BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

FILED
10-20-17
Application of California-American Water 08:00 AM
Company (U210W) for Approval of the Application 12-04-019
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and Future
Costs in Rates.

MOTION OF CITY OF MARINA TO STRIKE PORTIONS OF

CALIFORNIA-AMERICAN WATER COMPANY REBUTTAL TESTIMONY

LAYNE P. LONG SARA STECK MYERS

City Manager Attorney at Law
City of Marina 122 - 28th Avenue
211 Hillcrest Avenue San Francisco, CA 94121
Marina, CA 93933 Telephone: 415-387-1904
Telephone: 831-884-1278 Facsimile: 415-387-4708
Email: llong@cityofmarina.org Email: ssmyers@att.net

For: CITY OF MARINA

Dated: October 20, 2017

 BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the Application 12-04-019
Monterey Peninsula Water Supply Project and (Filed April 23, 2012)
Authorization to Recover All Present and Future
Costs in Rates.

MOTION OF CITY OF MARINA TO STRIKE PORTIONS OF

CALIFORNIA-AMERICAN WATER COMPANY REBUTTAL TESTIMONY

The City of Marina (City or Marina) respectfully moves to strike portions of the

rebuttal testimony served by California-American Water Company (Cal-Am) in this

Application on October 13, 2017. This Motion is timely filed and served pursuant to Rule 11.1

of the Commissions Rules of Practice and Procedure and the Instructions to Parties in

Preparation for October 25-November 3, 2017 Evidentiary Hearings attached to the

Administrative Law Judges (ALJs) Ruling issued in this Application on October 16, 2017.

I.
PORTIONS OF THE REBUTTAL TESTIMONY OF CAL-AM
WITNESSES CROOKS AND LEFFLER ARE WITHOUT FOUNDATION,
DO NOT COMPLY WITH COMMISSION RULES, AND WOULD
SEVERELY PREJUDICE THE RIGHTS OF THE CITY OF MARINA IF ADMITTED.

The rebuttal testimony served by Cal-Am in this Application on October 13, 2017

included the Rebuttal Testimony of Ian C. Crooks and the Rebuttal Testimony of Peter M.

Leffler, P.G., C.HG. At issue in this Motion are the following portions of that testimony:

1. Mr. Crooks Rebuttal Testimony includes an Attachment 1 entitled Technical

Memorandum, dated October 12, 2017, which is labeled as prepared by Jeroen Olthof, PE
with the letterhead WSC Water Systems Consulting Inc. References to this Attachment
1 are also made in the body of Mr. Crooks Rebuttal Testimony.

2. Mr. Lefflers Rebuttal Testimony, both Part 1 of 2 and Part 2 of 2, includes and makes
reference to the following:

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 a. An Attachment 1 entitled Draft Technical Memorandum, dated August 30, 2017, from
Gordon Thrupp, PhD, PG, CHG, Principal Hydrogeologist on the letterhead
Geosyntec consultants;

b. Reproduction of map images in Part 2 of 2 of Mr. Lefflers Rebuttal Testimony labeled as

Attachment 1, pages 1 through 3.

c. A document identified as the Hydrogeologic Working Groups (HWG) Hydrogeologic

Study and Technical Report filed in this matter on October 12, 2017 (HWG Final
Report), 1 on which Mr. Leffler relies in Part 1 of 2 of his Rebuttal Testimony, but for
which no attachment is included; and

A. There Are Serious Authentication, Foundational, and Proceeding Fairness Issues That
Bar Use Of The Identified Documents.

These above identified attachments are used by Cal-Am witnesses Crooks and Leffler

to attempt to rebut intervenor testimony served on September 29, 2017, including Marinas

Direct Testimony. However, none of the attachments were authored or prepared by either

witness, the individuals that prepared the attachments have not been offered as witnesses by Cal-

Am, and, pursuant to the schedule adopted for the October 25 evidentiary hearings, 2 Marina and

other intervenors have no opportunity to serve testimony in response or rebuttal to these

attachments.

As to the document referenced and relied upon in Mr. Lefflers Rebuttal Testimony as the

HWG Final Report, that report has not been produced or attached to Mr. Lefflers Rebuttal

Testimony. Even on examination of the claimed filing in which that report is contained, Mr.

Leffler is listed as only one of four contributors to the HWG Final Report, which is 449 pages

of text and a voluminous Appendix of 4,296 pages, and it is unknown if he authored or prepared

that portion of the report referenced or relied upon in his Rebuttal Testimony. Of more concern,

1
Leffler Rebuttal Testimony (October 13, 2017), at p. 6, ll.15-17.
2
ALJs Ruling of August 28, 2017, at p. 5.

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this HWG Final Report was filed by Cal-Am in A.12-04-019 on October 12, 2017, the day

before Mr. Lefflers Rebuttal Testimony was served, under the claim that it is a compliance

filing, which, for the reasons identified below, it clearly is not.

We will discuss each document separately below.

1. Crooks Rebuttal Testimony: Attachment 1

The Technical Memorandum attached to the Crooks testimony has not been

authenticated by its author and consists merely of hearsay statements by an absent third party

regarding a matter involved in Commission proceedings. Mr. Crooks utilizes it as a critical piece

of evidence to rebut the testimony of many intervenor witnesses and experts on system demand

and also dramatically states that it is the only document regarding updated demand projections

that has been certified by a Professional Engineer. However, it is primarily notable for being

the only set of recent demand projections that has not been directly offered by a witness who will

be presented and qualified as an expert and who is subject to cross-examination. Rather, Cal-Am

is apparently trying improperly to utilize Mr. Crooks as a substitute expert to offer someone

elses testimony.

This exhibit fails all evidentiary tests, and, even under the relaxed rules of the

Commission, admission of such a document should not be allowed. It has not been authenticated

by the author, so we do not know if it is what it purports to be. The author is only identified by

name, so there is no indication as to whether he or she qualifies as an expert in this area. The

document is also hearsay because it is an out-of-court statement offered for the truth of the

matter asserted. Moreover, since the author of the document is not a witness, the parties have no

opportunity to cross-examine the witness or elicit any testimony that might explain, undermine

or qualify the documents contents. Finally, Marina and the other intervenors have had no

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opportunity to submit rebuttal testimony regarding the document or its contents. In short, since it

is not competent evidence, the attachment, and all testimony relating to it, should be struck.

2. Leffler Rebuttal Testimony Part 1 of 2: Attachment 1; and Part 2 of 2: Attachment

1, pages 1-3 (Map Images).

The Revised Draft Technical Memorandumattached to the Leffler rebuttal testimony,

including the apparently related map images in Part 2 of 2 of his testimonypresents the same

tiers of problematic evidentiary issues. Mr. Leffler offers this document to rebut the statements

of Marinas expert witness Dr. Abrams (and testimony by other experts) regarding the

deficiencies in the groundwater modeling used by Cal-Am to assess adverse impacts to the

groundwater basin.

At the outset, it is not clear exactly what this document is. By its nature, it apparently is

not a final document, but rather a second intermediate draft of a document with interlineated

notations by another person in blue ink. There is no indication of what files this draft came from,

how Mr. Leffler came into possession of it, or what is contained in the earlier and later drafts of

this document. In fact, it appears to be a draft version of an internal document being prepared

under several sets of subcontracts as part of the Commissions California Environmental Quality

Act review process. In addition, the author or authors of the draft document have not been

designated as a witness in the proceeding, and the statements in the document are hearsay as they

are being utilized to prove the truth of the matter therein. Once again, Marina and the other

intervenors will have no opportunity to cross-examine the document author or to submit any

rebuttal testimony on this document.

3. Leffler Rebuttal Testimony References to and Reliance Upon HWG Final

Report

As to the filing referred to in Mr. Lefflers Rebuttal Testimony as the HWG Final

Report, reliance or reference to that Report by Mr. Leffler suffers from the same errors and

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shortcomings as the Attachments discussed above. Equally problematic, this document has not

been produced or attached to Mr. Lefflers testimony. Even on examination of the claimed

filing in which it was included, Mr. Leffler, again, is listed as only one of four contributors to

that voluminous report, and his testimony does not confirm whether he authored or prepared

those portions of the report on which he relies in his Rebuttal Testimony.

Worse, this HWG Final Report was submitted by Cal-Am under the title and claim that

it is a compliance filing. This is a complete misnomer and fabrication. A compliance filing

under Commission rules means a document that is filed by a water utility in compliance with

Commission requirements or decisions. 3 This document, however, was not required to be filed

by Cal-Am by or pursuant to any Commission decision or rule at any time and certainly not just

before rebuttal testimony was served by Cal-Am.

Even Cal-Ams filing makes that point very clear. Thus, the only basis for filing this

document cited in that pleading is a term in a settlement agreement that has never been

reviewed, approved, or adopted by this Commission. 4 That settlement agreement is clearly not

a Commission directive or rule and does not serve as any authority for Cal-Am to have filed

the HWG Final Report in this docket. The result is that if Mr. Lefflers Rebuttal Testimony

were admitted into the record with those references to the HWG Final Report retained,

especially where he claims certain facts are documented in that report, 5 the Commission would

be wrongly blessing an unlawful backdoor for inclusion of this document into the record of

3
Commissions Rules of Practice and Procedure, Rule 3.2(c) and (e); 16.1(b).
4
The only support for this filing is reference to Section 5.4 of the Settlement Agreement attached to a
motion for approval in July 2013, which by CalAms own admission its attempted compliance filing
dated October 12, 2017, remains pending. (CalAm Compliance Filing Regarding Hydrogeologic Study
and Technical Report, at p. 1).
5
Leffler Rebuttal Testimony (October 13, 2017), at p. 6.

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this proceeding without basis or foundation and without the opportunity for parties to analyze,

cross-examine, or respond in opposition.

B. The Commissions Rules and Other Applicable Legal Authorities Bar Cal-Ams Use of
These Documents in Its Testimony and the Upcoming Evidentiary Hearings.

Article 13 of the Commissions Rules of Practice and Procedure governs Hearings and

Evidence in Commission proceedings. Rule 13.6(a) provides: Although technical rules of

evidence ordinarily need not be applied in hearings before the Commission, substantial rights of

the parties shall be preserved. Further, the Commission rules seek to ensure that documents

that are prepared, directly or indirectly, by the party offering them into evidence shall be certified

under penalty of perjury by the person preparing or in charge of preparing them as being true

and correct, . . . . 6

In the case of the AttachmentsAttachment 1 to Mr. Crooks rebuttal testimony, which

he references as WSC and Attachment 1 to Mr. Lefflers rebuttal testimony Part 1 of 2 and

Attachment 1 of Part 2 of 2 (map images)none were prepared by either Mr. Crooks or Mr.

Leffler nor has either witness testified that they were in charge of preparing them. The Leffler

Attachment is also an intermediate draft document with unexplained interlineations, none of

which qualify it as authentic for this proceeding. The authors of these documents have also not

been offered as witnesses by Cal-Am, which, in turn, deprives other parties of the opportunity to

cross-examine or test the validity of the assumptions and findings made in those Attachments.

Finally, no intervenor, including Marina, has been given the opportunity to offer rebuttal to any

Attachment.

This same lack of foundation or opportunity to be heard also exists, as stated above, with

Mr. Lefflers references to, and reliance on, the HWG Final Report in his rebuttal testimony.

6
Commissions Rules of Practice and Procedure, Rule 13.7(e); emphasis added.

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As of this date, that filing has not been docketed in A.12-04-019, and the basis for doing so as

a compliance filing clearly does not exist where its submission is based solely on a term in a

settlement agreement that has never been reviewed or adopted by the Commission. Using this

fictional basis for a compliance filing, Mr. Lefflers rebuttal testimony then seeks to bootstrap

the HWG Final Report in that filing into the record of this Application. The Commission

should not permit this bogus effort to elevate the HWG Final Report as record evidence in

this Application in this manner.

While technical rules of evidence ordinarily need not be applied in hearings, doing so

in this case is clearly required to preserve the substantial rights of the parties as required by

Rule 13.6. The California Evidence Code defines hearsay as evidence of a statement that

was made other than by a witness while testifying at the hearing and that is offered to prove the

truth of the matter stated and provides that hearsay evidence is inadmissible. 7 Because the

statements are not made under oath, there is no opportunity to cross-examine the person who

made them and no opportunity for the trier of fact to observe the persons demeanor, hearsay

statements are inadmissible. Korsak v. Atlas Hotels, Inc., 2 Cal. App. 4th 1516, 1523 (1992).

Here, Attachment 1 to Mr. Crooks rebuttal testimony and Attachment 1 to Mr. Lefflers

rebuttal testimony fall squarely within the definition of hearsay and inclusion of this testimony,

which was not prepared by either witness, would severely prejudice the rights of Marina to

contest those statements or be heard in response. Marina will be unable to understand the

7
Cal. Evid. Code, 1200(a)-(b)); In re Cindy, 17 Cal. 4th 15, 27 (1997)(The general rule that hearsay
evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.);
Whitfield v. Roth,10 Cal. 3d 874, 894 (1974)(An expert witness may not, on direct examination, reveal
the content of reports prepared or opinions expressed by nontestifying experts. The reason for this is
obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is
denied the party as to whom the testimony is adverse (internal quotations omitted).); In re Pacific Gas
and Electric Co.,23 Cal.P.U.C.2d 352, 354 (1986)(Documentary evidence that is introduced for the
purpose of proving the matter stated in the writing is hearsay per se because the document is not a
statement by a person testifying at the hearing.).

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context, test the probative value, or point out any deficiencies in the documents because the

witness who prepared them is unavailable for cross-examination and Marina has not been given

any opportunity to provide rebuttal testimony.

Finally, references and reliance on the HWG Final Report by Mr. Leffler suffer from

these same shortcomings. Moreover, the Commissions recognition of this massive report in

either the formal file or this evidentiary record, especially when obtained by obfuscation and an

end run through rebuttal testimony, is completely unsupported by any rule, technical or

otherwise, and would deny the other parties any notice and opportunity to be heard on this

document.

II.
REQUESTED RELIEF

On the grounds stated above, the City of Marina moves for the Commission to strike the

following portions of the rebuttal testimony served by Cal-Am in this Application on October 13,

2017:

REBUTTAL TESTIMONY OF IAN CROOKS:

1. Strike in Full Attachment 1 (Technical Memorandum, dated October 12, 2017, which is
labeled as prepared by Jeroen Olthof, PE with the letterhead WSC Water Systems
Consulting Inc.) to Rebuttal Testimony of Ian C. Crooks.

2. Strike in Full Questions 7 through 11 and Answers 7 through 11 of the Rebuttal Testimony
of Ian C. Crooks, at page 5, line 20, through page 7, line 11, as follows:

Q7. Based on intervener testimony submitted, California American Water employed a

consultant to update system demand projections. Can you discuss this update?
A7. Yes. WSC completed Cal-Ams 2015 Urban Water Management Plan, which we
used in my direct testimony as a basis for determining future customer demands.
Since completing the UWMP, WSC had begun work on a Comprehensive Planning
Study (CPS) for our Monterey district, which includes an analysis of demand and
supply. In light of these regulatory proceedings, we asked WSC to submit a

8
 technical memorandum summarizing their new demand projections. This technical
memorandum is included as Attachment 1. 8

Q8. What are the results between projections developed for a UWMP and those
developed for a CPS?

A8. The methodology behind developing demand projections is very similar. Both
methods use tools such as local population projections, census data, GIS, and
historical use and customer data, and incorporate data unique to the conditions of
each water system. However, the UWMP and CPS serve a different purpose. The
goal of a UWMP is to establish a water use target and determine how this target
will be met. Water use is expressed as per capita use and is spread across all
customer types. The goal of a CPS is to take a comprehensive look at the water
system in order to develop a capital plan. Demand projections from a CPS
determine the need for, timing of, and sizing of capital projects. Demand is
presented as use per customer and is separated by customer class. The demand
section of a CPS is very important, some may argue it is the most important section,
especially related to supply. If demands are projected too high, projects may be
constructed prematurely, but if they are projected too low, the company is at risk for
a supply shortage. Both scenarios can have serious consequences.

Q9. What was the outcome of the projections for the CPS?

A9. The CPS estimates the combined demand for the Monterey Main, Ryan Ranch,
Bishop, and Hidden Hills systems to be 12,086 AF in 2025 and 12,801 AF in 2035.

Q10. Is this consistent with the projections you presented in your direct testimony?
A10. My direct testimony estimated a 2025 demand of 12,350 AF, so the updated
projections are in line with my original testimony. The new projection took into
account factors that have changed in the past two years. For example, although
demand has continued to decrease in our Monterey district, most water systems in
California saw an increase in water use between August 2015 and August 2017.
WSC factored in the current rate structure, which may be keeping the demands

8
This emphasis is original to the testimony.

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 artificially low, but forecasted an increase in water use when the rate structure is
more in line with the rest of the state. The new projections account for an increase
in employment as well as an increase in household size as forecasted by AMBAG.
Additionally, WSC considered the effects of not just drought but also the recession
on commercial use.

Q11. Is WSCs memo is certified by a professional engineer?

A11. Yes. I also believe WSCs memo is the only document regarding updated demand
projections that has been certified by a Professional Engineer.

REBUTTAL TESTIMONY OF PETER M. LEFFLER, P.G., C.HG:

1. Strike in Full Attachment 1 (Draft Technical Memorandum, dated August 30, 2017, from
Gordon Thrupp, PhD, PG, CHG, Principal Hydrogeologist on the letterhead
Geosyntec consultants) to Rebuttal Testimony of Peter M. Leffler, Part 1 of 2.

2. Strike in Full Attachment 1, map images labeled as pages 1 through 3 to Mr. Lefflers
Rebuttal Testimony, Part 2 of 2.

3. With respect to the body of the Rebuttal Testimony of Peter M. Leffler, the following should
be stricken:

Strike in Full Question 9 and Answer 9, at page 5, line 23, through page 6, line 4:

Q9. Do you agree with Dr. Abrams assertion that the groundwater models used to assess
the potential impacts of the MPWSP on the 180/400 Foot Aquifer and Monterey
Subbasins are not sufficiently detailed or documented to evaluate potential impacts
from the proposed operation of the MPWSP wells? Please explain your answer.
A9. My understanding is that the specifics of the sufficiency of the modeling is
addressed in the EIR process, and that additional peer review of DEIR groundwater
modeling conducted by GeoSyntec addresses modeling concerns raised by Dr.
Abrams. (See Review of MCWD Comments on RDEIR, Monterey Peninsula Water
Supply Project, Subsurface Intakes and Groundwater Modeling; Revised Draft,
August 30, 2017, appended hereto as Attachment 1.)

Strike the following sentences at page 6, lines 14-27:

The data, including the lithologic logs and geologic cross-sections documented in
the Hydrogeologic Working Groups (HWG) Hydrogeologic Study and Technical

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 Report filed in this matter on October 12, 2017 (HWG Final Report), monitoring
well water levels, and water level responses to test slant well pumping documented
in weekly and monthly reports posted on the project website and in the HWG
documents, makes clear that the 180/400 Foot Aquitard is in fact present and the
400-Foot Aquifer is confined in the project area. I also note that Dr. Abrams
discussion, in his memorandum appended to his testimony, of possible holes in the
180/400-Foot Aquitard and potential for corresponding gaps in the Salinas Valley
Aquitard (SVA) (for which he provides no evidence), are based on data outside of
the CEMEX project area. More detailed lithologic logging, geophysical logging,
and cross-section preparation conducted as part of HWG efforts show continuity of
the 180/400-Foot aquitard and confinement of the 400-Foot Aquifer in the project
area. (See HWG Final Report.)

Strike the following sentences at page 7, lines 11-17:

Review of the currently available geophysical data (which is limited because field
data collection efforts did not begin until May 2017, well after the DEIR was
prepared and comments submitted) indicates that the surface geophysical data
developed by Dr. Knight is consistent with the existing hydrogeologic conceptual
model developed by the HWG (which is generally incorporated in the DEIR).
Several of the cited issues with Dr. Knights work were addressed in the HWG
Final Report, which provides a more detailed interpretation of available surface
geophysics data.

Strike the following sentence at page 12, lines 6-11:

However, to the extent any groundwater levels exist that provide any sort of barrier
to seawater intrusion, they occur in the perched/mounded aquifers greater than 1.5
miles inland as evidenced by geologic mapping and groundwater contour maps
provided in the HWG Final Report and will not be impacted by project pumping
(due to distance and hydraulic discontinuity from the aquifers subject to project
pumping (as further described in my answer to Question 15 above).

Strike the following sentence at page 13, lines 17-20:

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 Furthermore, the conversion of AEM resistivity values to groundwater TDS in
information and figures provided by Dr. Knight and Mr. Hopkins appears to be
incorrect; the HWG provides a proper correlation between AEM data and
groundwater TDS values (HWG Final Report).

Strike the following sentence at page 17, line 27, to page 18, line 4:

The Hydrogeologic Working Group Final Report documents that discharges by

CEMEX to percolation ponds are at salinity concentrations much less than
seawater and less than ambient salinity concentrations in the discharge area adjacent
to the ocean (due to the contribution of groundwater from the CEMEX well to these
discharges as explained in the HWG Final Report)

Strike the following sentence at page 19, lines 7-12:

Ms. Nelsons broad contention that the MPWSP has potential to increase salt water
intrusion is refuted by extensive studies completed for the MPWSP that
demonstrate the area of increased salt water intrusion is limited to the capture zone
of MPWSP wells (generally west of Highway 1, and no more than one mile inland
from the coast for the case of highest pumping rate and lowest gradient) and this
area will have unusable highly brackish water replaced by slightly more saline
water. (DEIR, HWG Final Report).

Strike the following sentence at page 20, lines 9-11:

As noted in the HWG Final Report, the water quality impact of the MPWSP will
only occur within the capture zone (no more than about 0.5 to 1 mile inland from
the coast).

Strike the following sentence at page 22, lines 3-5:

The DEIR/EIS groundwater characterization is further supplemented by HWG work

products, which are summarized and provided as appendices in the HWG Final
Report.

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 Strike the following sentence at page 22, lines 13-16:

The HWG TM-2 (included as an appendix to the HWG Final Report) includes
groundwater contour maps of the various aquifers, which have distinct and different
groundwater flow patterns compared to the Perched/Mounded aquifers.

Strike the following sentence at page 22, lines 18 through 21:

I understand that a draft technical memorandum prepared by GeoSyntec and dated

August 30, 2017 [Attachment 1 hereto] addresses these DEIR/EIS comments, and
the EIR team will also prepare responses to these DEIR comments.)

Strike the following sentence at page 25, lines 1-4:

Seawater intrusion inland of the capture zone will be retarded by the operation of
the MPWSP, as would be expected from basic hydrogeologic principles and is
demonstrated in project DEIR groundwater modeling and the HWG Final Report.

Strike the following sentence at page 27, lines 9-10:

The HWG Final Report provides the correct conversion and interpretation of this
data.
Respectfully submitted,

October 20, 2017 /s/ SARA STECK MYERS

SARA STECK MYERS
122 - 28th Avenue
San Francisco, CA 94121
Telephone: 415-387-1904
Facsimile: 415-387-4708
Email: ssmyers@att.net
And
LAYNE P. LONG
City Manager
City of Marina
211 Hillcrest Avenue
Marina, CA 93933
Telephone: 831-884-1278
Email: llong@cityofmarina.org
FOR: CITY OF MARINA

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