BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA FILED

04/05/18
04:59 PM

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and
Future Costs in Rates.

OPPOSITION OF COUNTY OF MONTEREY

AND MONTEREY COUNTY WATER RESOURCES AGENCY
TO JOINT MOTION FOR REFERRAL TO
WATER RESOURCES CONTROL BOARD

Dan L. Carroll
DOWNEY BRAND LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
Telephone: 916-520-5239
Fax: 916-520-5639
Email: dcarroll@downeybrand.com

Dated: April 5, 2018

1515278.1
 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

Application of California-American Water Application 12-04-019

Company (U210W) for Approval of the
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and
Future Costs in Rates.

OPPOSITION OF COUNTY OF MONTEREY

AND MONTEREY COUNTY WATER RESOURCES AGENCY
TO JOINT MOTION FOR REFERRAL TO
WATER RESOURCES CONTROL BOARD

I. Introduction
Pursuant to Rule 11.1(e) of the Commission’s Rules of Practice and Procedure, the
County of Monterey (“County”) and the Monterey County Water Resources Agency
(“MCWRA”) submit their Opposition to Joint Motion for Referral to State Water Resources
Control Board (“Motion”).1 The Commission long ago made clear its status as the state agency
with the authority to address the issue of legal feasibility of the Monterey Peninsula Water
Supply Project (“MPWSP”), and that it intends to decide that issue. The Moving Parties ignore
the statutory position occupied in this proceeding by MCWRA. Granting the Motion will delay
issuance of a Phase 1 decision, threatening failure to meet the pending September 30, 2018,
Cease and Desist Order (“CDO”) deadline. For all those reasons, the Commission should deny
the Motion.
II. The Commission Possesses Ample Ability and Expertise to Decide Legal Feasibility
and Long Ago Declared its Jurisdiction and Intent to Do So.
The Commission has the jurisdiction and expertise to address the issues the Motion
would have referred to the State Water Resources Control Board (“Water Board”). Attachment
22 to the Motion, including a paragraph quoted in the Motion, makes that clear, and also makes

1
The Motion was filed by Marina Coast Water District, the City of Marina, the California Unions for
Reliable Energy, Citizens for Just Water, Public Trust Alliance, Public Water Now, and Water Plus,
which will collectively be referred to herein as “Moving Parties.”
2
September 26, 2012, letter from the Commission’s Executive Director to the Water Board’s Executive
Director.

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clear that the opinion the Commission sought from the Water Board would be used by the
Commission in determining legal feasibility of the MPWSP:
The Commission generally disclaims jurisdiction to determine water rights. The
Commission does have both jurisdiction and an obligation in this instance, though,
to determine whether any claim by Cal-Am to a right to feedwater that would be
essential to the reliable operation of the proposed desalination plant is credible
enough to support a finding of legal feasibility for the Project.
Given the expertise of the Board’s staff in the field of water rights, we are asking for your
assistance as soon as possible in the Commission’s review of Cal-Am’s contention that it
will have a credible claim to the right to extract the feedwater at the rates and volume
needed for the proposed Project. We understand that the Salinas River Basin aquifer has
not been adjudicated, therefore we explicitly are not asking for a determination of water
rights. In particular, we are not invoking or requesting an exercise of the Board’s
jurisdiction or authority to adjudicate water rights. Rather we are requesting your
opinion as to whether Cal-Am’s claim to being able lawfully to extract feedwater is
credible. That opinion can inform the Commission’s determination of whether the
proposed project is legally feasible. 3
This language establishes the following. (1) The Commission asserts jurisdiction and
recognizes its obligation to assess whether Cal-Am’s water source for the desalination plant is
credible enough to support the Commission finding the MPWSP to be legally feasible. (2) The
Commission was seeking an opinion as to such credibility from the Water Board, not a
determination of anything. (3) The Commission, understanding its jurisdiction and obligation to
assess legal feasibility, expected the Water Board’s opinion to inform the Commission’s
eventual determination of legal feasibility.
The motion amounts to a declaration of doubt that the Commission possesses the ability
and expertise to assess the record (including evidence of various parties’ positions on the
question of impact on groundwater) and determine what the Commission already declared in
Attachment 2 to the Motion it would determine: whether the MPWSP is legally feasible.
Without explicitly so stating, the Moving Parties question the Commission’s ability to do what it
does repeatedly at Commission voting meetings: review the record developed by the
Commission’s Administrative Law Judges and the parties to given proceedings, and decide
whether the burden applicable in any given situation has been met.

3
Motion, Att. 2, p. 2. The Moving Parties quoted the first paragraph of this quotation on p. 5 of the
Motion. The Moving Parties did not include the rest of the quoted language in the Motion. The bold font
is added herein for emphasis.

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 Here, the Moving Parties urge referral of the following question to the Water Board:
Has Cal-Am met its burden of proof to show that operation of the MPWSP as configured
in Cal-Am’s March 14, 2016 Amended Application will result in a valid developed water
right or other water right, will not cause injury to other groundwater users and will
protect beneficial uses in the Basin?4
Assuming solely for the sake of argument that Cal-Am has such a burden of proof in this
circumstance, in requesting the Water Board, rather than the Commission, to decide whether Cal-
Am has met its burden of proof, the very formulation of this issue questions the Commission’s
ability to exercise its jurisdiction and do the job it said in September 2012 it would do.
Both the Commission’s assigned Administrative Law Judges and the Commissioners
possess ample expertise, skill and resources to make the determination of legal feasibility. There
is no need to refer anything in this proceeding to the Water Board.
III. Opponents of the Project Ignore MCWRA’s Vital Role.
The Commission has recognized that MCWRA “has the authority to manage and protect
water supply quality and quantity in Monterey County”5 and specifically concluded as a matter
of law in Decision No. 10-12-016 that “[c]ompliance with the [Monterey County Water
Resources] Agency Act is within the Monterey County Water Resources Agency’s
jurisdiction...”6
MCWRA has consistently in this proceeding protected its authority to “manage and
protect water supply quality and quantity in Monterey County.” Most specifically, it has entered
into two settlement agreements, what is now called the “Comprehensive Settlement Agreement”
and the Return Water Settlement Agreement, each of which recognizes MCWRA’s authority
under the Agency Act.7
Unlike the Moving Parties, the County and MCWRA recognize it is the Commission’s
place to assess legal feasibility of the MPWSP. The Commission may consider MCWRA’s
authority under the Agency Act in assessing the legal feasibility of the desalination component of
the MPWSP, and determine whether that authority informs the Commission’s determination of

4
Motion, p. 11.
5
D.03-09-022, mimeo, p. 11.
6
D.10-12-016, mimeo, p. 200, Conclusion of Law 44.
7
MCWRA discussed issues regarding these settlement agreements in its briefs filed in this proceeding on
December 15, 2017, and January 9, 2018, and will not burden an already massive record by repeating that
discussion here. See Concurrent Opening Brief of County of Monterey and Monterey County Water
Resources Agency, filed December 15, 2017, pp. 4-6; Concurrent Reply Brief of County of Monterey and
Monterey County Water Resources Agency, filed January 9, 2018, p. 4.

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the legal feasibility of the MPWSP. No reference regarding that, or any other issue, to the Water
Board is necessary for the Commission to exercise its jurisdiction and fulfill its obligations in
this proceeding.
IV. Moving Parties Admit Granting the Motion Will Unavoidably Cause Delay,
Requiring Denial of the Motion.
While they try to soften the blow by disclaiming intent to cause delay, the Moving Parties
admit it is unavoidable, stating that they “acknowledge that – if the requested
referral is made, and if the Commission awaits the SWRCB’s hearing and decision of the
question prior to issuing its Phase 1 decision herein – some delay will unavoidably ensue.”8
Moving Parties do not even try to provide assurance that this delay will not cause the
Commission to miss the looming September 30, 2018, CDO deadline. They opine without
factual support that it would be evident to the Water Board that various parties are working
together and that an unanticipated Water Board hearing would lead to adjustment of the current
deadline. 9 Moving Parties do not and cannot guarantee such a result. Their primary answer
seems to be that the unanticipated hearing will be held by the Water Board, which will expedite
review of a monumental record, hold evidentiary hearings, presumably permit briefing, and send
a decision to the Commission in time for the Commission then to do all it must to issue a
decision by the end of September.
Delay is not merely unavoidable if the Motion is granted. It is certain.
It would be appropriate for the Commission to ask why this motion is just being filed
now, with the CDO deadline just around the corner? Even if the Commission grants credence to
the excuse in the Motion that things changed after the Water Board provided its opinion nearly
five years ago, the Motion admits that Cal-Am’s source water revision was filed two years ago.10
Yet this Motion was not filed until 18 months later, just around the corner from a
deadline that Monterey Peninsula residents and businesses cannot afford to see missed. Those
residents and businesses must not be subject to the consequences of a missed September 30,
2018 CDO deadline. The Commission should not grant the Motion and thereby jeopardize its
ability to issue a Phase 1 decision before that deadline expires.

8
Motion, p. 2 (emphasis in original).
9
Motion, pp 9-10.
10
Motion, p. 7.

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 V. Conclusion
For the foregoing reasons, the County and MCWRA respectfully request the Commission
to deny the Motion.

Dated: April 5, 2018 Respectfully submitted,

DOWNEY BRAND LLP

By: /s/ Dan L. Carroll

Dan L. Carroll
Attorneys for County of Monterey and
Monterey County Water Resources Agency

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