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By John Earl
Editor
The city's plan to allow construction of one of the largest seawater desalination plants in the United States in southeast Huntington Beach hit a major legal hurdle with a Jan. 25 court ruling that could compel the developer, Poseidon Resources Inc, to restart the permit process or pull out.
The decision by the US Court of Appeals, 2nd Circuit, was the result of a lawsuit brought by Riverkeeper and other New York environmental protection groups against the Environmental Protection Agency's enforcement of the Clean Water Act.
The court ruled that the EPA had improperly allowed electrical generating plants like AES, located in southeast Huntington Beach, to use an out dated “once through cooling” technology that kills all of the marine life that is sucked in through its pipes rather than the best available-least damaging to the environment-technology.
The plaintiffs in the lawsuit say that the most environmentally safe system is “closed cycled cooling” because it substantially reduces marine life mortality by using mostly air instead of water to cool the mechanical parts of a generating plant.
The court ordered the EPA to rewrite regulations it issued in 2004 according to a stricter interpretation of the intent of the CWA passed by Congress in 1972, or provide a reasoned explanation why it shouldn't do so.
Poseidon plans to hook up to the AES once through cooling system in order to economically draw in 100 million gallons of seawater each day and convert it into 50 million gallons of potable water. But the court's decision eliminates once through cooling for power plants, say local groups like the Surfrider Foundation and Residents 4 Responsible Desalination, who have opposed Poseidon for years.
“We believe 'once through cooling' is a thing of the past for coastal generators,” they said in a joint press release, “In our opinion, this means that Poseidon has to go back to the beginning if they continue to pursue a desalination facility in Huntington Beach.”
If Poseidon tries to use the current AES pumping facility on its own it could face insurmountable obstacles from increased cost and permitting. “If they want to use those pumps and pipes the price of their water just went up dramatically,” Surfrider spokesperson Joe Geever told the OC Voice.
Surfrider Foundation and R4RD joined with the Sierra Club in previous suit against Huntington Beach, arguing that the Poseidon EIR certified by the city council failed to properly consider the potential impact of the desalination project operating independent of the AES generating plant. The plaintiffs argued that it was likely that the AES plant would have to change its cooling system to comply with federal and state law, which require curtailing marine life mortality by 95 percent.
But the city argued that there are “a multitude of compliance measures” that AES could use to conform to environmental law while continuing to use its antiquated cooling system, including legal interpretations by the EPA that allowed generating plant owners to offer wetlands “restoration” instead of upgrading their cooling system and to allow profit needs to trump use of the best available technology.
That lawsuit was rejected in superior court last Nov. 28, but the EPA loopholes have been closed by the separate but related Riverkeeper court ruling, say Poseidon's opponents.
That probably won't stop the city from trying to keep Poseidon alive, however. It argued in the HB lawsuit that even if once through cooling is nixed for AES, Poseidon could purchase the cooling system for its own use and start a whole new permit and environmental review process.
HB City Councilmember Debbie Cook, who voted against certification of the desalination project a year ago, told the OC Voice that she doesn't see how Poseidon can get approval for using an antiquated cooling system if AES can't.
“What's the difference between drawing it in for a power plant and drawing it in for desalinated water,” she asked.
Court ruling puts HB desalination plant in limbo
AES Generating Plant in SE Huntington Beach. Photo: John Earl
R.I.P. Poseidon?
Monday Jan. 29, 2007
Main Table of Contents
R.I.P. Poseidon: Court ruling puts HB desalination plant in limbo
Injunction Dysfunction? Will pressuring landlords stop CM gang problem?
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Birds of HB Central Park by Mark Bixby
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Scott Sink: R.I.P. Saddam Hussein: 1937-2006; U.S. Ally: 1960-1990
Joe Shaw: Four Years Ago Last October
Community Voices: Park Owners Need To Be More Responsible
Letters To The Editor