Judge voids Monterey County approval of Cal Am desal plant project

Peninsula Premier Admin

A Monterey County Superior Court judge has set aside the county’s approval of California American Water’s desalination plant project over its rationale for why the project’s benefits would outweigh environmental impacts in a lawsuit brought by the Marina Coast Water District.

At the same time, the judge rejected a bid by Marina Coast to require the county to conduct additional environmental review for the project as a result of new information and changed circumstances, and also dismissed Marina Coast’s contention that the county violated its own general plan, its desal public ownership requirement and its since expired moratorium on new wells with the approval.

The judge also lifted a stay on the desal plant construction, which she had put in place pending a state Coastal Commission decision on Cal Am’s appeal of the Marina city denial of a permit for the desal project’s feeder wells, which has been subject to several delays and is still pending.

Last week, Judge Lydia Villarreal ruled that the county erred in adopting a statement of overriding considerations as part of its project approval that she said wasn’t adequate, and that the county’s approval should be rescinded “so the county can comply with (California Environmental Quality Act) requirements” for such a statement.

Villarreal wrote that the county’s statement was “unsupported by substantial evidence and otherwise failed to apprise the public of the consequences of and the reasoning of its decision,” which she said was at the core of the California Environmental Quality Act.

In 2019, a split Board of Supervisors approved the desal plant project by a narrow 3-2 margin, denying an appeal of the county Planning Commission’s approval of the proposal by a 6-4 vote.

Marina Coast board Chairwoman Jan Shriner and Vice-Chair Tom Moore did not immediately respond to a request for comment from The Herald, but in a Herald op-ed earlier this week Shriner called the ruling a “big win,” noting the judge wrote as part of the ruling that the county “seemed to defy logic and common sense” when it approved the desal plant project without an approved feeder water source.

County Counsel Les Girard said the county was “obviously pleased with the majority of the decision” because the court ruled for the county and Cal Am on “almost every issue,” while adding that county officials are still assessing the ruling. Girard said the county and Cal Am are “still considering various options.”

Cal Am spokeswoman Catherine Stedman argued that the court “soundly rejected all but one” of Marina Coast’s claims, and only ruled in the district’s favor on “a single, technical issue,” while noting this is the first time the district has prevailed in any of its five lawsuits challenging the desal project.

In her ruling, the judge found that the county’s statement of overriding considerations was overly predicated on the desal project’s water-related benefits, specifically its proposal to provide a replacement water supply for the Monterey Peninsula sufficient to offset the state water board’s Carmel River aquifer pumping cutback order set to take full effect at the end of this year.

The county’s statement failed to properly justify its rationale that the desal plant would still provide an adequate benefit as a result of construction jobs and other local and regional economic boosts to offset environmental impacts even if no feeder water source were available and the plant remained inactive, the judge ruled, noting that it was clear when the county approved the statement and the project that the feeder water source was “uncertain and speculative.”

Villarreal noted that the California Public Utilities Commission, which was the lead agency on the project’s environmental impact report, had stated that any and all of the desal project’s benefits would override environmental impacts, but the county had not.

The judge wrote that the county’s findings and conclusions were “problematic and not supported by substantial evidence,” and said the court was “troubled” that the county had not acknowledged the uncertainty of the feeder water source and made it clear for the public that it was approving a project that could end up “markedly different” than the one approved by the CPUC that without feeder water would be a “non-functional” desal plant with none of the water-related benefits that could “sit idle, be re-purposed, or be removed.”

Meanwhile, the judge ruled that the uncertainty of the feeder water source was not a change of circumstance that would require additional environmental review, noting that Cal Am’s appeal of Marina city’s denial of a feeder well field permit is still pending. She wrote that she agreed with Marina Coast that it didn’t make sense to pursue the desal plant permit without feeder water but that did not trigger a need for additional review, and later noted that the court disagreed with the notion that Cal Am is required to secure a feeder water source before the desal plant permit.

Villarreal also rejected the argument that the Pure Water Monterey expansion project should be considered as a viable alternative in a subsequent environmental review because new information had emerged suggesting the proposal was feasible and would provide an adequate water supply for the Peninsula, writing that Marina Coast had failed to provide adequate support for that argument.

The judge also rejected the district’s arguments that new groundwater impacts, and potential mitigations and project alternatives, justified additional environmental review.

And she dismissed the district’s argument that the county had violated its general plan’s requirement that projects be required to provide a long-term, sustainable water supply by pointing out that county officials had exempted the desal plant project from that requirement because it would provide “critical or necessary” services to the public. And the judge noted the CPUC had declared its authority trumped the county’s on desal project ownership, and the county’s well moratorium had expired last year.

The desal plant project appeal was supposed to be considered by the Coastal Commission in November 2019 along with a series of other desal project permits, but the commission postponed a decision until last summer when Cal Am abruptly withdrew its permit bid and submitted a revised application several weeks later. Commission staff have notified Cal Am its application is incomplete and requested more information, which could postpone the permit bid and the accompanying appeal for months.

Contributed by local news sources

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