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1 JAN I. GOLDSMITH, City Attorney


DONALD R. WORLEY, Assistant City Attorney
2 GLENN SPITZER, Deputy City Attorney
California State Bar No. 218664
3
Office of the City Attorney
4 1200 Third Avenue, Suite 1620
San Diego, California 92101-4178
5 Telephone: (619) 236-6220
Facsimile: (619) 236-7215
6
Attorneys for Petitioner City of San Diego
7
8 SUPERIOR COURT OF STATE OF CALIFORNIA

9 COUNTY OF SAN DIEGO

10

11 THE CITY OF SAN DIEGO, a municipal ) Case No. 37-2010-00088653-CU-TT -CTL


corporation, )
12 ) PETITION FOR WRIT OF
Petitioner, ) ADMn~ISTRA TIVE AND TRADITIONAL
13 ) MANDAMUS [CCP §§ 1085, 1094.5];
v. ) COMPLAINT FOR INJUNCTIVE RELIEF;
14 )
SWEETWATER AUTHORITY, and ) Case Designation: CEQA
15 DOES 1 through 25, ) [Cal. Public Res. Code §§ 21000, et seq.]
)
16 Respondents. ) Judge:
) Dept.:
17 ) Trial Date:
_________________ ) Complaint Filed:
18

19 Petitioner CITY OF San Diego respectfully submits this Petition for Writ of Mandate and

20 Complaint for Injunctive Relief as follows:

21 GENERAL ALLEGATIONS

22 1. This administrative mandamus action challenges the February 24,2010 decision

23 of Respondent Sweetwater Authority [Sweetwater] to certify the Final EnvironmentalImpact

24 Report [FEIR] and approve an expansion of the Richard Reynolds Brackish Groundwater

25 Desalination Facility and related facilities [Project].

26 2. The Project proposes to drill five additional wells into the San Diego Formation

27 [Formation], a regionally significant aquifer system that underlies parts of the City of San Diego

28 as well as other cities within San Diego County. The Formation and its groundwater are an

1
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 important part of the environment and--as the primary aquifer in the coastal San Diego area--is a

2 vital resource to the region. A map of the Formation is attached hereto as Exhibit "A."

3 3. The pumping of groundwater will have a significant effect on the environment by

4 exceeding the safe yield of the groundwater aquifer, which in turn, will deplete the groundwater

5 supplies, degrade the water quality in the aquifer and lead to land subsidence and geological

6 changes in the aquifer system. These significant environmental impacts have not been adequately

7 disclosed and analyzed in the FEIR and Sweetwater has made no effort to avoid these impacts or

8 to mitigate for them in a meaningful way.

9 4. The desalination facility will also more than triple its current allowable discharge

10 of brine, a salt saturated by-product of the desalination process. The FEIR states current brine

11 discharge is 0.8 million gallons per day (MOD). The proposed expansion will increase the brine

12 discharge to 2.5 MOD.

13 5. The City of San Diego is committed to managing its water rights and the

14 groundwater resources within its jurisdiction to promote the safe yield of the aquifer systems and

15 to coordinate management with other entities that overlie the groundwater resources. It is the

16 City's policy to support efforts to maintain groundwater supplies, throughout the state, free of

17 contaminants. (City Council Policy 400-09(F)(2).) The City's policy also includes supporting

18 programs to recharge and improve the yield from local groundwater basins. (City Council Policy

19 400-09(D)(3).) Through its constitutional police powers, the City has the right and obligation to

20 protect its citizens from water supply interruptions and shortfalls by preserving and protecting

21 regional groundwater supplies, which is another official policy of the City. (Calif. Const. Art.

22 XI, §7; City Council Policy 400-09(D)(l).)

23 6. Additionally, as an entity with water rights in the Formation, the City has a

24 special interest in managing this important resource to protect the safe yield of the aquifers for

25 the future. The City is participating in an area-wide investigation with other entities to develop

26 an integrated, comprehensive understanding of the geology and hydrology of the Formation so

27 that the resource can be used in a responsible manner that will preserve the resource for future

28 generations. To this end, the City sought to enter into a joint water management plan with

2
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 Sweetwater under California State Assembly Bill 3030. Such a plan would allow entities to plan

2 for the prudent use and preservation of the resource. To date, however, Sweetwater has taken no

3 action that would indicate a genuine willingness to participate in this plan. Instead, Sweetwater

4 appears to be in a rush to deplete the resource for its own beneficial use before the resource can

5 be adequately studied and the safe yield protected for the future.

6 7. The overriding goal of the California Environmental Quality Act [CEQA] is to

7 protect the environment. An EIR is the heart of CEQA. The ErR informs government decision-

8 makers and the public about the potential significant environmental effects of proposed projects

9 and discloses to the public the reasons for approval of a project that may have significant

10 environmental effects. Thus, the EIR protects not only the environment but also informed self-

11 government. Because the EIR must be certified or rejected by public officials, it is a document

12 of accountability. The FEIR here fails to disclose and address the significant environmental

13 effects in a good faith manner. In particular, the EIR fails to adequately address and analyze the

14 effects of overdraft. Thus, the FEIR fails as a tool for environmental protection and informed

15 government decision-making.

·16 8. Sweetwater is planning to proceed with construction and operation of the Project

17 to pump additional groundwater, even though the construction and operation of the Project will

18 irreparably harm the environment as described herein and threaten this critical groundwater

19 resource for use in the region. A temporary restraining order and preliminary and permanent

20 injunctions should issue restraining Sweetwater and its agents from proceeding with the Project.

21 VENUE
22 9. Venue and jurisdiction in this Court are proper pursuant to California Code of

23 Civil Procedure sections 1085 and 1094.5 and California Public Resources Code sections 21167,

24 21168 and 21168.5, for a matter relating to a subject property located within the Court's

25 jurisdiction.

26 PARTIES
27 10. Petitioner, City of San Diego [City], is a charter city, organized under the laws of

28 California.

3
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 11. Respondent Sweetwater provides water for National City, Bonita and the western

2 and central portions of Chula Vista. Respondent, as lead agency, took the action of certifying and

3 approving the FEIR and Project.

4 12. The true names and capacities ofthe Respondents identified as DOES 1-25 are

5 currently unknown to Petitioners. Petitioners will seek leave of this Court to amend this Petition

6 to allege the true names and capacities as soon as they are ascertained. Petitioners are informed

7 and believe and thereon allege that each of the fictitiously named Respondents have jurisdiction

8 by law over one or more aspects of the proposed development.

9 PROJECT BACKGROUND
10 13. Sweetwater originally certified a FEIR for phase 1 of this project on March 13,

11 1996.

12 14. On February 24,2010, Sweetwater adopted resolution 10-03 certifying the FEIR

13 and approving the Richard A. Reynolds Brackish Groundwater Desalination Facility - Phase II

14 Expansion, adopting Findings of Fact and a Mitigation Monitoring and Reporting Program, and

15 Approving the Project.

16 15. According to the FEIR, the Project has nine (9) development components:

17 a. San Diego Formation Wells - This component of the project proposes to

18 drill five additional Formation groundwater wells, each with a building [13 feet by 23

19 feet by 10 feet high; or 300 square feet] housing the pump and appurtenances, and

20 associated electrical and instrumentation/control facilities, to increase groundwater

21 production capacity. These five additional wells will extract 850 gallons of groundwater

22 per minute and total six million gallons of extracted water per day.

23 b. Conveyance Pipelines: Each additional well (5 total) will require water

24 conveyance pipelines from their respective locations to the main pipeline, which main

25 pipeline ultimately connects to the desalination facility: Each pipeline will require boring

26 pits that are 8-feet-wide by 5-feet-deep, in order to convey the main pipeline under the

27 Sweetwater River. This component of the project will also require an additional 350

28

4
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 linear feet of treated water pipeline in order to deliver treated water to the National City,

2 Bonita, and Chula Vista communities.

3 c. Desalination Facility Expansion: This project component, while it does not

4 increase the footprint of the Desalination Facility, will involve updating internal systems

5 and water treatment processes.

6 d. Pre-Treatment System: This system will be updated to four (4) larger

7 capacity cartridge filters to meet the new capacity of water extraction. These cartridge

8 filters will operate to remove iron and manganese. This operation involves waste

9 backwash water recover, a backwash decanting tank and a recycle pump with

10 appurtenances.

11 e. Reverse Osmosis Treatment Trains - This system will be enhanced and

12 upgraded to include three (3) additional reverse osmosis (RO) treatment trains. This

13 enhancement will allow the facility to produce 9.0 million gallons per day of permeate

14 flow. Currently, the existing osmosis operation discharges 0.8 million gallons of

15 concentrate into the tidal zone of the Sweetwater River and ultimately into the San Diego

16 Bay. The expanded system will require that the facility discharge 2.5 million gallons of

17 concentrate into the Sweetwater River and Ultimately the San Diego Bay, per day.

18 f. Clean-in-Place System - This project component will replace the existing

19 "clean-in-place system" with a larger system, in order to clean a larger pressure vessel

20 system.

21 g. Degassifier, Clearwell, and Product Water Pumps - This project

22 component will add a third degassifier to the existing system and will replace three (3)

23 clearwell pumps with four (4) new pumps. The degassifiers will act to reduce corrosivity

24 in the water and the clearwell pumps will accommodate the increased capacity of

25 potentially 6 million gallons of potable water per day.

26 h. Civil Engineering - This project component consists asphalt and gravel

27 surfacing, curb access apron and driveway, and site storm drainage improvements.

28

5
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 1. Electrical - This project component consists upgrades to the current

211 electrical system. The electrical room will likely require modifications to the electrical

311 room cooling system due to the increased capacity of water extraction from the

411 Formation and the high burden this extraction places on the facilities internal systems.

5 16. The City and other agencies submitted written and oral comments and supporting

611 factual and scientific materials detailing, among other things, Sweetwater's failure to comply

711 with CEQA and of the adverse environmental effects that would result from the Project

811 Approvals. The City submitted its written comments on Sweetwater's Draft EIR on August 31,

9112009.
10 17. Sweetwater's responses to public comments submitted were inadequate. In its

1111 response to the City's written comments, Sweetwater failed to adequately address the City's

1211 concerns. Sweetwater dismissed many of the City's comments without adequate analysis or

13 II explanation. Some comments received no response.

14 18. The City reiterated, and in some cases focused, its concerns in a follow-up letter

1511 dated February 23,2010 and in testimony at the public hearing which took place on February 24,

1611 2010. Again, the concerns were not addressed.

17 19. All of the issues presented in this action were brought to the attention of Authority

1811 by either the City or the other commenting agencies during the administrative review process.

19 20. On February 24, 2010, Sweetwater certified the FEIR without having resolved the

20 II numerous deficiencies raised by the City or the other commenting agencies.

21 21. On or about February 25,2010, Sweetwater caused a Notice of Determination to

2211 be filed with the Office of Planning and Research, State Clearinghouse in Sacramento,

23 II California.

24 22. The City must bring this action for peremptory writ of mandate to set aside the

2511 FEIR and force Respondent to proceed in the manner required by law. By failing to address

2611 unmitigatable factors and failing to adequately address feasible alternative measures to the

2711 proposed development, Sweetwater's approval of the Project violated both the spirit and letter of

2811 CEQA.

6
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 23. The City complied with the requirements of California Public Resources Code

2 section 21167.5, by serving notice on Sweetwater of the City's intention to file this suit. Notice

3 was mailed on March 23,2010 to Sweetwater at P.O. Box 2328, Chula Vista, CA 91912-2328

4 505 Garrett Avenue, Chula Vista, CA 91912-2328. Copies of the notice and proof of service are

5 attached hereto as Exhibit "B" and incorporated herein by reference.

6 24. Petitioners have exhausted all administrative remedies.

7 STANDARD OF REVIEW

8 25. This action is brought pursuant to Section 21168 of the Public Resources Code

9 and Section 1094.5 of the Code of Civil Procedure, which require that a public agency's

10 approval of a project be set aside if the agency prejudicially abuses its discretion. Prejudicial

11 abuse of discretion occurs where the agency fails to proceed in a manner required by law, where

12 the decision is not supported by the findings, or where the findings are not supported by

13 substantial evidence in light of the whole record.

14 26. To the extent any of the approvals challenged in this action were not made as a

15 result of a proceeding which by law a hearing was required, evidence required to be taken, and

16 discretion and the determination of facts invested in the inferior tribunal, corporation, board, or

17 office, this action is brought pursuant to Section 21168.5 of the Public Resources Code and

18 Section 1085 of the Code of Civil Procedure which also require that a public agency's approval

19 of a project be set aside if the agency has prejudicially abused its discretion. Under these

20 sections, abuse of discretion is established if the agency has not proceeded in a manner required

21 by law or if the determinations or decisions are not supported by substantial evidence.

22 FIRST CAUSE OF ACTION

23 AGAINST ALL RESPONDENTS, DOES 1-25,

24 (Violation of the California Environmental Quality Act)

25 27. The allegations set forth above in paragraphs I -26 are incorporated herein as

26 though full y set forth in this paragraph.

27 28. The main goal of CEQA is to protect the environment. Cal. Pub. Res. Code §

28 21000-21002. The purposes of this goal are twofold: (a) to avoid, reduce, or prevent

7
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
111 environmental damage when possible by requiring alternatives or mitigation measures, and (b) to

2 II provide information to decision-makers and the public concerning the environmental effects of

3 proposed and approved activities. Cal. Code Regs, tit. 14 § 15002. (All citations to Title 14 of

4 the California Code of Regulations shall hereafter be noted as "CEQA Guidelines").

5 29. The EIR is the primary means of achieving the goals of CEQA. Cal. Pub. Res.

611 Code § 21001(a). It is "the heart ofCEQA." CEQA Guidelines § 15003(a). An EIR is an

711 "environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to

8 environmental changes before they have reached ecological points of no return." Laurel Heights

9 Improvement Association of San Francisco, Inc. v. Regents of the University of California (1988)

10 II 47 Ca1.3d 376, 393. The EIR is also intended "to demonstrate to an apprehensive citizenry that

1111 the agency has, in fact, analyzed and considered the ecological implications of its action." Id.

12 30. A public agency must not approve a project that causes significant environmental

1311 impacts if there are feasible alternatives or mitigation measures available that would reduce the

1411 project's environmental impact. Cal. Pub. Res. Code § 21002.1; CEQA Guidelines §

1511 15021(a)(2).

16 31. A project without feasible alternatives or mitigation measures that reduce

1711 significant impacts to the environment may only be approved upon substantial evidence that the

1811 project's benefits outweigh its impacts. CEQA Guidelines § 15093, subds. (a), (b). A lead

1911 agency must eliminate or substantially lessen the environmental impact ofthe project where

20 II feasible. CEQA Guidelines § 15126.4.

21 32. An EIR must identify and focus on the significant environmental impacts of a

2211 proposed project, giving due consideration to both its short and long-term effects. Cal. Pub.

2311 Resources Code, § 21100(a),(b); CEQA Guidelines § 15126. An EIR must similarly contain a

24 II "sufficient degree of analysis to provide decision makers with information that allows them to

2511 make a decision which intelligently takes account of environmental consequences." CEQA

2611 Guidelines § 15151. A lead agency must consider all reasonably foreseeable aspects of the
2711 project and all other projects in the area in its consideration ofthe cumulative impacts of the
28

8
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 project on the area. CEQA Guidelines § 15355. Conclusory comments in support of

2 environmental conclusions are generally inappropriate.

3 33. The FEIR violates each and every aforementioned requirement of CEQA as

4 follows.

5 Failure To Adequately Address Impacts To Water Supplies As A


Result Of Overdrafting The Aquifer And Exceeding Its Safe Yield
6

7 34. The FEIR does not adequately address and disclose the impacts related to

8 overdraft of the Formation. This is an issue of paramount import to the public, and it should be

9 properly disclosed, analyzed and any significant effects must be avoided or mitigated pursuant to

10 rules set forth in CEQA.

11 35. Sweetwater's Project has proposed to exceed the safe yield of the Formation and

12 thus has proposed to "overdraft" the aquifer. The overdraft of a groundwater aquifer is a

13 significant environmental impact and a potentially irreversible condition that occurs when the

14 amount of water pumped from an aquifer exceeds the "safe yield" of the groundwater aquifer.

15 Safe yield, in turn, has been defined as the maximum quantity of water that can be withdrawn

16 annually from a groundwater basin without causing an undesirable result, referring to a gradual

17 lowering of groundwater levels that eventually results in a depletion of the supply. Overdraft not

18 only affects water supplies as described here, but it can also lead to land subsidence, water

19 quality degradation and other significant environmental impacts that are described in more detail

20 in this petition.

21 36. The estimated safe yield of the Formation is between 3000 and 5000 acre feet per

22 year (AFY). The existing six wells have a production capacity of 4,320 AFY. The total capacity

23 of other existing users of the aquifer has not been analyzed by Sweetwater, but is likely

24 approximately 2,000 AFY. Thus, the present total pumping capacity is more than 6,000 AFY

25 and already exceeds the high-end estimate of the Formation's safe yield.

26 37. State CEQA Guidelines AppendixG requires Sweetwater to analyze whether its

27 Project would "substantially deplete groundwater supplies or interfere substantially with

28
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PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of

2 the local groundwater table." (VIIIb.)

3 38. The proposed Project and its five wells seeks to increase production capacity from

4 4,320 AFY to 10,560 AFY, more than double the high-end estimate ofthe safe yield. With

5 additional current projects drawing an estimated 2,000 AFY from the Formation, the total

6 capacity is approximately 12,500 AFY. The far reaching impacts of the likely overdraft have not

7 been adequately disclosed and analyzed in the FEIR, which under CEQA, would then provide

8 the tools for Sweetwater to either avoid or possibly mitigate any significant effects.

9 Failure To Adequately Address Impacts To Water


Quality As A Result of Saltwater Intrusion Into the Formation
10

11 38. A significant effect of overdrafting the aquifer is the intrusion of salt-water into

12 the Formation. In the FEIR, Sweetwater finds that the potential impacts of water quality

13 degradation to the Formation from saltwater intrusion is "less than significant," despite the facts

14 in the FEIR which show that saltwater intrusion will occur into the Formation. To be clear, the

15 urban areas in the San Diego region cannot afford to let saltwater intrude into this valuable

16 groundwater resource, particularly when it is caused by Sweetwater's pumping.

17 39. As a starting point, the finding itself is misleading. The finding reads: "The

18 proposed project could increase the pumping rate by over 3,000 acre-fee/year, which may exceed

19 the Formation's safe yield and/or result in seawater intrusion. (Less than significant)." When the

20 City sought clarification of actual production capacity, Sweetwater revealed that the increased

21 well production capacity is 6,240 acre-feet per year, more than double the number referenced in

22 the finding.

23 40. The problem is compounded by the Project description, which is not stable and

24 accurate. The description seeks to minimize impacts. In the draft EIR, the total pumping

25 capacity of the project is described as 5 million gallons per day (MGD) (Section 3.7.1) and

26 sometimes 6 MGD. When the City sought clarification of the discrepancy in its comment letter,

27 Sweetwater set forth a table showing production as 7.2 MGD, 44% higher than the 5 MGD

28 figure. This mistake within the draft EIR put the City and other agencies in a difficult position

10
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 because these agencies gauged impacts based on the lower, incorrect figures. Had Sweetwater

2 disclosed the correct information initially, the City and other reviewing agencies would have
3 been better able to assess impacts. Also, the Notice of Preparation for the Draft EIR described

4 the project as having only four pumps, one less than the presently proposed Project.

5 41. Also, the finding of "less than significant" is based on faulty reasoning and does

6 not address the facts. The conclusion that the impact is less than significant is not supported by

7 the actual numbers, but instead is based on numbers well below anticipated production.

8 However, even the analysis of the lesser numbers do not support a "less than significant" impact.

9 Based on studies performed in the mid 1990s, the FEIR states that total extraction of 1.8 MGD

10 would not result in seawater intrusion, but that extraction of3.6 MGD (4,000 acre-feet/year)

11 "would result in depressed groundwater levels that could include some seawater intrusion." The

12 referenced studies go on to conclude that "[i]ncreasing the pumping rate to 7.2 MGD was

13 predicted to produce large-scale seawater intrusion" that could ultimately extend throughout

14 much of the Formation.

15 42. There is no analysis done related to the actual numbers, which are far greater than

16 the analyzed numbers. The analysis performed does not support a conclusion that the proposed

17 total well production of 12 MGD (10,560 acre-feet per year) will have a "less than significant"

18 impact on water quality within the Formation. In fact, the analysis supports the opposite

19 conclusion. If7.2 MGD creates a significant impact, then certainly 12 MGD would do the same.

20 It should be noted that present projects not analyzed by Sweetwater bring the production number

21 to in excess of 14 MGD.

22 43. Under Appendix G of the CEQA Guidelines, a substantial degradation of water

23 quality is a significant impact. Also, a significant impact is caused by a project that

24 "substantially deplete[s] groundwater supplies[.]" Based on the analysis within the FEIR, these

25 significance thresholds are met and the impacts should be disclosed and properly addressed

26 under CEQA. A "large-scale" seawater intrusion into the Formation both degrades the water

27 quality and depletes the potable groundwater supply.

28

11
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 44. Under its own planning document, Sweetwater sets forth monitoring goals "to

2 ensure that activities of Sweetwater Authority are not causing seawater intrusion." (Sweetwater

3 Authority Interim Groundwater Management Plan.) Sweetwater should have used its own

4 planning document to set the threshold for significance, i.e., any intrusion of salt water caused by

5 the project is a significant impact. At the very least, there should have been a discussion within

6 the FEIR as to why Sweetwater did not use its goals within the planning document. Indeed,

7 CEQA requires a discussion of inconsistencies between the FEIR and applicable planning

8 documents. CEQA Guidelines § 15125(d).

9 45. Instead of using its own guidelines or the Appendix G Guidelines, Sweetwater

10 uses an arbitrary significance threshold and provides no reasoned explanation for its use.

n According to Sweetwater, there is no significant impact on water quality unless there is a direct

12 impact on wells in proximity to the Project. This threshold ignores CEQA's requirement to

13 analyze all impacts caused by the Project, whether direct or indirect. Sweetwater's significance

14 threshold is arbitrary because it assumes that saltwater intrusion would only occur in the limited

15 area close to the Project. Instead, salt water intrusion could occur at any location within the

16 Formation that is in proximity to salt water and where water is being depleted as a result of

17 pumping. Here, because extraction from the Project is more than double the estimated safe yield,

18 it is probable that water depletion will occur throughout the Formation. Indeed, this very

19 conclusion is drawn from the above-referenced studies addressing impacts of 7.2, MGD

20 production, which is nearly half of the Projects capacity together with other current projects.

21 46. Moreover, the mitigation measure is inadequate because it does nothing to prevent

22 the saltwater intrusion-it only determines the intrusion after the fact. By that time, the damage

23 is done. The City proposed more comprehensive measures to address and monitor the issue,

24 including a monitoring program that delineates the existing seawater front and the establishment

25 of baseline salinity measurements using a network of monitoring wells along bay front and/or

26 ocean front including a series of monitoring wells located radically outward from the production

27 well field. These monitoring programs would broadly protect the resource. Also, the suggested

28 programs would actually protect the resource prior to irreversible damage. If seawater intrusion

12
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 is detected in the early stages, existing production wells can be protected and mitigation

2 measures such as groundwater injection could potentially remedy the damage. Sweetwater

3 ignored these suggestions.

4 Failure To Adequately Address Subsidence And To Provide Adequate Mitigation

5 47. The FEIR also fails to address another likely impact of extracting more than

6 double the estimated safe yield from the San Diego Formation=subsidence. In the initial study,

7 Sweetwater acknowledges subsidence is a potentially significant impact. However, the draft EIR

8 does not adequately address the potential impacts associated with the geological changes that

9 could occur as a result of this pumping. Sweetwater ultimately concludes that the impacts are

10 insignificant with mitigation. However, the finding is based on unsupported assumptions.

11 Contrary to the findings, these impacts are significant and must be disclosed and addressed under

12 CEQA rules. Also, the mitigation measures do not address all potential impacts, and do not

13 . adequately address those limited impacts it purportedly seeks to prevent.

14 48. As an initial matter the FEIR does not state a threshold level of significance for

15 subsidence. The FEIR states that the elastic threshold for the Formation-i.e., the amount of

16 subsidence that is potentially reparable-is 3 centimeters. It appears this is the threshold level of

17 significance used by Sweetwater. However, any subsidence over the Formation should be

18 considered significant. Under Appendix G of the CEQA Guidelines, the significance threshold

19 is met if "there would be a net deficit in aquifer volume or a lowering of the local groundwater

20 table level." Thus, under CEQA Guidelines, the significant threshold is met by the occurrence of

21 the condition that causes subsidence--i.e., a condition that occurs prior to actual subsidence.

22 49. Section 3.5 of the FEIR explains the potential for significant subsidence that

23 results from overdraft, citing the San Joaquin Valley as an example. (Section 3.5.2.) The FEIR

24 then states that it is currently unknown (a) how large the San Diego Formation aquifer is and (2)

25 if the proposed extraction beyond the safe yield would cause a significant impact associated with

26 subsidence. (Section 3.5.4.) Then, inexplicably, the FEIR states: "Currently, it is assumed that

27 an increase of extracting 6 [MGD] of brackish water would not significantly impact the aquifer,

28 nor result in permanent (inelastic) subsidence." There is no support for this conclusion. In fact,

13
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 the conclusion contravenes the logical conclusion that extraction beyond double the estimated

2 safe yield will cause subsidence, as it did in the San Joaquin Valley.

3 50. Sweetwater cites to no efforts of its own to investigate or study the subsidence

4 Issue. Instead, Sweetwater references an ongoing study by the United States Geological Survey

5 (USGS) that will identify subsidence at some unknown future date-i.e., after it has occurred.

6 (Section 3.5.4.) This is inadequate because CEQA does not allow a lead agency to hide behind

7 its own failure to gather relevant data.

8 51. The proposed mitigation measure is inadequate for several reasons including the

9 fact that it does not mitigate impacts over the relevant geographical area. CEQA requires an

10 analysis of the geographical areas in which significant effects would occur either directly or

11 indirectly. Moreover, an EIR should provide an explanation supported by evidence for the

12 geographic area analyzed. CEQA Guidelines § 15130(b )(2). The area impacted by the Project is

13 the land over the Formation. Despite the fact that the Formation encompasses an area far beyond

14 the area where the wells are proposed, Sweetwater proposes to monitor only the area in

15 immediate proximity to the wells. The FEIR should have analyzed the potential for widespread

16 subsidence throughout the entire Formation area. The FEIR contains no explanation for why it

17 did not consider the entire relevant area.

18 52. Moreover, the time committed to monitoring is inadequate. The FEIR describes a

19 monitoring period of only five years. However, the probability of subsidence is far greater as the

20 water resource is further depleted through the years. Unless there is a relatively immediate

21 impact, there will be no mitigation in place. Thus, the five year monitoring plan does not even

22 adequately monitor the potential impacts in the immediate vicinity of the wells.

23 53. Furthermore, the monitoring techniques are inadequate. Sweetwater relies on

24 measurements from USGS, which uses a technology called Inferometry with Synthetic Aperture

25 Radar (INSAR). It should be noted that some subsidence has already been detected at the

26 Project site using this technology, which supports a conclusion that further subsidence will occur

27 with increased extraction. INSAR is a relatively limited and experimental technology. A

28 licensed land surveyor should establish the baseline elevation measurements and provide the

14
PETITION FOR WRlT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 official yearly records. To adequately monitor subsidence, the survey area should be expanded,

2 monitored more frequently, and monitored indefinitely. The City made these suggestions, and

3 Sweetwater ignored them.

4 54. Furthermore, because the analysis. of subsidence is deferred to further studies by

5 the USGS, the potential impacts are not analyzed prior to approval of the project. This is counter

6 to a primary CEQA goal-informed decision-making. Subsidence is an irrecoverable effect on

7 the environment that should be prevented. Subsidence is a serious and likely ramification of

8 overdraft. Sweetwater acknowledges the likelihood of subsidence, but seeks to avoid a real

9 discussion ofthe issue by finding a less than significant impact. To the contrary, this is a

10 significant impact that must be disclosed and must be addressed through CEQA.

11 Failure To Investigate And Disclose Cumulative Impacts

12 55. An EIR must discuss cumulative impacts of a project when the project's

13 incremental effects are significant when viewed in connection with the effects of past projects,

14 current projects, and probable future projects. The EIR must state a basis for finding no

15 cumulative impacts.

16 56. Beyond a statement that "[e]xisting production from the Formation is estimated at

17 4,590 AFY[,]" (p. 3.7-4) there is no discussion of cumulative impacts on the safe yield ofthe

18 Formation. Therefore, there is no discussion of cumulative impacts on the issues of saltwater

19 intrusion and subsidence caused by exceeding the safe yield. There is no discussion as to what

20 date the estimated 4,590 AFY relates, or to any other specific project that impacts the production

21 except for Sweetwater's current desalination project.

22 57. The current project's annual production between years 2000 to 2008 range from

23 2,050 to 3,685. (p.3.7-6) Thus, based on the 4,590 figure, Sweetwater could safely assume that

24 other projects extract an approximate 1,000 to 2,500 AFY. The FEIR lists several projects that

25 may contribute to cumulative impacts, but none listed are wells or projects that extract from the

26 Formation. In fact, there is no evidence that Sweetwater investigated this issue. The City even

27 provided documentation to Sweetwater showing the ground water production was an estimated

28 2,000 AFY prior to Sweetwater's initial project. Sweetwater ignored the data.

15
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 58. The current projects should have been considered on the overdraft issue. The

2 proposed capacity ofthe Project (10,560 AFY) together with the estimated 2,000 AFY of the

3 other projects total over 12,500 AFY-more than two and a halftimes the safe yield of the

4 Formation. Sweetwater did not adequately analyze, and did not even address, this issue.

5 59. Considering the importance ofthe issue to a determination of whether the project

6 exceeds the safe yield and to what extent, an investigation was warranted. Indeed, it would have

7 been a fairly simple matter in that the San Diego County Department of Environrnental Health

8 has a record of all permit holders for all wells in San Diego County.

9 60. Also, the City informed Sweetwater of a project it intends to construct within 4 to

10 5 years. Sweetwater chose to ignore this project as well.

11 61. Without an analysis of the current projects and probable future projects, the

12 FEIR's determination that cumulative hydrological impacts are less than significant is without an

13 adequate evidentiary basis.

14 Failure To Disclose Impacts Related To Increased Brine


Discharge And Turbidity And Failure To Adequately Mitigate
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62. .Under Appendix G of the CEQA Guidelines, a water quality impact will be
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17 considered significant if, among other things, it "substantially degrade[s] water quality." The
18 proposed Project will increase brine discharge threefold, from 0.8 MGD to 2.5 MGD. There is

19 no adequate discussion of the potential surface water quality impacts from this increase. Instead,
20 the finding of "less than significant" appears to be based on nothing more that the fact that

Sweetwater is in the process of obtaining a modification to a discharge permit with the Regional
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Water Quality control Board that will have threshold and monitoring requirements. However,
22

23 this does not relieve Sweetwater of meetings the CEQA requirements itself. Sweetwater failed
to adequately address the brine discharge issue because there is no reasoned explanation for why
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an additional 1.7 MGD of brine discharge into open waters does not substantially degrade the
25
water quality.
26
27 ////

28 1111

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PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 Failure To Disclose Impacts Related To Aesthetics
And Failure To Adequately Mitigate
2
63. The FEIR fails to adequately disclose and analyze significant visual impacts of
3
wells #7,8, and 11. The FEIR discloses the impacts as "less than significant" based on
4
inadequate mitigation measures. The mitigation measures are improper because they are
5
6 unenforceable, not specific, speculative, and deferred.

Failure To Disclose Impacts Related To Biologically


7
Sensitive Resources and Failure to Adequately Mitigate
8
64. The FEIR fails to adequately disclose and analyze impacts to biologically
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sensitive resources and consistency with relevant programs and plans. The analysis is
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improperly deferred to an indefinite future date. Also, the FEIR does not adequately analyze
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potentially significant impact to marsh and riparian habitat quality caused by an overdraft of the
12
Formation, which in turn may impact overlying aquifers that directly affect these resources.
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Also, the mitigation measures to address these potential impacts are inadequate. The U.S. Fish
14
and Wildlife Services proposed several mitigation measures that could address these potential
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impacts. However, Sweetwater did not commit to implement the proposed measures.
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PRAYER FOR RELIEF
17
WHEREFORE, Petitioners request the following relief:
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1. That the Court issue a Writ of Mandate declaring that the Environmental Impact
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Report and all other Project Approvals granted by Respondent on or about February 24,2010 are
20
null and void and of no force and effect and commanding Respondents to vacate and set aside
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the resolution of approval of the EIR and all Project Approvals.
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2. For an Order directing Respondent to prepare an EIR that analyzes the potential
23
environmental impacts of the Richard Reynolds Brackish Groundwater Desalination Facility-
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Phase II Expansion and sets forth adequate mitigation measures arid alternatives prior to any
25
subsequent reconsideration or approval ofthe Project;
26
3. For a temporary restraining order as well as preliminary and permanent injunction
27
restraining and enjoining Sweetwater and its agents, officers, employees, and all those working
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17
PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS
1 in concert with it, from approving or relying on any Project approval or approving or accepting

2 applications for the same until such time as Respondent complies with the Writ of Mandate.

3 4. That this Court retain jurisdiction until the Writ of Mandate has been complied

4 with and such compliance has been approved by the Court;

5 5. That Petitioners be awarded reasonable attorneys' fees and expenses pursuant to

6 Code of Civil Procedure Section 1021.5 and Government Code Section 800;

7 6. That Petitioners be awarded their costs;

8 7. For other and further relief as the Court deems just and proper.

10 Dated: March Zl, ,2010 JAN I. GOLDSMITH, City Attorney

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12 Bv

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14 Attornevs for Petiti ner,


Citv of San Diego
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PETITION FOR WRlT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS