BREAKING: Cal Am Gets Feisty with New Water Project, Threatens Eminent Domain to Access Cemex Property
May 3, 2012
California American Water's shiny new water project proposal is embroiled in a legal tiff that resembles an excerpt of a sci-fi tale.
Just a week after the utility announced its new Water Supply Project, which includes groundwater recharge and aquifer storage and recovery as well as a desal plant in North Marina, Cal Am filed an application in Monterey County Superior Court for an expedited court order permitting entry onto coastal property owned by CEMEX, a cement and building materials company with operations in 50 countries, including an active mining operation north of Marina.
Cal Am is itching to get surveyors on the property ASAP. The new project would require a supplemental environmental impact report, to be prepared by the California Public Utilities Commission, according to Cal Am's project proposal.
The catch: The project is predicated on the EIR, which is predicated on a survey of plant and animal life—but one of those plants has a short season in bloom.
"Key to the supplemental EIR is a plant that blooms only until the end of May, at which time it will not bloom again until 2013," according to Cal Am's request for an urgent hearing.
"If access is not obtained immediately, there is a substantial likelihood that the supplemental EIR will not be completed in time to approve and construct the Water Supply Project, thereby jeopardizing Cal Am's ability to continue to provide adequate water to its 1000,000 customers."
Cal Am and its attorney, Salinas-based Tony Lombardo, waste no time in arguing the utility has a legal right to eminent domain should Cemex be stubborn about letting PUC surveyors on site, or building the intake wells that would feed the desal plant.
"If the project is approved, Cal Am expects to acquire the portion of the CEMEX property for the wells and related pipelines by exercising its power of eminent domain, if a negotiated acquisition cannot be achieved," Cal Am's complaint states.
In a Feb. 28 email, Craig Smith, Cemex's director of business development for the western region, emailed Lombardo to say a property sale was up for discussion. Then on April 13, Lombardo provided a draft easement purchase agreement, though relations appear to have cooled rapidly from there. (Currently, there is no easement in place.)
In an April 25 email to Lombardo, CEMEX Real Estate Director Ed Prins wrote, "I will tell you that we are just starting our own analysis of the property and will more than likely be concluded in several months."
Five days later, Lombardo filed a request for an urgent court hearing. "Cal Am has attempted to obtain CEMEX's permission to access its property, but so far has been unable to obtain its permission,"he wrote. "Because of the substantial effort required to prepare and certify the supplemental EIR, as well as the time-sensitive nature of the State Water Resource Control Board's [cease and desist] orders…Cal Am cannot wait any longer."
Cal Am spokeswoman Catherine Bowie says relations have warmed since the original court papers were filed.
Judge Kay Kingsley scheduled a hearing on an expedited schedule for May 11. "We actually think we can reach an agreement with CEMEX before that time," Bowie says. "We’re developing a relationship with the property owner. We’re hopeful that we’ll be able to reach an agreement."
A CEMEX representative did not return a request for comment Thursday afternoon.
The time-sensitive plant species is not identified in court papers, and a PUC analyst responsible for managing the EIR did not return a request for clarification Thursday afternoon.
According to court papers, the photography and visual survey of flora and fauna required for the supplemental EIR would be non-invasive and non-disruptive to CEMEX's activites; nonetheless, Cal Am has offered to deposit $5,000 to cover any damages.