Back in July 2013, a settlement agreement was reached between California American Water, local water agencies, certain ag interests in the Salinas Valley and several non-profit agencies including the group now known as Public Water Now. The agreement related to Cal Am’s proposed water supply project that involves building and operating a desalination plant in the vicinity of Marina.
Public Water Now is headed by George Riley, a well-known leader in the ongoing effort to seek fair water rates for Peninsula residents. Public Water Now signed the agreement not because it was in full support of the project but because, as a party to the agreement, it would be entitled to participate in reviewing draft reports and other activities. It would be in the loop rather than on the outside.
The settlement agreement contains important language that gives the parties, including Public Water Now, the right to challenge the project’s source of water if it is shown to harm the Salinas Valley Groundwater Basin or the Sand Dunes Aquifer in the Seaside-Marina area. It is unlawful to extract water from one groundwater basin and transfer it to another. Water taken from either or both of those sources and used by a desal plant would be unlawful. On top of that, Cal Am has no underlying legal right to either source.
Therefore, Cal Am turned to the idea of drilling slant wells under Monterey Bay in order to reach sea water for desalination. Drilling data, however, have clearly shown that significant amounts of fresh water, not totally saline water, is in the water pumped so far, meaning Cal Am is pumping water to which it has no legal rights. Further, in spite of Cal-Am’s continuing arguments that slant wells are a tried and true method of obtaining water for a desal plant, the company has provided no proof of that, and Public Water Now has determined that no ocean desal plant in the world is served by slant wells.
Given these facts, Riley sent two emails in 2015 and 2016 to all parties before the California Public Utilities Commission in connection with the continuing hearings on Cal Am’s project. He wrote that he and Public Water Now were exercising the right under the agreement to withdraw support for slant wells and to actively work for legal and reliable alternatives. He provided the necessary facts on the record to support his claim.
Neither email was incorporated into the record.
In response, Cal Am and its supporters had their lawyers submit a “Motion to Strike” Riley’s emails.
The motion asserts that the emails were sent “ex parte,” meaning sent without notice to other involved parties, including a decision-maker. Even though the other involved parties did indeed receive notice, the CPUC prohibits such communications if a decision-maker such as an administrative law judge is a recipient. The administrative law judge was, in fact, a recipient.
The underlying purpose of limiting ex parte communications in a judicial or quasi-judicial setting, such as the CPUC’s administrative action involving Cal Am, is to ensure that no party can gain an unfair advantage by communicating off-the-record with any decision-maker.
It is important to note that administrative law judges do not have decision-making authority on substantive matters. They make procedural decisions but their opinions on matters of substance are only recommendations to the commissioners. None of the five commissioners received the emails, so the integrity of the process was not compromised.
If Cal Am succeeds in having the emails stricken from the record, important facts will be kept out of the record upon which a final decision will be made on the desal project.
What are they afraid of?
If the information and facts offered by Riley and Public Water Now were faulty, why would Cal Am be so concerned about them and go to such effort to have them stricken from the record? They are concerned about those facts because they are the basis for showing the world the mistakes, misleading statements and other errors that have increased the project costs that will probably be transferred to ratepayers.
The motion asserts that the time for “commenting on the agreement” had long passed when, in fact, the emails were not comments on the settlement agreement. The emails address issues that arose after the settlement agreement. Since the settlement, concerns about the slant wells have evolved, including conflicts of interest involving the man who designed the wells and the validity of the data collected from test wells.
So it comes down to this. The emails were, by a strict definition, ex parte communications prohibited by the PUC. But at the same time, the substance of the emails had nothing to do with comments on the settlement agreement. Rather, they were direct communications necessary to notify all parties involved that Riley and Public Water Now had gathered sufficient evidence from the record to support the exercise of the right to challenge the source of water for the proposed desalination plant.
If the motion is adopted by the administrative law judge, facts that are not supportive of Cal Am would never see the light of day. The motion also threatens serious sanctions against Riley and Public Water Now.
The motion to strike is inappropriate and PWN’s emails should be incorporated into the record. Fairness and equity also demand that the final decisions in this case be determined on the basis of all the facts that should be contained in the entire record. As such, facts adverse to Cal-Am should be included as long as they are facts and can be supported as such. Riley has made that case. Justice demands that the motion fail. If it is adopted, the administrative law judge should direct Riley and Public Water Now to resubmit their materials in another format.
Hood is a retired lawyer and engineer who divides his time between Carmel and Columbus, Ohio. He is a former executive director of the Association of Monterey Bay Area Governments.