The Coastal Commission may become involved in the process of reviewing permits for desalination plants or related facilities in several ways. The following is a brief overview of provisions for Commission involvement.
1) If the proposal includes development in an area of the coastal zone where the city or county does not have a fully certified Local Coastal Program (LCP), a coastal development permit from the Commission will be required under Section 30600(c) of the Coastal Act.
2) In areas where there is a certified LCP, a proposed project may be appealable to the Commission under several of the appeal provisions of Section 30603, including appeals of energy facilities and public works projects. The basis for appeals must be that the proposed development does not conform to the certified LCP.
3) Pursuant to Section 30514 of the Coastal Act, the Commission will review LCP amendments that provide for desalination plants.
4) Pursuant to Section 30519(b) of the Coastal Act, the Commission retains permit jurisdiction over any portion of a project that is in state waters, on land up to the mean high tide line, or on lands subject to the public trust. If development is proposed within these areas, a Commission permit will be required.
5) The Commission may review a desalination plant proposal under consistency authority when it will have impacts on the coastal zone, and either a) a federal agency will be carrying out or funding the project, or b) a federal permit is required for the project (Section 307, Coastal Zone Management Act; 16 U.S.C. Section 1456).
6) The creation of a special district for purposes of funding a desalination facility may be subject to coastal permit or LCP amendment requirements.
Section 13053.5 of the Commission's Administrative Regulations list the items that must be included with a coastal development permit application in order for the application to be filed. These items include:
An adequate description including maps, plans, photographs, etc. of the proposed development, project site and vicinity sufficient to determine whether the project complies with all relevant policies of the California Coastal Act of 1976, including sufficient information concerning land and water areas in the vicinity of the site of the proposed project…. The description of the development shall also include any feasible alternatives or any feasible mitigation measures available that would substantially lessen any significant adverse impact which the development may have on the environment.
The applicant must also demonstrate a legal right, interest or other entitlement to use a property for the proposed development. (Public Resources Code Section 30601.5; 14 CCR, Section 13053(b). This may include a lease or permit from the State Lands Commission (SLC) for use of state lands if the project will be located in the SLC's jurisdiction area. In addition, the applicant should submit with the coastal development permit application evidence that the proposed discharges are authorized by an NPDES permit. If a permit for disposal of solid waste is required, this permit should also be submitted to the Commission with the coastal development permit application. All permits required for a proposed project must be obtained prior to plant operation.
Coastal Act Section 30255 states that coastal-dependent developments shall have priority over other development on or near the shoreline. Coastal Act Section 30260 provides that coastal-dependent industrial facilities shall be encouraged to locate or expand within existing sites. Coastal-dependent industrial developments that are not consistent with other sections of the Coastal Act may be approved under Section 30260 if "1) alternative locations are infeasible or more environmentally damaging; 2) to do otherwise would adversely affect the public welfare; and 3) adverse environmental effects are mitigated to the maximum extent feasible."
The Commission will need to determine, on a case-by-case basis, whether a proposed seawater desalination project is a "coastal-dependent development" and/or a "coastal-dependent industrial development." The Coastal Act defines a coastal-dependent development or use as "any development or use which requires a site on, or adjacent to, the sea to be able to function at all" (Section 30101). Desalination plants that use seawater as feedwater will need to be located fairly near the coast, but not necessarily in the coastal zone.
A municipality or company that intends to construct a desalination plant will also typically be required to obtain the following permits or other approvals from agencies other than the Coastal Commission:
Agencies other than the Coastal Commission that may have regulatory authority over desalination plants (depending on the location of the proposed development) include the following:
Assemblymember Richard Polanco introduced the following five bills designed to encourage desalination projects in the state.
Assembly Bill 2111 passed both the Senate and the Assembly but was vetoed by the Governor in 1991. The bill was reintroduced as AB 3111 on February 19, 1992. This bill also passed the Senate and the Assembly but was vetoed by the Governor in 1992. AB 3111 would have authorized owners or operators of qualifying desalination facilities (a plant owned or operated by a private or not-for-profit entity that has a production capacity of at least 400,000 gpd) to request a local water agency to provide physical connections between the qualifying desalting facility and the water distribution system of the local water agency and to purchase water desalted in the facility. Following an opportunity for public comments, the water agency would determine whether or not to grant the request, based on whether connection to the desalination plant would result in equal or improved water quality and supply, would not provide water in excess of the amount purchased by the water agency's customers, and would not displace water that could be purchased at a lower actual cost for longer than a two-year period. If the water agency decided to purchase the desalinated water, any difference in price paid for the water would have been incorporated into the water agency's overall rate structure. A qualifying facility would not have been considered a public utility solely because of conducting activities provided for in the bill.
Assembly Bill 2112 was initially designed as a bond act to provide $800 million for financing a water desalination program. This bill, which was not supported by 2/3 of the Assembly, was amended to provide a framework for submission to the voters of a bond act to provide $1 billion to finance a state desalination program. The amended bill needed only a majority vote because it would not have approved a bond measure. The bill passed the Assembly but was held in the Senate Agriculture and Water Resources Committee.
Assembly Bill 2113 was not heard in committee and was not be reintroduced in 1992. It would have required the Department of Water Resources (DWR) to provide electric power to a public or private desalination facility at the unit cost of electric power applicable to facilities in the State Water Resources Development System.
Assembly Bill 2206 would have created the California Desalination Authority to develop standards for desalination facilities, promote development and use of desalination, review advances in the technology, and coordinate with public agencies. The bill, which would have been funded by the bond measure initially included in AB 2112, was no longer feasible when the bond measure did not succeed.
Assembly Bill 2207, amended July 18, 1991, was signed by the Governor in October 1991 (Chapter 1161, Statutes of 1991). It declares that the cessation of, or reduction in, the use of water as the result of the use of desalinated water constitutes a reasonable, beneficial use of water. It requires the DWR to provide assistance to persons or entities that plan to construct desalination plants.
Assemblymember Peace introduced AB 1013 which passed both the Senate and the Assembly but was vetoed by the Governor. The bill, as amended September 10, 1991, would have required the Public Utilities Commission and the Energy Commission to consider electric utility company proposals to further the development of desalination plants. The bill would have provided for the expeditious review of a proposal for a pilot project that demonstrates the compatibility between the repowering of a major coastal electric power plant and the construction of a companion desalination facility. The electric utility would have had to demonstrate the need for at least 200 MW of additional capacity. The repowered plant would have had to produce between 200 and 475 MW, and the desalination plant would have had to generate at least 10 MGD of water. An incorporated county water authority would have been required to participate in the project. The bill would have been repealed on January 1, 1994, unless a pilot project that met the criteria of the bill was licensed by that date.
State Senator Thompson introduced SB 1087 which, as amended May 13, 1991, would have provided for submission to the voters of a bond act to provide $300 million to finance desalination projects. The bill did not make it out of the Senate. SB 1087 was incorporated into another bill, SB 1182, which is a wastewater reclamation bond act, and the amount that would be allocated for desalination was reduced to $100 million. SB 1182 was signed by the Governor in October 1991 (Chapter 1142, Statutes of 1991).
In March 1993, Senator Paul Simon of Illinois introduced U.S. Senate Bill S. 617 "to authorize research into the desalination of water and water reuse and to authorize a program for States, cities, or any qualifying agency which desires to own and operate a desalination or water reuse facility to develop such facilities." The bill would provide funds for research and development in the amounts of $5 million for fiscal year (FY) 1994, $10 million for FY 1995, and additional funds as necessary for FY 1996-1998. An additional $50 million over a five-year period would be made available equally to the Department of the Interior or the Army Corps of Engineers for design and construction of desalination facilities.
President Bush's fiscal year 1992 budget included $1 million for the Bureau of Reclamation for the start of a new desalting and related water treatment program.
ENDNOTES
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