The precise purpose of this application for rehearing is to “alert” the Commission to significant legal errors in D.18-09-017 and permit the Commission to correct those errors by expeditiously granting rehearing of D.18-09-017 and issuing orders that (1) deny a Certificate of Public Convenience and Necessity (“CPCN”) for the Monterey Peninsula Water Supply Project (“MPWSP” or “Project”) proposed by California-American Water Company (“CalAm”) in this Application, and (2) determine that the Final Environmental Impact Report and Environmental Impact Statement (“EIR”) for the Project is fatally inadequate and cannot be certified. This outcome is required based on grounds that are detailed herein and summarized as follows:
(1) D.18-09-017 is unlawful in failing to apply and comply with the statutory requirements of PU Code Sections 1001 and 1002 that govern the Commission’s review of an application for a CPCN for a jurisdictional “water corporation” to begin the construction of “a line, plant, or system, or of any extension thereof”;3
(2) D.18-09-071 is unlawful in wrongly certifying an inadequate Final EIR for the Project;
(3) D.18-09-071 is unlawful in failing to comply with the law applicable to Commission decisions; and
(4) D.18-09-017 is unlawful for endorsing and using a process to reach and support its decision to grant a CPCN for the Project that violates applicable law and due process principles to the prejudice of Marina and other parties and is arbitrary and capricious.4
REQUESTED RELIEF
To correct the legal errors in D.18-09-017 identified above, the Commission must grant rehearing of D.18-09-017 to find, conclude, and order that:
1. The Commission did not regularly pursue its authority in D.18-09-017 by failing to apply and comply with the statutory requirements of PU Code Sections 1001 and 1002 that govern the Commission’s review of an application for a CPCN for a jurisdictional “water corporation” to begin the construction of “a line, plant, or system, or of any extension thereof.”560
2. The Commission did not regularly pursue its authority by failing to conduct a comprehensive analysis of “community values” and other Section 1002 factors, with a focus on the disadvantaged City of Marina and other communities that are burdened by the Project.
3. The Commission did not regularly pursue its authority by failing to determine that the Project is not feasible because it lacks the necessary water rights and water supply, violates the export prohibition in the Agency Act, and is not needed when using the true future water demand for the applicable service area.
4. The Commission did not regularly pursue its authority in D.18-09-017 in its erroneous analysis of project “need” where the applicable law and record do not support a finding that the Project is required by the “public convenience and necessity” pursuant to PU Code Sections 1001 and 1002(a).
5. The Commission did not regularly pursue its authority in D.18-09-071 by certifying an inadequate EIR for the Project that fails to comply with CEQA.
6. The Commission prejudicially abused its discretion by failing to proceed in the manner required by CEQA and acting without substantial evidentiary support in adopting and certifying the EIR.
7. The Commission did not regularly pursue its authority in D.18-09-071 in failing to comply with the law applicable to Commission decisions, in part by taking action on the invalid premise that it was required to act quickly to prevent the applicant from suffering consequences caused by the applicant’s own legal violations.
8. The Commission did not regularly pursue its authority, and committed violations of the parties’ constitutional rights, by endorsing and using a process to reach and support its decision to grant a CPCN for the Project that violates applicable law and due process principles to the prejudice of Marina and other parties.
9. Based on the grounds set forth in this Application for Rehearing, the CPCN granted for the Project in D.18-09-017 must be reversed and the CPCN must be denied.
10. Based on the grounds set forth in this Application for Rehearing, the certification of the EIR in D.18-09-017 must be nullified and withdrawn.
11. Upon taking the steps above, the Commission should include an order that does the following: (1) Either (a) directs CalAm to file a new Application by which water supply alternatives based on the expanded PWM project or in response to offers from MCWD are addressed and to submit, for approval, water supply purchase agreements that may result from those alternatives, or (b) grants the Motion for a Phase 3 to consider these “promising” alternatives; and (2) directs the CEQA/NEPA team to revise the EIR to correct for the errors identified in this Application for Rehearing and to include consideration of other Project Alternatives that were not previously studied, including desalination projects smaller than the 6.4 mgd Project originally authorized in D.18-09-017, and alternative sources or offers of water supply, and then recirculate it for public review and comment.
APPLICATION OF THE CITY OF MARINA FOR REHEARING OF DECISION 18-09-017
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