Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief

8/9/2019 Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief

1/29

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]

[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


2/29

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


3/29

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

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


4/29

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

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTfVE RELIEF


5/29

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

PETITION FOR WRIT OF MANDATE AND COMPLAINT

FOR

DECLARATORY AND INJUNCTIVE RELIEF


6/29

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

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE R U F


7/29

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

PETITION FOR

WRIT

OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE R U F


8/29

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

-

PETITION

FOR

WRIT OF MANDATE AND COMPLAINT

FOR

DECLARATORY AND INJUNGr VE RELIEF


9/29

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

PETITION FOR WRIT OF MANDATE

AND

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


10/29

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.

9

PETI.TION FOR WRIT OF MANDATE

AND

COMPLAINT FOR DECLARATORY

AND

INJUNCTIVE RELIEF


11/29

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

PETITION FOR WRIT OF MANDATE AND COM PLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


12/29

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

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


13/29

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

PETITION

FOR

WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE

R U F


14/29

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

PETITION FOR WRIT OF MANDATE

AND

COMPLAINT FOR DECLARATORY

ND

INJIJNCTIVE RELIEF


15/29

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

PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE

R U F


16/29

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

PETITION

FOR

WRIT

OF

MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


17/29

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

PETD'ION FOR WRIT

OF MANDATE

AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


18/29

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

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


19/29

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

PETITION FOR WIUT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


20/29

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

PETITION l OR WRIT

OJ?

MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


21/29

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

PETITION

OR

WRIT OF MANDATE AND COMPLAINT OR DECLARATORY AND INJUNCTIVE RELIEF


22/29

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

21

PETITION OR WRIT OF MANDATE AND COMPLAINT OR DECLARATORY AND INJUNCTIVE RELIEF


23/29

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 .

. PETITION FOR

WRrr

OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE R U F


24/29

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

23

PETITION FOR

WRIT

OF

MANDATE

AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


25/29

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


26/29

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


27/29

EXHIBIT


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 . .

[email protected]

Joel

Jacobs

DeputyAttorney General

Office of

the Attorney

General.

1515 Oay

Street

Oaldand,

CA,

94612

-1499

F.

510-622-2270

[email protected]

Re: Notice o Conunencement o Action

Dear

Ms.

Lucchesi

and Mr. Jacobs:

""'

Howard

'Chip'

Wilkins

Ill

[email protected]

. :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


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.

Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief

Documents

Transcript of Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief