FILED

BEFORE THE PUBLIC UTILITIES COMMISSION 09/04/18

OF THE STATE OF CALIFORNIA 04:59 PM

Application of California-American Water

Company (U210W) for Approval of the
Application No. 12-04-019
Monterey Peninsula Water Supply Project
(Filed April 23, 2012)
and Authorization to Recover All Present
and Future Costs in Rates

OPENING COMMENTS OF CALIFORNIA UNIONS FOR RELIABLE

ENERGY ON THE PROPOSED DECISION APPROVING A MODIFIED
MONTEREY PENINSULA WATER SUPPLY PROJECT, ADOPTING
SETTLEMENT AGREEMENTS, ISSUING CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AND CERTIFYING COMBINED
ENVIRONMENTAL REPORT

September 4, 2018

Tanya A. Gulesserian
Christina M. Caro
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
South San Francisco, CA 94080
(650) 589-1660 Telephone
(650) 589-5062 Fax
tgulesserian@adamsbroadwell.com
ccaro@adamsbroadwell.com

Attorneys for California Unions for

Reliable Energy

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 SUBJECT INDEX

RECOMMENDED CHANGES TO PD ...................................................................... ..iv

I. INTRODUCTION ............................................................................................... 1
II. THE PD INCORRECTLY FINDS THAT THE FEIR/EIS COMPLIES
WITH CEQA........................................................................................................ 3

A. The Parties' FEIS/EIS Briefing and Expert Comments Are Part of the
Record of this Proceeding and Must Be Considered by the Commission
Since Cal-Am's Motions to Strike Were Denied…………………………………...3

B. The PD Incorrectly Concludes that the Project's Significant Impacts to

Marine Biological Resources Will Be Mitigated to Less Than Significant
Levels…………………………………………………………………………………….5

C. The PD Incorrectly Concludes that the Project's Significant Impacts to

Terrestrial Biological Resources Will Be Mitigated to Less Than Significant
Levels…………………………………………………………………………………….8

D. The PD Incorrectly Concludes that the FEIR/EIS Implements All Feasible

Mitigation to Reduce the Project's Significant Air Quality Impacts Before
Declaring Them Significant and Unavoidable…………………………………...10

E. The PD Incorrectly Concludes that the Project's Significant Greenhouse

Gas Impacts Will Be Mitigated to Less Than Significant Levels……………..12

F. The PD Fails to Address the Project's Significant Valley Fever Impacts……14

G. The PD Fails to Adequately Consider Project Alternatives that Would

Reduce or Eliminate the Project's Significant Environmental Impacts……...16

III. THE PD INCORRECTLY FINDS THAT THE COMMISSION HAS FULLY

CONSIDERED THE PROJECT'S INFLUENCE ON THE ENVIRONMENT,
IN VIOLATION OF UTILITIES CODE SECTION 1002(a)(4) ....................... 17

IV. CONCLUSION .................................................................................................. 18

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 TABLE OF AUTHORITIES
Cases
CCEC v. Woodland
225 Cal.App.4th 203 ................................................................................................ 17

Cleary v. County of Stanislaus (1981)

118 Cal.App.3d 348 .................................................................................................. 16

Comtys. For A Better Env't v. South Coast Air Quality Mgmt. Dist. (2010)
48 Cal.4th 310…………………………………………………………………….…………9

County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931 .... 9
Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60
Cal.App.4th 1109 ........................................................................................................ 9
Re S. California Edison Co.
37 CPUC 2d 413……………………………………………………………………………..2

San Francisco Ecology Center v. City & County of San Francisco (1975)
48 Cal.App.3d 584 .................................................................................................... 16

Towards Responsibility in Planning v. City Council (1988)

200 Cal.App. 3d 671…………………………………………………………………….…16

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal. App. 4th 412……………………………………………………………..…3
Statutes
Pub. Resources Code, § 21168.5……………………………………………………………...3

Pub. Resources Code, § 21002. .................................................................................... 17

Pub. Resources Code, § 21081 ............................................................................. 2, 7, 10

Pub. Resources Code, § 21081.6 .................................................................................. 13

Pub. Resources Code, § 21082.1(c)(3) ............................................................................ 2

Pub. Utilities Code, § 1002(a)(4) ............................................................................. 2, 17

Regulations
14 CCR, § 15088(c) ....................................................................................................... 16

14 CCR, § 15090………………………………………………………………………………..2

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14 CCR, § 15092 ........................................................................................................... 10

14 CCR, § 15092(b)(2)(A) & (B) ................................................................................. 2, 7

14 CCR, § 15125(a) ........................................................................................................ 9

14 CCR, § 15126.4(a)(2)……………………………………………………………………...13

CPUC Decisions
Application of Lodi Gas Storage for CPCN for Gas Storage Facilities
D.00-05-048 ............................................................................................................. 17

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 RECOMMENDED CHANGES TO PD

 The PD should be revised to find that the FEIR/EIS fails to comply with the
California Environmental Quality Act (“CEQA”).

 The PD should be revised to find that the Commission cannot issue a CPCN
for the Project because the Project continues to have significant, unmitigated
environmental impacts that have not been adequately addressed in either the
FEIR/FEIS or the PD.

 The PD should be revised to find that the FEIR/EIS is legally inadequate and
cannot be certified as complete because:
o the Project’s impacts on marine biological resources have not been fully
analyzed and disclosed, and there is no known mitigation to address
the Project’s significant impacts from bioaccumulation;
o the FEIR/EIS fails to adequately analyze the Project’s impacts on
terrestrial biological resources, has an unreliable environmental
setting, inadequate analysis, and fails to require sufficient mitigation
measures to reduce significant impacts to less than significant levels;
o the FEIR/EIS’s greenhouse gas analysis is incomplete, and the
mitigation measure for the impact is deficient;
o the FEIR/EIS’s air quality analysis fails to include all feasible
mitigation measures to reduce the Project’s significant impacts to the
greatest extent feasible before declaring the impacts significant and
unavoidable;
o the Project’s Valley Fever impacts are not adequately disclosed or
mitigated; and
o the FEIR/EIS’s Alternatives analysis is inadequate.

 The PD should be revised to require FEIR/EIS to be revised and recirculated

to disclose the significant and unavoidable impacts from the Project’s
proposed slant well operations, to re-evaluate feasible alternatives to the
Project, and to implement additional mitigation measures to address the
Project’s significant air quality, biological resources, and GHG impacts before
the Commission can consider issuing a CPCN for the Project.

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 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the
Application No. 12-04-019
Monterey Peninsula Water Supply Project
(Filed April 23, 2012)
and Authorization to Recover All Present
and Future Costs in Rates

OPENING COMMENTS OF CALIFORNIA UNIONS FOR RELIABLE

ENERGY ON THE PROPOSED DECISION APPROVING A MODIFIED
MONTEREY PENINSULA WATER SUPPLY PROJECT, ADOPTING
SETTLEMENT AGREEMENTS, ISSUING CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY AND CERTIFYING COMBINED
ENVIRONMENTAL REPORT

Pursuant to Rule 14.3 of the Commission’s Rules of Practice and Procedure

(“Rules”), California Unions for Reliable Energy (“CURE”) respectfully submits
these opening comments on Administrative Law Judge (“ALJ”) Haga, ALJ Houck,
and ALJ Weatherford’s Proposed Decision Approving a Modified Monterey
Peninsula Water Supply Project, Adopting Settlement Agreements, Issuing
Certificate of Public Convenience and Necessity and Certifying Combined
Environmental Report (“PD”).
I. INTRODUCTION
The PD prematurely asks the Commission to approve a Certificate of Public
Convenience and Necessity (“CPCN”) for a massive desalination plant with slant
drills into the Monterey Bay National Marine Sanctuary in reliance on an
inadequate environmental review document which fails to incorporate adequate
mitigation to reduce the Project’s significant impacts on California’s environment to
less than significant levels, and without adequately considering alternatives to the
Project.
The Final Environmental Impact Report/Environmental Impact Statement
(“FEIR/EIS”) prepared jointly by the Commission and National Oceanic and
Atmospheric Administration (“NOAA”) (collectively, “Lead Agencies”) fails to
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adequately disclose, analyze, and mitigate the Project’s significant impacts on
marine biological resources, terrestrial biological resources, air quality, greenhouse
gas, and Valley Fever impacts.1
CEQA precludes a lead agency from approving a proposed project or project
alternative unless that agency imposes binding mitigation measures to eliminate or
substantially lessen all significant effects on the environment where feasible and
determines that any unavoidable remaining significant effects are acceptable due to
overriding considerations.2 In order to certify an EIR as complete, the lead agency
(1) must conclude that the EIR has been completed in compliance with CEQA; (2)
must have reviewed and considered the EIR prior to approving the project; and (3)
must find that the EIR reflects its independent judgment.3
The PD fails to resolve the significant errors and omissions in the FEIR/EIS,
and fails to incorporate all feasible mitigation to reduce the Project’s significant and
unavoidable impacts to the greatest extent feasible. As a result, both the PD and
the FEIR/EIS fail to comply with CEQA’s (and NEPA’s) legal requirements. The
Commission cannot certify the FEIR/EIS, approve the PD, or make the requisite
CEQA and Utilities Code findings to approve the Project until these errors are
corrected and the FEIR/EIS is revised and recirculated in compliance with CEQA.4
For the reasons discussed herein, the PD should be substantially revised, or
an alternate PD issued, to correct the ongoing deficiencies in the FEIR/EIS.
Additionally, after considering the Project’s influence on the environment under
Public Utilities Code section 1002(a)(4), the Commission should find that the
proposed desalination plant is unjustified.

1 The Commission is the lead agency for CEQA purposes. A portion of the Project is proposed within
the Monterey Bay National Marine Sanctuary (“MBNMS”). Therefore, the National Oceanic and
Atmospheric Administration (“NOAA”) is the federal lead agency under the National Environmental
Policy Act (“NEPA”) for the Project. Though separate from these CPCN proceedings and not
discussed herein, NOAA is also restricted in issuing a Record of Decision since the joint FEIR/EIS
fails to comply with both CEQA and NEPA. These comments address CEQA addressed in the PD.
2 Pub. Res. Code (“PRC”) § 21081; 14 Cal. Code Regs. (“CCR”) § 15092(b)(2)(A) & (B).
3 14 CCR § 15090.
4 Re S. California Edison Co. (Sept. 12, 1990) 37 CPUC 2d 413, 417 (“the lead agency cannot approve

the CPCN until it has certified that the Final EIR is complete”); PRC § 21082.1(c)(3), 14 CCR §
15090.
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II. THE PD INCORRECTLY FINDS THAT THE FEIR/EIS COMPLIES
WITH CEQA

Section 5 of the PD, Environmental Review and Findings, includes a brief

summary of the FEIR/EIS’s procedural history and basic conclusions, but fails to
include any meaningful discussion of the Project’s environmental impacts. In
particular, the PD fails to mention any of the substantial evidence submitted by
CURE and other Parties which identifies ongoing deficiencies in the FEIR/EIS that
were not resolved during the Commission’s CEQA review process. As a result, the
PD fails to rectify the FEIR/EIS’s latent defects, and incorrectly concludes that the
FEIR/EIS complies with CEQA. It would be an abuse of discretion for the
Commission to approve the Project or certify the FEIR/EIS based on the record
before it.5
A. The Parties’ FEIR/EIS Briefing and Expert Comments Are Part
of the Record of this Proceeding and Must Be Considered by
the Commission Since Cal-Am’s Motions to Strike Were Denied.

CURE (and other Parties) submitted extensive briefing and expert comments
with its Opening and Reply Briefs that identified significant deficiencies in the
FEIR/EIS. CURE’s briefing included the technical comments of three highly
qualified technical consultants, including chemical physicist Radoslaw Sobczynski,
Ph.D.,6 biologist Renee Owens, M.S.,7 and air quality expert Phyllis Fox, Ph.D.,
PE.8 (collectively, “Supplemental Comments”).

5 PRC § 21168.5; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal. App. 4th 412, 427 (abuse of discretion is established if agency did not proceed in the
manner required by law or its decisions are not supported by substantial evidence).
6 Exhibit A to CURE’s Opening Brief, Declaration and Letter from Radoslaw Sobczynski, Ph.D. to

Ms. Linda Sobczynski (Apr. 17, 2018), Subject: Comments on the CalAm Monterey Peninsula Water
Supply Project Final Environmental Impact Report/Environmental Impact Statement (hereinafter
“Sobczynski Comments”).
7 Exhibit B to CURE’s Opening Brief, Declaration and Letter from Renee Owens, M.Sc. to Linda

Sobczynski (Apr. 16, 2018), Subject: Comments on the CalAm Monterey Peninsula Water Supply
Project Final Environmental Impact Report/Environmental Impact Statement (hereinafter “Owens
Comments”).
8 Exhibit C to CURE’s Opening Brief, Declaration and Letter from Phyllis Fox, Ph.D., P.E. to Linda

Sobczynski (April 17, 2018), Subject: Comments on the Final Environmental Impact Report/
Environmental Impact Statement for the CalAm Monterey Peninsula Water Supply Project (Monterey
County, California) (hereinafter, “Fox Comments”).
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 CURE’s experts also commented on the DEIR/EIS. The FEIR/EIS included
some revisions to its analysis and mitigation measures that corrected some of the
deficiencies in the DEIR/EIS that had been identified by CURE’s experts in their
DEIR/EIS comments. However, in several instances, the FEIR/EIS’ responses to
comments (“Responses”) failed to meaningfully address significant technical issues
raised by CURE’s experts. The Supplemental Comments provide substantial
evidence to the Commission demonstrating that the Project continues to have
significant impacts that the FEIR/EIS fails to disclose and mitigate.
On May 3, 2018, Applicant Cal-Am filed a Motion To Strike Portions Of
Opening Briefs On FEIR/FEIS Issues (“Motion to Strike Opening Briefs”), which
moved to strike all portions and exhibits from the Opening Briefs of CURE, Marina
Coast Water District’ (“MCWD”), City of Marina, MPWND (“Monterey Peninsula
Water Management District”), and Public Water Now (“PWN”) that included or
referred to expert studies that were prepared in response to the FEIR/EIS.9 On
May 11, 2018, Applicant Cal-Am filed a second motion to strike, its Motion to Strike
Portions of Reply Briefs on FEIR/FEIS Issues (“Motion to Strike Reply Briefs”),
which moved to strike all portions and exhibits from the Reply Briefs of the same
Parties that addressed expert studies on the FEIR/EIS.10 On May 18, 2018, MCWD
filed a Consolidated Opposition to Cal-Am’s Motions to Strike Portions of Opening
and Reply Briefs on Environmental Issues on behalf of the Parties, explaining, inter
alia, that the Parties have a statutory right to submit comments addressing
inadequacies in the FEIR/EIS pursuant to CEQA Section 21177 in order to exhaust
administrative remedies before the Commission.11
The ALJs did not issue a Ruling on the Motions to Strike prior to the release
of the PD. PD Finding No. 41 states “[t]o the extent they are not addressed here,

9 See May 3, 2018, California-American Water Company’s Motion To Strike Portions Of Opening
Briefs On FEIR/FEIS Issues.
10 See May 11, 2018, California-American Water Company’s Motion To Strike Portions Of Reply

Briefs On FEIR/FEIS Issues.

11 See May 18, 2018, Marina Coast Water District’s Consolidated Opposition to Cal-Am’s Motions to

Strike Portions of Opening and Reply Briefs on Environmental Issues.

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any and all outstanding motions are hereby deemed denied.”12 The PD therefore
correctly denies Cal-Am’s Motions to Strike, leaving CURE’s Supplemental
Comments and the expert comments of the other Parties that address the FEIR/EIS
in the record of this Proceeding.
Nevertheless, the PD fails to address or respond to CURE’s Supplemental
Comments (or the expert comments of the other Parties), thus failing to address the
inadequacies in the FEIR/EIS that were identified in those comments, and leaving
numerous significant environmental impacts unmitigated. Below is a summary of
the issues raised in CURE’s Supplemental Comments that require revisions to the
FEIR/EIS and the PD. For a full discussion of the outstanding deficiencies in the
FEIR/EIS that must be addressed in a revised PD, CURE refers the Commission to
CURE’s Opening Brief with Exhibits A, B, and C, CURE’s Reply Brief, and the
FEIR/EIS briefing and expert comments of MCWD, City of Marina, MPWND, and
PWN.
B. The PD Incorrectly Concludes that the Project’s Significant
Impacts to Marine Biological Resources Will Be Mitigated to
Less Than Significant Levels.

The PD fails to address the significant, unmitigated impacts on marine

biological resources that will result from operation of the Project’s slant wells, and
incorrectly concludes that the Project’s impacts on marine life will be mitigated to
less than significant levels with the existing mitigation required in the FEIR/EIS.13
This is a major flaw in both the PD and the FEIR/EIS because CURE has
repeatedly provided the Commission with substantial evidence demonstrating that
the Project’s slant well operations are likely to cause significant, unmitigated
impacts from bioaccumulation resulting in fish kills.14 This impact remains

12 PD, p. 195, Finding No. 41. The PD recites the procedural background of Cal-Am’s 2018 Motions
to Strike, but does not separately rule on the Motions. See PD. p. 16 (“Various motions to strike
potions of opening and reply briefs were filed in 2017 and 2018. On May 30, 2018 MCD moved for
leave to re-submit its January 3, 2018 response in opposition to Cal-Am’s motion to strike portions of
MCD’s opening brief.”).
13 PD, pp. 75-76.

14 CURE Open. Br., pp.9-16; Reply Br. pp. 4-9; FEIR/S, p. 8.6.2; 2/24/17 Sobczynski Comments

on DEIR/S.
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entirely unmitigated, even with adoption of the Environmentally Superior
Alternative (Alternative 5a).
Dr. Sobczynski, a chemical physicist, demonstrated that the Project’s
underwater slant well operations are likely to cause excessive bioaccumulation of
small organic matter at the seabed which will, in turn, cause fish kills.15 Dr.
Sobczynski’s DEIR/EIS comments explained that the Project’s slant well technology
uses the sand and sediment on the ocean floor as the filter medium for water
pretreatment in the desalination process.16 Ocean water contains microscopic
organic matter which is dissolved and suspended in the water.
The Project’s slant wells draw their source ocean water downward through
the seabed to the wells. This organic matter is carried with the source sea water
and infiltrates the subsurface along with the sea water through permeations in the
ocean floor.17 Unlike larger matter, microscopic organic matter is not disbursed by
wave motion and is not impinged on the ocean surface. Rather, as Dr. Sobczynski
explains, this matter is absorbed into the ocean subsurface.18 The pilot tests
performed for the Project’s slant wells demonstrate that this causes a buildup of
microscopic organic matter at the ocean subsurface, called bioaccumulation.19
Dr. Sobczynski’s comments explained that bioaccumulation causes the
growth of sulfate reducing bacteria, which in turn produces toxic hydrogen sulfide
gas.20 The hydrogen sulfide pockets then burst, releasing toxins directly into the
aquatic habitat, killing fish and other marine life.21 Dr. Sobczynski documented
that similar fish-kills have occurred in ocean sediments having as little as 200 parts
per billion (“ppb”) of hydrogen sulfide content at the Pescadero Lagoon, California.22
He explained that underwater wave currents do not prevent bioaccumulation of

15 FEIR/S, p. 8.6.2; 2/24/17 Sobczynski Comments on DEIR/S.

16 Sobczynski Comments, p. 3
17 FEIR/S, sec. 8.6.2; 2/24/17 Sobczynski Comments on DEIR/S.
18 Id.
19 Id.; Sobczynski Comments, p. 9.

20 Sobczynski Comments, p. 9.
21 Sobczynski Comments, p. 13.
22 Sobczynski Comments, p. 13.

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microscopic organic matter, as suggested in the FEIR/EIS’ responses to comments,
and that there is no known mitigation for this impact, because it is a natural
byproduct of the operation of a slant well in ocean water.23 Based on this evidence,
Dr. Sobczynski concluded that the Project’s slant well operation is likely to result in
significant, unmitigable impacts to marine biological resources as the result of
bioaccumulation.24
Despite this scientific, expert evidence, the Proposed Decision doesn’t address
this significant impact at all, and the FEIR/EIS failed to acknowledge the issue of
bioaccumulation. Instead, in its Responses, the FEIR/EIS incorrectly responded to
a different issue – impingement of large particles and wave dynamics – which has
nothing to do with bioaccumulation and the resulting hydrogen sulfide impacts on
marine resources.25 Alternative 5a does not provide any relief from this impact
because it continues to allow the construction and operation of seven slant wells.
It is irresponsible for a state agency to ignore the significant impact in a
National Marine Sanctuary, and it is illegal. CEQA requires lead agencies to
disclose all substantial adverse effects on marine species, including direct
disturbance, indirect disturbance, or habitat modification, in the EIR,26 and
prohibits lead agencies from approving a project unless it has “eliminated or
substantially lessened all significant effects on the environment” to the fullest
extent feasible.27 If a significant effect is determined to be unavoidable, the lead
agency may not approve the project unless it makes a finding that such unavoidable
significant effects on the environment are “acceptable due to overriding concerns.”28
The PD must be revised to acknowledge this significant impact. Only by
acknowledging this significant impact will the State be able to determine whether
the benefit of desalinated water is outweighed by the significant impacts to marine

23 Sobczynski Comments, pp. 3, 13.

24 Sobczynski Comments, p. 13.
25 Sobczynski Comments, pp. 4-8; FEIR/S, pp. 8.6-514 to 8.6-516.
26 FEIR/S, 4.5-52-54, Impact 4.5-4.
27 PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
28
PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).

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life in the sanctuary along California’s coastline, and encourage development of
technology to address the well-documented problem of bioaccumulation.29
C. The PD Incorrectly Concludes that the Project’s Significant
Impacts to Terrestrial Biological Resources Will Be Mitigated
to Less Than Significant Levels.

The PD incorrectly concludes that the Project’s impacts on terrestrial

biological resources will be less than significant with mitigation.30 This error
derives from the FEIR/EIS’s failure to respond to Ms. Owens’ comments that the
FEIR/EIS lacks substantial evidence regarding terrestrial biological impacts and
that the FEIR/EIS’s proposed mitigation measures are inadequate to reduce the
Project’s significant biological impacts to below significant.31
Ms. Owens provided comments on the DEIR/S’s failure to include adequate
analysis and disclosure of baseline conditions related to several species, including
on two particularly sensitive species: the Globose dune beetle and the Salinas
kangaroo rat.32 Additionally, Ms. Owens wrote extensive comments on the DEIR/S’s
lack of focused, species-specific, wildlife taxon-specific surveys.33
The FEIR/EIS failed to provide any new data on the two species,34 and
continued to rely heavily on generalized wildlife databases and reconnaissance level
surveys for its baseline analysis. Ms. Owens’ Supplemental Comments explained
that these ongoing deficiencies in the FEIR/EIS precluded the Commission and the
public from making a meaningful and complete assessment of the existing
conditions at the Project site against which to measure its impacts on terrestrial
biological resources.35 Ms. Owen’s Supplemental Comments demonstrate that, by
failing to establish an accurate environmental setting, the FEIR/EIS lacks
substantial evidence to support its ultimate conclusions that terrestrial biological
resources will have a less than significant impacts with mitigation, in violation of

29 Sobz. FEIR Comm. at pp. 4-8; FEIR p. FEIR/S, pp. 8.6-514 to 8.6-516.
30 PD, p. 75.
31 Owens Comments, §§ 2-3.
32 Owens Comments, p. 2.
33 Owens Comments, pp. 2-3.
34 Owens Comments, p. 2.
35 Owens Comments, pp. 5-6.

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CEQA.36
Additionally, Ms. Owens’ Supplemental Comments provide substantial
evidence demonstrating that the FEIR/EIS’ mitigation measures for to the snowy
plover, a federally-listed threatened species and California Species of Special
Concern,37 and other terrestrial species,38 are inadequate to reduce the Project’s
significant impacts to less than significant levels. For example, Ms. Owens
provided comments on the DEIR/EIS about the unique challenges the snowy plover
faces and that an undisturbed breeding season is critical for its recovery.39 The
FEIR/EIS revised its snowy plover mitigation in response to Ms. Owens’ DEIR/EIS
comments, but did not clearly limit Project disturbances during plover breeding
season. Ms. Owen’s Supplemental Comments explained that the FEIR/EIS’s
revised mitigation was impermissibly deferred, and did not include adequate
specificity to ensure successful mitigation, in violation of CEQA.40
The FEIR/EIS also requires Cal-Am to prepare a Habitat Mitigation and
Monitoring Plan (“HMMP”) that is reviewed and approved outside the CEQA
process.41 The HMMP included in the FEIR/EIS contains generic performance
standards for numerous species without any degree of specificity or enforceability to
ensure that impacts will actually be reduced for these species.42 Ms. Owens’
Supplemental Comments conclude that the HMMP fails as a means to guarantee
impacts to terrestrial species will be reduced to below significant. Accordingly, Ms.
Owens’ Supplemental Comments demonstrate that the impacts to several species
remain significant even with the revisions incorporated in the FEIR/EIS, in

36 Owens Comments, p. 14; 14 CCR § 15125(a). An accurate description of the affected environment
is essential because it establishes the baseline physical conditions against which a lead agency can
then determine whether an impact is significant. Comtys. For A Better Env’t v. South Coast Air
Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 328; County of Amador v. El Dorado County Water
Agency (1999) 76 Cal. App. 4th 931, 952; Galante Vineyards v. Monterey Peninsula Water
Management Dist. (1997) 60 Cal. App 4th 1109, 1121-22..
37 Owens Comments, pp. 19-26.
38 Owens Comments, p. 27-29.
39 Owens Comments, pp. 18-22.
40 Owens Comments, pp. 23-26.
41 Owens Comments, p. 27.
42 Owens Comments, pp. 27-28.

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violation of CEQA.43
D. The PD Incorrectly Concludes that the FEIR/EIS Implements
All Feasible Mitigation to Reduce the Project’s Significant Air
Quality Impacts Before Declaring Them Significant and
Unavoidable.

The FEIR/EIS fails to require all feasible mitigation to reduce the Project’s
significant air quality impacts to the greatest extent feasible. Relying on the
FEIR/EIS, the PD incorrectly concludes that the Project’s significant air quality
impacts will be reduced to the greatest extent feasible, and that a statement of
overriding considerations is therefore warranted.44
Dr. Fox’s Supplemental Comments identified four significant deficiencies in
the FEIR/EIS’ disclosure and mitigation of the Project’s significant air quality
impacts that the PD fails to address. First, the FEIR/EIS failed to adequately
respond to Dr. Fox’s DEIR/S comments about the DIER/EIS’s failure to analyze
indirect emissions from the generation of electricity.45 As Dr. Fox’s Supplemental
Comments explain, “[t]he inclusion of these emissions would increase the emissions
of all criteria pollutants, likely resulting in new significant impacts not otherwise
disclosed.”46 She noted that the FEIR/EIS failed to provide a reasoned response
about why indirect emissions were excluded from the analysis.47 Dr. Fox explained:
“While it is not possible to identify the specific source of electricity and emission
factors for electricity supplied at any given moment, it is feasible to identify the
potential generation sources (and thus their location) that would supply the
electricity; and based on this, to estimate a range of likely electricity generation
emission factors that could be used to estimate indirect emissions.”48 The FEIR/EIS
was required to consider these indirect emissions when evaluating the Project’s
impact on the environment.49

43 Owens Comments, p. 38; PRC § 21081; 14 CCR § 15092.

44 PD, p. 75.
45 Fox Comments, § 3.2, pp. 15-16.
46 Fox Comments, § 3.2, p. 15.
47 Fox Comments, § 3.2, p. 15.
48 Fox Comments, § 3.2, p. 15.
49 Fox Comments, § 3.2, pp. 15-16.

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 Second, the FEIR/EIS failed to address whether the Project will cause or
contribute to violations of all published federal and state ambient air quality
standards, in violation of CEQA.50 Dr. Fox’s DEIR/EIS comments had explained
that the DEIR/EIS failed to evaluate all air quality impacts.51 The FEIR/EIS failed
to include an ambient air quality analysis. Dr. Fox’s Supplemental Comments
explain that, to determine whether the Project violates federal and state ambient
air quality standards, the FEIR/EIS should have estimated emission rates
consistent with each air quality standard and use air dispersion modeling to convert
the emissions into ambient concentrations.52 Only then can the Commission
compare the results to determine if the emissions will exceed ambient air quality
standards.53 The FEIR/EIS calculated the Project’s emissions, but did not take the
next step to estimate emissions rate to determine if the emissions exceed state and
federal ambient air quality standards, in violation of CEQA. Dr. Fox’s
Supplemental Comments document this significant omission in the FEIR/EIS.
Third, the FEIR/EIS fails to include any analysis of air quality and public
health impacts from PM2.5, sulfate, or lead emissions on the basis that the
Monterey Bay Unified Air Pollution Control District does not have significance
thresholds for these pollutants.54 Dr. Fox’s Supplemental Comments explain that
the FEIR/EIS’s conclusion is inconsistent with the Monterey Bay Unified Air
Pollution Control District’s CEQA Guidance, which requires this analysis if a
Project will exceed state ambient air quality standards. 55 Because the FEIR/EIS
failed to estimate all emissions sources to determine if the Project would exceed
state and federal ambient air quality standards in the first place, the FEIR/EIS
lacked substantial evidence to conclude that this analysis was not required,
rendering its conclusions unreliable and unsupported.56

50 Fox Comments, § 3.3, pp. 16-19.

51 Fox Comments, § 3.3, pp. 18-19.
52 Fox Comments, § 3.3, p. 18.
53 Fox Comments, § 3.3, p.18.
54 Fox Comments, § 3.3, p. 18.
55 Fox Comments, § 3.3, pp. 18-19.
56 Fox Comments, § 3.3, pp. 19.

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 Fourth, the FEIR/EIS fails to include all feasible mitigation measures for the
Project’s significant and unavoidable construction air quality impacts.57 Dr. Fox’s
DEIR/EIS comments on explained that MM 4.10-1a must require Tier 4 equipment,
which generates fewer emissions than its lower tier equivalents, and in the absence
of Tier 4 equipment, that the lower tier engines should be retrofitted to meet Tier 4
standards in order to reduce construction emissions to the greatest extent feasible.
58 The FEIR/EIS responded by revising MM 4.10-1a to vaguely require Tier 4
equipment “where feasible.”59 CURE’s FEIR briefing and Dr. Fox’s Supplemental
Comments explained that this term was overly broad and unenforceable and
contained no procedures for the determination of feasibility during implementation
of the Project. CURE and Dr. Fox also explained that obtaining Tier 4 equipment,
or requiring that engines are retrofitted to meet Tier 4 controls, is feasible.60 The
PD fails to address this significant deficiency MM 4.10-1a. As currently drafted, the
FEIR/EIS’ air quality mitigation measures fail to support a finding that the
Project’s air quality impacts are significant and unavoidable.61
E. The PD Incorrectly Concludes that the Project’s Significant
Greenhouse Gas Impacts Will Be Mitigated to Less Than
Significant Levels.

The FEIR/EIS failed to adequately respond to Dr. Fox’s comments on the

Project’s significant impacts from GHG emissions. The PD perpetuates these errors
because, although the FEIR/S revised its GHG mitigation measures in response to
Dr. Fox’s and other Parties’ DEIR/EIS comments, significant deficiencies remain
that have not been addressed by the Commission.62 As a result, the PD’s
conclusion, like the FEIR/EIS’s, that the Project’s GHG impacts will be reduced to
less than significant levels is not supported by substantial evidence.
Dr. Fox’s comments on the DEIR/EIS explained that the DEIR/EIS failed to

57 Fox Comments, § 3.1, p. 14.

58 Fox Comments, § 3.1, p. 14.
59 Fox Comments, § 3.1, p. 14.
60 Fox Comments, § 3.1, p. 14.
61 Fox Comments, § 3.1, p. 14.
62 PD, p. 75.

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include indirect electricity generation emissions for all criteria pollutions, including
GHG emissions.63 The FEIR/EIS responded with respect to criteria pollutants, but
not GHG emissions.64 Dr. Fox’s Supplemental comments explained that direct and
indirect energy use emissions for construction are likely individually significant as
well as cumulatively significant when added to other construction emission sources,
yet the FEIR/EIS failed to quantify them.65 As a result, the FEIR/EIS lacks
substantial evidence to support its conclusion that MM 4.11-1 would reduce GHG
emissions below the significance threshold.66
Dr. Fox further reviewed the FEIR’EIS’s revised GHG mitigation measures
and determined that they are impermissibly deferred and therefore unenforceable.67
First, revised operational GHG mitigation measure MM 4.11-1(a) requires
the Applicant to prepare a “GHG Emissions Reduction Plan” prior to the start of
construction, but after approval of the FEIR/EIS.68 Dr. Fox’s Supplemental
Comments explain that the revisions do not remedy the problem that the measure
still impermissibly defers mitigation and, as a result, the Plan has never been
subject to public review.69
Second, the FEIR/EIS replaced MM 4.11-1(b) with a new plan that relies on
an offset program, coupled with “loading orders” based on economic feasibility that
carries uncertainties in its implementation.70 Dr. Fox’s Supplemental Comments
explain that the “loading order” allows Cal-Am to meet its net zero GHG emissions
requirement by implementing a number of different options ranging from on-site
solar panels, to off-site carbon offsets. The FEIR/EIS’s proposal to allow Cal-Am to
develop this mitigation is improper, because it would allow required mitigation to

63 Fox Comments, § 2.5, pp. 10-11.

64 Fox Comments, § 2.5, p. 11.
65 Fox Comments, § 2.5, pp. 11-12.
66 Fox Comments, § 2.5, p. 10, 12.
67 PRC § 21081.6; 14 CCR § 15126.4(a)(2).
68 Fox Comments, § 2.1, p. 3.
69 Fox Comments, § 2.1, p. 3.
70 Fox Comments, § 2.2, p. 5.

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be developed outside of the CEQA review process.71
Third, the FEIR/EIS fails to resolve improper deferral of the Project’s GHG
mitigation measures.72 Initially, the DEIR/EIS had concluded that the Project’s
GHG impacts were significant and unavoidable.73 In response to comments on the
DEIR/EIS, the FEIR/EIS revised mitigation measures MM 4.11-1 (operational
GHGs) and 4.18-1 (construction GHGs) and instead concluded that GHG impacts
were now less than significant with mitigation.74 However, both MM 4.11-1 and
4.18-1 allow deferred development of mitigation measures without adequate
performance standards,75 providing no evidence of their efficacy, and depriving the
public from having a meaningful opportunity to consider them.76
Fourth, the construction GHGs are estimated based on an assumed 40-year
Project life span.77 However, there are no enforceable conditions that would limit
the Project life to 40-years.78 The same is true for MM 4.18-1, which is silent on the
assumed Project life.79 Accordingly, these mitigation measures remain flawed and
incomplete because they do not contemplate mitigating emissions if the Project
operates beyond 40 years.80
The FEIR/EIS remains inadequate with respect to impacts from GHG
emissions.
F. The PD Fails to Address the Project’s Significant Valley Fever
Impacts.

CURE submitted extensive comments on the DEIR/EIS, and extensive

briefing and comments on the FEIR/EIS which demonstrated that the Project is

71 Fox Comments, § 2.2, pp. 5-6. Also, as Dr. Fox explains, “by allowing unrestrained use of off-site
and distant offsets, the offset program forgoes the benefits of local mitigation. PV panels and
renewable energy from nearby off-site sources, for example, replace energy that would be generated
by fossil fuel sources, thus reducing not only GHG emissions, but also other criteria pollutants.” Id.
72 Fox Comments, § 2.3, p. 9.
73 Fox Comments, § 2.3, p. 9.
74 Fox Comments, § 2.3, p. 9.
75 Fox Comments, § 2.3, p. 9.
76 Fox Comments, § 2.3, p. 9, § 2.4, pp. 9-10.
77 Fox Comments, § 2.6, p. 13.
78 Fox Comments, § 2.6, p. 13.
79 Fox Comments, § 2.6, p. 13.
80 Fox Comments, § 2.6, p. 13.

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likely to create a potentially significant risk of exposure to Valley Fever spores for
construction and well maintenance workers, as well as local residents near the
Project site.81 The PD fails to even mention it.82
Dr. Fox’s DEIR/EIS comments identified this issue and provided substantial
evidence demonstrating that the Project site, and all of Monterey County, are in an
endemic zone for Valley Fever. Dr. Fox explained that the Project’s conventional
dust control measures are well known to be ineffective against Valley Fever due to
the extremely small size of the fungal Cocci spores that cause Valley Fever. 83 Dr.
Fox provided a list of feasible mitigation measures to reduce the risk of exposure to
Valley Fever spores, including continuously wetting soil before and while digging or
moving earth; providing HEP-filtered, air-conditioned enclosed cabs on heavy
equipment; using NIOSH-approved respirators; and improved medical surveillance
for employees.84
The FEIR/S failed to meaningfully respond to Dr. Fox’s comments, and failed
to adopt any mitigation measures to address it. Dr. Fox’s Supplemental Comments
explain that, rather than disclose Valley Fever as a potentially significant impact
and adopt mitigation measures, the FEIR/FEIS simply responded by stating that
Commission Staff are “not aware of any evidence that suggests that these soils
definitely contain the spores. Thus, there is no basis to conclude that impacts would
be significant.”85
The FEIR/EIS failed to comply with CEQA by providing unsupported,
conclusory statements in response to Dr. Fox’s DEIR/S comments. The response
that Staff are “not aware of any evidence” clearly demonstrates that the FEIR/EIS
ignored the evidence Dr. Fox provided in her DEIR/EIS comments. Claiming

81 See CURE DEIR/EIS Comments, pp. 58-62; CURE Opening Brief, pp. 31-33; Fox Comments, § 2.6,
p. 13.
82 See PD, pp. 64-76 re environmental impacts.
83 Fox Comments, § 2.6, p. 13.
84 Fox Comments, § 2.6, p. 13.
85 Fox Comments, § 2.6, p. 13.

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unawareness is inadequate for the purposes of CEQA.86 The FEIR/EIS’s conclusory
statements unsupported by specific references to empirical information, scientific
authorities or explanatory information are insufficient to support the FEIR/EIS’s
conclusion that the Project will cause significant impacts related to Valley Fever.87
G. The PD Fails to Adequately Consider Project Alternatives that
Would Reduce or Eliminate the Project’s Significant
Environmental Impacts.

The PD proposes to approve Alternative 5a as the Project,88 which the

FEIR/EIS concludes is the environmentally superior/ environmentally alternative to
the Project.89 However, Alternative 5a, which calls for seven slant wells as opposed
to ten, carries the same risks with respect to slant well operation that the Proposed
Project carries. As a result, the PD’s proposal to adopt Alternative 5a does nothing
to reduce or eliminate the Project’s significant impacts from slant well operations.
Both the PD and FEIR/EIS fail to disclose the significant and unavoidable
impact on marine biological resources from slant well operation.90 As Dr.
Sobczynski explains in his Supplemental Comments, even if the slant well
operation were reduced by half (i.e., to five wells), the Project would still cause
substantial bioaccumulation and a significant risk that the aquatic habitat in and
around the Marine Sanctuary will be exposed to toxic hydrogen sulfide.91 This is a
significant impact that neither the PD, nor the FEIR/EIS, disclose. Alternative 5a
is therefore not a true alternative because it relies on the same technology that will
cause the same significant impact on the environment as the original Project.
CEQA prohibits a lead agency from approving a project if feasible
alternatives or mitigation measures exist which would substantially lessen a

86 Responses to significant environmental issues raised in comments must be detailed, reasoned,

good faith responses. CEQA Guidelines, § 15088(c); Towards Responsibility in Planning v. City
Council (1988) 200 Cal.App.3d 671, 683; San Francisco Ecology Center v. City & County of San
Francisco (1975) 48 Cal.App.3d 584, 596
87 14 CCR, § 15088(c); Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348.
88 PD, p. 72.
89 PD, p. 74; FEIR/S, ES.7.2.
90 See, supra, Scoping Ruling Issue II.C.1.
91 Sobczynski Comments, § III (b).

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project’s significant environmental effects.92 The PD and FEIR/EIS must be revised
to disclose the significant and unavoidable impact from slant well operations and
re-evaluate feasible alternatives to the Project.
III. THE PD INCORRECTLY FINDS THAT THE COMMISSION HAS
FULLY CONSIDERED THE PROJECT’S INFLUENCE ON THE
ENVIRONMENT, IN VIOLATION OF UTILITIES CODE SECTION
1002(a)(4).

The PD relies on the FEIR/EIS to conclude that the Commission has satisfied
its duty under Utilities Code Section 1002(a)(4) to consider the Project’s influence
on the environment. 93 However, due to the inadequacies of the FEIR/EIS
discussed above and in CURE’s briefing and Consultant Letters, the Project’s
influence on the environment has not been fully disclosed, evaluated and mitigated.
Accordingly, the PD lacks substantial evidence on which to conclude that the
Commission has fully considered the Project’s influence on the environment, as
required by Section 1002(a)(4).
The Commission has previously determined that Section 1002(a)(4) is
addressed through the CEQA process for a proposed project.94 Because the
FEIR/EIS fails to satisfy the legal disclosure requirements of CEQA and NEPA, the
Commission will remain unable to make a finding that Section 1002(a)(4)
requirements have been satisfied until the FEIR/EIS is revised and recirculated in
compliance with CEQA.

92 PRC §21002; CCEC v. Woodland, 225 Cal. App. 4th at 203; 14 CCR §15126.6.
93 PD, p. 145, Section 7.5.4, Influence on the Environment.
94 Application of Lodi Gas Storage for CPCN for Gas Storage Facilities, D.00-05-048, 28 (“[T]he

appropriate place for the parties to address [the issue of a project’s influence on the environment]
was the EIR, so that the parties would not duplicate their efforts in both portions of the proceeding.”)
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IV. CONCLUSION
For the reasons discussed herein, CURE respectfully urges the Commission
to revise the PD to adopt the modifications proposed in these comments.

Dated: September 4, 2018 Respectfully submitted,

/s/

______________________________
Tanya A. Gulesserian
Christina M. Caro
Adams Broadwell Joseph & Cardozo
601 Gateway Blvd., Suite 1000
South San Francisco, CA 94080
(650) 589-1660 Telephone
(650) 589-5062 Fax
tgulesserian@adamsbroadwell.com
ccaro@adamsbroadwell.com

Attorneys for California Unions for

Reliable Energy

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 APPENDIX A

PROPOSED CHANGES TO PD’s FINDINGS OF FACT AND CONCLUSIONS

OF LAW

Findings of Fact

18. The Commission cannot rely upon the concept of potential expansion of the
PWM project absent until more concrete and specific information is developed to
find confirm that additional supply is available to Cal-Am.

19. Even if Once completed, PWM expansion alone fails to is likely to provide
sufficient supply to meet the average demands assumed in MPWSP planning, and
may also will not provide sufficient supply flexibility to meet most peak demands.

20. Cal-Am’s ratepayers will face the burden of having an insufficient water supply
unless alternative water source(s) are developed. if the MPWSP is not approved.

22. Cal-Am’s water supply portfolio will not provide sufficient water to its customers
after December 31, 2021, absent a new source of supply and the MPWSP is the most
reasonable solution to provide that supply.

23. Construction and operation of the MPWSP is Alternative water source(s) are
necessary to ensure Cal-Am remains within its legal water rights which requires
reduction in its diversions from the Carmel River by December 31, 2021, in
compliance with the cease and desist order issued by the SWRCB, as well as
required reductions to other constrained water supply sources such as the Seaside
Basin.

24. Construction and operations of the MPWSP Alternative water source(s) must be
developed that will allow Cal-Am to meet reasonable demand (e.g., existing
customers, lots of record, Pebble Beach, tourism rebound), provide a reliable and
secure supply, include a reasonable “buffer” against uncertainties, and satisfy all
other reasonable needs.

45. Other than the MPWSP (and the alternatives examined in the FEIR/EIS) the
Commission does not have viable alternative proposals before us today.

47. The MPWSP is the most reasonable approach to solving the long-term problem
of water supply in the District and is the best option to ensure Cal-Am customers
have a sufficient water source going forward.

80. The FEIR/EIS identifies significant environmental effects of the MPWSP that

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cannot be avoided or mitigated to less than significant levels. The benefits of the
MPWSP do not outweigh the significant adverse impacts of the project, and do not
justifying the statement of overriding considerations needed to approve the
MPWSP.

89. A 6.4 mgd desalination plant is not the best option to ensure Cal-Am is able to
meet its maximum day demand and peak hour demand requirements, because it
continues to have significant, unmitigated environmental impacts.

90. The MPWSP (6.4 mgd plant) does not achieves an appropriate balance between
supplying a sufficient amount of safe, reliable, potable water and maintaining just
and reasonable rates.

91. Cal-am has not met its burden, subject to the conditions set out in this decision,
in demonstrating the need for the MPWSP sized at 6.4 mgd.

95. The desalination plant is appropriately sized at 6.4 mgd.

101. The FEIR/EIS is competent, comprehensive, and complies is incomplete and

fails to comply with CEQA.

102. The CEQA Findings are attached as Appendix C, and accurately reflect the
independent analysis contained in the FEIR/EIS, the Commission’s policy decisions,
as well as other information in the record. Because the FEIR/EIS is incomplete and
fails to comply with CEQA, the CEQA findings and are not supported by substantial
evidence in the administrative record and cannot be approved.

103. Feasible changes or alterations have been required in, or incorporated into, the
MPWSP, which avoid or substantially lessen some of the significant environmental
effects identified in the FEIR/EIS for which feasible mitigation measures are
available.

104. The MPWSP will cause significant unavoidable adverse impacts in the areas of
terrestrial biological resources, marine biological resources, traffic and
transportation, air quality, noise and vibration, and growth inducement. The
benefits of the project do not outweigh the impacts that may be caused by the
MPWSP.

105. We are unable to further find that specific economic, legal, social, technological,
or other considerations make infeasible the mitigation measures or alternatives
that are not required in, or incorporated into, the proposed project.

108. In selecting the environmentally superior alternative, the FEIR/EIS failed to

adequately considered the environmental impact of each option, which of the

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alternatives evaluated in the FEIR/EIS had the fewest significant and unavoidable
impacts, and which, if any, of the proposed alternatives would lessen or eliminate
any significant and unavoidable or potentially significant but mitigable impacts.

113. The FEIR/EIS fails to consider whether Alternative 5a (MPWSP sized at 6.4
mgd) is the most feasible alternative that provides a viable solution to the water
constraints on the Monterey Peninsula, in light of the significant unmitigable
impacts on marine biological resources that are associated with Alternative 5a’s
seven slant wells, given the need to further study potentially feasible alternatives to
the Project, and given the adverse social and economic consequences associated with
taking no action or delayed action, in the timeframe imposed by the State Water
Resource Control Board’s Cease and Desist Orders and satisfies the prohibitions on
exporting water from the Salinas Basin, and certain technological factors.

114. The FEIR/EIS incorrectly concludes that, with the proposed mitigation
measures, the MPWSP (6.4 mgd plant) has eliminated or substantially lessened all
significant effects where feasible as shown in the findings under CEQA Guidelines
section 15091 and consistent with the CEQA Findings set forth at Appendix C.

115. Significant and unavoidable environmental impacts will result from

construction and operation of the MPWSP (6.4 mgd plant); however, Appendix D
fails to incorporate all feasible mitigation measures to reduce these impacts to the
greatest extent feasible are identified in Appendix D.

116. Based on tThe FEIR/EIS lacks substantial evidence to allow the Commission to
conclude that the remaining significant effects on the environment found to be
unavoidable under CEQA Guidelines section 15901 are acceptable due to overriding
considerations consistent with CEQA Guidelines section 15093 and as described in
the CEQA Findings set forth at Appendix C.

117. The mitigation measures identified in the Final EIR/EIS are inadequate
reasonable.

118. The MMRP at Appendix D conforms to the recommendations of the Final

EIR/EIS for measures required to mitigate or avoid environmental impacts of the
MPWSP where feasible, but still fails to mitigate all potentially significant impacts
to the greatest extent feasible.

120. The FEIR/EIS requires revision and recirculation in order to enable the
Commission to make a finding that the FEIR/EIS represents our independent
judgment regarding the environmental impacts of the MPWSP.

121. Nothing in the FEIR/EIS precludes the MPWSP (6.4 mgd plant) from going
forward.

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122. The MPWSP (6.4 mgd plant) benefits and economic, legal, social,
environmental and other considerations associated with the MPWSP do not
outweigh and or make acceptable the unavoidable impacts identified in the
FEIR/EIS and by the Parties. for the reasons set forth in the statement of
overriding considerations in the CEQA Findings at Appendix C attached to and
incorporated as part of this decision.

188. Nothing in the FEIR/EIS or D.16-09-021 alters the cost-effectiveness of the

MPWSP.

Conclusions of Law

4. Cal-Am should not be granted a CPCN to construct and operate the MSWSP
because the MSWSP will have significant, unmitigated environmental impacts that
do not outweigh the benefits of the Project to meet reasonable demand (e.g., existing
customers, lots of record, Pebble Beach, tourism rebound), provide a reliable and
secure supply, include a reasonable “buffer” against uncertainties, satisfy all other
reasonable needs, and ensure that Cal-Am remains within its legal water rights as
to diversions from the Carmel River in response to the CDO issued by the SWRCB
as well as other constrained water supply sources such as the Seaside Basin.

34. Because permitting and building the approved desalination plant and associated
infrastructure will take a significant amount of time and will result in significant,
unmitigated environmental impacts, it is necessary to further evaluate alternatives
to the Project that would provide a timely alternative water supply and which will
would lessen or eliminate the MPWSP’s significant environmental impacts
reasonable to approve the MPWSP without delay in order to ensure that the
required water supply is available to the Monterey Peninsula as soon as possible.

35. The FEIR/EIS for the MPWSP was not completed in compliance with CEQA,
and the combined FEIR/EIS is not the competent and comprehensive informational
tool that CEQA requires it to be.

36. The FEIR/EIS has been presented to the Commissioners (the decision-making
body of the Commission), and has been reviewed and considered and applied prior
to action on the project.

37. The FEIR/EIS is incomplete and does not reflects the Commission’s independent
judgment and analysis.

38. Because we determine that the FEIR/EIS was not completed in compliance with
CEQA, that the FEIR/EIS has been presented to the Commissioners (the decision

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making body of the Commission), and has been reviewed, considered, and applied
prior to action on the project, and that the FEIR/EIS does not reflects the
Commission’s independent judgment and analysis, we should cannot certify the
FEIR/EIS in today’s decision.

39. The CEQA Findings in Appendix C should not be incorporated into this decision.

40. The mitigation measures in the FEIR/EIS should be adopted revised to

incorporate additional feasible mitigation measures identified by Commission Staff
or the public during revision and recirculation of the FEIR/EIS.

41. It is reasonable to require Cal-Am to implement the mitigation measures set

forth in Appendix D as a condition of the approval of its participation in the
MPWSP and as a condition for issuing the CPCN.

42. The Mitigation Monitoring and Reporting Program in Appendix D, along with
any additional feasible mitigation measures identified by Commission Staff or the
public during revision and recirculation of the FEIR/EIS, should be incorporated
into this any future consideration decision of the Project.

44. Because of Notwithstanding the lengthy history of the MPWSP, the FEIR/EIS
fails to contains a robust, multi-layered and well thought out alternatives analysis
meeting or exceeding requirements of CEQA.

45. For the reasons discussed in this decision and in the D.16-09-021, the
Commission should not approve the MPWSP, the CEQA Findings set forth at
Appendix C, and or the MMRP set forth at Appendix D.

46. The Commission is unable to’s approveal of the MPWSP should be contingent
upon Cal-Am’s performance of the MPWSP utilizing based on the environmentally
superior alternative identified in the FEIR/EIS (Alternative 5a), and in compliance
with or the mitigation measures identified in the FEIR/EIS.

47. The Commission’s Executive Director should monitor and enforce all the
mitigation measures set forth in the any subsequent MMRP for the MPWSP.

48. The Executive Director should be allowed to delegate such duties to the
Commission staff or highly qualified outside staff.

49. The Executive Director should be authorized to employ highly qualified staff
independent of the Commission staff to carry out such functions, including, without
limitation, the on-site environmental inspection, monitoring and mitigation
supervision of any subsequent construction of the MPWSP, if a version of the
MPWSP is approved following further environmental review. Such staff should be

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 individually qualified professional environmental monitors or be employed by one or
more qualified firms or organizations selected by the Commission.

50. In monitoring the implementation of the mitigation measures included in the

any subsequent MMRP, the Executive Director should attribute the acts and
omissions of Cal-Am’s employees, contractors, subcontractors or other agents to Cal-
Am.

53. The Executive Director should not authorize Cal-Am to commence actual any
construction until the FEIR/EIS is revised and recirculated in compliance with
CEQA, and until Cal-Am has entered into a cost reimbursement agreement with
the Commission for the recovery of the costs of the MMRP including, but not limited
to, special studies, outside staff, or Commission staff costs directly attributable to
mitigation monitoring and the development of additional mitigation measures
necessary to further reduce the Project’s significant environmental impacts.

60. The Executive Director should not file a Notice of Determination for the MPWSP
as required by CEQA and the regulations promulgated thereto.

72. There may be some are significant risks associated with the use of slant well
technology for the MPWSP, including significant impacts on marine life and the
marine environment, which cannot be adequately mitigated or as such project risk
should be appropriately apportioned between ratepayers and shareholders.

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