MONTEREY PENINSULA REGIONAL WATER AUTHORITY (MPRWA): Legal Argument that The County is Ineligible for Membership in the Authority According to California Government Code §1099, Agency Act, Attorney General Opinion 10-903 & MPWMD Act, § 118-203

ABSTRACT:  In the context of an anticipated California Attorney General Opinion in about one year regarding the legal issue of Incompatible Offices and the Monterey Peninsula Regional Water Authority’s appointment of Supervisor Dave Potter to the Mayor’s Water Authority Board of Directors and Governance Committee, a legal argument is presented arguing that The County is Ineligible for Membership in the Authority and Specific Disqualification of Supervisor Potter.  Supporting documents, namely Government Code §1099 is reproduced, the Monterey County Water Resources Agency Act, Water Code Appendix, Chapter 52 (the Agency Act) (Agency Act §52-71), Attorney General Opinion 10-903 and West's ANNOTATED CALIFORNIA CODES WATER CODE-APPENDIX Sections 108-1 to End (MPWMD Act, § 118-203) documents, are embedded. 

LEGAL ARGUMENT FOR INCOMPATIBLE OFFICES

The County is Ineligible for Membership in the Authority

Next, even under the best of intentions, the County is not eligible to join the Authority under the JPA. Supervisor Potter, himself, is specifically ineligible to serve on the Authority board as a representative of the County on independent grounds. These findings are based upon Government Code §1099, related conflict of interest considerations and the MPWMD Law.

The JPA envisions a future water regime that would include the Authority working with agencies such as MPWMD, the Monterey County Water Resources Agency (MCWRA), the County and others, under a comprehensive water management plan. Ultimately such an integrated county-wide water management system represents the only conceivable solution to the water crisis. But the Authority must establish itself first under the terms of its own Agreement. Its members must make several fundamental decisions specifically requiring only their own consensus. It is not until then that the Authority can effectively engage with outside agencies and private interests.

Consequently, no member of the Board of Supervisors may serve on the Authority. Again, Government Code § 1099 applies. However, more specifically, the County is conflicted out of Authority membership based upon the Board of Supervisor's role as a supernumerary to MCWRA under the Monterey County Water Resources Agency Act, Water Code Appendix, Chapter 52 (the Agency Act). In particular, Agency Act §52-71, provides:

Sec. 71. Duties of Supervisors concerning litigation.

(a) The Board of Supervisors are [sic] responsible for the initiation and the conduct of any litigation by the Agency and for the settlement of any litigation.

Consequently, the Board of Supervisors would be directly involved in litigation and settlement activities if any action were to arise between the Authority and MCWRA' In anyone's reasonable estimation, such an action must be considered fairly likely. This, under an Attorney General Opinion 10-903 analysis and general conflict of interest principles, clearly precludes the County's direct participation in Authority activities.

The JPA foresees the County as ultimately an essential ally. By its terms it provides a very effective alternative to direct County membership. Paragraph 4.20 of Article 4 states that the Authority has the power:

To organize and/or participate with local agencies to form a water management group to develop and implement an Integrated Water Management Plan pursuant to Water Code sections 10530 et seq.

This is the basis for future county-wide cooperation, which is not only desirable, but ultimately essential, to resolution of the water crisis. The JPA provides a strong basis for the success of such a program, with the mayors taking the initiative on behalf of municipal water users.

Specific Disqualification of Supervisor Potter

On narrower grounds, Supervisor Potter is prima facie ineligible to serve on the Authority board. This is because, unlike Mayor Pendergrass, Mr. Potter may not forfeit his MPWMD seat.  His unique role under the MPWMD Law is that he, or his successor, is the only supervisor eligible to serve on the MPWMD board. [MPWMD Act, § 118-203] It is impossible for him to leave the MPWMD board without removal from office as a member of the Board of Supervisors.

Source: Letter to Donald G. Freeman from THE THOMPSON LAW OFFICE, Richard Glenn, Re: Monterey Peninsula Regional Water Authority (Authority) Issues, October 11, 2012.

GOVERNMENT CODE SECTION 1099 

1099.  (a)  A public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee, or other body, shall not simultaneously hold two public offices that are incompatible. Offices are incompatible when any of the following circumstances are present, unless simultaneous holding of the particular offices is compelled or expressly authorized by law:

   (1) Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body.

   (2)  Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices.

   (3) Public policy considerations make it improper for one person to hold both offices.

   (b) When two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second. This provision is enforceable pursuant to Section 803 of the Code of Civil Procedure.

   (c) This section does not apply to a position of employment, including a civil service position.

   (d) This section shall not apply to a governmental body that has only advisory powers.

   (e) For purposes of paragraph (1) of subdivision (a), a member of a multimember body holds an office that may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over another office when the body has any of these powers over the other office or over a multimember body that includes that other office.

   (f) This section codifies the common law rule prohibiting an individual from holding incompatible public offices.

AGENCY ACT

 

Monterey County Water Resources Agency Act, Water Code Appendix, Chapter 52 (the Agency Act) (Agency Act §52-71)

 52-71 Duties of Supervisors concerning litigation

Sec. 71.  Duties of Supervisors concerning litigation.

     (a) The Board of Supervisors are responsible for the initiation and the conduct of any

litigation by the Agency and for the settlement of any litigation.

     (b) The Directors or general manager shall refer all matters with respect to which litigation is  likely to the Board of Supervisors.

     (c) The chairperson of the Directors, or his or her designee, may be present during a closed  session held by the Board of Supervisors to consider matters pertaining to litigation affecting the  Agency.

ATTORNEY GENERAL OPINION NO. 10-903

 

Attorney General Opinion No. 10-903

WEST'S ANNOTATED CALIFORNIA CODES WATER CODE APPENDIX Sections 108-1 to End

 

West's ANNOTATED CALIFORNIA CODES WATER CODE-APPENDIX Sections 108-1 to End (MPWMD Act, § 118-203)

ADDENDUM:

Doctrine of Incompatible Offices

State of California Department of Justice

Office of the Attorney General

UNRESOLVED DESALINATION ISSUES: California-American Water Company Regional Desalination Project & Monterey Peninsula Water Supply Project

ABSTRACT: Unresolved desalination issues, particularly,
1. Groundwater rights to the pumping of feedwater for the desalination plant. Exportation of water from the Salinas Valley Groundwater Basin in violation of the state law (the Monterey County Water Resources Agency Act, which is part of the state water code) prohibiting such exportation; and
2. Litigation challenging the Regional Desalination Project raising issues of CEQA violations, illegal and harmful appropriation of groundwater and violation of the prohibition on groundwater export from the Salinas Valley Basin. (Ag Land Trust v. Marina Coast Water District and Ag Land Trust v. Monterey County Water Resources Agency)
require resolution prior to proceeding with California American Water Company’s Monterey Peninsula Water Supply Project, including approval of test slant wells, et cetera.
NOTE: Ag Land Trust v. Marina Coast Water District and Does 1-100, Monterey County Superior Court Case No. M105019 (First Amended Petition for Writ of Mandate and Complaint for Declaratory Relief)

Motion Hearing: 12/14/2012 9:00 A.M. Courtroom 15
EXCERPTS SUMMARY OF UNRESOLVED DESALINATION ISSUES are presented and the Monterey County Water Resources Agency Act document is embedded.

EXCERPTS SUMMARY OF UNRESOLVED DESALINATION ISSUES

Failure to adequately address groundwater rights for coastal wells to pump feedwater for the desalination plant.

Exportation of groundwater from the Salinas Valley Groundwater Basin (SVGB) in violation of state law (the Monterey County Water Resources Agency Act, which is part of the state water code) that prohibits such export.

Unanalyzed and unmitigated significant impacts of the proposed coastal wells on North County water supplies.

Uncertainty regarding the availability of desalinated water to meet regulatory requirements because of the need to retain freshwater extracted from the SVGB within the Salinas Valley.

Litigation challenging the Regional Desalination Project raising issues of CEQA violations, illegal and harmful appropriation of groundwater and violation of the prohibition on groundwater export from the Salinas Valley Basin. (Ag Land Trust v. Marina Coast Water District (set for trial on September 29, 2011) and Ag Land Trust v. Monterey County Water Resources Agency)

Source: SUBJECT: AGENDA ITEM 6A - REGIONAL DESALINATION PROJECT, California Coastal Commission, July 21, 2011, Beverly Bean President, League of Women Voters of the Monterey Peninsula

Ag Land Trust has repeatedly pointed out that the Regional Project did not have groundwater rights and would harm the groundwater supply in the overdrafted Salinas Basin. (See Exhibits A and B to this letter.) Despite Ag Land Trust's protests, the Public Utilities Commission, Marina Coast Water District, and Monterey County Water Resources Agency approved the Regional Project that has vertical wells on and around Ag Land Trust property. (See Exhibit C.) The EIR ignored the fact that Ag Land Trust has a well on its property, and that Ag Land Trust's groundwater rights and supply would be harmed by the Regional Project's pumping of groundwater as source water for the desalination plant.

The Coastal Commission should not be misled by the claims made by Downey Brand to RMC, starting with the claim that the project's source water "will" be 85% seawater and 15% groundwater. (Downey Brand letter, p. 1.) In fact, the EIR's Appendix Q predicted percentages of up to 40% groundwater in the source water throughout the 56-year modeled simulation period, which is two and two-thirds times greater than Downey Brand admits.

The Regional Project is proposed as a "solution" to the many years of illegal taking by Cal Am of water from the Carmel River. It makes no sense to exchange that illegal taking for even greater illegal taking of groundwater from the overdrafted Salinas Valley. 

The Coastal Commission does not have the authority to grant groundwater rights or to grant approval of any permit or project that relies on or causes the illegal taking of groundwater that belongs solely to the overlying landowners of the Salinas Valley. We urge the Commission to consult with its own water rights counsel, and to avoid the wrongful acts that project proponents are soliciting from the Commission.

Source: LAW OFFICES OF MICHAEL W. STAMP, July 26, 2011, Subject: Regional Desalination Project Water Rights Issues; Rebuttal to Downey Brand letter of May 20, 2011 to RMC

Litigation challenging the Regional Desalination project regarding violations of the California Environmental Quality Act, groundwater rights to the pumping of feedwater for the desalination plant, and violation of the prohibition on groundwater export from the Salinas Valley Groundwater Basin. 

Source: LandWatch

The application should be continued until (1) the PUC, Monterey County and Marina Coast Water District have approved the slant well, (2) the applicants provide proof of groundwater rights, and (3) Commission staff has provided a comprehensive analysis of the desalination project application.

6. “Slant wells are relatively new technology with few known successful uses for desalination feed water.” (FEIR, p. 7-28.)  Slant wells would not meet the objectives of the Regional Project. (FEIR, p. 7-29.)

• No operating desalination plant uses slant wells.  (FEIR, p. 3-27)

No Water Rights to Pump Groundwater, Harm to Existing Groundwater Rights, Possible Takings and Due Process Violations

The Groundwater Pumping Would Violate North County LUP Policies

Slant Wells Result in Brine with Higher Total Dissolved Solids (TDS).

Pumping Groundwater Along the Coastline Exacerbates Seawater Intrusion

The Project Would Export Groundwater from the Salinas Valley Groundwater Basin, Which is Prohibited by Law

California law prohibits groundwater exportation from the Salinas Valley Groundwater Basin due to concern about the “balance between extraction and recharge” within the basin.  (Water Code App., Section 52-21 [MCWRA Act].)  The environmental documents relied upon by the applicants do not dispute that the Salinas Valley Groundwater Basin is in overdraft and has been increasingly in overdraft for six decades. As shown by the steady inland progression of seawater intrusion.  (FEIR, p. 14.5-24.)  The Regional Project would pump groundwater directly from the overdrafted Salinas Valley Groundwater Basin.

Pending Litigation over CEQA, Water Rights, and Exportation of Groundwater.

In 2010, Ag Land Trust sued the Marina Coast Water District and, in 2011, Ag Land Trust sued the Monterey County Water Resources Agency over their respective approvals fo the Regional Project…The lawsuits allege violations of the California Environmental Quality Act, lack of water rights for the project’s groundwater pumping, and violation of the Monterey County Water Resources Agency Act’s prohibition on exportation of groundwater from the Salinas Valley basin.

In 2010, the superior court overruled Marina Coast’s demurrer.  The trail court’s actions was supported unanimously by the Court of Appeal, and the Supreme Court unanimously refused to grant Marina Coast’s petition for review. 

Source: LAW OFFICES OF MICHAEL W. STAMP, July 29, 2011

ADDENDUM:

Agency Act

CHAPTER 52

MONTEREY COUNTY WATERRESOURCES AGENCY ACT

EXCERPTS

Sec. 8. Objects and purposes of act. The objects and purposes of this act are to provide for the control of the flood and storm waters of the Agency and the flood and storm waters of streams that have their sources outside the Agency, but which streams and flood waters flow into the Agency, and to conserve those waters for beneficial and useful purposes by spreading, storing, retaining, and causing those waters to percolate into the soil within the Agency, or to save and conserve in any manner all or any of those waters and to protect from those flood or storm waters the public highways, life, and property in the Agency, and the watercourses and watersheds of streams flowing into the Agency, and to increase, and prevent the waste or diminution of the water supply in the Agency, including the control of groundwater extractions as required to prevent or deter the loss of usable groundwater through intrusion of seawater and the replacement of groundwater so controlled through the development and distribution of a substitute surface supply and to prohibit groundwater exportation from the Salinas River Groundwater Basin, and to obtain, retain, and reclaim drainage, storm, flood, and other waters for beneficial use within the Agency; and to provide, in the discretion of the Agency in connection with and as an incident to any works, dam, or reservoir heretofore or hereafter constructed either within or without the Agency, for the construction, maintenance, and operation of a minimum or permanent pool and facilities for swimming, boating, fishing, and recreation in or upon waters stored in any stream, reservoir, or minimum or permanent pool, and for the acquisition in any manner provided in this act and for the use by the Agency, in addition or adjacent to lands that may be used or acquired for flood control or water conservation purposes or that may be acquired for the maintenance or protection of any such works, dam, or reservoir or watersheds adjacent thereto, of lands deemed by the Supervisors of the Agency to be necessary or convenient for the installation, construction, use, and maintenance of recreational areas or facilities, including picnic grounds, playgrounds, campgrounds, home sites, boats and fishing, bathing, or other facilities for use by the public, subject to such rules and regulations and reasonable charges as may be prescribed by the Board of Supervisors of the Agency. However, no property situated in another county, shall be condemned by the Agency for recreational areas or facilities unless the Board of Supervisors of the County in which the property is situated agrees to the condemnation thereof.

 Sec. 21. Legislative findings; Salinas River groundwater basin extraction and recharge. The Legislature finds and determines that the Agency is developing a project which will establish a substantial balance between extraction and recharge within the Salinas River Groundwater Basin. For the purpose of preserving that balance, no groundwater from that basin may be exported for any use outside the basin, except that use of water from the basin on any part of Fort Ord shall not be deemed such an export. If any export of water from the basin is attempted, the Agency may obtain from the superior court, and the court shall grant, injunctive relief prohibiting

REFERENCES:

WATER NEWS
WATERPLUS
Ron Weitzman, President, WaterPlus, November 2012

California American Water Company, Coastal Water Project, Final Environmental Impact Report, 2009.

 For background purposes, links to the CALIFORNIA AMERICAN WATER COMPANY COASTAL WATER PROJECT Final Environmental Impact Report, Volumes 1-5, October 30, 2009, are embedded.  Volume 1, Volume 2 and Volume 3 consist of the revised EIR, including the full text of the Draft EIR as modified in response to comments received.  Volume 4 and Volume 5 consist of the response to comments document.