March 7, 2014
Monterey Herald
Monterey, California

Judge's decision affects desal plans

By RON WEITZMAN
Guest commentary

A San Francisco Superior Court judge made a highly consequential ruling on Feb. 25 affecting the old Regional Desalination Project. Cal Am had filed suit requesting a ruling to invalidate three major agreements underlying the old project: the reimbursement, settlement and water purchase agreements.

The judge denied Cal Am's request. The denial means the three agreements are still in effect while Cal Am is pursuing a new water supply project and seeking the Public Utilities Commission's approval of an agreement between Cal Am and Monterey County that would subvert the judge's ruling.

The judge also ruled only Monterey County can challenge the three agreements, provided the challenge is based on the existence of a conflict of interest by at least one party involved in the development of the agreements.

What does that mean for ratepayers on the Monterey Peninsula?

In the first place, it means the old regional project is no longer dead - if it ever really died - and, that being the case, no new project to replace it is necessary. Here "necessary" is the operative word, because before a project can go forward, it must receive certification by the PUC that it is publicly convenient and necessary. That means, for now, the new project, rather than the old one, is dead.

That also means Monterey County may be able to resurrect the new project while reburying the old one by winning a ruling in court that the three agreements underlying the old project are invalid because of the existence of a conflict of interest in their development.

Almost two and one-half years ago, the Monterey County district attorney brought conflict-of-interest charges involving the old project against Stephen Collins. The charges were the putative basis for withdrawal of Cal Am and the county from the agreements underlying the old project.

Like any other defendant in the United States, Collins is innocent unless and until he is found guilty in a court of law. Because of the inexplicable and inexcusable assignment of five successive judges to his case, Collins has yet to go to trial.

That means for now, at least, no conflict of interest exists, along with no basis for the county to file suit.

If the county were to file suit, it would have to show that Collins gained or expected to gain financially from the agreements underlying the old project he helped to put together.

Whatever financial benefit Collins gained from the old project had nothing to do with these agreements. If anything, it had to do only with project-development work reimbursed by RMC Water and Environment that ended prior to the effective date of the settlement and water purchase agreements. The county would be unwise to go to court on this issue.

Meanwhile, the Monterey Peninsula is facing a water crisis unless a new supply of water comes online before Jan. 1, 2017. The old project is alive and could resolve our water problem if it had a legal source of water to desalinate. The Ag Land Trust successfully challenged its previously planned water supply in local court. That means for the old project to go forward in a timely manner, it would have to draw its water for desalination from an alternative source and, to avoid further legal challenge, that source would likely have to be at Moss Landing.

Perhaps the county should make an agreement with Nader Agha to draw the salty water and have the Marina Coast Water District build the desalination plant there. ASAP.

Ron Weitzman is president of WaterPlus in Carmel.

 

 

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