Foundation v. Cal. Reg'l Water Quality Control Bd.

Citation149 Cal.Rptr.3d 763,211 Cal.App.4th 557
Decision Date30 November 2012
Docket NumberD060382
CourtCalifornia Court of Appeals
PartiesSURFRIDER 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.

211 Cal.App.4th 557
149 Cal.Rptr.3d 763

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.

D060382

Court of Appeal,
Fourth District, Division 1, California.

Filed November 30, 2012



APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge.
Affirmed. (Super.Ct. No. 37–2010–90436–CU–WM–OTL)
Irell & Manella, Andra Barmash Greene and Bradley J. Leimkuhler for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, Helen G. Arens and Daniel M. Lucas, Deputy Attorneys General, for Defendant and Respondent.


Latham & Watkins, Christopher W. Garrett, Paul N. Singarella, Jeffrey P. Carlin and Lauren B. Ross for Real Parties in Interest and Respondents Poseidon Resources (Channelside) LLC, Poseidon Resources Corporation and Poseidon Water LLC.

Allen, Matkins, Leck, Gamble, Mallory & Natsis, Jan S. Driscoll and Heather S. Riley for Real Parties in Interest and Respondents City of Carlsbad, Carlsbad Municipal Water District and Vallecitos Water District.

Ronald R. Ball, City Attorney, for Real Parties in Interest and Respondents City of Carlsbad and Carlsbad Municipal Water District.

Sheppard, Mullin, Richter & Hampton and Dana J. Dunwoody for Real Party in Interest and Respondent Cabrillo Power I LLC.

Best, Best & Krieger, Melissa W. Woo and James B. Gilpin for Real Parties in Interest and Respondents Sweetwater Authority, Valley Center Municipal Water District, Santa Fe Irrigation District, Olivenhain Municipal Water District, Rincon del Diablo Municipal Water District and Rainbow Municipal Water District.

IRION, J.

[211 Cal.App.4th 561]

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)),1 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[149 Cal.Rptr.3d 768]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

[211 Cal.App.4th 562]

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).2 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 [149 Cal.Rptr.3d 769]during the EPS's operations; and (4) discontinuing periodic heat treatment of the seawater intake and discharge. 3

[211 Cal.App.4th 563]

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.” 4 Several agencies, including the Regional Board and the Coastal Commission, coordinated with Poseidon to develop the required MLMP. In August 2008, the Coastal Commission

[211 Cal.App.4th 564]

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[149 Cal.Rptr.3d 770]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.) 5

Poseidon submitted a draft Minimization Plan in...

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