Groups hope oil spill will help halt desalination plant

Environmental groups engaged in a yearslong fight to stop the development of a seawater desalination project near Huntington Beach say they hope the offshore oil spill that fouled the nearby coastline will cause the California Coastal Commission to withhold the company's construction permit.

"Huntington Beach has already been hit so badly," said Sean Bothwell, senior staff attorney with California CoastKeeper, which accused the California Regional Water Quality Board in Alameda County Superior Court last month of approving the project set to begin operations in 2023 without adequate environmental review. "I think the Coastal Commission has already been suspect of this project, and Poseidon is going to have a hard time convincing them due to a variety of issues, from the rising sea levels, earthquake faults and more." California CoastKeeper v. California Regional Water Quality Control Board, Santa Ana, RG21113898 (Ala. Super. Ct., filed Sept. 27, 2021).

Poseidon Water Co., which already operates a desalination plant in Carlsbad in San Diego County, rejects any comparison between the oil pipeline and its operations, saying it is dedicated to maintaining a clean coastline.

"The current oil spill, and any future oil spill, are unlikely to impact the plant, and we have every interest in maintaining the health and safety of the coastal ecology and marine environment," company Vice President Scott Maloni said in a statement.

Regulators raised concerns that Poseidon has had difficulty cleaning the Carlsbad water intake system.

In a letter to the Coastal Commission last month, Maloni wrote that Poseidon's proposed seawater intake would be offshore, with deeper water and different oceanographic conditions than. This would also limit the effects of algae, aquatic weeds and barnacles, which could corrode infrastructure and pipes.

"If the commission approves a viable permit, not one with conditions that render the facility infeasible, desalination can be a huge part of the state's future water supply. If not, Carlsbad, which has been producing 80 plus billions of gallons of drinking water each month since 2015, will become an anomaly," Maloni wrote.

As part of the project, the company has pledged to restore nearby wetlands and build an artificial reef.

The proposed plant -- which has been on the drawing board for two decades -- is meant to provide 50 million gallons of potable water per day. Environmentalists have tried repeatedly to kill the project. But the Regional Water Quality Control Board and the California State Lands Commission cleared it. In April, the 3rd District Court of Appeal refused to block the lands commission's 2017 approval of an amended lease of the plant site, one of the last hurdles.

Bothwell said he believes lawsuits filed over the oil spill will cause the Coastal Commission to take a harder look at the Poseidon project. A slew of lawsuits -- representing classes of homeowners and businesses -- have been filed against Amplify Energy and its subsidiary that operated the pipeline 5 miles off Huntington Beach. Federal officials said they believe a dragging anchor from a cargo ship punctured the pipeline, spilling 25,000 gallons of crude oil.

Even if the Coastal Commission were to deny the permit, Poseidon might have a workaround. There is a ballot initiative, the Water Infrastructure Funding Act of 2022, which proposes to allocate 2% of the state's general fund each year to investments in sustainable water supply and to pay for groundwater storage, water recycling and desalination. If the initiative passes, it would give the California Natural Resources Agency the power to overturn the Coastal Commission's actions and it would provide funding to fight lawsuits that seek to stop water projects.

Lori A. Dolqueist, a partner at Nossaman LLP who represents water companies and utilities in regulatory matters, said desalination must be a part of California's water supply portfolio, given challenges from climate change and severe drought.

"The supply of water from desalination projects has no impact on the drought because it takes ocean water and is not reliant on precipitation like rainwater, or melting snow, which are affected by drought," Dolqueist said.

John P. Erskine, another Nossaman partner and co-chair of the firm's statewide coastal law practice, agreed the oil spill would influence regulators' thinking about the Poseidon permit. But he said any discussion should include Poseidon's ability to shut off intake pipes in the event of another spill.

"We do need alternative sources of water, and the project is well thought out. Can we conserve enough water so that we don't need to desalt as an alternative?" Erskine said. "You can only conserve so much before you affect people's lifestyles."

Nossaman represented Poseidon in its permit process before the City of Huntington Beach. The Coastal Commission is expected to consider the construction permit in 2022.