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2
3
4
5
6

REMY MOOSE MANLEY, LLP

HOWARD F. WILKINS IT(, SBN 203083
JENNIFER S. HOLMAN, SBN 194681
555 Capitol Mall, Suite 800
Sacramento, CA 95814
Telephone: .(916) 443-2745
Facsimile: {916)443-9017
Email: cwilkins@nnmenvirolaw.com
jholman@rmmenvirolaw.com

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Fl

JAN l 5 2U15

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'"''"''r'

EXEMPT FROM FILll'IG FEES

[GOVERNMENT COD~ 61 03]

7 Attorneys for Petitioner and Plaintiff

8 MARINA COAST WATER DISTRICT
9

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF SANTA CRUZ

1,0
11

CV1S0895

MARINA COASTWATERDISTRICT, and

12 DOES 1-10,

Case No.:~------

13

PETITION FOR WlUT OF MANDATE

AND COMPLAINT FOR
DECLARATORY AND INJUNCTlVE
RELIEF

Petitioner and.Plaintiff,

14
15

16

17

v.
CALWORNtAST~rELANDS

COMMISSION, and DOES 11-50,

18

19

(C.C.l'. 1094.5 (1085); California

Enviromqental Quality Act ("CEQA"))

Respondents and Defendants.

-------~~~~~~~~~--~

Filing Date of Action:

January 15,2015

20 CALWORNIA-AMERICAN WATER
CO:MPANY, a California water corporation,
21 and DOES 51-100,
22

Real Party in Interest.

. 23

24
25

Ill

26

27

!II

28 Ill
PE'J.tnON FOR WRIT OF MANDATE AND COMl'LAINT FOR DECLARATORY AND JNJUNCTIVE REIJEF

Petitioner and Plaintiff Marina Coast Water District ("MCWD" or the "District") alleges

2 as follows:

INTRODUCTION

1.

This action challenges the decision of Respondent and Defendant California State

5 Lands Commission to issue a General Lease-Right-of Way Use ("Lease") for Real Party in
6 Interest California American Water Company's ("Cal-Am") Slant Test Well Project ("slant
7 well" or the "Project"). MCWD seeks a writ of mandate, as well as declaratory and injunctive
8 relief, vacating and setting aside the State Lands Commission's approval of the Project and
9 issuance of the Lease to Cal-Am because the State Lands Connnission failed to comply with the
I0 California Enviro11111ental Quality Act (Pub. Resources Code, 21000, et seq.) ("CEQA") before
11 it approved the Project.
12

2.

The State Lands Connnission improperly relied on a "substitute" enviromnental

13 document prepared by the California Coastal Cmmnission ("Coastal Commission") that did not
14 meet CEQA's substantive and proceduml requirements. Among other procedural failures, the

15 Coastal Commission's substitute enviro11111ental document improperly "piecemealed" the

16 analysis of the Project. The slant well is part of the "Monterey Peninsula Water Supply Project"
17 ("MPSWP"), for which the California Public Utilities Conm1ission ("CPUC") is, and was at all
18 relevant times herein, acting as the lead agency under CEQA. The Coastal Commission's
19 substitute environmental document focused solely on the potential short term-impacts of

20 approving the slant well and failed to analyze or mitigate its potential long-term impacts or those
21

of the MPSWP in violation ofCEQA. Regardless of the Coastal Conm1issions treatment of the

22 Project, the State Lands Conunission had an independent duty to consider the ''whole" of the
23 Project under CEQA before approving the Lease.
24

3.

Even if the slant well could be treated as a separate project, the State Lands

25 Cmmnission-not the Coastal Commission-was required to act as the lead agency for the
26 Project under CEQA because the Coastal Commission could not approve the Project until after
27 the State Lands Cmmnission approved the Lease.
28

4.

Even if the State Lands Commission could act as a responsible agency, the State

l
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Lands Conunission failed to fulfill its CEQA obligations in that role. Particularly, the State
2 Lands Conunission failed to make the findings that responsible agencies are required to make
3 under CEQA and its determinations and conclusions are not supported by substantial evidence.
4 Furthennore, the State Lands Commission was required to prepare an EIR for the Project under
5 CEQA because it did not, and could not, make the findings required by CEQA before the State
6 Lands Conunission could rely on the Coastal Commission's substitute environmental doc1nnent.
7

5.

MCWD seeks a writ of mandate and declaratory and injunctive relief, vacating

8 and setting aside the Lease, and enjoining Cal-Am from proceeding with the Project, on the
9 grounds that the State Lands Conunission violated CEQA and prejudicially abused its
10 discretion.

PARTIES

11

12

6.

MCWD is a municipally owned water district established in 1960 to provide

13 potable water service to all residential, connnercial, industrial, environn1ental, and fire
14 protection uses in the then unincorporated community of Marina. The City of Marina ("City")
15 incorporated in .1975, but MCWD remained a separate public agency. MCWD also provides
16 potable water delivery and wastewater conveyance services within the boundaries of the former
17 Fort Ord Army Base, known as the Ord C01mnunity. MCWD serves appmximately 30,000
18 residents in its Maxina and Ord Community service areas, who rely on MCWD for their
19 domestic drinking water. MCWD holds an interest in the property that is the subject of the
20 Project. The District, as well as it 30,000 residential and connnercial customers, would be
21 material hJjured by the activities that were approved in the Project.
22

7.

Petitioner is unaware of the true munes and capacities of Petitioners and Plaintiffs

23 fictitiously named herein as Does 1 tlnough 10, inclusive. Petitioner is inf01med and believes,
24 and thereon alleges, that such fictitiously named Petitioners and Plaintiffs are benelcially
25 interested in the State Lands Commission's compliance with its mandatory duties under CEQA
26 before approving the Project, and that such Petitioners and Plaintiffs adequately pa1ticipated in
27 the State La11ds Commission's administrative review process for 1he Project to have standing to
28 be j oinecl as Petitioners and Plaintiffs in this proceeding. Petitioner will a1nend this Petition,
2
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 with leave of the Court if necessary, to allege the fictitiously named Petitioners' and Plaintiffs'
2 true names and capacities when ascertained.
3

8.

Respondent California State Lands Commission is a state administrative body that

has jmisdiction and management control over certain public lands of the State. The State Lands

Commission's authority is detailed in Division 6 of the California Public Resomces Code. The

State Lands Commission approved the Lease for the Project at issue in this case.

9.

MCWD is unaware of the true names and capacities of Respondents fictitiously

8 named DOES 11 through 50, and sues such respondents by fictitious nan1es. MCWD is
9

infonned and believes, and on the basis of such information and belief, alleges the fictitiously

10

named respondents are also responsible for the actions described in this Petition. When the il'Ue

11

identities and capacities of these respondents have been determined, MCWD '\"ill amend this

12

petition, with leave of the Court if necessary, to insert such identities and capacities.

l3

10.

Real Parties in Interest California-American Water Company is a water

14

C011)0ration as defined ill Public Utilities Code section 241 and is regulated by the CPUC. Cal-

15

Am is not a public entity, but a wholly owned subsidiary of American Water, the largest

16

investor-ow11e~ water

17

and wastewater utility company in the United States. American Water

.
has its headquarters in Voorhees, New Jersey. Cal-Am is the recipient of the Lease approved by

18

the State Lands Commission at issue :in this case.

19

11.

MCWD is unaware of the true capacities of Real Parties :in Interest Does 51

20

through 100, and sues such real parties in interest by fictitious names. MCWD is informed and

21

believes, and based on such information and belief, alleges that the fictitiously named real

22

parties in interest are directly and materially affected by the actions described :in this Petition.

23

When the true identities and capacities ofthese real parties in interest have been determined,

24

Petitioner will amend this Petition, with leave of the Court if necessary, to insert such identities

25

and capacities.

26
27

JURISDICTION AND VENUE

12.

Tllis Court has j1;U'isdiction over tllis action pmsuant to Code of Civil Procedure

28 sections 526, 526A, 1060, and 1094.5, as well as Public Resources Code section 21168.
3
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTfVE RELIEF

1 Alternatively, this Court has jurisdiction under Code of Civil Procedure section I 085 and Public
2 Resources Code section 21168.5.
3

13.

Petitioner, Respondent Califmnia State Lands Cmmnission, and Real Party in

4 Interest California-American Water Company have stipulated to venue in Santa Cruz County
5 because related cases against the Coastal Commission are proceeding in the Santa Cmz Superior
6 Court. (SeeBrockv. Super. Ct. of Stanislaus County (1947) 29 Cal.2d 629,634 ["parties may
7 stipulate as to venue, or the right to move for a change of venue may be waivecf'].)

BACKGROUND

8
9

10

11

A. The slant well will result in potentially significant unmitigated impacts to the Salinas
Valley Groundwater Basin, which is crucial to providing safe drinldng water the
residents of Marina and the Ord area served by MCWD.
14.

MCWD operates and maintains groundwater production wells in the Salinas

12 Valley Groundwater Basin. MCWD pumps water from these wens, treats it, and then delivers
13 this water to MCWD's customers.
14

15.

As part of its regional water supply project cmrently under review by the CPUC,

15 Cal-Aln is constructing a slant wen, including monitoring wens and other related infrastructure
16 within a sensitive coastal dune complex located in the City of Marina.
17

16.

The Project at issue in this litigation is a slant wen located in Monterey County

18 that extends under the submerged tidelands of the state..

19

17.

Drilling will originate at the wellhead vault, which will be located approximately

20 650 feet inland from the existing shoreline. The well will slant downward from the wellhead
21 vault, extend approximately 1,000 feet into Monterey Bay, and temrinate approximately 290 feet
22 below the sea floor.
23

18.

The portion ofthe Project that lies below the sea floor (approximately 230 feet) is

24 within the jurisdiction of the State Lands Commission.

25

19.

The Project will pump groundwater from the Salinas Valley Grmmdwater Basin,

26 which is the same groundwater basin from which MCWD's groundwater wells pump water to
27 supply water to MCWD's customers.
28

20.

The site of the slant well is a property that is devoted as a mitigation site for

4
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 groundwater as part of an overall agreement to limit and restrict groundwater pumping in the
2 City of Marina near the coastline in order to reduce salt water intrusion within the Salinas Valley
3 Grom1dwater Basin.
4

21.

The slant well will pump water in excess of the mitigation agreement.

22.

Cal-Am has no groundwater rights in the Salinas Valley Grom1dwater Basin. The

6 slant well Project and MPWSP could have a significant impact on the Salinas Valley
7 Grom1dwater Basin especially since this is the third year of drought, which prompted Governor
8 Brown to declare a drought emergency and request all citizens to reduce water use.
9
10

11

B. Although the California Coastal Commission and State Lands Commission refused to
acknowledge it, the slant well is the first well in a much larger Water Supply Project.

23.

The allegedly "temporary" slant well is the initial phase in Cal-Am's 1111approved

MPSWP proposal to construct a desalination facility north of the City of Marina. In April 2013,
12

Cal-Am filed an application with the CPUC for the MPWSP, which includes shint wells that
l3
14

would be located at the Project site, a desalination facility to be located about two miles inland
of the slant well site adjacent to a regional wastewater treatment facility, pipelines, and t11e other

15

related facilities. The CPUC is currently preparing an EIR for the MSWP, which is the CPUC
16

has been ordered to publish no later than January 30, 2015.

17

24.

According to tl1e CPUC website for the MPWSP (which is included witl1 a link in

18

tl1e Coastal Commission Staff Report), the proposed MPWSP would include the following
19

20

facilities:
A seawater intake system consisting of eight 750-foot-long subsmface slant wells

21

22
23

24
25

26
27

extending offshore into the Monterey Bay, and appurtenant facilities. The
preferred site for the subsurface slant wells is a 376-acre coastal property located
north of the city of Marina and inunediately west of the CEMEX active mining
area. New pipelines would convey the seawater (or "source water") from 1he slcu1t
wells to the MPWSP desalination plant.
http://www.cpuc.ca.gov/Enviromnentlinfo/esa/mpwsp/index.html
25.

Cal-Am initially proposes to use the slant well to calculate how much water being

pumped from the Salinas Valley Groundwater Basin is groundwater, how much is sea water, and
tl1en dischaige all of the pumped water to the ocean. Cal-Am intends to use the slant well as a

28
5
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

1 long-term production well for the MPWSP.

26.

The slant well is located on the CEMEX property noted in paragraph 24,

3 above. Cal-Am has acknowledged that the slant well would be converted to one of the
4 proposed eight subsurface slant wells in the MPWSP.
5

27.

Although the Coastal Commission claims the slant well is a separate project from

the MPWSP-and therefore refused to analyze or mitigate the potential long term impacts of

either the slant well or the overall project-the Coastal Commission's various policy statements

rejecting "alternatives" are all based on the assumption that the slant well is a "necessary" first

step in the overall MPWSP.

10

28.

In approving the Project without analyzing the potential long-term impacts of the

11

slant well and the siting of tl1e overall MPWSP project at the present location without

12

meaningfully considering alternatives or providing any mitigation for potential long term

13

impacts, the Coastal C01mnission and the State Lands Commission both mislead the public

14

abo'ut the Project's potential environmental impacts and violated CEQA.

15
16

C. The slant well required several state governmental approvals.

29.

Before the slant well could be constructed and operated, it required several

17 govenunental approvals.
18
19

20

30.

First, as part of the overall MPWSP, the slant well required the approval of the

31.

Second, the slant well required a lease from tl1e State Lands Commission as

CPUC.

21

explained below.

22

32.

23

24
25

Third, the slant well required a coastal development permit from tl1e City of

Marina for the land-side elements ofthe Project.

33.

Fourth, tl1e slant well required a coastal development permit from the Coastal

Commission for those elements oftl1e Project that are tmder submerged lands and subject to a

26 lease from the State Lands Conunission.

27
28
6

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

1
2

D. Proceedings in the Cii'y of Marina were trnncated by the Coastal Commission's

decision to accept a premature "appeal" from the Project proponent, leapfrogging
over the City's exercise of jurisdiction under the Coastal Act.
34.

Under the Coastal Act, development in the coastal zone generally requires a

4 Coastal Development Permit ("CDP"). The Coastal Conunission has original jurisdiction to
5 issue CDPs unless the local government has a certified Local Coastal Program ("LCP"), in

6 which case the local government has original permit jurisdiction. (Pub. Resources Code,
7 30519, subd. (a), 30604, subd. (b).) In authorizing the certification ofLCPs, the Legislature
8 recognized the need to "rely heavily on local government and local land use phuming
9 procedures" in order to "achieve maximmn responsiveness to local conditions." (Pub. Resources
10 Code, 30004, subd. (a).) The Coastal Commission's reserved jurisdiction to issue CDPs is
11 limited to development proposed or m1dertaken on any tidelands, submerged lands, or public
12 trust lands. (Pub. Resources Code, 30004, subd. (b).)
13

35.

The Coastal Conunission certified a LCP for the City of Marina after a public

14 hearing onApril20, 1982. Accordingly, an applicant proposing development within the City of

15 Marina's coastal zone must obtain a CDP from the City.

16

36.

CalAm applied for a CDP for the Project (but not the MPWSP) with the City of

17 Marina, and the City ofMari:na prepared an initial study/mitigated negative declaration
18 ("IS/MND") pmsuant to CEQA to consider Cal Am's application.
19

37.

On September 4, 2014, the City of Marina denied CalAm's CDP application for

20 development of the slant well "without prejudice" because the City found that the IS/MND
21 prepared pursuant to CEQA was inadequate. As a result of its CEQA decision, the City
22 determined it could :not approve the Project or make any fi:p.dings on whether the CDP was
23 consistent with the City of Marina's LCP or the Coastal Act.
24
25
26
27

E. The Coastal Commission acted ultra vires in approving CDPs for the land-side
elements of the Project before the City completed its CEQA review and took final
action and before the State Lands Commission issued a lease for the waterside
elements of the Project.
38.

On September 24, 2014, CalAm appealed the City of Marina's decision to deny

28 the CDP "without prejudice" on CEQA grounds to the Coastal Conunission.

7

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNGr!VE RELIEF

39.

Prior to Cal-Am's appeal, on or about March 13,2013, Cal-Am applied separately

2 for a CDP from the Coastal Cmmnission for portions of the slant well (but not theMPWSP)
3 within tidelands, submerged lands, and public trust lands. Under the California Code of
4 Regulations, title 14, section 13053.5, tl1e application must include an adequate description of
5 the proposed development, and any feasible alternatives or any feasible mitigation measures
6 available tl1at would substantially lessen any significant adverse impact which the development

7 may have on the envi:romnent as

. that tennis defined under CEQA. The application must also
8 include the "applicant's legal interest in all the property upon which work would be performed,
9 if the application were approved, e.g., ownership, leasehold, enforceable option, authority to
10 acquire the specific property by eminent domrun."

11

40.

Cal-Am's application for the CDPs states that the Project would be on state lands,

12 but that an application for a lease from the State Lands Commission had not yet been sub1nitted.
13 Cal-Am had no legal interest in the portions of the Project site witlun tidelands, submerged
14 lands, and public trust lands when its application was deemed complete by the Coastal
15 Cmmmssion.

16

41.

On October 30, 2014, MCWD subnutted a comment letter to tl1e Coastal

17 Cmmmssion, explaining that the Coastal Cmmnission did not have jurisdiction at that time since
18 the City had only denied the CDP "without prejudice" pending further environmental review
19 required by CEQA. The Coastal Conmussionmay hear an appeal fl-om a denial of a permit

20 under a certified Local Coastal Program in very linuted circmnstances. "[A]fter certification of
21 a local coastal program, issuance of coastal development permits is the purview of the local
22 govemment, not the Coastal Commission." (City ofMalibu v. California Coastal Com. (2012)
23 206 Cal.App.4th 549, 556.) Only once the City makes a final decision on a CDP that raises

24 substantial issues regarding tl1e CDPs compliance with the LCP or Coastal Act does the Coastal
25 Connmssion have jurisdiction to hear an appeal. TI1e Coastal Cmmuission does not have
26 generalized jurisdiction to hear an appeal from a local agency's detenmnation m1der CEQA.
27 (Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830, 852 ["The Coastal

28 Commission lacks jurisdiction to review a local goverrnrtent's compliance with CEQA."].)

8
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

42.

On October 31, 2014, the Coastal Conunission's staffre1eased its

2 recommendations in a consolidated Staff Report for Cal-Am's March 13, 2013 Application and
3 its appeal of the City's denial of its CDP without prejudice. Under the Coastal Commission's
4 certified regulatory program the Staff Report may serve as a ftmctional equivalent document to
5 a:n EIR. The Staff Report recommended that the Coastal Conunission find that it has jurisdiction
6 to hear the appeal for among other reasons that "there is insufficient factual and legal support"
7 for the City's denial of the proposed slant well. Despite the fact the City was never able to
8 review the CDP for compliance with its LCP and never completed environmental review under
9 CEQA, the Staff Report reconunended the Coastal Commission find a "substantial issue" to
10 exercise jurisdiction over the CDP. The Staff Report further reconunended the Coastal
11 Commission approve Cal-Am's CDP application for the portion of the slant well within the
12 jurisdiction of the City (Appeal No. A-3-MRA-14-0050) and the pe1mit application within the
13 Coastal Commission's original jurisdiction (Application No. 9-14-173 5), despite the fact the
14 Project did not comply with City of Marina's local coastal program, the State Lands
15 Commission had not granted a lease. or reviewed the P.t"oject for compliance with CEQA, and the
16 CPUC had not even published the Draft EIR for the entire MPWSP,
17

43.

On November 7, 2014, MCWD submitted another comment letter, which again

18 explained why the Coastal Comntissionlacked jurisdiction to act on the permits. MCWD's
19 November 7, 2014letter also explained that the Staff Report did not satisfy the Coastal
20 Commission's obligations under CEQA and the Coastal Act for multiple reasons, including that
21 significant environmental impacts of the Project had not been adequately addressed, the Staff
22 Report lacked baseline information that niade it impossible for the public and tl1e Coastal
23 Collllnission to understand the potential impacts of the Project (or larger MPWSP), and that the
.24 two-page alternatives discussion contained no facts, was not supported by substantial evidence,
25 and omitted feasible alternatives.
26

44.

On November 10, 2014, MCWD submitted another collllnent letter, which ftnther

27 explained why the significant environmental impacts of the Project had not been addressed and
28 that feasible alternatives had not be considered.
9

PETI.TION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

45.

Midday on November 11, 2014---both a national and state holiday-the Coastal

2 Commission published on its website a 767-page "addendum" to its October 31,2014 Staff
3 Report. The addendum did not include the comments submitted by MCWD on November 7 or
4 November 10, although it did include the email transmission sheet for the November 7
5 comments. MCWD asked Coastal Commission staff why the letters were not included in the

6 addendum, and was informed that the letters would be included in a later addendmn.
7

46.

Well into the evening on November 11,2014, the Coastal Cormnission published a

8 second addendum, substantially modifying the original October 31, 2014 Staff Report and
9 purporting to address the cmmnents raised by MCWD. The second addendum still did not
10 include MCWD's letters ofNovember 7 and 10, 2014. Those letters were never provided to the
11 public and were apparently witl1held from public disclosme. Although MCWD's November 7
12 and 10 letters were never provided to tl1e public or Coastal C01mnissioners before tlle hearing,
13 Coastal Conunission staff provided copies of both letters to Cal-Am. Unfairly, Cal-Am's
14 response to MCWD's letters was included in fue addendum to tl1e Staff Report provided to the
15 public and Coastal Commissioners. MCWD received the second addendum by email from
16 Coastal Conunission staff at roughly 6:00 pm on November 11. The second addendum was
17 posted on tl1e Coastal Commission's website at some point later ihat night. MCWD alleges
18 based on information and belief, fuat most members of fue public never saw or reviewed second
19 addendtml.
20

47.

The second addendum significm1tly changed botll tl1e Project and tl1e mitigation

21 for tlle Project in ways that substantially increased tlle severity of enviromnental impacts fuat
22 were disclosed in the October 31 Staff Report, including but not limited to biological resources
23 and hydrology impacts. The Project, for instance, was modified to allow construction to
24 continue after Februmy 28; fuis was identified as the critical date in all of the Project
25 applications--after which all work would stop--because it is the start of tlle snowy plover
26 breeding and nesting season. The mitigation was altered as well. For instance, tl1e new
27 mitigation allows Cal-Am to move species that are listed m1der tl1e Endangered Species Act in a
28 way that has the potential to result in an impennissible "talce" m1der that Act. The mitigation
10
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 and performance criteria for groundwater impacts were also changed. Given the incredibly short
2 notice between the release of the second addendum and the hearing scheduled for 9:00a.m. the
3 following morning, the public, MCWD, and responsible (including the State Lands
4 Commission) and trustee agencies were substantially and prejudicially deprived of the right to
5 review and conunent on these changes to the Project and mitigation in violation of CEQA.
6 MCWD did provide conunents based on its preliminary review, but they were obviously
7 curtailed given the time constraints.
8

48.

On November 12, 2014, the Coastal Conunission held a hearing on the matters. It

9 determined, without a hearing (refusing

to hear testimony from the City, MCWD, and the public

10 on its jurisdiction over the appeal) and without ever seeing MCWD's November 7, 2014letter,
11 that it had jurisdiction to hear the appeal in matter Appeal No. A-3-MRA-14-0050. The process
12 whereby this occurred was grossly unfair and worked a substantial deprivation of the City's, the
13 public's, and MCWD's rights. The City of Marina's representatives at the hearing were not
14 provided an opportunity to testify before the Coastal Commission made its decision on
15 jurisdiction to hear the appeal.
16

49.

At the November 12, 2014, hearing, Coastal Commission staff did not call

17 attention to the changes to the Project and mitigation niade the prior evening but did atmounce
18 additional changes to mitigation. These cha11ges further reduced the efficacy of the mitigation
19 measures. These new changes tci the mitigation will allow substantial increases the severity of
20 enviro1m1ental impacts than previously analyzed or discussed in the October 31 Staff Report,
21 including but not limited to biological resources and hydrology impacts.
22

50.

Well into the middle of the hearing, right before the Coastal Commission voted to

23 approve the permits, Coastal Commission staff provided the Coastal Commission with copies of
24 MCWD's letters of November 7 and 10,2014. In as much as tl1e letters were in excess of 102
25 pages combined, and involved difficult and complex legal and factual matters, it strains
26 credulity that tl1e Coastal Commissioners would be able to read and comprehend MCWD's
27 connnents in the minutes they had to review tl1e letters before tl1ey approved the Project.
28

51.

Although MCWD's letters were not included in eitl1er the first or second

11
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INWNCTIVE RELIEF

1 addendum to the Staff Report, MCWD was not provided additional time to address the Coastal

2 Commission. Rather MCWD was given the same two minutes per speaker that everyone but
3 Cal-Am was provided (Cal-Am was provided 15 minutes) for comments to the Coastal
4 Commission. In its public comments, MCWD requested the Coastal Conunission reconsider its
5 decision to exercise jurisdiction of the Project. The City of Marina's general manager and city
6 attorney also testified and explained that the City denied the CDP "without prejudice" and
7 therefore could not make LCP findings.
8

52.

The Coastal Cmmnission's process for the Project was grossly unfair and worked

9 a substantial deprivation of the public and MCWD's rights. In addition, the Coastal
10 Commission never provided MCWD's co1mnents to responsible agencies (including the State
11 Lands Conunission) or the public.
12

53.

Public participation and the required public review process was substantially

13 undennined by the fact that the significant addendums to the Staff Report were not made public
14 until late at night on the eve before the hearing, and MCWD's comment letters were not
15 included in any of the addendums. The error was further compounded by the fact that the
16 substantial changes to the Project were not addressed in any meaningful way at the hearing. As
17 a result, neither the resources agencies nor the public were aware of, much less understood, the
18 material changes made to the Staff Report, MCWD's cmmnents, or the changed mitigation
19 allegedly addressing new Project impacts, in the cover of night.

20

54.

After the close ofthe hearing on November 12, 2014, the Coastal Commission

21 approved both CDPs with almost no discussion because the public hearing had run past the
22 expected tin1e and was cutting into the time for a planoed field trip.

23

55.

At the time the Coastal Cmmnission approved the CDPs for the Project, Cal-Am

24 had still not seemed the necessary right-of-way lease from the State Lands Commission.
25

56.

26

to attack, review, set aside, void, or annul a detennination or decision of a state

agency approving or adopting a proposed activity under a regulatory program that
has been certified pursuant to this section on the basis that tile plan or other written
documentation prepared pursuant to paragraph (3) of subdivision (d) does not

27
28

Under CEQA, any party may bring an action or proceeding-

12
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

comply with this section shall be conm1enced not later than 30 days from the date
of the filing of notice of the approval or adoption of the activity.

3 (Pub. Resources Code, 21080.5, subd. (g); see also id., 21168.) On all of the grounds stated
4 above, MCWD challeilged the issuance of the CDPs by the Coastal Commission in Monterey
5 Superior Court. That action was transferred to Santa Cruz Superior Court.
6
7

F. The issuance of a lease from the State Lands Commission is a project subject to
CEQA.

57.

The State Lands Commission has jurisdiction and management control over those

8 public tmst lands of the State received by the State upon its admission to the United States in
9 1850 ("sovereign lands"). Generally these sovereign lands include alltmgranted tidelands and
10
11

12

submerged lands, beds of navigable rivers, streams, lakes, bays, estuaries, inlets, and straits. The
State Lands Conmrission manages these sovereign lands for the benefit of all the people ofthe
State, subject to the Public Tmst for water related cmmnerce, navigation, fisheries, recreation,

13 open space and other recognized Public Trust uses.

14
58. Any entity seeking to develop, use, or occupy the sovereign lands of the State
15 must first apply for and obtain a lease from the State Lands Commission. The State Lands
16

Cmmnission may lease sovereign lands for any public tmst purpose. The State Lands

17

Cmmnission is under no obligation to approve any application submitted; the commission may

18

approve, condition, or deny any application.

19

59.

The State Lands Connnission is not exempt from CEQA or any portions the

20 statute. The issuance of any lease, permit or other entitlement for use of State lands by the State
21

22

23

Lands Commission requires review for compliance with CEQA.

60.

MCWD became aware that the State Lands Cmmnission planned to consider

whether to enter a lease agreement with Cal-Am at its December 17, 2014, meeting and that tl1e

24 State Lands Connnission intended to rely on the CEQ A-equivalent document prepared by the
25 Coastal Commission (i.e., the Coastal Connnission's Staff Report and Addenda) if it decided to
26 act on the Project.
27

61.

On December 9, 2014, MCWD submitted an extensive connnent letter to tl1e State

28 Lands Connnission regarding Cal-Am's application for a General Lease-Right-of-Way Use.

13
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJIJNCTIVE RELIEF

1 The lettet explained in detail why it would be improper for the State Lands Conunission to rely
2 on the Coastal Commission's CEQA-equivalent document when it considered the Lease
3 application. The comment letter explained that the Coastal Conn11ission was not the proper lead
4 agency for the Project and pointed out numerous flaws with the Coastal Con1111ission's
5 enviro111llental docmnents and procedural errors. The State Lands Connnission did not respond
6 to MCWD's December 9, 2014, comment letter.

62.

On December 12, 2014 the State Lands Conunission posted a seven-page Staff

s Report for the General Lease-Right-of-Way Use on its website. The Staff Report does not
9 aclmowledge any potential enviro11111ental issues related to the Project. The Staff Report does
10 not acknowledge any of the concerns raised by MCWD in its comment letters.

1I

63.

With regard to its duty to comply with CEQA, the Staff Report merely

12 reconm1ended that the State Lands Commission:

Find that California Coastal Commission (CCC) Appeal No. A-3-MRA-140050, CDP 9-14-1735, and Addendmn1 dated November 11,2014
(collectively, the "enviromnental document"), prepared for tlus Project by tl1e
CCC pursuant to its certified regulatory program (Cal. Code Regs., tit. 14,
15251, subd. (c)), is a substitutedocument as provided by the Califomia Code
ofRegu1ations, Title 14, section 15252, subdivision (a), and that the California
State Lands Commission has reviewed and considered the information therein.

13

14

15
16
17

Find that the conditions described in the Califomia Code ofRegu1ations, Title
14, section 15253, subdivision (b), have been met for t!1e California State
Lands C01mnission acting as a responsible agency to use the enviro111llental
docmnent to comply witl1 the requirements of the California Enviromnental
Quality Act. (Cal. Code Regs., tit. 14, 15096.) Determine that the Project, as
approved, will not have a significant effect on the environment.

18
19

20
21

22
23

24
25

26
27

The Staff Report neitl1er recommended nor proposed that the State Lands C01mnission
make findings to saHsfy the requirements ofCEQA Guidelines section 15091 and 15093.
64.

The Staff Report rotely recon1111ends that the State Lands Con1111ission

ought to find that the "conditions described in the California Code of Regulations, Title
14, section15253, subdivision (b), have been met for 1l1e California State Lands
C01mnission acting as a responsible agency to use the environn1ental docmnent to comply

28
14
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

1 with the requirements of the Califomia Envitom11ental Quality Act. (Cal. Code Regs., tit.
2 14, 15096.)" The Staff Report, however, acknowledges that the State Lands
3 Commission received the "CCC staff report" on October 31,2014, and the Coastal
4 Commission approved the Project on November 12,2014. Thus, on its face the Staff
5 Report demonstrates that the State Lands Commission could not rely on the Coastal

6 Commission's Staff Report as a CEQA substitute document under section 15253 of the
7 CEQA Guidelines because it was not afforded the consultation periods required by
8 CEQA, which is equal to the public review period (CEQA Guidelines section 15253,
9 subdivision (b)(5)), which in tmn is dictated by CEQA to be a minin1un1 of30 days.

10 (Pub. Resources Code 21091; Ultramar, Inc. v. South Coast Air Quality
11 Management Dist. (1993) 17 Cal.App.4th 689, 698-700.) Moreover, there is no
12 evidence in the record that the Coastal Commission made findings pursuant to CEQA
13 Guidelmes sections 15091 and 15093, which is also required to f!nd before the State
14 Lands Connuission could rely on the Coastal Cmmnission Staff Report as a substitute
15 docmnentunder CEQA Guidelines sectionl5253, subdivision (b). Because the Coastal
16 Commission did not afford the time for public review or agency consultation mandated
17 under Public Resources Code section 21 091 or malce findings under CEQA Guidelit1es
18 sections 15091 and 15093, the State Lands Commissioncouldnotrelyon the Coastal
19 Cmm11ission's Staff Report under CEQA Guidelines section 15253, subdivision (b). The
20 State Lands Commission was situply prohibited from relying on the Coastal Connnission
21 StaffReport as a CEQA substitute document. (CEQA Guidelines sectionl5253,
22

subdivision (c) ["Where a certified agency does not meet the criteria in subdivision (b) ...

23 The substitute document prepared by the agency shall not be used by other permitting
24 agencies in the place of an EIR or Negative Declaration ...."].)
25

65.

On December 16, 2014, MCWD submitted an additional connnent leiter to

26 the State Lands Commission after reviewing the Staff Report for the Lease application.
27 MCWD 's letter further explained why it would be improper for State Lands Conunission
28 to rely on tl1e CEQA-equivalent document prepared by the Coastal Conunission.
15
PETITION FOR" WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

66.

On December 17, 2014, the State Lands Commission approved the Lease after a

2 brief presentation by State Lands Cmmnissionstaff and Cal-Am representatives, and without
3 any discussion regarding the potential for enviro1m1ental impacts, and without acknowledging or
4 discussing any of the concerns raised by MCWD. Specifically, the State Lands Co=ission
5 authorized the issuance of a General Lease-Right-of-Way to Cal-Am beginning December 17,
6 2014 for a term of3 years, for the construction, operation, and deco=issioning subject to a
7 Lease Termination and Abandonment Agreement to be considered at a future State Lands
8 Cmmnission meeting.
9

67.

In authorizing the Lease, the State Lands Commission relied on the substitute

10 docmnent prepared by the Coastal Conunission. Specifically, the State Lands Cmmnission cited
11 Coastal Commission "Appeal No. A-3-MRA-14-0050, CDP 9-14-1735, andAddenduml dated
12 November 11, 2014" as the Coastal Cotmnission CEQA-equivalent document it was relying on
13 to comply with CEQA. Thus, it is evident from the Staff Report that the State Lands
14 Conunission did not have all the Addendums prepared by the Coastal Cmmnission for the
15 Project and that the Coastal Commission did not provide the State Lands Conm1ission with
16 MCWD's conunents that were omitted from the Coastal Commission's addendums. The State
17 Lands Commission did not discuss the contents of those documents, but simply stated that it had
18 "reviewed and considered" the information therein and ha:d determined it was appropriate for the
19 State Lands Commission to use the Coastal Cmm11ission's environn1ent docmnent to comply
20 with CEQA. The Staff Report further stated, in one sentence and without any analysis, that "the
21 Project will not have a significant effect on the environment."
22

68.

The State Lands Cmmnission made no findings under CEQA Guidelines section

23 15091 and 15093 as i11andated by CEQA Guidelines section 15096, subdivision (h).
24

69.

The State Lands Commission issued a Notice of Determination ("NOD") for the

25 Project on December 18,2014. The NOD states that the City of Marina was the lead agency for
26 the Project and that the State Lands Conunission was a responsible agency. The NOD states
27 that mitigation measmes were not made a condition a condition of approval ofthe Project and
28 that Findings were not made pursuant to the provisions of CEQA both of which are required by
16
PETD'ION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 the Guidelines as noted above.

2

70.

Cal-Am commenced construction activities of the slant well prior to the State

3 Lands Commission's appmval of the Proj (')Ct.

STANDING

71.

The State Lands Cormnission had mandatory duties to comply with CEQA before

6 approving the Project.

7

72.

MCWD is beneficially interested in the State Lands Conunission's full compliance

8 withCEQA.
9

73.

MCWD has the right to enforce the mandatory duties imposed upon the State

10 Lands Commission by law.

11

74.

MCWD is a public agency charged with providing safe and reliable water service

12 for residential, commercial, industrial, enviromnental, and fire protection uses. MCWD serves

13 approximately 30,000 residents in its Marina and Ord Community service areas, who rely on
14 MCWD for their domestic drinking water. The District currently pumps all of its water supply

15 from groundwater wells in the Salinas Valley Groundwater Basin.

16

75.

MCWD has a substantial interest in ensuring the Project's impacts are f-ct!ly

17 mitigated. Among other reasons, operation of the slant well will adversely affect water supplies

18 and water quality in the Salinas Valley Grmmdwater Basin, impairing MCWD 's water rights,
19 contracts, and ability to provide essential public services.

20

76.

MCWD has no other plain, speedy, and adequate remedy in the ordinary comse of

21 law, and MCWD will suffer irreparable injury unless fuis Court issues the relief requested in fuis

22 Petition.

23

77.

MCWD also entered into a recorded annexation agreement witl1 the Monterey

24 County Water Resomces Agency, the City of Marina, tl1e J.G. Armstrong Family, and RMC
25 Lonestar (owner of the "Lonestar" property at issue in fuis litigation): the Armexation
26 Agreement and Groundwater Mitigation Framework for Marina Area Land dated March 1996.
27 The property at issue in this litigation is subject to restrictions set forth in the Annexation
28 Agreement. The Armexation Agreement protects tl1e groundwater resources of the Salinas
17
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Valley Groundwater Basin. MCWD's rights under the Annexation Agreement would be
2 materially impaired and hmmed by the Project, which is located on this property.
3

EXHAUSTION OF ADMINISTRATIVE REMEDIES

78.

MCWD objected to the State Lands Commission's approval of the Lease prior to

5 the close of the State Lm1ds Commission's public hearing on the Lease application.

79.

The grounds for noncompliance with CEQA alleged in this Petition were

7 presented to the State Lands Co=ission prior to the close of the commission's public hearing
8 on the Lease application.

80.

10
11

MCWD has exhausted its administrative remedies.

STATUTE OF LIMITATIONS

81.

The State Lm1ds Cmmnission approved the Lease on December 17,2014 and

12 issued a Notice ofDetennination ("NOD") on December 18,2014.

13

82.

MCWD filed this Petition prior to the expiration of the applicable statute of

14 limitations under CEQA (Pub. Resources Code,

s21167), and allY other applicable sta1:ute of

15 litnitations.
16

17

NOTICE OF CEQA SUIT

83.

OnJmmary 14,2014, MCWD's counsel faxed and sent via overnightdelivery a

18 letter to the State Lands Co1111nission givit1g notice ofMCWD's it1tent to file this action. A copy

19 of that notice is attached hereto as Exhibit A.

20

84.

In accordance with Public Resources Code section21167.7, a copy oftlris

21 pleading shall be provided to tlJ.e Attorney General.

FIRST CAUSE OF ACTION

Violations of CEQA
(Public Resources Code, 21000 et seq.)

22

23
24

85.

Paragraph 1 through 84 set forth above are realleged and incorporated herein by

25 reference.
26

86.

The State Lm1.ds Conunission abused its dissection by approvit1g the Project and

27 allowing Cal-Am to construct and operate its sl8llt well and associated monit01ing wells on
28 sovereignl8llds without lrst complying with the requhements of CEQA and tl1e CEQA
18
PETITION FOR WIUT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I Guidelines.
2

87.

The State Lands Commission, like the Coastal Commission, improperly

3 "piecemealed" the slant well from the larger regional water supply project. "CEQA forbids
4 'piecemeal' review of the significant enviromnental impacts of a project." (Banning Ranch
5 Conservancy v. City ofNewport Beach (2012) 211 Cal.App.4th 1209, 1222.) The term "project"
6 m1der CEQA "means the whole of an action, which has a potential for resulting in either a direct
7 physical change in the environment, or a reasonably foreseeable indirect physical change in the
8 environment" (Cal. Code Regs., tit. 14 ["CEQA Guidelines"], 15378.) "Agencies cannot allow
9 'enviromnental considerations [to] become submerged by chopping a large project into many
10 little ones-each with a minimal potential impact on the enviromnent-which cumulatively may
1r have disastrous consequences.' [Citation.]" The slant well is part of the larger MPSWP, for

12 which the CPUC is acting as the lead agency under CEQ A. The State Lands Commission
13

violated CEQA by only considering the slant well portion of the project in isolation of the

14 MPSWP.
15

88.

Even if the slant well portion of the project could be considered in isolation, the

16 State Lands Commission-not the Coastal Commission-was required act as the lead agency
17

for purposes of CEQA. Although the NOD issued by the State Lands Conllllission states that

18

the City of Marina was the lead agency for the Project, the State Lands Commission relied on

19 the CEQA-equivalent documents prepared by the Coastal Conunission, not any enviromnental

20 documents prepared by the City. Where two or more agencies are involved in a project, tl1e
21 agency which will act first is required to be the lead agency. (CEQA Guidelines, 15051, subd.
22 (c).) Since t11e State Lands Conunission was required to issue the lease prior to the Coastal
23 Commission issuing the CDPs, tl1e State Lands Commission was required to "act first" and was
24 required to serve as the lead agency for the Project. That t11e CDPs were improperly approved
25 before the State Lands Commission approved the Lease does not cure this defect.
26

89.

Even if the coastal C01mnission' s approvals were not premature, the State Lands

27 Cotmnission had an independent duty to act as lead agency under CEQA Guidelines section
28 15253, subdivision (c)(2). The Coastal Commission completed none of the requisite steps
19
PETITION l'OR WRIT OJ? MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 outlined in CEQA Guidelines section 15253, subdivision (b), that would authorize the State
2 Lands Commission's reliance on a substitute envhonmental document. Therefore, under section
3 15253, subdivision (c)(2) of the CEQA Guidelines, the State Lands Conunission was required to
4 act as lead agency and "comply with CEQA in the no1malmanner."
5

90.

The State Lands Commission's decision to forgo preparing its own environmental

6 review, and instead rely on the Coastal Connnission's environmental document, is prejudicial
7 because the Coastal C01mnission did comply with CEQ A's procedural and substantive
8 requirements. (See Planning and Conservation League v. Department of Water Resources
9 . (2000) Cai.App.4th 892, 906 [appointment of the wrong lead agency requires reversal].) For
10 example:
11

a. The public review period provided by the Coastal Commission was inadequate

12

under both the letter and spirit of CEQA. The Coastal Conunission's Staff

13

Report was made available to the public on October 31,2014. Coastal

14

Commission staff infonned MCWD that they would not respond to comments

15

in writing unless comments were submitted early on Friday, November 6. As a

16

result, the public (as well as responsible and trustee agenies) was afforded a

17

mere four business days to review and c01mnent on the document. The Coastal

18

C01mnission then engaged in a bewilderh1g process of amending and re-

19

releasing the Staff Report multiple thnes before the Coastal Conmlission's

20

hearmg on November 12,2014. More thanl,OOO+ pages of addenda to the

21

Staff Report were released on Veteran's Day, a national holiday, the day prior

22

to the Coastal Commission's hearing. Moreover, the addenda failed to include

23

the comment letters submitted by MCWD.

24

b. The Coastal Connnission failed tore-notice and recirculate its environmental

25

document as required by CEQA. Certified regulatory programs, like the

26

Coastal Co.um1ission's, are subject to Public ResolU'ces Code section21092.1,

27

which requires new public notice and recirculation for additional public

28

conu11ent when significant new information is added to an EIR (or CEQA-

zo
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

equivalent document) after its original release for public review. (Joy Road

Area Forest and Watershed Assn. v. Cal. Dept. ofForestry and Fire Protection

(2006) 142 Cal.App.4th 656,. 667-671 ["notice and recirculation provisions of

. CEQA ensure that the public has notice and an opportunity to comment on the

actual plan that [the agency] intends to approve"].) The day before Project

approval, the Coastal Commission altered the Staff Report, including the

project description, mitigation measures, and the disclosure of significant

impacts in ways triggering recirculation, but the Coastal Cmmnission failed to

recirculate the document to allow additional time for public review as required
by CEQA.

10

11

91.

Even if the State Lands Conm1ission could properly act as a responsible agency,

12 rather than the lead agency, the State Lands Cmmnission cotmnitted a prejudicial abuse of
13 discretion because it failed to fulfill its obligations under CEQA. For example:
14

a. The State Lands Commission failed to make the findings required by CEQA.

15

Both lead and responsible agencies are required to make findings under CEQA

16

Guidelines section 15091. (See CEQA Guidelines, 15096, subd. (h) ["the

17

Responsible Agency shall make the findings requited by Section 15091 for

18

each significant effect of the project and shall make findings under Section

19

15093 if necessary"]; see also Resource Defense Fund v. Local Agency

20

Formation Com,. (1987) 191 Cal.App.3d 886, 896 ["although the lead agency

21

prepares the EIR, the responsible agency must independently make its own

22

findings and conclusions. [Citations.] The guidelines further require t11at t11e

23

findings be written and accompanied by a supporting statement of facts.

24

[Citations.]"] disapproved of on otl1er grotmds by Voices of the Wetlands v.

25

State Water Resources Control Bd. (2011) 52 Cal.4tl1499.) Section 15091

26

provides that no public agency "shall approve or carry out a project for which

27

an EIR has been certified which identifies one or more significant

28

environmental effects oftl1e project unless the public agency makes one or
21
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

more written findings for each oftb.ose significant effects, accompanied by a

brief explanation of the rationale for each finding." (CEQA Guidelines,

15091, subd. (a).) "The findings required by subdivision (a) shall be supported

by substantial evidence in the record." (CEQA Guidelines, 15091, subd. (b).)

The State Lands Commission failed to meet these minimum requirements

because:

1. The findings described in the Staff Report are conclusory.

2. The findings generally only address the requirements of CEQA

9
10
11

Guidelines section15253, and even then are not supported by

substantial evidence.
3. The fmdings do not include findings for each significant effect and

12

each mitigation measure as required by CEQA Guidelines section

13

15091 and 15096, subdivision (h); nor do the findings address any

14

oveniding considerations as mandated by CEQA Guidelines section

15

15093 and 15096, subdivision (h).

16

4. The findings described in the Staff Report are inconsistent with the

17

findings reached by the Coastal Commission. The State Lands

18

Conm1ission found that "the Project, as approved, will not have a

19

significant effect on the environment." The Coastal Conunission

20

reached a substantially different conclusion - the Coastal Commission

21

findings state "a key concern is the project's unavoidable effects on

22

environmentally sensitive habitat areas ("ESHA")" and that "there are

23

no :f:luther feasible alternatives or feasible mitigation measures

24

available which will substantially lessen any significant adverse effect

25

which the proposed project may have on the enviromnent." In otl1er

26

words, the Coastal Connnission determined that the Project, as

27

approved and mitigated, would still result in significant, unavoidable

28

environmental impacts. In fact, the Project's in1pacts on ESHA were

22 .
. PETITION FOR WRrr OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

not fully mitigated on site, no offsite mitigation was even considered

for short term impacts or proposed for potential long-term impacts

from the slant well, much less the overall MPWSP. On this ground as

well, the State Lands Conunission's findings are not supported by

substantial evidence. (CEQA Guidelines, 15091, subd. (b).)

5. CEQA requires the State Lands Commission to make its own

independent findings on the feasibility of project alternatives, and its

own findings on "overriding considerations" that would justify

approval ofthe Project despite its enviromnental impacts. (CEQA

10

Guidelines, 15096, subd. (h), 15091, 15093.) The State Lands

11

Conunissiou failed to make these findings.

12

6. The State Lands Conmiission failed to consider whether there are any

13

feasible mitigation measures or alternatives that could lessen or avoid

14

the effects the Project.

15

b. It was a prejudicial abuse of discretion for the State Lands Commission to rely

16

on the Coastal Commission's CEQA-equivalent doctm1ent because that

17

docmnent is inadequate under CEQA. Among other procedmal and

18

substantive flaws, the Coastal Commission:

19

1. Failed to provide an accmate and consistent project description. Instead,

20

the project description in the EIR functional equivalent document is

21

inconsistent, misleading, and improperly segments the; Project;

22

2. Failed to establish an adequate enviromnental baseline;

23

3. Failed to consider a reasonable range of alternatives;

24

4. Failed to include an adequate alternatives analysis;

25

5. Failed to comply with CEQA's mandatory public comment and review

26

period and failed to comply with its own regulations to provide

27

reasonable notice;

28

6. Failed to ensme the whole of the project was analyzed by allowing the
23
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Project to proceed without prior approval from the CPUC or State

Lands Commission;
7. Failed to adequately disclose all of the Project's potential impacts,

including impacts to the federally-listed Western snowy plover, water

supply, and water quality;

8. Failed to adopt legally adequate mitigation for the Project and approved

the Project with unmitigated impacts;

9. Failed to adopt adequate performance standards arid thresholds for

defet1ed mitigation as required by CEQA;

10

10. Failed to adopt findings supported by substantial evidence as required

11

by Public Resources Code section 21081 and CEQA Guidelines section

12

15091, 15093, and 15253.

13

11. Failed to adequately disclose and timely respond to public comments;

. 14

12. Failed to recirculate the EIR fnnctional equivalent document as required

15

by law when the Project and Project-mitigation was substantially

16

modified and when the alternatives analysis was substantially modified;

17

92.

As a result of the foregoing defects, the CEQ A-equivalent document. relied on by

18 the State Lands Commission is invalid and must be set aside. Lil<ewise, the State Lands
19 C011l111ission's approval of the Lease, in reliance on the CEQA-equivalent documents, is invalid

20 and must be set aside.

21

22
23

24
25

26

PRAYER FOR RELIEF

Wherefore, the Marina Coast Water District prays for judgment against the State Lands
Conunission as follows:

t.

For a temporary stay, temporary restraining order, and preliminary and permanent

injunctions restraining Respondent and its agents, employees, officers and representatives from
taking other actions in furtherance oftl1e Project pending full compliance with the requirements

27 of CEQA, the CEQA Guidelines, and all other applicable laws;

28
2.
For a perempt01y writ of mandate commanding the State Lands Commission to
24
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTNE RELlliF

1 vacate and set aside in its entirety its decision to approve the General Lease-Right-of-Way Use
2 allowing Cal-Am to construct and operate a slant well and associated monitoring wells on
3 sovereign lands;
4

3.

For a peremptory writ of mandate directing the Respondents to comply with the

5 requirements of CEQA, the CEQA Guidelines, and all other applicable laws;

4.

For a temporary stay, temporary restraining order, andpreliminaxy and permanent

7 injunctions restraining the Real Parties in Interest and Respondents and its agents, servants, and
8 employees; and all others acting in concert with Real Parties in Interest and Respondents on
9 their behalf, from taking any action to further implement the Project, pending full compliance

10 with the requirements of CEQA, the CEQA Guidelines, and all other applicable laws;
11

For an award of reasonable attorneys' fees and costs in this action to Petitioner;

12 and
13

6.

For such other and further relief that the Court deemsjust and proper.

14
15

Dated: January 15, 2015

16

17
18

owardF.
Attorneys for Petitioner and Plaintiff
MARINA COAST WATER DISTRICT

19
20
21

22
23

24
25

26
27
28
25
PETITION FOR WRIT OF MANDATE .AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

EXHIBIT A

REMY! MOOSE

MANLEY

""'
Howard 'Chip' Wilkins Ill
cwilklns@rmmerwlrolaw.com

January 14, 2015

VIA FACSIMJ:LE AND EEDEB&, EXPRESS

Jennifer Lucchesi
Executive Officer
Oilifornia State Lands Q.rnmission
100 Howe Avenue, Suite 100 South.
Sacramemo, CA 95825-8202
F. 916-574-1810 . .
Jennifer.Jucchesi@slc.ca.gov

Joel Jacobs
Deputy Attorney General
Office of the Attorney General.
1515 Oay Street
Oaldand, CA, 94612 -1499
F. 510-622-2270
Joei.Jacobs@doj.ca.gov
Re:

Notice of Conunencement of Action

Dear Ms. Lucchesi and Mr. Jacobs:

. :Please tal~ notice dmt Marina O,ast Water District intends to file a petition and
complaint underthe C-tlifomiaEnvironmentalQuality Act (Pub. Resources Q.de, 21000 ct
.rvq~ ("CEQA") against the C-ilifomia State Lands Commission challenging the
Commission's approval of a General Lease,.. Right-of-Way u~e for Otlifonua American
Water Company ("Chl-Atn").

Tiw petir1on and complaint will seek the following relief:

1.
A temporary stay; temporary restraining order, and preliminruy ru1d permane11t
injtUJctions resuuining the State Lands COmmission and its agents, employees, officers and
representatives from taking other actions in furtherance of the Project pending full
compliance with the requirements of CEQA, the CEQA Guidelines, and all other applicable
k~;
.

555 Capitol Maii,Sulte800 Sacrornent<> CA 95814

I Phon<t (916)443~74S I Fax;(91o)4439017 I www.rn1monvlro!nw.corn

Ms. Jennifer Lucchesi

Mr. Joel Jacobs
January 14, 2015
Page 2
2.
A peremptory writ of mandate co.mmanding the State Lands O:>mmission to
vacate and set aside in its entirety its decision to approve the General Lease-Right-of- Way
Use allowing Cal-Am to construct and operate a slant well and associated monitoring wells
on sovereign lands;
3.
A perempto.tywrit of mandate directing the State Lands Conunission to
comply with the requirements of CEQ~ the CEQA Guidelines, and all other applicable
laws;

4.
A tempor.uy stay, temporary restraining order, and preliminary and permanent
injunctions restraining the Real Parties in Interest California American Water Company et al.
and the State Lands Commission and its agents, servants, and employees, and all others
acting in concen with CaJ...Am and the O:>mmission on their behalf, from taking any action
to further implement the Project, pending full compliance with the requirements of CEQA,
the CEQA Guidelines, and all other applicable laws;
5.

An award of reasonable attorneys' fees and costs in this action to Petitioner;

6.

For any such other and further relief that the Coun deems just and proper.

and