Lawsuit filed in California water plant

Posted by Christine, February 22, 2015

Below is the complete text of the lawsuit filed against the Emergency Water Project constructed in Cambria, California:

DEBORAH A. SIVAS (CA Bar No. 135446)
ALICIA E. THESING (CA Bar No. 211751)
MATTHEW J. SANDERS (CA Bar No. 222757)
ABIGAIL P. BARNES (CA Student Cert. No. 36641)
ELIZABETH A. BERARDI (CA Student Cert. No. 37078)
CAROLINA DE ARMAS (CA Student Cert. No. 37080)
Environmental Law Clinic

Mills Legal Clinic at Stanford Law SchoolCrown Quadrangle559 Nathan Abbott WayStanford, California 94305-8610
Telephone: (650) 723-0325
Facsimile: (650) 723-4426dsivas@stanford.edu
ethesing@stanford.edumsanders@law.stanford.edu

CYNTHIA HAWLEY (CA Bar No. 229135)
Post Office Box 29
Cambria, California 93428-0029
Telephone: (805) 927-5102Facsimile: (805) 927-5220

Attorneys for PetitionerLANDWATCH SAN LUIS OBISPO COUNTY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO

LANDWATCH SAN LUIS OBISPO
COUNTY,

Petitioner,

v.
CAMBRIA COMMUNITY SERVICES
DISTRICT; COUNTY OF SAN LUIS
OBISPO; STATE WATER RESOURCES
CONTROL BOARD DIVISION OF

DRINKING WATER;; and GOVERNOR’S

OFFICE OF PLANNING AND RESEARCH,

Respondents.

Case No. 14CVP-0258

PETITIONER’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION

Date: March 10, 2014
Time: 9:00 a.m.
Dept: 2, Hon. Ginger Garrett

Action Filed: October 14, 2014
Trial Date: June 8, 2015

Case No. 14CVP-0258

PETITIONER’S MEMORANDUM
OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

INTRODUCTION

Thiscase challenges theCambria Community Services District’s construction and
operation of a major public works project without any environmental review or a valid
development permit and over the objections of several state and federal agencies. After trying
unsuccessfully for years to permit an environmentally problematic permanent desalination facility,
theDistrict usedthespecterof“projected
water supply shortages bytheendofsummer, 2014”toexempt its permanent water supply project from the state’s environmental laws
under the guise of
a sudden, unexpected “emergency.”
Declaration of Abigail Barnes (“Barnes Decl.”), Exh. A, at 3.
While construction of the project over the summer and fall adversely affected the environment in
and around the footprint of the new facility, its ongoing operation will cause much more
significant adverse impacts on ecological resources and nearby land uses. Extracting 400 gallons
of water per minute fromtheSanSimeon Creek aquifer system, the new facility’s operation islikely, in the view of several expert agencies, to dewater critical endangered and threatened
species habitat, expose nearby campers and residents to aerosolized toxic brine waste, and violate
a host of state coastal protection policies.

The 180-day
“emergency” permit, issued by the San Luis Obispo County Planning
Department last May and now expired, required the District to submit a completed application for
a permanent coastal development permit by June 14, 2014. This permanent permit process is
critical because it must be accompanied by full environmental review, by appropriate
environmental mitigation, by public disclosure and hearings, and by an opportunity for appeal and
California Coastal Commission review. Yet the District has now begun operating the project
without having completed its application for a permanent coastal development permit, in violation
of the California Coastal Act, the California Environmental Quality Act, and the San Luis Obispo
County Code. Accordingly, pursuant to California Code of Civil Procedure section 526,
Petitioners hereby seek a preliminary injunction against operation of the water supply Project,
except during times of statutorily established emergency, until the District complies with its legal
responsibilities.

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IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

LEGAL BACKGROUND

I. The California Coastal Act
The District’s new water
supply project, whichlies just east ofHighway1,iswithin the
coastal zone and thus subject to the requirements of the California Coastal Act, which was
“enacted bytheLegislature as acomprehensive scheme togovern land use
planning for the entire
coastal zoneofCalifornia.”
Yost v. Thomas, 36 Cal. 3d 561, 565(1984). “The
Legislature found
that‘the California coastal zone is a distinct and valuable natural resource of vital and enduring
interest to allthepeople’;;that‘the permanent protection ofthestate’s natural and scenic resources
is a paramount concern’;; that ‘itisnecessarytoprotect the ecological balanceofthe
coastal zone’
and that‘existing developed uses, and future developments that are carefully
planned and
developed consistent with the policies of this division, are essential to the economic and social
well-being of thepeople of this state . . .’”
Id. (quoting Cal. Pub. Res. Code § 30001(a), (d)). The
primary purpose of the Coastal Act is to“[p]rotect, maintain, and,where feasible, enhance and
restore the overall quality of the coastalzone environment,” including
its “wildlife, marine
fisheries, and other ocean resources,”
by preserving “the ecological balance”
and preventing its
“deterioration and destruction.”al.Pub. Res. Code§§30001, 30001.5.

Toachieve the statute’s liberally-construed purposes and objectives, the Coastal Act
requires that“any person wishingtoperform orundertake
any development in thecoastal zone
must obtain a coastal development permit ‘in addition to obtaining any other permit required by
law from any local government or from any state, regional, or local agency.’”
Pacific Palisades
Bowl Mobile Estates, LLC v. City of Los Angeles, 55 Cal. 4th 783, 794 (2012) (quoting Cal. Pub.
Res. Code § 30600(a)).1 The statute “expressly recognizes theneed
to ‘rely
heavily’onlocal
government”
by requiring “local governments to develop local coastal programs, comprised of a
landuseplanand a set of implementing ordinances designed topromote the act’s objectives ofprotecting the coastline and its resources and of maximizing public access.”
Id. (citing Cal. Pub.
Res. Code §§ 30004(a), 30001.5, 30500-30526). Once the California Coastal Commission

1 A “person” under the Coastal Act
includes government agencies. Cal. Pub. Res. Code §30111.

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IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

certifies alocal government’s program, called a
Local Coastal Program (which then becomes an
element of the local land use plan), authority over issuance of coastal development permits is
delegated to the local government. Cal. Pub. Res. Code §§ 30519(a), 30600.5(a)-(c). Permits
issued by local governments are, however, generally appealable to the Coastal Commission to
ensure consistency with the statute. Id. § 30603“Thus, ‘[u]nder the
Coastal Act’s
legislative
scheme, . . . the [local coastal program] and the development permits issued by local agencies
pursuant to the Coastal Act are not solely a matter of local law, but embody state policy. In fact, a
fundamental purpose of the Coastal Act is to ensure that state policies prevail over the concerns of
local government.” Pacific Palisades, 55 Cal. 4th at 794 (citations omitted); see also Cal. Pub.
Res. Code §§ 30210-30265.5 (establishing extensive, protective Coastal Act policies for public
access, recreation, marine environment, land resources, development, and industrial activities).

II. The California Environmental Quality Act
The California Legislature enacted the CaliforniaEnvironmental Quality
Act (“CEQA”) to“‘[e]nsure that the long-term protection of the environment shall be the guiding criterion in public
decisions.’”
No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 74 (1974); Cal. Pub. Res. Code §
21001.“In enacting CEQA, theLegislature declared its intention thatall public agencies
responsible for regulating activities affecting the environment give prime consideration to
preventing environmental damage when carrying out their duties.” Mountain Lion Found. v. Fish
& Game Comm’n, 16 Cal. 4th 105, 112 (1997); Cal. Pub. Res. Code § 21000. For this reason, the
California Supreme Court has repeatedly held that CEQA must be interpreted to“afford thefullest
possible protection tothe environment.” Wildlife Alive v. Chickering, 18 Cal. 3d 190, 206 (1976)
(quotation omitted); see also Friends of Mammoth v. Bd. of Supervisors, 8 Cal. 3d 247, 259
(1972).

CEQA applies toall “discretionary projects proposed to be carried out or approved by
public agencies.”al.Pub. Res. Code§21080(a). Unless the project falls within aCEQA
exemption, “the agency
must ‘conduct aninitial studytodetermine if the project may have a
significant effect onthe environment.’”
Muzzy Ranch Co. v. Solano Cnty. Airport Land Use
Comm’n, 41 Cal. 4th 372, 380 (2007) (quoting 14 Cal. Code Regs. § 15063(a)). If the initial study

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indicates that there is no substantial evidence of any significant environmental impact, the agency
may
adopt a“negative declaration.”
Nelson v. Cnty. of Kern, 190 Cal. App. 4th 252, 267 (2010).
Where, however, there is a fair argument that a project may have a significant effect on the
environment, the agency must prepare a full environmental impact report (“EIR”). Cal. Pub. Res.
Code §§ 21100, 21151; 14 Cal. Code Regs. § 15064(a)(1), (f)(1); Communities fora Better Env’t v.
So. Coast Air Qual. Mgmt. Dist., 48 Cal. 4th 310, 319 (2010); No Oil, Inc., 13 Cal.3d at 82.

The EIRis“‘the heart of CEQA,’” Laurel Heights Improvement Ass’nv.Regents ofUniv.
of Cal., 47 Cal. 3d376,392(1998), and “the key to environmental protection under [the Act].”
No Oil, Inc., 13 Cal. 3d at 75It is “the primary means ofachievingtheLegislature’s considered
declaration thatitisthe policyofthe state to‘take
all action necessarytoprotect, rehabilitate, and
enhancetheenvironmental qualityofthe state.’”
Laurel Heights, 47 Cal. 3d at 392. The EIR
serves asan “‘environmental alarm bell’whose purposeisto alert the public and its responsible
officials to environmental changes before they have reached thepointofecological noreturn.”
Id.
It is “intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed
and considered the ecological implications of its action.”
Id. If CEQA is“scrupulously
followed,”thepublicwill knowthebasis fortheagency’s action and “being duly informed, can
respond accordinglytoaction withwhichitdisagrees.” Id. Thus, an EIR is a “document of
accountability,” and theCEQA process “protects notonlytheenvironmentbutalsoinformed self-
government.” Id.

FACTUAL BACKGROUND

The Cambria Community
Services District (“District” or “CCSD”) provides water and
sewer services to the Cambria community, drawing groundwater from aquifers beneath both San
Simeon and Santa Rosa Creeks and discharging treated wastewater to a percolation recharge field
adjacent to San Simeon Creek, near the San Simeon State Park campground. To meet long-term
water supply demands associated with new development, the District has been attempting to build
a desalination plant in one form or another for more than 20 years. Barnes Decl., Exh. B. Past
efforts were unsuccessful, however, because the District continued to locate proposed projects in
protected areas where development is prohibited or severely limited under ordinary circumstances.

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See, e.g., id. at 2.

In 2014, the District decided to sidestep these concerns –
and applicable environmental
laws –
by proposing
an “emergency” water supply project that wouldwithdraw water from an
unused well near the confluence of San Simeon and Van Gordon Creeks, operate the well to
induce salt water intrusion, treat the pumped water to remove the salt, re-inject the treated water
back into the aquifer, and discharge the concentrated brine waste from the de-salting process into
an adjacent holdingpond (the “Project”). Barnes Decl., Exh. A. To avoid mandatory
requirements associated with such a major public works project, the District suspended public
contract bidding requirements and declared a
“Stage3Water Shortage Condition” onJanuary30,2014. Id. at 3, 10. In April, the District applied to the County of San Luis Obispo for an
“emergency”
coastal development permit under the Coastal Act. The District justified its need for
an emergency permit by claiming to the County that Cambia would very soon run out of potable
water. Id. at 10-11 (claimingthat“uncertainty” over future summer creek flows “could resultinCCSD well levels dropping at an accelerated ratedduringthelate summer to early fall” and that“[t]he consequences ofinaction or significant delay
in constructing
this emergency project are
potentially disastrous for the community of Cambria”).

Based on these representations –
which were not supported by the evidence and did not
accurately depict current conditions2 –
the County Planning and Building Director issued a six-
month “emergency” coastal development permit to construct a brackish water treatment system.
Issuance of that permit was not accompanied by the normal environmental review process under
CEQA, was not subject to public hearings or County Board of Supervisors approval, and did not
provide the normal opportunity for administrative appeal to the California Coastal Commission,
which oversees local implementation of the Coastal Act. The emergency permit did require that
all Project construction be completed before expiration of the 180-day permit and that, as
mandated bystate and local law, the District apply
for “a
regular Coastal Development Permit to
authorizetheemergency
project” within 30days of receiving the emergency
permit. Id. at 4

2 As discussed below, water levels in the San Simeon and Santa Rosa aquifers from which CCSD draws
drinking water are consistent with historic averages.

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(explainingthat“[t]he regular permit willbe subject
to allapplicable” requirements and policies of

the Coastal Act and the Local Coastal Program). The regular permit application requires detailed
information on Project impacts, including hydrogeologic modeling on water drawdown impacts to
nearby wetlands, streams, and coastal waters; evaluation of impacts from Project operations on
biological resources and recreation; results of consultation with expert wildlife agencies
concerning impacts to endangered and threatened species; brine waste pond impacts; and more.
See id.; Barnes Decl., Exh. P.

On June 20, 2014, the District circulated a draft Initial Study/Mitigated Negative
Declaration (“Neg Dec”) –
a truncated form of CEQA review –
for public comment. Barnes
Decl., Exh. C. Several expert state and federal agencies, including the California Coastal
Commission, the California Department of Fish and Wildlife, the California Department of Parks
and Recreation, and the U.S. Fish and Wildlife Service, as well as members of the general public,
expressed serious concerns about potentially significant impacts associated with construction and
operation of the Project. For example, these agencies identified possible Project-induced changes
to San Simeon Creek, which is designated as critical habitat for threatened and endangered
species, and adverse health, recreational, and aesthetic impacts on people living nearby or using
the adjacent campground. See, e.g., Barnes Decl., Exhs. D-G. Manyofthe agencies’ concerns
mirrored their earlier comments on the District’s previously proposed desalination projects. In
response to these stinging criticisms, the District essentially withdrew the Neg Dec and suggested
at apublichearinginSeptember 2014 thatitwill instead prepare
a “focused EIR”
to accompany
its application for a regular coastal development permit. Barnes Decl., Exh. H, at 5-6. The
District hasnotprovided any timetable for doing so, however, or initiated CEQA’s publicprocess.

In the meantime, the District proceeded to construct the Project over the summer and fall
and began operating the facility in January. Barnes Decl., Exh. I. In an attempt to shield its
activities from any environmental review, the District filed a CEQA Notice of Exemption for the
Project with the Office of Planning and Research on September 9, 2014, claiming that the Project
was necessary
“over asix dry-month period”toprovide water for health, safetysanitation,andfire
protection. Barnes Decl., Exh. K. In that notice, the District asserted that the Project is exempt

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from any CEQA review or compliance under thestatute’s “emergency” provisions3 and that it is
“consistent with astate of emergency proclaimed bytheGovernor on January 17, 2014 and his
executive orders issued on April 25, 2014.”4 Based on the Coastal Act and CEQA exemption
provisions, the District apparently believes it can now indefinitely operate this permanent public
works Project without any further public process, without a permanent coastal development permit
(or even a completed application for such a permit), and without any environmental review –
despite the fact that the emergency coastal development permit expired on November 15, 2014

and theGovernor’s Executive Order expired onDecember 31,2014

STANDARD OF REVIEW

California courts evaluate two factors to determine whether parties meet the standard for a
preliminary injunction: (1) the reasonable probability that Petitioners will succeed on the merits of
their claims; and (2) the interim harm Petitioners are likely to suffer if the injunction is denied, as
compared to the harm that Respondents are likely to suffer if the injunction is granted. Cal. Civ.
Proc. Code § 526(a); Robbins v. Superior Court, 38 Cal. 3d 199, 206 (1985). Courts“must
exercise [their] discretion in favor of the party most likely to be injured.”Id. at 205.

ARGUMENT

I.
Petitioners Are Likely to Succeed on the Merits Because the District Is Operating theProject in Violation of the California Coastal Act and CEQA.
Although theCoastal Act andthe County’s Local Coastal Program allowforshort-term
“emergency”
coastal development permits, the District’s water supply
Project does not qualify for
such a permit because it is a long-term public works facility, not a temporary response to a sudden,

3 In particular, the Notice claimed a statutory exemption under Public Resources Code section 21080(b)(4),

which exempts from CEQA “specific projects necessary to prevent or mitigate an emergency.” Asdiscussed below, this exemption is extremely narrow and applies only for
responses to “sudden,
unexpected” occurrences or events, not
long-term public works projects.

4 As discussed below, the April 25 executive order did not unilaterally exempt projects from CEQA.

Rather, in Directive 12,the order provided:
“The California Department of Public Health, the Office of

Emergency Services, and the Office of Planning and Research will assist local agencies that the
Department of Public Health has identified as vulnerable to acute drinking water shortages in implementing
solutions to those water shortages.” Barnes Decl., Exh. J, at
2. Then, Directive 19provides
that for
“actions taken pursuant to directive 12whenthe Officeof PlanningandResearch concurs that local
action is required,” CEQA is suspended until December31,2014. Id.

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unexpected event. Likewise,theProject doesnot qualify for an “emergency” exemption from the
environmental review requirements of CEQA because it is not responding to a sudden, unexpected
occurrence or a documented acute drinking water shortage. Indeed, the data continue to show that
water levels in District wells remain at or near their historic averages. But even if the
“emergency” permit issued by the County Planning Director in May 2014 was legally proper, that
permit has now expired and the District has unlawfully failed to obtain a permanent coastal
development permit to operate the Project or undertaken the required CEQA review. Because
these basic facts and legal requirements are indisputable, Petitioner is likely to prevail on the
merits of their claims.

A.
The District’s Construction and Operation of the Water Supply Project Does
Not Qualify foran “Emergency” Coastal Development Permit or an
“Emergency” Exemption
from CEQA.
The Coastal Act allows for the issuance of short-term “emergency” permitsthatdonotrequire full public process, environmental review, or a vote by the Local Coastal Program decision
body –
here, the County Board of Supervisors –
but only in very limited circumstances. Under a
certified Local Coastal Program suchas the County’s, the designated official may issue a
temporary coastal development permit for emergencies (other than those under section 306115)
and for certain small nonemergency developments not at issue here. Cal. Pub. Res. Code
§ 30624(a). The applicable Coastal Commission regulations, and similar language in the County
Coastal Zone Land Use Ordinance, define
an “emergency”
for purposes of section 30624 as “a
sudden unexpected occurrence demanding immediate action to prevent or mitigate loss or damage
tolife, health, property or essential public services.” 14 Cal.Code Regs. (“CCR”) § 13009; San
Luis Obispo County Code (“SLO Code”) 23.03.045(a). 6

5 The Coastal Act also allows permit waivers for a person performing a public service (i)
“to protect life
andpublic property from imminent danger,” or (ii) “to restore, repair, or maintain public works, utilities, or

services destroyed, damaged or interrupted by natural disaster, serious accident, in in other cases of
emergency.” Cal. Pub. Res. Code § 30611. Work under such a permit cannot exceed $25,000 in value and
the Coastal Commission must be notified “within three days of
the disaster or discoveryof the danger.”
Id.
This exemption is not applicable to the District’s new,
multi-million dollar water supply Project.

6 Coastal Act regulations govern emergency permits issued directly by the Coastal Commission in those
areas where it retains original jurisdiction, 14 Cal. Code Regs. §§ 13136-13143, and by designated local

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CEQA contains nearly identical emergency exemption language –
“sudden, unexpected
occurrence, involving a clear and imminent danger, demanding immediate action to prevent or
mitigate lossof,or damageto,life, health, property,oressential public services”

and further
explains that the term “emergency”
“includes
such occurrences as fire, flood, earthquake, or other
soilorgeologic movements, aswell as suchoccurrences as riot,accident, or sabotage.”
Cal. Pub.
Res. Code § 21060.3; 14 Cal. Code Regs. § 15359; see id. § 21080(b)(4) (exempting specific
actions necessary to mitigate an emergency).7 The CEQA implementing regulations explain
furtherthatthestatutory
emergency provision “does notincludelong-term projects undertaken of
preventing or mitigating a situation that has a low-probability of occurrence in the short-term.” 14Cal. Code Regs. § 15269(c).

Thisdefinition is“obviously extremely narrow”
and applies only where
“the lead agency
simply cannot complete the requisite paperwork within the time constraints ofCEQA.”
W. Mun.
Water Dist. v. Superior Court, 187 Cal. App. 3d 1104, 1111 (1986) (holding that generalized
assumptions regarding likelihood of future seismic events were not sufficient evidence to support
an emergency exemption for the drilling of two dewatering wells); see also SLO Code §
23.03.045(b)(5) (providing that Planning Director may only grant emergency coastal development
permit if he finds, among other things, that“[a]n emergency exists that requires action more
quickly than permitted by the procedures for regular permits administered pursuant to this title”).
“For
example, ifa dam is readytoburstora fireis raging out ofcontrol andhumanlifeisthreatened as a result of delaying a project decision, application of the emergency exemption
wouldbe proper.”
W. Mun. Water Dist., 187 Cal. App. 3d at 1111.

The water supply Project at issue here does not qualify for an emergency coastal
development permit or a CEQA emergency exemption because it is intended and designed to
respond to long-term water supply concerns,nota“sudden unexpected occurrence”
like a

officials where a Local Coastal Program has not yet been certified, id. §§ 13329-13329.4. Because the
County of San Luis Obispo has a certified Local Coastal Program, the emergency provisions are
incorporated into the County Code. See SLO Code § 23.03.045.

7 The Public Contracts Code, from which the District also exempted itself to circumvent competitive
bidding requirements for the Project, also uses the same language. Cal. Pub. Cont. Code § 1102.

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mudslide, earthquake, or other disaster. In its application for the emergency permit, the District
acknowledged that the Project responds toa“prolonged drought” that was “unlikeother natural
disasters, whichoccur suddenly.”
Barnes Decl., Exh. A, at 11. The now-withdrawn Neg Dec
likewise stated that the Project is needed because the District “anticipates continued water
shortages and drought conditions over the course of the next 20 years, as a result of climate change
impacts, and the likely need for use of the emergency water supply facilities in 8 to 10 years of the
next 20years.”
Barnes Decl., Exh. C, at 4.9-9. In a recent billing insert, District General Manager
Jerry Gruber confirmed that the Project was constructed “[a]fter decades of debate over what to doabout our chronic water shortage,”
and nowprovides Cambriawithanew “level ofdrought
protection.”
Barnes Decl., Exh. L, at 1-2 (emphasis added). The Project, in short, is a major
public works project undertaken as a preventive measure to address long-term water supply
concerns.

As such, the Project simply does not qualify
as an“emergency” under the Coastal Act, the
County Code, or CEQA. Like the City of San Luis Obispo in Los Osos Valley Associates v. City
of San Luis Obispo, 30 Cal. App. 4th 1670, 1681-83 (1994), theDistrict here“was well aware of
the need to conserve water for years,”
and its decision to build a desalination facility to address a
long-standing water supply condition does notconstitute an “emergency” occurrence presenting
“a
clear and imminent danger,demanding immediate action.”
Rather, “it constituted a choice among
many that the [District] made over a considerable period of time.”
Id. (noting that drilling of
groundwater wells to alleviate seismic threat was notan“emergency” justifying CEQA
exemption). Reading either the Coastal Act or CEQA to exempt the District’s water supply
Project from review and permitting “completely ignores thelimiting ideas of ‘sudden,’
‘unexpected,’ ‘clear,’ ‘imminent’ and ‘demanding
immediate action’ expressly included bytheLegislature and would be in derogation of the canon that a construction should give meaning to
each word ofthestatute.”
W. Mun. Water Dist., 187 Cal. App. 3d at 1111. “Moreover, inthename of ‘emergency’ itwouldcreateaholeinCEQAoffathomless depth andspectacular breadth.
Indeed, it is difficult to imagine a large-scale public works project, such as an extensive
deforestation project or a new freeway, which could not qualify for emergency exemption from an

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EIR on the grounds that it might ultimately mitigate the harms attendant on a major natural
disaster.”
Id. at 1112.

As the Los Osos court explained, the term “emergency”“has long been accepted in
California as an unforeseen situation calling for immediate action. . . . Emergency is not
synonymous with expediency, convenience, or best interests, and it imports ‘more . . . than merely
a general public need.Emergency comprehends a situation of ‘grave character and
serious moment.It is ‘evidenced by an imminent and substantial threat to public health or
safety.’”
30 Cal. App. 4th at 1680. Thus, the District cannot use the narrowly-constrained
statutory emergency provisions in the Coastal Act, the County Code, and CEQA to construct and
operate a major water supply facility based on prognostications of future water shortages as the
community of Cambria grows. The District’s
actions here were nothing morethan“an attempttouse limited exemptions contained in CEQA as a means to subvert rules regulating the protection of
theenvironment.” Castaic Lake Water Agency v. City of Santa Clarita, 41 Cal. App. 4th 1257,
1268 (1995) (ordering agency to vacate CEQA Notice of Exemption for city plan).

Beyond the legal arguments regarding the meaning of “emergency,”thefacts heredonotsupporttheDistrict’s alarmist rhetorictothe County, themedia, and various state agencies
about
the water situation. In its January 2014 resolution declaring a
“severe water conditions” and
exempting itself from competitive public contracting requirements, the District stated that
“without some alternative supply of water, CCSD will effectively run out of water in
approximately four (4) to six (6) months.”
Barnes Decl., Exh. Y, at 1. The following month, the
District told the Coastal Commission and the County that the community had “approximately 3-4
months of water left before running out.”
Barnes Decl., Exh. Z. Then in its April application for
the emergency coastal development permit, the District claimed that “uncertainty”
over future
summer creek flows “could result in CCSD well levels dropping at an accelerated rate during the
late summer to early fall.”
Barnes Decl., Exh. A, at 10-11. In May, to support its application, the
District predicted depletion of all groundwater between October and December. Barnes Decl.,
Exh. AA, at 3. In September, relying on District claims that “[e]ach day that passes . . . increases
the probability of Cambria running out of Water,”
Barnes Decl., Exh. BB, and the Division of

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Drinking Water’s statement that the Project was “necessary to avoid a water shortage or water
outages inthe future,”
Barnes Decl., Exh. S, at 3, OPR concluded that the District would run out
of water within 60 to 90 days. Barnes Decl., Exh. N. Two months later, the Central Coast
Regional Water Quality Control Board repeated the same claim. Barnes Decl., Exh. W, at 19.

Throughout this time, water kept flowing to the taps. The District’sown well data
demonstrate that there has been no significant deviation from historic water levels. See Barnes
Decl., Exh. M. Indeed, water supply levels over the last six months were and are roughly average
for the relevant time of year. Id. Every year, well levels drop steadily during the dry season (May
through October), as pumping occurs but recharge does not. And then the aquifer is recharged
again by winter infiltration. Water levels throughout 2014 were entirely consistent with this
historic pattern. Id. Despite these hard facts, the District continued to cry wolf throughout all of
2014.

Having suggested that Cambria would run dry by the end of summer 2014 and having
insisted that the Project was necessary to meet this dry season emergency, the District did not
actually turn on the Project until January 2015, in the heart of the wet season after winter rains had
replenished the groundwater supply. The District, of course, knew that construction of the
“emergency” Project would take several months and could not, therefore, alleviate any anticipated
water shortage during the summer of 2014. But it used public concern about the general statewide
drought toevade and subvert California’s key environmental protection and public participation
laws. The fact that the District insists, now that the Project is built, that it operate through the wet
season merely confirms what has always been true –
that the Project was and is intended as a
public works water supply plant designed toaddress chronic shortages and
the District’s thirst for
more water to fuel development. Accordingly, until the District complies with these
environmental rules (or demonstrates a true statutory emergency from a sudden and unexpected
event), it should not be allowed to continue operating the Project.

B.
Because the “Emergency” Coastal Development Permit HasExpired and the
District Has Failed to Obtain a Permanent Permit as Required by Law, No
Valid Permit Currently Authorizes Operation of the Project.
Even assuming for the sake of argument that the facts supported issuance of an
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PETITIONER’S MEMORANDUM
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IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

“emergency”
coastal development permit last May,
that permit was issued improperly and has
since expired. Moreover, a key condition of the District’s emergency
permit and a strict
requirement in the County Code governing emergency permits –
that the permit holder submit a
completed application for a permanent permit within 30 days –
has never been satisfied.
Accordingly, the District does not currently hold a valid coastal development permit to operate the
Project and is operating in violation of the Coastal Act.

As a threshold matter, before issuing an emergency permit, the County Planning Director
was required to: (1) verify the facts concerning the existence and nature of the emergency and to
consult with the Coastal Commission regarding claims of emergency –
a “critically important”
part of the process; (2) make a finding based on supporting facts that “[a]n emergency exists that
requires action more quickly than permitted by the procedures for regular permits administered
pursuant to this title, and the work can and will be completed within 30 days unless otherwise
specified by the terms of the permit”; and (3) make a finding that “[t]he work proposed would be
consistent with the requirements of the certified Local Coastal Program.”
SLO Code §
23.03.045(b)(3), (5). As discussedabove, theDistrict’s ownwell monitoring datashowthatnofinding of a statutory emergency was made or supportable on the facts as they existed in May
2014 –
or as they exist now. In issuing the emergency permit, the Planning Director did not
include any findings verifying the existence of a true statutory emergency or provide any
supporting analysis. Barnes Decl., Exh. A. That fact alone renders the County’s issuanceofthe
emergency permit unlawful. Cal. Code Civ. Proc. § 1094.5(b) (“Abuseofdiscretion is established
if the respondent has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.”)

Equally important, the Planning Director did not include any analysis of the proposed

Project’s consistency with therequirements ofthe
Local Coastal Program, which implements the

resource protection provisions of the Coastal Act. Nor, based on the available facts, could he have
done so. As the Coastal Commission has repeatedly explained, the Project is not consistent with
many Coastal Act provisions. Barnes Decl., Exh. D; Barnes Decl., Exh. O, at 6-7 (listing at least
26 Coastal Act policies with which the Project appears to be inconsistent).

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Finally, and of particular significance here, within 30 days of notifying the Planning
Director of the “emergency,”thepermit applicant must apply for a permanent permit, and failure
todoso “shall” resultinaCounty enforcement action under the
Local Coastal
Program. SLO
Code 23.03.045(b)(6). The emergency permit itself requires that the District submit an application
for a permanent permit within 30 days of May 15, 2014. Barnes Decl., Exh. A, at 4 (“Within 30
days of the date of issuance of this emergency permit, the permittee shall apply for a regular
Coastal Development Permit to authorize the emergency project. The regular permit will be
subject to all applicable provisions of the California Coastal Act and the Local Coastal Program,
including the specific requirements for desalination facilities in the North Coast Area Plan
Community Wide Policy 4D and the policies applicable to protecting creek and stream resources,
and may be conditioned accordingly.”). Among
other things, thatapplication must include the
results of hydrologic impact modeling and monitoring on aquifer drawdown and surface aquatic
resources and measures to mitigate such impacts, as well as an analysis of Project noise and light
impacts on adjacent human and biological communities. Id. In July, the County notified the
District that it was in violation of the requirement to submit a complete application for a
permanent permit, Barnes Decl., Exh. P, and the District still has not produced an environmental
analysis or completed the permit application process.

In sum, the District has never held a valid emergency coastal development permit for the
Project because the County never made the properly supported verifications and findings of a
sudden, unexpected occurrence required for such a permit. Moreover, despitetheCounty’s failure
to enforce its own ordinance, the District has been in violation of the permit terms (and thus in
default of the permit) since June 15, 2014, when it failed to timely submit an application and
accompanying environmental analysis for a permanent permit to operate. And, in any event, the
emergency permit has now expired by its own terms (180 days after issuance or on November 15,
2014). Barnes Decl., Exh. A, at 1.8 Without a valid coastal development permit under the Coastal

8 The County Code requires that all emergency coastal development permits include an expiration date.
SLO Code § 23.03.045(b)(5). The emergency permit for the Project limits construction to 180 days, but
purports to allow operation to continue “until such time that the CCSD-declared Stage 3 Water Shortage

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PETITIONER’S MEMORANDUM
OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Act, the Project cannot legally continue to operate and thus its operations should be enjoined. Cal.
Pub. Res. Code § 30803; Pacific Legal Found.v.Cal. Coastal Comm’n, 33 Cal. 3d 158, 169
(1982) (“injunctive
relief [is] broadly available toreview possible violationsofthe Coastal Act”).

C. The District Is Operating the Project in Violation of CEQA.
The Court can enjoin Project operations based solely on the absence of a current and valid
coastal development permit, but the District is also in ongoing violation of CEQA. As discussed
in Section A, supra, the District was and is not entitled to a statutory emergency exemption from
CEQA because the Project responds to a perceived long-term water supply need, nota“sudden,
unexpected occurrence, involvinga clear and imminent danger,” such as afire, flood, orearthquake. Cal Pub. Res. Code § 21060.3. In the Notice of Exemption from CEQA, however,
the District also invoked theGovernor’s April
25, 2014 Executive Order as a separate basis for its
emergency CEQA exemption. Although Petitioners need not refute the applicability of this
exemption to obtain an injunction under the Coastal Act, we address the issue here because it
further illustrates the District’s subterfuge
and subversion of California’s core environmental
requirements.

Directives 12 and 19 of the Executive Order allow limited suspension of CEQA
environmental review for local agency projects responsive to acute drinking water shortages when
the California Department of Public Health,nowthe Division ofDrinking
Water (“Division”),9
has identified those agencies as vulnerable to acute drinking water shortages and the Office of

Emergency has ended, or the project has been authorized to continue to serve existing development through
approval of a regular Coastal Development Permit, whichever
is sooner.” Barnes Decl., Exh. A, at 3.
Given the County’s refusal
to enforce
its own ordinance requiring mandatory termination of the permit for
failure to timely submitapermanent permit application andthe District’s ability to control when it declares

a local Stage 3 Water Shortage Emergency, this permit term is really no term at all. Thus, the Court should
properly read the permit to have expired, at the latest, by its own terms on November 15, 2014.

9 On July 1, 2014, the Drinking Water Program was transferred from the California Department of Public
Health to the State Water Resources Control Board as the Division of Drinking Water. The determination

of vulnerable local agencies under the Governor’s executive order apparently became the responsibilityoof
the Division of Drinking Water at that
time. In response to Petitioner’s requestunder the California Public
Records Act
for records related to the Project’s CEQA exemption, the Departmentof Public Health

responded that the request fell under the jurisdiction of the State Water Resources Control Board. Barnes
Decl., Exh. Q. As discussed below, the Division of Drinking Water did not undertake any supporting
analysis.

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Planning and Research (“OPR”) concurs thatlocal action isrequired. Barnes Decl., Exh. J, at 3.
The Division maintains a list of water districts that may be vulnerable to acute drinking water
shortages on its website. On September 26, 2014, the Division updated its list of water districts
that may be vulnerable to acute drinking water shortages. Cambria was not on the list. The
Division last updated this list on November 20, 2014, to note that no water systems were at
extreme risk of drinking water shortages. Barnes Decl., Exh. R. On September 11, 2014,
however, at the request of the District and OPR, the Division sent an email message to OPR
stating that:

The Division of Drinking Water has been monitoring the progress of this project for the
last several months. The project is necessary to avoid a water shortage or water outages in
the future. The water system has done a remarkable job conserving water to avoid water

outages tothis point. The system’s vulnerability to water outages inthe futureishigh

without the emergency water supply project.
Barnes Decl., Exh. S, at 3. Pursuant to the California Public Records Act, Petitioner subsequently
requested from the Division all public documents related to or supporting this conclusion and, in
response, received no supporting analysis or evidence from the Division; apart from the above-
quoted email, the Division provided only a copy of the Neg Dec andtheProject’s Title 22Engineering Report. Barnes Decl., Exh. T, at 2-3. Thus, the facts demonstrate that the Division
did not undertake or review any analysis that would support its September 11, 2014, statement to
OPR.

OPR then issued a concurrence on September 12, 2014, following the receipt of the
Division’s email, which stated that the:
California Department of Public Health has identified the Cambria Community Services
District (district) as having critical drinking water shortages, meaning that the city willdeplete its available supplies within 60 to 90 days. The Office of Emergency Services has
indicated that the project described in the attached Notice of Exemption is necessary to
solve this critical drinking water shortage. The State Water Resources Control Board and
Department of Fish and Wildlife have issued the necessary permits. The Office of

Planning and Research concurs that local action is required.
Barnes Decl., Exh. N. Pursuant to the California Public Records Act, Petitioner subsequently
requested from OPR all public documents related to or supporting this concurrence and, in
response, received no supporting analysis or evidence from OPR. Barnes Decl., Exh. U. In
response to separate California Public Records Act requests for all public documents related to or

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PETITIONER’S MEMORANDUM
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supporting this concurrence, the Office of Emergency Services verbally responded that it had no
responsive documents, while the California Department of Fish and Wildlife also responded that it
had no responsive documents and confirmed it had not issued a permit for the Project. Barnes
Decl., Exh. V. Moreover, at the time oftheconcurrence’s issuance, theState Water Resources
Control Board (through the Central Coast Regional Water Quality Control Board) had not yet
issued permits for the Project. See, e.g., Barnes Decl., Exh. W (order issued November 14, 2014).

Despitea complete lack of analysistosupport OPR’s concurrence on Sept. 12,2014,the District –
three days earlier, on Sept. 9, 2014 –
filedits NoticeofExemption from CEQA based onOPR’s
concurrence.

The Division apparently concluded that Cambria was vulnerable to an acute drinking water
shortage, despite months of monitoring that showed average water table levels, based entirely on
theDistrict’s unsupported statements. OPR apparently premised its concurrence on the support
and approval of the Project by other agencies, yet those agencies never gave the approval or issued
the permits it described. It is unclear how OPR was given to believe that the Project had been
approved by other agencies. What is clear is that any approval of the Project as exempt from
CEQA under the Governor’s order was done without any factual findings or analytic basis.

There is not now, nor was there at the time of issuance, any credible evidence to support
theDistrict’s insistent that the Cambria community is in danger of running out of drinking water,
that the Project qualifies for an emergency coastal development permit under the Coastal Act, or
that the Project is necessary to prevent or mitigate an emergency as defined by CEQA. Petitioners
are thus highly likely to prevail on the merits of their Coastal Act and CEQA claims, and
operation of the Project should be enjoined until the District fully complies with these laws.

II. Irreparable Harm to the Environment Outweighs Any Injury to Respondent.
Continued operation of the Project will cause irreparable harm to the environment, which
outweighs any potential injury to Respondent. The Court should enjoin the Project until the
District fully complies with the Coastal Act and CEQA in order to preserve the environmental
status quo, for the following reasons. First, operation of the Project may negatively impact
sensitive habitats andprotected wildlife. Second, operation oftheProject’sbrine evaporation

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PETITIONER’S MEMORANDUM
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pond and spray evaporators may result in adverse changes to the surrounding habitats and

protected wildlife. Third, operation oftheProject is likelyoprejudice CCSD’s consideration or

implementation of mitigation measures or alternatives during CEQA review while, on the other
hand, the District will not be substantially injured by the issuance of a preliminary injunction.
Because the needs of Petitioner in this instance outweigh any potential harm to Respondent, the
issuance of a preliminary injunction is proper in this case.

A.
Operation of the Project May Negatively Impact Affected Sensitive Habitats
and Protected Wildlife.
Petitioner and thepublic’s recreational, aesthetic, and conservational interests
will be
irreparably harmed without a preliminary injunction because operation of the Project may
negatively impact affected sensitive habitats and protected wildlife. Operation of the Project will
affect water levels in the San Simeon Creek and lagoon and Van Gordon Creek habitats, which
can significantly compromise the survival of several endangered and threatened species. The
Project will extract 400 gallons of groundwater per minute –
or 100 million gallons per year –
from the San Simeon Creek aquifer system, a substantial portion of the water that feeds these
habitats for several protected species. The Project will lower water levels in the San Simeon
aquifer, reduce instream flows that result from groundwater entering these creeks and lagoons,
change the creek sediment regimes and salinity, raise the temperature of the creek water, and
lower dissolved oxygen. Barnes Decl., Exh. E, at 8. Significantly, withdrawals will occur during
the dry season, the time of year when the habitat and species are most vulnerable to loss or
diminishment. Barnes Decl., Exh. D, at 3.

Survival of native wildlife depends on these affected creeks and lagoons, which are
designated as critical habitat for several species identified as endangered or threatened under the
federal Endangered Species Act. These species include: tidewater goby (federally endangered);
the California red-legged frog (federally threatened); steelhead trout (federally threatened); and
western snowy plover (federally threatened). Barnes Decl., Exh. X, at 5-9.

The South Central California Steelhead Recovery Plan of 2013 identifies San Simeon
Creek as“critical” toensuring
recovery of the steelhead trout population and concludes that

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PETITIONER’S MEMORANDUM
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groundwater extraction poses a “very high threat”
tosteelhead. Barnes Decl., Exh. D, at 3-4;
Barnes Decl., Exh. F, at 3. Historic flow reductions in San Simeon and Van Gordon Creeks may
have already irreparably harmed steelhead, and the Project’s operation islikelytocause additional
damage to future runs. Barnes Decl., Exh. E, at 1.

The Tidewater Goby Recovery Plan of 2013 designates San Simeon Creek as a “critical
habitat”
for the tidewater goby. Designation of Critical Habitat for Tidewater Goby, 78 Fed. Reg.
8746, 8771 (Feb. 6, 2013); see also Barnes Decl., Exh. F, at 3; Barnes Decl., Exh. G, at 1. The

U.S. Fish and Wildlife Service warned the District that the Project couldcause “a reduction insurface flows to the estuary [which] could have adverse impacts to the tidewater goby, such as
stranding and desiccation of individual tidewater gobies or making them more vulnerable to
predation.”
Barnes Decl., Exh. G, at 2.
The Project area also is designated “critical habitat” for
the California red-legged frog.
Barnes Decl., Exh. D, at 2; Exh. F, at 3; Exh. G, at 2. The U.S. Fish and Wildlife Service warned
the District that a reduction in the water levels of
San Simeon Creek could “affect the
ability of
California red-legged frog eggs to hatch or could cause egg masses to desiccate. Tadpoles, in turn,
could desiccate, be stranded, or be subjected to increased predation if the creek dries more quickly
as a resultofthe proposed project.” Barnes Decl., Exh. G, at 2. The California Coastal
Commission likewise advised the District more than six months ago that the Project is likely to
“diminish function and value of that habitat” and resultina“take” of these
four listed species.
Barnes Decl., Exh. D, at 2. Both the California Department of Parks and Recreation and the U.S.
Fish and Wildlife Service recommended that the District evaluate these effects of the Project prior
to implementation. Barnes Decl., Exh. F, at 3-4; Exh. G, at 2.

The District, however, failed to heed the warnings and advice of these expert federal and
state agencies. The current mitigation proposal to return 100 gallons per minute of treated water,
as proposed in the IS/MND, was criticized by the Coastal Commission as unsupported by data and
“contradicted byknowninformation abouttheSan Simeon watershed.”
Barnes Decl., Exh. D, at

10. No study has been done to ensure that this volume of water will adequately mitigate the
Project’s operational effects on habitat and affected wildlife. Id. Only appropriate environmental
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review under CEQA and the Coastal Act –
the kind of modeling and monitoring required by the
County as part of the (non-existent) permanent permit application –
can produce the information
necessary to properly mitigate these potentially significant environmental effects.

In addition to altered water levels, Project operation is likely to significantly alter the
chemical makeup of the adjacent creeks and lagoons due to the extraction of brackish water and
subsequent discharge of treated water. The District has not evaluated how the treated water may
affect the chemical profile of the affected creeks/lagoons over time. The relevant percentages of
effluent water, brackish water, and freshwater to be combined over time remain unknown and
unstudied,as are their effects onthelagoon’s long-term water quality. Barnes Decl., Exh. F, at 2.
Similarly, the effects of ammonia and chlorine chemicals, which will be used in the filtration
process (and thus will be put into the treated water to be returned to the creeks), on benthic macro-
invertebrates (essential to fish diets) have not been considered. Id.

Without the required environmental review, it is not possible to determine the full extent of
the Project’simpacts onthe local ecosystem. Indeed, that is the very purpose of conducting
CEQA and Coastal Act review before a project commences. At a minimum, the District should
have conducted a baseline assessment of affected endangered and threatened species, including
population data and an assessment of the extent and function of existing habitat types and
conditions, prior to operation of the plant, as several state and federal agencies urged. See, e.g.,
Barnes Decl., Exh. D, at 8. Given the endangered and threatened status of at least four wildlife
species inharm’s way, any loss of habitat may be considered a significant adverse impact. Id.
Thus, Petitioners are entitled to a preliminary injunction until CCSD complies with CEQA and the
Coastal Act by
completing an environmental analysisofthe Project’s impacts on nearby creeks
and lagoons and their associated wildlife.

B.
Operationof the Project’s Brine EvaporationPond and
Spray Evaporators
May Result in Adverse Changes to Surrounding Habitats and ProtectedWildlife.
Petitioners and the larger public also will suffer irreparable harm from theProject’s brine
evaporation pond and spray evaporators, which may result in adverse changes to the surrounding
habitats and protected wildlife. In addition to the extraction of groundwater and the return of

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PETITIONER’S MEMORANDUM
OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

treated water discussed above, the Project will discharge concentrated brine wastes into a nearby
evaporation pond. Brine wastes are composed of the waste removed from the extracted water
during the treatment process, including all salts and other contaminants removed from the treated
water by the reverse osmosis process.

The brine evaporation pond is located a mere 300 feet from the San Simeon state
campground and two State Park residences. Because the natural evaporation of the pond is
insufficient to dispose of the wastewater, five spray evaporators are being used to accelerate
evaporation from the pond, shooting brine mist hundreds of feet into the air. The District
proposed to operate spray evaporators approximately 12 hours per day, 350 days per year,
dispersing brine water onto nearby trails, wetlands, and sensitive habitats. Barnes Decl., Exh. F, at

4.
The brine evaporation pond and spray evaporators pose several risks to the area, potentially
resulting in irreparable harm. First, the chemical constituency of the brine evaporation pond is
unknown, and the District has not conducted any study or evaluation of thepond’s
impacts to
nearby wildlife. It may be an attractive nuisance for waterfowl and other avian species, bats, pond
turtles, red-legged frogs, and other wildlife, where the long-term evaporation concentration of salts
in wastewater creates hypersalination conditions that harm wildlife. Barnes Decl., Exh. E, at 4.
Similar conditions in hypersaline industrial water ponds, for example, cause bird mortality due to
salt crystallization in feathers and brine ingestion. Id.

Second, the chemical constituency of the aerosolized brine is unknown and may contain
trace metals, such as copper, chromium, steel, lead, mercury, and arsenic, with attendant potential
harms to both the environment and any persons in the area. Id. The water treatment process used
at the Project likely result in wastes containing ammonium, barium, strontium, chlorine, and other
chemicals at levels that may be harmful or toxic when airborne. Barnes Decl., Exh. D, at 6. Thus,
the chemicals in the aerosolized brine mist and dry brine solids may be toxic and pose health risks
to humans or wildlife frequenting the area or the surrounding dispersal area –
such as killing
vegetation, harming the surrounding wetlands, or causing long-term damage to soils. Barnes
Decl., Exh. E, at 4; Exh. F, at 4.

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Third, it remains unknown whether the spray evaporators will adequately control the flow
of the brine mist away from homes and campgrounds once projected into the air –
even with the
District’s proposed “shut-off system” for unfavorable weather conditions. Barnes Decl., Exh. D,
at 5, 6-7; Exh. F, at 4. Likewise, no data exist on the natural evaporation rate at the pond and
whether the proposed schedule (12 hours a day, 350 days per year) is necessary or adequate to
control water levels in the brine evaporation pond. Id., Exh. D, at 5.

C.
Potentially Irreparable Harms from Operating the Project Without AdequateEnvironmental Review
and Mitigation Strongly Outweigh the District’s Short-
Term Concerns, Especially During the Wet Season.
Not only are these potential ecological and human impacts unevaluated as a result of the

District’s failuretoundertake appropriate and required environmental review, butunlessthe

Project is temporarily enjoined, we may never know what has been lost. That is so because the
Project may irrevocably alter the environmental baseline –
the native plants, wildlife, and
ecological function –
against which we measure adverse impacts. For this reason, where an
agency has failed to complete adequate environmental review, it is proper for the Court to preserve
the environmental status quo by “issu[ing] an order enjoining [the public agency] from
undertaking any actions which could resultin‘an adverse
changeoralteration to thephysical

environment, until the public agency has taken any actions that may be necessary to bring the . . .
decision into compliancewith[CEQA].’”
San Joaquin Raptor/Wildlife Rescue Ctr. v. Cnty. of
Stanislaus, 27 Cal. App. 4th 713, 741-42 (1994) (noting that without an injunction, the project
“could resultinanadverse and irreparable change
in the physical environment”).

On the other side of the scale, the District can offer no compelling counterbalance for why
it should be allowed to continue operating the unlawfully constructed Project in violation of
CEQA and the Coastal Act. As the data show, there is no unusual water shortage that differs from
the recent past. While water conservation may have to continue, that is true throughout California
and does not provide justification for tossing aside thestate’s most important environmental
protection laws. The fact that new development, which puts new water demands on the
community, may be delayed while the District goes through the appropriate public process and
environmental review and permitting steps to evaluate and mitigate Project impacts is not an

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irreparable harm worthy
oftheCourt’s concern. If a true emergency arises –
one that credible
scientists can document to show that, indeed, existing homes and business will run dry –
the Court
is always free to lift the injunction and allow the Project to operate. Unless and until that occurs,
however, the Court should not allow the District to circumvent the law at the expense of
irreplaceable public resources in the coastal ecosystem and those members of the public concerned
about them. If the Court does not act, the District will be free to indefinitely ignore CEQA and the
Coastal Act even as it diminishes the environmental baseline and threatens the ecological balance
of the Project area.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that the Court issue a
preliminary injunction suspending any and all operation of the Project pending full compliance
with CEQA and the Coastal Act.

Dated: February 11, 2015 Respectfully submitted,

ENVIRONMENTAL LAW CLINIC
Mills Legal Clinic at Stanford Law School

By:
Abigail P. Barnes, Certified Law StudentDeborah A. Sivas, Supervising Attorney

Attorneys for PETITIONER

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PETITIONER’S MEMORANDUM
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