This story begins back in 1995, when California American Water regularly drew about 14,100 acre-feet of water per year from the Carmel River to supply the households of about 100,000 people on the Monterey Peninsula. Then came the State Water Resources Control Board’s order 95-10, with the finding that Cal Am had a legal right to just 3,376 acre-feet of that water per year—and 23 years of legally fraught water supply drama has ensued.
After a series of failed proposals and extensions to the state’s deadline, Cal Am has been holding onto the promise of a desalination plant, proposed for north Marina, as the new way to supply the region’s water, thereby replacing the water it pumps from the Carmel River and cutting back on that water to legal levels.
The desal plant faces its share of detractors, but Cal Am won a significant victory in the battle to secure approval for the plant on Monday, Aug. 13 with a proposed decision from a panel of three administrative law judges at the California Public Utilities Commission. In their proposed decision, judges Robert Haga, Gary Weatherford and Darcie Houck lay out why they believe Cal Am should be able to proceed.
The Aug. 13 proposed decision was the last day it could have been issued in order for the project come before the commission at its Sep. 13 meeting in Sacramento.
The proposed decision, clocking in at 223 pages, recommends approving the project as currently proposed—a 6.5 million-gallons-per-day plant with a cost cap of $279.1 million that would bring the Peninsula’s water supply portfolio to about 14,000 acre-feet. (Currently, the Peninsula only uses about 10,000 acre-feet.)
The judges also recommend rejecting alternatives. One is an offer from the Marina Coast Water District—which contends its own water supply will be hurt by Cal Am’s project—to sell Cal Am water in the coming years until a different project could come online. In their proposed decision, the judges also reject an expansion of the Pure Water Monterey recycled water project, which arguably could have met the region’s needs in the near future.
“The [PUC] is not persuaded we that we can rely upon [those] offers,” the proposed decision reads. “Projecting any future demand less than 14,000 acre-feet presents unreasonable risk without commensurate public benefit.”
The proposed decision, however, is largely devoid of specifics that would enumerate how the recommendation was reached.
The PUC’s proposed decision effectively punts the question of water rights to the courts, while also stating “Cal Am in all likelihood should have sufficient water rights to operate the [project].”
But it also makes clear establishing that water right is incumbent upon Cal Am, which “would need to be able to demonstrate that any withdrawal of [Salinas Valley] basin water that is not ocean water would not harm other existing basin water rights holders. There is no permit for such appropriate rights…”
The core of the issue comes down to just how much freshwater—and whose water—Cal Am’s slant wells would draw from underground. The desal plant would treat brackish water, and multiple players—from Marina Coast Water District, which uses wells to supply its service area, and the agriculture industry, which has water rights in the Salinas Valley basin—have a stake in the freshwater portion of that mix.
Marina Coast has ardently contended the project would decimate its freshwater supplies in the shallow dune aquifer, arguing that shallow aquifer is an essential bulwark against seawater intrusion into deeper aquifers. But the PUC’s proposed ruling is dismissive of that concern.
“The withdrawal of the freshwater component of the source water is not expected to cause harm or injury to existing legal water users,” it reads. “Furthermore, Cal Am proposes to return desalinated water product water into the basin in the amount of the freshwater molecules that originated in the basin that are included in the withdrawn brackish water, further ensuring that basin groundwater could be extracted without harm to existing lawful water uses.”
That assertion assumes that if the project harms Marina’s water supply, that returning the freshwater to nearby Castroville—which is where Cal Am proposes to return their freshwater—will mitigate the damage to Marina.
“That doesn’t even make sense,” says Marina Coast Water District General Manager Keith Van Der Maaten. “There are so many things in here that are inconsistent…They never even looked at impacts to water quality once in their EIR.”
Nonetheless, the proposed decision comes as no surprise to Van Der Maaten.
“We expected the PUC would fall in line with what Cal Am is telling them,” he says, adding that Marina Coast’s analysis of water quality impacts were disregarded. “There wasn’t any other information that made its way into the proposed decision. I wouldn’t call it a balanced review or even a thorough review.”
The proposed decision is equally dismissive of the possibility of expanding the Pure Water Monterey recycled water project, which has been viewed as a potential bridge for the Peninsula’s water supply until a less controversial—and less expensive—desal project comes to the fore.
“The [PUC] cannot rely upon the concept of potential expansion of the [Pure Water Monterey] project absent more concrete and specific information,” the proposed decision contends. “Even if completed, PWM expansion…will not provide sufficient supply flexibility to meet most peak demands.”
That came as news to Dave Stoldt, general manager of the Monterey Peninsula Water Management District who, along with Monterey One Water General Manager Paul Sciuto, has been spending the past several months to prove the feasibility of the expansion.
“This could basically kill a Pure Water Monterey expansion,” Stoldt says, adding that the bureaucratic hurdles of such an expansion, if the proposed decision is adopted, become far more difficult to overcome.
As for the PUC’s assertion about its feasibility, Stoldt says, “Do we go through, point by point, and say no you’re wrong, you don’t need to build a project today to have water 20 years from now?”
He says the PUC “bought into the argument that the long-term demand of the Peninsula has to be met with at this time with this project no matter what,” and disregards the potential delays caused by litigation.
And if the PUC adopts the proposed decision and the project is delayed by litigation, Stoldt says that gives Cal Am the argument to the state water board—which issued a cease-and-desist order to Cal Am to reduce its Carmel River pumping to its legal right—that not meeting the milestones of the order is beyond the company’s control. It would also, so far as the project is concerned, wash the PUC’s hands of the matter.
“At the end of the day,” Stoldt says, “[the PUC] might have looked at this and said, ‘Good god, we’re sick of you people.’”
The company’s proposal calls for building the plant starting in the second half of 2019, and expect to have it operational by the end of 2021. But given the legal technicalities—and remaining questions about whether it would do harm to Marina’s supply, and infringe on agricultural players’ water rights—the proposed decision will likely be picked apart in court.
The stakeholders can’t agree on even the most basic facts, starting with a projection for how much water Cal Am customers are likely to use, and how much water can be made available by sources other than desal, from projects like recycled water from Monterey One Water’s Pure Water Monterey project.
As to the question of water rights, the PUC’s interpretation relies on the findings of a Hydrologic Working Group and analysis in the environmental impact report that shows because the plant would not draw freshwater—but instead would draw brackish water, which itself isn’t useful for end users, like municipalities or growers—there’s no problem.
“Such brackish water is not useful and usable in its current state,” the proposed decision states. “Thus, the withdrawal of the freshwater component of the source water is not expected to cause harm or injury to existing legal water users.”
Norm Groot, executive director of the Monterey County Farm Bureau, is pleased to see the project move forward with this proposed decision, and notes that the water rights analysis is in keeping with where the ag community has largely found consensus. “[The findings] all lead to a conclusion that it will not harm the water rights of the Salinas Valley Groundwater Basin users, and [the project] could potentially help the saltwater intrusion in that area,” Groot says.
“We’ve been at it for six-and-a-half years. We’re finally at a sigh of relief where a proposed decision is out. Not everyone will like it, but at least we’re at a place where everyone can look at a proposed decision.”
Meanwhile, voters in Cal Am’s service area will decide on Measure J come Election Day this November. The measure, authored by public water advocates, would direct the Monterey Peninsula Water Management District to conduct a feasibility study of a public takeover of Cal Am’s system, and if it’s found feasible, move forward with eminent domain.