Three members of the regulatory board considering approval of the controversial Poseidon desalination plant were called by the state’s environmental protection secretary at the time of last summer’s deliberations, an apparent violation of a rule that in serious cases can disqualify members from voting on the issue.

While Secretary Jared Blumenfeld’s calls and texts last summer didn’t explicitly solicit a vote for the Huntington Beach project, the gubernatorial appointee noted in at least two of the communications that “statewide water resilience” was important to Gov. Gavin Newsom, according to disclosures released Thursday, Feb. 11.

The seven-member Santa Ana Regional Water Quality Control Board is scheduled to resume consideration of a permit for $1.4 billion plant in April. Proponents say the project is needed to brace for droughts that climate change could make worse, while opponents point to environmental damage, high cost and a publicly funded study that says the water is unlikely to be needed.

“The public is entitled to transparent and fair decision making, and these communications undermine the fairness of the regional board’s decision-making process on Poseidon,” said Staley Prom, an attorney for the Surfrider Foundation.

Hope Smythe, the regional board’s executive officer, noted that the disclosures are available online for public review. Written comments on the issue are being accepted through Feb. 26, according to the board website.

“Based on the information currently known, we do not believe there are grounds for recusal of any board member and expect all board members to be able to continue to participate in the proceeding,” she said.

Newsom has not publicly stated a position on the plant. But he’s previously come under fire from Poseidon opponents for replacing the board’s most outspoken critic of the plant and for attending a birthday dinner at Napa Valley’s French Laundry restaurant for a partner in a firm that’s received at least $500,000 to lobby in Sacramento on behalf of the project.

“We are very concerned by these communications, and the pattern by the Newsom administration to influence — and interfere with — the decision of the regional water board on such a controversial project,” said Sean Bothwell, executive director of the California Coastkeeper Alliance. “At this time we have not decided on taking a formal action, but we are looking into it.”

In an emailed response, CalEPA spokeswoman Erin Curtis did not address questions regarding the propriety of Blumenfeld’s calls, but she noted that the Newsom administration had an “all-of-the-above” strategy toward building a reliable water supply.

“This strategy includes consideration of desalination projects that are cost effective and environmentally appropriate,” Curtis said. “The governor is confident that the proceedings currently underway on the Poseidon project will ensure that if it receives the necessary permits to operate in California, it will be to the benefit of all Californians.”

Calls and texts

The regional board, which has been scrutinizing the Poseidon project for more than two years, held public hearings on the proposal from July 29 to July 31. Over that same three-day period, board members Joe Kerr and Lang Ong Peterson received phone calls and texts from Blumenfeld. On Aug. 5, two days before a follow-up meeting, board member Kris Murray also received a call from him.

“Secretary Blumenfeld mentioned the administration’s commitment to water quality and statewide water resilience …” Murrary said in her Thursday disclosure posted on the regional board website. “He mentioned the proposed Poseidon Huntington Beach Desalination Facility in this context.”

Poseidon was similarly mentioned in a call to Peterson, while Kerr recounted that Blumenfeld said “the board had a very important decision before it concerning the proposed Poseidon Huntington Beach Desalination Facility.” Several of the communications to Kerr and Peterson inquired how the meeting was going.

In the online disclosures, all three said, in identical language, “I did not initially consider these conversations as ex parte communications and was not aware that they could be considered as such.”

“Ex parte” communications are when a board member is contacted outside of a public meeting about a project under consideration.

Leticia Clark, appointed by Newsom in November to replace longtime board member and Poseidon critic William von Blasingame, also filed a disclosure Thursday, about an April 2020 meeting with Ernesto Medrano of the region’s Building and Construction Trades Council. Medrano noted his council’s support of the project, citing job creation.

While Clark may not have violated the prohibition because she was not on the board at the time, Poseidon opponents expressed concern about that communication as well.

“Was Medrano meeting with Clark to vet her?” said Andrea Leon-Grossmann, director of climate action for Azul. “Was Medrano coordinating with Poseidon to replace von Blasingame?”

Disqualification?

Leon-Grossmann also pointed out that it’s taken more than six months for the disclosures to be publicly released. Smythe, the regional board officer, did not respond to an emailed question of what triggered the decision to disclose the information now.

It’s also unclear what could lead to board members being disqualified from voting on the project.

Ex parte rules listed on the agency’s website say board members must disclose such prohibited communications “and the board may be required to hear comments or additional evidence in response to the ex parte communication.” Thursday’s online disclosures are accompanied by notice of the Feb. 26 deadline for written comments.

The online rules say “a prohibited ex parte communication may be grounds for disqualifying the board member from participating in the adjudicative proceeding.” However, it does not explain the process for disqualifying a member, or what would trigger such a process.

Long road

Poseidon, which built a similar plant in Carlsbad, has been pursuing the Huntington Beach project for 21 years. In 2012, the company was awarded a permit by the regional board, but that permit expired and stricter environmental rules were put into place before the company got all other necessary permits.

Most concerns about the project voiced by members of the regional board have been addressed, with the exception of mitigation for the environmental damage. Board staff is continuing to develop mitigation plans with Poseidon.

“Once the mitigation issues are satisfactorily resolved, the board will likely approve,” Coastkeepers’ Bothwell said. “We disagree that it should be approved.”

Poseidon is expected to have a more difficult time winning its final permit, from the Coastal Commission. Commission staff has said it will require more environmental mitigation than that being pursued by the regional board and that it also has concerns that its proposed location, next to the AES power plant on Pacific Coast Highway, could leave it vulnerable to sea-level rise.

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