ABSTRACT: Re: Application of California-American Water Company (U210W) for Approval of the Monterey Peninsula Water Supply Project and Authorization to Recover All Present and Future Costs in Rates, the MARINA COAST WATER DISTRICT’S PROTEST OF AMENDED APPLICATION 12-04-019 document copy is embedded. PROTEST AND GROUNDS MCWD protests the Amended Application for a Certificate of Public Convenience and Necessity (“CPCN”) for the proposed Monterey Peninsula Water Supply Project (“MPWSP”). The MPWSP remains essentially the same project as the North Marina alternative that the Commission previously analyzed and ultimately rejected in A.04-09-019. (See MCWD’s Protest of A.12-04-019, filed May 25, 2012, p. 2, citing D.10-12-016.) The Amended Application suffers from a number of the same legal and practical impediments that MCWD raised in its initial protest in this proceeding, and MCWD reaffirms and incorporates by reference into this protest each and every position, objection and legal argument it has raised in this proceeding, whether by its initial protest, its pleadings filed in this proceeding, its oral statements and arguments to the Presiding Officer, or otherwise.
The chief obstacle to the project described in the Amended Application is still the threshold problem of Cal-Am’s lack of an appropriative groundwater right to carry out the project in the preferred configuration, i.e., utilizing slant wells drawing from the CEMEX property in North Marina within the now-designated Critically Overdrafted 180/400 Foot Aquifer Subbasin1 of the Salinas Valley Groundwater Basin. Cal-Am admits that its test slant well draws groundwater, and that its fully operational source wells will draw far more groundwater. The State Water Resources Control Board’s assessment of this legal obstacle in July 2013 did nothing to cure this fundamental problem; rather, it simply suggested that there may be a potential path for Cal-Am to lawfully utilize for desalination purposes any groundwater pumped from source wells at the CEMEX site if Cal-Am is able to demonstrate that the project would not harm the groundwater aquifers and lawful groundwater users
within the vicinity of the CEMEX property. (Ex. MCD-17, pp. 48, 50-51.) MCWD is one of those users. The SWRCB properly emphasized that the burden falls on Cal-Am to demonstrate there will be no injury. (Id. at 46.)
MCWD believes that each of the following issues presents a serious impediment – or at least an unresolved potential impediment – to the preferred configuration for the MPWSP as proposed by Cal-Am in its Amended Application.
- Cal-Am’s lack of an appropriative groundwater right for the MPWSP;
- The Monterey County “Desal Ordinance,” Monterey County Code of Ordinances, chapter 10, section 10.72.030, subd. B, which requires public ownership of desalination facilities in Monterey County;2
- The anti-export provision of the Agency Act (Water Code Appendix, ch. 52, see sections 52-9(u) and 52-20), which requires groundwater pumped in the Salinas Valley Groundwater Basin to remain in the basin;
- A 500 acre-foot per year pumping limitation and other restrictions, which apply to the CEMEX property. (1996 Annexation Agreement, Ex. MCD-6).3
Therefore the MPWSP, in the configuration preferred by Cal-Am as set forth in its Amended Appendix H (Project Description) and filed with the Commission as part of the Amended Application, is not feasible.
Thus, any final decision by the Commission in this proceeding that approves the MPWSP in Cal-Am’s preferred configuration of intake wells drawing from the Critically Overdrafted 180/400 Foot Aquifer Subbasin at the CEMEX site would still require, and be subject to, a resolution in the appropriate judicial forum of the issue of Cal-Am’s lack of an appropriative groundwater right for the project.
MARINA COAST WATER DISTRICT’S PROTEST OF AMENDED APPLICATION 12-04-019