SDFormationLawsuit0002

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1. This action challenges the November 10, 2010 decision of Respondent

1 JAN 1 . GOLDSMITH, City AttorneyDONALD R. WORLEY, Assistant City Attorney2 GLENN SPITZER, Deputy City AttorneyCalifornia State Bar No. 2186643 Office of the City Attorney1200 Third Avenue, Suite 1620

4 San Diego, California 92101-4178Telephone: (619) 236-62205 Facsimile: (619) 236-7215- 6 Attorneys for-Petitioner City of-Sari Diego

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Exempt from fees per Gov't Code 61To the henefit of the City of San Diego

SUPERIOR COURT OF STATE OF CALIFORNIACOUNTY OF SAN DTEGO

PETITION FOR WRIT OF) ADMINISTRATIVE AND TRADiTIONAL) MANDAMUS [CCP 1085, 1094.5];) COMPLAINT FOR DECLARATORY) RELIEF [CCP 1060]; COMPLAINT FOR) INJUNCTIVE RELIEF;)) Case Designation: CEQA) [Cal. Public Res. Code 21000, et seq.])) Judge:) Dept.:) Tlia! Date:_________________ ) Complaint Filed:

21 Petitioner City of San Diego (City) respectfully submits this Petition for Writ of Mandate22 and Complaint for Declaratory and Injunctive Relief as follows:

101112 THE CITY OF SAN DIEGO, a municipalcorporation,1314

Petitioner,v.15

16 SWEETWATER AUTHORITY, andDOES 1 through 25,17 Respondents.181920

23 GENERAL ALLEGATIONS

25 Sweetwater Authority (Sweetwater) to approve an expansion ofthe Richard Reynolds Brackish26 Groundwater Desalination Facility and related facilities (Project). Also, this action seeks to set27 aside all of Sweetwater's actions in relation to the Project taken on February 24,2010 and28 November 10,2010, including the certification of a Final Environmental Impact Report (FEIR),

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1PETITION FOR WRIT OF ADMINISTRATIVE A D TRADITIO" AL MANDAMUS


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1 adoption of findings under the California Environmental Quality Act (CEQA), Public Resource2 Code section 21081 (CEQA findings), and approval of the Mitigation Monitoring and Reporting3 Program pursuant to Public Resources Code section 21081.6 (MMRP). The City also seeks a4 declaration regarding its rights to the San Diego Formation vis-a-vis Sweetwater.5 2. The City is the successor in interest to the Pueblo of San Diego ("Pueblo") and6 thereby has- a prior and paramount right to-the use of allwater-including all surface and7 underground water, within the boundaries of the Pueblo, including waters tributary to waters8 within the Pueblo, for the use of the City and its inhabitants. This Pueblo water right provides a9 prior and preferential right to the waters passing above and under the lands within the Pueblo10 boundaries. That Pueblo water rights constitute a prior and paramount right owned by the11 Pueblo and its successors has long since become a rule of property in California.12 3. The Project proposes to drill five additional wells into the San Diego Formation,13 regionally significant aquifer system that underlies parts of the Pueblo and the City as well as14 other cities within San Diego County. The San Diego Formation and its groundwater are an15 important part of the environment and-vas the primary aquifer in the coastal San Diego area-vis16 vital resource to the City and the region. A map of the San Diego Formation is attached hereto17 as Exhibit "A." A map of the Pueblo of San Diego showing the Pueblo overlying a part of the18 San Diego Formation is attached hereto as Exhibit "8,"19 The Project contemplates significant pumping from the San Diego Formation.20 from a location that is in proximity to the Pueblo and is hydrologically connected and a part of21 portions of the San Diego Formation that underlie the Pueblo. The Project pumping will deplete22 and degrade portions of the San Diego Formation that underlie the Pueblo and deprive the City23 and its citizens from ever using said water in violation of the City's prior and paramount Pueblo24 water rights.25 5. Moreover, the pumping of groundwater pursuant to the Project will have a26 significant effect on the environment by exceeding the safe yield of the groundwater aquifer,27 which in turn, will deplete the groundwater supplies, degrade the water quality in the aquifer and28 lead to land subsidence and geolog ic al changes in th e a qu ife r sy st em. I n addi ti on s ign if ic an t

2PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS

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:1 degradation of vegetation and consequent destruction of wildlife habitat and biological resource2 within the Sweetwater River channel will result from the pumping proposed by the Project.3 These significant environmental impacts have not been adequately disclosed and analyzed in th4 FEIR and Sweetwater has made no effort to avoid these impacts or to mitigate for them in a5 meaningful way.6 _ _.6; . The desalinationfacility will-alsomore than triple-its current allowable discharge7 of brine, a salt saturated by-product of the desalination process. The FEIR states current brine8 discharge is 0.8 million gallons per day (MOD). The proposed expansion will increase the brine9 discharge to 2.5 MOD.10 7. The City is committed to managing its water rights and the groundwater resource11 within its jurisdiction to promote the safe yield of the aquifer systems and to coordinate12 management with other entities that overlie the groundwater resources. It is the City's policy to13 support efforts to maintain groundwater supplies, throughout the state, free of contaminants.14 (City Council Policy 400-09(F)(2).) The City's policy also includes supporting programs to15 recharge and improve the yield from local groundwater basins. (City Council Policy 400-16 09(D)(3).) Through its constitutional police powers, the City has the right and obligation to17 protect its citizens from water supply interruptions and shortfalls by preserving and protecting18 regional groundwater supplies, which is another official policy of the City. (Calif. Const. Art.19 XI, 7; City Council Policy 400-09(D)(1).)20 8. Additionally, as an entity with water rights in the San Diego Formation, the City21 has a special interest in managing this important resource to protect the safe yield of the aquifers22 for the future. The City is participating in an area-wide investigation with other entities to23 develop an integrated, comprehensive understanding of the geology and hydrology of the24 Formation so that the resource can be used in a responsible manner that will preserve the25 resource for future generations. To this end, the City sought to enter into ajoint water26 management plan with Sweetwater under California State Assembly Bill 3030. Such a plan27 would allow entities to plan for the prudent use and preservation of the resource. To date,28 however, Sweetwater has taken no action that would indicate a genuine willingness to participate



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in this plan. Instead, Sweetwater appears to be in a rush to deplete the resource for its own2 beneficial use before the resource can be adequately studied and the safe yield protected for the

------6- ---significant environmental- effects of proposed projects- anddiscloses-tothe public the reasons fo

3 future.

10 and address the significant environmental effects in a good faith manner. In particular, the EIR

4 9. The overriding goal of CEQA is L O protect the environment. An ErR is the heart

11 fails to adequately address and analyze the effects of overdraft. Thus, the FEIR fails as a tool fo

5 of CEQA. The ElR informs government decision-makers and the public about the potential

7 approval of a project that may have significant environmental effects. Thus, the EIR protects n8 only the environment but also informed self-government. Because the ElR must be certified or9 rejected by public officials, it is a document of accountability. The FEIR here fails to disclose

12 environmental protection and informed government decision-making.13 10. Sweetwater is planning to proceed with construction and operation of the Project14 to pump additional groundwater, even though the construction and operation of the Project will15 irreparably harm the environment as described herein and threaten this critical groundwater16 resource for use in the region. A temporary restraining order and preliminary and permanent17 injunctions should issue restraining Sweetwater and its agents from proceeding with the Project.18 VENUE19 11. Venue and jurisdiction in this COUliare proper pursuant to California Code of20 Civil Procedure sections 1085 and 1094.5 and California Public Resources Code sections 2116721 21168 and 21168.5, for a matter relating to a subject property located within the Court's22 jurisdiction.2324

PARTIES12. Petitioner, City of San Diego, is a charter city, organized under the laws of

25 California.26 13. Respondent Sweetwater provides water for National City, Bonita and the western27 and central portions of Chula Vista. Respondent, as lead agency, took the action of certifying th28 FElR, adopting the CEQA findings and MMRP, and approving the Project.

4PETITION FOR WRIT OF ADMIl\TISTRATIVE A.ND TRADITIONAL MANDAMUS


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16. Sweetwater originally certified a FEIR for phase 1 of this project on March 13,

14. The true names and capacities of the Respondents identified as DOES 1-25 are1 12 1 currently unknown to Petitioners. Petitioners will seek leave ofthis Court to amend this Petition3 to allege the true names and capacities as soon as they are ascertained. Petitioners are informed4 and believe and thereon allege that each of the fictitiously named Respondents have jurisdiction5 by law over one or more aspects of the proposed development.

--6 -----FIRST-CAUSEOF ACTIONAGAINST ALL RESPONDENTS, DOES 1-25(Violation of the California Environmental Quality Act)

PROJECT BACKGROUND9 15. The allegations set forth above in paragraphs 1-14 are incorporated herein as10 though fully set forth in this paragraph.1112 1996.13 17. On February 24,2010, Sweetwater adopted resolution 10-03 certifying the FEIR14 and approving the Richard A. Reynolds Brackish Groundwater Desalination Facility - Phase II15 Expansion, adopting Findings of Fact and a Mitigation Monitoring and Reporting Program, and16 Approving the Project.17 According to the FEIR, the Project has nine (9) development components:8.18 SaJLQiezQ.mJlllljg!1jYfl1~- This component of the project proposes to.19 drill five additional Formation groundwater wells, each with a building [13 feet by 2320 feet by 10 feet high; or 300 square feet] housing the pump and appurtenances, and21 associated electrical and instrumentation/control facilities, to increase groundwater22 production capacity. These five additional wells will extract 850 gallons of groundwater23 per minute and total six million gallons of extracted water per day.24 b. Conveyance Pipelines: Each additional well (5 total) will require water25 conveyance pipelines from their respective locations to the main pipeline, which main26 pipeline ultimately connects to the desalination facility. Each pipeline will require boring27 pits that are 8-feet-wide by 5-feet-deep, in order to convey the main pipeline under the28 Sweetwater River. This component of the project will also require an additional 350



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linear feet of treated water pipeline in order to deliver treated water to the National CityBonita, and Chula Vista communities.

c. Desalination Facility Expansion: This project component, while it does nincrease the footprint of the Desalination Facility, will involve updating internal systemand water treatment processes.

d. +Pre=Treatment- System: This system will be updated to four (4) larger7 capacity cartridge filters to meet the new capacity of water extraction. These cartridge8 filters will operate to remove iron and manganese. This operation involves waste9 backwash water recover, a backwash decanting tank and a recycle pump with10 appurtenances.

12 upgraded to include three (3) additional reverse osmosis (RO) treatment trains. ThisReverse Osmosis Treatment Trains - This system will be enhanced and

13 enhancement will allow the facility to produce 9.0 million gallons per day of permeate14 flow. Currently, the existing osmosis operation discharges 0.8 million gallons of15 concentrate into the tidal zone of the Sweetwater River and ultimately into the San Dieg16 Bay. The expanded system will require that the facility discharge 2.5 million gallons of

1817 concentrate into the Sweetwater River and Ultimately the San Diego Bay, per day.

Clean-in-Place Sy~!em - This project component will replace the existing.19 "clean-in-place system" with a larger system, in order to clean a larger pressure vessel

2120 system.

g. Degassifier, Clearwell, and Product Water Pumps - This project22 component will add a third degassifier to the existing system and will replace three (3)23 clearwell pumps with four (4) new pumps. The degassifiers will act to reduce corrosivity24 in the water and the clearwell pumps will accommodate the increased capacity of25 potentially 6 million gallons of potable water per day.26 h. Civil Engineering - This project component consists of asphalt and grave27 surfacing, curb access apron and driveway, and site storm drainage improvements.28

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1. .I;lectrical - This project component consists of upgrades to the currentelectrical system. The electrical room will likely require modifications to the electricalroom cooling system due to the increased capacity of water extraction from theFormation and the high burden this extraction places on the facilities internal systems.19. The City and other agencies submitted written and oral comments and supporting

6 -factual and scientific materials detailing, among other things,Sweetwater's failure to comply7 with CEQA and of the adverse environmental effects that would result from the Project8 Approvals. The City submitted its written comments on Sweetwater's Draft EIR on August 31,9 2009.10 20. Sweetwater's responses to public comments submitted were inadequate. In its11 response to the City's written comments, Sweetwater failed to adequately address the City's12 concerns. Sweetwater dismissed many of the City's comments without adequate analysis or13 explanation. Some comments received no response.

15 dated February 23,2010 and in testimony at the public hearing which took place on February 2414 The City reiterated, and in some cases focused, its concerns in a follow-up letter1.

1716 2010. Again, the concerns were not addressed.

22. All of the issues presented in this action were brought to the attention of18 Sweetwater by either the City or the other commenting agencies during the administrative review

2019 process.

On February 24, 2010, Sweetwater certified the FEIR without having resolved th3.

2221 numerous deficiencies raised by the City or the other commenting agencies.

24. On or about February 25,2010, Sweetwater caused a Notice of Determination to23 be filed with the Office of Planning and Research, State Clearinghouse in Sacramento,24 California.

26 make and adopt essential CEQA findings as part of its approval ofthe Project and certification o25 25. On or about October 1,2010, Sweetwater notified the City that it had failed to

27 the FEIR on February 24,2010, and thus did not proceed in a manner required by law.28



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1 26. On or about October 27,2010, Sweetwater held a second public hearing whereby2 it stated its intention to adopt the essential CEQA findings for the FEIR that had been certified3 on February 24,2010 and to reapprove the Project. Prior to this second hearing, the City4 submitted additional written comments, reports and analysis and attended the second hearing to5 again register its concerns about the inadequacy of the FEIR. Included in the reports submitted t

0 _ -6 - 'Sweetwater wasa report 'p repared by theCity's 'geo-hydrologyexpert outlining the numerous 07 deficiencies with the Project and CEQA analysis, and raising several significant, new issues.8 Sweetwater continued the second public hearing to November 10, 2010.9 27. On November 10, 2010, the City attended the third public hearing noticed by10 Sweetwater. At this hearing, the City commented on the defective manner in which Sweetwater11 elected to proceed. Namely, the City warned Sweetwater against approving the Project at a12 hearing that did not address environmental review. The City urged Sweetwater to revisit the13 FEIR in light of the City's new comments. Without a willingness and opportunity to amend and14 recertify the FEIR, Sweetwater could not possibly give serious consideration to the City's15 comments. The reliance on the prior FEIR certification also made the decision to approve the16 Project and adopt the CEQA findings a foregone conclusion. This bifurcated process, which17 would result in segregation of environmental review from project approval, "supports an18 imputation of bad faith[.]" Bakersfield Citizens for Local Control V o City of Bakersfield, 124 Ca19 App. 4th 1184, 1202 (2004). Such a process contravenes the goals ofCEQA.20 28. Sweetwater dismissed the City's comments, characterizing the City's expert21 report as "unsubstantiated opinion," and adopted Resolution 10-18. By so doing, Sweetwater (122 determined no new information became available that would require additional environmental23 review; (2) elected to keep all prior actions related to the project in place (i.e., the February 24,24 2010 adoption of the MMRP, the certification of the FEIR, and the approval of the Project); (3)25 adopted the CEQA findings for the first time; and (4) approved the Project. Thus, despite26 acknowledging the February 24,2010 Project approval decision was legally defective,27 Sweetwater elected to keep that approval in place. Moreover, the defective prior Project28 approval made the November 10, 2010 Project approval a significant event in that it was the



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, j1 1 approval ofthe Project. Notwithstanding, Sweetwater characterized the approval of the Project: z I as a mere "housekeeping" matter and therefore elected to handle it in a manner contrary to

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PETITION FOR WRIT OFADMINISTRATIVE AND TRADITIONAL MANDAMUS

3 CEQA.

29. On or about November 12,2010, Sweetwater caused a Notice of Determination5 be filed with the Office of Planning and Research, State Clearinghouse in Sacramento,

-- 6 -Galifornia. -- ------ -7 30. . The City must bring this action for peremptory writ of mandate to set aside the8 Project and related actions and force Sweetwater to proceed in a manner required by law. By9 failing to proceed in a manner required by law, to address unmitigatable factors, to acknowledge10 significant impacts including making appropriate CEQA findings, and to adequately address11 feasible alternative measures to the proposed development, Sweetwater's approval of the Projec12 violated both the spirit and letter of CEQA.13 31. The City complied with the requirements of California Public Resources Code14 section 21167.5, by serving notice on Sweetwater of the City's intention to file this suit. Notice15 was mailed on December 7,2010 to Sweetwater at P.O. Box 2328, Chula Vista, CA 91912-232816 Copies of the notice and proof of service are attached hereto as Exhibit "C" and incorporated17 herein by reference.

32. Petitioners have exhausted all administrative remedies.STANDARD OF REVIEW

20 33. This action is brought pursuant to Section 21168 of the Public Resources Code21 and Section 1094.5 of the Code of Civil Procedure, which require that a public agency's22 approval of a project be set aside if the agency prejudicially abuses its discretion. Prejudicial23 abuse of discretion occurs where the agency fails to proceed in a manner required by law, where24 the decision is not supported by the findings, or where the findings are not supported by25 substantial evidence in light of the whole record.26 34. To the extent any of the approvals challenged in this action were not made as a27 result of a proceeding which by law a hearing was required, evidence required to be taken, and28 discretion and the determination of facts invested in the inferior tribunal, corporation, board, or

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1 I office, this action is brought pursuant to Section 21 1 68.5 of the Public Resources Code and2 1 Section 1085 of the Code of Civil Procedure which also require that a public agency's approval3 1 1 of a project be set aside if the agency has prejudicially abused its discretion. Under these4 1 1 sections, abuse of discretion is established if the agency has not proceeded in a manner required5 1 1 by law or if the determinations or decisions are not supported by substantial evidence.6 1 1 - - -35. - The-main -goal of CEQA is to-proteGt-the environment. -Cal. Pub. Res. Code 7 i I 21000-21002. The purposes of this goal are twofold: (a) to avoid, reduce, or prevent8 1 1 environmental damage when possible by requiring alternatives or mitigation measures, and (b)

10 II proposed and approved activities. Cal. Code Regs, tit. 14 1.5002. (All citations to Title J 4 of9 1 1 provide information to decision-makers and the public concerning the environmental effects of

1 1 1 1 the California Code of Regulations shall hereafter be noted as "CEQA Guidelines").12 36. The EIR is the primary means of achieving the goals of CEQA. CaI. Pub. Res.1 3 1 1 Code 21001 (a). It is "the heart ofCEQA." CEQA Guidelines 15003(a). An EIR is an1 4 1 1 "environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to1 5 1 1 environmental changes before they have reached ecological points of no return." Laurel Height1611lmprovc11'lentAssociation ofSan Francisco, Inc. v. Regents of the University ofCalifornia (19881 7 1 1 47 Ca1.3d 376,393. The ElR is also intended "to demonstrate to an apprehensive citizenry that1 8 1 1 the agency has, in fact, analyzed and considered the ecological implications of its action." Id.19 37. A public agency must not approve a project that causes significant environmental20 I I impacts if there are feasible alternatives or mitigation measures available that would reduce the2 1 1 1 project's environmental impact. Cai. Pub. Res. Code 21002.1; CEQA Guidelines 2 2 1 1 15021(a)(2).23 A project without feasible alternatives or mitigation measures that reduce8.2 4 1 1 significant impacts to the environment may only be approved upon substantial evidence that the2 5 1 1 project's benefits outweigh its impacts. CEQA Guidelines 15093, subds. (a), (b). A lead2 6 1 1 agency must eliminate or substantially lessen the environmental impact of the project where2 7 1 1 feasible. CEQA Guidelines 15126.4.28

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1 39. An EIR must identify and focus on the significant environmental impacts of a2 proposed project, giving due consideration to both its short and long-term effects. Cal. Pub.3 Resources Code, 21100(a),(b); CEQA Guidelines 15126. An EIR must similarly contain a4 "sufficient degree of analysis to provide decision makers with information that allows them to5 make a decision which intelligently takes account of environmental consequences." CEQA

- 6 Guidelines -15151.-A lead agency must consider all reasonably foreseeable aspects of the7 project and all other projects in the area in its consideration of the cumulative impacts ofthe8 project on the area. CEQA Guidelines 15355. Conclusory comments in support of9 environmental conclusions are generally inappropriate.10 40. Sweetwater violated each and every aforementioned requirement of CEQA as11 follows:12 Improper Approval Of Project On February 24, 2010

41. Where an EIR has been certified which identifies one or more significant effects14 on the environment, CEQA prohibits the approval of the project unless and until the lead agency15 can make the appropriate- findings under Public Resources Code section 21081.16 42. Sweetwater did not make any findings under section 21081 before November 1017 2010. Accordingly, the February 24, 2010 project approval is in clear violation of CEQA.18 Improper Segregation of Environmental Review19 43. Project approval is the primary action that may have a significant effect on the20 environment. For this reason, "environmental review is not supposed to be segregated from21 project approval." Bakersfield Citizens for Local Control, supra, 124 Cal. App. 4th at 1200.22 "[P]ublic participation is an essential part of the CEQA process." Laurel Heights Improvement23 Assn. v . Regents of University of California, 6 Cal. 4th 1112, 1123 (1993). Any comment made24 prior to project approval requires serious consideration and could impact the FEIR, which is why25 segregation ofEIR certification and project approval is improper under CEQA. Bakersfield26 Citizens for Local Control, supra, 124 Cal. App. 4th at 1199-1202.27 44. Sweetwater certified the subject FEIR on February 24,2010, more than eight28 months prior to approving the Project on November 10,2010. After certification and prior to

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PETITION FOR WRIT OF ADMil'l"ISTRATIVE AND TRADITIONAL MANDAMUS

1 Project approval, the City submitted numerous comments. Included in the comments was a:2 report from the City's geo-hydrology expert that specifically addressed numerous deficiencies o3 the FEIR and raised several new issues. Expert reports of this nature are generally entitled to4 greater deference and require serious consideration. However, because Sweetwater had already5 certified the FEIR and stated an unwillingness to revisit the FEIR, it could not possibly give6 -serious-consideration to -the-City' snew comments.--7 Failure To Adequately Address Impacts To Water Supplies As AResult Of Overdrafting The Aquifer And Exceeding Its Safe Yield89 45. The FEIR does not adequately address and disclose the impacts related to10 overdraft of the Formation. This is an issue of paramount import to the public, and it should be11 properly disclosed, analyzed and any significant effects must be avoided or mitigated pursuant t12 rules set forth in CEQA.13 46. Sweetwater's Project has proposed to exceed the safe yield of the Formation and14 thus has proposed to "overdraft" the aquifer. The overdraft of a groundwater aquifer is a15 significant environmental impact and a potentially irreversible condition that occurs when the16 amount of water pumped from an aquifer exceeds the "safe yield" of the groundwater aquifer.17 Safe yield, in turn, has been defined as the maximum quantity of water that can be withdrawn18 annually from a groundwater basin without causing an undesirable result, referring to a gradual19 lowering of groundwater levels that eventually results in a depletion of the supply. Overdraft no20 only affects water supplies as described here, but it can also lead to land subsidence, water21 quality degradation and other significant environmental impacts that are described in more detai22 in this petition.

47. The estimated safe yield of the Formation is between 3000 and 5000 acre feet per24 year (AFY). The existing six wells have a production capacity of 4,320 AFY. The total capacity25 of other existing users of the aquifer has not been analyzed by Sweetwater, but is likely26 approximately 2,000 AFY. Thus, the present total pumping capacity is more than 6,000 AFY27 and already exceeds the high-end estimate of the Formation's safe yield.2 8

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1 T' , l' , " h P' d .. 1 h . ble and.ne prooiem 1S cOmpOUDGCay t e roject iescnption, Wille ISnot sta e and2 accurate. The description seeks to minimize impacts. In the draft EIR, the total pumping3 capacity of the project is described as 5 million gallons per day (MGD) (Section 3.7.1) and4 sometimes 6 MGD. When the City sought clarification of the discrepancy in its comment letter,5 Sweetwater set forth a table showing production as 7.2 MGD, 44% higher than the 5MGD6 figure; .This mistake within thedraft-Ellcputthe Cityand other agencies in a difficult position7 because these agencies gauged impacts based on the lower, incorrect figures. Had Sweetwater8 disclosed the correct information initially, the City and other reviewing agencies would have9 been better able to assess impacts. Also, the Notice of Preparation for the Draft EIR described10 the project as having only four pumps, one less than the presently proposed Project.11 53. Also, the finding of "less than significant" is based on faulty reasoning and does12 not address the facts. The conclusion that the impact is less than significant is not supported by13 the actual numbers, but instead is based on numbers well below anticipated production.14 However, even the analysis of the lesser numbers do not support a "less than significant" impact15 Based on studies performed in the mid 1990's, the FEIR states that total extraction of 1.SMGD16 would not result in seawater intrusion, but that extraction of3.6 MGD (4,000 acre-feet/year)17 "would result in depressed groundwater levels that could include some seawater intrusion." The18 referenced studies go on to conclude that "[ijncreasing the pumping rate to 7.2 :tv1GDwas19 predicted to produce large-scale seawater intrusion" that could ultimately extend throughout20 much of the Formation.21 There is no analysis done related to the actual numbers, which are far greater than4.22 the analyzed numbers. The analysis performed does not support a conclusion that the proposed23 total well production of 12 MOD (10,560 acre-feet per year) will have a "less than significant"24 impact on water quality within the Formation. In fact, the analysis supports the opposite25 conclusion. If 7.2 MGD creates a significant impact, then certainly 12 MGD would do the same.26 It should be noted that present projects not analyzed by Sweetwater bring the production number27 to in excess of 14 MGD.28

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1 55. Under Appendix G of the CEQA Guidelines, a substantial degradation of water2 quality is a significant impact. Also, a significant impact is caused by a project that3 "substantially deplete[s] groundwater supplies].]" Based on the analysis within the FEIR, these4 significance thresholds are met and the impacts should be disclosed and properly addressed5 under CEQA. A "large-scale" seawater intrusion into the Formation both degrades the water

-- 6 -qualityand depletes the-potable groundwater supply.> ----- - --- --- ---7 56. Under its own planning document, Sweetwater sets forth monitoring goals "to

10 planning document to set the threshold for significance, i.e., any intrusion of salt water caused b

8 ensure that activities of Sweetwater Authority are not causing seawater intrusion." (Sweetwater9 Authority Interim Groundwater Management Plan.) Sweetwater should have used its own

11 the project is a significant impact. At the very least, there should have been a discussion within12 the FEIR as to why Sweetwater did not use its goals within the planning document. Indeed,13 CEQA requires a discussion of inconsistencies between the FEIR and applicable planning

1514 documents. CEQA Guidelines 15125(d).

57. Instead of using its own guidelines or the Appendix G Guidelines, Sweetwater16 uses an arbitrary significance threshold and provides no reasoned explanation for its use.17 According to Sweetwater, there is no significant impact on water quality unless there is a direct18 impact on wells in proximity to the Project. This threshold ignores CEQA's requirement to19 analyze all impacts caused by the Project, whether direct or indirect. Sweetwater's significance20 threshold is arbitrary because it assumes that saltwater intrusion would only occur in the limited21 area close to the Project. Instead, salt water intrusion could occur at any location within the22 Formation that is in proximity to salt water and where water is being depleted as a result of23 pumping. Here, because extraction from the Project is more than double the estimated safe yield24 it is likely that water depletion will occur throughout the Formation. Indeed, this very25 conclusion is drawn from the above-referenced studies addressing impacts of 7.2 MGD26 production, which is nearly half of the Projects capacity together with other current projects.27 58. Moreover, the mitigation measure is inadequate because it does nothing to preven28 the saltwater intrusion-it only determines the intrusion after the fact. By that time, the damage

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1 is done. The City proposed more comprehensive measures to address and monitor the issue,I_2 1 including a monitoring program that delineates the existing seawater front and the establishment

3 of baseline salinity measurements using a network of monitoring wells along bay front and/or

4 ocean front including a series of monitoring wells located radically outward from the production5 well field. These monitoring programs would broadly protect the resource. Also, the suggested

-------6 programs would actually protect-the resource-prior-teirreversible damage=If seawater intrusion7 is detected in the early stages, existing production wells can be protected and mitigation8 measures such as groundwater injection could potentially remedy the damage. Sweetwater9 ignored these suggestions.

10 The analysis does not support a conclusion that impacts are "less than9.11 significant." Accordingly, Sweetwater was required, but failed, to disclose the impact to the12 public and adopt the appropriate finding under Public Resources Code section 21081.13 Failure To Adequately Address Subsidence And To Provide Adequate Mitigation14 The FEIR also fails to address another likely impact of extracting more than0.15 double the estimated safe yield from the San Diego Formation--subsidence. In the initial study,16 Sweetwater acknowledges subsidence is a potentially significant impact. However, the draft EI17 does not adequately address the potential impacts associated with the geological changes that18 could occur as a result of this pumping. Sweetwater ultimately concludes that the impacts are19 insignificant with mitigation. However, the finding is based on unsupported assumptions.20 Contrary to the findings, these impacts are significant and must be disclosed and addressed unde21 CEQA rules. Also, the mitigation measures do not address all potential impacts, and do not22 adequately address those limited impacts it purportedly seeks to prevent.23 As an initial matter the FEIR does not state a threshold level of significance for1.24 subsidence. The FEIR states that the elastic threshold for the Formation-i.e., the amount of25 subsidence that is potentially reparable-is 3 centimeters. It appears this is the threshold level o26 significance used by Sweetwater. However, any subsidence over the Formation should be27 considered significant. Under Appendix G of the CEQA Guidelines, the significance threshold28 is met if "there would be a net deficit in aquifer volume or a lowering of the local groundwater



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1 table level." Thus, under CEQA Guidelines, the significant threshold is met by the occurrence2 the condition that causes subsidence-i.e., a condition that occurs mior to actual subsidence.3 62. Section 3.5 of the FElR explains the potential for significant subsidence that41 results from overdraft, citing the San Joaquin Valley as an example. (Section 3.5.2.) The n

I

51 1 then states that it is currently unknown (a) how large the San Diego Formation aquifer is and (2

63. Sweetwater cites to no efforts of its own to investigate or stud y the subsidence

PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS17

61 1 if the proposed extraction beyond the safe yield would cause a significant impact associated wi t71 1 subsidence. (Section 3.5.4.) Then, inexplicably, the FEIR states: "Currently, it is assumed that81 1 an increase of extracting 6 [MGD] of brackish water would not significantly impact the aquifer,91 1 nor result in pcnnancnt (inelastic) subsidence." There is no support for this conclusion. In fact,

10 II the conclusion contravenes the logical conclusion that extraction beyond double the estimated1 1 1 1 safe yield will cause subsidence, as it did in the San] oaquin Valley.121311 issue. Instead, Sweetwater references an ongoing study by the United States Geological Survey1411 (USGS) that will identify subsidence at some unknown future date-i.e., after it has occurred.1511 (Section 3.5.4.) This is inadequate because CEQA does not allow a lead agency to hide behind1611 its own failure to gather relevant data.17 64. The proposed mitigation measure is inadequate for several reasons including the]819 1

fact that it docs not mitigate impacts over the relevant geographical area. CEQA requires ananalysis of the geographical areas in which significant effects would occur either directly or

20 indirectly. Moreover, an EIR should provide an explanation supported by evidence for the21 geographic area analyzed. CEQA Guidelines 15130(b )(2). The area impacted by the Project

the land over the Formation. Despite the fact that the Formation encompasses an area far beyond223 the area where the wells are proposed, Sweetwater proposes to monitor only the area in24 immediate proximity to the wells. The FEIR should have analyzed the potential for widespread25 subsidence throughout the entire Formation area. The FEIR contains no explanation for why it26 did not consider the entire relevant area.27 65. Moreover, the time committed to monitoring is inadequate. The FEIR describes28// monitoring period of only five years. However, the probability of subsidence is far greater as th


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1 water resource is further depleted through the years. Unless there is a relatively immediate2 impact, there will be no mitigation in place. Thus, the five year monitoring plan does not even3 adequately monitor the potential impacts in the immediate vicinity of the wells.

66. Furthermore, the monitoring techniques are inadequate. Sweetwater relies on5 measurements from USGS, which uses a technology ca11edInferometry with Synthetic Aperture6 -Radar(INSAR}-It-should-be-noted-that some subsidence-has already been-detected at the7 Project site using this technology, which supports a conclusion that further subsidence will occu8 with increased extraction. INSAR is a relatively limited and experimental technology. A9 licensed land surveyor should establish the baseline elevation measurements and provide the10 official yearly records. To adequately monitor subsidence, the survey area should be expanded,11 monitored more frequently, and monitored indefinitely. The City made these suggestions, and12 Sweetwater ignored them.13 Furthermore, because the analysis of subsidence is deferred to further studies by7.14 the USGS, the potential impacts are not analyzed prior to approval ofthe project. This is counte15 to a primary CEQA goal-informed decision-making. Subsidence is an irrecoverable effect on16 the environment that should be prevented. Subsidence is a serious and likely ramification of17 overdraft. Sweetwater acknowledges the likelihood of subsidence, but seeks to avoid a real18 discussion of the issue by finding a less than significant impact. To the contrary, this is a19 significant impact that must be disclosed and must be addressed through CEQA.20 Failure To Investigate And Disclose Cumulative Impacts21 An EIR must discuss cumulative impacts of a project when the project's8.22 incremental effects are significant when viewed in connection with the effects of past projects,23 current projects, and probable future projects. The EIR must state a basis for finding no24 cumulative impacts.25 Beyond a statement that "[e]xisting production from the Formation is estimated a9.26 4,590 AFY[,]" (p. 3.7-4) there is no discussion of cumulative impacts on the safe yield of the27 Formation. Therefore, there is no discussion of cumulative impacts on the issues of saltwater28 intrusion and subsidence caused by exceeding the safe yield. There is no discussion as to what



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I I1 1 i the finding of "less than significant" appears to be based on nothing more that the fact that

21

PETITION FOR WRIT OF ADM INISTRATIVE AND TRADIT IONAL MANDAMUS

Z II Sweetwater is in the process of obtaining a modification to a discharge permit with the Regional311 Water Quality control Board that will have threshold and monitoring requirements. However,

411 this does not relieve Sweetwater of meetings the CEQA requirements itself. Sweetwater failed511 to adequately address the brine discharge issue because there is no reasoned explanation for why611-an additional L 7MGD of brine discharge into open waters does not substantially degrade the711 water quality.811 Failure To Disclose Impacts Related To Aesthetics

And Failure To Adequately Mitigate910 76. The FEIR fails to adequately disclose and analyze significant visual impacts of11" wells #7,8, and 11. The FEIR discloses the impacts as "less than significant" based on1211 inadequate mitigation measures. The mitigation measures are improper because they arc1311 unenforceable, not specific, speculative, and deferred.1411 Failure To Disclose Impacts Related To Biologically

Sensitive Resources and Failure to Adequately Mitigate15]6 77. The FEIR fails to adequately disclose and analyze impacts to biologically17 sensitive resources and consistency with relevant programs and plans. The analysis is18 improperly deferred to an indefinite future date. Also, the FEJR docs not adequately analyze19 potentially significant impact to marsh and riparian habitat quality caused by an overdraft of the20 Formation, which in turn may impact overlying aquifers that directly affect these resources.

Also, the mitigation measures to address these potential impacts are inadequate. The U.S. Fish22 and Wildlife Service proposed several mitigation measures that could address these potential23 impacts. However, Sweetwater did not commit to implement the proposed measures.24 Failure to Disclose Impacts on Riparian Vegetation and Destruction of

Habitat and Failure to Adequately Mitigate2526 7 8 . The FEIR fails to adequately describe or analyze amount Sweetwater River27 channel depletions caused by the Project pumping and the impacts of the depletions on the2 8

20i


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3 SECOND CAUSE OF ACTION4 AGAINST ALL REPONDEN1~S5 DOES 1-255 (Declaratory Relief [CCP 1060])6 ----79. -- -The allegations set-forth above in paragraphs 1-73 are incorporated herein as7 though fully set forth in this paragraph.8 80. The City's Pueblo water rights are rights in property as to which declaratory relie9 may be obtained.

10 81. An actual controversy has arisen between the City and Respondents Sweetwater11 and Does 1 through 25 as to the nature and extent of the City's Pueblo water rights in the San12 Diego Formation. The City believes the Project will permanently degrade the waters of the San13 Diego Formation as to which the City has prior and preferential Pueblo water rights. The City14 contends that it has Pueblo water rights to all waters underlying the City and certain waters15 hydrologically connected thereto. The San Diego Formation in part underlies the City and as16 such the City owns property rights in the Formation and all water tributary thereto including the17 waters proposed to be pumped by Respondent pursuant to its Project. Respondents, including18 Sweetwater, deny that the City's rights extend to the waters to be pumped by the Project. In19 addition, there is an actual, present controversy as to the impact of the Project on the San Diego20 Formation. The City contends that the Project will permanently degrade the water of the San21 Diego Formation as to which the City has Pueblo water rights. Sweetwater denies that the22 Project will have any effect on the waters as to which the City claims Pueblo water rights. By23 adopting the CEQA findings and reapproving the Project at the November 10, 2010 hearing,24 Respondent Sweetwater ignored and refused to recognize San Diego's prior and preferential25 right to the waters of the San Diego Formation and waters tributary thereto and proposes to26 interfere with and permanently deny the use of those waters by the City and its citizens.27 82. It is necessary that the City obtain a declaration binding on Respondent28 Sweetwater as to the nature and extent ofthe City's Pueblo water rights in the San Diego



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26

PETITION FOR WRIT OF ADMINISTRATIVE AND TRADITIONAL MANDAMUS

1, Formation so as to forestall public investment in infrastructure that might be used by Responden2 1 Sweetwater in derogation of such rights.3 THIRD CAUSE OF ACTION

4 AGAINST RESPONDENT SWEET'VVATER5 (Violation of California Groundwater Law, Injunction and Declaratory Relief)6 83 The allegations set forth above in paragraphs 1-77 are incorporated herein as7 though fully set forth in this paragraph.8 84. By virtue of its Pueblo water rights, the City has water rights in the San Diego9 Formation. As an owner ofland overlying the San Diego Formation and a City providing10 municipal water service to it citizens who own land overlying the San Diego Formation, the Ci11 has water rights in that formation.12 85. By its Project, Respondent Sweetwater is proposing pumping from the San Dieg13 Formation in excess of safe yield of the Formation in violation of California groundwater law.14 86. Sweetwater's current pumping from the San Diego Formation may exceed safe15 yield of the Formation in violation of California groundwater law. Pursuant to its Project,16 Respondent Sweetwater will more than double the current pumping from the San Diego17 Formation and will clearly exceed the safe yield ofthe Formation in further violation of18 California groundwater law.19 87. The City and its citizens are and will be irreparably injured by Sweetwater's20 pumping from the San Diego Formation as alleged above because they will be permanently be21 deprived of the use and benefit of the waters of the San Diego Formation by virtue of such22 pumpmg.23 PRAYER FOR RELIEF24 WHEREFORE, Petitioners request the following relief:25 FIRST CAUSE OF ACTION

1. That the COUliissue a Writ of Mandate declaring the Project approval and all27 actions related thereto are null and void and of no force and effect and commanding Respondent28

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1 1 to vacate and set aside all such actions including the certification of the FEIR, adoption ofCEQA2 findings and MRRP, and approval of the Project.3 2. For an Order directing Respondent to prepare an ErR that analyzes the potential

4 environmental impacts of the Richard Reynolds Brackish Groundwater Desalination Facility-5 Phase II Expansion and sets forth adequate mitigation measures and alternatives prior to any

-6- -subsequentreconsideration-or approval of theProject;-7 3. For a temporary restraining order as well as preliminary and permanent injunction8 restraining and enjoining Sweetwater and its agents, officers, employees, and all those working9 in concert with it, from approving or relying on any Project approval or approving or accepting10 applications for the same until such time as Respondent complies with the Writ of Mandate.11 4. That this Court retain jurisdiction until the Writ of Mandate has been complied12 with and such compliance has been approved by the Court;13 5. That Petitioners be awarded reasonable attorneys' fees and expenses pursuant to14 Code of Civil Procedure Section 1021.5 and Government Code Section 800;1516

6 .7.

That Petitioners be awarded their costs;For other and further relief as the Court deems just and proper.

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SECOND and THIRD CAUSES OF ACTION8. For a declaration that the City was at the commencement of this action and now

19 the owner in fee simple of the prior and paramount right to the use of all the water of the San20 Diego Formation underlying the former Pueblo of San Diego, including all waters tributary21 thereto whether beneath the Pueblo or not, for the use of the City and of its inhabitants for all22 purposes and that Respondent Sweetwater and all other respondents have not and no one or more23 of them have any estate, right, title or interest in or to said waters, or any part thereof, or in or to24 the use of the same, or any right to take or use said waters, or any part thereof, save in25 subordination and subject to said prior and paramount right of the City;26 9. For a temporary restraining order, preliminary and permanent injunction27 restraining and enjoining Sweetwater from pumping water from the San Diego Formation that is28 not surplus water to that Formation or to the City's Pueblo water rights.



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10. For costs and such other and further relief as the Court deems just and proper.

3 Dated: December 9,2010 JAN 1.GOLDSMITH, City Attorney

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By!_tlorney

Attorneys for Petiti Iner,City of San Diego

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