California Court of Appeal Upholds State Lands Commission Approval of Huntington Beach Seawater Desalination Plant

HUNTINGTON BEACH, Calif., April 9, 2021 /PRNewswire/ -- Poseidon Water today announced that the Third District California Court of Appeal issued a decision denying the petition by seawater desalination opponents to overturn the Sacramento County Superior Court's 2019 ruling upholding the California State Lands Commission's 2017 approval of an amended lease for the proposed Huntington Beach Desalination Project ("Project"). The Court of Appeal decision reaffirms that the State Lands Commission correctly analyzed the Project under the California Environmental Quality Act (CEQA) and that the Project protects the state's Public Trust resources.

The California Appeal Court decision marks the seventh time since 2005 that Huntington Beach Desalination Project approvals issued by local and state agencies have withstood legal challenge by opponents of seawater desalination. (see below Chronology of Legal Challenges to Poseidon Water's Huntington Beach Seawater Desalination Project)

In 2010, the State Lands Commission (SLC) first approved a Lease Agreement allowing Poseidon to build and operate the Project. In 2016, Poseidon submitted an application to the SLC to modify the Project by adding technological enhancements to the facility's seawater intake and discharge facilities that would further minimize marine life impacts and comply with the State Water Resources Control Board's Ocean Plan Amendment for desalination facilities. The facility's technological enhancements were analyzed in a robust Supplemental Environmental Impact Report and were approved unanimously by the SLC on October 19, 2017. The California Coastkeeper Alliance, California Coastal Protection Network and the Orange County Coastkeeper chapter then filed a lawsuit against SLC and Poseidon, challenging this approval, which the Sacramento County Superior Court denied on January 8, 2019. The appellants then chose to appeal the Superior Court's ruling.

The Court of Appeal rejected all of the appellants' arguments, affirming the Superior Court's January 2019 decision and upholding the SLC's actions in approving the Project and its amended lease. Notably, the Court of Appeal found that the evidence Poseidon presented demonstrated a need for the Project to meet Orange County's water demands.

"The desalination facility will provide Orange County with a new, drought-proof drinking water supply that will protect public health and safety in the face of changing climate conditions," said Scott Maloni, Poseidon Vice President and Huntington Beach Project Manager. "We're pleased with the California Court of Appeal's thoughtful validation of the State Lands Commission's approval of the Project and we look forward to obtaining the remaining permits and approvals necessary to build the plant."

The Project is in the final phase of its permitting process. Prior to commencing construction, the facility requires an amendment and renewal of a permit first issued by the Santa Ana Regional Water Quality Control Board in 2006 and approval of a Coastal Development Permit by the California Coastal Commission. These remaining state approvals are anticipated before the end of 2021 starting with the amendment and renewal of the Regional Board's permit, which is scheduled for Friday, April 23rd. The dismissal of the Coastkeeper groups' lawsuit is important in that it allows the Regional Water Board and Coastal Commission to rely on the Project's environmental analyses as part of their respective permitting processes.

About Poseidon Water

Poseidon Water is a private company that partners with public agencies to deliver water infrastructure projects. The company's primary focus is developing large-scale reverse osmosis seawater desalination plants implemented through innovative public-private partnerships in which private enterprise assumes the developmental and financial risks. For more information on Poseidon's Carlsbad Desalination Plant, visit the plant website at www.carlsbaddesal.com. For more information on Poseidon's Huntington Beach desalination plant, visit the project website at HBfreshwater.com.

Chronology of Legal Challenges to Poseidon Water's Huntington Beach Seawater Desalination Project

Legal Challenge #1: November 2005 - Surfrider Foundation Huntington-Seal Beach Chapter and Sierra Club Angeles Chapter v. City of Huntington Beach (Case No. 06CC00063). Petitioners filed a lawsuit challenging the City of Huntington Beach's September 6, 2005 approval of the project and its certification as lead agency of the Environmental Impact Report for the project under the California Environmental Quality Act ("CEQA"). On January 5, 2007, the California Superior Court rejected the appeal of the certified Re-circulated Environmental Impact Report (REIR).

Legal Challenge #2: March 2006 - Surfrider Foundation, Orange County Chapter of Coastkeeper and Residents for Responsible Desal (R4D4) appeal the City of Huntington Beach's February 27, 2006 approval of the project's Coastal Development Permit (CDP 02-05). The Commission accepted the appeal and the permit was stayed.

Legal Challenge #3: September 2006 - Surfrider Foundation and Orange County Chapter of Coastkeeper filed a petition with the State Water Resources Control Board appealing the Santa Ana Regional Water Quality Control Board's August 25, 2006 approval of Order No. R8-2006-0034 [NPDES CA8000403]. On August 28, 2007 the State Board denied the appeal ruling that it "failed to raise substantial issues."

Legal Challenge #4: October 4, 2010 – Surfrider Foundation, Orange County Chapter of Coastkeeper and Residents for Responsible Desal (R4D4) appeal the City of Huntington Beach's September 2010 approval of the project's Coastal Development Permit (CDP 10-014), which replaced the previously appealed CDP 02-05. On November 17, 2010, the Commission accepted the appeal and the permit is stayed.

Legal Challenge #5: March 12, 2012 - Surfrider Foundation, Residents for Responsible Desalination (R4D4), Orange County Coastkeeper and Coastal Environmental Rights Foundation (CERF) file a petition with the State Water Resources Control Board appealing the Santa Ana Regional Water Quality Control Board's February 10, 2012 approval of Order No. R8-2012-0007 [NPDES CA8000403]. The petition was not filed in a timely manner within the 30-day period required by statute, and there was never any confirmation from State Board that the Petition was accepted. On July 31, 2015 – over three years after filing the petition during which no action was taken by the State Water Board - the appellants formally withdrew their petition.

Legal Challenge #6: November 17, 2017 – California Coastkeeper Alliance, California Coastal Protection Network and Orange County Coastkeeper file a petition with the California Superior Court Sacramento County challenging the California State Lands Commission's October 19, 2017 approval of the Huntington Beach project's lease amendment (No. 1980.1) and certification of the project's Supplemental Environmental Impact Report (SEIR) evaluating the technology enhancements proposed by Poseidon in order to comply with the requirements of the State Water Board's Ocean Plan Amendment pertaining to desalination facilities. January 8, 2019, California Superior Court Judge Richard Sueyoshi denied the lawsuit.

Legal Challenge #7: February, 2019 - California Coastkeeper Alliance, California Coastal Protection Network and Orange County Coastkeeper appealed Sacramento Superior Court's January 8, 2019 denial of their challenge to the State Lands Commission's approval of the Project. On April 8, 2021, the California Court of Appeal denied the petition's arguments in full and affirmed the Superior Court's decision.

Contact: Scott Maloni, [email protected]

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SOURCE Poseidon Water