An Aquifer Betrayed: the Monterey Desalinization Project at Odds With California Water Law
| Jurisdiction | California,United States |
| Author | by Paul Stanton Kibel |
| Publication year | 2019 |
| Citation | Vol. 28 No. 2 |
by Paul Stanton Kibel*
Paul Stanton Kibel
The California American Water Company's Monterey Peninsula Water Supply Project (Cal-Am Project) is a proposed desalinization facility in Monterey County that was approved by the California Public Utilities Commission (CPUC) in September 2018.1 The Cal-Am Project would treat water pumped from inland coastal groundwater aquifers—the Dune Sand Aquifer and the 180-Foot Aquifer—rather than water pumped directly from the ocean. The Cal-Am Projet's pumping of these coastal aquifers is expected to result in increased seawater intrusion in groundwater.
The Marina Coast Water District and the City of Marina filed petitions with the California Supreme Court alleging violations of the California Environmental Quality Act (CEQA) in connection with the approval of the Cal-Am Project.2 Beyond the CEQA issues set forth in these petitions, there are three additional key California water law issues related to the Cal-Am Project: (a) whether the groundwater supply for the Cal-Am Project qualifies as "developed" water; (b) whether the seawater intrusion effects of the Cal-Am Project on coastal aquifer salinity violate California reasonable use law; and (c) whether the seawater intrusion effects of the Cal-Am Project conflict with California's Sustainable Groundwater Management Act (SGMA).
These three other California water law issues pertain to the CEQA violations alleged in the petitions filed with the California Supreme Court but focus on a more fundamental underlying concern—how to reconcile the provisions of California water law that protect the public interest in maintaining groundwater resources with the private interest in seeking to secure an inexpensive water supply to operate a desalination facility. This more fundamental concern is explored in this article.
In 1995, the State Water Resources Control Board (State Water Board) issued Order WR 95-103 and in 2009 the State Water Board issued Order WR 20090600.4 In its 1995 Order, the State Water Board determined that Cal-Am had been unlawfully diverting water from the Carmel River (in Monterey County) in excess of Cal-Am's surface water rights. More specifically, State Water Board Order WR 95-10 found that although Cal-Am had been diverting 10,730 acre-feet per year (AFY) from the Carmel River, Cal-Am only had a legal right to divert 3,376 AFY of Carmel River water. These excessive unlawful diversions by Cal-Am had damaged other beneficial uses of the Carmel River, including fisheries and the rights of other diverters.
In its 2009 Order, the State Water Board began to require mandatory annual reductions in Cal-Am's Carmel River withdrawals. State Water Board Order WR 95-10 and State Water Board Order WR 20090060 left Cal-Am with a shortfall to meet its water supply obligations. The Cal-Am Project was proposed to provide Cal-Am with a means to make up the shortfall resulting from State Water Board Order WR 05-10 and State Water Board Order WR 2009-0060.
B. 2013 State Water Board Report on Water Supply for Cal-Am ProjectAs the CPUC was beginning its review of the proposed Cal-Am Project, it requested that the State Water Board review Cal-Am's claim that it did not require traditional overlying or appropriative groundwater rights for the groundwater that would supply the desalination facility because this groundwater qualified as "developed" water" (or "salvaged" water) under California water law. There is some support in California water law that one may not need a traditional water right to withdraw water directly from the ocean because sea-water cannot be used as drinking or irrigation supply unless it is first desalinated.
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In its application to the CPUC for approval of the Cal-Am Project, Cal-Am suggested that because there was evidence of seawater intrusion in the coastal groundwater aquifers that would supply the proposed desalination facility, the water in these coastal ground-water aquifers should qualify as "developed" water not requiring a traditional groundwater right. Because the waters of a natural groundwater aquifer had never before been previously recognized as "developed" water in California, the CPUC asked for the State Water Board's view of Cal-Am's new theory.
In July 2013, the State Water Board issued a report titled Final Review of California American Water Company's Monterey Peninsula Water Supply Project (State Water Board 2013 Review).5 As explained below, the State Water Board 2013 Review of the Cal-Am Project's water supply claims was inconclusive. The State Water Board Review 2013 Review indicated the types of evidence that Cal-Am would need to prove its right to "developed" water, and clarified that Cal-Am bore the legal burden of proving such a "right." The State Water Board 2013 Review, however, then went on to conclude there was insufficient data and modeling to be able to determine whether the Cal-Am Project's water supply qualified as "developed" water.
In the State Water Board 2013 Review, under the "Legal Conclusions" heading, the report found: "To appropriate groundwater from the Basin, the burden is on Cal-Am to show their project will not cause injury to other users. Key factors will be: (1) how much fresh water Cal-Am extracts as a proportion of the total pumped amount (to determine the amount of water that, after treatment, would be considered desalinated sea-water available for export as developed water) . . . (3) whether pumping affects seawater intrusion within the Basin . . . and (5) how groundwater rights might be affected in the future if the proportion of fresh and sea-water changes in the larger Basin area or the immediate area around Cal-Am's wells."6
Under the "Recommendations" section State Water Board 2013 Review determined: "Additional information is needed to accurately determine MPSWP impacts on current and future conditions of the Basin . . . updated groundwater modeling is needed to evaluate future impacts from the MPWSP. Specifically, modeling scenarios are necessary to predict changes . . . in the extent and boundary of the seawater intrusion front . . . The studies will form the basis for a plan that avoids injury to other groundwater users and protects beneficial uses in the Basin."7
The absence of sufficient data and modeling to be able to evaluate Cal-Am's "developed" water theory was highlighted in other sections of the State Water Board 2013 Review. For instance, page 5 of the study states: "Information provided to the State Water Board does not allow staff to definitively address the issue of how the proposed project would affect water rights in the Basin."8
The State Water Board 2013 Review also found that existing data and modeling suggested the groundwater pumping anticipated by the Cal-Am Project was likely to increase seawater intrusion in the coastal groundwa-ter aquifers where such pumping was to occur: "Within the zone of influence of the MPWSP extraction wells, seawater would be drawn into the aquifers from the seaward direction, and brackish water from within the seawater intruded portion of the aquifers would also be drawn toward the extraction well system . . . Based on our current understanding of the groundwater system, a greater volume of seawater, relative to brackish water, would be drawn into the extraction well system."9
The State Water Board 2013 Review went on to conclude: "Cal-Am needs no groundwater right or other water right to extract seawater from Monterey Bay. Based on the information provided, however, the proposed MPWSP could extract some fresh water from within the Basin. An appropriative groundwater right is needed to extract water from the Basin for use outside the parcel where the wells are located. To appropriate groundwater from the Basin, Cal-Am will have to demonstrate that the MPWSP will develop a new source of water that is surplus to the needs of groundwater users in the Basin and that operating the Project will not result in injury to other users. This includes showing that the Project will not adversely affect the seawater intrusion front."10
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