9. Findings of the Environmental Process
As required by CEQA, the FEIR presents conclusions regarding the overall environmentally superior alternative, taking the "No-Project" analysis into consideration. This comparison is based on the environmental impacts of the proposed project and each alternative, as identified in Reference Exhibit B, Section 7.49 Alternatives are compared by summarizing the impacts of each alternative in each environmental issue area, considering the relative importance of the issues, and then identifying the alternative with the least overall impact on the environment.
Because of the lengthy history of the Coastal Water Project, the EIR alternatives analysis entailed consideration of many alternatives in the context of several different proposed projects and various related documents, including the New Los Padres Dam and Reservoir EIR (originally proposed by MPWMD in 1989 and defeated by voters in 1995), the Carmel River Dam and Reservoir Project (considered in A.97-03-052, precluded by AB 1182, and dismissed in D.03-09-022), and the Commission's Water Supply Contingency Plan Evaluation and Coastal Water Project EIR (prepared in response to AB 1182 and known colloquially as Plan B). The alternatives considered in the instant FEIR include several basic elements: a desalination plant, a water intake mechanism, a brine outfall mechanism, desalinated water conveyance and storage infrastructure, and aquifer storage and recovery. We address the environmental impacts and discuss the environmentally superior alternative in terms of the proposed locations and components required for the Coastal Water Project.
In selecting the environmentally superior alternative, the FEIR considered the environmental impact of each project, which of the projects evaluated in the FEIR had the fewest significant-and-unavoidable impacts, and which, if any, of the proposed alternatives would lessen or eliminate any significant-and-unavoidable or potentially-significant-but-mitigable impacts. The FEIR finds that the environmental impacts of the Moss Landing Project and the North Marina Project are generally similar. However, the FEIR determines that the North Marina Alternative has several advantages over the Moss Landing Project in terms of the scope of the environmental effects:
1. The North Marina Alternative includes approximately 5 miles less of pipeline installation, because it does not include the Transmission Main North. Therefore, it would have significantly fewer construction-related impacts than the Moss Landing Project.
2. The North Marina Alternative's intake facilities are subsurface wells and thus avoid effects related to entrainment and impingement.
3. The North Marina Alternative's intake and outfall processes are not dependent on a once through cooling system and thus avoid future issues related to water quality and marine biological resources.
4. The North Marina Alternative would explore opportunities for regional partnerships and avoid duplicative facilities and infrastructure, and therefore would potentially eliminate the amount of construction and related impacts that would otherwise occur at the regional level.
Thus, the North Marina Alternative is considered to be environmentally superior to the Moss Landing Project.
The environmental impacts of the Phase 1 Regional Project are also addressed in Table 7-1 of the FEIR. The North Marina Alternative and the Phase 1 Regional Project are nearly equal in their level of environmental impacts. There are two impacts that factor into the determination of the environmentally-superior alternative: operation-related greenhouse gas emissions and construction-related particulate matter greater than 10 microns (PM10). The FEIR has determined that the thresholds established for each of these impacts may be exceeded and has defined measures to mitigate these impacts to acceptable levels. Assuming that the mitigation measures set forth in the FEIR are imposed and fully implemented by all pertinent agencies, the Regional Project would be the environmentally-superior alternative. This is true because:
1. The Regional Project is a 10-mgd facility and therefore would require less feedwater than the 11-mgd North Marina alternative, and would also result in less brine being discharged to the ocean;
2. The Regional Project would use less energy to generate water in a drought condition;
3. As analyzed in the FEIR, the Phase 1 Regional Project would include 6 vertical wells at 200 feet deep, as opposed to 6 slant wells at 750 feet long for the North Marina Project, which would result in a shorter drilling period and the need to dispose of less spoil material; and
4. Implementation of the Regional Project would eliminate the need for the MCWD to develop its own 3 mgd desalination facility (as previously approved by MCWD and examined in the certified RUWAP EIR) in addition to a Cal-Am-only desalination facility. Having one desalination facility instead of two would allow for more efficient operations and minimize construction and operational impacts to the environment.
Because MCWD, MCWRA, and MRWPCA would implement the Regional Project and because these Public Agencies are not under this Commission's jurisdiction, the FEIR concludes that we cannot ensure compliance with the mitigation efforts to ensure that the outcome would result in less-than-significant impacts. This is a conservative, but reasonable approach. Thus, the FEIR classifies the greenhouse gas emissions and PM10 impacts associated with the Regional Project as significant and unavoidable. The FEIR concludes that if the Public Agencies agree to implement all of the mitigation measures, the Regional Project would be the environmentally superior alternative.
Because of the Cease and Desist Order, the FEIR also recognizes that time is of the essence, in terms of developing a replacement water supply to cease unauthorized withdrawal of water from the Carmel River. Accordingly, the FEIR concludes that the potential need to accelerate the construction schedule may make it unrealistic for any of the proposed projects to comply with the PM10 mitigation measure (Mitigation Measures 4.8-1.d and 6.8-1a.) If the PM10 mitigation strategies were pursued, construction would have to proceed more slowly to ensure that maximum daily PM10 significance levels were not exceeded. However, if the mitigation measures are deemed infeasible at the project decision-making level, then all alternatives would be equal in terms of impact stemming from PM10 emissions during construction.
MCWD has certified the FEIR for its use and issued a statement of overriding consideration, because it cannot assert control over all aspects of the project, and because of the cumulative effects of the Regional Project, related to construction (as to air quality and noise) and operation (as to air quality), when considered with several other projects underway or soon to be underway in the Monterey Peninsula. MCWRA has also issued a statement of overriding considerations as to the potentially considerable and significant cumulative impacts on air quality and noise, and because of potential conflict with the goal of reducing greenhouse gas emissions in California to 1990 levels, consistent with the requirements of AB 32 (Stats. 2006, Ch. 488).
For all of these reasons, the FEIR has identified the North Marina Alternative as the environmentally superior alternative, albeit by a very narrow margin. By today's decision, we find that the PM10 mitigation measures are not feasible for any of the projects, due to the timing requirements of the Cease and Desist Order and the urgency of the water supply need. Accordingly, the Mitigation Monitoring and Reporting Program adopted in Appendix C does not include the PM10 mitigation measures. Because we cannot assert jurisdiction over the Public Agencies, we do find that impacts from greenhouse gas emissions cannot be mitigated. The FEIR identified certain environmental impacts that could not be mitigated for each of the projects studied, including the environmentally superior alternative. We discuss these below.
9.1. Significant and Unavoidable Environmental
Impacts that Cannot be Mitigated
Certain impacts discussed in the FEIR are considered to be significant and unavoidable in the areas of greenhouse gas emissions and air quality. While certain indirect effects of growth resulting from implementation of the Coastal Water Project as a whole are considered significant and unavoidable for Phase 2 of the Regional Project, no action is being taken at this time on the Phase 2 Regional Project, and we do not discuss these impacts here.
The total estimated greenhouse gas emissions amounts that would be associated with the operations of the Moss Landing Project or the North Marina Project would exceed the amount of the preliminary draft significance threshold established by the California Air Resources Board. Implementation of Mitigation Measures would reduce short-term construction and long-term operations emissions of greenhouse gas emissions. Implementation of Mitigation Measures 4.8-5c: Energy Minimization and Greenhouse Gas Reduction Plan would ensure that annual project greenhouse gas emissions level would be below 7,000 metric tons; accordingly, impacts would be mitigated to less than significant.
The DEIR disclosed a significant and unavoidable impact related to greenhouse gas emissions for the Regional Project. Mitigation Measure 4.8-5.c has been determined to be a feasible mitigation measure that can and should be adopted by this Commission and the Public Agencies that will be associated with the Regional Project. If adopted and applied to the Regional Project as a whole, Mitigation Measure 4.8-5.c, in conjunction with other mitigation measures, would reduce the Regional Project's operation-related greenhouse gas emissions to a less than significant level. However, as discussed above, because several components of the Regional Project would occur under the jurisdiction of other agencies, we cannot guarantee that Mitigation Measure 4.8-5.c would be implemented to ensure that total greenhouse gas emissions do not exceed the significance threshold. Indeed, both MCWD and MCWRA have adopted a Statement of Overriding Consideration with regard to the greenhouse gas emissions level. Thus, as set forth more fully in the CEQA Findings, we find Mitigation Measure 4.8-5.c to be infeasible, and, for purposes of this decision, greenhouse gas emissions impacts associated with the Regional Project continue to be classified as significant and unavoidable. As for the Cal-Am facilities, we require Cal-Am to adopt the feasible mitigation measures that we have included in Appendix C.
The FEIR assumed that emissions from construction of the Regional Project components would occur simultaneously. This is the most conservative assumption for daily emissions and the worst-case day emissions would occur when construction of the components would overlap and exceed the Monterey Bay Unified Air Pollution Control District's significance threshold of 82 pounds per day of PM10. Mitigation Measure 6.8-1.a, if implemented, would reduce construction emissions to a level below the threshold of significance. Since there is no guarantee that all relevant agencies would impose these measures as conditions of approval on the portion of the Regional Project under their jurisdiction, and due to the timing constraints imposed by the Cease and Desist Order, we have determined that it is infeasible to impose this mitigation measure. Impacts to regional air quality that would result from construction of any of the projects are considered to be significant and unavoidable.
9.2. Cumulative Impacts
The FEIR analyzed the collective impacts of all project-level and program-level projects included in the Coastal Water Project, as well as the potential for overlap with other relevant projects proposed or planned in the region. Again, the FEIR takes the conservative approach and assesses the potential for overlapping impacts associated with multiple projects proposed for construction within the same time frame and same geographic area. We highlight the major potential cumulative impacts below.
Concurrent construction of the relevant projects (listed in Table 9-1 of the FEIR) could generate greater emissions of certain pollutants, including fugitive dust and equipment exhaust particulate matter and could cause a significant cumulative impact. Implementation of several mitigation measures would reduce the PM10 emissions from the Moss Landing and North Marina Projects to a less than cumulatively considerable level. As previously noted, because of the time constraints imposed by the Cease and Desist Order, we have determined that these mitigation measures are not feasible.
Long-term greenhouse gas emissions associated with the substation for the Moss Landing and North Marina Projects would exceed the amount of California Air Resources Board's preliminary draft significance threshold for carbon emissions. The FEIR has set forth mitigation measures to avoid or substantially reduce the greenhouse gas emissions to the extent feasible, and the impact would not be cumulatively considerable for the Moss Landing and North Marina Projects. However, since we cannot guarantee that the various agencies involved in the Regional Project would implement the mitigation measures in a coordinated fashion, impact from greenhouse gas emissions from the Regional Project could have cumulative considerable contribution toward the cumulative impacts.
9.3. CEQA Findings of Facts
Based upon the FEIR, we have prepared a set of CEQA Findings of Fact (CEQA Findings) pursuant to CEQA Guidelines § 15091 regarding each significant impact associated with the authorized alternative, appended to this decision as Appendix B. We find that the CEQA Findings accurately reflect the independent analysis contained in the FEIR, the Commission's policy decisions, as well as other information in the record, and are supported by substantial evidence in the record. As to the Cal-Am portion of the Regional Project, we find that changes or alterations have been required in, or incorporated into, the Regional Project which avoid or substantially lessen the significant environmental effects identified in the FEIR. As to the non Cal-Am portions of the Regional Project, we find that the applicable and feasible mitigation measures described in the CEQA Findings can and should be (and in most cases, already have been) imposed as conditions of approval by MCWD, MCWRA and/or MRWPCA on the Regional Project. We further find that specific economic, legal, social, technological, or other considerations make infeasible the mitigation measures or alternatives that are not required in, or incorporated into, the Regional Project.
9.4. Statement of Overriding Considerations
As required by CEQA, we cannot approve the proposed project or an alternative unless we find that the project has been modified to mitigate or avoid each significant effect on the environment; or that specific considerations make the mitigation measures or alternatives identified in the FEIR infeasible; and specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment. Here, as we have discussed, because we are approving the Regional Project, this Commission cannot guarantee that the Public Agencies involved will comply with the mitigation measures recommended in the FEIR. Because we have determined that the mitigation measures for PM10 for any of the projects are infeasible due to the urgency of the need for a new water supply, we consider only the greenhouse gas emissions in considering the environmentally superior project.
Because of the myriad social, economic, and legal issues we discuss in this decision, while the Moss Landing and North Marina Alternatives may be feasible from an environmental perspective, we conclude that the Regional Project is the only feasible alternative that can provide the necessary water supply in the timeframe that the Cease and Desist Order imposes.
We make this determination for several reasons, which we mention briefly here, and expand on throughout this decision and in the CEQA Findings of Fact. First, the need for a replacement water supply is urgent. The SWRCB Cease and Desist Order could lead to severe water restrictions and rationing, should the projects be delayed due to litigation. Second, Monterey County Code Chapter 10.72.030(B) prevents private entities from owning desalination plants; therefore, Cal-Am ownership of the North Marina Alternative could lead to lengthy litigation.50 Under the Regional Project, MCWD, a Public Agency, owns the desalination plant. Finally, there is no source water on the Monterey Peninsula. Use of Salinas Valley groundwater as a desalination source water supply must be structured in such a way to ensure that water drawn from the Salinas Valley groundwater basin remains in that basin. As proposed in the Settlement Agreement, and explained in Exhibit 329, the Regional Project is so structured.
Accordingly, as specified in the Statement of Overriding Considerations of the CEQA Findings (Appendix B), and discussed more fully herein, we conclude that specific economic, legal, social, technological or other benefits of the Regional Project outweigh the significant and unavoidable impacts of the Project.
A Mitigation Monitoring and Reporting Program, which presents the recommended mitigation measures and a process for monitoring the implementation of those measures, has been prepared and is attached as Appendix C. We hereby adopt the Mitigation Monitoring and Reporting Program and require Cal-Am to comply with the Mitigation Monitoring and Reporting Program as a condition for our approval of Cal-Am's participation in the Regional Project and as a condition for issuing the Certificate of Public Convenience and Necessity. We are pleased that the Public Agencies recognize the importance of the mitigation measures and acknowledge their intention that "the development, construction, and operation of the Regional Desalination Project occur in accordance with the FEIR and that MCWD and MCWRA each act as a Responsible Agency in accordance with CEQA to implement the Regional Desalination Project."51
We note that providing water for growth is a highly charged issue on the Monterey Peninsula. The Moss Landing Project, the North Marina Project and the Regional Project all provide water for existing uses. Phase 1 of the Regional Project also provides replenishment water for previously-approved supply for portions of Fort Ord within the MCWD service area (in and of itself a controversial issue when it comes to cost-sharing, as we shall see). The Phase 2 Regional Project includes supplies to meet the needs of approved growth. With this context in mind, we turn to the proposed Settlement Agreement and Implementing Agreements.
49 The DEIR is marked and identified as Reference Exhibit A and the FEIR is Reference Exhibit B. The Addendum to the FEIR is Reference Exhibit C. The CEQA findings and statement of overriding consideration adopted by MCWD is Reference Exhibit D and the CEQA findings and statement of overriding consideration adopted by the Monterey County Board of Supervisors for MCWRA is Reference Exhibit E.
50 Exhibit 336 at 2.
51 Exhibit 301 at 2.
