BEFORE THE PUBLIC UTILITIES COMMISSION

FILED
OF THE STATE OF CALIFORNIA 04/12/18
04:59 PM

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

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

JOINT REPLY IN SUPPORT OF

JOINT MOTION FOR PROMPT REFERRAL OF QUESTION
TO STATE WATER RESOURCES CONTROL BOARD
FOR EXPEDITED HEARING AND DECISION

Mark Fogelman Sara Steck Myers

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

Linda T. Sobczynski Juli Hofmann

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

Date: April 12, 2018

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

Ron Weitzman
23910 Fairfield Place
Carmel, CA 93923
For: Water Plus
ronweitzman@redshift.com
Telephone: (831) 375-8439
 The Moving Parties enumerated below hereby respectfully submit their Joint Reply to

the Responses to their Joint Motion for Prompt Referral of Question to State Water

Resources Control Board for Expedited Hearing and Decision. Assigned Administrative

Law Judges Gary Weatherford, Robert Haga and Darcie Houck have authorized this filing by

an email ruling electronically served on all parties on April 11, 2018, at 10:28 a.m.

On March 21, 2018, California Unions for Reliable Energy (“CURE”), Citizens for

Just Water (“Just Water”), the City of Marina (“Marina”), the Marina Coast Water District

(“MCWD”), the Public Trust Alliance (“PTA”), Public Water Now (“PWN”) and Water Plus

(“WP”) (together, the “Moving Parties”) sought this Commission’s prompt referral of a

question of fact to the State Water Resources Control Board (“SWRCB”). (Referral Motion,

pp. 11-12.) The question concerns harm to groundwater and its definitive resolution is

necessary to determine whether Cal-Am can obtain a groundwater right. (Referral Motion,

pp.4-5,10-11; Ex. MCD-17, pp. ii, 42, 46, 48.) A negative answer to the question will

establish that the proposed Monterey Peninsula Water Supply Project (“MPWSP”) is not

legally feasible due to lack of a groundwater right and hence it cannot be necessary to serve

the present or future public convenience and necessity. (Ex. MCD-17, pp. ii, 35, 38-39, 42,

46, 48.) Yet the determination of groundwater rights is a matter admittedly outside the

Commission’s adjudicatory powers. (See Referral Motion, pp. 4-5, fn. 6 and Att. 2 thereto at

p. 2 (“The Commission generally disclaims jurisdiction to determine water rights.”).)

Responses to the March 21 motion were filed on April 5, 2018 (1) jointly by the

Monterey Peninsula Regional Water Authority (“RWA”) and the Monterey Peninsula Water

Management District (“MPWMD”), (2) by the Monterey County Water Resources Agency

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(“MCWRA”) jointly with the County of Monterey (“County”), and (3) by the applicant,

California-American Water Company (“Cal-Am”) joined by the Monterey County Farm

Bureau, the Salinas Valley Water Coalition and the Coalition of Peninsula Businesses.

This Joint Reply follows.

I. THE COMMISSION CANNOT LAWFULLY CERTIFICATE CAL-AM’S

PROJECT ABSENT A CONSTITUTIONALLY-SUFFICIENT WATER
RIGHTS DETERMINATION.

If the Commission is in any way inclined to grant a Certificate of Public Convenience

and Necessity (“CPCN”) for Cal-Am to construct and operate the MPWSP as proposed, with

slant wells withdrawing brackish groundwater from the CEMEX site, the motion for referral

must be granted. The grant of a CPCN without affording requisite due process to the

determination of whether Cal-Am’s proposed project will harm lawful users of the

groundwater basin and/or the basin itself would result in a potentially erroneous decision that

would be vulnerable to challenge in extended litigation. All the while, the parties’ good faith

efforts at settlement in this case would be frustrated and the cooperative exploration of

alternative water supply options for Cal-Am’s Monterey District – options that would be less

costly and less controversial than the proposed project and that would not be destructive of

irreplaceable neighboring water supplies – would be cut short.

Contrary to Cal-Am’s false claims, the Moving Parties have no desire to “disguise”

the work required by the Commission as lead agency under the California Environmental

Quality Act (“CEQA”) as a water rights issue. (Cal-Am, et al. response, p. 6.) Indeed, the

Moving Parties were careful in crafting their motion to make clear the distinction between

determining the likely “significant impacts” of the project under CEQA as opposed to

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resolving the disputed factual question of harm to the basin and lawful users for water rights

purposes. (Referral Motion, pp. 5-6.) MCWRA and the County argue that in determining

the question sought to be referred, the Commission will only be deciding the legal feasibility

of the MPWSP. However, in order for the Commission to do so, it must necessarily resolve

the disputed question of harm that underlies the water rights question and will therefore be a

key factor in determining legal feasibility. (Ex. MCD-17, pp. ii, 35, 38-39, 42, 46, 48.)

As the Moving Parties explained, they recognize there may be disagreement as to

whether the courts or the SWRCB would be the most appropriate venue for resolution of this

disputed factual issue. Yet it is plain that the issue itself is one that lies firmly outside the

Commission’s purview. (D.10-12-016, p. 17; see, e.g., Camp Meeker Water System, Inc. v.

Public Utilities Com. (1990) 51 Cal. 3d 845, 850 (overruled by revision to statute on another

point, Deering’s Ann. Cal. Pub. Util. Code § 311 (2018 supp.).)

The Moving Parties have provided their motion as a vehicle for the Commission to

avoid the years of protracted litigation and community division that would necessarily ensue,

should the matter not be fully, finally and fairly resolved in an appropriate forum prior to the

Commission’s issuance of any CPCN for the MPWSP. (Referral Motion, pp. 10-11.)

II. REFERRAL IN A SETTLEMENT CONTEXT SHOULD INCLUDE CAL-AM.

The Moving Parties appreciate RWA’s and MPWMD’s concerns regarding delay of

CPCN proceedings before the Commission. However, if such time were also dedicated to

exploration of additional supply alternatives for the Monterey Peninsula that are less costly

and less controversial than the MPWSP, and that would not be destructive to the water

supply of the neighboring community, the Commission, the parties and community would be

3
well-served by the delay. The parties to this proceeding have spent considerable time in

settlement negotiations already, and the Planning and Conservation League Foundation, with

the support of many other parties, moved on January 9, 2018 for hearings specifically

dedicated to exploring expansion of the Pure Water Monterey project, as well as possible

sales of potable water by MCWD. Settlement on a referral process for resolution of the

water rights issue could include a process for exploration of additional supply alternatives,

with time to present a robust record on such alternatives to the Commission.

The suggestion of RWA and MPWMD that referral could be appropriate in a

settlement context may seem practical, in light of the evident disagreement regarding the

appropriate forum for resolution of the question of Cal-Am’s ability to obtain a groundwater

right in relation to the MPWSP. But as a threshold matter, any settlement efforts must

include Cal-Am in order to succeed. A settlement among parties other than the applicant

would be simply a motion for the Commission to take certain actions, just as the Moving

Parties seek here. (Commission Rule of Practice and Procedure 12.1(a).) The claim that

referral of the water rights question to the SWRCB would only be appropriate as part of a

settlement is in error. Settlement is irrelevant to the Moving Parties’ request for referral to

the SWRCB, particularly without the involvement of the project applicant. As noted above,

with the time that would be required for the SWRCB to resolve the water rights question, the

parties to this proceeding could continue their settlement discussions.

The question presented to the Commission now, with the present motion for referral

of the water rights question, is whether the Commission will make the requested referral in

order to ensure that the due process rights of the parties are protected and the Commission’s

4
ultimate decision is supported by a lawful water rights factual determination made in a

competent forum with jurisdiction to decide the matter, or whether the Commission will bow

to needless pressure from Cal-Am to meet a false deadline and proceed to certificate the

MPWSP without sufficient evidence that the project is factually and legally feasible,

including that it will not harm the groundwater basin or lawful users of the basin. (Ex.

MCD-17, pp. ii, 35, 38-39, 42, 46, 48.)

III. CONCLUSION.

For all the reasons stated above and in the motion for referral, the Moving Parties

respectfully request that the question of whether Cal-Am has met the burden articulated by

the SWRCB in its Final Review, be referred to the SWRCB for a prompt evidentiary hearing

and expedited decision.

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

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

in their motion for referral to the SWRCB and the motion would be rendered moot.

Dated: April 12, 2018 Respectfully submitted,

By: /s/ Mark Fogelman

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

By: /s/ Sara Steck Myers

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

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

By: /s/ Lisa Berkley

Lisa Berkley
3138 Ocean Terrace
Marina, CA 93933
For: Citizens for Just Water

By: /s/ Michael Warburton

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

By: /s/ George T. Riley

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

By: /s/ Ron Weitzman

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

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