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FILED

04/05/18
04:59 PM

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

In the Matter of Application of California-


American Water Company (U210W) for
Approval of the Monterey Peninsula Water A.12-04-019
Supply Project and Authorization to Recover
All Present and Future Costs in Rates
(Filed April 23, 2012)

OPPOSITION OF THE MONTEREY PENINSULA REGIONAL WATER AUTHORITY


AND THE MONTEREY PENINSULA WATER MANAGEMENT DISTRICT TO THE
MOTION OF THE MARINA COAST WATER DISTRICT ET AL. FOR PROMPT
REFERRAL OF QUESTION TO STATE WATER RESOURCES CONTROL
BOARD FOR EXPEDITED HEARING AND DECISION

RUSSELL M. MCGLOTHLIN (SBN 208826)


BROWNSTEIN HYATT FARBER SCHRECK, LLP
1020 State Street
Santa Barbara, CA 93101
Telephone: (805) 963-7000
Facsimile: (805) 965-4333
Email: rmcglothlin@bhfs.com
Attorneys for:
MONTEREY PENINSULA REGIONAL WATER
AUTHORITY

Dated: April 5, 2018


BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

In the Matter of Application of California-


American Water Company (U210W) for
Approval of the Monterey Peninsula Water A.12-04-019
Supply Project and Authorization to Recover
All Present and Future Costs in Rates
(Filed April 23, 2012)

OPPOSITION OF THE MONTEREY PENINSULA REGIONAL WATER AUTHORITY


AND THE MONTEREY PENINSULA WATER MANAGEMENT DISTRICT TO THE
MOTION OF THE MARINA COAST WATER DISTRICT ET AL. FOR PROMPT
REFERRAL OF QUESTION TO STATE WATER RESOURCES CONTROL
BOARD FOR EXPEDITED HEARING AND DECISION

I. Introduction

Pursuant to Rule 11.1(e) of California Public Utilities Commission’s (“Commission”)

Rules of Practice and Procedure, Monterey Peninsula Regional Water Authority (“Water

Authority”) and the Monterey Peninsula Water Management District (“Water District”) responds

to the Motion of Marina Coast Water District, et al. for prompt referral of question to the State

Water Resources Control Board (“SWRCB”) for expedited hearing and decision (“Motion”). The

Water Authority and Water District oppose the Motion because a grant of this Motion would

unnecessarily delay the Monterey Peninsula Water Supply Project (“MPWSP”).

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I. THE REFERRAL WOULD CAUSE EXTENSIVE AND UNNECESSARY DELAY

The proposed referral would involve technical hearings and briefing on complex and

competing hydrogeological evidence. A reasonable projection of the time to process such a

referral would likely be 18-24 months, if not longer.1 Once a determination was issued by the

SWRCB, such determination would only take the form of recommendation to the Commission.

The Commission would then need additional time to consider the recommendation before

considering a Certificate of Public Convenience and Necessity (“CPCN”) for the MPWSP. Any

party, including MCWD, would then have full rights to challenge the Commission’s grant of the

CPCN, if issued. This litigation would likely necessitate several additional years before

conclusion. Thus, absent a comprehensive settlement, as discussed next, the referral would

simply add considerable time—likely two years or more—to the already attenuated processing

time for the MPWSP. Such a delay would be imprudent given the deadlines set forth in the

SWRCB’s Cease and Desist Order2 and the ongoing water supply moratorium endured by the

Monterey Peninsula.

II. A REFERRAL TO THE SWRCB COULD BE APPROPRIATE AS PART OF A


COMPREHENSIVE SETTLEMENT IF SUCH A SETTLEMENT WERE
REACHED

The test used by the Water Authority and the Water District to evaluate proposals like

that set forth in the Motion is whether the proposed action would render the resolution of

disputes concerning the MPWSP more predictable, expeditious, and cost-effective. The SWRCB

referral proposed in the Motion would not satisfy this test. It could, but only if the referral were

part of a comprehensive settlement that included a commitment of the principal parties to this

1
This estimate is made based upon counsel’s experience practicing before the SWRCB. If the Commission were
inclined to grant the Motion, the Commission should query the SWRCB for a proposed schedule for such a referral
before taking any action on the Motion so to understand the likely schedule impact of the proposed referral.
2
SWRCB Order WR 2016-0016

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proceeding, including MCWD and City of Marina, to be bound by the results of the SWRCB’s

recommendation provided that the Commission’s decision on the CPCN was consistent with the

SWRCB’s recommendation. That is, the decision of the Commission, consistent with the

SWRCB recommendation, would have to be afforded a collateral estoppel effect by function of

agreement among the parties. A SWRCB referral within the context of such a comprehensive

settlement could afford a more predictable, expeditious, and cost-effective process to resolve the

disputed issues at hand in comparison to the status quo litigation that is likely to follow a CPCN

issued for the MPWSP.3 But the parties have not reached such a comprehensive settlement and

there does not appear to be a likelihood of doing so within the limited time left prior to potential

adoption of a CPCN pursuant to the current schedule in this proceeding. Therefore, the more

expeditious and proper course to resolve disputes following the issuance of a CPCN in this

proceeding is the courts.

III. ABSENT A COMPREHENSIVE SETTLEMENT AGREEMENT, THE COURTS


ARE THE PROPER VENUE TO ADDRESS THE GROUNDWATER QUESTION
PROPOSED FOR REFERRAL TO THE SWRCB

Although litigation following the issuance of any CPCN will likely take several years to

complete, it is nonetheless likely to be more expeditious than the prospect of commencing the

same potential litigation several years later following a SWRCB referral proposed by the Motion.

Thus, absent a comprehensive settlement agreement, the courts are the proper venue to resolve

groundwater disputes of the nature proposed in the Motion—whether the MPWSP will result in

the development of a valid groundwater right and will not cause injury to other groundwater

users or the groundwater basin. While the SWRCB and courts possess concurrent jurisdiction

over surface water rights (and rights to subterranean stream flow groundwater, which is governed

3
In order for the referral to be warranted form a time/cost basis, a settlement agreement would also require a similar
commitment to definitive and binding result achieved from a parallel process to address disputed issues not
addressed by the SWRCB referral.

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by surface water laws),4 the SWRCB does not possess independent jurisdiction to adjudicate

groundwater right conflicts. Unlike in the surface water context, the SWRCB does not possess

permitting authority over groundwater5 and has no authority to initiate a statutory adjudication of

groundwater rights as it does with respect to surface water rights.6 Rather, adjudications of

groundwater conflicts are exclusively handled by the courts,7 not the SWRCB.

Further, while the new Sustainable Groundwater Management Act (“SGMA”) authorizes

locally created groundwater sustainability agencies to develop groundwater sustainability plans

to be reviewed and approved by the Department of Water Resources,8 a new statute was initiated

a year following the adoption of SGMA to streamline the process for courts to undertake

groundwater adjudications and harmonize the results of such adjudications with groundwater

management pursuant to SGMA.9 The foregoing discussion demonstrates that, absent a

comprehensive settlement, the SWRCB is not the appropriate—and certainly not the normal—

means to address the groundwater claims alleged by MCWD et al. Rather, the courts can

adjudicate these claims in a definitive and binding manner following the issuance of a CPCN.

4
National Audubon Society v. Sup. Ct. (1983) 33 Cal.3d 419, 426. The moving parties cite to the opinion in
National Audubon with respect to the SWRCB’s authority to receive a reference of water rights issues from the
courts (Motion, p. 8) and the concurrent jurisdiction exercised by the courts over water matters (Motion, p. 9). The
National Audubon case, however, involved surface water not groundwater.
5
Wat. Code §§ 1200 et seq.
6
Wat. Code §§ 2500 et seq.
7
All groundwater adjudications have been processed exclusively in the courts. See e.g., California American Water
v. City of Seaside (2010) 183 Cal.App.4th 471 (reviewing the Seaside Basin adjudication); City of Barstow v.
Mojave Water Agency (2000) 23 Cal.4th 1224 (reviewing the Mojave Basin adjudication); California Water Service
Co. v. Edward Sidebotham & Son, 224 Cal. App. 2d 715 (reviewing the West Coast Basin adjudication). The
moving parties cite to Water Code section 2100 et seq. for the proposition that the SWRCB may “initiate and action
to restrict groundwater pumping and/or prescribe a physical solution to protect the quality of groundwater from
destruction or irreparable injury.” Motion, p. 8. However, this statutory authority is an extension of the SWRCB’s
authority to regulate water quality; it is not independent authority to initiate an adjudication of water rights
independent of water quality matters. It is also only affords the SWRCB authority to initiate an action in court to
protect groundwater quality, not an authority to effect a statutory adjudication of groundwater s issues before the
SWRCB.
8
Wat. Code §§ 10720 et seq.
9
Code of Civ. Pro. §§ 830 et seq.; Wat. Code §§ 10720.1(i), 10720.5(c), 10737, 10737.2, 10737.4, 10737.6, and
10737.8

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The courts do have the authority under section 2000 of the Water Code to order a

reference to the SWRCB in a suit to determine water rights. Therefore, if the trial court deemed

appropriate within a water rights suit brought by MCWD or others following the issuance of

CPCN, it could call upon the SWRCB to serve in a referee capacity. But such an action by the

trail court would be to inform the trial court, which could then act definitively on any

recommendation issued by the SWRCB. Following all available appeals, the matter would be

decided and not subject to further litigation.

Therefore, unless a comprehensive settlement, as discussed above, could be reached, in

light of the years already invested and the extensive factual record that has been developed

before the Commission, together with the years of litigation that will potentially follow a CPCN,

and the urgent need for replacement water supplies for the Monterey Peninsula, the expeditious

and prudent course is to promptly consider the CPCN and allow the judicial challenge process to

proceed if a CPCN is issued.

III. Conclusion and Request for Expedited Status Conference

For the forgoing reasons, the Water Authority and the Water District respectfully urge

the Commission to deny the Motion.

April 5, 2018 Respectfully Submitted,

By: /s/ Russell McGlothlin______


Attorney for Intervenor
Monterey Peninsula Regional Water Authority

16681617

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