One water company, its supporters and a host of environmental activists have traded fire for two decades over seemingly every aspect of a seawater desalination plant proposed to go on the Huntington Beach coastline.

That fight could soon see some type of conclusion when the Poseidon Water Co.’s proposed desalting facility goes before California Coastal Commissioners either later this year or in 2022, for a decisive vote on whether to grant the project its needed permit. 

And regulators have signaled that the Orange County oil spill this month may reframe that debate.

Namely, staff at the commission have raised concerns about the proposed facility if another spill happens, as Poseidon proposes to suck in 100 million gallons of seawater daily, desalt half of it, and discharge the remaining saltier, concentrated wastewater back into the local coastline.

Meanwhile, Poseidon has raised another issue to fight regulators on as the company’s proposal enters what may be the last lap.

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In late September, the company said in writing that it won’t pay state regulators the required $326,623 fee as part of Poseidon’s application to the Coastal Commission for its needed project permit. 

At least not until Coastal Commission staff members draft a permit for the project, and recommend its approval to commissioners, in a way that Poseidon is agreeable to beforehand. 

Critics say it’s an attempt to bargain with the Coastal Commission, which some see as Poseidon’s tallest hurdle in getting the plant built, and a maneuver to all but ensure the project passes — one which could set a dangerous regulatory precedent for future contested projects. 

Poseidon executives, however, say they’re simply trying to avoid paying such fees only to have the application withdrawn over issues which can be clarified with regulatory staff in advance, and that Coastal Commissioners could still ignore their staff’s recommendation.  

Whatever decision commissioners make would cap 20 years of debate over the project’s potential privatization of an essential resource, the human right to water, climate change’s threats to regional water supply and the plant’s environmental damage.

The decision would also come after many lawsuits and millions of dollars in lobbying.

Such lobbying, critics say, even prompted Gov. Gavin Newsom to replace one vocal Poseidon critic from the Santa Ana water board before the panel’s decision on a permit for the project, in favor of a board member who ended up advocating for less regulation over the project.

Poseidon made its recent permit fee request to state regulators in a Sept. 20 letter.

The Coastal Commission, in turn, said that’s not how things work. 

The Poseidon desalination plant would sit next to the AES generating station in the south end of the city’s coast. Credit: JULIE LEOPO, Voice of OC

“As you know, the Commission’s process does not work that way,” reads an Oct. 7 response letter to Poseidon from the Coastal Commission’s Senior Environmental Scientist Tom Luster. “Application fees may not be withheld until such time that an applicant obtains a draft recommendation and hearing date that it finds satisfactory.”

Luster’s letter also states: 

“Application filing fees reimburse the Commission for expenses of processing permit applications, and here, the Commission has already spent many hundreds of hours preparing for and processing your current application.” 

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Poseidon Vice President Scott Maloni, in a Tuesday phone interview about his company’s request, said a “clock starts ticking” once that required application fee is paid. 

“In the past, what has happened is we have not been afforded the opportunity to know what Coastal Commission staff is recommending until the staff report is published, which could come as late as 10 days before the hearing,” he said.  

It would be the third time Poseidon has paid an application fee for the proposed project, the company wrote in its letter to the commission, “including most recently in 2015 after which point Commission staff requested that Poseidon withdraw its CDP application and then denied our request for reimbursement of the substantial application fee paid.”

To avoid a situation “where we may disagree with staff’s proposed conditions of approval, before we submit the application fee and deem this application complete and ready for a hearing, we should sit down and understand what conditions they may recommend,” Maloni said. 

He added that such a request wouldn’t be unprecedented. Asked later over text message whether Poseidon could point to specific instances of the commission granting such requests historically, Maloni wrote back: 

“My point was there’s nothing preventing the Coastal Commission staff from sharing with us the conditions of approval that they would be recommending.”

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One project critic, Susan Jordan, who’s the executive director for the California Coastal Protection Network, called Poseidon’s permit fee request “arrogance at its worst.”

Jordan said in a Wednesday phone interview she’s never seen such a request “in my 25 years of appearing in front of the Coastal Commission.”

“Staff has not ever operated that way to my knowledge and it’s another one of those aspects where you see Poseidon acting like the law doesn’t apply to them,” Jordan added. “You go through the required process like everyone else.”

Maloni disputed that his company’s request is in any way improper: “There’s no guarantee the project will be approved. That’s a discretionary action by the commission itself.” 

“The staff could recommend approval of the project permit with all conditions acceptable to Poseidon, but the commission could still vote to deny it, that’s at their discretion,” he said.

Oil Spill Comes Into Play

Oil found along the coast of Huntington Beach on Oct. 3, 2021, the third day of the oil spill.

An offshore pipeline leak which spilled thousands of gallons of oil onto sensitive coastal habitats and beaches along Orange County’s shores may recontextualize the issue, just as regulators prepare to consider Poseidon’s proposal at the state level.

“Finally, in light of the current oil spill offshore of Orange County, it would be helpful if you could provide any information on how Poseidon would respond to a future oil spill that could affect the proposed open ocean intake,” Luster, of the Coastal Commission, wrote in his Oct. 7 letter to Poseidon. 

Jordan said “it’s a terrible thing that this spill happened, but it also shows the vulnerability of certain facilities, including one which intends to take salt water directly from the ocean.”

Maloni, during the Tuesday interview, said the recent disaster “doesn’t change our perspective on the project, the need for the project, or the location.”

If anything, he said, approving the project means there would be one more stakeholder on that area of the coast committed to ensuring its main resource is protected. 

“We think the location is still a viable one, and the quality of the Pacific Ocean water is important to us, making sure there is no man-made pollution that affects our ability to turn saltwater into drinking water,” Maloni said.

He added: “By virtue of the plant coming in online, if it does, you’ll have another steward or advocate to make sure there is not another oil spill. You’ll have someone who is financially invested in making sure there is no manmade pollution.”

On top of that, Maloni said, “we’ll have conditions in our permit we have to monitor, so you’ll have another canary in the coal mine, if you will, that if we’re aware of an oil spill, we’ll have to report it and act in kind.”

Jordan, however, worries what happens should oil breach these drinking water production facilities: “We believe Poseidon needs to have a plan on how they intend to address potential impacts to water quality.” 

“I’m not as concerned about protecting their investment as I am concerned about what happens to the water, does it get delivered, can they treat it, and will it be safe.”

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