Attorney memo: There's not enough water to build out Monterey Downs.

Over the weekend, the Monterey County Weekly received a memo labeled confidential and written to the city of Seaside by a trio of attorneys. The subject: what information the city of Seaside was required to assess and release as it relates to the availability of water for the Monterey Downs project.

If that sounds complex and wonky, that's because it is. In a county famous for its lack of water, there's no lack of rhetoric when it comes to talking about it.

The city of Seaside had asked attorneys Kevin Ennis, Serita Young and Amanda L. Stein what information had to be included when the city releases the Monterey Downs Specific Plan environmental impact report. The attorneys are with the Los Angeles-based firm Richards, Watson & Gershon; the memo was initialed by Ennis.

The Monterey Downs EIR is now 14 months late (and counting), but reportedly is due out any day now. 

"The main issues with the water supply analysis in the Monterey Downs EIR result from not having a clear water demand projection, not having enough information about the planned future sources of water and not providing for any contingencies if the water recycling system and the desalination plant do not come online or cannot serve the project," the memo states. 

While the Weekly covered the basics of the memo in the Monday Squid newsletter, here's more.

City officials or representatives of the city asked the attorneys to review four questions:

And hidden in those questions is the underlying theme, "What exactly do we have to tell people?"

1) May the Water Supply Assessment Supplement (WSA) prepared by the developer (that would be Monterey Downs) be used in preparing the EIR? Should that supplement be sent to the water district? What is the district's obligation with respect to the supplement?;

2) Must the city include a specific water demand figure in the EIR or can the EIR refer to a range of anticipated water demand based on competing numbers? If so, how should the city treat the different figures from the district's WSA and the WSA supplement?;

3) Can the city rely on a generalized mitigation measure for ensuring adequate water supply before construction may commence, and what needs to be included in the document to do so?;

4) How should the city address future allocations of remaining available water supply?

As for the answers in the memo? When it comes to numbers, nothing will sink this project faster than a lack of specifics.

1) Yes, the city can use the report prepared by the developer and yes, it should be sent to the district—and the district should be encouraged to provide a response.

2) The city should avoid the risk of underestimating water demand and the environmental impacts of providing water for the project: "The absence of a demand figure precludes the existence of substantial evidence to conclude sufficient water is likely to be available for the project. Thus, inconsistencies regarding the water supply demand figures for this project must be addressed," the memo states.

3) Here's a wowser of an answer: "The EIR may restrict development as mitigation for water supply impacts. Future water supplies identified must bear a likelihood of actually proving available." 

4) The attorneys say one of the major policy decisions facing the city is whether (and to what extent) it wants to sub-allocate all or some of its limited remaining water supply to the Monterey Downs project. The EIR, the memo states, acknowledges the project doesn't have sufficient water supply for all phases of the development. 

"Speculative sources and unrealistic allocations ('paper water') are insufficient bases for decision making" under California environmental law, the attorneys write. 

How we got that document, and what we did about it:

The lawyers' memo, dated July 18, was accidentally released by the city in response to a Public Records Act request filed by the activist group Keep Fort Ord Wild. On each of its 16 pages is a notice that the memo should be kept confidential as part of attorney-client and attorney work privileges—and that it shouldn't be filed with publicly accessible records. The sweeping PRA asked for any emails or documents that contained "Monterey Downs" in the subject line or in the body of the text, and this was one of them.

The Weekly at 10am Monday alerted the attorneys and EMC Planning Group's Teri Wissler Adam, a contract planner for the city of Seaside, that it had the document in question, explained that we would be writing about it and offered them the opportunity to comment.

Two hours after the initial email was sent, and with the understanding the Weekly planned to post at 1pm, Serita Young asked that we keep the privileged document from the public and asked us not to publish so her office could research the document in question, its confidentiality and the circumstances of its release. She wrote the firm would provide comments as soon as they had concluded their review.

On the advice of our attorney, Roger Myers of the firm Bryan Cave LLP, we published. Myers cited overwhelming public interest as part of the reason, and also warned the attorneys who wrote the memo might seek an injunction that would hamper our ability to publish it in a timely fashion.