petition for writ of mandate and complaint for declaratory and injunctive relief
TRANSCRIPT
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8/9/2019 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief
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REMY MOOSE
MANLEY,
LLP
2
HOWARD F. WILKINS IT(, SBN 203083
JENNIFER
S. HOLMAN, SBN 194681
3
555
Capitol Mall, Suite 800
Sacramento, CA 95814
4 Telephone: .(916) 443-2745
Facsimile: {916)443-9017
Email: [email protected]
7 Attorneys for Petitioner and Plaintiff
8
MARINA
COAST WATER DISTRICT
" " " " " ' F
t . ' :
\
J N l 5
2U15
l
),'
' '' ''r'
EXEMPT FROM FILll IG FEES
[GOVERNMENT C O D ~
61
03]
9
1 0
SUPERIOR COURT
FOR
THE
STATE OF
CALIFORNIA
COUNTY OF SANTA CRUZ
11
MARINA COASTWATERDISTRICT, and
12 DOES 1-10,
13
14
15
16
v.
Petitioner
and.Plaintiff,
C L W O R N t S T ~ r E L N D S
17
COMMISSION,
and
DOES 11-50,
CV1S 895
Case
o : ~
PETITION FOR WlUT OF
MANDATE
AND COMPLAINT FOR
DECLARATORY AND
INJUNCTlVE
RELIEF
(C.C.l'.
1094.5 (1085); California
Enviromqental Quality Act ( CEQA ))
Filing Date of Action:
18
9
Respondents and Defendants. January 15,2015
~ ~ ~ ~ ~ ~ ~ ~ ~ ~
20
CALWORNIA-AMERICAN W ATER
CO:MPANY, a California water corporation,
21 and
DOES
51-100,
22
Real Party in Interest
. 23
24
25
I l l
26
27
I I
28
ll
PE'J.tnON
FOR WRIT
OF
MANDATE AND COMl LAINT
FOR
DECLARATORY AND JNJUNCTIVE
REIJEF
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Petitioner and Plaintiff Marina Coast Water District ( MCWD or the District ) alleges
2 as
follows:
3
INTRODU TION
4
1
This action challenges the decision ofRespondent 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,
t
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
7
( 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
PETITION OR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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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 ofmandate 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.
12
6.
P RTIES
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 tlnough 0 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
oinecl
as Petitioners and Plaintiffs in this proceeding. Petitioner will a1nend this Petition,
2
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1 with leave o the Court i 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
4
has jmisdiction and management control over certain public lands
o
the State. The State Lands
5
Commission's authority is detailed in Division 6 o the California Public Resomces Code. The
6
State Lands Commission approved the Lease for the Project
at
issue in this case.
7
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
infonned and believes, and on the basis
o
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 o these respondents have been determined, MCWD '\ ill amend this
12 petition, with leave o the Court i necessary,
to
insert such identities and capacities.
l 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
o
American Water, the largest
16
i n v e s t o r o w 1 1 e ~ water and wastewater utility company in the United States. American Water
17
has
its headquarters in Voorhees, New Jersey. Cal-Am is the recipient
o
the Lease approved by
18
the State Lands Commission at issue
:in
this case.
19 11. MCWD
is unaware o the true capacities o 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 o the Court i necessary, to insert such identities
25
and capacities.
26 JURISDICTION ND VENUE
27 12.
Tllis Court has
j1;U isdiction
over tllis action pmsuant
to
Code
o
Civil Procedure
28 sections 526, 526A, 1060, and 1094.5, as well as Public Resources Code section 21168.
3
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1 Alternatively, this Court has jurisdiction under Code ofCivil 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 o
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'].)
8
BACKGROUND
9 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
0
11 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.
4
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 ofMarina.
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
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1 groundwater as part ofan 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,
2
Cal-Am filed an application with the CPUC
for
the MPWSP, which includes shint wells that
l3
14
15
16
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
t e
other
related facilities.
The
CPUC
is
currently preparing an EIR
for
the MSWP, which
is
the
CPUC
has
been ordered to publish no later than January 30, 2015.
17
18
24. According to tl1e CPUC website
for
the MPWSP which
is
included witl1 a link in
tl1e Coastal Commission Staff
Report),
the proposed MPWSP would include the following
19
20
21
22
23
24
25
26
27
28
facilities:
seawater intake system consisting of eight 7 50-foot-long
subsmface
slant wells
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 ofthe pumped water to the
ocean. Cal-
Am intends
to
use the slant well
as
a
5
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long-term production
well
for the
MPWSP.
2 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
6
the MPWSP-and therefore refused to analyze or mitigate the potential long term impacts
of
7
either the slant
well or
the overall project-the Coastal Commission's
various
policy statements
8
rejecting alternatives are
all
based on the assumption that the slant well
is
a necessary first
9
step in the overall MPWSP.
10
28.
In approving
the
Project without analyzing the potential long-term impacts
of
the
slant well and the siting
of
l1e 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
6
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
30.
First, as part of
the
overall MPWSP, the slant well required the approval
of
the
19
CPUC.
20
31. Second, the slant well required a lease from tl1e State Lands Commission as
21
explained below.
22
32. Third, the slant well required a coastal development permit
from
tl1e City of
23
Marina
for
the land-side elements ofthe Project.
24
33.
Fourth, tl1e slant well required a coastal development permit from the Coastal
25
Commission
for
those
elements
oftl1e Project that are tmder submerged
lands
and subject
to
a
26
lease from the State Lands Conunission.
27
28
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1
2
3
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 CalAm 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 E.
25
26
The Coastal Commission acted ult ra 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.
27 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
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1 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 o he 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 o
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 i 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 interestin 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
o
a permit
20 under a certified Local Coastal Program
in
very linuted circmnstances. [A]fter certification of
21
a local coastal program, issuance
o
coastal development permits
is
the purview
o
the local
22
govemment, not the Coastal Commission. City
o
Malibu v. alifornia oastal 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 CEQ A.
27
Hines
v.
alifornia oastal ommission
(2010) 186
Cal.App.4th
830,
852 [ The Coastal
28
Commission lacks jurisdiction to review a local goverrnrtent's compliance with CEQA. ].)
8
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1 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 ofMarina'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.
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1
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
n v r
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
t
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
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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
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 ofMarina 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.
t
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
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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.
n
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.
Under
CEQA,
any party may bring an action or proceeding-
26
27
28
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
12
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2
comply with
t is
section shall be conm1enced not later than 30 days from the date
of the filing
o
notice
o
the approval or adoption
o
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 o 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 o 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
o
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
submerged lands, beds
o
navigable rivers, streams, lakes, bays, estuaries, inlets, and straits. The
State Lands Conmrission manages these sovereign lands for the benefit
o
all the people ofthe
12
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 o 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
o
State lands by the State
21
Lands Commission requires review for compliance with
CEQA.
22
60. MCWD
became aware that the State Lands Cmmnission planned to consider
23
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 CEQA-equivalent document prepared by the
25
Coastal Commission (i.e., the Coastal Connnission's Staff Report and Addenda)
i
t 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
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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.
7 62. On
December
12, 2014
the
State
Lands Conunission posted a seven-page Staff
Report
for
the General Lease-Right-of-Way Use
on
its website. The Staff Report does not
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.
1 I 63. With regard to its duty
to
comply with CEQA, the Staff Report merely
12 reconm1ended that the
State Lands
Commission:
13
14
15
16
17
8
19
20
21
22
23
24
25
26
27
28
Find that California Coastal Commission (CCC) Appeal No. A-3-MRA-14-
0050,
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.
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.
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 l e
California State
Lands
C01mnission acting as a responsible agency to use the environn1ental docmnent to comply
14
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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,
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
ir
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,
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
CEQ A-equivalent document prepared by the Coastal Conunission.
15
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1 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 CEQ
A
The Staff Report further stated,
n
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
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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.
4
ST NDING
5 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 ofMarina, 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 n this litigation is subject to restrictions set forth in the Annexation
28
Agreement. The Armexation Agreement protects tl1e groundwater resources of the Salinas
17
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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
4 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.
6 79. The grounds for noncompliance with CEQA alleged n 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.
9 80 MCWD has exhausted its administrative remedies.
10
STATUTE
OF
LIMITATIONS
11
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,
s
21167), and allY other applicable
sta1:ute of
15
litnitations.
16
NOTICE
OF
CEQA
SUIT
17 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.
22
23
24
FIRST CAUSE OF ACTION
Violations
of CEQA
(Public Resources Code,
21000 et seq.)
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
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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 o
Newport 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
n
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
r 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 he project could be considered n 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
t e
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
t e
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
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OJ?
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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 CEQA's procedural
and
substantive
8 requirements. (See Planning and onservation League v Departmento
Water
Resources
9 .(2000) Cai.App.4th 892,
906
[appointment of he wrong lead agency requires reversal].) For
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
example:
a. The public review period provided by the Coastal Commission
was
inadequate
under both the letter and spirit ofCEQA. The Coastal Conunission's Staff
Report was
made
available to the public on
October
31,2014. Coastal
Commission staff infonned MCWD that they would not respond to comments
in writing unless
comments were
submitted early on Friday, November 6. As a
result, the public (as well as responsible
and
trustee agenies) was afforded a
mere
four
business days to review and c01mnent
on
the document. The Coastal
C01mnission
then engaged in a
bewilderh1g
process of amending and re
releasing the Staff Report multiple thnes before the Coastal Conmlission's
hearmg
on
November
12,2014.
More thanl,OOO+
pages
of
addenda
to
the
Staff Report were released
on
Veteran's Day, a national holiday, the day prior
to the Coastal Commission's hearing. Moreover, the addenda failed to include
the comment letters submitted by
MCWD.
b. The Coastal Connnission failed tore-notice and recirculate its environmental
document as required by CEQA. Certified regulatory programs, like the
Coastal Co.um1ission s, are subject to Public
ResolU ces
Code section21092.1,
which requires new public notice
and
recirculation
for
additional public
conu11ent when significant new information
is
added to an EIR (or CEQA-
zo
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1
2
3
4
5
7
8
9
10
equivalent document) after
its
original release for public review.
Joy Road
Area Forest and Watershed
Assn. v. Cal. Dept.
o
Forestry 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 CEQ
A
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
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a.
The State Lands Commission failed
to
make the findings required by CEQA.
Both lead and responsible agencies are required to make findings under CEQA
Guidelines section 15091. See CEQA Guidelines, 15096, subd.
h)
[ the
Responsible Agency shall make the findings requited by Section 15091 for
each significant effect
of
the project and shall make findings under Section
15093 if
necessary ]; see also
Resource Defense Fund v. Local Agency
Formation
Com,. (1987)
191
Cal.App.3d 886, 896 [ although the lead agency
prepares the EIR, the responsible agency must independently make its own
findings and conclusions. [Citations.] The guidelines further require
t11at t e
findings be written and accompanied by a supporting statement
of
facts.
[Citations.] ] disapproved
of
on
otl1er
grotmds by
Voices o
he
Wetlands v.
State
Water
Resources Control Bd
(2011)
52
Cal.4tl1499.) Section 15091
provides that
no
public agency shall approve or carry out a project for which
an EIR has been certified which identifies one or more significant
environmental effects oftl1e project unless the public agency makes one or
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1 more written findings for
each
oftb.ose significant effects, accompanied by a
2 brief explanation of the rationale
for
each finding.
CEQA
Guidelines,
3 15091,
subd.
a).) The findings required by subdivision a) shall be supported
4 by substantial evidence in
the
record.
CEQA
Guidelines,
15091,
subd.
b).)
5 The State Lands Commission failed to meet these minimum requirements
6 because:
7 1. The findings described in the Staff Report
are
conclusory.
8 2. The findings generally only address the requirements of CEQA
9 Guidelines section15253,
and
even then are not supported by
10
substantial evidence.
3. The fmdings
do
not include findings for each significant effect and
12 each mitigation measure as required by CEQA Guidelines section
3 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 .
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b.
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 o project alternatives, and its
own findings on overriding considerations that would justify
approval ofthe Project despite its enviromnental impacts.
CEQA
Guidelines, 15096, subd.
h),
15091,
15093.)
The State Lands
Conunissiou failed
to
make these findings.
6.
The State Lands Conmiission failed to consider whether there are any
feasible mitigation measures or alternatives that could lessen or avoid
the effects the Project.
t
was a prejudicial abuse of discretion
for
the State
Lands
Commission
to
rely
on the Coastal Commission's CEQA-equivalent doctm1ent because that
docmnent
is
inadequate under CEQA. Among other procedmal and
substantive flaws, the Coastal Commission:
1. Failed to provide an accmate and consistent project description. Instead,
the project description in the EIR functional equivalent document
is
inconsistent, misleading, and improperly segments the; Project;
2. Failed to establish an adequate enviromnental baseline;
3. Failed to consider a reasonable range o alternatives;
4. Failed to include an adequate alternatives analysis;
5.
Failed to comply with CEQA's mandatory public comment and review
period and
failed
to comply with its own regulations to provide
reasonable notice;
6. Failed to ensme the whole of
the
project was analyzed by allowing the
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1
2
3
4
5
6
7
8
9
10
11
12
13
.
14
15
16
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.
Failed to adopt findings supported by substantial evidence
as
required
by Public Resources
Code
section
21081
and
CEQA
Guidelines section
15091, 15093, and 15253.
11.
Failed
to
adequately disclose and timely respond
to
public comments;
12.
Failed to recirculate the EIR fnnctional equivalent document as required
by law when the Project and Project-mitigation was substantially
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
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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;
3.
For a peremptory writ
o
mandate directing the Respondents
to
comply with the
5 requirements
o CEQA
the CEQA Guidelines, and all other applicable
laws;
6
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
their behalf, from taking any action
to
further implement
the
Project, pending full compliance
10
with the requirements
o
CEQA, the CEQA Guidelines, and all other applicable laws;
11
12
and
13
14
6.
For an award o reasonable attorneys fees and costs in this action to Petitioner;
For such other
and
further relief that the Court deemsjust and proper.
Dated: January
15 2015
15
16
17
18
19
20
21
22
23
24
25
26
27
28
owardF.
Attorneys for Petitioner and Plaintiff
MARINA
COAST WATER DISTRICT
25
PETITION FOR WRIT
OF
MANDATE .AND COMPLAINT FOR DECLARATORY
AND
INJUNCTIVE RELIEF
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EXHIBIT
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28/29
REMY
MOOSE
MANLEY
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 . .
Joel
Jacobs
DeputyAttorney General
Office of
the Attorney
General.
1515 Oay
Street
Oaldand,
CA,
94612
-1499
F.
510-622-2270
Re: Notice o Conunencement o Action
Dear
Ms.
Lucchesi
and Mr. Jacobs:
""'
Howard
'Chip'
Wilkins
Ill
. :Please a l ~
notice
dmt
Marina O,ast Water
District
intends to file apetition and
complaint
underthe C-tlifomiaEnvironmentalQualityAct
(Pub.
Resources Q.de,
21000 t
r v q ~
( CEQA )
against the
C-ilifomia State
Lands Commission challenging the
Commission's approval of
a
General Lease,..
Right-of-
Way
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
ru d
permane11t
injtUJctions
resuuining the
State Lands
COmmission and its agents, employees, officers and
representatives
from
taking otheractions
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
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29/29
Ms.
Jennifer
Lucchesi
Mr. Joel Jacobs
January14, 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 t 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
E Q ~
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
ll
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
ll
other
applicable laws;
and
5. n 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.