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Surfrider Foundation v. California Regional Water Quality Control Board

November 30, 2012

SURFRIDER FOUNDATION, PLAINTIFF AND APPELLANT,
v.
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN DIEGO REGION, DEFENDANT AND RESPONDENT. POSEIDON RESOURCES (CHANNELSIDE) LLC, ET AL. REAL PARTIES IN INTEREST AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. (Super. Ct. No. 37-2010-90436-CU-WM-OTL)

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

Affirmed.

Surfrider Foundation (Surfrider) appeals from the trial court's denial of its petition for a writ of mandamus challenging the approval of the National Pollutant Discharge Elimination System (NPDES) permit by the California Regional Water Quality Control Board, San Diego Region (the Regional Board) for a desalination facility that Poseidon Resources (Channelside), LLC (Poseidon) plans to build on the coast in Carlsbad, California. Surfrider contends that in issuing the NPDES permit the Regional Board failed to comply with the requirements of Water Code section 13142.5, subdivision (b) (section 13142.5(b)),*fn1 which provides that "[f]or each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life." (Ibid.) We reject Surfrider's arguments and conclude that the Regional Board complied with section 13142.5(b). Accordingly, we affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Poseidon proposes to build a desalination facility in Carlsbad, California, which will process seawater to provide fresh potable water (the desalination facility). As this appeal arises out of the Regional Board's approval of a NPDES permit needed for the operation of the desalination facility, we begin our discussion by focusing on the relevant features of the proposed facility.

A. Design of the Desalination Facility

The proposed desalination facility is designed to produce 50 million gallons per day of desalinated water. In order to operate, the desalination facility will require a total of 304 million gallons per day of seawater both for source water and for the dilution of the concentrated saline wastewater by-product discharge.

With a view toward obtaining seawater for desalination while avoiding unnecessary harm to marine life, Poseidon plans to construct the desalination facility adjacent to the existing Encina Power Station (the EPS). The EPS is an electrical power generating station that uses steam generators cooled by a once-through seawater flow system, with seawater drawn from the Pacific Ocean via the Agua Hedionda Lagoon. By virtue of being located next to the EPS, the desalination facility will be able to use the cooling water that the EPS discharges as part of the power plant operations in place of some or all of the seawater needed for desalination. Under this design, even when the EPS's cooling water discharge is not supplying 100 percent of the necessary seawater, the desalination facility will take in additional seawater by using the same intake structure and pumps that are used by the EPS.

Based on historical data from the EPS, the power plant's cooling water discharge will in some cases be able to supply all of the 304 million gallons per day of seawater needed to operate the desalination facility without the need for the intake of additional seawater (Scenario 1).*fn2 When the EPS's cooling water discharge is fully supplying the needs of the desalination facility, Poseidon would have little ability to impose additional design elements on the seawater intake structure and intake pumps, as the desalination facility cannot interfere with or interrupt the power plant operations.

However, when operation of the EPS's cooling water discharge does not provide enough seawater for the desalination facility -- for instance, when the EPS is not operating at capacity or temporarily shut down -- additional seawater may be taken in through the EPS's cooling water intake structure solely for use in the desalination facility (Scenario 2). In that circumstance, the desalination facility will use additional measures to reduce the intake and mortality of marine life. These additional measures consist of (1) reducing the velocity at the inlet screen to the minimum needed for the desalination facility's operation; (2) pumping the seawater through an optimum combination of existing fine screens and condensers to minimize the velocity and turbulence of the water; (3) using ambient temperature seawater rather than seawater with an elevated temperature as during the EPS's operations; and (4) discontinuing periodic heat treatment of the seawater intake and discharge.*fn3

B. Agency Approvals of the Desalination Facility

Prior to the Regional Board's issuance of the NPDES permit that is at issue in this lawsuit, several additional agencies considered and approved the construction and operation of the desalination facility.

1. Carlsbad City Council's Consideration of the Final Environmental Impact Report and Its Approval of the Desalination Facility Project

In June 2006, the Carlsbad City Council certified a final environmental impact report (FEIR) for the desalination facility. The FEIR determined that the desalination facility would not cause significant adverse environmental impacts either when the desalination facility was operating together with the EPS or when the EPS was shut down. In certifying the FEIR, the City of Carlsbad approved the desalination facility with the condition, among others, that a new environmental impact report would be required if the EPS permanently ceased its operations (i.e., in Scenario 3).

2. Permit from the California Coastal Commission

In November 2007, the California Coastal Commission (Coastal Commission) granted a coastal development permit for the desalination facility, with the condition, among others, that Poseidon prepare a marine life mitigation plan (MLMP). Specifically, Poseidon was required to document the expected entrainment and impingement of marine life that would be caused by the desalination facility and to develop a plan for mitigation that, to the maximum extent feasible, was comprised of the "creation, enhancement, or restoration of aquatic and wetland habitat."*fn4 Several agencies, including the Regional Board and the Coastal Commission, coordinated with Poseidon to develop the required MLMP. In August 2008, the Coastal Commission considered a version of the MLMP, and it agreed to final language for the MLMP in November 2008.

3. The State Lands Commission's Amendment of Lease of Tidal Lands

Because the desalination facility will make use of the EPS's intake and discharge channels, which are located on tidal lands under the jurisdiction of the State of California, the State Lands Commission was required to amend its lease of state tidal lands to the EPS in order to allow the desalination facility to operate at the same location. In November 2008, the State Lands Commission approved Poseidon's application for a lease amendment and required Poseidon to comply with the MLMP as adopted by the Coastal Commission. Surfrider filed an unsuccessful petition for writ of mandate to challenge the State Land Commission's approval of the lease amendment, and a December 10, 2010 opinion from this court affirmed the trial court's denial of the petition.

4. The Regional Board's Approval of an NPDES Permit

While these other agency approvals were occurring, the Regional Board was considering Poseidon's application for a NPDES permit for the desalination facility. The Regional Board initially issued the NPDES permit in August 2006. At that time, the Regional Board stated that Poseidon must submit a "Flow, Entrainment and Impingement Minimization Plan" covering Scenario 2, i.e., the scenario in which the EPS's operation does not provide for 100 percent of the desalination facility's seawater intake requirements (Minimization Plan). The purpose of the Minimization Plan was to address the requirements of section 13142.5(b), which states that "[f]or each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life." (Ibid.)*fn5

Poseidon submitted a draft Minimization Plan in February 2007, which the Regional Board determined in February 2008 to be incomplete and in need of revision. After considering a revised Minimization Plan in April 2008, the Regional Board conditionally approved it subject to the requirement that further revisions address, among other things, a proposal for mitigation of the impacts to marine life caused by impingement and entrainment. To satisfy this requirement, Poseidon worked to develop the MLMP.

In November 2008, after the Coastal Commission agreed to the final language of the MLMP, the Regional Board received the MLMP as an amendment to the Minimization Plan. The Regional Board identified additional issues, which were addressed in a further revised Minimization Plan, dated March 27, 2009, that incorporated the MLMP.

On May 13, 2009, the Regional Board approved the March 27, 2009 version of the Minimization Plan with certain amendments, concluding, among other things, that the desalination facility would comply with section 13142.5(b) when co-located with the EPS. Significantly, the Minimization Plan and the Regional Board's approval covered only the scenario in which the EPS and the desalination facility were co-located (i.e., Scenario 2). In the event that the EPS permanently shuts down (i.e., Scenario 3), Poseidon will be required to reapply to the Regional Board for authorization to operate in a stand-alone mode, and the Regional Board, in that instance, will review whether additional measures are necessary for compliance with section 13142.5(b).

a. The Minimization Plan

The Minimization Plan comprehensively addresses the mandate of section 13142.5(b) that the desalination facility use "the best available site, design, technology, and mitigation measures feasible . . . to minimize the intake and mortality of all forms of marine life." (Ibid.) It contains separate chapters addressing the "site, design, technology, and mitigation measures" required by section 13142.5(b) for minimizing the intake and mortality of marine life when the EPS is not supplying all of the seawater needed by the desalination facility (i.e., Scenario 2).

Chapter 2 addresses the selection of the site for the desalination facility, explaining that the location next to the EPS was the best available feasible site and that three possible alternative sites for the desalination facility were not feasible because of certain limitations associated with each of them. Specifically, the Minimization Plan considered the following alternative sites: (1) different locations on the property where the EPS is located, which were determined to be infeasible because the owner of the EPS had reserved that property for future use; (2) the Encina Water Pollution Control Facility, which was found to be infeasible because, due to outfall constraints, the volume of desalinated water production would be limited; and (3) the Maerkle Reservoir, which was declared infeasible for several logistical reasons, including lack ...


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