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)),
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 an NPDES permit needed for the operation of the desalination facility, we begin our discussion by focusing on the relevant features of the proposed facility.
The proposed desalination facility is designed to produce 50 million gallons per day of desalinated water. In order to operate, the desalination
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 powerplant 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 powerplant'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).
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.
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.
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).
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."
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.
While these other agency approvals were occurring, the Regional Board was considering Poseidon's application for an 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.)
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.
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 colocated 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 colocated (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).
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 of space to accommodate necessary pipelines, the need to pump seawater to a higher elevation, zoning restrictions, and the increased cost associated with piping and pumping seawater and discharge water at the site.
Chapter 4 discusses the technology incorporated into the desalination facility that will minimize impingement and entrainment of marine life, and explains why alternative technological features were not feasible. As chapter 4 describes, the desalination facility's most relevant technological feature for minimizing marine life mortality is the installation of variable frequency drives on seawater intake pumps. That technology will minimize marine life mortality associated with the intake of seawater by reducing the total intake flow for the desalination facility to no more than needed at any given time. Further, although different intake technology was considered, it was determined that alternative intake technology, in the form of vertical intake wells, slant wells or horizontal wells was not feasible because of the multiple miles of coastline needed to implement that technology and because of the prohibitive cost. The additional option of using an offshore open ocean water intake was rejected because it could adversely affect a greater diversity of marine life species than the proposed intake for the desalination facility when colocated with the EPS.
Chapter 5 quantifies the marine mortality associated with the operation of the EPS intake as well as the marine mortality expected when the desalination facility is operating alone and implementing the design and technological features described above (i.e., Scenario 2). The analysis shows that the design and technology features of the desalination facility would reduce impingement of marine life from that experienced when the EPS's intakes are operating for the powerplant (i.e., Scenario 1).
Chapter 6 describes the mitigation measures that Poseidon will undertake to reduce marine life mortality, and it expressly incorporates the MLMP. Under the MLMP, Poseidon will restore up to 55.4 acres of estuarine wetlands in Southern California for the purpose of creating a habitat in which fish populations will increase and thereby offset the marine life mortality
The final portion of the Minimization Plan, i.e., chapter 7, concludes that based on the discussion in the foregoing chapters the desalination facility "will use the best available site, design, technology and mitigation measures feasible to minimize the intake and mortality of marine life associated with the intake of seawater to support [the desalination facility's] ... operations." Significantly, the Minimization Plan stresses that the site, design, technology, and mitigation measures that it describes all work together to satisfy section 13142.5(b), and "represent a balanced approach to minimizing the potential for intake and mortality from [the desalination facility] under stand-alone operations" which "individually and collectively satisfy the obligation under Section 13142.5(b) to employ best available and feasible measures to minimize such effects." (Italics added.)
Consistent with the Minimization Plan's focus, in separate chapters, on the distinct statutory elements of site, design, technology and mitigation, the Regional Board's May 13, 2009 order approving the amendment to the NPDES permit addressed each of those elements in separate sections of the order. The Regional Board concluded that the Minimization Plan "identifies the best available site, design, technology and mitigation feasible to be used by [Poseidon] to minimize the intake and mortality of all forms of marine life during [the desalination facility's] operations."
Surfrider then filed this action against the Regional Board for a writ of mandamus, naming Poseidon, the City of Carlsbad, Cabrillo Power I LLC, and various interested municipal water districts as real parties in interest. The petition sought to set aside the Regional Board's May 13, 2009 order approving the Minimization Plan, alleging that the Regional Board "prejudicially abused its discretion and failed to fulfill its duties under ... section 13142.5(b) when it adopted the [May 13, 2009 order] and approved the Minimization Plan." Surfrider's main argument was that the Regional Board improperly considered "after-the-fact restoration measures in conducting the required analysis under ... section 13142.5(b)." Specifically, it took the position that "restoration [of wetlands] is plainly inconsistent with the text and intent of the statute to `minimize the intake and mortality of all forms of marine life'" in that "[r]estoration measures seek to restock fish killed because of impingement and entrainment by [the desalination facility's] operations, which by definition do not minimize the intake and mortality of marine life in the first place."
The trial court denied the petition, rejecting Surfrider's position that, in approving the Minimization Plan, the Regional Board failed to comply with the requirement in section 13142.5(b) that "the best available site, design, technology, and mitigation measures feasible ... be used to minimize the intake and mortality of all forms of marine life." (Ibid.)
Surfrider appeals from the trial court's denial of the petition for a writ of administrative mandamus. "[D]ecisions and orders of the [Regional Board],
As we have explained, at issue in this case is the Regional Board's compliance with the requirement of section 13142.5(b), which states that in an "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.)
Surfrider's first contention is that the Regional Board failed to comply with this statutory requirement because, in approving the Minimization Plan, it allowed Poseidon to use "after-the-fact restoration ... in lieu of using the best available measures to minimize the intake and mortality of marine life." (Italics added.) According to Surfrider's characterization of the Minimization Plan, "after-the-fact restoration programs are the only measures that will be
The trial court rejected Surfrider's argument because it found its factual premise to be faulty. As the trial court explained, the Minimization Plan does not rely on the MLMP's required wetland restoration program alone to satisfy the requirement in section 13142.5(b) that Poseidon use "the best available site, design, technology, and mitigation measures feasible ... to minimize the intake and mortality of all forms of marine life." (Ibid.) As we will explain, substantial evidence supports the trial court's factual determination, and we reject Surfrider's argument on the same basis as did the trial court.
As described above, in addition to the mitigation measures described in the MLMP, chapters 3 through 5 of the Minimization Plan separately focus on each of the other measures listed in section 13142.5(b), namely the site, design and technological measures that minimize the intake and mortality of marine life. These measures include locating the desalination facility next to the EPS in order to make use of the EPS's cooling water discharge, reducing the inlet screen velocity, optimizing the way seawater is pumped through the existing screens and condensers, using ambient temperature seawater, replacing the cleaning system by using plastic scrubbing balls instead of periodic heat treatment, and installing variable frequency drives on intake pumps. Indeed, the Regional Board's May 13, 2009 order specifically describes each of these measures. The order also specifically incorporates the responsiveness summary prepared by the Regional Board's staff, which clarifies that the Minimization Plan "provides for the implementation of mitigation in addition to, as opposed to in lieu of, site, design, and technology measures to minimize the intake and mortality of marine life." (Italics added.)
Surfrider acknowledges that the Minimization Plan discusses site, design and technology measures in addition to the mitigation required by the MLMP, but Surfrider argues that the site, design and technology measures are "illusory" and that "the only meaningful measure adopted by the [Regional] Board was the MLMP." Surfrider therefore contends that the Regional Board did not, as statutorily required, implement feasible site, design and technology measures, in addition to mitigation, to minimize the intake and mortality of marine life. We disagree. As we will explain, substantial evidence supports a finding that the site, design and technology measures in the Minimization Plan are substantive, not illusory.
The site of the desalination facility does not provide a merely illusory benefit to the minimization of the intake and mortality of marine life. As the Minimization Plan explains, colocation of the desalination facility with the EPS will minimize the mortality of marine life because the facility will be able to use the cooling water discharge from the EPS instead of taking in new seawater, which has the potential to harm marine life by impingement and entrainment. This measure is real and substantive and, during the entire time that the EPS is an operational plant, will provide a reduction in intake and mortality of marine life that would not otherwise occur if the desalination facility were located at a different site.
Next, Surfrider focuses on several of the design and technological measures described in the Minimization Plan to be implemented when the EPS's cooling water discharge is not supplying all of the seawater that the desalination facility needs, contending that they are merely illusory measures that will fail to minimize the intake and mortality of marine life.
The Minimization Plan describes the design feature, to be implemented in Scenario 2, of reducing intake screen velocity to insure that "the velocity of the seawater entering the inlet channel is at or below 0.5 feet per second ..., resulting in impingement losses at the inlet screens being reduced to an insignificant level." Surfrider argues that the Minimization Plan's reliance on reduced intake screen velocity is misplaced.
Surfrider next contends that the use of variable frequency drives on seawater intake pumps is an illusory measure. As we have explained, the variable frequency drives will minimize marine life intake and mortality by reducing the total intake flow for the desalination facility to no more than needed at any given time rather than continuing to use the intake flow that would have been provided had the EPS been operating. Surfrider argues that the benefit of this measure is illusory because Poseidon cannot quantify, in detail, the amount that intake and mortality of marine life will be reduced. We reject this argument. The inability to provide precise figures is due to uncertainty about how much seawater the desalination facility will be required to take in to supplement the cooling water discharge from the EPS. Even though the reduction in marine life intake and mortality cannot be precisely quantified because the amount of seawater needed to supplement the EPS's cooling water discharge is uncertain, there is no doubt that marine life intake and mortality will be reduced by the variable frequency pumps, and Surfrider does not contend otherwise.
In a footnote, Surfrider briefly takes issue with the remaining design and technology features of the desalination facility identified in the Minimization Plan. Surfrider's challenge to those measures is not well developed and requires only brief comment. First, Surfrider argues that the use of the EPS's cooling water discharge is an illusory measure because the EPS may eventually be shut down. This argument fails because it ignores that (1) a significant benefit will be obtained while the EPS remains in operation, and (2) the Minimization Plan only covers the scenario in which the EPS remains in operation, with a new review by the Regional Board to take place if the EPS permanently shuts down. Second, Surfrider contends that the elimination of heated water in the stand-alone operation of the desalination facility is an illusory measure "because Poseidon would not heat the water when it is bypassing the power plant, something that is already part of the operation."
Surfrider's next argument is that even if, as we have concluded, the Minimization Plan relies on a combination of site, design, technology and mitigation measures to reduce the intake and mortality of marine life, the mitigation referred to in section 13142.5(b) may not include after-the-fact restoration of wetlands. Surfrider argues that "[c]ompensatory restoration simply does not minimize intake and mortality of marine life and, therefore, fails to comply with the plain language of the law." According to Surfrider, the MLMP therefore should not have been included as part of the Minimization Plan adopted by the Regional Board.
Surfrider contends that it would "effectively delete `intake' from the statute" if the statutory language is read to permit mitigation measures that reduce marine life mortality but do not reduce marine life intake. This argument lacks merit. As we interpret the statute, "intake" is still a very
In a similar argument, Surfrider contends that "[t]he ordinary meaning of `mitigation' supports a reading of the statute that does not encompass the use of compensatory measures.... Mitigation ... involves reducing or limiting the CDP's intake and mortality of marine life, not `compensat[ing] for' it." To support this argument, Surfrider relies on the dictionary definition of "mitigate" and "mitigation."
Further, although this case is not controlled by the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), the use of the word "mitigation" in that statutory scheme shows that a commonly used
Surfrider contends that we should look to the case law interpreting a portion of the federal Clean Water Act of 1977 (Clean Water Act) (33 U.S.C. §§ 1251-1387) to determine whether mitigation may properly include compensatory measures. The case law that Surfrider relies on interprets section 316(b) of the Clean Water Act (33 U.S.C. § 1326(b)), which provides that regulations governing the cooling water intake structures for powerplants "shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact."
Surfrider cites Riverkeeper, Inc. v. U.S. E.P.A. (2d Cir. 2004) 358 F.3d 174, 190-192 (Riverkeeper I), which held that the federal Environmental Protection Agency exceeded its authority by promulgating a regulation that permitted compliance with section 316(b) of the Clean Water Act through marine life and habitat restoration measures such as restocking fish killed by a cooling water intake system with those bred in a hatchery or improving the habitat surrounding the intake structure. Focusing on the statutory language, which refers to "`location, design, construction, and capacity'" of the cooling structures, Riverkeeper I explained that restoration measures, "however beneficial to the environment, have nothing to do with the location, the
Later, in Riverkeeper, Inc. v. U.S. E.P.A. (2d Cir. 2007) 475 F.3d 83 (Riverkeeper II) the Second Circuit reaffirmed its conclusion in Riverkeeper I that "restoration measures contradict the unambiguous language of section 316(b)." (Riverkeeper II, at p. 110.) Riverkeeper II explained that "[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, ... and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act's clear language as well as its technology-forcing principle." (Ibid.) Riverkeeper II also stated that the statute's reference to "`technology available for minimizing'" could not be read to include "`compensati[on] ... after the fact,'" because the dictionary definition of minimize was "`to reduce to the smallest possible extent.'" (Ibid.)
Further, we are not convinced by Surfrider's observation that section 13142.5(b) and section 316(b) of the Clean Water Act both refer to measures that "minimize" an impact. The Clean Water Act relies solely on technological measures to minimize an adverse environmental impact, while section 13142.5(b) more broadly relies on mitigation and other measures to minimize the impact on marine life mortality. Thus, although Riverkeeper I and Riverkeeper II conclude that the statutory reference to "minimiz[ing]" an environmental impact does not include the concept of after-the-fact compensation, those comments are inapposite here because they were made in a wholly different statutory context.
For all of these reasons, we find no merit in Surfrider's argument that the restoration of wetlands required by the MLMP was improperly included in the Minimization Plan as one of the measures to minimize the intake and mortality of marine life.
Surfrider's final contention is that, in several respects, the Regional Board used the wrong approach when considering whether the Minimization Plan complied with the requirement of section 13142.5(b) that "the best available site, design, technology, and mitigation measures feasible ... be used to minimize the intake and mortality of all forms of marine life." (Ibid.) As Surfrider explains, it is "specifically challenging the legal sufficiency of the analytical framework adopted by the [Regional] Board in evaluating the proposed [desalination facility's] compliance with the Water Code."
As set forth in the Regional Board's May 13, 2009 order, the four fundamental project objectives set by Poseidon were "(1) to provide a local and reliable source of potable water not subject to variations of drought or
To evaluate Surfrider's argument, we begin with the applicable definition of "feasible." Although section 13142.5(b) refers to "feasible" measures to minimize intake and mortality, the Water Code does not provide a definition of that word. The Minimization Plan and the Regional Board's May 13, 2009 order chose to use the definition set forth in CEQA, under which "`[f]easible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors." (Pub. Resources Code, § 21061.1.) Surfrider does not expressly reject the idea of borrowing CEQA's definition of feasibility in this context. Rather, it argues that "the fact that this definition of feasible permits the [Regional] Board to take into account `economic' factors does not permit the [Regional] Board to give unequal weight to cost considerations." It contends that the Regional Board unduly focused on Poseidon's goal of "`provid[ing] water at or below the cost of imported water supplies.'" We disagree.
Under the case law applying CEQA's definition of feasibility, "[a]though a lead agency may not give a project's purpose an artificially narrow definition, a lead agency may structure its EIR alternative analysis around a reasonable definition of underlying purpose and need not study alternatives that cannot achieve that basic goal." (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1166 [77 Cal.Rptr.3d 578, 184 P.3d 709].) According to our review of the record, the Regional Board fully complied with that approach. The identified purpose of providing water at or below the cost of imported water supplies is a sensible and reasonable project goal for a desalination facility, and is not unduly narrow.
Second, Surfrider contends that the Regional Board "completely relied on Poseidon's and other agencies' representations of whether alternatives were feasible rather than conduct an independent analysis." We reject this argument because it is refuted by the text of the Minimization Plan and the Regional Board's May 13, 2009 order. Both of those documents contain extensive and detailed discussion about the feasibility of alternatives to the proposed site, design and technology of the desalination facility, and that analysis is set forth independently rather than relying on the analysis and conclusions of other agencies. In addition, the record contains extensive analysis by the Regional Board's own staff. The Regional Board adopted as findings the 236-page responsiveness summary prepared by its staff analyzing the Minimization Plan, and it conducted several public hearings on the Minimization Plan before approving it.
Third, in a related argument, Surfrider states that "the [Regional] Board's analysis was not independent because the analysis ... generally follows CEQA findings made by the Coastal Commission and the City of Carlsbad. These findings led to the equating of the minimization of environmental impact with the minimization of intake and mortality."
Finally, Surfrider contends that in approving the Minimization Plan the Regional Board did not properly analyze the impact to marine life mortality if the desalination facility operated permanently in a stand-alone mode, i.e., Scenario 3. This contention fails because, as we have explained, the Regional Board's May 13, 2009 order expressly stated that in the event the EPS is permanently shut down, Poseidon will have to obtain a new NPDES permit for operation under those conditions and the Regional Board will consider the implementation of additional measures at that time. It was reasonable for the Regional Board to defer the decision about what measures to require as a condition of operating the desalination facility in the future under Scenario 3, as that analysis will take place years in the future when new technology or designs may be available or environmental conditions may have changed. Requiring the Minimization Plan to address Scenario 3 at this point, prior to the development of new technology and without an understanding of future environmental conditions, would not further the goal of minimizing the intake and mortality of marine life.
The judgment is affirmed.
Huffman, Acting P. J., and Haller, J., concurred.
