6. Constraints on Water Supply
Cal-Am has owned and operated the San Clemente Dam and the Los Padres Dam since 1965. As described in the FEIR, the San Clemente Dam was constructed on the Carmel River in 1921 and is the major point of surface water diversion from the river. The Los Padres Dam was constructed in 1949. Sedimentation reduced the usable storage at both reservoirs over the years, such that by 1995, the primary source of water supply for Cal-Am was multiple wells located along the lower Carmel River. These wells supplied approximately 70 percent of Cal-Am's demand, with the balance of supply provided by storage at the Los Padres Reservoir, diversions from the San Clemente reservoir, and water pumped from the Seaside Basin. Cal-Am's main distribution system also includes eight wells in the Coastal subarea of the Seaside Basin. In addition, Cal-Am owns nine wells in the Laguna Seca subarea, which serve the three independent water systems along Highway 68 described above.
According to the FEIR, as of 1995, Cal-Am served approximately 105,000 customers in its Monterey District, supplying them with approximately 17,000 afy.14 Of this amount, approximately 14,106 afy was supplied from the Carmel River system and 2,700 afy was supplied from the Seaside Basin.15
In 1995, the SWRCB issued its Order No. WR 95-10 (Order 95-10). The SWRCB concluded that although Cal-Am had been diverting 14,106 afy from the Carmel River, it has a legal right to only 3,376 afy from the Carmel River system, including surface water and water pumped from the Carmel Valley wells. Thus, SWRCB ordered Cal-Am to replace what SWRCB determined to be unlawful diversions of 10,730 afy from the Carmel River with other sources and through other actions, such as conservation to offset 20 percent of demand.
In 2006, the Monterey County Superior Court issued a final decision regarding adjudication of water rights of various parties who use groundwater from the Seaside Basin. (California American Water v. City of Seaside et al., Case No. 66343). The court's decision established physical limitations to various users' water allocations to reduce the drawdown of the aquifer and prevent additional seawater intrusion and set up a Watermaster to administer and enforce the Court's decision. Cal-Am is currently allocated 3,504 afy from the Coastal subarea of the Seaside Basin and 345 afy from the Laguna Seca subareas. These allocations will be reduced over time until they eventually reach 1,474 afy from the overall Seaside Basin. Prior to the Seaside Basin adjudication, Cal-Am's allocation for the Coastal subarea was 4,000 afy.
Cal-Am developed its Proponent's Environmental Assessment assuming that 10,730 afy of replacement water supply would be required to comply with Order 95-10 and that 1,000 afy of replacement water supply would be required for the Seaside Basin adjudication, for a total of 11,730 afy in replacement supply. In 2006, the MPWMD issued a technical memorandum, updating the demand in Cal-Am's service territory. In sum, the replacement water supply required to meet total updated demand is 12,500 afy, as shown in the following table:16
Replacement Amount |
Source to be Replaced |
8,498 afy |
To replace diversions from Carmel River sources |
2,975 afy |
To replace allocations from overall Seaside Basin |
762 afy |
To replace supply from Los Padres Reservoir, due to continuing sedimentation |
272 afy |
To account for replacement of water from non Cal-Am production from Seaside Basin |
The environmental documents were developed to assess and analyze the environmental impacts of replacing 12,500 afy of long-term water supply on the Monterey Peninsula, as we discuss further below.
In addition to water supply constraints, the Carmel River provides a habitat for the California red-legged frog and the South Central California Coast steelhead trout. The red-legged frog was listed as threatened under the Federal Endangered Species Act in 1996 and Cal-Am is subject to prosecution for a "take" of the frog.17 In 1997, Cal-Am entered into an agreement with the U.S. Fish and Wildlife Service (USFWS) to regulate its well production to avoid or mitigate impacts on the red-legged frog. These agreements have been renewed several times.
In 1997, the steelhead was listed as threatened under the Endangered Species Act, and Cal-Am is subject to prosecution by the National Oceanic and Atmospheric Administration (NOAA) Fisheries. Both the USFWS and NOAA Fisheries contend that any entity that pumps water from the Carmel Valley Aquifer may be liable for a "take" because such pumping may alter the riparian habitat, affect the steelhead's ability to migrate, and affect the red-legged frog's ability to mature. Cal-Am has entered into a Conservation Agreement with NOAA Fisheries, with the long-term goal of procuring an alternative water supply source to reduce withdrawals from the Carmel Valley Aquifer. According to the FEIR, should the federal agencies prosecute Cal-Am for "takes," enforcement actions could include further reduction of the water supply and heavy fines.18
6.1. Role of Other Agencies in Water Regulation
on the Monterey Peninsula
In addition to this Commission, many federal, state, and local agencies are involved in the regulation of water, water rights, and water supply on the Monterey Peninsula. These agencies include, but are not limited to the State Water Resource Control Board, Monterey Peninsula Water Management District, Marina Coast Water District, Monterey County Water Resources Agency, Monterey Regional Water Pollution Control Agency, the Monterey Regional Waste Management District, and the Seaside Groundwater Basin Watermaster. Marina Coast Water District, Monterey County Water Resources Agency, Monterey Regional Water Pollution Control Agency, and Monterey Peninsula Water Management District have actively participated as parties in this proceeding. We provide a brief background on the active parties which play an important role in the public-private partnership we approve today.
As set forth in Exhibit 329, the Marina Coast Water District (MCWD) was organized in 1960 and operates in accordance with the County Water District Law (Water Code §§ 30000 et seq.). MCWD is governed by five directors elected at-large from within MCWD's jurisdictional boundaries. MCWD's service territory is north of and adjacent to Cal-Am's service territory in the Monterey Peninsula. MCWD provides water and sewer service to the City of Marina and the former Fort Ord community. MCWD also has agreements to annex certain other property, including the Armstrong Ranch, where the desalination plant is proposed to be located.19
The Monterey County Water Resource Agency (MCWRA) is a public agency, which was created by the Monterey County Water Resources Agency Act (Agency Act), as codified in Chapter 52 in the California Water Code Appendix.20 MCWRA's jurisdiction covers the Territory of Monterey County that lies within the Monterey County exterior boundaries. The Monterey County Board of Supervisors is ex officio the Board of Supervisors of MCWRA. The Board of Supervisors appoints a nine-member Board of Directors for MCWRA. Each of the five supervisors of Monterey County appoints one director and the other four are appointed by majority vote of the supervisors from nominees submitted by various agricultural groups.
The Agency Act requires MCWRA:
to provide for the control of flood and storm waters of the Agency, to conserve those waters for beneficial and useful purposes by spreading, storing, retaining, and causing those waters to percolate into the soil with the Agency, or to save and conserve in any manner all or any of those waters, and to increase and prevent the waste or diminution of the water supply in the Agency, including the control of groundwater extractions as required to prevent or deter the loss of usable groundwater through intrusion of seawater and the replacement of groundwater so controlled through the development and distribution of a substitute surface supply.21
Most pertinent to our decision today is the mandate that no groundwater from the Salinas Basin "may be exported for any use outside the basin, except that use of water from the basin on any part of Fort Ord shall not be deemed such an export. If any export of water from the basin is attempted, the Agency may obtain from the superior court, and the court shall grant, injunctive relief prohibiting that exportation of groundwater."22
The Monterey Regional Water Pollution Control Agency (MRWPCA) operates the regional wastewater treatment plant located north of Marina and also operates the regional recycling treatment plant located at the same facility. Under contract to MCWRA, MRWPCA distributes recycled water to agricultural customers for irrigation on 12,000 acres in Castroville. This recycled water has been paid for by the agricultural customers in the Salinas Valley and is known as the Castroville Seawater Intrusion Program (CSIP). As explained on the MRWPCA's website, the MCWRA and the MRWPCA have partnered for years to provide recycled water to farmers in order to reduce the draw of water from underground aquifers.23 MRWPCA is governed by a Board of Directors, consisting of a Monterey County Supervisor, a director of the MCWD, mayors and city council members of various cities served by the MRWPCA, and members of various sanitation districts.
Also, as explained in Exhibit 306, the Monterey Regional Waste Management District (MRWMD) operates the solid waste management facilities adjacent to the proposed Regional Project. In conjunction with the MPWPCA, the MRWMD captures landfill gas and uses it as fuel in an existing cogeneration facility. Pursuant to Pub. Util. Code § 218, because power generators may sell power directly to adjacent end users, MCWD states that MRWMD could sell renewable power to the Regional desalination plant and thus, reduce energy costs.24
We discussed the formation of the Monterey Peninsula Water Management District (MPWMD) in D.09-07-021:
In 1977, the Legislature created the Management District for the purposes of: "conserving and augmenting the supplies by integrated management of ground and surface water supplies, for control and conservation of storm and wastewater, and for the promotion of the reuse and reclamation of water." The Management District's specific functions are "management and regulation of the use, reuse, reclamation, conservation of water and bond financing of public works projects." The Management District is authorized to issue bonds, assess charges for groundwater enhancement facilities, levy assessments on real property and improvements, and "fix, revise, and collect rates and charges for the services, facilities, or water furnished by it."25
MPWMD is governed by a seven member board of directors. Five of the directors are elected directly, one member is an elected Monterey County Supervisor, and one member is a member, councilmember, or city manager appointed by the mayors of the six cities within the boundaries of the MPWMD: Carmel-by-the-Sea, Del Rey Oaks, Monterey, Pacific Grove, Sand City, and Seaside.26
Water is a critical issue on the Monterey Peninsula, and the community is very aware and informed about water issues. Even with this brief overview, we can see that the agencies charged with managing water resources have inter-related missions and, to a certain extent, overlapping supervisory boards. We are cognizant of the views expressed at the PPHs in July 2009 and June 2010. Residents, business owners, newly-formed coalitions, and political leaders are fully aware of the need for developing a new water source quickly, the need for cost-effectiveness, and the need for ratepayer protection. It is clear that the community actively desires a role in the Regional Project, but is divided on whether the Public Agencies can provide the protection they seek.27 Indeed, several speakers at the PPHs stated that local agencies alone have not been able to solve the problem and entreated the Commission to intervene.
14 The Commission generally refers to the number of metered connections rather than the number of persons served. In D.09-07-021, we refer to approximately 39,000 connections in Cal-Am's Monterey District. (Appendix B at 7.)
15 FEIR at 2-5.
16 Based on FEIR, Table 2-2 at 2-7; total replacement supply is 12,507 afy, rounded to 12,500 afy.
17 The Endangered Species Act, § 9 defines a "take" as harm to a listed species of wildlife. Harm includes habitat alteration, according to USFWS regulations.
18 FEIR at 1-9.
19 Exhibit 329 at 15-16, Exhibit 357.
20 Exhibit 500 at 3; Monterey County Water Resources Agency Act (1990 Stats. 1159, 1991 Stats. 1130, 1993 Stats. 234, and 1994 Stats. 803). MCWRA is the successor to the Monterey County Flood Control and Water Conservation District under the Monterey County Flood Control and Water Conservation District Act, repealed in 1990 (Ch. 699, stats. 1947).
21 Exhibit 500 at 5, citing Agency Act at § 52-8.
22 Id. at 4-5, citing Agency Act at § 52-21.
23 http://www.mrwpca.org/recycling/index.php.
24 Exhibit 306 at 21-23. DRA contends that we must not rely on this information, since it is not included in the Settlement Agreement or the WPA and also asserts that we cannot rely on MCWD's Opening Brief regarding the potential for use of renewable energy. We do not rely on the fact that such endeavors will occur, but we encourage Settling Parties to investigate feasible uses of alternative energy supplies to reduce costs. We note that the FEIR also considers the possible use of renewable energy for the Regional Project at 5-45.
25 D.09-07-021 at 117, footnotes omitted.
26 As explained in its Opening Brief, MPWMD boundaries also include the Monterey Peninsula Airport District, portions of unincorporated Monterey County, Pebble Beach, Carmel Highlands, and along the Highway 68 corridor. Opening Brief at 5.
27 RT Volumes 16 and 17 (transcripts of the June 28, and 29, 2010 PPHs).
