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Planning and Conservation League Foundation Reply Brief a.12!04!019

Planning and Conservation League Foundation Reply Brief a.12!04!019

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03/05/2014

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BEFORE THE PUBLIC UTILITIES COMMISSIONOF THE STATE OF CALIFORNIA
Application of California-American Water Company (U 210 W) for Approvalof theMonterey Peninsula Water Supply Project andAuthorization to Recover All Present and FutureCosts In RatesApplication 12-04-019(Filed April 23, 2012)
REPLYBRIEF OFPLANNING AND CONSERVATION LEAGUEFOUNDATIONADDRESSINGPOSITIONS ONGROUNDWATER RIGHTS
ROSSMANN AND MOORE, LLP ANTONIO ROSSMANN, SBN 51471ar@landwater.comROGER B. MOORE, SBN 159992rbm@landwater.comBARTON LOUNSBURY, SBN 253895bl@landwater.com380 Hayes Street, Suite OneSan Francisco, CA 94102 TEL: (415) 861-1401FAX: (415) 861-1822
Attorneys for PLANNING ANDCONSERVATION LEAGUEFOUNDATIONJONAS MINTON
 Water Policy AdvisorPl
anning and Conservation LeagueFoundation
107 9th Street, Suite 901 TEL:(916) 719-4049jminton@pcl.org 
 
2 The Planning andConservation League Foundation (PCLF) submits this brief pursuant to the Administrative Law Judge’s June 1, 2012 ruling, which invited partiesto submitresponsive briefing on specific legal issueswarranting early resolutioninthis proceeding.In the Commission’s June 29, 2012 ruling, Judge Weatherfordconfirmed the granting of PCLF’s motion for party status.Groundwater rights are central to thepresentcallforbriefing, which inquiresof the parties whetherproject applicant California American Water Company (Cal- Am)or another entity involved in Cal-Am’s proposed approach to securereplenishment water, possesses adequatewater rightsto support the underlying feasibilityof the Monterey Peninsula Water Supply Project (project).PCL joinsintheposition of LandWatch Monterey County(LandWatch)that the groundwater rightssupporting the project remain critically unresolved (Opening Brief, pp. 1-6;Reply Brief, pp. 3-11), and supports LandWatch’s call for prompt appointment ofanindependent hydrologist to address the project’s potential impacts on groundwaterrights.Prompt resolution of uncertainties asto the project’spotentialuse of groundwaterare needed heretomeaningfully address looming conflicts over waterrights, andenable the Commission toaddressthe project’s influence on theenvironment prior to its decision on the project.(Pub. Util. Code, §1002(a)(4).)Read in context,Cal-Am’s own discussion of the record vindicates theimportance of promptly securing this timelygroundwateranalysis.Unable torepresent that its project will not require water rights, Cal-Am’s opening brief insteadseeks to show that it is not “likely” to do so (page 3), relying on analysis that is by Cal-Am’s own recognition incomplete. Cal-Amconcedes thatits project, whichproposes the use of slant wells,“may” include water originating from the Salinas Valley Groundwater Basin (SVGB),but characterizes the amount as small basedupon “preliminary” modeling results that assume “full and successful”
 
3implementation of other projects. ( 
Id.
 )Similarly, while Cal-Am’sprojectapplicationprojects that 97 percentof the pumped water would be seawater, italsoacknowledges the need for a test well and further groundwater modeling.(SeeLandWatch Opening Brief, p.4 (citing Cal-Am Application, Appendix H, p. 10 andDirect Testimony of Richard C. Svindland, April 23, 2012, p. 10:8-11).)Cal-Amrecognizes that the modeling work done in the predecessorEIR for the now-defunctRegionalDesalination Projectincludes data limitations and potential errors. Theseerrorswill requirefurther refinement and improvementin the groundwater analysis,as well as adaptationof the modelingCal-Am’s distinctstand-alone project.
Id.
 )Unless and until this additional modeling workis done andtest wells areconstructed and used in the project assessment, the project’s need for groundwaterremains fundamentally unknown,andmay wellexceed the preliminary estimate reliedupon in the application. As LandWatch discussed in its openingbrief (page 4),available data suggest thatthe percent of freshwater taken up by the project’sintake wellsmay well increase beyond the applicant’s initial projection.Notably, theMontereyCounty Superior Court found the predecessor project’s EIR deficient inpartbecause it“assumes that groundwater rights will be perfected in the future andthat such rights do not need to be addressed in an EIR.”
1
Here, given the immensepotential for disputes over groundwater to delay or derail timely implementationof the applicant’s water supply project, the Commission’s duty to examine this issue alsocannot be consigned to a later CEQA phase of project review.Despitedisagreeing onotherissues,numerousparties to this proceedinrecognizethat fundamental uncertainties remain as to theproject’s need for
1
 The Superior Court’s Statement of Intended Decision in
 Ag Land Trust vs. Marina Coast Water District 
(Monterey Superior Court Case No. M105019, Dec. 19,2011, p. 30) is appended as Exhibit A to the Opening Brief of WaterPlus Regarding Groundwater Rights and Public Ownership, filed on July 11, 2012.

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