Desal Plant Would Violate County Law, But Cal Am Sees No Problem
April 24, 2012
California American Water's new water supply proposal makes a few tweaks that might let them get around some of the thorny issues that plagued the washed-up Regional Desalination Project. But it relies on one big assumption: The county's ordinance prohibiting private ownership of desalination plants is bogus.
"Our position is that we think we can overturn this obstacle," says Cal Am spokeswoman Catherine Bowie. "We're working with the county."
After news broke Monday afternoon of Cal Am's proposal to build a smaller desal plant, expand the current Aquifer Storage and Recovery program and purchase water from the Groundwater Replenishment Project, Cal Am President Rob MacLean presented the details to representatives of the six Peninsula cities at Monterey City Hall last night.
The mayors created the Monterey Peninsula Regional Water Authority in hopes of having a governing role going forward. But in the hour-long presentation and Q&A with MacLean, no one raised the question of how Cal Am plans to go it alone when it comes to building a desal plant.
Cal Am, however, has gotten a legal opinion from the California Public Utilities Commission indicating the county ordinance shouldn't block the company from proceeding without a public partner.
An April 12 letter from PUC General Counsel Frank Lindh addressed to County Counsel Charles McKee says the county ordinance is at odds with state law, and therefore superseded.
"Local ordinances such as [the Monterey County ordinance] are preempted to the extent they interfere with this Commission's statewide regulation of water utilities," Lindh wrote.
He attached a 2003 Board of Supervisors report prepared by former Monterey County Water Resources Agency General Manager Curtis Weeks on an earlier water supply proposal, which includes an attached memo by McKee's predecessor, then-Acting County Counsel David Nawi, addressed to the Board of Supervisors which came to the nearly the same legal conclusion.
Cal Am's also faced with a decision by Monterey County Superior Court Judge Lydia Villarreal that found the wrong agency had prepared the environmental impact report required by state law for a project of this scale. MacLean said the company plans to keep that document and supplement it, rather than starting from scratch. "We believe that the PUC would be the lead agency, and the original EIR is still adequate and enforced," he said.
In her decision, Villarreal indicated the EIR should've taken water rights into account, as the intake wells for saltwater would have drawn from agricultural lands. Cal Am's new proposal, filed yesterday with the PUC, essentially shrinks the desal project and moves it a little bit north.
Bowie says Cal Am isn't commenting on property negotiations. But in the PUC proposal, Cal Am lists its "preferred site" for easements for intake wells as a 377-acre coastal property owned by Cemex, Inc. They'd be drawing seawater from the mining/quarry site, rather than ag land.
The location of desal plant itself is harder to pinpoint, but an aerial map and description in Cal Am's proposal puts it north of Charles Benson Road east of Highway 1 (Cal Am's map pictured, above.) The proposal indicates Cal Am is seeking a long-term lease or purchase of a 46-acre site.
An examination of Monterey County Assessor's maps shows the desired property is a vacant industrial site owned by Bud Antle, Inc., a wholly owned subsidiary of Dole. (Bud Antle, Inc. was acquired by Dole in 1978, even before Tanimura & Antle came to be.) As Squid first reported April 5, Monterey County Water Resources Agency board chair David Hart recused himself from any Cal Am-related votes because his employer, Dole, is in negotiations with Cal Am (a potential conflict of interest).
Location and legal obstacles aside, MacLean is poised to move forward with a Cal Am-owned desal plant. The mayors peppered him with questions about other seemingly viable proposals for desal plants, including Brent Constantz's DeepWater Desal and Nader Agha's The People's Project, which recently won support from the city of Pacific Grove as a public agency partner.
MacLean said those competitors should step up their game if they're serious. "The train has already left the station," he said. "For those competing projects, they would need to come in and demonstrate the costs, the scheduling, the permitting and prove it out at the PUC."
If the PUC directed Cal Am to purchase water from another desal provider (such as a city of Pacific Grove-People's Project partnership), he added, the company would comply.
For more on the long history of Monterey Peninsula's water troubles, visit www.mcweekly.com/desal.