The Municipal Water District of Orange County canceled a planned closed-door talk last week about a controversial desalination project after a journalist and an activist raised concerns about the meeting’s legality.
Directors at the district, which provides imported water to the vast majority of Orange County cities, planned to discuss the proposed project by Poseidon Resources in closed session last Tuesday under the real estate exemption to the Ralph M. Brown Act, the state’s open-meetings law.
But the agency scrapped the plans after John Earl, a reporter for Surf City Voice, and Merle Moshiri, an anti-desalination activist, questioned the legality of holding the discussion in secret.
“Your plans for tomorrow’s meeting rather shoots in the foot your proclamations of wanting to do a better job of being open and transparent with the public,” Moshiri wrote in an email to Kevin Hunt, MWDOC’s general manager.
Earl also raised the issue in a phone interview with Hunt the previous evening.
The closed meeting was scheduled to include a discussion of “property interests in water produced by Poseidon” at its proposed Huntington Beach facility.
But that falls outside the legally allowed topics for discussion under that exception, according to an attorney considered the foremost expert on the state open-meetings law.
“Water as a traded commodity is not eligible for consideration” under the real property exemption, said Terry Francke, general counsel to the First Amendment advocacy group Californians Aware.
“If you’re talking about a public agency buying or selling water,” he added, “then that’s not an interest in real property.”
The proposed Poseidon project would convert each day up to 126 million gallons of seawater into 50 million gallons of drinking water and sell it to local water providers. It’s still awaiting approval on a state permit and appeals on two others.
The project has attracted fierce opposition from environmentalists, who say the facility would kill many sea creatures and consume large amounts of energy.
The company behind the project counters that marine life impacts would be minimal and that the plant would create thousands of local jobs and a reliable local water source for import-dependent South Orange County.
Hunt has not gone so far as to acknowledge that the meeting would be illegal, but by late Monday morning the Poseidon item was off the agenda.
He acknowledged that it was “my mistake” to put the item on the agenda and said to Earl: “Let’s just say it was getting the cart ahead of the horse.”
However, Hunt did not rule out the possibility that the issue would be placed on a future closed-session agenda.
If that should happen, the agency would almost certainly come under fire from members of the public. During the public comments portion of last week’s meeting, project opponents called out the board for attempting to discuss the project in secret.
“It feels as if you’re trying to find what the legal limits are for avoiding public transparency,” said Joe Geever, water programs manager for the Surfrider Foundation, in his comments to the board. “I would urge you to lean the other direction, to be as open and transparent and involve the public as much as possible from the beginning.”
“If you are not able to identify a parcel of land for which you are negotiating, then any meeting in closed session will be illegal,” said Debbie Cook, an attorney and former Huntington Beach mayor who opposes the project.
— NICK GERDA
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