Mcwd's Opening Brief On Environmental Issues & Renewed Request For Oral Argument 04-19-18

BEFORE THE PUBLIC UTILITIES COMMISSION
FILED
OF THE STATE OF CALIFORNIA 04/19/18
04:59 PM
In the Matter of the Application of California- A.12-04-019

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

OPENING BRIEF ON ENVIRONMENTAL ISSUES AND
RENEWED REQUEST FOR ORAL ARGUMENT
MARK FOGELMAN
RUTH STONER MUZZIN
FRIEDMAN & SPRINGWATER LLP
350 Sansome Street, Suite 210
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: April 19, 2018
TABLE OF CONTENTS
Page
SUMMARY OF MCWD’S RECOMMENDATIONS .......................................................... 1
I. INTRODUCTION ..................................................................................................... 6
A. Background ............................................................................................................... 6
B. Summary of Key EIR/EIS Deficiencies ................................................................... 10
II. FEIR/FEIS ISSUES ................................................................................................. 13
A. Water Demand, Supply and Water Rights ................................................................ 14
1. The EIR/EIS Analysis of Demand and Supply is Deficient ...................................... 15
(a) Existing and Future Demand is Vastly Overstated ................................................... 15
(b) Cal-Am’s Supply Includes 3,500 AFY from PWM .................................................. 23
2. Water Rights Analysis ............................................................................................. 31
(a) Groundwater Protection Framework ........................................................................ 34
(b) MCWRA’s Projects and Actions ............................................................................. 35
(c) Water Rights ............................................................................................................ 37
(d) SGMA ..................................................................................................................... 41
B. Project Description .................................................................................................. 43
1. Insufficient Capacity in existing shared MCWD Pipeline......................................... 43
2. Periodic Well Replacement. ..................................................................................... 44
3. Disclosure of Return Water Formula. ....................................................................... 44
C. Environmental Setting, Impacts and Mitigation Measures ........................................ 44
D. Alternatives ............................................................................................................. 73
E. Other ....................................................................................................................... 85
III. PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY OF
PROJECT – ENVIRONMENTAL FACTORS ........................................................ 90
A. Public Utilities Code Section 1002(a)(4) and Other Law .......................................... 94
1. The Agency Act ....................................................................................................... 95
2. Monterey County Desalination Ordinance ............................................................... 98
B. Other ....................................................................................................................... 99
IV. CONCLUSION AND RENEWED REQUEST FOR ORAL ARGUMENT ........... 101
i
TABLE OF AUTHORITIES
Page
Cases
Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
124 Cal.App.4th 1184 ......................................................................................................... 73
Berkeley Keep Jets Over Bay v. Board of Port Commissioners (2001)
91 Cal.App.4th 1344 ................................................................................... 20, 44, 55, 56, 64
Cadiz Land Co. v. Rail Cycle (2000)
83 Cal.App.4th 74 ........................................................................................................ passim
California Native Plant Society v. City of Santa Cruz (2009)
177 Cal.App.4th 957 ..................................................................................................... 13, 74
Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010)
190 Cal. App. 4th 316 ......................................................................................................... 32
City of Barstow v. Mojave Water Agency (2000)
23 Cal.4th 1224................................................................................................................... 39
City of Los Angeles v. City of San Fernando (1975)
14 Ca1.3d 199 ..................................................................................................................... 39
City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266 ........................................................................................................... 38
City of Santee v. County of San Diego (1989)
214 Cal.App.3d 1438 .......................................................................................................... 81
Cleary v. County of Stanislaus (1981)
118 Cal.App.3d 348 ............................................................................................................ 56
Cleveland National Forest Foundation v. San Diego Association of Governments
(2017) 17 Cal.App.5th 413 ..................................................................................... 20, 43, 63
Communities for a Better Environment v. Cal. Resources Agency (2002)
103 Cal.App.4th 98 ............................................................................................................. 68
Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994)
24 Cal.App.4th 826 ............................................................................................................. 14
Consolidated Irrigation District v. City of Selma (2012)
204 Cal.App.4th 187 ............................................................................................. 12, 21, 100
Corona Foothill Lemon Co. v. Lillibridge (1937)
8 Cal.2d 522 ........................................................................................................................ 39
Friends of Mammoth Lakes v. Bd. Of Supervisors (972)
8 Cal.3d 247 .......................................................................................................................... 5
Friends of the Eel River v. Sonoma County Water Agency (2003)
108 Cal.App.4th 859 ..................................................................................................... 70, 75
Gentry v. City of Murrieta (1995)
36 Cal.App.4th 1359 ........................................................................................................... 17
Habitat & Watershed Caretakers v. City of Santa Cruz (2013)
213 Cal.App.4th 1277 ......................................................................................................... 79
In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings
(2008) 43 Cal.4th 1143 ................................................................................................. 74, 81
ii
Kings County Farm Bureau v. City of Hanford (1990)
221 Cal.App.3d 692 ............................................................................................................ 72
Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1993)
6 Cal.4th 1112......................................................................................................... 56, 68, 79
Laurel Heights Improvement Assn. v. Regents of Univ. of California (1988)
47 Cal. 3d 376 .............................................................................................................. passim
Monolith Portland Cement Co. v. Mojave Public Utilities District (1957)
154 Cal.App.2d 487 ............................................................................................................ 39
Morongo Band of Mission Indians v. California SWRCB (2009)
45 Cal.4th 731............................................................................................................. 12, 101
Mountain Lion Foundation v. Fish & Game Com. (1997)
16 Cal.4th 105......................................................................................................... 32, 73, 75
Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001)
91 Cal.App.4th 342 ............................................................................................................. 86
Neighbors for Smart Rail v. Exposition Metro Line Construction Auth. (2013)
57 Cal.4th 439..................................................................................................................... 45
Northern California Power Agency v. Public Util. Com. (1971)
5 Cal.3d 370 .................................................................................................................. 91, 92
Pasadena v. Alhambra (1949)
33 Cal.2d 908 ...................................................................................................................... 39
People v. County of Kern (1976)
62 Cal.App.3d 761 ................................................................................................ 12, 13, 101
Preservation Action Council v. City of San Jose (2006)
141 Cal.App.4th 1336 ................................................................................................... 74, 77
San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994)
27 Cal.App.4th 713 ........................................................................................... 15, 46, 75, 81
Save Our Carmel River v. Monterey Peninsula Water Management District (2006)
141 Cal.App.4th 677 ........................................................................................................... 13
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001)
87 Cal.App.4th 99 ............................................................................................. 14, 15, 53, 55
Save Round Valley Alliance v. County of Inyo (2007)
157 Cal.App.4th 1437 ......................................................................................................... 78
Save Tara v. City of West Hollywood (2008)
45 Cal.4th 116..................................................................................................................... 42
South County Citizens for Smart Growth v. County of Nevada (2013)
221 Cal.App.4th 316 ........................................................................................................... 74
Ventura County Waterworks v. Public Util. Com. (1964)
61 Cal.2d 462 ...................................................................................................................... 92
Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412 .................................................................................................. passim
Watsonville Pilots Assn. v. City of Watsonville (2010)
183 Cal.App.4th 1059 ......................................................................................................... 74
Wright v. Goleta Water District (1985)
174 Cal.App.3d 74 .............................................................................................................. 40
iii
Statutes
16 U.S.C. § 1536, subd. (a(2) ................................................................................................. 78
Civil Code § 1007 ................................................................................................................... 40
Evid. Code § 210 .............................................................................................................. 91, 92
Pub. Resources Code § 21002 ................................................................................................ 73
Pub. Resources Code § 21082.1 ............................................................................... 12, 13, 101
Pub. Recourses Code § 21092.1 ............................................................................................. 56
Pub. Resources Code § 21083, subd. (b)(2) ........................................................................... 68
Pub. Resources Code § 21091, subd. (d)(2)(B) ...................................................................... 90
Pub. Util. Code § 1001 ..................................................................................................... 42, 92
Pub. Util. Code § 1002, subd. (a) ......................................................................... 90, 92, 93, 94
Pub. Util. Code § 1005 ........................................................................................................... 91
Water Code § 106.3 .................................................................................................................. 2
Water Code § 10720.5(a) ........................................................................................................ 40
Water Code § 10720.7(a)(1) ................................................................................................... 41
Water Code § 10720.9 ............................................................................................................ 41
Water Code § 10721(u) – (x) .................................................................................................. 41
Water Code § 10726.8(a) ........................................................................................................ 41
Water Code § 10727 et seq. .................................................................................................... 41
Water Code § 10727.2 ............................................................................................................ 41
Water Code § 10735 et seq. .................................................................................................... 41
Water Code § 10735.2(a)(3) ................................................................................................... 41
Water Code §§ 10723, et seq. .................................................................................................. 2
Water Code §§ 30000-33901 .................................................................................................. 96
Water Code §10735.4-10736 .................................................................................................. 41
Water Code App., ch. 52, § 52-08 .............................................................................. 35, 96, 97
Water Code App., ch. 52, § 52-09 .......................................................................................... 96
Water Code App., ch. 52, §52-9, subd. (h)(7) .................................................................. 96, 97
Water Code App., ch. 52, §52-21 ..................................................................................... 96, 97
Commission and Other Administrative Decisions

D.91-02-053 ............................................................................................................................ 32
D.00-05-028 ............................................................................................................................ 93
D.08-12-058 ............................................................................................................................ 93
D.09-07-021 ............................................................................................................................ 20
D.10-12-016 ............................................................................................................................ 32
D.12-10-030 ............................................................................................................................ 99
D.12-11-051 ............................................................................................................................ 31
D.13-07-048 ............................................................................................................................ 99
D.14-06-051 ............................................................................................................................ 31
D.15-06-049 ............................................................................................................................ 31
iv
D.16-01-047 ............................................................................................................................ 31
D.16-09-021 .................................................................................................................... 2, 7, 32
D.16-10-005 ............................................................................................................................ 91
SWRCB Order WR 95-10 ........................................................................................................ 8
SWRCB Order WR 2009-0060 ................................................................................................ 7
SWRCB Order WR 2016-0016 ................................................................................................ 7
Local Codes and Ordinances

MCWD Code §§ 1.01-7.08 and Appendices .......................................................................... 96
Monterey County Code of Ordinances, Title 10, Chapter 10.72 § 10.72.030(b .................... 99
Regulations
Cal. Code Regs., tit. 14 § 15003, subd. (a) ............................................................................. 14
Cal. Code Regs., tit. 14 § 15064, subd. (h)(1) ........................................................................ 68
Cal. Code Regs., tit. 14 § 15088, subd, (c) ............................................................................. 90
Cal. Code Regs., tit. 14 § 15088.5 .......................................................................................... 56
Cal. Code Regs., tit. 14 § 15090, subd. (a) ............................................................... 12, 13, 101
Cal. Code Regs., tit. 14 § 15091, subd. (a)(3) ........................................................................ 74
Cal. Code Regs., tit. 14 § 15125 ................................................................................... 4, 15, 45
Cal. Code Regs., tit. 14 § 15125, subd. (c) ....................................................................... 15, 46
Cal. Code Regs., tit. 14 § 15126.6, subd. (a) .......................................................................... 73
Cal. Code Regs., tit. 14 § 15126.6, subd. (b) .......................................................................... 74
Cal. Code Regs., tit. 14 § 15126.6, subd. (e)(1) ..................................................................... 84
Cal. Code Regs., tit. 14 § 15126.6, subd. (e)(3)(B) ................................................................ 84
Cal. Code Regs., tit. 14 § 15130, subd. (b)(1)(A)................................................................... 73
Cal. Code Regs., tit. 14 § 15130, subd. (b) (3) ....................................................................... 71
Cal. Code Regs., tit. 14 § 15162 ............................................................................................. 75
Cal. Code Regs., tit. 14 § 15355, subd. (b) ............................................................................. 68
Constitutional Provisions
Cal. Const., art. X, § 2 ............................................................................................................ 38
Cal. Const., art. XII ................................................................................................................. 96
v
Marina Coast Water District (“MCWD”) respectfully submits its Opening Brief on
Environmental Issues. This brief addresses the Commission’s joint Final Environmental
Impact Review / Final Environmental Impact Statement (“EIR/EIS,” “FEIR/EIS” or
“FEIR/FEIS”) under the California Environmental Quality Act (“CEQA”) and the National
Environmental Policy Act (“NEPA”), prepared in conjunction with the Monterey Bay
National Marine Sanctuary (“MBNMS”), in connection with California-American Water
Company’s (“Cal-Am’s”) application for a Certificate of Public Convenience and Necessity
(“CPCN”) for the proposed Monterey Peninsula Water Supply Project (“MPWSP”).1 In
accordance with the joint briefing outline established by the April 4, 2018 email Ruling of
Assigned Administrative Law Judges Gary Weatherford, Robert Haga and Darcie L. Houck
(“ALJs”), this brief also addresses environmental issues related to factors that must be
considered in determining the merits of Cal-Am’s CPCN application under the Public
Utilities Code as well as constitutional due process issues concerning the fairness of the
Commission’s determination of environmental issues.
SUMMARY OF MCWD’S RECOMMENDATIONS
In an effort to fully ameliorate the adverse environmental impacts of Cal-Am’s illegal
withdrawals of water from the Carmel River over the past two decades or more, the
Commission has before it a proposed project that threatens to engender another
environmental catastrophe – the destruction of the groundwater supply of a neighboring
1
MCWD submitted written comments on the draft environmental impact review /
environmental impact statement (“DEIR/EIS”) for the MPWSP on March 29, 2017. To date,
MCWD has submitted additional comments and relevant information regarding the
Commission’s environmental review under cover of letters dated November 9, 2017, April
16, 2018 and April 19, 2018.
1
community not served by Cal-Am and the likely imposition of significant harm to key sub-
basins of the Salinas Valley Groundwater Basin, rendering existing and potentially
significant supplies of groundwater in those sub-basins that can be beneficially used now and
in the future more seawater-intruded than ever before. Such an untenable result is
completely unnecessary and flies in the face of recently enunciated state policy guaranteeing
all Californians, not just Cal-Am customers, a right to a “safe, clean, affordable and
accessible” supply of water (Water Code § 106.3), requiring state agencies to facilitate and
support the sustainability of groundwater supplies in the state (Water Code §§ 10723, et seq.
(“SGMA”)), and placing jurisdiction to preserve and protect groundwater supplies within the
jurisdiction of local agencies (ibid.).
First, as MCWD argued in its December 2017 and January 2018 briefs, the MPWSP
is not needed. Unfortunately, the EIR/EIS attempts to obfuscate the fact that there is vastly
reduced annual water demand in Cal-Am’s Monterey District. Nonetheless, a careful review
of the EIR/EIS and appendices, along with the already-developed record on supply and
demand, makes unmistakably clear that either no shortage of water supply exists in Cal-Am’s
Monterey District, or any possible shortage is on the magnitude of less than 1,000 acre-feet
per year (“AFY”) at most, not the 6.4 or 9.6 million gallons per day (“mgd”) or roughly
7,000 or 10,750 AFY that the MPWSP would provide (less amounts committed to Salinas
Valley return). The replacement supplies already secured through D.16-09-021, under the
Pure Water Monterey purchase agreement and Cal-Am infrastructure approved by the
Commission therein, together with ratepayers’ laudable permanent conservation
achievements and Cal-Am’s reduction in the loss of non-revenue water through necessary
repair and upgrades to its system, have secured an existing supply sufficient to serve the
2
present needs of Cal-Am’s Monterey customers and entirely eliminate Cal-Am’s illegal takes
from the Carmel River. Therefore, Cal-Am has no present need for a desalination project of
any size. If any modest supply shortfall did remain, or if the Commission wishes to ensure
that Cal-Am maintains a comfortable operational surplus, that objective can readily be met
by less expensive, less controversial supplementation from the proposed 2,250 AFY
expansion of the already-under-construction Pure Water Monterey (“PWM”) groundwater
replenishment project and other alternative supplies. All of these options can be made
available to Cal-Am well before the December 31, 2021 Cease-and-Desist Order (“CDO”)
deadline established by the State Water Resources Control Board (“SWRCB”) for the
complete elimination of Cal-Am’s unlawful Carmel River pumping.
What is more, the EIR/EIS for the MPWSP remains seriously deficient in numerous
important aspects. Most importantly, groundwater modeling for Cal-Am’s proposal to utilize
slant well intake of brackish groundwater from the Salinas Valley Groundwater Basin
(“SVGB”), specifically from the critically-overdrafted 180/400 Foot Aquifer Sub-basin of
the SVGB at the CEMEX site, fails to incorporate and account for multiple influences and
cumulative impacts. For these and other reasons, similar to the DEIR/EIS,2 the final EIR/EIS
is inherently inaccurate and unreliable. If Cal-Am is determined to proceed with a
2
Please see MCWD’s Dec. 15, 2017 Amended Opening Brief, pp. 2 at fn. 1, 21-22, 24-25,
34-44; and its Jan. 9, 2018 Reply Brief, pp. 2-3 and fns. 1, 2; pp. 30-33, MCWD’s Dec. 8,
2017 HWG Report comments, pp. 7-9, 16-17 and materials there referenced and its March
29, 2017 DEIR/EIS comments, pp. 50-69 and references there cited, for additional detailed
discussion of technical issues related to the flaws in Cal-Am’s groundwater intake and return
water proposals for the MPWSP, including inadequate DEIR/EIS groundwater modeling.
See also Ex. MCD-20 and Revised Ex. MCD-27. As explained below, and in MCWD’s
April 16 and 19, 2018 letters and the Attachments thereto, groundwater modeling remains
seriously flawed in the EIR/EIS.
3
desalination project, the Commission’s environmental review must be revised and
recirculated to correct and make sufficient the seriously flawed sections of the EIR/EIS as
described herein. (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74 (“Cadiz”), 87;
CEQA Guidelines (or “Guidelines”) (Cal. Code Regs., tit. 14, § 15000, et seq) § 15125.)
Based upon its review of the EIR/EIS and the entire record to date in this proceeding,
MCWD respectfully recommends that the Commission:
1) Deny the request for a CPCN due to lack of need, as the data presented in
the EIR/EIS demonstrate; and
2) Keep this proceeding open to consider viable, cost-effective and sufficient
options for future supply needs, including the PWM expansion and
MCWD sales proposals.
3) If, however, the Commission agrees with Cal-Am that a
desalination project on the magnitude of 6.4 mgd or greater is
necessary and the Commission therefore declines to deny the CPCN
outright, it should refer the question of Cal-Am’s lack of any right
to pump source water for the MPWSP to the State Water Resources
Control Board (“SWRCB’) or the courts for expedited resolution.3
If, upon the conclusion of that proceeding, the MPWSP were to
remain viable, the Commission would nonetheless need to revise
3
MCWD, the City of Marina (“City” or “Marina”), California Unions for Reliable Energy
(“CURE”), Citizens for Just Water (“Just Water”), Public Trust Alliance (“PTA”), Public
Water Now (“PWN”) and WaterPlus moved for referral of the water rights question to the
SWRCB on March 21, 2018.
4
and recirculate its EIR/EIS due to the multiple deficiencies
identified below.
Circumstances have changed significantly since Cal-Am filed its application in 2012.
Most importantly, annual customer demand now appears to have stabilized at no more than
9,500 AFY in Cal-Am’s Monterey District, eliminating the need for a large-scale
desalination project that was conceived when annual demand was thought to be over 15,000
AFY. While the EIR/EIS fails to highlight this remarkable change in baseline demand, the
fact is evident from a close review of the Commission’s record, as well as the data presented
in the EIR/EIS itself. That fact should have been, but was not, prominently taken into
account in the Commission’s environmental review. (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (“Vineyard”),
432.) A sufficient environmental review would have concluded – in addition to
acknowledging the many unmitigated and significant impacts to the environment that are
minimized or ignored by the present EIR/EIS – that the “no project” alternative would be
both environmentally superior and entirely capable of meeting all project objectives.
(Friends of Mammoth Lakes v. Bd. Of Supervisors (972) 8 Cal.3d 247, 259 (CEQA is
interpreted to afford the fullest protection to the environment).)
The Commission should not certify the EIR/EIS, because it is insufficient, as
described in detail in section II, below. The Commission should not approve the MPWSP or
issue a CPCN, because (1) the EIR/EIS is insufficient, (2) the project is not needed, and
(3) the multiple, significant and unavoidable adverse environmental impacts of the project
preclude a finding that the project is in the public interest.
5
I. INTRODUCTION
A. Background
As MCWD has explained in prior briefing, the need for careful scrutiny of the
proposed MPWSP is particularly grave because Cal-Am is asking the Commission to
approve a project purportedly required for the successful restoration of one severely
overtaxed surface and groundwater system (the Carmel River) that would draw on another
overtaxed groundwater system (the SVGB), and in particular the SVGB sub-basin aquifers
that underlie the Marina area. (EIR/EIS, § ES-8, p. ES-17; § 3.1, pp. 3-1 – 3-2; § 3.2.1, pp.
3-17 – 3-19 and §§ there referenced; see July 31, 2013 “Large Settlement,” §§ 3, 5;
DEIR/EIS, p. 3-8; see also Ex. CA-47, p. 8.) Those sub-basins are (1) the critically-
overdrafted 180/400 Foot Aquifer Sub-basin, immediately underlying the project area and
adjacent to MCWD’s service area, and (2) the Monterey Sub-basin, immediately adjacent to
the project area, where MCWD maintains its municipal water source wells. (EIR/EIS,
§ 8.2.6.2, pp. 8.2-32 – 8.2-36;4 see Ex. SV-11, Att. 2 at pp. 1-2; see also Ex. MCD-64 (map
of MCWD service area delineating 180/400 Foot Aquifer Sub-basin and Monterey Sub-basin
geographic boundaries and reflecting location of MPWSP facilities, MCWD Armstrong
Ranch property and MCWD well locations); Reporter’s Transcript (“RT”), Vol. 24, pp.
4126-4127, 4128 (Cal-Am witness Crooks testifying to the general accuracy of Ex. MCD-
64); Vol. 24, pp.. 4244-4246 (Cal-Am witness Leffler, same).)
The aquifers underlying the Marina area that would be most severely affected by the
4
Figure 4.4-1is not helpful as it fails to disclose the current sub-basin designations to the
reader; it appears to be a 2013 document prepared by Geoscience and it does not reflect the
2016 boundary updates to the Department of Water Resources (“DWR”)’s Bulletin 118.
6
MPWSP lie entirely outside of Cal-Am’s Monterey District. (EIR/EIS, § 8.2.6.2, pp. 8.2-32
– 8.2-36; see also Ex. MCD-64 compared with Amended Application at Amended Appendix
C.) While Cal-Am’s service area on the Monterey Peninsula would receive the proposed
benefit of the MPWSP, the proposed project’s source of water would be the SVGB, which is
the only water source from which MCWD serves its own ratepayers. (EIR/EIS, § 3, p. 3.3,
Figure 3-1; see also Ex. MCD-36A, pp. 15-16, citing Ex. MCD-6; see Ex. MCD-64.) In
addition, the desalination plant and the bulk of other facilities for the MPWSP would
similarly be located entirely outside of Cal-Am’s service territory. (EIR/EIS, § 3, p. 3.3, Fig.
3-1; see, e.g., RT, Vol. 23, Mr. Crooks testifying for Cal-Am at pp. 4057-4058 (wells); RT,
Vol. 9, Mr. Svindland testifying for Cal-Am at p. 1592.)
In 1995, the SWRCB found in its Order WR 95-10 that Cal-Am was unlawfully
withdrawing volumes of water from the Carmel River. In 2009, the SWRCB issued its CDO,
establishing a December 31, 2016 deadline for full implementation of a replacement water
supply for Cal-Am’s Carmel River withdrawals in excess of its legal limit of 3,376 AFY.
(SWRCB Order WR 2009-0060, pp. 57-58.) The deadline for complete CDO compliance
was extended to December 31, 2021 in 2016. (SWRCB Order WR 2016-0016, pp. 2, 19.)
Meanwhile, the Commission approved Cal-Am’s entry into a water purchase agreement for
3,500 AFY of PWM water supply and its construction of a pump and pipeline for
improvements to service in the Monterey District that included the ability to increase
Monterey Peninsula Water Management District (“MPWMD”) aquifer storage and recovery
(“ASR”) volumes captured from excess Carmel River winter flows to an annual average of
1,300 AFY. (D.16-09-021, pp. 54-55.)
This application seeks a CPCN for one of two variations of the MPWSP, either a
7
desalination plant alone at a capacity of 9.6 mgd, approximately 10,750 AFY, or a
desalination plant at a capacity of 6.4 mgd, approximately 7,167 AFY, in combination with
supply from the PWM groundwater replenishment project. (Amended Application,
Amended Appendix H at p. 1, see EIR/EIS at p. 2-18, Table 2-4.) Notably, the application
was premised on Cal-Am’s outdated and overstated claim that it requires a total water supply
of 15,250 AFY, or approximately 13.8 mgd. (Application, p. 5 and fn. 13; the EIR/EIS
adopts a demand number nearly as inflated as Cal-Am’s original demand assertion, 14,275
AFY, see EIR/EIS pp. 2-13, 2-18, Tables 2-3, 2-4.) However, actual system delivery for
calendar years 2014-2016 averaged 9,693 AFY. (Ex. MCD-59; see also calendar year 2017
delivery of 9,421 AFY, resulting in a three-year average from 2015-2017 of 9,417 AFY5; see
also Appendix L to the EIR/EIS, alternative demand analysis, utilizing 2015 demand of
9,545 AFY.)
According to Cal-Am’s initiating filing, the purpose of the MPWSP was to “replace a
significant portion of the existing water supply from the Carmel River, as directed by the
SWRCB.” (Application, p. 5.) First among the “primary” objectives was a need to “satisfy
[Cal-Am’s] obligations” under SWRCB Order WR 95-10. (Id. at App. H, p. 4.) Other
“primary objectives” were to diversify the supply, protect the Seaside Groundwater Basin
and the local economy, minimize rate increases and energy requirements, and explore
regional partnerships and incorporation of alternative supply sources. (Ibid., see also
EIR/EIS at pp. ES-3 – ES-4, 1-5 – 1-6.) At the Commission’s direction, Cal-Am updated its
project description in 2016. (Feb. 22, 2016 Assigned Commissioner Ruling, p. 2; Mar. 14,
5
Available at https://www.watersupplyproject.org/system-delivery. As discussed below, the
EIR/EIS inexplicably fails to incorporate Cal-Am’s most recent two years of demand data.
8
2016 Amended Application, pp. 1-2.) The 2016 updated project description retained very
similar primary objectives. (Id. at amended App. H, pp. 1-2; compare EIR/EIS at pp. ES-3 –
ES-4, 1-5 – 1-6, inexplicably excluding “regional” partnership and alternative supply source
objectives and adding future demand and sea-level rise resilience among new secondary
objectives.)
The Commission, in evaluating the proposed project and assessing the EIR/EIS
against the primary project objectives, as well as the secondary objectives, must recognize
that the stated purpose of this proceeding has now been achieved, or will have been achieved,
with the supply sources and facilities that the Commission approved in D.16-09-021 coming
into full service in 2018-2019. Conservation combined with redress of excessive non-
revenue demand have already eliminated more than half of Cal-Am’s shortfall in legal water
supply. (EIR/EIS, § 2.3.1, p.2-11 at Table 2-2; § 2.5.3.3, pp. 2-27 – 2-28.) Full
implementation of the 3,500 AFY PWM supply purchase and approved facility upgrades to
enable maximum ASR recovery and eliminate the so-called “hydraulic trough” will make up
the other half. These events will occur no later than July, 2019 (D.16-09-021, pp. 4-5, 11, 21
and App. C at p. 15), a date well in advance of the SWRCB’s modified CDO compliance
deadline of December 31, 2021.
Simply put, there is no need for the MPWSP desalination project. Any operational
safety margin or future supply required in excess of Cal-Am’s already-secured annual supply
volume can readily be provided by other available, feasible and less-costly alternatives, such
as expansion of PWM. For these reasons alone, and notwithstanding the serious deficiencies
of the EIR/EIS, the Commission should deny the requested CPCN.
9
B. Summary of Key EIR/EIS Deficiencies
The EIR/EIS suffers from a number of important deficiencies, as described below:
§2 Water Demand, Supplies and Water Rights: The EIR/EIS supply and demand
analysis obscures or ignores the most recent and relevant data, resulting in presentation of an
inflated demand level, which risks misleading the reader into the false assumption that Cal-
Am’s available supplies are insufficient for its present and near-term future needs. The
EIR/EIS water rights analysis is likewise misleading because it is incomplete and, in certain
respects, flatly inaccurate.
§3 Project Description: The project description does not acknowledge the very real
and very serious potential barrier to delivery of MPWSP product water due to insufficient
capacity availability in the existing MCWD-owned pipeline to carry higher-priority supply,
including ASR and PWM water. (See EIR/EIS response to MCWD Mar. 29, 2017 comment
no. 26, § 8.5.2.1, p. 8.5-662. See also Ex. MCD-36A, pp. 16-17, Mr. Van Der Maaten
testifying for MCWD; RT, Vol. 22, pp. 3821-3822, Mr. Crooks testifying for Cal-Am that
use of the pipeline is dependent upon availability of sufficient capacity.) In addition, the
EIR/EIS does not provide a meaningful response to MCWD’s comments regarding the need
for a full description of necessary well replacement impacts during the life of the project.
.(Mar. 29, 2017 comment no. MCWD-82, EIR/EIS response § 8.5.2.1, p. 8.5-676.) In
addition, although the EIR/EIS does at last disclose the return water formula in response to
MCWD’s comment 84, also submitted on March 29, 2017, in Master Responses, the
information is still missing from the EIR itself. (See EIR/EIS, § 8.5.2.1, p. 8.5-677;
§ 8.2.4.3, p. 8.2-20.)
§4 Environmental Setting, Impacts and Mitigation Measures: As described in detail in
10
section II.C., below, the EIR/EIS description of baseline groundwater conditions in the
project area is misleading and conflicts with the best available information. Furthermore, the
EIR/EIS analysis of Groundwater Impacts is based on unreliable modeling rather than
substantial evidence. Moreover, the cursory treatment of cumulative impacts does not
comply with CEQA.
§5 Alternatives Screening and Analysis: The EIR/EIS failed to analyze potentially
feasible alternatives that could avoid or lessen environmental impacts, its conclusions
regarding the Potrero Road alternative are not supported by substantial evidence, and its
discussion of the “No Project” alternative is completely inadequate. (See § II.D, below.)
Furthermore, as discussed in more detail in section III.B below, the Commission’s
environmental review process is still tainted by serious conflicts of interest. Dennis
Williams, the holder of the patent for Cal-Am’s proposed slant well technology, and his firm,
Geoscience, have continued to participate in, direct, and influence the Commission’s
environmental review. (See, e.g., EIR/EIS App. E-3, § 3.2.1.4, p. 62 (HydroFocus used the
“superposition approach, as recommended by the HWG” in attempting to calibrate prior
modeling).) Mr. Williams is one of the four hydrogeology expert members of the so-called
“Hydrogeology Working Group” or “HWG” created and paid for by project proponents
pursuant to the Large Settlement. (EIR/EIS, § 4.4.1.2, pp.4.4-5 – 4.4-6.) The HWG’s work
and opinions have directed and greatly influenced the EIR/EIS groundwater modeling (ibid.;
App. E-3), including shaping what MCWD believes are flatly unsupportable conclusions
concerning likely significant impacts of the project on the groundwater environment, as
discussed in detail in section II.C., below. (See EIR/EIS, Appendix E-3 (HWG’s work
reviewing groundwater modeling included with Commission’s EIR/EIS, to the exclusion of
11
other parties’ experts’ similar work reaching contradictory conclusions).) The Commission
must exercise its independent judgment in considering Cal-Am’s application. (Pub.
Resources Code § 21082.1, subd. (c)(3); People v. County of Kern (1976) 62 Cal.App.3d
761, 771; CEQA Guidelines, §15090, subd. (a).) CEQA does not permit the lead agency to
ignore available, relevant opinions from equally qualified experts while it adopts the
opinions of the applicant’s experts. (Consolidated Irrigation District v. City of Selma (2012)
204 Cal.App.4th 187, 206 (water district’s expertise in groundwater relevant in commenting
on potential impacts on water supply).)
Moreover, the Commission’s CEQA/NEPA consultant, Environmental Science
Associates (“ESA”), during the course of this proceeding has actively assisted Cal-Am’s own
paid consultants in presenting their testimony. (Ex. MCD-63 (Mr. Zigas of ESA and
Geoscience personnel assisting Mr. Leffler in preparing for cross-examination under oath).
See also RT, Vol. 27, pp. 4819:6-4820:9 (Mr. Leffler testifying concerning Mr. Zigas’
attendance at and participation in HWG meetings).) Such interference calls into grave
question the impartiality of the Commission’s consultants and potentially requires the
Commission to disregard ESA’s work entirely under Morongo Band of Mission Indians v.
California SWRCB (2009) 45 Cal.4th 731, 740-742, which would require preparation of a
new and un-conflicted EIR/EIS by a truly neutral consultant. The Commission may not be
concurrently advised by an entity that is also assisting the applicant in advocating for project
approval. (Ibid.) As discussed below, merely removing Mr. Williams and his firm from the
Commission’s roster of consultants in this matter has failed to address the serious conflicts
that are presented. Because the EIR/EIS is infected by these conflicts, it would be improper
for the Commission to rely on the conclusions of the EIR/EIS regarding the MPWSP’s likely
12
significant impacts on the environment. (Pub. Resources Code § 21082.1, subd. (c)(3);
People v. County of Kern, supra, 62 Cal.App.3d at 771; CEQA Guidelines, § 15090, subd.
(a))
II. FEIR/FEIS ISSUES
“CEQA embodies our state’s policy that “the long-term protection of the
environment . . . shall be the guiding criterion in public decisions.” (Save Our Carmel River
v. Monterey Peninsula Water Management District (2006) 141 Cal.App.4th 677, 687.) The
“overriding purpose of CEQA is to ensure that agencies regulating activities that may affect
the quality of the environment give primary consideration to preventing environmental
damage.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988)
47 Cal. 3d 376 (“Laurel Heights”), 390.)
The preparation and circulation of an EIR is more than a set of technical

hurdles for agencies and developers to overcome. The EIR's function is to
ensure that government officials who decide to build or approve a project do
so with a full understanding of the environmental consequences and, equally
important, that the public is assured those consequences have been taken into
account.
(Vineyard, supra, 40 Cal.4th at 449-450, citing Laurel Heights, supra, 47 Cal.3d at 391–
392.)
Substantial record evidence, including but not limited to the information presented in
an EIR and comments on the EIR, is required to support a lead agency’s decision concerning
project approval. (Laurel Heights, supra, 47 Cal.3d at 393.) While “[t]echnical perfection is
not required; the courts have looked . . . for adequacy, completeness and a good-faith effort
at full disclosure.” (California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 979, citing Concerned Citizens of South Central L.A. v. Los Angeles
13
Unified School Dist. (1994) 24 Cal.App.4th 826, 836 and Laurel Heights, supra, 47 Cal.3d at
pp. 406–407.) “[T]he integrity of the process is dependent on the adequacy of the EIR.”
(Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87
Cal.App.4th 99, 117.) The EIR is “the heart of CEQA.” (CEQA Guidelines, § 15003, subd.
(a); Laurel Heights, supra, 47 Cal.3d at 392.)
A. Water Demand, Supply and Water Rights
The EIR/EIS fails to include a forthright and accurate description of Cal-Am’s water
demand and its available supplies, as described below in section II.A.1. Because of this
failure, the actual supply and demand data are obscured. The obfuscation regarding supply
and demand that is employed in the EIR/EIS results in the EIR/EIS giving a false impression
that a serious water supply shortfall will exist in Cal-Am’s Monterey District in 2022, when
Cal-Am must fully comply with the legal limits on Carmel River withdrawals required by the
SWRCB’s latest CDO. Such is not the case, as the data clearly demonstrate.
Because demand circumstances have significantly changed in the six years since this
proceeding began, and because an already-approved firm replacement supply of 3,500 AFY
will be available for use beginning no later than next year, the MPWSP is not needed. While
the EIR/EIS does, in some ways, acknowledge the significantly changed circumstances
related to supply and demand, it does not properly take the evidence in the record
substantiating these circumstances into account in reaching its demand and supply
conclusions. For this reason, the EIR/EIS supply and demand analysis does not comply with
CEQA’s requirements. (See, e.g., Vineyard, supra, 40 Cal.4th at 431.) Consequently, the
EIR/EIS is an unreliable tool for use by the Commission in its decisionmaking processes
regarding supply and demand issues.
14
The question of water rights as related to the proposed source water for the MPWSP
is addressed more fully below in section II.A.2. Under multiple layers of analysis, Cal-Am
does not have and cannot obtain a right to lawfully pump other than seawater for its proposed
project. Yet it proposes to pump groundwater from the critically-overdrafted 180/400 Foot
Aquifer Sub-basin of the SVGB. The Commission cannot reasonably conclude that Cal-Am
has met its burden of proof to demonstrate that Cal-Am can obtain a valid water right to
pump groundwater by meeting the SWRCB’s beneficial use standard as either a developed
water right or an appropriative groundwater right. The groundwater analysis and modeling
upon which the EIR/EIS relies, and which was directed in large part by Mr. Williams and the
project proponents through the HWG, is wholly inadequate and fundamentally flawed, as
discussed in detail in section II.C., below. Therefore, the Commission cannot lawfully
certify an environmental review document or approve a project. (Cadiz, supra, 83
Cal.App.4th at 87; see also San Joaquin Raptor/Wildlife Rescue Center v. County of
Stanislaus (1994) 27 Cal.App.4th 713, 723, citing CEQA Guidelines, § 15125.) On this
basis, even assuming a need for the MPWSP – which, most assuredly, does not exist – the
Commission must decline to approve the project at this time, in the proposed configuration,
and based on this wholly inadequate EIR/EIS. (Cadiz, supra, 83 Cal.App.4th at 86 (EIR
must describe groundwater baseline) and 92 (description of groundwater setting required)
citing CEQA Guidelines, § 15125, subd. (c); see also Save Our Peninsula Committee v.
Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at 121-122.)
1. The EIR/EIS Analysis of Demand and Supply is Deficient
(a) Existing and Future Demand is Vastly Overstated
As an initial matter, MCWD stands by the supply and demand estimates proposed in
15
its December 2017 and January 2018 briefs. Cal-Am’s present demand should be estimated
at 9,375 AFY and its future demand should be estimated at no more than 10,300 AFY. (See
Dec. 15, 2017 MCWD Amended Opening Brief, p. 12; Jan. 9, 2018 MCWD Reply Brief, p.
9.) Cal-Am’s existing available supply portfolio beginning in 2019 consists of a minimum of
9,850 AFY. (See Dec. 15, 2017 MCWD Amended Opening Brief, pp. 12-13; Jan. 9, 2018
MCWD Reply Brief, pp. 9, 14-16.) However, for purposes of responding to the conclusions
of the EIR/EIS, MCWD will utilize the data that was set forth in the EIR/EIS along with
2016 and 2017 demand figures, which should have been utilized in the EIR/EIS.
The outcome of the supply and demand analysis for Cal-Am’s Monterey District is
nonetheless similar to MCWD’s prior estimates, as follows, and as set forth in greater detail
below:
 present demand (past three calendar years) ranges from 9,285 to 9,545 AFY;
 future demand (10-30 years) will range between 10,440 and 11,600 AFY;
 present supply as of 2019 and without the MPWSP while accounting for
Seaside replenishment will range between 9,044 and 11,930 AFY depending
upon whether PWM expansion and other available options are added to the
portfolio.
In addition, supplemental supply from other small sources in the approximate amount of 811
AFY raises the total present and future supply range to between 9,855 and 12,941 AFY. (See
demand and supply charts below based on EIR/EIS data.)
The EIR/EIS inexplicably fails to utilize Cal-Am’s 2016 and 2017 actual demand in
updating the DEIR/EIS projections of demand. (See, e.g., EIR/EIS, § 2.3.1.1, p. 2-11.)
16
While it is perhaps understandable that the DEIR/EIS when released in January of 2017
could not include the demand results for a full calendar year in 2016, it is a serious omission
for the final EIR/EIS to entirely ignore 2016 and 2017 demand in a document released at the
end of March 2018. (Laurel Heights, supra, 47 Cal.3 at 404; Gentry v. City of Murrieta
(1995) 36 Cal.App.4th 1359, 1378 (“burden of environmental investigation [is] on the
government rather than the public”).) Demand results for 2016, 2017 and 2018 figured
prominently in the parties’ recent CPCN briefing. (Planning and Conservation League
(“PCLF”)/Sierra Club/Landwatch Opening Brief, p. 5; Surfrider Foundation (“Surfrider”)
Opening Brief, p. 21, MPWMD Opening Brief, p. 4; City of Marina Opening Brief, pp. 19-
20; MCWD Amended Opening Brief, pp. 9-12.) The Commission’s failure to consider
available 2016 through 2018 demand data in the final EIR/EIS is inexcusable. On this basis
alone, the supply and demand analysis is seriously deficient. (Gentry v. City of Murrieta,
supra, 36 Cal.App.4th at 1378.)
From Cal-Am’s project website,6 the past five calendar years of actual system
demand were as follows:
Month 2013 2014 2015 2016 2017 2018

Jan 745 893 730 597 624 676
Feb 710 667 671 635 581 673
Mar 853 757 771 623 653 626
6
Available at https://www.watersupplyproject.org/system-delivery. At MCWD’s request,
Cal-Am was required to begin supplying updated monthly demand figures in 2015. (Nov.
17, 2015 ALJ Ruling Setting Evidentiary Issues and Schedule to Complete the Record for
Phases 1 and 2, p. 5.) Cal-Am’s demand in 2016 was 9,285 AFY. (Ex. CA-51, p. 9; see also
Ex. MCD-59.) This reduction followed customers’ implementation of permanent
conservation measures as well as successful efforts by Cal-Am to reduce its non-revenue
water. (EIR/EIS, § 2.5.3.3p. 2-27; § 8.2.13.2, pp. 8.2-101 – 8.2-102 (the “general downward
trend is expected to continue for some time. . .” and reductions will eventually level off).)
17
Month 2013 2014 2015 2016 2017 2018
Apr 957 800 814 742 645
May 1,079 982 814 836 861
Jun 1,056 975 853 912 878
Jul 1,127 1,018 942 946 962
Aug 1,131 1,023 956 944 957
Sep 1,027 906 893 909 902
Oct 1,002 897 840 826 901
Nov 861 707 640 670 717
Dec 809 627 621 646 740
Total 11,356 10,250 9,545 9,285 9,421 1,975
The EIR/EIS appropriately discounts Cal-Am’s higher annual demand figure that was
utilized in the DEIR/EIS, but it improperly pegs base existing annual demand at a still-
excessive 12,270 AFY. In doing so it entirely fails to consider actual, existing demand data
for 2016 and 2017. The failure to acknowledge and consider the most recent – and therefore
most likely accurate and reliable data – is a serious and egregious flaw in the demand
analysis. CEQA requires that water demand and supplies be accurately quantified. (See,
Vineyard, supra, 40 Cal.4th at 441-443.) The failure is particularly striking when actual
monthly demand figures for Cal-Am’s Monterey District have been readily accessible on-
line for more than two years running.
The EIR/EIS acknowledges that conservation measures have led to declining demand
in recent years, and it reasonably takes the position that while future demand reductions are
unlikely to be substantial, demand is not likely to increase to previous levels either.
(EIR/EIS § 8.2.13.2, p. 8.2-102.) That is, it acknowledges that demand continues to decline
and is not likely to return to the levels of ten years ago. (Ibid.; EIR/EIS, § 2.3.1.1, p. 2-11.)
However, this very reasonable position is at odds with a simultaneous, unreasonable claim
18
that base annual demand should be 12,270, which would be 30% greater than demand in
2017. (EIR/EIS, Table 2-2, § 2.3.1.1, p. 2-11.) Based on the acknowledgement that much, if
not all of the significant demand reduction in Cal-Am’s Monterey District is a result of
permanent customer conservation in combination with Cal-Am’s own required efforts to
curb non-revenue production (i.e., waste, see EIR/EIS, § 2.5.3.3, p. 2-27), the adoption of
12,270 AFY, from calendar year 2010 and prior to Cal-Am’s successful non-revenue
reduction efforts as well as prior to the statewide implementation of permanent water
conservation measures post-drought, as an accurate representation of actual demand is
unreasonable and is not supported by substantial record evidence. (Laurel Heights, supra, 47
Cal.3d at 393.)
In an apparent effort to falsely increase the estimate of existing demand, however, the
EIR/EIS also assumes 325 AFY for Pebble Beach connections that have not yet been
constructed (§ 2.3.1.3, p. 2-13) as a component of current demand. The EIR/EIS allocates
250-500 AFY for additional hospitality industry rebound from a ten-year old recession
(§ 2.3.2.1., pp. 2-14; App. L, p. L-1) and 590 to 1180 AFY for official “lots of record” that
may or may not ever be built out and for which demand was originally estimated at a time of
greatly higher per capita water consumption (§ 2.3.2.2, p. 2-15). The results are presented as
an apparent claimed existing service area demand of 14, 275. (Table 2-3, p. 2-13; but see
Table L-1 at App. L, p. L-2.)
The more realistic scenario for consideration of the potential future need to serve
unbuilt property and possible additional tourism needs, coupled with actual demand for 2015
of 9,545 as a measure of current demand, is buried in Appendix L, in Scenario 2 of Table L-
1. (Ibid.) CEQA does not permit an agency to ignore or obscure relevant data. (Berkeley
19
Keep Jets Over Bay v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1364 (EIR
inadequate, failed to utilize best available data).) Burying highly relevant data in an
appendix is unacceptable. This important, relevant information should have been discussed
and compared to Cal-Am’s demand claims in section 2. Merely acknowledging that Cal-
Am’s demand claims were overblown and slightly discounting them without considering the
most recent and therefore the most relevant demand data is a serious shortcoming of the final
EIR. (Cleveland National Forest Foundation v. San Diego Association of Governments
(2017) 17 Cal.App.5th 413, 445 (EIR with known data gaps not compliant with CEQA).)
Years ago, the Commission explicitly rejected Cal-Am’s use of the type of overstated
consumption forecasting that the Commission now utilizes in the EIR/EIS.
This Commission has a long-standing policy supporting reduced water

consumption and has adopted significant ratepayer-funded conservation
programs for all Class A water utilities. [. . . ¶] Cal-Am's Comprehensive
Planning Study, and the significant capacity increases it recommends, appear
to be inconsistent with the lack of customer growth, the history of declining
consumption, and the Commission's policy of water conservation. Cal-Am
bears the burden of demonstrating convincingly that the proffered justification
for these expensive capital projects is a sound planning approach for the
Monterey System.
(D.09-07-021, p. 14 (rejecting Cal-Am’s demand forecast of 19.5 mgd, or over 21,000 AFY
for its Monterey District).) The Commission noted that “the consequences of
overestimating” demand in a system with “stable or declining customer demand” can be
“overbuilding resources that may never be used.” (Id. at 22, emphasis added.) Cal-Am’s
system today is one with “stable or declining customer demand.” (Ibid.; EIR/EIS, § 2.3.1.1,
pp. 2-11; § 8.2.13.2, pp. 8.2-101 – 8.2-102; see also Ex. MCD-59.) Cal-Am’s Monterey
customers should not be burdened with the expense of funding a desalination plant “that may
never be used” due to lack of demand. (D.09-04-021, p. 22.) The Commission’s customary
20
approach to overblown demand is consistent with CEQA’s requirement that the lead agency
consider accurate water supply and demand information. (Vineyard, supra, 40 Cal.4th at
431.)
Another flaw in the demand analysis of the EIR/EIS is the failure to consider
conflicting relevant expert analysis, namely from the testimony of MCWD’s General
Manager, Mr. Van Der Maaten as well as from the testimony of the PCLF/Surfrider witness,
Mr. Minton, and the City of Marina’s expert on price elasticity and demand, Dr. House. The
EIR/EIS may certainly rely upon the testimony of Cal-Am’s witness, Mr. Svindland,
concerning demand, which it does extensively, but it may not completely ignore relevant
information from equally qualified and experienced water managers and experts, such as Mr.
Minton, Mr. Van Der Maaten or Dr. House. (Consolidated Irrigation District v. City of
Selma, supra, 204 Cal.App.4th at 206.) Moreover, the EIR/EIS largely looks to Mr.
Svindland’s outdated testimony from 2012-2013. (EIR/EIS, § 2, pp. 2-49 - 2-50.) Thus, the
demand analysis section is outdated, fundamentally flawed, and unreliable.
In recent evidentiary hearings, MCWD’s General Manager testified, based on
information available to MCWD, that demand for future growth, including growth in lots of
record (“LOR”) and Pebble Beach (“PB”) development, should be estimated at no more than
925 AFY altogether. (Ex. MCD-36A, pp. 4-5, 10.) Mr. Stoldt, MPWMD’s General
Manager, explained in his testimony that Cal-Am’s estimates are outdated and include
significant double-counting. (Ex. WD-15, p. 11.) PCLF/Surfrider witness Jonas Minton
(who testified to significant professional experience in water supply accounting and
budgeting, Ex. SF-12, pp. 1-3) suggested that a reasonable conservative total future growth
estimate would be 300 AFY. (Id. at pp. 6, 8-9.) The EIR/EIS does, in some fashion,
21
acknowledge the inflated nature of Cal-Am’s claims regarding future demand but, again, this
reasonable approach to the present and likely future water needs of Cal-Am’s service area is
buried in Appendix L. (EIR/EIS App. L, pp.L-1, L-4 and Table L-4 (aggregating future
demand from LOR, PB and tourism growth at 1,165 AFY).)
In addition, the EIR/EIS uses outdated future growth estimates indicating demand
increases of between 2800-3500 through 2035, from 28 to more than 35% above 2015
demand. (EIR/EIS, § 6.3.5.3, p. 6-25 at Table 6.3-7.) However, historical growth rates in
the service area have been negative or single-digit since long before any mandatory
restrictions were implemented as a result of the SWRCB’s orders. (EIR/EIS, id. at § 6.3.5.3,
p. 6-23, Table 6.3-6.) It is likely that future development in Cal-Am’s Monterey District will
be minimal. (See, Ex. MNA-2, p. 6 (growth of 0.28% annually, based on Cal-Am’s 2015
Urban Water Management Plan7.) However, the EIR/EIS demand analysis does not appear
to have even considered Cal-Am’s 2015 Urban Water Management Plan growth estimates in
projecting future demand. (See EIR/EIS, § 2, pp. 2-44 – 2-46.)
Based on the foregoing data, Cal-Am’s present demand could quite reasonably be set
at 9,545 AFY – as adopted in Scenario 2 of Appendix L, and its reasonably-foreseeable
future demand should accordingly be set at 10,710 AFY as expressed in Scenario 2 of
Table L-1.
7
Applying annual growth of 0.28% to actual demand in 2015 of 9,545 AFY results in a
demand of approximately 10,207 AFY after 25 years and 10,440 AFY after 35 years. Even
if Pebble Beach, lots of record and increased tourism demand amounts were cumulative to
such growth, demand would not surpass 11,600 AFY until 2050.
22
Annual Demand, from Scenario 2 of EIR/EIS Table L-1
Demand component AFY

Current (2015) annual demand 9,545
Pebble Beach future demand 325
Lots of record future demand 590
Tourism future demand 250
Total future annual demand 10,710
As stated in Appendix L, “[u]se of 2015 to represent annual demand assumes that much of
the conservation programs and behaviors adopted during the [2011-2016] drought . . . will
continue in the future, but allows for a slight ‘relaxation’ in conservation compared to 2016
. . . .” (App. L, p. L-1.) As noted above, these reasonable assumptions are acknowledged in
section 2 of the EIR/EIS. (See EIR/EIS, § 2.3.1.1, pp. 2-11.)
(b) Cal-Am’s Supply Includes 3,500 AFY from PWM
Appendix L is presented in response to DEIR/EIS comments that presented different
supply /demand scenarios. (EIR/EIS, App. L, p. L-1.) Unfortunately, the supply scenarios
set forth in Appendix L (even assuming the reader eventually encounters Appendix L) are
not nearly as helpful as the alternative demand scenarios. That is because Appendix L
inexplicably and impermissibly ignores entirely Cal-Am’s Commission-approved contract to
purchase 3,500 AFY of PWM product water beginning in 2019. (D.16-09-021, App. C at pp.
3, 8-9.) The EIR/EIS states that its Appendix L was compiled to “test” the alternative
supply/demand scenarios provided by numerous DEIR/EIS commenters. (EIR/EIS, App. L,
p L-1.) But by excluding 3,500 AFY of PWM supply, the “test” is rigged to impermissibly
favor the MPWSP.
Omission of Cal-Am’s already-approved PWM source of supply in Appendix L is all
23
the more inexplicable in light of its inclusion in the supply sources addressed in section 2 of
the EIR/EIS, albeit in tandem with seriously inflated demand scenarios. The lack of
consistency in analysis of alternative supply and demand scenarios renders the EIR/EIS
internally inconsistent and therefore unreliable for the Commission’s use in its
decisionmaking. (Vineyard, supra, 40 Cal.4th at 441-443.)
The primary supply analysis of EIR/EIS section 2, when considered in tandem with
Cal-Am’s actual 2013-2017 demand (five-year average of 9,971 AFY) or with the 9,545
AFY demand of 2015 utilized in Appendix L, demonstrates that Cal-Am’s present supply
sources are very nearly sufficient to meet its present needs without the MPWSP. (See
EIR/EIS Table 2-4, p. 2-18 (9,744 AFY supply available, including PWM, after Seaside
replenishment; 9,044 AFY available during Seaside replenishment).)
Supply Sources, from Table 2-4, during Seaside Replenishment
Source AFY
Carmel River 3,376
Seaside groundwater 774
ASR average 1,300
Sand City desalination plant 94-2308
PWM, per D.16-09-021 3,500
Total 9,044-9,180
However, the EIR/EIS utilizes vastly inflated demand numbers, as discussed above, which
provides the reader with the misleading impression that a desalination project of 6.4 mgd
8
The EIR/EIS reflects 230 AFY as the current Sand City desalination plant supply available
to Cal-Am, and 94 AFY as the future supply, assuming a particular increase in Sand City
demand. For convenience, MCWD adopts the range of 94-230 in this brief, although – as
explained in MCWD’s earlier briefing, 200 AFY has been the average recent yield. (See
MCWD Dec. 15, 207 Amended Opening Brief, p. 12 citing Ex. MCD-42.)
24
(with 3,500 AFY of PWM supply) or 9.6 mgd (without PWM supply) may be required.9 In
addition, the EIR/EIS improperly presents alternative supply scenarios that do not include the
already-approved 3,500 AFY PWM supply. (See EIR/EIS, App. L, generally.) It is
unreasonable to suggest that this already-approved and under-construction supply source will
not be available as planned. (Vineyard, supra, 40 Cal.4th at 441-443.) Under CEQA, the
3,500 AFY PWM supply must be included in all EIR/EIS supply scenarios. (Ibid.)
Closing the resulting relatively minor gap of 365 to 501 AFY in annual supply for the
25-year period of Seaside groundwater adjudication replenishment10 – based on a current
annual demand of 9,545 AFY and considering the supply sources of between 9,044 and
9,180 as set forth above – does not require an additional supply of 7,167 (or 10,750) AFY.
(EIR/EIS, p. 2-18, Table 2-4.) Indeed, approving the MPWSP to solve this problem would
be the equivalent of applying a jackhammer to drive a single nail into a wall. Moreover, in
light of the inadequacy of the EIR/EIS analysis of potentially significant environmental
impacts, especially to groundwater, as discussed below, approval of the MPWSP based on
the EIR/EIS would lead to potentially irreparable damage to at least one community’s
environment, Marina, at the expense of curing the very small (365 to 501 AFY) obligation of
Cal-Am that may remain beginning in 2022 to cease environmentally-destructive
9
Even so, the EIR/EIS acknowledges that roughly 2,000 AFY of excess water would be
supplied by the MPWPS, at minimum, providing serious growth-inducing impacts. (Table 2-
4, EIR/EIS, § 2.4, p. 2-18.) Indeed, the entire MPWSP is a growth-inducement vehicle, not a
necessary replacement supply, as discussed below in section II.E. See Appendix L, p. L-5
(even without 3,500 AFY of PWM supply and with removal of one 1.6 mgd desalination
unit, the 6.4 mgd version of the MPWSP will provide the significant impact of a growth-
inducing surplus supply).
10
As the EIR/EIS acknowledges, after a 25-year period, Cal-Am’s full adjudicated Seaside
groundwater supply of 1,474 AFY will be available. (EIR/EIS, § 2.2.4, p. 2-9.)
25
withdrawals of water from the Carmel River environment in excess of its legal limit of 3,376
AFY.
During recent evidentiary hearings, the Commission received testimony and exhibits
into evidence concerning the potential for expansion of the PWM project, as well as the
potential for MCWD to sell modest increments of either its own conserved groundwater or
an annual portion of its own separate entitlement to unneeded PWM supply. (Ex. PCA-1, p.
12; Ex. WD-15, p. 17; RT, Vol. 24, testimony of Mr. Stoldt for MPWMD at pp. 4214-4215,
4219; RT, Vol. 26; testimony of Mr. Sciuto for Monterey One Water at pp. 4676-4678; see
also Ex. SF-12, p. 14 and Ex. C thereto; Ex. MCD-43, Ex. MCD-44; Dec. 12, 2017 MCWD
Notice, Exs. A and B.) Since that time, the MCWD sale proposals have been refined to
include a non-controversial sale of unneeded PWM product water for use in lieu of Seaside
basin groundwater pumping for golf course use, which credits could be used by Cal-Am to
increase its available Seaside supply of 774 AFY during the replenishment period. This
modest increment is sufficient to close the 365-501 AFY gap in supply noted above during
the replenishment period.
PWM expansion, if pursued, could provide Cal-Am with an additional 650 or up to
2,250 AFY with little to no disruption in the current completion schedule for the already-
approved capacity of the project. (Ex. PCA-7, p. 8; see also PCLF Opening Brief, pp. 11-13
(reviewing Monterey One Water and MPWMD commitment to explore expansion and
update the Commission’s record with further details).) Notably, PCLF, joined by numerous
parties, has moved for additional evidentiary hearings dedicated specifically to exploring
these additional supply sources. The Commission should grant the motion and explore these
potential supply solutions, all of which would be less expensive, less controversial and
26
sooner-available than the MPWSP.
Adding PWM expansion scenario A or B (650 or 2,250 AFY) and 500 AFY of
MCWD’s unneeded PWM supply to Cal-Am’s supply portfolio would result in the following
range of supplies:
Supply Sources Available by 2021, during Seaside Replenishment
Source AFY
Carmel River 3,376
Seaside Groundwater 774
ASR average 1,300
PWM, per D.16-09-021 3,500
MCWD unneeded PWM 500
PWM Expansion A or B 650-2,250
Total 10,194-11,930
This range of supply would be ample to meet the needs of Cal-Am’s Monterey District,
would meet all of the MPWSP project objectives, as well as the application objectives
concerning regional cooperation and supply alternatives, and would result in none of the
significant impacts of the MPWSP. As the EIR/EIS acknowledges, CEQA review for the
PWM project was completed, and the project is under construction. (See EIR/EIS, § 2.4.5, p.
2-20.) Cal-Am’s 3,500 AFY purchase of water from the project was approved by the
Commission in D.16-09-021, as noted above. But the EIR/EIS declined to consider PWM
expansion or MCWD sales in Cal-Am’s potential supply portfolio. The EIR/EIS should have
discussed these supply alternatives, either with the No Project Alternative or in the
Cumulative analysis, or both, rather than dismissing them out of hand as insufficiently
developed for consideration. (See, e.g., EIR/EIS, § 8.2.1.3, p. 8.2-108.) Including these
alternatives in the supply analysis demonstrates that – even in multiple consecutive drought
27
years when no ASR supply may be available – there would be no need for the MPWSP:
Supply Sources, during Seaside Replenishment, no ASR
Source AFY
Carmel River 3,376
Seaside Groundwater 774
Zero ASR recovery 0
PWM, per D.16-09-021 3,500
Total 8,894-10,630
Nonetheless, as reasonably included in the EIR/EIS’s section 2 supply analysis, with the
implementation of improvements approved in D.16-09-021 and the greater likelihood that
excess winter flow would be available for ASR, an average annual 1,300 AFY of ASR
supply is supported, bringing the total range above to 10,194 to 11,930 AFY. Notably, Cal-
Am’s current President, Mr. Svindland, testified that ASR recovery in the winter of 2016-
2017 was approximately 2,300 acre-feet, even while capacity was still limited until the
construction of facilities approved in D.16-09-021 is completed. (RT, Vol. 21, pp. 3486-
3487.)
Once the 25-year payback of 700 AFY to the Seaside groundwater basin has
concluded, that amount will also be available to Cal-Am, resulting in the following supply
portfolio, without the MPWSP:
28
Supply Sources, after Seaside Replenishment, with and without ASR
Source AFY
Carmel River 3,376
Seaside Groundwater 1,474
ASR recovery range 0-1,300
PWM, per D.16-09-021 3,500
Total 9,594-12,630
Including PWM Expansion, Scenario B for 2,250 AFY of supply would provide an
operational surplus as far into the future as 2050, when demand may reach 11,600 AFY,
utilizing projected population growth numbers employed in Cal-Am’s 2015 Urban Water
Management Plan. (See fn. 7, supra.) Additional operational surplus is provided either
during the Seaside replenishment period or afterward by including the following
supplemental supply sources that are available to Cal-Am, as acknowledged by the EIR/EIS.
(EIR/EIS, § 2.4.6, pp. 2-21 – 2-23; § 2.5.3.1, pp. 2-25 – 2-26.)
Supplemental Source AFY

Table 13 Rights, max. 600
Malpaso temporary rights 86
Pacific Grove small projects 125
Total Supplemental Sources 811
These supplemental sources of 811 AFY can and should be applied to each of the supply
scenarios set forth above, as well as those analyzed in the EIR/EIS. For example:
29
Supply Sources, from Table 2-4 with Supplemental Sources, during Replenishment
Source AFY
Carmel River 3,376
Seaside groundwater 774
ASR average 1,300
PWM, per D.16-09-021 3,500
Supplemental Sources 811
Total 9,855-9,991
To exclude them impairs the accuracy of the supply and demand analysis. CEQA requires a
lead agency to consider relevant and reasonably available water supplies in its environmental
review. (Vineyard, supra, 40 Cal.4th at 431-432.)
When the data presented in the EIR/EIS are viewed without the obfuscation attendant
to Cal-Am’s and the EIR/EIS’s vastly inflated demand numbers, it becomes plain that
present and already-approved supply sources will enable Cal-Am to serve its Monterey
Peninsula customers’ present needs without the necessity of a desalination plant. Proposals
for the expansion of PWM and modest sales by MCWD are reasonable, feasible, sufficient
and cost-effective alternatives for securing adequate future supply and an operational surplus,
as discussed in MCWD’s December and January briefs. (MCWD’s Dec. 15, 2017 Amended
Opening Brief, pp. 13-16; MCWD’s Jan. 9, 2018 Reply Brief, pp. 12-18.) Because the
MPWSP desalination component is not necessary – as demonstrated by the data in the
EIR/EIS, if not by the flawed conclusions of the EIR/EIS demand and supply analysis – the
Commission should decline to certify the EIR/EIS and it should deny the request for a CPCN
to construct the MPWSP.
30
2. Water Rights Analysis
The question of water rights concerning Cal-Am’s ability to utilize its proposed
source of groundwater for the MPWSP from the Dune Sand and 180 FTE Aquifers within
the180/400 Foot Aquifer Sub-basin of the SVGB at the CEMEX property requires a multi-
layered analysis. While CEQA does not necessarily require the question of water rights to be
directly addressed and resolved in the course of environmental review, CEQA does require a
project proponent to demonstrate that it will likely have access to the resources required to
operate its project. (See, e.g, Vineyard, supra, 40 Cal.4th at 431-432.) Similarly, the
Commission has at times conditioned its decisions or required utilities to demonstrate
acquisition of necessary assets, including water rights, that are integral to implementation of
a proposed project or operation of a utility system. (D.16-01-047, Decision Resolving a
Complaint and Authorizing a Certificate of Public Convenience and Necessity as Modified,
p. 2 (CPCN granted to Sierra Park Water Company on conditions including transfer of
appurtenant water rights needed to operate system; D.15-06-049, Decision Approving
Request of Rural Water Company and Golden State Water Company for an Order
Authorizing Rural Water Company to Sell and Golden State Water Company to Purchase the
Public Utility Assets of Rural Water Company, pp. 18-19 (Golden State stipulation securing
water rights supported CPCN and acquisition of Rural System); D.14-06-051, Decision
Granting Utility a Certificate of Public Convenience and Necessity and Approving the
Settlement Agreement with Modifications, pp. 35-38 (CPCN granted to Golden State based
on surface water rights held by its wholesaler); D.12-11-051, Decision on Test Year 2012
General Rate Case for Southern California Edison Company, pp. 63-65 (declining to
approve rate recovery for cost of replacement pipeline at hydroelectric facility tailrace, where
31
utility did not hold rights to the water potentially at issue); D.91-02-053, In the Matter of the
Application of Del Este Water Company for an order authorizing it to execute a
Memorandum of Understanding with Modesto Irrigation District and the City of Modesto
Providing for a Treated Water Supply (application approved where utility’s surface water
rights were sufficient). See also D.16-09-021, p. 12 (local agency’s access to sources of
wastewater sufficient to approve Cal-Am’s purchase agreement for advanced treated water);
D.10-12-016, p. 59 (participation of local public agencies provided solution to potential
water rights issues for desalination source water).) Here, however, Cal-Am does not have
and cannot acquire the water right required to take its proposed source water and operate its
MPWSP as planned.
For purposes of environmental review under CEQA, on the other hand, the pertinent
question is not whether Cal-Am has or can acquire a water right. (Cherry Valley Pass Acres
& Neighbors v. City of Beaumont (2010) 190 Cal. App. 4th 316, 346, citing Vineyard, supra,
40 Cal.4th at p. 434 (project impacts on the groundwater basin must be addressed in the
EIR).) The question is whether – in light of the anticipated likely significant impacts on the
environment, including the groundwater environment, and considering feasible potential
mitigations – the MPWSP is the alternative that would best accomplish the project’s
objectives with the least environmental impact. (Mountain Lion Foundation v. Fish & Game
Com. (1997) 16 Cal.4th 105.) On the basis of Cal-Am’s actual demand and its available and
potential supply portfolio, as discussed above, as well as on the basis of the project’s likely
significant and unavoidable impacts as discussed below, MCWD believes that the No Project
Alternative is the alternative the Commission must approve here.
However, the EIR/EIS’s water rights discussion is incomplete, inaccurate and
32
therefore potentially misleading. MCWD’s analysis of the EIR/EIS water rights discussion
shows that Cal-Am does not have and cannot obtain a right to lawfully pump the source
water for its proposed project from the critically-overdrafted 180/400 Foot Aquifer Sub-basin
of the SVGB. Additional legal impediments to the MPWSP are discussed in section III.A,
below.
Under the test articulated by the SWRCB’s Final Review (Ex. MCD-17, see EIR/EIS,
§ 2.6.1, pp. 2-33 – 2-36), Cal-Am has the burden of proof to demonstrate that its
groundwater pumping to obtain source water for the MPWSP would not harm, or cause
injury to, the sub-basin’s groundwater conditions and lawful users of water. (Ex. MCD-17,
pp. ii, 35, 368-39, 42, 46, 48.) Cal-Am has not met its burden, but the EIR/EIS – relying on
flawed groundwater modeling and insufficient data – concludes otherwise. (See section II.C.
below for discussion of EIR/EIS flaws in analysis of groundwater impacts.) This disputed
question of fact, going to Cal-Am’s ability to either acquire an appropriative right or
demonstrate a right to developed water, is not within the Commission’s jurisdiction to
determine. (EIR/EIS, § 2.6, pp. 2-32 – 2-33; see also EIR/EIS, § 8.2.3, pp. 8.2-5 – 8.2-7.)
This question cannot be resolved through the CEQA process, which employs a different
analysis for a different purpose. (EIR/EIS, id. at p.8.2-5 (“level of detail and certainty for a
feasibility analysis within an EIR/EIS is not the same as the more exacting level of detail,
proof and legal arguments that would pertain in a court challenge on water rights”).)
Indeed, the Commission has repeatedly denied MCWD’s requests for an evidentiary
hearing on the environmental impacts of the MPWSP. Therefore, if the Commission is
considering granting the CPCN requested – which it should not – the Commission should
first grant the pending motion of MCWD and other moving parties for referral of the water
33
rights question to the SWRCB, or it should refer that question to the courts for resolution.
Without resolution of the matter in a competent forum with jurisdiction (and expertise) over
water rights issues, any CPCN the Commission might grant would be clouded by vigorous
litigation by the parties to this proceeding as well as potentially by others, including those
who have commented to the Commission unfavorably on the water rights issue during
CEQA/NEPA review or otherwise.
(a) Groundwater Protection Framework
As articulated in the SWRCB’s Final Review, Cal-Am has the burden of proof to
show that it will have valid groundwater rights to provide adequate source water for the
MPWSP. The burden of proof is not on MCWD and others to show that Cal-Am will not
have valid groundwater rights. The water rights analysis must be made within the context of
the groundwater protection framework within the project area. That framework consists of
the following three layers:
1. MCWRA’s Projects and Actions to Prevent Seawater Intrusion and Reduce

Groundwater Overdraft
2. Water Rights Law
3. Sustainable Groundwater Management Act (“SGMA”)
While groundwater rights issues have always been present in the SVGB and the
project area, and there has been consensus on the importance of preventing seawater
intrusion and reducing groundwater overdraft, Cal-Am’s proposed slant well pumping at the
CEMEX property has brought groundwater rights issues to the forefront. Unlike the first
layer of the protective framework, which is a top-down local county regulation driven
approach, groundwater rights normally involve existing or potential groundwater rights
34
holders. SGMA is the new third layer to the groundwater water protection framework, which
only became effective January 1, 2015.
The 180/400 Foot Aquifer Sub-basin, classified by DWR as being Critically
Overdrafted is on the fast track for development of a groundwater sustainability plan and for
reaching its sustainability goal, which including rolling back seawater intrusion to at least
January 1, 2015 conditions, before the operation of the Cal-Am test slant well. (See Water
Code § 10727.2.) SGMA is another type of top-down local regulation of groundwater, but
with the added State regulatory hammer of SWRCB intervention for non-compliance. All
three layers, however, focus on the prevention of seawater intrusion and reducing
groundwater overdraft, conditions which harm or injure existing and future groundwater
conditions and rights to pump groundwater.
(b) MCWRA’s Projects and Actions
The Monterey County Water Resources Agency (“MCWRA”) has implemented
various projects, contracts and other actions to carry out its purpose of protecting the SVGB
(Water Code App., § 52-8), one of which was the 1996 Annexation Agreement and
Groundwater Mitigation Framework for Marina Area Lands (Ex. MCD-6.) The contract
limited groundwater pumping on what is now the CEMEX property to 500 AFY. (EIR/EIS,
§ 8.2.3.8, pp. 8.2-14 – 8.2-15; Ex. MCD-6, pp. 6-7 and 17 at §§ 5.1.1.3, 7.2; see also id. at
§§ 4.1, 4.4.)
The EIR/EIS incorrectly asserts that this pumping limitation does not apply to Cal-
Am, claiming that the purpose of the 1996 Annexation Agreement was to “limit pumping
from the deeper aquifers.”. (See EIR/EIS, § 2.6, p. 2-43.) However, the EIR/EIS cites no
support for this legal interpretation of the contract, and it does not disclose that neither
35
CEMEX nor its predecessor pumped from the deeper aquifers. Nor does the EIR/EIS
support its claim on the same page that the contract “is not intended to limit brackish water
pumping from the shallow aquifers.” In fact, the contract does not apply the pumping
limitation to any particular water quality or aquifer source. (Ex. MCD-6, p. 17, § 7.2.) There
is no reference to “potable” groundwater or the deeper aquifers in the contractual volume
limitation. The contract limits all groundwater pumping on the property to 500 AFY. (Ibid.)
Nor is the EIR/EIS assertion that the agreement does not affect Cal-Am or "developed
water rights” for the MPWSP strictly correct either. As explained below, a developed water
right does not attach to water that is already of beneficial use or fresh groundwater; it is
separate and apart from an appropriative groundwater right. Cal-Am would need to prove
that it has either an overlying, an appropriative, or a prescriptive groundwater right for the
beneficial use and fresh groundwater it would extract and export from the CEMEX property.
Nor would the return water proposal serve the purpose of the 1996 Annexation Agreement,
because the contract states on its face that it is dedicated to conserving groundwater and
limiting seawater intrusion within the Marina Area Lands, not in the Castroville area where
Cal-Am proposes to provide return water. (See Ex. MCD-6, Executive Summary and p.
17.)11 The MPWSP’s slant well intake is not feasible because it would violate the pumping
limitation for 500 AFY for use only on the CEMEX property, and the EIR/EIS is mistaken to
conclude otherwise.
The MPWSP slant well intake could also interfere with MCWD’s right to the benefits
of its contractual rights to the use of groundwater rights transferred to it through operation of
11
“Return water”is not a water rights issue, it is merely a technical construct for purposes of
avoiding export of basin groundwater in violation of the Agency Act.
36
the 1993 Fort Ord Lands Annexation Agreement (Ex. MCD-5) and the Fort Ord Reuse
Authority’s subsequent quitclaim of property and infrastructure, including groundwater
rights required to serve the former Fort Ord, to MCWD (Ex. MCD-9). If MCWD is unable
to exercise those groundwater rights because of harm caused to existing groundwater
conditions by the MPWSP, then the Fort Ord Base Reuse Plan’s objective of the
redevelopment of Fort Ord for civilian purposes could not be fulfilled. Water of beneficial
use, needed and contractually secured for the development of Marina and the redevelopment
of Fort Ord, would be sacrificed to promote development on the Monterey Peninsula through
an unnecessary desalination project.
The foregoing agreements, and the payments under them to MCWRA, are an integral
part of MCWRA’s efforts to conserve groundwater and combat seawater intrusion and to
fund many related efforts such as C-SIP, the Salinas Valley Water Project, and to carry out
ordinances and other enforcement activities, including retirement of well operations in the
MPWSP project vicinity. The MPWSP intake wells at CEMEX would be entirely contrary
to the purpose of these protective contracts, projects and actions.
(c) Water Rights
The Commission and the EIR/EIS have relied in this proceeding on the SWRCB’s
2013 Final Review, however the SWRCB has had limited jurisdiction over groundwater
prior to the enactment of SGMA. A key point to remember concerning that Final Review is
that many of its legal conclusions were based upon the SWRCB’s acceptance of various
incorrect assumed facts, including that seawater has intruded five miles inland from the
coast. As discussed in section II.C. below, that assumption is not true as applied to
groundwater conditions south of the Salinas River, including in the project area.
37
All surface water and groundwater rights in California are subject to the state
constitutional limitations, that “the water resources of the State be put to beneficial use to the
fullest extent of which they are capable.” (Cal. Const., art. X, § 2.) Beneficial uses of
surface water and groundwater are not limited to “fresh water” suitable for direct potable
uses. Groundwater having TDS levels equal to or less than 3,000 mg/L are considered
suitable, or potentially suitable, for municipal or domestic water supply under the provisions
of SWRCB Resolution No. 88-63 (see Ex. MCD-60, at App. A-9, p. 1) and thus constitute
water that may be used for beneficial uses.
The idea that the MPWSP would not adversely impact water quality if no known
drinking water wells are affected violates the 2017 Water Quality Control Plan for the
Central Coastal Basin (Ex. MCD-60 (excerpts)), which designates all groundwater within the
SVGB as potential drinking water source (id. at p. 7, § 2.1) and makes no distinction
regarding current uses. The MPWSP’s proposed calculation of fresh water versus seawater
for return water purposes (EIR/EIS, § 8.2.4.3, pp. 8.2-19 – 8.2-20) based on 500 mg/L TDS
should not be confused with other beneficial uses of water up to 3,000 mg/L TDS, as
required by SWRCB Resolution No. 88-63 and the Basin Plan.
Four types of groundwater rights potentially pertain to the MPWSP: developed water
right (which may be apply either to surface water or groundwater right); overlying
groundwater right; appropriative groundwater right; or prescriptive right. (See Ex. MCD-17,
pp 34-35.)
Developed Water – A priority right to developed or salvaged water belongs to the one
who made it available by means of artificial works. (City of Santa Maria v. Adam (2012),
211 Cal.App.4th 266, 304.) While the SWRCB’s Final Review on page 33 states that “Cal-
38
Am needs no groundwater right or other water right to extract seawater from Monterey Bay,”
the correct statement would be that by desalinating seawater from Monterey Bay, Cal-Am
would produce developed water and acquire a developed water right, i.e., a new water
source, and therefore, may provide that developed water for use on the Monterey Peninsula.
Overlying Right – This is the right of overlying landowners to use water from the
ground underneath the land on the land; based on the ownership of the land. The EIR/EIS
admits that Cal-Am does not have an overlying groundwater right on the CEMEX property.
(EIR/EIS, § 2.6.1, p. 2-34.)
Appropriative Right – Appropriation is the use of beneficial use water for non-
overlying purposes, but if there is no surplus groundwater in a basin, or if an unadjudicated
basin is in overdraft, no appropriative rights are available. (City of Barstow v. Mojave Water
Agency (2000) 23 Cal.4th 1224, 1241-42; Pasadena v. Alhambra (1949) 33 Cal.2d 908, 925-
26; Corona Foothill Lemon Co. v. Lillibridge (1937) 8 Cal.2d 522, 531-32 (overlying users’
reasonable beneficial use of all basin water left no surplus for appropriation); see also
Monolith Portland Cement Co. v. Mojave Public Utilities District (1957) 154 Cal.App.2d
487, 493-94 (utility violated overlyers’ rights by exporting when there was no surplus).
Contrary to the EIR/EIS discussion concerning the 1996 Annexation Agreement, noted
above, Cal-Am cannot acquire an appropriative groundwater right within the overdrafted
180/400 Foot Aquifer Sub-basin.
Prescriptive Right – Appropriations of water in excess of surplus, or safe yield,
invade senior basin rights, creating the element of adversity against those rights that is
prerequisite to entitlement to an injunction and the running of any prescriptive period
(normally 5 years). (City of Los Angeles v. City of San Fernando (1975) 14 Ca1.3d 199,
39
277.)12 Public and private appropriators can obtain prescriptive rights against private
overlying users, but private appropriators cannot obtain prescriptive rights against public
appropriators, such as MCWD. (Civil Code § 1007; Wright v. Goleta Water District (1985)
174 Cal.App.3d 74, 219.) Consequently, MCWD’s water rights cannot be prescripted
against by Cal-Am.
Harm – However, a key issue in determining all four types of water rights is harm or
injury. (Ex. MCD-17, pp. 46-48; see EIR/EIS, § 2.6.2, p. 2-37.) Such harms within the
180/400 Foot Aquifer Sub-basin in the project area and the adjacent Monterey Sub-basin
would include:
(1) Lowering of groundwater levels;
(2) Increase of seawater intrusion;
(3) Degrading of water quality;
(4) Reduction in storage of beneficial use groundwater.
The harm issues extend to both legal users of water and to existing groundwater conditions.
Cal-Am must show that the MPWSP will not result in injury, including that it “will not
adversely affect the seawater intrusion front.” (Ex. MCD-17, p. 33.) As discussed in section
II.C., below, the MPWSP would likely adversely affect existing groundwater conditions in
all of these ways, which would also be contrary to the Basin Plan as well as the stated
purposes of both the Agency Act and the 1996 Marina Area Lands Annexation Agreement.
12
One of SGMA’s direct changes to groundwater law is in Water Code Section 10720.5(a),
which provides that for sub-basins designated medium- or high-priority by DWR, such as the
180/400 Foot Aquifer Sub-basin, no extraction of groundwater between January 1, 2015, and
the date of adoption of a groundwater sustainability plan for the sub-basin may be used as
evidence of, or to establish or defend against, any claim of prescription.
40
Therefore, Cal-Am cannot acquire a water right to operate its slant wells as planned at
CEMEX for the MPWSP.
(d) SGMA
The Commission must consider the policies of SGMA and any groundwater
sustainability plan adopted pursuant to SGMA for the 180/400 Foot Aquifer Sub-basin in
issuing any decision or determination regarding certification of the MPWSP. (Water Code
§ 10720.9.) The plan will be required to achieve sustainable groundwater management
within the sub-basin by identifying and causing the implementation of measures targeted to
ensure that the sub-basin is operated within its sustainable yield by 2040. (Water Code
§§ 10720.7(a)(1), 10721(u) – (x), 10727 et seq., and 10735 et seq.) The sustainability goal
would include reversing degradation (quality and quantity) as well as seawater intrusion
within the sub-basin to at least conditions as of January 1, 2015, a time prior to operation of
the Cal-Am test slant well. (Water Code § 10727.2.) SGMA authorizes the SWRCB to
intervene if DWR in consultation with the SWRCB “determines that a groundwater
sustainability plan is inadequate or that the groundwater management program is not being
implemented in a manner that will likely achieve the sustainability goal.” (Water Code
§§ 10735.2(a)(3); 10735.4-10736.)
Water Code 10726.8(a) states, “This part is in addition to, and not a limitation on, the
authority granted to a local agency under any other law. The local agency may use the local
agency’s authority under any other law to apply and enforce any requirements of this part,
including, but not limited to, the collection of fees.” Thus SGMA provides a third layer of
the groundwater protection framework within the 180/400 Foot Aquifer Sub-basin because it
does not modify rights or priorities to use or store groundwater and it does not prevent a
41
county or city from regulating groundwater under their independent police powers; for
example, the County’s groundwater authority under the Agency Act. (Ibid.)
Adverse impacts from MPWSP groundwater pumping must be assessed and
addressed pursuant to SGMA and the groundwater sustainability plans for the 180/400 Foot
Aquifer Sub-basin and the Monterey Sub-basin. SWRCB intervention may ensue if the
plans, including in light of any potential MPWSP operation, do not adequately address
achieving baseline conditions of January 1, 2015 at a minimum. The Commission must
consider these matters in determining whether and under what terms or conditions it should
grant a CPCN to Cal-Am for the MPWSP.
If the Commission were to grant Cal-Am’s requested CPCN, yet impose terms and
conditions for the protection of MCWD’s groundwater (Pub. Util. Code § 1001), and for
protection of the parties’ constitutional and due process rights for determination of the
groundwater question in a proper proceeding in a forum with jurisdiction, such conditions
would have to be within the confines of the project evaluated in the current EIR/EIS. If the
Commission were to certificate the MPWSP on the condition that Cal-Am utilize a different
intake technology for its desalination feed water or a different location for its slant wells, or
any other configuration outside the scope of the current project review, the Commission
would nonetheless run afoul of CEQA’s requirement that it refrain from approving a project
until environmental review is complete. (See Save Tara v. City of West Hollywood (2008) 45
Cal.4th 116, 134.)
On the record presented, and despite the deficiencies of the EIR/EIS, Cal-Am cannot
establish even a reasonably clear path to a groundwater right. If the application is not denied
outright for lack of need, or other reason, the Commission should seek guidance on the
42
question of water rights from the SWRCB and grant the pending motion for referral.
B. Project Description
1. Insufficient Capacity in existing shared MCWD Pipeline
The project description is deficient because it does not disclose and acknowledge the
issue of likely insufficient capacity availability in the existing MCWD-owned pipeline,
through which Cal-Am proposes in its amended application to pump MPWSP product water.
The capacity issue arises due to the necessity of carrying higher-priority supply, including
ASR and PWM water. (See EIR/EIS response to MCWD Mar. 29, 2017 comment no. 26,
§ 8.5.2, p. 8.5-662.) Although the EIR/EIS references 2017 correspondence with Cal-Am, it
does not disclose MCWD’s disagreement with Cal-Am’s capacity assessment or the present
state of Cal-Am and MCWD’s unconcluded attempt to mediate the issue. To be clear,
MCWD does not believe sufficient firm, year-round capacity is available in the existing
pipeline. (See MCWD Dec. 15, 2017 Amended Opening Brief, pp. 20-21; MCWD Jan. 9,
2018 Reply Brief, pp.19-20. See also Ex. MCD-36A, pp. 16-17, Mr. Van Der Maaten
testifying for MCWD.) In MCWD’s view, Cal-Am’s decision to re-route the desalinated
product water pipeline in its amended application renders the project infeasible, because the
capacity of the existing pipeline is not sufficient to serve all of the existing higher-priority
uses while simultaneously providing firm capacity for MPWSP product water, and there is
not likely sufficient room in the right-of-way to install a parallel pipeline dedicated to
desalinated product water. The EIR/EIS should have disclosed and addressed this pipeline
issue, which affects project feasibility, including environmental impacts of re-routing the
desalinated product water or installing a parallel pipeline, if feasible. (Cleveland National
Forest Foundation v. San Diego Association of Governments, supra, 17 Cal.App.5th at 445.)
43
2. Periodic Well Replacement.
In addition, the EIR/EIS does not provide a meaningful response to MCWD’s
comments regarding necessary well replacement (comment MCWD-82, Mar. 29, 2017; see
EIR/EIS § 8.5.2.1, p. 8.5-676). If the project life is thirty years or more, and the life of each
of the slant wells is no more than 25 years, then there will necessarily be additional
environmental impacts that have not been addressed in the EIR/EIS. Well replacement and
associated impacts are a part of the known operational environmental impacts and best
available data that must be disclosed in fully describing the project. (Berkeley Keep Jets
Over Bay v. Board of Port Commissioners, supra, 91 Cal.App.4th at 1364.)
3. Disclosure of Return Water Formula.
In response to MCWD’s comments (no. 84), and the comments of others, that the
DEIR/EIS failed to disclose the proposed return water formula, the EIR/EIS discloses the
formula in Master Response 8.2.4. (See EIR/EIS, § 8.2.4.3, pp. 8.2-19 – 8.2-20.) However,
merely reproducing the formula in the responses to comments is insufficient. The return
water formula adopted in the Return Water Settlement is an integral part of the project
proponents’ plan for supply and demand as well as Agency Act compliance, so it should
have been disclosed in the body of the EIR/EIS, for a complete discussion of source water
issues. (Vineyard, supra, 40 Cal.4th at 431-432.)
C. Environmental Setting, Impacts and Mitigation Measures
MCWD submitted extensive comments, including comments from multiple experts,
explaining why the DEIR’s Environmental Setting, Impacts and Mitigation Measures for
numerous resource areas did not meet CEQA’s requirements. (See e.g., FEIR/EIS, § 8.5.2,
pp. 8.5-129–8.5-522.) While the FEIR addressed many of MCWD’s comments and revised
44
proposed mitigations in some resource area, the FEIR did revise its conclusions or mitigation
regarding the MPWSP’s potential groundwater impacts within the North Marina Subarea13
portion of the 180/400 Foot Aquifer Sub-basin. MCWD has submitted preliminary
comments based on its experts review of the FEIR that confirm the FEIR’s discussion of the
Project’s potential impacts on groundwater resources continues to rely on unsupported
assumption and analyses that are not supported by substantial evidence. (See April 19, 2018
MCWD comment letter (the “Letter”).)
1. The EIR’s description of baseline groundwater conditions in Project

area is misleading and conflicts with the best available information.
CEQA requires an EIR to “delineate environmental conditions prevailing absent the
project, defining a ‘baseline’ against which predicted effects can be described and
quantified.” (Neighbors for Smart Rail v. Exposition Metro Line Construction Auth. (2013)
57 Cal.4th 439, 447.) The baseline is normally the “existing conditions” in the vicinity of the
project “as they exist at the time the [NOP] is published.” (Id. at p. 448.) “Knowledge of the
regional setting is critical to the assessment of environmental impacts.” (Guidelines, § 15125,
13
The “North Marina Subarea” is used in these comments to refer to the combination of (1)
that portion of the 180/400 Foot Aquifer Sub-basin of the Salinas Valley Groundwater Basin
(SVGB) located south of the Salinas River plus (2) the northwest portion of the Monterey
Sub-basin that would be impacted by the proposed slant well pumping on the CEMEX
property. While the North Marina Subarea is not a formally DWR-recognized subarea, it
contains highly complex hydrogeological conditions that are very different from the portion
of the 180/400 Foot Aquifer Sub-basin north of the Salinas River as explained herein. The
North Marina Subarea is the coastal subarea of the overdrafted SVGB and is the area that
would be directly impacted by the proposed project feed water pumping of 27,000 AFY. The
Monterey County Water Resources Agency has defined the “Pressure Area” as a
combination of the DWR-designated 180/400 Foot Aquifer Sub-basin and the former Seaside
Area and Corral De Tierra Sub-basins (now the new Seaside and Monterey Sub-basins). The
Pressure Area is not a formally DWR-recognized subarea either, but that term is used
throughout the FEIR/EIS.
45
subd. (c).) Thus, CEQA Guidelines section 15125 provides that an EIR “must include a
description of the physical environmental conditions in the vicinity of the project . . . from
both a local and regional perspective.” (Id. at subd. (a), italics added.) Furthermore,
“[s]pecial emphasis should be placed on environmental resources that are rare or unique to
that region and would be affected by the project.” (Ibid, italics added.)
An EIR’s description of a project’s environmental setting plays a critical role in all of
the subsequent parts of the EIR because it provides “the baseline physical conditions by
which a Lead Agency determines whether an impact is significant.” (Guidelines, § 15125,
subd. (a).) “If the description of the environmental setting of the project site and surrounding
area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA.”
(Cadiz Land Co. v. Rail Cycle, supra, 83 Cal.App.4th at 87, emphasis added.) Here, as is
explained below and in MCWD’s comments on the DEIR/EIS, the EIR’s “description and
consideration” of the regional setting “is so incomplete and misleading that it fails to meet
the standard set forth in . . . Guidelines section 15125.” (San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus, supra, 27 Cal.App.4th at 723.)
a) MWWD provided extensive comments, including comments from multiple

experts, explained the DEIR’s description of baseline groundwater conditions in
Project area is misleading and conflicts with the best available information.
Here, the EIR/EIS fails to comply with the fundamental CEQA baseline disclosure
requirements for the numerous reasons explained in MCWD’s comments the DEIR/EIS:
(1) The EIR/EIS fails to provide an accurate and complete description of the Dune
Sand Aquifer in the project area. Instead the DEIR/EIS presents a misleading picture of the
aquifer implying groundwater in the Dune Sand Aquifer is limited in extent and has no value
or uses, stating: “most of the water in the Dune Sand Aquifer has been intruded by seawater
46
and is considered saline to brackish.” (See DEIR/EIS, § 4.4.1.2, p. 4.4-8 [citing 13 year-old
study], italics added.) MCWD provided expert comments explaining that the best available
evidence shows the Dune Sand Aquifer contains potable, freshwater less than a mile from the
project site and extends miles inland. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-263–8.5-266, 8.5-
284–8.5-286, 8.5-336–8.5-336, 8.5-391, and 8.5-410.) These comments further explain how
the Dune Sand Aquifer plays an important role in recharging the underlying aquifers and
preventing seawater intrusion. (Ibid.)
(2) The EIR/EIS fails to provide an accurate and complete description of the 180-Foot
Equivalent Aquifer in the project area and further inland to the extent the aquifer could be
impacted by the project as required by CEQA. Instead the DEIR/EIS presents a misleading
picture of the aquifer stating implying groundwater in the 180-foot Aquifer is controlled by
seawater at the site and miles inland, stating: “Based on the recent groundwater testing data
discussed in the Groundwater Quality subsection below, the quality of water in the 180-FTE
Aquifer is directly influenced by seawater; this influence extends for miles inland, as
discussed below in the Seawater Intrusion section.” (See DEIR/EIS, § 4.4.1.2, p. 4.4-11
[citing without reference to undisclosed recent groundwater testing data conflicting with this
statement].) MCWD provided expert comments explaining that the best available evidence
demonstrates the 180-foot aquifer contains potable, freshwater less than a mile from the
project site. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-263–8.5-266, 8.5-286, 8.5-336–8.5-336,
8.5-391, and 8.5-409.)
(3) The EIR/EIS fails to provide an accurate and complete description of the 400-Foot
Aquifer, stating it “is directly influenced by seawater,” which extends for miles inland. (See
DEIR/EIS, p. 4.4-11 [citing without reference to undisclosed recent groundwater testing
47
data].) MCWD’s expert comments also explained that the best available evidence
demonstrates 400-foot aquifer contains potable, freshwater less than a mile from the project
site. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-307 and 8.5-338.)
(4) The EIR/EIS fails to provide an accurate and complete description of groundwater
flows and flow direction in the project area. Instead, the DEIR/EIS incorrectly suggests that
groundwater monitoring from north of the Salinas River shows flows and flow direction in
the project area (DEIR/EIS, § 4.4.1.3, 4.4-14–4.4-16, citing Figures 4.4-5 and 4.4-6.) The
cited figures, however, do not cover the project area. (Ibid.) The DEIR/EIS qualifies this
statement for the Dune Sand Aquifer suggesting that while flows in the Dune Sand Aquifer
are not known “based on the aquifer depth and geologic structure, it is reasonable to expect
that they would be tidally controlled with little to no net horizontal flow in any particular
direction.” (DEIR/EIS, § 4.4.1.3, p. 4.4-14.) This is inaccurate. MCWD provided expert
comments explaining that groundwater data show that flows in the Dune Sand Aquifer flow
towards the ocean and thus are protective of seawater intrusion. (See e.g., FEIR/EIS, § 8.5.2,
pp. 8.5-287–288, 8.5-341, 8.5-392–394, and 8.5-409–412.)
(5) The DEIR/EIS fails to provide an accurate and complete description of seawater
intrusion in the project area and the area impacted. Instead, the DEIR/EIS misleads the
public into believing all groundwater in the North Marina Subarea, is seawater intruded and
has no beneficial uses stating:
Figures 4.4-10 and 4.4-11 illustrate the seawater intrusion areas

as of 2013 within the 180-Foot and 400-Foot Aquifers,
respectively (MCWRA, 2015)
… The 2013 estimates of seawater intrusion within the 180-Foot

and 400-Foot Aquifers indicate that seawater has intruded to a
maximum of approximately 8 miles and 3.5 miles inland,
48
respectively, inferred from chloride concentrations greater than
500 mg/L. The seawater intrusion has resulted in the
degradation of groundwater supplies, requiring urban and
agricultural supply wells within the affected area to be
abandoned or destroyed (MCWRA, 2001).
(DEIR/EIS, § 4.4.1.4, pp. 4.4-28 and 4.4-31.) MCWD provided expert comments explaining
that Figures 4.4-10 and 4.4-11 are inconsistent with monitoring data that shows that
numerous wells with area shown to be seawater intruded, in fact, are not. (See e.g.,
FEIR/EIS, § 8.5.2, pp. 8.5-320–321, 8.5-336–340, 8.5-394–396, and 8.5-407–408.)
Moreover, MCWD’s comments also pointed out that the HWG itself has acknowledged the
lack of data to support the MCWRA inferences. (See e.g., FEIR/EIS, § 8.5.2, p. 8.5-185.) An
accurate map of seawater intrusion, particularly within the area affected by the MPWSP’s
proposed slant wells is needed for the public and decisionmakers to understand the project’s
potential impacts. MCWD also pointed out the DEIR/EIS’s suggestion that where
monitoring and production wells exceed 500 mg/L, there are no beneficial uses for this water
was misleading and must be revised. (Ibid., see also 8.5-306–308.)
(6) Finally, MCWD pointed out the DEIR/EIS hyperlink to the HWG’s Technical
Memorandum stating it “established baseline water and TDS levels” in the project area did
not comply with CEQA. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-185–187, 8.5-299–300.) The
HWG’s Technical Memorandum, however, does not establish baseline water or TDS levels
in the project area. (Ibid.) Rather, the memorandum includes a cursory discussion of water
levels at some of the monitoring wells over a period of weeks and then provides a section
entitled “Recommended Monitoring of Baseline and TDS Levels,” which suggests a method
for evaluating impacts without actually establishing baseline water levels. (Ibid.) Similarly,
49
the HWG’s Technical Memorandum does not provide TDS levels in the project area. Instead
the memo provides three different methods for conducting TDS sampling. (Ibid.)
Notably, MCWD’s hydrogeologist expert provided line-by-line comments noting the
numerous inaccuracies in the EIR/EIS’s description of baseline groundwater conditions.
(See, FEIR/EIS, § 8.5.2, pp. 8.5-285–292.)
In light of the inadequate information characterizing baseline groundwater conditions
in the North Marina Subarea and as part of the District’s responsibilities as a Groundwater
Sustainability Agency MCWD performed additional studies of the Salinas Valley
Groundwater Basin. (See, FEIR/EIS, § 8.5.2, p. 8.5-439.) MCWD submitted the
preliminary report from Stanford University (Gottschalk and Knight), entitled “Preliminary
Interpretation of SkyTEM Data Acquired in the Marina Coast Water District” to the
Commission for its consideration as part of its environmental review. MCWD also
submitted a memorandum from Hopkins Groundwater Consultants, entitled “Monterey
Peninsula Water Supply Project Return Water” that explained why Cal-Am’s proposed
Return Water Settlement Agreement would not address or mitigate the adverse groundwater
impacts caused by the MPWSP pumping that that preliminary data from Stanford study
supported its prior comments regarding the extensive groundwater resources in the shallow
aquifers along the coastline around the CEMEX site that will be adversely impacted by the
MPWSP. (See, FEIR/EIS, § 8.5.2, p. 8.5-440–511.) MCWD comments noted that the final
report from Stanford University was expected to be complete in early 2018 and that District
would provide it to the Commission as soon as it is available. (See Letter, Att. A at
Appendix A.)
50
b) The FEIR’s failure to correct the DEIR’s misleading description of baseline
groundwater conditions or identify substantial evidence supporting its analysis
requires recirculation of the DEIR; significant new information also warrants
recirculation.
Largely ignoring MCWD comments and those of its experts, the Final EIR/EIS
continues to misrepresent baseline water quality in the Dune Sand Aquifer and the 180-foot
Aquifer stating that the current location of the seawater intrusion front is about 8 miles inland
in the 180-Foot Aquifer. Not only does the FEIR fail to correct these errors, it further
misleads the public and decisionmakers in Master Report 9 by suggesting the AEM Study is
not reliable and that it supports the EIR’s description of the environmental baseline and its
EIR’s conclusions regarding the MPWSP’s potential impacts (FEIR, § 8.2.9, pp. 8.2-53–62.)
On April 19, 2018, MCWD submitted preliminary comments on the FEIR explaining how
the FEIR’s failure to correct the misleading description of baseline groundwater conditions
and its failure to provide good faith response to comments violates CEQA. The April 19,
2018 MCWD Comment Letter (the “Letter”) attached comments from experts explaining in
detail the FEIR’s failures in this area. (See, Letter, Att. A–D), and the Final Stanford study
(Letter, Att. A [attached as Appendix A],)
Regarding the FEIR’s discussion of preliminary Stanford study, MCWD submitted
preliminary comments that based on its preliminary review of the FEIR, it is evident that the
EIR/EIS’s groundwater analysis contains extensive errors that affect the FEIR’s conclusion
based on the author’s misinterpretation of the draft Stanford report. In support its comments,
MCWD submitted a technical memorandum from Aqua Geo Frameworks, LLC (“AGF”),
who collaborated with Stanford University on the AEM geophysical investigation, addresses
FEIR’s geophysics discussion. (Letter, Att. A.) The AGF memo explains that the concerns
51
pointed out in the FEIR, including those of the HWG relating to the inversion results and a
lack of borehole control logs on the one cross-section examined had been addressed in the
final Stanford report. (Id. at p. 1, see also p. 22 [explaining 318 boreholes used in the final
Stanford report’s analysis demonstrates that there are sufficient control points in the AEM
investigation area to provide a high level of confidence in the survey] and Figure 12
[showing location of boreholes].) AGF also explains why that the Master Response’s
analysis of preliminary data from the Stanford study was scientifically unsupportable and
that HWG’s computations resulted in inaccurate TDS value for the region. (Id. at pp. 1 and
4–7.) The memo establishes that the statement by the HWG authors that the AEM resistivity
values are “inconsistent with actual data in the region” is inaccurate. (Id. at pp. 1 and 8-10.)
AGF next explains why AEM data presented in the Stanford profile in Figure 2 is
representative of the TDS in the area. The AGM memo further notes that HWG single
comparison, upon which the FEIR relies, is a comparison of apples and oranges noting that
they did not understand why the HWG choose to ignore this potential drinking water source
zone when determining where they would put screens for MW‐7S and MW‐7M, which they
improperly used for the comparison. (Id. at pp. 1 and 8-10.)
The MCWD Letter also attached comments from two expert hydrogeologists
explaining how the final Stanford study confirmed its prior comments that the EIR’s
description of baseline groundwater conditions was not supported by the available data or the
best available science. (Letter, Att. C, pp. 2, 4 and Att. D, pp. 1-14.) These comments also
explain the FEIR did not correct the DEIR’s misleading statements regarding the EIR’s
inaccurate description of baseline groundwater conditions and disregarded multiple lines of
evidence provided by MCWD that demonstrate that significant fresh groundwater exists in
52
these aquifer zones. (Ibid.) They also explain that water quality data from Project monitoring
well MW-4S show that TDS concentrations in groundwater at this location have declined to
less than 3,000 mg/Lin recent months. (Letter, Att. C, p. 2 and Att. D, pp. 15-18.) As the
comments explain, TDS levels less than 3,000 mg/L are considered suitable, or potentially
suitable, for municipal or domestic water supply and MW-4S is screened in the Dune Sand
Aquifer and located within the predicted extent of the Project slant well capture zone, an area
which will be inundated with saline water. (Ibid.)
These errors are compounded by the EIR/ responses to comments that indicate the
EIR was updated to reflect current information on groundwater quality, but nonetheless
failing to correct the misleading MCWRA seawater intrusion maps to reflect groundwater
conditions in the project area or any of the unsupported conclusions in Section II.C.1.b,
supra. (FEIR, § 8.5.2, p. 8.5-682.) 14 Instead, the FEIR attempts to excuse these errors by
suggesting the statement were considered the best available information at the time the
EIR/EIS was prepared. (Ibid.) As MCWD noted in its comments, the HWG itself has
acknowledged the lack of data to support the MCWRA seawater instruction maps prior to the
14
Nor does the FEIR’s reference to updated appendices comply with CEQA. As the
California Supreme Court has emphasized, “the data in an environmental document must be
presented in a manner calculated to adequately inform the public and decision makers, who
may not be previously familiar with the details of the project. Information ‘scattered here and
there in EIR appendices’ or a report ‘buried in an appendix,’ is not a substitute for ‘a good
faith reasoned analysis.’” (Vineyard, supra, 40 Cal.4th at 442.) It is not the public’s
responsibility to comb the record and cobble together baseline information. That burden falls
squarely on the Commission. (See also Save our Peninsula Committee, supra, 87
Cal.App.4th at p. 128 [“If an EIR fails to include relevant information and precludes
informed decisionmaking and public participation, the goals of CEQA are thwarted and a
prejudicial abuse of discretion has occurred.”].) By failing to provide a complete and
accurate description of existing conditions (i.e., baseline), the FEIR is inadequate as an
informational document as a matter of law.
53
publication of the DEIR. (See e.g., “Ex. MCD-33” [HWG member Martin Feeney analyzed
the data and conceded the conclusions were based on unsupported conjecture and the lack of
data was “pretty shocking, really”].) This error is highly prejudicial because it misleads the
public and Commissioners into believing that the Project couldn’t possibly harm the coastal
aquifers in the Project area.
The DEIR/EIS’s omissions and misleading statements regarding water levels and
water quality in the project area, particularly the North Marina Subarea, obscure the project’s
potentially significant impacts to groundwater. As noted above, the SWRCB found that
studies, including aquifer testing, are needed to determine the extent of the Dune Sand
Aquifer and to establish accurate baseline conditions. This is also a fundamental CEQA
requirement. (See Cadiz, supra, 83 Cal.App.4th 74, 86, [holding EIR was not in compliance
with CEQA because the EIR does not discuss the volume of the aquifer groundwater,
particularly potable water, which is a valuable and relatively scarce resource in the region].)
As the Court explained in Cadiz: “Despite the [Project] EIR’s enormity and the length
of time devoted to preparing it, the EIR is not in compliance with subdivision (c) of CEQA
Guidelines section 15125 because the EIR does not discuss the volume of the aquifer
groundwater, particularly potable water, which is a valuable and relatively scarce resource in
the region. The EIR does not provide a sufficient description of the environmental setting or
adequate information for the public and governmental agencies to evaluate whether the
[Project] presents a significant adverse impact on the groundwater contained in the aquifer.
In order to weigh and evaluate the risk of groundwater contamination, the volume of water
subject to contamination is required… In turn, an informed decision cannot be made as to
whether it is worth taking the risk of subjecting a valuable water source to contamination.”
54
(83 Cal.App.4th at p. 92.) The same is true here. The EIR has not, but must, disclose the
volume of the groundwater in the Dune Sand, 180-FTE, and 400-FTE and Deep Aquifers,
particularly potable water, that may be impacted by the MPWSP over the life of the project.
Save our Peninsula Committee v. Monterey County Board of Supervisors, supra, 87
Cal.App.4th at 121-122 is also on point. In that case, the court explained that CEQA requires
“preparers of [an] EIR [to] conduct the investigation and obtain documentation to support a
determination of pre-existing conditions” because “the impacts of the project must be
measured against the ‘real conditions on the ground.’” There, the developer of a proposed
residential subdivision on ranch lands had pumped a significant amount of water in the years
right before the start of environmental review, presumably in an effort to establish that water
use in existing baseline conditions was already high. The court concluded that “this treatment
of baseline water use violated the basic principles of CEQA” because “some of these figures,
although generated from recent pumping on the property, did not reflect water actually used
for irrigating the property.” (Id. at pp. 120-121.) The EIR was defective for the further reason
that the EIR did not provide a clear, consistent description of historic groundwater use, and
thus left the public to guess at the baseline conditions against which the project’s impacts
were measured.
Berkeley Keep Jets Over Bay v. Board of Port Commissioners, supra, 91 Cal.App.4th
1344 (Berkeley Jets) illustrates why the FEIR’s failure to provide “good faith” responses to
MCWD’s expert comments on baseline groundwater conditions violates CEQA. In Berkeley
Jets, the court held that an EIR was inadequate because it failed to utilize the best available
data to assess the increased emissions of toxic air contaminants from airplanes that would
result from a proposed airport expansion. (Id. at p. 1364.) In reaching this conclusion, the
55
Court stated that the EIR's response to the comments regarding the Port's use of the old
speciation profile failed to comply with CEQA's requirement that an EIR make “a good faith
effort at full disclosure.” (Guidelines, § 15151.) “ ‘ “Where comments from responsible
experts or sister agencies disclose new or conflicting data or opinions that cause concern that
the agency may not have fully evaluated the project and its alternatives, these comments may
not simply be ignored. There must be good faith, reasoned analysis in response.” ’ ”
(Berkeley Jets, supra, 91 Cal.App.4th at p. 1367, quoting Cleary v. County of Stanislaus
(1981) 118 Cal.App.3d 348, 357.)
In sum, the Final EIR/EIS does not provide an accurate and complete description of
existing groundwater conditions and groundwater beneficial uses in the area. Therefore, the
DEIR/EIS must be revised and re-circulated as MCWD explained in its comments on the
DEIR/EIS to disclose (1) how much groundwater is in the Dune Sand, 180-FTE, and 400-
FTE and Deep Aquifers, particularly potable water, that may be impacted by the MPWSP
over the life of the project; (2) the baseline water levels in the Dune Sand, 180-FTE, and
400-FTE and Deep Aquifers, in the project area and the areas that will or could be affected
by the project; and (3) the water quality in the Dune Sand, 180-FTE, and 400-FTE and Deep
Aquifers (percentage that is seawater, brackish, or fresh), that may be impacted by the
MPWSP over the life of the project. (See Pub. Recourses Code, § 21092.1, CEQA
Guidelines, § 15088.5; Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1993)
6 Cal.4th 1112 (“Laurel Heights, II”), 1124-1125.) The EIS must also address MCWD’s
comments regarding water quality data (i.e., TDS and chloride concentrations) from
monitoring wells located in the MCWD Study Area North Marina Subarea as shown in
MCWD’s comments (See, Letter, Att. C, pp. 1-2 and Fig. 3 and 4) and the results of the
56
Stanford University/Aqua Geo Frameworks Airborne Electromagnetics (“AEM”) Study (See,
Letter, Att. A,). Absent this information, the public and decisionmakers are misled into
believing groundwater in the project area has no value or beneficial uses. Moreover, as a
result of the EIR’s inadequate description of baseline conditions, the FEIR fails to fully
evaluate impacts to consider potential impacts to the overdrafted North Marina Subarea as
discussed below.
2. The EIR’s Analysis of Groundwater Impacts Is Based on Unreliable

Modeling Rather than Substantial Evidence
On Pages 4.4-39 through 4.4-52, the DEIR/EIS describes the investigation of
groundwater conditions and modeling, and provide the following assessment of the
“Limitations of Groundwater Models” at Page 4.4-44:
Groundwater models simulate aquifer conditions based on a specific set of

data that describes parameters such the subsurface characteristics, groundwater
flow, and land use. The more robust the data set, the more capable the model
will be to accurately simulate subsurface conditions. Most groundwater
models use conservative input parameters so that the output overstates the
actual aquifer response. Nevertheless, groundwater models are mathematical-
based computer programs that rely on input parameters and, consequently,
there is a degree of uncertainty. However, the models used to analyze the
proposed project have been used previously and have benefited from input
data derived from site-specific subsurface information. Given that, and given
the fact that these models were calibrated with known data, the level of degree
of uncertainty for this analysis is considered tolerable.
a) MWWD provided extensive comments, including comments from multiple

experts, explaining why the DEIR’s modeling, analysis and conclusions
regarding the MPWSP’s potential groundwater impacts are not based on
substantial evidence.
MCWD submitted expert comments explaining that the level of degree of uncertainty
in the DEIR/EIS’s modeling is intolerable given its poor calibration and the DEIR/EIS’s
failure to adequately investigate baseline conditions in the North Marina Subarea and to
57
utilize the best available information. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-189–8.5-191, 8.5-
253–8.5-258, 8.5-345–8.5-385, 8.5-398–8.5-399.) These comments further explained that
DEIR/EIS decision to abandon all the prior modeling efforts and use a superposition model
renders the DEIR/EIS’s groundwater analysis fatally defective for several reasons. (Ibid.)
First, the superposition model does not fix or improve the problems with the DEIR/EIS’s
modeling or its reliability. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-253–8.5-254, 8.5-257, 8.5-
355.) Rather, it is an improper attempt to mask the problems. (Ibid.) Moreover, as explained
by MCWD’s modeling expert, superposition modeling is inappropriate here because:
 it precludes the identification of source water of the MPWSP slant wells, which is a
key issue with the application;
 it precludes prediction of measurable groundwater elevations associated with the

proposed MPWSP slant wells pumping, which would provide the only means for
stakeholders to validate the model predictions and potential project impacts;
 it is unnecessary because it provides no benefit in terms of reliability over the use of

the calibrated version of the model for impact assessment, would identify source
water of the MPWSP slant wells and predict of measurable groundwater elevations
associated with the proposed MPWSP slant wells pumping; and
 it not reliable here to simulate cones of depression in the aquifers created by the
proposed MPWSP pumping.
(See e.g., FEIR/EIS, § 8.5.2, p. 8.5-355.) Without addressing these limitations of the
superposition model, on Page 4.4-68 the DEIR/EIS concludes:
Conclusion of Impact Analysis - Depletion of Groundwater

Supply from the SVGB
The proposed project would not deplete groundwater supplies; it

would extract primarily seawater and a smaller volume of
brackish inland groundwater from a localized area with only
minor localized groundwater drawdown. The area influenced by
the MPWSP groundwater pumping is within a zone that is
degraded by seawater intrusion and therefore unusable for
potable water supply due to its high salinity. When desalinated
58
water is returned to the basin as part of the MPWSP,
groundwater conditions in the 400-Foot Aquifer underlying the
CSIP, CCSD, and adjacent areas would improve as water levels
increase as a result of in-lieu groundwater recharge. The return
water component of the MPWSP would benefit each of the
aquifers by either reducing the area of influence or by increasing
groundwater levels in other areas. The effects of return water on
the basin water levels are discussed below and shown on
Figures 4.4-14 through 4.4-16. If the proposed project did not
return any water, localized depressed groundwater levels would
persist in the three affected aquifers throughout the life of the
project. However, the area affected by groundwater pumping
would remain localized and the proposed project would
continue to extract only brackish, degraded groundwater from
the coast and, to a lesser extent, the inland portion of the aquifer.
Based on the conclusions of this analysis, this impact would be
less than significant.
As addressed in the multiple expert opinions, the DEIR/EIS’s impact conclusion is
not supported by substantial evidence. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-308–8.5-309,
8.5-359, 8.5-399.) These experts explained that the DEIR/EIS’s assumption regarding
baseline condition and its modeling must be updated to accurately quantify the amount of
groundwater that will be pumped and required to be returned to the basin. The modified
modeling must also take into account the semi-confined condition of the 180-FTE Aquifer
and the elevated head conditions in the semi-perched Dune Sand Aquifer. As noted by
MCWD’s experts, the DEIR/EIS’s conclusion does not recognize existing conditions that
have developed since cessation of coastal pumping, including protective water levels in the
Dune Sand Aquifer along the coast. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-266.) In addition,
Groundwater production should be calculated to include the 3,000 mg/l beneficial use
standard provided in the WQCP. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-309.) The DEIR/EIS
must also be revised to include a mandatory mitigation measure that requires adequate
monitoring to detect changes to groundwater levels and quality in the Marin Subarea. The
59
mitigation must also include a meaningful performance standard to ensure impact to the
North Marina Subarea remains less than significant. The current Applicant Proposed measure
does not satisfy these fundamental CEQA requirements. (See e.g., FEIR/EIS, § 8.5.2, pp. 8.5-
191.)
In summary, MCWD experts all concluded that the DEIR/EIS impact conclusions
relating to groundwater quality are fundamentally flawed and based on modeling incapable
of assessing the MPWSP’s potential impacts to water quality.
b) Because the FEIR failed to update the DEIR’s modeling, analysis and
conclusions based on the best available information and science, its conclusions
regarding the MPWPS’s potential groundwater impact are not based on
substantial evidence.
While the FEIR acknowledged that numerous commenters expressed concerns about
the 2016 version of the North Marina Groundwater Model (referred to herein as
NMGWM2016) and its construction, calibration, and reliability, the FEIR did not update its
model. (FEIR/EIS, § 8.2.12, pp. 8.5-79–8.2-97.) Instead it downplayed the importance of the
modeling in evaluating the MPWSP’s potential impacts on groundwater resources in the
project area stating:
The NMGWM2016 was employed to calculate the water level

decline in response to proposed project pumping (see
“Introduction” of Appendix E2) -- specifically, to estimate the
cone of depression, defined as the area where the difference
between pumping and non-pumping water levels (the
drawdown) are greater than or equal to 1 foot. The model also
provided insight into the change in groundwater flow directions
in response to pumping. The NMGWM2016 was not
constructed or employed to calculate changes in water quality
and water density due to any mixing of ocean water and
groundwater, and therefore model-calculated drawdown is an
approximation.
60
(FEIR/EIS, § 8.2.12, pp. 8.2-80, emphasis added.) The FEIR then goes on to argue that the
project’s potential impacts on groundwater quality would be limited to the capture zone,
which the FEIR continues to represent is degraded by decades of seawater intrusion, making
it non-potable or suitable for irrigation supply. (FEIR/EIS, § 8.2.8, pp. 8.5-52.) In response
to MCWD’s modeling expert’s comments, the EIR/EIS dismissed GeoHydros’ comments
alleging they were based on an approach that did not “account for these changes in
groundwater-surface water interactions, and therefore, failed to account for the surface water
losses that occur in response to the new pumping stress introduced by the slant wells.
Because the drawdown calculated by the GeoHydros approach is greater than reported in
Appendix E2 and Figures 6-9, the FEIR determined that GeoHydros’ comments were not
correct. (FEIR/EIS, § 8.5.2.3, pp. 8.5-747.)
GeoHydros has reviewed the model and confirmed it did not make a mistake in its
application of the NMGWM2016 as the FEIR alleges. (Letter, Att. B., pp. 1–3.) GeoHydros
noted their assessments were limited to an evaluation of the calibrated version of the
NMGWM2016 as it was delivered by the Commission and they only added pumping to that
model as specified by the DD1-44/56 pumping scenario defined in the DEIR/EIS.
GeoHydros further explained that they checked and confirmed that all of the assignments
present in the calibrated version of the model remained identical in the pumping version of
the model and their calculation of predicted impacts were calculated by simple subtraction,
which they also confirmed is accurate. They noted the HWG’s comments, which FEIR
adopted in its responses, were not based on reviewing GeoHydros’ model files. Given these
discrepancies, GeoHydros recommended that MCWD request the Commission obtain an
independent peer review of the NMGWM2016 and associated “superposition” models as
61
well as its application of the model. They noted an independent third party reviewer should
be able to quickly access the accuracy of our application of the model. (Ibid.) 15
GeoHydros further explains that the Final EIR/EIS contention that the superposition
form of the model improves the reliability of the EIR/EIS’s predictions is not accurate:
The superposition method does not improve the reliability of the

NMGWM2016, the model from which the predicted impacts
were derived using a superposition approach. Rather, the
reliability of the predicted impacts is solely dependent on the
degree to which the NMGWM2016 adequately represents the
known hydrogeologic structure and processes, and calibrates to
observed data. The superposition method only simplifies the
performance of predictive analyses of impact to groundwater
levels due to the proposed pumping. Simplification is not a
justification for using this approach. Reliance on the outputs
derived solely from the superposition form of the
NMGWM2016 mask problems with the calibrated model that
render the EIR-EIS’s predictions of potential groundwater
impacts, specifically those related to the DSA, unreliable.
Furthermore, relying on the superposition form of the model
precludes the ability to compare predicted changes to real-world
occurrences, which diminishes the ability for practitioners and
stakeholders to use and verify the model results to assess
impacts in the future.
(Letter, Att. B., p. 3; see also 4–8.) GeoHydros also explains the NMGWM2016 remains
poorly calibrated to observed groundwater levels, specifically in the DSA, as was described
in our 2017 report as well as was noted by LBNL and others. (Id. at p. 3.) They further
15
As the FEIR recognizes Lawrence Berkeley National Laboratory (LBNL) determined that
the Hydrologic Working Group’s original version of the NMGWM was deficient (See
FEIR/EIS, § 8.2.8, pp. 8.2-29–8.2-30), but was not asked to review the 2016 version and
associated “superposition” versions to determine whether the revised version adequately
addressed the deficiencies they identified. GeoHydros further explains that the LBNL’s
concerns have been adequately addressed, particularly those related to the Dune Sand
Aquifer (DSA) and, therefore, strongly recommend the Commission obtain an independent
peer review of the NMGWM2016 and associated “superposition” models as well as its
application of the model. (Letter, Att. B., pp. 1–3.)
62
explain that because the Dune Sand aquifer is one of the MPWPS’s targeted aquifers and
assessing impacts of the proposed pumping to groundwater levels in the targeted aquifers is
the primary objective of the model, the poor calibration is a fatal flaw. (Ibid.) As result of
this fatal flaw, predicted impacts to the targeted aquifers (Dune Sand and 180-foot aquifer)
stemming from the use of the model are scientifically unsupportable, regardless of the
scientific credibility of the supporting data and analyses. (Ibid.) Based on this flaw as well as
it prior comments, GeoHydros concluded that the EIR/EIS’s conclusions regarding the
MPWSP’s groundwater impacts are not scientifically supportable. (Ibid.) They also explain
why the FEIR’s application of particle tracking as a means of inferring that groundwater
quality resulting from the proposed pumping will be improved is not supported by the facts.
(Ibid.)
Finally, the note that given that the NMGWM2016 is not capable of such predictions
because the underlying technology was not designed for those purposes as the FEIR
acknowledges (see e.g., FEIR/EIS, § 8.2.12, pp. 8.5-80), the FEIR’s decision not to us
available alternative and appropriate technologies is scientifically unsupportable (Letter, Att.
B., p. 4) and violates CEQA. (Cleveland National Forest Foundation v. San Diego
Association of Governments, supra, 17 Cal.App.5th at 445 [“By choosing a methodology
with known data gaps, SANDAG produced unreliable estimates of the amount of existing
farmland and, consequently, unreliable estimates of the transportation plan's impacts to
existing farmland. Accordingly, SANDAG failed to comply with its statutory obligation as
well as CEQA's information disclosure requirements.”].)
Berkeley Jets, supra, further illustrates why the FEIR’s failure to update and use
appropriate modeling violates CEQA. (91 Cal.App.4th 1344.) In that case the court found an
63
EIR created by the Board of Port Commissioners for the Port of Oakland was inadequate
because it failed to utilize the best available data to assess the increased emissions of toxic air
contaminants from airplanes that would result from a proposed airport expansion. (Id. at p.
1364.) The EIR used an old profile published by the California Air Resources Board (ARB)
to estimate jet aircraft emissions. During the comment period, an air quality expert criticized
the use of the 1991 speciation profile as outdated because the ARB had drafted a new
speciation profile which included a wider range of air contaminants. (Id. at p. 1365.) The
court held that “[b]y using scientifically outdated information” derived from the old profile,
the “EIR was not a reasoned and good faith effort to inform decisionmakers and the public
about the increase in ... emissions that will occur.” (Ibid.)
MCWD’s hydrology expert concurred with GeoHydros conclusions regarding the
modeling and further explained the FEIR/EIS’s conclusion regarding the MWPSP’s “Impact
on Groundwater Quality Within Slant Well Pumping Area of Influence” (FEIR/EIS, pp. 4.4-
90 and 4.4-91) is not supported by the best available science or evidence for at least three
independent reasons. (Letter, Att. D., p. 31.)
First, the FEIR/EIS’s statement that throughout the life of the project, local
groundwater quality within the capture zone could change from highly brackish (23,400
mg/LTDS to 30,900 mg/L TDS) to more saline groundwater (seawater has a TDS
concentration of about 33,500 mg/L) fails to disclose the occurrence of groundwater below
3,000 TDS within the capture zone as evidenced by the AEM study. Not only is the
FEIR/EIS’s statement that water “quality within the proposed MPWSP slant well capture
zone far exceeds the 3,000 mg/l threshold set by the SWRCB” inconsistent with the AEM
64
Study, it also fails to disclose recent MPWSP monitoring well water quality data indicating
water quality meeting this standard is present at MW-4S and MW-7S. (Letter, Att. D., p. 31.)
Second, the EIR/EIS’s conclusion that there would be no adverse water quality
impacts from MPWSP pumping outside the capture zone is not supported by the best
available evidence. As discussed above, the MWPSP’s conclusion, which is premised on the
inaccurate assumption that the groundwater gradient for Dune Sand and 180-FTE aquifers is
currently and will remain landward for the life of the project throughout the project area is
inconsistent with available evidence. It also fails disclose that MPWSP pumping will induce
seawater that continue past the location of extraction and beyond the capture zone.
Moreover, the FEIR/EIS fails to consider probable future projects under the SGMA, which
are likely to affect the groundwater gradient in the area to reach sustainability. (Letter, Att.
D., p. 31.)
Third, the FEIR/EIS recognizes that “the NMGWM2016 was not constructed or
employed to calculate changes in water quality and water density due to the mixing of ocean
water and groundwater.” (See e.g., FEIR/EIS, p. 8.5-738.) The FEIR nonetheless
acknowledges that the effects of the MPWPS pumping on seawater intrusion were evaluated
using “the NMGWM2016 with particle tracking” (FEIR/EIS, pp. 4.4-91 and 4.4-92.) As we
explained in our comments on the DEIR/EIS, given the importance of this issue, the
FEIR/EIS should have modeled the potential direct and cumulative impacts of MPWSP on
groundwater resources. And as noted above, the simplistic particle tracking included in the
FEIR/EIS fails to disclose pumping will induce the flow of seawater that will continue past
the location of extraction and beyond the capture zone or consider the likely future changes
in groundwater gradient. (Letter, Att. D., p. 31.) As another MCWD expert explained:
65
… even outside of the capture zone gradients and flow lines are
influenced by the extraction well pumping and drawdown.
Although not captured, water outside (cross-gradient) from the
capture zone is pulled towards the capture zone as water levels
are drawn down around the well. When overlaid on the Project
slant well capture zones modeled by HydroFocus (as presented
in Appendix E2 of Final EIR/EIS) (see Figure 5), these
schematic flow lines demonstrate how saline water not captured
by the slant wells will be drawn further inland. This water will
be drawn into areas where multiple lines of evidence (i.e., the
AEM Study results and water quality data from monitoring
wells MW-4S and MW-7S) show TDS concentrations in
groundwater meeting the SWRCB criteria of 3,000 mg/L or less
for a potential drinking water source (see Figure 3). As
expressed by MCWD in its comments on the Draft EIR/EIS,
further characterization of water quality and modeling are
required to assess the impacts of the Project on groundwater
conditions and provide evidence that the proposed Project will
“not harm or cause injury to other basin users”.
(Letter, Att. C., p. 4.)
The record demonstrates FEIR/EIS fails to utilize the best available information and
science to evaluate whether the MPWSP pumping will degrade in water quality in the North
Marina Subarea violates CEQA. Moreover, the FEIR/EIS’s analysis, which is limited to the
capture zone estimated by the faulty NMGWM2016 cannot be reconciled with the AEM
study or data from the MPWSP monitoring wells. For these same reasons, the FEIR/EIS
statement regarding the MPWSP’s impacts on seawater intrusion which are based on the
same unsupported assumptions and flawed modeling must be revised. The FEIR/EIS
statement that the MPWSP would provide a benefit for groundwater within basin thus is not
only inaccurate but misleads to the public and decisionmakers regarding the MPWSP
potential impacts and the need to consider mitigation or alternatives. (Letter, Att. D., p. 31-
32.) Thus, the FEIR/EIS’s conclusion that because FEIR/EIS Section 4.4 concluded the
impacts of proposed project pumping at the CEMEX property on groundwater resources
66
would be less than significant, there is no obligation to mitigate for environmental,
groundwater, and SGMA direct, indirect, and cumulative impacts from slant well pumping
must be revised. (Ibid.)
In summary, the DEIR/EIS’s inadequate investigation and disclose of baseline
conditions in the North Marina Subarea and flaws in its modeling, make it impossible for the
public or Commission to make an informed decision on the project’s potential groundwater
impacts. As discussed in the MCWD and its expert’s comments, the MPWSP will cause
significant adverse impacts to groundwater supplies and water quality in the North Marina
Subarea that must be disclosed in a revised DEIR/EIS. After those impacts are disclosed, the
DEIR/EIS must adopt all feasible mitigation or an alternative that would reduce these
impacts to a less than significant level.
3. The DEIR/EIS’s cursory treatment of cumulative impacts does not

comply with CEQA.
The DEIR/EIS concludes using a simple list approach the Project’s cumulative
groundwater impacts are less than significant stating:
Because the MPWSP combined with the possible RUWAP

desalination element would not result in a significant adverse
cumulative impact and may have beneficial consequences, and
the Salinas Valley Water Project Phase II and the Interlake
Tunnel would have beneficial effects, the cumulative effect of
these four possible projects on groundwater resources would be
less than significant. Therefore, the proposed project would not
have a cumulatively considerable contribution to a significant
cumulative impact during operations (less than significant).
(DEIR/EIS, p. Page 4.4-106.) The DEIR/EIS’s approach to assessing cumulative
groundwater impacts is inconsistent with CEQA requirements.
67
An EIR must analyze cumulative impacts because “the full environmental impact of a
proposed project cannot be gauged in a vacuum.” (Communities for a Better Environment v.
Cal. Resources Agency (2002) 103 Cal.App.4th 98, 114 (“CBE v. Resources Agency”).) The
CEQA Guidelines define cumulative impacts as “the change in the environment which
results from the incremental impact of the project when added to other closely related past,
present, and reasonably foreseeable probable future projects.” (Guidelines, § 15355, subd.
(b).) Thus, impacts that are “individually minor” may be “collectively significant.” (Ibid.)
CEQA requires a lead agency to undertake a two-step cumulative impacts analysis.
First, the agency must consider whether the combined effects from the proposed project and
other projects would be cumulatively significant. Second, the agency must then consider
whether the “proposed project’s incremental effects are cumulatively considerable.” (CBE v.
Resources Agency, supra, 103 Cal.App.4th at p. 120; Pub. Resources Code, § 21083, subd.
(b)(2); Guidelines, §§ 15355, subd. (b), 15064, subd. (h)(1).) This two-part analysis reflects
the legal and empirical reality that “the greater the existing environmental problems are, the
lower the threshold should be for treating a project’s contribution to cumulative impacts as
significant.” (CBE v. Resources Agency, supra, Cal.App.4th at p. 120.) Cursory statements of
an agency’s conclusions are inadequate under CEQA. (Laurel Heights II, supra, 6 Cal.4th at
p. 1124.) The DEIR/EIS’s analysis of cumulative impacts to the SVGB violates these CEQA
principles in several important ways as discussed below.
First, the EIR/EIS’s analysis of cumulative impacts fails to account for how
groundwater conditions have changed over time and how they are likely to change in the
future without the project. In fact, the FEIR/EIS acknowledges its modeling “only solves for
the groundwater changes due solely to the proposed project.” It goes on to expressly state:
68
These changes are independent of the effects from the other
stresses on the basin such as seasonal climate and agricultural
pumping trends, other pumping wells, injection wells, land use,
or contributions from rivers. By using superposition, the actual
effects of only the proposed project can be isolated from the
combined effects of all other basin activity. For example, when
the NMGWM reports a 1-foot drawdown in a well, it is
understood that the one foot of drawdown would be the effect
on the basin of the proposed project only. That well may
experience greater drawdown due to other stresses, such as
drought or other nearby pumping wells, or may experience
increases in water levels due to reduced regional pumping or an
extremely wet year. But the proposed project’s contribution to
that drawdown in the well would remain only 1-foot.
Superposition is described in Appendix E2, Section 5.2.
(FEIR/EIS, § 4.4.4.2, p. 4.4-55.) The FEIR/EIS suggests this limited approach to
figuratively assessing the project’s potential cumulative impacts to groundwater is
permissible because baseline conditions reflect the contributions of past actions on
groundwater resources within the geographic scope. (FEIR/EIS, § 4.4.6, p. 4.4-103.) As
explained in the attached HGC Comments, this approach ignores that groundwater conditions
have changed over time under baseline conditions and will continue to change in the future
from other stressors. (See e.g., FEIR/EIS, § 8.5.2, p. 4.5.2-273. 4.5.2-322-323.) As noted
above, the DEIR/EIS acknowledges but then ignores this possibility in its assessment of
potential impacts. As MCWD’s expert explained, the fact that the modeling exists and has
been run for the project (but the results not disclosed) and that it address these additional
stressors is inexplicable. Even if the DEIR/EIS preparers believe this modeling provides
flawed results, the information must be disclosed (with an explanation regarding the flawed
results) so the public can comment on the information and the decision makers can take it
into account. (Ibid.) The FEIR did not provide a direct response to this comment.
(FEIR/EIS, § 8.5.2.2, 8.5-737)
69
Second, the DEIR/EIS’s cumulative impacts analysis for groundwater supply impacts
improperly relies on its discussion in Impact 4.4-3 that groundwater levels would be
expected to decrease by 5 or more feet within approximately 1 mile of the MPWSP
subsurface slant wells as basis for considering which projects to include in its analysis of
cumulative impacts on groundwater supply. (FEIR/EIS, § 4.4.6, p. 4.4-106.) Based on this
incorrect assumption, the DEIR/EIS then limits its discussion of cumulative impacts to the
Salinas Valley Water Project Phase II (No. 1), the RUWAP Desalination Element (No. 31),
and the Slant Test Well Project (No. 47) on the basis that these projects are the only other
projects that would overlap with the project’s presumed drawdown footprint. It then, without
disclosing potential combined drawdown effects of these projects on existing wells, states
because these three projects would not result in any net decrease to groundwater within the
SVGB there would be no potential cumulative groundwater impacts and adopts the same less
than significant conclusion reached for Impact 4.4-3. (FEIR/EIS, § 4.4.6, p. 4.4-105–106.)
This approach is inadequate and must be revised to address the following deficiencies.
 The FEIR/EIS fails to address how the project would impact the SVGB,
particularly the North Marina Subarea of the SVGB, overdraft conditions and
state law requirements for the Groundwater Sustainability Plan that must be
adopted to address this issue. (Letter, Att. C., p. 2, 5-6 and Att. D, pp. 28-30.)
It is reasonably foreseeable that at least one Groundwater Sustainability Plan
will be adopted that regulates groundwater extractions within the project area.
Therefore, the DEIR/EIS must be revised to address and mitigate the project’s
potential adverse impacts on such a Plan’s ability to achieve groundwater
sustainability within the project area. (See Friends of the Eel River v. Sonoma
County Water Agency (2003) 108 Cal.App.4th 859, 872 [EIR failed to comply
with CEQA because its cumulative impacts analysis did not consider potential
curtailment of water supplies that could result from regulatory proceedings,
which result in “an underestimation of the Agency’s ability to meet customer
demands without negative environmental consequences.”].)
70
 The DEIR/EIS also fails to discuss how the project could adversely impact
environmental gains realized by ongoing water conservation projects in the
area. (Letter, Att. C., p. 2, 5-6 and Att. D, pp. 28-30.)
 The DEIR/EIS also fails to address how increased water use from many of the
regional projects will affect groundwater supplies. The DEIR/EIS incorrectly
assumes that only past, present and future “water supply projects” within the
radius of influence of the project will impact the SVGB and North Marina
Subarea. (Guidelines, § 15130, subd. (b) (3).) As explained in the attached
technical HGC and EKI Comments, the DEIR/EIS’s analysis of cumulative
impacts is woefully inadequate in this respect.
 The project fails to look at the cumulative impacts of the MPWSP’s test well
on groundwater supplies, groundwater quality, and impacts to biological
resources. The CCC’s approval of the slant well excluded any analysis of the
potential long-term impacts of the slant well based on its conclusion is would
be decommissioned after 2 years. The DEIR/EIS must be revised to include
this analysis, unless the slant test well will be decommissioned as provided for
in the CCC approval.
Finally, the cumulative impacts analysis must be revised to consider reasonably
foreseeable projects that will be necessary under the SGMA. See discussion of no project
alternative (FEIR/EIS, § 5.5.4.3, p. 5.5-87 [“Existing, ongoing regional groundwater
pumping would continue throughout the Salinas Valley, as would efforts to develop a
sustainable groundwater management plan.”]). As MCWD’s experts explained, the FEIR
fails to assess groundwater quality impacts from the cumulative effects of slant well
extraction and foreseeable decreases in inland hydraulic gradients, which are causing
ongoing saltwater intrusion and must be addressed under the Sustainable Groundwater
Management Act (SGMA) over the next 20 years. (Letter, Att. C., p. 2, 5-6 and Att. D, pp.
28-30.) As MCWD noted, the MCWRA completed an updated seawater intrusion study last
year that staff provided recommendations for actions that, if implemented, would slow or
halt further expansion of seawater intrusion, and impacts related thereto, in the Salinas
Valley Groundwater Basin. (Letter, Att. D, pp. 22-30.) Notably, MCWRA’s
71
recommendation would not allow the MPWSP slant wells to be approved at the CEMEX
site. Based on the MCWRA report and the SGMA’s requirements, it is reasonable to
anticipate, and indeed likely, that the new Groundwater Sustainability Agencies will
conclude that in addition to the prohibitions in pumping that will raise inland water levels
and that are already in place, other actions like enhanced recharge projects, etc. will be
required to focus on specific locations of seawater intrusion where identified. Those projects
would necessarily be designed to raise water levels and flatten or create a seaward gradient in
the project area to effectively halt seawater intrusion. (Ibid.) The FEIR does not consider
MPWSP impacts that could occur in the future with changes in local groundwater gradients
as MWCD experts noted was required here to address the MPWSP potential cumulative
groundwater impacts. (Letter, Att. C., p. 2, 5-6 and Att. D, pp. 28-30.)
As a result of these failures, the DEIR/EIS does not accurately consider whether the
project’s impacts to the SVGB are cumulatively considerable. Instead of following CEQA’s
mandate, the DEIR/EIS here portrays a fundamental misunderstanding of the statute. The
document assumes that if the project’s impacts related to groundwater are less than
significant (which they are not), then the impacts could not be cumulatively considerable.
This approach turns cumulative analysis on its head and is a plain violation of CEQA. An
EIR may not conclude that a project will not contribute to cumulative impacts simply
because it has a less than significant impact on a project level. (Kings County Farm Bureau
v. City of Hanford (1990) 221 Cal.App.3d 692, 720-21.)
In summary, the DEIR/EIS’s cumulative analysis must be revised and re-circulated
because it was reasonable and practical for the DEIR/EIS to analyze the omitted “past,
present, and probable future projects producing related or cumulative impacts,” and “their
72
exclusion prevented the severity and significance of the cumulative impacts from being
accurately reflected.” (Guidelines, § 15130, subd. (b)(1)(A); Bakersfield Citizens for Local
Control v. City of Bakersfield (2004)124 Cal.App.4th 1184, 1215.) The DEIR/EIS’s
cumulative analysis must also be revised based on updated modeling that does not ignore the
best available information regarding groundwater conditions in the project area.
D. Alternatives
CEQA requires, as its “substantive mandate,” that agencies refrain from approving
projects with significant environmental effects if there are feasible alternatives (or mitigation
measures) that would substantially lessen or avoid those effects. (Pub. Resources Code
§ 21002; Mountain Lion Foundation v. Fish and Game Commission, supra, 16 Cal.4th at
134.) Indeed, the primary purpose of CEQA is for agencies to identify alternatives (or
mitigation measures) to avoid or reduce environmental impacts. (Pub. Resources Code, §
21002 [“the procedures required by [CEQA] are intended to assist public agencies in
systematically identifying both the significant effects of proposed projects and the feasible
alternatives or feasible mitigation measures which will avoid or substantially lessen such
significant effects”].)
Accordingly, EIRs are required to identify and analyze a range of reasonable
alternatives to the project which would feasibly attain most of the basic objectives of the
project but would avoid or substantially lessen any of the significant effects of the project,
and evaluate the comparative merits of the alternatives. (Guidelines, § 15126.6, subd. (a).)
While an “EIR need not consider every conceivable alternative to a project,” it must consider
“a reasonable range of potentially feasible alternatives[.]” (Ibid.) Because an EIR must
identify ways to mitigate or avoid the significant effects that a project may have on the
73
environment, CEQA requires that the discussion of alternatives shall focus on alternatives
“which are capable of avoiding or substantially lessening any significant effects of the
project, even if these alternatives would impede to some degree the attainment of the project
objectives, or would be more costly.” (Id., § 15126.6, subd. (b).) As the Supreme Court has
noted, the EIR is considered the “heart of CEQA” and the discussion of alternatives forms
the “core” of an EIR. (In re Bay-Delta Programmatic Environmental Impact Report
Coordinated Proceedings (2008) 43 Cal.4th 1143, 1162.)
Notably, the fact that an alternative might ultimately prove to be infeasible does not
excuse the agency from analyzing that alternative in an EIR. Rather, an “EIR ‘is required to
make an in-depth discussion of those alternatives identified as at least potentially feasible.’
[Citation.]” (Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336,
1354, italics added.) “While the lead agency may ultimately determine that the potentially
feasible alternatives are not actually feasible due to other considerations, the actual
infeasibility of a potential alternative does not preclude the inclusion of that alternative
among the reasonable range of alternatives.” (Watsonville Pilots Assn. v. City of Watsonville
(2010) 183 Cal.App.4th 1059, 1087.) Differing factors come into play when the final
decision on project approval is made; at that juncture the decision-making body evaluates
whether the alternatives are actually feasible. (Guidelines, § 15091, subd. (a)(3).) At the end
of the process, after potentially feasible alternatives have been identified and analyzed in an
EIR, “the decision makers may reject as infeasible alternatives that were identified in the EIR
as potentially feasible.” (California Native Plant Society v. City of Santa Cruz, supra, 177
Cal.App.4th at 981; South County Citizens for Smart Growth v. County of Nevada (2013)
221 Cal.App.4th 316, 327.)
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Finally, as the California Supreme Court has explained, the “cursory rejection” of
proposed alternatives “does not constitute an adequate assessment of alternatives as required
under CEQA.” (Mountain Lion Foundation, supra, 16 Cal.4th at p. 136.) Instead, “[a]n EIR’s
discussion of alternatives must contain analysis sufficient to allow informed decision making
… An EIR must include detail sufficient to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by the proposed
project.” (Laurel Heights, supra, 47 Cal.3d at pp. 404–405.) A discussion of alternatives
does not foster “informed decision making” if it is “devoid of substantive factual information
from which one could reach an intelligent decision as to the environmental consequences and
relative merits of the available alternatives to the proposed project[.]” (See San Joaquin
Raptor, supra, 27 Cal.App.4th at p. 735.)
1. The EIR failed to analyze potentially feasible alternatives that could avoid or
lessen environmental impacts.
As explained in MCWD’s comments on the DEIR/EIS, there are a number of
alternatives that are at least potentially feasible—and likely actually feasible—that would
reduce or avoid environmental impacts identified in the EIR. (See e.g., FEIR/EIS, § 8.5.2,
pp. 8.5-229–8.5-247, 8.5-310–8.5-311, and 8.5-418–8.5-438.) As such, they were required to
receive detailed analysis in the EIR. (See Guidelines, § 15126.6.) Because the EIR
improperly dismissed potentially feasible alternatives in conclusory fashion, there is no
analysis or discussion comparing the impacts of the alternatives to those of the Project as
required by CEQA. (Guidelines, § 15162 [“the analysis must contain sufficient information
about each alternative to allow meaningful evaluation, analysis, and comparison with the
proposed project”]; Friends of the Eel River, supra, 108 Cal.App.4th at p. 873 [discussion of
75
alternatives must provide sufficient “information to the public to enable it to understand,
evaluate, and respond” to the agency’s conclusions].)
a) The EIR failed to analyze potentially feasible alternative intake technologies,

including Horizontal Directional Drilling that would avoid or reduce
environmental impacts.
As explained in expert comments submitted by MCWD, there are several alternative
subsurface intake technologies, including Horizontal Wells and Ranney Wells, that are likely
feasible and would avoid or reduce the MPWSP’s significant impacts that were dismissed
from consideration based on inaccurate information. (See FEIR/EIS, § 8.5.2, pp. 8 8.5-418–
8.5-438.) While the Final EIR corrected a few of the errors that were highlighted in these
comments, it includes inaccurate and incomplete information that render the Final EIR’s
conclusions regarding alternative intake technologies scientifically unsupportable.
Most notably, the Draft and Final EIRs’ failure to consider and analyze Horizontal
Directional Drilling (HDD), as an alternative to the slant wells is completely unjustified. In
response to comment from MCWD’s experts, IntakeWorks, regarding this alternative, the
Final EIR erroneously concludes that Horizontal Wells are infeasible as an intake technology
for the MPWPS and would not avoid or minimize any of the impacts associated with the
proposed action. The evidence does not support either conclusion.
First, there is ample substantial evidence proving that HDD technology is at least
potentially feasible. (See FEIR/EIS, § 8.5.2, pp. 8 8.5-418–8.5-438; Letter, Att. E.) As
explained in MCWD’s expert comments on the DEIR/EIS, HDD wells have been installed
using directional boring techniques at numerous location internationally. HDD technology is
commonly used in a wide variety of environments including crossing under waterways and
sensitive environmental areas and where other methods are more destructive or expensive.
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The comments explained in detail why HDD technology was feasible for the MPWSP,
including describing the various construction methodologies and how such wells are
operated and maintained. (See FEIR/EIS, § 8.5.2, pp. 8 8.5-424–8.5-435.) In response, the
Final EIR relied on inaccurate and incomplete information regarding HDD technology to
cursorily reject the alternative from further consideration. For instance, the discussion in the
final EIR is limited to “Neodren” subsurface intake systems. Despite the fact that MCWD’s
experts described other Horizontal Well technologies that could be employed and should
have been investigated by the Commission. Further, the bulk of the response simply
repeated, almost verbatim, from a “Subsurface Desalination Intake Feasibility Study” that
was prepared for the City of Santa Barbara. The portion of that study repeated in the Final
EIR, however, was based mostly on inaccurate 10‐year old public comments regarding a
desalination project in Carlsbad that was proposed by Poseidon. Those comments, which
portrayed Neodren subsurface intake systems as unreliable, were made by a competitor to
Poseidon, were not based on personal observations, and were factually incorrect. (Letter,
Att. E., p. 4.) Accordingly, the information relied on in the Final EIR does not constitute
substantial evidence and cannot support the Commission’s cursory rejection of HDD
technology, particularly when more recent information objectively demonstrates that HDD
technology is at least potentially feasible for the MPWSP. Indeed, the information in the EIR
seems to be intentionally limited to support only the pumping methods Cal-Am wants to use,
instead of objectively analyzing potentially feasible alternatives and mitigation measures to
address all of the project’s significant impacts. That does not suffice under CEQA. (See
Preservation Action Council v. City of San Jose, supra, 141 Cal.App.4th at 1356 [the
“applicant's feeling about an alternative cannot substitute for the required facts and
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independent reasoning” regarding the feasibility of alternatives]; Save Round Valley Alliance
v. County of Inyo (2007) 157 Cal.App.4th 1437, 1460 [An agency may not simply accept the
project proponent’s assertions about an alternative; rather, the agency “must independently
participate, review, analyze and discuss the alternatives in good faith.”].)
Second, contrary to the FEIR’s responses to comments, it is undeniable that HDD
wells would avoid or lessen the environmental impacts of the project. Foremost, all available
evidence indicates the HDD wells could be employed successfully at the proposed CEMEX
site, or other sites for the MPWSP, at a distance much further away from the coastline than
the proposed MPWSP slant wells and outside the areas were sensitive biological resources
exist. (See FEIR/EIS, § 8.5.2, pp. 8 8.5-431–8.5-432; Letter, Att. E., p. 7.) As a result, HDD
wells could completely avoid impacts to Environmentally Sensitive Habitat Areas
(“ESHAs”), which are deemed significant and unavoidable in the EIR. (Ibid.)16 The fact that
the Coastal Act includes strong protections for ESHA, which are even stricter than CEQA’s
mandates, makes the failure to analyze this alternative even more egregious. Under the
Coastal Act, ESHAs are subject to severe development restrictions, which in most cases
essentially bar development of the area in order to preserve its value for environmental or
habitat purposes. (See Pub. Resources Code, § 30240.) While there may be limited
circumstances where the Coastal Commission can override the Coastal Act’s ESHA
protections, which is not the case here where there are feasible alternatives that would avoid
impact to ESHA.
16
Moreover, the required consultation with the U.S. Fish & Wildlife Service regarding
species and habitat has not yet concluded. (EIR/EIS, § 7.1.1 at p. 7-2 (MBNMS still awaiting
biological opinion on affected species and designated critical habitat under § 7(a)(2) of U.S.
Endangered Species Act (16 U.S.C. § 1536, subd. (a(2).)
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There is also abundant evidence that HDD wells would lessen or avoid impacts to
groundwater. For instance, horizontal wells can be drilled shallower and further so they will
not tap into the 180‐ft aquifer. (See FEIR/EIS, § 8.5.2, pp. 8 8.5-431–8.5-432; Letter, Att. E.,
p. 7.) HDD wells could also be drilled to draw subsurface seawater laterally and vertically at
significantly shallower depths than the proposed slant well in a manner that would
substantially reduce (if not eliminate) the need to provide return water. (Ibid.) The Final
EIR’s unsupported statements to the contrary are based on the inaccurate assumption that
HDD wells would be drilled at the same location and to the same depth as the proposed
MPWSP slant wells. As explained above, this is not accurate and, in fact, would not be an
appropriate approach to reduce the project’s impacts.
In short, the EIR was required to analyze alternative intake technologies, including
HDD, because they are at least potentially feasible and would reduce or avoid environmental
impacts. The Final EIR’s responses to comments regarding the failure to analyze HDD in the
EIR do not cure this fatal defect. (Laurel Heights II, supra, 6 Cal.4th at p. 1124 [“Conclusory
statements unsupported by factual information will not suffice.”]; see also Habitat &
Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1305 [“CEQA
does not permit a lead agency to omit any discussion, analysis, or even mention of any
alternatives that feasibly might reduce the environmental impact of a project on the
unanalyzed theory that such an alternative might not prove to be environmentally superior to
the project. The purpose of an EIR is to provide the facts and analysis that would support
such a conclusion so that the decision maker can evaluate whether it is correct.”].)
Because the EIR fails to provide substantial evidence supporting a finding of
infeasibility for any of the alternatives suggested by MCWD, and instead rejects them out of
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hand, additional analysis is required before the Commission or Sanctuary (MBNMS) can
consider approval of the project. The EIR must be revised to include the required analysis
and recirculated for public review and comment.
b) The EIR failed to consider potentially feasible reduced-capacity alternatives,

based largely on an erroneous and unsupported supply and demand analysis.
Although the EIR analyzed reduced-capacity alternatives at two sites (Alternative 5a
and 5b), each with a capacity of 6.4 mgd, the size of the alternatives was improperly
constrained due the defective supply and demand analysis used in the EIR. As a result, even
the reduced-capacity alternatives provide vastly more water than required to meet the nine
primary project objectives. And it is beyond dispute that an alternative with less capacity
than 6.4 mgd would avoid or reduce the project’s environmental impacts, including impacts
to the critically over drafted SVGB.
The DEIR/EIS contains a bloated and unsupported water demand “need” for the
Project of 10,750 acre-feet per year (“afy”), which by itself exceeds the total water deliveries
by Cal-Am to its customers in both 2014 and 2015. (See FEIR/EIS, § 8.5.1, pp. 8.5-5.) With
the Project, Cal-Am would have a future water supply of over 16,000 afy, of which only
about 9,500 afy is for currently existing demand. The remaining 7,000 afy is for uncertain or
unspecified future uses. The DEIR/EIS fails to critically analyze and downwardly adjust this
purported “need.” (Ibid.) Cal-Am’s true “need” for new water is actually much less and
could be supplied by other projects, as discussed above in section detail in II.A.1. In fact, as
acknowledged in the EIR, Cal-Am’s annual service area demand declined consistently over a
ten-year period from 14,176 afy in 2006 to 9,545 afy in 2015. This steady decline is the
result of many factors including permanent water conservation measures and there is no
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evidence that these annual declines will not continue in the future. (FEIR/EIS, § 8.5.1, pp.
8.5-11.) In other words, the evidence shows that Cal-Am does not “need” 10,750 afy from
the Project or a total of over 16,000 afy of water supply when its existing total service area
demand is 9,545 afy and steadily declining. (FEIR/EIS, § 8.5.1, pp. 8.5-12, Mar. 29, 2017
comment of Marina, no.3, citing and discussing DEIR/EIS .) Since by its own calculations,
as restated from the DEIR/EIS in Marina’s comments and without including PWM, Cal-Am
will receive up to 6,244 afy of water from other sources in future years, its apparent true
demand and need from the Project or other water sources is at most in the range of 3,000 afy.
(Ibid.) Of course, including the 3,500 AFY PWM supply results in available sources of
9,544 AFY – which was almost precisely Cal-Am’s total demand for 2015.
These deficiencies in the project objectives also improperly skew the environmental
impact and alternatives analyses, rendering them legally inadequate. As courts have
explained, the project objectives are crucial to proper consideration and analysis of the
proposed action, especially in relation to the formulation and evaluation of project
alternatives. (See San Joaquin Raptor Rescue Center v. County of Merced, supra, 149
Cal.App.4th at 654-655.) A lead agency may not give the project objectives an artificially
narrow definition such that the range of alternatives to the proposed action is unduly
constrained. (See In re Bay-Delta Programmatic Environmental Impact Report
Programmatic Proceedings, supra, 43 Cal.4th at 1166 [; City of Santee v. County of San
Diego (1989) 214 Cal.App.3d 1438, 1455.) But that is exactly what occurred here.
As explained in MCWD’s comments on the DEIR/EIS, the supply and demand
analysis used to define the project objectives and analyze impacts and alternatives was
severely flawed. MCWD’s experts analyzed Cal-Am’s 2022 water supply sources and
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demand in accordance with the nine primary project objectives. (FEIR/EIS, § 8.5.2, pp. 8.5-
136.) Based on this analysis, an additional 1,305 afy would provide Cal-Am with a Reserve
Margin of 10%. (Ibid.) There are one or more Alternate Water Sources that could be
implemented to meet this demand without the high cost, high environmental impacts, high
energy use, and high greenhouse gas emissions of the MPWSP. But because the EIR
improperly bloated the expected demand, and failed to consider all available supplies, the
EIR omits potentially feasible alternatives that could satisfy Cal-Am’s actual needs,
including alternatives with far less capacity than 6.4 mgd.
Further, the reduced-capacity alternatives are not actually “alternatives” at all. As
acknowledged in the DEIR/EIS, Cal-Am proposed to move forward with a 6.4 mgd
desalination plant (Alternative 5a and 5b) if the GWR project is successfully implemented,
but the EIR still considered the 6.4 mgd desalination plant to be an “alternative” to Cal-Am’s
proposal. The EIR’s decision to speculate that the already approved GWR project may not
be fully implemented, without any explanation or evidence supporting that assumption, in
order to provide Cal-Am with an apparent contingency plan (which could allow Cal-Am
abandon the GWR project for purely financial reasons) fatally undermines the EIR’s
alternatives analysis and the CEQA processes. By using this dual-track approach, the EIR
violates CEQA and sets up a strawman alternative that ignores the fact the GWR Project is
already approved and moving forward. Accordingly, the EIR should have identified the
capacity for the project at 6.4 mgd and analyzed real reduced-capacity alternatives lower than
6.4 mgd, which as explain above, is both feasible and would reduce environmental impacts.
Finally, based on the EIR’s decision to compare all the alternatives to the vastly
oversized and unnecessary 9.6 MGD project originally proposed by Cal-Am (prior to the
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approval of GWR), the EIR determines that Alternative 5a paired with the GWR project, is
the environmentally superior/environmentally preferred alternative. (FEIR/EIS, § 5.6, pp.
5.6-7.) This conclusion is fundamentally flawed, however, because the EIR fails to evaluate
multiple potentially feasible alternatives that would eliminate or reduce the project’s
significant and unavoidable impacts, including alternatives with a reduced capacity lower
than the 6.4 mgd facility that Cal-Am has proposed.
2. The EIR’s conclusions regarding the Potrero Road alternative are not supported
by substantial evidence.
MCWD’s expert also provided comments explaining the Potrero Road site appears to
be a superior site for subsurface seawater intake facilities. (See FEIR/EIS, § 8.5.2, pp. 8.5-
324–8.5-328.) The comments noted that designs of slant well facilities at the Potrero Road
site would extend significantly further offshore than at the CEMEX site with a majority of
the well screen sections beneath the ocean floor. The wells are significantly shallower in
depth and located above the Salinas Valley Aquitard (SVA) only in the Dune Sand/A
Aquifer. This design and configuration would result in little impact on the 180-Foot Aquifer,
below the SVA, and is closer to the ocean floor, which is better positioned for inducing
seawater infiltration. (Id. at p. 8.5-328.) And water quality test data indicate the salinity of
the groundwater in the Dune Sand/A Aquifer at Potrero Road is virtually seawater (34,000 to
34,853 mg/l TDS). The comments also noted that DEIR’s assumed conditions that were
simulated in the model are biased by the lack of data and the model results are likely
overstating the groundwater that will be produced from the Dune Sand/A Aquifer zone and
underestimating the amount of seawater that would be produced by an intake system at the
Potrero Road site. Therefore, MCWD’s expert recommended the construction of a test well,
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like at the CEMEX site, to determine the accuracy of the aquifer hydraulic conductivity
estimations that were derived from an empirical estimation method. (Ibid.)
The FEIR summarily dismissed these expert comments stating that the current
modeling was adequate to reject the alternative. (See FEIR/EIS, § 8.5.2.3, p. 8.5-742.)
MCWD’s expert responded that the current modeling is based on inaccurate assumption and
must be calibrated with data collected from the entire pumping test period and include the
contribution from the percolation ponds and rainfall variation to adequately compare the
groundwater impacts of the Potrero Road alternative with the proposed project. (Letter, Att.
D, p. 32.) As MCWD’ expert explained, the FEIR does not address provide a meaningful
response or cite scientifically supportable information to reject this alternative and therefore,
his analysis and recommendations remain unchanged. (Ibid. ) This is especially important
given the Potrero Road alternative would avoid the MPWSP’s potential significant and
unavoidable impacts to ESHA.
3. The EIR’s discussion of the “No Project” alternative is inadequate.
The EIR is inadequate because it fails to adequately analyze the impacts of the “no
project alternative” as required under CEQA. (Guidelines, § 15126.6, subd. (e)(1).) As
explained in the CEQA Guidelines, the “no project” alternative should compare the
environmental effects of the property remaining in its existing state against environmental
effects which would occur if the project is approved. (Guidelines, § 15126.6, subd.
(e)(3)(B).) Here, the EIR fails to comply with this basic requirement.
Initially, the EIR’s cursory discussion of the no project alternative fails to address
what is reasonably expected to occur in the foreseeable future at the CEMEX project site
(i.e., any reclamation that would occur, decommissioning of test well, restoration of ESHA,
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etc.) if the project if is not approved. Instead, the EIR only discusses the effect that the no
project alternative would have on water supplies and impacts associated with those supplies.
(See DEIR/EIS, §§ 5.5.3.3 and 5.5.6.3, pp. 5.5-35–5.5-36 and pp. 5.5-118.) Even then, the
EIR’s discussion of potential water supply impacts without the project rings a false alarm,
suggesting that available water supplies would fall well short of meeting demand, when in
fact, the no project alternative, which must include the GWR project, would meet at least
most of Cal-Am’s water supply objectives and would provide 795 AFY more than Cal-Am’s
2016 demand. By painting an inaccurate picture of what would occur under the no project
alternative, the analysis in the EIR is improperly skewed in favor of the Cal-Am’s preferred
alternative and violates CEQA.
E. Other
1. The EIR’s land use ESHA analysis is inadequate.
The EIR/EIS’s discussion regarding plan inconsistency and land use impacts does not
satisfy CEQA. This is notable, because the numerous inconsistencies—especially with the
City of Marina’s LCP and Coastal Act’s ESHA policies—likely render the current MPWSP
design infeasible. (FEIR/EIS, § 8.5.2, pp., 207-210; see also § 8.5.1, pp. 5, 49-50.) First, the
land use section of the EIR/EIS claims that all policies applicable to the project and relevant
to land use are listed in Table 4.8-2. (DEIR/EIS, § 4.8.3, pp. 4.8-22.) That is obviously not
true. Table 4.8-2 includes only a tiny fraction of plans and policies that apply to the project.
(DEIR/EIS, § 4.8.3, pp. 4.8-23 - 4.8-27.) For example, in Section 4.4, Groundwater
Resources, the EIR/EIS notes that there are numerous state and local plans, policies, and
laws that apply to the project. (DEIR/EIS, § 4.4.2, pp. 4.4-32 - 4.4-40.) But the Groundwater
Resources section only includes a consistency determination for a few of these policies, and
85
none are discussed in Section 4.8, despite the DEIR/EIS’s promise that “a general overview
of these policy documents is presented in Section 4.8, Land Use, Land Use Planning, and
Recreation.” (DEIR/EIS, § 4.4.2, p. 4.4-38.)
Worse yet, the land use section, including Table 4.8-2, does not even list all of the
relevant plans and policies that were adopted specifically for the purpose of avoiding or
mitigating environmental effects – an identified threshold of significance for land use
impacts. (DEIR/EIS, § 4.4.2, pp. 4.4-32 - 4.4-40.) In fact, the table does not even include
the policies and plans that are identified in other sections of the EIR/EIS. For example, the
Terrestrial Biological Resources section alone lists 30 pages of plans and policies related to
protecting environmental resources and identifies copious inconsistencies or “potential
inconsistencies.” (DEIR/EIS, § 4.6.2, pp. 4.6-88 – 4.6-118 [Table 4.6-4].) Although
numerous inconsistencies are identified, they are not analyzed or discussed anywhere in the
EIR/EIS. (See Napa Citizens for Honest Government v. Napa County Board of Supervisors
(2001) 91 Cal.App.4th 342, 381 (EIR overturned because it did not include an adequate
discussion regarding plan inconsistencies).) Instead, the EIR/EIS simply lists the plans and
policies and states in conclusory fashion that the proposed mitigation measures would bring
the MPWSP into conformity with the plans and polices. (See, e.g., DEIR/EIS, § 4.6.5, pp.
4.6-162-164; 4.6-203-204; 4.6-219; 4.6-230; 4.6-232-233; 4.6-240-241; 4.6-245-246; 4.6-
248-250.) There is no support for these conclusions and they are likely not accurate in most
instances. Even if the EIR/EIS could accurately conclude that an impact is less than
significant after mitigation based on the thresholds of significance that does not mean the
project would be consistent with all relevant plans and policies. For example, there are
numerous local policies that prohibit development in protected habitat and ESHA, or
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otherwise seek to protect and conserve such habitat. (See DEIR/EIS, § 4.6.2, pp. 4.4-32 - 4.4-
404.6-88 – 4.6-118 [Table 4.6-4].) But the project is sited directly in ESHA and would
adversely impact protected habitat. Given the project’s inconsistency with the City of
Marina’s LCP and the Coastal Act, it is remarkable those issues are not address in this
Chapter. In fact, unless the City of Marina amends its LCP, it is doubtful that the MPWSP
can be approved. (FEIR/EIS, § 8.5.2, pp., 207-210; see also § 8.5.1, pp. 5, 49-50.) The
EIR/EIS’s failure to address this fundamental issue requires recirculation. In any event, even
if the consistency determination could be justified, CEQA requires a much better explanation
regarding how the project would be consistent with the plans or policies. The conclusory
statements in the EIR/EIS do not suffice.
Further, because the land use section includes a threshold of significance that
specifically states that a significant impact would occur the project would “conflict with any
applicable land use plan, policy or regulation of an agency with jurisdiction over the project
(including, but not limited to the general plan, specific plan, local coastal program, or zoning
ordinance) adopted for the purpose of avoiding or mitigating an environmental effect,” all of
the inconsistencies and “potential inconsistencies” identified in other sections of the EIR/EIS
must be discussed in the land use section and analyzed against this threshold. The required
analysis will likely uncover numerous significant environmental impacts that are currently
not disclosed, including some that are likely unavoidable. The EIR/EIS must also discuss
ways the inconsistencies can be avoided (either through alternatives or mitigation measures)
and whether any of the inconsistencies are indicative of any other environmental impacts.
Because the updated analysis will require adding significant new information to the EIR/EIS,
the documents must be recirculated for public review and comment.
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2. Groundwater Dependent Ecosystems.
The EIR/EIS purported analysis of groundwater dependent ecosystems (GDEs) is
woefully inadequate. Just a cursory review of the EIR/EIS figure showing “Vegetation
Communities and Potential Wetlands and Waters in the Terrestrial Biological Resources
Study Area” shows resources both within and outside the areas evaluated by the study that
are within the drawdown contours and capture zone of the project and could be adversely
impacted by the project’s reduction of water levels or water quality. (DEIR/EIS, § 4.6.1.4,
pp. 4.6-11 – 4.6-25 [Figures 4.6-1a – 4.6-1o]; see FEIR/EIS, § 4.6, pp. 8.5-197 – 8.5-199.)
Yet, the EIR/EIS fails to adequately analyze and mitigate potential impacts to the unique
biological resources. The SGMA defines adverse impacts to groundwater dependent
ecosystems as an undesirable result and further supports the need for additional analysis that
extends beyond construction related impacts and include potential Project-related impacts.
(See Letter, Att. D, p. 33.) The FEIR/EIS, however, has not identified if any potential GDE
units, defined by dominant surface hydrologic features, are present in the 180/400 Foot
Aquifer Sub-basin area in the vicinity of the Project. (Ibid.)
As explained by MCWD’s expert hydrogeologist, sustainable groundwater
management of the 180/400 Foot Aquifer Sub-basin will mitigate or minimize the
undesirable results of the depletion of interconnected surface water. (See Letter, Att. D, p.
33.) Depletion of interconnected surface water in the 180/400 Foot Aquifer Sub-basin has the
potential to impact the uses and users of groundwater in the Sub-basin by lowering the
groundwater table and negatively impacting the health of GDEs. (Ibid.)
The primary cause of groundwater conditions in the Sub-basin that could lead to
depletion of interconnected surface water is groundwater production from the Dune Sand
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Aquifer. (Letter, Att. D, p. 33.) Groundwater production from the Dune Sand Aquifer may
result in significant depletion of interconnected surface water if the groundwater levels were
lowered to an elevation below which the vegetation in the existing GDEs could not access
groundwater over a length of time that negatively affected the health of the GDE.
Historically, this condition is not believed to have occurred within the 180/400 Foot Aquifer
Sub-basin, despite a long history of groundwater production. (Ibid.)
Because the shallow Dune Sand Aquifer is not used for groundwater production,
groundwater elevations are relatively stable even during drought periods and depletion of
interconnected surface water in the 180/400 Foot Sub-basin is not currently known to be
occurring. (Letter, Att. D, p. 33.) If future projects, like the MPSWP, propose to utilize
water from the Dune Sand Aquifer, interconnected surface water could be depleted, which
could cause significant impacts to GDEs. Therefore, a complete evaluation of the effects on
existing and potential GDEs in the Project vicinity must be conducted before the Project can
be approved.
The FEIR/EIS also fails to account for potential operational impacts from the slant
well drawdown and water quality impacts on GDEs. (See FEIR/EIS, § 8.5.2, pp. 8.5-212 –
8.5-213.) The significant drawdown and changes to water quality caused by the Project have
the potential to impact wetlands and other biological resources that rely on the groundwater
within the area of Project influence. And there are potentially feasible alternatives and
mitigation measures that could avoid those impacts, including for example, Horizontal Wells
or alternative locations. (FEIR/EIS, § 8.5.2, p. 8.5-223.) The FEIR/EIS must be revised to
disclose, analyze, and mitigate potential impacts on GDEs within the operational area of
influence.
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Finally, the FEIR/EIS dismisses comments on this issue in conclusory fashion, again
without providing evidence or analysis to support the conclusions. This does not suffice
under CEQA. At the very least, CEQA requires a good faith, reasoned analysis in response
to comments raising environmental concerns. (Pub. Resources Code, § 21091, subd.
(d)(2)(B); CEQA Guidelines, § 15088, subd, (c).) The responses in the FEIR/EIS to
comments on this issue do not satisfy that standard.
MCWD reserves its right to reply to the other parties’ briefs on additional “Other”
EIR/EIS issues, including but not limited to, significant harms to ESHA, mitigation issues
and analysis of growth-inducing impacts of the proposed MPWSP.
III. PRESENT AND FUTURE PUBLIC CONVENIENCE AND NECESSITY OF

PROJECT – ENVIRONMENTAL FACTORS
In accordance with the November 21, 2017 ALJs’ Ruling and the ALJs’ April 4, 2018
email Ruling, MCWD addresses below its position on the fourth factor of Public Utilities
Code section 1002(a), “influence on the environment.” (Pub. Util. Code § 1002, subd. (a)(4);
subdivisions (a)(1), (2) and (3) have been addressed in prior briefing).) Even more so than
the record on Community Values, Recreational and Park Areas and Historical and Aesthetic
Values (see MCWD Dec. 15, 2017 Amended Opening Brief, pp. 22-27, MCWD Jan. 9, 2018
Reply Brief, pp. 22-24), the record on Influence on the Environment weighs extremely
heavily against approval of the MPWSP, as it is currently proposed by Cal-Am with slant
well intake at the CEMEX site, and drawing on the critically-overdrafted 180/400 Foot
Aquifer Sub-basin of the SVGB. MCWD has repeatedly requested and consistently been
denied a hearing before the Commission – with sworn testimony and cross-examination – on
Influence on the Environment. Such denial is contrary to requirements of statute and
90
caselaw, nor is the denial required under any hard and fast Commission rule.
When a hearing is requested under Section 1005 [of the Public Utilities Code],
as in this case, the Commission will notice and hold a hearing, and may do so
on its own motion, so that it may be apprised of any relevant factors bearing
on the issue of public convenience and necessity. [¶] Such factors include the
effect on the environment . . . .
(Northern California Power Agency v. Public Util. Com. (1971) 5 Cal.3d 370, 378; see also
D. 16-10-005, p. 5 (testimony received on selected environmental issues following issuance
of final EIR) and Aug. 25, 2014 Scoping Memo of Commissioner Picker in A.14-04-011, pp.
4, 6 (same).)
The Commission’s two-track procedure in this proceeding – separating and applying
different evidentiary standards and procedures to environmental factors affecting the public
interest than are applied to other factors affecting the public interest – means that disputed
factual issues of consequence (Evid. Code § 210) relevant to Influence on the Environment
will not be tested through testimony and cross-examination under oath. In its CEQA review,
the Commission must consider the MPWSP’s likely adverse impacts on the environment.
(Pub. Resources Code §§ 21061, 21104.) However, that does not mean that a question of
fact that happens to be relevant to environmental review may not also be relevant (Evid.
Code § 210) to other legal or factual issues that must be resolved after hearing in the course
of CPCN review under the Public Utilities Code. The EIR/EIS acknowledges as much, at
least in regard to water rights. (EIR/EIS, § 2.6, pp. 2-32 – 2-33; see also EIR/EIS, § 8.2.3,
pp. 8.2-5 – 8.2-7.)
Moreover, the Commission’s two-track approach, which allows for the determination
of facts related to Influence on the Environment under different evidentiary standards and
procedures than other relevant CPCN factors, distorts and impedes the Commission’s ability
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to weigh and balance fairly all relevant factors in determining the public convenience and
necessity. The two-track approach as utilized in this proceeding is unlawful in violation of
Public Utilities Code sections 1001 and 1002(a)(4), and the Northern California Power
Association case. (See also Ventura County Waterworks v. Public Util. Com. (1964) 61
Cal.2d 462, 465-466 (Commission required to consider public water supply alternative that
could also serve ratepayers).)
The Commission’s utilizing a two-track approach that separates the review of CPCN
issues, which the Commission has found require an evidentiary hearing, from CEQA issues,
which it has evidently determined do not require such a hearing, and relying on the CEQA
process and record to accord a lesser level of scrutiny and due process to the review of
environmental factors that must be considered and weighed in determining the public
interest, is unlawful in violation of Public Utilities Code sections 1001 and 1002 and
constitutional due process of law. The Commission has acknowledged that section 1002
imposes a "responsibility independent of CEQA to include environmental influences and
community values in our consideration of a request for a CPCN.” (D.08-12-058,
Application of San Diego Gas & Electric Company for a Certificate of Public Convenience
and Necessity for the Sunrise Powerlink Transmission Project (2008), pp. 19-20, quoting
Application of Southern California Edison for a Certificate of Public Convenience and
Necessity for the Kramer-Victor Transmission Line (1990) 37 CPUC2d 413, 453 (emphasis
in original). However, the Commission has erroneously concluded that it may properly
relegate (and demote) its examination and weighing of the factor of “influence on the
environment” under section 1002(a)(4) to the CEQA review process to ensure that the parties
“not duplicate their efforts in both portions of the proceeding.” (D.08-12-058, supra, text at
92
p. 20 and fn. 33, quoting D.00-05-028, Application of Lodi Gas Storage for a Certificate of
Public Convenience and Necessity for Gas Storage Facilities, p. 28.)
This conclusion is erroneous, as it is plain that the determinations of the Commission
based on sworn testimony and subject to cross-examination are not a “duplication” of
determinations authored by a paid consultant based on a limited and unsworn comment
process. That is particularly true where the subject of the inquiry requires an understanding
of highly technical expert opinions regarding influence on the environment, including but not
limited to the groundwater environment, that are not allowed to be cross-examined and
disputed under oath. It is also true where there is reason to believe that impermissible
conflicts of interest have undermined the fairness and impartiality of the CEQA process, and
it is true where the parties have requested, but have been denied, an evidentiary hearing on
all environmental impacts and on conflicts of interest. The failure to permit MCWD and
other parties to inquire into these important issues in the same way that parties are allowed to
inquire into other relevant factors that must considered and weighed in determining the
public interest constitutes significant constitutional and statutory error. The Commission
should either deny the application or – if the Commission agrees with Cal-Am that the
MPWSP is still necessary even in the face of ten years of declining demand – correct its error
by reopening its CPCN record to allow such inquiry.
The MPWSP as proposed is unnecessary, as discussed above, and it is also clearly
infeasible, from both a financial standpoint and a legal standpoint, as addressed in MCWD’s
December 2017 and January 2018 briefing. In MCWD’s view, the most serious legal
impediment is Cal-Am’s inability to legally withdraw brackish groundwater from the SVGB.
Because the Commission has consistently and properly disclaimed jurisdiction to determine
93
water rights, MCWD and six other parties filed a motion requesting referral of the water
rights question raised here to the SWRCB for resolution prior to the Commission granting
the requested CPCN. The issue cannot properly be resolved in the environmental review
process, as the EIR/EIS acknowledges. (EIR/EIS, § 2.6, pp. 2-31 – 2-33; § 8.2.3 (Master
Response 3), pp. 8.2-5 – 8.2-7.)
If, however, the Commission is inclined to deny the CPCN, the referral would not be
necessary as the issue of harm, or injury, to the basin and its lawful users would be rendered
moot. In any event, the Commission should commence a Phase 3 of this proceeding to
examine available and feasible alternative water supply options before granting any CPCN.
A. Public Utilities Code Section 1002(a)(4) and Other Law
As to the “influence on the environment” factor of Public Utilities Code section 1002,
the presence of highly disputed potential impacts to groundwater, along with acknowledged
substantial and unmitigable impacts to ESHA, as well as conflict with the City of Marina’s
Local Coastal Program all mitigate against the Commission’s approval of the MPWSP. The
Commission – under the “community values” prong of section 1002 – must consider the
views of the affected community. Here, the affected community that would be burdened
with virtually all of the utility infrastructure for the MPWSP and none of the benefit is the
community of Marina. Responses to DEIR/EIS comments demonstrate that the affected
community is strongly opposed to location of the project wells at the CEMEX site. (See,
e.g., EIR/EIS at § 8.5.1, pp. 8.5-21 – 8.5-23, 8.5-26, 8.5-28, 8.5-60 – 8.5-61, 8.5-77 – 8.5-79
(Mar. 29, 2017 comments 9, 17, 25, 82, 118-122 of Marina); § 8.6.1, pp.8.6-3 – 8.6-5 (first
Ag Land Trust letter); § 8.6.7, pp. 8.6-273 – 8.6-283 (Mar. 20, 2017 comments of Citizens
for Just Water); § 8.6.10, pp. 8.6-323 – 8.6-328 (Mar. 29, 2017 comments 16-21 of
94
Ecological Rights Fdn., et al.).) The Commission must bear these views in mind, as well as
consider the likely significant impacts of the project to the community’s groundwater
environment and resources as discussed above in section II.C.
In addition, the City of Marina presented evidence during the 2017 hearings that casts
doubt on Cal-Am’s ability to utilize the CEMEX site for its MPWSP slant well field, due to a
requirement for the property to be acquired by a public or non-profit entity in the near future
and maintained as public open space. (Ex. MNA-1, pp. 5-7.) The EIR/EIS acknowledges
this potential roadblock, and the need for the City of Marina to grant a Coastal Development
Permit under its Local Coastal Program, with which the industrial facilities of the MPWSP
are inconsistent. (EIR/EIS, § 3.5, p.3-68, Table 3-8; § 4.8.2.3, pp. 4.8-18, 4.8-20, 4.8-23 –
4.8-24 and Table 4.8-2.) Cal-Am has argued that its ability to utilize the property would not
be impaired by the transfer in title and change in use, but it has not produced concrete
documentation of that claim, nor does it appear that the EIR/EIS preparers were provided
access to any documentation of a permanent easement. (See EIR/EIS, § 8.2.14, pp.8.2-121 –
8.2-122 (description of terms of option to obtain permanent easement).) The Commission
should not assume or make any finding that Cal-Am has the ability to lawfully use the
CEMEX property for the MPWSP without sufficient documentation.
1. The Agency Act
The Agency Act presents a bar to the export of groundwater and to the degradation of
groundwater by the MPWSP. (Water App., ch. 52, §§ 52-8, 52-9, subd. (h)(7), 52-21.)
Although the California Constitution empowers the Commission to regulate public utilities
(Cal. Const., art. XII), the Commission’s regulatory powers do not extend to water rights.
(See EIR/EIS, § 2.6, p. 2-32; § 8.2.3, pp.8.2-6 – 8.2-7; see, also, D.10-12-016, p. 17
95
(considering and declining to interfere with state and local water agencies’ jurisdiction, in
granting a CPCN).) Long before it enacted SGMA, the Legislature vested local regulatory
power over surface and groundwater within Monterey County, including production and
conservation, in MCWRA pursuant to the Agency Act. (Water Code, Appendix, ch. 52, §
52-09; see also id., §§ 52-01 through 52-91.) Pursuant to Division 12 of the Water Code,
MCWD is empowered to manage its own, smaller service area within Monterey County.
(See Water Code §§ 30000-33901; MCWD Code §§ 1.01-7.08 and Appendices.)
As noted above, the regulation of groundwater production and conservation in the
SVGB is vested in MCWRA pursuant to the Agency Act. (Water Code, Appendix, ch. 52,
§§ 52-01 through 52-91.) The Agency Act prohibits export of SVGB groundwater outside
the basin. (Id. at § 52-21.) The Agency Act also vests MCWRA with responsibility for
protecting and conserving groundwater resources. (Id. at §§ 52-8, 52-9 at subd. (h)(7), 52-
21.) Cal-Am and MCWRA, along with several other parties, propose that the MPWSP can
comply with these requirements by implementing their June 14, 2016 return water
settlement. Although Cal-Am and the parties to that settlement assert that their agreement
ensures the MPWSP will comply with the anti-export provision of the Agency Act, they
ignore that statute’s equally important requirement of avoiding harm to the basin. (Water
Code App. ch. 52, §§ 52-8, 52-9 at subd. (h)(7), 52-21.) The EIR/EIS does not appear to
address this requirement of the Agency Act. Yet the EIR/EIS also shows that the MPWSP is
designed to, and will, exacerbate seawater intrusion in the project area, as noted above.
(EIR/EIS, § 8.2.3.4, p. 8.2-8.) The project will do so by lowering water levels while
degrading water quality and increasing salinity within at least a five-mile radius of the
project area, assuming the EIR/EIS groundwater modeling is reliable – which it is not, as
96
explained above in detail and in the Letter and attachments. (EIR/EIS, § 4.4.5.2, pp. 4.4-64
– 4.4-96; see also Appendix E-2.)
The Commission’s evidentiary record also shows – and Cal-Am’s expert Mr. Leffler
admits – that the MPWSP is intended to and will exacerbate seawater intrusion and degrade
water quality in the basin, over at least a five-mile range in the project area. (RT, Vol. 14,
Mr. Leffler for Cal-Am, p. 2369:2-11.) It will also lower water levels in the basin, at least
within the same range. (Id. at p. 2370:4-17.) Therefore, contrary to the Agency Act’s
objective of basin protection, operation of the MPWSP as proposed would clearly harm the
basin and existing lawful users of the basin. (Ibid. at 2369, 2370; see also Ex. MCD-20, pp.
3-7, 7-13 and figures there referenced; Ex. MCD-27, pp. 2-5 and figures there referenced; see
RT, Vol. 14, p. 2369:5-7 (objective of the MPWSP is to “establish a direct connection
between the aquifer and the seawater”).) This outcome would frustrate the groundwater
protection objectives of the Agency Act, as well as frustrating SGMA’s goals and the
undesirable results SGMA seeks to avoid, as discussed above. (Water Code § 10721 (x).)
Ensuring compliance with the Agency Act’s protective policies toward groundwater
in the SVGB by declining to certificate a desalination project with slant well intake from the
Dune Sand and 180/400 Foot Aquifers of the 180/400 Foot Aquifer Sub-basin of the SVGB
would complement the many years of ongoing effort by MCWRA, MCWD and other SVGB
users of groundwater that have worked so diligently and at great expense to protect the basin
in the public interest. (EIR/EIS, §§ 2.6.3, 2.6.4, pp. 2-41 – 2-43; § 4.4.2.3, p. 4.4-43; see also
Ex. MCD-1A, pp. 3, 7-10, 13-15, and exhibits there referenced.) (See also Dec. 15, 2017
Amended Opening Brief of MCWD, pp. 29-31; Jan. 9, 2018 Reply Brief of MCWD, pp. 27-
28; Jan. 21, 2014 Opening Brief of MCWD (on Large and Sizing Settlements), pp. 12-14;
97
January 2014 Opening Briefs of Salinas Valley Water Coalition, pp. 10-14 and Monterey
County Farm Bureau, pp. 3-5.) The parties to these protective actions and agreements have
spent many millions of dollars to protect the groundwater basin in the public interest. (See,
e.g., 1996 Annexation Agreement, Ex. MCD-6, pp. 9-10, as discussed above in section
II.A.2.)
The EIR/EIS notes MCWRA’s joinder in several settlement agreements as persuasive
evidence that MCWRA agrees with Cal-Am that the MPWSP would comply with the
Agency Act, providing the Return Water Settlement would also be implemented. However,
because the EIR/EIS Agency Act discussion and the return water settlement are concerned
with compliance with the non-export provision of the Agency Act, it would be speculative to
read more into MCWRA’s participation in these outdated settlement agreements, which were
entered into prior to Cal-Am’s test well program, prior to the Commission’s environmental
review, and prior to the availability of additional scientific data including the Stanford AEM
study referenced above.
2. Monterey County Desalination Ordinance
Monterey County Code of Ordinances, Title 10, Chapter 10.72 (the “Desal
Ordinance”), requires all desalination facilities in Monterey County to be publicly owned.
(Id. at § 10.72.030(b.) The Executive Summary section of the EIR/EIS properly
acknowledges that the private ownership of desalination facilities is one of the areas of
controversy concerning the MPWSP that remains to be resolved. (EIR/EIS, § ES-8, p. ES-
18.) However, the EIR/EIS does not make plain enough to the reader that the Commission’s
findings concerning its power to preempt the Desal Ordinance are advisory opinions on the
matter. (D.12-10-030, as modified by D.13-07-048.) The acknowledgement of the
98
Commission’s modification of its initial decision to make plain that that it has the authority
to preempt the Desal Ordinance only in the context of the certificated facilities of a regulated
utility is helpful, but it should be featured more prominently. Moreover, the Commission’s
earlier advisory opinions involving the possibility of preempting the Desal Ordinance failed
to consider the impacts of SGMA, which vests required preservation and protection of
groundwater resources in local authorities.
The EIR/EIS should make plain to the reader that such a conflict implicating possible
ordinance preemption could only arise if the Commission were to find – contrary to the
record before it – that the MPWSP is actually necessary and proceed to certificate the
project. In other words, if a different replacement supply source, or combination of sources,
including the No Project Alternative either alone or in combination with other sources such
as PWM expansion, can equally or better serve the public convenience and necessity, as well
as meet the Application and CEQA project objectives, the Commission may not lawfully
preempt the Desal Ordinance and certificate the MPWSP. The EIR/EIS should make this
potential outcome clear.
MCWD continues to believe that the prohibition on private ownership of desalination
facilities expressed in the Desal Ordinance reflects the strong community value of Monterey
County citizens to entrust precious groundwater and other resources to their local public
entities, rather than private corporations.
B. Other
As noted above, the Commission’s environmental review process is still tainted by
serious conflicts of interest. Dennis Williams, the holder of the patent for Cal-Am’s
proposed slant well technology, and his firm, Geoscience, have continued to participate in,
99
direct, and influence the Commission’s environmental review. Mr. Williams is one of the
four hydrogeology expert members of the so-called “Hydrogeology Working Group” or
“HWG” created by project proponents pursuant to the Large Settlement. (See EIR/EIS,
Appendix E-3, p. E-4.) The HWG’s work and opinions have directed and greatly influenced
the EIR/EIS groundwater modeling, including shaping what MCWD believes are flatly
unsupportable conclusions concerning likely significant impacts of the project on the
groundwater environment, as discussed in detail in section II.C., above. (See EIR/EIS,
Appendix E-3 (HWG’s work reviewing groundwater modeling included with Commission’s
EIR/EIS, to the exclusion of other parties’ experts’ similar work reaching contradictory
conclusions).) CEQA does not permit the lead agency to ignore relevant, conflicting
opinions from equally qualified experts while it adopts the biased opinions of the applicant’s
experts. (Consolidated Irrigation District v. City of Selma , supra, 204 Cal.App.4th at 206.)
Moreover, the Commission’s CEQA/NEPA consultant, ESA, during the course of this
proceeding has actively assisted Cal-Am’s own paid consultants in presenting their
testimony. Such interference calls into grave question the impartiality of the Commission’s
consultants and potentially requires the Commission to disregard ESA’s work entirely under
Morongo Band of Mission Indians v. California SWRCB (2009) 45 Cal.4th 731, 740-742,
which would require preparation of a new and un-conflicted EIR/EIS by a truly neutral
consultant. The Commission may not be concurrently advised by an entity that is also
assisting the applicant in advocating for project approval. (Ibid.) The mere removal of Mr.
Williams and his firm from the Commission’s roster of consultants in this matter has failed
to address the serious conflicts that are presented. Because the EIR/EIS is infected by these
conflicts, it would be improper for the Commission to rely on the conclusions of the EIR/EIS
100
regarding the MPWSP’s likely significant impacts on the environment. (Pub. Resources
Code § 21082.1, subd. (c)(3); People v. County of Kern, supra, 62 Cal.App.3d at 771; CEQA
Guidelines, § 15090, subd. (a).) The Commission must exercise its independent judgment.
(Ibid.) The groundwater modeling and groundwater impact conclusions of the EIR/EIS
should be disregarded unless they are independently verified by a neutral expert.
IV. CONCLUSION AND RENEWED REQUEST FOR ORAL ARGUMENT
The Commission has substantial evidence before it now regarding demand and supply
matters, including the data analyzed in the EIR/EIS – if not its unreasonable assumptions and
conclusions, to determine that Cal-Am’s proposed MPWSP desalination project is not
needed. The Commission therefore should deny Cal-Am’s request for a CPCN, whether or
not it determines to certify the EIR/EIS. However, due to the many deficiencies of the
EIR/EIS as discussed above, the Commission should not certify the EIR/EIS or rely upon it
to approve any project other than the No Alternative Option. As MCWD has previously
argued, the Commission could keep this proceeding open to address MCWD’s water sale
proposals and future PWM expansion, in order to ensure that Cal-Am has sufficient
resources to meet a reasonable level of projected future demand. The Commission should
also examine these sources prior to determining to grant any CPCN for the MPWSP.
If the Commission does not deny the request for a CPCN due to lack of need, or for
any other reason, it should refer the water rights question of whether Cal-Am has met its
burden to show that the MPWSP will not harm the groundwater basin or lawful users to the
SWRCB or to the courts for expedited consideration. The Commission cannot lawfully grant
a CPCN in this proceeding until it is determined by a competent tribunal whether, consistent
with standard articulated in the SWRCB’s Final Review submitted to the Commission in
101
2013, Cal-Am has met its burden of proving that the MPWSP will not engender any harm to
the SVGB or to basin users.
Pursuant to Rule 13.13(b) of the Commission’s Rules of Practice and Procedure,
MCWD has previously requested, and hereby renews its request for, oral argument before
the Commission.
DATED: April 19, 2018 Respectfully submitted,

FRIEDMAN & SPRINGWATER LLP
By: /s/ Mark Fogelman

Mark Fogelman
Ruth Stoner Muzzin
Attorneys for
MARINA COAST WATER DISTRICT
102
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BEFORE THE PUBLIC UTILITIES COMMISSION

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

MARINA COAST WATER DISTRICT’S

Attorneys for Marina Coast Water District

Commission and Other Administrative Decisions

Local Codes and Ordinances

Impact Review / Final Environmental Impact Statement (“EIR/EIS,” “FEIR/EIS” or

National Marine Sanctuary (“MBNMS”), in connection with California-American Water

Company’s (“Cal-Am’s”) application for a Certificate of Public Convenience and Necessity

Commission’s determination of environmental issues.

SUMMARY OF MCWD’S RECOMMENDATIONS

In an effort to fully ameliorate the adverse environmental impacts of Cal-Am’s illegal

Commission has before it a proposed project that threatens to engender another

environmental catastrophe – the destruction of the groundwater supply of a neighboring

jurisdiction of local agencies (ibid.).

Commission therein, together with ratepayers’ laudable permanent conservation

expansion of the already-under-construction Pure Water Monterey (“PWM”) groundwater

complete elimination of Cal-Am’s unlawful Carmel River pumping.

(“SVGB”), specifically from the critically-overdrafted 180/400 Foot Aquifer Sub-basin of

is inherently inaccurate and unreliable. If Cal-Am is determined to proceed with a

MCWD respectfully recommends that the Commission:

the EIR/EIS demonstrate; and

2) Keep this proceeding open to consider viable, cost-effective and sufficient

MCWD sales proposals.

3) If, however, the Commission agrees with Cal-Am that a

desalination project on the magnitude of 6.4 mgd or greater is

necessary and the Commission therefore declines to deny the CPCN

outright, it should refer the question of Cal-Am’s lack of any right

Control Board (“SWRCB’) or the courts for expedited resolution.3

If, upon the conclusion of that proceeding, the MPWSP were to

remain viable, the Commission would nonetheless need to revise

account in the Commission’s environmental review. (Vineyard Area Citizens for

432.) A sufficient environmental review would have concluded – in addition to

interpreted to afford the fullest protection to the environment).)

The Commission should not certify the EIR/EIS, because it is insufficient, as

preclude a finding that the project is in the public interest.

proposed MPWSP is particularly grave because Cal-Am is asking the Commission to

geographic boundaries and reflecting location of MPWSP facilities, MCWD Armstrong

64); Vol. 24, pp.. 4244-4246 (Cal-Am witness Leffler, same).)

Vol. 9, Mr. Svindland testifying for Cal-Am at p. 1592.)

1,300 AFY. (D.16-09-021, pp. 54-55.)

supply from the PWM groundwater replenishment project. (Amended Application,

deadline of December 31, 2021.

of the EIR/EIS, the Commission should deny the requested CPCN.

The EIR/EIS suffers from a number of important deficiencies, as described below:

respects, flatly inaccurate.

capacity availability in the existing MCWD-owned pipeline to carry higher-priority supply,

§4 Environmental Setting, Impacts and Mitigation Measures: As described in detail in

EIR/EIS analysis of Groundwater Impacts is based on unreliable modeling rather than

comply with CEQA.

§5 Alternatives Screening and Analysis: The EIR/EIS failed to analyze potentially

Furthermore, as discussed in more detail in section III.B below, the Commission’s

environmental review process is still tainted by serious conflicts of interest. Dennis

“superposition approach, as recommended by the HWG” in attempting to calibrate prior

concerning likely significant impacts of the project on the groundwater environment, as

reviewing groundwater modeling included with Commission’s EIR/EIS, to the exclusion of

must exercise its independent judgment in considering Cal-Am’s application. (Pub.

on potential impacts on water supply).)

Moreover, the Commission’s CEQA/NEPA consultant, Environmental Science

II. FEIR/FEIS ISSUES

the quality of the environment give primary consideration to preventing environmental

damage.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988)

47 Cal. 3d 376 (“Laurel Heights”), 390.)