MONTEREY — A concern over a potential lawsuit by state water officials against the Monterey Peninsula water district could threaten an affordable housing project in Monterey.
In May, the board of directors of the Monterey Peninsula Water Management District reversed a staff recommendation and approved sending roughly 5 acre-feet of additional water — some 1.7 million gallons — for one section of a Garden Road project that will be built out by developer Brad Slama. That approval included a request to the city to indemnify the water district.
But the State Water Resources Control Board in 2009 slapped a cease-and-desist order on any additional water hookups because of over pumping from the Carmel River. The water allocated by the water district in May would come from the district’s reserve and not mean additional water use.
Cities along the Peninsula are in a precarious position because one state agency is demanding more housing while another state agency — the Water Board — is not allowing any more water for new hookups until an additional water source becomes available.
A call placed to the office of state Sen. John Laird requesting comment on the city’s dilemma was not immediately returned Monday.
With potential water board action hovering over the project, Monterey City Manager Hans Uslar in a Jan. 15 letter to David Stoldt, the general manager of the water district, made clear Monterey would not be willing or able to provide such legal protection.
“The (water district) has requested that the city sign an agreement which will hold the city and the affordable housing developer responsible for any potential legal costs as the result of the decision made by (the water district),” Uslar wrote to Stoldt. “I have to decline the request to indemnify and defend the (water district).”
Uslar went on to note that during the May 2020 meeting an attorney with the water board was aware of the proposal and in fact was listening in to the May meeting when the district said OK to allocating the water.
“Therefore, it is more than likely that the legal staff of the state water board might initiate legal steps against our actions,” Uslar wrote. “The high cost to defend the water district cannot be carried by the taxpayers of the city of Monterey.”
In November the state water board’s Executive Director, Eileen Sobeck, issued a statement acknowledging the importance of affordable housing, but not at the stake of any further damage to the Carmel River.
“Affordable housing and economic development within the Monterey Peninsula area are important both to the local communities and to the State of California,” Sobeck wrote. “However, these shared goals cannot be achieved at the continued expenses of violations of state water law and degradation of the state’s natural resources held in public trust for all current and future Californians.”
Stoldt, who in May recommended denying the city’s request, saw the writing on the wall. Stoldt on Monday in an email reiterated his belief that the project would represent an increase in water use at the project site and decided it would be in violation of the cease-and-desist order.
“If an investment was made based on the district’s interpretation of its own rules, but the state disagreed with our interpretation and decided to enforce, we could get dragged into litigation,” he said Monday.
David Laredo, chief counsel for the water district, expressed similar concern about what the state water board might do.
“The state water board is not a paper tiger,” he said during the May meeting. “I think they would act.”
Steven Westhoff, an attorney in the Chief Counsel’s office at the state water board, said in an email interview Monday that his position is clear that if the city and the district went ahead with the water allocation it “would result in a violation of the State Water Board’s orders and conditions.”
He provided documentation that “Condition 2” of the cease-and-desist order prevents municipalities along the Peninsula to change zoning uses to existing water hookups. In his view, the city’s approval of a residential zoning overlay in 2019 that permitted residential use in areas that were zoned light industrial and commercial was in violation of the condition.
“A service address changing from non-residential to residential use is a straightforward example of a change in use in this context,” Westoff wrote in an email to the Herald Monday. He added that in the past he had raised these concerns in emails to the water district and the city.
Many see action by the California Legislature as the only way to break the impasse between housing requirements and water prohibitions.
“The city needs the help of elected leaders to break the impasse favorably toward affordable housing,” Uslar said.
Contributed by local news sources