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Agenda

Monterey Peninsula Regional Water Authority (MPRWA)


Director's Meeting

7:00 PM, Thursday, November 8, 2018


Council Chambers
580 Pacific Street, Monterey
Monterey, California

CALL TO ORDER

ROLL CALL

PLEDGE OF ALLEGIANCE

REPORTS FROM BOARD DIRECTORS AND STAFF

PUBLIC COMMENTS
PUBLIC COMMENTS allows you, the public, to speak for a maximum of three minutes on any
subject which is within the jurisdiction of the MPRWA and which is not on the agenda. Any person
or group desiring to bring an item to the attention of the Authority may do so by addressing the
Authority during Public Comments or by addressing a letter of explanation to: MPRWA, Attn:
Monterey City Clerk, 580 Pacific St, Monterey, CA 93940. The appropriate staff person will contact
the sender concerning the details.

CONSENT AGENDA
CONSENT AGENDA consists of those items which are routine and for which a staff
recommendation has been prepared. A member of the public or MPRWA Director may request
that an item be placed on the regular agenda for further discussion

1. Approval of Minutes from April 26, 2016 and October 25, 2018 - Lindstrom

2. Approve and File Authority Checks through October 31, 2018 - Russo

PRESENTATIONS

3. Certificates of Appreciation for Departing Board Directors - Cullem

***End of Consent Agenda***

AGENDA ITEMS

4. Receive and Discuss Report from Special Counsel on State Supreme Court and CPUC
Options as of October 23, 2018 - Cullem

5. Receive Report from California-American Water on Status and Summary Schedule for the
Monterey Peninsula Water Supply Project (MPWSP) - Cooke

ADJOURNMENT
Thursday, November 8, 2018

The City of Monterey is committed to including the disabled in all of its services, programs and
activities. In compliance with the Americans with Disabilities Act, if you need special assistance
to participate in this meeting, please contact the City Clerk’s Office at (831) 646-3935.
Notification 30 hours prior to the meeting will enable the City to make reasonable arrangements
to ensure accessibility to this meeting [28 CFR 35.102-35.104 ADA Title II]. Later requests will
be accommodated to the extent feasible. For communication-related assistance, dial 711 to use
the California Relay Service (CRS) to speak to City offices. CRS offers free text-to-speech, speech-
to-speech, and Spanish-language services 24 hours a day, 7 days a week. If you require a hearing
amplification device to attend a meeting, dial 711 to use CRS to talk to the City Clerk's Office at
(831) 646-3935 to coordinate use of a device.

Agenda related writings or documents provided to the MPRWA are available for public
inspection during the meeting or may be requested from the Monterey City Clerk’s Office at 580
Pacific St, Room 6, Monterey, CA 93940. This agenda is posted in compliance with California
Government Code Section 54954.2(a) or Section 54956.

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AC T I O N M I N U TE S
MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA)
Special Meeting
7:00 PM, Tuesday, April 26, 2016
CITY COUNCIL CHAMBER
440 HARCOURT AVENUE
SEASIDE, CALIFORNIA

Directors Present: Downey, Kampe, Pendergrass, Rubio, Burnett


Directors Absent: Edelen

Staff Present: Executive Director Cullem, Recording Secretary Milton, Legal Counsel
Freeman

ROLL CALL – All Present except Director Edelen

PLEDGE OF ALLEGIANCE – Led by President Burnett


REPORTS FROM BOARD DIRECTORS AND STAFF – Executive Director Cullem made
general announcements.
PUBLIC COMMENTS - None
APPROVAL OF MINUTES – No minutes to approve.
CONSENT ITEMS
On a motion by Director Rubio, seconded by Director Kampe, and carried by the following vote,
the Monterey Peninsula Regional Water Authority approved the CONSENT ITEMS:
AYES: 5 DIRECTORS: Downey, Kampe, Pendergrass, Rubio, Burnett
NOES: 0 DIRECTORS: None
ABSENT: 1 DIRECTORS: Edelen
ABSTAIN: 0 DIRECTORS: None
RECUSED: 0 DIRECTORS: None

1. Receive the Joint Motion for a Separate Phase 2 Decision on Ground Water Replenishment
(GWR)
Action: Received
Public Comment: Received from Tom Rowley and Bill Carothers
AGENDA ITEMS
2. Receive, Discuss, and Provide Direction on a "To-Do" List including Possible Additions and
Modifications to the Water Authority Policy Position Statement Currently Under Review by the
Technical Advisory Committee (TAC)
Action: Received, Discussed and Provided Direction on a "To-Do" List including
Possible Additions and Modifications to the Water Authority Policy Position Statement
Currently Under Review by the Technical Advisory Committee (TAC)
3. Receive Report, Discuss, Provide Staff Direction, and Authorize Preparation and Execution of
an Application (or other documents as necessary) to the State Water Resources Control Board
(SWRCB) on Proposed Modifications to the Previously Submitted CDO Extension Application
so as to Incorporate the CPUC EIR/EIS Schedule Delay
Action: Received report, discussed, and provided staff direction
Public comment received from Tom Rowley and John Narigi.
MPRWA Minutes Tuesday, April 26, 2016

On a motion by Director Pendergrass, seconded by Director Downey, and carried by the


following vote, the Monterey Peninsula Regional Water Authority approved the Receive Report,
Discuss, Provide Staff Direction, and Authorize Preparation and Execution of an Application (or
other documents as necessary) to the State Water Resources Control Board (SWRCB) on
Proposed Modifications to the Previously Submitted CDO Extension Application so as to
Incorporate the CPUC EIR/EIS Schedule Delay:
AYES: 5 DIRECTORS: Downey, Kampe, Pendergrass, Rubio, Burnett
NOES: 0 DIRECTORS: None
ABSENT: 1 DIRECTORS: Edelen
ABSTAIN: 0 DIRECTORS: None
RECUSED: 0 DIRECTORS: None
4. Authorize Water Authority President to send follow up letter to Governor’s Military Council
outlining any updates to the water supply project and modifications to the CDO
Action: Approved

No public comment
On a motion by Director Pendergrass, seconded by Director Rubio, and carried by the following
vote, the Monterey Peninsula Regional Water Authority approved the Authorize Water Authority
President to send follow up letter to Governor’s Military Council outlining any updates to the
water supply project and modifications to the CDO:
AYES: 5 DIRECTORS: Downey, Kampe, Pendergrass, Rubio, Burnett
NOES: 0 DIRECTORS: None
ABSENT: 1 DIRECTORS: Edelen
ABSTAIN: 0 DIRECTORS: None
RECUSED: 0 DIRECTORS: None
5. Consider a Request from Mayor -Elect Steve Dallas to Retain Jason Burnett in an Unpaid
Position as Water Authority Liaison
Action: Approved

No public comment
On a motion by Director Pendergrass, seconded by Director Downey, and carried by the
following vote, the Monterey Peninsula Regional Water Authority approved the Consider a
Request from Mayor -Elect Steve Dallas to Retain Jason Burnett in an Unpaid Position as
Water Authority Liaison:

AYES: 4 DIRECTORS: Downey, Kampe, Pendergrass, Rubio


NOES: 0 DIRECTORS: None
ABSENT: 1 DIRECTORS: Edelen
ABSTAIN: 0 DIRECTORS: None
RECUSED: 1 DIRECTORS: Burnett
ADJOURNMENT – 8:31 p.m.

ATTEST:

Lesley Milton-Rerig, Recording Secretary MPRWA President

Monterey Peninsula Regional Water Authority


Special Meeting Minutes - Tuesday, April 26, 2016
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M I N U TE S
MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA)
Special Directors Meeting
7:00 PM, Thursday, October 25, 2018
MONTEREY CITY COUNCIL CHAMBER
580 PACIFIC ST.
MONTEREY, CALIFORNIA

Directors Present: Director Edelen, President Kampe, Director Dallas, Director Roberson,
Director Carbone
Directors Absent: Director Rubio

Staff Present: Executive Director, Legal Counsel, Recording Secretary

CALL TO ORDER – 7:00 p.m.

ROLL CALL – All present except Director Rubio

PLEDGE OF ALLEGIANCE – Led by Director Carbone

REPORTS FROM BOARD DIRECTORS AND STAFF - None

PUBLIC COMMENTS – Public comment was received from Tom Rowley and John Narigi

CONSENT AGENDA

On a motion by Director Edelen, seconded by Director Carbone, and carried by the following
vote, the Monterey Peninsula Regional Water Authority approved the CONSENT AGENDA:

AYES: 5 DIRECTORS: Edelen, Kampe, Dallas, Roberson, Carbone


NOES: 0 DIRECTORS: None
ABSENT: 1 DIRECTORS: Rubio
ABSTAIN: 0 DIRECTORS: None
RECUSED: 0 DIRECTORS: None

1. Approval of Minutes from September 27, 2018 (Directors Alternate Meeting)


Action: Approved

2. Approve and File Authority Checks Through October 15, 2018


Action: Approved

***End of Consent Agenda***

***Adjourn to Closed Session***

The Directors adjourned to Closed Session at 7:14 p.m.

ANNOUNCEMENTS FROM CLOSED SESSION

Legal Counsel Freeman announced the following:

cs1. Pursuant to Government Code 54956.9. Conference with Legal Counsel on Existing
MPRWA Minutes Thursday, October 25, 2018

Litigation –
Marina Coast Water District, Petitioner, vs. Public Utilities Commission of the State of
California, Respondent. California-American Water Company, Real Party in Interest
(Pub. Resources Code § 21167.6.5) Coalition of Peninsula Businesses, County of
Monterey, Monterey County Farm Bureau, Monterey County Water Resources Agency,
Monterey Peninsula Regional Water Authority, Salinas Valley Water Coalition (Rule
8.496)
Action: Received report and decided not to participate in the lawsuit.

cs2. Pursuant to Government Code 54956.9. Conference with Legal Counsel on Existing
Litigation –
City of Marina, Petitioner, vs. Public Utilities Commission of the State of California,
Respondent. Case Number S251935 California-American Water Company, Coalition of
Peninsula businesses, County of Monterey, Monterey County Farm Bureau, Monterey
County Water Resources Agency, Monterey Peninsula Regional Water Authority, and
Salinas Valley Water Coalition, Real Parties in Interest
Action: Received report and decided not to participate in the lawsuit.

ADJOURNMENT – 7:57 p.m.

ATTEST:

Kerry Lindstrom, Clerk of the Authority MPRWA President

Monterey Peninsula Regional Water Authority


Special Directors Meeting Minutes - Thursday, October 25, 2018
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Monterey Peninsula Regional Water Authority Date: 9 Aug 2018
Agenda Report Item No: 2

FROM: Executive Director Cullem

SUBJECT: Approve and File Authority Checks Through October 31, 2018

RECOMMENDATION:

It is recommended that the Authority approve and file the payments invoiced as of Oct
31, 2018.

DISCUSSION:

At its meeting on September 12, 2013, the Authority Board approved a staff
recommendation to provide the Directors a listing of financial obligations since the last
report for inspection and confirmation. Each invoiced expense has been reviewed and
approved by the Executive Director and Finance personnel, as well as by the Water
Authority Treasurer and/or President as appropriate, prior to payment to insure that it
conforms to the approved budget.
The following checks are hereby submitted to the Authority for inspection and
confirmation: The checks for approval are:

• $160.00 to AMP for video services through October 31, 2018


• $1755.00 to Cullem Management Services, LLC- for Executive Director services
through October 31, 2018
• $5635.00 to Perry and Freeman for Legal Counsel through October 31, 2018
• $7579.12 to Brownstein, Hyatt, Farber, Schreck for Special Counsel services
through October 31, 2018

The bank balance as of 31 July 2018 was sufficient to cover the above checks,
therefore staff is recommending approval.

BUDGET UPDATE:
The Water Authority completed the FY 2017-2018 within the approved expanded
budget of $390,000 and will operate in FY 2018-2019 at an approved budget of
$200,000.

ATTACHMENTS:
None
Monterey Peninsula Regional Water Authority Date: 8 Nov 18
Agenda Report Item # 3

FROM: Executive Director Cullem

SUBJECT: Present Certificates of Appreciation to Departing Board Members

RECOMMENDATION:

The Executive Director recommends that the departing members of the Water Authority
Board be recognized for their contributions to the mission of the MPRWA and their
service to the Community.

DISCUSSION:

Certificates of Appreciation will be presented at the Board meeting.

ATTACHMENTS:

None.

№06/12
Monterey Peninsula Regional Water Authority Date: 8 Nov 2018
Agenda Report Item No: 4

FROM: Executive Director Cullem

SUBJECT: Receive and Discuss Report from Special Counsel on State Supreme
Court and CPUC Options as of Oct 23, 2018

RECOMMENDATION:

It is recommended that the Water Authority Board receive and discuss report from
Water Authority Special Counsel outlining the sequencing and timelines for the
California State Supreme Court and for the California Public Utilities Commission
(CPUC) concerning the MPWSP.

DISCUSSION:

At its meeting of October 25, 2018, following discussion in closed session, the Authority
Board elected not to take legal action in the City of Marina and MCWD Petitions for
Review to the State Supreme Court and Rehearing Requests to the CPUC.

However, the process is complicated and our Special Counsel had prepared an outline
of how the process will play out from here. A copy of that report is at attachment A.

ATTACHMENTS:

A- Special Counsel Report dated 23 October 2018.

№06/12
Memorandum

DATE: October 23, 2018

TO: MPRWA Board of Directors FILE NO: 015621.0002

FROM: Russell McGlothlin


Amy Steinfeld
Mack Carlson

RE: Monterey Peninsula Water Supply Project Petitions to California Supreme Court for
Review

I. Background

In Decision (D.) 18-09-017, the California Public Utilities Commission (“PUC”) approved the application of
California-American Water Company (“CalAm”) to build and operate its Modified Monterey Peninsula Water
Supply Project (“Project”). In addition to granting a Certificate of Public Convenience and Necessity
(“CPCN”) to CalAm, the Decision certifies the combined Final Environmental Impact Report/Environmental
Impact Statement (“EIR”) for the Project, pursuant to the California Environmental Quality Act (“CEQA”).

On October 12, 2018, Marina Coast Water District (“MCWD”) and the City of Marina (“Marina”) filed writ
petitions requesting in the California Supreme Court review of the PUC’s Decision under Public Resources
Code section 21168.6 and Public Utility Code section 1756(f). Monterey Peninsula Regional Water
Authority (“Authority”) is named as a Real Party in Interest. On October 19, 2018, a week after filing these
petitions, Marina and MCWD filed applications for rehearing of D.18-09-017 with the Commission, raising
both CEQA and non-CEQA issues. On October 23, 2018, the PUC filed a Motion to Dismiss the Petitions,
or, In the Alternative to Hold the Petitions in Abeyance (“PUC’s Motion”).

This memorandum addresses the next steps that may be taken by the PUC and the Supreme Court and
sets forth the opportunities for participation in these proceedings, along with estimated legal fees for
assisting the Authority in defending the PUC’s Decision.

II. Analysis

Public Resources Code section 21168.6 provides for writ of mandate review to the California Supreme
Court for California Environmental Quality Act (“CEQA”) actions brought under Public Resources Code
sections 21168 and 21168.5 (challenges on the basis of the review determination and for abuse of
discretion, respectively). This section provides that, in a CEQA action against the PUC, “the writ of
mandate shall only lie from the Supreme Court to such commission.” (Id.)

Public Utility Code section 1756(f) also provides that “review of decisions pertaining solely to water
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corporations shall only be by petition for writ of review in the Supreme Court.”

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In PUC decisions not involving water corporations, a writ petition can be filed in either the Supreme Court or the court
of appeal. (See Pub. Util. Code, § 1756(a).) But here, there are no grounds for the Supreme Court to send this petition

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A. Supreme Court’s review of these petitions is discretionary.

The California Supreme Court’s decision to review these petitions is discretionary pursuant to both Public
Resources Code section 21168.6 and Public Utility Code section 1756(f). (Cal. R. Ct. 8.500; see also City
of Marina, Petition for Writ of Review, p. 19 [conceding Supreme Court review is discretionary].)

Under Public Resources Code section 21168.6, the Supreme Court has never accepted a writ review
petition. (See South Coast Air Quality Management Dist. v. P.U.C. (May 11, 2007, No. S151485)
___Cal.4th___ [2007 Cal. LEXIS 5539, at *1] [review of PUC decision denied]; San Diego, City of v. P.U.C.
(Abag Publicly Owned Energy Resources) (Jan. 3, 2008, No. S151176) ___Cal.4th___ [2008 Cal. LEXIS
107, at *1] [review of PUC decision denied]; Desert Environment Conservation Assoc. v. Public Utilities
Com. (1973) 8 Cal.3d 739, 743 [review was not ripe based on PUC procedures]; Utility Consumers' Action
Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 693–694 [held in abeyance pending lower
court resolution of non-environmental issues]; Citizens Task Force On Sohio v. Board of Harbor Comrs.
(1979) 23 Cal.3d 812, 814 [improper transfer because PUC was not an indispensable party (or the lead
agency) which is necessary for review].) Thus, this would appear to be the first time the Supreme Court
has accepted review of a CEQA determination by the PUC.

However, the Supreme Court has granted writ review of PUC decisions under Public Utility Code section
1756(f). (See Monterey Peninsula Water Mgmt. Dist. v. Public Utilities Com. (2016) 62 Cal. 4th 693, 698
[granting review of a PUC decision to deny an agency-related charge].) More broadly, the Supreme Court
has granted review of writ petitions brought under Public Utility Code section 1756. However, it has only
granted review a few times in the last thirty years. (See Napa Valley Wine Train, Inc. v. Public Utilities
Com. (1990) 50 Cal.3d 370, 376 [granting review after PUC denied application for rehearing]; Camp
Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 851 [overturned due to legislative
action].) Court rules also expressly permit a court to deny a petition for a writ brought under Rule 8.496.
(Cal. R. Ct. 8.499(c).) Accordingly, there is a strong chance that the Supreme Court will not grant review
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under Public Utility Code section 1756(f).

B. There are conflicting procedural conflicts between both petitions.

For the CEQA writ, the petitioners had to file within thirty (30) days of filing the Notice of Determination,
which required the petitioners to file the writ by October 12, 2018. (Pub. Res. Code, § 21167.) Meanwhile,
under the Public Utilities Code, no petitioner can seek writ review until after the petitioner has first applied
for a rehearing. (Pub. Util. Code §§ 1731(b)(1), 1733, 1756(a).) The petitioners also timely filed petitions
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for rehearing prior to the deadline, which was October 19, 2018.

Although these provisions conflict, courts have indicated that CEQA provisions should control review
because it has the more specific of the review standards. (See Committee for a Progressive Gilroy v State
Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 859 [specific CEQA statute of limitations
governs CEQA claim against water board]; Walters v County of Plumas (1976) 61 Cal.App.3d 460, 469
[specific CEQA limitations period applies rather than more general validating action limitations period].)
Applying this precedent, judicial review of the PUC writ will presumably follow the Public Utility Code in
addition to the CEQA provisions that separately apply to CEQA cause of action.

to the court of appeal. (Pub. Util. Code, § 1756(f) [allowing only review of a complaint or enforcement proceeding to be
in the court of appeal].)
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Judicial review under Public Utility Code section 1756(f) is narrower than other forms of review. Specifically, “[judicial]
review shall not be extended further than to determine whether the commission has regularly pursued its authority,
including a determination whether the order or decision under review violates any right of the petitioner under the
Constitution of the United States or this state.” (Pub. Util. Code § 1757.1.) Under this narrow standard of review, the
Supreme Court it is arguably more unlikely that review will be granted.
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Petitioners were required to file a petition for rehearing within thirty (30) days of the PUC decision.

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However, the Supreme Court will generally not consider a writ under Public Resources Code section
21168.6 until all the other issues are settled. (See Utility Consumers' Action Network, supra, Cal.App.4th
at 693–694.) In the PUC’s Motion, the PUC asserts that the petitioners must exhaust their administrative
remedies under the Public Utilities Code before challenging portions of the CPCN concerning CEQA.
(Respondent’s Motion, at 10 [stating the two writ petitions are easily harmonized because the statute of
limitations for a CEQA action is tolled when a party must pursue administrative remedies].) Because the
petitioners decided to file a writ under the Public Utility Code and the related rehearing petition, the
Supreme Court will likely stay proceedings until PUC makes a decision on the rehearing application. By
doing so, the court will avoid potentially having to review the rehearing decision.

Assuming the Supreme Court plans to wait until PUC decides to grant or deny a rehearing, the PUC will
likely address the petitioner challenge during the rehearing process. The PUC will need to decide soon
whether to grant or deny the rehearing application. An application for rehearing not granted within sixty (60)
days may be deemed denied by the applicant, unless the PUC extends the effective date of the order for
the period of the pendency of the application. (Pub. Util. Code, § 1733.) Based on the voluminous record,
the PUC seems unlikely to grant the application for rehearing. Assuming the PUC denies the application
for rehearing, the Supreme Court will consider whether to review the writ petitions promptly after the denial.
(Pub. Util. Code, § 1756(a).)

If instead the PUC decides to grant a rehearing, the Authority can participate in the rehearing process to
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address the petitioner’s challenges and further improve the administrative record. (See Pub. Util. Code,
§§ 1756-1770; PUC Rules of Practice & Procedure 16.1-16.6 [“PUC Rule”].) The Authority could elect to
file a response to the application for rehearing by November 3, 2019. However, a response to an
application for rehearing is not required to participate in the rehearing. (PUC Rules 16.1(d), 16.3(e).) The
PUC has until December 19, 2018 to decide whether to grant the application for rehearing otherwise it will
be deemed denied.

C. Different procedural rules govern the Supreme Court writ petitions.

Two different sets of Court Rules apply to writ petitions brought under Public Resources Code section
21168.6 and Pub. Util. Code section 1756(f). Writs under of the Public Resources Code section 21168.6
follow the California Rules of Court 3.2200 – 3.2300 for CEQA writs, but there is a specific California Rule
of Court 8.496 covering writ review of a PUC decision or order. For CEQA writs, parties have ten (10) days
to respond the writ petition. (Cal. R. Ct. 3.2200.) However, PUC’s Motion is likely correct in that the CEQA
writ is not appropriate at this time. (PUC’s Motion, at 10-11.) Under Rule 8.496, within thirty-five (35) days
after the petition is filed, the PUC or any real party in interest may serve and file an answer. (Id. at (b)(1).)
This gives us thirty-five (35) days to respond to this initial petition. The petitioners will then have twenty-
five (25) days to reply. (Id. at (b)(2).)

If the Supreme Court decides to grant review of the Public Utility Code writ, the parties will answer, then file
briefs on the merits, and the Court will eventually hear oral argument and decide the case. (Cal. R. Ct.
8.520.) Based on Rule 8.496, the Court will generally follow the rules for writ review and civil litigation
under the Rules of Court under Rule 8 (Appellate Rules) and Rule 3 (Civil Rules), since the appeal is
based on the Public Utility Code. (See also Pub. Util. Code, §§ 1756-1769.) These rules permit the
appointment of a special master for complex cases at the initial case management conference. (Cal. R. Ct.
3.750(b)(11).)

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The administrative record does not certify until after the writ issues. (Pub. Util. Code, § 1756(a).) Accordingly, material
included in the rehearing administrative record will be considered by the Supreme Court if it decides to grant the writ
petitions after the rehearing. If the PUC granted a rehearing, it would be to correct any inaccuracies in its prior decision
and to supplement the administrative record in response to the petitioners’ arguments. (C.E.B. California Civil Writ
Practice, § 16.36.)

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In contrast, writ review of CEQA decisions follows specific rules. (See generally Cal. R. Ct. 3.2220-3.2300;
Pub. Res. Code, § 21167 et seq.) As discussed, CEQA are generally treated separate from other claims,
and the Supreme Court follows specific writ rules. (See Committee for a Progressive Gilroy, supra
Cal.App.3d at 859; Walters, supra, Cal.App.3d at 469.) Although the Supreme Court will likely not grant
review until after disposition of the Public Utility Code writ, if the Supreme Court grants review of the CEQA
petition, the CEQA rules provide that answers are due within ten (10) days. (See Cal. R. Ct. 3.2224.)
These rules are silent on the appointment of a special master. (See Cal. R. Ct. 3.2226; Cal. R. Ct.
3.2220(c).) Because the statute is silent on the appointment of special masters in these situations, the
Supreme Court will likely not appoint a special master.

The Supreme Court has never taken a combined Public Utility Code and CEQA writ case before. Because
we do not know how the Supreme Court will reconcile CEQA and the Public Utility Code writ procedures,
there is some uncertainty over the specific procedural rules that will apply. In theory, the Supreme Court
could harmonize these rules and appoint a special master to administer the writ petition at the initial case
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management conference.

If instead the Supreme Court chooses to deny one of the writ petitions, that decision will likely be treated as
res judicata. (In re Rose (2000) 22 Cal.4th 430, 444; Consumers Lobby Against Monopolies v. Public
Utilities Com. (1979) 25 Cal.3d 891, 901, fn. 3.) This would mean that the issues raised in that writ petition
would be settled as a matter of law.

However, as discussed above, it seems likely that the Supreme Court will either dismiss the writ petitions
or hold the petitions in abeyance until the rehearing process is complete. Accordingly, we anticipate that
the Supreme Court will not decide whether to grant review of either writ petition until after PUC acts on the
application for rehearing.

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The Supreme Court will consider “any other matters that the court finds appropriate” and “any stipulation between the
parties”, allowing the Supreme Court to consider appointment of a special master. (Cal. R. Ct. 3.2226(c)(15), (13).)

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Monterey Peninsula Regional Water Authority Date: 8 Nov 2018
Agenda Report Item No: 5

FROM: Executive Director Cullem

SUBJECT: Receive Report from Cal Am on Status and Summary Schedule for the
MPWSP

RECOMMENDATION:

It is recommended that the Water Authority Board receive an update from Cal Am on
the MPWSP in light of the CPUC issuance of the CPCN.

DISCUSSION:

At its meeting of September 13, 2018 the California Public Utilities Commission (CPUC)
certified the Monterey Peninsula Water Supply Project (MPWSP) EIR/EIS and issued
the Certificate of Public Convenience and Necessity (CPCN) authorizing Cal Am to
proceed with the desal project.

Cal Am is requested to present the MPWSP summary schedule in light of the Marina
and Marina Coast legal appeals.

Note that regular updates on the MPWSP are available at Cal Am's project web site:
www.watersupplyproject.org .

ATTACHMENTS:

None

№06/12