respondent's brief h038550 mcwd v. ag land trust

7/29/2019 Respondent's Brief h038550 Mcwd v. Ag Land Trust

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Case No. H038550(Monterey County Superior Court No. M1 05019)

COURT OF APPEAL OF THE STATE OF CALIFORNIASIXTH APPELLATE DISTRICT

MARINA COAST WATER DISTRICT,Respondent/Appellant,

v.

AG LAND TRUST,Petitioner/Respondent.

On Appeal from the Judgment of theMonterey County Superior Court, No. M105019Honorable Lydia M. Villarreal, Judge

RESPONDENT'S BRIEF

MICHAEL W. STAMP (72785)MOLLY ERICKSON (253198)LAW OFFICES OF MICHAEL W. STAMP4 79 Pacific Street, Suite OneMonterey, CA 93940Telephone: (831) 373-1214Email: [email protected]@stamplaw.us

Attorneys for RespondentAG LAND TRUST

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Case No. H038550(Monterey County Superior Court No. M105019)

COURT OF APPEAL OF THE STATE OF CALIFORNIASIXTH APPELLATE DISTRICT

MARINA COAST WATER DISTRICT,Respondent/Appellant,

v.

AG LAND TRUST,Petitioner/Respondent.

On Appeal from the Judgment of theMonterey County Superior Court, No. M1 05019Honorable Lydia M. Villarreal, Judge

RESPONDENT'S BRIEF

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TO BE FILED IN APP-008

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Notice: Please read rules 8.208 and 8.488 before completing form. You may use this form for the initialcertificate an appeal when you file your brief or a prebriefing motion, application, or opposition tomotion or application the Court of Appeal, and when you file a petition for an extraordinary writ. Youthis form a supplemental certificate when you learn of changed or additional information that must

1 This form is2. a. [l]

b.

submitted

Full name of interestedentity or person Nature of interest(Explain):

The undersigned certifies thatthe above-listed persons or entities (corporations, partnerships,firms, or any otherassociation, but no t ncluding government entities or thei r agencies) have either (1) an ownership inte rest of 10 percenformore in the party if t s an entity; or (2) a financla I or other interest in the outcome ofthe proceeding thatthe justicesshould consider in determining Whether to disqualify themselves, as defined in rule 8.208(e)(2).

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TABLE OF CONTENTSINTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1STANDARD OF REVIEW ON APPEAL . . . . . . . . . . . . . . . . . . . . . . 8STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Marina Coast Water District Is a Local Public Agency . 9B. The CPUC Regulates Private Corporations . . . . . . . . 10C. In 2008, Public Agencies Proposed a Public Project . 12D. The 2009 Environmental Impact Report . . . . . . . . . . . 13

1. FEIR Response to Comments . . . . . . . . . . . . . 142. Marina Coast Admitted the EIR WasInadequate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23I. THE SUPERIOR COURT PROPERLY DETERMINEDTHAT MARINA COAST WAS THE LEAD AGENCYUNDER CEQA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23II. THE SUPERIOR COURT PROPERLY DETERMINEDTHAT THE EIR IS LEGALLY INADEQUATE . . . . . . . . . . . . 28

A. Water Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291. CEQA Requires a Reasonable Analysis of

Water Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 292. The Basin Is in Overdraft . . . . . . . . . . . . . . . . . 303. The EIR Asserted that Water Rights WereNot an Environmental Issue . . . . . . . . . . . . . . . 314. Marina Coast's Argument on Appeal . . . . . . . . 33

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a. The EIR Did Not Discuss Water RightsNow Asserted by Marina Coast . . . . . . . 34b. The EIR Did Not Analyze theDeferral of Pumping . . . . . . . . . . . . . . . . 36c. The EIR Did Not Adequately Address theAmount of Pumping Required for theProject . . . . . . . . . . . . . . . . . . . . . . . . . . 38d. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 40

B. Six Other Substantive Defects in the EIR . . . . . . . . . . 401. Lack of Contingency Plans and Impacts

Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412. Assumption of Continuous GroundwaterPumping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423. Prohibition on Exportation of Groundwater . . . . 434. Brine Impacts on Outfall Pipeline . . . . . . . . . . . 445. Impacts to Overlying and Adjacent Properties . 456. Violations of Anti-Degradation Policyand Basin Plan . . . . . . . . . . . . . . . . . . . . . . . . . 46

C. Because the EIR Was Defective, a New EIR WasRequired to be Prepared by Marina Coast as LeadAgency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46Ill. THE SUPERIOR COURT HAD JURISDICTION OVER THECEQA CHALLENGE TO MARINA COASTS ACTIONS . . . 49

A. Public Utilities Section 1759 Does Not Affect TheSuperior Court's Lawful Exercise of Jurisdiction in thisCase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49B. The Superior Court Was Not Deprived ofJurisdiction by Public Utilities Code Section 1759,Subdivision (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

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C. The Cases Relied on by Marina CoastDo Not Apply to Public Agencies Not Regulatedby the CPUC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53D. The CPUC's Position Is Not Material orDispositive Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

IV. MARINA COAST'S REMAINING AFFIRMATIVEDEFENSES ARE WITHOUT MERIT . . . . . . . . . . . . . . . . . . 58A. Derivative Claims Relating to the CPUCHave No Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58B. Ag Land Trust's Challenge to Resolution 2010-18(Property Purchase) Is Not Separately Moot . . . . . . . 59C. Ag Land Trust's Claims Were Ripe as to Resolution2010-18 (Property Purchase) and 2010-20 (ProjectApprovals) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

1. Resolution 2010-18 (Property Purchase) . . . . . 622. Resolution 2010-20 (Project Approvals) . . . . . . 62

D. Ag Land Trust Exhausted Its AdministrativeRemedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

E. Ag Land Trust Did Not Fail to Join IndispensableParties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651. Statutory Requirements: CEQA . . . . . . . . . . . . 662. Statutory Requirements: Code of CivilProcedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

V. THE SUPERIOR COURT PROPERLY DENIED MARINACOAST'S MOTION TO AUGMENT THE ADMINISTRATIVERECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

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TABLE OF AUTHORITIESCASES

AmeriGas Propane, L.P. v. Landstar Ranger, Inc.(201 0) 184 Cai.App.4th 981 .............................. 48Asociacion de Gente Unida por el Agua v. Central Valley RegionalWater Quality Control Board (2012) 210 Cai.App.4th 1255 . . . . . . 46Bakersfield Citizens for Local Control v. City ofBakersfield(2004) 124 Cai.App.4th 1184 ............................. 59California Veterinary Medical Assn. v. City of West Hollywood(2007) 152 Cai.App.4th 536 .............................. 56Cedar Fair, L.P. v. City of Santa Clara(2011) 194 Cai.App.4th 1150 ............................. 62Cherry Valley Pass Acres &Neighbors v. City ofBeaumont(2010) 190 Cai.App.4th 316 .............................. 37Citizens Task Force on Sohio v. Board ofHarborCommissioners of the Port of Long Beach(1979) 23 Cal.3d 812, 814 (Sohio) ............ 6-7, 23-28, 51, 57City of Carmel-by-the-Sea v. Board of Supervisors(1986) 183 Cai.App.3d 229 ........................... 48-49City of Pasadena v. City ofAlhambra (1949) 33 Cal.2d 908 . . . . . 34City of Sacramento v. State Water Resources Control Bd.(1992) 2 Cai.App.4th 960 ................................ 27City of Santa Maria v. Adam (2012) 211 Cai.App.4th 266 . . . . . 9, 35County of Imperial v. Superior Cowt of Sacramento County(2007) 152 Cai.App.4th 13 .......................... 9, 66-67County of Orange v. Superior Court of Orange County(2003) 113 Cai.App.4th 1 ................................ 69

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Deltakeeper v. Oakdale Irrigation District(2001) 94 Cai.App.4th 1092 ........................... 67-68Environmental Protection Information Center v. California Dept. ofForestry (2008) 44 Cal. 4th 459 ............................ 34Federation of Hillside Canyon Assns. v. City of Los Angeles(2004) 126 Cai.App.4th 1180 .......................... 58-59Friends of Cuyamaca Valley v. Lake Cuyamaca Recreationand Park District (1994) 28 Cai.App.4th 419 ................. 27Galante Vineyards v. Monterey Peninsula Water ManagementDistrict (1997) 60 Cai.App.4th 1109 ..................... 34, 39Guardians of Turlock's Integrity v. Turlock City Council(1983) 149 Cai.App.3d 584 .............................. 48Habitat and Watershed Caretakers v. City of Santa Cruz(2012) 211 Cai.App.4th 429 ............................... 8Hartwell Corp. v. Superior Court of Ventura County(2002) 27 Cal.4th 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-54Katz v. Walkinshaw (1903) 141 Cal. 116 .................... 34Kaiser Foundation Health Plan, Inc. v. Zingale(2002) 99 Cai.App.4th 1018 .............................. 56Landry v. Berryessa Union School Dist.(1995) 39 Cai.App.4th 691 ............................... 48Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376 ........................... 51Los Angeles v. San Fernando (1975) 14 Cal.3d 199 ........... 30Madera Oversight Coalition, Inc. v. County of Madera(2011) 199 Cai.App.4th 48 ............................... 68MHC Operating Limited Partnership v. City of San Jose(2003) 106 Cai.App.4th 204 .............................. 66

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Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 . ....... 59Onofrio v. Rice (1997) 55 Cai.App.4th 413 ................... 490. W.L. Foundation v. City ofRohnert Park(2008) 168 Cai.App.4th 568 . ............................. 39Pacific Legal Foundation v. California Coastal Commission(1982) 33 Cal.3d 158 ................ . .......... . ....... 60People ex rei. Orloff v. Pacific Bell (2003) 31 Cal. 4th 1132 . . . 54-56PG&E Corporation v. Public Utilities Commission(2004) 118 Cai.App.4th 1174 . . . . . . ....................... 56Planning and Conservation League v. Department of WaterResources (2000) 83 Cai.App.4th 892 ............. 25, 27, 46-47Ross v. California Coastal Commission(2011) 199 Cai.App.4th 900 ................ . ............. 24San Diego Gas & Electric Company v. Superior Court( 1996) 13 Cal. 4th 893 (Covalt) .............. . ............. 53Santa Clarita Organization for Planning v. County of Los Angeles(2003) 106 Cai.App.4th 715 ................ . .......... 29, 33Santiago County Water Dist. v. County of Orange (1981) 118Cai.App.3d 818 .................... . . . . . . . ............. 34Sarale v. Pacific Gas and Electric Co.(201 0) 189 Cai.App.4th 225 ............................ . . 57Save Our Peninsula Committee v. County ofMonterey(2001) 87 Cai.App.4th 99 . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 29, 51Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 . . . . . 64Save the Sunset Strip Coalition v. City of W Hollywood(2001) 87 Cai.App.4th 1172 .......... . ................... 48Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12 . . . . . . 70

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Sunnyvale West Neighborhood Association v. City of Sunnyvale CityCouncil (201 0) 190 Cai.App.4th 1351 .................... 8, 28The Flanders Foundation v. City of Carmel-by-the-Sea(2012) 202 Cai.App.4th 603 ........................... 33, 38Uriarte v. United States Pipe &Foundry Co.(1996) 51 Cai.App.4th 780 .............................. 8-9Vineyard Area Citizens for Responsible Growth v. City of RanchoCordova (2007) 40 Cal.4th 412 . . . . . . . . . . . . . . . . . . 28-30, 35, 40Warburton/Buttner v. Superior Court (2002) 103 Cai.App.4th 1170 . 9Western States Petroleum Association v. Superior Court(1995) 9 Cal.4th 559 .................................... 68Woodward Park Homeowners Association v. Garreks, Inc.(2000) 77 Cai.App.4th 880 ............................... 60

CONSTITUTIONCalifornia Constitution, article XII, section 3 ................ 3, 10

STATUTESCode of Civil Procedure section 389 ....................... 67Code of Civil Procedure section 632 ....................... 48Code of Civil Procedure section 1094.5 ..................... 68Public Resources Code section 21000 et seq.................. 1Public Resources Code section 21005, subdivision (c) ......... 47Public Resources Code section 21 067 . . . . . . . . . . . . . . . . . . . . . . 23Public Resources Code section 21152, subdivision (a) . . . . 2, 17, 61Public Resources Code section 21167, subdivision (a) ......... 61Public Resources Code section 21167, subdivision (b) . . . . . . 17, 61

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Public Resources Code section 21167, subdivision (c) ......... 61Public Resources Code section 21167.6 ................. 69-70Public Resources Code section 21167.6.5 ................ 66, 67Public Resources Code section 21168.5 ..................... 8Public Utilities Code section 1759 . . . . . . . . . . . . . . . . 49-50, 53-57Public Utilities Code section 2106 ......................... 53

COURT RULESCal. Rules of Court, rule 8.204(a)(1 )(C) .................. 50, 68

OTHER AUTHORITIESCEQA Guidelines section 15050 .......................... 25CEQA Guidelines section 15051 ..................... 2, 28, 52CEQA Guidelines section 15051, subdivision (a) . . . . . 23, 24, 26, 53CEQA Guidelines section 15051, subdivision (b) . . . . . 11, 24, 26, 52CEQA Guidelines section 15051, subdivision (d) .............. 25CEQA Guidelines section 15065 (former section 15051 ),subdivision (c) ...................................... 24-25CEQA Guidelines section 15082 .......................... 11CEQA Guidelines section 15088, subdivision (c) .............. 33CEQA Guidelines section 15091 .......................... 18CEQA Guidelines section 15093 .......................... 18CEQA Guidelines section 15097 .......................... 18CEQA Guidelines section 15144 .................... 32, 40,46

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CEQA Guidelines section 15151 .................... 40, 43, 46CEQA Guidelines section 15200 .......................... 43CEQA Guidelines section 15204 .......................... 43CEQA Guidelines section 15352, subdivision (a) .............. 61

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INTRODUCTIONRespondent Ag Land Trust, a nonprofit public benefit

corporation, sued Marina Coast Water District, a local public agency,for failure to comply with the California Environmental Quality Act("CEQA," Pub. Resources Code, 21000 et seq.). The superiorcourt found that Marina Coast was the lead agency. The superiorcourt also found that Marina Coast in March 2010 and Apri1201 0approved a desalination project in reliance on an EIR that did notcomply with CEQA. The superior court ordered Marina Coast tovacate its approvals and prepare a legally adequate EIR.

Factual SummaryOn March 16, 201 0, the Marina Coast Water District approved

the purchase and annexation of approximately 224 acres of propertynorth of Marina. (4ROP1 1726-1824.) The property was the site forMarina Coast's proposed desalination plant and appurtenant facilitiesto be owned by Marina Coast and other public agencies. (4ROP1730.) In approving the purchase, Marina Coast relied on an EIRpreviously prepared by the California Public Utilities Commission(CPUC) (4ROP 1728-1732). Marina Coast filed a Notice of

1 "ROP" preceded by a number refers to the volume and pageof the Record of Proceedings (administrative record). "AA'' refers tothe Appellant's Appendix. "RT" preceded by a Roman numeralrefers to a volume and page of the Reporter's Transcript.

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Determination under CEQA (2ROP 1083-1085; Pub. ResourcesCode, 21152, subd. (a)). Ag Land Trust filed suit under CEQA.(1AA 1-20.)

On April 5, 2010, Marina Coast formally approved thedesalination project and facilities. (1 ROP 1-264.) The desalinationplant and most of the facilities were to be constructed, owned andoperated by Marina Coast. (1ROP 13-16.) Marina Coast made finalCEQA approvals and adopted CEQA findings and a statement ofoverriding considerations. (1 ROP 5-6.) The April 5, 2010 action byMarina Coast relied on the same EIR as its March 16, 2010 action.(1ROP 4, 6.)

Marina Coast was the first public agency to approve a projectin reliance on the EIR. Marina Coast was the first public agency toapprove the desalination project. (22AA 5512.)

Ag Land Trust appeared at Marina Coast's March and Aprilhearings. Ag Land Trust pointed out that because Marina Coast'sdesalination project would be carried out by Marina Coast, MarinaCoast was the lead agency for the project under CEQA Guidelines2section 15051 and Supreme Court precedent. Ag Land Trustsubmitted detailed documentation of EIR flaws, and attached

2 California Code of Regulations, title 14, hereafter "CEQAGuidelines."2



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evidence supporting its allegations. (3ROP 11 06-1725; 2ROP 595-1021 [letters]; 1ROP 554, 4ROP 1922 [minutes].)

Procedural SummaryOn April6, 2010, Ag Land Trust filed its First Amended

Petition against Marina Coast under CEQA. Ag Land Trust allegedthat Marina Coast violated CEQA in several significant ways.(1AA 21-41.)

Marina Coast argued in response that Marina Coast was notthe lead agency for the Marina Coast desalination plant, and thatMarina Coast could not be responsible for the EIR. (3AA 517-535.)Marina Coast argued that the CPUC was responsible for defendingthe EIR (3AA 517-521 ), even though the CPUC had not approvedMarina Coast's project. And the CPUC could not approve MarinaCoast's project, because the CPUC has authority only over privatecorporations, and not over public agencies such as Marina Coast.(Cal. Canst., art. XII, 3.) As the EIR said, "As a municipally ownedutility, the MCWD [Marina Coast] is not subject to the CPUC'sjurisdiction" (9ROP 4536, fn. 2), and "the CPUC would not haveauthority over any element . . . undertaken by the MCWD" (9ROP4532).

Relying on the argument that it was not responsible for theEIR, Marina Coast demurred to the CEQA petition and asserted that

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the superior court lacked jurisdiction over the lawsuit. (2AA 313-335.) The superior court overruled the demurrer. (3AA 539.) ThisCourt denied a subsequent writ petition filed by Marina Coast. (Caseno. H036084.) The Supreme Court denied Marina Coast's petitionfor review. (Case no. 8192285.)

Again relying on the argument that the superior court lackedjurisdiction, Marina Coast filed a motion for summary judgmentand/or adjudication. (4AA 997 to 5AA 1075.) The superior courtdenied the motion. (18AA 4447-4451.)

In October 2011, the superior court heard oral argument onthe CEQA petition. Marina Coast again argued that the superiorcourt lacked jurisdiction and argued, for the first time, that the EIRwas adequate. (IX-RT 2440-2444, 2449-2452, 2464-2498.) InDecember 2011, the superior court issued an intended decision.(21AA 5362-5384.) After further briefing, the court issued anamended intended decision. (22AA 5406-5440.) The court foundthat Marina Coast was the lead agency for the desalination project,and that the EIR was defective in each of the seven ways briefed byAg Land Trust. (22AA 5424-5425, 5435.) The court also determinedthat Marina Coast's arguments as to jurisdiction were notmeritorious. (22AA 5437-5438.)



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Before a judgment could be entered and the peremptory writissued, Marina Coast filed another writ petition in this Court. The writpetition claimed that the superior court lacked jurisdiction. (Case no.H038167.) This Court denied the writ petition. The Supreme Courtdenied the petition for review. (Case no. S204634 .

On April17, 2012, judgment was entered (22AA 5487-5528)and the writ issued (22AA 5529-5531 ).

Summary of This AppealOn appeal, Marina Coast raises the same jurisdiction

argument it raised in the superior court and raised twice before inthis Court and in the Supreme Court. Marina Coast devotes most ofits factual recitation to CPUC actions (Opening Brief of AppellantMarina Coast Water District (AOB) 1-21 ), and another twenty pagesarguing that the superior court did not have jurisdiction (AOB 26-45).This effort is an attempt to misdirect the focus from Marina Coast -and Marina Coast's public project- to the CPUC. The proper focusof the case is the action of Marina Coast, a local public agency thatis subject to superior court jurisdiction, and that is not subject toCPUC regulation.

The CPUC does not regulate public agencies, includingMarina Coast. It is undisputed that the CPUC has no authority overMarina Coast or over Marina Coast projects. Marina Coast and the



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EIR admit that fact. (2AA 934 [1f15, admitting ~ 1 5 of petition (1AA25); 9ROP 4536, fn. 2.) The CPUC did not- and could not- orderMarina Coast to proceed or to rely upon any environmentaldocuments. Marina Coast's actions were the decisions of MarinaCoast, not of anyone else.

Marina Coast's argument is based on a flawed premise: thatbecause the CPUC prepared the EIR, the CPUC must defend theEIR and the superior court has no jurisdiction. That is not the law. InCitizens Task Force on Sohio v. Board of Harbor Commissioners ofthe Port of Long Beach (1979) 23 Cal. 3d 812, 814 (Sohio), twoagencies - a local public agency and the CPUC -jointly prepared anEIR for a nongovernmental project proposed by a private corporationsubject to CPUC jurisdiction. The California Supreme Court heldthat when the local agency acts first to approve a project, the localpublic agency (the Port of Long Beach in Sohio, Marina Coast in thiscase) is the lead agency and the local public agency must defend theEIR. Sohio is on point.

The facts here are even more favorable to superior courtjurisdiction than those in Sohio, because unlike the private project atissue in Sohio, the CPUC never had jurisdiction over Marina Coast,or the Marina Coast desalination plant, or the appurtenant facilitiesthat were to be owned and operated by Marina Coast and other



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public agencies. As the superior court determined, Marina Coastwas the lead agency for this Marina Coast project, and Marina Coastis responsible for the EIR. (22AA 5512-5513, 5522-5523.) "Becausethe [local agency] was the first to act . . . , it became the lead agencyand hence was required to defend the adequacy of the entire EIR [inthe superior court] under Public Resources Code section 21167."(Sohio, supra, 23 Cal.3d 812, 814.)

Marina Coast argues that the EIR is adequate as to one of theseven EIR defects found by the superior court: the analysis of waterrights (AOB 45-50). As to the other six defects, Marina Coastpresents no argument, but merely cites to the transcript of its oralargument below (AOB 51, fns. 189-195).

Marina Coast presents several affirmative defenses, most ofwhich rely on the argument that the CPUC is responsible fordefending the EIR (AOB 31-39).

Marina Coast argues that the administrative record belowshould have been augmented with two documents. (AOB 52.)

ConclusionThe superior court correctly decided the case in favor of Ag

Land Trust. The judgment should be affirmed.



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STANDARD OF REVIEW ON APPEALJudicial review of an agency's decision to approve a project

extends only to whether there was a prejudicial abuse of discretion.Abuse of discretion is established if the agency has not proceeded ina manner required by law or if the decision is not supported bysubstantial evidence. (Pub. Resources Code, 21168.5; Save OurPeninsula Committee v. County of Monterey (2001) 87 Cai.App.4th99, 117 (Save Our Peninsula); Habitat and Watershed Caretakers v.City of Santa Cruz (2012) 211 Cai.App.4th 429, 438 (Habitat).) Thefailure to comply with the law subverts the purposes of CEQA if itomits material information. In such cases, the error is prejudicial.(Sunnyvale West Neighborhood Association v. City of SunnyvaleCity Council (2010) 190 Cai.App.4th 1351, 1392 (Sunnyvale West);Habitat, supra, 211 Cai.App.4th 429, 438.)

This Court reviews Marina Coast's CEQA actions de novo.(Sunnyvale West, supra, 190 Cai.App.4th 1351, 1371-1372.) Thatdoes not make the superior court's decision irrelevant. (Uriarte v.United States Pipe & Foundry Co. (1996) 51 Cai.App.4th 780, 791["The fact that we review de novo a grant of summary judgment doesnot mean that the superior court is a potted plant in that process"].)

The determination of subject matter jurisdiction is subject to denovo review. (Warburton/Buttner v. Superior Court (2002) 103



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Cai.App.4th 1170, 1180.) Where the challenge is to the sufficiencyof the evidence, the appellate courts defer to the superior court, andthe substantial evidence test is used if the facts are disputed. (Cityof Santa Maria v. Adam (2012) 211 Cai.App.4th 266, 286.)

The court reviews an indispensable party question for anabuse of discretion. (County of Imperial v. Superior Court ofSacramento County (2007) 152 Cai.App.4th 13, 25 ("County oflmperiaf').)

STATEMENT OF FACTSA. MARINA COAST WATER DISTRICT IS A LOCAL PUBLIC AGENCY.

Marina Coast Water District is a local public agency. (AOB 1,1ROP 1) Marina Coast pumps groundwater from the Salinas ValleyGroundwater Basin and provides that water to the City of Marina andthe former Fort Ord. (1 ROP 1.) Marina Coast's service area islocated north of the Monterey Peninsula. (1ROP 216, 501; 4ROP2133.)

As a public agency, Marina Coast is not subject to thejurisdiction of the California Public Utilities Commission (CPUC).(1 ROP 8; 9ROP 4532; see Cal. Canst., art. XII, 3.)



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8. THE CPUC REGULATES PRIVATE CORPORATIONS.The CPUC has regulatory authority over private corporations

that provide utilities within California. (Cal. Const., art. XII, 3.)California American Water Company (CaiAm) is a privatecorporation that delivers water. It is a "public utility" subject to CPUCjurisdiction. (1 ROP 2.)

CaiAm provides water to the Monterey Peninsula. (1 ROP 2,218.) CaiAm gets water from two sources: the Carmel River and theSeaside Basin. (4ROP 2062-2063.) CaiAm has been illegallydiverting water from the Carmel River without a legal right, causingenvironmental harm. (4ROP 2051.) In 1995, the State WaterResources Control Board ordered CaiAm to find another watersource. (Save Our Peninsula, supra, 87 Cai.App.4th 99, 108.) TheSeaside Basin recently was adjudicated. (4ROP 2063.)

In 1998, Assembly Bill 1182 directed the CPUC to prepare aplan alternative to a proposed CaiAm dam (4ROP 2055-2056). Thatdirection was satisfied when in 2002 the "Plan B" report was issuedrecommending a desalination plant at Moss Landing. (4ROP 2051;6ROP 3039.)

In February 2003, CaiAm applied to the CPUC for a "certificateof public convenience and necessity" for a CaiAm desalination plantin Moss Landing, or for an alternative site north of Marina.



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(2ROP 937-945.) The CaiAm proposals to the CPUC were calledthe "Coastal Water Project." (2ROP 937; 4ROP 1992.)

In September 2003, the CPUC determined that it would be thelead agency under CEQA on the two CaiAm proposals(14ROP 7676). The CPUC stated that it met the criteria for leadagency where a project is proposed by a nongovernmental entitysuch as CaiAm:

Under CEQA, where a project is to becarried out by nongovernmental entities, thelead agency will normally be the publicagency with the greatest responsibility forsupervising or approving the project as awhole.

(14ROP 7693; see 7670-7671, 7676, discussing CEQA Guidelines, 15051, subd. (b).) The bulk of the CPUC decision was devoted toratemaking issues involving the costs and rates to be charged toCaiAm's customers (14ROP 7679-7695).

In September 2006, the CPUC released a Notice ofPreparation of an EIR for the two CaiAm projects. (2ROP 937; seeCEQA Guidelines, 15082.) The CPUC has acknowledged that theEIR was to be the first water supply project EIR ever to be preparedby the CPUC. (2ROP 1104.)



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C. IN 2008, PUBLIC AGENCIES PROPOSED A PUBLIC PROJECT.In June 2008, Marina Coast and two other local public

agencies jointly proposed a public project as an alternative to thenongovernmental projects proposed by CaiAm. (4ROP 1994.) Noneof the three public agencies is subject to CPUC authority.

The "Regional Project" facilities were to be carried out andowned by the three public agencies:

1. Marina Coast was to construct and own: thedesalination plant; a pipeline for source water; a brinereturn pipeline; a pipeline for desalinated water;operations building, electrical building, and chemicalbuildings; laboratory facilities; parking lot; and accessroads. (1 ROP 13-16.) Marina Coast was to use someof the desalinated water to supply Marina anddevelopment in Fort Ord (4ROP 201 0), and was to selladditional desalinated water (1 ROP 2, 12, 142). MarinaCoast was to purchase capacity in outfall facilities fordisposal of brine. (1 ROP 16.)

2. Monterey County Water Resources Agency was toconstruct the source water intake wells and a pipelinefrom the wells to Marina Coast's pipeline. (1ROP 12-13.)



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3. Monterey Regional Water Pollution Control Agency wasto construct a brine receiving facility, and was to sellcapacity in its outfall facilities to Marina Coast for brinedisposal. (1 ROP 16.)

CaiAm was to be a secondary participant in the RegionalProject. (1 ROP 16-17.) CaiAm was to construct a distributionsystem to take some of Marina Coast's desalinated water (1 ROP 16,4ROP 2009) and deliver that water to CaiAm customers on theMonterey Peninsula (1ROP 16-17).

The source water for the desalination project was the 180-footaquifer near the coast. (1 ROP 12; 9ROP 4555.) The aquifer hassuffered significant seawater intrusion. (2ROP 755, 759; 4ROP 2263[map]; 5ROP 2684.)D. THE 2009 ENVIRONMENTAL IMPACT REPORT.

On January 30, 2009, the CPUC released a draft EIR thataddressed the two CaiAm projects and the recently added RegionalProject. (4ROP 1966.)

On August 10, 2009, at the request of Marina Coast, theCPUC agreed to bifurcate the certification of the EIR from any CPUCaction on a project. (4ROP 1944.)

In October 2009, the CPUC released a Final EIR (FEIR) onthe two CaiAm projects and the Regional Project. (4ROP 1965.) For



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the Regional Project, the FEIR stated that Marina Coast "would ownand operate desalination facilities," have "primary responsibilitiesrelated to water supply, project implementation, and agencycoordination," and would "initiate contact with" and "be responsiblefor coordinating" with other public agencies. (9ROP 4592; see 4ROP2009 [MCWD will be "Project Sponsor of the desalination facility"].)

1.:. FEIR Response to Comments.In response to public comments expressing confusion over the

lead agency for the Regional Project, the FEIR stated:[T]he regional desalination facility would beowned and operated by the Marina CoastWater District ("MCWD") . . . . As amunicipally owned utility, the MCWD is notsubject to the CPUC's jurisdiction.

(9ROP 4536, fn. 2.)If MCWD . . . were to own and operate thedesalination plant and/or the wells . . . , theCPUC would not have jurisdiction over thecomponents.

(9ROP 4534, fn. 6.)If the . . . Regional Project is selected, theMCWD, as owner and operator of thedesalination plant, would approve the plantitself (and any associated facilities that it



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would own) and would apply the EIR to thatdecision . . . .

(9ROP 4537.)The FEIR discussed the CPUC's authority over "public utilities"

(9ROP 4531-4538) which are defined as private corporations thatown, operate, control or manage a system for the production orfurnishing of water (9ROP 4531 ). CaiAm is a public utility. (Ibid.)The FEIR pointed out as follows:

Significantly, the CPUC does not havejurisdiction over municipally-owned utilitiesunless expressly provided by statute. . . .Marina Coast Water District ("MCWD") is amunicipally-owned utility . . . . The CPUChas no jurisdiction over the MCWD. Thus,as discussed below, the CPUC would nothave authority over any element of theCWP [Coastal Water Project] that ultimatelyis undertaken by the MCWD (. . . as isprojected for the Regional Project).

(9ROP 4532, emphasis added.) The CPUC acknowledged that ithad no power to require Marina Coast to approve or disapprove anyor all of the Project or the EIR:

Thus, for the Regional Project, the CPUCwould have jurisdiction over CaiAm'sportion, but not MCWD's [Marina Coast's].



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(9ROP 4535.)[T]he CPUC will neither consider adoptionof the Regional Project in its entirety norconsider adoption of all projects composingthe . . . Regional Project.

(9ROP 4538.)If the California Public Utilities Commission(CPUC) approves a project, local agencieswould then begin the process of localpermitting and approvals.

(9ROP 4583.)On December 17, 2009, the CPUC certified the FEIR.

(4ROP 1941.) The CPUC stated that its action was necessary"before determining whether to approve CaiAm's request for a CPCN[Certificate of Public Convenience and Necessity]" for one of theCaiAm projects. (4ROP 1961.)

2. Marina Coast Admitted the EIR Was Inadequate.Before the CPUC certified the EIR, the Regional Project

proponents, including Marina Coast, had already determined that theEIR was inadequate as to specific known environmental impacts ofthe Regional Project, including brine disposal. (3ROP 1172-1174[Nov. 2009 memo].) Marina Coast asked the Monterey PeninsulaWater Pollution Control Agency to perform further environmental

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review of brine disposal (3ROP 1172, 1176, 1178) with regard tocapacity and corrosion impacts (14AA 3410 [ROP 8167]). On March4, 2010, a report stated that the brine would have significantcorrosion impacts on the outfall (14AA 3430 [ROP 8187]).

On March 16, 201 0, Marina Coast approved the purchase andannexation of Armstrong Ranch property for Marina Coast'sconstruction of the Regional Project desalination plant. (4ROP 1726-1824.) For its approvals, Marina Coast relied on the EIR, as well asan EIR addendum prepared by Marina Coast. (4ROP 1825-1826,1883.)

On March 17, 2010, Marina Coast filed a Notice ofDetermination under CEQA regarding Marina Coast's approvals.(2ROP 1083-1085.) A Notice of Determination is formal notice thatan agency has decided to carry out or approve a specific project.(Pub. Resources Code, 21152, subd. (a).) The filing of the noticestarts a 30-day statute of limitations on court challenges to theproject approval under CEQA. (Pub. Resources Code, 21167,subd. (b).)

On April 5, 2010, also in reliance on the EIR, Marina Coastformally approved the Regional Project as a whole, including theMarina Coast desalination plant. (1 ROP 1-264.) Marina Coastadopted Resolution 201 0-20 ( 1 ROP 1-7) as "final" project approval

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(1 ROP 3 [8.1 0]). Resolution 2010-20 stated unconditionally asfollows:

(1ROP 6.)

NOW THEREFORE, BE IT RESOLVED, that . . . .2. The Directors hereby approve and adopt the

[CEQA] Findings . . . , pursuant to CEQA . . . .3. The Directors hereby approve and adopt the

Mitigation Monitoring and Reporting Plan . . . .pursuant to CEQA . . . .

Resolution 2010-20 approved: 78 pages of CEQA findings (1 ROP 8-85; see

CEQA Guidelines, 15091 ). CEQA statement of overriding considerations

(1 ROP 85-86; see CEQA Guidelines, 15093). CEQA mitigation monitoring chart ( 1ROP 88-115;

see CEQA Guidelines, 15097).(1 ROP 6 [items 1, 2, 3].)

These actions were final project approvals under CEQA, asthe superior court determined. (22AA 5511-5513.)

Before Marina Coast acted, Ag Land Trust commented on theproposed approvals in detail, and pointed out that Marina Coast'sactions would violate CEQA. (2ROP 595-1 021, 3ROP 11 06-1725[letters]; 1 ROP 554, 4ROP 1922 [minutes].)



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STATEMENT OF THE CASEOn April 6, 2010, Ag Land Trust filed its first amended petition

and complaint. (1AA 21-41.) The first amended petition challengedthe independent and voluntary actions taken under CEQA by MarinaCoast on March 16, 2010 and April 5, 2010. (1AA 30-33 [ ~ ~ 26-34].)The petition alleged that Marina Coast violated CEQA when MarinaCoast approved the Regional Project, despite being informed thatMarina Coast was the proper lead agency and that the EIR wasmaterially inadequate due to informational omissions and otherprejudicial errors under CEQA. (1AA 29-33.)

On July 23, 2010, Marina Coast certified the record ofproceedings. (1AA 180-182.)

On August 6, 2010, the superior court set the briefing scheduleon the merits of the CEQA petition for fall 2010. (2AA 302-303.)

On August 13, 2010, Marina Coast demurred to the firstamended petition, arguing that the superior court had no jurisdiction.(2AA 304-343.) On September 24, 2010, the court overruled thedemurrer. (3AA 538-539.)

On September 29, 2010, Marina Coast filed a petition for writof mandate in this Court (case no. H036084), challenging theoverruling of the demurrer. This Court did not grant the immediatestay or expedited consideration sought by Marina Coast.



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By October 29, 2010, the opening brief, opposition brief, andreply brief on the merits had been filed in superior court. (2AA 344-409; 3AA 494-537, 544-579.)

On April 6, 2011, this Court summarily denied the writ petition.Marina Coast sought Supreme Court review. In May 2011, theSupreme Court denied Marina Coast's petition for review (caseno. 8192285).

In June 2011, Marina Coast filed a motion for summaryjudgment and/or adjudication. (4AA 997 to 5AA 1075.) MarinaCoast asserted 215 undisputed material facts. (5AA 1029-1075.) InAugust 2011, the court denied the motion. (17AA 4367-4365, see18AA 4447-4452.)

Also in June 2011, Marina Coast moved to augment the recordwith post-approval documents. (4AA 989-996.) On July 12, 2011,the superior court denied the motion (14AA 3600-3601) and onAugust 11, 2011, the court amended its ruling (15AA 3651-3652).

On August 16, 2011, Monterey County Water ResourcesAgency (MCWRA) moved to consolidate this case with a superiorcourt case filed February 14, 2011 by Ag Land Trust againstMCWRA as a responsible agency. (16AA 3892-3948.) MarinaCoast did not join or oppose the motion, but filed a response arguingthat the upcoming October 2011 CEQA hearing in the Marina Coast



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case should not be moved. (18AA 4389-4394.) The case againstMCWRA was not yet at issue. The court denied the consolidationmotion (21AA 5354-5356), holding that consolidating at such a latestage would "substantially delay" the resolution of the Marina Coastcase (21AA 5355, line 16).

In June, August, and October 2011, the parties filedsupplemental briefing on issues ordered by the court: brine disposalimpacts (14AA 3377-3384, 3568-3578, 3595-3598); whether conflictsof interest voided the project approvals (17AA 4329-4336); and thesignificance of a lead agency finding (18AA 4494-4503).

On October 27, 2011, the superior court held its law andmotion hearing on the CEQA petition. (IX-RT 2401-2505.) OnDecember 19, 2011, the superior court issued an intended decisionin favor of Ag Land Trust. (21AA 5362-5383.) In January 2012,Marina Coast filed objections (22AA 5392-5403) and Ag Land Trustfiled a request for clarification (21AA 5385-5390). On February 2,2012, the Court issued an amended intended decision (22AA 5406-5440) which on February 29, 2012 became the court's final order(22AA 5482-5483).

On April 12, 2012, Marina Coast filed its second writ petition inthis Court (case no. H038167).



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On April17, 2012, the superior court entered its Judgment infavor of Ag Land Trust and against Marina Coast (22M 5487-5527),and issued a peremptory writ of mandate (22M 5529-5530). Thecourt determined that Marina Coast failed to comply with CEQA byfailing to proceed as a lead agency (22M 5488, 5512) and byapproving the Regional Project in reliance on a legally inadequateEIR (22M 5523). The court determined that there were no validissues of preemption, jurisdiction, or other claimed affirmativedefenses. (22M 5524-5527.) The court determined that MarinaCoast through its actions of March and April 2010 was the first toapprove the Regional Project (22M 5512) and that if Ag Land Trusthad not challenged the March 2010 approvals, then all CEQAchallenges to the Regional Project would have been foreclosed(22M 5513).

On June 11, 2012, Marina Coast filed its Notice of Appeal.(22M 5576-5577.)

On August 2, 2012, this Court denied the second writ petition.On August 10, 2012, Marina Coast filed another petition for review inthe Supreme Court (case no. S204634). On September 12, 2012,the Supreme Court denied the petition.

In its statement of the case on appeal, Marina Coast inserts anargument to the effect that the "project cessation" does not moot the



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appeal. (AOB 19-21.) The argument is dependent upon a documentthat is not in the appellate record. Marina Coast's discussion of theRegional Project's cessation does not raise an appellate claim oferror. Therefore, Ag Land Trust does not address the issue furtherin Respondent's Brief.

ARGUMENTI.

THE SUPERIOR COURT PROPERLY DETERMINED THATMARINA COAST WAS THE LEAD AGENCY UNDER CEQA.

This lawsuit challenges Marina Coast's CEQA approvals of itsproject. (1AA 30-33, 37.) The superior court correctly determinedthat Marina Coast is the lead agency under CEQA for the RegionalProject. (22AA 5496-5513; CEQA Guidelines, 15051, subd. (a);Sohio, supra, 23 Cal.3d 812, 814.) The superior court had thejurisdiction to decide this case, and Marina Coast was required todefend its CEQA decisions.

Public Resources Code section 21067 defines "lead agency"as the public agency with the principal responsibility for approving aproject. CEQA Guidelines, section 15051, subdivision (a) directsthat "If the project will be carried out by a public agency, that agencyshall be the lead agency even if the project would be located withinthe jurisdiction of another public agency."



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Marina Coast was to construct and own the essentialcomponent of the Regional Project: the desalination plant. (1 ROP13-16.) Marina Coast also was to construct and own the majority ofthe project facilities (ibid.) and have "primary responsibilities" relatedto water supply, project implementation, and agency coordination"(9ROP 4592). Because of its role in carrying out the RegionalProject, Marina Coast was the lead agency under CEQA Guidelinessection 15051, subdivision (a).

In some cases, two or more public agencies may qualify aslead agencies. If so, the agency that acts first to approve the projectis the lead agency. (Sohio, supra, 23 Cal.3d 812, 814; Ross v.California Coastal Commission (2011) 199 Cai.App.4th 900, 940,citing Sohio, supra.) Sohio is the leading Supreme Court decision onlead agency under CEQA, where the CPUC and a local agency areinvolved. It is controlling here.

In Sohio, the EIR was for an interstate project proposed by aCPUC-regulated entity (see CEQA Guidelines, 15051, subd. (b),which applies to projects proposed by nongovernmental entities).Sohio applied subdivision (c) of CEQA Guidelines section 15065.(Section 15065 was later renumbered as section 15051.)Subdivision (c) states that "where more than one public agency

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equally meet the criteria in subdivision (b), the agency which will actfirst on the project in question shall be the lead agency."3

The Supreme Court in a per curiam opinion held that wherethe local public agency was the first to approve a project, it was thelead agency for purposes of CEQA and "hence was required todefend the adequacy of the entire EIR." (Sohio, supra, 23 Cal. 3d812, 814.) The superior court therefore had jurisdiction over theCEQA petition that challenged the CEQA approvals by the Port, thelocal public agency. Sohio applies here, because it decided a similarset of issues and legal relationships, and is definitive in its holding.

Sohio shows that the local agency properly can be the solelead agency responsible for defending the entire EIR, even wherethe project is proposed by a CPUC-regulated entity, and even wherethe CPUC has jointly participated in the preparation of an EIR, whichis a lead agency task (CEQA Guidelines, 15050). Sohio is the onlyreported CEQA case discussing what happens when the CPUC anda local agency exercise lead agency duties (in Sohio, by jointly

3 Subdivision (d) of section 15051 states that where two ormore agencies have a substantial claim to be lead agency undersubdivisions (a), (b) and (c), "the public agencies may by agreementdesignate an agency as the lead agency." Here, there was no suchagreement. In any event, an agreement cannot be used todesignate an agency that does not qualify as lead agency. (Planning& Conservation League v. Department of Water Resources (2000)83 Cai.App.4th 892, 906.)25

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preparing an EIR), and the local agency then acts first to approve theproject.

Just as the Los Angeles Superior Court had jurisdiction todecide the CEQA issues in Sohio, the Monterey County SuperiorCourt had jurisdiction to decide the CEQA issues in this case. UnderCEQA Guidelines section 15051, subdivision (a), and consistent withSohio, Marina Coast was the lead agency, and, as lead agency,"was required to defend the adequacy of the entire EIR." (Sohio,supra, 23 Cal.3d 812, 814.)

Marina Coast does not establish that the superior court wasdeprived of jurisdiction over this CEQA action against the local publicagency that acted first to approve the public project. Marina Coastargues that subdivision (b) of CEQA Guidelines section 15051applies. (AOB 40, 42.) Subdivision (b) applies only where theproject proponent is a nongovernmental entity. Subdivision (b) doesnot apply here because Marina Coast and its two co-proponents ofthe Regional Project were public agencies.

Marina Coast argues for a general rule that local agenciesshould not be lead agencies in this type of case. In essence, MarinaCoast asks the Court to rewrite section 15051. The three casescited by Marina Coast (AOB 43-44) do not support Marina Coast.



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In Planning & Conservation League v. Department of WaterResources (2000) 83 Cai.App.4th 892, 907 (PCL v. DWR), theDepartment ofWater Resources was the proper lead agencybecause it had principal responsibility for implementation of anagreement - the project at issue - that substantially restructured thedistribution of State Water Project water throughout the state. InFriends of Cuyamaca Valley v. Lake Cuyamaca Recreation and ParkDistrict (1994) 28 Cai.App.4th 419, 428-429, the State's ownershipinterest of the key site in the case, Lake Cuyamaca, mandated itsstatus as lead agency. Further, the state agency had the principalresponsibility for the challenged activity- the duck hunting season.In City ofSacramento v. State Water Resources Control Bd. (1992)2 Cai.App.4th 960, 973, the statutory scheme at issue establishedconcomitant responsibility in two state agencies. Because oneagency's environmental responsibilities were broader, that agencywas in the better position to make such an assessment and shouldbe the lead agency. (Ibid.)

In each of these cases there was a statewide scheme orinterest at issue and/or the project had direct impacts statewide,unlike the present case, where a local project was approved by alocal water district. Any argument that the CPUC had extraordinaryexpertise (see PCL v. DWR, supra, 83 Cal App.4th 892, 904) due to

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its statewide perspective is weak because the CPUC had neverbefore prepared an EIR on a water supply project (2ROP 1104, fn.3). Here, as in Sohio, the agency that acted first to approve itsproject is the logical and legally appropriate lead agency undersection 15051 of the CEQA Guidelines.

II.THE SUPERIOR COURT PROPERLY DETERMINED THATTHE EIR IS LEGALLY INADEQUATE.

The Court's principal task is to evaluate the adequacy of theEIR as an informational document. (Sunnyvale West, supra, 190Cai.App.4th 1351, 1392.) The EIR must "clearly and coherentlyexplain" the issue, "using material properly stated or incorporated inthe EIR." (Vineyard Area Citizens for Responsible Growth v. City ofRancho Cordova (2007) 40 Cal.4th 412, 421 (Vineyard).)

The superior court carefully considered the issue of waterrights. (22AA 5514-5523.) The court determined that the EIRdiscussion of water rights did not comply with CEQA's informationalmandates (22AA 5488, 5523) and there are six additional substantialand prejudicial defects in the EIR (22AA 5523).



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A. WATER RIGHTS.1.. CEQA Requires a Reasonable Analysis ofWaterRights.CEQA policies require that an EIR include sufficient detail to

permit informed decisionmaking. An EIR that relies on uncertainsources of water must explain the uncertainty and explain anyassumptions. (Santa Clarita Organization for Planning v. County ofLos Angeles (2003) 106 Cai.App.4th 715, 721-724 (SCOPE).)CEQA requires the EIR to provide a detailed analysis of water rightsissues, including ownership of those rights, when such rightsreasonably affect the project's supply. Assumptions about supplyare simply not enough. (Vineyard, supra, 40 Cal.4th 412, 431; SaveOur Peninsula, supra, 87 Cai.App.4th 99, 131-134, 143.)

Water rights lie at the heart of this desalination project. Theillegal Carmel River overpumping and the Seaside Basinadjudication are repeatedly identified in the EIR as the rationale forthe project. (E.g., 4ROP 1993.) The impacts ofwater uses,overpumping, basin overdraft, and the future of land uses inMonterey County are at stake, all amidst competing claims of waterrights, or the lack of rights. Because the desalination project wouldrequire additional groundwater withdrawals in an overdrafted basin,and because the EIR failed to identify water rights for the additional



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pumping, or to disclose the uncertainty of "paper water" claims(Vineyard, supra, 40 Cal.4th 412, 432) or to "clearly and coherentlyexplain" the issue (id. at p. 421 ), the EIR failed as an informationaldocument. The EIR also ignored the apparent illegal taking ofgroundwater rights from the Salinas Valley landowners which wouldresult from the project.

2. The Basin Is in Overdraft.Overdraft is a physical condition that commences whenever

extractions increase, or the withdrawable maximum decreases, orboth, to the point where the amount of water being extracted from abasin causes adverse effects on the basin's supply. (Los Angeles v.San Fernando (1975) 14 Cal.3d 199, 277-278.)

The Salinas Valley Groundwater Basin is in overdraft.(4ROP 2257, 2262; 9ROP 4946.) The overdraft has reducedgroundwater levels and caused significant salt water intrusion in thecoastal aquifers (2ROP 755, 789). Due to the overdraft, the Statehas threatened adjudication of the basin (2ROP 764-765). Inresponse, the Monterey County Water Resources Agency approvedthe Salinas Valley Water Project, which was intended to stop andreverse seawater intrusion (7ROP 3796; see 2ROP 728.)

The Salinas Valley Water Project EIR estimated basinoverdraft to be 17,000 to 19,000 acre feet per year (AFY) for many

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years (2ROP 764, 789). The 17,000 to 19,000 AFY figure did notinclude seawater intrusion. (2ROP 764.) The Salinas Valley WaterProject EIR said the overdraft had caused seawater intrusion toaffect over 24,000 acres as of 1999 (2ROP 761 ), with intrusionadvancing at the rate of 425 feet per year (2ROP 759). The SalinasValley Water Project EIR admitted that the Salinas Valley WaterProject would have only a "marginal ability . . . to halt seawaterintrusion (2ROP 780). In April 2010, the Salinas Valley WaterProject was not operational (1 ROP 596, 4ROP 2053).

3. The EIR Asserted that Water Rights Were Not anEnvironmental Issue.Numerous comments on the Draft EIR raised serious concerns

about the lack of EIR discussion of water rights for the project.(8ROP 4125-4126, 4164-4165, 4413 [SVWC-1 0], 4415-4416[TOMP-6].) In response, the FEIR stated that "water rights are notconsidered an environmental issue." (9ROP 4974.)

The EIR did not identify any water rights claimed by MarinaCoast. The FEIR admitted that if the groundwater basin in overdraftthen Marina Coast would have only prescriptive rights in an amount"subject to proof' (9ROP 4 730).

Instead of focusing on Marina Coast, the FEIR focused onCaiAm. The FEIR admitted that "CaiAm claims no rights to



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groundwater in the Salinas Valley" (9ROP 4778) and that "sinceCaiAm has no rights to the Salinas Valley groundwater, it must enterinto an agreement with MCWRA [Monterey County Water ResourcesAgency] for use of the water. This contractual agreement isassumed in the Draft EIR." (9ROP 4591.) The EIR failed to use itsbest efforts to investigate or to disclose the fact that MCWRA doesnot have groundwater rights that it could assign to CaiAm.(Guidelines, 15144 [EIR preparer "must use its best efforts to findout and disclose all it reasonably can"].) MCWRA admitted it doesnot have water rights that could be used for the Regional Project.(2ROP 817.)

In its response to comments, the FEIR mostly brushed offquestions on water rights. To a question seeking an explanation ofthe water rights claimed by MCWRA, the FEIR responded only as tosurface water rights, and ignored groundwater. (9ROP 4975-4976[TOMP-4].) To a detailed request for "the specific water rights"(8ROP 4415-4416 [TOMP-6]), the FEIR referred to two otherresponses (9ROP 4978 [TOMP-6]) which did not provide theinformation sought. To CaiAm's question about water rights (8ROP4176), the FEIR responded that "all water rights . . . would have to beobtained at the appropriate time" (9ROP 4799).



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The EIR failed as an informational document, and theresponses to comments were not the "good faith, reasoned analysisin response" mandated by CEQA. (CEQA Guidelines, 15088,subd. (c); The Flanders Foundation v. City of Carmel-by-the-Sea(2012) 202 Cai.App.4th 603, 615 (Flanders Foundation); SCOPE,supra, 106 Cai.App.4th 715, 722-723.)

4. Marina Coast's Argument on Appeal.In the superior court, Marina Coast argued in its brief on the

merits that Marina Coast "was not required to and did not analyzewater rights claims related to water pumped from the intake wells"(3AA 531 ), Marina Coast "would not 'pump' any water" (3AA 532;see 3AA 535), and "MCWRA would own the intake wells and woulddo any pumping" (3AA 534; see 3AA 535). At the October 2011 oralargument in the superior court, Marina Coast abandoned its writtenposition and for the first time made new and different assertions(22AA 5522 [line 23]).

On appeal, Marina Coast asserts that it has water rights that itwould use to "take that same amount of product water from theproject" and that Marina Coast would "defer" pumping from anunidentified source. (AOB 47-48.)

The EIR did not take the position that Marina Coast now urgeson this Court. A post hoc declaration of the agency may not be



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considered by this Court (Environmental Protection InformationCenter v. California Dept. of Forestry (2008) 44 Cal.4th 459, 487).The EIR did not identify water rights held by Marina Coast, did notidentify water rights to be used for the Regional Project, and did notquantify the amount of pumping required for the project. The EIR didnot analyze any deferral of pumping by Marina Coast. The EIRproject description did not include an offset of reduced pumping inthe Salinas Valley Groundwater Basin. An EIR cannot be deemedadequate for analysis the EIR did not include. (Galante Vineyards v.Monterey Peninsula Water Management District (1997) 60Cai.App.4th 1109, 1124 ["everything that is required to be consideredin an EIR must be contained in that formal report"], citing SantiagoCounty Water Dist. v. County of Orange (1981) 118 Cai.App.3d 818,831.)

a. The EIR Did Not Discuss Water Rights NowAsserted by Marina Coast.In an overdrafted, percolated groundwater basin, California

groundwater law holds that the doctrine of correlative overlying waterrights applies (Katz v. Walkinshaw (1903) 141 Cal. 116, 134-136),whereby no surplus water is available for new groundwaterappropriators, except in specific circumstances (City of Pasadena v.City ofAlhambra (1949) 33 Cal.2d 908, 926). The Regional Project



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would require additional withdrawals of groundwater to beappropriated from the overdrafted Salinas Valley basin in order toprovide the intake water for the desalination plant.

Marina Coast does not claim any adjudicated rights. MarinaCoast is an appropriator in an overdrafted groundwater basin. (SeeCity of Santa Maria v. Adam, supra, 211 Cai.App.4th 266, 296-297[discussing how prescriptive rights can be acquired only in time ofsurplus (e.g., not overdraft) and how unadjudicated prescriptiverights are difficult to determine].) Contrary to Marina Coast'sassertion (AOB 4 7), any claimed rights to groundwater by MarinaCoast are speculative and uncertain (ROP 4730 [any Marina Coastrights "would be subject to proof']; AOB 47 [vague allegations of"sufficient rights" and "claimed rights"]). Absent water rights in theoverdrafted basin, the project would not have an available watersupply. (Vineyard, supra, 40 Cal.4th 412, 432.)

The sole support cited by Marina Coast for its dubious claim of"water rights" is a 1996 agreement with Monterey County WaterResources Agency (AOB 47, fn. 177). The 1996 agreement doesnot support the claim.

Monterey County Water Resources Agency is organized underCounty Water District Law. MCWRA has constitutional police powerover groundwater (9ROP 4 729). The Regional Project would have



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required new additional pumping from the overdrafted 180-footaquifer (1 ROP 12; 9ROP 4555). Marina Coast does not currentlypump from the 180-foot aquifer (4ROP 2286; 5ROP 2685). MCWRAhas long opposed any pumping by Marina Coast from the 180-footaquifer. The 1996 agreement between MCWRA and Marina Coaststates that MCWRA believes that pumping by Marina Coast "wouldnot be appropriate from . . . the 180-foot confined aquiferD . . . in theSalinas Valley Groundwater Basin" (14ROP 7711 ). Further, the1996 agreement limits Marina Coast's use and distribution of water.(5ROP 2685.) Each of Marina Coast's record citations (AOB 47, fn.177) has been discredited by the Ag Land Trust (22AA 5475-5477).

b. The EIR Did Not Analyze the Deferral of Pumping.Contrary to Marina Coast's unsupported claim that "it would

defer pumping" (AOB 48), the EIR did not contain evidence thatMarina Coast would cease current pumping in order to enablepumping at new Regional Project wells. The only evidence was tothe contrary. The EIR assumed that Marina Coast would continue touse other "water supplies" (5ROP 2792) and that Marina Coastwould continue to rely upon "its existing groundwater supplies"(9ROP 4541 ).

Because the EIR did not discuss deferral of pumping, deferralwas not subjected to public review. To the extent that deferral was



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intended by Marina Coast to mitigate project pumping, it should havebeen addressed in the EIR. The purpose of CEQA is to inform boththe public and the decision makers, before the decision is made, ofany reasonable means of mitigating the environmental impact of aproposed project. (The Flanders Foundation, supra, 202 Cai.App.4th603, 617.)

The cases mentioned by Marina Coast do not support MarinaCoast's arguments (AOB 46, 48). Cherry Valley Pass Acres &Neighbors v. City of Beaumont (201 0) 190 Cai.App.4th 316, isdistinguishable. In Cherry Valley, the critical facts included anadjudicated basin (id. at p. 336), a "physical solution" which providesan equitable remedy for allocating and sharing water (id. at pp. 330-331 ), a quantified award of water to an owner, and a proposeddevelopment project with a specific estimated water demand (ibid.).The issue was whether the adjudicated figure was properly used asthe EIR baseline (id. at pp. 338-340) where the project's estimateddemand would be less than the EIR baseline (id. at p. 347).

Unlike in Cherry Valley, the Salinas Valley Groundwater Basinis not adjudicated, no "physical solution" has been imposed by theCourt, Marina Coast has no adjudicated right to groundwater, andthe Regional Project EIR did not use a baseline and did not



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adequately quantify the amount of groundwater pumping needed forthe Regional Project.

c. The EIR Did Not Adequately Address the Amountof Pumping Required for the Project.

The EIR did not quantify the amount of pumping for the project(5ROP 2877 [groundwater would be extracted "at unspecifiedvolumes"]). In the superior court, Ag Land Trust described the EIR'sinadequate analysis of the amount of groundwater that would bepumped. (2AA 394-397.)

On appeal, Marina Coast suggests that the project wouldrequire pumping 20,000 acre feet per year (AFY) of groundwater(AOB 47). But Marina Coast's citations (AOB 48, fn. 178) do notsupport its claim. 7ROP 3793-3794 and 9ROP 4553 do not mentionthe amount of pumping. 7ROP 3757 mentions modeling of pumping20,000 AFY from five wells (7ROP 3752), but that page is from a2008 technical memorandum for analysis of a draft EIR projectalternative called Scenario 4d (7ROP 3751 [subject line]). Thatmemorandum is not applicable because Scenario 4d wassuperseded by Scenario 4f in the FEIR. (5ROP 2865.) Scenario 4frequired six wells (7ROP 3793). Scenario 4f was the approvedproject. (4ROP 1995 ["Regional Project" refers to revised project



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described in Appendix Q], 5ROP 2787; 1ROP 12 [approved projecthas six wells]; 9ROP 4541, fn. 7.)

As additional evidence of the inaccuracy of Marina Coast'sclaim that project pumping would be approximately 20,000 AFY(AOB 47-48), FEIR Appendix Q stated that pumping would be 22.2million gallons per day (mgd) or more (5ROP 2808 [Table 5-3A];7ROP 3828). One mgd is approximately 1,120 AFY. (O.WL.Foundation v. City of Rohnert Park (2008) 168 Cai.App.4th 568, 576,fn. 2.) Thus, 22.2 mgd would be over 24,860 AFY, which issignificantly more than 20,000 AFY. The actual figure could be evenhigher because it was "to be determined" (5ROP 2808 ["tbd" in Table5-3A]) at some point in the future.

Marina Coast also argues that, based on the EIR's assumptionthat the groundwater was 15% fresh water and 85% seawater,Marina Coast's asserted water rights of 9,350 AFY would besufficient to pump 20,000 AFY. (AOB 47-48.) The asserted waterrights are uncertain, as argued above. The asserted rights were notin the EIR, thus cannot be relied upon as evidence of the EIR'sadequacy. (Galante Vineyards, supra, 60 Cai.App.4th 1109, 1124.)The EIR's 15%/85% assumption is not reliable because it is basedon a water sample from a location that was not the proposed wellfield site (7ROP 3794). Based on that unreliable sample, the FEIR



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revealed that the source water would be up to 40% fresh water(2ROP 907; 7ROP 3810-3811 [wells would produce total dissolvedsolids [TDS] concentration of 21,300 mg/L, which is 60% ofseawater's TDS concentration of 34,000 to 35,000; the remaining40% is fresh water]). 40% is significantly larger than the EIR'sassumption of 15% (2AA 395-396). A fresh water component of40% would require groundwater pumping of 88,000 AFY in order tomeet regulatory requirements (2ROP 933; 3ROP1123), which theFEIR did not disclose.

d. Conclusion.Because additional groundwater withdrawals would be

required from the project, because the EIR failed to identify waterrights for the additional pumping, and because the EIR failed to"clearly and coherently explain" the issue, the EIR failed as aninformational document. (Vineyard, supra, 40 Cal.4th 412, 421;CEQA Guidelines, 15144, 15151.)B. SIX OTHER SUBSTANTIVE DEFECTS IN THE EIR.

In addition to water rights, Ag Land Trust briefed six othersubstantive flaws in the EIR. (2AA 371-403; 14AA 3377-3380, 3595-3597; 18AA 4499-4502.) The superior court determined that each ofthe claims, including water rights, is meritorious. (22AA 5488, 5523.)



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.1. Lack of Contingency Plans and Impacts Thereof.The EIR failed (see 2ROP 597) to identify the County

requirement that desalination plants must have a contingency planfor an alternative water supply (3ROP 1162-1163) to protect humanhealth and safety. The EIR failed to discuss the lack of reliability ofdesalination plants, which are notoriously unreliable (2ROP 600,826, 933; 3ROP 1125-1126,1370-1371,1471, 1475). There is noevidence of reliability in the record. No other plants of even closelycomparable size (10 mgd [5ROP 2791]) operate in California (3ROP1353); in other states, such plants have been unreliable and havenever operated at full capacity (3ROP 1460, 1471-1472; 2ROP 751).No active California plant involves municipal or domestic uses, asproposed for Marina Coast's plant (5ROP 2791 ). Because the EIRfailed to identify a backup water supply plan, the EIR did not evaluatethe foreseeable impacts of that plan, as CEQA requires.

The only "emergency backup" plan in the record was to takewater from the Carmel River and the Seaside Basin (2ROP 829)-the water supplies that are being illegally pumped and are sufferingenvironmental damage (4ROP 2062-2063; 5ROP 2790; 1OROP5142-5143). The Carmel River and the Seaside Basin are governedby legal rulings that severely limit the legal right to take water fromthem. (Ibid., 4ROP 2062-2063.) The EIR failed to make the



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required effort to identify the environmental harm caused by use ofthese "backup" sources, or the water rights that would allow use ofthese sources.

2. Assumption of Continuous Groundwater Pumping.Continuous groundwater pumping was not part of the draft EIR

project description. However, the FEIR relied on a new descriptionof the Regional Project that assumed six vertical intake wells"pumping continuously" (5ROP 2874; 7ROP 3828) for 56 years(5ROP 2874-2875). That new model, called Scenario 4f, wasprepared for Marina Coast (7ROP 3804 ), and showed up for the firsttime in the FEIR in a new document, Appendix Q (4ROP 1973).

Continuous pumping is the basis for the EIR assumption thatthe wells would create a "trough" that "could act as a barrier'' to(5ROP 2865), and "would halt the advancement" (9ROP 4551) of,further seawater intrusion, according to Appendix Q (7ROP 3794,3804, 3809). This "barrier" (5ROP 2866) and its effects are unlikelyand uncertain because pumping from the 180-foot aquifer hascaused seawater intrusion (9ROP 4548). New coastal pumpingwould likely cause the same impact: more seawater intrusion.(3ROP 1264, 1272; 7ROP 3755.) Further, the EIR conclusion thatseawater intrusion "would halt" (9ROP 4551) was contradicted by theEIR conclusion that the post-project rate of seawater intrusion would



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be similar to baseline conditions and the intrusion would be worse inthe vicinity of the intake wells and the area south of the Salinas River(5ROP 2865-2866). That area is productive agricultural land (5ROP2628; 6ROP 2980, 2982; 7ROP 381 0).

Given the unreliability of large desalination plants, it isreasonably foreseeable that one or more of the six wells would notpump continuously for 56 years, and as a result the assumedimpacts of the "trough" would not be achieved. That means thatseawater intrusion could be worsened, which is likely to affect theSalinas Valley physical environment and agriculture. The EIR didnot disclose in good faith the uncertainty around the assumption ofconstant pumping, and did not investigate the potential impacts ifpumping was not continuous. Because the assumption was not inthe Draft EIR, it was not presented for public comment, therebyviolating CEQA's procedural mandates (e.g., CEQA Guidelines, 15151, 15200, 15204).

3. Prohibition on Exportation of Groundwater.California law prohibits exportation of groundwater from the

Salinas Valley Groundwater Basin due to concern about the "balancebetween extraction and recharge." (4ROP 2274, 2289.) The DraftEIR improperly assumed that there would not be exportation(5ROP 2877). The FEIR relied on Marina Coast's assumption that

43



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the groundwater pumped for the project - the "intake" water - wouldbe 85% seawater and 15% fresh water (7ROP 3792; 2ROP 843).That assumption was not reliable for several reasons. Theassumption was for only the first 10 years of the 56-year project.(5ROP 2866; 7ROP 3811.) The assumption was based on agroundwater sample from a site at Marina Coast's offices (7ROP3794), not the proposed well field (11 ROP 5854), and "on a localscale there were variations in . . . chloride concentrations" (7ROP3794 . FEIR Appendix Q predicted up to 40% fresh water (2ROP905, 907; 7ROP 3810-3811).

The EIR did not analyze the possible impacts of groundwaterexportation under a scenario where the intake water had more thanthe 15% fresh water, even though larger percentages areforeseeable and would likely result in exportation.

4. Brine Impacts on Outfall Pipeline.The desalination project proposed to dispose of project waste

brine through the existing sewage outfall. (1ROP 2 [7.3], 16.) Astudy by another water agency had concluded that a smallerdesalination plant (2ROP 745) would discharge brine amounts thatwould exceed the outfall capacity during high-flow periods (2ROP747). Despite this known conclusion, the EIR failed to adequatelyinvestigate whether the outfall had adequate capacity for Regional



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Project brine, and what impacts would be caused by inadequatecapacity. Marina Coast and Monterey Regional Water PollutionControl Agency, the owner of the outfall, acknowledged that the EIRinadequately disclosed the impacts of brine disposal, and plannedadditional studies to be funded by Marina Coast (3ROP 1172-1173,1176; 15ROP 8098-8099).

Experts also were concerned about the brine's corrosionimpacts decreasing the life of the outfall ( 14AA 3398 [ROP 8155]).After the FEIR was released, Marina Coast received- from a MarinaCoast expert consultant - a report that "the conveyance of theMCWD brine will reduce the [outfall] time to corrosion by over 40percent. This is a significant impact." ( 14AA 3430 [ROP 8187].)The EIR did not include this information or adequately analyze ormitigate the corrosion impacts.

5. Impacts to Overlying and Adjacent Properties.The EIR predicted that the project's six intake wells would

cause up to a 30-foot drawdown in the groundwater (9ROP 4552)and increased saltwater intrusion under the well field (4ROP 1933-1934; 5ROP 2865). The well field was proposed to be located southof the Salinas River (5ROP 2802 [Fig. 5-3, showing well location inblue]), on or adjacent to productive agricultural land (3ROP 1137-1138, 7ROP 3798 [aerial photograph]). The EIR did not adequately



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identify and investigate the impacts on the physical environment ofthe agricultural property or the associated water rights.

6. Violations of Anti-Degradation Policy and Basin PlanThe EIR failed to adequately investigate and disclose the

impacts of the project's increase in salinity in the groundwater in thevicinity of project wells (5ROP 2865-2866). The increase in salinityforeseeably would violate the State Water Resources ControlBoard's antidegradation policy (see Asociacion de Gente Unida porel Agua v. Central Valley Regional Water Quality Control Board(2012) 210 Cai.App.4th 1255, 1261-1262 [describing policy]). TheBasin Plan implements the Anti-Degradation Policy. The EIR merelymentions that the policy "could apply" (4ROP 2271 ), which isinadequate informational analysis under CEQA. (CEQA Guidelines, 15144, 15151.)C. BECAUSE THE EIR WAS DEFECTIVE, A NEW EIR WAS REQUIRED

TO BE PREPARED BY MARINA COAST AS LEAD AGENCY.An incorrect designation of the lead agency requires the

preparation of a new EIR under the direction of the proper leadagency where the initial EIR is defective. (PCL v. DWR, supra, 83Cai.App.4th 892, 903-907, 920.) PCL v. DWR is the case mostanalogous on this point to the present case. It used a two-stepanalysis: (1) Did an incorrect lead agency prepare the EIR? (2) If so,



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is there at least one deficiency in the El R? If the test is met, thematter is remanded to the proper lead agency in order for thatagency to prepare a legally sufficient EIR. (/d. at p. 926.)

In PCL v. DWR, the Court of Appeal concluded that the wrongagency had been designated as lead agency, and that the EIR wasinadequate in at least one important respect. The Court thereforeordered "the preparation of a new EIR under the direction of ' theproper lead agency (83 Cai.App.4th 892, 907). The Court stated thatit need not further inquire into the remaining alleged defects in theEIR "as we ordinarily would" (id. at p. 920, referencing Pub.Resources Code, 21005, subd. (c)) because the proper leadagency "may choose to address those issues in a completelydifferent and more comprehensive manner" (id. at p. 920).

Marina Coast is not correct in its claim that "the superior courtwas required to state its decision on each of the seven alleged EIRdeficiencies." (AOB 51.) The Judgment stated that Marina Coast'sapproval of the Project failed to adequately identify, discuss, andaddress the seven deficiencies raised. (22AA 5488.) The Judgmentrelied on PCL v. DWR. (22AA 5513.)

In response to the seven EIR defects briefed by Ag Land Trustin the superior court, Marina Coast presented no meaningful writtendefense. (22AA 5522 [line 22].) On appeal, Marina Coast argues



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only the issue of water rights (AOB 45-50). Marina Coast's briefingto this Court as to the six other EIR defects is supported solely bycitations to its oral argument at the CEQA hearing "and ROP cited"there (AOB 51, fns. 189-195). The Court should deem the six EIRflaws abandoned by Marina Coast.

"Points that are not properly raised in the trial court areordinarily waived on appeal." (Guardians of Turlock's Integrity v.Turlock City Council (1983) 149 Cai.App.3d 584, 599; Save theSunset Strip Coalition v. City of W Hollywood (2001) 87 Cai.App.4th1172, 1181, fn 3.) "Briefing" involves more than simply raising apoint orally at oral argument. When a party asserts a point but failsto support it with reasoned argument and citations to authority, thecourt may deem it to be forfeited. (AmeriGas Propane, L.P. v.LandstarRanger, Inc. (2010) 184 Cai.App.4th 981, 1001, fn. 4.) Asthis Court has held, "When an issue is unsupported by pertinent orcognizable legal argument it may be deemed abandoned anddiscussion by the reviewing court is unnecessary" (Landry v.Berryessa Union School Dist. (1995) 39 Cai.App.4th 691, 699-700).

Marina Coast's claim that Code of Civil Procedure section 632required the superior court to issue a statement of decision (AOB 51)is unavailing. Section 632 does not apply to this law and motionhearing. (City of Carmel-by-the-Sea v. Board of Supervisors (1986)



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183 Cai.App.3d 229, 237-238.) In any event, before entering theJudgment, the court explained its reasoning by filing an intendeddecision (21AA 5362-5384}, reviewing additional briefing by theparties (22AA 5392-5403, 21AA 5385-5391 }, filing an amendedintended decision (22AA 5406-5440), and reviewing further writtenarguments (22AA 5443-5462, 5463-5481) before ordering that theamended decision is the Statement of Decision (22AA 5482).(Onofrio v. Rice (1997) 55 Cai.App.4th 413, 425 [statement ofdecision that responds to each material issue "passes appellatemuster"].) There is no error, and no prejudice to Marina Coast.

Ill.THE SUPERIOR COURT HAD JURISDICTION OVER THE CEQACHALLENGE TO MARINA COAST'S ACTIONS.

A. PUBLIC UTILITIES SECTION 1759 DOES NOT AFFECT THESUPERIOR COURT'S LAWFUL EXERCISE OF JURISDICTION IN THISCASE.Marina Coast's primary claim in the superior court, on the two

writ proceedings, and on appeal, is that under Public Utilities Codesection 1759 the superior court did not have jurisdiction to reviewMarina Coast's independent decisions to approve the Project.(AOB 26-31 ).

Section 1759 bars certain actions which seek to "review,reverse, correct, or annul any order or decision of the commission or



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to suspend or delay the execution or operation thereof, or to enjoin,restrain, or interfere with the commission in the performance of itsofficial duties, as provided by law" (Pub. Utilities Code, 1759, subd.(a)). However, Marina Coast, a local public agency, is not subject toCPUC jurisdiction, and the CPUC has no authority to impose anyobligation upon Marina Coast under the CPUC's regulatory authority.

The superior court had jurisdiction over the litigation here. Asthe superior court found and determined, the CPUC "has no authorityto regulate or dictate to Marina Coast, or any other public agency,regarding the approval and development of the Regional Project.This action does not hinder the PUC's ability to regulate [CaiAm],and this Court has jurisdiction." (22AA 5526.)

Marina Coast's presentation (AOB 26-38) is confusing andunduly selective. Nowhere does Marina Coast recognize theCPUC's lack of jurisdiction over Marina Coast. Marina Coast cites todocuments not in the record, and fails to cite the evidence in therecord that supports the superior court's ruling that the CPUC had noauthority over Marina Coast. (AOB 3, fn. 20; Cal. Rules of Court,rule 8.204(a)(1 )(C)].)



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8. THE SUPERIOR COURT WAS NOT DEPRIVED OF JURISDICTION BYPUBLIC UTILITIES CODE SECTION 1759, SUBDIVISION (a).The CEQA lawsuit was not against CaiAm or the CPUC. The

CEQA lawsuit brought by Ag Land Trust was directed at MarinaCoast, a local public agency over which the CPUC has nojurisdiction. The lawsuit sought to have Marina Coast comply withCEQA in its decision to carry out the project.

The public policy behind CEQA enforcement is strong, andweighs heavily in favor of the jurisdiction of the superior court. Theoverriding purpose of CEQA is to ensure that agencies regulatingactivities that may affect the quality of the environment give primaryconsideration to preventing environmental damage. (Save OurPeninsula, supra, 87 Cai.App.4th 99, 117.) CEQA is theLegislature's declaration of policy that all necessary action be takento protect, rehabilitate, and enhance the environmental quality of thestate. (Ibid.; Laurel Heights Improvement Assn. v. Regents ofUniversity of California (1988) 47 Cal.3d 376, 392 (Laurel Heights/) .)

There is no statutory or public policy conflict between Ag LandTrust's CEQA challenge to Marina Coast's approvals and theCPUC's proceeding involving CaiAm. (Sohio, supra, 23 Cal.3d 812,814 [superior court had jurisdiction over local public agency, and



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court "should have permitted the action to proceed against the (localagency) alone"].)

In 2003, when the CPUC determined that it should be leadagency under CEQA on CaiAm's proposed projects, the CPUCdetermination was based on CEQA Guidelines section 15051. Theonly projects before the CPUC at that time were proposed by CaiAm,a CPUC-regulated entity. (14ROP 7667-7668.) The CPUC relied onsubdivision (b), which applies only to projects that will "be carried outby a nongovernmental person or entity" and states that for anongovernmental project, "the lead agency shall be the publicagency with the greatest responsibility for supervising or approvingthe project as a whole." (14ROP 7670, underlining added.) At thetime, the CPUC concluded that the CPUC was the agency with thegreatest responsibility for supervising or approving thenongovernmental CaiAm projects as a whole (14ROP 7676).

After the public agencies proposed their Regional Project in2008, the CPUC never revisited its 2003 determination that theCPUC should be lead agency, even though the Regional Projectwould be carried out by governmental entities not subject to CPUCcontrol (9ROP 4534, fn. 6; 4536, fn. 2).

CEQA did not authorize the CPUC to be lead agency for theRegional Project. For a public project such as the Regional Project,



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subdivision (a) of CEQA Guidelines section 15051 controls. Undersubdivision (a), the public agency that is to carry out the project-Marina Coast- is the lead agency.C. THE CASES RELIED ON BY MARINA COAST Do NOT APPLY TO

PUBLIC AGENCIES NOT REGULATED BY THE CPUC.Marina Coast cites San Diego Gas & Electric Company v.

Superior Court (1996) 13 Cal. 4th 893 (Covalt) in passing (AOB 23,29) or for general propositions (AOB 40).

In Covalt, the Supreme Court held that property owners couldnot sue a CPUC-regulated utility over the effect of nearby powerlines. (13 Cal.4th 893, 903.) Plaintiffs argued that a "public fear ofsuch fields" (id. at p. 914) had diminished the value of their property.The issue in Covalt was whether private causes of action may beasserted in superior court for personal injury claims and damagesallegedly caused by an entity and an activity that are regulated by theCPUC (Pub. Util. Code, 2106).

In Hartwell Corp. v. Superior Court of Ventura County (2002)27 Cal.4th 256, 260 (AOB 29), the Supreme Court held that theclaims against CPUC-regulated entities were barred by PublicUtilities Code section 1759 because their adjudication would interferewith the CPUC's regulatory authority. The Supreme Court held thatthe claims against nonregulated entities (public agencies) were not



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precluded by section 1759 because the public agencies were notpart of the CPUC's scope of regulation, and because section 1759does not bar private lawsuits in superior court against publicagencies. (Hartwell, supra, 27 Cal.4th 256, 282.) Under Hartwell,non regulated entities - such as Marina Coast- cannot avoid legalscrutiny of their actions by asserting protections reserved forCPUC-regulated entities.

Marina Coast cites to People ex ref. Orloff v. Pacific Bell(2003) 31 Cal.4th 1132 (AOB 30), but misinterprets the meaning ofthe case. In Orloff, several district attorneys filed a civil action

respondent's brief h038550 mcwd v. ag land trust

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