Protecting water consumers’ health and safety The Monterey County Board of Supervisors adopted that ordinance for a reason

Monterey Bay | Photo by Joe Livernois


By Marc Del Piero

I have been receiving numerous calls from worried residents of Monterey County about the current Board of Supervisors’ proposed elimination of the health and safety protection ordinance that requires public ownership of desalination plants. 

This wrong-headed proposal to dismantle public protections of our water supply will be discussed Tuesday by the Board of Supervisors.

The 1989 ordinance was adopted unanimously by the Monterey County Board of Supervisors. It was adopted to protect the public’s health and safety from polluted water supplied by private parties. It was adopted to guarantee that any desalination plant was to be owned by a nonprofit public agency, would be operated without political favoritism or cronyism, would be independently regulated by the county Environmental Health Officer, and would guarantee supply redundancy. It would also comply with all public health codes, water rights laws and coastal zone regulations that were enacted to protect the public’s health and safety while protecting Monterey Bay from pollution from private outfall pipes. 

Contrary to the fictions being reported in the press, the 30-year-old ordinance was written by county attorneys working for County Counsel Ralph Kuchler, with substantial input from Environmental Health Officer Walter Wong and Supervisor Sam Karas of Monterey and me. 

I was the County Supervisor for North County, North Salinas and Marina when I was first elected. The contrived suggestion that the County Counsel’s attorneys wrote a poorly drafted, ambiguous ordinance is a fabrication initiated because certain private parties have a financial interest in trying to get the current board to eliminate the ordinance that has protected the public’s health and safety for more than three decades.

Those private parties want to exploit the groundwater resources of the county, even though the proposed private developers have no groundwater rights. 

The truth is that the 1989 ordinance was not written to favor someone’s political cronies or big campaign donors. The ordinance was drafted to protect the public. 

It was reviewed by multiple lawyers and public health professionals, publicly noticed, subjected to public hearing, and adopted by the Board of Supervisors unanimously. And contrary to the statements quoted in the press, we all had a very good command of the English language and of the meaning and the express intent of the ordinance. 

Moreover, not one representative from any of the private utilities — all of whom were attendance when the ordinance was approved —  objected to the language of the ordinance. Cal Am didn’t oppose it, and neither did Alco Water nor California Water. They knew that the action was initiated to protect the public’s health and safety.

Importantly, Cal Am has been lobbying the board to eliminate those public health and safety protections for more than a decade. Now a foreign company is doing the same thing.

The ordinance was adopted because the Board of Supervisors at the time was fed up with complaints from the public and with the bad acts and the failures of private water utilities, which were doing a bad job of protecting the public’s interests. 

More than 30 years later, Cal Am is still in direct violation of a “Cease and Desist Order” and Order 95-10 by the state Water Resources Control Board for its illegal activities on the Carmel River. Ten years after the adoption of the ordinance, Alco Water was sued by the Environmental Protection Agency and the state Health Department in federal court and was ordered to divest multiple systems because the court found that it was delivering polluted water to customers in Alisal and Moss Landing. 

The Board of Supervisors took its action in 1989 to protect the future health and safety of our residents from the privately owned utilities that were repeatedly violating California laws governing public health and the water rights of innocent property owners. 

The results of unlawful acts by private utilities led to a decade of actions by elected officials to “rein in” the illegal takings of water by those utilities. The Board of Supervisors’ actions were strengthened by a series of actions by other regulatory agencies that recognized the necessity of the ordinance. And all of those actions have continued to protect the health and safety of Monterey County residents while protecting the Monterey Bay and scarce local water resources. They were not produced by the unproven “snake oil” and “voodoo hydrology” scams that have been pitched over the years by foreign owned for-profit private companies and their hired public relations hucksters.

Now a supervisor seems to want to declare an “emergency,” breach the county’s well-documented fiduciary duties to overlying landowners and assessees, and give away the area’s groundwater resources to a billion-dollar foreign corporation that has no water rights of any kind. The excuse, apparently, “is because no public agency has stepped forward to build a de-sal plant.” 

This is almost embarrassing because the statutory responsibility and charge of the Board of Supervisors, as the governing board of the Monterey County Water Resources Agency, is to build and operate publicly owned water supply projects for the benefit of their constituents. Saying “nobody has stepped in and done our job for us” does not constitute an “emergency,” nor does it justify the recission of a protective 30-year-old health and safety ordinance for the benefit of a for-profit foreign corporation.

It is appropriate to point out that since no actual emergency exists, full and complete environmental impact reports must be prepared by Monterey County to fulfill state and federal law. And the EIRs must be written and approved before supervisors can even consider rescinding the ordinance.

“Rescinding the ordinance” is a “project” under the California Environmental Quality Act.  The CEQA doctrine — mandating the preparation of an EIR once the “whole of the project” has been identified — unequivocally applies in this case. 

One supervisor has stated publicly to the press that the proposed rescission of the ordinance is for the sole benefit of a single company. That company, Liberty Water, a Canadian corporation, wants to build a privately owned desalination plant that will pump groundwater to produce 30,000 acre feet of desalinated water without an identified outfall for the briny waste it will produce. Not surprisingly, its proposed disposal site is supposed to be a secret. Why is the board helping a private company that is keeping secrets from the public?

Additionally, rescinding the 1989 ordinance would adversely impact coastal groundwater resources, diminish protected coastal agricultural production, result in unmitigated loss of farm-related jobs, and cause unmitigated growth-inducing impacts directly affecting the conversion of protected prime North County coastal farmlands and protected coastal natural resources. It would also use massive amounts of energy from unidentified sources, cause massive potential soil and land displacement and subsidence (due to unlimited pumping) of residential and commercial properties in Moss Landing, diminish source water for unique freshwater seeps and their rare aquatic ecosystems on the walls of the Monterey Bay Marine Canyon, and illegally induce seawater intrusion into potable aquifers used for domestic consumption by economically impacted communities and farm labor housing. 

The action proposed to supervisors on Tuesday would also eliminate any regulatory control held by the county to protect its constituents in the event that unenforceable promises being made by Liberty’s “cheerleaders” prove to be empty and unkept. A full EIR must be prepared before the ordinance may be considered for rescission.

Lastly, Liberty’s proposed pumping of an additional 60,000 acre feet of groundwater from wells (to produce 30,000 acre feet of desalted water) will require the judicial adjudication of the Salinas Valley groundwater basin. Farm owners and property owners need to be notified of this and be allowed to read a full EIR that has completely evaluated this likely adverse consequence before supervisors can even start to consider the rescission.

The need for the existing ordinance requiring that desalination plants be publicly owned is greater now than it was in 1989. 

Turning over control of all future water supplies to a privately held foreign company — a company that would not be answerable to the County Environmental Health Officer — is as foolish as giving a monopoly to PG&E and wondering why your power is off in the middle of the day as you listen to a recorded voice on the company’s complaint line.

Board members should look at “Plan B.” It addresses the chance for the MCWRA to build a regional publicly owned desalination facility to serve two counties, Monterey and Santa Cruz. The board needs to dismiss the imbecilic and illegal private “quick fixes” that lack both legal and hydrogeologic gravitas and are wasting money. 

The Board of Supervisors must demonstrate the long-needed leadership, vision and innovation to deliver the county and its residents to a future with safe, pure and publicly owned water supplies.

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Marc Del Piero

About Marc Del Piero

Marc Del Piero is an attorney and native of Monterey County. He served as an elected county Supervisor for three four-year terms. He then served as the attorney member of the State Water Resources Control Board from 1992-99 and taught California Water Law at Santa Clara University from 1992-2011.