Lawsuit Challenges Desal Plant Approval: Suit Contends OK at Odds With 1989 Law
By Larry Parsons, The Monterey County Herald, Calif.
Jan. 12–Two Monterey Peninsula advocates of publicly owned water service have gone to court to challenge permits for California American Water’s experimental desalination plant at Moss Landing.
George Riley and Manual Fierro filed suit Thursday in Monterey County Superior Court seeking to overturn permits granted by Monterey County and the state Coastal Commission for the Cal Am pilot desalination plant.
The suit contends the plant’s authorization is at odds with a 1989 county law that requires public ownership of water desalination facilities.
Back then, county supervisors passed the ordinance during a low-rainfall period amid rising concerns about Cal Am’s pumping from the Carmel River aquifer. Cal Am subsequently was hit with a 1995 state order directing the private water utility to sharply reduce its take from the Carmel River aquifer.
“It’s been on the books for… years and they chose to ignore it,” said Robert Rosenthal, a Monterey attorney representing Riley and Fierro. “We want to know whether choosing to ignore it was proper.”
Cal Am gained permission in November from the state Coastal Commission, despite coastal staff opposition, to build the 6,500-square-foot pilot desalination plant at the Moss Landing Power Plant.
The company is exploring whether to build a full-size desalination plant that would allow it to comply with the order to reduce Carmel River pumping.
In August, the county Board of Supervisors approved the pilot desalination plant after a determination by county environmental health officials that the pilot plant wouldn’t provide water to the public and, therefore, wasn’t subject to the public ownership rule.
The Pajaro-Sunny Mesa Community Services District, which is in the hunt to build a regional desalination plant, is seeking Coastal Commission approval for a test plant at the former National Refractories industrial complex in Moss Landing.
“We’re waiting for a hearing in front of the Coastal Commission,” said Marc Del Piero, attorney for the community services district, who was a county supervisor in 1989.
Del Piero declined comment Thursday on the suit challenging Cal Am’s pilot-plant permits.
“We are not involved in the lawsuit. I’ve got no comment,” he said.
Rosenthal said county officials maintain the public ownership section of the 1989 law is ambiguous and doesn’t apply to the pilot plant. The county is readying possible changes to the ordinance, he said.
“I will be curious to see how the public responds to the same body that has been critical of Cal Am, ignoring its own ordinance,” he said.
It’s clear the Cal Am’s pilot plant is setting the stage for a Cal Am-owned desalination plant, Rosenthal said.
“They hope to see the ordinance repealed,” he said. “It doesn’t take a genius to see what they are doing.”
A Cal Am spokeswoman said she hadn’t seen the suit and couldn’t comment.
The suit alleges the county and state failed to adequately address environmental impacts of the pilot plant. The plant will draw seawater from the power plant cooling system, treat it and return it to the cooling system for ocean discharge.
County Counsel Charles McKee declined to comment on the suit. McKee said the 1989 law is ambiguous because it talks about non-public entities seeking permission for desalination facilities while seemingly requiring public ownership of the facilities.
“The ordinance is arguable,” he said. Several years ago, he said, a previous county counsel recommended changing the law to eliminate inconsistencies, he said.
The Board of Supervisors will soon consider changes in the law to clarify the ordinance. Keeping the public ownership requirement is an option, McKee said.
The state Public Utilities Commission, which regulates Cal Am and other utilities, “has its own authority that may trump or preempt the county ordinance,” McKee said.
The county clearly has jurisdiction over land-use and environmental issues, but regulating ownership of desalination facilities may run afoul of PUC authority, he said.
Riley was treasurer for a campaign committee backing a November 2005 ballot measure to finance a $500,000 study about establishing public water service on the the Monterey Peninsula. Voters in the Monterey Peninsula Water Management District rejected the measure.
Larry Parsons can be reached at 646-4379 or lparsons@montereyherald.com.
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Copyright (c) 2007, The Monterey County Herald, Calif.
Distributed by McClatchy-Tribune Business News.
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