238 Although not mentioned in the text of the Draft or Final
EIR/EIS and not added to the list of areas where HDD techniques would be utilized (Section
3.3.4.2), a small reference to a new “HDD Pipeline Route” had been added to Figure 3-3a in the
area of the CEMEX access road. 239 Perhaps the project applicant realized what the EIR/EIS
preparers have not: there is a significant historic resource located in the middle of the proposed
disturbance area. Therefore, CalAm’s proposed changes have been accepted without CalAm
having identified the potential impact or the need to mitigate and adjust the proposed project to
avoid significant impacts.
CEQA and NEPA do not allow an applicant to insert additional mitigation in a Final
EIR/EIS disguised as a project description change in response to comments that clearly identify a
237
Marina), at p. 8.5-613.
238
Final EIR/EIS, Chapter 3 (Description of Proposed Project), Section 3.3 (Construction), Subsection
3.3.4 (Pipeline Installation), subpart 3.3.4.2 (Trenchless Technologies), at p. 3-55.
239
Id., Figure 3-3a, at p. 3-15.
71
previously unidentified potentially significant impact that was not disclosed in the Draft
EIR/EIS. The EIR preparers have again missed the impact entirely, and the project applicant has
attempted to avoid the need to disclose the potential impact to the public and identify avoidance
and mitigation measures that would be required to reduce potential impacts by changing the
project description. Both the EIR/EIS’s failure to identify the impact and the applicant’s attempt
around disclosing the impact are unsupportable under CEQA and NEPA.
The Final EIR/EIS Response to Comment Marina-123 cites to recent California State
Historic Preservation Officer (SHPO) concurrence with a Finding of No Adverse Effect to
Historic Properties for the Project. 240 It is unclear whether this is because the technical
consultants preparing SHPO documentation failed to recognize the subsurface portion of the
Lapis Siding (as the EIR/EIS fails to do) or if the concurrence was due to the incorporation of
mitigation into the project (HDD) to avoid direct impacts to the resources. If the former, it is
clear that SHPO’s concurrence was based on false and incomplete information and consultation
should be reinitiated. If the latter, then the EIR/EIS should be revised to accurately identify the
potential for an impact to the subsurface portions of the Lapis Siding and proposed mitigation
that would be incorporated into the Project to reduce or avoid such impact, so that the public has
an opportunity to comment on whether mitigation is adequate to reduce impacts to less than
significant. A statement that no resource exists and no direct impact would occur is not legally
adequate under either scenario. If it cannot be confirmed the project will entirely avoid extant,
contributing resources to the District, the conclusion of “No Impact” to historical resources or
historic properties is inherently inaccurate.
Additionally, if HDD is in fact now proposed at this location, the EIR/EIS should be
revised to identify necessary staging and laydown areas (none were identified in the revised
Figure 3-3a) and address potential secondary impacts associated with this construction technique.
The impact discussion should be revised to cite the basis of the SHPO concurrence letter and
explicitly state that the Lapis Sand Mining Plant Historic District is within the direct and indirect
APE, and no adverse effects will occur as a result of project implementation as the project is
designed to avoid extant structures (if this is in fact accurate). This finding must further clarify
that the Lapis Siding is likely within the direct and indirect APE and will be entirely avoided by
240
Marina), at p. 8.5-613.
72
ground disturbing construction activities associated with project implementation (if this is in fact
accurate). Lastly, if the Source Water Pipeline is proposed within the CEMEX access road, then
Figure 3-3a and all others showing its location should be corrected to show it within the CEMEX
access road. Although not admitted to in the Final EIR/EIS Response to Comment Marina-123,
current mapping shows it south of the access road, crossing the exact location of the above-
ground documented segments of the Lapis Siding.
6. Air Quality and Greenhouse Gas Emissions
a. Overview
As noted above, “community values” are “instructive” to the Commission’s
evaluation of Final EIR/EIS project alternatives and impacts. 241 Those values include air
quality 242 and potential health risks. 243
The evidentiary record in this proceeding establishes that, for the City of Marina, its
important community values include “Air Quality and Climate Change.” 244 Thus, Marina Mayor
Delgado and City Manager Long testified: “The protection of the City from air emissions and
greenhouse gas that impair its air quality (in the short term) and that cause and contribute to
global climate change impacts including sea level rise (in the long term) are a particular and
important concern to Marina.” 245
Thus, among other values, the Mayor and City Manager confirmed that “[t]he
degradation of … air quality will fundamentally affect core values of our way of life and likely
would adversely affect our economy, which depends on the availability of our resources.” 246
With respect to greenhouse gas (GHG) emissions, both also described how Marina, as a coastal
city, “is particularly attuned to the individual and cumulative effects of GHG emissions because
sea level rise, one of the major global climate consequences of such emissions, can have a
devastating impact on coastal cities.” 247 Given Marina’s many climate change initiatives, which
have made it an innovation leader in California, 248 the Mayor and City Manager made clear that
241
D.09-12-044, at p. 46.
242
D.04-08-046, at p. 43.
243
Id. at 90.
244
Ex. MNA-1, at p. 13 (Marina (Delgado/Long)).
245
Ex. MNA-1, at pp. 13-14 (Marina (Delgado/Long)).
246
Ex. MNA-1, at pp. 20-21 (Delgado/Long).
247
Id., at p. 18.
248
Id., at pp. 18-19.
73
MPWSP Project Alternatives that result in significant new GHG emissions within and adjacent
to its borders as “antithetical to our long-established climate change ethic.” 249
In Marina’s review of the Final EIR/EIS with respect to these two impacts resulting from
any of the considered Project Alternatives, as further detailed below, each would result in
adverse impacts to Marina’s air quality and increased GHG emissions that will not be effectively
mitigated. In fact, the proposed project would result in impacts to “air quality” that “even with
implementation of mitigation measures, would remain significant and unavoidable.” 250 GHG
emissions was identified as an “area of controversy” and that, when the 2017 Draft EIR/EIS was
published, “it was not possible to substantiate numerically that the GHG emissions, resulting
from construction and operation of the proposed project, would be reduced to less than
significant level.” 251 The Final EIR/EIS claims that, since that publication, a “detailed mitigation
strategy was developed” to quantify reductions to support the determination of less than
significant with mitigation. 252 However, as detailed below, Marina certainly dispute that result.
It is also important to note that the evidentiary record in this proceeding indicates that
renewable options for meeting the energy requirements of the MPWSP are not guaranteed and
may only add to the costs of a project that are already excessive. 253 Clearly, from a cost, air
quality, and GHG-emission standpoint, the Project, in any configuration or size, is neither a cost-
effective nor environmentally “superior” project for the City of Marina, especially where other
water supply alternatives exist for CalAm.
b. Air Quality
There are a variety of inadequacies in the air quality impact analysis and associated
mitigation in the Final EIR/EIS, which only further underscore the conclusion that the Project’s
to “air quality,” “even with implementation of mitigation measures, would remain significant and
unavoidable.” 254 This conclusion is best illustrated by review of (1) Impact 4.10-1 and
Mitigation Measure 4.10-1a, and (2) Impact 4.10-C below.
249
Id.
250
Final EIR/EIS, Chapter 6 (Other Considerations), Section 6.1 (Significant and Unavoidable
Environmental Effects), at p. 6-2.
251
p. ES-19.
252
Id.
253
Ex. CA-49, at pp. 9-12 (CalAm (Cook)); Ex. CA-50, at pp. 5-7 (CalAm (Cook)).
254
74
(1) Impact 4.10-1 and Mitigation Measure 4.10-1a (Construction Impacts)
The Final EIR/EIS identifies the air quality impacts from the Project that would remain
significant and unavoidable as follows:
“Short-term air emissions associated with construction of the proposed project
could contribute to an exceedance of state and/or federal standards for ozone and
NOx, which could increase the susceptibility of sensitive individuals to
respiratory infections and is a significant impact. Such exceedances in ozone
would also be inconsistent with the Monterey Bay United Air Pollution Control
District’s 2012 Air Quality Management Plan (AQMP). Implementation of
mitigation measures would not reduce project-related NOx emissions (a precursor
to ozone) to a level below the significance threshold, therefore resulting in
significant and unavoidable impacts with regard to violations of air quality
standards and compliance with the AQMP. See Section 4.10, Air Quality, for
additional information on these impacts.” 255
Yet, the Final EIR/EIS’s actual analysis of the air quality impacts from the Project has
serious flaws and reveals that the Project’s impacts to air quality will only be more adverse and
claimed mitigation measures even more ineffective than stated above. The Final EIR/EIS
analysis begins with consideration of Construction Impacts, Impact 4.10-1: “Generate emissions
of criteria air pollutants that could contribute to a violation of an ambient air quality standard
during construction. (Significant and Unavoidable, even with implementation of mitigation).” 256
Analysis of that impact, however, begins with the discussion of mitigated construction
emissions of NOx, which assumes that compliance with Mitigation Measure 4.10-1a would result
in equipment emissions that would be equivalent to those that would be associated with engines
that comply with Tier 3 engine standards. 257 However, Mitigation Measure 4.10-1a only
requires CalAm and/or its construction contractor to make a “good faith effort” to use available
construction equipment that meets the highest United States Environmental Protection Agency
(USEPA)-certified tiered emission standards. 258 Therefore, the Project would not be required to
use only equipment that meets the Tier 3 standard, and construction emissions could be even
higher than the stated mitigated quantity of 324 pounds per day, which is already 187 pounds
above the daily threshold of 137 pounds (by more than double). Since the Project would result in
255
256
Measures), Section 4.10 (Air Quality), Subsection 4.10.5 (Direct and Indirect Effects of the Proposed
Project), subpart 4.10.5.1 (Construction Impacts), Impact 4.10-1, at p. 4.10-21; emphasis original.
257
Id., at p. 4.10-23.
258
Id., at pp. 4.10-22 – 4.10-23.
75
construction emissions of NOx that would constitute a significant and unavoidable impact with
mitigation, Mitigation Measure 4.10-1a is inadequate in failing to require the use of construction
equipment that meets the Tier 3 engine standards (as opposed to requiring a “good faith effort” to
use Tier 3 construction equipment).
CEQA requires lead agencies to mitigate potentially significant impacts to the extent
feasible. 259 To comply, when it was published, the Draft EIR/EIS should have incorporated or
provided clear information showing why feasible mitigation measures, included in the Monterey
Bay Unified Air Pollution Control District’s (MBUAPCD’s) CEQA Air Quality Guidelines, are
not feasible or otherwise not included as mitigation to reduce construction emissions of NOx.
Thus, for specific control technologies, the Draft EIR/EIS should have referred to and
incorporated California Air Pollution Control Officers Association’s (CAPCOA's) Best
Available Control Technology (BACT) Clearinghouse, the South Coast Air Quality Management
District's BACT Clearinghouse, or EPA's AP-42 Compilation of Air Pollutant Emission Factors
(Volume I).
The CEQA lead agency cannot simply identify a significant and unavoidable impact
when feasible mitigation options are available. There are numerous mitigation options available
for the lead agency (this Commission) to implement to reduce NOx emissions, which should
have been identified in the Draft EIR/EIS, with the resulting emissions quantified to establish
whether impacts have been reduced to less than significant. If they have not, then additional
mitigation should be required. If minimization of impacts to less than significant is not feasible
through implementation of on-site mitigation, then off-site options should be considered.
In the Final EIR/EIS, Mitigation Measure 4.10-1a has been revised to identify
construction equipment that meets Tier 4 standards, as opposed to Tier 3 standards, and to
include requirements for construction equipment powered by electricity or natural gas and other
non-diesel powered equipment where feasible. However, these revisions do not change the fact
that the availability of high-tiered and non-diesel-powered construction equipment and off-site
mitigation options at the commencement of construction of the project is currently unknown.
259
Pub.Res.Code §21002.1(b).
76
This uncertainty is acknowledged in the Final EIR/EIS Response to Comment Marina-97
and forms the basis for the significant-and-unavoidable impact determination. 260 However, the
Final EIR/EIS fails to adequately explain why the City’s requests for limiting the quantity and
types of construction equipment, limiting construction hours of operation, and limiting fuel
consumption, and implementing construction during the non-ozone season in an effort to reduce
daily NOx emissions are infeasible.
Instead, the Final EIR/EIS Response to Comment Marina-97 simply discredits these
alternative mitigation solutions as “infeasible because they would extend the construction period
substantially.” 261 This response does not explain why they would extend the construction period
substantially and why an extended construction period is infeasible. The response also fails to
consider implementing even one of these suggestions made by Marina to address a significant
and unavoidable impact.
As stated in CEQA Guideline Section 15096, “when an EIR has been prepared for a
project, the Responsible Agency shall not approve the project as proposed if the agency finds any
feasible alternative or feasible mitigation measures within its powers that would substantially
lessen or avoid any significant effect the project would have on the environment.” Therefore, it is
necessary for the Lead Agency to clarify why none of the City’s suggested mitigation measures
for reducing daily NOx are feasible, why none of them are within the Commission’s and
MBNMS’s powers, and why an extended construction period is not a reasonable solution for
minimizing this significant and unavoidable impact. This information must be clarified in the
Final EIR/EIS and recirculated for public review and consideration.
Additionally, this section should specify what additional measures would be implemented
between June 1 and November 30, when Valley Fever rates of infection are the highest, such as
additional water or the application of additional soil stabilizer, prior to and immediately
following ground disturbing activities if wind speeds exceed 15 miles per hour (mph) or
temperatures exceed 95 degrees Fahrenheit. Neither the Draft EIR/EIS nor the Final EIR/EIS
has properly and fully analyzed the potential impacts and risks associated with Valley Fever.
The Final EIR/EIS’s conclusion that implementation of Mitigation Measure 4.10-1c (fugitive
260
Marina), at pp. 8.5-602 – 8.5-603.
261
Id., at p. 8.5-603.
77
dust control measures) would render Valley Fever-related impacts to be less than significant 262
does not account for the fully impacts and risks associated with Valley Fever. Instead, once the
necessary analysis has been provided, it should be recirculated to provide the public an
opportunity to review and comment on the potential impacts and proposed mitigation measures
to reduce those impacts.
(2) Impact 4.10-C (Cumulative Impacts)
The discussion above, and shortcomings of the Final EIR/EIS analysis of air quality
impacts from construction, are also obviously part of the Impact 4.10-C: “Cumulative impacts
related to air quality (Significant and Unavoidable, even with implementation of mitigation).” 263
While mitigation may not be available that would reduce the Project’s contribution to less than
cumulatively considerable, the Final EIR/EIS should have identified and ensured that all feasible
mitigation measures have been applied to the Project to reduce construction emissions to the
greatest extent feasible. For the reasons stated above, Mitigation Measure 4.10-1a is inadequate
in that it does not require the use of construction equipment that meets the Tier 3 engine
standards (rather than only requiring a good faith effort to use Tier 3 construction equipment).
For that reason, the Final EIR/EIS must be revised either to incorporate or clarify why the
previously listed standard feasible mitigation measures, included in the MBUAPCD’s CEQA Air
Quality Guidelines, are not included as mitigation to reduce construction emissions of NOx and
PM10. Until that time, the Final EIR/EIS is inadequate in that it fails to properly identify and
include feasible mitigation measures to reduce potentially significant project-specific and
cumulative impacts on air quality.
c. Greenhouse Gas Emissions
The Final EIR/EIS confirms that GHG emissions from the long-term operation of the
Project, primarily due to “indirect emissions from the project’s use of electricity, which would be
provided by the local PG&E electrical power grid,” will be a significant environmental
262
Project), subpart 4.10.5.1 (Construction Impacts), at p. 4.10-29.
263
Project), subpart 4.10.6 (Cumulative Effects of the Proposed Project), at p. 4.10-32.
78
impact. 264 The Draft EIR/EIS Impact 4.11-1 deemed the short-term construction and long-term
operational GHG emissions from the Project “Significant and Unavoidable due to the lack of
available information to quantify the reductions from the proposed mitigation measures.” 265
However, the Final EIR/EIS has altered that impact to read: “Impact 4.11-1: Incremental
contribution to climate change from GHG emissions associated with the proposed project. (Less
than Significant with implementation of mitigation).” 266 This “mitigation,” however, depends on
operational electricity use to have zero net GHG emissions through various methods including
on-site solar photovoltaic panels, procuring renewable energy from off-site sources, and
projections of the electricity supplied to operate the Project from PG&E coming from renewable
resources based on policy goals and targets associated with the Renewable Portfolio Program. 267
The Final EIR/EIS states that the “solar PV panels would potentially be installed on the rooftop
or as parking space cover in the parking lot of the MPWSP Desalination Plant.” 268
As repeatedly stated in this brief, this Commission in evaluating the Final EIR/EIS must
do so based on the administrative record in this proceeding. Again, like many of the conclusions
reached by the Final EIR/EIS, its assumption about the availability of on-site renewable energy
or electricity supplied by PG&E coming from renewable energy is completely at odds with the
evidentiary record on this precise issue. Instead, that the evidentiary record establishes that
renewable resource options for meeting the energy requirements of the MPWSP remain
uncertain and may only add to the costs of a project that are already excessive. 269
Further, policy goals that encourage the State’s utilities to increase their reliance on
renewable resources do not necessarily translate into actual procurement or delivery of electricity
from such sources, especially where considerations of need and cost are part of that
determination. 270 Thus, notwithstanding such goals, it is not certain, and, more recently, not the
264
Measures), Section 4.11 (Greenhouse Gas Emissions), Subsection 4.11.5 (Direct and Indirect Effects of
the Proposed Project), at pp. 4.11-16 – 4.11-17.
265
Id., at p. 4.11-15.
266
Id., at p. 4.11-15; emphasis added.
267
Id., at p. 4.11-17.
268
Id., at p. 4.11-21.
269
Ex. CA-49, at pp. 9-12 (CalAm (Cook)); Ex. CA-50, at pp. 5-7 (CalAm (Cook)).
270
See, e.g., D.17-12-017, at pp. 14 -18 (specific to PG&E on lack of “need” for renewable resources,
increased costs, and operational challenges faced with growth of renewable resources.)
79
case, that PG&E will in fact have a need that will allow it to increase its reliance on renewable or
preferred GHG-free energy resources – on-site or otherwise – to supply power to the Project. 271
There is also no requirement in Mitigation Measure 4.11-1 that would ensure that is
where on-site solar PV panels would be located, if implemented as part of the project.
Therefore, the Final EIR/EIS fails to adequately evaluate all reasonable secondary impacts that
could occur as a result of the installation of on-site solar PV panels. Secondary impacts of
Mitigation Measure 4.11-1 must be revised in the Final EIR/EIS to accurately evaluate all
potential secondary impacts of on-site site solar PV panels and be recirculated for public review
and consideration. Again, while the City of Marina includes ensuring GHG-emission reductions
among its community values, it is mindful that those reductions must be realistically achievable
and projects that increase those emissions, without any meaningful or effective mitigation, must
be avoided.
7. Socioeconomics and Environmental Justice
a. Legal Framework
Both NEPA and CEQA contain strong requirements for the assessment of environmental
justice and socioeconomic impacts. Since they address these subjects in slightly different ways,
we will discuss them separately below. As described below, the Final EIR/EIS fails to
sufficiently assess or mitigate for socioeconomic and environmental justice impacts.
NEPA requires that in an EIS, federal agencies analyze the disproportionately high
adverse impacts of a project on minority and low-income populations. NEPA defines project
“effects” to include “economic, social, or health [impacts], whether direct, indirect, or
cumulative.” 272 In 1994, President Clinton issued Executive Order 12898, entitled “Federal
Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations.” This Order, as described on the NOAA Fisheries website, “requires each federal
agency to identify and address, as appropriate, disproportionately high and adverse human health
or environmental effects of its programs, policies and activities on minority and low income
populations.” In 2011, a large group of federal agencies, including the Department of Commerce
(the parent agency of MBNMS), signed a Memorandum of Understanding to implement this
policy at each signatory agency.
271
Id.; see also, D.18-01-022, by which the Commission rejected a plan by PG&E to replace its retiring
Diablo Canyon Power Plant with GHG-free energy.
272
40 C.F.R. § 1508.8.
80
In 1997, the President’s Council on Environmental Quality issued an important guidance
document that has governed NEPA environmental justice analyses ever since. Environmental
Justice: Guidance Under the National Policy Act (1997). According to the Guidance:
• A federal agency must consider the “multiple, or cumulative [environmental justice]
effects, even if certain effects are not within the control or subject to the discretion of the
agency proposing the action.”
• The agency must “recognize the interrelated cultural, social, occupational, historical or
economic factors that may amplify the natural and physical environmental effects of the
proposed agency action.”
• The federal agency must “analyze how environmental and health effects are distributed
within the affected community” and the agency is encouraged to display data visually
through a GIS for effective visualization of the distribution of effects.
• The federal agency must utilize an identified disproportionately high and adverse
environmental impact “as a factor in determining the environmentally preferable
alternative.”
• The federal agency “should elicit the views of the affected populations on measures to
mitigate a disproportionately high and adverse human health or environmental effect” on
a minority population and “carefully consider community views in developing and
implementing mitigation strategies.”
The Draft EIR/EIS fails to meet these NEPA requirements in multiple respects. It is
undisputed, as stated on page 4.20-6 of the Draft EIR/EIS, that Marina qualifies as a minority
community.
b. The City of Marina Provided Compelling, Comprehensive And Virtually
Unchallenged Testimony Regarding The Extensive Social, Economic, Cultural
And Environmental Impacts Of The Project.
The Commission held evidentiary hearings in October/November 2017 on several topics
selected by the assigned Administrative Law Judges, one of which was “community values,
historical resources and aesthetic values” as set forth in Public Utilities Code Section 1002. The
fourth Section 1002 value of “influence on the environment” was not a topic of the hearings, but
it became clear that the community values testimony also covered topics evaluated in the
CEQA/NEPA process, including anticipated socioeconomic and environmental justice impacts
of the Project. Accordingly, we will summarize here the key “community values” testimony by
the City of Marina that covers aspects of the socioeconomic and environmental justice topics.
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Mayor Bruce Delgado and City Manager Layne Long are the senior elected and
appointed City officials in Marina and, in that capacity, are the appropriate officials to testify to
the community values and environmental justice concerns of the City, as the Commission has
previously recognized. Thus, in the case of the Tehachapi Renewable Transmission Project
(“TRTP”), the Commission had first granted a CPCN for the overhead construction of the
transmission lines through the City of Chino Hills (“Chino Hills”). 273 However, based on a
petition for modification of that decision by Chino Hills, the Commission found persuasive the
declaration of the Chino Hills’ City Manager, Michael Fleager, to reconsider that decision based
on his declaration supporting Chino Hills’ contentions of the adverse impacts of the “mammoth”
overhead lines on Chino Hills’ community values, especially their “jarring” impact “on the
viewscape.” 274 By D.13-07-081, the Commission concluded, “on balance, that the magnitude of
the harm alleged in the petition and the weight of the proffered evidence warrant reopening of
the record” 275 and, in that order, resulted in Chino Hills’ petition to modify D.09-12-044 being
granted and that order being modified to require construction of the segment through Chino Hills
being undergrounded. 276
Clearly, the input of a City’s manager and/or mayor is a principal and reliable means by
which the Commission has assessed all aspects of community values. In this case, Mr. Delgado
has been a member of the Marina City Council since 2008 and Mayor for almost nine years. He
holds many other government positions, including being a member of the California Regional
Water Quality Control Board for the Central Coast Region since his appointment by Governor
Brown in 2011 and he has served on many other local or regional boards. Mr. Long has been
Marina’s City Manager for four and a half years and he has considerable experience directing,
managing and administering operations for cities in California and Utah.
Mayor Delgado and City Manager Long provided joint direct testimony on the City’s
community values. After discussing key community goals in the City’s General Plan that
embody its values, they identified the following as important community values for the City of
Marina:
273
D.09-12-044, at p. 2.
274
D.13-07-018, at p. 12.
275
D.13-07-018, at p. 14. Mr. Fleager, again, not only provided his declaration in support of the petition
for modification, but also was a key witness for the Chino Hills during the hearings on which D.13-07-
018 is also based.
276
D.13-07-018, at p. 67.
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• Groundwater Supply: Protection of the City’s groundwater resource, which
provides a clean, local, reliable and affordable source of drinking water, is a
key community value from resource, economic and social viewpoints.
• Coastal Ecosystem: The protection and enhancement of the City’s unique
coastal ecosystem, including its special sand dunes, habitats and species and
the important visual and scenic values that accompany it, is a vital community
value.
• Air Quality and Climate Change: The protection of the City from air
emissions and greenhouse gas that impair its air quality (in the short term) and
that cause and contribute to global climate change impacts including sea level
rise (in the long term) are a particular and important concern to Marina.
• Environmental Justice: Marina is a racially diverse community and a
relatively low-income community under various government standards.
Every state agency has a strong duty to ensure that such communities are not
subjected to disproportionate impacts from projects to its cultural, social,
environment, occupational, historic and economic values, and this is very
important for Marina.
• Vibrant Business Environment: Marina has been targeting protection and
further development of its business community, which is an important key to
the City’s economic and social vitality.
• Cumulative Regional Impacts to Values: In recent years, Marina has been
surrounded by a series of projects for the region that continue to cause
cumulative adverse impacts to the City including offensive odors, truck
traffic, noise and greenhouse gas emissions. Marina needs to protect itself
from future such impacts which degrade its quality of life. 277
Mayor Delgado and City Manager Long focused on the “potential imminent threat of the
Project to the integrity of our sole water source.” 278 They explained how the Salinas Valley
Groundwater Basin is the source of the City’s entire drinking and potable water supply and that
the water service charges for it are affordable compared to those for nearby communities. 279
They stated that this is “an extremely serious and fundamental issue for Marina” because “[t]he
best scientific information available indicates that the subsurface slant wells which CalAm would
construct could significantly deplete our groundwater supply, degrade our groundwater quality
277
278
Id., at pp. 14-15.
279
Id., at p. 14.
83
and impair our water storage.” 280 They testified that “it is absolutely essential for our economic
and social survival that the Project not impair our water supply or quality in any way.” 281
These witnesses also provided extensive testimony about Marina’s community value of
preserving its coastal ecosystem, which “is an integral part of Marina’s identity.” 282 They
describe how “the City’s dunes and coastal habitats are the scenic entry point to the Monterey
Peninsula” and also serve as “an important driver for the City’s economy.” 283 They explain that
Marina’s beach environments are a “more wild and natural beach setting which supports
endangered species and sensitive habitat.” 284 The Project is expected to adversely affect this
community value because “it would be constructed in the middle of this special dune and coastal
habitat” and would therefore “degrade the visual, dune and habitat values of the area, [and]
potentially contribute to coastal erosion.” 285
Mayor Delgado and City Manager Long extensively addressed a third community value
relating to climate change. 286 They described how Marina, as a coastal city, “is particularly
attuned to the individual and cumulative effects of greenhouse gas (GHG) emissions because sea
level rise, one of the major global climate consequences of such emissions, can have a
devastating impact on coastal cities.” 287 They recited Marina’s many climate change initiatives,
which have made it an innovation leader in California. 288 The witnesses identified authorization
of significant new GHG emissions within and adjacent to its borders as “antithetical to our long-
established climate change ethic.” 289
The City of Marina is a diverse, working-class city that is also a relatively affordable City
that provides a high quality of life. 290 Mayor Delgado and City Manager Long testified to a
variety of environmental justice impacts to its community values that they believe are posed by
280
Id.
281
282
Id., at pp. 16-18.
283
Id., at p. 16.
284
Id., at p. 17.
285
Id., at pp. 18-19.
286
287
Id., at p. 18.
288
Id., at pp. 18-19.
289
Id.
290
Marina will cover the environmental (as contrasted with the economic, social and cultural) impacts
associated with these environmental justice issues in the upcoming briefing relating to the Final EIR/EIS
for the Project.
84
the Project. 291 They testified to the potential economic, social and cultural impacts of the
Project. For example, “if Marina’s sole water source is impaired, the costs of replacement water
would be very large and difficult financially for our residents.” 292 Similarly, “[t]he degradation
of our coastal ecosystem and air quality will fundamentally affect core values of our way of life
and likely would adversely affect our economy, which depends on the availability of our
resources.” 293 They also point out how other regional facilities in and around Marina have
already adversely affected the City and that the Project facilities “will likely result in a further
reduction in the quality of life community values for Marina.” 294
The Commission has long emphasized the importance of consideration of environmental
justice when making siting determinations. 295 In D.16-05-050, a recent Commission decision
approving, in part, the results of a Utility’s resource procurement solicitation to meet a local
energy need, the Commission clearly identified its concerns and consideration of “environmental
justice issues” and concluded that it is not the Commission’s interest or intent “to approve
contracts for pollution-causing power plants in disadvantaged communities or other similarly-
impacted areas beyond that which is necessary to maintain reliability at reasonable rates.” 296 In
this same decision, the Commission stated that, in future procurement applications, it intends “to
explicitly consider environmental justice issues as part of [the Commission’s] review of
procurement contracts.” 297 The Commission must continue that commitment in this proceeding
and find that, after adequately considering environmental justice concerns, that the Project must
not be sited in Marina.
Mayor Delgado and City Manager Long also explain that one important City community
value is maintaining and enhancing a vibrant business environment. 298 In addition to the
economic factors discussed above, they describe how “[h]otels, beaches, and other tourism
amenities in Marina largely depend on beach access and proximity” and that “the slant wells
would undermine the tourist values on which we depend.” 299 They also discuss how significant
291
Id., at pp. 20-22.
292
Id., at p. 20.
293
Id., at pp. 20-21.
294
Id., at pp. 21-22.
295
See, e.g., D.07-12-052, at p. 157; D.16-05-050, at p. 18.
296
D.16-05-050, at p. 18.
297
D.16-05-050, at p. 19.
298
299
Id.
85
future housing in Marina will be located north of current residential areas and proximal to the
proposed slant well site. 300
In addition, Mayor Delgado and City Manager Long testified to their community value
relating to protection for the City from large regional or industrial projects with adverse
community value and/or environmental impacts. 301 They point out that projects so far have
included the CEMEX sand mining operation, a large County regional landfill, the regional
sewage plant, a large regional composting facility, and an anaerobic digester facility. 302 They
state that “[w]e sometimes feel that we have been the final resting place of polluting or
environmentally burdensome projects that other cities would not accept.” 303 They testify that the
Project “would expand far beyond the existing types of impacts by threatening Marina’s precious
groundwater supply and placing a far-ranging industrial use in the midst of its unique coastal and
dune ecosystem.” 304
In sum, Mayor Delgado and City Manager Long make a compelling case that the most
important community values of the City are fundamentally threatened by the proposed Project
because of the wide range of serious economic, social, cultural and environmental impacts that it
is expected to have. The Final EIR/EIS is wholly inadequate for including, analyzing and
making a significance determination based on this important new information.
c. The Final EIR/EIS Fails To Take Into Account the 2017 Evidentiary Hearing
Testimony Or The City’s Comments On the Draft EIR/EIS And Thereby
Incorrectly Determines, Without Substantial Evidence, That The Socioeconomic
And Environmental Justice Impacts Of The Project Are Less Than Significant.
The Final EIR/EIS fails to adequately address the concerns raised by the City in relation
to environmental justice issues, pointing instead to other issue area analyses to support the
determination that no disproportionately high and adverse impacts would affect the City of
Marina. The Responses to Comments Marina-132 through Marina-136 fail to distinguish
between a significant impact and a disproportionately high impact, a critical error that renders
the environmental justice section of the EIR/EIS inadequate.
300
Id.
301
Id., at pp. 22-24.
302
Id., at p. 23.
303
Id.
304
Id.
86
The analysis of whether a disproportionate impact exists would obviously need to rely on
the proportion of the impact in the City versus other areas. The response to Marina-132 states
that “With respect to impacts on coastal habitats and the coastal ecosystem in Marina, see
responses to comments Marina-65 through Marina-83.” Instead, the response should have
identified all Project-related impacts on coastal habitats and coastal ecosystems and then disclose
what proportion of those would occur within the City of Marina versus other areas. The
response states that “With respect to impacts on coastal erosion in Marina, see responses to
Marina-36 and Marina-37.” Instead, the response should have identified all Project-related
impacts related to coastal erosion and disclose what proportion of those would occur within the
City of Marina verses other areas affected by the project. It is anticipated that close to 100% of
adverse impacts on coastal habitat, coastal ecosystems, and coastal erosion would be occur
within the City of Marina; yet the responses to comments and Final EIR/EIS provide no evidence
of the likely proportion or whether it would be high in comparison to other areas affected by the
Project.
The Response to Comment Marina-132 continues with similar responses to what appear
to be very disproportionately high adverse impacts in the City of Marina related to water quality
and groundwater impacts. Response to Marina-132 fails entirely to address the lack of an
appropriate threshold as described in the City’s previous comments. Instead it cites to less than
significant impact determinations in other sections of the EIR/EIS to conclude socioeconomic
and environmental justice impacts would be less than significant. A less than significant impact
determination under other issue areas (i.e., Terrestrial Biological Resources) does not mean the
project would not result in disproportionately high and adverse impacts to the City of Marina.
For example, the Project would result in the long-term routine disturbance and
conversion of at least 6 acres of coastal dune habitat to industrial uses within the City of Marina.
How many acres of coastal dune habitat would be converted in other areas of the peninsula?
How many in Monterey County? How many in the other cities and communities that will served
by the project? This type of analysis would provide measurable evidence regarding whether a
disadvantaged community like Marina is being subjected to disproportionately high and adverse
impacts to coastal dune habitat.
The City also believes its citizens would be subjected to the majority of construction-
related traffic impacts, construction noise, dust generation, and short- and long-term odor related
87
impacts. Because most of the Project-related infrastructure is located within or adjacent to the
City, long-term maintenance activities would continue to disproportionately affect the City,
when compared to other areas of the Peninsula. Perhaps if the Final EIR/EIS resulted in ‘No
Impact’ determinations within the City of Marina, then a quick reference to the impact
determinations would be adequate for environmental justice issues, because “no impacts” would
never be “disproportionately high.” However, for less than significant impacts, and especially
for significant but mitigable impacts, the Final EIR/EIS would be required to do additional
analysis to substantially support a determination that disadvantaged communities are not bearing
the brunt of the environmental, cultural, social, occupational, historical, or economic effects of
the project. As stated in the City’s comments on the Draft EIR/EIS, both CEQA and NEPA
contain strong requirements for the assessment of environmental justice and socioeconomic
impacts. The responses to Marina-132 through 136 are inadequate because they fail to correct
the deficiencies in the Draft EIR/EIS and fail to provide substantial evidence (or any evidence)
that environmental justice issues would be less than significant.
The Response to Comment Marina-132 suggests that Sections 4.2 through 4.19 “do not
address environmental justice issues”; however, no additional substantial evidence beyond
references to these sections is provided to support the conclusions in the Final EIR/EIS related to
environmental justice. The response also fails entirely to address the City’s reference to CEQ
guidance that requires lead agencies to elicit the views of the affected populations on measures to
mitigate a disproportionately high and adverse human health or environmental effect on a
minority population and carefully consider community views in developing and implementing
mitigation strategies.
As stated in our comments on the Draft EIR/EIS, the Final EIR/EIS does not take
environmental justice impacts into account in selecting the environmentally preferred alternative
and fails to adopt a single mitigation measure to reduce their impacts. An alternative that locates
the proposed intake system outside of the City’s groundwater aquifers and coastal areas should
be required due to environmental justice issues. Other feasible mitigation should be
implemented to reduce disproportionately high impacts within the City, such as rerouting
distribution lines around the City to avoid short-term construction and long-term maintenance
related disturbance, noise, dust, congestion, and visual impacts.
88
The Response to Comment Marina-133 admits that environmental justice impacts were
not adequately incorporated into the discussion of the environmentally preferred alternative in
Section 5.6 and makes revisions to that section. However, the Final EIS/EIS fails to re-evaluate
the environmentally preferred alternative in light of these potentially significant environmental
justice issues. CEQA requires an evaluation of a reasonable range of alternatives that would
avoid or reduce identified potentially significant impacts.
Additionally, as discussed above, CEQ guidance requires the Lead Agencies to elicit
views of the City of Marina in crafting alternatives that would reduce environmental justice
issues. The Final EIR/EIS and response to comments have done neither. Environmental justice
issues do not appear to have played any role in the development and analysis of Project
alternatives. The Final EIR/EIS fails to identify feasible alternatives that would reduce
potentially significant environmental justice impacts on the City of Marina and the Lead
Agencies’ responses to Marina-132 through Marina-136 fail to correct that issue in the EIR/EIS
or provide substantial evidence to support the selection of a preferred alternative that does not
avoid or minimize environmental justice impacts.
As stated previously, the City is concerned that the City’s discretionary approval
authority over actions proposed within the City’s limits has been and will be undermined. This
has resulted in development within the City limits that (1) provides absolutely no benefit to the
community of Marina, (2) has the potential to severely impact Marina resources, and (3)
community members have repeatedly and overwhelmingly objected to.
The Project represents a large and complex industrial facility that will be sited in, around
and through the City with the potential to result in severe irreversible impacts to the City,
particularly in regards to potential depletion and contamination of its water supply, the
destruction of its coastal ecosystem, and the traffic and noise impacts of the Project, which
provides no benefit to the community of Marina. The City residents would be forced to bear a
disproportionate brunt of the environmental impacts of the Project now and indefinitely into the
future.
The City wants the lead and other responsible agencies to consider and protect their
coastal and groundwater resources with the same level of scrutiny as is enforced on other
communities and has been enforced for proposed developments within the City in the past. The
City should not be the preferred location for all of the largest industrial uses in Monterey County.
89
Environmental justice issues and equity principles should require the municipalities and
jurisdictions that would benefit from the Project also bear the environmental burden of the
Project, including through siting of the proposed slant wells outside of the City’s aquifers and
coastal areas. The City requests that the Lead Agencies reevaluate potential alternatives to the
proposed Project that would locate key Project infrastructure outside of the City’s boundaries.
D. Alternatives
1. Selection and Evaluation of Alternatives
a. Introduction
The analysis of alternatives is one of the key components of an environmental review
document under both CEQA and NEPA. Indeed, the alternatives and mitigation sections are
“[t]he core of an EIR.” 305 The CEQA Guidelines provide that the EIR must “describe a range of
reasonable alternatives to the project, or to the location of the project, which would feasibly
attain most of the basic objectives of the project but would avoid or substantially lessen any of
the significant effects of the project, . . . .” 306 Although alternatives should be designed to meet
most project objectives, it is not required that an alternative meet all of them. 307
The California Supreme Court has emphasized the importance of a legally adequate
alternatives analysis:
“An EIR's discussion of alternatives must contain analysis sufficient to allow
informed decision making. [Citation.] [¶] ... [¶] ... Without meaningful analysis
of alternatives in the EIR, neither the courts nor the public can fulfill their proper
roles in the CEQA process.... ‘To facilitate CEQA's informational role, the EIR
must contain facts and analysis, not just the agency's bare conclusions or
opinions.’ [Citations.] An EIR must include detail sufficient to enable those who
did not participate in its preparation to understand and to consider meaningfully
the issues raised by the proposed project.” 308
NEPA and its implementing regulations also require the development and discussion of
alternatives. 309 In fact, NEPA requires an exceptionally robust discussion of alternatives, which
305
Citizens of Goleta Valley v. Bd. of Supervisors, 52 Cal. 3d 553, 564 (1990).
306
CEQA Guidelines § 15126.6(a).
307
See, e.g., Mira Mar Mobile Comty. v. City of Oceanside, 119 Cal. App. 4th 477, 489 (2004)
(“alternatives need not satisfy all project objections, they must merely meet ‘most’ of them”); Habitat &
Watershed Caretakers v. City of Santa Cruz, 213 Cal. App. 4th 1277, 1304 (2013) (a “limited water”
alternative project “could not be eliminated from consideration solely because it would impede to some
extent the attainment of the project’s objectives”).
308
Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal., 6 Cal. 4th 1112 (1993).
309
40 U.S.C. §§ 4332(2)(C)(iii) and(2)(E); 40 C.F.R. § 1502.10(e).
90
the regulations describe as “the heart of the environmental impact statement.” 310 Among other
things, the regulations prescribe that the document “[r]igorously explore and objectively evaluate
all reasonable alternatives” and that this discussion include “reasonable alternatives not within
the jurisdiction of the lead agency.” 311
The selection, analysis, comparison and “Environmentally Superior Alternative”
designation of alternatives in the Draft EIR/EIS for the Project violated multiple CEQA
requirements and were legally inadequate in every respect. In its Draft EIR/EIS Comments, the
City identified many significant flaws that completely undermined the analysis of Project
alternatives. Unfortunately, since no changes have been made in this exceptionally deficient
analysis, the Final EIR/EIS displays all of these same fatal deficiencies that can be summarized
as follows (and these are discussed in greater detail in the following sections):
• The Final EIR/EIS fails to examine a range of reasonable alternatives, in part because it
applies an improper “litmus” test to all alternatives, based on its reading of the Project
Objectives and Purpose and Need Statement, that every alternative evaluated in detail had
to produce at least 10,750 AFY of water to be eligible for consideration.
• In addition, because it improperly classifies the threatened major groundwater impacts as
“less than significant” (which is not supported by “substantial evidence” in the record), it
essentially removed this factor from consideration in selecting among alternatives.
• Amazingly, the Final EIR/EIS fails to evaluate any reduced size project alternative, even
though substantial evidence available both before and after issuance of the Draft EIR/EIS
demonstrated that the Project’s requested 10,750 AFY water amount was grossly inflated
and unnecessary. This failure contravenes CEQA’s requirement that it must “describe a
range of reasonable alternatives to the project, to the location of the project, which would
feasibly attain most of the basic objectives of the project but would avoid or substantially
lessen any of the significant effects of the project.” 312
• The Final EIR/EIS also fails to examine alternative projects that would be capable of
avoiding or substantially lessening any significant effects of the Project, including
expanded use of alternative water sources. It further does not properly evaluate
alternative intake options and disregarded, in its selection of intake technologies, the
risky and unproven nature of slant wells in its selection.
310
40 C.F.R. § 1502.14.
311
Id.
312
CEQA Guidelines § 15126.6(a).
91
• The comparison of alternatives across each category of environmental impact is wholly
inadequate because of the rampant deficiencies in the underlying environmental impact
analyses. Thus, for example, because it fails to properly find that many impacts were
significant (such as groundwater impacts, historic resources and environmental justices),
it did not properly weigh these impacts, thereby rendering any meaningful comparison
impossible.
• In comparing the limited alternatives that were evaluated in detail, the selection process
introduced new selection factors (such as “permitting complexities and delay”) that were
not applied equally across the alternatives. For example, the “permitting complexities
and delay” factor is a major articulated reason for not selecting the Moss Landing Project
as the Environmentally Superior Alternative, while this factor was not applied as it
should have been to the Marina desalination plant (Alternative 5a) even though its lack of
water rights, Agency Act and Annexation Agreement violation problems, complex
permitting path and other features clearly make it the most prominent of the alternatives
that is likely to be delayed or halted because of permitting complexities and delays.
• The selection of the supposed Environmentally Superior/Preferred Alternative
(Alternative 5a) is completely invalid in the Final EIR/EIS because of all of the
cumulative deficiencies in analyzing environmental impacts and in selecting and
comparing alternatives. For example, since no alternatives producing a total of less than
10,750 AFY of water made the cut, all groundwater impacts were considered less than
significant, the chosen slant well technology was not identified as risky with no proven
track record, a range of other environmental impacts were not properly identified, the
selection of Alternative 5a was invalid.
In the 15 months since the Draft EIR/EIS was issued, significant new information has
been discovered regarding potential alternatives to the Project. As part of evidentiary hearings
held by the Administrative Law Judges in October/November 2017, testimony emerged
regarding two alternative sources of water to meet CalAm’s system demand. The first is an
expansion of the Pure Water Monterey (“PWM”) Project, sometimes known as the “GWR”
Project, which treats recycled water to drinking water standards. This project has already
committed to deliver 3,500 AFY of water to CalAm and can expand and deliver 2,200 AFY of
further water through a relatively simple expansion. Second, MCWD has offered to sell water to
CalAm and negotiations are underway.
These new water supplies are discussed in detail in Section II.A.1. of this brief above.
However, when coupled with the companion testimony at the evidentiary hearing that CalAm’s
92
demand for the Project is overstated by at least 5,000 AFY, these water sources are viable and
reasonable alternatives to building a huge, expensive and environmentally impactful desalination
plant. The written and oral hearing testimony on these alternative projects was extensive. Given
the advanced state of development of these projects, they should have been added as feasible
alternatives in the Final EIR/EIS.
The Final EIR/EIS was issued on or about March 30, 2018. However, despite all of the
comments by many agencies, organizations and individuals regarding the legal inadequacy of the
Draft EIR/EIS, the authors did not change any aspect of the alternative analysis. No new
alternatives were proposed (including any reduced size or PWM expansion alternatives), no new
or rebalanced weighing of alternatives was done, and the analysis and selection of the
Environmentally Superior Alternative did not change. The Responses to Comments essentially
disagreed with all factual and legal contentions by Marina and other commenters on these issues
and “doubled down,” unreasonably and without substantial evidence in the record, on the
selection of Alternative 5a.
Accordingly, in the sections below, we will explain how the Final EIR/EIS’s alternatives
analysis is legally inadequate in every respect. The responses to comments fail to meet CEQA or
NEPA standards and are no more than an after-the-fact effort to justify an exceptionally weak
analysis that cannot withstand legal scrutiny.
b. The Final EIR/EIS’s Failures To Adequately State Project Objectives/Need Or
To Adequately Analyze Project Environmental Impacts Fatally Undermine The
Alternatives Analysis.
In its Draft EIR/EIS Comments, the City explained how the selection of the grossly
inflated figure of 10,750 AFY supposedly being needed from the Project, based on the incorrect
water demand and supply sections of the Draft EIR/EIS resulted in “an across-the-board
elimination of any Project alternative that does not result in a total Project water production
number of 10,750 afy.” We also pointed out that Alternatives 5a and 5b, which would produce
6.4 mgd of water, were only being considered if they were paired with the GWR Project that
would produce 3,500 AFY of water, for a total water production of 10,750 AFY. 313
313
Final EIR/EIS in Chapter 8 (Draft EIR/EIS Comments and Responses), Section 8.5 (Local Agency
29, 2017)), at p. 8.5-92.
93
In its Comment Responses on this point, the Final EIR/EIS takes a position that insults
the intelligence of any reader of the document. It states that it does in fact evaluate two projects
(Alternative 5a and 5b) that are “reduced size” projects because these projects would only
generate 6.4 mgd of water. 314 In so doing, they ignore the fact that, in its Project Description
(Exhibit H), CalAm proposed this as an alternative Project variant so long as it was paired with
the 3,500 AFY of water from the GWR Project:
“The MPWSP also includes a variation of the proposed action that combines a
reduced-capacity desalination plan with a water purchase agreement for 3,500
product water from the Monterey Regional Water Pollution Control Agency’s
(MRWPCA) proposed Pure Water Monterey Groundwater Replenishment (GWR)
Project. The MPWSP variant consists of the construction of up to eight
subsurface slant wells and a desalination plant to produce on average
approximately 6,752 acre feet per year (afy) of desalinated water to meet service
area demand and return water requirements to the Salinas Valley Groundwater
Basin. The MPWSP variant would change the desalination facility to a 6.4
mgd.” 315
Accordingly, this is a variation proposed by CalAm that, in combination with the
approval of a water purchase agreement for GWR water, would produce 10,750 AFY of water
per year. In fact, the Commission did approve CalAm’s water purchase agreement for the GWR
Project in September 2016 and this project is currently under construction and expected to be
completed and delivering all 3,500 water to CalAm by 2020.
The Draft EIR/EIS made it absolutely clear (and the Final EIR/EIS retains this text) that
alternatives 5a and 5b (a 6.4 mgd desalination plant), based on this Project variant proposed by
CalAm was only acceptable if the GWR water purchase agreement was approved because only
then would the total production be 10,750 AFY. Thus, the Final EIR/EIS states the following for
Alternative 5a:
“This alternative is a variation of the proposed project, the implementation
of which would be contingent upon the successful implementation of the Pure
Water Monterey Groundwater Replenishment Project (GWR). . . . CalAm
proposes to build a desalination plant with the capacity to produce up to 9.6 mgd
of desalinated product water (proposed project), but also seeks authorization to
reduce the size of the proposed plant to provide 6.4 mgd, and to purchase
product water from the proposed GWR Project if it becomes clear that the GWR
314
Marina), at pp. 8.5-627 – 8.5-628.
315
Amended Application 12-04-019 (March 14, 2016), Appendix H (Updated), at p. 1; emphasis added.
94
Project will be completed and on line in a timeframe that can supply water to
meet the proposed project’s purpose and needs (CalAm, 2016). Since the GWR
Project was approved by the MRWPCA in October 2015, and the CPUC in
September 2016 authorized CalAm to purchase 3,500 afy of the GWR supply
for extraction from the Seaside Groundwater Basin, . . . .” 316
Thus, Alternatives 5a and 5b are not true “reduced project” alternatives because they are
based (like the variant 9.6 mgd plant) on a total new water production of 10,750 AFY rather than
on a major reduction from that total. Since CalAm has now been authorized to receive the
GWR/PWM water, CalAm’s original project description sought this variant and it became the
“proposed project” as of September 2016 from CalAm’s viewpoint.
In the Final EIR/EIS and comments, the authors take the ridiculous position that
Alternatives 5a and 5b are true “reduced project size” alternatives for the Project:
“The commenter is incorrect that the EIR/EIS does not analyze the alternative of a
smaller size that would produce less water than the proposed project (the
proposed project would be either a 9.6 mgd desalination plant or a 6.4 mgd
desalination plant that would be combined with a water purchase agreement
whereby CalAm would procure water from the GWR project for its customers). . .
. Alternatives 5a and 5b would produce approximately 3,500 afy less water than
the proposed project; as such, each of these alternatives would produce only two-
thirds of the water of a 9.6 mgd desalination plant.” 317
However, as this excerpt concedes, the 6.4 mgd plant is a “proposed project” by CalAm,
not a true alternative to the project. Moreover, this “response,” as the Final EIR/EIS authors
know, actually misses Marina’s point entirely. As Marina has contended for over one year in
Draft EIR/EIS comments, multiple CPUC filings and in briefing associated with the 2017 CPUC
evidentiary hearings, the true future customer demand for this Project (and either variant) is not
10,750 afy in total, but a much lower amount. Thus, since 3,500 AFY of the demand is already
being satisfied by the GWR/PWM Project, a “reduced project size” alternative should have
looked at a project that was considerably smaller than 6.4 mgd. Rather, it should at most be in
the range of 2,000-3,000 AFY). The cases cited in Marina’s Draft EIR/EIS Comments explain
how the Final EIR/EIS is legally inadequate for not doing so.
316
Alternatives Evaluated in Detail), subpart 5.4.7 (Alternative 5a), at p. 5.4-50; emphasis added.
317
Marina), at p. 8.5-625.
95
c. The Final EIR/EIS Is Not Adequate Because It Failed To Determine That
Groundwater Resource Impacts Are Significant, Thereby Fatally Undermining
The Selection And Comparison Of Alternatives.
In its Draft EIR/EIS Comments, Marina explained that the legally inadequate analysis of
the Project’s groundwater impacts in Section 4.4 undermined the alternatives analysis here
because of “a high risk of significant impacts to groundwater supply, groundwater quality and
groundwater storage as a result of the Project, particularly in the aquifer areas underlying
Marina.” 318 The Final EIR/EIS refuses, without substantial evidence, to change its analysis of
the significance of potential impacts, despite all of the new and significant evidence that has
emerged in the last 15 months on this topic. As detailed here and supported by all of the new
expert reports, including the analysis in Marina Final EIR/EIS Comments, Appendix 1
(Technical Memorandum of Mike Tietze), it is virtually certain that large significant individual
and cumulative impacts to groundwater will occur from the Project.
Accordingly, this failure to recognize the significance of groundwater impacts, means
that the comparison of alternatives was not properly done. Thus, when comparing Alternative 5a
to other alternatives, they found that both the Project and all alternatives had less than significant
impacts on groundwater. However, if the Project had been properly as having significant
impacts on groundwater resources, the alternatives would have been significantly more favorable
to the Project and it would not have been chosen as the Environmentally Superior Alternative.
d. The Draft EIR/EIS’s Screening Of Alternatives Was Fatally Flawed and Not
Corrected in the Final EIR/EIS.
As the City stated in its Draft EIR/EIS Comments, the Draft EIR/EIS fully evaluated only
six alternatives (treating Alternatives 5a and 5b as separate alternatives) to the Project plus the
No Project Alternative. 319 The alternative screening process followed in the Draft EIR/EIS
basically involved two types of reviews. First, in section 5.2, certain previously identified
projects (such as the Coastal Water Project and the MCWRA Interlake Tunnel and Water Supply
Project) were rejected on a variety of grounds. Second, in section 5.3, the Draft EIR/EIS utilized
a “development, screening and evaluation process” to identify other alternatives. However, for
reasons that are not explained, this selection process had an unreasonably narrow scope: it
318
29, 2017)), at p. 8.5-93.
319
Id., at pp. 8.5-91 – 8.5-97.
96
focused only on options for the source water “intake” component. The Appendices that contain
this analysis (I1 and I2) only examined these component options and one option of siting the
desalination plant on another property. 320
Unfortunately, as described below, the Final EIR/EIS fails to change, and thereby
perpetuates, these significant deficiencies in the CEQA/NEPA analysis for the Project.
(1) The Final EIR/EIS Is Legally Inadequate For Failing To Include A Smaller
Project Alternative.
As described above, there are many critical deficiencies in this analysis that improperly
screened out several alternatives that should have been evaluated, three of which we will discuss
here. First and foremost, there is no Project alternative (including Alternatives 5a and 5b) which
constitutes a Project with a smaller total water “demand” target that aligns with the actual Project
water needs. No screening of any kind occurred with regard to a smaller Project that would
dramatically lower the type and intensity of the Project’s environmental impacts. Instead, the
Final EIR/EIS rejects at the outset the only Project alternative that would produce less than
10,750 total AFY of water.
The failure of the Final EIR/EIS to consider any alternative standalone Project that would
generate less than 10,750 afy of water is a critical deficiency in the alternatives analysis,
particularly given the wide range of potentially very significant impacts to the groundwater
aquifers and sensitive coastal ecosystem caused by such a large Project. The CEQA and NEPA
case law is clear that only “most,” not “all,” of a Project’s objectives (CEQA or NEPA) need to
be met by an alternative. For example, a court invalidated an EIR alternatives analysis under
CEQA because the public agency failed to evaluate any “limited water” alternative because it did
not meet the primary project objective of high-density housing – the court ruled that this
alternative should have been included because it was a feasible alternative that would avoid some
of the Project’s significant environmental effects. 321 Similarly, a federal court invalidated a
NEPA alternatives analysis for a private landfill project in California because an unduly limited
“purpose and need” statement (which the court criticized because the federal agency allowed the
private interests to define most of the scope of the proposed project) improperly restricted the
scope of the alternatives that were considered in the EIS. 322
320
Id.
321
Habitat &Watershed Caretakers v. City of Santa Cruz, 213 Cal. App. 4th 1277 at 1303-1304 (2013).
322
Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1061 (9th Cir. 2010).
97
Therefore, the failure of the Final EIR/EIS to include any alternative that would not meet
the 10,750 afy water demand request from CalAm (which is not even a figure adequately
supported or even identified in the Project Objectives) incorrectly and unreasonably limited the
scope of the alternatives analyzed, thereby undermining the legal adequacy of the alternatives
analysis.
(2) The Intake Option Analysis Omitted Key Technology Considerations.
A second major deficiency in the screening process involved the factors used in the
selection of the intake options. The options analysis did not consider a full range of factors
because it excluded any consideration of reliability and past success rate (if any) of the intake
technology chosen. This complete failure to take into account these fundamental technology
considerations – which have played an important role in desalination plant intake analyses
conducted for many other California projects – unreasonably skewed the selection of alternatives
in favor of the proposed slant well intake option.
(3) No Alternatives Were Selected To Avoid Or Lessen Significant And
Unavoidable Impacts.
A third major deficiency in the screening process relates to the failure to propose
alternatives to avoid or lessen significant and unavoidable environmental impacts. The CEQA
Guidelines specify: “Because an EIR must identify ways to mitigate or avoid the significant
effects that a project may have on the environment (Public Resources Code § 21002.1), the
discussion of alternatives shall focus on alternatives to the project or its location which are
capable of avoiding or substantially lessening any significant effects of the project, even if these
alternatives would impede to some degree the attainment of the project objectives, or would be
more costly.” 323 There is no evidence here that the alternatives chosen are designed to avoid or
lessen such impacts. In addition, as described above, the key groundwater impact analysis in
connection with weighing alternatives never occurred because this impact was improperly found
not to be significant.
The Project would also result in significant and unavoidable impacts related to air quality
and greenhouse gas emissions, and potentially significant impacts related to energy conservation,
yet none of the alternatives evaluated in Chapter 5 would reduce impacts associated with these
issue areas. Despite the fact that one primary Project objective is to “Minimize energy
323
CEQA Guidelines § 15126.6(b).
98
requirements and greenhouse gas emissions per unit of water delivered,” 324 anticipated impacts
to air quality, greenhouse gas emissions and energy conservation are either similar or increased
compared to the proposed Project for every alternative evaluated in Chapter 5. An alternative
should have been developed to reduce impacts related to these impacts. For example, the
Landfill-Gas-to-Energy Option was not explored further as a potential Alternative project
component for consideration by the lead agencies. 325 Instead, it was only briefly discussed as a
possibility in Chapter 4, Section 4.18, and identified as requiring separate environmental
review. 326
e. The Description Of The Projects Evaluated In Detail Is Legally Deficient.
Chapter 5, Section 5.4, of the Final EIR/EIS discusses each of the seven final alternatives
(including the No Project Alternative) that it decided to carry through to this level of analysis. 327
Each individual discussion contains a section entitled “Ability to Meet Project Objectives.”
Several of these alternatives are stated flatly to not meet the Project need for water because they
do not meet CalAm’s request for a Project that generates 10,750 afy of water. These conclusions
are reached for the No Action Alternative, the Potrero Road slant well alternative, and the
reduced size alternatives (5a and 5b) standing on their own. 328 However, as explained above,
these analyses are inadequate because they are based on a legally deficient statement of Project
objectives and needs.
f. The Alternatives Impact Analyses Are Legally Inadequate.
Chapter 5, Section 5.5, of the Final EIR/EIS attempts to compare the seven alternatives to
the Project across each category of environmental impact discussed earlier in the document. 329
However, most of these comparative analyses cannot be done properly because of the
inadequacies in the underlying environmental impact discussions. For example, Marina has
demonstrated that the Project will potentially cause a significant impact to historic resources.
324
Final EIR/EIS, Chapter 5 (Alternatives Screening and Analysis), Section 5.1 (Introduction and
Overview), at p. 5.1-5.
325
Measures), Section 4.18 (Energy Conservation), Subpart 4.18.4.3 (Land-Gas-to-Energy Option), at p.
4.18-13.
326
Id.
327
Alternatives Evaluated in Detail), at p. 5.4-1, et seq.
328
Id., at pp. 5.14-10, 5.14-15, 5.4-57.
329
Final EIR/EIS, Chapter 5 (Alternatives Screening and Analysis), Section 5.5 (Alternatives Impacts
Analysis), at p. 5.5-1, et seq.
99
The Final EIR/EIS fails to identify these historic resources and wrongly concluded that no such
impact will occur. This deficiency is carried through into this alternatives comparison because
the Draft EIR/EIS wrongly concludes that other alternatives which have no impacts on such
resources have the same lack of impact as the Project and are therefore equivalent on this
parameter. These same types of deficiencies are present in many of the analyses, rendering any
meaningful comparison impossible.
One comparative impact discussion bears particular attention. The comparison of
alternatives across the groundwater resource parameter are entirely inaccurate because of a range
of deficiencies/ For example, since the Final EIR/EIS incorrectly concludes, without substantial
support in the record, that the Project’s potential impacts to groundwater quality and
exacerbation of seawater intrusion are supposedly “less than significant,” 330 it incorrectly takes
the position that Project alternatives that clearly do not pose any risk to groundwater quality or
seawater intrusion impacts, including all the open water intake options, are the same as the
Project on this parameter because they too will have a less than significant impact on
groundwater resources. This approach improperly eliminates any analysis of the relative impacts
of the alternative projects on the groundwater aquifers.
g. The Selection Of The Environmentally Superior/Preferred Alternative Is Legally
Inadequate Due To The Accumulated Deficiencies In The Project Description,
Impact Analyses, Mitigation Measures And Selection Of Alternatives.
The selection of the environmentally superior alternative under CEQA (and “preferred
alternative” under NEPA) is based on a comparison of the alternatives based on all the factors
discussed above. Where, as here, the Project objectives/needs and individual impact analyses are
inadequate, the selection of an environmentally superior alternative cannot be made. For these
reasons, the litany of critical deficiencies in the prior CEQA sections makes it impossible to
make such a selection. Accordingly, the selection process here was inadequate and the selection
of Alternative 5a as the environmentally superior alternative (CEQA) and preferred alternative
(NEPA) is not supported by substantial evidence in the record.
Nonetheless, Chapter 5, Section 5.6, of the Final EIR/EIS concludes that Alternative 5a,
which includes a 6.4 mgd desalination plant with slant wells at the CEMEX site in Marina, and if
and only if combined with 3,500 afy from the GWR/PWM project, is the environmentally
superior/preferred alternative. It is explicitly stated not to be the environmentally superior
330
Id., at p. 5.5-83.
100
alternative as a standalone project because it would not generate the total water demand sought
by CalAm. 331
The selection of Alternative 5a is the unfortunate result of a series of accumulated
deficiencies in the Final EIR/EIS analytical process, including the following:
• The Final EIR/EIS failed to prepare an accurate water demand and supply analysis to
determine the true water need for the Project, thereby wrongly concluding that only
projects that produced a total of 10,750 AFY would meet Project objectives/purpose and
need.
• During the early stage of the alternative selection process, any project that did not
produce the requisite total of 10,750 AFY of water was screened out and did not become
a project alternative that went through the detailed alternative evaluation process. This
resulted in all true “reduced sized” alternative projects being rejected at the outset of the
process.
• Rather than determining that the proposed project alternatives (both the 6.4 or 9.6 mgd
variants) were not feasible because they did not have an accepted path forward for
obtaining water rights, were barred by exportation ban in the Agency Act, and violated
the groundwater withdrawal cap in the Annexation Agreement, the Final EIR/EIS
mistakenly determined that Alternative 5a was feasible in all respects. Thus, instead of
Alternative 5a being determined at the outset to be infeasible, it became an alternative
that was evaluated.
• Key environmental impact sections in the Final EIR/EIS incorrectly determined that
certain significant impacts of Alternative 5a – including those on groundwater resources,
cultural/historical resources and socio-economic impacts/environmental justice – were
“less than significant.” As a result, no effort was made to identify alternatives that would
avoid or minimize those significant impacts.
• When comparing technology and project alternatives, the Final EIR/EIS introduced
evaluation criteria (such as project permitting and delay issues) that it did not apply
equally to all alternatives. Thus, for example it found that significant permitting and
delay issues existed for other alternatives, even though it did not for Alternative 5a, even
though Alternative 5a faces a daunting permitting gauntlet and almost certain and lengthy
litigation delays due in large part to its feasibility issues.
331
Final EIR/EIS, Chapter 5 (Alternatives Screening and Analysis), Section 5.6 (Environmentally
Superior/Environmentally Preferred Alternative), Subsection 5.6.2 (Determination of Environmentally
Superior/Environmentally Preferred Alternative), at p. 5.6-7.
101
• In examining environmental impacts, the Final EIR/EIS diverted too quickly into finding
that certain Project impacts were “significant and unavoidable” and thereby set up a
process by which it tried to avoid having to develop alternatives that would reduce those
significant impacts to less than significant levels. If the legally required CEQA analysis
had been done, the Lead Agencies would have developed alternatives that reduced such
significant impacts.
The comparative impact analysis for the Potrero Road Alternative (Alternative 1) is
particularly deficient. This alternative involves installing the subsurface slant wells at the
Potrero Road site and running the source water pipeline from that location to the desalination
plant. In the discussion of the impacts caused by each alternative, 332 this alternative is stated to
have “significant and unavoidable impacts” because it supposedly captures groundwater that
would flow into Elkhorn Slough. However, this conclusion is not supported by substantial
evidence. The prior impact discussion on which it is based states only that slant well pumping at
this location “may” draw in groundwater that could recharge the Slough, but then adds:
“However, quantification of such an effect is not feasible within the context of the model given
the location of Elkhorn Slough relative to the northern boundary of the NMGWM.” 333
It also appears that several of the alternatives that are identified – possibly including the
Potrero Road alternative and the ocean intake alternatives – would in fact be an environmentally
superior alternative if a full and legally adequate set of environmental impact analyses had been
prepared. Moreover, if true “reduced size” Project alternatives had been evaluated, there is no
doubt that they would be environmentally superior to the current designated environmentally
superior option because of the lessened size and scope of their environmental impacts. However,
these potential alternatives were eliminated based on the agencies’ failure to properly scrutinize
CalAm’s inadequately supported request for a project that generates 10,750 afy of water.
In sum, the selection of the environmentally superior alternative (CEQA) and preferred
alternative (NEPA) is invalid because the necessary factual and legal analyses that underpin the
selection criteria and comparison are legally inadequate. This alternatives analysis must be
completely redone and recirculated for public comment in a new Final EIR/EIS that addresses all
of these deficiencies
332
Id., at p. 5.6-5.
333
Final EIR/EIS, Chapter 5 (Alternatives Screening and Analysis), Section 5.5 (Alternatives Impacts
Analysis), at p. 5.5-86.
102
E. Other
1. The Commission Cannot Find that There are “Overriding Considerations” that
Would Support Adoption of the Environmentally Superior Alternative.
To the extent that the Final EIR “identifies an Environmentally Superior Alternative,” in
order to adopt that alternative, the Commission must find that this alternative is “feasible and
consistent with the application of §1002.” 334 To the extent that such alternative “results in
significant environmental impacts that cannot be mitigated,” the Commission must find “that
there are substantial benefits that outweigh those impacts and which constitute overriding
considerations under CEQA.” 335
Clearly, the issues of “feasibility” and consistency with Section 1002 are threshold
considerations to determine whether any of the Alternatives studied by the Final EIR/EIS,
including the Environmentally Superior Alternative (ESA), can be adopted. The analysis in
Section II.A through D. make clear that the necessary factual and legal analyses that underpin the
selection criteria and comparison of the Alternatives considered are legally inadequate, and in
turn, their feasibility has not been established. In fact, given the absence of necessary water
rights and conflicts with other laws and agreements that apply to the Alternatives deriving from
CalAm’s Project variants, each is legally infeasible. On those grounds alone, the Alternatives,
including the ESA, do not meet the threshold test of feasibility and cannot be adopted by the
Commission.
In terms of compliance with the “totality” of the criteria required by Section 1002, this
issue is discussed further below in Section III.a. However, as that discussion, this Brief, and
Marina’s testimony and briefs from the CPCN hearings demonstrate, the Project Alternatives
sited in Marina, including the ESA considered by the Final EIR/EIS, impose significant and
adverse impacts on Marina’s environment, community values, recreational and park areas, and
historical and aesthetic values, that cannot be mitigated. 336 Further, the Final EIR/EIS’s
assessments fail to properly consider how those impacts are exacerbated for a disadvantaged and
“environmental justice” community like Marina.
334
D.09-12-044, at p. 4.
335
Id.
336
Ex. MNA-1, at pp. 10-25 (Marina (Delgado/Long); Marina Opening Brief on CPCN Issues (December
15, 2017), at pp. 37-50; Marina Reply Brief on CPCN Issues (January 9, 2018), at pp. 29-33.
103
It is the case that a Lead Agency, even in the face of significant impacts from a Project
that cannot be mitigated, can adopt an ESA if it “determines that any remaining significant
effects found to be unavoidable are acceptable due to overriding considerations.” 337 Thus,
pursuant to CEQA Guidelines §§15093(a) and (b):
“(a) CEQA requires the decision-making agency to balance, as applicable, the
economic, legal, social, technological, or other benefits, including region-wide or
statewide environmental benefits, of a proposed project against its unavoidable
environmental risks when determining whether to approve the project. If the
specific economic, legal, social, technological, or other benefits, including region-
wide or statewide environmental benefits, of a proposed project outweigh the
unavoidable adverse environmental effects, the adverse environmental effects
may be considered ‘acceptable.’
“(b) When the lead agency approves a project which will result in the occurrence
of significant effects which are identified in the final EIR but are not avoided or
substantially lessened, the agency shall state in writing the specific reasons to
support its action based on the final EIR and/or other information in the record.
The statement of overriding considerations shall be supported by substantial
evidence in the record.” (Emphasis added.)
However, as required by §§15093(b) and (c), this statement must be “supported by substantial
evidence in the record” and does “not substitute for the findings” required by CEQA to adopt a
Project Alternative.
While the Final EIR/EIS references the Commission’s ability to provide a Statement of
Overriding Considerations where “the residual significant adverse impact that cannot be
mitigated to less than-significant level is outweighed by project benefits,” 338 the Final EIR/EIS
does not provide such a Statement for the impacts it identifies cannot be mitigated to less than
significant levels for the ESA. Instead, that determination correctly lies with the Commission.
The Commission’s decisions with respect to such statements are highly informative about
the “benefits” that actually have to exist to “override” significant impacts that cannot be avoided
or substantially lessened. In most instances, an “overriding” benefit usually rests on a finding
that the ESA or Project has statewide or regional value, such as a transmission line “facilitating
California’s policy goals of renewable procurement within a reasonable of time at the lowest
environmental cost.” 339 However, even in cases involving pipelines or transmission lines that
337
D.09-12-044, at p. 22.
338
Final EIR/EIS, Chapter 1 (Introduction and Background), Section 1.6 (Organization of Final EIR/EIS),
at p. 1-18.
339
D.09-12-044, at p. 64-65.
104
cross multiple communities, the Commission still gives great weigh to “the concerns of local
community and their local officials” 340 and, most notably, will not select an alternative that
“effectively ignores community values and places an unfair and unreasonable burden on” a
community’s residents.” 341
In the case of projects proposed by water corporations, “overriding considerations”
include finding that the Project is “necessary to [the] region and will promote numerous local
and regional economic and community benefits to promote the safety, health, comfort, and
convenience of the public.” 342 Such benefits are required even in the face of “limited”
unavoidable Project impacts.” 343
This type of finding was certainly required in the case of the predecessor desalination
project proposal to the MPWSP – namely, the Coastal Water Project. In that case, the Coastal
Water Project was supported by a broad settlement agreement and provided water-supply
benefits beyond CalAm’s service territory, in turn, benefiting the region in a manner that would
also lower water was found to be a “reasonable and fair solution to water constraints on the
Monterey Peninsula that will satisfy the Cease and Desist Order provisions.” 344 Specifically, and
as noted in Section I. above, the Commission determined that the Coastal Water Project would
provide adequate, reliable water supplies to residents of the Monterey Peninsula, including both
CalAm and MCWD customers; 345 would protect and promote the Monterey economy (on a
county-wide basis); would result in significant environmental benefits to the Carmel River;
would involve low-cost financing options from the participating public agencies that would
benefit ratepayers; would allow for more coordinated and comprehensive planning of water
supplies on the Monterey Peninsula (“not only within CalAm’s service territory, but also in other
areas of northern Monterey County”); and would maintain the hydrologic balance of the Salinas
Valley Groundwater Basin “by adhering to the Agency Act.” 346
None of these factors apply to the Environmentally Superior Alternative identified by the
Final EIR/EIS here. That Alternative does not have region or even county-wide benefits, nor
340
D.00-05-048, at pp. 33-36.
341
D.13-07-018, at p. 2.
342
343
Id., at pp. 113, 126.
344
D.10-12-016, at p. 10.
345
Id., at p. 87.
346
D.10-12-016, Appendix B, at p. 88-90.
105
does it extend its water supply to customers other than those served by CalAm. While it may
provide a means for CalAm to cease drawing water from the Carmel River, which could be said
to inure to the benefit of the broader community, there is substantial evidence in the record in
this Application, ignored by the Final EIR/EIS, that, based on a reasonable projection of CalAm
customer demand and existing and future CalAm water supplies, a 6.4 mgd desalination project
is simply not needed and certainly too expensive for CalAm ratepayers to afford. Worse, the
ESA is not legally feasible and does not “adhere” to the Agency Act, as detailed above, and
visits all of its significant, adverse, unmitigable impacts on an environmental justice community,
the City of Marina, that will not be supplied with any of the water produced by the Project. Such
an outcome clearly creates an “undue burden” on Marina and its community values that no
Project “benefits” outweigh. Put simply, the Commission has no basis for, and there is no
“substantial evidence” that supports, a finding that the ESA can or should be adopted.
2. Recirculation Of An EIR Is Required When Significant New Information Is Added
To An EIR After Public Notice Of The Draft EIR Is Given.
As we have explained in the sections above, significant new information has emerged
both before and after issuance of the Final EIR/EIS for the Project that requires recirculation of
the document for another round of public review and comment. Although CEQA does not
require that recirculation occur “where the new information added to the EIR merely clarifies or
amplifies or makes insignificant modifications in an adequate EIR,” it must occur where the
addition of new information deprives the public of a meaningful opportunity to comment on
substantial adverse project impacts or feasible mitigation measures or alternatives that the lead
agencies do not adopt. 347
CEQA Guideline Section 15088.5(a) provides four examples where “significant new
information” added to the Final EIR after release of the Draft EIR would require recirculation:
(1) A new significant environmental impact would result from the project or from a new
mitigation measure proposed to be implemented.
(2) A substantial increase in the severity of an environmental impact would result unless
mitigation measures are adopted that reduce the impact to a level of insignificance.
(3) A feasible project alternative or mitigation measure considerably different from others
previously analyzed would clearly lessen the significant environmental impacts of the
project, but the project’s proponents decline to adopt it.
347
CEQA Guidelines §§ 15088.5(a) and (b).
106
(4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature
that meaningful public review and comment were precluded.
Although CEQA Guidelines Section 15088.5 only applies to recirculation when
significant new information is “added to” a Final EIR, California case law has extended the same
recirculation rule to significant new information that is submitted prior to certification of the
Final EIR but not added to the Final EIR/EIS. Thus, the courts have held that significant new
information received prior to certification should have been added to the Final EIR and
recirculated for public comment. 348
The Cadiz Land Co. v. Rail Cycle, 83 Cal. App. 4th 74 (2000) (Cadiz) is particularly
instructive in the context of CalAm’s Project. This case involved the County of San
Bernardino’s certification of a Final EIR/EIS for a landfill project in the Mojave Desert. An
agricultural landowner appealed approval of the project and certification of the EIR, in part
because of concerns that the landfill would contaminate the groundwater it used. After issuance
of the Final EIR/EIS, but before EIR certification and project approval, a groundwater report was
submitted that provided new information on the volume of the aquifer and which created
concerns about potential groundwater contamination of the aquifer. The Final EIR/EIS had
concluded that groundwater contamination was “highly unlikely” and “not a significant impact.”
The County did not include this information in a revised and recirculated Final EIR.
The appellate court in Cadiz held that the failure to discuss this significant new
information in the Final EIR and recirculate it for public comment made the document deficient
and required preparation of a revised and recirculated EIR. 349 The court stated that the new
information regarding the volume of the aquifer was important and that “[i]n order to weigh and
evaluate the risk of groundwater contamination, the volume of water subject to contamination is
required.” 350 It also noted that the aquifer was in overdraft and the new groundwater report
contained information regarding the cone of depression and groundwater flow direction that
could adversely impact the agricultural operation’s water. Finally, it observed: “Certainly the
348
E.g., Save Our Peninsula Comm. v. Monterey County Bd. of Supervisors, 87 Cal. App. 4th 99, 131
(2001)(information regarding a new mitigation measure should have been included in Final EIR and
recirculated for public comment); Cadiz Land Co. v. Rail Cycle, 83 Cal. App. 4th 74, 95 (2000)
(“Cadiz”)(information in expert reports submitted to agency after completion of Final EIR/EIS should
have resulted in revisions to the document and then been recirculated for public review and comment).
349
Cadiz Land Co. v. Rail Cycle, supra, 83 Cal. App. 4th at 81.
350
Id., at 92.
107
public has a right to know whether a large source of water, which may be used for drinking water
and other domestic uses, is being subjected to potential contamination.” 351
In the present CalAm proceeding, during the 15-month period since the Draft EIR was
publicly noticed in January 2017 and the present time, a huge amount of significant new
information has become available that demonstrates a substantial increase in the presence and
severity of environmental impacts (particularly in the groundwater impact area), the availability
of viable new Project alternatives, new community values/environmental justice evidence, the
presence of a listed historical resource in the area of direct impact, identification of a potentially
significant impact related to emergency response and evacuation requiring mitigation, changes in
the Project description, and other important environmental information. Taken either
individually or cumulatively, this significant new information triggers the need for Final EIR/EIS
recirculation for public review and comment.
This significant new information includes (but is not limited to):
• New Groundwater Impact Reports: A series of important and directly relevant reports
regarding the conditions, hydrogeology issues, and increased severity potential
groundwater impacts of the in the Salinas Valley Groundwater Basin have been issued,
including a new MCWRA seawater intrusion report recommending a ban on new wells,
several new and groundbreaking reports and data from the Stanford team led by Dr.
Rosemary Knight, and new reports and expert analyses on groundwater impacts by or in
response to the Hydrogeologic Working Group . The groundwater impact issues are a
central public concern for the Project and these reports provide dramatic new information
regarding the condition, dangers and serious environmental impacts of the Project on
Basin groundwater. This significant new information alone compels revision and
recirculation of the Final EIR under the principles of the Cadiz case cited above.
• New Project Alternatives Information: The Commission held evidentiary hearings in
October/November 2017 that created a record on alternative water projects that could
address most or all of CalAm’s future customer water demand. The most prominent
project is a viable and feasible expansion of the Pure Water Monterey Project. These
projects are exciting new, significant and viable alternatives to the Project that were not
considered in the Final EIR/EIS.
• New Reduced Project Demand Information: One key focal point of the Commission’s
October/November 2017 hearings was on the dramatic reduction in CalAm’s service area
customer water demand of about 5,000 AFY in the last ten years. Four experts testified
351
Id., at 94.
108
that this has resulted in the true demand for the Project being significantly less than
previously thought. Although the Final EIR/EIS states that this information is being
“taken into account,” it should have been included in a revised and recirculated EIR/EIS.
• New Marine Resource Impact Information: The Final EIE/EIS still fails to survey and
establish a baseline for 11 marine species that exist within the immediate area of the
discharge point and will likely be adversely affected by the Project, including the Stellar
sea lion, three species of seals, two protected sea turtles and other species. It also fails to
find, as it should, that impacts to squid are significant. As a result, the document does not
adequately assess the potential impacts of the brine discharge to these species and this
information must be added the EIR/EIS and recirculated.
• Potential Coastal Ecosystem Impacts: The Final EIR/EIS section on impacts to the
coastal ecosystem, including to protected species, special habitats, unique sand dunes and
other resources is woefully inadequate in multiple respects. The baseline information and
ESHA determination are inaccurate and incomplete, the assessment of impacts is
fundamentally flawed, the proposed mitigation measures lack enforceability and are not
consistent with CEQA requirements and the assessment of consistency with the City’s
Local Coastal Program is rife with errors. The EIR/EIS must be supplemented with the
significant new information that is available and recirculated.
• New Environmental Justice Impact Evidence: In the CPUC evidentiary hearings held
in October/November, a great deal of new information was provided regarding the
anticipated impacts of the Project on the economic, social, cultural and environmental
resources and values of the City of Marina. This information demonstrated that,
individually and cumulatively, the Project would likely have dramatic impacts on the way
of life and fabric of this diverse, working class community. However, none of this
information was taken into account in the revised socio-economic/environmental justice
section of the Final EIR/EIS, thereby resulting in a wholly unsupported and incorrect
finding that the Project would not have a significant impact on Marina. It is absolutely
essential that the EIR/EIS be revised with this significant new information and be
recirculated.
In view of the key missing information, faulty Project Objective/Purpose and Need
statements, inadequate analysis of multiple environmental impacts, deficient mitigation
measures, and resulting inability to properly select and evaluate alternatives, this Final EIR/EIS
must be completely redone and recirculated for public review and comment. Each of the four
specific criteria for recirculation in CEQA Guidelines § 15088.5(a) is met here, including that
109
“the draft EIR was so fundamentally and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded.” 352
III.
PRESENT AND FUTURE PUBLIC CONVENIENCE OF THE PROJECT –
ENVIRONMENTAL FACTORS
A. Public Utilities Code Section 1002(a)(4) and Other Law

PU Code Section 1002(a) sets forth the four factors to which the Commission must give
consideration in determining whether to grant a CPCN for a proposed jurisdictional-utility
Project, like the MPWSP here. These factors include: (1) “Community values,” (2)
“Recreational and park areas,” (3) “Historical and aesthetic values,” and (4) “Influence on
environment.” As stated previously, while the first three factors may have been considered in a
CPCN phase of this Application, they are each are considered “instructive” in determining
among the Alternatives considered for the Project, including, and most particularly, the
“Environmentally Superior Alternative.” 353 Further, it is only in “[b]alancing these four factors”
that the Commission can determine whether the Environmentally Superior Alternative “best
satisfies the totality of the criteria under §1002.” 354
The Commission has relied upon the CEQA review process as the “primary means of
environmental review” for the Commission to meet its statutory obligation under PU Code
Section 1002(a)(4) to assess a project’s “influence on the environment.” 355 However, the
Commission has also recognized that Section 1002 imposes a responsibility and review of
“health, safety and environmental concerns of those exposed to utility facilities [that] is not
limited to CEQA” and provides the Commission with “responsibility independent of CEQA to
include environmental influences and community values” in considering a CPCN request. 356
Even in cases where “different phases of a CPCN application exist between the environmental or
non-environmental portion of the case,” with “influence on the environment” primarily
considered in the CEQA process, “[t]his does not mean that the EIR would determine the
352
See, e.g., Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal., 6 Cal. 4th 1112, 1130 (1993);
Mountain Lion Coal. v. Fish and Game Comm’n, 214 Cal. App. 3d 1043 (1989).
353
See, e.g., D.09-12-044, at pp. 47-51.
354
D.09-12-044, at p. 51.
355
D.09-12-044, at p. 4.
356
Application of Southern California Edison for CPCN for Kramer-Victor Transmission Line,
(1990) (D.90-09-059) 37 CPUC2d 413, 453.
110
outcome of this issue.” 357 Instead, for the Commission to adopt the Environmentally Superior
Alternative, it must find that it feasible and consistent with the application of §1002” and “best
satisfies the totality of the criteria under §1002.” 358 Thus, Section 1002 as a whole “guides” the
Commission in its “selection of an appropriate alternative.” 359
What the entirety of Marina’s brief on the Final EIR/EIS here demonstrates, especially in
consideration of the October/November 2017 evidentiary record and briefs, is that all of the
Alternatives studied in the CEQA EIR process, including the ESA, are infeasible and have
adverse impacts on the City of Marina as to its environment, community values, recreational and
park areas, and historical and aesthetic values that are significant and cannot be mitigated. 360
There are also no “overriding considerations” (see, Section II.E.1. above) that would allow the
Commission to adopt the Environmentally Superior Alternative. As the Commission has made
clear, a Project alternative that “ignores community values and places an unfair and unreasonable
burden” on a single community’s residents cannot be authorized, even if the Project itself might
provide some statewide value, 361 which the MPWSP does not.
Instead, other Alternatives to satisfy project objectives must be pursued. In this case,
neither CalAm nor the Final EIR/EIS examined any Alternatives that would “satisfy the totality
of the criteria under §1002.” 362 Further, no desalination project Alternative is even required or
needed based on accurate assessments of CalAm’s demand and water supplies that will allow
CalAm to comply with the SWRCB CDO for the Carmel River.
B. Other
The City of Marina incorporates all of its prior arguments here. The City reserves the
right to respond to the Opening Briefs of other parties that may have introduced new material in
this “Other” category in its Reply Brief on the Final EIR/EIS.
357
D.00-05-048, at p. 28, citing with approval Application of Southern California Edison for CPCN for
Kramer-Victor Transmission Line, supra.
358
D.09-12-044, at pp. 4, 51.
359
D.09-12-044, at p. 46.
360
In addition to the argument presented in this brief on the Final EIR/EIS, including the Alternatives it
considered and selected, see also: Ex. MNA-1, at pp. 10-25 (Marina (Delgado/Long); Marina Opening
Brief on CPCN Issues (December 15, 2017), at pp. 37-50; Marina Reply Brief on CPCN Issues (January
9, 2018), at pp. 29-33.
361
D.13-07-018, at p. 2.
362
D.09-12-044, at p. 51.
111
IV.
RULE 13.13 REQUEST FOR ORAL ARGUMENT
Rule 13.13(b) of the Commission’s Rules of Practice and Procedure provides:
“(b) In ratesetting and quasi-legislative proceedings in which hearings were held,
a party has the right to make a final oral argument before the Commission,
provided that the party makes such request in its closing brief…” (Emphasis
added.)
In its Opening Brief on CPCN issues filed on December 15, 2017, the City of Marina
timely requested Oral Argument pursuant to this rule. 363 No action has been taken on that
request, and in the Fourth Amended Scoping Memo and Ruling of the Assigned Commissioner
Extending Deadline to December 31, 2018, issued on March 14, 2018, that ruling only references
“if oral argument is requested” the matter will be submitted on the date of oral argument, with
citation to Rules 13.13 and 13.14 of the Commission’s Rules of Practice and Procedure. 364
Because this brief on Final EIR/FEIS issues is referenced in the Fourth Amended
Scoping Memo and appears to be the “closing” brief in this Application, which is categorized as
ratesetting and in which hearings have been held, the City of Marina renews its request for oral
argument again here. Therefore, pursuant to Rule 13.13(b), the City of Marina requests that a
“final oral argument” in this Application be held on all CPCN and Final EIR/EIS issues with a
“quorum of the Commission…present.”
363
Marina Opening Brief on CPCN Issues (December 15, 2017), at p. 67.
364
Fourth Amended Scoping Ruling, at p. 4.
112
V.
CONCLUSION
Based on the law and record applicable to the Commission’s review of the Final EIR/EIS,
as detailed and supported in this brief, the City of Marina respectfully requests that the
Commission reach the findings and conclusions contained in the Summary of Recommendations
hereto and determine that the Final EIR/EIS is legally, factually, and scientifically inadequate
and cannot be certified.
Respectfully submitted,
April 19, 2018 /s/ SARA STECK MYERS
SARA STECK MYERS
ATTORNEY AT LAW
122 - 28th Avenue
San Francisco, CA 94121
Telephone: 415-387-1904
Facsimile: 415-387-4708
Email: ssmyers@att.net
And
PAUL P. (“SKIP”) SPAULDING, III
Farella, Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: 415-954-4918
Email: sspaulding@fbm.com
ATTORNEYS FOR THE
CITY OF MARINA
113
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Opening Brief of City of Marina On Feir & Feis 04-19-18

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Opening Brief of City of Marina On Feir & Feis 04-19-18

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BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA FILED

OPENING BRIEF OF CITY OF MARINA ON FINAL ENVIRONMENTAL

PAUL P. (“SKIP”) SPAULDING, III SARA STECK MYERS

ATTORNEYS FOR THE CITY OF MARINA

Dated: April 19, 2018

Table of Contents ............................................................................................................................. i

II. FINAL EIR/EIS ISSUES ...................................................................................................11

b. The Final EIR/EIS Analysis of Water Demand and Supply

1. The Final EIR/EIS Incorrectly and Misleadingly States the

(2) Impact 4-10-C (Cumulative Impacts) ..........................................................78

f. The Alternatives Impact Analyses Are Legally Inadequate ................................99

III. PRESENT AND FUTURE PUBLIC CONVENIENCE OF

VI. RULE 13.13 REQUEST FOR ORAL ARGUMENT ...................................................112

Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,

CALIFORNIA PUBLIC UTILITIES CODE

COMMISSION RULES OF PRACTICE AND PROCEDURE

Application of California-American Water

OPENING BRIEF OF CITY OF MARINA ON FINAL ENVIRONMENTAL

b. The Final EIR/EIS Fails To Articulate An Appropriate Feasibility Test For

A. Public Utilities Code Section 1002(a)(4) and Other Law

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