Judge Won’t Halt Desal Plant

An injunction against California American Water’s pilot desalination project at Moss Landing was denied by Superior Court Judge Robert O’Farrell early Thursday.

Monterey Peninsula residents George Riley and Manuel Fierro sought to halt further development of the pilot plant until the suit they filed in January against it can be decided. The suit contends the plant’s authorization is at odds with a 1989 county law that requires public ownership of water desalination facilities.

O’Farrell heeded pleas by attorneys for Monterey County, the state of California and Cal Am, who challenged the request for a court injunction that would have vacated permits for the plant issued by the county and the state Coastal Commission until the suit was adjudicated.

The request for an injunction contended that the Coastal Commission, not the county, had jurisdiction as the final permitting authority. It also contended no evidence was presented of immediate environmental harm from the project and that the county ordinance covered plants producing water for human consumption, not an experimental test plant.

Riley and Fierro were represented in court by attorneys Robert Rosenthal and Barbara May.

May said the clear intent of the supervisors in 1989 was to assure public ownership of desalination plants and cited a decision in January by the U.S. Court of Appeal that ruled the Environmental Protection Agency cannot allow power plants to kill fish through their cooling water intakes.

Cal Am’s proposed pilot plant would use Moss Landing Power Plant’s cooling water intake and outfall system as its water source.

Attorney Pat Breen, representing the water company, argued that no evidence of environmental harm had been presented to qualify the plaintiffs’ demand for an injunction as an urgent matter for the public good. The pilot plant, he said, "is not drawing water from the ocean, but using water that’s already been taken by the power plant."

The pilot plant is a one-year project and its water will be used for test purposes only, Breen said.

Rosenthal said he would confer with his clients about the possibility of appealing the ruling or waiting until Cal Am applies for a county permit to build its proposed regional desalination plant, and then challenge that action.

At that point, he said, the county ordinance would come into play.

That legislation, the first such ordinance in the state, came in response to improvements in water desalination technology, fears of a diminishing water supply and a flurry of proposals for desalination plants to serve particular development projects and, in one case, a private homeowner.

"The county’s position is that it issued the permit because there is no guarantee there would be a permanent project," Rosenthal said. "My guess is that the county will seek to amend the environmental health ordinance prior to issuing that permit."

At a hearing in March before the county Board of Supervisors, county Environmental Health Director Allen Stroh described desalination as "a very complex area" and that the ordinance may need additional study.

The supervisors approved the permit for Cal Am’s pilot seawater desalination plant at Moss Landing last August. In December, the state Coastal Commission approved a coastal development permit for the experimental desalination plant.

Cal Am is under the gun to find a new water source for its Monterey Peninsula service area customers.

In 1995, the state Water Resources Control Board advised Cal Am that it was taking 14,106 acre-feet per year from the Carmel River aquifer, 10,730 acre-feet more than the state allows. The water company has rights to only 3,376 acre-feet of water from that aquifer, but the state allowed Cal Am to continue drawing water over that amount to meet public needs until it can find a new source.

The river aquifer is the major source of water for the cities of Seaside, Sand City, Del Rey Oaks, Monterey, Pacific Grove and Carmel, as well as Carmel Valley, Pebble Beach and the Monterey Peninsula Airport District.

In addition to the Carmel River order, a court has ordered that producers of water from the Seaside basin aquifer, Sand City, Seaside, Cal-Am and others, reduce their pumping from the aquifer’s coastal subareas by 2,219 acre-feet and their pumping from the Laguna Seca Subarea by 381 acre-feet for a total reduction for the entire Seaside basin of 2,600 acre-feet by 2027.

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