BEFORE THE PUBLIC UTILITIES COMMISSION

FILED
OF THE STATE OF CALIFORNIA 10-20-17
03:39 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.

MARINA COAST WATER DISTRICTS

RESPONSE IN OPPOSITION TO THE OCTOBER 12, 2017
MOTION OF CALIFORNIA-AMERICAN WATER COMPANY
TO STRIKE TESTIMONY

MARK FOGELMAN
RUTH STONER MUZZIN
FRIEDMAN & SPRINGWATER LLP
350 Sansome Street, Suite 201
San Francisco, CA 94104
Telephone: (415) 834-3800
Facsimile: (415) 834-1044
Email: mfogelman@friedmanspring.com
Email: rmuzzin@friedmanspring.com

Attorneys for Marina Coast Water District

Date: October 20, 2017

 TABLE OF CONTENTS
Page

I. INTRODUCTION ..........................................................................................................1

II. ARGUMENT .................................................................................................................1

A. Relevance .......................................................................................................................2
Ground A (environmental review)..............................................................................3
Ground C(outside the Issues Ruling)..........................................................................5
Ground D (issue previously addressed) ......................................................................7
Relevance of challenged MCWD evidence ...................................................................9

B. Legal Conclusion..........................................................................................................18

III. CONCLUSION ............................................................................................................20

TABLE OF AUTHORITIES
Page
Cases
Regents of University of California v. Workers' Comp. Appeals Bd. (2014)
226 Cal. App. 4th 1530 ......................................................................................................... 2
S. Cal. Gas Co. v. Public Utils. Com, (1990)
50 Cal. 3d 31 ......................................................................................................................... 2
Zumbrun Law Firm v. California Legislature (2008)
165 Cal.App.4th 1603 ........................................................................................................... 2
Statutes
Evid. Code 210 .................................................................................................................. 2, 3
Evid. Code 310 .................................................................................................................... 20
Evid. Code 350 ...................................................................................................................... 3
Evid. Code 352 ...................................................................................................................... 7
Evid. Code 901 ...................................................................................................................... 2
Evid. Code 910 ...................................................................................................................... 2
Pub. Util. Code 1002 ....................................................................................................... 7, 17
Pub. Util. Code 1002, subd. (a) ............................................................................... 16, 17, 19
Rules of Practice and Procedure
Rule 10.2 ................................................................................................................................... 2
Rule 11.1(e) .............................................................................................................................. 1
Rule 13.6 ................................................................................................................................... 2
Rule 13.9 ................................................................................................................................... 2

i
I. INTRODUCTION

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

(Rules) and the October 17, 2017 Administrative Law Judges (ALJ) Ruling, which

granted in part the motion of applicant California-American Water Company (Cal-Am) to

shorten time for the filing of responses to its October 12, 2017 motion to strike certain

testimony and exhibits that were served on September 29, 2017, the Marina Coast Water

District (MCWD) responds herewith in opposition to Cal-Ams motion to strike portions

of the testimony and exhibits offered by MCWDs four witnesses.

Cal-Ams motion constitutes an improper attempt to prevent the Commission from

receiving and considering multiple items of relevant evidence sponsored by four parties,

including MCWD. Specifically, the motion lacks merit as to each item of evidence

sponsored by MCWD that Cal-Am attacks, as set forth in detail below. Therefore, the

motion to strike MCWDs evidence should be denied in its entirety.

II. ARGUMENT

Cal-Ams objections to portions of MCWDs testimony and certain of its exhibits are

set forth on pages 48-71 of the Appendix to Cal-Ams motion to strike (Appendix), at lines

114-149. Cal-Am moves to strike thirty-six (36) items of MCWD testimony or exhibits,

stating with each objection one or more of its four specific grounds for striking testimony,

which Cal-Am has labeled Grounds A through D. However, these four categories amount to

just two fundamental evidentiary objections: (1) that the material is irrelevant (Grounds A, C

and D), or (2) that it consists of an impermissible legal conclusion (Ground B). Cal-Am is

mistaken on both of these grounds as to the MCWD testimony and exhibits it seeks to strike.

1
 A. Relevance

Cal-Ams grounds for objection labeled A, C and D appear to assert what are actually

objections on the ground of relevance. Relevant evidence means evidence having any

tendency in reason to prove or disprove any disputed fact that is of consequence to the

determination of the action. (Cal. Evid. Code 210.) While it is true that Commission

proceedings need not strictly apply the rules of evidence (Rule 13.6), the Commission

routinely looks to the Evidence Code, as well as the Code of Civil Procedure, in managing

evidence in the course of its proceedings (see, e.g., Rules 10.2 (subpoenas), 13.9 (official

notice)).1 Thus, so long as the MCWD evidence Cal-Am seeks to strike tends to prove or

disprove a disputed fact that is of consequence to the issues identified for the current round

of evidentiary hearings, Cal-Ams objections under its grounds labeled A, C and D must be

overruled.

As set forth below, each item of MCWDs evidence that is purportedly objectionable

on ground A, C or D tends to prove or disprove a disputed fact of consequence concerning at

least one of the issues or sub-issues that is set forth in the August 28, 2017 Assigned

Commissioner and ALJ Ruling (Issues Ruling) at pages 3-4. Therefore, Cal-Ams

relevance objections (grounds A, C and D) are not well taken. Each of Cal-Ams objections

to MCWDs evidence on grounds of relevance, labeled as A, C and D, should be overruled in

their entirety.

1
The Evidence Code governs the production and use of evidence in many California
administrative agency proceedings, as well as in court proceedings. (Evid. Code 901,
910; Zumbrun Law Firm v. California Legislature (2008) 165 Cal.App.4th 1603, 1621-1623;
see also S. Cal. Gas Co. v. Public Utils. Com, (1990) 50 Cal. 3d 31; Regents of University of
California v. Workers' Comp. Appeals Bd. (2014) 226 Cal. App. 4th 1530.)

2
 Ground A (environmental review)

Cal-Am argues that any fact relating to an issue that might be addressed in the

Commissions environmental review cannot also be relevant to a different, non-

environmental issue included in the issues identified in the Issues Ruling. Cal-Ams

reasoning is faulty. The Commission should not accept Cal-Ams invitation to

impermissibly curtail its record on the critical issues of supply, demand or any of the other

topics identified in or not excluded from the Issues Ruling, simply because an issue involves

one or more foundational facts that may also be of consequence to the potential

environmental impacts of the proposed Monterey Peninsula Water Supply Project

(MPWSP). (Evid. Code 210, 350 (all relevant evidence is admissible, except as

otherwise provided by statute).)

Cal-Am unsuccessfully adopted a similar tactic during the 2016 hearings on the return

water proposal and other matters, seeking to exclude evidence that is relevant to multiple

issues, including environmental review issues, on the same flawed logical premise that a fact

cannot be relevant to more than one disputed issue of consequence. (See, e.g., Reporters

Transcript (RT), Vol. 14, pp. 2356:22-2359:6, 2363:5-21, 2373:4-21; RT Vol. 15, pp.

2391:5-20, 2394:18-2395:6, 2416:28-2417:28, 2423:15-2424:23, 2437:3-17.) Cal-Ams

repeated objections to MCWDs effort to provide the Commission with a robust record on

the crucial issue of the state of the groundwater basin and aquifers in the project area were

consistently overruled during the 2016 hearings. (See also admitted Exhibits MCD-18, 20,

27, 28, 29 and 30 regarding return water volume and other related groundwater issues that

necessarily implicate supply, demand and cost.)

3
 In a similar attempt here, Cal-Am now contends that MCWDs newly-available

scientific evidence concerning the state of the groundwater basin should be excluded from

the record because such evidence should be addressed in the Commissions environmental

impact review, and presumably nowhere else. (See, e.g., Appendix, p. 48, lines 114, 115.)

However, as MCWD explained during the previous hearings, understanding the state of the

aquifers underlying the project area and the hydrogeology of the local groundwater basin,

including the analysis of data gathered through operation and monitoring of Cal-Ams test

slant well (TSW) and any other available means, is essential in order to arrive at a reliable

estimate of the range of deemed fresh water extracted by the projects source wells. This

estimate of deemed fresh water extracted by the projects wells would determine the answers

to a host of other questions, including the volume of the return water component of Cal-Ams

demand (assuming that a desalination project extracting brackish groundwater from the

Salinas Valley Groundwater Basin were certificated and a return water approach were found

adequate for legal compliance, mitigation, or any other purpose, thereby adding return water

volume to the overall demand that Cal-Am must serve) as well as the volume of the required

brackish source water supply for the MPWSP. (See, e.g., RT, Vol. 14, pp. 2366-2370.)

Likewise, a portion of MCWDs most recent evidence offered and now objected to by

Cal-Am as exclusively environmental in subject matter is also directly relevant to multiple

issues of consequence that were either expressly identified in, or at least not expressly

excluded from, the Issues Ruling.2 In addition to the issues of supply and demand, these

2
The Issues Ruling called for testimony on updated estimates and analysis of demand
including but not limited to existing use and future demand and updated estimates and
analysis of supply including but not limited to expansion of Pure Water Monterey or
availability of purchased water from MCWD. (Issues Ruling, pp. 3-4, emphasis added.)

4
foundational facts concerning the aquifers underlying the project area are relevant to plant

sizing (or down-sizing) because they will be part of the required calculus to determine the

correct plant size, if a desalination plant were to be certificated. These foundational facts

regarding the groundwater basin and aquifers also relate to the issue of updated costs,

because the size of the desalination plant is a critical component of cost estimation and the

nature and quality of the source water withdrawn would affect the volume and cost of the

proportion of desalination product water delivered to the Monterey Peninsula. They also

relate to the issue of whether Cal-Am has met its burden of proving that its proposed project

will not engender harm to the Salinas Valley Groundwater Basin and basin users, a factual

issue that could determine whether the proposed project is feasible and lawful.

Costs, sizing or downsizing, supply and demand are all listed in the Issues Ruling as

issues to be explored in testimony for the current round of evidentiary hearings. (Issues

Ruling, pp. 3-4.) MCWDs relevant evidence concerning these issues, including facts related

to the state of the groundwater basin and aquifers underlying the project area, should be

included in the record and considered by the Commission in its decision-making process.

Exclusion of MCWDs relevant evidence would disserve the Commission by depriving it of

a full and complete record for decision and would be contrary to the public interest.

Ground C(outside the Issues Ruling)

In some instances, Cal-Am argues that certain MCWD testimony and exhibits exceed

the scope of the issues and sub-issues that were identified in the Issues Ruling. That is not

the case, because all of MCWDs testimony and exhibits are relevant to matters fairly

encompassed within those issues and sub-issues. For example, at line 123 of the Appendix,

Cal-Am asserts that Dr. Knights testimony is outside the scope of the Issues Ruling,

5
including her statement that data related to groundwater quality in the project area would

assist in setting volumes of return water, premised on Cal-Ams proposal that the percentage

of freshwater deemed to be extracted by the source water wells should determine the volume

of desalinated return water. (Appendix, p. 54; see Return Water Settlement Agreement, p. 6,

2.c.) Cal-Am itself, in its direct testimony, addresses this very subject. (Direct testimony

of Ian Crooks, pp. 14-15 (estimating return water percentage of volume).) So does Public

Water Now, with express reference to Dr. Knights analysis of airborne electromagnetic

(AEM) data that was gathered in recent months. (Direct testimony of George Riley served

Sept. 29, 2017, at pp. 10, 13 (discussing return water percentage estimates and referencing

Dr. Knights AEM survey for MCWD).) However, Cal-Am does not seek to strike Public

Water Nows testimony. (See also Direct Testimony of Ron Weitzman, served Sept. 29,

2017, at pp.25-27 (discussing disputed facts concerning percentage of water to be returned to

basin).)

As with its objection 123 to Dr. Knights testimony, Cal-Ams other objections on its

ground C are not well taken where the relevance of the challenged testimony is evident on

its face. Incredibly, Cal-Am seeks to strike MCWDs evidence regarding Issue 2.c, as

expressly identified in the Issues Ruling, MCWDs supply option proposals, amounts and

cost. (Appendix, pp. 59-63 at lines 130-137.) There can be no credible argument that

MCWDs written offers of water supply are not expressly identified in the Issues Ruling, or

that newly-developed scientific data concerning the state of the groundwater basin and

aquifers in the project area are not directly relevant to supply and demand volumes for the

proposed MPWSP, as well as to the issues of sizing, down-sizing, and updated costs.

6
 Ground D (issue previously addressed)

Cal-Am objects to some of MCWDs evidence on the ground that an issue addressed

by such evidence has been previously addressed. This objection seems to indicate that Cal-

Am believes the evidence offered is either outside the scope of issues identified in the Issues

Ruling and thus not relevant, the same as its objection ground C, or that it addresses matters

that are already documented in the record, even if they are included in the Issues Ruling. In

that case the objection might more properly be framed as one concerning cumulative

evidence (Evid. Code 352), if the material MCWD is offering were burdensome,

prejudicial or confusing, or failed to contribute to a full and more accurate understanding of

issues that were litigated on the basis of evidence that is now stale and outdated. However,

the primary purpose of these hearings, as is plain from the Issues Ruling itself, is to update

the Commissions record. The Issues Ruling expressly seeks updated evidence on issues of

demand, supply, costs, financing, sizing, renewable power, settlements, and three of the four

Public Utilities Code section 1002 factors. (Issues Ruling, pp. 3-4, 1-6, 8, 9.) Even the

request for evidence concerning the status of Cal-Ams access to its proposed source well

site at the CEMEX property could be considered an update of an issue previously addressed,

because there have been intervening developments related to the use and ownership of the

land. (See id. at p. 4, 7.)

The evidence that MCWD offers is relevant to a number of issues that were

previously explored on the record, including those specifically identified in the Issues

Ruling. Some of MCWDs evidence may also be relevant to issues not expressly set forth in

the Issues Ruling, such as the projects likely impacts to the groundwater basin, or whether

Cal-Am has met its burden for purposes of the legal feasibility of the project to demonstrate

7
that implementation of the MPWSP with slant wells at the CEMEX site as proposed would

not harm the basin and current users of the basin.3 The fact that the Issues Ruling did not

expressly request evidence on every issue as to which a particular item of evidence may be

relevant is not a proper ground to exclude that evidence.

As will be examined in detail below, MCWD believes that the testimony and exhibits

it served on September 29, 2017 are relevant to the issues identified in Issues Ruling. To the

extent that MCWD is offering new, relevant evidence on a topic that has already been

examined, it is doing so because that additional evidence was not available at the time of

previous evidentiary hearings and, in some cases, because the evidence that exists in the

record is outdated, stale or demonstrably incorrect. In the interest of proceeding on a

complete and up-to-date record, the new evidence should be admitted. When new facts and

data become available, they present the best, most current evidence to support the

Commissions ultimate decision. New, relevant evidence should be admitted and considered

in the public interest. To exclude such evidence undermines the creation of a complete

record that is essential to the Commissions rendering a correct and accurate decision.

3
This burden of demonstrating no harm is the standard that was set forth in the July 2013
report to the Commission of the State Water Resources Control Board (SWRCB) to
establish whether, in the view of the SWRCB, Cal-Am could acquire an appropriative right
to lawfully pump brackish source water for its proposed desalination project from the
overdrafted Salinas Valley Groundwater Basin. (Ex. MCD-17, pp. 38, 39, 42, 46-48.) As
the SWRCB noted, the factual record on the burden it articulated had not yet been developed
in 2013. (Id. at p. 4, fn. 7; pp. 10, 24-25, 32, 39, 45, 46, 50-51.) Because the record facts
related to this fundamental legal issue were non-existent at that time, Dr. Knights new
research on the present state of the aquifers and the groundwater basin in the project area are
critical to the Commissions resting its decision on a full and complete evidentiary record.
As noted in Dr. Knights testimony (p. 3, lines 10-12), MCWD is also providing her
preliminary report (Ex. MCD-51) to the Commissions environmental review team.

8
 For example, the return water and sizing settlements were briefed in 2016 and 2013,

respectively. Yet new, comprehensive AEM data are now available regarding the state of the

aquifers and groundwater basin in the project area. These are data that the parties to the

return water settlement could not possibly have examined in 2016, because they were

gathered in May of 2017. (Knight Testimony, Ex. MCD-49, p. 4, lines 19-21 and Ex. MCD-

51.) Similarly, information is now available regarding Cal-Ams monthly demand volume,

following an appropriate ruling rendered in 2015 that required Cal-Am to begin publicly

reporting its monthly and annual demand volumes. None of these demand data were

publicly available in 2013 when the sizing settlement was briefed. Indeed, Cal-Ams

witnesses did not even address Cal-Ams demand data for 2017, although the data were

provided by MCWD (Ex. MCD-38) and were referenced in Planning and Conservation

League and Surfriders testimony (Minton testimony served Sept. 29, 2017, p. 3 and fn. 1).

The Commission should not decline to receive more recent evidence simply because that

evidence may not support Cal-Ams arguments.

Relevance of challenged MCWD evidence

Each item of MCWD testimony and exhibits that Cal-Am seeks to strike is

unquestionably relevant to at least one of the nine issues, and related sub-issues, identified in

the August 28, 2017 Assigned Commissioner and ALJ Ruling at pages 3-4, and therefore

each of Cal-Ams relevance objections must fail, as detailed below.

**

Obj. Page:line - Hopkins Relevance of challenged evidence to Issues

114 2:16-24 Cal-Am seeks to exclude Mr. Hopkins testimony and his
updated report to MCWD regarding the MPWSP return
water proposal, which references and relies upon Dr.

9
Obj. Page:line - Hopkins Relevance of challenged evidence to Issues
Knights preliminary report. However, as established
during previous evidentiary hearings, the water quality of
the proposed projects source water measured by one or
more metrics of dissolved solids, sodium chloride levels, or
specific conductivity is relevant to the proposal to return
to the basin the volume of extracted brackish basin water
that is deemed to be fresh water. This measurement would
in turn determine both supply how much source water
must be withdrawn for desalination to produce the quantity
of product water that is required to meet Cal-Ams service
needs, as well as demand how much of the desalinated
product water must be dedicated as return water to the basin.
Therefore, Mr. Hopkins evaluation of Dr. Knights
recently-collected AEM data, including his report to
MCWD (Ex. MCD-57), is relevant to the issues of supply
and demand (and, by extension, sizing and cost as well).
Exhibit MCD-57 updates Mr. Hopkins January 2016 report,
which was received into evidence as Exhibit MCD-20 on
April 14, 2016. Therefore, Exhibit MCD-57 is also relevant
because it provides an update of Exhibit MCD-20, based
upon the newly available AEM data, Dr. Knights
preliminary report, and Mr. Hopkins evaluation of that data
and report.
115 2:25-3:22 Cal-Am seeks to exclude Mr. Hopkins testimony regarding
Cal-Ams revised return water volume estimate as set
forth in Mr. Crooks September 15, 2017 testimony. Not
only is this evidence directly relevant to demand and supply,
it is responsive to a topic expressly addressed in Cal-Ams
testimony and it is therefore also relevant for that
independent reason.
Cal-Am would also strike Mr. Hopkins statement that the
new AEM data confirms the importance of preserving and
protecting the groundwater resources in these coastal
aquifers. This specific testimony and the data upon which
Mr. Hopkins relies to support it are relevant to the issue of
community values in the MPWSP project area, as Mr.
Hopkins states at page 4, lines 13-17 of his testimony. (See
also Van Der Maaten Testimony, p. 19 at lines 19-25, p. 20
at lines 6-10, 19-22, which Cal-Am also seeks to strike; see
also Riley Testimony, served Sept. 29, 2017 at p. 14, and
Sept. 29, 2017 Warburton Testimony, p. 3, lines 6-9 and
pp. 5-8, each of which Cal-Am does not seek to strike.)

10
Obj. Page:line - Hopkins Relevance of challenged evidence to Issues
116 3:23-4:17 Mr. Hopkins expert testimony regarding whether the
Return Water Settlements planned volume of return water
will satisfy any return water obligation or obviate harm to
the groundwater in the project area aquifers is relevant to
supply, demand and costs, as well as Issue 8, whether
modifications are needed to any settlement agreement.
The testimony also happens to be relevant to the unresolved
legal issue framed by the SWRCB of whether Cal-Am can
meet the burden of demonstrating no harm to the basin and
its lawful users, and the environmental issue of groundwater
impacts. As explained above, an item of evidence may be
relevant to more than one issue, but that is not a valid
ground to exclude newly-available, relevant evidence. In
determining whether the public convenience and necessity
warrants certificating the proposed project, the Commission
should have before it the best available evidence for
evaluating potential harms engendered by the project.
117 4:18-5:1 Here, Mr. Hopkins briefly summarizes, for the convenience
of the ALJs and the Commission, his 2016 report, which
was admitted as Exhibit MCD-20.
MCWD understands that MCD-20 itself is the best evidence
of its contents, but Mr. Hopkins testimony here is still
relevant because it explains the link between his prior
testimony and report, the subsequent Return Water
Settlement Agreement, and his September 29, 2017
testimony and report (Ex. MCD-57), and their relevance to
the issues of supply and demand, as set forth in the Issues
Ruling.
118 5:2-6:9 Mr. Hopkins summarizes the results of his 2017 report,
specifically as it relates to the issues of demand and supply,
and the underlying issues of the state of the groundwater
basin and aquifers in the project area, as well as the likely
impacts of the project, if approved as proposed, on the state
of the basin and aquifers.
Mr. Hopkins summarizes his view that the groundwater
modeling for the project still does not accurately reflect the
present state of the groundwater basin and aquifers in the
project area and therefore does not accurately predict the
projects influence on that state. Consequently the
sufficiency of the Return Water Settlement cannot be
assessed. This testimony is therefore relevant to supply,

11
Obj. Page:line - Hopkins Relevance of challenged evidence to Issues
demand, sizing, costs and settlements.
It also happens to be relevant to the unresolved legal issue
framed by the SWRCB of whether Cal-Am can meet the
burden of demonstrating no harm to the basin and its lawful
users, and the environmental issue of groundwater impacts.
Evidence that is relevant to issues identified in the Issues
Ruling and additional issues must not be excluded from the
Commissions record merely because it tends to prove or
disprove more than one issue of consequence in the matter.
119 6:10-25 Mr. Hopkins testifies concerning the corroboration that Dr.
Knights AEM study and preliminary report provide for his
opinions concerning the present state of the groundwater
basin and aquifers in the project area. The testimony
presents new, directly relevant scientific evidence on critical
foundational facts that go to numerous issues in the Issues
Ruling: source water supply, return water as an element of
demand, costs, project sizing and settlement agreements, as
explained above.
The evidence must not be excluded merely because it also
happens to be relevant to the unresolved legal issue framed
by the SWRCB of whether Cal-Am can meet the burden of
demonstrating no harm to the basin and its lawful users, and
the environmental issue of groundwater impacts.
120 6:26-8:4 Here, Mr. Hopkins provides his update to the specific
question of whether Cal-Ams estimation of its return water
obligation under the Return Water Settlement is accurate.
He raises the crucial concern that updated modeling
correlated with actual data rather than unproven
assumptions from the MPWSP TSW and monitoring well
data from the aquifers within the Northern Marina Subarea
affected by the project must be performed in order to arrive
at a reasonable estimate. Again, Mr. Hopkins testimony is
directly relevant to source water supply, return water as an
element of demand, costs, project sizing and settlement
agreements, therefore it should not be stricken.
121 MCD-51 (sic) (Cal- MCD-57, Mr. Hopkins updated report dated Sept. 29, 2017
Am appears to considers the results of Dr. Knights 2017 AEM study and
actually move to
strike MCD-57 in her preliminary report and provides his updated opinions
its entirety) concerning the present state of the groundwater basin and
aquifers in the project area.

12
Obj. Page:line - Hopkins Relevance of challenged evidence to Issues
Exhibit MCD-57 presents new, directly relevant scientific
evidence on critical foundational facts that go to multiple
issues set forth in the Issues Ruling: source water supply,
return water as an element of demand, costs, project sizing
and settlement agreements.
Mr. Hopkins report must not be excluded merely because it
also happens to be relevant to the unresolved legal issue
framed by the SWRCB of whether Cal-Am can meet the
burden of demonstrating no harm to the basin and its lawful
users, and the environmental issue of groundwater impacts

Obj. Page:line Knight Relevance of challenged evidence to Issues

122- 2:6-4:25, Dr. Knights testimony summarizes the preliminary results
127, Ex. MCD-51 of her 2017 comprehensive AEM survey of the condition of
128
the aquifers and groundwater basin in the project area. This
information, as discussed above, is foundational for the
Commissions assessment of Cal-Ams ability to operate the
proposed MPWSP lawfully and successfully. Cal-Am seeks
to strike the entirety of Dr. Knights testimony and her
preliminary report to MCWD.
Specific to the matters of consequence identified in the
Issues Ruling, an accurate and complete understanding of
existing water quality of the aquifers in the project area is
essential in order to resolve questions of source water
supply, return water as an element of demand, costs, project
sizing and settlement agreements, as well as the potential
value and utility to the community of the aquifers in their
present state. Dr. Knights testimony and her preliminary
report are directly relevant to the existing water quality of
the aquifers in the project area.
The quality of the brackish groundwater, both now and over
time as Cal-Am would pump it from the aquifers for
desalination, is a fact of consequence that will determine
how much water must be pumped, how much return water
must remain in the basin and not be delivered to Cal-Ams
Monterey district, the size of the project, its costs, and
whether there is a need to modify existing return water
and/or sizing settlements. The testimony Cal-Am seeks to
strike tends to prove or disprove Cal-Ams claims
concerning the present quality of the brackish source water
and groundwater generally in and adjacent to the project

13
Obj. Page:line Knight Relevance of challenged evidence to Issues
area. When the present quality of the groundwater is
established, it should then be possible to accurately predict
how the source water and surrounding groundwater would
be affected by the proposed project pumping, and based on
that determination evaluate the supply and demand
parameters of the MPWSP as an element of Cal-Ams water
supply portfolio. The motion to strike Dr. Knights
testimony and Exhibit MCD-51 are without merit and
should be denied, because the evidence is relevant to supply
and demand and other matters set forth in the Issues Ruling.
Dr. Knights testimony, her preliminary report and the AEM
data itself all tend to prove or disprove additional, related
facts of supreme consequence here, i.e., whether the local
aquifers are fully seawater intruded and of no beneficial use,
as Cal-Am claims, and whether operation of the MPWSP, if
built with slant well intake of brackish groundwater at the
CEMEX site as proposed, would result in harm to the
groundwater basin and its lawful users.
The importance of Dr. Knights testimony and her research
to inform the Commissions understanding of multiple
issues cannot be understated. This evidence must not be
excluded from the Commissions record simply because it
informs a number of issues in addition to those set forth in
the Issues Ruling.

Obj. Page:line Van

Der Maaten Relevance of challenged evidence to Issues
129 5:12-6:14 Mr. Van Der Maatens testimony here responds directly to
Cal-Ams claim, in Mr. Crooks direct testimony,
concerning the projected percentage and volume of return
water that it will require as an element of demand, if the
MPWSP were to be approved as a part of its water supply
portfolio. (Crooks testimony, p. 14.) As explained above,
return water as a component of demand is directly relevant
to issues set forth in the Issues Ruling. Information that will
assist in ascertaining the state of the groundwater, in order
to determine percentage and volume of return water, is
therefore necessarily relevant to the issues of supply and
demand.
Again, Cal-Am also seeks to strike this testimony on the
faulty reasoning that the must be irrelevant to matters raised

14
Obj. Page:line Van
Der Maaten Relevance of challenged evidence to Issues
in the Issues Ruling because it also happens to be relevant
to the Commissions environmental review. Mr. Crooks
testimony itself proves exposes the flaw in Cal-Ams
argument. The testimony is relevant, it seeks to rebut Cal-
Ams direct testimony, and Cal-Ams motion should be
denied.
130- 10:25-14:27 Here, Mr. Van Der Maatens testimony (Q&A pairs 22-29)
137 directly responds to the call in the Assigned Commissioners
and ALJs Issues Ruling to provide the Commission with
information regarding water available for purchase by
applicant from Marina Coast Water District, in what
amounts, and at what cost. (Issues Ruling, p. 4, item 2.c.)
The testimony describes and attaches two ready proposals
that MCWD fully negotiated and has already presented to
the relevant local entities, the Monterey Peninsula Water
Management District (Ex. MCD-43) and the Seaside
Groundwater Basin Watermaster (Ex. MCD-44)
Cal-Ams bald claim that these matters are outside the
scope of the Issues Ruling, and its contention that these
matters must be addressed solely as alternatives in the
environmental review process are entirely without merit and
must be overruled.
Furthermore, MCWD notes that Cal-Am does not appear to
request the Commission strike Exhibits MCD-43 and MCD-
44. Mr. Van Der Maatens testimony at Q&A pairs 22-29 is
necessary to the Commissions record for a fair
understanding of the matters set forth in Exhibits MCD-43
and MCD-44.
138 15:2-16:6 Here, Mr. Van Der Maaten provides the Commission with
information concerning substantial potential costs that could
be incurred should the project go forward and as MCWD
fears adversely impact MCWDs groundwater supply.
The Issues Ruling expressly requested updates to estimates
and analysis of costs. (Issues Ruling, p. 4, item 3.) As far
as MCWD is aware, Cal-Am to date has not included these
potential costs in its estimates. Costs of necessary
mitigation measures are a legitimate component of project
design and budgeting. (See ORA Phase 2 Rebuttal
Testimony, p. 10, lines 1-6 (discussing and comparing
MPWSP and GWR schedule certainty, design and costs

15
Obj. Page:line Van
Der Maaten Relevance of challenged evidence to Issues
factors).)
Potential costs for mitigating any harm to MCWDs water
supply is clearly a legitimate financial and cost-related issue
as well as an environmental issue. Cal-Ams motion to
strike the testimony should be denied.
139 16:7-16:10 (sic) This testimony informs the Commission of potential cost
(Cal-Am appears to issues related to a section of existing MCWD pipeline that
seek to strike
16:7-17:10) Cal-Am apparently proposes to utilize to move MPWSP
product water. Again, the Issues Ruling expressly requested
updates to estimates and analysis of costs. (Issues Ruling, p.
4, item 3.) As far as MCWD is aware, Cal-Am to date has
not included costs that could arise if the MCWD pipeline is
unavailable or inadequate to serve MCWDs reserved
capacity and reserved ASR uses, plus Cal-Ams projected
MPWSP capacity. The testimony is relevant to costs and
therefore Cal-Ams motion to strike it should be denied.
140 17:12-18:21 Here, Mr. Van Der Maaten offers MCWDs position on a
down-sized MPWSP, expressly listed as item 5 as listed in
the Issues Ruling. He also provides MCWDs view that an
up-sized Pure Water Monterey project, as well as MCWDs
two ready supply options as discussed in Exhibits MCD-43
and MCD-44, should be more than sufficient to close any
gap in Cal-Ams water supply portfolio as a result of
compliance with the SWRCBs Carmel River cease-and-
desist orders. Because the testimony directly addresses
matters specified in the Issues Ruling, Cal-Ams contention
that this testimony is outside the scope of the Issues Ruling
and/or should be addressed solely in environmental review
is without merit and its motion to strike should be denied.
141, 19:16-21:1, The testimony states on its face that it addresses the issue of
142 Ex. MCD-47 Community Values. (Pub. Util. Code 1002, subd. (a).)
MCWD is a local water district, serving a highly-diverse
community of over 30,000 customers. Its duties to the
community it serves include securing present and future
water supplies and providing those supplies at affordable
rates. Mr. Van Der Maatens testimony describes MCWDs
plans for future groundwater storage projects in the MPWSP
area, which could be adversely impacted by the MPWSPs
proposed slant well intake of brackish groundwater at the
CEMEX property. As the testimony notes, Ms. Nelsons
testimony and an attached, related report (Ex. MCD-47)

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Obj. Page:line Van
Der Maaten Relevance of challenged evidence to Issues
describe in greater detail these potential projects that could
serve the future water needs of the Marina and Ord
communities.
Because the testimony directly addresses matters specified
in the Issues Ruling, Cal-Ams contention that this
testimony is outside the scope of the Issues Ruling and/or
should be addressed solely in environmental review is
without merit and its motion to strike should be denied.

Obj. Page:line Nelson Relevance of challenged evidence to Issues

143- 2:14-5:26, Similar to certain testimony from Mr. Hopkins and Mr. Van
148, Ex. MCD-54 Der Maaten, Ms. Nelsons testimony is directly relevant to
149
community values, listed as item 9.a in the Issues Ruling.
(Pub. Util. Code 1002, subd. (a).) That is because Ms.
Nelson discusses MCWDs efforts to serve the future needs
of its community include plans for implementing
groundwater recharge projects at its Armstrong Ranch
property, which as Ms. Nelson explains is in close
proximity to the proposed slant well array for the MPWSP
at the CEMEX site. This potential future water supply
safeguard is an important community asset that could be
adversely impacted or destroyed by the proposed MPWSPs
intake of a high volume of brackish groundwater as
proposed at the CEMEX site, as Ms. Nelsons testimony and
her March 2017 report (Ex. MCD-54) explain. It is of
utmost importance for the Commission to bear this
information in mind as it weighs all of the Public Utilities
Code, section 1002 factors and all relevant factors in its
consideration of the application.
Because Ms. Nelsons testimony and Exhibit MCD-54
directly address matters specified in the Issues Ruling,
community values, Cal-Ams contention that this testimony
is outside the scope of the Issues Ruling and/or should be
addressed solely in environmental review is without merit
and its motion to strike should be denied. It was not
possible for MCWD to offer Ms. Nelsons report into
evidence at the time of previous hearings because it was not
presented to MCWD until March of 2017. (Nelson
Testimony, p. 2, lines 22-27.)
Cal-Am complains that Ms. Nelsons report, Exhibit MCD-

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Obj. Page:line Nelson Relevance of challenged evidence to Issues
54, was submitted with MCWDs CEQA/NEPA comments
on the Commissions DEIR/DEIS. However, as explained
above, if an item of evidence is relevant to more than one
issue, such as community values and environmental
impacts, that is not a valid ground to exclude the evidence
from the Commissions record on community values.
**

B. Legal Conclusion

Besides objecting on grounds of relevance, Cal-Am raises an additional objection in

three instances that certain testimony of MCWDs General Manager, Mr. Van Der Maaten,

states an impermissible legal conclusion. Because Cal-Am makes this objection to large

excerpts of testimony without stating exactly which statement or statements it believes to

constitute legal conclusions, it is difficult to ascertain whether Cal-Am contends this

objection applies to some or all of the cited testimony. In any event, Cal-Am is mistaken, as

will be discussed below, because although Mr. Van Der Maatens testimony in several

instances mentions legal issues, or reserves MCWDs legal arguments the testimony itself

does not state a legal conclusion as Cal-Am contends.

Obj. Page:line Van

Der Maaten No legal conclusion stated in the challenged evidence
129 5:12-6:14 It is unclear what portion of the referenced testimony Cal-
Am challenges as stating a legal conclusion, because Mr.
Van Der Maatens testimony here responds directly to Cal-
Ams claim, in Mr. Crooks direct testimony, concerning the
projected percentage and volume of return water that it will
require as an element of demand, if the MPWSP were to be
approved as a part of its water supply portfolio. (Crooks
testimony, p. 14.) Mr. Van Der Maatens one sentence
stating that MCWD makes no concession regarding the
lawfulness of Cal-Ams return water proposal is merely a
reservation of MCWDs right to continue asserting its prior,
consistent legal arguments, but it not a legal conclusion. It
is a statement of MCWDs position or policy that properly

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Obj. Page:line Van
Der Maaten No legal conclusion stated in the challenged evidence
informs the record.
The objection should be overruled and the motion to strike
the entirety of Q&A pair 13 on this ground should be
denied.
134 12:17-14:10 It is unclear what portion of the referenced testimony, Q&A
pair 26, Cal-Am challenges as stating a legal conclusion,
because Mr. Van Der Maatens testimony here provides
information on matters expressly solicited by the Assigned
Commissioner and ALJs in the Issues Ruling, water
available for purchase by applicant from MCWD. (Issues
Ruling, p. 4, item 2.c.)
If Cal-Am takes issue with Mr. Van Der Maatens
statements of MCWDs precise entitlement to certain
volumes of Pure Water Monterey recycled water, which
MCWD could sell for use in Cal-Ams Monterey district,
Cal-Am may cross-examine him or another witness with
knowledge of the matter, or it may seek the information
through data requests. In any event, these are not legal
conclusions, they are statements of fact, and they are
relevant to Issue 2.c. Cal-Ams objection of legal
conclusion should be overruled and the motion to strike the
entirety of Q&A pair 26 on this ground should be denied.
141 19:16-21:1 Once again, it is unclear what portion of the referenced
testimony, here most of Q&A pair 34, Cal-Am challenges as
stating a legal conclusion. Mr. Van Der Maatens testimony
provides information that addresses the issue of Community
Values. (Pub. Util. Code 1002, subd. (a).) In particular,
he describes MCWDs actions in response to the
Legislatures enactment of the Sustainable Groundwater
Management Act, or SGMA, and its plans for developing a
groundwater sustainability plan. These are not legal
opinions, they are statements of fact.
The objection of legal conclusion should be overruled and
the motion to strike on that ground should be denied.
Moreover, while it is clear that fact testimony from a percipient witness may not

present a legal conclusion (Evid. Code 310), it is also true that MCWD is a public agency

that must serve its own constituency. In the course of doing so, MCWD must develop its

19
own policies and priorities. MCWDs policies as determined by its Board of Directors and

stated in MCWDs testimony include its views on the propriety of certain Cal-Am

assumptions concerning the proposed project, as well as the ability of the proposed project to

comply with law and serve the public interest. The Commissions inquiry here, of course,

encompasses the question of whether the public interest, i.e., the public convenience and

necessity, would be served by the project, in addition to resolving specific relevant questions

of fact and law. That inquiry necessarily must consider all relevant factors, including the

views of public agencies, like MCWD, whose operations and constituents would be affected

by construction and operation of the proposed project.

III. CONCLUSION

For all of the reasons stated above, all of MCWDs evidence that Cal-Am seeks to

exclude from the Commissions consideration is relevant to issues of consequence in this

proceeding, as set forth in the Issues Ruling. None of the challenged MCWD testimony

impermissibly states a legal conclusion. Cal-Ams motion to strike constitutes yet another

attempt by Cal-Am to silence opinions contrary to its own view and to deprive the

Commission of a full and up-to-date factual record. Cal-Ams motion to strike should be

denied.

DATED: October 20, 2017 Respectfully submitted,

FRIEDMAN & SPRINGWATER LLP

By: _/s/ Mark Fogelman

Mark Fogelman
Ruth Stoner Muzzin
Attorneys for
MARINA COAST WATER DISTRICT

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