HomeMy WebLinkAbout2009-09-15; City Council; 19964 Part 4; Part 4 - Desalination Project Changes - EIR 03-05A |DA 05-01A|HMP 05-08A|PDP 00-02B|RP 05-12A|SP 144J|Page 1 of 236
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
SAN DIEGO REGION
9174 Sky Park Court, Suite 100
(858) 467-2952 • Fax (858) 571 -6972
http://www.waterboards.ca.gov/sandiego
RESPONSIVENESS SUMMARY
INCLUDING RESPONSES TO COMMENTS
ORDER NO. R9-2009-0038
AMENDING
ORDER NO. R9-2006-0065 (NPDES NO. CA0109223)
WASTE DISCHARGE REQUIREMENTS FOR
THE POSEIDON RESOURCES CORPORATION
CARLSBAD DESALINATION PROJECT
DISCHARGE TO THE PACIFIC OCEAN VIA
THE ENCINA POWER STATION DISCHARGE CHANNEL
The Carlsbad Desalination Project (CDP) has been subject to extensive regulatory
process before this agency and other resource agencies, and the March 27, 2009 Flow,
Entrainment and Impingement Minimization Plan has been considered in several
iterations at four public meetings before the Regional Board, with substantial public
comment. Substantial additional comments regarding the details of the Regional
Board’s proposed decision were received in February, March and April of 2009,
including at the public hearing held on April 8, 2009. To fully respond to this additional
public comment, to provide a detailed explanation for the bases for the Board’s decision
on this matter, and to provide citations to the evidence upon which the Board has based
its decision, the California Regional Water Quality Control Board, San Diego Region
(hereinafter Regional Board) staff have prepared the following summary of significant
issues and responses to comments submitted throughout the course of this proceeding
as follows:*
Summary of Significant Issues
Description of the CDP
* Staff endeavored to create a Responsiveness Summary that is as complete as possible. Due to the
volume of comments received by the Regional Board, however, staff focused on the most significant
issues and comments. In additon, staff attempted to minimize redundant responses to similar comments,
which resulted in some minor inconsistencies in the corresponding responses, and, in some cases, a
response of “comment noted.” In those situations, the reader should also review the responses to similar
comments for the full context of the response. Finally, many of the most recent comments were received
too late for substantive written responses. The most significant of those comments will be responded to
orally by staff at the Board Meeting.
Responsiveness Summary and Responses to Comments
Order No. R9-2009-0038
Page 2 of 236
On August 16, 2006, the Regional Board adopted Order No. R9-2006-0065 (NPDES
No. CA0109223) (Order No. R9-2006-0065) establishing waste discharge requirements
for Poseidon Resources Corporation’s (Discharger) Carlsbad Desalination Project
(CDP).
As described in revised Tentative Order No. R9-2009-0038, the CDP will convert
approximately 107 million gallons per day (MGD) of source water into approximately 50
MGD of potable water. The other 57 MGD will be discharged as a combined waste
stream comprised of concentrated saline wastewater and filter backwash wastewater.
Approximately 197 MGD of additional source water will be used to dilute the 57 MGD
wastewater stream, for a total discharge flow rate of approximately 254 MGD. The 197
MGD of additional source water not used for production is needed as dilution water to
allow the CDP to comply with the salinity requirements of the NPDES permit. The total
source water needed for conversion to potable water and dilution of the waste stream
will be approximately 304 MGD.
The CDP will be located adjacent to an existing power plant referred to as the Encina
Power Station (EPS). The EPS includes an intake structure that draws water from Agua
Hedionda Lagoon (AHL) to supply cooling water for its electricity generation operations.
After use, the cooling water the EPS withdraws from AHL is discharged to the Pacific
Ocean. The CDP will use the existing intake and discharge system of the EPS to
supply its source water, and discharge its wastewater stream. The CDP will use the
water the EPS discharges after it has been used for cooling purposes (shown on CDP
Flow Schematic – April 9, 2009 Regional Board Agenda Item No. 7, Attachment 1b).
On some days, it is expected that the EPS will not discharge enough water to supply the
304 MGD needed for its desalination operations. On those days, the intake system will
withdraw from AHL additional water above and beyond what the EPS is using in order
to supply the CDP. Although the cooling water withdrawals of the EPS vary from year
to year, information available from 2008 indicates that the EPS would have met
approximately 89% percent of the CDP’s water needs (i.e., 304 MGD), had the CDP
been in operation in calendar year 2008 (March 27, 2009 Flow, Entrainment and
Impingement Minimization Plan, Attachment 1 - EPS 2008 Daily Flow Data). Since the
fifth EPS generating unit (Unit 5) was put into service in 1976, annual water use at the
EPS for cooling water purposes has never dropped below 61% of the water that would
be needed on a daily basis by the CDP. (Minimization Plan, 6-4.)
Relationship of Board Action to Prior Board Actions
In issuing Order No. R9-2006-0065, the Regional Board previously determined the
Discharger’s obligations under the federal Clean Water Act, 33 U.S.C. § 1251 et seq.,
and the National Pollutant Discharge Elimination System (NPDES), 33 U.S.C. § 1342.
Tentative Order No. R9-2009-0038 pertains exclusively to the Discharger’s obligations
under a provision of state law applicable to seawater intakes, specifically California
Water Code (CWC) Section 13142.5(b). CWC Section 13142.5(b) provides that: “For
each new or expanded coastal powerplant or other industrial installation using seawater
for cooling, heating, or industrial processing, the best available site, design, technology,
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Order No. R9-2009-0038
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and mitigation measures feasible shall be used to minimize the intake and mortality of
all forms of marine life.”
When the Regional Board reviewed the CDP in 2006 and issued Order No. R9-2006-
0065, the Board determined that when the EPS is discharging sufficient water to meet
the proposed source water needs of the CDP (304 MGD), the potential for the CDP to
cause intake and morality of marine life, i.e., impingement and entrainment, is de
minimis. (Order No. R9-2006-0065, Attachment F – Fact Sheet, Section VII.B.4.b.)
Order No. R9-2009-0038, concerns, therefore, the situation in which the EPS is not
generating sufficient discharge to meet the source water intake needs of the CDP (“co-
location operation for CDP benefit”). Co-location operation for CDP benefit can occur
under two conditions: (1) when some or all of the generating units at the EPS are
temporarily shut down, or (2) when some or all of the generating units at the EPS are
operating but its discharge volume is not sufficient to meet the CDP’s intake
requirements.
Minimization Plan Provisions and Proceedings
To ensure compliance with CWC Section 13142.5(b) when the CDP is operating in co-
location mode (versus complete stand-alone mode when the EPS has permanently
ceased operations), Section VI.C.2.e of Order No. R9-2006-0065 required the
Discharger to submit for Regional Board approval a Flow, Entrainment and
Impingement Minimization Plan (Minimization Plan) that “shall assess the feasibility of
site-specific plans, procedures, and practices to be implemented and/or mitigation
measures to minimize the impacts to marine organisms when CDP intake requirements
exceed the volume of water being discharged by the EPS” within 180 days of adoption
of the Order No. R9-2006-0065.
To satisfy Section VI.C.2.e. of Order No. R9-2006-0065, the Discharger relied upon
data collected in AHL pursuant to a field study, the work plan for which was approved by
the Regional Board. These data were collected for the purpose of characterizing
entrainment and impingement at the EPS’s intake structure. The EPS is subject to
federal Clean Water Act Section 316(b), 33 U.S.C. § 1326(b), which requires “that the
location, design, construction, and capacity of cooling water intake structures reflect the
best technology available for minimizing adverse environmental impact.” The work
plan, entitled, “Cabrillo Power I LLC, Encina Power Station, 316(b) Cooling Water Intake
Effects Entrainment and Impingement Sampling Plan,” was reviewed and approved by
the Regional Board, U.S. Fish and Wildlife Service (USFWS), California Department of
Fish and Game (CDFG), and other agencies. (March 27, 2009 Flow, Entrainment and
Impingement Minimization Plan, Attachment 4). The results of the field program,
conducted in 2004-2005, are provided in the report entitled, “CLEAN WATER ACT SECTION
316(b) IMPINGEMENT MORTALITY AND ENTRAINMENT CHARACTERIZATION STUDY, Effects on
the Biological Resources of Agua Hedionda Lagoon and the Nearshore Ocean
Environment, January 2008” (“E & I Study”). (Latham & Watkins comment letter dated
January 26, 2009, Appendix A, Tab 3.)
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On February 13, 2007, the Discharger submitted a draft Minimization Plan dated
February 12, 2007 in order to comply with Section VI.C.2.e. of Order No. R9-2006-0065.
After input from Regional Board staff and the public, the February 2007 draft was
followed by a June 1, 2007 Minimization Plan. The Minimization Plan was divided into
chapters addressing the four principal factors of CWC Section 13142.5(b) – site, design,
technology, and mitigation – to be used to minimize the intake and mortality of marine
life.
Regional Board staff reviewed the revised Minimization Plan over the next several
months and in a letter to the Discharger dated February 19, 2008, Regional Board staff
identified several issues to be addressed before the Minimization Plan would be ready
for Regional Board approval. In response to staff’s February 19, 2008 letter, on March
7, 2008, the Discharger submitted an updated version of the Minimization Plan, dated
March 6, 2008. The Regional Board conditionally approved the March 6, 2008 version
of the Minimization on April 9, 2008 (Resolution No. R9-2008-0039).
On April 17, 2008, Regional Board staff questioned the Discharger, through an email,
whether the value calculated for potential impingement in the March 6, 2008
Minimization Plan was in error. The daily average of 0.96 kg appeared to have been
calculated by dividing the weight of fish collected during 52 sample days by 365 days
(instead of 52), and fish counts and weights presented as prorated to 304 MGD did not
appear to be prorated. On April 30, 2008, the Discharger sent an email to staff
confirming that the March 6, 2008 Plan contained an error in the calculation used to
convert the 2004-2005 EPS sample data to a CDP daily projection. While the
Discharger acknowledged the March 6 Plan contained an error, it did not provide a
projection based on corrected, prorated EPS data. Instead, it provided staff with a linear
regression of the 2004-2005 EPS data for fish weight, exclusive of two high days of
impingement, as an approach it wished staff to consider. This new approach estimated
impingement at 1.56 kg/day. The Discharger revised the March 6, 2008 Minimization
Plan then pending before the Board to remove the incorrect calculation when it
submitted the March 9, 2009, Minimization Plan.
While the March 6, 2008 Minimization Plan was pending before the Regional Board, the
California Coastal Commission also was evaluating the potential for entrainment and
impingement at the CDP, as part of the proceedings related to the Coastal Development
Permit for the CDP. The Discharger prepared the Marine Life Mitigation Plan (MLMP)
both to satisfy conditions imposed by the Coastal Commission and to satisfy the
requirements of Resolution No. R9-2008-0039 to evaluate mitigation options for the
CDP. On November 18, 2008, the Discharger submitted the final MLMP to the
Regional Board as an amendment to the mitigation provisions in the March 6, 2008
Minimization Plan to satisfy the conditions of Resolution No. R9-2008-0039.
On February 11, 2009, the Regional Board held a hearing to consider whether the
MLMP satisfied the conditions established in Resolution No. R9-2008-0039, and, if not,
whether the Resolution was thereby inoperative by its own terms. At the
commencement of the meeting, the Executive Officer identified a narrowed list of staff’s
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outstanding issues concerning the March 6, 2008 Minimization Plan, as supplemented
by the MLMP, including “(3) Poseidon to provide the flow-proportioned calculations for
Poseidon’s impacts due to impingement, to help support the Board’s determination that
these impacts are de minimis.“
Regional Board staff and the Discharger met to discuss the outstanding issue no. 3 on
numerous occasions following the February 11, 2009 meeting. During these
discussions, the Discharger submitted “flow-proportioned calculations,” corrected as
compared to the March 6, 2008, Minimization Plan, which resulted in an estimated
projected impingement of 3.74 kg/day, derived by prorating all 52 samples to 304 MGD.
When two days of data considered by the Discharger to be “outliers” are excluded, the
“flow-proportioned calculations” result in an estimated projected impingement of 2.11
kg/day. As a result of the discussions, the Discharger also developed several other
estimates of impingement using variations on these methodologies.
On March 9, 2009, the Discharger submitted a revised Minimization Plan, including the
MLMP, for Regional Board consideration. The March 9, 2009 Minimization Plan
included revisions to Chapter 6 regarding mitigation, including the incorporation of the
MLMP, additional provisions placing the Regional Board on equal footing with the
Coastal Commission to address outstanding issue no. 1, and provisions identifying the
five sites within the Regional Board boundaries as priority mitigation sites to address
outstanding issue no. 2. It also included Attachment 5, which explained and identified
several possible approaches to estimating impingement, including a flow-proportioned
approach and a linear regression approach, and three variations of the other two
approaches. Among these approaches is “Proportional Approach 3-B” which results in
an estimate of 4.7 kg/day of projected impingement.
The Discharger believes that other approaches resulting in lower estimates are more
appropriate and submitted revisions to the Minimization Plan on March 27, 2009 to
provide additional analysis to support its claim that two days of high impingement during
the 2004-2005 sample period are “outliers” and should be excluded from impingement
estimates. While staff and the Discharger disagree about whether it is appropriate to
exclude two high impingement days from the 2004-2005 EPS sample period, it is
unnecessary to resolve this dispute because, at the April 8, 2009 meeting, the
Discharger agreed to monitor impingement at the intake and fish productivity at the
mitigation site(s) and to meet a fish productivity performance standard of 4.7 kg/day
(1715.5 kg/year), a number derived from Proportional Approach 3-B. The Board staff
believes that 4.7 kg/day is a reasonable, conservative, estimate of impingement.
After receiving extensive public comment at its April 8, 2009 hearing regarding the
Minimization Plan, the Regional Board closed the record and continued the matter for
final decision at its May 13, 2009 meeting.
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SITE
Chapter 2 of the Minimization Plan addresses the “site” factor of CWC Section
13142.5(b). The CDP will be co-located with the EPS and use the EPS’s existing intake
and discharge facilities, which draw cooling water from AHL and discharge into the
Pacific Ocean. A number of commenters requested that the Regional Board consider
alternative sites for the CDP outside of the Carlsbad area, including areas elsewhere in
San Diego County and elsewhere in California. To determine whether these alternative
sites are feasible under conditions of co-location operation for CDP benefit, the Board
has examined the fundamental project objectives of the CDP, based on the evidence
before it, including the objectives as described by the Discharger and the City of
Carlsbad in its comments, the objectives as described in the EIR certified by the City of
Carlsbad, and the project objectives as described in the August 6, 2008 findings of the
Coastal Commission.
As described by the Discharger, the approximately 50 MGD of potable water that the
CDP will produce will be enough water to supply approximately 300,000 San Diego
County residents, or approximately 112,000 households. The Discharger is under
contract to provide the water from the CDP to various water agencies in the San Diego
region. The City of Carlsbad has contracted with the Discharger to allow the City to
take up to 100 percent of its water needs from the desalination plant, approximately 25
MGD or 27,990 af/yr. Carlsbad has contract rights to 25 MGD and will take water based
on daily demand projected at between 10 MGD and 25 MGD. The following additional
cities and water districts have contracts with the Discharger to provide desalinated
water to the customers in their service territories: City of Oceanside for up to 5,000
af/yr; Olivenhain Water District for up to 5,000 af/yr; Rainbow Municipal Water District
for up to 7,500 af/yr; Rincon Del Diablo Municipal Water District for up to 4,000 af/yr;
Santa Fe Irrigation District for up to 2,000 af/yr; Sweetwater Authority for up to 2,400
af/yr; Vallecitos Water District for up to 7,500 af/yr; Valley Center Municipal Water
District for up to 7,500 af/yr. (Latham & Watkins comment letter dated April 2, 2009,
Appendix C, Tab 31.)
The Discharger defines the CDP’s fundamental project objectives as: (1) allowing
Carlsbad to purchase 100 percent of its potable water supply needs from the
desalination plant, thus providing a secure, local water supply that is not subject to the
variations of drought or political or legal constraints; (2) reducing local dependence on
water imported from outside the San Diego County area and from outside of Carlsbad
and surrounding areas; (3) providing water at or below the cost of imported water
supplies; and (4) meeting the CDP's planned contribution of desalinated water as a
component of regional water supply planning goals. The objectives are summarized in
the Environmental Impact Report certified by the City of Carlsbad for the CDP and
related findings adopted by the City, and on page 14 of 106 of the findings adopted on
August 6, 2008 by the California Coastal Commission for the Coastal Development
Permit adopted for the project.
Among the fundamental project objectives of the CDP as defined by the Discharger is
the objective to provide a local and reliable water source. The record indicates that the
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City of Carlsbad will be able to meet 100 percent of its potable water supply needs from
the desalination plant, a secure, local water supply not subject to the variations of
drought or political or legal constraints. Any site for the project outside the City of
Carlsbad might subject the project to the control of other water agencies or
governmental jurisdictions. For example, if the project were to be sited in another city,
that city might exercise its police powers to utilize the water within its own jurisdiction, or
to regulate or prohibit the transmission of water outside of its municipal boundaries.
Thus, sites outside of Carlsbad could potentially conflict with this fundamental project
objective, which would mean that any such site is neither available nor feasible for use
by the CDP, under conditions of co-located operation, within the meaning of Water
Code section 13142.5(b).
A second fundamental project objective of the CDP as defined by the Discharger is
reducing local dependence on water imported from outside the San Diego County area
and from outside of Carlsbad and surrounding areas. Importation of water over
substantial distances increases the cost of the water, increases the energy necessary to
deliver the water, and makes the supply of water less secure and more vulnerable to
disruption from broken or inoperable pipelines due to earthquakes or other natural
disasters. Also, as noted on page 2-6 of the Minimization Plan, long-distance
transportation of water from the CDP to its intended users would cause an increase in
carbon emissions because significant additional energy would be required to
accomplish it, thereby increasing greenhouse gas emissions associated with the
Project. Any site too remote from Carlsbad and surrounding areas would simply be
another form of “imported water” that would have to be transported to the location of the
agencies that are purchasing the water. While one of the agencies purchasing the
water from the CDP is located in southern San Diego County, the remaining agencies
provide water service within Northern San Diego County and the vicinity of Carlsbad.
Considering this fundamental project objective, the Regional Board concludes that
alternative sites that are too remote from Carlsbad would not be feasible to minimize the
intake and mortality of all forms of marine life pursuant to Section 13142.5(b) under
conditions of co-located operation for the CDP benefit.
A third fundamental project objective of the CDP identified by the Discharger is
providing water at or below the cost of imported water supplies. Alternative sites would
each require the construction of a new form of seawater intake system. The
construction of a new seawater intake system of any type, such as a new seawater
intake at the Encina Water Pollution Control Facility (see, e.g., Minimization Plan at 2-5)
or the construction of a new seawater intake infiltration gallery, (see e.g., Coastal
Commission August 6, 2008 findings at Page 51 of 106), would be very costly or “cost
prohibitive” and increase the cost of production of the water well above the cost of
imported water supplies. Under conditions of co-located operation, the existing intake
may be used while EPS is operating. Therefore, alternative sites requiring the
construction of a new seawater intake system are not feasible to minimize the intake
and mortality of all forms of marine life pursuant to Section 13142.5(b) under these
circumstances.
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Another important objective of the CDP is its planned contribution of desalinated water
as a component of meeting regional water supply planning goals. The Discharger
reports that CDP’s expected output of 50 MGD will supply about 10 percent of the
desalinated water needed in California by 2030, according to the Department of Water
Resources, and 56,000 af/yr out of the 150,000 af/yr of desalinated water that is needed
to ensure regional reliability, according to the Metropolitan Water District of Southern
California. In order to satisfy this objective, the CDP must be constructed at a site that
can accommodate a 50 MGD facility, so that the CDP’s output will be sufficient to satisfy
Carlsbad’s demand, the demand of other local agencies, and the CDP’s planned
contribution of desalinated water as a component of regional water supplies. The
Project Environmental Impact Report (EIR), certified by Carlsbad on June 13, 2006,
analyzed a reduced output (25 MGD) alternative but found that the alternative would be
insufficient to satisfy the CDP’s planned contribution to regional water supplies or the
demand of local agencies other than Carlsbad. Considering this fundamental project
objective alternative sites that can not accommodate a 50 MGD facility are not feasible
to minimize the intake and mortality of all forms of marine life pursuant to Section
13142.5(b) under conditions of co-located operation for CDP benefit.
As described on Page 2-4 of the Minimization Plan, the EIR, certified by the City of
Carlsbad on June 13, 2006, analyzed a number of alternative sites within the
boundaries of the EPS and alternative sites within the boundaries of the Encina Water
Pollution Control Facility. The Coastal Commission staff requested an evaluation of
other potential locations for the desalination facility and its associated infrastructure. As
a result, the Discharger added the Maerkle Reservoir site to the list of alternative sites
considered. Each of these sites is neither available nor feasible for the reasons set
forth in the Minimization Plan Sections 2.2.1, 2.2.2 and 2.2.3, and the findings adopted
by the City of Carlsbad on June 13, 2006 and the California Coastal Commission on
August 8, 2008. These facts support the Board’s determination that the site proposed
by the Discharger is the best available site feasible to minimize the intake and mortality
of all forms of marine life pursuant to Section 13142.5(b) under conditions of co-location
operation for the CDP benefit.
In its findings adopted on August 6, 2008, the Coastal Commission found that “[t]here
are no feasible and less environmentally damaging alternative locations to draw in the
needed seawater (e.g. subsurface or offshore).” (Page 28 of 106.) The Coastal
Commission further noted on page 48 of 106 of its findings, based on evidence
presented in the City of Carlsbad Environmental Impact Report, that alternative intake
systems at other sites, such as horizontal wells, vertical beach wells or infiltration
galleries in lieu of the CDP’s use of the EPS power plant intake system at the proposed
EPS site “would cause more significant impacts than those caused by the existing [EPS
site] power plant intake and that they would be economically infeasible.” On page 51 of
106, the Coastal Commission found that alternative sites using proposed or potential
(but unbuilt) alternative seawater intake systems, such as slant wells at Dana Point or
elsewhere, infiltration galleries, horizontal wells, vertical beach wells or other types of
subsurface intakes would be infeasible alternative sites for the CDP project: “[T]he
proposed alternatives would result in greater environmental impacts than the proposed
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project due to the destruction of coastal habitat from construction of intake systems, the
loss of public use of coastal land due to numerous intake collector wells that would be
located on the beach, and the adverse environmental impacts to coastal resources
during construction, including but not limited to the creation of negative traffic, noise,
and air pollution impacts.”
The Coastal Commission’s finding that there are no feasible and less environmentally
damaging alternative locations available to the Project is noted and cited on page 2-8
and note 6 of the Minimization Plan. The Regional Board has considered these
conclusions and gives them great weight in finding that the site proposed by the
Discharger is the best available site feasible to minimize the intake and mortality of all
forms of marine life pursuant to Section 13142.5(b) under conditions of co-location
operation for the benefit of CDP.
When the Board adopted Order No. R9-2006-0065 in 2006 granting approval of the
CDP, it determined that the EPS site was appropriate for the project under Section
13142.5(b), despite the possibility of impacts to marine life for operations when the EPS
was not generating sufficient discharge to meet the source water intake needs of the
CDP. The Board required that a Minimization Plan be prepared to assess the feasibility
of “site-specific” plans, procedures, practices and mitigation measures to minimize
impacts and address any “additional review” required by Section 13142.5(b). Thus the
Board determined in 2006 that the EPS site was the best available site feasible to
minimize the intake and mortality of all forms of marine life pursuant to Section
13142.5(b) under conditions of co-location operation for the benefit of CDP. Such 2006
determination constitutes a separate and independent basis for a determination that the
CDP has complied with 13142.5(b) for co-location operation. However, because of the
possibility that such 2006 determination might be challenged indirectly through an attack
on the Board’s approval of the Minimization Plan, as a separate and alternative ground,
the Board (at the Discharger’s request) has reexamined anew without regard to its 2006
determination, the question of the appropriate site for the CDP and has made the
determination in this Order, including review of the information set forth above, that the
proposed site is the best available site feasible to minimize the intake and mortality of all
forms of marine life pursuant to Section 13142.5(b) under conditions of co-located
operations.
One commenter at the April 8, 2009 hearing suggested that a feasible alternative site
for the CDP would be to locate the CDP somewhere else in San Diego County, and
then use the San Diego County Water Authority Pipeline to transfer the water or use
“paper water credits” to allow project users to get the benefit of water production. Such
an alternative site would neither be available nor feasible within the meaning of Section
13142.5(b) for the reasons that (1) no alternative location with access to seawater was
described by the commenter; (2) locations remote from the ocean would be infeasible
due to the lack of access to seawater, or the extremely high costs and logistical
problems of pumping seawater and brine to and from the desalination facility remote
from the ocean; and (3) another location in San Diego County would require the
construction of a new seawater intake system. The construction of new seawater intake
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systems at sites other than the EPS was found to be infeasible due to the costs of
constructing a completely new intake system when the existing intake operated at EPS
is available to meet CDP’s intake needs while under co-located operation.
MITIGATION
Chapter 6 of the March 27, 2009 Minimization Plan addresses the best available
mitigation feasible to minimize the intake and mortality of marine life pursuant to CWC
Section 13142.5(b).
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.
Chapter 5 of the Minimization Plan estimates potential entrainment and impingement
that may be associated with the CDP under conditions tantamount to stand-alone
operations with a permanent shutdown of the EPS. That is, these estimates assume
that the CDP receives all 304 MGD of its source water from AHL and no water from the
EPS’s discharges. These estimates are not reduced to account for co-located
operations, although the Order will require review under Water Code section 13142.5(b)
of mitigation if CDP proposes to operate in stand-alone mode, with permanent shut
down of EPS generating units.
Chapter 6 of the Minimization Plan prescribes mitigation requirements, the
implementation of which is expected to fully compensate for the potential entrainment
and impingement identified in Chapter 5. The Order requires productivity monitoring
through establishment of a fish productivity standard, or biological performance
standard, of 1,715.5 kg/year. In addition, the success of mitigation for entrainment
associated with CDP’s operations will be measured through the MLMP.
Entrainment
For purposes of preparing the MLMP, the CDP’s entrainment was projected using the
Empirical Transport Model (“ETM”), which is a widely used model to estimate mortality
rates resulting from water intake systems. The ETM calculates what is known as the
Area of Production Foregone (APF)—a value that represents the number of acres of
habitat that will provide wetlands benefits sufficient to mitigate for the fish larvae that
pass through the intake screens and become entrained in a water intake system.
As discussed in the Minimization Plan, the ETM is an algebraic model that incorporates
two basic variables: Source Water Body (SWB) and Proportional Mortality (Pm). The
Source Water Body (SWB) represents the number of acres in which larvae populations
are subject to entrainment. The SWB value is limited to the area in which mature fish
produce eggs and larvae. If mature fish do not spawn in a given area, that area will
contain no entrainable organisms—i.e., no larvae to be drawn into and entrained by the
intake system. The SWB for the CDP is primarily AHL.
Proportional Mortality (Pm) represents the percentage of the population of a marine
species in a given water body that will be drawn in and entrained by a water intake
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system. The Pm ratio is calculated by dividing (a) the number of larvae that are
entrained in a water intake system by (b) the number of larvae in the same water body
that are subject to entrainment (i.e., entrainable).
Tenera Environmental (“Tenera”) collected entrainment samples in AHL as part of its
entrainment and impingement study. Based on the entrainment data derived from
sampling at the EPS intake, Tenera estimated the proportional entrainment mortality
(Pm) of the most commonly entrained larval fish living in AHL by applying the ETM to
the data. To estimate the CDP’s potential entrainment, Tenera computed the values
based on a total flow rate of 304 MGD. Tenera concluded that the entrainment effect of
the Project’s stand-alone operation would influence 36.8 acres of Agua Hedionda
Lagoon (i.e., APF = 36.8 acres). The ETM results presented in the Minimization Plan
incorporated the assumptions of 100% mortality of all marine organisms entering the
intake and that species are evenly distributed throughout the entire depth and volume of
the water body.
In March 2008, the Discharger provided a copy of its entrainment study to the Coastal
Commission as required by Special Condition 8 of the CDP’s Coastal Development
Permit. Coastal Commission staff forwarded the study to Dr. Pete Raimondi for his
review and recommendations. Dr. Raimondi provided the initial results of his review
and recommendations to the California Coastal Commission (CCC) in April 2008. In
consultation with Dr. Peter Raimondi, the CCC evaluated the data provided by
Poseidon, and determined it appropriate to apply an 80% confidence interval to the APF
results, resulting in 49 acres of mitigation. For impacts to nearshore ocean waters, the
CCC imposed an additional 6.4 acres of wetland mitigation, on the basis that wetland
habitat would be ten times more productive than nearshore habitat. The CCC
concluded that 55.4 acres of wetland mitigation, to be implemented in two phases (an
initial 37 acres, followed by an additional 18.4 acres), would adequately compensate for
entrainment impacts for operation of the CDP at 304 MGD.
After reviewing Tenera and Dr. Raimondi’s work, the Coastal Commission concluded
that by creating or restoring up to 55.4 acres of estuarine wetlands, the Discharger “will
ensure the project’s entrainment-related impacts will be fully mitigated and will enhance
and restore the marine resources and biological productivity of coastal waters…”
(Condition Compliance Findings for Special Condition 8, Marine Life Mitigation Plan,
November 21, 2008, (approved December 10, 2008), p. 19 of 19.)
No new entrainment data has been generated since evaluation by the CCC. Therefore,
it is appropriate for the Regional Board to rely on the CCC’s findings with regards to the
adequacy of mitigation for entrainment impacts
Impingement
Like the entrainment projection, the CDP’s impingement projection was calculated using
data collected pursuant to the EPS’s Regional Board-approved 316(b) Impingement
Mortality and Entrainment Characterization Study plan. Tenera collected 52
impingement samples on a weekly basis from June 24, 2004 to June 15, 2005.
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As a result of extensive discussions following the February 11, 2009 meeting, the
Discharger submitted a revised Minimization Plan on March 27, 2009, including five (5)
approaches that could be used to estimate the potential for impingement when the CDP
operates in stand-alone mode. (See Minimization Plan Attachment 5.)
While the Discharger believes that the amount of impingement from the CDP under
standalone operations will be less 1.56 kg/day rather than 4.7 kg/day resulting from
Proportional Approach 3-B set forth in Attachment 5, the Discharger has agreed to
provide mitigation for impingement at an amount equal to 4.7 kg/day through a
commitment to produce up to 4.7 kg/day (1715.5 kg/year) of “available” fish biomass in
the mitigation wetlands, meeting a fish productivity standard of 1,715.5 kg/year. Fish
productivity studies indicate that the mitigation wetlands will likely produce
approximately 150 kg/acre/year of fish biomass. (Larry G. Allen, Seasonal Abundance,
Composition, and Productivity of the Littoral Fish Assemblage in Upper Newport Bay,
California, 80 Fishery Bull. 769 (1982), referenced in Attachment 7 to the Minimization
Plan.)
The Discharger has explained that the mitigation proposed in the MLMP was designed
to compensate for the three most commonly entrained lagoon fish groups, and the 5
most commonly entrained ocean species. Under this assumption, the mitigation
wetlands are expected to produce fish biomass in excess of that which is earmarked for
entrainment mitigation as described in Attachment 7 to the Minimization Plan. Based on
the acreage designated for intertidal/sub-tidal (49) and nearshore/ocean (6.4), mitigation
by the CCC, to the extent that the mitigation wetlands produce:
a. The three (3) most commonly entrained lagoon species, 12% (i.e., 6.4/55.4
acres) of their biomass would be available to count toward productivity for
impingement;
b. The five (5) most commonly entrained ocean species, 88% (i.e., 49/55.4
acres) of their biomass is available to contribute toward productivity for
impingement; and
c. All other fish, 100% of their biomass is available to contribute toward
productivity for impingement.
Although 12% of the biomass of the three (3) most commonly entrained lagoon species
is not reserved for entrainment mitigation and, as a logical matter, may be used to offset
potential impingement, the Discharger proposed in its Minimization Plan to exclude this
biomass from the impingement mitigation accounting. For present purposes, therefore,
the biomass of these three identified most commonly entrained lagoon species is never
available as impingement mitigation credit.
By committing to creating or restoring up to 55.4 acres of estuarine wetlands, the
Discharger provides a reasonable basis for concluding that the mitigation wetlands will
produce more than 1715.5 kg/year of fish biomass which is available to fully mitigate for
impingement associated with CDP’s operations. The Discharger has provided expert
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Page 13 of 236
opinion that the mitigation site(s) provided for under the MLMP will result in a net
productivity of fish biomass and provide mitigation for both entrainment and
impingement. Specifically, the Discharger concludes that every acre of subtidal
mudflats and/or intertidal habitat will produce approximately 150 kg/year of fish
biomass. The MLMP’s minimum standards provide that the mitigation site(s) must have
potential for extensive intertidal and subtidal areas. Assuming 60% of the restored
habitat consists of new subtidal and intertidal wetlands, the 37 acres to be constructed
in Phase I are expected to yield approximately 3,330 wet weight (ww)/year of fish
biomass, and the mitigation of 55.4 acres of such habitat are expected to yield
approximately 4,986 kg ww/yr of fish biomass.
To demonstrate that the mitigation wetlands produce at least 1715.5 kg/year of fish
biomass available to compensate for impingement losses, as described in the
Minimization Plan, the Discharger must conduct productivity monitoring in accordance
with a plan submitted by the Discharger for review to the CCC’s Scientific Advisory
Panel and review and approval by the Executive Officer pursuant to this Order. This
monitoring will be for purposes of measuring fish productivity according to specific
methodologies used by Allen, Seasonal Abundance, Composition, and Productivity of
the Littoral Fish Assemblage in Upper Newport Bay, California, 80 Fishery Bull. 769
(1982), referenced in Attachment 7 to the Minimization Plan. The Discharger may
propose additional or different methodologies, subject to review by the Scientific
Advisory Panel and review and approval by the Executive Officer.
The Discharger will also be required to monitor impingement associated with CDP
operations once they commence operations and may propose that the Executive Officer
adjust the fish productivity standard as appropriate. This monitoring program provides
for empirical verification of both the CDP’s impingement and the effective offset of such
impingement in the mitigation site(s).
Board Interpretation And Application Of Section 13142.5(b)
Under Section VI.C.2.e. of Order No. R9-2006-0065, the Regional Board reviews the
Minimization Plan to assure that the Project will be in compliance with CWC Section
13142.5(b), which provides that: “For each new or expanded coastal power plant 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.”
Order No. R9-2006-0065 requires an approved Minimization Plan to ensure that the
CDP complies with CWC Section 13142.5(b) when under conditions of co-location
operation for CDP benefit. To approve the Minimization Plan, the Regional Board must
determine that it provides for the use of the best available site, design, technology, and
mitigation feasible to minimize intake and mortality of all forms of marine life under
these operating conditions.
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Page 14 of 236
Counsel for Surfrider and Coastkeeper have argued in numerous public comments and
pending litigation that the Regional Board’s interpretation of CWC Section 13142.5(b)
must be harmonized with judicial interpretation of Section 316(b) of the federal Clean
Water Act, specifically Riverkeeper, Inc. v. U.S. E.P.A., 475 F.3d 83 (2007), rev'd,
remanded sub nom. Entergy Corp. v. Riverkeeper, Inc., No. 07-588, 2009 U.S. LEXIS
2498 (U.S. Apr. 1, 2009). To clarify, as found in R9-2006-0065, the Regional Board
finds that the Project is not subject to Clean Water Act Section 316(b), and further finds
that it is unnecessary to determine whether CWC Section 13142.5(b) should be
interpreted in accordance with Clean Water Act Section 316(b). The Regional Board
has analyzed the Minimization Plan to ensure that it provides for the use of the best
available site, design, technology, and mitigation feasible to minimize intake and
mortality of all forms of marine life, as is required to satisfy CWC Section 13142.5(b).
Counsel for Surfrider and Coastkeeper have also argued in numerous public comments
that CWC Section 13142.5(b) must be interpreted to require avoidance of intake and
mortality first, and then mitigation of any residual intake and mortality that cannot be
avoided. In accordance with this theory, they argue that CWC Section 13142.5(b)
creates a hierarchy for minimization, pursuant to which site, design, and technology
approaches must be selected first, with resort to mitigation only if those three
approaches do not minimize intake and mortality. In this instance, this theory is
irrelevant as those mitigation measures set forth under the Minimization Plan and,
correspondingly the MLMP, are being made in addition to, and not in place of,
measures taken under the site, design and technology elements of CWC Section
13142.5(b) to minimize intake and mortality of marine organisms by impingement and
entrainment.
The theory put forth by counsel for Surfrider and Coastkeeper that CWC Section
13142.5(b) creates a hierarchy of actions also is incorrect. CWC Section 13142.5(b)
does not express any preference for site, design and technology, over mitigation. It
does not characterize the former three approaches as avoidance approaches, to be
distinguished from mitigation. It does not reserve mitigation only for those situations
where intake and mortality cannot be avoided. Rather, CWC Section 13142.5(b)
provides discretion to the Regional Board to strike an appropriate balance among these
various factors, as may be achieved through a variety of approaches relying to greater
and lesser degrees on the four approaches authorized by the California Legislature to
minimize intake and mortality.
While unnecessary, the Regional Board has determined that its interpretation of CWC
Section 13142.5(b) corresponds with the interpretation set forth by the California Court
of Appeal, Sixth District in Voices of the Wetlands v. California State Water Resources
Control Board, 157 Cal. App. 4th 1268, 1351 (2007), modified, reh'g granted, No.
H028021, 2008 Cal. App. LEXIS 28 (Cal. Ct. App. Jan. 10, 2008), review granted,
depublished by, 74 Cal. Rptr. 3d 453 (2008), reserved by, No. S160211, 2009 Cal.
LEXIS 450 (Cal. Jan. 14, 2009), which states: “California law makes mitigation a
legitimate factor in certain circumstances. For example, a provision of state water law
contained in the Porter-Cologne Act, which governs ‘each new or expanded coastal
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Order No. R9-2009-0038
Page 15 of 236
power plant,’ expressly recognizes the availability of ‘mitigation measures’ as one way
‘to minimize the intake and mortality of all forms of marine life.’ (Wat. Code, § 13142.5,
subd. (b).).”
GENERAL
Implementation of the Minimization Plan, including its provisions related to impingement
and entrainment, is not required by the federal Clean Water Act and does not represent
an effluent standard or limitation within the meaning of Section 1365 of the federal
Clean Water Act, 33 U.S.C.S. § 1365. By requiring implementation of the Minimization
Plan, the Regional Board is requiring compliance with California Water Code Section
13142.5(b) and is mandating through this permit amendment a greater scope of
coverage than that required by the federal Clean Water Act and its implementing
regulations. These requirements are imposed solely as a function of state law for which
there is no federal corollary, do not relate to state water quality standards, and do not
relate to the planning, monitoring, and reporting requirements of the receiving waters
limitations and/or effluent limitations of the CDP’s NPDES permit, or any other element
of the Clean Water Act’s enforcement procedures.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 16 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 3/14/2008 letter from San Diego Desal Partners 1. In anticipation that the Encina Power Station (EPS) might not always satisfy the CDP's source water demands, the Regional Board required Poseidon to submit a Flow, Entrainment and Impingement Minimization Plan (Plan) to assess the feasibility of site specific plans, procedures, and practices to be implemented and/or mitigation measures to minimize the impacts to marine organisms when the CDP intake requirements exceed the volume of water being discharged by the EPS. The Regional Board review and approval of the Plan will address any additional review of the proposed desalination facility required pursuant to Water Code. The Plan has been available for public comment for the past 12 months and extensively revised on two occasions in response to Regional Board and public comments. As elected and appointed public officials, we urge your approval of the revised Flow, Entrainment & Impingement Minimization Plan before you. Comments noted. 3/19/2008 letter from San Diego Coastkeeper and Surfrider Foundation 2. We request a 30-day public comment period on the revised “Flow,Entrainment and Impingement Minimization Plan” (Minimization Plan) that was submitted by Poseidon Resources to the Regional Board on March 6, 2008. This order would approve the March 9, 2009 Minimization Plan as revised March 27 (hereafter March 27, 2009 Minimization Plan) and would supersede Resolution No. R9-2008-0039 adopted on April 9, 2008. The Regional Board has met all applicable public notice requirements for this Order. 3. In approving Tentative Order No. R9-2006-0065, granting NPDES Permit No. Ca0109223 (NPDES permit), the Regional Board considered public comments received during This order would approve the March 9, 2009 Minimization Plan as revised March 27 (hereafter March 27, 2009 Minimization Plan) and would
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 17 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE an extensive comment period. The original NPDES permit comment period started on May 8, 2006 and closed on June 14, 2006. After revisions to the NPDES permit were made, a second comment period was conducted until August 9, 2006. Thus, the original approval of the NPDES permit provided for almost 60 days of public comment. In contrast, today’s post of the agenda on the Board’s website provides only seven days for written comments (which will be extensive in keeping with the voluminous documents submitted by Poseidon) and a maximum comment period of 21 days before the hearing itself. supersede Resolution No. R9-2008-0039 adopted on April 9, 2008. The Regional Board has met all applicable public notice requirements for this Order. 4. As a consolidated permit issued pursuant to section 402 of the Federal Clean Water Act (CWA) and Chapter 5.5, Division 7 of the California Water Code (CWC), Poseidon’s permit is subject to section 10206 of the California Code of Regulations. Section 10206 states that a “summary of all decisions made pursuant to the consolidated permit for the project shall be made available for public review and comment upon the filing of the consolidated permit application form or the permit applications.” (emphasis added). Because the Minimization Plan is subject to approval and modification by the Regional Board, review of the Minimization Plan qualifies as a “decision made pursuant” to the NPDES permit. A consolidated permit is defined in Title 27 Section 10100 (c) as “a permit incorporating the environmental permits granted by environmental agencies for a project and issued in a single permit document by the consolidated permit agency.” Order No. R9-2006-0065 does not fall within the definition of a consolidated permit as defined in Title 27 Section 10100. 5. To allow time for coordination of a stakeholder meeting, adequate review by our experts, and full public participation, we request a formal public comment period. This action is necessary given that this project presents a new interpretation and implementation of the language in CA Water Code § 13142.5(b). Granting a formal comment period, with responses from staff, will assure that Board This comment is no longer applicable.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 18 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE members have all information before considering this important issue. Providing a sufficient amount of time may also avoid unnecessary complications in the permitting process in the future. We believe this project deserves extraordinary scrutiny in that the outcome has the potential to set important precedent for numerous similar project proposals statewide. 3/20/2008 letter from Coastal Commission 6. For the reasons provided below, we recommend the Board not take action on the Revised Plan at this time. In November 2007, the Coastal Commission approved a coastal development permit for Poseidon's desalination facility. Among the Commission's conditions of approval was a requirement that Poseidon submit its complete entrainment study and an acceptable Marine Life Mitigation Plan for further Commission review and approval before it can be issued a coastal development permit. For several reasons, we have determined that Poseidon's current Revised Plan is not yet adequate for Commission consideration - for instance, until we complete our review of Poseidon's entrainment study, we cannot determine whether Poseidon's proposed mitigation is appropriate or adequate to address the project's entrainment impacts; additionally, the mitigation options described in the Revised Plan do not include enough certainty or detail to show how they will actually mitigate for any anticipated impacts. We have taken steps to address the Revised Plan's current shortcomings. Regarding the entrainment study, Poseidon submitted additional necessary information about the study last week, and we have hired an independent science team to review that information for adequacy. We expect that Comments noted. The Board is considering approval of the March 9, 2009 Minimization Plan, as revised March 27, 2009. The Board’s action will supersede the conditional approval of April 9, 2008 (Resolution No. R9-2008-0039). Since the April 9, 2008 Board Meeting, the Discharger participated in an interagency meeting to determine what mitigation options might be available and feasible. Thirteen state and federal agencies were invited to attend, and staff representatives from the Regional Board, Coastal Commission, California State Lands Commission, California Department of Fish and Game, California Department of Transportation, City of Carlsbad, City of Vista, and U.S. Fish and Wildlife Service attended. The Discharger also coordinated with other agencies during this time. Since April 2008, the MLMP was revised numerous times in response to various agencies’ and public comments. The Coastal Commission approved the MLMP, with final language, in November 2008. While recent Coastal Commission comments indicate that the adequacy of the MLMP for impingement may be revisited, such potential action does not require the Board to postpone action. Order No. R9-2006-0065
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 19 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE review to be completed by mid-April. Additionally, we have been working with involved agencies, including Regional Board staff, to help Poseidon develop the mitigation measures suitable for Commission approval. With these coordination efforts underway, we believe it would be in the best interest of all parties for the Regional Board to refrain from taking action on Poseidon's current Revised Plan until the above-described interagency coordination initiatives have occurred. Although the Board is reviewing Poseidon's project under standards different from those of the Coastal Commission, we believe that deferral by the Board of its decision will facilitate coordination efforts between our two agencies and will result in a mitigation plan that fulfills the standards of the Regional Board, the State Lands Commission, and the Coastal Commission, all of which have common but distinct interests in protecting water quality and marine life. Further, if the Board were to approve the Revised Plan in its current form, Poseidon would still need to incorporate significant additional information and changes into its Plan to provide the certainty needed for the required Commission review and approval. Finally, we are concerned that action by the Board at this time on the Revised Plan would create a real or perceived conflict between the Board's action and the requirements imposed by the Commission in its November 2007 approval of Poseidon's project. This is likely to slow or confuse our ongoing review and coordination process, resulting in delay for Poseidon's project. specifically authorizes the Regional Board to require revisions to the Minimization Plan and the Board may require revisions, as necessary, to address any future Coastal Commission action. 3/26/2008 letter from Industrial Environmental Association 7. In October 2006, your Board issued a discharge permit for this project but further required a Flow, Entrainment and Comments noted. See response to Comment 6.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 20 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Impingement Minimization Plan be submitted to provide additional regulatory safeguards. That plan was submitted and has been revised twice at the request of your staff. The San Diego Regional Board will be voting on whether or not to accept and approve that plan on April 9. We believe that Poseidon has clearly demonstrated that they are using all feasible methods to reduce their entrainment and impingement impacts on the lagoon. Until your board approves this mitigation plan, the project cannot return to the State Lands Commission and the California Coastal Commission for the final project approvals needed before construction can begin. 3/26/2008 letter from City of Carlsbad, Office of the City Council 8. It's important to know that every regulatory agency that has reviewed the project, including the Coastal Commission itself, has determined the project to be necessary and environmentally sound. An unbiased, scientific review of the project has concluded that the Carlsbad desalination facility is a critical water supply project and an environmental preservation and enhancement project. It's a win-win. The Flow, Entrainment and Impingement Minimization Plan contains full and comprehensive response to the Regional Board's requirement that Poseidon assess the feasibility of the best available site, design, technology and mitigation for protection of the Pacific Ocean and Agua Hedionda Lagoon marine ecosystem. Your board's decision to accept and finalize this plan should be dependent solely on the merit of the plan - not by another agency's attempt to overstep its authority and undermine yours. Furthermore the plan complies with California Water Code Section 13142.5(b) and Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 21 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE by taking action the Regional Board is in no way violating the spirit or letter of the Porter-Cologne Act, as insinuated by Coastal Commission staff. 3/26/2008 letter from Hubbs- Sea World Research Institute 9. Over the years, HSWRI has provided written and oral testimony in support of the Carlsbad Desalination Project after reviewing the project very thoroughly to ensure that it would not have a negative impact on our operations. We have also studied their Flow, Entrainment and Impingement Minimization Plan which your board requested after approving a discharge permit for the project in 2006. We find that the desalination project has been designed with more than adequate coastal protections and mitigation measures to ensure the health of the marine ecosystem. It's also important to know approval of the project will result in additional lagoon acreage to be dedicated to the City of Carlsbad for the expansion of our white seabass enhancement program or related marine research. This dedication is in additional to the project's proposed mitigation plan and constitutes added environmental value. We have also reviewed the recently released draft Flow, Entrainment and Impingement Minimization Plan, which we believe to be a clear demonstration of the project's regard for the marine environment, especially the nearby lagoon which supports some endangered species. I urge you to approve this plan and bring our region one step closer to a reliable, affordable supply of water Comments noted. To clarify, no permitting action by this Board recognizes the approval of this project will result in additional lagoon acreage to be dedicated to the City of Carlsbad for the expansion of Hubbs-Sea World Research Institute white seabass enhancement program or related marine research. The mitigation site(s) have not yet been selected.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 22 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 3/26/2008 letter from San Diego North Economic Development Council 10. Seawater desalination is a critical component of the region's water supply strategy. Once approved, the Carlsbad Desalination Project will provide as much as 10% of our region's water needs at no additional costs to government or taxpayers. It is a win-win for the entire county which will benefit from an abundant, affordable and environmentally-benign water supply. Poseidon Resources' Flow, Entrainment and Impingement Minimization Plan before you on April 9th meets the requirements of the discharge permit the Regional Board issued in 2006. The Regional Board has the full discretion to approve the Plan and advance the project. On behalf of our members and all of their employees, we respectfully ask the Board to finalize approval of the discharge permit. It's the right decision for the region. Comments noted. 3/26/2008 letter from Andrew Davis, Carlsbad Aquafarm 11. My business cannot operate if the Agua Hedionda Lagoon is not healthy. At some point in the future, the Encina Power Plant will be decommissioned and their stewardship of the lagoon will end. That is why it is so important for the Carlsbad Desalination Project to be approved. The owners of the project, Poseidon Resources, have agreed to maintain and dredge the lagoon in perpetuity, guaranteeing it stays healthy. Poseidon's Flow, Entrainment and Impingement Minimization Plan clearly lays out how they will minimize impacts in the lagoon and identifies a feasible mitigation plan to protect marine life. While I appreciate the input of outside organizations like the Comments noted. To clarify, adoption of this Order neither condones (as a mitigation requirement) or precludes (as a voluntary measure) the Discharger’s efforts to maintain the lagoon.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 23 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Surfrider Foundation, I hope that you will take into consideration the opinion of someone who relies entirely on the health of Agua Hedionda Lagoon for the success of my business. I am satisfied that the applicant has taken all necessary steps to ensure a healthy lagoon and marine environment. Please approve the Carlsbad Desalination Project minimization plan. 3/27/2008 letter from Sweetwater Authority 12. Poseidon Resources' desalination project has gained enthusiastic support from water agencies, cities, businesses, residents, and elected officials, including our entire state and federal delegation. While we appreciate the due diligence that regulatory agencies have taken to ensure this is the most environmentally-benign project possible, we believe it has been thoroughly vetted and utilizes every possible avenue for reducing impacts to the marine environment. The Sweetwater Authority Board of Directors asks you to make the right decision and approve the Flow, Entrainment and Impingement Minimization Plan for the Carlsbad Desalination Project. Comments noted. 3/27/2008 letter from Christine Kehoe, Senate, 39th District 13. This minimization plan has been prepared and available for your review for the past year. The discharge permit and related minimization plan offer far-reaching design, technology and mitigation measures that will ensure that the plant is operated in a mariner consistent with state law. As Chair of the Senate Committee on Energy, Utilities and Communications and as a longtime member of the Senate Committee on Natural Resources and Water, I know how important it is to have a reliable local water supply to serve Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 24 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the San Diego region's needs. This important project has enjoyed the unanimous support of the San Diego's state legislative delegation as expressed in a letter to the California Coastal Commission when they considered the issuance of the project's coastal development permit this past summer. I respectfully urge the RWQCB to now approve the discharge permit to help the San Diego region achieve a new, local, drought-proof water supply. 3/27/2008 letter from San Diego Regional Economic Development Corporation 14. EDC would like to offer its full support of the Carlsbad desalination plant. We believe that this project will provide San Diego with the diverse, reliable, environmentally sound water supply that it desperately needs. Your Board has already issued a discharge permit for this project. Poseidon Resources is complying with the permit's conditions by submittal of its Flow, Entrainment and Impingement Minimization Plan. The plan identifies feasible mitigation opportunities and provides regulatory assurances that the implementation of the mitigation plan will continue to be subject to a state-agency's coordinated process to ensure the best available mitigation feasible. Comments noted. 3/27/2008 letter from San Dieguito River Valley Regional Open Space Park 15. Our interest in the Carlsbad Desalination Project is linked to Poseidon Resources proposed coastal habitat restoration project. In the summer of 2007, the River Park responded to Poseidon's request for expressions of interest for the development and implementation of a coastal habitat restoration project. As you are aware, a major restoration Comments noted. To clarify, the San Dieguito Lagoon is just one of several alternative sites where the Discharger may choose to conduct this mitigation.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 25 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE project is underway in the San Dieguito River Valley about 12 miles south of Poseidon's proposed desalination facility. This Project is being funded by Southern California Edison as mitigation for the entrainment and impingement impacts from its San Onofre Power Plant. The restoration proposal we provided Poseidon will expand the number of acres of functional wetlands and associated habitat in the San Dieguito Lagoon area, by supplementing the 115-acreWetlands Restoration Project, which is currently underway. The proposed restoration projects will create approximately 37 acres of marine wetlands and additional acres of associated native grassland habitat from what is now entirely disturbed land. The project includes maintenance and monitoring to ensure the successful re-establishment of planted species. A second component of this project is funding for enhanced water quality sampling, testing and monitoring of the proposed water quality treatment ponds. We are currently doing a feasibility study to ensure that Poseidon's proposed coastal habitat restoration project will complement the ongoing restoration project while providing additional restored habitat in the San Dieguito Lagoon that closely matches the habitat in Agua Hedionda Lagoon. 3/27/2008 letter from California Coastal Coalition 16. CalCoast has spoken out on behalf of the Carlsbad Desalination Project numerous times because we believe that this project has been designed and will be operated with careful consideration of the coastal environment and habitat. We have given considerable consideration to Poseidon's Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 26 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE proposal and find that the project includes the necessary design, technology and mitigation measures for one to conclude it represents an environmentally responsible use of coastal property and public trust resources. Over the last several years we have provided written and/or oral testimony before the Regional Board, State Lands Commission and California Coastal Commission. After considerable regulatory scrutiny, it is clearly time to move this project forward. The desalination facility would offer many benefits to the region and the California Coastal Coalition is pleased to offer our full support of the desalination project. 3/27/2008 letter from San Diego County Building & Construction Trades Council, AFL-CIO 17. The Carlsbad desalination project will have significant economic benefit for the region, including an estimated $170 million in spending during construction, 2,100 jobs created during construction, and $37 million in annual spending throughout the region once the desalination plant is operational. The building trades industry has a strong record of promoting and protecting the environment. We believe that this particular project strikes the right balance between strengthening the economy and preserving the coastal marine environment, especially the Agua Hedionda Lagoon. For the region, the desalination facility will create jobs, generate tax revenue, improve water quality and enhance water reliability with a new drought-proof supply. We urge your approval of the Carlsbad Desalination Project, which will bring this region one step closer to a safe, reliable and cost-effective water supply. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 27 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 3/27/2008 letter from Robert Simmons Counselor-at-Law 18. In my opinion, the project's entrainment and impingement minimization plan is a good one. As you know, the plan details procedures to minimize impacts on marine life during a temporary or permanent reduction or shutdown of the Encina power plant generation, i.e., when the project's intake requirements exceed the power station's discharges. The current productive state of the adjacent lagoon is primarily due to the good stewardship of the power station, which daily circulates seawater throughout the lagoon and dredges its entrance, annually. These actions have transformed the lagoon from the stagnant marsh of the past to the healthy ecosystem we see today. Opponents of this project have falsely argued to you (and unsuccessfully, to courts and other agencies) that the Federal Clean Water Act (CWA Section 316) applies to this desalination plant. This is legally incorrect! In truth, the plant is regulated under the California Water Code Section 13142.5. This provision requires industrial facilities using seawater for processing to use the best available site, design, technology, and feasible mitigation-to minimize impacts to marine life. In my opinion, the plan before you for decision on April 9 clearly meets all the requirements of this law and I urge you to approve it. Comments noted.The Regional Board concurs that 316 (b) requirements do not apply. 3/27/2008 letter from Rainbow Municipal Water District 19. I am writing today on behalf of Poseidon Resources' Carlsbad Desalination Project and asking you to approve their Flow, Entrainment and Impingement Minimization Plan. Please accept this letter as a declaration of Rainbow Municipal Water District's support and endorsement for this important project. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 28 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Now it is up to your Board to ensure that our efforts to protect our agricultural customers are not in vain. We understand that you will be holding a hearing on April 9th to approve the project's Flow, Entrainment and Impingement Minimization Plan. We believe this plan is in full compliance with applicable state water regulations, specifically Water Code Section 13142.5(b). Poseidon Resources has repeatedly accommodated requests for information and demands for additional stringent mitigation measures. On behalf of Rainbow Municipal Water District, I urge the State Water Resources Control Board to approve this project and bring us one step closer to solving our region's long-term water reliability needs. 3/28/2008 letter from Vallecitos Water District 20. We have thoroughly reviewed the project's Flow, Entrainment and Impingement Minimization Plan and have determined that this plan meets the Regional Board's requirement that Poseidon assess the feasibility of the site, design, technology, and mitigation measures to minimize impacts to marine life. We believe that this project presents the best most environmentally expedient opportunity for siting a desalination facility in San Diego. The research that has been done verifies that the environmental impacts will be minor at this site, with or without the Encina Power Plant. Poseidon Resources has made every effort to mitigate even minor impacts and has committed to restoring 37 acres of wetland habitat, dedicating 15 acres for public access, recreation and marine research, and providing maintenance to the lagoon itself after the power plant is taken off line. These are major commitments that confirm the ecological benefits of the Comment noted. Poseidon will be required to minimize and mitigate the environmental impacts in compliance with Water Code Section 13142.5(b).
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 29 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE project. 3/28/2008 letter from City of Oceanside 21. Poseidon Resources submitted the Flow, Entrainment and Impingement Minimization Plan in February 2007 to RWQCB and it has been available for public review since that time. Poseidon has revised the plan several times in response to comments from the Board, staff and public. The plan fulfills the Regional Board's requirement that Poseidon assess the feasibility of site, design, technology and mitigation measures to minimize impact to the marine environment. We believe that Poseidon's proposed mitigation approach and regulatory assurances are more than adequate for this project and should be approved. In closing, the Carlsbad Desalination Project is a positive step in the right direction for our region's future water supply. As demonstrated in their Flow, Entrainment and Impingement Minimization Plan, it will be environmentally- responsible and proactive in minimizing any potential impacts. The City of Oceanside respectfully requests that you vote in favor of this badly-needed project. Comments noted. 3/28/2008 San Diego Regional Chamber of Commerce 22. In the Chamber's opinion, Poseidon Resources has designed an environmentally-superior project that will have minimal impact to marine life found in the lagoon and surrounding coastal areas. In addition to their commitment to ongoing lagoon maintenance, Poseidon has also committed to a 37-acre wetlands restoration program and a comprehensive Climate Action Plan that will eliminate the plant's carbon footprint. We appreciate their extraordinary efforts to make this project both environmentally and fiscally responsible, while reducing our county's dependence on imported water. Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 30 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE The existence of the project's Flow, Entrainment, and Impingement Minimization Plan - a condition the Regional Board placed on the discharge permit when it was approved in 2006 - is one example of the appropriately stringent regulations that have been attached to the project. By preparing the minimization plan, Poseidon Resources has met its permit conditions and provided a roadmap that guarantees the project is built using the best available site, design, technology, and mitigation feasible to minimize impacts to marine life. 3/28/2008 letter from Agua Hedionda Lagoon Foundation 23. The Regional Board has put stringent permit conditions in place that allows the desalination plant to utilize the power station's seawater intake and outfall infrastructure. In compliance with Water Code Section 13142.5(b), Poseidon Resources submitted a Flow, Entrainment and Impingement Minimization Plan to your agency. My organization has studied this plan and we are completely satisfied that there are sufficient marine environment protections in place. We also believe that operation of the Carlsbad Desalination Plant will be critical to the Agua Hedionda Lagoon. Poseidon's commitment to dredge the lagoon once the power plant ceases to operate will ensure that the lagoon's ecosystem will remain balanced and healthy. Additionally, Poseidon has pledged annual funding for the Foundation's Academy for Environmental Stewardship. This elementary school program reaches children at a young age so they can understand the importance of preserving our watershed and wetlands. We note that Poseidon's commitment to serve as a steward for the Agua Hedionda Lagoon and the surrounding watershed will guarantee for many years to come that the Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 31 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE citizens of Carlsbad will be able to enjoy the benefits of this clean lagoon and its surrounding beaches. This commitment will provide real environmental benefit and rises above and beyond the wetlands mitigation proposed in the Minimization Plan. 3/28/2008 letter from Shapery Enterprises 24. San Diego needs to develop a cost-effective, drought-proof supply of water to augment the nearly 90% supplies we currently import. My firm believes that desalination makes sense from an economic and environmental standpoint. Poseidon Resources, in particular, has designed a top-notch project that will meet the water needs of 10% of our population at no additional cost to taxpayers. They have also put together a sensible mitigation plan to ensure that the lagoon and beaches are protected and will not be harmed by the plant's discharge. I think this project is a win-win for San Diego's environment and taxpayers. Shapery Enterprises respectfully requests that you approve the Carlsbad Desalination Plant on April 9th. Comments noted. 3/31/2008 letter from Santa Fe Irrigation District 25. I'm writing today on behalf of Poseidon Resources' Carlsbad Desalination Project and asking you to approve their Flow, Entrainment, and Impingement Minimization Plan at the public hearing on April 9,2008. We are confident that the Carlsbad Desalination Project meets or exceeds all environmental regulations and will contribute to the long-term health of the lagoon and marine habitat through its careful stewardship and a broad array of design, technology and mitigation measures. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 32 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE We believe that this agreement provides our region with a reliable, affordable and environmentally benign water source to augment our imported supplies. On behalf of my Board of Directors and our thousands of customers, we urge the Water Quality Control Board approve the Flow, Entrainment, and Impingement Minimization Plan. 3/31/2008 letter from Farm Bureau San Diego County 26. On behalf of the San Diego County Farm Bureau and the county's farmers, I am writing you in support of the Carlsbad Desalination Project. Our organization testified before the Regional Board in 2006 when the Board unanimously approved the project's discharge permit. The permit required Poseidon to provide the Regional Board with a Flow, Entrainment and Impingement Minimization Plan to help reduce marine impacts. Poseidon has prepare this plan met its obligations under the permit. San Diego County is mired in a historic drought, suffering through the driest consecutive years in our region's history. The Carlsbad Desalination Project is not a panacea, but it offers fanners and urban water users alike a new, affordable water supply. After nearly ten years in the works, it's time the Carlsbad facility was approved. San Diego County's agricultural industry - and our fanning heritage - is counting on it. Comments noted. 3/31/2008 letter from Carlsbad Chamber of Commerce 27. I am writing on behalf of the Carlsbad Chamber of Commerce in support of Poseidon Resource's Carlsbad Desalination Project. The Chamber recently awarded Poseidon Resources with their first-ever Environmental Spirit Award because of their project's demonstrated commitment to the environment, Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 33 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE especially the Agua Hedionda Lagoon. This plan has been under review for over a year and has been updated on several occasions in accordance with your staff’s requests. The Chamber believes that this plan puts into a place a multitude of protections for the lagoon during the plant's operation; it also ensures that the lagoon will continue to be a clean, healthy marine environment in the long-term. As part of their due diligence, Poseidon will perform regular monitoring and conduct studies designed to reduce the entrainment and impingement of marine organisms below acceptable levels. Additionally, the desalination facility will be subject to further environment review and analysis by State Lands Commission ten years after the lease is issued, guaranteeing sufficient regulatory oversight. 3/31/2008 letter from Sierra Club, San Diego Chapter 28. First and foremost, the Report fails to provide a site specific conceptual food web model. This model serves to show the relationship among the various species and their interactions in response to the impingement and entrainment impacts. It is an essential tool for the ecosystems based management of the CDP project. Mortality and injury to marine life caused during transport through intake and discharge tunnels not addressed. The Report does not but should provide information on the number of fish, larvae and all other marine life that are killed, injured or dazed in the intake and discharge channels the CDP by abrasion, hard contact with the tunnel, disoriented by turbulent flow, and other mechanical means. This project is reviewed under CWC Section 13142.5(b), which requires that the project use the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life. The statute does not mandate the use of a particular model, such as a site-specific conceptual food web model as the comment suggests. Consistent with CWC Section 13142.5(b), the purpose of the Minimization Plan is to evaluate intake and mortality, i.e., entrainment and impingement, of all forms of marine life, and to minimize these effects. To account for entrainment, the Minimization Plan applies the Empirical Transport Model (“ETM”). This ETM model is widely accepted in California by the scientific
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 34 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE and regulatory community and has been used in other recent studies conducted in California, such as those regarding the AES Huntington Beach Generating Station and the Duke Energy South Bay Power Plant. Here, in approving the MLMP, the Coastal Commission relied upon and adopted the ETM model, which was also used by its expert Dr. Peter Raimondi. The Regional Board similarly relies on the ETM model. To account for impingement, the Minimization Plan applies biomass productivity estimates of comparable estuarine habitats as calculated by Larry Glen Allen and applied in this case by Christopher Nordby. See Larry Glen Allen, Seasonal Abundance, Composition and Productivity of the Littoral Fish Assemblage in Upper Newport Bay, California, 80 Fishery Bulletin 4, 769-90 (1982); Christopher Nordby, “Mitigation Computation Based on Impingement Assessment”, Minimization Plan Attachment 7. Instead of using food as the basis to characterize impingement and entrainment, the ETM and biomass productivity approaches reasonably rely on the benefits associated with increases in estuarine habitat. The comment assumes that an “ecosystems-based approach” is required and preferable. An ecosystems-based approach is not applicable to this case, however, because the affected ecosystem, Agua Hedionda Lagoon, is not wholly removed (as is generally done when evaluating compensatory mitigation for impacts of fill in a Clean Water Act (“CWA”) Section 401 certification). Rather, in this case, only specific components of the ecosystem – rather than the entire ecosystem – are being altered, due to impingement and entrainment. Therefore, the
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 35 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE mitigation provided for in the Minimization Plan, which will fully offset impingement and entrainment, is appropriate. It should be noted, however, that the Minimization Plan does give consideration to the ecosystems affected. For example, Sections 3.1 and 3.2 of the MLMP, incorporated in Chapter 6, provide minimum standards and objectives for the mitigation site(s). These standards and objectives, among other things, provide that a site shall include habitat similar to the affected habitats in Agua Hedionda Lagoon and should provide maximum overall ecosystem benefits, e.g., maximum upland buffer and transition areas, enhancement of downstream fish values, regionally scarce habitat, potential for local ecosystem diversity, substantial fish habitat, rare or endangered species habitat, and provision for reproductively isolated populations of native California species. The Minimization Plan does not need to address mortality and injury caused by transport because both the impingement and entrainment estimates assume 100% mortality of all organisms that pass through the intake structure. 29. Elimination of Heat Treatment Related Mortality. The Report (Chapter 3.7) proposes to clean the intake and discharge system by periodically circulating plastic scrubbing balls. The Report does not indicate where the debris from the cleaning will be disposed. The Encina Power Station disposed the heat treatment debris into the receiving waters via the discharge tunnel. We objected to this practice as it is in violation of the NPDES CA 0001350, No. R9- 2006-043, The Regional Board is not considering the adequacy of the heat treatment replacement at this time since this is a feature that could be incorporated under stand-alone conditions. Once EPS permanently shuts down and the CDP is operated on a stand-alone basis, the Regional Board will undertake additional evaluation under CWC Section 13142.5.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 36 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Paragraph III, Discharge Prohibitions. Furthermore, it is highly likely that plastic, an ocean pollutant, will be worn off from the plastic scrubbing balls and be included in the debris. We continue to object to the practice of disposing the clean-up debris into the receiving waters. 30. Micro-screens effectiveness to minimize impingement and entrainment losses is problematical. The Report does not provide operational information such as pilot plant tests to verify that this technology is proven and reliable. The Report makes no mention that biofouling and biofilm buildup will occur in the micro-screens to require periodic chemical (biocides) treatment. Furthermore, as questioned previously, the Report does not address the expected survivability of the entrained marine organisms after being flushed out from the micro-screen filter and transported out the lengthy (approx 1500 ft) discharge tunnel. The Report does not but should provide a monitoring plan to quantify taxa, their abundance, and the survivability of the marine organisms at the ocean outfall. The comment addresses potential concerns related to the use of micro-screens to minimize impingement and entrainment. This comment has been rendered moot by subsequent actions as follows: In the March 6, 2008 version of the Minimization Plan, the Discharger proposed the installation of micro-screens and the use of a low-pressure membrane pretreatment system to increase the potential to capture marine organisms and to return them successfully to the ocean. Based upon the use of these proposed technology measures, the Discharger initially considered the mortality rate of the entrained marine organisms to be less than 100%. Subsequent to that proposal, the Coastal Commission and the Scientific Advisory Panel (“SAP”) determined that these technology measures would not be effective in returning viable organisms to the ocean and would not result in any minimization or reduction of entrainment. The Coastal Commission found that the CDP’s entrained organisms would be subject to a number of stressors – including high pressures, significant changes in salinity, possible high temperature differences if the power plant is operating, etc. – and that the organisms would then be discharged to a different environment than is found in Agua Hedionda Lagoon. See Coastal Commission, Recommended Revised Condition Compliance
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 37 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Findings, MLMP for Coastal Development Permit E-06-013, Poseidon Resources Carlsbad Desalination Project, November 21, 2008, at 13, available at http://documents.coastal.ca.gov/reports/2008/12/W16a-12-2008.pdf. The Coastal Commission concluded that any one or a combination of these stressors could result in mortality of the marine organisms prior to the return to the ocean. Id. Further, it is uncertain whether the returned marine organisms would survive past the initial release into the ocean or thereafter contribute reproductively to the population. Ferry-Graham, Dorin, and Lin, Understanding Entrainment at Coastal Power Plants: Informing a Program to Study Impacts and Their Reduction, CEC-500-2007-120 at 36 (March 2008). Because of this uncertainty, the Minimization Plan conservatively assumes 100% mortality of entrained species, consistent with guidance from the U.S. Environmental Protection Agency (“EPA”) and reflecting the practice of California’s State Water Resources Control Board (“State Board”) and the Regional Water Quality Control Boards, the California Energy Commission, and the Coastal Commission in conducting and evaluating these studies. Coastal Commission. Recommended Revised Condition Compliance Findings, MLMP for Coastal Development Permit E-06-013, Poseidon Resources Carlsbad Desalination Project, November 21, 2008, at 13. Available at http://documents.coastal.ca.gov/reports/2008/12/W16a-12-2008.pdf. Thus, these technology measures were removed from
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 38 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the Minimization Plan. It would not be necessary or reasonable to conduct biological monitoring at the outfall for organisms returned to the ocean. Because these technology measures have been removed from the Minimization Plan, the comment has been rendered moot. Moreover, the Minimization Plan provides for mitigation sufficient to fully offset projected entrainment and impingement. The revised Minimization Plan assumes 100 percent mortality for entrained organisms and does not claim any intake and mortality reduction related to micro-screening. 31. Methodology for Impingement Assessment, intake flow velocity. The statement that if intake through-screen velocity is below or equal to 0.5 fps, the impingement mortality of the intake screens is considered to be negligible has been disputed by the Henderson and Seaby. Their report lists nine problems that question this assertion of which six are applicable for the CDP. Two that not relevant here are high and low water temperatures and the third problem of flow direction with respect to gravity is not present because it is horizontal in this case. These six problems are listed below: 1. Fish often do not know in which way to swim and so may become entrained or impinged even if they have they have the speed to escape. 3. There is no consideration of the effects of tide, currents etc. on flow rates through the screens. 4. There can be problems because fish orientate at 90 degrees to the screen and not the flow. 5. The velocity is determined at the screens - at this point the fish may already be trapped This comment raises concerns regarding whether the reduction of intake through-screen velocity below or equal to 0.5 FPS reduces impingement mortality to less than significant levels. Reduced intake velocity has been recognized by the USEPA (EPA 440/1-76/015-a. USEPA April 1976. Washington, DC.) and the SWRCB (March 2008 Scoping Document, Water Quality Control Policy on the Use of Coastal and Estuarine Water for Power Plant Cooling) as an accepted method of reducing impingement. To the extent that the Henderson & Seaby study challenges these, the comment is noted. Nevertheless, Poseidon proposes to mitigate for all estimated impacts, without consideration to any site, design, or technology measures that will be implemented to minimize these impacts. In light of this, it is still acceptable for the Board to find that the project, in sum, complies with section 13142.5. The Regional Board’s present evaluation of the
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 39 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 8. Fish eggs are often free floating and are therefore vulnerable to entrainment irrespective of the intake velocity 9. Larval fish, post-larval fish and very young fish are poor swimmers and cannot achieve 0.5 ft/sec. They also do not all react to a flow by moving away from it. proposed project is limited to minimization efforts applicable only to co-location operation for CDP benefit. However, in Chapter 3 of the Minimization Plan, if EPS permanently ceases operations, among other design measures, the Discharger proposes to reduce the inlet screen velocity (to equal to or less than 0.5 fps) and reduce the fine screen velocity. Additional evaluation of the CDP’s design features would be necessary if the EPS permanently ceases power generation operations, and if the Discharger proposes, through submittal of a new Report of Waste Discharge, to operate EPS’s seawater intake and outfall independently for the benefit of the CDP in a “stand-alone” capacity. The Regional Board notes that the comment takes issue with the principle that intake through-screen velocities at or below 0.5 feet per second (fps) reduce impingement mortality to insignificant levels but also notes that this approach has been widely followed by key regulatory agencies and is backed by extensive scientific study and review. Since the 1970s, EPA has recognized the relationship between flow and impingement. (“Development Document for Best Technology Available for the Location, Design, Construction and Capacity of Cooling Water Intake Structures for Minimizing Adverse Environmental Impact. EPA 440/1-76/015-a. USEPA April 1976. Washington, DC.”) EPA notes that “flow reduction serves the purpose of reducing both impingement and entrainment.” (U.S. Environmental Protection Agency, Phase II, Final Rule Technical Development Document, Chapter 4 [Efficacy of Cooling Water Intake Structure Technologies], at Section 1.5, p. 4-4. Available at http://www.swrcb.ca.gov/rwqcb3/water_issues/program
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 40 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE s/duke_energy/docs/usepa_efficacy_of_intake_technologies.pdf.) According to EPA, this explains why “[e]nvironmental commentators [have] advocated for flow reduction technologies as the most direct means of reducing fish kills from power plant intakes.” National Pollutant Discharge Elimination System -- Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities, 69 Fed. Reg. 41,576, 41,612 (July 9, 2004) (to be codified at 40 C.F.R. pts. 9, 122, 123, 124, 125). Similarly, the State Board recognizes the relationship between reduced flow and reduced impingement. In its March 2008 Scoping Document on once-through cooling (OTC) at coastal power plants, the State Board reiterated EPA’s conclusion and observed that “[f]low reduction will reliably reduce both impingement and entrainment impacts of OTC [once through cooling].” (State Board, Scoping Document: Water Quality Control Policy on the Use of Coastal and Estuarine Waters For Power Plant Cooling (March 2008), at 45. Available at http://www.energy.ca.gov/2008publications/SWRCB-1000-2008-001/SWRCB-1000-2008-001.PDF.) The EPS intake structure is an OTC intake. According to the comment, the Henderson and Seaby study challenges certain assumptions of the EPA/State Water Board approach as described above. To the extent that the Henderson and Seaby study challenges those accepted approaches, the comment is noted. 32. The quantification of unavoidable impacts to marine life is not acceptable. The Marine Life Protection Act requires The Marine Life Protection Act (Fish and Game Code, sec. 2850 et seq.) is not directly applicable to the CDP.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 41 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE an ecosystem based approach. This requires that the impingement and entrainment impacts be assessed for all the marine organisms from the benthos, up the food web, and to the top consumers as shown in the Generalized Aquatic Food Webshown in the NOAA power point presentation cited above. Table 5-1 tabulates the impingement of fishes, sharks and rays during June 2004 to June 2005 prorated for 304 MGD. Note that under normal operations 19,408 individuals were impinged and 97 separate species. No ecological assessment has been provided to indicate whether these losses are sustainable and can maintain a healthy biologically diverse ecosystem. Instead the Report dismisses the impingement loss by citing that it amounts to 2.11 lbs/day. Likewise, the entrainment effects methodology is flawed because it addresses only the fish larvae entrainment. Quantification of unavoidable impacts however is not necessary because Poseidon proposes to mitigate for all estimated impacts, without consideration to any site, design, or technology measures that will be implemented to avoid or minimize these impacts. Also, to clarify, Table 5-1 referenced here was in error, as it did not show pro-rated data. It has been replaced in the March 27, 2009 Minimization Plan (as Table 5.3) with pro-rated data. 33. Need for an ecosystem based management plan. These local impingement and entrainment impacts must be evaluated to assess the connectivity with the coastal marine ecosystems to the north and south. This means that an ecosystem based management plan that is coordinated state-wide is needed. An ecosystem approach is not entirely applicable to this case because the affected ecosystem in not wholly removed (as is generally done when evaluating compensatory mitigation for impacts of fill in a CWA Section 401 certification). Rather, specific components of that ecosystem are being altered due to impingement and entrainment. Nevertheless, Chapter 5 of the Minimization Plan does give consideration to the ecosystems affected and Chapter 6 attempts to provide compensatory mitigation in terms of the ecosystems affected. Also, see response to Comment 31. 34. Reference site data needed to prevent shifting baselines. The Report should obtain ecological health data for reference marine sites that have not been used for once-through-cooling source water and the source water marine for the CDP for comparison benchmarking. Ecological health date The MLMP incorporated into the Minimization Plan includes performance measures for the mitigation site(s) that are to be compared to reference wetlands (not being used for once-through-cooling). The baseline analyses of the reference wetlands may be
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 42 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE for the CDP marine source waters as a reference basis is not acceptable. The ecosystems management must avoid the practice of shifting or sliding baselines. useful in such a manner. 35. Comprehensive receiving waters monitoring program is required. The Report lacks a comprehensive receiving waters monitoring program to evaluate the ecological health the marine ecosystems. The program should include sampling of benthic infauna, phytoplankton, zooplankton, benthic and piscivorous fish. This comment should have been raised during the issuance of Order R9-2006-0065, NPDES permit (and monitoring requirements) for the CDP discharge. 36. The proposed mitigation plan is severely flawed. Chapter 6.2 states the conservative assumption that CDP will cause 100 percent mortality of the marine organisms that are diverted from the Agua Hedionda Lagoon to the CDP. However, the Report does not provide data on the taxa and abundance of these organisms in the seawater that reside in the Lagoon but also in the coastal waters. By attachment (Attachment G, Chapter 3) to the Minimization Plan, Poseidon includes baseline studies of the existing marine system in the area that could be affected by the facility. 37. California actions to implement the MLMA. The above comments represent a significant departure from the approach presented in the Flow, Entrainment and Minimization Plan. These comments are based on the MLMA that was enacted in 1999. The implementation of the Plan is still underway. The Ocean Protective Council Five Year Strategic Plan Action Status February 20087 has two relevant objectives. The first is listed under Section C. Ocean and Coastal Water Quality, Objective 3, Once-through-cooling; Work to eliminate the harmful impacts of once through-cooling coastal power plants. Status: In progress. The second objective is listed in Section E. Coastal and Ocean Ecosystems, Objective 2: Marine Life Management Act; Help establish ecologically and economically sustainable The MLPA is not a governing statute and is not directly applicable to the Minimization Plan.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 43 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE fisheries. 3/31/2008 letter from Denise Moreno-Ducheny 38. I am writing in support of Poseidon Resources' proposed Carlsbad Desalination Project Flow, Entrainment, and Impingement Minimization Plan. The Carlsbad desalination plant is an excellent example of what can be accomplished when the private sector and government cooperatively strive for innovative solutions to our regional issues. I support the Carlsbad Desalination Plant and request that you approve the Flow, Entrainment, and Impingement Minimization Plan for this project. Comments noted. 3/31/2008 letter from Valley Center Municipal Water District 39. This project has already gone through multiple layers of approvals over the past eight years and has long since proven it's an environmentally-responsible project. I would like to remind the board that they have already given their approval for a discharge permit and that the Flow, Entrainment and Impingement Minimization Plan includes many additional protections for the surrounding marine environment. In fact, the plant will be crucial to the long-term health of the Agua Hedionda Lagoon when the Encina Power Station is decommissioned and no longer provides maintenance and dredging. Valley Center Municipal Water District understands that seawater desalination is a key part of the solution to the region's long-term water reliability needs. The entire San Diego region is depending on this new water supply to lessen the demand on imported water. We find no reason to delay Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 44 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE action any longer and we strongly urge the Board to approve this project. 4/1/2008 letter from Bill Horn, Supervisor, 5th District, County of San, Diego 40. I am writing to urge you to support the Carlsbad Desalination Project at your April 9, 2008 meeting. A large portion of the district I have been elected to represent will benefit directly from the construction of the desalination facility. The San Diego County Water Authority has approved a resolution in support of the Carlsbad Desalination Project, and has identified the desalination plant as a critical component of the region's water diversification strategy. Your board already approved this project in 2006 and there is no reason for further regulatory delay. I urge you to accept the project's Flow, Entrainment and Impingement Minimization Plan and move. this project closer to providing San Diego with the water it desperately needs. Comments noted. 4/1/2008 letter from Mary Salas, 78th Assembly District 41. This letter is to inform you of my support for the Carlsbad Desalination Plant and to request that you finalize the discharge permit by approving the key permit condition that requires a project to minimization marine impacts. The water produced will be of the highest quality, meeting or exceeding all drinking water regulatory standards under the law. It is also guaranteed never to cost more than the rates set by the San Diego County Water Authority, ensuring that Sweetwater won't have to pass on excessively high water rates to their customers. And it has gone through rigorous testing and public scrutiny to ensure that the plant will be Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 45 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE environmentally friendly and efficiently operated. The project developers have made every effort to comply with state and federal environmental regulations and have long since proved their project will not harm the Agua Hedionda Lagoon or ocean. In fact, their proposed mitigation measures will restore 37 acres of wetlands habitat and will provide for the annual maintenance. of the lagoon. I am proud to support this successful public-private partnership between Poseidon Resources with the City of Carlsbad and I urge you to approve this project at your April 9,2008 meeting. 4/2/2008 letter from Coast Law Group 42. The Board's consideration of approval of the Revised Flow, Entrainment and Impingement Minimization Plan at its April 9, 2008 board meeting would be both legally inappropriate and logistically imprudent. Porter-Cologne section 13225 and case law mandate that the Regional Board coordinate with other agencies similarly charged with responsibility for water quality protection prior to taking action on a matter equally within such other agencies' jurisdictions. As was made clear in the March 20, 2008 comment letter from the California Coastal Commission, significant additional resource agency input is required before Poseidon's mitigation plan can be appropriately considered for final approval by any agency. Only through coordination with staff from the Coastal Commission, California Department of Fish and Game, United States Fish and Wildlife Service, and National Marine Fisheries Service will the Regional Board be able to render an appropriate recommendation on the mitigation proposal. If the decision to approve is made prior to the agency coordination meeting, the record will be insufficient to support The Board is considering approval of the March 9, 2009 Minimization Plan, as revised March 27, 2009. The Board’s action will supersede the conditional approval of April 9, 2008 (Resolution No. R9-2008-0039). Since the April 9, 2008 Board Meeting, the Discharger participated in an interagency meeting to determine what mitigation options might be available and feasible. Thirteen state and federal agencies were invited to attend, and staff representatives from the Regional Board, Coastal Commission, California State Lands Commission, California Department of Fish and Game, California Department of Transportation, City of Carlsbad, City of Vista, and U.S. Fish and Wildlife Service attended. The Discharger also coordinated with other agencies during this time. Since April 2008, the MLMP was revised numerous times in response to various agencies’ and public comments. The Coastal Commission approved the MLMP, with final language, in December 2008. While recent Coastal Commission comments indicate that
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 46 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE such decision, the approval will be subject to legal attack, and the project will be even further delayed. Because the project can not move forward without Coastal Commission approval of the mitigation plan anyway, it makes sense to continue the Board's consideration of the Revised Flow, Entrainment and Impingement Minimization Plan until appropriate resource agency input has been obtained. the adequacy of the MLMP for impingement may be revisited, such potential action does not require the Board to postpone action. Order No. R9-2006-0065 specifically authorizes the Regional Board to require revisions to the Minimization Plan and the Board may require revisions, as necessary, to address any future Coastal Commission action. 43. Recently, the State Water Resources Control Board articulated an interpretation of the statute's meaning, and did so in a way inconsistent with that put forward by Poseidon in its March 7, 2008 response to the Regional Board's February 19th letter. The State Water Board Scoping Document on its "Water Quality Control Policy on the Use of Coastal and Estuarine Waters For Power Plant Cooling" (dated March, 2008) states: Finally, the Water Boards must also consider the legislative directive in Water Code §13142.5 when regulating cooling water intake structures. Under the Clean Water Act, facilities must, at a minimum, comply with section 316(b) requirements and any more stringent applicable requirements necessary to comply with state law. Section 13142.5 has a more limited coverage than section 316(b) in that the former covers only new and expanded coastal facilities. However, section 13142.5 appears to be more stringent than section 316(b) in one respect. Section 13142.5 requires use of the best available technology feasible "to minimize the intake and mortality of all forms of marine life", without regard to whether these impacts are adverse, in contrast to section 316(b) which focuses on "minimizing adverse environmental impact." As an initial matter, the State Water Board’s Scoping Document is still a draft document so does not reflect final interpretation by the State Water Board. However, even if it does reflect final interpretation, the Regional Board’s interpretation of Water Code section 13142.5(b) does not conflict with the commenter’s view on this point. Section 13142.5(b) requires the use of the “best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life.” This statute applies without regard to whether the intake and mortality is characterized as “adverse.” The Regional Board agrees that Water Code section 13142.5 is applicable to the CDP, as stated explicitly in Order No. R9-2006-0065. Section 13142.5(b) provides the framework for the review and approval of the March 27, 2009 Minimization Plan. Also, section 316(b) of the Clean Water Act does not apply to the CDP, as explicitly noted in Order No. R9-2006-0065, Fact Sheet, section VII.4.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 47 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE While Poseidon consistently argues that federal Clean Water Act section 316(b) regulations and policies do not apply to its desalination project proposal, there can be no dispute that Porter Cologne section 13142.5 is applicable to the project's seawater intake. Pursuant to the State Board's interpretation noted above, regardless of whether applied to power plants or desalination plants, the entire legal and scientific framework under which Poseidon has crafted its mitigation proposal is just plain wrong. Unless the Regional Board believes it is entitled to interpret Porter Cologne in a manner inconsistent with the State Board, and we do not believe this to be so, there is no legal option but to deny Poseidon's proposed mitigation plan as inadequate, and direct that yet another revised Flow, Entrainment and Impingement Minimization Plan be submitted for agency and public review. 4/2/2008 letter from San Diego Coastkeeper and Surfrider Foundation 44. Timing of Implementation Schedule is Arbitrary and Unnecessarily Aggressive. This approval would then set an arbitrary and extremely restrictive set of dates for multiple agency coordination and separate approvals. Further, the Implementation Schedule appears to require that the Revised Plan be thoroughly reviewed by multiple agencies, in some instances, after the Regional Board has approved the Revised Plan. The Revised Plan incorrectly states that Poseidon's second submission of this Plan (Original Plan) was posted on the Regional Board website "for public review and comment" shortly after it was submitted in February 2007. Though the Original Plan was posted on the Regional Board website, it was never subject to public comment and review. Further, Poseidon admits that the Original Plan took Comment noted. This comment is not relevant as since the April 9, 2008 conditional approval of the March 6, 2008 Minimization Plan, the Discharger has submitted the March 9, 2009 Plan, as revised March 27. In the intervening time, there was public agency coordination and the Regional Board has complied with applicable public notice requirements for review of the March 9, 2009 Plan, as revised on March 27.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 48 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 12 months of review by the Regional Board, yet its proposed schedule provides less than one month for review of the Revised Plan. Such a limited period is insufficient for the Regional Board and inappropriate for public review. 45. Porter-Cologne Act Governs Plan Elements and Has Been Disregarded by Applicant. California Water Code Section 13142.5 (b) establishes the legal standards for the withdrawal and industrial use of seawater. Minimizing the "intake and mortality" requires "before the fact" compliance with best available site, design, technology and mitigation measures. The Revised Plan inaccurately summarizes this explicit language as simply " ...requir[ing] industrial facilities using seawater for processing to use the best available site, design, technology and mitigation feasible to minimize impacts to marine life." See: Revised Plan, Executive Summary, p. E5-1 (emphasis in original). This summarization of the actual language omits the most critical objective of the law to "minimize the intake and mortality of all forms of marine life." It is critical to recognize the interaction between the terms "site,” "design," "technology," and "mitigation measures." These terms should be considered in their totality, not as distinct and disconnected parts. It is equally critical to recognize that beside the mandate to employ the best available site, design and technology, "mitigation measures" must also "minimize the intake and mortality of all forms of marine life." In stark contrast to this plain mandate, the Revised Plan relies primarily on an, as yet The Regional Board agrees that Water Code section 13142.5(b) establishes the legal standards for withdrawal and industrial use of seawater at the CDP and has reviewed the Minimization Plan under this standard. The Regional Board has reviewed the Minimization Plan and finds that under the circumstances of co-located operation, the Discharger will use the best available site, design and technology feasible, as well as the best available mitigation feasible to minimize the intake and mortality of marine life. While the Riverkeeper II case, (Riverkeeper v. U.S. Environmental Protection Agency, 475 F.3d 83 (2007)), applicable to power plants through CWA 316(b), precludes the use of compensatory mitigation or restoration in lieu of best technology available, it does not apply here to preclude use of mitigation because 316(b) does not apply to the CDP and because the Discharger is not substituting mitigation for technology. Water Code section 13142.5(b) does not distinguish temporally or otherwise between use of site, design, technology or mitigation, but requires the Regional Board to find that all elements are being used in
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 49 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE undefined, "after the fact" restoration project to mitigate the so-called "unavoidable impacts." "Restorative measures" have been found inconsistent with the "technology-forcing" policies and plain reading of Clean Water Act § 316(b) in Riverkeeper II.6 Instead, the court found that: "Restoration measures correct for the adverse environmental impacts of impingement and entrainment...but, they do not minimize those impacts in the first place."7 Porter-Cologne § 13142.5(b) must be read the same way. To do otherwise would be an illogical read of the mandate found in Porter Cologne to minimize impacts from the use of seawater for cooling - and by extension, any other industrial process listed in Section 13142.5(b). combination to minimize intake and mortality of marine life. 46. Applicant Misconstrues "Feasible Alternatives". Definition Poseidon has chosen a definition for "feasible" by interpreting that term from the California Environmental Quality Act (CEQA) - a law with a very different purpose than Porter Cologne. CEQA is a vehicle for informing the public about the environmental impacts of potential projects in order for the pubic and decision-makers 'to make a fully informed decision. In that respect, the Environmental Impact Report is the heart of CEQA and its purpose is "information-forcing". In contrast, Porter-Cologne is a "technology-forcing" law for industrial uses of seawater for cooling, heating and other industrial processes. Importantly, Section 13142.5(b) expands on the protections found in the federal Clean Water Act § 316(b) by including other industrial processes beyond "cooling water intakes" to the list of regulated activities. In short, the Riverkeeper II decision specifically prohibited a "cost-benefit" analysis to justify an exemption from the technology-forcing policy of CWA § 316(b). The same would hold true for the policies embodied in California's Water Code § 13142.5(b). This type of .cost-benefit analysis is what is As used in Water Code section 13142.5(b), the term “feasible” is not defined. Through review of the Minimization Plan as required by section 13142.5(b), the Regional Board has interpreted the term “feasible” in a reasonable manner. The definition of “feasible” in CEQA, that is, “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors (Public Resources Code section 12061.1) is a reasonable, comprehensive definition of “feasible” for purposes of informing the Board’s application of Water Code section 13142.5(b). As indicated in response to Comment 45, the Riverkeeper II case does not apply to the CDP because it is not a power plant governed by section 316(b) of the CWA. Moreover, the Regional Board notes that since the comment was made, the U.S. Supreme Court has reversed the Riverkeeper II court on the point of “cost-benefit” analysis. (Entergy Corp. v. Riverkeeper, Inc., et al. (2009) 556 U.S. ___ [29
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 50 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE used as a justification for the continued and exacerbated intake and mortality of marine life recommended in the Revised Plan. S.Ct. 1498].) 47. Revised Plan Takes Flawed Approach Toward Site, Design, and Technology Issues Site Analysis The review of potential sites is too narrowly analyzed and excludes a combination of potential sites that could feasibly result in dramatically reducing the intake of marine life. In conclusion, like many of the segmented sections of the Revised Plan, this section on alternative "Site" locations is not comprehensively analyzed along with different designs, technologies, and other mitigation measures that would reduce the intake of seawater. Site analysis has been completed for both the facility location and the intake location. During the CEQA process, other facility locations were evaluated, but co-location with the EPS was determined to be the preferred alternative. The Regional Board then evaluated this proposed co-location in adopting Order No. R9-2006-0065. The Regional Board has considered alternative intake locations as proposed by the Discharger in the Minimization Plan. The Regional Board finds that the alternative intake locations evaluated by the Discharger are sufficient to meet the requirements of Section 13142.5(b) and support the use of the existing EPS intake structure under conditions of co-location operation for the benefit of CDP. The Coastal Commission also determined that the alternative intake locations were infeasible and would cause more impacts than using the existing intake structure. Please see Responsiveness Summary for additional supporting information. 48. Design Analysis Use of the EPS discharge for "desalination source water" does not meet the purpose of the Revised Plan to document the minimization of intake and mortality from a "stand alone" facility. The annual estimate of marine life mortality doesn't account for seasonal variations in the survival strategy and spawning periods of the numerous species entrained at the The Regional Board concurs with this comment, however, the Regional Board is not evaluating a stand-alone facility at this time. Changes have been made to the tentative Order to clarify the trigger for when a new Report of Waste Discharge needs to be submitted by the Discharger. As reflected in Tentative Order No. R9-2009-0038,
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 51 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE site. additional evaluation of CDP's operations for compliance with CWC section 13142.5(b) will be necessary if EPS ceases power generation operations and Poseidon proposes, through a new Report of Waste Discharge, to independently operate EPS's seawater intake and outfall for the benefit of the CDP ("stand-alone operation"). An annual estimate by definition would not account for seasonal variation, and annual estimates in the Minimization Plan are not intended to do so. Tenera conducted impingement and entrainment sampling for a one-year period beginning in June 2004, which accounts for seasonal variations in the affected populations of marine organisms. 49. Poseidon's discharge analysis is misleading. As was the case in Poseidon's original flow estimates for EPS, the numbers estimated in the Revised Plan are unjustifiable. EPS' intake flow has historically diminished and will continue to do so. Therefore, the 2007 figures do not provide an accurate assessment of future flow. Further, it is illogical to conclude that EPS providing 61 percent of the needed dilution water reduces Poseidon's impacts by 61 percent. Poseidon, at the lowest estimate, increases impingement and entrainment impacts by 39 percent by perpetuating the use of the intakes. The Minimization Plan does identify historic flows for 2008 and states that the EPS flows would have met the CDP's intake requirements approximately 88 % of the time. However, the Regional Board is not considering historical flow data as part of its evaluation of compliance with section 13142.5. 50. We agree that reducing intake velocity reduces impingement. However, the more intractable problem is entrainment - which is a function of volume, not velocity. Analysis of Poseidon's Original Plan reveals that the maximum velocity of all of the generating units is at least double .5 fps. In light of the future retirement of units 1, 2, and 3, Poseidon's intake water must come from units 4 and 5. Both units' maximum velocity at The comment assumes the future retirement of units 1, 2, and 3. The permanent shutdown of Units 1, 2, and 3 has been proposed as part of the Carlsbad Energy Center (California Energy Commission Application for Certification No. 07-AFC-06). The Carlsbad Energy Center, however, has not been certified by the California Energy Commission and it is speculative at
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 52 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE high and low tide is significantly higher than .5 fps. In the Original Plan, Poseidon claimed that the "relative contribution to the total impingement potential of the intake pump system" would be "proportional to the pump flow." However, in the Revised Plan, Poseidon has failed to show how it will obtain 304 MGD and reduce intake velocity when only two of the five units are available for use. this time to determine whether the project will be approved by the California Energy Commission and constructed by the applicant following such an approval. If the Carlsbad Energy Center project were to be built and Units 1, 2 and 3 were to be permanently shut down, EPS Units 4 and 5 would continue to operate and the circulating water system for those units would remain on line. The combined intake capacity of Units 4 and 5 (633 MGD) exceeds the feedstock requirements of the Project (304 MGD). Thus, the CDP could obtain 304 MGD from Units 4 and 5. Moreover, the Regional Board’s present evaluation of the proposed project is limited to minimization efforts applicable to only co-location operation for CDP benefit, and Discharger’s ability to effect design features of the intake is restricted. However, in Chapter 3 of the Minimization Plan, when or if EPS permanently ceases operations, among other design measures, the Discharger proposes to reduce the inlet screen velocity (to equal to or less than 0.5 fps) and reduce the fine screen velocity. Additional evaluation of CDP’s design features would be necessary if EPS permanently ceases power generation operations, and the Discharger proposes, through a new Report of Waste Discharge, to operate EPS’s seawater intake and outfall independently for the benefit of the CDP in a “stand-alone” capacity. As described in section 3.5 of the March 27, 2009 Plan, however, when the EPS is not operating, the CDP’s seawater supply will be pumped through an optimum combination of the existing fine screens and
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 53 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE condensers serving the power plant to minimize intake velocity and water turbulence. Lowering intake velocity and water turbulence will lessen the physical damage to marine life, resulting in a reduction of impingement mortality. Under the conditions of temporary shutdown, and EPS’s operations permitting, a modified pump configuration to reduce inlet velocity may be possible. Also, the Regional Board Regulations and Requirements concerning this project do not rely on velocity for estimating the impacts associated with impingement and entrainment. This is partly because the Regional Board is only permitting for co-location at this time. 51. Discrepancies between the Original Plan and the Revised Plan also require attention. For example, the Original Plan states that according to 2004-2005 analysis, the maximum pumping capacity of unit 4 is 288 MGD. However, the Revised Plan states that unit 4 maximum pumping capacity is 307 MGD. Comment noted. The pumping capacity of Unit 4 is 307 MGD, which is reflected accurately in the March 27, 2009 Minimization Plan. See Table 2-1. 52. The Revised Plan states that routing intake through the condensers and reducing velocity and turbulence will reduce entrainment mortality. However, the Revised Plan fails to document any studies conducted to verify these conclusions or quantify the reduction in mortality. Further, Poseidon cannot assert that utilizing only one of two pumps for each generating unit is a design feature that mitigates impingement of marine life. As noted above, perpetuating the use of open ocean intakes results in increased impingement and entrainment as compared to a scenario in which the intakes are no longer used or a sub-seafloor intake design is A prior version of the Minimization Plan did assert a reduction of entrainment mortality by these means. The Coastal Commission, however, was not persuaded by the Discharger’s demonstration as to this point. Accordingly, the Minimization Plan was revised to assume 100 percent mortality of entrained organisms. Studies to support a reduction in mortality that is not claimed to occur are not necessary. This comment is incorrect. Using one pump from two independent generating units instead of two pumps
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 54 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE used. from one generating unit allows for the same water flow through a two-times larger area, reducing the volume and velocity of the water transported through a particular intake channel, and therefore across the racks and screens for that channel, which reduces impingement. It is on this reasonable basis that the Minimization Plan describes this mode of operation as a design feature that minimizes impingement. When the EPS intake pumps are being used to deliver cooling water for power generation, then both cooling pumps for a particular generating unit must be in operation simultaneously to provide an adequate amount of cooling water for the normal operation of the unit; in such instance, the Discharger will not be able to shut down one of two pumps for that generating unit. However, when doing so will not interfere with the EPS’s power generation operations and Cabrillo permits, the Discharger proposes that CDP will use one pump from each unit, which will minimize impingement. As discussed in the Minimization Plan, by operating as a co-located facility, the CDP does not perpetuate the use of open ocean intakes. Nor does the CDP increase impingement or entrainment beyond de minimis levels when the EPS provides sufficient feedstock water. As discussed in Chapter 4 of the Minimization Plan, the Discharger conducted a thorough review of the site-specific applicability of subsurface intake and a comprehensive hydrogeological study of the use of subsurface intakes in the vicinity of the proposed desalination plant site and concluded that subsurface intakes are not feasible.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 55 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE The subsurface intake system would be infeasible due to site-specific geologic conditions at the City of Carlsbad. To collect the seawater from the filter bed and transfer it to the Project, the intake system would require 78 collector pipelines on the ocean floor connected to 78 pump stations that would be installed on Tamarack State Beach, which would limit public access to the beach for a period of 2 to 4 years, result in significant loss of recreational activities for the City of Carlsbad, and result in a permanent loss in public access and visual resources impacts where the collection wells are located. See Poseidon Resources Corporation, Additional Analysis of Submerged Seabed Intake Gallery, October 8, 2007. See Coastal Commission Findings adopted on August 6, 2008, page 50 of 106. 53. Poseidon has also provided no documentation to support the contention that reduction of pumping bears a 1:1 ratio with reduction of velocity and impingement. Much like the claims that reducing velocity and turbulence will reduce entrainment and impingement mortality, reducing entrainment mortality by eliminating exposure to heat in the condensers is not backed up with any referenced studies that verify and quantify the reduced mortality rate. Data provided in Attachment 5 does not strongly support a linear relationship between flow and impingement. Please refer to responses to Comments 31 and 104. In co-location mode for CDP benefit, the Discharger lacks control over the use of heat treatment. Elimination of heat treatment is a measure that will be taken if the CDP operates in stand-alone mode, an operating alternative that is not presently before the Regional Board. Eliminating exposure to heat reduces heat-related entrainment mortality, as discussed in Sections 3.6 and 3.7 and table 3-1 of the Minimization Plan. In addition, it is well established that heat treatment causes mortality because fish get trapped in the intake system during the heat treatment cycling. The expert statement submitted into the record by Steven LePage discusses this relationship.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 56 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Commenter does not provide any evidence to suggest that such a position is not well founded. The Regional Board agrees that eliminating heat treatment will result in a reduction of mortality, although at this time the reduction is not quantified. 54. The Revised Plan asserts that replacing "heat treatment" with "scrubbing balls" will eliminate marine life mortality. Again, the Revised Plan does not document any studies to verify and quantify this assertion. Further, the introduction of this cleaning method comes at a significantly late stage in the review process. This method was not analyzed in the EIR, during NDPES review, CDP review, or in the SLC permit review process. Thus, the proposed "scrubbing ball" method has not been studied for possible negative impacts, nor has it been proven a viable alternative to heat treatments. Additionally, the recapture of the balls after they are introduced into the system is not detailed. Introducing 1/2 inch plastic balls into the marine environment presents a variety of serious concerns. The Regional Board is not considering the adequacy of the heat treatment replacement at this time since this is a feature that could be incorporated under stand-alone conditions. Once EPS permanently shuts down and the CDP is operated on a stand-alone basis, the Regional Board will undertake additional evaluation under CWC Section 13142.5. 55. Technology Analysis The technology section of the Revised Plan begins with the assertion that the draft State Lands Commission lease precludes technologies that would interfere with the operation of the EPS. First, the future of the EPS is before the California Energy Commission for review of a "re-power" permit that would eliminate the use of the existing "once through cooling" system for much of the EPS capacity. The EPS intake is also the subject of ongoing litigation that may be settled if the Energy Commission approves the EPS re-power plan. Second, the State Lands Commission has not finalized the lease terms. Consequently, the meaning of this draft Comment noted that the State Lands Commission lease precludes technologies that would interfere with power plant operations. The application pending before the California Energy Commission, however, calls for the continued operation of Units 4 and 5, which have an aggregate capacity of 633 MGD, well in excess of the CDP’s feedstock needs. The Regional Board’s present evaluation is focused on minimization efforts applicable only to CDP’s operations when it is operating in conjunction with EPS, consistent with the description of the Discharger’s proposed CDP operation in its Report of Waste Discharge for order No. R9-2006-0065. For the
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 57 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE language should be coordinated through a cooperative effort by the Regional Board, State Lands Commission, Coastal Commission and the interested public before the Regional Board approves the Revised Plan. foreseeable future, the Discharger has no ability to interfere with EPS’s operations, including changing the design, technology, and operations of the intake system. As reflected in Tentative Order No. R9-2009-0038, additional evaluation of CDP’s operations for compliance with CWC Section 13142.5(b) would be necessary if EPS ceases power generation operations and the Discharger proposes, through a new Report of Waste Discharge, to independently operate EPS’s seawater intake and outfall for the benefit of the CDP (“stand-alone operation”). The Regional Board declines to speculate on the outcome of pending litigation. The State Lands Commission approved the lease terms at its August 22, 2008 meeting, and the lease was executed by the Discharger on November 24, 2008, rendering this comment moot. 56. The Revised Plan also asserts that the foundation for analyzing best available technology relies on the definition of "feasibility" found in CEQA. We disagree. Further, the introduction to this chapter constrains the analysis of "best available technology" to the "site specific and size of this project." As explained below, these pre-determined constraints set up and utilize an illegal cost-benefit analysis of available technologies to reduce the intake and mortality of marine life. Ironically, if the design (e.g., size of the facility and its product output) was considered in combination with the truly best available technology, the alternative sub-seafloor intake technologies outlined in the Revised Plan in Chapter 4 would have been correctly identified as far superior to those chosen for the project in the Revised Plan. See response to comment 46. 57. The intake alternatives that are reviewed are not realistic, The Discharger has provided multiple alternatives in
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 58 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE and misrepresent the associated technology. The Revised Plan offers illustrations and discussion of pump stations on the surface of the adjacent beach that would disrupt recreational uses and inter-tidal ecological processes. However, the successful pilot study of sub-seafloor intakes at Doheny Beach demonstrates that the drilling of wells can be done to cause only temporary disruption to both recreational opportunities and beach ecology. Chapter 4. The Regional Board relied on these alternatives in determining compliance with CWC 13142.5. 58. Finally, the testing location that yielded groundwater of a higher salt concentration than ocean water is undisclosed. The Revised Plan merely states vaguely that an "actual intake well test completed in the vicinity of the EPS" was conducted.(emphasis added) However, the tests completed by Poseidon are not consistent with the Doheny Beach pilot study. In fact, in the Doheny study, the water quality for the intake was far superior to ocean water and eliminated the need for much of the otherwise necessary pretreatment (and associated energy consumption and costs). Pilot testing for the CDP was conducted at Agua Hedionda Lagoon. See Wiedlin, M.P. and Huntley, D., Analysis of Alternative Subsurface Intake Structures, Proposed Desalination Plant, Carlsbad California. Wiedlin & Associates, Inc. Jan. 27, 2007 (Previously submitted April 2, 2009, Latham & Watkins LLP Comments, Appendix B, Tab 33.) Commenter refers to Doheny Beach tests that are not on this record. Moreover, the relevance of such a comparison is not apparent. Commenter provides no basis why we would expect the test results from these two distant locations to be consistent. The fact that sub-seafloor water in the vicinity of the EPS may be of lesser quality than sub-seafloor water at Doheny Beach does not change the feasibility analysis for the CDP. 59. The Revised Plan proposes micro-screening ahead of the pre-treatment equipment combined with the discharge of the entrained organisms to the ocean. However, it is not clear from the document that these micro-filters will actually improve the survival of the entrained organisms. Further, as mentioned above, the apparent design includes the micro-filtration of not only the "source water" for the desalination facility, but the additional water necessary for diluting the See response to Comment 30.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 59 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE discharge. Arguably, a more creative design would separate these intakes and avoid the proposed plan to expose the marine organisms in the dilution water to any contact with screening technology that may impact their survival. 60. Mitigation Analysis "Mitigation measures" as it is used in Section 13142.5(b) must be interpreted to mean "before the fact" mitigation to avoid the intake and mortality of marine life. The Revised Plan offers an "after the fact" mitigation which has clearly been struck down by the federal court for cooling water intakes. There is no distinction in the language of Porter-Cologne § 13142.5(b) that would distinguish other industrial uses of seawater from this holding in Riverkeeper II. See response to comment 45. 61. Revised Plan Quantification of Unavoidable lmpacts to Marine Resources is Unresponsive to Regional Board Concerns. The 2004-2005 impingement sampling data was conducted by EPS in accordance with 316(b) Phase II regulations. These weekly sampling events were not considered to be the focus of the assessment because the majority of impingement impacts were associated with heat treatments. Further, the method of determining the daily biomass entrained associated with a flow of 304 MGD is not given in any version of the Revised Plan or accompanying attachments. Quantification of unavoidable impacts is not necessary because Poseidon proposes to mitigate for all estimated impacts, without consideration to any site, design, or technology measures that will be implemented to minimize these impacts. 62. The Revised Plan entrainment impacts assessment suffers the same flaws as the impingement assessment-lack of specificity. Regional Board staff noted that the Original Plan "does not clearly identify the supporting data or an explanation of underlying assumptions and calculations that were used to estimate proportional mortality values." The Regional Board, in large part, relied on the Coastal Commission (and their independent expert) review and approval of the entrainment data and necessary mitigation.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 60 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 63. Of particular concern is Poseidon's contention that the future survey will adjust the restoration plan to the extent that the lagoon habitat acreage is "higher or lower." This implies that Poseidon could possibly reduce the APF calculation and therefore decrease any mitigation efforts in response to a future survey and restoration plan that is not subject to Regional Board approval. The Discharger no longer proposes to adjust the Restoration Plan based on a future survey of Agua Hedionda Lagoon. Such is not a feature of the revised Minimization Plan, rendering the comment moot. Although the Regional Board may consider a reduction in the productivity requirement if more current impingement monitoring results support this conclusion, the Board would not be making modifications to the APF or any part of the MLMP, as approved by the Coastal Commission. 64. Similarly, Poseidon does not address Regional Board staffs concern that the Revised Plan does not outline "how much more severe impacts may be when populations are small." Poseidon's reply is both obtuse and unresponsive. Poseidon merely states that "fish species occurring in low numbers in the Poseidon study entrainment samples are ocean species, and conversely larval fish entrained in the highest number were lagoon species."" The support for such a contention is lacking. Fish species occurring in lower numbers in entrainment samples are not necessarily ocean species. These fish, or some subpopulation of these fish, may very well be lagoon species. In either case, fish with smaller populations are likely to be highly affected by any amount of entrainment. Comment noted. 65. An Independent Baseline Study of the Agua Hedionda Lagoon Marine Environment is Required. Although Poseidon has submitted three different versions of the same study, it has yet to submit an independent baseline study of the marine system in Agua Hedionda Lagoon and the surrounding area. As mentioned above, Poseidon’s Revised Plan is simply an adaptation of the EPS Phase II PIC Study conducted in 2004-2005. Attachment 4 & 6, Chapter 3, of the March 27, 2009 Minimization Plan are intended to serve this purpose.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 61 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 4/2/2008 letter from San Diego County Water Authority 66. The San Diego County Water Authority encourages the San Diego Regional Water Quality Control Board (Regional Board) to approve the Carlsbad Desalination Project's Flow, Entrainment, and Impingement Minimization Plan - #R9-2006-0065, NPDES No. CA 0109223. In 2006, the Regional Board unanimously approved a discharge permit for the desalination facility. Comment noted. 4/2/2008 letter from Metropolitan Water District 67. The Metropolitan Water District of Southern California joins the San Diego County Water Authority in supporting the development of seawater desalination in Carlsbad as part of a diversified water portfolio for San Diego County. Metropolitan and the San Diego County Water Authority are statewide leaders in water conservation, recycling, and brackish groundwater desalination. However, these accomplishments need to be complemented with other regional and local water management actions, including seawater desalination, in order to manage future challenges associated with population growth, climate change impacts, increased uncertainties in the Bay-Delta, and risk of disruptions to imported supplies due to earthquakes. The Carlsbad project b a crucial first step in developing seawater desalination as a resource for securing the region's water supply reliability. Comments noted. 4/2/2008 letter from City of Coronado 68. The City of Coronado hopes the Regional Board will continue its mission of protecting San Diego's watershed and water Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 62 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE quality by approving the Carlsbad Desalination Project for San Diego County's future health and economic prosperity. 4/2/2008 letter from Assemblymember Martin Garrick, Assembly, California Legislature, 74th District 69. I am writing to request your support for the Carlsbad Desalination Plant (Order No.R9-2006-0065, NPDES No. CA0109223). This critical local water supply project is scheduled to be reviewed by the San Diego Regional Water Quality Control Board on Wednesday, April 9, 2008. Comment noted. 4/7/2008 letter from California State Lands Commission 70. Poseidon should offer modifications that can be incorporated into the design of the project to minimize entrainment and impingement before proposing marine life restoration. All such design modifications proposed have been rendered infeasible by Poseidon based on cost; however, a true cost/benefit analysis has not been conducted utilizing value recommendations of the State and Federal fish and wildlife agencies, as the value recommendations have yet to be requested. Comment noted. Please see Comment # 60. 71. CSLC staff believes that it is essential that Poseidon's Flow Plan reflect the recommendations of the State and Federal fish and wildlife agencies concerning the adequacy and appropriateness of Poseidon's aquatic life impact calculations and the quantity, type, location and duration of marine life restoration proposed within the Flow Plan. CSLC staff supports the recommendation contained in the Regional Board's February 19, 2008 letter, Item 7, that Poseidon might benefit from convening a joint meeting with the resource agencies to discuss Poseidon's Flow Plan. A meeting with the resources agencies has been scheduled for May 1st and This comment is no longer applicable. Please see Comment # 42.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 63 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 2nd, and CSLC will be participating in this meeting. 72. While Poseidon provides calculations of the magnitude of the impacts to organisms in the Flow Plan dated March 6, 2008, Poseidon also wishes to base the mitigation plan on a financial cap. The final mitigation plan should be based solely on the magnitude of impacts to the organisms; as substantiated by the Trustee Agencies (USFWS, NOAA and CDFG) and agreed to by the Responsible Agencies. This comment is no longer applicable as Poseidon is not requesting a financial cap 73. The impacted environment is a saltwater lagoon with tidal influence and circulation from the Pacific Ocean. The proposed mitigation is for an inland saltwater marsh with tidal influence. Currently, Poseidon favors off'-site mitigation (located 12.5 miles south) based on their efforts t6 solicit interest from property owners within the Agua Hedionda Lagoon. This off-site mitigation will not result in in-kind mitigation and is proposed at a 1.1: 1.0 ratio. The CSLC would prefer on-site (within the Aqua Hedionda Lagoon), in-kind mitigation, at a ratio which will compensate for the losses in time (2:1 minimum). If the ultimate mitigation is off site and not in-kind, then the mitigation ratio should compensate for the impacts both through time and space (Le., at a ratio greater than 2:1). Therefore, it is important that the project proponent exhaust on-site, in'-kind mitigation opportunities prior to moving to an off-site plan. Comment noted. Although not necessarily on-site, the Minimization Plan now provides preference to the mitigation alternatives proposed within the same region as the impacts. Mitigation acreage (or ratios) as set forth in the MLMP, have been supplemented by performance standards intended to ensure their adequacy. 74. There is some concern that the method used to calculate the "replacement" habitat understates the environment needed to produce the organisms impacted by the desalination plant. This underestimation occurs both on the intake side, which appears to ignore the contribution of the watershed and the Pacific Ocean, and on the discharge side, with the impacts caused by increased salinity. We understand that the local Water Board has engaged the services of an independent To clarify, at the time that this comment was submitted, review of impacts for the Regional Board were conducted solely by Regional Board staff. The March 27, 2009 Minimization Plan reflects mitigation acreage as required by the CCC and corrections to impingement that resulted from staff inquiries to Poseidon. Therefore the Regional Board believes this
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 64 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE expert to re'-calculate these impacts. Once again, the final mitigation plan should be based on the magnitude of the impacts to the organisms, which may be ten times greater than estimated by Poseidon. comment is no longer applicable. Poseidon did agree to pay for an independent expert review by Dr. Pete Raimondi, to assist the Regional Board in determining the appropriate impingement assessment approach and the adequacy of mitigation, but that occurred subsequent to the submittal of this comment. Public comment was received and accepted through April 8, 2009. 75. Poseidon stated that it can reduce the velocity of the water flowing into the intake to below 0.5 fps (feet per second). Poseidon should be required to provide substantiation of the ability to operate at this flow rate. See response to comment 50. 76. CSLC staff agrees with Regional Water Board staff in its February 19,2008 request for information, Item 6b, that a one-time mitigation plan (particularly with many unknown components) does not appear to be adequate for the long-term impacts to resources that will be impacted. Poseidon's response is that the agencies should rely on a process and that it is Poseidon's intent "...to create habitat comparable to that in Agua Hedionda Lagoon." Because Poseidon has provided to the CSLC a list of proposed restoration locations based upon the results of a request for proposed solicitation by bidders with a bid-cap price, we do not believe that Poseidon is being specifically responsive to this issue. The Regional Board has concluded that the MLMP contains sufficient specificity to ensure proper selection of necessary mitigation site(s), in lieu of a single proposed alternative. The Regional Board also concludes that the imposition of a productivity requirement, and necessary monitoring to determine compliance, will ensure that the proposed mitigation adequately and appropriately offsets recurring impacts from CDP operation. 1/19/2009 letter from Hubbs-Sea World Research Institute 77. Hubbs-SeaWorld Research Institute (HSWRI) supports acceptance of the measures proposed by Carlsbad Desalination Project that will ensure the continued viability of the Lagoon and the surrounding environs, and has no concerns that would prevent the Regional Board’s approval Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 65 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE of the Marine Life Mitigation Plan. 1/19/2009 letter from Industrial Environmental Association 78. The IEA respectfully requests that the Regional Board approve this mitigation plan as submitted and allow the project to proceed to construction. Comments noted. 1/19/2009 letter from Carlsbad Chamber of Commerce 79. The Carlsbad Chamber of Commerce endorses this project and requests that the Regional Board approve Poseidon’s Marine Life Mitigation Plan. Comments noted. 1/19/2009 letter from the City of Carlsbad 80. It has been ten years since we first launched this projected and the time has come for the Regional Water Quality Control Board to complete its approval of the Carlsbad Desalination Project. Please do so at your February 11 hearing and allow our region to move forward in creating a drought-proof, reliable local water supply. Comments noted. 1/19/2009 letter from the San Diego County Building & Construction Trades Council, AFL-CIO 81. The San Diego County Building and Construction Trades Council request the Regional Board’s support for approving Poseidon' Carlsbad Desalination Project Marine Life Mitigation Plan. The San Diego County Building and Construction Trades Council is proud to be a part of the team that will be bringing a much needed, new water supply to San Diego. We ask you to consider the importance of this project to the region and help us to move forward to construction by approving the Marine Life Mitigation Plan. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 66 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 1/21/2009 letter from Sweetwater Authority 82. Sweetwater has carefully reviewed Poseidon's project, including the Marine Life Mitigation Plan, to ensure that Poseidon has done its due diligence in mitigating for all potential impacts. The mitigation plan was conceived through the cooperation of multiple agencies, including the Regional Water Quality Control Board, and has received approval from all other participating agencies. We are satisfied that this plan meets the standards of both the Water Code and the Coastal Act and fulfills the conditions your agency enacted when you approved the Flow, Entrainment and Impingement Minimization Plan in April 2008. With over ten years of analysis, review and revisions, this project is ready to move on to the construction stage. The Sweetwater Authority Governing Board asks the Regional Board to make the right decision and approve the Marine Life Mitigation Plan for the Carlsbad Desalination Project. Comments noted. 1/21/2009 letter from San Diego County Taxpayers Association 83. This project will generate jobs and critical revenues for local governments including $2.4 million in property tax per year for the next 30 years, as well as $10.4 million in sales tax during construction, and $2.9 million per year thereafter. At a time when ratepayers are facing mandatory conservation and higher water rates, the SDCTA requests your immediate approval of the project's Marine Life Mitigation Plan. Comments noted. 1/21/2009 letter from The Flower Fields in Carlsbad, CA 84. A reliable and affordable water supply is crucial to the survival of The Flower Fields and hundreds of small farming operations in San Diego. We strongly urge the Board to approve the Marine Life Mitigation Plan for the Carlsbad Desalination Project so that we can move forward to Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 67 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE construction on this important new local water supply. 1/21/2009 letter from the Santa Fe Irrigation District 85. The Carlsbad Desalination Project has undergone a decade of regulatory review and has long since proven its environmental credentials. We are confident that the MLMP currently under review fulfills all of the conditions of the discharge permit the Board issued in 2006. We believe that this agreement provides our region with the most dependable, cost-effective, and environmentally responsible water source to augment our imported supplies. On behalf of my Board of Directors and our thousands of customers, we urge the Board to approve the Marine Life Mitigation Plan. Comments noted. 1/21/2009 letter from Olivenhain Municipal Water District 86. Olivenhain has thoroughly reviewed the Carlsbad Desalination Project's Marine Life Mitigation Plan and we are confident in giving it our endorsement. The plan ensures that Poseidon will mitigate extensively for any impingement and entrainment impacts in the lagoon. We believe that this plan, which has been broadly vetted among the appropriate State regulators, is well conceived and should be approved at your next meeting. Comments noted. 1/21/2009 letter from Councilmember Benjamin Hueso, San Diego City Council President 87. Poseidon should be allowed to move forward with the process that was started by the Regional Board so that it can take the steps contained in the Plan, and so that our respective staff, in accordance with the continuing interagency process, can determine at which of the mitigation site locations provided by the Plan the actual mitigation should occur, in accordance with the Plan's strict performance-based goals and success criteria. Your final approval of the Plan on February 11,2009 will allow an Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 68 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE environmentally sound project, that has been in the works for ten years, to commence construction. I hope you will act swiftly. Thank you for your consideration of my support for the Carlsbad Desalination Project and Poseidon's Marine Life Mitigation Plan. 1/21/2009 letter from Martin Garrick, Assemblymember, District 74, Assembly California Legislature 88. Collectively, the City of Carlsbad, the State Lands Commission, the Coastal Commission, and the Regional Board have done their due diligence, analyzing the project extensively and concluding there are no significant, unavoidable impacts for both the construction and on-going operation of the plant. I feel strongly that this project will have no detrimental effects on the coastline or marine habitat surrounding the plant and I urge your approval of the Marine Life Mitigation Plan. Comments noted. 1/21/2009 letter from Christine Kehoe, Senator, District 39, California State Senate 89. The Carlsbad Desalination Project offers a local solution to our long term water supply needs that will reduce the region's dependence on imported water especially during this period of extended drought. I urge your favorable consideration of this project. Comments noted. 1/21/2009 letter from Don Christiansen 90. I am a resident of Carlsbad and I have been following the progress of the Carlsbad Desalination Project for many years. As it now stands, the project has gained every endorsement and approval it needs to be built with the exception of your Board's sign off of the Marine Life Mitigation Plan. It has been a long, slow road to get this point and I think the Carlsbad Desalination Project has done everything it needs to do to gain your approval. I appreciate your time and attention to my letter. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 69 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 1/21/2009 letter from Vallecitos Water District 91. On behalf of the Vallecitos Water District (Vallecitos) and our Board of Directors, I am pleased to offer our endorsement of the Carlsbad Desalination Project and its Marine Life Mitigation Plan. With the recent cutbacks in San Diego's imported water supplies, Vallecitos is eager to see this project progress towards construction as soon as possible. We urge the Regional Water Quality Control Board to accept and approve Poseidon's Marine Life Mitigation Plan. Comments noted. 1/21/2009 letter from Agua Hedionda Lagoon Foundation 92. The Agua Hedionda Lagoon Foundation requests that the Regional Water Quality Control Board approve the Marine Life Mitigation Plan (MLMP) for the Carlsbad Desalination Project. Poseidon’s Marine Life Mitigation Plan extends the benefits of a clean watershed and healthy ecosystem to wetlands in other parts of Southern California and we urge you to approve the plan without delay. Comments noted. 1/21/2009 letter from San Diego County Farm Bureau 93. It is imperative that this region develop new, drought-tolerant local sources that can supplement our diminishing imported water supplies. The Carlsbad Desalination Project is a viable and timely option for our county. Any other options would take years to develop, but our need to diversify San Diego County's water supply is urgent. On behalf of San Diego's 5,000 farmers, I urge the Regional Board to approve Poseidon's Marine Life Mitigation Plan and allow the Carlsbad Desalination Project to move forward. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 70 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 1/21/2009 letter from San Diego North Economic Development Council 94. This desalination project will employ the most energy-efficient and environmentally-sound principles in its construction and operation. Poseidon's stewardship of the Agua Hedionda Lagoon, dedication of multiple acres for public use on the lagoon, and commitment to restore wetland habitat in other Southern California sites demonstrates the care and consideration this company has displayed towards our marine ecosystem. The mitigation plan submitted to you by Poseidon Resources has been reviewed and approved by the numerous State agencies and found to meet all the requirements of those entities. On behalf of the Council and our members, I offer our full support of the Carlsbad Desalination Project and ask you to approve its Marine Life Mitigation Plan. Comments noted. 1/22/2009 letter from Mark Wyland, Senator, District 38, California State Senate 95. This project has been extensively analyzed by the City of Carlsbad, as well as a wide range of community, environmental, scientific, business and regulatory organizations. The evidence demonstrates that it will have no detrimental effects on the coastline or marine habitat surrounding the plant. In fact, Poseidon Resources has become a vital part of the lagoon's long-term health by agreeing to provide ongoing dredging and maintenance when the Encina Power Station is decommissioned. The project's Flow, Entrainment and Impingement Minimization Plan can assure the Board that the project will be operated using the best possible site, design and technology. The project's marine life mitigation plan, which includes 55 acres of wetlands restoration, will be more than adequate for its purposes. I believe that elected officials have an obligation to advance projects that are in the best interest of their Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 71 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE constituents. On behalf of the residents of District 38, I urge you to support the Carlsbad Desalination Project's Marine Life Mitigation Plan. 1/22/2009 letter from Robert Simmons, Counselor-at-Law 96. It is clear to me that this Poseidon Mitigation Plan fully complies with the controlling section of the California Water code (#13,142.5(B)). The 55 acre mitigation reach meets and exceeds the level of specificity required by the Regional Board. In closing, I urge the Board to be mindful of the following two facts: 1. Besides protecting the marine life in coastal waters, the Regional Boards are also tasked with promoting the "beneficial uses" of such waters. Surely, providing potable water to 110,000 human families more than offsets the speculative marine injury that may remain after the planned mitigation. 2. The two environmental groups that oppose the Plan's approval - Surfrider Foundation and CoastKeeper - have opposed the Poseidon project since its very inception. They oppose all coastal desalination and are out of step with the vast majority of environmentalists, who believe that the threat of severe drought injury, to the land environment, is far worse than the speculative threat posed by Poseidon to the marine environment. I urge you to approve the Poseidon Plan as submitted, without delay. Comments noted. 1/23/2009 letter from San Diego Regional Chamber of Commerce 97. The Carlsbad desalination facility was designed to minimize impacts to marine life found in the Agua Hedionda Lagoon Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 72 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE and surrounding coastal areas. Poseidon Resources has also created a substantive, comprehensive plan to ensure it mitigates fully for the impacts that are unavoidable. This plan includes ongoing lagoon maintenance and restoration of up to 55.4 acres of wetland in Southern California. The Chamber commends Poseidon Resource's efforts to make this project environmentally benign, while reducing our region's dependence on imported water. The MLMP clearly meets the requirements of the discharge permit you have already issued and deserves the Board's approval. 1/23/2009 letter from Valley Center Water District 98. The new Marine Life Mitigation Plan (MLMP) provides further evidence that Poseidon Resources takes its responsibilities to our marine environment seriously and has made numerous binding commitments to that effect. The interagency approval process of the MLMP, which involved eight state agencies including Regional Board staff, Coastal Commission and State Lands Commission staff and the Department of Fish and Game, culminated in approval by the Coastal Commission in Aug. 2008 of a performance-based MLMP with 11 pre-approved candidate mitigation sites. It's important to note that the Regional Board staff participated in the review of the mitigation plan but never expressed concerns or objected to the final plan that was approved by the Coastal Commission. Valley Center Municipal Water District understands that seawater desalination is a key part of the solution to the region's long-term water reliability needs. The entire San Diego region is depending on this new water supply to lesson the demand on imported water. We find no reason to delay action any longer and we strongly urge the Board to approve Coordination among participating agencies for the amendment of the Plan as required by Section 13225 of the California Water Code was a condition imposed by the Regional Board on Poseidon with the Regional Board’s approval of Resolution No. R9-2008-0039. While the Marine Life Mitigation Plan submitted to and approved by the Coastal Commission satisfied the Coastal Commission requirements, by doing so it did not necessarily satisfy the conditions required by the Regional Board because the Regional Board must independently evaluate the information submitted for compliance with all applicable sections of the California Water Code. Based on this independent review, the Regional Board has determined that the Minimization Plan, which incorporates the MLMP, satisfies all applicable requirements.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 73 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE this project. 1/23/2009 letter from Julianne Nygaard, Council Member, City of Carlsbad 99. This plan fully mitigates for the minimal marine impacts of the Desalination Project anticipated to occur after the Power Station is decommissioned. After ten years of planning and study, I firmly believe the Carlsbad desalination plant is an environmentally responsible solution to the regional water reliability needs. The Carlsbad Desalination Project is not only a water supply, but a significant water storage environmental enhancement, preservation, and restoration project. Without any hesitation, this project deserves your full support. It should be noted that the NPDES permit adopted by the Regional Board does not cover the situation when Encina Power Station (EPS) is no longer operating and Poseidon is a stand-alone facility. The permit covers co-location operation for CDP benefit, which can occur under two conditions: (1) when EPS is temporarily shut down or (2) when EPS is operating but its discharge volume is not sufficient to meet CDP’s intake requirements. A new report of waste discharge in application for an NPDES permit must be submitted by Poseidon to cover the situation where EPS is no longer operating and no longer needs to draw intake water from Agua Hedionda Lagoon for power plant operations. Additional requirements for minimizing the intake and mortality of all forms of marine life may be required of Poseidon under this situation pursuant to California Water Code Section 13142.5(b). 1/26/2009 letter from San Diego County Water Authority 100. The San Diego County Water Authority’s recent drought response planning contemplates the Carlsbad Desalination Project delivering water at full capacity to the region in early 2012. The Carlsbad Desalination Project is essential to the Water Authority's ability to achieve its water diversification goals. The Water Authority urges all members of the Regional Water Quality Control Board to approve the Carlsbad Desalination Project's final conditions. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 74 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 4/2/2009 Letter from Poseidon Resources 101. The Marine Life Mitigation Plan (MLMP) represents the culmination of a comprehensive, interagency planning process involving extensive scientific study and public involvement and ensures that potential entrainment and impingement impacts to marine resources from the Project will be fully mitigated in compliance with Resolution R9-2008-0039, Order No. R9-2006-0065, and Water Code Section 13142.5(b). Specifically, the MLMP will: • Avoid or mitigate to less-than-significant levels all impacts to marine resources associated with potential E&I from the Project’s water intake; • Create or restore up to 55.4 acres of high-quality estuarine wetland habitat based on the best science available to mitigate Project-related impacts and likely result in a net biological benefit to the Southern California Bight; • Establish monitoring protocols and empower the Regional Board and the California Coastal Commission with enforcement mechanisms to ensure potential E&I impacts are accurately measured over time and that mitigation success targets consistently are achieved; • Establish an enforceable schedule for completion of site selection (nine months), environmental review and permitting of the site(s) (24 months) and the start of construction (six months after approval of the permits); • Provide for significant, continuing agency oversight during the selection, development and performance monitoring of the final mitigation site(s), including by the Executive Officer if the Regional Board approves the MLMP (as the MLMP would then be equally enforceable by the Regional Board); and, • Authorize enforcing agencies to order remediation in the event the rigorous performance criteria are not met. (Comments from Latham & Watkins LLP January 26, 2009 Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 75 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Comment Letter, pgs. 3, 12-20 and Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 18-20) 102. Poseidon’s submittal of the MLMP was not untimely. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 37-38) This comment is no longer applicable as Order R9-2009-0038 supersedes Resolution R9-2008-0039. 103. The Minimization Plan properly relies upon data collected during the 2004-2005 Impingement Mortality and Entrainment Characterization Study conducted by Tenera Consultants to assess the entrainment and impingement impacts associated with Encina’s intake. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 20-23) With the submittal of the March 27, 2009 Minimization Plan, the Regional Board concurs with this statement. 104. On April 30, 2008, Poseidon submitted a calculation indicating that the Project’s standalone impingement would be approximately 1.57 kg per day, a de minimis value. When operating in co-located mode, any impingement associated with the Project would naturally be even less. Based on requests from Regional Board staff, Poseidon submitted Attachment 5 to the Minimization Plan which presents several different ways to account for the direct relationship between impingement and flow in the impingement estimates. Depending on their treatment of the outlier sampling events and the extent to which they account for the relationship between flow and impingement, these approaches produce a range of possible impingement estimations of between 1.57 to 7.16 kg per day. Subsequent scientific analysis of the outlier events completed by experts for Poseidon conclude that the estimate values toward the lower end of the range more reasonably anticipate The Regional Board considered multiple approaches to estimating impingement associated with the CDP’s projected operations under co-located conditions. The estimates derived from the multiple approaches range from 1.56kg/day, using a regression analysis, to 7.16 kg/day of fish impinged, which assumes no reduction from EPS’s impingement. The Discharger’s experts maintain that 1.56 kg/day is an appropriate estimate and that the estimate of 4.7 kg/day, an estimate which the staff supports, overstates the projected impingement associated with CDP’s stand-alone operations. The Discharger and the Regional Board staff disagree as to whether, and to what extent, it is appropriate to exclude two days of very high impingement when projecting impingement. The Discharger’s experts refer to the data from the two very high impingement days as “outliers.” Staff disagrees that the Discharger’s experts have adequately justified its characterization of the data as “outliers” and
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 76 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the Project’s operations. In any event, Poseidon considers all of the various, reasonable impingement estimation approaches to result in impingement estimations that are de minimis. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 23-24; Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 10-12; Minimization Plan, Attachments 5, 7 and 9) disagrees with the Discharger’s proposed exclusion of the data from the estimate of future impacts. The Regional Board finds that it is unnecessary to resolve these disputes. The Regional Board finds that 4.7 kg/day, which assumes 100% probability of the two very high impingement days, is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. 105. The CDP’s projected impingement when operating in stand-alone mode ranges from 1.57 to 7.1 kilograms per day (“kg/day”) based on applying a linear regression analysis to EPS’s 2004-05 impingement sampling data. The 2004-2005 EPS sampling data includes 52 samples events. During two of the sample events, January 12 and February 23, the recorded impingement was observed to be relatively higher than on the other fifty days. Importantly, these two sample days immediately follow storm events. Subsequent analysis completed by Drs. Chang and Jenkins, experts for Poseidon, indicate that the storm events preceding the January 12 and February 23 samples have a low probability of recurrence, each likely to occur no more than once every quarter century. The likelihood that both such events will occur in any given year, as they did during the 2004-2005 sample year, is even more remote. Because the rains preceding the two outlier collection events can be expected to occur less than once every 20 years (i.e., less than 5%), the weight of the outliers should be discounted accordingly. When the weighted-average flow-proportioned approach (3-B) incorporates an outlier probability value of To clarify not all values included in the range of 1.57 to 7.16 are based on applying a linear regression analysis. Regional Board staff disagree with the Discharger’s claim that the two high impingement results were a result of storm events and suggested alternative causes. Regardless, the Regional Board finds that it is unnecessary to resolve these disputes. The Regional Board finds that 4.7 kg/day, which assumes 100% probability of the two very high impingement days, is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 77 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE less than 5%, the approach calculates an impingement estimate of less than 2.24 kg/day, with 2.24 providing a reasonable upper bound. This value provides a reasonable approximation of the CDP’s potential impingement. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pg. 23, fn. 45; Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 10-11, Appendix B, Tab 3; Minimization Plan, Attachments 5 and 9) 106. EPS’s daily water requirements are approximately twice those projected for the Project. To satisfy EPS’s water demands, the power plant draws water in at a flow rate that exceeds the Project’s projected flow rate. When the Project operates in standalone mode, therefore, it will be able to operate the existing intake facilities at a reduced flow rate and use fewer pumps to collect the water. By lowering its flow rate below the 0.5 fps level, the Project will reduce the impingement impacts associated with the desalination plant operations to a level that the Coastal Commission acknowledged is ‘a de minimis impact.’” Moreover, the EPA has recognized that a water intake flow rate equivalent to the Project’s (0.5 ft/s) would minimize impingement impacts to insignificant levels. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 24-26) The EPS NPDES permit contains a permitted discharge flow rate of 863.5 MGD. The EPS intake flow rate needs may decrease over time due to other power generating sources within the San Diego Region and elsewhere. Thus, the reduced flow rate from 863.5 to 304 MGD would result in an overall reduction of the impacts caused by impingement and entrainment of organisms at the intake structure. When the intake structure is operated for the benefit of the CDP during prolonged temporary shutdown, the Regional Board may require Poseidon to implement additional feasible design and technology measures to reduce intake impacts. The Regional Board, however, has not relied specifically on a particular intake velocity in establishing its findings and requirements as contained in the Tentative Order. When CDP proposes to operate as a stand-alone facility, with EPS generating units permanently shut down, a new analysis will be required to ensure compliance with Water Code section 13142.5(b). See also response to comment 50.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 78 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 107. Using the Empirical Transport Model (“ETM”) and the results of the June 2004 to June 2005 entrainment survey, Tenera Environmental concluded that the Project’s entrainment impacts would result in an Area of Production Foregone (“APF”) of 36.8 acres. The calculation of 36.8 APF was an extremely conservative estimation and was based on four equally conservative assumptions: (1) Assumes 100% mortality of all marine organisms entering the intake; (2) Assumes 100% survival of all fish larvae in their natural environment; (3) Assumes species are evenly distributed throughout the entire depth and volume of the water body; and (4) Assumes the entire habitat from which the entrained fish larvae may have originated is destroyed. The entrainment model also did not account for the significant environmental benefits that extend well beyond compensating for the entrainment impacts. Subsequent to the March 2008 submission of the 36.8 APF calculation and supporting documents to the Regional Board, Dr. Pete Raimondi reviewed the entrainment study at the request of the Coastal Commission. As a result of this review, two additional layers of resource protection were added to the Project’s mitigation obligation. First, First, Dr. Raimondi added open ocean water species (e.g., the northern anchovy) to the entrainment model, even though he recognized that the water intake system’s intake system’s entrainment impact on ocean species is very small. By adding ocean species, Dr. Raimondi’s approach forces Poseidon to mitigate for a number of species that will be only minimally affected by the Project’s operations. Second, Dr. Raimondi applied an 80% confidence level APF as the basis for mitigation. This approach represents a significant departure from the way that entrainment studies have been Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 79 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE conducted in the past and ensures that the MLMP plan will fully account for the Project’s entrainment impacts. Whereas Tenera based its APF calculation on a 50% confidence interval—i.e., the level of confidence that past entrainment studies have generally used—Dr. Raimondi used the higher 80% figure. Thus, to an 80% degree of certainty, the mitigation plan comprehensively identifies and accounts for any entrainment impacts. When these adjustments are combined with all of the conservative assumptions that Tenera had already incorporated in arriving at the 36.8-acre APF figure, the entrainment model generates a final APF of 55.4 acres that ensures resource protection and promotes excess mitigation. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 27-31) 108. On February 19, 2008, Regional Board staff sent Poseidon a letter identifying concerns with the June 29, 2007 version of the Minimization Plan. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 31-34) Comment noted. 109. The Regional Board directed Poseidon to resolve the conditions of the April Resolution through an interagency review and approval process. As a result, the MLMP was developed in a months-long interagency process and will continue to engage the agencies in site selection, restoration plan development, and performance monitoring. Such interagency actions included the May 1 and 2 interagency meeting regarding the MLMP, the Scientific Advisory Panel’s review of the MLMP at the request of the Coastal Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 80 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Commission, the submission of various drafts of the MLMP to various interested agencies by Coastal Commission staff, Coastal Commission and State Lands Commission review and approval of the MLMP, and finalization of MLMP language by Coastal Commission staff (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 31-34) 110. The underlying data upon which the MLMP is based were collected in 2004 – 2005 under a Regional Board-approved work plan and reviewed by the agency’s third-party consultant, Tetra Tech. The data are representative, adequate, and appropriate for assessment of potential E&I effects during both co-located and stand-alone operations. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 31-34) The Regional Board concurs that the data are adequate for estimating impingement and entrainment during 2004-2005, for the purpose of estimating impacts from CDP co-located operation. 111. Although Project-related impingement and entrainment are expected to be minimal and will already be reduced by the site, design and technology elements, Poseidon has committed to mitigation under the terms of the MLMP to fully offset potential entrainment and impingement. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 31-34) Comment noted. 112. The actual mitigation site(s), which will be selected this year, will not be locked in to San Dieguito Lagoon or other pre-determined outcome as staff were concerned in April 2008, and will be at location(s) acceptable to the Executive Officer Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 81 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE of the Regional Board, and the Executive Director of the Coastal Commission. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 33-34) 113. Consistent with the April Resolution, Poseidon submitted eleven specific mitigation sites determined during the interagency process and submitted a specific proposal for mitigation at these identified sites. In its December 2, 2008 letter to Poseidon, staff indicated that “the MLMP does not propose a specific mitigation site or a specific proposal for mitigation at an identified site.” To the extent staff is concerned that Poseidon is not bringing to the Regional Board a single site for consideration, the concern is belated to the point of prejudice to Poseidon and is in contrast to its course of conduct. In the April 4, 2008 Technical Report, staff faulted Poseidon’s mitigation planning for seeming to “favor a pre-determined outcome (i.e., mitigation in San Dieguito Lagoon).” In that same Technical Report, and with apparent approval, staff acknowledged that Poseidon was considering mitigation at several possible sites, including Frazee State Beach, Loma Alta Lagoon and Buena Vista Lagoon, in addition to Agua Hedionda Lagoon and San Dieguito Lagoon. The April 4, 2008 Technical Report stated that the adoption of the Minimization Plan was premature because it did not “clearly identify the method for the final selection and agency concurrence of the preferred mitigation alternative.” In fact, both prior to the April 9, 2008 conditional approval, and during the interagency process, Poseidon was led to believe that staff viewed a short list of potential sites coupled with a rigorous screening, selection and implementation process that is evaluated against a comprehensive set of objective The Regional Board concludes that the criteria set forth in the MLMP will favor appropriate selection of the mitigation site(s).
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 82 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE performance criteria as a strength of an appropriate mitigation plan. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 33-34) 114. Resolution No. R9-2008-0039 required Poseidon to address items in staff’s February 19, 2008 letter (many of the items had been mooted only by the March 6, 2008 version of the Plan), and the following additional concerns: a) identification of impacts from impingement and entrainment; b) adequate monitoring data to determine the impacts from impingement and entrainment; c) coordination among participating agencies for the amendment of the Plan as required by Section 13225 of the California Water Code; d) adequacy of mitigation; and e) commitment to fully implement the amendment to the Plan. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 34-35) Comment noted. 1/30/2009 letter from California Environmental Protection Agency 115. This letter is to urge you to conclude that the Marine Life Mitigation Plan for the Poseidon Carlsbad Desalination Project satisfies the conditions of the Board's Resolution No. R92008- 0039. Our view is that a process-based approach with criteria for the evaluation of mitigation site options satisfies the objectives of the Resolution. The California Coastal Commission recently approved the Mitigation Plan by an overwhelming vote of eleven to one. The Commission approved the process-based approach with While the Marine Life Mitigation Plan submitted to and approved by the Coastal Commission satisfied the Coastal Commission requirements, by doing so it did not necessarily satisfy the conditions required by the Regional Board because the Regional Board must independently evaluate the information submitted for compliance with all applicable sections of the California Water Code. Based on this independent review, the Regional Board has determined that the Minimization Plan, which incorporates the MLMP, satisfies all
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 83 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE criteria for the evaluation of mitigation site options. Key agencies that have expertise in marine life mitigation, including the Department of Fish and Game, were engaged in the development of the Plan. Other interested federal, state, and local agencies were also engaged in the development of the Plan, including the Department of Transportation and the State Lands Commission. applicable requirements. 2/2/2009 letter from California Department of Food & Agriculture 116. I am writing to express my enthusiastic support for the Poseidon Desalination Project proposal. As you know, California is in the third year of an extreme drought and the clear evidence of snow pack and accumulated rainfall totals at this time shows that the situation is worsening. The historic low levels of water in the state’s major reservoirs are already leading to dramatic cutbacks in water deliveries and alarming predictions of further water rationing. Comments noted. 2/2/2009 letter from Governor Arnold Schwarzenegger, State of California 117. I am writing to urge you to approve the Marine Life Mitigation Plan for the Carlsbad Desalination Project at your February 11 meeting. Desalination must be part of a diverse approach to improving water supply, especially as California confronts what may be the worst drought in our state's modern history. Ignoring desalination as part of a region's water supply portfolio would ill serve both the region and the state. As the Board evaluates the Carlsbad Desalination. Project's Marine Life Mitigation Plan, I urge you to consider the critical role desalination plays in ensuring water supply reliability for San Diego and for the state. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 84 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 2/2/2009 letter from California Natural Resources Agency 118. I write in support of the Poseidon Carlsbad Desalination Project and of the sufficiency of Poseidon’s Marine Life Mitigation Plan (MLMP), a critical component to addressing the Board’s prior conditional approval in Resolution No. R9-2008-0039. The Poseidon Carlsbad Desalination Project is an important infrastructure project and I urge you to determine that the MLMP satisfies sufficiently the conditions that the Regional Board established in Resolution No. R9-2008-0039. Comments noted. 2/2/2009 letter from California Department of Fish and Game 119. The Department of Fish and Game (Department) offers the following information in support of the Poseidon Carlsbad Desalination Project (Project) and the associated Marine Life Mitigation Plan (MLMP). Department staff was actively involved in the review of. the Project and MLMP. In addition, Department staff was involved with the analysis and determination of impingement and entrainment impacts due to operations of the desalination. plant. and collaborated with the California Coastal Commission (Coastal' Commission), the State Lands Commission, and other state agencies on the development of the MLMP. Also, we have been in contact with Project representatives in the context of discussing potential wetland mitigation sites. The Department agrees that the mitigation measures the Coastal Commission determined to be appropriate are adequate to mitigate the impacts of the project. The Department supports the Coastal Commission's procedures for determining the mitigation for these impacts in addition to the sound scientific methodology that was used. Comments noted. While the Marine Life Mitigation Plan submitted to and approved by the Coastal Commission may have satisfied the Coastal Commission requirements, it does not necessarily satisfy the conditions required by the Regional Board. The Regional Board must independently evaluate the information submitted to the Regional Board for compliance with all applicable sections of the California Water Code.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 85 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 2/3/2009 letter from Assemblymember Mary Salas, Assembly, California Legislature, 79th District 120. This letter is to inform you of my support for the Carlsbad Desalination Plant and to request your approval of Poseidon's Marine Life Mitigation Plan. This project has gone through rigorous testing and public scrutiny to ensure that it will be environmentally friendly and efficiently operated. The project developers have made every effort to comply with state and federal environmental regulations and have long since proved their project will not harm the Agua Hedionda Lagoon or ocean. In fact, their proposed mitigation measures will restore more than 55 acres of wetlands habitat and will provide for the annual maintenance of the lagoon. Comments noted. 2/5/2009 letter from Sierra Club 121. In reviewing the MLMP we find that it fails to apply an ecosystems based approach in assessing and mitigating the impingement and entrainment the impacts of the project. The MLMP uses a limited data base that sampled the source water that would be extracted by the proposed desalination plant. It should be noted that the marine life in this source water has been subjected to impingement and entrainment stresses by the Encina Power Station since 1954 when the plant first came on line. An ecosystem approach is not entirely applicable to this case because the affected ecosystem in not wholly removed (as is generally done when evaluating compensatory mitigation for impacts of fill in a CWA Section 401 certification). Rather, specific components of that ecosystem are being altered due to impingement and entrainment. Therefore, a good mitigation project would seek to offset the specific alterations from the proposed impacts. That having been said, Chapter 5 of the Minimization Plan does give consideration to the ecosystems affected (Table 5.7) and Chapter 6 does attempt to provide compensatory mitigation in terms of the ecosystems affected (i.e. mudflat/tidal channel, and open water). Existing conditions due to the operation of EPS are appropriate to consider as part of the environmental baseline, particularly while the CDP is in co-located
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 86 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE operations. 2/6/2009 letter from Mayor Jerry Sanders 122. The Carlsbad Desalination Plant's Marine Life Mitigation Plan has now been approved by the California Coastal Commission and the State Lands Commission. The plan, which you are now being asked to approve, is a byproduct of the permit you issued the project back in 2006, Per the Board's April 9, 2008 resolution, this plan was subject to a lengthy interagency review process to ensure that it met all the requirements of the discharge permit you originally issued in 2006. There is no doubt that the plan and its components are fully compliant with your April resolution. I urge your support for the Marine Life Mitigation Plan. You can approve the plan with confidence knowing that water quality standards and the coastal marine environment are fully protected. Comments noted. 2/9/2009 e-mail from Sierra Club S1 The MLMP does not address the significance of connectivity. The MLMP proposes to seek out a site someplace in the SoCal Bight, approximately 450 km from the border to Pt Conception. The MLMP assumes that the local genetic populations of larvae including the benthic invertebrates are the same throughout this coastal region. But the article on The Regional Board concludes that the criteria set forth in the MLMP will favor appropriate selection of the mitigation site(s). Although not necessarily on-site, the Minimization Plan
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 87 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE page 446 states that this long held concept that the demographics of the larval pool is open over hundreds to thousands of kilometers is not longer valid. Many studies over the past decade have contradicted this notion. In fact there is a continuum of larval dispersal from closed locations to completely open. Therefore, without detailed larval dispersal information of a local reference area (not the coastal and lagoon zone impacted by the impingement and entrainment stresses from the Encina Power Station), how can the proposed MLMP mitigate the impacts? now provides preference to the mitigation alternatives proposed within the same region as the impacts. S2 The article reinforces the need to take an ecosystems-based approach to develop a mitigation plan. I have doubts that it is possible given the time and resources needed to carry this out. See Oral Response No. 17 2/10/2009 letter from Coast Law Group 123. The record on the CDP contains a substantial number of documents previously submitted by the Environmental Groups detailing the failure of the Regional Board to appropriately consider and apply Porter-Cologne section 13142.5 to the COP. To no avail, we have repeatedly sought to have the Board and Poseidon consider the requirement to minimize the "intake" of marine life, yet Poseidon has instead succeeded in replacing this correct standard with a requirement to minimize marine life "impacts." See response to Comment 45. 124. Poseidon has expressed concern that the February 11, 2009 hearing should not be an adjudicative hearing, and if it is, only the Regional Board and Poseidon should be considered designated parties." (Supporting Document No. 28). The Environmental Groups have reviewed the Regional Board's The procedures for consideration of the Minimization Plans were addressed in a letter from Regional Board counsel to Latham and Watkins on January 29, 2009.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 88 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE response to Poseidon's procedural objections (Supporting Document No. 42), and generally agree with the contents thereof. In response, the Environmental Groups propose either (a) we be afforded the same procedural safeguards as Poseidon with respect to submission of evidence and cross examination of witnesses, or (b) the matter be postponed and a pre-hearing conference set for resolution of designated party requests and establishment of procedures for a future hearing. 125. In its response to the Board Staff's notice of hearing and Executive Officer's Report, Poseidon expresses discomfort with the notion that the Regional Board would require identification of a specific site or sites where the proposed compensatory mitigation for the COP will actually take place. The Environmental Groups support the Board Staff's position that while it may have been appropriate to consider a multi-location MLMP at an earlier point in the permitting process, it is not inconsistent to require actual selection of a site, or sites, as a prerequisite to final Flow Plan approval. At no point in the record, including the volumes of material submitted and cited by Poseidon, does the Board or its staff appear to limit Poseidon from selecting multiple sites as alleged. The Environmental Groups agree with the proposition that it would be improper to approve Poseidon's Flow Plan without the selection of the site or sites where mitigation will take place. And while this does not mean we have. abandoned our position that compensatory mitigation is illegal in the first instance, at the very least, the Board and the public should be able to critically assess the location(s) where the mitigation project will take place. The Regional Board concludes that the criteria set forth in the MLMP will favor appropriate selection of the mitigation site(s).
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 89 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 126. In ongoing litigation, both the Coastal Commission and Poseidon are emphatic that the Regional Board is the sole agency with discretion to assess compliance with Porter Cologne 13142.5. (See e.g. Coastal Act section 30412, which Poseidon claims precluded the Commission from taking any action inconsistent with a future action by the Regional Board). Poseidon has taken this position in numerous letters and reports to the Coastal Commission, and as noted above, utilized this argument to secure conditional approvals of the MLMP from the Coastal Commission and State Lands Commission. Amazingly, now Poseidon argues against any substantive review of the Flow Plan, but rather, encourages the Regional Board to rely on the Coastal Commission's approval of the MLMP under the Coastal Act. (See Supporting Document 32, Latham and Watkins comment letter on MLMP, dated January 26, 2008). This comment is no longer applicable as Poseidon has submitted a revised Minimization Plan that the Board has independently determined complies with Section 13142.5. 127. At virtually every stage of COP review by staff of the Coastal Commission, State Lands Commission, and the Regional Board, significant legal and practical flaws have been identified. There is no credible reason to believe staff from all three agencies have ulterior motives, or are doing anything more than their prescribed jobs. The Regional Board should draw a hard line at this point, which with the exception of litigation, is one of the last opportunities to ensure the COP will even be plausibly legal. To require anything less than specificity in the selection of mitigation sites and performance criteria to ensure full compensation for production foregone due to entrainment impacts would be a travesty to the coast, and a blemish on the record of the Regional Board. Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 90 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 2/25/2009 letter from Assembly California Legislature 128. The SDCWA adopted an Urban Water Management Plan that identifies desalination as a critical component of its plan to diversify local supplies and reduce the burden on imported sources. The Carlsbad facility is integrally linked to state and regional efforts to supplement existing water supplies and is a critical component of San Diego County's future health and economic prosperity. The project has undergone close to ten years of planning and research to ensure that it is an environmentally responsible solution to the region's water needs. The City of Carlsbad certified the environmental document in 2006, concluding that there are no significant impacts for both the construction and on-going operation of the plant related to thirteen different areas studied, including marine impacts. Comments noted. 3/30/2009 letter from Robert McLean S3 The current permit would allow the intake and mortality of more marine life than is currently being destroyed by the Encina Power Station’s once-through cooling (OTC) system; As long as Encina Power Station is generating power and discharging more than 304 MGD, operation of the desalination facility is not expected to increase the intake and mortality of marine life beyond current levels at the Encina intake. S4 The current design capacity of the Poseidon-Carlsbad desalination facility would facilitate the continued intake and mortality of marine life beyond the date when the Encina Power Station either upgrades its generators and abandons the OTC system, or ceases operation; The proposed Minimization Plan avoids and/or compensates for intake and mortality of the CDP when operating in co-location mode. Commenter offers no evidence in support of the conclusion that the Discharger would not be able to continue to meet the CWC Section 13142.5(b) standard when and if it operates in stand-alone mode, independent of an EPS. In the event the EPS ceases operations and the CDP operates in stand-alone mode, the Regional Board will
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 91 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE conduct additional review pursuant to CWC Section 13142.5(b) to ensure the continued minimization of the intake and mortality of all forms of marine life. S5 The current permit conditions rely on unproven and, as yet undefined, plans to restore marine life in contradiction of the clear language in California's Porter-Cologne Act to minimize marine life intake and mortality in the first place. Sub-seafloor intake systems are a proven alternative to minimize marine life intake and mortality currently attributable to open seawater intakes; The Minimization Plan is a specific plan including a mitigation component that explicitly is authorized by CWC Section 13142.5(b). The mitigation component uses proven approaches, incorporating the approach for the successful San Dieguito wetlands restoration project, being undertaken by Southern California Edison (“SCE”). S6 The Poseidon-Carlsbad intake permit should set the highest standard for enforcement of California’s laws to restore and protect marine life mortality. This is just the first of many potential desalination proposals coast-wide. The State Water Resources Control Board and San Diego Regional Board should send a clear message to future project proponents that ocean desalination facilities should be designed to accommodate technology that minimizes the intake and mortality of marine life. Designing massive ocean desalination facilities and then "shoehorning" in sub-standard intake systems is not sound public policy. By undertaking an extensive permitting and approval process, the Regional Board has ensured that the CDP complies with all applicable water quality laws and regulations within its jurisdiction to enforce. In particular, the Regional Board has required the Discharger to develop the Minimization Plan in order to ensure compliance with CWC Section 13142.5(b). Under the terms of the Minimization Plan, the Discharger will use the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of marine life. The MLMP provides for full offset of entrainment and impingement for annual daily flows of up to 304 MGD drawn directly from Agua Hedionda Lagoon, even though the Discharger is expected to receive source water from EPS’s cooling water discharge. The performance standards of the MLMP are stringent and rigorous, requiring that the restored wetlands support multiple and varied biological populations, including vascular plants and algae, fish, macrobenthic invertebrates, birds, and food chain support that are 95 percent similar to the same populations at up to four reference wetlands. The performance standards
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 92 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE require the habitat areas in the restored wetlands not to vary by more than 10% from the areas indicated in the Restoration Plan. This approach was approved by the Coastal Commission. The Regional Board and the Coastal Commission are authorized to determine project success or failure, based on the MLMP’s rigorous performance standards, and to require any necessary measures to ensure continued compliance with CWC Section 13142.5(b). Moreover, the Regional Board has added an additional condition requiring that the mitigation site produce at least 1715.5 kg of available fish biomass per year as defined in Order No. R9-2009-0038. S7 We are not opposed to ocean desalination. However, we oppose the current permit language as it does not meet the clear standards of California's law to protect our precious marine life. Commenter does not identify any specific permit language with which he takes issue, any specific California law not satisfied, or how the permit language fails to meet any standard in such law. To the extent Commenter is referring to CWC Section 13142.5(b), Commenter is incorrect that the legal standard has not been met. The Regional Board has specifically evaluated the Minimization Plan to ensure the CDP’s compliance with CWC Section 13142.5(b). The Minimization Plan provides for the use of the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of marine life. S8 We strongly urge you to either: 1) Deny the current proposal and insist on a facility capacity design, location and intake technology that minimizes marine life mortality in the first place (e.g., sub-seafloor intakes); OR 2) Limit the interim operation of the CDP to only the water The Minimization Plan proposes site, design and intake approaches that minimize marine life mortality to the extent such approaches are available and feasible. Other than sub-seafloor intakes, which are not feasible (see above), the comment identifies no specific design, location and intake technology that is available and feasible that is not already in the Minimization Plan. It
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 93 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE being withdrawn by the Encina Power Station, AND -Insert a provision to automatically re-open the permit when the current cooling water intake is abandoned or consistently falls below the required 304 mgd -with specific language to guarantee the construction and use of sub-seafloor intakes. would not be appropriate to require the Discharger to guarantee the construction and use of infeasible, sub-seafloor intakes. Under conditions of co-location, there is no basis to limit operation of the CDP to only water being withdrawn by EPS for power plant use. The conditions and requirements contained in the revised Tentative Order are adequate to cover the current scenario. 3/31/2009 letter from Dianne Jacob, Chairwoman, Supervisor Second Circuit, San Diego County Board of Supervisors 129. As Supervisor of San Diego County’s Second Supervisorial District, I’m writing in support of the Carlsbad Desalination Project. The project has undergone close to ten years of planning and research to ensure that it is an environmentally responsible solution to the region’s water needs. The City of Carlsbad certified the environmental document in 2006, concluding there are no significant impacts for both the construction and on-going operation of the plant related to thirteen different areas studied, including marine impacts. Comments noted. 4/1/2009 letter from Sierra Club, San Diego Chapter 130. Impingement Impacts. The impingement impacts in the past and latest March 9 report focuses on minimizing the approach velocity at the travelling fine screens. These Poseidon proposes to mitigate for all estimated impacts, without consideration to any site, design, or technology measures that will be implemented to 1 The average velocity is computed by dividing the flow rate by the cross sectional area of the channel.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 94 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE reports fail to address that there is no escape path for the larger marine life that can swim away from the screen except to swim back up the intake tunnel. We are not aware of any reports that monitor the number of mobile marine life that have escaped in this manner. With the Encina Power Station operating with all intake pumps operating the average velocities1 at left and right tunnels are 10.2 and 2.3 feet/second, respectively. The Poseidon reports cite the average velocities but neglects the fact that the actual velocity profile across the tunnel varies, increasing from the sides to the center2. This fact is important as the maximum velocity will be higher than the average dependent several factors such as the configuration and roughness of the channel. Actual flow velocity profiles should be measured. minimize these impacts. In light of this, it is still acceptable for the Board to find that the project, in sum, complies with section 13142.5. Also see response to Comment 50. 131. It is our understanding that to meet the 304 MGD intake flow when the Encina Power Station is temporarily shut down or for the “stand alone” case, one pump each from Units 4 and 5 will be used to provide 316 MGD. We expect that this option would have a higher impingement impact compared to other options that use a combination of pumps from Units 1, 2, and 3 plus either one pump for Unit 4 or 5. Using pumps for Units 1, 2, and 3 reduce the travel distances, overall in tunnel velocities and the aquatic losses due to contact with the tunnel walls as compared to the option using only the Unit 4 and 5 pumps that has the highest tunnel velocity and travel distance. See response to Comment 50. 132. Estimating Flow Proportioned Impingement. A concern that has received a good deal of attention is to explain why there was an exceptional increase in impingement data for Regional Board staff disagree with the Discharger’s experts’ assertions that the two high impingement results were a result of storm events and provided 2 Refer to a textbook on fluid mechanics on water flow in channels. I referred to my college fluid mechanics text book by R.C Binder
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 95 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE two sample weeks; the 30th week, January 12-13, 2005 and February 23-24. Reference 5 treats these at “outliers” and does not provide a plausible reason. There is no discussion if the number of fishes in the source water beyond the small number of freshwater fish that were impinged due to immigration. The migration and spawning characteristics of the aquatic life in the Lagoon should be evaluated to determine the source numbers aquatic life over a sufficient time. Estimating the impingement just on the 52 week sample is not sufficient. We do not believe that the analysis presented in the footnote 5 is adequate. testimony suggesting alternative causes. Regardless, the Regional Board finds that it is unnecessary to resolve these disputes. The Regional Board finds that 4.7 kg/day, which assumes 100% probability of the two very high impingement days, is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. Additionally, impingement monitoring has been required once every five years. 133. Heat treatment replacement. This item remains to be addressed in a new WDR for the “stand alone” seawater desalination plant, the use of ½ inch diameter plastic balls to scrub the intake and discharge tunnels, open channels and pumps. The proponents claim that this new treatment would eliminate the heat treatment kills not cause harm to the aquatic life. If the energy in the plastic balls is adequate to remove the bio-fouling in water passageways, it does not seem logical that they would not be fatal to aquatic life as well. The Regional Board is not considering the adequacy of the heat treatment replacement at this time since this is a feature that could be incorporated under stand-alone conditions. Once EPS permanently shuts down and the CDP is operated on a stand-alone basis, the Regional Board will undertake additional evaluation under CWC Section 13142.5. 4/1/2009 email from Coast Law Group 134. On or about March 9, 2009, you issued a notice of public hearing for the above referenced item. Therein was contemplated submission of comments on available documents by 5:00 pm today. As you surely are aware, a significant amount of new material has been added since posting of the notice. Comments noted. As reflected in the public notice for the April 8, 2009 meeting, the Board had requested that written comments be submitted by April 1, 2009 at 5 p.m., but the public comment period was open through the Board hearing on April 8, 2009.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 96 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE In addition, the staff report for the matter dated March 27, 2009 indicates significant additional information, namely critical evaluations of materials by Dr. Raimondi, were expected to be received by the Board yesterday. We have not yet seen this documentation, and it is not posted on the Board's website. Given the volume of documents, as well as the timing of availability to the public, we do not believe sufficient time has been afforded to review and provide meaningful comments within the originally prescribed timeframe. As such, please accept this correspondence as notice that we shall be submitting written comments up to, and possibly at, the Regional Board hearing on April 8th. Given that the matter is in litigation, and the project need not be approved at the April 8th hearing to remain on schedule, there is no credible legal rationale for requiring strict adherence to the artificial deadline of today at 5:00pm. 4/2/2009 letter from Latham & Watkins on behalf of Poseidon 135. On April 30, 2008, Poseidon submitted a calculation indicating that the Project’s standalone impingement would be approximately 1.57 kg per day, a de minimis value. When operating in co-located mode, any impingement associated with the Project would naturally be even less. Based on requests from Regional Board staff, Poseidon submitted Attachment 5 to the Minimization Plan which presents several different ways to account for the direct relationship between impingement and flow in the impingement estimates. Depending on their treatment of the outlier sampling events and the extent to which they account for the relationship between flow and impingement, these approaches produce a range of possible impingement The Discharger submitted the noted calculation to staff via email on April 20, 2008 but did not revise the then-pending March 6, 2008 Minimization Plan at that time. Regional Board staff disagree with the Discharger’s claim that 1.57 kg/day is an appropriate estimate of the CDP stand-alone impingement for several reasons (e.g., it excludes two days of high impingement without sound justification, and it does not have an associated number of fish). Regardless, as noted in the revised Tentative Order, it is unnecessary to resolve these disputes because the Regional Board finds that 4.7 kg/day is a reasonable, conservative estimate of impingement associated with
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 97 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE estimations of between 1.57 to 7.16 kg per day. Subsequent scientific analysis of the outlier events completed by experts for Poseidon conclude that the estimate values toward the lower end of the range more reasonably anticipate the Project’s operations. In any event, Poseidon considers all of the various, reasonable impingement estimation approaches to result in impingement estimations that are de minimis. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 23-24; Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 10-12; Minimization Plan, Attachments 5, 7 and 9) CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. 136. The CDP’s projected impingement when operating in stand-alone mode ranges from 1.57 to 7.1 kilograms per day (“kg/day”) based on applying a linear regression analysis to EPS’s 2004-05 impingement sampling data. The 2004-2005 EPS sampling data includes 52 samples events. During two of the sample events, January 12 and February 23, the recorded impingement was observed to be relatively higher than on the other fifty days. Importantly, these two sample days immediately follow storm events. Subsequent analysis completed by Drs. Chang and Jenkins, experts for Poseidon, indicate that the storm events preceding the January 12 and February 23 samples have a low probability of recurrence, each likely to occur no more than once every quarter century. The likelihood that both such events will occur in any given year, as they did during the 2004-2005 sample year, is even more remote. Because the rains preceding the two outlier collection events To clarify the first sentence of this comment: the lowest estimate of the CDP’s projected impingement, 1.57 kg/day, is based on applying a linear regression analysis (exclusive of two days of high impingement). Other estimates in the range are based on applying other analyses/calculations. Staff concurs that two of the 52 weekly samples recorded relatively high impingement. Staff also concurs that the two high-impingement days are coincident with record storm events. However, staff does not agree with the Discharger’s experts that the samples should be excluded from the CDP projection (or reduced based on the storm probability) because, as detailed in the staff reports, high-impingement on those days could have had other causes/contributors. In addition, the mechanism by which high rainfall would translate to high impingement is not compelling.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 98 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE can be expected to occur less than once every 20 years (i.e., less than 5%), the weight of the outliers should be discounted accordingly. When the weighted-average flow-proportioned approach (3-B) incorporates an outlier probability value of less than 5%, the approach calculates an impingement estimate of less than 2.24 kg/day, with 2.24 providing a reasonable upper bound. This value provides a reasonable approximation of the CDP’s potential impingement. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pg. 23, fn. 45; Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 10-11, Appendix B, Tab 3; Minimization Plan, Attachments 5 and 9) Regardless, it is unnecessary to resolve these disputes because the Regional Board finds that 4.7 kg/day is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. 137. The mitigation approach outlined in the Minimization Plan and MLMP to construct or restore up to 55.4 acres of estuarine wetlands does not result in any double counting. These kinds of wetlands are known to provide a wide variety of ecological functions. They provide important spawning and nursery grounds that support large larval populations, thereby compensating for potential entrainment from the CDP’s intake of seawater from AHL. They also provide food and refuge for fish, whether those fish are present because they matured from locally produced larvae, or migrated into the wetlands from other nearshore or wetlands populations. By supporting populations of fish in addition to the species for which entrainment mitigation is provided, the proposed wetlands have the potential to provide substantial mitigation for impingement, in addition to entrainment. Wetlands required to compensate for entrainment of one species are available to compensate for impingement of a wholly different species assuming, of course, that the wetlands will produce the impinged species. As applied to the At the April 2009 hearing, Poseidon provided testimony and calculations to demonstrate how the Mitigation Wetlands could serve to compensate for both impingement and entrainment impacts. Regional Board staff provided testimony asserting that, unless all the species entrained (rather than just the most commonly entrained species, used for the estimation of APF) were proportionately excluded from Poseidon’s productivity estimates, the calculations would not accurately demonstrate whether the mitigation wetlands could adequately compensate for impacts due to impingement and entrainment. The Board considered the testimony before it and concluded through the revised Tentative Order that the wetlands will be able to compensate for entrainment and impingement. The revised Tentative Order establishes a productivity standard that must be achieved as a biological performance measure. The
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 99 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE CDP, it turns out that entrainment mitigation was driven by three fish taxa—gobies, blennies, and garibaldi. In fact, 49 of the proposed 55.4 acres of the proposed wetlands will be designed to compensate for the potential entrainment at the CDP of these three fish taxa. Fortuitously, these three taxa rarely are impinged. Rather, other fish predominate potential impingement at the CDP. Because these other fish are expected to be present in substantial quantities in the planned wetlands, the 49 acres of wetlands can mitigate for their potential impingement losses at the CDP. The other 6.4 acres of the planned wetlands will be designed to compensate for the potential entrainment at the CDP of five ocean-going species—white croaker, northern anchovy, California halibut, queenfish, and spotfin croaker. These fish were detected in relatively small numbers in the 2004-2005 entrainment data upon which the analysis relies. The 6.4 acres of planned wetlands are expected to produce many fish other than these five ocean-going species. The expected production of these other fish in 6.4 acres is available to compensate for their potential impingement at the CDP. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 3, 18-19, Appendix B, Tab 2) Tentative Order will also require necessary monitoring to determine whether the mitigation wetlands could adequately compensate for impacts due to impingement and entrainment. 138. On February 11, 2009 the Regional Board considered the MLMP for the first time, continuing its review to the present hearing. Staff identified four additional issues it sought to resolved concerning the March 6, 2008 Minimization Plan before recommending that the Regional Board take final action on the Minimization Plan: (1) placing the Regional Board and its Executive Officer on equal footing, including funding, with Coastal Commission and its Executive Director, in the MLMP, while minimizing Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 100 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE redundancies (e.g., only one Scientific Advisory Panel) details of dispute resolution process to be worked out); (2) reducing the number of [potential mitigation] sites to five, in consultation with the Coastal Commission, with the existing proviso that other sites within the Regional Board boundaries could be added; (3) Poseidon to provide the flow-proportioned calculations for its impacts due to impingement, to help support the Regional Board’s determination that these impacts are de minimis; and (4) Poseidon to provide a consolidated set of all requirements imposed to date by the various agencies. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 8-12, Appendix A) 139. In response to staff’s request that the Minimization Plan clearly place the Regional Board on equal footing with the Coastal Commission, in Chapter 6 of the Minimization Plan, Poseidon clearly identified provisions of the MLMP that are enforceable by the Coastal Commission, then indicated for each of them how they are also enforceable by the Regional Board if the Plan is approved. For instance, the Plan provides that the Regional Board will have the authority to approve the final mitigation site(s) and restoration plan for the site(s), and enforce compliance with the MLMP’s strict performance criteria. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 8-9) Comments noted. 140. In response to staff’s request to reduce the number of proposed mitigation site(s) from 11 to 5, Poseidon amended Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 101 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the Minimization Plan to provide as follows: “Sites located within the boundaries of the Regional Water Quality Control Board, San Diego Region, shall be considered priority sites. If Poseidon proposes one or more mitigation sites outside of these boundaries, it first shall demonstrate to the Board that the corresponding mitigation could not feasibly be implemented within the boundaries, such as when the criteria established in Section 3.0 of the MLMP [providing site criteria] are not satisfied.” Therefore, “among the eleven candidate sites identified in the MLMP, Poseidon will consider the five sites within the Regional Board’s boundaries as priority sites for selection.” (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 9) 141. On February 26, 2009, staff counsel identified certain items that would satisfy staff’s request that, “Poseidon [] provide a consolidated set of all requirements imposed to date by the various agencies.” Poseidon responded by submitting six regulatory documents from the City of Carlsbad, the California Coastal Commission and the State Lands Commission: 1. City of Carlsbad Development Agreement (DA 05-01) 2. City of Carlsbad Redevelopment Permit (RP 05-12) 3. City of Carlsbad EIR Exhibit B, Mitigation Monitoring and Reporting Program 4. City of Carlsbad Precise Development Plan (PDP 00-02) 5. State Lands Commission Lease Agreement (PRC 9727.1) 6. California Coastal Commission Condition Compliance for CDP No. E-06- 013 — Special Condition 8. Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 102 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE All of these items were publicly available, and Poseidon already had submitted the key documents, including the Coastal Commission Condition Compliance and the State Lands Commission Lease Agreement, into the record by the time of the February 11, 2009 hearing. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 9-10) 142. Poseidon worked diligently with Regional Board staff to comply with this request. After conferring with staff on a number of occasions to clarify the request, Poseidon submitted Attachment 5 of the Minimization Plan which presents several different ways to account for the statistically significant relationship between the impingement effects and flows measured under normal power plant operations that occurred during the June 2004 to June 2005 impingement survey. These approaches produce a range of possible impingement estimations of between 1.57 to 4.7 kg per day. Based on additional scientific analysis of the two outlier events, which is detailed in Attachment 9 to the Minimization Plan, the estimate values toward the lower end of the range more reasonably anticipate the Project’s operations. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 10-12, Appendix A and Minimization Plan, Attachments 5 and 9) To clarify: this comment refers to Board’s request that Poseidon provide the flow-proportioned calculations for its impacts due to impingement, to help support the Regional Board’s determination that these impacts are de minimis. Following the February 11, 2009 Board meeting, staff provided Poseidon (on February 13 via email) a list of items needed to resolve the request. The first (of four) items was: “1. Estimates of impingement losses (EPS 2004-05 results prorated to 304 MGD).” The email explained that the estimates should be for fish, for invertebrates, and in total (fish plus invertebrates), and should be in terms of individuals and biomass, and in terms of per day and per year. Poseidon provided prorated results on February 26, 2009. Poseidon submitted Attachment 5 as part of the March 9, 2009 Minimization Plan. It describes six approaches to estimating the CDP impingement projection (1 A, 1B, 2A, 2B, 3A, 3B). The six approaches result in a range of estimates from 1.57 to 7.16 kg/day.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 103 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE The Regional Board finds that 4.7 kg/day (Approach 3B), which assumes 100% probability of the two very high impingement days, is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. 143. Co-location of the Project at the existing EPS site represents the best site feasible to minimize the intake and mortality of marine life. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 13-14) The Regional Board concurs with this statement. 144. The Project implements the best design features feasible that ensure the minimization of the intake and mortality of all forms of marine life. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 14-15) Available information shows that under the conditions of co-location operation, the Discharger has little control over the intake structure. Under the conditions of co-location operation, the existing intake meets the best available design criteria. 145. The Project implements the best available technology measures feasible for the Project’s site-specific conditions in order to minimize the impingement and entrainment of marine organisms in the intake seawater. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 15-18) See response to Comment 144. The Regional Board concurs that the proposed technology for the CDP is the best available technology feasible under co-location operation. 146. The proposed mitigation wetlands set forth in the MLMP will fully and simultaneously mitigate for any entrainment and Comment Noted. The Tentative Order will require the Discharger to meet a productivity standard of 1,715.5
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 104 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE impingement that may eventually be associated with the Project's operations, and thus represents the best mitigation feasible to minimize the impingement and entrainment of marine organisms. (Comments from Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 18-20) kg/year and will require implementation of a productivity monitoring plan to determine whether this standard is achieved. 147. The Marine Life Mitigation Plan (MLMP) represents the culmination of a comprehensive, interagency planning process involving extensive scientific study and public involvement and ensures that potential entrainment and impingement impacts to marine resources from the Project will be fully mitigated in compliance with Resolution R9-2008-0039, Order No. R9-2006-0065, and Water Code Section 13142.5(b). Specifically, the MLMP will: • Avoid or mitigate to less-than-significant levels all impacts to marine resources associated with potential E&I from the Project’s water intake; • Create or restore up to 55.4 acres of high-quality estuarine wetland habitat based on the best science available to mitigate Project-related impacts and likely result in a net biological benefit to the Southern California Bight; • Establish monitoring protocols and empower the Regional Board and the California Coastal Commission with enforcement mechanisms to ensure potential E&I impacts are accurately measured over time and that mitigation success targets consistently are achieved; • Establish an enforceable schedule for completion of site selection (nine months), environmental review and permitting of the site(s) (24 months) and the start of construction (six months after approval of the permits); • Provide for significant, continuing agency oversight during the selection, development and performance monitoring of Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 105 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the final mitigation site(s), including by the Executive Officer if the Regional Board approves the MLMP (as the MLMP would then be equally enforceable by the Regional Board); and, • Authorize enforcing agencies to order remediation in the event the rigorous performance criteria are not met. (Comments from Latham & Watkins LLP January 26, 2009 Comment Letter, pgs. 3, 12-20 and Latham & Watkins LLP April 2, 2009 Comment Letter, pgs. 18-20) 4/2/2009 letter from Christine Kehoe, 39th Senate District 148. Poseidon’s Minimization Plan assures that the project will comply with Porter-Cologne Water Quality Control Act, California Water Code Section 13142.5(b). Poseidon’s obligation to create up to 55.4 acres of new, highly productive estuarine wetlands will offset the projects impacts. The Coastal Commission and State Lands Commission have reviewed and approved this project. I ask you to please approve this final condition of the project’s NPDES permit and help the San Diego region welcome a new, drought proof and environmentally-responsible water supply. Comments noted. 4/2/2009 letter from Group of Californians dedicated to restoring and protecting our coast and ocean 149. First, we want to be clear that we are not strictly opposed to ocean desalination. However, we have warned from the beginning of the planning of this facility, and others like it, not to rely on the continued existence of "once-through cooling" intakes as source water for ocean desalination. This antiquated technology has been all but prohibited by the federal courts and is currently being reviewed for a phase-out Comments noted. See also responses to Comment Nos. 43, 45 and 46.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 106 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE plan by California agencies led by the State Water Resources Control Board. Sound pubic policy and the mandates of the Porter-Cologne Act make it clear that co-locating with power stations to share the ocean intake for the dual purposes of cooling water and desalination source water is a design whose time has passed even before these massive ocean desalination facilities are permitted. The documentation provided by the project proponent fails to adequately identify a design capacity for the output of the facility that is compatible with alternatives for desalination source water intake technologies to eliminate the intake and mortality of marine life. Instead, Poseidon Resources argues that they can "mitigate" the marine life mortality through after-the-fact restorative measures. The federal courts have found this approach illegal and inconsistent with the clear mandates of the Clean Water Act to use the best technology available to minimize adverse impacts in the first place. Similarly, the Porter-Cologne Act mandates "mitigating" the intake and mortality of marine life in the first place - not attempting to restore the damage after the fact. Importantly, California's Porter-Cologne Act does not distinguish cooling water intakes for coastal power plants from seawater desalination or any other industrial use of seawater. Consequently, the Regional Board should apply the same standards to ocean desalination that were established by the federal courts for cooling water intakes. 4/3/2009 Email from Coast Law Group S9 The Staff Report mentions a data discrepancy with regard to flows reported from EPS during the sampling period. (Staff Report , 15 fn. 31). EPS monitoring reports also show flows The Staff Report mentions a data discrepancy with regard to flows reported from EPS during the sampling period. (Staff Report , 15 fn. 31). EPS monitoring
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 107 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE consistently lower for the data set compared to the Tenera flow data. (Personal communication with staff). Both data sets should be made publicly available, and re-evaluated. If impingement rates are calculated as mass/volume, the data set will be skewed in Poseidon's favor when flow rates are over-estimated. reports also show flows consistently lower for the data set compared to the Tenera flow data. (Personal communication with staff). The comment incorrectly states that the March 27, 2009 mentions a “data discrepancy.” At p. 15, staff noted that the “2004-05 flow data indicates that the January 12 survey may have been associated with a unique operational circumstance, i.e., the survey was preceded by four days for which intake pump records are not available, the only such week during the year.” The sentence cites to a footnote, which reads: “The 2004-05 intake flow data (submitted March 5, 2009) indicate that, in the week prior to the January 12, 2005 survey, there are four days recorded as zero intake (1/7/05 through 1/10/05), and two days of low intake flow (1/6/05 and 1/11/05). EPS monitoring reports show discharges of between 580 MGD to 660 MGD on those days so presumably there was intake. On March 25, 2009, staff requested clarification and was informed that days assigned values of 0 MGD intake are days for which flow data from the plant were not available.” Thus, the comment incorrectly equates an absence of data with a “data discrepancy.” It should be noted that the two sets of data produced here – the 2004-05 intake flow data and the EPS discharge reports – were produced pursuant to different regulatory requirements, which may account for differences, if any. The comment provides no factual basis from which to presume that the discharges as reported in the EPS monitoring reports were actually less than the intake flows recorded in the 2004-05 flow data, or that any such differences were meaningful. The 2004-05 flow data was posted on the Regional Board website. The impingement calculations used for
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 108 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the CDP projection are based on the 52 sample days (and not any of the days between). Staff has not yet attempted to independently verify the flow data. S10 Poseidon's assertion that .5 feet/second (fps) velocity at inlet screens will reduce impingement to insignificant levels is unsupported. We concur with Staff's determination that most impingement intake and mortality occurs at the bar rack rather than on the rotating screens. (Staff Report , 8). To clarify, staff’s assertion was that most impingement intake and mortality occurs at the rotating screens rather than at the bar rack. Poseidon’s assertion that 0.5 feet/second (fps) velocity at inlet screens will reduce impingement to insignificant levels is consistent with EPA and SWRCB guidance, but was ultimately not relied upon by the Regional Board. (please see response #33). S11 Further, installation of VFDs on CDP intake pumps to reduce total intake flow for the desalination facility will only reduce intake flow for up to 104 MGD, as 200 MGD (dilution seawater) never flows to the desalination plant. Any reduction of impingement through use of VFDs (which is unvalidated) is therefore only attributable to that portion of flows going directly to the CDP. (Staff Report , 10). As Poseidon does not currently "take credit" for VFDs, or propose to use any design or technology measures to reduce impingement, we offer this position to rebut any future attempts to "take credit" for such measures. Further, because Poseidon fails to quantify the reduction in impingement resulting from any such technological "improvements," characterization as such is unwarranted. Comment noted. S12 Poseidon's individual sampling impingement rates are calculated as follows: average impingement weight, divided by the associated flow volume for the sampling day, multiplied by 304 MGD. These resulting "weights" are then averaged. Two sampling events had higher associated impingement rates. Poseidon argues for their exclusion, while Dr. Raimondi and staff believe they should remain in the data set. We concur with Dr. Raimondi and staff: the two data points with high associated impingement rates should not be Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 109 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE considered outliers. S13 As staff correctly points out, Poseidon's proposed rainfall "flushing" theory is based on several flawed assumptions. - High impingement rate is not always associated with heavy rainfall. (Staff Report , 14). - Nor does high impingement rate correlate with any rainfall. (Staff Report , 15). - The mechanism by which heavy rainfall might cause high impingement is unclear. (Staff Report , 15). - Poseidon's proposed theory is unsubstantiated. Moreover, the data itself belies the proposed "flushing" theory, as the percentage of freshwater fish impinged is small. (Staff Report , 15). Comment noted. S14 Staff points out that several lines of evidence are missing and Poseidon has provided no actual data to shed light on the origin of high impingement rates. Comment noted. S15 Moreover, staff's proposed theory as to the origin of the higher impingement rates on the two contested days is more persuasive than Poseidon's theory, and favors keeping the two days within the data set. (Staff Report , 15).Without conclusive proof that the two high impingement days are truly "outliers," the data set must remain undisturbed. Comment noted. S16 Dr. Raimondi also argues that Poseidon's theory is flawed and based on logical error. (Raimondi, 7). The lack of historical impingement data weighs in favor of being inclusive, rather than considering certain data sets outliers. (Raimondi, 7). Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 110 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE S17 Further, Poseidon's proposed theory, as supported by Jenkins and Chang, is flawed and unsupported by the existing data. Indeed, Dr. Chang's analysis is flawed in and of itself. As Dr. Chang admits, the sampling period (2004-2005) was an abnormally wet period, as total rainfall was 26 inches as opposed to a typical average of 13 inches. However, Dr. Chang's overly narrow focus on the two data points undermines the credibility of his entire analysis. Without providing the rainfall data or statistical analysis of the probability of occurrence for the entire data set, Poseidon cannot credibly argue that the two "suspect" data points are outliers. Moreover, as Dr. Raimondi correctly points out, even if the storm events themselves are outliers (which we cannot know without the entire data set), this does not mean the impingement associated with those rain events is atypical. (Raimondi, 7). Comment noted. S18 Dr. Jenkins' data is equally unpersuasive. He first concludes that the rainfall data does not alter the validity of the sampling data, because lagoon salinity was not depressed on a persistent basis. (Jenkins, 2). He then concludes the above-average rainfall during the sampling period was "fortuitous" because it spanned the full range of "natural hydrologic variability" and "captured a range of conditions, including some that are not likely to re-occur in most years." It does not follow then, that the two "statistically anomalous" extreme storm event days should be excluded from the data set. (Jenkins, 4). If the entire data set includes a range of "natural hydrologic variability" the entire data set must be used. The fortuitous event of capturing these two high storm events, using Jenkins' logic, favors being inclusive rather than exclusive. Similar to Dr. Chang's analysis, Dr. Jenkins' assertions as to the two contested data points is flawed as well due to his overly narrow focus on those two data points. In failing to compare those two days to the entire sampling period, he also fails to prove why they should be excluded. Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 111 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Thus, Poseidon has not met its burden of conclusively proving the two days should be considered anomalies. S19 The impingement impact calculation also seems to reflect only "normal operations" and not heat treatments. The March 27, 2009 staff report suggested that, if operation of the CDP should lead to the need for more frequent heat treatment of the EPS intake facility, then it would be reasonable to include in the CDP incremental impact a corresponding portion of the impingement impacts due to heat treatments. In response, Poseidon submitted a statement (Le Page Statement, April 8, 2009) indicating that the frequency of heat treatment at Encina is “a matter of industry standard” and that “since heat treatment frequency is a standard maintenance issue at set intervals regardless of flow rates, there are no logical reasons to assume that the frequency of heat treatments will change as a result of any potential increase in water flow from the CDP over the power plant’s projected water demand.” S20 Poseidon's Flow Plan calculations (and Dr. Raimondi's calculations based on approach 3-B) result in a weighted average impingement rate of 4.7 kg/day. This results in an annual impingement of 1715kg (to a 50 percent confidence level). The issue of confidence interval was raised by Dr. Raimondi in his April 1, 2009 statement. Confidence intervals rely on inferential statistics, according to Dr. Raimondi. Dr. Jenkins raised significant questions about the confidence intervals proposed by Dr. Raimondi. (Scott A. Jenkins, A Note on Confident Limits in Raimondi’s April 1, 2009 RWQCB Report (April 8, 2009).) At the April 8, 2009 hearing, the Discharger agreed to undertake field programs to provide an empirical basis to ascertain whether 4.7 kg/day is the appropriate value by which to drive the Discharger’s impingement mitigation obligation. It also agreed to conduct a field program at the mitigation site to demonstrate that the
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 112 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE impingement mitigation obligation is being met. On balance, the Regional Board prefers the empirical approach discussed at the April 8 hearing. It is concerned that the approach using inferential statistics may be adding one level of conservatism on top of another, potentially resulting in a punitive mitigation condition. In contrast, the empirical approach relies on actual data from the field to true up the mitigation obligation, and adjust it, if necessary, on the basis of actual data, rather than statistical calculation. Taking an empirical approach also is warranted given the genesis of the 4.7 kg/day value that is driving the impingement obligation in the Tentative Order. This value is much higher than average impingement over 336 days in 1979-1980, and much higher than average impingement over fifty days in 2004-2005. While there was impingement much higher than 4.7 kg/day on two days in 2005, it is reasonable to believe that those values are not representative of long-term impingement over the life of the Project. The Discharger has presented credible and substantial evidence that impingement at the CDP is likely to be on the order of 1.6 kg/day. Finally, the impingement obligation is based on the assumption that the CDP is getting no flow in the form of cooling water discharge from the EPS. While this condition may occur from time to time, it adds another conservative layer to the analysis and to the obligation. In other words, potential impingement is estimated “at a rate of 304 MGD attributable to CDP impacts,” as the comment recommends. S21 However, as pointed out in the Staff Report, heat treatments See Response No. S19 above.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 113 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE will continue during co-located operations. S22 The organisms already in the intake channel are killed when the intake channel is closed off, and the heated discharge water is circulated for hours. (Staff Report, 12 fn. 23). These organisms end up impinged when the pumps return to normal operation. Poseidon and Raimondi's calculations do not take into account the proportion of organisms killed during heat treatments attributable to Poseidon's flows. If EPS intake pumps are operating for the benefit of CDP, a larger number of organisms will be present in the intake channel than would occur if CDP were not operating. Thus, a larger number of organisms will be impinged at the time of heat treatments. The proportion of impingement due to CDP operations as opposed to EPS operations can be calculated real-time by determining the percentage of flow attributable to CDP operations, and multiplied by the total impingement due to heat treatments. See Response No. S19 above. Commenter proposes to ascribe a proportion of impingement during heat treatment to the CDP. Impingement during heat treatment cannot fairly be ascribed to the Discharger. Heat treatments have been a longstanding practice at the EPS, which occurs on a periodic basis. It is not expected that the operator of the EPS will change this frequency because of CDP operations. The build-up of biomass and other factors that heat treatment is used to address are not related to flow through the intake. Rather, it is the mere presence of water that principally creates the conditions conducive to growth on the side walls. Flow actually can reduce these conditions to the extent flow removes biofilm or other growth. S23 Based on Dr. Raimondi's review of Chris Nordby's analysis, Poseidon's proposed mitigation for impingement is wholly inadequate. We agree with Dr. Raimondi's assessment that the approach used by Poseidon (and Nordby) is flawed for the following reasons: (a) Entrainment compensation cannot also be used for impingement compensation. (Raimondi, 1-2) (b) Nordby's approach relies on a 27-year old study by Larry Allen that is inapplicable here. (c) Nordby's estimation of fish production is based on mudflat wetlands, which only comprise 40 percent of Poseidon's proposed entrainment mitigation (as adopted by the CCC). (a) The same mitigation wetlands can be used to compensate for both entrainment and impingement to the extent that the mitigation wetlands produce fish other than those specifically reserved for entrainment mitigation. (b) Dr. Raimondi did not find a flaw in the Discharger’s approach due to its reliance on a “27-year old study by Larry Allen.” Nor did Dr. Raimondi conclude that Mr. Allen’s seminal study of Newport Bay productivity was “inapplicable here.” The comment provides no argument or evidence of its own as to why it agrees with the comment’s mischaracterization of Dr. Raimondi’s statement. Without any explanation as to the rationale for the comment’s agreement with its mischaracterization, the comment is without
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 114 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE (d) The estimation of fish production also assumes no current production - which is only true if wetlands are created, not restored. (e) Nordby's calculations are based on a 50 percent confidence level - inappropriate for mitigation calculations. A typical and more appropriate confidence level is 95 percent. (Raimondi, 3) (f) Nordby's calculations rely on fish production calculations (productivity of newly created wetlands) based on species that are entrained - resulting in double-counting. (g) The calculations incorrectly assume entrainment calculations equate to actual impact of entrainment. (h) Entrained species are also impinged - thus the impacts are additive, and cannot be mitigated through creation of wetlands that mitigate for entrainment foundation. In his evaluation of Mr. Nordby’s analysis, Dr. Raimondi did not reject the premise that Upper Newport Bay can serve as a basis for estimating the productivity of the mitigation wetlands (to the extent that the mitigation wetlands consist of intertidal habitat). (c) The MLMP does not prescribe a particular percentage mix of wetlands habitat types. The particular composition of the mitigation wetlands will be determined during the Restoration Plan development phase. See Response No. 316(b). The comment is mistaken that mudflat wetlands comprise 40 percent of the proposed wetlands. (d) Comment Noted. (e) The comment provides no factual basis for the assertion that a 95 percent confidence level is appropriate for impingement calculation. The Regional Board need not consider this issue, however, as confidence levels are a statistical tool rendered moot by the Board’s requirement that the Discharger demonstrate empirically full offset of actual impingement. (f) Nordby appropriately excluded from the estimate of productivity available for impingement mitigation, the biomass required to be counted for entrainment mitigation. There was no double-counting in Mr. Nordby’s species-specific analysis of productivity. For instance, while the productivity illustration includes substantial topsmelt biomass, the APF calculations
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 115 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE were not based on entrainment of this taxa. (g) Comment Noted. (h) Comment Noted S24 (a) In light of recent studies reflecting the poor performance of compensatory wetlands creation, a very conservative approach should be taken in assigning productivity to wetland mitigation. (An Evaluation of Compensatory Mitigation Projects Permitted Under Clean Water Act Section 401 by the California State Water Resources Control Board, 1991-2002, (2007) Ambrose, et al). Two findings of the cited report are particularly relevant here: (b) - Given the low ecological condition of most mitigation wetlands, it seems likely that many mitigation projects did not replace the functions lost when wetlands were impacted. - A lack of explicit consideration of the full suite of functions, values, and services that will be lost through proposed impacts and might be gained through proposed mitigation sites and activities is at least partly due to regulatory agencies approving mitigation projects with conditions or criteria that are too heavily focused on the vegetation component of wetland function, with inadequate emphasis on hydrological and biogeochemical conditions and their associated functions and services. (a) The productivity of the mitigation site(s) will be assured by the agency’s enforced performance standards. The MLMP’s performance standards reflect a “conservative approach” in assigning productivity to wetland mitigation by, for example, requiring that the restored wetlands support multiple and varied biological populations, including vascular plants and algae, fish, macrobenthic invertebrates, birds, and food chain support that are 95 percent similar to the same populations at up to four reference wetlands. Additionally, the performance standards require the habitat areas in the restored wetlands not to vary by more than 10% from the areas indicated in the Restoration Plan. This approach was approved by the Coastal Commission. The Regional Board and the Coastal Commission are authorized to determine project success or failure, based on the MLMP’s rigorous performance standards, and to require any necessary measures to ensure continued compliance with CWC Section 13142.5(b). Moreover, the Regional Board has added an additional condition requiring that the mitigation site produce at least 1715.5 kg of fish productivity per year as defined in Order No. R9-2009-0038. (b) In this case, the complete ecological value of the Agua Hedionda Lagoon is not being eliminated. The proposed plant will not destroy an area of the environment, as suggested by commenter. When using EPS discharge water, the plant will have a
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 116 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE negligible effect on receiving waters. When drawing water directly from Agua Hedionda Lagoon without it first being used at the EPS, there is the potential for impingement and entrainment from the plant. These are very particularized effects that do not destroy the environment of the affected area. As a result, an appropriate mitigation project would seek to offset the specific alterations from the potential effects. It should be noted, however, that the MLMP accounts for the a suite of wetland functions, values, and services. For example, Sections 3.1 and 3.2 of the MLMP, incorporated in Chapter 6, provide minimum standards and objectives for the mitigation site(s), which among other things, provide that a site shall include habitat similar to the affected habitats in Agua Hedionda Lagoon and should provide maximum overall ecosystem benefits, e.g. maximum upland buffer and transition areas, enhancement of downstream fish values, provides regionally scarce habitat, potential for local ecosystem diversity, provides substantial fish habitat, provides rare or endangered species habitat, and provides for reproductively isolated populations of native California species. The MLMP also provides that the Restoration Plan for the mitigation site(s) must address hydrological and biogeochemical conditions. For example, the Restoration Plan must include, among other things, a detailed analysis of existing physical, biological and hydrological conditions, as well as an schematic restoration design that includes water control structures and control measures for stormwater. (MLMP Section 4.1) S25 The basic premise for compensatory mitigation is that the newly created or restored wetlands actually compensate for Comment noted. Regional Board staff has reviewed the impact and mitigation calculations for their validity
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 117 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the loss associated with the project. Thus, the mitigation required for CDP impingement must take into account the validity of the impact calculations and the validity of mitigation calculations. Put another way, we cannot be certain that the impingement calculations truly reflect actual impingement impacts. They serve as a proxy for actual impingement assessment. Thus, the highest level of statistical certainty must be applied to impingement impact calculations. This equates to a 95 percent confidence interval in Raimondi's study. (Raimondi, 4) and have found those calculations to be valid. S26 Second, the mitigation wetland productivity calculations should be conservative, as underscored by the lack of success in actual wetland mitigation. Thus, because wetland productivity assumptions are based on completely newly created wetlands, Poseidon must be required to actually create wetlands, as opposed to restoring them. See Response No. S24. The monitoring program will adjust for existing productivity if wetlands are restored rather than created. S27 Another assumption associated with wetland productivity relates to the type of wetland created. Poseidon's MLMP presents a mix of wetlands, comprised of 40 percent intertidal mudflats or subtidal. Dr. Raimondi's calculations associated with this mix should be used to provide a wetland mitigation acreage. (Raimondi, 6) The particular composition of the mitigation wetlands will be determined during the Restoration Plan development phase. The Tentative Order amends the Minimization Plan to require the Discharger to sample the mitigation wetlands to demonstrate that 1,715.5 kg/yr of fish biomass (not reserved for entrainment compensation) is being produced. Discharger must satisfy this productivity requirement, notwithstanding the particular composition of the mitigation wetlands. S28 The mitigation assessment study cited above also found "[t]he success of compensatory mitigation depends fundamentally on the mitigation requirements specified by the regulatory agencies." (Id. at v.) Thus, certain requirements regarding the success of compensatory mitigation must be imposed. The MLMP presents the culmination of a comprehensive, interagency planning process involving extensive scientific study and public involvement aimed to ensure that potential entrainment and impingement (“E&I”) impacts to marine resources from the proposed CDP will be mitigated.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 118 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE As proposed, the MLMP will: (1) Avoid or mitigate potential E&I from the Project’s water intake; (2) Create or restore up to 55.4 acres of high-quality estuarine wetland habitat based on the best science available to mitigate Project-related E&I and likely result in a net biological benefit to the Southern California Bight; (3) Establish monitoring protocols and empower the Regional Board and the Coastal Commission with enforcement mechanisms to ensure potential E&I is accurately measured over time and that mitigation success targets consistently are achieved; (4) Establish an enforceable schedule for completion of site selection (nine months), environmental review and permitting of the site(s) (24 months) and the start of construction (six months after approval of the permits); (5) Provide for significant, continuing agency oversight during the selection, development and performance monitoring of the final mitigation site(s), including by the Executive Officer if the Regional Board approves the MLMP (as the MLMP would then be equally enforceable by the Regional Board); and, (6) Authorize enforcing agencies to order remediation in the event the rigorous performance criteria are not met. Requirements regarding the success of the proposed mitigation include: (a) the Discharger’s commitment to full mitigation of potential intake and mortality from the Project operations; (b) the MLMP’s incorporation of strict, measurable performance standards; (c) specific timelines for submittal of proposed site(s) and a Preliminary Restoration Plan for Coastal Commission review and approval (MLMP Section 2.0); (d) identification of 11 pre-approved candidate mitigation
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 119 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE sites (MLMP Section 2.0); (e) minimum standards and objectives for the mitigation site selection (MLMP Sections 3.1 and 3.2); (f) detailed Restoration Plan requirements (MLMP Section 4.1); (g) specific monitoring, maintenance and remediation standards to be conducted over the “full operating life” of the Project including, but not limited to, long-term physical standards, biological performance standards and suggested sampling locations (MLMP Section 5.0); and (h) a comprehensive administrative and procedural structure. Further, these strict standards establish specific criteria for effectively measuring the success of the mitigation project, e.g., within five years of the start of construction, the constructed wetlands must match habitat values within a 95% confidence level for four undisturbed wetlands identified in the MLMP. Still further, the Minimization Plan requires that mitigation will be based on a fish biomass productivity requirement. If the wetlands produce less biomass than what is impinged by the desalination project, the Regional Board will have discretion at the next permit cycle to require greater mitigation that matches up to actual losses. However, if the wetlands produce more biomass than what is actually impinged, the Discharger would be given a credit that could be used against future mitigation requirements, for instance, if the desalination project were to be expanded, or if a change in circumstances led to greater future impingement. S29 Staff correctly points out that the success of MLMP entrainment mitigation is assessed through a 95 percent Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 120 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE confidence interval of correlation in physical and biological criteria compared to (yet-unspecified) reference stations, for a period of three consecutive years. (Staff Report, 19). This iterative assessment may result in a period of time where the restored wetlands are not meeting these criteria. S30 For those years when the criteria are not met, the goal of compensatory mitigation-namely offsetting CDP impacts through productivity at the restored wetlands-is not being met. Thus, the whole basis for calculating the wetland mitigation is undermined. In order to account for this, a penalty for not meeting the performance criteria within a specified timeframe must be included in the permit. For example, if within 5 years of wetland restoration the 3-year benchmark is not attained, an additional 5 years of unmitigated impingement impacts must be taken into account. This would result in a total increased wetland restoration acreage. As the benchmark performance standards continue to be unmet, the penalty increases. On the basis of speculation that the mitigation wetlands will not meet the criteria for some period of time, the comment asserts that the "whole basis for calculating the wetland mitigation is undermined." The comment is mistaken and makes an overbroad conclusion on the basis of an unsupported premise. The Minimization Plan authorizes the Regional Board to take remedial action regarding any noncompliance with the performance criteria for the proposed wetlands. Thus, if the circumstance described by the comment constituted non-compliance (which is not clear given the vague and ambiguous nature of the comment), the Regional Board has the authority necessary to address such a situation. It is elementary, however, that the planned wetlands will take a period of time after construction to establish to a point where comparison with the criteria is warranted. This phase-in and establishment period does not undermine the "whole basis," as asserted. The CDP is not yet constructed, is not causing impacts, and will cause no impacts unless and until EPS’s discharge is insufficient to meet its source water needs. The Minimization Plan provides for mitigation sufficient to fully offset entrainment and impingement amounts associated with stand-alone operations, without claiming any credit for minimization from design and technology measures. This is the case even though the CDP is before the Regional Board to operate in co-location mode, when it will be using discharge water from the EPS when available to meet the CDP's
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 121 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE feedstock needs. The proposal is fully protective, even including the phase-in period. The MLMP’s incorporates strict, measurable performance standards. If the wetland mitigation does not meet these performance criteria, the Regional Board’s Executive Officer has the authority to impose remedial measures pursuant to the MLMP. Section 5.4 of the MLMP states: “Upon completion of construction of the wetland(s), monitoring shall be conducted to measure the success of the wetland(s) in achieving stated restoration goals (as specified in the Restoration Plan(s)) and in achieving performance standards, specified below. The permittee shall be fully responsible for any failure to meet these goals and standards during the facility’s full operational years. Upon determining that the goals or standards are not achieved, the Executive Director shall prescribe remedial measures, after consultation with the permittee, which shall be immediately implemented by the permittee with Commission staff direction. If the permittee does not agree that remediation is necessary, the matter may be set for hearing and disposition by the Commission.” The mitigation site(s) will be under construction during the early phases of construction of the CDP. This is appropriate timing for the construction of mitigation. At this time in the permitting process, the CDP has not yet been constructed, is not operating, and is not yet causing any intake or mortality of marine life such that mitigation would be warranted. S31 To summarize, at a minimum, the impingement compensatory mitigation should meet the following criteria[i]: (1) The issue of confidence interval was raised by Dr. Raimondi in his April 1, 2009 statement. Confidence
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 122 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 1) Impingement impacts should be calculated to a 95 percent confidence interval, as extrapolated by Dr. Raimondi from a 4.7kg/day (50 percent confidence interval) impact assessment. 2) Impingement impacts should be calculated at a rate of 304 MGD attributable to CDP impacts, or calculated real-time. 3) Impingement compensatory wetland productivity calculations must take into account the type of wetland created. If Poseidon's proposed mixture in the MLMP is applied to impingement mitigation, Dr. Raimondi's calculations should be used at a 95 percent confidence interval. 4) Wetlands must be created, not restored. 5) Penalties should be assessed when performance criteria are not met for a given period of time. intervals rely on inferential statistics, according to Dr. Raimondi. Dr. Jenkins raised significant questions about the confidence intervals proposed by Dr. Raimondi. (Scott A. Jenkins, A Note on Confident Limits in Raimondi’s April 1, 2009 RWQCB Report (April 8, 2009).) At the April 8, 2009 hearing, the Discharger agreed to undertake field programs to provide an empirical basis to ascertain whether 4.7 kg/day is the appropriate value by which to drive the Discharger’s impingement mitigation obligation. It also agreed to conduct a field program at the mitigation site to demonstrate that the impingement mitigation obligation is being met. On balance, the Regional Board prefers the empirical approach discussed at the April 8 hearing. It is concerned that the approach using inferential statistics may be adding one level of conservatism on top of another, potentially resulting in a punitive mitigation condition. In contrast, the empirical approach relies on actual data from the field to true up the mitigation obligation, and adjust it, if necessary, on the basis of actual data, rather than statistical calculation. Taking an empirical approach also is warranted given the genesis of the 4.7 kg/day value that is driving the impingement obligation in the Tentative Order. This value is much higher than average impingement over 336 days in 1979-1980, and much higher than average impingement over fifty days in 2004-2005. While there was impingement much higher than 4.7 kg/day on two days in 2005, it is reasonable to believe that those values are not representative of long-term impingement over the life of the Project. The
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 123 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Discharger has presented credible and substantial evidence that impingement at the CDP is likely to be on the order of 1.6 kg/day. Finally, the impingement obligation is based on the assumption that the CDP is getting no flow in the form of cooling water discharge from the EPS. While this condition may occur from time to time, it adds another conservative layer to the analysis and to the obligation. In other words, potential impingement is estimated “at a rate of 304 MGD attributable to CDP impacts,” as the comment recommends. (2) Comment noted. Impingement impacts are being calculated on the basis of a 304 MGD flow rate. (3) Comment noted. (4) The comment provides no legal support for its assertion that wetlands must not be restored. The MLMP provides for the creation or restoration of mitigation wetlands. (5) the comment provides no legal support for its assertion that penalty rules should be specified. The Regional Board retains authority to require the Discharger to take remedial measures in the event of non-compliance. S32 Using the above criteria, the required compensatory mitigation for impingement only, assuming 100 percent of CDP intake is attributable to CDP operations, a total of 54 additional acres of newly created wetlands (40 percent intertidal or subtidal) is required. The comment simply summarizes Dr. Raimondi’s April 1 statement, which is addressed in above Responses.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 124 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 4/5/2009 email from Nancy and Richard Weaver 150. We are for water desalination, but utmost respect for the Coastal areas and Marine life that will be affected, needs to be embodied in its planning and process from beginning-to-end. "Massive" action of desalination does not have to cause Massive death to innumerable species of Life. "Fixing in other locations" the massive damage that Poseidon will do locally, under its current proposal, does Nothing to alleviate or even avoid the planned, massive damage done to local life forms. The Sub-Seafloor Intakes will allow far greater beneficial results for generations to come, not only for people but for all the variety of species affected. It is far easier and less costly to adjust planning and process before starting this precedent-setting desalination plant in Carlsbad. Being conscious now will produce fewer or less-difficult problems for both ourselves and our descendents. Setting precedent for wise, sustainable ocean desalination is the mandate of this time. Comments noted. 4/6/2009 letter from Coastal Commission 151. IMPINGEMENT EFFECTS AND MITIGATION: Section 5.2 of the proposed Plan includes Poseidon’s recent impingement analysis showing the Project would cause greater adverse impingement impacts than had been previously disclosed or evaluated. The Project is now expected to impinge, on Comments noted. The Regional Board did not take into consideration the Coastal Commission’s evaluation of impacts. Rather it conducted and independent evaluation based on
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 125 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE average, several hundred fish per day, weighing a total of from about 4.7 to 7.2 kilograms per day. Please note that the Commission in November 2007 had found that the Project’s expected impingement impacts would be de minimis however, that finding was based in part on previous information from Poseidon showing that expected impingement would be several times lower, at 0.96 kilograms per day. The Commission did not have these recently submitted higher figures available to it and the Commission’s findings did not consider the resulting higher level of adverse impacts. information received in the Mitigation Plan and determined that 4.7 kg/day is a reasonable, conservative estimate of impingement associated with CDP’s projected operations under co-located conditions and notes that the Discharger has agreed to meet a fish productivity standard of 1715.5 kg/year, derived from the estimate of 4.7 kg/day, in the mitigation wetlands. 152. Given the problems Dr. Raimondi identified in Poseidon’s recent impingement analyses and the substantial doubts he raises about the adequacy of Poseidon’s impingement impact assessment and proposed mitigation, we recommend the Board not adopt Poseidon’s analyses as the basis of a Board decision about the amount of mitigation needed to address the Project’s impingement effects. As noted above, Poseidon’s recent identification of higher impingement levels may not be consistent with the Commission’s de minimis findings and are not included in the Commission’s determination of adequate mitigation. We instead recommend the two measures described below to ensure impingement impacts are reduced and to allow consistency with the Commission’s findings. we therefore recommend the Board adopt conditions that require Poseidon to operate at or below the above referenced flow rate and to monitor its impingement and adult fish productivity. Comment noted. The Regional Board did impose impingement monitoring. See response to Comment 50. 153. RATE OF MARINE LIFE MORTALITY CAUSED BY THE PROJECT: we recommend the Board find that the Project is likely to result in 100% entrainment mortality The Board’s analyses were based on the assumption of 100% mortality of all organisms impinged and entrained. 154. STEWARDSHIP OF AGUA HEDIONDA LAGOON: We have not yet been provided with information about Poseidon’s Comment noted. This will be considered if/when Poseidon proposes this to the Board.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 126 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE ability to act as steward (e.g., its ownership of the Lagoon or approvals from landowners in and around the Lagoon to take on stewardship activities); however, should Poseidon take on this role, we recommend the Plan be modified to properly recognize the Lagoon’s many other resources and beneficial uses 155. TIMING OF PROJECT-RELATED IMPACTS AND MITIGATION: Poseidon’s proposed Plan suggests that its facility will result in only de minimis impacts until the power plant shuts down permanently. We recommend the Board replace the Plan’s references to permanent cessation of power plant operations with references to power plant operations of less than 304MGD. To clarify, the Regional Board has already determined that when EPS flows are 304 MGD or greater, Poseidon’s impacts are indeed de minimis. Order No. R9-2009-0038 serves to determine compliance with 13142.5 when the EPS intake is being operated for the benefit for the benefit of CDP. Measure that will be implemented to comply with Porter-Cologne as a stand-alone facility will be evaluated at the time that Poseidon submits a Report of Waste Discharge to operate as a stand-alone facility. 156. SITE SELECTION: The Commission’s mitigation approval allows Poseidon to conduct its wetland restoration at up to two of the eleven identified potential sites between Ventura and the Mexican border (although with additional review and approval, Poseidon may conduct restoration at more than two sites or at different sites). We recommend Poseidon and the Board consider opportunities to work with these entities and with Coastal Commission and State Lands Commission staff to create larger restoration areas. Comments noted. 157. NEED FOR ONGOING ASSESSMENT AND COORDINATION TO FURTHER REDUCE PROJECT IMPACTS: We concur with the Board’s proposed approach to allow ongoing review of potential alternatives that may reduce the Project’s adverse marine life impacts. Comment noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 127 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 4/6/2009 letter from Coast Law Group 158. Procedural Objections The fact that significant new information continues to unfold – including evidence of applicant misrepresentation and scientifically unsound data and statistical analyses – at such a late date indicates that prior agency approvals were likely premature, and importantly, that a sound foundation of data for impacts assessment was never actually generated. Because we are nearing the end of the regulatory process, these procedural problems and their implications must be understood and appreciated by the Board. The public, unquestionably more limited in resources than the applicant, has been told to respond to mitigation plans within specific comment periods, only to have the plans change and significant new “expert” reports and materials arrive at the last minute. To expect that the public, including the Environmental Groups, have the resources to provide multiple in-depth meaningful reviews of the reams of documents submitted by Poseidon at every twist and turn of the regulatory process is unrealistic and contrary to the Water Code’s consideration of the public’s important role in water resource issues. (See e.g. Ca. Water Code §13292) Comment noted. See response to Comment 44. S33 In this regard, the City of Carlsbad’s EIR, well beyond the time for challenge, reflects an entirely different approach to impacts assessment than now before the Board. The Carlsbad EIR evaluated the Project's marine life impacts under CEQA and determined that the Project would not have significant impacts to marine life from entrainment or impingement, whether operating as a co-located or stand-alone facility. Adoption of the NPDES Permit was exempt from further CEQA review pursuant to CWC Section 13389, and the NPDES Permit incorporated the EIR's conclusion that the Project would not have significant marine life impacts. The commenter is correct that the EIR is no longer subject to challenge, and it is now conclusively
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 128 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE established that the EIR complies with CEQA. The Regional Board's review of the Minimization Plan is pursuant to CWC Section 13142.5(b), not CEQA. CWC Section 13142.5(b) provides a different standard of review than CEQA, requiring the best feasible and available measures to minimize intake and marine life mortality regardless of whether there are significant impacts under CEQA. S34 That entrainment impacts are to be significant is no longer reasonably in debate, yet Poseidon continues to assert based on the EIR that any mitigation it provides is more charitable than scientifically required to offset impacts. The Regional Board does not understand the Discharger to be claiming that its mitigation is in the nature of charity. Estimations of the CDP’s potential entrainment are premised on conservative assumptions that ensure that the Discharger will offset fully any entrainment from its stand-alone operations. S35 Based upon third-party independent review, the EIR conclusions regarding di minimus impingement impacts are also no longer valid. The EIR should hardly be referenced, let alone relied upon for PC compliance. The Regional Board has conducted its own independent review of the Minimization Plan for compliance with CWC Section 13142.5(b) and has not relied upon the EIR as a substitute for such review, though many of the facts and analyses contained within the EIR are necessarily informative to the Regional Board’s review. The Regional Board does not opine as to whether the impingement associated with the project is de minimis, as impingement is required to be fully offset in the mitigation wetlands. The Regional Board notes, however, that its proceedings do not reopen the City of Carlsbad's EIR, and the statute of limitations to challenge that EIR and its conclusions has long since lapsed. Pub. Res. Code Section 21167(c). Therefore, the EIR is "conclusively presumed to comply" with the provisions of CEQA. Pub. Res. Code Section 21167.2. "This presumption
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 129 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE acts to preclude reopening the CEQA process even if the initial EIR is discovered to have been fundamentally inaccurate or misleading in the description of a significant effect or the severity of its consequences. After certification, the interests of finality are favored over the policy of encouraging public comment." Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal., 6 Cal. 4th 1112, 1130 (1993). The EIR is no longer subject to challenge, and it is now conclusively established that the Project will not have significant marine life impacts pursuant to CEQA, operating with or without the EPS. See also Response No. 130. To the extent that the comment refers to Dr. Raimondi's April 1, 2009 statement, that statement has no legal effect on the EIR, and was not prepared as part of a CEQA proceeding. The Regional Board also notes that its present review is limited to approval of co-location operations for CDP benefit, but the Carlsbad EIR analyzed stand-alone operations in reaching the de minimis conclusion. In addition, the CEQA standard applied in the EIR is different than the standard being applied in this proceeding. S36 Should the Environmental Groups succeed in requiring preparation of a Supplemental EIR by the State Lands Commission, reliance upon the faulty EIR here by the Board could render its approvals null and void. The SLC approved the lease for the CDP on August 22, 2008. The Regional Board is not aware that the SLC is planning to conduct a Supplemental EIR. The comment's claim is speculative, without foundation, and not directly relevant. While the comment describes the EIR as "faulty," the EIR is conclusively presumed valid under CEQA and is no longer subject to challenge. Regardless, the Regional Board is conducting an independent evaluation of the Minimization Plan pursuant to CWC Section 13142.5(b).
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 130 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE S37 At the Coastal Commission, Poseidon repeatedly took the position that it was the Regional Board that had primary jurisdiction over entrainment and impingement mitigation (and PC 13142.5 compliance in general). Poseidon’s implication, if not directly expressed, was that the Commission need not worry if it missed a piece of the mitigation or environmental review puzzle because the Regional Board would certainly ensure all potential impacts were mitigated as legally required by the Water Code. And yet, the Board will certainly hear Poseidon repeat its mantra that because every agency that has looked at the project thus far has approved it, the Board should not add mitigation obligations or other project conditions beyond those already required. This is particularly true with respect to impingement impacts, discussed further below. Poseidon’s attempts to “have its cake and eat it too” should be rebuffed by the Board, with focus on strict PC compliance maintained. Under the terms of the Minimization Plan, the CDP will comply with CWC Section 13142.5(b) in that it will use the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of marine life. As an additional condition, the Regional Board will impose impingement monitoring at the intake and fish biomass productivity monitoring at the mitigation site(s) to assure that impingement is offset fully by the mitigation site(s). S38 Because we are nearing the end of the regulatory process, these procedural problems and their implications must be understood and appreciated by the Board. The public, unquestionably more limited in resources than the applicant, has been told to respond to mitigation plans within specific comment periods, only to have the plans change and significant new “expert” reports and materials arrive at the last minute. To expect that the public, including the Environmental Groups, have the resources to provide multiple in-depth meaningful reviews of the reams of documents submitted by Poseidon at every twist and turn of the regulatory process is unrealistic and contrary to the Water Code’s consideration of the public’s important role in water resource issues. (See e.g. Ca. Water Code §13292) That these submissions take place within days and even hours of final decisions should be seen as a reflection of the project’s inherent flaws, and yet further evidence of Poseidon’s attempts to “game the system.” Under CWC Section 13292, the State Board is required to provide guidance to the regional boards in matters of procedure, policy and regulation. To ensure that the Regional Boards are providing fair, timely, and equal access to all participants in Regional Board proceedings, the State Board must undertake a review of the Regional Boards’ public participation procedures, and report to the legislature regarding its findings and recommendations. In addition, the State Board is required to provide annual training to Regional Board members to improve public participation and adjudication procedures. The Regional Board has complied with all federal and state laws and regulations relating to public participation. The Regional Board has provided ample opportunity for public participation. Specifically, the Regional Board has provided public comment periods
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 131 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE lasting at least one month preceding public hearings in June of 2006, August of 2006, April of 2008, February of 2009 and April of 2009. The Regional Board has received numerous public comments, has considered all public comments carefully during its deliberations and has responded to all significant public comments. The Regional Board has conducted an extensive, years-long review of the CDP’s potential for impingement and entrainment, and is requiring full offset through mitigation. The process has been fair. S39 Poseidon faced significant and well reasoned staff opposition at the Coastal Commission, yet politics prevailed and much expert analysis (including independent third-party review) was ignored or given short shrift. Poseidon faced staff opposition at the State Lands Commission, and again prevailed on political lobbying coupled with drought policy arguments over science. Dr. Raimondi’s results were incorporated by the Coastal Commission. Expert agency input in that process was incorporated and is reflected in the MLMP, as approved by the Coastal Commission. The comment provides no specific facts to support its premise. S40 In light of comments by Regional Board members at the February 11, 2009 hearing, we have every reason to believe a majority of the Board has already made up its mind to approve the CDP regardless of the impacts and mitigation obligations warranted by evidence in the record. We nonetheless implore Board members to approach this (potentially) final hearing with an open mind, confidence in staff, and particular deference to third-party independent review of complex scientific material beyond individual Board members’ expertise. While the Board may still be inclined to approve the project, it should do so only with appropriate conditions and mitigation measures required. The Regional Board has conducted an extensive, years-long review of the CDP’s potential for impingement and entrainment, and is requiring full offset through mitigation. Further, the Minimization Plan provides for the use of the best available site, design, and technology measures feasible to minimize the intake and mortality of marine life. The comment provides no specific facts to support its premise. 159. Co-Located Approval v. Stand-Alone Analysis The March 9, 2009 staff report indicates the CDP is being considered for approval solely as a co-located facility, but that assessment New language has been added as a trigger to specify under what condition the discharger must submit a new report of waste discharge to operate as a stand-
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 132 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE and mitigation of impacts at intake volumes reflecting stand-alone operations is necessary. The rationale for this approach is founded on expectation that there will likely be intermittent periods of CDP operation where the full 304mgd of CDP intake requirement will be pumped solely for the benefit of CDP. As a preliminary policy-based matter, we believe the CDP should be conditioned to allow production of potable water only at quantities supported by EPS flow requirements. The Environmental Groups therefore recommend that if for any given quarter (3 month period), the EPS intake flows are less than 50% of the CDP’s needs (152mgd), then the CDP permit should be reopened and PC 13142.5 reassessment required. alone facility. New language has also been added as a trigger to specify when the discharger must submit a technical report that identifies additional feasible measures the discharger can implement to reduce intake impingement and entrainment impacts if all power generating units at EPS are shut down for prolonged periods, but are not permanently shut down. In addition, any argument to allow production only at EPS flows should have been raised during the issuance of the NPDES permit. S41 The Tentative Order recommends additional PC 13142.5 review only when the “EPS permanently ceases operations and the Discharger proposes to independently operate the existing EPS seawater intake and outfall for the benefit of the CDP...” This all-or-nothing standard has many problems. Foremost, it incentivizes continued operation of the EPS and the environmentally undesirable OTC infrastructure. The owners of the EPS are seeking to construct a new, more efficient power plant adjacent to the EPS. In fact, the EPS would be entirely retired in relatively short order but for the fact that the California Independent System Operator has determined a portion of the EPS is necessary for electricity grid reliability (pending construction of additional energy generating or transmitting facilities). As such, the EPS is expected to run at very low operational capacities, with attendant reductions in intake flows The comment reflects a misunderstanding of the rationale for the permanent cessation trigger. It is based on the Discharger’s lack of access to the intake system while the intakes continue to be used, at any level, as part of power plant operations. Even assuming that the EPS were to run at low operational capacities, these access constraints would remain. In light of the possibility that EPS flows would be less than 304 MGD for part of the time and may even be zero from time to time, the Regional Board required the Discharger to offset potential entrainment and impingement as if the EPS were not operating at all. This very conservative approach renders the permanent cessation approach fully protective. It is hard to understand how the permanent cessation standard incentivizes OTC infrastructure. The new power plant to which the comment refers is not an OTC proposal. If approved, the proposed project, called the Carlsbad Energy Center, would be a 558 MW gross combined-cycle generating facility
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 133 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE configured using two units with one natural-gas-fired combustion turbine and one steam turbine. The Carlsbad Energy Center would be air-cooled and would not employ once-through ocean water cooling. If the comment were right, then one would expect the proposal for the Carlsbad Energy Center to call for continued OTC operations. In addition, it is not the Regional Board’s role to incentivize OTC, or not. Rather, the Regional Board’s role is to regulate OTC used by power plants under both state and federal law. Regional Board review of EPS’s OTC infrastructure and operation is scheduled to begin on April 14, 2011, when a Report of Waste Discharge for the power plant is due. It is speculation whether the EPS would be retired in short order absent certain Cal-ISO determinations, referred to in the comment. S42 If CDP approval requires PC 13142.5 compliance reconsideration only once the EPS goes away entirely, it is certain Poseidon will apply every bit of political leverage possible to ensure the EPS remains in place regardless of environmental benefits associated with its demise. Hence, a different “trigger” is warranted. Comment Noted. S43 Second, the all-or-nothing standard for reopening the CDP permit would prolong such consideration in circumstances where only a relatively small portion of the CDP intake is required for EPS maintenance. Comment Noted. S44 The Environmental Groups therefore recommend that if for any given quarter (3 month period), the EPS intake flows are less than 50% of the CDP’s needs (152mgd), then the CDP permit should be reopened and PC 13142.5 reassessment The recommendation to reopen the CDP permit when the EPS intake flows are less than 50%, represented at 152 million gallons per day, is neither necessary nor warranted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 134 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE required. Such a condition would accurately reflect the CDP’s position in driving total intake flows, and appropriately justify reconsideration of the project at this location. At the same time, the benefits of co-location would be recognized only where legally and rationally justifiable S45 Specifically, Poseidon should be put on notice that the site analysis conducted thus far is predicated upon the benefits of co-location with the EPS, and that evidence in the record regarding site-specific infeasibility of alternative intakes may serve to preclude continued operation of the facility at currently proposed levels once the stand-alone review is triggered. Poseidon is clearly betting that capital investment in the construction of the co-located facility coupled with numerous water districts’ reliance4 on desalinated water to meet demand, there will be overwhelming pressure to maintain such service regardless of EPS OTC infrastructure availability. There should be no question that site analysis will be part of the stand-alone reassessment under PC 13142.5. Should the Board refuse to make this point clear, then the existing site analysis is clearly insufficient and the Project cannot be approved based upon the current record. The Regional Board’s present evaluation of the CDP and the Minimization Plan is limited to minimization efforts related to operation of the CDP as co-located with the EPS for CDP benefit. This is consistent with the description of the Discharger's proposed CDP operation in its Report of Waste Discharge and in Order No. R9-2006-0065. Additional evaluation of the CDP’s operations pursuant to CWC Section 13142.5(b) would be necessary if EPS permanently ceases power generation operations and the Discharger submits a new Report of Waste Discharge to operate EPS’s seawater intake and outfall independently for the benefit of the CDP in a “stand-alone” capacity. In the event the CDP seeks to become a stand-alone facility, the Regional Board will consider all relevant factors under CWC Section 13142.5(b). Accordingly, the existing site analysis of a co-located CDP is not insufficient. S46 But, given (a) the overwhelming evidence indicating relatively near term cessation of OTC throughout the country due to legal constraints and ongoing advances in power generation technology, and (b) the site-specific circumstance of EPS replacement and OTC phase-out, allowing the CDP to be built in a location without alternative intake capabilities is much like allowing construction of a house directly within the path of a planned future highway. Poseidon must be made aware that investment in such a scheme carries significant inherent risk that the facility may have to be This comment appears to argue that co-location adjacent to the EPS does not satisfy CWC Section 13142.5(b). The Regional Board disagrees that the speculative phase-out of OTC, and the potential for the Carlsbad Energy Center to replace the EPS, makes the site analysis infirm. The Regional Board is unaware of any near-term cessation of OTC, and the comment provides no specific information on how or why OTC cessation will be mandated legally or result from power generation technology. For
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 135 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE abandoned or drastically modified once the EPS is gone. example, the Regional Board is aware of no plans to cease OTC at the San Onofre Nuclear Generating Station. The Regional Board also notes that in its recent decision, Entergy Corp. v. Riverkeeper, 129 S. Ct. 1498, 1504 (2009) (Riverkeeper III) the United States Supreme Court pointed out that the EPA considered but declined to mandate the elimination of OTC because, while closed-cycle cooling could reduce impingement and entrainment mortality, the cost of rendering existing facilities would be nine times the cost of compliance with OTC performance standards, which produce ranges of impingement and entrainment that are similar to closed-cycle systems with fewer implementation problems. Even if OTC were phased out across the country, it does not run that co-location with the EPS is problematic. Under the Carlsbad Energy Center proposal, Units 4 and 5 of the EPS intake would continue to operate, which have the capacity to meet fully the CDP’s feedstock needs, even though this would not be after OTC. 160. PC Section 13142.5 Analysis – Site PC 13142.5 mandates that the project use the best available site feasible to minimize marine life mortality. The first step to appropriate site analysis for PC 13142.5 compliance is establishment of a legally viable and factually accurate project scope, also described as the project purpose or project objective. Poseidon’s framework for restricting site alternative analysis does not take into account the means by which water is currently conveyed to and within the San Diego region. See response to Comment 45. To determine whether the alternative sites evaluated by the Discharger are feasible under conditions of co-location operation for CDP benefit, the Board has examined the fundamental project objectives of the CDP, based on the evidence before it, including the objectives as described by the Discharger and the City of Carlsbad in its comments, the objectives as described in the EIR certified by the City of Carlsbad, and the project objectives as described in the August 6, 2008 findings of the Coastal Commission. The
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 136 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Discharger defines the CDP’s fundamental project objectives as: (1) allowing Carlsbad to purchase 100 percent of its potable water supply needs from the desalination plant, thus providing a secure, local water supply that is not subject to the variations of drought or political or legal constraints; (2) reducing local dependence on water imported from outside the San Diego County area and from outside of Carlsbad and surrounding areas; (3) providing water at or below the cost of imported water supplies; and (4) meeting the CDP's planned contribution of desalinated water as a component of regional water supply planning goals. The objectives are summarized in the Environmental Impact Report certified by the City of Carlsbad for the CDP and related findings adopted by the City, and on page 14 of 106 of the findings adopted on August 6, 2008 by the California Coastal Commission for the Coastal Development Permit adopted for the project. The Board has considered these fundamental objectives, and the availability of the existing intake at EPS in evaluating alternative sites and determining that the Minimization Plan uses the best available feasible site under conditions of co-located operation. 161. PC Section 13142.5 Analysis - Design and Technology The structure and wording of PC 13142.5 clearly demonstrate the legislature’s intent that coastal dependent industrial facilities be planned with a holistic consideration for minimization of marine life mortality. Hence, where technologies are available to minimize marine life mortality, industrial facilities should be designed around such opportunities. The CDP has not been designed with technologies to minimize marine life mortality as a standalone facility. This See response to Comment 160. Also, the Regional Board has made clear in Order No. R9-2006-0065 and in this Order that evaluation of compliance with Water Code section 13142.5(b) will be required if the CDP notifies the Board of its intent to operate as a stand-alone facility.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 137 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE much is clear. Virtually every technological option described, from alternative intakes to impingement reduction screens are discarded because they are not feasible in conjunction with a co-located CDP and EPS. The difficult question for the Board is when, and to what extent, design and technological alternatives can be required for the stand-alone condition. The Environmental Groups believe that PC 13142.5 requires assessment of these factors for the stand-alone condition now, as relinquishment of OTC infrastructure by the EPS is reasonably foreseeable. S47 First, it is a legal fallacy and mere regulatory construct that the CDP design options must be limited to those that will produce 50 mgd of potable water. No one disagrees the needs of the San Diego region are well beyond the 50 mgd benchmark. Nor is there disagreement that a reliable source of water controlled by local entities would be beneficial. But, the history of the CDP, including the involvement of the County Water Authority as a potential owner/permittee, sheds light on how the 56,000 acre foot (approx. 50 mgd) was manufactured as a target production floor. Such information is already in the record, and will not be repeated here. The number could just as easily been 25 mgd, or 100 mgd. No rational basis exists in the record to support the 50 mgd volume as the only reasonable size for the CDP, yet other sized design options have been summarily discarded. The Regional Board does not agree with Commenter’s suggestion that there is no rational basis to support the finding that a facility with a capacity of 50 MGD desalinated water is appropriate. S48 Indeed, PC 13142.5 contemplates that the size of the plant (i.e. the design) will be driven by minimization of marine life mortality, not a strict adherence to an artificially identified volume goal Commenter does not provide any support for this interpretation of CWC Section 13142.5(b), and the Regional Board does not agree with this interpretation The Regional Board disagrees that CWC Section 13142.5(b) places limitations on the size of the CDP. S49 The CDP has not been designed with technologies to minimize marine life mortality as a standalone facility. This much is clear. Virtually every technological option described, The Regional Board’s present evaluation of the proposed project is limited to minimization applicable to co-location operation for CDP benefit – not a stand-
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 138 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE from alternative intakes to impingement reduction screens are discarded because they are not feasible in conjunction with a co-located CDP and EPS. alone facility. Evaluation of additional or different technologies at the intake would be necessary if the EPS permanently ceases power generation operations, and the Discharger proposes, through a new Report of Waste Discharge, to operate the EPS’s seawater intake and outfall independently for the benefit of the CDP in a “stand-alone” capacity. Under CWC Section 13142.5(b), the Discharger is obligated to use the best available technology feasible. In addition to considering limitations attributable to the EPS’s operations, Discharger’s feasibility analysis considered several factors, including project timing, economic concerns, environmental costs, and technological limitations. The comment is mistaken to the extent it suggests that a single factor was used in the technology evaluation. For example, the Discharger conducted a thorough review of design and technology features, including alternative intakes, alternative screening technologies, and desalination technologies, to minimize marine life mortality under co-located operating conditions. With regard to alternative intakes, the CDP’s hydrogeologic studies confirm that none of the alternative intakes evaluated are capable of delivering the 304 MGD of seawater needed for environmentally safe operation of the CDP. Furthermore, the quality of the water available from the subsurface intake would be untreatable due to an extremely high salinity level, excessive iron, and high suspended solids. The Coastal Commission found, and the Regional Board agrees, that alternative intakes that might avoid or minimize environmental impacts are infeasible or would cause greater environmental impacts. See
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 139 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Coastal Commission Recommended Revised Findings, Coastal Development Permit for the Discharger Carlsbad Desalination Project, page 80 of 133 (Previously submitted January 26, 2009, Latham & Watkins LLP Comments, Appendix A.). 162. Impingement Poseidon's assertion that .5 feet/second (fps) velocity at inlet screens will reduce impingement to insignificant levels is unsupported. We concur with Staff's determination that most impingement intake and mortality occurs at the rotating screens rather than on the bar racks. The Regional Board has not relied specifically on a particular intake velocity in establishing its findings and requirements as contained in the Tentative Order. When CDP proposes to operate as a stand-alone facility, with EPS generating units permanently shut down, a new analysis will be required to ensure compliance with Water Code section 13142.5(b). See response to Comment 50. S50 Further, installation of VFDs on CDP intake pumps to reduce total intake flow for the desalination facility will only reduce intake flow for up to 104 MGD, as 200 MGD (dilution seawater) never flows to the desalination plant. Any reduction of impingement through use of VFDs (which is unvalidated and unquantified) is therefore only attributable to that portion of flows going directly to the CDP. (April 1, 2009 Staff Report at 10). As Poseidon does not currently "take credit" for VFDs, or propose to use any design or technology measures to reduce impingement, we offer this position to rebut any future attempts to "take credit" for such measures. Comment Noted. 163. Calculation Impingement Attributable to CDP Operations Poseidon's individual sampling impingement rates are calculated as follows: average impingement weight, divided by the associated flow volume for the sampling day, multiplied by 304 MGD. These resulting "weights" are then averaged. Two sampling events had higher associated impingement rates. Poseidon argues for their exclusion, while Dr. Raimondi and staff believe they should remain in the data Comments noted. See response to Comments 135 and 136.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 140 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE set. We concur with Dr. Raimondi and staff: the two data points with high associated impingement rates should not be considered outliers. 164. Heat Treatments The impingement impact calculation also seems to reflect only "normal operations" and not heat treatments. Poseidon and Raimondi's calculations do not take into account the proportion of organisms killed during heat treatments attributable to Poseidon's flows. If EPS intake pumps are operating for the benefit of CDP, a larger number of organisms will be present in the intake channel than would occur if CDP were not operating. The March 27, 2009 staff report suggested that, if operation of the CDP should lead to the need for more frequent heat treatment of the EPS intake facility, then it would be reasonable to include in the CDP incremental impact a corresponding portion of the impingement impacts due to heat treatments. In response, Poseidon submitted a statement (Le Page Statement, April 8, 2009) indicating that the frequency of heat treatment at Encina is “a matter of industry standard” and that “since heat treatment frequency is a standard maintenance issue at set intervals regardless of flow rates, there are no logical reasons to assume that the frequency of heat treatments will change as a result of any potential increase in water flow from the CDP over the power plant’s projected water demand.” As it does not appear that the operation of the CDP under co-located conditions will lead to the need for more frequent heat treatment of the EPS intake facility, it cannot be concluded that the CDP will cause additional heat-treatment related impingement. Thus, the Regional Board finds that it would not be reasonable to include heat treatment-related impingement when projecting the CDP’s impingement. 165. Poseidon's Proposed Impingement Mitigation Measures Based on Dr. Raimondi's review of Chris Nordby's analysis, Poseidon's proposed mitigation for impingement is wholly inadequate. We agree with Dr. Raimondi's assessment that The Board considered Dr. Raimondi’s statement, and Poseidon’s rebuttal to Dr. Raimondi’s statement, and decided to implement a productivity standard, and corresponding productivity monitoring, to determine
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 141 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the approach used by Poseidon (and Nordby) is flawed for the following reasons: • Entrainment compensation cannot also be used for impingement compensation. (Raimondi, 1-2) • Nordby's approach relies on a 27-year old study by Larrry Allen that is inapplicable here. • Nordby's estimation of fish production is based on mudflat wetlands, which only comprise 40 percent of Poseidon's proposed entrainment mitigation (as adopted by the CCC). • The estimation of fish production also assumes no current production - which is only true if wetlands are created, not restored. The MLMP contemplates significant restoration, but because the site or sites have not been identified, quantification of restoration and creation acreages is not possible. • Nordby's calculations are based on a 50 percent confidence level. The accepted scientific standard is 95%, and the Coastal Commission precedent is 80% for the MLMP mitigation calculations. (Raimondi, 3). • Nordby's calculations rely on fish production calculations (productivity of newly created wetlands) based on species that are entrained, which results in “double-counting”. • The calculations incorrectly assume entrainment calculations equate to actual impact of entrainment. • Entrained species are also impinged - thus the impacts are additive, and cannot be mitigated through creation or restoration of wetlands that mitigate for entrainment whether the proposed mitigation will be sufficient.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 142 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE S51 Two findings of the Mitigation Success Study are particularly relevant here: • Given the low ecological condition of most mitigation wetlands, it seems likely that many mitigation projects did not replace the functions lost when wetlands were impacted. • A lack of explicit consideration of the full suite of functions, values, and services that will be lost through proposed impacts and might be gained through proposed mitigation sites and activities is at least partly due to regulatory agencies approving mitigation projects with conditions or criteria that are too heavily focused on the vegetation component of wetland function, with inadequate emphasis on hydrological and biogeochemical conditions and their associated functions and services. See Response No. S24(b). S52 The basic premise for compensatory mitigation is that the newly created or restored wetlands actually compensate for the loss associated with the project. Thus, the mitigation required for CDP impingement must take into account the validity of the impact calculations and the validity of mitigation calculations. Put another way, we cannot be certain that the impingement calculations truly reflect actual impingement impacts. They serve as a proxy for actual impingement assessment. Thus, the highest level of statistical certainty must be applied to impingement impact calculations. This equates to a 95 percent confidence interval in Raimondi's study. (Raimondi, 4) Comment noted. Regional Board staff has reviewed the impact and mitigation calculations for their validity and have found those calculations to be valid. S53 Second, the mitigation wetland productivity calculations should be conservative, as underscored by the lack of success in actual wetland mitigation. Thus, because wetland productivity assumptions are based on completely newly created wetlands, Poseidon must be required to actually See Response No. S24(a).
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 143 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE create wetlands, as opposed to restoring them. S54 Another assumption associated with wetland productivity relates to the type of wetland created. Poseidon's MLMP presents a mix of wetlands, comprised of 40 percent intertidal mudflats or subtidal. Dr. Raimondi's calculations associated with this mix should be used to provide a wetland mitigation acreage. (Raimondi, 6) The MLMP does not prescribes a particular percentage mix of wetlands for the mitigation site(s). The particular composition of the mitigation wetlands will be determined during the Restoration Plan development phase. The Tentative Order amends the Minimization Plan to require the Discharger to sample the mitigation wetlands to demonstrate that 1,715.5 kg/yr of fish biomass (not reserved for entrainment compensation) is being produced. Discharger must satisfy this productivity requirement, notwithstanding the particular composition of the mitigation wetlands. S55 Staff correctly points out that the success of MLMP entrainment mitigation is assessed through a 95 percent confidence interval of correlation in physical and biological criteria compared to (yet-unspecified) reference stations, for a period of three consecutive years. (Staff Report, 19). Comment Noted. S56 This iterative assessment may result in a period of time where the restored wetlands are not meeting these criteria. For those years when the criteria are not met, the goal of compensatory mitigation-namely offsetting CDP impacts through productivity at the restored wetlands-is not being met. Thus, the whole basis for calculating the wetland mitigation is undermined. In order to account for this, a penalty for not meeting the performance criteria within a specified timeframe must be included in the permit. For example, if within 5 years of wetland restoration the 3-year benchmark is not attained, an additional 5 years of unmitigated impingement impacts must be taken into account. This would result in a total increased wetland restoration acreage. As the benchmark performance standards continue to be unmet, the penalty increases. On the basis of speculation that the mitigation wetlands will not meet the criteria for some period of time, the comment asserts that the "whole basis for calculating the wetland mitigation is undermined." The comment is mistaken and makes an overbroad conclusion on the basis of an unsupported premise. The Minimization Plan authorizes the Regional Board to take remedial action regarding any noncompliance with the performance criteria for the proposed wetlands. Thus, if the circumstance described by the comment constituted non-compliance (which is not clear given the vague and ambiguous nature of the comment), the Regional Board has the authority necessary to address such a situation. It is elementary, however, that the planned wetlands will
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 144 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE take a period of time after construction to establish to a point where comparison with the criteria is warranted. This phase-in and establishment period does not undermine the "whole basis," as asserted. The CDP is not yet constructed, is not causing impacts, and will cause no impacts unless and until EPS’s discharge is insufficient to meet its source water needs. The Minimization Plan provides for mitigation sufficient to fully offset entrainment and impingement amounts associated with stand-alone operations, without claiming any credit for minimization from design and technology measures. This is the case even though the CDP is before the Regional Board to operate in co-location mode, when it will be using discharge water from the EPS when available to meet the CDP's feedstock needs. The proposal is fully protective, even including the phase-in period. 166. To summarize, at a minimum, the impingement compensatory mitigation should meet the following criteria: 1) Impingement impacts should be calculated to a 95 percent confidence interval, as extrapolated by Dr. Raimondi from a 4.7kg/day (50 percent confidence interval) impact assessment. 2) Impingement impacts should be calculated at a rate of 304 MGD attributable to CDP impacts, or calculated real-time. 3) Impingement compensatory wetland productivity calculations must take into account the type of wetland created. If Poseidon's proposed mixture in the MLMP is applied to impingement mitigation, Dr. Raimondi's calculations should be used at a 95 percent confidence interval. 4) Wetlands must be created, not restored. 5) Penalties should be assessed when performance criteria are not met for a given period of time. 1) The Board considered Dr. Raimondi’s statement and determined that a 95% confidence interval was not appropriate. The Board, instead, decided to implement a productivity standard, and corresponding productivity monitoring to determine whether the proposed mitigation would be sufficient. 2) The CDP impingement projection of 4.7 kg/day is calculated from the EPS 2004-05 weekly impingement samples. Of the 52 samples, 50 are prorated to 304 MGD and 2 are not prorated. The 50 are prorated to 304 MGD because Poseidon considers the impingement that occurred on those days to be typical of flow-related impingement and, as such, reasonable to prorate. 3) It is anticipated that the proposed type and mixture of wetlands will be evaluated by the Scientific Advisory
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 145 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Using the above criteria, the required compensatory mitigation for impingement only, assuming 100 percent of CDP intake is attributable to CDP operations, a minimum of 54 additional acres of newly created wetlands (40 percent intertidal or subtidal) should be required. Panel when they review the Productivity Monitoring Plan, concurrently with the Wetland Restoration Plan. 4) If wetlands are to be restored, it is anticipated that the baseline productivity of these wetlands will not be counted towards mitigation for intake mortality. 5) If compliance timelines are not met as specified in the order, the discharger is subject to penalties under Porter Cologne. S57 Approval of the MLMP as currently proposed violates the PC 13142.5 requirement that best available mitigation be implemented, as the Board cannot make such assessment without baseline information about the site or sites where wetlands will be created or restored. CWC Section 13142.5(b) does not require that any plan adopted pursuant to CWC Section 13142.5(b) identify a particular mitigation site. The Minimization Plan and MLMP have, however, identified 11 pre-approved sites, with the five located within the boundaries of the Regional Board’s jurisdiction identified as priority sites. Both the Regional Board and the Coastal Commission must approve the Discharger's selected mitigation site(s) and corresponding Restoration Plan. The MLMP provides strict performance criteria, which are enforceable by the Regional Board and the Coastal Commission. S58 Given the disagreements among experts regarding the so-called outlier impingement events, additional data collection and analysis is warranted. The fact that the Regional Board staff must rely upon a 1979 document does not necessarily speak to the unreliability of that document, but rather, the appropriateness of confirming its findings with additional data now. See Response No. S31. S59 That Board staff, an independent third-party reviewer, and the Coastal Commission staff all agree (with Environmental Groups) that impingement impacts will be greater than previously disclosed by Poseidon, that they will be significant, The Regional Board does not understand the Discharger to be asserting any such waiver. The Regional Board has undertaken a full and independent review of the impingement issue, and is not deferring
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 146 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE and that they require mitigation in addition to that provided for entrainment impacts, provides more than enough reason to discount Poseidon’s veiled attempts to argue such concerns were somehow waived by past actions. to any past action on this issue. It is within the purview of the Regional Board to ascertain whether the potential impingement is significant, or not. Regional Board staff informed the Regional Board at the April 8, 2009 hearing that science does not provide a line in the sand over which impingement necessarily must be considered “significant.” The Porter-Cologne Act requires the Regional Board to balance a variety of factors to reach a reasonable outcome, and ensure that intake and mortality are minimized. The Regional Board finds that it does not need to determine whether impingement is de minimis, as the Discharger is being required to monitor actual impingement and offset it with fish productivity at the mitigation wetlands, as detailed in Tentative Order R9-2000-0038, regardless of whether it is de minimis. S60 Poseidon’s concerns regarding expert disagreement can most appropriately be rectified by postponing approval of the CDP and holding a public workshop so that the matters can be aired entirely. Comment Noted. S61 Poseidon, in its rebuttal of Dr. Raimondi’s impingement impacts assessment repeatedly sets up straw man arguments that are incorrect reflections of Dr. Raimondi’s position. The Board should further consider this evidence of Poseidon’s misrepresentation of facts throughout the regulatory process. (See, for instance, Poseidon’s Comments, April 2, 2009, at p.3, claiming that Dr. Raimondi “has opined that juvenile and adult fish that will be present in the proposed wetlands cannot be used to compensate for fish lost at the CDP,” and claiming that such assertion is “nonsensical.” What is nonsensical is Poseidon’s attorneys reading Dr. Raimondi’s report in this way. Dr. Raimondi’s position, consistent with that of Board staff, CCC staff, and The comment’s interpretation of Dr. Raimondi’s report is unnecessary, as Dr. Raimondi’s report is included in the record. In his April 1, 2009 statement, Dr. Raimondi concluded that the wetland acreage determined necessary to compensate for entrainment cannot also be used to compensate for impingement. (Statement of Dr. Peter Raimondi, April 1, 2009.) The entrainment modeling (ETM), however, is a species-specific model based on the understanding that entrainment is a particularized effect on an ecosystem and does not wholly eliminate its value. The Regional Board concurs with the Coastal Commission and the Scientific Advisory Panel’s (SAP) conclusion that the “APF is used to determine impacts to only those
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 147 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Environmental Groups, is that without data regarding the quality of wetlands to be restored or created, it would be impossible to prescribe some quantity of the marine life enhancements as accounting for anything but the entrainment impacts upon which the MLMP is based.) species affected by an entrainment, and the mitigation resulting from the APF is meant to account only for those effects.” (Conditional Compliance Findings for Special Condition 8, Marine Life Mitigation Plan, Nov. 21, 2008 (approved Dec. 10, 2008), p. 12 of 18). Thus, the mitigation acreage is also available to offset impingement impacts. The comment also states that “without data regarding the quality of wetlands to be restored or created, it would be impossible to prescribe some quantity of the marine life enhancements as accounting for anything but the entrainment impacts upon which the MLMP is based.” The Tentative Order requires such data, requiring impingement and productivity monitoring to show that the fish in the wetlands are present in sufficient quantity to account for impingement, as well as entrainment. S62 Arguments that the Agua Hedionda Lagoon will revert to mudflats if the desalination plant is not approved are laughable at this point. There is no evidence to suggest decommission of the EPS will result in abandonment of management measures to support marine life viability in the lagoon. The comment fails to address by what mechanism periodic dredging would be maintained in the absence of the EPS operations or the MLMP. EPS performs maintenance dredging of Agua Hedionda Lagoon for plant operations. Due to continual sedimentation, the Lagoon was completely re-dredged in 1998/1999 to an average depth of 8 to 11 feet, illustrating the need for on-going maintenance dredging. Under the terms of the MLMP, Discharger may become responsible for conducting maintenance dredging of the Lagoon. The Agua Hedionda Lagoon Foundation has noted that the lagoon environment would suffer without the dredging. Before the presence of an industrial installation at Agua Hedionda Lagoon, the Lagoon was characterized by mudflats. As noted in the City of Carlsbad's Agua Hedionda Land Use Plan, "originally, the lagoon was
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 148 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE an increasingly restricted salt water marsh, the result of accumulated sedimentation, and the absence of tidal flushing. Between 1952 and 1954, the San Diego Gas & Electric Company removed approximately 310,000 cubic yards of sediment from the lagoon, restoring the lagoon to an average 10 foot depth, and opening the lagoon mouth to permanent tidal flushing." S63 Poseidon and its experts persist in their attempts to characterize impingement and entrainment impacts solely in terms of biomass lost. This may have succeeded for the limited CEQA review by the City of Carlsbad, but the regulatory agencies have made absolutely clear that the proposed compensatory mitigation scheme seeks to account for lost ecosystem function associated with the individuals lost to impingement and entrainment. Because the loss of individuals will have a different impact on the ecosystem depending on their unique characteristics, mitigation obligations must be based upon extremely conservative impacts assumptions. The Minimization Plan and MLMP characterize entrainment in terms of numbers of entrained larvae, proportional mortality to larval populations, and foregone areas of production (per the Empirical Transport Model); they do not measure entrainment in terms of lost biomass. Impingement is measured in terms of both numbers and biomass of impinged organisms. S64 Poseidon seeks to minimize the impacts from impingement based upon conservative assumptions built into the data collection and characterization. Such arguments are accounted for in assessment methodology, and there is no overarching argument regarding conservativism that is relevant to final impingement mitigation requirements. Comment Noted. S65 Poseidon’s claims of best design based upon assertions to the Coastal Commission that have now been removed from consideration should be disregarded. See CCC letter, and compare to Poseidon’s assertions on page 4 of its April 2, 2009 Comment. The comment refers to an April 6, 2009 letter to the Regional Board from Coastal Commission staffer Tom Luster, which notes that the Discharger removed the following language from page 5-3 of the Minimization Plan: For the purpose of this analysis, the impingement effect is assumed proportional to the intake flow at velocities above 0.5 fps. If the intake through-screen velocity is below or
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 149 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE equal to 0.5 fps, the impingement effect of the intake screens is considered to be negligible. Mr. Luster asserts that “the Coastal Commission relied on the 0.5 foot-per-second maximum velocity as a key Project component for reducing impingement impacts.” In its findings on the Project, the Coastal Commission noted that the City of Carlsbad EIR determined that in stand-alone mode, the project would have an intake flow velocity that would not exceed 0.5 feet per second. See Coastal Commission Findings adopted on August 6, 2008, page 39 of 106. The City of Carlsbad and the Coastal Commission examined the Project as a stand-alone operation, and the design velocities discussed by them are relevant to that mode of operation, rather than the co-located operation for CDP benefit mode that is presently before the Regional Board. In the event the EPS permanently ceases operations and the CDP operates in stand-alone mode, additional evaluation of the CDP by the Regional Board will be necessary. With regard to the operational mode presently before the Board, co-location for CDP benefit, the Regional Board has evaluated the Minimization Plan and determined that it provides for the use of the best available design feasible pursuant to CWC Section 13142.5(b). As detailed in Order No. R9-2009-0039, this determination was based on several findings, including primarily the co-location design feature, which allows the CDP to avoid drawing from Agua Hedionda Lagoon any source water it is able to acquire from the EPS’s discharge of cooling water. The findings indicate that additional design features may be feasible in the event EPS permanently ceases to
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 150 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE operate, at which time additional review of the CDP pursuant to CWC Section 13142.5(b) will be necessary, including reduction in inlet screen velocity, fine screen velocity, ambient temperature processing, and elimination of heat treatment. S66 The 80% confidence limit applied by the Coastal Commission is not protective enough. The Board should require mitigation acreages calculated at the 95% confidence level. Comment Noted. S67 The recently decided US Supreme Court Riverkeeper decision regarding the application of cost-benefit analysis under Clean Water Act 316(b) does not invalidate the lower court’s ruling regarding lack of availability of compensatory mitigation in lieu of implementation of best available technology. The comment notes that the recent United States Supreme Court decision in Entergy found that cost-benefit analysis was permissible under CWA Section 316(b). In addition, the comment equates “restoration” at issue with respect to CWA Section 316(b) in Riverkeeper II with “mitigation,” which is authorized expressly under CWC Section 13142.5(b), without explaining this alleged equivalency. 4/6/2009 letter from Benjamin Hueso, San Diego City Council President 167. As one of San Diego County’s representatives on the California Coastal Commission, I made the motion to support the Project’s Marine Life Mitigation Plan (MLMP), which provides for 55.4 acres of highly productive estuarine wetlands to mitigate for the Project’s marine life impacts. I also made a motion in support of the MLMP’s findings, approved by the Commission on December 10, 2008. As the maker of the motion the intent behind my support of the mitigation plan was based on my understanding that the 55.4 acres was capable of providing comprehensive mitigation for the effects of the intake structures on the ecosystem of the Agua Hedionda Lagoon, and the coastal environment. Obviously, we understood that the potential effects of the intakes included the potential for fish to be impinged onto the intake screens, as well as the potential for Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 151 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE entrainment of marine life. We did not consider the 55.4 acres as dedicated exclusively to entrainment mitigation, or that mitigation for any other effect would have to be furnished by means other than the 55.4 acres. In this regard, I don't believe that the approach proposed in Poseidon's Minimization Plan results in a "double counting" of mitigation credit. The entrainment mitigation found in the Project's Coastal Development Permit was designed to mitigate for the impacts to the three most affected fish -gobies, blennies, and garibaldi. Expert scientific opinion supports the conclusion that the 55.4 acres will create a new, healthy ecosystem that serves multiple purposes including compensating for these three entrained species, as well as other impinged fish. This determination is supported the MLMP's findings adopted by the Commission on December 10, 2008, which specifically state: " ... these entrainment studies do not assume the complete loss of ecosystem function within an area of APF [Area of Productivity Forgone]; instead they identify only the area that would be needed to replace the numbers and types of species identified in the study as subject to entrainment. The APF is used to determine impacts to only those species most affected by entrainment, and the mitigation resulting from the APF is meant to account only for these effects." 4/7/2009 Email from Guy McClellan 168. All signs indicate that desalination will play an important role in California's future water portfolio. In this debate, we must address the cost, high energy use, and environmental impacts through discharge of brine, chemicals, and carbon dioxide. Desalination is still the most expensive source of Comments noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 152 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE water due to its high energy costs. The plan to mitigate damage done to the marine ecosystem by a desalination plant in Carlsbad is to plant trees inland to offset carbon dioxide emissions from increased power use. There is no chosen location for a marine mitigation project, and that is a glaring deficiency to the current plan. With regards to impingement and entrainment, the studies from the Encinas Power Station indicate that there will be a consistent level of destruction of small fish and fish eggs. The ocean is already overfished and we should not overlook the slaughter of small fish and fish eggs. 5/6/2009 Letter from Coastal Commission S68 Change in Project Description - Increased Intake Velocities: Poseidon's recent submittals to the Board describe a change in the project - i.e., an increase in intake velocities that will require additional action by the Coastal Commission. The Regional Board did not rely on the Discharger’s projection of lower velocities in developing its impingement mitigation. S69 During the Commission's review, both Poseidon and the project's Environmental Impact Report (EIR) stated that Poseidon's use of 304 million gallons per day of seawater would cause intake velocities of 0.5 feet per second or less, which is the velocity range considered "best available technology" by the U.S. EPA. The Commission relied on characterizations by Poseidon and in the EIR in approving the project and in determining what mitigation requirements were needed for the project to conform to Coastal Act policies. Comment Noted. S70 As it turns out, the characterizations made both by Poseidon and in the project EIR regarding intake velocity are incorrect. As shown in a Poseidon January 2009 submittal to the Board, it is physically impossible for Poseidon (and/or the power plant operator) to pump 304 million gallons per day Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 153 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE through the intake at velocities of 0.5 feet per second or less. The actual velocities at the intake bar racks range from about 40% to more than 250% higher than the originally stated 0.5 feet per second (i.e., from a minimum of no less than 0.7 feet per second to an as-of-yet undetermined maximum that would be several times higher). S71 This change in the project appears to relate to the recently identified rate of impingement that is substantially higher than previously disclosed and is higher than reviewed by the Commission. The higher impact rates are based on updated impingement calculations Poseidon and Board staff have developed during the past two months. During the Commission's review, the expected impingement rate was about 0.96 kilograms per day offish, but the expected impingement rates are now higher by about 60% to 750% (depending on which calculations are used). These impingement rates exceed the range determined by the Commission to be de minimis and represent an impact of up to almost three tons of fish per year, which Poseidon and others have calculated will require more than 11 acres of mitigation area to offset. As part of its upcoming review, we expect the Commission will evaluate the updated velocity calculations and impingement rates and then independently determine the appropriate basis for any additional mitigation (see below). This review will ensure the project remains in conformity with Coastal Act policies and will likely result in a change to the Commission's previously-approved MLMP. Comment Noted. S72 Need For Additional Mitigation: Poseidon submitted documentation for your April and May hearings stating that it expects to mitigate for its recently identified higher impingement rate by using "excess" production at the mitigation site(s) required through the Commission's MLMP. Its April 30, 2009 submittal for your May hearing proposes "crediting" various proportions of fish produced in its eventual Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 154 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE mitigation site(s) towards Poseidon's higher impingement impacts. S73 However, the MLMP approved by the Commission does not include "excess" production and does not provide for "crediting" mitigation towards an impact that the Commission was not informed about and that was not included in its deliberations. Comment Noted. S74 The Commission's review focused on determining how large an area would be needed to provide sufficient habitat for producing the larvae lost to entrainment. The Commission's MLMP approval was based primarily on mitigating the project's entrainment impacts, along with a relatively small amount of impingement impacts (i.e., the above-referenced 0.96 kilograms of fish per day).6 The approved MLMP is expected to provide 80% certainty that it will fully mitigate for all entrainment impacts. At best, the Commission-approved MLMP could provide mitigation credit for up to 0.96 kilograms per day of impingement. Poseidon's proposed "crediting" approach for impingement impacts is not consistent with the Commission's approval and will require additional Commission review and action. Comment Noted. S75 We expect the Commission's review will rely in part on recommendations from members of a Science Advisory Panel the Commission convened to provide independent assessment of another similar wetland mitigation project in the San Diego region and that the Commission relied on last year during its review of Poseidon's mitigation proposal. In approving the MLMP, the Commission relied on Panel member recommendations regarding the type of mitigation needed to address Poseidon's entrainment impacts and adopted Panel member Dr. Pete Raimondi's recommended 80% certainty level (instead of Poseidon's suggested 50% level) and his recommended 55.4 acres of mitigation acreage (instead of Poseidon's suggested 37 acres). To be consistent Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 155 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE with the Commission's previous findings and MLMP approval, we expect to have the Panel conduct a similar review of Poseidon's updated impingement levels and proposed mitigation approach as part ofthe upcoming review of Poseidon's permit amendment. S76 We are also concerned about Poseidon's latest submittals to the Board with suggested measures for sampling and monitoring impingement rates and impingement mitigation. Poseidon proposes monitoring focused largely on determining fish biomass, but as Poseidon and others have noted, mitigation needed for impingement effects should take the form of fish productivity, which requires a substantially more involved and complex approach than monitoring for biomass. Poseidon's proposed monitoring conditions are not likely to provide the data needed to determine whether its eventual mitigation site(s) is capable of, and actually produces, the necessary amount offish. Comment Noted. The monitoring has been revised to account for productivity. S77 We note, too, that Poseidon's proposals would have its own consultants determine necessary monitoring and sampling measures; however, this would not provide the level of independent peer review and confirmation that the Commission relied on in approving the MLMP. The Commission's Science Advisory Panel has already developed rigorous monitoring methodologies that are completely consistent with the scientific literature, and we expect the Commission will likely rely on the Panel to review Poseidon's proposed monitoring approach for adequacy and to ensure consistency with the existing MLMP monitoring requirements that the Panel developed. Comment Noted. S78 Please note, too, that changes the Board might make to the MLMP will require Commission concurrence - for example, if the Board requires Poseidon to conduct additional monitoring, the Commission will evaluate whether Poseidon will need to provide additional funds to support that Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 156 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE monitoring. 5/6/2009 Letter from Latham & Watkins responding to 5/6/2009 Coastal Commission Letter S79 First, we do not consider it necessary or relevant for the Board to review or resolve any of the issues raised by Mr. Douglas in his letter, or the responses provided in this letter from Poseidon, prior to the Board's action on Proposed Order No. R9-2009-0038 for Poseidon's desalination facility. This response letter is provided for your consideration, if, and only if, you desire to examine these issues prior to your vote on the Proposed Order. Comment Noted. S80 Second, we believe that the Regional Board's record has closed, and we do not believe it appropriate for the Board to accept any additional evidence or written testimony, even when it has been submitted by Mr. Douglas. The Board's website states: "On April 8, 2009, the Regional Board closed the public hearing on this matter and will not receive new evidence or testimony." Comment Noted. S81 The Coastal Commission staff has had a full and complete opportunity to submit evidence to the Regional Board in the several years this matter has been pending before the Regional Board, including prior to the April 8, 2009 hearing. Poseidon's complete position on impingement, including the appropriate monitoring and measurement of impingement and productivity of mitigation wetlands, was submitted well in advance of the February 11th and April 8th hearings, and posted on the Regional Board's internet website, for review and consideration by the Coastal Commission. Coastal Commission staff took full advantage of this opportunity to provide comment, and had the ability to submit comments to the Regional Board up to and including the date of the April 8, 2009 hearing before this Board. Poseidon previously responded to these comments in an April 8, 2009 letter addressed to you from my partner David Goldberg of Latham Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 157 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE & Watkins. This response letter is provided for your consideration, if and only if, you decide to consider the letter from Mr. Douglas, despite the fact that it has been submitted after the close of the record for this proceeding and it does not include new or substantive information not previously provided to the Regional Board by Commission staff and fully addressed by Poseidon. S82 Poseidon Has Not Changed Its Project Description And Has Not Changed Its Intake Velocities. As set forth in the April 8, 2008 letter to this Board from Mr. Goldberg of Latham & Watkins, Poseidon has consistently stated that it expects that when the desalination project operates in standalone mode without operations from the power plant, that the mean velocity of seawater at the bar rack intake from Agua Hedionda Lagoon will be 0.5 feet per second. Poseidon has not changed its project description. The bar racks contain vertical bars at the mouth of the seawater intake system as described on page 3-3 of the Minimization Plan. Downstream from the seawater intake system, the seawater then flows through bar racks and an approximately 600 to 1000 foot series of underground pipes and channels, through fine screens and two cooling water pumps described on page 3-6 of the Minimization Plan. Comment Noted. S83 Poseidon Has Not Claimed That The MLMP Approved By The Coastal Commission Was Designed To Mitigate For Impingement Impacts. The record is clear that the Coastal Commission did not provide for mitigation of impingement impacts as part of its adopted Marine Life Mitigation Plan, and Poseidon has never claimed that it did. Instead, Poseidon has presented evidence that the same wetlands that are required under the MLMP will also have excess biological productivity that more than compensates for any impingement impacts from the desalination project's standalone operations. Poseidon has agreed to an additional Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 158 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE requirement from the Regional Board to confirm this commitment to the 1715.5 kilograms per year of additional biological productivity, and its experts have explained why this is not "doublecounting." Poseidon is not seeking any change or modification to the MLMP. Instead, Poseidon has agreed to this separate and additional requirement, which can be satisfied by the same acreage as established under the MLMP. S84 Poseidon Does Not Believe That There Are Any "Recently Identified Higher Adverse Impingement Impacts", Nor Will The Regional Board In Its Proposed Order Find Any Such "Higher Adverse Impacts." Poseidon's position, since April 30, 2008 (over one year ago), is that the forecasted impingement from Poseidon's desalination plant during standalone operations will be 1.56 kg per day (3.43 pounds per day), or less. This is the figure cited in Dr. David Mayer's report in April of2008, which was resubmitted to this Board on February 2, 2009. This value is slightly more than the 2.12 pounds per day estimate of impingement that the Coastal Commission cites in its August 8, 2008 findings adopted for its permit, but still less than the daily diet of one adult brown Pelican. There has been no recently identified increase in forecasted impingement. We understand that the Regional Board staff may disagree with the Poseidon forecast, in part because of a staff concern including so called "outliers" recorded during unusually heavy rainstorms, and an unwillingness to discount these outliers for expected reduced flow. We believe the staffs proposed order with errata (like Poseidon's proposed Alternative Order) will provide that the Board does not need to resolve this disagreement as to the impingement forecast, between Poseidon and the Regional Board staff, because Poseidon has voluntarily agreed to meet a higher productivity standard. We believe this is the most expeditious way for the Board to take action on May 13th and move on with this project. Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 159 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE S85 However, should the Board have any concerns about this issue raised by Mr. Douglas, we urge the Board to change the proposed Order before it and expressly and explicitly determine that the forecasted level of impingement will be in accordance with Poseidon's position, 1.56 kg per day (3.43 pounds per day), and find that Poseidon has voluntarily agreed to meet a productivity standard which is based on a higher estimate of 1715.5 kg/year (which is based on a 4.7 kg/day (10.37 pounds per day) standard}. This language is in Attachment A to this letter. Comment Noted. S86 By making this explicit change to accept Poseidon's 1.56 kg per day number respond to Mr. Douglas's letter, the Board will put to rest any concerns that have been raised by Mr. Douglas's misunderstanding of the Board's order. Comment Noted. S87 We would also note that Poseidon's forecast of 1.56 kg per day (3.43 per day) was provided to the Regional Board staff on April 30, 2008, who in turn provided it to the State Lands Commission staff. We do not know to what extent the Regional Board staff provided this information to the Coastal Commission staff as part of the extended interagency coordination process that the Board directed occur in April 2008 with the conditional approval of the Minimization Plan, but we do know that such information was available for the May 1, 2008 interagency coordination meeting at Agua Hedionda Lagoon. Should the Coastal Commission staff have desired to obtain any information on impingement, we are sure the Regional Board staff would have provided this April 30, 2008 information and Dr. David Mayer's report. Comment Noted. S88 The Productivity Monitoring Plan For The Board's 1715 kg per year Standard Will Be Reviewed By The Scientific Advisory Panel. Mr. Douglas's letter incorrectly states that the productivity monitoring plan ("PMP") to demonstrate compliance with the 1715.5 kg/year standard provided for under the Board's Order to meet the Board's productivity Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 160 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE standard will not be reviewed by the Scientific Advisory Panel. In fact, both the staff proposed Board order and the Poseidon Alternative Order expressly provide for such review by the SAP. S89 We note that the letter you received is from the Coastal Commission staff, not the Coastal Commission itself and that the Commission has repeatedly rejected the Commission staffs position on an number of occasions concerning the Poseidon project. While Poseidon does not believe there is any need for an amendment to its permit, should the Coastal Commission staff believe that the Coastal Commission should require an amendment to Poseidon's permit to address the staff s concerns, the staff certainly has the ability to request the Commission to take such action, and no action by this Board is required for the Commission to consider this request of its own staff. Comment Noted. 5/6/2009 Letter from Latham & Watkins S90 We have reviewed the latest staff revisions to the staff s Proposed Order which are revisions to Tentative Order R9-2009-0038 posted March 9, 2009, which were intended to reflect the Board's direction in April. They were posted on the Board's website earlier today as: Regional Board revised Tentative Order No. R9-2009-0038 with errata (changes from the revised Tentative Order are shown in red underline/strikeout)" Comment Noted. S91 Poseidon is pleased to inform the Board that Poseidon fully supports the staff s Proposed Order as posted on the Board's website today, May 6, 2009. We no longer request that the Board adopt our previously submitted alternative order. Comment Noted. S92 We understand that the Board must have read and reviewed, and adopt, a Response to Comments/Responsiveness Summary in order to adopt the proposed Order on May Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 161 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 13,2009. Poseidon has submitted a Poseidon proposed Response to Comments/Responsiveness Summary to make sure that the Board has such a document before it on May 13th so that it can take final action. However, we expect that the Regional Board staff will be submitting their own response to comments/responsiveness summary in the near future to the Board, and while we have not reviewed it, we hope and expect that we can also support adoption of the staff's document. 5/7/2009 Letter from Coast Law Group S93 At the April 8, 2009 hearing, the Regional Board directed staff to prepare responses to comments received and make revisions to the proposed Tentative Order consistent with Board direction. However, the Regional Board did not reach consensus on a variety of issues discussed, and in some instances was silent on key points presented. The Revised Tentative Order, as proposed, is not consistent with the Board’s intent as expressed at the hearing. Moreover, the Revised Tentative Order does not meet the requirements set forth in the NDPES Permit or Porter-Cologne section 13142.5(b). Comment Noted. S94 The Regional Board counsel specifically instructed the Board not to act at its April 8th hearing due to procedural irregularities. Due to the systemic informational gaps and last-minute changes throughout the administrative approval process for the CDP, the public once again suffers for Poseidon’s gamesmanship. Impingement impacts came to light shortly before the April hearing, leaving Regional Board staff and the public little time to respond to Poseidon’s calculation error. See Email correspondence between Chiara Clemente and Peter MacLaggan from March 17 to March 30, 2009. As the Flow, Entrainment and Impingement Minimization Plan (Minimization Plan) was due in January Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 162 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE 2007, and has yet to be approved as of the most recent hearing on May 9th, Poseidon cannot credibly argue that expediency is an issue. Although Poseidon takes every opportunity to stress the urgency of CDP water production, it is and has been incumbent upon Poseidon to provide the necessary information in a timely manner. Unarguably, Poseidon has failed in this regard. S95 Further, staff’s Response to Comments previously received has not yet been released, but is expected after the close of the public hearing and the public comment period for the May 13th hearing. Contrary to public policy, the closure of the comment period before the Response to Comments are produced results in a disservice to the public, staff and to the Regional Board. Rather than a thoughtful response to legitimate concerns, the Regional Board will now have a post-hoc rationalization of its directive, immune from public scrutiny. In so far as the public notice for the May 13th hearing limits public comment to “proposed revisions made to the Tentative Order following the April 8, 2009 meeting” and receipt by May 6th, this deprives the public of meaningful participation. Environmental Groups request an opportunity to respond to the forthcoming Response to Comments at the May 13th hearing, and will be providing written comments for the record as well. Comment Noted. S96 Poseidon’s submission of proposed Findings and Order before the public release of the Regional Board’s Revised Tentative Order or any supportive findings is prejudicial to both the Board and to the public. The Regional Board closed the comment period and is accepting only comments pertaining to the revisions to the Revised Tentative Order, yet Poseidon has preemptively provided detailed and extensive comments in the form of its proposed order and supporting findings. Comment Noted. S97 Although this type of procedure is standard practice for Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 163 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Poseidon at every administrative level, it is highly prejudicial and should not be condoned. Staff and the public must now focus their efforts on rebutting Poseidon’s proposals instead of focusing on staff’s independent assessment. Poseidon is the applicant in this process, but it is the Regional Board, with the aid of staff, that should be driving the approval process. Poseidon’s standard practice puts staff and the public on the defensive. S98 Although this procedure results in a “stream-lined” approval with an artfully crafted order and findings supporting Poseidon’s position, it shows a lack of trust in the Regional Board and staff to do their jobs correctly. Poseidon has volunteered to do the Board and staff’s job, and the Regional Board members and the public should be highly suspect of any applicant doing the Board’s work. Comment Noted. S99 As a preliminary matter, the Regional Board itself did not provide a transcript of proceedings, and any reliance on the transcript prepared by Poseidon is a matter of practicality (Preliminary Transcript of Relevant Excerpts of Regional Board’s Deliberation at April 8, 2009 Regional Board Hearing, Prepared by Latham & Watkins LLP From Audio Files, hereinafter “Poseidon Transcript”). However, it appears that much of the Regional Board discussion, Regional Board staff and counsel comments, and public comments relevant to the Regional Board’s deliberation and direction to staff have been selectively omitted from the transcript. Although the record is colored by these selective omissions, Environmental Groups provide the following comments based on an assumption of accuracy in that portion of the transcript Poseidon has chosen to provide. Comment Noted. S100 The Board members who spoke at the April 8th hearing (and whose testimony was transcribed by Poseidon) provided little to no testimony on several topics. Contrary to Poseidon’s position, the Board did not give anything remotely resembling Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 164 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE “thorough consideration” to these subjects, and gave virtually no direction to staff. Poseidon Key Points of Poseidon’s Proposed Order and Supplemental Findings, April 30, 2009, p.3. Poseidon’s characterization of the Board’s position is merely an attempt to insulate the project from litigation, and a blatant mischaracterization of the administrative review process. Poseidon should be reprimanded for its continued manipulation of agency approval processes and admonished to more accurately represent Board action in all future submissions. S101 1) The Regional Board did not discount heat treatment impingement data collection. To the contrary, the Regional Board specifically asked for impingement real-time assessment, which would include heat treatment data. During his public comment, Mr. Garret specifically and repeatedly called for impingement monitoring similar to that conducted in 2004-05 for Encina Power Station (EPS) by Tenera. Poseidon Transcript, p. 15-16. This monitoring, which was the basis of all entrainment and impingement assessments presented by Poseidon, included heat treatment monitoring. Comment Noted. S102 2) The Regional Board did not state that 55.4 acres of wetland mitigation for entrainment would be enough to offset impingement losses. The Board did not decide that Poseidon’s MLMP requirement to provide 55.4 acres of mitigation in two phases was a “proper amount of wetlands mitigation acreage” and “the proper amount of wetlands mitigation acreage needed to fully offset projected Project entrainment and impingement losses.” Poseidon Key Points of Poseidon’s Proposed Order and Supplemental Findings, April 30, 2009, p.1. The Regional Board did not find 55.4 acres sufficient, nor did it Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 165 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE find such acreage would fully offset impacts. As a practical matter, further impingement monitoring on a real-time basis was required in order to accurately reflect impacts and require mitigation based on such assessment. Had the Regional Board been convinced by Poseidon’s expert testimony, it would not have found the need to require real-time assessment. S103 Poseidon’s own transcript shows the Board members were not convinced that enough data existed to conclusively prove the extent of impingement impacts, and therefore required 55.4 acres as floor. Comment Noted. S104 Thus, what can be gleaned from the transcript is that there was Board member uncertainty as to what the actual impingement rate would be, and the Board members thus were inclined to require real-time impingement monitoring. The 55.4 acres of mitigation required for entrainment would be a floor, dependent upon the real-time impingement monitoring results. As detailed further below, in light of the Coastal Commission Executive Director’s reiteration that the entire 55.4 acres are allocated to entrainment mitigation, using the same acreage to mitigate for impingement impacts is no longer an option. Coastal Commission Comments to the Regional Board, May 6, 2009, p. 2-4. Comment Noted. S105 3) Temporal losses need to be taken into account. Because the Revised Tentative Order contemplates impingement monitoring after construction of the CDP, during its first year of operation, temporal losses must be considered. First, after the impingement monitoring data is analyzed and presented to the Board, any discrepancy between the impingement losses attributable to CDP operations and the fish productivity of restored wetlands (to the extent there is any allowable overlap for entrainment and impingement mitigation) will need to be addressed. Further, before the wetlands potentially reach the required Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 166 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE productivity to offset impingement mitigation, losses due to impingement and entrainment need to be mitigated through further wetland restoration acreage. The temporal loss accounting requirement is not required in the current order, and should be included therein. The Regional Board testimony provided by Poseidon reflects, at a minimum, the Board considered this something to be vetted by staff or the Science Advisory Panel at the time of MLMP implementation. Therefore, the Revised Tentative Order should include some provision that either defines a method to account for temporal losses, or assigns this function to the Science Advisory Panel. S106 4) Biological productivity assessment was to be determined by the Science Advisory Panel. The Regional Board agreed that assessment of the biological productivity of the wetlands, created as required for entrainment impacts and as a floor for impingement impacts, would be determined by the Science Advisory Panel. Contrary to Poseidon’s contentions, the Regional Board did not agree that 55.4 acres “will more than fully offset potential stand-alone impingement.” Poseidon Key Points of Poseidon’s Proposed Order and Supplemental Findings, April 30, 2009, p.2. Nor did the Regional Board direct staff to write a Revised Tentative Order requiring calculations of wetland productivity that specifically contemplated Poseidon’s proposed calculation method. The testimony reflects the Regional Board’s understanding that this would be determined by the Science Advisory Panel. Comment Noted. S107 As mentioned above, the limited transcript provides no evidence that the Regional Board intended any impingement monitoring to exclude heat treatments. In light of the seemingly perpetual co-located operation due to the strictly worded stand-alone trigger, EPS is likely to continue Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 167 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE operations at minimum flow rates, while CDP becomes the almost exclusive driver of operations. It would be illogical and contrary to the mandates of Porter-Cologne to minimize mortality to attribute none of these heat treatment impacts to CDP operations. Revised Tentative Order, p. 11. S108 Though Poseidon argues that it would be more appropriate to obtain heat treatment data from EPS, this argument is wholly without merit. The impingement data relied upon by the Regional Board and by Poseidon was conducted based on EPS operations. The intake and discharge are operated by EPS. The pumps are owned and operated by EPS. Using Poseidon’s logic, no entrainment or impingement should ever be attributed to Poseidon as long as EPS owns the intake and discharge channels and the intake pumps. However, the Regional Board, along with the Coastal Commission and State Lands Commission, has rejected such a notion. When CDP flows are the driving force, the impacts are attributable to CDP, not EPS. Thus, heat treatments conducted by EPS for the benefit of CDP would also be attributable to CDP. As mentioned previously by Environmental Groups and staff, CDP operations will necessarily contribute to increased frequency and impacts of heat treatments. See Carlsbad Desalination Project, Environmental Groups’ Supplemental Comments, April 6, 2009, p. 10- 11. Comment Noted. S109 Further, in light of the proposed stand-alone and new design or technology triggers proposed, the heat treatment impingement impacts will continue regardless of EPS flow rate so long as EPS is subject to Reliably Must Run (RMR) status by Cal-ISO. Thus, even operating at 304 MGD with 99.99% of impacts attributable to CDP, Poseidon will never have to mitigate for heat treatments until EPS shuts down completely. Comment Noted. S110 The Regional Board cannot refuse to make a decision as to the significance of the CDP marine life impacts, especially Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 168 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE under the Porter-Cologne mandate to minimize intake and mortality. Without actually requiring the best design, site, or technology to minimize intake and mortality, the Regional Board has chosen to rely wholly upon mitigation measures. This in and of itself is problematic and does not comport with Porter-Cologne. A refusal to acknowledge reality and require accurate mitigation for CDP impacts is completely inadequate. S111 The Regional Board, finding it “unnecessary to resolve” disputes of whether impingement rates of 1.56kg/day to 7.16kg/day are more accurate because 4.7kg/day is “a reasonable, conservative estimate of impingement” is nonsensical. Revised Tentative Order, p. 10. First, the Regional Board inherently makes a decision as to the reasonableness of the impingement rates by using a middle-of the- road number of 4.7kg/day. The Regional Board could find 4.7 kg/day supportable in light of the range of numbers provided, or 4.7 kg/day as a good compromise position because both the low and high end of the range are equally likely. However, merely stating that the Regional Board has found 4.7 kg/day reasonable without stating why, in light of an unresolved dispute between staff, Environmental Groups, and Poseidon, provides no insight into the Regional Board’s decision-making process. Comment Noted. S112 Second, the Regional Board, by basing the wetland productivity requirement on the 4.7 kg/day presumed impingement impacts proves that determining impingement impacts is of the utmost importance. As written, the Regional Board’s basis for impingement mitigation calculations in the order is the assumption that a productivity of 1,715.5 kg/year will offset impingement impacts. This 1,715.5 kg/year productivity is “derived from the estimate of 4.7 kg/day” of impacts. Revised Tentative Order, p. 10. Thus, if the Regional Board truly found it unnecessary to Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 169 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE resolve the dispute over what the CDP impingement rate is, there would be no numerical value whatsoever assigned to such impact. S113 Further, the Regional Board directed staff to require, and has required through the Revised Tentative Order, impingement monitoring once CDP operations begin. Revised Tentative Order, p. 11. Contrary to the language currently contained in the order, this monitoring of impingement impacts is not merely of passing interest as something “valuable to consider.” Id. The order also allows the Regional Board to require an adjustment of the annual fish productivity requirement of 1,715 kg/year dependent on these impingement monitoring results. Thus, 1,715 kg/year is established as the benchmark from which productivity, and by implication mitigation, is increased or decreased. Comment Noted. S114 If the impingement monitoring results show an increased productivity, Poseidon will likely ask for mitigation credit. Phase I of the MLMP requires only 37 acres of mitigation, with an additional 18.4 acres conditionally required in Phase II. Revised Tentative Order, p. 9. Thus, if Poseidon meets productivity benchmarks imposed in the Revised Tentative Order (i.e. 1,715 kg/year) and the real-time impingement monitoring shows impacts less than 4.7 kg/day, Poseidon may potentially receive credit towards the required entrainment mitigation, resulting in less than 55.4 acres of total mitigation. Comment Noted. S115 Thus, the 4.7 kg/day impingement calculation is truly important, as it impacts the amount of mitigation required above and beyond 55.4 acres, and it also provides a mitigation banking mechanism where none existed before, and more importantly, was never intended as described in more detail below. As the Coastal Commission has reiterated, the CDP’s impingement impacts have only recently come to light, and the mitigation imposed by the Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 170 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Coastal Commission in the MLMP was for entrainment impacts. Coastal Commission Comments to the Regional Board, May 6, 2009, p. 2-4. At most, Poseidon could receive credit for impingement of .96kg/day. Id. at 4 S116 In light of the Regional Board’s requirement of real-time impingement monitoring, it is unsupportable to include in the Revised Tentative Order an arbitrary benchmark, that only serves to benefit Poseidon. A year-long data set of impingement impacts resulting from CDP operations, including heat treatments, would be the best evidence of the CDP’s intake and the resulting mortality. Any impingement mitigation requirement based on this calculation would be the most defensible and scientifically supportable. Comment Noted. S117 The biological performance standard productivity requirement of 1,715 kg/year for impingement compensation, and the available fish biomass calculations are unsupported by the record, lack scientific basis, and should be decided by the Science Advisory Panel. Revised Tentative Order, p. 14. As pointed out by the Coastal Commission, the monitoring of wetland mitigation is required to take the form of “fish productivity, which requires a substantially more involved and complex approach than monitoring for biomass.” Id. at 4. Moreover, the “Science Advisory Panel has already developed rigorous monitoring methodologies that are completely consistent with scientific literature…” Id. Poseidon’s attempt to circumvent this process during Regional Board review is contrary to the Regional Board directive and to the Coastal Commission’s requirements in the MLMP. Comment Noted. S118 Further, though biomass calculations are wholly inappropriate for determining fish productivity and should not be applied in the manner suggested by Poseidon, the calculation methods themselves are completely unfounded. Revised Tentative Order, p. 14. First, the premise for the calculations Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 171 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE themselves is the ability to create wetland mitigation for entrainment and impingement impacts within the same acreage. S119 This matter was not resolved by the Regional Board at its April hearing, nor was the Regional Board clear as to how any such assessment would be made. See, Statement from Peter Raimondi, Ph.D, April 1, 2009 ; Carlsbad Desalination Project, Environmental Groups’ Supplemental Comments, April 6, 2009, p. 11-13; Coastal Commission Comments to the Regional Board, May 6, 2009, p. 2-4. Importantly, the Coastal Commission has since expressly rejected Poseidon’s assertion that the entrainment mitigation can also be used as impingement mitigation. Comment Noted. S120 Coastal Commission Comments to the Regional Board, May 6, 2009, p. 3. The Coastal Commission, at most, accounted for .96 kg/day of impingement in mitigation calculations. Id. Comment Noted. S121 Second, the assumption that entrainment mitigation is only for the three most commonly entrained species was not accepted by the Regional Board. The position that these three species are merely a proxy for all entrainment impacts is supported by Dr. Raimondi (who was also the expert involved in the Coastal Commission review process), by Regional Board staff, by contemporary scientific literature and research, and by Environmental Groups. See Carlsbad Desalination Project, Environmental Groups’ Supplemental Comments, April 6, 2009 and Appendix. Comment Noted. S122 Thus, a calculation based on the assumption that all species other than the most commonly entrained goby, blenny and garibaldi are “excess production” would be inaccurate. Moreover, even if the calculation allowed for inclusion of species biomass only excepting the three most commonly entrained fish, it would not support Poseidon’s proposed calculation. Not only is a biomass calculation of “all other Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 172 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE species” overly inclusive, no basis exists to support the proposition that all other biomass can be attributable to impingement mitigation. Even using Poseidon’s logic only impinged organisms could be counted toward these impingement productivity calculations. S123 However, as mentioned repeatedly, the house of cards upon which Poseidon has built its mitigation structure topples when any of the foundational elements are removed: 1) Entrainment mitigation required in the MLMP by Coastal Commission was for entrainment impacts. At most, the Coastal Commission considered .96 kg/day impingement. 2) Impingement impacts at the Coastal Commission were based on a premise of .5fps velocity, now proven to be inaccurate. 3) Poseidon’s impingement calculations were inaccurate, as revealed by staff shortly before the April 2009 hearing. Real-time impingement impacts are the best basis for assessing CDP impingement impacts. Any mitigation required to offset these impacts must be additional, over and above the 55.4 acres required for entrainment impacts. 4) Heat treatments conducted during co-located operations are for the benefit of CDP when the driving factor for intake is CDP, and must therefore be considered in impingement monitoring and mitigation requirements. 5) Biological productivity of wetland mitigation is not equal to biomass, and is meant to be determined by a Science Advisory Panel, as reiterated by the Coastal Commission. Comment Noted. S124 The Coastal Commission has repeatedly spoken to the inconsistencies between the proposed mitigation measures in Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 173 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE the Revised Tentative Order and those adopted by the Coastal Commission in the MLMP. Comments by the California Coastal Commission, April 6, 2009; Coastal Commission Comments to the Regional Board, May 6, 2009. At its April 9, 2008 hearing, the Regional Board specifically directed staff to work with other agencies in coordination, in order to comply with Section 13225 of the California Water Code. Resolution No. R9-2008-0039, p.3. Not only would adoption of the Revised Tentative Order be contrary to this directive, it would frustrate the Coastal Commission’s requirements. Poseidon would potentially be unable to meet its MLMP performance standards as mandated by the Coastal Commission. Coastal Commission Comments to the Regional Board, May 6, 2009, p.4-5. S125 Though the Regional Board specifically asked for a trigger that would mandate stand-alone analysis, the Board members did not give direction as to how stand-alone operations would be identified. The proposed trigger for a new Report of Waste Discharge is EPS permanent shutdown of all generating units. Revised Tentative Order, p. 2. This trigger does not take into account the reality of EPS current and future operations. Though EPS is shutting down three of its five generating units, it already operates at a reduced capacity compared to historical operations, and specifically those in 2006 at the time of permit issuance. Once three of the five units are shut-down, EPS flows will be further reduced. Under the current scenario, even if EPS flows are limited to the service pumps, or even to 1 MGD, the CDP will not be considered a stand-alone facility. This creates a long-term scenario in which CDP is a stand-alone facility in all but name, which not only incentivizes perpetual EPS operation, but allows CDP to evade stand-alone Porter-Cologne section 13412.5 review. Comment Noted. S126 The trigger for design or technology feature implementation Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 174 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE to reduce intake and mortality is similarly flawed. Only after EPS gives notice that it will not be operational for 180 days and will not be called upon by Cal-ISO for power production will Poseidon have to evaluate possible design or technology measures. Revised Tentative Order, p. 2. The Revised Tentative Order requires submission of a technical report “evaluating the feasibility of any additional design or technology features within 45 days” of notification of EPS shutdown. Id. S127 Revised Tentative Order, p. 17. Technology and design features that would reduce intake and mortality during temporary periods of EPS shutdown become no more likely at the point of 180 days of shutdown than at one day of reduced operation. Id. The proper time for technology and design feature planning was at the time of the NPDES permit issuance, or within the 180 day timeline articulated in section VI.C.2.(e). Comment Noted. S128 The first alarming element of this provision is the requirement of notice that EPS will be shut down for 180 days before a technical report is even required. EPS must first have the foresight to know when it will be shutdown for 180 days, and must simultaneously notify CDP (which is not required anywhere in either the CDP or EPS permits). Then Poseidon has 45 days to develop a plan for technology or design measures to minimize intake and mortality. This plan is subject to Executive Officer review, and is not subject to Regional Board approval or public review. This entire provision amounts to a circumvention of Porter-Cologne and the NPDES Permit section VI.C.2.(e). Not only are these the very measures required by Porter-Cologne at the time of project approval, but they were required under VI.C.2(e). Absolutely no basis exists for allowing Poseidon to formulate design or technology measures subsequent to construction of CDP, and without public review or Regional Board approval. Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 175 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Moreover, the imposition of only design or technology measures does not meet the section 13142.5(b) mandate that “best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life.” Porter-Cologne § 13142.5(b). S129 Another fatal flaw of the proposed requirement is the assertion that any feasible design or technology measures are identified in the Minimization Plan. The Revised Tentative Order asserts that CDP has little control over co-location operation and therefore the existing intake meets the best available design criteria. Revised Tentative Order, p. 7. Thus, no design measures are required. The only measures mentioned in the order are modified EPS pump configuration to reduce inlet and fine screen velocity and ambient temperature processing. Id. However, with little to no explanation, these measures are predetermined likely to be successful. Comment Noted. S130 Id. With no information or quantification, it is unreasonable to assume any reductions in mortality will result. Moreover, the Coastal Commission has provided evidence that Poseidon has misrepresented intake velocities and that under all operating scenarios (with or without EPS operation) the intake velocities will always exceed the .5 fps required as best technology by EPA. Coastal Commission Comments to the Regional Board, May 6, 2009, p.2 and Attachment 1. Comment Noted. S131 Similarly, the Revised Tentative Order states that the proposed technology for the CDP is the best available technology feasible under co-location operation. Revised Tentative Order, p. 8. The alternative intakes and screening technologies were all discounted as infeasible. Specifically, the alternative screening technologies would interfere with EPS operations. Id. Why EPS operations are relevant in light of the requirement that EPS be shut down for 180 days Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 176 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE before any co-located technology requirement can even be analyzed (much less imposed) is puzzling. Further, if Poseidon is able to discount certain technologies because of their interference with EPS operations, it would make sense to specifically require those technologies when EPS shuts down for 180 days. S132 Regardless of the unexplained reason for imposition of this trigger, it does not meet section VI.2.C.(e) requirements to require minimization of intake when EPS flows are insufficient to meet CDP needs, as explained below. Comment Noted. S133 The Regional Board cannot adopt the Revised Tentative Order as proposed to meet the section VI.C.2.(e) requirement of Poseidon’s NPDES Permit, Order No. R9-2006-0065. The NPDES Permit was reopened only to assess compliance with this provision. Comment Noted. S134 The basic premise of the condition in section VI.C.2.(e) is a Porter-Cologne analysis for CDP operations when CDP is the driving factor for EPS intake. Because Poseidon’s Minimization Plan was originally due in January 2007, Poseidon has had more than enough time to evaluate the necessary elements of section 13142.5(b). However, in an effort to hurriedly approve the Minimization Plan, the Revised Tentative Order now contains a provision requiring design or technology requirements after CDP is built, upon notice of 180 days of EPS shutdown, subject only to Executive Officer review. Revised Tentative Order, p. 2. Comment Noted. S135 As discussed above, the trigger for design or technology measures is inadequate. However, it also fails to meet the Permit section VI.C.2.(e) requirement for requiring assessment of measures to minimize mortality “when the CDP intake requirements exceed the volume of water being discharged by the EPS.” Order No. R9-2006-0065, NPDES No. CA0109223, p. 22. The order requires, as does Porter Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 177 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE Cologne, measures to reduce intake and mortality when EPS flows fall below 304 MGD (or would do so but for CDP). Thus, requiring a 6-month shutdown of EPS before design or technology measures are put in place (or even studied) does not meet the section VI.C.2.(e) or section 13142.5(b) requirements. S136 Throughout the approval process, the Regional Board has also made clear and expressed in no uncertain terms that the approval of the Minimization Plan is for co-located operations only. Comment Noted. S137 Approval of the Minimization Plan, and Porter-Cologne compliance is valid only until EPS shuts down. At that point, a new and thorough section 13142.5(b) analysis will be required. Although the Revised Tentative Order provides a mechanism for additional technology or design review upon EPS shutdown, this is not consistent with the Regional Board and Poseidon’s previous position. Comment Noted. S138 Because the Regional Board repeatedly asserted that CDP stand-alone operations would be subject to new Porter-Cologne analysis, changing this mandate at the last minute, after the close of the comment period, with no explanation, is unsupportable. Comment Noted. S139 Further, as discussed at length in our previous comment letter, in light of the impending EPS shutdown and regulatory shift in phasing out once-through cooling power plants, compliance with section 13142.5 requires a broader site alternatives analysis than for a co-located CDP. Carlsbad Desalination Project, Environmental Groups’ Supplemental Comments, April 6, 2009, p. 5-7, 13-16. This is especially true for a stand-alone CDP, where all intake and mortality will be attributable to CDP and Poseidon will have to meet all the elements of section 13142.5(b) independently. Comment Noted. S140 The Revised Tentative Order thus should require not only a Comment Noted.
SAN DIEGO REGIONAL BOARD RESPONSES TO COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 178 of 236 COMMENT NUMBER COMMENTS and/or CONCERNS REGIONAL BOARD RESPONSE design and technology review under section 13142.5 upon EPS shutdown, but must also clarify that Porter-Cologne section 13142.5(b) requires consideration of all its elements: the best site, design, technology, and mitigation measures. S141 The Revised Tentative Order does not accurately reflect the Regional Board’s directive given at the April 8th hearing, nor does it satisfy the NPDES Permit condition or Porter-Cologne section 13142.5(b). Without the requested revisions and clarifications, the Regional Board cannot move forward with approval of the Minimization Plan or adoption of the Revised Tentative Order. Comment Noted.
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SAN DIEGO REGION TENTATIVE ORDER NO. R9-2009-0038 AMENDING ORDER NO. R9-2009-0065 (NPDES NO. CA0109223) WASTE DISCHARGE REQUIREMENTS FOR THE POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT, DISCHARGE TO THE PACIFIC OCEAN VIA THE ENCINA POWER STATION DISCHARGE CHANNEL RESPONSES TO ORAL COMMENTS RECEIVED ON APRIL 9, 2008, FEBRUARY 11, 2009, AND April 8, 2009 Order No. R9-2006-0065 (NPDES NO. CA109223) will be amended as stated in Order No. R9-2009-0038 for the reasons stated herein and as explained more fully in the following responses. COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE PUBLIC TESTIMONY RECEIVED APRIL 9, 2008 1. Testimony of Gabriel Solmer on behalf of San Diego Surfrider Foundation and San Diego Coastkeeper 1. Making decision two weeks before agency coordination meeting is inappropriate in light of mandate in Porter-Cologne Section 13225. You need to coordinate not just because of the mandate of Porter-Cologne but to get the, take advantage of the agency resources and expertise on this issue. This comment has been superseded by intervening activity and is moot. The Discharger’s mitigation proposal was not approved at the April 9, 2008 hearing. Instead, consistent with the Regional Board's directive, the Discharger engaged in a months-long interagency process to develop the mitigation proposal, the MLMP now incorporated in the Minimization Plan as Part A of Chapter 6. The MLMP was approved by the Coastal Commission on August 6, 2008. The CDP has benefited from significant additional resource agency input. The Minimization Plan has gone through several revisions, for which there is extensive supporting documentation in the record. 2. You don't have a valid plan that has been adequately or legally noticed before you to vote on. This comment has been superseded by intervening activity and is moot. 3. The flow impingement and entrainment minimization plan has not been available to you for a year. It's been available to you for just about a month in its revised form. And the This comment has been superseded by intervening activity and is moot.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 180 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE technical report that is on the agenda today that is before you, it was only written on Friday, five days ago, and wasn't available to the public until after the public comment period had closed. You should not consider an issue where not only do we not have responses from the staff to our comments; we weren't even able to comment on what's before you today. 4. The revised plan is still incomplete. Even in Poseidon's own words it’s not right for final approval. They want you to approve this intermediary process. Which proponents have called a plan, but it's not the same as this plan called for in your permit. This comment is moot. Subsequent to this comment, the Discharger submitted revisions to the Minimization Plan, the most recent draft having been submitted on March 27, 2009, which can be found on the Regional Board website. 5. You heard a lot of people say this project has been approved by a number of different agencies. Any time that you've heard the words that the Coastal Commission has found anything. That's not accurate. The Coastal Commission is voting on revised findings next month. So until they do that, unless anyone can see the future, it's not correct to say that the Coastal Commission has made those findings. This comment is moot. The Coastal Commission approved the MLMP on August 6, 2008 and adopted final findings on December 10, 2008. (Coastal Commission. Recommended Revised Condition Compliance Findings, MLMP for Coastal Development Permit E-06-013, Poseidon Resources Carlsbad Desalination Project, November 21, 2008, at 13. See http://documents.coastal.ca.gov/reports/2008/12/W16a-12-2008.pdf.) 2. Testimony of Joe Geever Representing San Diego Surfrider Foundation 6. The plan as it regards a compensatory restoration project is still a draft proposal not ready for approval. This comment has been superseded by intervening activity and is moot. 7. The plan seems final in its conclusions about technologies to reduce the intake and mortality of marine life. However, the technologies discussed in the plan have not been subject to review and are unproven. The Regional Board is making a final decision about technologies for purposes of CDP operation in co-location mode. The Regional Board has conducted independent and extensive review of the project, the Minimization Plan, and the MLMP and have carefully evaluated compliance with CWC Section 13142.5(b) to ensure that the best available site, design, technology, and mitigation measures feasible will be used to minimize the intake and mortality of marine life.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 181 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 8. The draft plan concludes that after the fact restoration is both legally sufficient and the only feasible alternative. We disagree. The draft plan identified alternative intake systems that eliminate the intake and mortality of marine life, Poseidon refuses to pay for them. The mitigation called for in the Minimization Plan is not “after the fact,” as the CDP has not yet been constructed, is not currently operating, and is not currently resulting in any intake or mortality. The mitigation site(s) will be designed and implemented as the CDP is under construction, and will be developed during the early years of its operation. There is no history of any loss attributable to the CDP that would render the proposal "after the fact." The Minimization Plan provides for the best available site, design, and technology measures to minimize the intake and mortality of marine life. In addition, the Minimization Plan provides for sufficient mitigation to fully offset projected entrainment and impingement. The infeasibility of alternative intake systems has been fully evaluated. 9. A final decision that after the fact restoration is legal would be patently incongruent with Porter-Cologne. See Oral Response No. 8 above. 10. We implore you to delay any decision on the revised plan until the several agencies have coordinated their actions. This comment has been superseded by intervening activity and is moot. 11. There is no mitigation plan in front of the RWQCB. The Discharger engaged in a months-long interagency process to develop the mitigation proposal: the Marine Life Mitigation Plan (“MLMP”) now incorporated in the Minimization Plan as Part A of Chapter 6. A stakeholder meeting was held on May 1, 2008, which included, among others, staff and experts from the California Coastal Commission (“Coastal Commission”), the Regional Board, State Lands Commission, California Department of Fish & Game, and the National Marine Fisheries Service. After this interagency coordination and consideration of substantial public comment, the MLMP was approved by the Coastal Commission on August 6, 2008. (It should be noted that interagency review and coordination does not mean a consolidated permit was issued.) Following the Coastal Commission’s approval on August 6, 2008, the Regional Board considered
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 182 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE the Minimization Plan and MLMP on February 11, 2009 and April 8, 2009. The Regional Board will again consider the Minimization Plan on May 13, 2009. 12. We agree with Poseidon that Riverkeeper applies only to cooling water intakes. And that's because the federal law only deals with cooling water intakes. But the state law deals with cooling, heating, any industrial use of ocean water. But it does include cooling. So the decision in the Riverkeeper case the rule that EPA had promulgated included exclusions from what they call their performance standards, which was to reduce entrainment by 90 percent, these standards that they were using for minimizing entrainment and impingement. A lot of that rule remanded back to USEPA to rewrite it. But a couple of the provisions in there were strictly prohibited from the remand. So using a cost benefit analysis was thrown out. And they can't put that back in the rule according to Riverkeeper II. Using after the fact restoration was also thrown out. This plan kind of relies on is using after the fact restoration and then using a cost benefit analysis to show that any of the other alternative intakes are infeasible or whatever. Porter-Cologne doesn't distinguish between cooling, heating, or any other industrial process. So if you take the ruling from Riverkeeper II, apply it to cooling water in Porter-Cologne or anything else, there's no distinction between cooling, heating, and industrial processes in Porter-Cologne. So arguably that ruling in Riverkeeper II applies to Porter-Cologne as well. Which would prohibit them from using cost benefit analysis or after-the-fact restoration. The comment attempts to argue that CWA Section 316(b), a federal law applicable only to power plants, binds the Regional Board’s consideration of a desalination plant to which this federal law does not apply. The Regional Board does not agree that its decision in this instance is constrained as argued in the comment. The comment implies a mistaken belief that CWA Section 316(b) applies to a non-power plant use of water withdrawn from a structure, the original purpose of which was to provide cooling water for a power plant. No court ever has applied CWA Section 316(b) as the comment argues, and the State Board specifically rejected such an application in its March 28 Scoping Document. The comment assumes that the Minimization Plan proposes to mitigate even when feasible technology is available but is dismissed on the basis of cost-benefit analysis. Here, the Minimization Plan does not use cost-benefit analysis to disregard technology, and mitigation is provided in addition to technology obligations. Thus, the comment’s cost-benefit and after-the-fact restoration arguments are factually irrelevant. The Regional Board agrees that CWC Section 13142.5(b) applies to new or expanded coastal power plants or other industrial installations that use seawater for cooling, heating, or industrial processing, including desalination projects such as the CDP. 3. Testimony of Livia Borak on behalf of San Diego Coastkeeper 13. It's not clear if this impingement and entrainment flow minimization plan is an assessment of impact or what it's assessing or what's being approved today. This comment is moot. The Regional Board conditionally approved the Minimization Plan on April 9, 2008, Resolution R9-2008-0039; however, the Tentative Order proposes to supersede that action.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 183 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE With regard to the assessment of impacts, Chapter 5 of the Minimization Plan estimates impingement and entrainment. Chapters 2, 3, 4, and 6 provide site, design, technology, and mitigation measures to minimize the intake and mortality of marine life, consistent with CWC Section 13142.5(b). 14. The NPDES permit for the CDP requires--to assess the feasibility of site specific plans, procedures, practices to be implemented or mitigation measures to minimize impacts to marine organisms. Now, this is different from Porter-Cologne. Porter-Cologne requires minimization of entrainment and impingement. This is different. We need to be clear about the difference between mitigation and minimization. Porter-Cologne requires minimization and mitigation as well as best technology, best design, and best site are all ways to minimize impacts. The Minimization Plan provides for the use of the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of marine life, as required by CWC Section 13142.5(b). It respects the distinction between “minimize” and “mitigate.” 15. The State Water Board has acknowledged the difference between 316B and Porter-Cologne. And we acknowledge that they are different. Porter-Cologne applies to this project. And this has to be assessed. The state board -- this board has the duty to assess whether or not Poseidon has minimized intake mortality, not minimized impacts, not mitigation. It’s not clear that this plan has even addressed Porter-Cologne and addressed minimization. And it's clear from Poseidon's response that they feel they don't need to do that. That they've addressed best available site, design, technology to minimize project related impacts. That's not the dictate -- that's not what's dictated by Porter-Cologne. And just to reiterate, mitigation is not the same as minimization. One is a before the fact measure and one is after the fact. Minimization happens before. Mitigation is supposed to be something that takes care of all the impact after the fact, after all minimization has been done that is The Regional Board agrees that CWA Section 316(b) does not apply to the CDP and that the appropriate legal standard for the CDP is CWC Section 13142.5(b). This is the standard under which the Regional Board has reviewed the Minimization Plan. The Minimization Plan’s express objective is to minimize intake and mortality of marine life; the focus is not on “impacts.” Intake and mortality of marine life is minimized by minimizing impingement and entrainment. The word “impacts” occasionally has been used to refer to entrainment and impingement because, from a functional standpoint, minimizing “intake and mortality” and minimizing “impacts” both result in avoiding and/or compensating for entrainment and impingement. The Regional Board has fully considered all aspects of CWC Section 13142.5(b), including all measures feasible to minimize the intake of mortality of all forms of marine life.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 184 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE feasible. There is no analysis like this contained in this plan. And as far as what, what analysis is required, it's not supposed to be fragmented and sequential as it is in Poseidon's letter, it states that they’ve sequentially analyzed the steps that have been taken by Poseidon to address the provisions they feel they need to address. They've fragmented the whole process. Porter-Cologne requires a holistic approach to minimizing impacts. The plan basically says this is our site. We need to produce this much water we require 304 MGD, so this is what we can afford and this is what we're going to mitigate, not the mandates of Porter-Cologne. And that basically takes the mandates of Porter-Cologne and turns it on its head allowing a project proponent to choose what exactly they what to mitigate and say for us this is not the best, that's not what best available means. A legally defensible plan will not only meet the requirement that you've imposed on Poseidon in the NPDES permit for this plan, but also meet the mandates for Porter-Cologne, which has not been done. As the Regional Board, you require this information, because you need to the impacts of the project. You need to analyze what is possible for a project to minimize impacts before you can decide what mitigation actually is. 16. Riverkeeper II though it does apply to Clean Water Act 316B. The Clean Water Act is a technology forcing statue, 316B is, and it requires best available technology. And in the decision the court basically said that EPA was to find a beacon, as you will, of what the technology is. And in doing that cost benefit analysis was not appropriate. And in finding that whatever the best technology is, that is cost effectiveness can be utilized after that in finding out what kind of ranges for technology the EPA can have as a substitute for this best technology. That the best performing The Regional Board does not concur that federal technology forcing must be extended to state law.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 185 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE technology is it. So best available technology is what is the best technology that can be reasonably borne by the industry. And that would lend courts Porter-Cologne kind of a analysis to go by. 4. Testimony of Ed Kimura Representing Sierra Club San Diego Chapter 17. The State of California Marine Life Management Act now requires an approach to evaluate the impacts on the marine life. And in order to ensure the protection of the health of the marine resources. The eco systems approach evaluates the many interaction among the various marine organisms when subjected to stresses human or natural. This holistic approach is a departure from the past, which is directed to the evaluation of stress on individual species. This time it's taken the whole group of impacts. The law does not require the Minimization Plan to contain a comprehensive monitoring program that evaluates the current health of the marine ecosystem within the impacted area. On the basis of comprehensive monitoring of Agua Hedionda Lagoon and the EPS intakes, the Minimization Plan is based on intake and mortality under existing conditions, and requires the Discharger to monitor for impingement to verify impingement levels or otherwise adjust compensation obligations. This approach reflects the particularized effects that a seawater intake can have on an ecosystem. The law does not require monitoring of areas not impacted by the intake system. The Minimization Plan is based on a highly-detailed, comprehensive and independent baseline study of the Agua Hedionda Lagoon marine environment, which was properly used to calculate baseline levels of entrainment and impingement as well as other characteristics of the marine environment and the surrounding area. 18. The plan fails to follow this eco system approach. The impingement and entrainment plan narrowly focuses primarily on fish and fish larvae, it fails to integrate the interactions among all the marine organisms from the bottom of the food chain all the way up to the top. And when they are subjected to losses from impingement and entrainment. The plan concludes that the impingement losses are, quote, de minimus in deciding that this amounts to 2.1 pounds of fish per day. However, it fails to point out that in the yearly basis there are over 19,000 fishes and over 96 species that were killed by impingement. The plan provides very little information on other important marine organisms besides fish larvae that are entrained. See Oral Response No. 17 above.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 186 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 19. The plan fails to provide a comprehensive monitoring program that evaluates the current health of the marine eco systems within the impacted area, as well as a reference area not impacted by the seawater intakes. See Oral Response No. 17 above. 20. The plan proposes a micro screen to minimize entrainment losses, but it has no plan on how they're going to evaluate this or when they’re going to implement it. This comment has been rendered moot by subsequent activities or actions. 21. The proposed mitigation plan narrowly focuses on fish but fails to offset the losses of the rest of the marine organisms. The power plant diverts seawater from Agua Hedionda which contains both resident species of marine organisms as well as non resident which come in from the coastal areas. The plan provides no information on these marine organisms such as the species and abundance. Without this information, we doubt whether any mitigation plan will succeed. The MLMP is not narrowly focused, and includes mitigation for five non-resident, ocean species. Pursuant to the Biological Performance Standards set forth in section 5.4(b) of the MLMP, the success of the MLMP shall be measured against similar habitats with respect to a number of enumerated criteria. Among these, the MLMP specifically requires that “the total densities and number of species of fish, macroinvertebrates and birds…shall be similar to the densities and number of species in similar habitats in the reference wetlands.” MLMP Section 5.4(b)(1). As discussed in section 3.2 of the MLMP, the principle objective of the MLMP is to provide maximum overall ecosystem benefits, e.g. maximum upland buffer, enhancement of downstream fish values, provide regionally scarce habitat, and potential for local ecosystem diversity. Further, the strict standards in the MLMP establish specific criteria for effectively measuring the success of the mitigation project, e.g., within five years of the start of construction, the constructed wetlands must match habitat values within a 95% confidence level for four undisturbed wetlands identified in the MLMP. PUBLIC TESTIMONY RECEIVED FEBRUARY 11, 2009 1. Testimony of Marco Gonzalez on behalf of San Diego Surfrider Foundation and San Diego Coastkeeper 22. Porter-Cologne Section 13142.5 is the cornerstone of where you begin your, and really, end your consideration. It says that the desalination plant shall use the best available site to minimize the intake and mortality of marine life. The Regional Board agrees that the appropriate legal standard is CWC Section 13142.5(b), but Commenter’s paraphrasing of CWC Section 13142.5(b) is incomplete. CWC Section 13142.5(b) provides: “For each new or expanded coastal power plant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site,
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 187 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life.” (Emphasis added.) Commenter omits the word “feasible,” which is an important qualifier in determining whether a project has satisfied the statutory standard for “site.” 23. [This] means you have to put the desal plant in a place where you can minimize the intake and mortality of marine life. That doesn’t mean you consider where you put the physical plant, you consider where you put the intake. All of the alternatives analysis that’s been given to you talks about where you locate the actual physical plant. To the extent the Commenter suggests that CWC Section 13142.5(b) does not require consideration of the physical location of the plant, the Regional Board disagrees. CWC Section 13142.5(b) specifically states that: “For each new power plant or industrial installation …, the best available site … feasible shall be used to minimize the intake and mortality of all forms of marine life.” The CDP site is the best available and feasible to minimize intake and mortality of marine life. By co-locating with the EPS, the CDP will be able to use the EPS’s pre-existing intake and discharge system and convert the seawater discharged by the EPS after use for cooling operations into potable water. Only when the EPS does not produce enough cooling water discharge will seawater be withdrawn solely to meet the requirements of the CDP. In addition to reducing the unnecessary intake of seawater by providing for the reuse of water discharged by the EPS for desalination, co-locating with the EPS allows the CDP to avoid environmental and economic costs that would be associated with the construction of a new intake system. The Report of Waste Discharge submitted by the Discharger identified the EPS site as the final project site. The Regional Board evaluated the project application on the basis of this site when it adopted Order No. R9-2006-0065 on August 16, 2006. That Order was unsuccessfully challenged, and it is too late to bring any further challenge. To the extent the Commenter suggests that the Discharger did not consider alternative intakes, the Regional Board disagrees. The Discharger evaluated numerous alternative intake systems, such as subsurface intake and an offshore intake, all of which were determined to be infeasible and/or more
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 188 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE environmentally damaging than use of the existing EPS intake. 24. [W]e’ve only, since day one, talked about one intake. And that’s the intake at the Encina Power Station. Now, there may have been an alternative study done for subsurface intakes at the Encina Power Station, but we’ve seen no alternative location anywhere around the coast. The comment appears to suggest that the Discharger did not consider any alternative locations for the CDP. As explained in Chapter 2 of the Discharger’s Minimization Plan, the Discharger considered three possible alternative sites within the City of Carlsbad: (1) other locations within the EPS property; (2) the Encina Water Pollution Control Facility; and (3) the Maerkle Reservoir. Alternative sites within the EPS property were infeasible because the power plant owner has reserved the remaining portion of the site to accommodate future power plant modifications, upgrades, or construction of new power plant facilities. The Encina Water Pollution Control Facility was rejected because it would be able to accommodate only a desalination plant with a capacity of 10 MGD desalinated water, which is cost-ineffective and insufficient to meet user demands. Because of its lack of proximity to the intake system, this site also would require the construction of a 2-mile long water transport pipe, increasing environmental impacts and project costs. These factors, among others, made that site infeasible. The third site option, Maerkle Reservoir, located 10.6 miles east of the proposed site, was rejected because the necessary construction changes would increase construction costs, and therefore water costs, to such a degree as to make the CDP infeasible without any measurable environmental benefit. Insufficient space exists in the public rights-of-way between the Maerkle Reservoir site and the ocean to accommodate the needed pipelines, and it would be extremely disruptive to construct pipelines outside existing rights-of-way. After considering these alternative locations, the Regional Board agrees that the co-located site satisfies CWC Section 13142.5(b). The Discharger also analyzed an alternative desalination project proposed for Dana Point, which would use slant well technology. This technology was found infeasible for the CDP because, among other things, pilot testing indicated that the water quality would be difficult if not impossible to treat, and the many multiple slant wells would be required on the beach, disrupting
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 189 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE public access and recreation. The Coastal Commission found, and the Regional Board agrees, that the multiple smaller slant wells required would result in far greater environmental impacts than the CDP, and would be insufficient to address water needs. 25. And you will hear Poseidon at some point say, “But wait a second, this is a Carlsbad-specific project. We define our project so narrowly that it has to be in Carlsbad.” No, it doesn’t. Look at all the water agencies that are purchasing water. They’re not getting it directly piped. It’s paper transfers, as anybody who deals with water knows. To the extent that the comment criticizes the reasons for the CDP’s location in Carlsbad, the argument is unavailing. The EPS site is the best available site feasible to locate the CDP and alternative site locations are not feasible and do not meet project objectives. On a policy level, reliance on paper-water transfers over significant distances has proven to disappoint many end users of water in recent years. Even State Water Project (“SWP”) contracts have not protected end users, as courts have observed that entitlements to water from the SWP “represent nothing more than hopes, expectations, water futures or . . . ‘paper water’.” See, e.g., Planning & Conservation League v. Dep't of Water Res., 83 Cal. App. 4th 892, 908 n.5 and 914 n.7 (2000) (“Paper water always was an illusion. ‘Entitlements’ is a misnomer, for contractors surely cannot be entitled to water nature refuses to provide or the body politic refuses to harvest, store, and deliver. Paper water represents the unfulfilled dreams of those who, steeped in the water culture of the 1960’s, created the expectation that 4.23 [million acre-feet per year] of water could be delivered by a SWP built to capacity.”); see also Cal. Oak Foundation v. City of Santa Clarita, 133 Cal. App. 4th 1219, 1228 (2005) (quoting Planning & Conservation League v. Dep't of Water Res., 83 Cal. App. 4th at 908 n.5 and 914 n.7, for the foregoing proposition). 26. [I]n their presentation, they say this is a regional problem. The drought is a statewide problem. Locating a desalination plant that’s purportedly going to meet the County Water Authorities fabricated need for 56,000 acre feet is not a Carlsbad local issue. Commenter’s argument is flawed to the extent it attempts to minimize the urgent need for water in the Carlsbad region. That drought is a statewide issue does not undermine the fact that Carlsbad residents, as well as residents in the surrounding areas, have a pressing need for water. The comment offers no support for the assertion that the County Water Authority has fabricated a need for 56,000 acre-feet of water. The Discharger is contracted to meet 100% of Carlsbad’s potable water requirements.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 190 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 27. Your standard of review under Porter-Cologne says you have to choose the best available site to minimize intake and mortality of marine life. We don’t even have that analysis. We don’t even know where the best available site is because they’ve only looked at one site. Commenter paraphrases CWC Section 13142.5(b) by omitting the term “feasible.” The statute requires the CDP to use “the best available site … feasible … to minimize the intake and mortality of all forms of marine life,” in addition to the best available design, technology, and mitigation measures feasible. (Emphasis added.) See Oral Response No. 24 above. 28. The best available design to minimize intake mortality, we’ve only looked at a 50 MGD site --- or design. We haven’t looked at a 30 or a 20. CWC Section 13142.5(b) requires the Project to use “the best available site, design, technology, and mitigation measures feasible … to minimize the intake and mortality of all forms of marine life.” (Emphasis added.) Although not legally required, the Discharger conducted an analysis, in which it determined that 50 MGD of fresh water will be an economically viable enterprise and that smaller alternatives (25 MGD and 10 MGD) were infeasible and did not meet project objectives. The Department of Water Resources 2006 Water Plan Update indicates the Project will produce about 10% of the desalinated water needed in California by 2030, and the Metropolitan Water District of Southern California identified a need for 150,000 AFY of desalinated water to ensure regional reliability, including 56,000 AFY from the Project. 29. We’ve invalidated all of the alternative intakes that could be done here in Carlsbad, because they don’t meet the criteria for producing 50 MGD. The EIR prepared for the CDP included an analysis of the feasibility and environmental impact of several types of alternative intake systems pursuant to the Modified Intake Design Alternative. The EIR concluded that the use of horizontal wells, vertical beach wells, and infiltration galleries in lieu of the project’s proposed use of the power plant intake system was either infeasible and/or had greater environmental impacts than the proposed project. Project EIR at Section 6.3, cited by Coastal Commission in Final Adopted Findings – Coastal Development Permit Application E-06-013, Approved August 6, 2008, at 48. The Coastal Commission reached a similar conclusion, finding “that the substantial weight of the evidence is that subsurface intakes are an infeasible alternative” because (1) “the proposed alternatives would result in greater environmental impacts than the proposed project due to destruction of
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 191 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE coastal habitat from construction of the intake systems, the loss of public use of coastal land due to numerous intake collector wells that would be located on the beach, and the adverse environmental impacts to coastal resources during construction, including but not limited to the creation of negative traffic, noise, and air pollution impacts”; and (2) of “site-specific geologic and/or water quality conditions, which render the water untreatable, and the increased and prohibitive.” Final Adopted Findings – Coastal Development Permit Application E-06-013, Approved August 6, 2008, at 51. Chapter 4.2 of the revised Minimization Plan contains a detailed hydrogeologic review evaluating the feasibility of subsurface intakes in the vicinity of the proposed desalination plant. This site-specific review demonstrates that subsurface intakes (e.g., beach wells, slant wells, horizontal wells, and filtration galleries) are not feasible due to (1) limited production capacity of the subsurface geological formation, (2) insufficient sediment depths in the vicinity of the site, and (3) poor water quality of the collected source water. A sub-seafloor intake would require new construction, with associated environmental and economic costs, because such a system does not currently exist at the EPS site. Reuse of the EPS intake avoids new construction and provides for beneficial reuse of EPS’s discharge water in when in co-location mode for CDP benefit. While the comment suggests without factual basis that it was feasible to downsize the proposed project, this has been proven not to be the case. In response to Commenter’s suggestion that the size of the CDP should be reduced to accommodate alternative intake structures, the EIR evaluated a “reduced project capacity” alternative, which “would consist of a desalination facility with a maximum product water output of 25 MGD, or half that of the proposed project.” The EIR determined that “this project would not provide sufficient production capacity to meet planned water supplies for seawater desalination as a component of regional water supplies….” The Regional Board agrees that producing sufficient water to satisfy the City
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 192 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE of Carlsbad’s demand, the demand of other local agencies, and the Project’s planned contribution of desalinated water as a component of regional water supplies are key objectives that could not be met with a scaled down project. The Minimization Plan includes an analysis of the feasibility of the use of alternative subsurface intakes for the CDP, and based on this analysis, the Regional Board has determined that the alternative intakes that were evaluated are incapable of providing sufficient seawater to support the CDP. a. None of the subsurface intake systems considered (vertical wells, slant wells, or horizontal wells) can deliver the 304 MGD of seawater needed for environmentally safe operation of the CDP. The maximum capacity that could be delivered using subsurface intakes is 28,000 gpm (40 MGD), which is substantially below the needed intake flow. b. The quality of the water available from the subsurface intake (salinity twice that of seawater, excessive iron and high suspended solids) would be untreatable. c. The alternative subsurface intake systems were determined not to be the environmentally preferred alternative. Taking into account economic, environmental and technological factors, the alternative subsurface intakes are not capable of being accomplished in a successful manner within a reasonable period of time, and are infeasible. d. The Coastal Commission Findings approving the CDP’s coastal development permit concur with this conclusion: “[T]he Commission finds that the substantial weight of the evidence is that subsurface intakes are an infeasible alternative.” (See Coastal Commission Recommended Revised Findings Coastal Development Permit for Poseidon Carlsbad Desalination Project, page 62 of 133.) e. The Regional Board finds that each of these subsurface intake alternatives is infeasible based on each of these separate and independent reasons. Vertical beach intake wells are water collection systems drilled vertically to intercept a coastal aquifer. a. To meet the 304 MGD seawater demand of the project, 253 wells of a 1.5 MGD intake capacity each would have to be constructed along 7.2 miles of
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 193 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE coastline to collect and transport the water to the proposed desalination facility. Irrespective of the specific location of these vertical wells, the siting, construction and continued operation of 253 wells along 7.2 miles of coastline would result in significantly more environmental impacts, including, but not limited to, negative traffic, noise, and air pollution impacts for a period of two years during construction, and long-term disturbance of, and loss of public access to, the area occupied by the wells. b. The total cost of the implementation of a vertical well intake would be approximately $650 million. (See Minimization Plan, Attachment 2.) 17 c. The Regional Board finds that the installation of vertical beach wells is infeasible, and that such installation would also be infeasible even if the project were located at another site in coastal California. Separately, the site-specific conditions of the Project prevent the use of vertical beach intake wells, as the EPS site does not contain over seven miles of coastline to place the necessary number of wells to meet Project capacity. Horizontal wells are vertical wells that incorporate an additional series of horizontal collection arms extending into the coastal aquifer from a central collection caisson in which the source water is collected. a. Due to the limited diameter of the collection arms of the horizontal wells, the production rate is limited to 1,760 gpm (2.5 MGD) per well. The Dana Point Ocean Desalination Project test well confirmed this limited production rate by documenting a yield of 1,660 gpm (2.4 MGD) from a 12-inch diameter well in that location. b. Even assuming ideal conditions for this type of wells can exist elsewhere (i.e., each well could collect 5 MGD rather than the 2.5 MGD determined based on actual hydrogeological data), horizontal well intake construction would require the siting, installation and continued operation of a total of 76
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 194 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE horizontal wells, impacting a total length of coastal seashore of 4.3 miles and resulting in greater environmental impacts similar to those associated with the installation of vertical beach wells. c. The cost for construction of a horizontal well intake system for collection of 304 MGD of seawater needed for the desalination plant operation is estimated at $438 million. (See Minimization Plan, Attachment 2.) d. The Regional Board finds that the horizontal intake system is infeasible and that such installation would also be infeasible even if the project were located at another site in coastal California. Additionally, specifically within AHL, the limited width of the alluvial channel permits placement of approximately only 14 horizontal wells, for a total production rate of 28,000 gpm (40 MGD), significantly below the Project’s required production of 304 MGD. The horizontal intake system would require installation of nine large pump stations located on Tamarack State Beach, disrupting public access to marine and beach resources. A horizontal intake system is infeasible due to site-specific conditions as well. Slant-drilled wells are drilled at an angle from the beach or from further inland, with a perforated well casing that extends below the seafloor to intercept water from below the substrate. a. The use of slant wells is infeasible because pilot testing indicates that the quality of the water available from subsurface intakes would be so low as to be difficult, if not impossible, to treat due to salinity concentrations twice that of seawater, excessive iron, and high levels of suspended solids. b. Studies performed by the Discharger confirm that, at best, one slant well could provide only 5 percent of the water required by the Project. (See Poseidon Resources Corporation Transmittal of Analysis of Alternative Subsurface Seawater Intake Structures, Proposed Desalination Plant, Carlsbad, CA, Wiedlin & Associates (January 30, 2007), sent to California Coastal Commission February 2, 2007; Coastal Commission Findings
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 195 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE adopted August 6, 2008, page 49 of 106, and note 71. ) c. A recent study conducted by the Municipal Water District of Orange County (MWDOC) showed that slant-drilled wells could be used to draw in 30 MGD of seawater for a proposed desalination facility near Dana Point through the use of nine, 500-foot wells extending under the seafloor, each with buried submersible electric pumps. Relying on the results of this study, the Board finds that approximately ninety, 500-foot wells would be required to be installed along the coastline to supply 304 MGD. Regardless of Project location, many multiple slant wells would be needed to meet Project objectives. d. The Regional Board finds that this option is infeasible at any location in coastal California because it would disrupt public beach access and recreation and create greater environmental impacts and costs. e. The total construction costs for implementation of slant wells would exceed $410 million. This represents a significant 139 percent increase in construction costs for the Project, which not only would defeat the Project objective of providing affordable water supply to the San Diego Region, but would render the Project infeasible. (See Minimization Plan, Attachment 2.) An infiltration gallery consists of a series of perforated pipes that are placed in a trench dug on the seafloor, which is then backfilled with sand. a. To meet the source water intake feed rate of 304 MGD needed for the Project, 146 acres of ocean floor would need to be excavated to build a seabed intake system of adequate size, impacting three linear miles of sensitive nearshore hard bottom kelp forest habitat. b. The excavation of a 146-acre/3-mile-long strip of the ocean floor at depth of 15 feet in the surf zone to install a seabed filter system of adequate size to supply the CDP would result in a very significant impact on the benthic marine organisms in the excavated area. (See Poseidon Resources Corporation, 19 Additional Analysis of Submerged Seabed Intake Gallery,
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 196 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE October 8, 2007; Coastal Commission Findings Adopted August 6, 2008, pages 49 and 50 of 106, and note 73.) c. The Board finds that an infiltration gallery is infeasible and that such seawater intake system would also be infeasible even if the project were located at another site in coastal California. d. The cost for construction of subsurface seabed intake system for collection of the 304 MGD of seawater needed for the desalination plant operation is estimated at $647 million, 215 percent higher than the cost of the entire proposed Project. Such an increase in costs would render the Project infeasible. (See Minimization Plan, Attachment 2.) In addition, the subsurface seabed intake system would be infeasible due to site-specific geologic conditions at the City of Carlsbad. a. To collect the seawater from the filter bed and transfer it to the CDP, the intake system would require 76 collector pipelines on the ocean floor connected to pump stations that would be installed on Tamarack State Beach, which would limit public access to the beach for a period of 2 to 4 years, result in significant loss of recreational activities for the City of Carlsbad, and result in a permanent loss in public access and visual resources impacts where the collection wells are located. (See Poseidon Resources Corporation, Additional Analysis of Submerged Seabed Intake Gallery, October 8, 2007; Coastal Commission Findings adopted on August 6, 2008, page 50 of 106.) b. Excavation of a three-mile-long-by-400-feet-wide strip of seafloor will make this area of the ocean unavailable for recreational activities such as fishing and diving and will result in additional NOx and carbon dioxide gas emissions associated with operation of barges and platforms and equipment needed to excavate and remove the ocean shelf material over this vast area. (Id.) c. In order to secure consistent operation of the filter bed, this bed would need to be dredged every one to three years to remove the sediment and
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 197 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE entrained marine life that would accumulate in the intake filter bed and over time will plug the bed. The dredged material would need to be disposed away from the one-mile strip of the intake filter bed in order prevent the removed solids from returning to the area of the bed. This will not only result in frequent adverse impacts of the marine flora and fauna in the area but will also render the area unavailable for recreational activities during maintenance activities. (Id.) The Minimization Plan includes an analysis of whether the construction and operation of a new offshore intake to serve the seawater supply needs of the CDP would be a feasible alternative to the use of the existing EPS intake system. Based upon this evaluation, the Regional Board concludes that the construction and use of an offshore intake system would not reduce the frequency of dredging in AHL, would cause permanent construction-related impacts to the marine environment and would shift entrainment to a more sensitive area of the marine environment, which would affect a greater diversity of species. Use of an offshore intake system is infeasible and not the environmentally preferred alternative. Construction of an offshore intake system would render the Project infeasible due to a significant increase in project costs. (See Poseidon Resources Corporation, Analysis of Offshore Intakes, October 8, 2007 (including attachments); Comparative Analysis of Intake Flow Rate on Sand Influx Rates at Agua Hedionda Lagoon: Low-Flow vs. No-Flow Alternatives, Jenkins and Wysal, September 28, 2007; Coastal Commission Findings adopted August 6, 2008, page 51 of 106.) In addition, the Discharger evaluated a draft EIR commissioned by the State Lands Commission related to an AHL jetty extension project (Jetty EIR). Based on this evaluation, the Regional Board concludes that the Jetty EIR does not analyze the full extent of the biological impacts of installing a large diameter pipe 1000 feet offshore, which, depending on placement, would potentially destroy existing rocky reef outcroppings occurring offshore. (See Issues Related to the Use of the Agua Hedionda Inlet Jetty Extension EIR to Recommend An Alternative Seawater Intake for the Carlsbad Desalination Project, Graham, Le Page and Mayer, October 8, 2007.) In addition, the Jetty EIR did not evaluate the down-coast effects of an intake structure on habitat,
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 198 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE sand flow, or sedimentation. (See id.) Further, the Jetty EIR did not adequately evaluate entrainment and impingement impacts of an offshore intake. The Regional Board concludes that an offshore intake has the potential to affect a greater diversity of adult and juvenile organisms, as well as both phyto and zooplankton species, than the species currently impacted by the EPS’s existing intake. (Id.) The biofouling community of organisms that will take up residence in the intake pipe will consume virtually all of the entrained plankton. This has implications for the survival potential of organisms that can survive passage through the EPS. (Id.) 30. The best available technology and the best available mitigation measures, remember to minimize intake, because this is important when you consider the standard that Poseidon thinks applies to it. And I’m taking this straight from the letter that they submitted back in – on March 2nd, 2008, before that last approval, conditional approval. And it’s important because this was threaded through everything that they did. Look at what they talk about. They think 13142.5 says that you have to choose site design technology and mitigation to minimize the impacts to marine life. The Minimization Plan’s clear objective is to minimize intake and mortality of marine life by minimizing impingement and entrainment; the focus is not on “impacts.” The Plan satisfies CWC Section 13142.5(b) by specifically providing for the minimization of entrainment and impingement. The word “impacts” has occasionally been used to refer to entrainment and impingement. To the extent Commenter believes something beside entrainment and impingement is relevant, he has not provided any such information as to what that would be. 31. And you see they went into great detail to – to specify that their Marine Life Mitigation Plan at that point dealt with the best site to minimize impacts to marine life, the best design to minimize impacts. And so we have to ask ourselves, what’s the difference between minimize intake and minimize impact? It’s really a plain reading. It’s common sense. One, it’s the wrong standard. You’ve got to go by with what the statute actually says. The Minimization Plan’s objective is to minimize intake and mortality of marine life by minimizing impingement and entrainment; the focus is not on “impacts.” 32. 316(b) says on its face that you have to minimize adverse environmental impacts with respect to the location design, construction, and capacity of cooling water. CWA Section 316(b) does not apply to the Project. The appropriate legal standard for the CDP is CWC Section 13142.5(b).
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 199 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 33. 316(b) does not apply. The Regional Board agrees that CWA Section 316(b) does not apply to the CDP. The appropriate legal standard for the CDP is CWC Section 13142.5(b). 34. So the question we ask ourselves, why is Poseidon applying 316(b) standard, or language regarding impacts instead of intake when we all know that 13142.5 is the applicable standard. Neither the Regional Board nor the Minimization Plan is applying a CWA Section 316(b) standard to the CDP, and the Regional Board agrees that CWC Section 13142.5 is the applicable standard. The Minimization Plan’s objective is to minimize intake and mortality of marine life by minimizing impingement and entrainment; the focus is not on “impacts.” To the extent Commenter asserts a distinction between “impacts” and “intake and mortality,” the Commenter has provided no information to support the distinction, which appears to be argument only. 35. [T]he problem is that liberal construction of 316(b) no longer exists. The idea that a technology forcing statute in the Clean Water Act could be read to allow you to have the impact and then go mitigate elsewhere, it’s been turned on its head by the Riverkeeper case The comment discusses an “idea” that has no relevance under CWC Section 13142.5(b), which, in contrast to CWA Section 316(b), specifically identifies mitigation as an approach to minimize intake and mortality. The comment arises from CWA Section 316(b), which does not apply to the CDP. To the extent that Commenter is criticizing the inclusion of mitigation measures in the Minimization Plan or MLMP, that criticism is unfounded because CWC Section 13142.5(b) specifically requires the use of the best available and feasible mitigation measures (as well as the best available feasible site, design, and technology). As a factual matter, unlike the restoration at issue in the Riverkeeper cases, the Minimization Plan does not call for the use of mitigation in lieu of, or as a, technology. Rather, the Minimization Plan provides for the use of the best available mitigation feasible in addition to best available, site, design and technology measures. 36. Now, we will agree, 316(b) doesn't apply. The Regional Board agrees that CWA Section 316(b) does not apply to the CDP. The appropriate legal standard for the CDP is CWC Section 13142.5(b).
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 200 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 37. But the important thing to realize is even using the liberal standard as Poseidon interprets it, the courts have said that doesn't fly. CWA Section 316(b) has not been applied in this situation. The comment does not explain what it means by “liberal standard,” and this comment is vague and ambiguous. The Minimization Plan reflects the appropriate standard of CWC Section 13142.5(b). 38. And your own State Water Resources Control Board, in a document last year, or maybe a year and a half ago, the scoping document on once-through cooling addresses there is a very concrete distinction between minimizing intake and minimizing impacts. You have to cross that threshold. You have to do the analysis. To the extent Commenter is referring to the scoping document released by the State Board in March 2008 entitled, “Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling,” it is worth noting that such document dealt with the proposed development of a state policy for water quality control to establish requirements for implementing CWA Section 316(b) for existing coastal and estuarine power plants. CWA Section 316(b) does not provide the legally applicable standard for the CDP. It also should be noted that a scoping document is not a policy but a working document that does not necessarily result in a mandate. The Minimization Plan’s objective is to minimize intake and mortality of marine life by minimizing impingement and entrainment; the focus is not on “impacts.” 39. Now, we're seeing in our legal briefing, where the Coastal Commission is kind of juggling and trying to say, "Well, we impliedly kind of did this already.” But I ask you, look in your packets, and tell me where you see the minimization of intake spotlighted with respect to site design, technology and mitigation measures. The Coastal Commission did a comprehensive analysis of Project-related entrainment before approving the MLMP. This is among the tasks the Regional Board is being asked to do under CWC Section 13142.5(b) when evaluating whether the Minimization Plan provides for the minimization of intake and mortality of marine life. The Minimization Plan comprehensively details how all four elements required by CWC Section 13142.5(b) to be considered – site, design, technology, and mitigation – will be used to minimize intake and mortality. 40. The fact of the matter is it's a more restrictive standard, and it applies before the impact takes place. It just hasn't been addressed. It hasn't been appropriately considered. And until it gets done, it's a fatal flaw that frankly, it is fatal. This comment is unclear. The Minimization Plan’s objective is to minimize intake and mortality of marine life by minimizing impingement and entrainment; the focus is not on “impacts.” 41. Remember, all of these power plants, they're doing their mitigation. Look at the Southern California Edison mitigation The success of SCE’s mitigation for the San Onofre Nuclear Generating Station to which Commenter refers is well-documented. The MLMP’s strict
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 201 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE upon which the Applicant is relying. It's a big off-site mitigation. It's 30 years after they started operating. Are we going to wait that long to see a successful mitigation? And we don't even know if that's successful, because frankly, it's not fully constructed yet or operational. performance standards and success criteria were developed during the interagency process at the direction of the Coastal Commission using this successful mitigation project as a model. The determination to adopt such standards as part of the MLMP was strongly supported by Coastal Commission staff through the MLMP approval process. The success of the Project’s mitigation is assured because Discharger must comply with these standards, which will be enforced by the Coastal Commission and the Regional Board. The MLMP’s strict performance criteria are enforceable by the Regional Board and the Coastal Commission. The Regional Board’s Executive Officer has the authority to impose remedial measures if the wetland mitigation does not meet performance criteria. To the extent Commenter is suggesting that the CDP will be operating for 30 years before the mitigation site is constructed, that is incorrect. The CDP has not yet been constructed, is not currently operating, and is not currently resulting in any intake or mortality of marine life. The MLMP requires the Discharger to submit a coastal development permit application for Phase I of the proposed wetlands within two years of issuance of the Project’s coastal development permit. To the extent Phase II is necessary, the MLMP requires the Discharger to submit a complete coastal development permit within five years of the issuance of the Phase I permit. These requirements ensure that the proposed wetlands will be designed and implemented as the CDP is under construction and will be developed in the early years of CDP operation. Further, the mitigation required is sufficient to fully offset impingement and entrainment associated with stand-alone operations, even though it is unknown if/when the Project will operate in such a mode. 2. Testimony of Conner Everts Representing Desal Response Group 42. Water conservation and reclamation are better strategies to address drought, and will force the state to deal with a response to how we use and waste water. Comment does not prompt a specific response. To the extent Commenter makes arguments concerning broad planning goals or policies, such comments are generally beyond the scope of the Regional Board’s review of the Minimization Plan. The CDP has, however, undergone extensive environmental review by several resource agencies in addition to the Regional Board, including the City of Carlsbad, the Coastal Commission, and the State Lands Commission. The City of Carlsbad in its EIR and review of the project specifically examined alternatives to the project involving greater
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 202 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE levels of conservation, reuse of sewage by reclamation and other water reclamation, and concluded that those alternatives were not feasible. The City’s analysis and conclusions on this issue are incorporated by reference into this response. 43. (a) If you put a shovel in the ground today, which isn't going to happen, on the desal plant, it won't be a reaction to the immediate situation, regulatory, and hydrological conditions we face. But that will force us all across the state to deal, as we have in the past, with a response to how we use and waste water. My background includes being Chair of the California Urban Water Conservation Council and Drought Coordinator for the City of Pasadena, where we saved percent. Since then, the technologies have improved, and we've moved to the outdoor landscape. There's a lot more to do, recycling, especially regionally is still a big issue on the table here. But obviously, there's a lot more to do statewide as we continue to discharge treated waste water. I was on the State Water Resource Control Board Stakeholder Process. We've just established, finally, guidelines on recycled water. So there's a lot of opportunity there. But today we're not talking about those issues. And it is, again, very emotional for people to say they need water, and that they may be cut back. You know, we just went though a period where we had a lot of rain. We could have captured more if we had those programs in place and dealt with less pollution going to the ocean. So given all that, I support the staff report to go back, at least until April, and to take a deeper look at this. (b) My background includes working on this issue for the late '80s. My original boss, many years ago, went on to be a City Manager, got his Ph.D. in Florida. He ended up being (a) Comment does not prompt a specific response. (b) Comment does not prompt a specific response.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 203 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE the General Manager of the Tampa Bay Water Authority, Gerry Maxwell. He was going to retire when that job was done. He didn't get to retire for a long, long time. As you've heard, they've had problems with it. You cannot assume that this will be -- not a project since it's the first on the Pacific Coast in colder water, and the largest in the western hemisphere, it might take a while to iron out. So the idea that this is immediate response is wrong. 3. Testimony of Ed Kimura Representing Sierra Club San Diego Chapter 44. The Marine Life Mitigation Plan fails to comply with the conditions of the resolution. The Regional Board’s May 13, 2009 action would supersede the resolution. The MLMP fully complies with the conditions within Resolution R9-2008-0039 (the April Resolution), as well as with Order No. R9-2006-0065 (2006 Permit) and CWC Section 13142.5(b). The MLMP includes a specific proposal for mitigation of impingement and entrainment as required by Section VI.C.2(e) of Order No. R9-2006-0065. Under the terms of the MLMP, the Discharger shall create or restore up to 55.4 acres of estuarine wetlands at up to two restoration sites. Consistent with the April Resolution, the Discharger submitted eleven specific mitigation sites determined during the interagency process and submitted a specific proposal for mitigation at these identified sites. The final restoration site(s) will be selected according to strict minimum standards and objectives specifically identified in Sections 3.1 and 3.2 of the MLMP, respectively, and final selection will be subject to review and approval by the Regional Board and Coastal Commission. The success of the selected restoration site(s) will be evaluated according to specifically enumerated performance standards and criteria. 45. I also believe that the design of the MLMP is flawed because it fails to apply an ecosystem-based approach. See Oral Response No. 17 above regarding an ecosystem-based approach. 46. Now, a marine ecosystem is a dynamic complex of plants, animals, microbes, and physical environmental features that interact with each other. I have seen no overt evidence that Comment noted as to the dynamic and complex nature of an ecosystem. The proposed mitigation wetlands will contain dynamic and complex
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 204 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE these complex interactions have been addressed in the MLMP. ecosystems themselves. The MLMP provides for the restoration or creation of up to 55.4 acres of wetlands habitat, containing ecosystem services with complex interactions. These complex interactions are ensured as the Discharger is required to demonstrate the performance of the restored or created wetlands by comparison with healthy reference wetlands, which also contain complex interactions. 47. Let me cite two examples where this mitigation plan -- excuse me, fails to apply the ecosystems-based approach. One example is a vital role of the benthic community in the Marine ecosystem. No sediment quality data or benthic monitoring data for initial or within the Agua Hedionda Lagoon have been presented, or from local sites that are not impacted by the once-through cooling plant. These data are essential in selecting a restoration site. See Oral Response No. 17 regarding an ecosystem-based approach. The comment does not address how the EPS intakes are impacting, or the proposed CDP will impact, sediment quality or the benthic community in Agua Hedionda Lagoon. CWC Section 13142.5(b) requires the Discharger to minimize intake and mortality of all forms of marine life. The comment does not address how the CDP will result in the intake or mortality of the benthic community, or affect sediment quality, and the allegation that the CDP will cause such effects is speculative and without foundation. Any impacts of the CDP discharge on sediment quality and the benthic community should have been raised in 2006 when the CDP’s NPDES permit was issued and the potential impacts of the discharge on the marine environment were considered. Comments regarding such issues are not relevant to this proceeding, and have been waived. Commenter has failed to exhaust its administrative remedies with respect to such points. With regard to the mitigation sites, sediment quality data and benthic monitoring data are addressed implicitly by the MLMP. Rigorous biological performance standards and monitoring provisions contained in the MLMP ensure that the mitigation wetlands must satisfy a number of biodiversity benchmarks. As the mitigation wetlands are to function according to these benchmarks, they necessarily will contain non-toxic sediment with contaminant concentrations that is capable of sustaining a sufficient richness of benthic macro-invertebrate and vegetative species. If the quality of the sediment were to fall below appropriate levels, the sediment would no longer support vegetation and animal communities to the degree required by the biological performance standards. Any such deterioration would be observed
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 205 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE by the monitoring program and remediation would be implemented to ensure compliance with the terms of the MLMP. 48. And another important factor is the connectivity that exists between and among the ecosystems provided by currents transporting larvae from one part of the ecosystem to another. Understanding this is a very complex connection is particularly important to select a restoration site that's productive and successfully offsets the entrainment losses caused by the desalinization project. The MLMP makes no assumption about genetic populations, and does not assume genetic sameness of larvae including invertebrates at Agua Hedionda Lagoon and the eleven specific sites identified in the MLMP. These concepts are offered by Commenter without reference to legal requirements and appear to be scientific principles or theories, without specific tie in to compensatory mitigation under legal requirements. Commenter appears to assume that the purpose of mitigation is to create or restore wetlands that will spawn larvae that somehow will find their way back to Agua Hedionda Lagoon. It is not likely that larvae of common lagoon species could be spawned at some location away from Agua Hedionda Lagoon and survive the journey back to Agua Hedionda Lagoon. The requirement being imposed is to compensate by returning a like amount that is lost due to entrainment, but not to also ensure that these larvae make their way back to Agua Hedionda Lagoon. Therefore, Regional Board disagrees that larvae dispersal information at a reference area is necessary, or even relevant to mitigation. Natural bays and estuaries in California function in the classical sense of serving as spawning and nursery areas for coastal fishes (Michael Horn. 1980. Diversity and Ecological roles of noncommercial fishes in California marine habitats. CalCOFI rep. Vol. XXI, 1980.). These systems support a unique fish assemblage composed of low trophic level species (Horn 1980; Allen 1982). Many of these species are truly estuarine dependent, living their entire life cycles within the estuary. Based on larval surveys, the most abundant bay-estuarine fish are gobies (Horn 1980). Gobies attach their eggs to the walls of the burrows in which they live. Their eggs are not pelagic and are not transported from one wetland to another via ocean currents. The larvae hatch, metamorphose and mature within the estuary. Tidal translocation of goby larvae to the near-shore environment has been postulated as one of the primary sources of mortality for this species (Brothers 1975). Those transported out of the estuary frequently do not
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 206 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE survive. Thus, connectivity between disparate wetland systems within the region with regards to eggs or larvae of the dominant estuarine fish taxa is not anticipated. Connectivity between a restored estuarine wetland and an existing wetland is important for successful colonization by estuarine dependent species. Such connectivity is assured through the requirement that the Discharger’s mitigation site be located at an existing estuarine wetland. The MLMP’s physical and biological performance standards will measure the success of the proposed wetlands in relation to other reference sites, “which shall be relatively undisturbed, natural tidal wetlands in the southern California Bight.” In the event that the mitigation site’s location does not allow for sufficient larval dispersion or population connectivity, the wetlands would not conform with these other reference sites. This would require the Discharger to conduct remediation in order to bring the wetlands in compliance with the terms of the MLMP. 49. The MLMP proposes to select a restoration site located somewhere within the Southern California Bight. This is a coastal region covering over 450 kilometers from the Mexican border to Point Conception. It apparently assumes an essential requirement for the site, that the members of the larval pool from the Carlsbad site have been dispersed over time throughout this region. See Oral Response No. 48 above. The MLMP establishes a rigorous process to ensure the mitigation wetlands are sited in the best possible feasible location in proximity to the Agua Hedionda Lagoon. Section 3.2 of the MLMP provides that, to the extent feasible, the Discharger must select “site(s) in proximity to the Carlsbad desalination facility.” The revised Minimization Plan provides that “[s]ites located within the boundaries of the Regional Water Quality Control Board, San Diego Region, shall be considered priority sites. If the Discharger proposes one or more mitigation sites outside of these boundaries, it first shall demonstrate to the Board that the corresponding mitigation could not feasibly be implemented within the boundaries, such as when the criteria established in Section 3.0 of the MLMP [providing site criteria] are not satisfied.” See Minimization Plan, Section 6.6 (see chart), March 9, 2009. The selection of the restoration site(s) will be reviewed and approved by an interagency team of scientists. The fact that the selected site(s) may not be located directly in Agua Hedionda Lagoon does not undermine the ecological
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 207 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE value of the mitigation site(s). 50. Now, this assumption is highly questionable, based on a very scientific important paper that just came out in January of this -- this year, of the Annual Review of Marine Science, authored by University of Miami scientists, Cowen and Sponaugle, entitled, "Larval Dispersion and Marine Population Connectivity." The paper provides a current overview -- an overview of the current scientific knowledge of this subject. The authors state that a full understanding of the population connectivity has important applications for management and conservation. See Oral Response No. 48 above. 51. One important piece of information in the paper is that it dispels the notion that local larval marine populations can be formed from all potential sources and mixed together into a single pool over hundreds to thousands of kilometers. See Oral Response No. 48 above. Mitigation under CWC Section 13142.5(b) does not require specification of conditions with respect to larval pools, larval pool formation, and the distances over which larval pools may or may not be formed. No such conditions have been incorporated into the Tentative Order or the Minimization Plan. The comment does not offer any such conditions, or explain how any such conditions might be relevant to a legally compliant mitigation plan under CWC Section 13142.5(b). 52. The authors note that there is now ample evidence that the dispersion distances can vary from just tens to hundreds of kilometers. See Oral Response No. 48 above. The comment does not take issue with any specific dispersion distances assumed or used in the Minimization Plan or its underlying studies. The Empirical Transport Model includes an input variable for the dispersion distance of entrained larvae, which can be up to tens of kilometers depending on the speed of ocean currents. In this context, the transport of entrained Agua Hedionda Lagoon fish larvae is discussed thoroughly in the final EPS Impingement Mortality and Entrainment Characterization Study for each of the commonly entrained lagoon species (i.e., gobies, blennies, garibaldi).
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 208 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 53. So it's really clear to me that the MLMP does not apply to integrated ecosystems-based approach in assessing and mitigating the impacts of the desalinization project, and therefore it's fundamentally flawed. See Oral Response No. 17 above. 4. Testimony of Jim Peugh Representing San Diego Audubon Society 54. Without a detailed mitigation plan you have absolutely no way of knowing whether the resulting mitigation project can or will satisfy these performance standards, and actually offset the project’s significant environmental impacts. The Discharger is required to prepare a detailed Restoration Plan prior to construction of the planned wetlands. The MLMP provides for a multi-phase process that begins with an initial approval of the project and then proceeds to the development and consideration of a highly detailed Restoration Plan. This multi-phase process is modeled after SCE’s successful San Dieguito Restoration Project. Before restoring the wetlands in Del Mar’s San Dieguito Lagoon, SCE developed a highly-detailed, Final Restoration Plan that included the elements specified in SCE’s coastal development permit. Within two years of receipt of its own coastal development permit, the Discharger will submit a similar type of document for review and approval by the Regional Board and Coastal Commission, as required by Condition A of the MLMP. The performance standards of the MLMP are stringent and rigorous, requiring that the restored wetlands support biological populations, including vascular plants and algae, fish, macrobenthic invertebrates, birds, and food chain support that are 95% similar to the same populations at up to four reference wetlands. The performance standards require the distribution of habitats in the restored wetlands and their relative elevation do not vary substantially. This approach was approved by the Coastal Commission. The Regional Board and the Coastal Commission are authorized to determine project success or failure, based on the MLMP’s rigorous performance standards, and have the authority to order remediation in the event the rigorous performance criteria are not met. Commenter implies that the mitigation plans include some uncertainties. This is not unusual and is well accounted for in the MLMP. Nonetheless, wetlands restoration, including restoration as mitigation and restoration for the sake of restoration, is a high priority among resource managers and local, state, and regional governments. The key to addressing this uncertainty rests in
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 209 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE establishing rigorous performance standards that must be satisfied. By imposing such standards, the Coastal Commission has determined there is a high degree of scientific confidence that the required restoration will succeed. The MLMP’s performance standards and success criteria were developed during the interagency process at the direction of the Coastal Commission using the successful SCE mitigation project for the San Onofre Nuclear Generating Station as a model. The success of the Project’s mitigation is assured because Discharger must comply with these standards, which will be enforced by the Coastal Commission and the Regional Board. 55. You need the specifics. You need the time to analyze it. You need the resources to analyze it, which is a tough time right now with cutbacks. The Regional Board has spent considerable time and resources reviewing and analyzing the Minimization Plan and the MLMP. Consistent with the Regional Board's directive, the Discharger engaged in a months-long interagency process to develop the mitigation proposal, the MLMP, now incorporated in the Minimization Plan as Part A of Chapter 6. A stakeholder meeting was held on May 1, 2008, which included, among others, staff and experts from the Coastal Commission, the Regional Board, State Lands Commission, California Department of Fish & Game, and the National Marine Fisheries Service. After this interagency coordination and receipt of substantial public comment, the MLMP was approved by the Coastal Commission on August 6, 2008. Following the Coastal Commission’s action, on February 11, 2009 and April 8, 2009, the Regional Board considered the MLMP and the Minimization Plan. The Regional Board will again consider the Minimization Plan on May 13, 2009. 56. Richard Ambrose, Professor Richard Ambrose of UCLA has done research and discovered a large percentage of the wetland mitigation projects in our region have not satisfied their performance requirements. Our region's wildlife continues to suffer from their underperformance. It would be nice if wetland restoration was as straightforward as building with Legos, but it's not. The Regional Board has noted the comment, which is general in nature rather than specific to the CDP and thus does not require a specific response. 57. To be really effective, a wetland project must soon become The performance standards adopted by the Coastal Commission include a
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 210 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE self-sufficient and self-sustaining. That takes a -- has a lot of things that -- a lot of things have to happen to make that -- that work out. requirement that the biological communities of the restored site be 95% similar to up to four reference sites for at least 3 consecutive years. Only a self-sustaining site could meet this stringent standard. Dr. John Teal, scientist emeritus at the Woods Hole Oceanographic Institution, summarized the steps necessary for successful wetlands Restoration Plan. (Wetland Restoration Success, Appendix G Attachment G-2, Public Service Electric and Gas Company Renewal Application, Salem Generation Station, Permit No. NJ0005622, March 4, 1999.) Restoration of degraded estuarine marshes has the greatest probability of success when the right lands are selected, the right design is implemented, and the right follow-up is pursued. The selected lands should be former salt marshes with elevations, groundwater and tide relationships appropriate for restoration. Plant propagules and animals should be present in neighboring marshes in order to populate the restored marsh. Sediments with the appropriate organic content should be confirmed. The restoration design should be based on ecological engineering which is an integrated approach to environmental management that assures that restoration takes the most natural path, the path most likely to be stable into the future. The restoration should incorporate adaptive management that provides a framework for identifying and implementing actions necessary to keep the restoration on track. All of these steps will be taken. The Coastal Commission has determined that restoration or creation must take place at one of 11 existing wetlands, thereby providing a high degree of certainty that the area was a former marsh, that the appropriate soils are present, that tidal and groundwater relationships are favorable, and that plant and animal propagules are present. Adaptive management is an important aspect of any restoration or creation and will be incorporated into the Restoration Plan. 58. The natural wetlands have had hundreds of thousands of years for these things to work out. But when you're restoring one, it doesn't -- you have to make sure the hydrology is totally appropriate, and that in a time where our climate is changing and our sea level is rising. So there's a lot of The MLMP builds on well-established, scientific methods for developing viable wetlands mitigation. The MLMP requires a wide range of performance standards that must be met to ensure the effectiveness and longevity of the mitigation area.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 211 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE uncertainties to shoot for. The potential for climate change and sea level rise will be addressed in the Restoration Plan. Coastal Commission scientists are actively involved in analyzing potential sea level rise scenarios. 59. The inputs and outputs of sediments must be totally appropriate in terms of amplitude, particle size, and seasonal variation. While the sediment of the restored wetland must be appropriate to support the plants and animals that inhabit these habitats, there is no scientific method for determining a priori the degree of detail that the Commenter describes. Many scientists examine sediment characteristics in support of wetland restoration projects. Hydrologists model sediment movement through a wetland system and geologists examine grain size and possible contaminants. Similar analyses will be conducted in support of the site selected by the Discharger. However, the variation of amplitude and particle size can be modeled only in relation to predicted tides and selected flood events and not predicted to the degree stated. To a large degree, sediment suitability must be measured indirectly through the development of the marsh and algal canopies and benthic invertebrate populations. The MLMP includes performance standards for these components of the restored marsh. 60. Nutrient flows into, within, and out of the project must be totally appropriate or it won't work.” Implicit in the Restoration Planning approach is the obligation to produce a healthy functioning wetlands from a nutrient and sediment perspective. Proper nutrient levels can be inferred through plant canopy development and animal populations. The performance standards are a proxy for a healthy, functioning wetlands, which necessarily require appropriate nutrient flows. 61. The project must be so healthy that it will eventually inherently resist invasion of species. There are a lot of other effects. The assertion that the restored site must “inherently resist” invasion of such species puts forth a standard that is not feasible, and it ignores the adaptive management needed to deal with such species. Natural systems have not been shown to have sufficient inherent resistance to prevent the spread of such species; holding the Discharger to such a quixotic standard is therefore unrealistic. The performance standards ensure the mitigation area will be a self-sustaining system, which will facilitate its ability to resist invasive species.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 212 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE However, there are virtually no wetlands in southern California that are not subject to invasive species to some extent. This includes successful, healthy wetlands that may be used as reference sites, such as Tijuana Estuary. It is acknowledged by resource managers that active control of exotic species is required. The MLMP states that exotics shall not impair important functions of the restored site. To the extent that exotic species occur at the restoration site, the appropriate control method will be determined by the Regional Board and the Coastal Commission. 62. It has -- it has -- as Ed mentioned, it has to have access to larvae and seeds from other sites, so if something happens on this site, that it can be recovered over time. The Regional Board agrees that restored site must have access to larvae and seeds. The restoration must occur at one of 11 existing southern California coastal wetlands. The final site will be a part of a larger, functioning wetland and will be connected hydraulically to both the existing wetland and the ocean, by which reproductive propagules, including ichthyplankton and plant seed, will be dispersed. The proposed wetland is being built to compensate for larvae entrained and fish impinged at Agua Hedionda Lagoon. Larvae production is measured indirectly, consistent with the ETM model, through the establishment of the plants and animals required under the MLMP. 63. As people love to say, the devil is in the details. It will take a lot of review and analysis of specifics to assess whether this -- whether their specified project has a chance to satisfy its goals. But you won't even see the project until after you make these improvements. You have no way, and your staff has no way of making these assessments to figure out whether the mitigation is feasible. A Restoration Plan will be prepared after approval of the MLMP to ensure that the mitigation project meets the performance standards.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 213 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE PUBLIC TESTIMONY RECEIVED APRIL 8, 2009 1. Testimony of Marco Gonzalez Representing San Diego Coastkeeper and Surfrider 64. The Marine Life Mitigation Plan Feasibility Analysis regarding the five sites that you asked them to come back with has not been done. On February 11, 2009, the Regional Board identified a list of outstanding items concerning the March 6, 2008 Minimization Plan, including: (1) Reducing the number of [potential mitigation] sites to five, in consultation with the Coastal Commission, with the existing proviso that other sites within the Regional Board boundaries could be added; (2) Poseidon to provide a consolidated set of all requirements imposed to date by the various agencies. As show in this item 2, the Regional Board required only that the Discharger reduce the number of potential mitigation sites to five; it did not order the Discharger to conduct a “feasibility analysis” regarding the five sites, as Commenter asserts. In Chapter 6 of the revised March 27, 2009 Minimization Plan, the Discharger, in consultation with the Regional Board, identified 11 sites, considering the five sites within the boundaries of the Regional Board as priority sites. The Discharger complied with the Regional Board’s request. 65. We think that there are specific performance criteria that need to be discussed for these sites that might make up the mitigation plan eventually. We think without them that we can’t be assured that the wetlands restoration or creation is actually feasible. The MLMP provides strict performance criteria, which are enforceable by the Regional Board and the Coastal Commission. 66. We think that additional data collection assessment is probably necessary and supported by the record. Commenter does not identify which data are lacking. Sufficient data in the record has been submitted by the Discharger and Commenters so as to allow the Regional Board to appropriately assess the CDP’s compliance with CWC Section 13142.5(b).
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 214 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 67. We think that the Water Code Section 13142.5 Site Alternative Feasibility Analysis for a stand-alone project has not been done and therefore you cannot approve this as a stand-alone project. The Regional Board is not considering operation of the CDP in stand alone operation. Submission of a new report of waste discharge is required when the EPS is permanently shut down for production of power. 68. While we know that it is specifically put forth by staff as a co-located project, we also know that Poseidon wants it essentially to be approved as a stand-alone project. We’d like to just draw some attention to, not to be pejorative, but the idiocy of approving the project as a co-located project without looking at the stand-alone implications of it to taxpayers and the ecology. See Oral Response No. 67 above. 69. We implore you to believe your staff. There is no nefarious plan afoot for them to undermine science and good policy with respect to water supply — they are just doing their job. Believe Dr. Raimondi. He was referred to by Poseidon as a consultant of the Board. While they referred to their own paid Dr. Jenkins as an independent reviewer. This is just isn’t true. Dr. Raimondi is an independent third party reviewer just like he was at the Coastal Commission. He was paid for by Poseidon, not by the state and you should listen to his conclusions. Comment noted that the commenter is urging the Regional Board to adopt Dr. Raimondi’s assessment of impingement, reflected in his April 1, 2009 statement. Regional Board staff requested that Dr. Raimondi conduct this assessment. 70. Just acknowledge how dysfunctional this process was. This is a precedent setting project which hopefully does not result in a precedent setting process because this is just horrible in terms of the Water Code's desire that the public have an opportunity to be involved in a meaningful way. And I think we see that based on the fact that we are having such in-depth scientific discussion and at what should be one of the final hearings. The characterization of the process as “dysfunctional” and “horrible” is unfounded. The proceedings have been deliberative, with hours of public hearing, in addition to ample public comment periods. The Regional Board granted significant procedural safeguards to the public, including the environmental groups and other interested persons, by providing ample opportunity to submit written comments and present oral testimony at the hearings. In-depth scientific discussion is a sign of a vigorous and open public process. The Regional Board appreciates Commenter’s participation, and has taken all input received into account.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 215 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 71. One of the things to remember is that you only get to compensatory mitigation after you have minimized marine life mortality. We keep putting this out there and we’re glad that finally the staff and Poseidon are talking about meeting the correct standard. Before they said it’s all about what is the impacts of marine life mortality. That’s very different than minimizing marine life mortality up front. It is important to know that the viability of this MLMP is really a secondary question to whether all of the site, design and technology issues have been addressed with respect to minimizing marine life mortality. To the extent the Commenter suggests that CWC Section 13142.5(b) requires minimizing intake and mortality prior to mitigation, he is incorrect. CWC Section 13142.5(b) requires the use of the best available mitigation measures feasible in order to minimize the intake and mortality of all forms of marine life. The best available mitigation feasible is part of a comprehensive effort, together with the best available site, design, and technology feasible, to minimize intake and mortality. The statute, therefore, does not require minimization first followed by mitigation. To the extent that Commenter is suggesting Discharger is applying “after the fact” mitigation, see Oral Response No. 8 above. 72. Back in February, Poseidon was told … limit your sites to five. Give us more information such that we can come back and assess what are the likely five sites instead of just eleven. What did you get in response to that? We’ll try our best to do the five that are in San Diego. I don’t think that’s what was contemplated. I don’t think that what was directed. It certainly doesn’t make much sense for them to go back and simply insert a sentence that says we’ll give priority to the San Diego sites. The idea was we needed to ratchet down from the 11 sites proposed in the MLMP and focus in on five that would provide the most likely opportunities to meet the mitigation standards that we need in order to address the impacts that this project will cause. I’m frankly blown away that they didn’t give us more information about the highest five likely candidate sites. The Minimization Plan describes the 11 pre-approved sites identified in the MLMP in detail and provides that the five sites within the boundaries of the Regional Board are priority sites. This amendment to the Minimization Plan complies with the directive set at the February 11, 2009 hearing. See Regional Board Staff Report: Review of Poseidon’s Flow Entrainment and Impingement Minimization Plan Dated March 9, 2009, p. 5. March 27, 2009. 73. a. One of the things that has been important in terms of our perspective on the feasibility of the marine life mitigation plan is that the data all say that you can’t know, first of all, that what was creation or restoration will work. We could have tons of evidence in the record to show that every study that has even done to go and look at overall how successful litigations events have been have shown that we don’t a. See Oral Response No. 54 for a discussion of the Restoration Plan that will be prepared after approval of the MLMP to ensure that the mitigation project meets the performance standards. The MLMP’s incorporates strict, measurable performance standards that are enforceable by the Regional Board and the Coastal Commission. b. Commenter provides no factual basis upon which to support the allegation
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 216 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE achieve the structure and function that we think we’re going to or that we actually need to mitigate the loss impacts or the impacts that were impacting. Specifically salt marsh in San Diego, we have evidence in the records that says it’s very difficult to achieve the perfect wetland that frankly is being paraded in front of you. All of these promises that the Marine Life Mitigation Plan will result in this somehow pristine wetland and upon completion. It’s frankly now borne out by any of the signs so frankly Mr. Nordby worked on some of those projects in the past. b. We know that it is very, very difficult and even the San Dieguito restoration project is very far from having been proven as a successful mitigation site. c. We take the position that without site specific criteria with respect to what you are going to achieve at this mitigation sites it’s impossible for you to say that, that Marine Life Marine Plan Mitigation Plan actually accomplishes the goals and the requirements of club. d. One of the things that’s important for Poseidon to realize and that you should emphasize in your consideration is that by having the true up that Mr. Garrett and Mr. Singarella talked about where they would go back and essentially ensure that a failing wetland would not mark the end of their mitigation obligation but rather that they would have to come back and do whatever extra it might take for them to achieve the prescribed performance that’s being laid out today. Number of drew up discussion. Well, first of all, that’s a blank check and they need to know that and that their investors need to know that. Given that there isn’t any evidence in the record to suggest that you can successfully create a wetland the way that they are claiming they can, they have to know that the 20 to 30 million dollars they may that the San Dieguito restoration project is very far from having been proven as a successful mitigation site. The administrative record indicates otherwise. Public commentators remarking on the San Dieguito Wetland Restoration Project have called the plan “a fabulous project” which has been “very carefully designed.” James Steinberg, Forward, Marsh, San Diego Union-Tribune, March 19, 2006 (quoting Craig Adams, executive director of the San Dieguito Valley Conservancy). SCE and local media have both documented that the San Dieguito Wetland Restoration Project has completed several key milestones in the overall completion of the 150-acre restoration project. See Southern California Edison, San Dieguito Lagoon Restoration (available at http://www.sce.com/PowerandEnvironment/PowerGeneration/MarineMitigation/SanDieguitoLagoonRestoration.htm) (stating that SCE submitted a Preliminary Restoration Plan in September 1997, certified a Final Environmental Impact Report for the project in September 2000, submitted a Final Restoration Plan in November 2005, and began construction in Fall 2006); Matthew Rodriguez, Tidal Basin Opens to Ocean, San Diego Union-Tribune, January 24, 2008 (stating that a 40-acre tidal basin opened to the public in January 2008). c. See Response No. 54 for a discussion of the Restoration Plan that will be prepared after approval of the MLMP to ensure that the mitigation project meets the performance standards. The MLMP’s incorporates strict, measurable performance standards that are enforceable by the Regional Board and the Coastal Commission. d. This comment largely characterizes other testimony in the record. That other testimony speaks for itself. The Discharger is required to prove up the impingement obligation. Mr. Nordby has opined that it may require about 11 acres of coastal wetlands of the appropriate kind to produce 1,715 kg/yr of fish biomass. Thus, the Regional Board has reasonable confidence that the impingement compensation will be provided under the proposed two-phase program, likely during Phase I (37 acres). To the extent the comment constitutes argument, unsupported by introduced evidence, it does not warrant response.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 217 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE be spending up front might be a very small piece of the pie. And most importantly, one of the things that really bother me about Chris Garrett’s final comment, he got up here and after Mr. Singarella spent a lot of time say, “You don’t have to worry about any of these because at the end of the day if we don’t produce our 1715 kg magic number of impingement loss, we’re going to have to do it in similar capacity that your executive officer might tell us and then Mr. Jericho up here said, “Oh, by the way, don’t even think about hassling this to do more than that. So on the one hand, he say, we are going to threw up our actual ability to meet your predicted amount of impingement.” But don’t try to tie what we have to ultimately do to what ultimately get impinged. You should be offended by that. The hubris of a sign to get appearance say that we promise, we will do what you might think we’re going to impact based on all these speculative models and all of these assumptions that experts can’t agree on. Set us a ceiling as to the most amount of impingement mitigation we can ever have to do. Why should they be entitled to that, frankly? The fact is it should be the floor. If Poseidon is going to go back and throw up that cell after the impacts have already happen, frankly they should have to chew up to the impingement that’s attributable to their project whenever that can comes at the very least. It’s just frankly offensive that they will get up and say that you can do this after the fact calculation as to the maximum amount of mitigation they would have to do but then they set this ceiling up what are predictive possibility as today. Very frustrating from the public perspective. 74. (a) With respect to impingement issues, there is an underlying problem that we have with the arguments being put forward by the experts that are hired by Poseidon to do Poseidon’s bidding. And that has to do with the very technical issue of what is APF? An area of production (a) The ETM is a species-specific model that is based on the principle that the entrainment impact is limited to the “main species” that are “most affected by entrainment.” Recommended Revised Condition Compliance Findings (approved December 10, 2008), p. 12 of 19. The Regional Board concurs with the Scientific Advisory Panel’s (SAP) conclusion that “the APF is used to
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 218 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE foregone. And what is it really intended to do? (b) They stood up here before you and they said, APF is intended to account for those species that are lost for entrainment and it has nothing to do with the species that are lost for impingement. Scientifically, that’s not true. (c) You saw a couple of buckets that Mr. Singarella put up. And in the left, he said, these are the entrainment bucket fish and then on the other side, these are fish that are going to be impinged and we’re not counting those because they are not related to the entrainment calculation of APF. (d) Here is the problem, APF is derived to try to account for not the lost fish from entrainment standing alone, but for the function of those lost fish in the ecosystem at the various stages of their life that they might have otherwise lived if they hadn’t been entrained. (e) So imagine this, you take a slew of gobies and blennies and Garibaldis and you killed them in their infant stage. You’re precluding them from reaching a life stage where they would become food for a top smelts or food for some other fish that might also be an impinged fish. So the methodology that goes into calculating APF provides a little bit of a conservative layer because what you are trying to do is recreate the ecosystem impact that you lose as a result of killing a bunch of larval stage fish. (f) Of whatever your indicator fishes, remember the blennies, the Garibaldi and the gobies are the high level indicators. But that’s not everything that are entrained. (g) So Dr. Raimondi when he comes in, he says, hey it’s a double counting. He is not saying that there aren’t impinged determine impacts to only those species affected by entrainment and the mitigation resulting from the APF is meant to account only for those effects.” Recommended Revised Condition Compliance Findings (approved December 10, 2008), p. 12 of 19. The SAP is a team of seven independent scientists (including Dr. Raimondi) that provides guidance and oversight to the Coastal Commission on ecological issues associated with the San Dieguito Restoration Project and which, under the terms of the MLMP, will review Discharger’s Restoration Plan. (b) The APF does not assume compensatory mortality. Therefore, for the species modeled, it addresses all life stages, including those subject to impingement. The Discharger presented the APF in this manner, explaining to what extent species modeled in the ETM could not be counted toward the impingement obligation. (c) The right-hand buckets illustrated the species of fish that would be available to count toward the impingement obligation. They were not “fish that are going to be impinged.” In addition, fish on the right-hand side are available to be counted towards the impingement obligation, contrary to the comment’s suggestion. (d) To the extent that the comment describes ecosystem functions that would not be subject to intake and mortality by the proposed CDP, the comment is describing possible effects that are not part of the minimization obligation under CWC Section 13142.5(b). These possible effects are speculative and asserted only generically and generally by the comment, without scientific support or evidence. In addition, the comment does not support the proposition that the APF is derived to account for the function of those lost fish in the ecosystem. As described below, the available scientific evidence is to the contrary. The ETM is a species-specific model that is based on the principle that the
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 219 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE fishes that are going to also be created by this wetland as proposed. What he is saying is the APF calculations specific to entrainment is an ecosystem based function. This entire mitigation function as applied to entrainment is intended to repair the ecosystem at the level that you can speculatively, scientifically, based on this model come up with today. (h) But the way that they have approached it they have come in and say look, you put entrainment in little box, you put impingement in a little box and you look at them as essentially two different pieces of the restored wetland. The fact of the matter is it isn't the facts. It isn't the way that Raimondi assessed it, it isn't the way that staff assessed it, and frankly its disingenuous science. entrainment impact is to the main species subject to entrainment. See Response Nos. 260(a), 260(b) and 314(a). To the extent that Commenter suggests that the APF represents some broader impact that extends beyond the most commonly entrained species and/or to other organisms that exist within the ecosystem, Commenter is mistaken. In July 2008, the SAP—of which Dr. Raimondi is one of seven members—directly addressed Commenter’s argument that the ETM is designed to mitigate for broader, ecosystem-based impacts. In response to a question regarding whether the ETM assumes that entrainment “will render all affected acreage (i.e., the APF) non-functional, even though that acreage would only be partially affected and would continue to allow numerous other species to function,” the SAP “reiterated that these entrainment studies do not assume the complete loss of ecosystem function within an area of APF; instead they identify only the area that would be needed to replace the numbers and types of species identified in the study as subject to entrainment.” Recommended Revised Condition Compliance Findings (approved December 10, 2008), p. 12 of 19. The SAP explained further that “[t]he APF is used to determine impacts to only those species most affected by entrainment, and the mitigation resulting from the APF is meant to account only for those effects.” Id. An ecosystem approach suggested by the comment may be more appropriate in a situation where the project destroys an ecosystem. In the context of a Clean Water Act Section 404 permit with Section 401 certification, mitigation for fill that destroys an ecosystem may require mitigation that offsets the loss of complexity and diversity in the ecosystem. Here, specific components of the lagoon environment may be altered due to impingement and entrainment – leaving intact other important portions of the marine ecosystem. As a result, an appropriate mitigation project would seek to offset the specific alterations from the particularized effects of entrainment and impingement. (e) Commenter provides no scientific evidence in support of the hypothetical,
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 220 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE including the suggestion that topsmelt feed on goby, blenny and/or garibaldi larvae. Evidence in the administrative record indicates that topsmelt feed almost exclusively on planktonic crustaceans and do not feed on goby, blenny, and/or garibaldi larvae. See San Diego Gas & Electric, Encina Power Plant Cooling Water Intake System Demonstration (1980), at pp. 6-52, 6-53. The suggestion that fish larvae may be analogized to, or referred to as, infants is not credible. Fish produce millions of larvae, very few of which survive to the juvenile or adult stage. Commenter provides no evidence in support of the proposition that the ETM is designed to recreate ecosystem impact that “you lose as a result of killing a bunch of larval stage fish.” The SAP’s findings contradict this assertion. See Response No. 260(d). (f) Commenter is correct in concluding that the EPS intake entrains fish larvae other than blennies, garibaldi and gobies. The 2004/2005 entrainment study reveals that these three (3) species (i.e., gobies, blennies, and garibaldi) accounted for approximately 95% of the total number of larvae entrained, while five (5) ocean species accounted for more than 4% of the total entrainment (i.e., white croaker, northern anchovy, California halibut, queenfish, spotfin croaker). The larvae of the other fish species that live in and around Agua Hedionda Lagoon made up less than 1% of the larvae entrained at the EPS intake during the sampling period. See Impingement Mortality and Entrainment Characterization Study, Effects on the Biological Resources of Agua Hedionda Lagoon and the Nearshore Environment at Table S-1 (Tenera Env’t. 2008). The entrainment mitigation requirements set forth in the Minimization Plan are designed to compensate for the entrainment of “the main species”, i.e., those that are “most affected by entrainment.” Given that these eight taxa account for more than 99% of the entrained larvae, they are the “main species” for purposes of entrainment mitigation. They are not “indicator” fish, as the comment asserts, without citation.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 221 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE (g) In his statement of April 1, 2009, Dr. Raimondi never said “the APF calculations specific to entrainment is an ecosystem based function,” nor did Dr. Raimondi even discuss ecosystem-based effects. Commenter’s assertion to the contrary mischaracterizes Dr. Raimondi’s comments. In response to Commenter’s unsubstantiated claim that the entrainment mitigation “is intended to repair the ecosystem,” note that the APF does not account for ecosystem-based effects that extend beyond the specific effect on the modeled species. (h) The rich and diverse benefits of coastal wetlands are well established. The fact that entrainment and impingement constitute particularized effects that can leave an ecosystem largely intact is well established. Tracking these particularized effects into a mitigation wetlands, and ensuring that the benefits there are not counted twice towards different effects is not disingenuous science. Nor is it placing entrainment and impingement in little boxes. The recommended approach is based on sophisticated analysis of complex systems. The comment’s characterization is incorrect. 75. (a) The other thing that quite frankly bothered me about the impingement discussion is you heard this repeated “109 acres, oh my God somebody is recommending that they do an extra 50 acres.” (b) From what I heard out of staff they put three options on the table. (c) The one is, of course, the Poseidon preferred option - lets do nothing in addition. Its frankly scientifically unjustifiable for them to double-count the entrainment and impingement impact. But lets put that down on the table because the staff is being honest, that’s what Poseidon is going to argue, an option. (d) The next they say is lets do what Dr. Raimondi says is (a) No one other than the commenter made the statement in quotes, and no one made it on a repeated basis. For an accurate record of the April 8, 2009 hearing, please see the official transcript. (b) Staff’s presentation of alternative approaches at the April 8, 2009 hearing speaks for itself. (c) None of the options discussed at the April 8, 2009 hearing are do-nothing alternatives. The double-counting allegation is covered elsewhere. (d) For reasons stated elsewhere, the Tentative Order adopts an empirical approach to impingement mitigation, relying on field measurement rather than inferential statistics. The Coastal Commission decision on entrainment is not a precedent for impingement analysis. The Coastal Commission did not declare it to be, and the Regional Board has plenary jurisdiction over intake and mortality under CWC Section 13142.5. See, also, PRC 30412
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 222 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE your back stop position. Lets do what is rational based on the precedent set at Coastal Commission, lets apply an 80% confidence interval to the assessment of impingement impacts and let's come up with somewhere between 18 and 21 additional acres to be included in the MLMP. That's what the Commission did based on Raimondi, that's the so called precedent if there is one based on the Coastal Commission action. (e) Science precedent says you use a 95% interval and that's what the 95% confidence limit and that's what actually gets you up into the much higher acreages of 21 to 54 and, of course, Poseidon they want to come out and do all the calculations about how bad its gonna be when we use a 109 level, but frankly there's no one who believes you’re going to go above and beyond the Coastal Commission 80% confidence limit. (f) Again, they are just trying to spin this in a way to make their position more sympathetic. I guess that's what the lawyers get paid to do. But we need some honesty in the process here. (“The commission shall not, except as provided in subdivision (c), modify, adopt conditions, or take any action in conflict with any determination by the State Water Resources Control Board or any California regional water quality control board in matters relating to water quality or the administration of water rights.”). (e) The comment points to no “precedent’ in which impingement mitigation was based on 95% confidence limits, and offers no evidence or underlying principle to support its assertion that this is what science requires. (f) The comment does not provide any specific instance of an absence of honesty, nor any evidence that the integrity of the proceedings has been compromised. 76. (a) The statistical outliers that were the subject of so much conversation earlier, it's incredibly frustrating for us to hear the experts for Poseidon get up and explain things away because frankly, Dr. Raimondi is not here. (b) We don’t have the benefit of today's explanations and a comment period to respond to them, we get to respond on the fly as attorneys, not as experts. (c) But let me just make this point with respect the outliers that Dr. Jenkins essentially discounted as relevant to the ultimate consideration of impingement impacts. (a) Regional Board staff invited Dr. Raimondi to participate in the April 8, 2009 hearing, but he was unable do so. His April 1, 2009 statement was posted on the Regional Board’s web site, and was available for review by commenter and its experts. The Minimization Plan proceedings have been ongoing since the Discharger first submitted its draft Minimization Plan on February 13, 2007. The commenter has had ample time to retain its own expert and provide expert comment on the impingement data, which were reported in the March 2008 and March 2009 Minimization Plans, and also are contained in the February 2008 Section 316(b) study, entitled, “Impingement Mortality and Entrainment Characterization Study, Effects on the Biological Resources of Agua Hedionda Lagoon and the Nearshore Environment at 3-
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 223 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE Let's say I were to come to you and I were to say we've got a statistical anomaly that amounts to 10% of the total impact. And I would say to you, and say similarly you're going to have to mitigate. You remember one of the graphs as put up by Dr. Jenkins. On the X axis he had a calculation of flow and on the Y axis he had a calculation of the impingement. And you have those two outerliers [sic] that were very high above, and you have a bunch of dots down below that were kind of the more often impinged numbers. I would ask you to look at that in these terms analogous to let's say car accident. Lets see along the bottom you had the number of car accidents and along the Y axis, you have the bodily harm. And all the little ones that are down on the bottom, those are fender benders. They don't have a whole lot of bodily harm. But those outerliers [sic] are a dead kid or a dead parent or a significant harm. (d) The problem with their analysis is it says in those circumstances where you have significant harm you get to ignore it. It doesn't mean that it didn't happen, it doesn’t mean that it is all that much less likely to happen, but it still happened. (e) And so they try to apply this statistical analyses to a circumstance where as staff had pointed out and Mr. Thompson disagreed, it's purely inappropriate because we know that at the end of the day there were a certain amount of species that were impinged and the Water Code says that they have to account for that. (f) So you don't -- where you have significant harm that occurs in an outerlying [sic] event, if you can't explain that away, you have to account for it. 28 (Tenera Env’t. 2008).” (b) The April 8, 2009 hearing was properly noticed and gave commenter clear notice as to its subject matter. It has been clear since the Discharger first submitted a draft Minimization Plan on February 13, 2007 that the subject matter of these proceedings is technical and scientific in nature. Numerous experts have testified at each of the two hearings preceding the April 8, 2009 hearing. Commenter had every opportunity to retain an expert and have that expert present at the April 8, 2009 hearing. The topics discussed at the April 8, 2009 hearing were topics about which commenter and the public in general had prior notice, and do not warrant extension of the comment period. (c) The suggestion that the Regional Board is making a decision that is tantamount to ignoring dead children and parents is not appropriate. The impingement obligation specified in the Tentative Order accounts for the impingement observed during the outlier events in a manner that almost certainly overestimates their importance. So, the very premise of the comment’s analogy is missing. The reality is that the outlier events appear to be rare events not principally related to flow at the intakes. The Regional Board is charged with ascertaining the intake and mortality that fairly may be ascribed to a future facility. It has historical information on the basis of which it needs to make reasonable judgments about the future conditions that will prevail at a new facility. That new facility does not yet exist and has not caused any harm to date. The Tentative Order requires the Discharger to compensate fully for all intake and mortality that may be anticipated from the future operations, and makes numerous conservative assumptions, ensuring that it is protective. (d) Outliers are included for purposes of Discharger’s mitigation obligation, which is based on an impingement estimate of 4.7 kg/day—a value that assumes that there is a 100% probability that the outliers will occur every year. (e) The comment misapprehends the Tentative Order and the Minimization Plan. The Discharger has acquiesced in the Regional Board’s directive to
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 224 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE (g) And then we come to the issue of can you explain it away. Today was the first time that I saw Dr. Mayer draw a circle around Canon Lake, the detention basin and say that that’s the reason why you have these outerliers [sic]. Frankly, that wasn't in the record. (h) Canon Lake was not the source of overflows into the EPS. (i) And Dr. Jenkins when he did his analysis, he was looking at the Agua Hedionda creek flows, that's on the other side of the freaking lagoon. (j) It makes no sense in any context of this record to say that we know why those statistical outliers occurred. But we do know that they occurred. (k) And we do know that the EPS killed a number of fish. mitigate for all impingement observed, including on outlier days. The value of 4.7 kg/day, which drives the impingement obligation, makes no adjustment to the outlier events, and actually assumes that impingement on those days is representative of impingement on each of 14 days every year. The ongoing dialogue about outliers is relevant to an appreciation of the conservative and protective nature of the mitigation approach, and underscores the importance of the impingement monitoring required under the Tentative Order. (f) Outliers are included for purposes of Discharger’s mitigation obligation, which is based on an impingement estimate of 4.7 kg/day—a value that assumes that there is a 100% probability that the the outliers will occur every year and with the same frequency. (g) The testimony at a public hearing is part of the record, contrary to the comment’s implication. Dr. Mayer and the Discharger previously had identified the freshwater fish issue. See March 27, 2009 Minimization Plan, Attachment 5. Dr. Mayer’s testimony at the April 8, 2009 hearing was an elaboration on a topic already raised in the record including in the March 27 Staff Report and the April 8 Supplemental Staff Report for this hearing. (h) Because it is not clear what the comment means by “overflows into the EPS,” this comment is vague and ambiguous. The comment does not define this vague term, and does not offer any alternative explanation or support such an alternative explanation with any data or information. This comment is conclusory and constitutes unsupported argument. (i) Agua Hedionda Creek is upstream of and tributary to Agua Hedionda Lagoon, and a major source of runoff to Agua Hedionda Lagoon during extreme rainfall events. Although Agua Hedionda Lagoon is primarily a marine lagoon, it can be influenced by freshwater inflows, especially from December through April. See Impingement Mortality and Entrainment Characterization Study, Effects on the Biological Resources of Agua Hedionda Lagoon and the Nearshore Environment (Tenera Env’t. 2008), at 2-28. The creek’s location and relationship to Agua Hedionda Lagoon render it relevant. The comment that the creek is “on the other side of the freaking lagoon” provides no rational basis to dismiss or discount the analysis by Dr.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 225 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE Jenkins. (j) The commenter is not persuaded that there is evidence, supported by credible and substantial expert evidence, as to why the “statistical outliers occurred.” The Regional Board believes that the record before it reflects a reasonable basis to help inform the nature of the outlier events, and to place them in a proper context. Including these events in the 4.7 kg/day impingement obligation is conservative and protective; and therefore the impingement monitoring in the Tentative Order is very important for purposes of continuing to assess this issue as part of Minimization Plan implementation. (k) Vague and ambiguous as to time, quantities, etc. Impingement can result in mortality of fish. Large numbers of freshwater fish may have died before reaching the intake. Therefore, EPS may not have caused all of the mortality. 77. The request that we have is that you apply at the very minimum the 80% confidence level that you require somewhere between 18 and 45 additional acres. We think that if they commit to 100% intertidal mudflats for the impingement impacts we could use an 80% number and require 18 acres of additional mitigation. The Regional Board has incoprated a Biological Performance Standard of no less then 1,715.5 kg of available fish biomass per year. This standard is sufficient to ensure adequate mitigation. 78. There’s some questions that you should be asking yourself with respect to whether they have complied with the site analysis requirements of the Water Code. You need to be absolutely certain what you are approving today. Are you approving the co-located facility or a stand-alone facility. Poseidon's investors are taking a risk. I likened it in my comment letter to the risks one might take building a house in the middle of a planned highway. We the taxpayers unfortunately might be saddled with this plant at some point. Much like they were in Tampa, if Poseidon doesn't perform The site analysis in the Minimization Plan satisfies CWC Section 13142.5(b). The comment provides no specific reason why it does not. The present approval is for operations in co-located mode. This is consistent with the description of the Discharger's proposed CDP operation in its Report of Waste Discharge for Order No. R9-2006-0065. As reflected in Tentative Order No. R92009-0038, additional evaluation of CDP's operations for compliance with CWC Section 13142.5(b) would be necessary if EPS ceases power generation operations and the Discharger proposes, through a new Report of Waste Discharge, to operate EPS's seawater intake and outfall
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 226 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE after a period of time the City of Carlsbad takes it back. More likely the county water authority takes it by eminent domain or perhaps purchases it from Poseidon at some point in the future. But the point is the value of that project as a stand alone facility and the ability to meet the stand alone analysis will affect the value and will affect what taxpayers are ultimately saddled with. So today, where you ought to be clear is that under Porter-Cologne we are not doing stand alone analysis. We don't have the ability to do the stand alone analysis based on the record that's before us. And if we were, we would have to focus on Poseidon's evidence that alternative intakes are not feasible here and therefore we can never meet the stand alone requirements under Porter-Cologne 13142.5. Remember, 13142.5 says we need to minimize the intake and mortality of marine life. That means that you have to design your plant using technology and a location that will minimize the marine life that comes in. If we today didn't have an EPS, would this be the right place for it. I don't think that we can answer in the affirmative. independently for the benefit of the CDP ("stand-alone operation"). The value of the CDP in stand-alone mode is not a subject that is within the Regional Board’s purview, and which is irrelevant to the present proceeding. The comment suggests that intake alternatives, location, and technology should be evaluated in a future proceeding on stand-alone mode. In the eventuality of such a proceeding, the focus would be on the intake technologies not feasible today because of access limitations to the EPS intakes. The substantial evaluations of these topics already undertaken pursuant to these Minimization Plan proceedings would be relevant in any stand-alone proceeding. Future performance by the Discharger to meet its contractual obligations to its retail water customers is beyond the scope of the Regional Board’s present action. It should be noted that the retail water users uniformly have urged the Regional Board to approve the Minimization Plan. Some future proceeding in which the City of Carlsbad or the San Diego Water Authority take over the CDP, whether via eminent domain or some other means, is speculative and beyond the scope of the present action. Neither entity has offered any comment on such a subject. 79. The other thing that is difficult in the staff in the approval of the tentative order is what triggers the stand alone analysis. As you've said or has been recommended by the board, by board staff, that the trigger of the stand alone analysis is the complete cessation of EPS infrastructure use. Well, that just incentivizes the continuation of that once through cooling technology. The reality is the benefits of co-location that are being used to drive your alternative analysis for a co-located plant, go away as soon as the driver of the flows becomes the desalination facility. Therefore, it would be appropriate for the tentative order to require the stand alone analysis to occur at that point where for any given quarter 3 months of flow the total flows being driven through the system are the, more the result of the desal facility than Encina Power The Tentative Order proposes to specify further what triggers the stand-alone analysis, requiring the ROWD for stand-alone authorization within 180 days from when the operator of the EPS gives notice to the CEC of intent to cease operations.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 227 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE Station. So if you take half of the flows, half of the 304, and you say okay, as soon as they hit half of that amount for three months, then its really the benefits of co-location evaporate and it should be the desal facility having to come back and do its Porter-Cologne analysis which as I have just said they can't meet the Porter-Cologne standard as a stand alone facility so why should they even be building it now in the first place. 80. I just wanted to hit one final issue because it has become important in the context of litigation, it should be realized here when you talk about alternatives analysis, one of the things that Poseidon has consistently said is look we have to meet our project purpose and our project purpose is to provide water for Carlsbad and the San Diego region and then when you look at the analysis in the flow minimization plan, the only alternatives they look at are the City of Carlsbad. And then in our cases, specially the Coastal Commission case we have to locate this in Carlsbad because that is the purpose of the project. That ignores reality. When we look at way the county water authority works, when we look at the very water contracts, that they have with the various districts, we know that not everybody is connecting up to the City of Carlsbad directly. Specifically, they are connecting up to the desalination facility. We know that whether its Oceanside, or the Sweetwater District, Olivenhain they are all connected to one common thread and that is the County Water Authority conveyance and storage system. Given the complexity of that system and the fact that the County Water authority distributes to everybody, what we have here are paper transfers much like the Imperial Irrigation system transfer much like the way water works in California. You by and sell the rights to water, you don't buy and sell that physical water itself in most circumstances. So the extent to which the Poseidon or the See Oral Response No. 24 above. To the extent Commenter asserts that alternative intakes were viable, see Oral Response No. 29 for a discussion of the infeasibility of alternative intakes . To the extent Commenter is suggesting that the Minimization Plan is insufficient, see Response No. 17 for a discussion of the Minimization Plan’s compliance with CWC Section 13142.5(b)’s requirement to use the best available and feasible mitigation measures to minimize intake and mortality of marine life. See Response No. 24 for a discussion of the Regional Board’s approval of the CDP as a co-located project versus as a stand-alone project. The statute of limitations for challenging the Regional Board’s adoption of Order No. R9-2006-0065 identifying the CDP site as co-located with the EPS has expired.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 228 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE city come forward and say it has to be located in the city is simply doesn't. Frankly, it can located anywhere in the Metropolitan Water District service area and as long as it can make it to any one of these pipes, you can do the paper transfers. That is the constraint on the scope of the alternatives analysis and it makes no sense to constrain it simply to the location that we have looked at in Carlsbad. As I asked earlier, would this be the best available site if the EPS shut down, I think we can say probably not and frankly we don't have evidence in the record to ensure ourselves of that. There's a lot of other technical issues. I will just close by saying that the future is alternative intakes. They are proposing alternative intakes for a plant up in Dana Point. We don't put this out there to say that the Dana Point plant should take the place of the Carlsbad Desalination Project. But we do show it to say that this is feasible in the region and if you look somewhere outside of Carlsbad where you might have the soils and you might have the conditions where you can do it, alternative intake will be viable. What you approved today is a co-located plant assuming that you move to approve it. The very best you can do if you approve it is to require appropriate mitigation for impingement and entrainment which means adding on to what they've already been required by the Coastal Commission to do. And frankly, you should reconsider the broader picture of whether as a stand alone facility which we know it will eventually come forward to try to get permits for. Whether it can be permitted then and whether you should force them to give you more information about alternative locations before you take this highly precedential step. Thank you for your consideration. 2. Testimony of Ed Kimura Representing Sierra Club San Diego Chapter 81. The Flow, Entrainment and Impingement Minimization Plan is highly flawed and we’re urging you, urge you reject it. The comment makes an argument and recommendation that does not prompt a specific response.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 229 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 82. As stated in the comment letter, my opinion, that Poseidon reasoning to disregard the outliers in the impingement data is flawed. And there are a number of reasons that our comments are slightly different from those who have previously argued that they are not to be discarded. First of all, it’s really important to understand the nature of the fish and how they behave in the neighborhood of entrainment. There was an interesting report that was published in 1985 by Mark Helbing of Delos, on the behavior factors of fish entrainment in offshore cooling waters in Southern California. And I found that information very informative and enlightening in terms of how the fish behave. When they come into the lagoon, for example, why are they being impinged? There are a number of factors. And in fact if you go back and look at the early impingement data from 1979, 1980, there is a clear information that shows impingement occurs much higher at nighttime than at daytime. And the reason is, is that while fish can actually navigate and sense flow, they can’t sense the flow when it’s dark. And so, if they’re moving around in the lagoon at night, there’s no way that they can avoid the intake if they’re schooling and getting, moving into it and getting trapped by the intake. And what I’ve done is I’ve analyzed a lot of that data, looking at the fish behavior, and I’ve done it for the top 20 impinged fishes and plotted, in behavior over time, how they get impinged, what time they occur. And it’s really informative, because when we look at the total picture. See Oral Response No. 76 regarding outliers. The Regional Board appreciates the specific information on fish behavior provided by the comment. The Regional Board does not believe, however, that a species-by-species behavioral assessment is warranted, as the comment argues, before a sampling event can be considered an outlier. An outlier is largely a statistical concept. Biological information can be useful in exploring plausible explanations for an outlier. This is precisely why the presence of freshwater fish in the impingement surveys for January 12 and February 23, 2005 is relevant. The comment states that impingement may occur disproportionately at night. The impingement surveys were conducted over 24-hour periods and would have captured diurnal variation in impingement. Any disproportionate impingement at night would be reflected in the mitigation obligations. The 1985 report referred to in the comment was not provided to the Regional Board, and the Regional Board therefore was not provided an opportunity to evaluate this report for its relevancy to the present action.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 230 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE Then you begin to understand there are natural occurrences taking place that actually influence when fish get impinged. And in the Figure 1 that I showed, the attempt that I did there was to provide two different species – the shiner surf perch and the top smelt. There are two different behaviors. The top smelt likes to run in tight schools, the surfer perch really does not find schooling type behavior. It also turns out that the event occurred just prior to when the top smelt goes into, and starts spawning. So you would assume that they tend to gather before that time. And if they’re schooling in a tight formation, they can get gobbled up by the intake. On the other hand, the surfer perch does not school as often, and it does not have a specific time for spawning. And if you looked at the data, you do not really show any evidence at that time when that spike came out to be influenced by those high impingement. And so if you look at the totality of all of the different species, they all differ, they all vary differently in terms of the behavior, and that you have to into consideration when you say “Should this be an outlier?” 3. Testimony of Dan McLellan, private citizen 83. We must address the cost, high energy use and environmental impacts [of desalination] through discharge of brine, chemicals and carbon dioxide, as well as impingement and entrainment. The CDP has been extensively reviewed by several of the State's resource agencies, including the Coastal Commission, the State Lands Commission, and the Regional Board. Recognizing that the CDP will not be a direct emitter of GHG emissions, the Coastal Commission required the Discharger to submit, and has since approved, a Greenhouse Gas Plan which will result in the full offset of the Project's net indirect GHG emissions. Regional Board Order No. R9-2006-0065 prescribes the CDP's waste discharge requirements, addressing the potential water quality effects of the brine and chemicals. Under the terms of the Minimization Plan, the CDP's impingement and entrainment will be offset fully by mitigation. 84. Desalination is still the most expensive source of water due to its energy costs. Comment provides no factual basis in support of this conclusion.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 231 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 85. The cost will increase if the plant operates below capacity exemplified by Tampa Bay water desalination plant that was developed by Poseidon Resources, then outsourced to multinational water agencies Axiona and EWH. The 25 million gallon a day plant came online late, over budget, and has rarely operated at full capacity. Every day that they operate under capacity, the public sector loses and the private sector gains. Commenter makes assertions unsupported by facts in the administrative record. Thus, the relevance and/or validity of the comments are therefore not subject to verification or evaluation. To the extent that Commenter projects below-capacity operation or a consumer cost increase, it is unsupported speculation. The economic issues associated with the level of operation of the Tampa Bay project are not relevant to the CDP. In addition, the claim that decreased operations of the CDP “under capacity” will have effects on the public and private sectors is not relevant to this proceeding. 86. We must consider alternatives that provide sustained benefits with lower cost, such as reclamation and conservation. See Oral Response No. 42. 87. The plan to mitigate damage done to the marine ecosystem by a desalination plant in Carlsbad is to plant trees, aiming to offset carbon dioxide emissions from increased power use. There is no chosen location for a marine mitigation project, and that is a glaring deficiency to the current plan. The management of Poseidon Resources believes they can destroy one area of the environment and create an ecosystem nearby to make up for it. One of the aspects of mitigation even involves stewardship of the water area immediately adjacent to the power plant. This is the very same water they are most likely to pollute discharge that may very well get back, drawn back, into the intake pipes due to the ocean’s currents. Are we to expect that the polluters are in the best position to also be stewards of our local resources? The scope of the Regional Board’s review is limited to whether the Minimization Plan will result in the CDP’s compliance with CWC Section 13142.5(b), which requires the use of the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of marine life. The Minimization Plan does not provide for the planting of trees as a means to minimize intake and mortality of marine life. The Coastal Commission, however, required the Discharger to develop a Greenhouse Gas Reduction Plan (GHG Plan), in order to address emissions. The GHG Plan, approved by the Coastal Commission on August 6, 2008, requires the Discharger to account for and reduce to zero the CDP’s net indirect GHG emissions resulting from electricity purchased to run the desalination plant (the CDP will not directly emit GHGs). This will be achieved through the acquisition of carbon offsets and renewable energy credits. The GHG Plan also requires implementation of state-of-the-art on-site energy minimization measures. The Coastal Commission determined that the GHG Plan will result in net carbon neutrality and fully mitigate any effects of the Project’s indirect GHG emissions on coastal resources. As part of the GHG Plan, Poseidon has also agreed to contribute $1 million towards reforestation of areas in San Diego impacted by the 2007 wildfires.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 232 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE Separately, to address marine life issues, the MLMP requires the Discharger to create or restore up 55.4 and no less than 37 acres of estuarine wetlands in one or two mitigation sites in two Phases. The Minimization Plan provides for sufficient mitigation to fully offset estimated entrainment or impingement at the CDP for flows up to 304 MGD. The MLMP identifies 11 mitigation pre-approved mitigation sites, 5 of which are within the boundaries of the Regional Board and therefore priority sites. Agua Hedionda Lagoon is among the sites listed. Final selection of the mitigation site(s) is subject to the approval of the Regional Board and the Coastal Commission. As part of Phase II, the Discharger may propose in its Coastal Development Application to reduce or eliminate the Phase II mitigation (18.4 acres) by implementing new entrainment technology or conducting dredging of Agua Hedionda Lagoon. Mitigation measures pursuant to the MLMP are taken in addition to site, design, and technology measures to minimize the intake and mortality of marine life. The proposed plant will not destroy an area of the environment, as stated by commenter. When using EPS discharge water, the plant will have a negligible effect on receiving waters. When drawing water directly from Agua Hedionda Lagoon without it first being used at the EPS, there is the potential for impingement and entrainment from the plant. These are very particularized effects that do not destroy the environment of the affected area. The comment incorrectly suggests that the CDP’s discharge will “pollute” adjacent water. Pursuant to the Project’s NPDES Permit, Order No. R9-2006-0065, the desalination plant is conditioned to comply with all Clean Water Act and Ocean Plan requirements. The Regional Board determined that an average daily effluent limitation of 40 parts per thousand for salinity would protect beneficial uses of the ocean, and Poseidon is required to comply with that limitation pursuant to its NPDES Permit. Any challenge to the discharge requirements should have been raised during the 2006 permit proceedings and is waived at this time.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 233 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 88. With regard to impingement and entrainment, the studies from the Encina power station indicate there will be a consistent level of destruction of small fish and fish eggs. The ocean is already overfished and we should not overlook the slaughter of small fish and fish eggs. This is especially detrimental to the future growth of the fish population. Poseidon has often stated that two pounds of fish per day are impacted while the number from the report showed up to 40 pounds, for as you saw today, much greater than that, of small fish and eggs per day. Under the terms of the MLMP, Discharger must create or restore up to 55.4 acres of estuarine wetlands. This mitigation project will provide sufficient habitat to produce and sustain larvae from the eight most commonly entrained species in sufficient quantities to fully offset potential entrainment associated with the CDP’s stand-alone operations. The mitigation wetlands will also produce fish biomass that has not already been reserved for entrainment mitigation. This biomass is available to compensate fully for potential CDP-related impingement. The comment offers no evidence to support its assertion that the CDP will be detrimental to the fish population. There is no evidence of population-level impact in the record. 89. And in the report, they made the assumption that this was due to toxic runoff from our streets, killing fish, and then subsequently sucking these fish and toxic runoff into the plant. Perhaps that toxic runoff should be mitigated as well. If we are concerned with water supply, let’s look at the reclamation from our storm drains, as well as to help protect the ocean and wildlife. It is beyond the scope of this action to consider mitigation of any toxic runoff from upstream in the watershed. The Regional Board administers a program for dealing with urban runoff; but that program is not part of this CWC Section 13142.5(b) proceeding. To the extent Commenter makes arguments concerning broad planning goals or policies regarding water reclamation, see Oral Response No. 42. With respect to reclamation of water from storm drains, the comment does not provide any assessment as to whether such might offer a reasonable alternative to the CDP. The Regional Board does not believe that harvesting storm drain runoff is a legitimate alternative to producing 50 MGD of potable water on a daily basis to meet the needs of the City of Carlsbad and the other water retailers under contract with the Discharger. The Regional Board is promoting the harvesting of rainfall under the regional storm drain permit for the region including the City of Carlsbad, but harvesting is not expected to provide a major source of potable water, as the proposed CDP would do. See Order No. R9-2007-0001, the San Diego County Municipal Storm Water Permit. 90. Furthermore, private sector control of water supply is a dangerous precedent to set. It allows supply and allocation This comment makes several arguments that are not based on evidence in the record and do not warrant a specific response. The comment overlooks
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 234 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE decisions, on a resource vital to the survival of humans, to be made by an entity that is responsible only to its shareholders, not clientele or consumers or the people of Southern California. This approach is funded by a multinational investment corporation disguised as a local utility with a vested interest in preserving our local resources or environment. These multinationals are the last people I would contract to restore ecosystems and steward our natural resources. the fact that the Discharger is a water wholesaler, and is providing water to public-sector water retailers such as cities and water districts, each of which exert significant control over water supply and allocation decisions, including with respect to the water supplied by the Discharger. It also overlooks the fact that the potential effects of the project on local resources and the environment are regulated not only by the Regional Board and the Coastal Commission, but have been the subject of an Environmental Impact Report with the City of Carlsbad as the lead agency. To the extent this comment makes arguments concerning broad policy goals, see Oral Response No. 42. 4. Testimony of Jared Cariscuolo Representing San Diego Surfrider Foundation 91. (a) Surfrider is not expressly opposed to desalination. (b) We are, however, opposed to this particular project because we don’t believe it makes the best use of available water extraction resources. (c) We think as Mr. Gonzalez pointed out that subsurface intakes are a much superior alternative. (d) We would prefer to see waste water recycling and some of the other methods of reclaiming the water utilized before we take as drastic a step as using an open ocean intake pipe. (a) Comment noted. (b) Comment does not prompt a specific response. To the extent Commenter makes arguments concerning broad planning goals or policies, such comments are generally beyond the scope of the Regional Board’s review of the Minimization Plan. The CDP has, however, undergone extensive environmental review by several resource agencies in addition to the Regional Board, including the City of Carlsbad, the Coastal Commission, and the State Lands Commission. (c) See Oral Response No. 29 regarding subsurface intake alternatives. (d) See Response 42. 92. So the three points that I wanted to bring up are: that this proposed plan ultimately will result in more marine life mortality than in the current system. The comment provides no factual basis for the assertion that the Minimization Plan will result in more marine life mortality than in the current system. To the contrary, the Minimization Plan provides for the minimization of intake and mortality via site, design, and technology measures, and provides for full offset of such impacts by mitigation. 93. Second point, it will facilitate the continued intake within the Encina area through once-through cooling after the system is taken offline. The comment is speculation and without factual basis to which the Regional Board can respond.
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 235 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE 94. And the third issue that we have especially regards to the mitigation project is that there is not a clearly defined location. Under the terms of the Minimization Plan and MLMP, a specific mitigation site or sites will be selected and must be approved by the Regional Board and the Coastal Commission. 95. We respect that the sites(?) made the effort to set aside a plan but the bigger issue we have is that that mitigation plan, that 55 acres could be done anywhere throughout the state and we believe that it should be local. The Minimization Plan provides that of the 11 sites identified in the MLMP, sites within the boundaries of the Regional Board are priority sites. See section 6.5 of the Minimization Plan for a list of the 11 sites. 5. Testimony of Scott Andrews, private citizen 96. Mitigation is an extremely inexact science. It’s unpredictable whether marine reserves will work. Comment noted that mitigation is an inexact science and that there is some unpredictability involved in wetland restoration. This is not unusual and is well accounted for in the MLMP. Nonetheless, wetlands restoration, including restoration as mitigation and restoration for the sake of restoration, is a high priority among resource managers and local, state, and regional governments. The key to addressing unpredictability rests in establishing rigorous performance standards that must be satisfied, as has occurred here. By imposing such standards, the Coastal Commission and Regional Board have determined there is a high degree of scientific confidence that the required restoration will succeed. The MLMP’s strict performance standards and success criteria were developed during the interagency process at the direction of the Coastal Commission using the successful SCE mitigation project for the San Onofre Nuclear Generating Station as a model. These strict performance criteria and enforcement mechanisms will ensure success of the mitigation sites(s). The legal standard applicable to the Project, CWC Section 13142.5(b), specifically provides for the use of mitigation as a means to minimize intake and mortality of marine life. The Regional Board believes that the science of mitigation is sufficiently well established to provide a rational basis and solid foundation for the Minimization Plan. 97. The result of the loss of wetlands is gross declines in fish stocks. No wetlands will be lost as a result of the CDP. The CDP will result in impingement and entrainment, which losses are offset by the project's
SAN DIEGO REGIONAL BOARD RESPONSES TO ORAL COMMENTS POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT FLOW, ENTRAINMENT AND IMPINGEMENT MINIMIZATION PLAN ORDER NO. R9- 2009-0038, AMENDING ORDER NO. R9-2006-0065, NPDES NO. CA0109223 Page 236 of 236 COMMENT NO. COMMENTS AND/OR CONCERNS REGIONAL BOARD RESPONSE mitigation. 98. Mission Bay is polluted by sewage and waste, so it is not a good alternative spawning ground for the two North County lagoons. Mission Bay is not one of the sites listed in the MLMP, and is not being considered as an alternative for two North County lagoons. See March 27 Minimization Plan, Chapter 6, which provides a list of 11 sites where mitigation may be accomplished. These include the Tijuana Estuary, San Dieguito River Valley, San Elijo Lagoon, Agua Heidionda Lagoon, Buena Vista Lagoon, Anaheim Bay, Santa Ana River, Huntington Beach Wetlands, Ballona Wetlands, Los Cerritos Wetlands, and Ormond Beach. 99. Orange County is drinking sewage water filtered, totally filtered, UV-zapped. It’s very safe. Very safe for human consumption. You’re telling me that these guys who want to build these plants up and down the coast, have already done so in Spain and Europe to a large extent, can’t develop the science to filter out larvae, when we can filter and clean up all the toxics in sewage? Commenter provides no factual support for his comments and is speculating. The Minimization Plan provides for the use of the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life. Under the terms of the Minimization Plan, projected impingement and entrainment will be fully offset by mitigation. Moreover, in the event the EPS permanently ceases operations, the Regional Board will re-evaluate the CDP’s compliance with CWC Section 13142.5(b), including technology measures as appropriate. Additional entrainment-reducing technology is one basis upon which the Discharger may apply for a reduction or elimination of Phase II mitigation.
July 2008, No. 2
2030 Regional Growth
Forecast Update
info — 2030 Regional Growth Forecast UpdateSANDAG
July 2008, No. 2
ii
Introduction ...............................................................1
The Region ................................................................3
Jurisdictions ...............................................................6
1 Population, Housing, and Employment
San Diego Region, 2004 to 2030 ..........................1
2 Population Change by Ethnic Group
San Diego Region, 2004 to 2030 ..........................4
3 Population Change by Age Group
San Diego Region, 2004 to 2030 ..........................5
4 Total Population by Jurisdiction
San Diego Region, 2004 to 2030 ..........................6
5 Total Housing Units by Jurisdiction
San Diego Region, 2004 to 2030 ..........................7
6 Total Employment by Jurisdiction
San Diego Region, 2004 to 2030 ..........................8
Tables
Figures
Maps
1 The Region is Becoming More Ethnically Diverse
San Diego Region, 2004 and 2030 .......................5
2 Growth Rates Vary Widely Among Jurisdictions
San Diego Region, 2004 to 2030 ..........................7
3 North County Cities Show Greatest Percentage
Gains in Employment, San Diego Region
2004 to 2030 .......................................................8
4 The Region's Population is Getting Older
San Diego Region, 2004 and 2030 ......................10
5 Median Household Income by Jurisdiction
San Diego Region, 2004 and 2030 ......................10
1 Share of Population Growth
San Diego Region, 2004 to 2030 ..........................9
2 Share of Employment Growth
San Diego Region, 2004 to 2030 ..........................9
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July 2008, No. 2
SANDAG 1
By the year 2030 the San Diego region will grow
by approximately one million people, 290,000 new
homes and roughly half a million jobs (Table 1).
This information comes from the SANDAG 2030
Regional Growth Forecast Update that was released
in September 2006. Although one million people
represents a significant amount of growth, the
region’s growth rate has actually slowed over the last
decade and that pattern will continue. In fact, by the
early 2020s, our annual rate of growth is expected to
fall below one percent (see cover chart).
For the 18 incorporated cities in the region, the
forecast is based on the current adopted land use
plans and policies as they stand today. For the
unincorporated area, the forecast is based on the
most recent version of the County of San Diego’s
General Plan 2020 (GP2020) update. According to
the County Board of Supervisors, it more accurately
reflects the County’s future direction. Hence, the
2030 Regional Growth Forecast Update provides
a clear assessment of where our plans today, if
left unchanged, will likely take us over the coming
decades. There are several long-range implications:
The 290,000 new homes »
needed by 2030 is roughly
equivalent to the entire
remaining housing unit
capacity of the region
under today’s general and
community plans. Further,
more than one-third of that
remaining capacity is in the
form of redevelopment and
residential infilling of land that
is already developed.
Introduction
On land that is currently vacant, the
remaining housing unit capacity of the region
in 2000 was about 244,000 homes. In 2004,
just four years later, the remaining capacity
on currently vacant land was fewer than
200,000 homes.
Over the next 15 to 20 years, most cities »
will fully develop under their current plans.
Therefore, between 2020 and 2030, most
of the growth in housing units (about
80 percent), occurs in just two areas:
within the higher density central areas of
the City of San Diego, and in the very low
density unincorporated areas well outside of
incorporated city boundaries.
People will seek lower cost housing elsewhere »
but continue to work within the region,
meaning that interregional commuting
will increase substantially. In this forecast,
about 99,000 households are “exported”
to Orange County, Riverside County,
Baja California, and even Imperial County over
the next 26 years.
Table 1
Population, Housing, and Employment
San Diego Region, 2004 to 2030
Source: 2030 Regional Growth Forecast Update
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July 2008, No. 2
2
Includes persons having origins in
any of the original peoples of North
and South America (including Central
America) and who maintain tribal
affiliation or community attachment.
Includes all other responses not
included in the ‘‘White,’’ ‘‘Black or
African American,’’ ‘‘American Indian
or Alaska Native,’’ ‘‘Asian,’’ and ‘‘Native
Hawaiian or Other Pacific Islander’’ race
categories.
Includes persons who identified their
race as a combination of two or more
of the following race categories: White,
Black or African American, American
Indian or Alaska Native, Asian, Native
Hawaiian and Other Pacific Islander,
and/or some other race.
Includes persons who identified their
race as White, as well as persons who
did not classify themselves in one of
the specific race categories but entered
a response suggesting European or
Middle Eastern origin.
Includes persons who identified their
race as any of the original peoples of
the Far East, Southeast Asia, or the
Indian subcontinent including, for
example, Cambodia, China, India,
Japan, Korea, Malaysia, Pakistan,
the Philippine Islands, Thailand, and
Vietnam.
Includes persons who identified their
race as Black or African American, as
well as persons who did not classify
themselves on one of the specific race
categories, but entered a response
such as African, Creole, Jamaican, or
West Indian.
Includes persons who identified their
race as ‘‘Native Hawaiian,’’ ‘‘Guamanian
or Chamorro,’’ ‘‘Samoan,’’ and ‘‘Other
Pacific Islander.’’
American Indian
Other
Two or More Races
White
Asian
Black
Native Hawaiian and
Other Pacific Islander
Race and Ethnicity are reported in eight mutually exclusive groups – those who identify themselves as Hispanics, and non-Hispanics
who identify themselves as either White, Black or African American, Asian, Native Hawaiian or Pacific Islander, Other, or Two or
More Races. This terminology is consistent with the way 2000 Census information was collected and reported.
Hispanic includes all persons of Hispanic, Latino, or Spanish origin. Hispanics may be of any race.
Non-Hispanics are divided into seven groups:
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July 2008, No. 2
SANDAG 3
The Region
Household size (the number of persons »
per household) rises by about four percent
between 2004 and 2030, from 2.77 to 2.87.
This seemingly small increase accounts for an
additional 130,000 people living in the region’s
existing homes.
It is important to note that the 2030 Regional Growth
Forecast Update is not a prescription for the future.
It simply portrays the likely outcomes if we continue
operating under our current plans and policies.
The Regional Comprehensive Plan (RCP) serves as a
planning framework for the region, and is based on
the principles of smart growth and sustainability. It
was approved by the SANDAG Board of Directors
in July 2004. The RCP is the result of a three-year
collaborative process involving thousands of the
region’s residents, as well as planners and elected
officials. As local plans are updated over time, the
goals and policy objectives of the RCP can serve as
guidelines for maintaining and improving our
quality of life. For more information on the forecast
and the RCP, please visit the SANDAG Web site:
www.sandag.org.
Table 1 presents the regional change in population,
housing units, employment, and household size
over the 26-year period 2004 to 2030. About
one million new residents will be added to the
region by 2030, with natural increase (births minus
deaths) accounting for about two-thirds of the
growth. The remaining one-third is the result of
net migration, both domestic and international.
Migration consists of two components: domestic
migration and foreign immigration. The amount of
legal foreign immigration is controlled by the federal
government and has remained fairly constant over
the past decade. No major change in immigration
levels is expected in the foreseeable future. Domestic
migration – people moving to and from other parts
of the state or the nation – fluctuates each year,
usually based on the condition of the local economy.
During the recession years in the early 1990s, for
example, more people left the region to search for
economic opportunities elsewhere.
As is the case today, population growth is expected
to continue to outpace home construction. Over
time, this imbalance will result in an increase
in household size (the number of persons per
household), a decrease in vacancy rates, and an
increase in the amount of interregional commuting,
primarily from southwestern Riverside County and
northern Baja California.
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July 2008, No. 2
4
Although the region’s population will grow by a million
people over the forecast period, our rate of growth is
slowing. The chart on the cover compares the region’s
growth rate to that of the nation over the 60-year
period 1970 to 2030. While we will experience some
ups and downs between now and 2030, the general
trend is downward. By the mid-2020s, we will be
growing at a rate of less than one percent per year. A
key reason our growth rate is slowing is a continuing
decline in fertility rates (the average number of children
born to each woman). Recent data show that this is
occurring across most ethnic groups, and that the
sharpest drop is seen among the Hispanic population.
Additionally, land available for residential development
will diminish.
The region’s median household income (adjusted
for inflation, and reported in constant 1999 dollars)
is expected to show positive gains over the forecast
period, from $52,200 in 2004 to $62,600 in 2030.
This 20 percent increase in real median household
income may seem large, but the figures are consistent
with historical trends and projected long-term
income growth trends for California and the
nation.
Our ethnic composition will continue to change.
Table 2 presents the regional changes in
population for seven ethnic groups: Hispanic,
and non-Hispanic Whites, Blacks, Asians/
Native Hawaiians/Pacific Islanders, Other, and
Two or More Races. While the Hispanic and
Source: 2030 Regional Growth Forecast Update
Table 2
Population Change by Ethnic Group
San Diego Region, 2004 to 2030
info — 2030 Regional Growth Forecast Update
July 2008, No. 2
SANDAG 5
Asian/Native Hawaiian/Pacific Islander groups
will almost double in size over the 26 years, the
number of non-Hispanic Whites is expected to
decline slightly.
Figure 1 illustrates these changes in terms of
share of total population. The Hispanic and
non-Hispanic Asian groups both gain as a
percent of total population. The non-Hispanic
Black group stays constant at about 5 percent,
and the non-Hispanic White group’s share
drops from 52 percent today to 38 percent
in 2030. When that group’s share falls below
50 percent – probably around the year 2010 –
there will be no ethnic majority in the San Diego
region. Statewide, that is true today. The 2000 Census
found that only 47 percent of Californians classified
themselves as non-Hispanic White.
Just as the ethnic composition of the region will
change dramatically, so will its age structure.
Table 3 clearly illustrates the aging of the region’s
population. During the 26-year forecast period,
the region’s median age will increase by more than
five years, from 33.7 to 39.0. Compared to a
total regional population gain of 32 percent,
the juvenile population will grow by only
9 percent, while the number of people age 64 to
84 and 85 and older will grow by 125 percent
and 124 percent, respectively. By 2030, nearly
19 percent of the region’s population will be 65 or
older – a higher percentage than is seen today in
the retirement-oriented state of Florida.
Figure 1
The Region is Becoming More Ethnically Diverse
San Diego Region, 2004 and 2030
Source: 2030 Regional Growth Forecast Update
Table 3
Population Change by Age Group
San Diego Region, 2004 to 2030
info — 2030 Regional Growth Forecast UpdateSANDAG
July 2008, No. 2
6
Table 4 summarizes how the one million new residents
will likely be distributed among the 19 jurisdictions,
based on current land use plans and policies and
the County of San Diego’s draft GP2020. Although
the region as a whole will grow by 32 percent,
Figure 2 indicates the growth rates vary widely by
jurisdiction. Six jurisdictions will grow at a faster rate
than the regional average: the unincorporated area,
Chula Vista, San Marcos, Carlsbad, Santee, and
National City. While these jurisdictions will see
the largest percentage gains in population over
the forecast period, it is important to note that
the City of San Diego will absorb by far the
greatest number of people (316,100, a
28% gain).
The projected distribution of new housing
units by jurisdiction is shown in Table 5. The
general pattern, not surprisingly, follows that
of the population forecast. It is significant
to note that all of the jurisdictions will see a
higher percentage increase in population than
in housing. The net effect of this is a 5 percent
gain in the average number of persons per
household, from 2.77 in 2004 to 2.87 in 2030.
Jurisdictions
* The County's proposed general plan is designed to accommodate a higher population
in 2020 than is forecasted, in part because not all areas that could be developed by
2020 will develop and some areas will develop at a lower density than contemplated by
the plan.
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast Update
Table 4
Total Population by Jurisdiction
San Diego Region, 2004 to 2030
info — 2030 Regional Growth Forecast Update
July 2008, No. 2
SANDAG 7
Figure 2
Growth Rates Vary Widely Among Jurisdictions
San Diego Region, 2004 to 2030
Table 5
Total Housing Units by Jurisdiction
San Diego Region, 2004 to 2030
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast Update
info — 2030 Regional Growth Forecast UpdateSANDAG
July 2008, No. 2
8
Table 6 and Figure 3 show forecasted total
employment by jurisdiction. The region is
expected to add about 465,000 jobs over
the forecast period, a 32 percent increase.
Compared to population growth, the growth
rates for employment are a little more balanced
among jurisdictions. Nine of the 19 jurisdictions
will see faster employment growth than the
region as a whole. Chula Vista is expected to
have the highest growth rate, with a 99 percent
increase in jobs between 2004 and 2030, due
to a relative abundance of vacant land planned
for employment use.
Figure 3
North County Cities Show Greatest Percentage Gains in Employment
San Diego Region, 2004 to 2030
Table 6
Total Employment* by Jurisdiction
San Diego Region, 2004 to 2030
* Includes uniformed military.
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast Update
info — 2030 Regional Growth Forecast Update
July 2008, No. 2
SANDAG 9
Maps 1 and 2 group the 19 jurisdictions
into six geographic subareas:
North County Coastal (Carlsbad, Del Mar,
Encinitas, Oceanside, Solana Beach),
North County Inland (Escondido, Poway,
San Marcos, Vista), East County (El Cajon,
La Mesa, Lemon Grove, Santee), South
County (Chula Vista, Coronado, Imperial
Beach, National City), the City of
San Diego, and the unincorporated area.
Map 1 shows the distribution of the
2004 to 2030 population growth by these
six subareas. The City of San Diego takes
the lion’s share, absorbing 37 percent of
the new residents. The unincorporated
area is next, with 26 percent. However,
much of that growth comes in the later
years of the forecast, as the cities begin
to fill up under their current land use
plans and more growth is forced into
the unincorporated area. The two North
County subareas combine to absorb
18 percent. The South County takes
14 percent, most of which occurs in the
City of Chula Vista.
Map 2 portrays the distribution of
employment growth among the same
areas. Again, the City of San Diego
accounts for the largest share (43%), but
the nine North County cities, several with
a large stock of vacant employment land,
will capture 27 percent of the new jobs.
Even though 43 percent of the new jobs
will be in the City of San Diego, its share
of the region’s jobs will drop from today’s
56 percent to 53 percent in 2030.
Map 2
Share of Employment Growth
San Diego Region, 2004 to 2030
Map 1
Share of Population Growth
San Diego Region, 2004 to 2030
info — 2030 Regional Growth Forecast UpdateSANDAG
July 2008, No. 2
10
The 2030 Regional Growth Forecast Update projects
that the region’s median age will increase by almost
six years over the 26-year period. Figure 4 depicts
median age by jurisdiction in 2004 and 2030, sorted
by age in 2004. While median age increases in all
jurisdictions over time, the largest increases are
seen in Solana Beach (10.6 years), and National City
(11 years).
Figure 5 shows median household income for
2004 and 2030 (in 1999 dollars), sorted by income in
2004. All jurisdictions show a gain in real household
income over the forecast period, ranging from less
than $10,000 in ten cities to more than $20,000 in
Solana Beach, Del Mar, and Coronado. The ranking
of each jurisdiction changes very little over time.
Figure 4
The Region's Population is Getting Older
San Diego Region, 2004 and 2030
Figure 5
Median Household Income by Jurisdiction (1999$)
San Diego Region, 2004 and 2030
info — 2030 Regional Growth Forecast Update
July 2008, No. 2
SANDAG 11
Background
The 2030 Regional Growth Forecast Update represents the best assessment of the changes we can
anticipate for the region and its communities based on the most current available information and
well-proven computer models. It is meant to help policy- and decision-makers prepare for the future
and is not an expression for or against growth.
The SANDAG forecasts are developed through a collaborative effort with experts in demography,
housing, the economy, and other disciplines in close cooperation with the local planning directors
and their staffs. Each provided and corroborated their forecast inputs. They also reviewed and
commented on the forecast results.
The forecast process includes two phases. First, a forecast for the entire region is prepared,
based largely on economic trends and the associated demographic characteristics. The second
phase allocates the regional forecast to jurisdictions and smaller geographic areas based on local
agencies’ general and community plans. In addition, the forecast process employs an Interregional
Commuting Model (ICM) to estimate the number of households located outside of the region
that contain at least one San Diego worker. A full description of the SANDAG forecasting process
and the computer models used is contained in the publication 2030 Forecast Process and Model
Documentation, available on the SANDAG Web site: www.sandag.org.
It has been apparent since the mid-1990s that our local land use plans and policies, in aggregate,
cannot support the long-range economic and population growth that is anticipated for the region.
In part, this is because the local plans typically have a shorter horizon year than the forecast does.
General plans and community plans are intended to guide development within a jurisdiction over a
certain period of time, and then be updated to reflect changing conditions.
While the forecast looks out to the year 2030, the horizon year of current local plans is typically
2010 or 2020. As those plans evolve, future forecasts may result in different outcomes. SANDAG's
Regional Comprehensive Plan (RCP) is intended to provide guidance for future plan changes. Basing
our forecasts on current plans and policies provides us with an important tool to help monitor RCP
progress in maintaining and improving the region’s quality of life.
San Diego Association of Governments 401 B Street Suite 800 San Diego, CA 92101
(main) (619) 699-1900 (fax) (619) 699-1905
info
info presents information produced as part of the SANDAG overall planning program. The series
contains population, housing, employment, land use, transportation, criminal justice, and other
data, as well as occasional reports on other subjects of general interest. This report is financed with
federal funds from the United States Department of Transportation, state funds from Caltrans, and
local funds from SANDAG member jurisdictions.
SANDAG
The San Diego Association of Governments (SANDAG) is the region’s primary research and planning
agency, providing the public forum for regional policy decisions about growth, transportation, transit
planning and construction, environmental management, housing, open space, energy, public safety,
and binational topics. SANDAG is composed of mayors, council members, and county supervisors
from each of the region’s 18 cities and county government:
Member Agencies
City of Carlsbad City of Chula Vista City of Coronado City of Del Mar
City of El Cajon City of Encinitas City of Escondido City of Imperial Beach
City of La Mesa City of Lemon Grove City of National City City of Oceanside
City of Poway City of San Diego City of San Marcos City of Santee
City of Solana Beach City of Vista County of San Diego
Advisory Agencies
Imperial County California Department of Transportation Metropolitan Transit System
North County Transit District United States Department of Defense
San Diego Unified Port District San Diego County Regional Water Authority
Southern California Tribal Chairmen’s Association Mexico
THE SERVICE BUREAU
The SANDAG Service Bureau is the consulting arm of SANDAG providing informational
and technical services to member agencies, nonmember government agencies, and private
organizations and individuals. Customized data, reports, and maps are available through the
SANDAG Service Bureau. For information, please call us at (619) 699-1900 or visit us at:
www.sandag.org/servicebureau
THE REGIONAL INFORMATION SYSTEM
The SANDAG Regional Information System contains a comprehensive collection of historic, current,
and forecasted information. We continuously update these datasets that contain demographic,
economic, land use, transportation, criminal justice, and environmental information. Much of this
information can be obtained at: www.sandag.org
Formatted data reports and raw data can be extracted from the Profile Warehouse and the Data
Warehouse. The site also provides access to several mapping applications.
SANDAG
June 2004 Number 4
2030 Regional Growth Forecast
Region Nation
Average Annual
Population Increase
0%
1%
2%
3%
4%
5%19801985199019952000200520102015202020252030Growth Rates are Slowing
San Diego Region and the Nation
info
info SANDAG/SOURCEPOINT June 2004, No. 4
SANDAG’s Final 2030 Forecast
was released in November 2003.
It predicts that between 2000
and 2030 the San Diego region will
add about one million more people,
over 300,000 new homes, and more
than 400,000 additional jobs. (See
Table 1.) Although this is a signifi cant
amount of growth, the region’s
growth rate has actually slowed over
the last decade, and that pattern will
continue. In fact, by the mid-2020s,
our growth rate is expected to fall
below that of the nation as a whole.
(See cover chart.)
For the 18 incorporated cities in
the region, the forecast is based on
the current adopted land use plans
and policies as they stand today. For
the unincorporated area, the forecast
is based on the most recent version of
the County’s GP2020 plan update, as
the Board of Supervisors feels that it
more accurately refl ects the County’s
Introduction
future direction. Hence, the 2030
Forecast provides a clear assessment
of where our plans of today, if left
unchanged, will likely take us over the
coming decades. There are several
long-range implications:
• The 314,000 new homes needed
by 2030 is roughly equivalent to
the entire remaining housing unit
capacity of the region under today’s
general and community plans.
Furthermore, almost one-quarter
of that remaining capacity is in
the form of redevelopment and
residential infi lling of land that is
already developed. On land that
is currently vacant, the remaining
housing unit capacity of the region
in 2000 was about 244,000 homes.
Today, just four years later, the
remaining capacity on currently
vacant land is fewer than 200,000
homes.
• Over the next 15 to 20 years, most
cities will fully develop under their
current plans. Therefore, between
2020 and 2030, most of the growth
in housing units (about 86 percent)
occurs in just two areas: within the
higher density central areas of the
City of San Diego, and in the very
low density unincorporated areas
well outside of the cities.
• People will seek lower-cost housing
elsewhere, but continue to work
within the region, meaning that
Introduction................................. 2
The Region................................... 2
Jurisdictions................................ 4
table of contents
SANDAG’s Regional Information System contains a comprehensive collection
of historic, current, and forecasted information. We continuously update these
datasets that contain demographic, economic, land use, transportation, criminal
justice, and environmental information.
Much of this information can be obtained from our Web site (www.sandag.org).
Formatted data reports and raw data can be extracted from the Profi le
Warehouse and the Data Warehouse. The site also provides access to several
interactive mapping applications.
SourcePoint, a nonprofi t corporation chartered by SANDAG, can provide
assistance in preparing customized reports and maps.
For more information, contact
our Public Information Offi ce at (619) 699-1950.
The Region
T able 1 presents the regional
change in population, housing
units, employment, household
size, and household income over the
30-year period 2000 to 2030. About
one million new residents will be
added to the region by 2030, with
natural increase (births minus deaths)
accounting for about two-thirds of
the growth. The remaining one-third
is the result of net migration, both
domestic and international.
As is the case today, population
growth is expected to continue to
outpace home construction. Over
time, this imbalance will result in
an increase in household size (the
number of persons per household),
a decrease in vacancy rates, and
an increase in the amount of
interregional commuting, primarily
from southwestern Riverside County
and northern Baja California.
Although the region’s population will
grow by a million people over the
forecast period, our rate of growth
is slowing. The chart on the cover
compares the region’s growth rate
to that of the nation over the 50-
year period 1980 to 2030. While we
interregional commuting will
increase substantially. In this
forecast, about 93,000 households
are “exported” to Riverside
County, Baja California, and even
Imperial County over the 30 years.
Currently, about three percent of
our workforce lives outside of the
region’s boundaries. By 2030 that
fi gure could increase signifi cantly.
• Household size (the number
of persons per household) rises
by about fi ve percent between
2000 and 2030, from 2.73 to 2.88.
This seemingly small increase
accounts for an additional 200,000
people living in the region’s
existing homes.
2
June 2004, No. 4 info SANDAG/SOURCEPOINT
Source: 2030 Regional Growth, November 2003, SANDAG.
2000 2010 2020 2030 Num. Pct.
1,040,100 1,166,100 1,254,600 1,354,100 314,000 30%
2.73 2.78 2.86 2.88 0.15Household Size 5%
$47,500 $48,700 55,900 $64,600 17,100 36%
2,813,800 3,211,700 3,528,600 3,855,100 37%
Median Hhld. Income
2000 - 2030 Change
1,384,700 1,528,500 1,672,900 1,824,000 439,300Employment 32%
1,041,300PopulationHousing Units
Table 1
Population, Housing and Employment
San Diego Region
will experience some ups and downs
between now and 2030, the general
trend is downward. By the mid-2020s,
we will be growing at a slower pace
than the nation. The reasons for this
slowdown include the fact that land
available for residential development
will diminish. Also, the region’s
mortality rate will rise as those in the
large baby boom generation reach
their 70s and 80s toward the end of
the forecast period.
The region’s median household
income (adjusted for infl ation, shown
in constant (1999) dollars) is expected
to show positive gains over the
forecast period, from $47,500 in 2000
to $64,600 in 2030. This 36 percent
increase in real median household
income may seem large, but the
fi gures are consistent with historical
trends and projected long-term
income growth trends for California
and the nation.
Our ethnic composition will continue
to evolve. Table 2 presents the
regional changes in population for
four ethnic groups: Hispanic, and
non-Hispanic White, Black, and Asian/
Other. While the Hispanic and Asian/
Other groups will almost double in
size over the 30 years, the number of
Whites is expected to decline slightly.
Figure 1 illustrates these changes in
terms of share of total population.
The Hispanic and Asian/Other groups
both gain as a percent of total
population. The Black group stays
constant at about fi ve percent, and
the White group’s share drops from
55 percent today to 40 percent in
2030. When that group’s share falls
below 50 percent—probably around
the year 2006—there will be no ethnic
majority in the San Diego region.
Statewide, that is true today. The 2000
Census found that only 47 percent of
Californians classifi ed themselves as
non-Hispanic White.
Just as the ethnic composition of the
region will change dramatically, so
will its age structure. Table 3 clearly
illustrates the aging of the region’s
population. During the 30-year
forecast period, the region’s median
Source: 2030 Regional Growth Forecast, November 2003, SANDAG.
White
Asian/OtherRegion
Hispanic
2000 - 2030 Change
2000
1,548,800
359,5002,813,800
751,000
154,500
2030
1,529,100
705,1003,855,100
1,423,500
197,400
Num.
-19,700
345,5001,041,300
672,500
43,000Black
Pct.
-1%
96%
37%
90%
28%
Table 2
Population Change by Ethnic Group, 2000 – 2030
San Diego Region
Ethnicity
Ethnicity is reported in four
mutually exclusive groups—
Hispanics and non-Hispanic Whites,
non-Hispanic Blacks or African
Americans, and non-Hispanic Asian
and other races. This terminology is
consistent with the way 2000 Census
information was collected and
reported.
Hispanic
Includes all persons of Hispanic or of
Latino or Spanish origin. Hispanics
may be of any race.
Non-Hispanics are divided into
three groups:
White: Includes persons who
identifi ed their race as
White as well as persons
who did not classify
themselves in one of the
specifi c race categories but
entered a response
suggesting European or
Middle Eastern origin.
Black: Includes persons who
identifi ed their race as
Black or African American
as well as persons who did
not classify themselves on
one of the specifi c race
categories, but entered a
response such as African,
Creole, Jamaican, or West
Indian.
Asian/ Includes persons who
Other: identifi ed their race as
Japanese, Chinese, Filipino,
Korean, Asian Indian,
Vietnamese, Hawaiian,
Guamanian, Samoan, Other
Asian and Pacifi c Islander,
American Indian, or
another race category not
included elsewhere.
3
info SANDAG/SOURCEPOINT June 2004, No. 4
Source: 2030 Regional Growth Forecast, November 2003, SANDAG.
18 - 64
85 and olderRegion
Median Age
0 - 17
2000 - 2030 Change
2000
1,776,400
36,4002,813,800
33.2
723,700
277,300
2030
2,299,500
100,2003,855,100
38.9
814,700
640,700
Num.
523,100
63,8001,041,300
5.7
91,000
363,40065 - 84
Pct.
29%
175%37%
17%
13%
131%
Table 3
Population Change by Age Group, 2000 – 2030
San Diego Region
Hispanic Asian/Other Black White
0%
10%
20%
30%
40%
50%
60%
Percent of
Total Pop.
2000 2030
Figure 1
We are Becoming More Ethnically Diverse
(San Diego Region)
age will increase by more than fi ve
years, from 33.2 to 38.9. Compared
to a regional population gain of 37
percent, the juvenile population will
grow by only 13 percent, while the
number of people age 64 to 84 and
85 and older will grow by 131 percent
and 175 percent, respectively. By
2030, fully 19 percent of the region’s
population will be 65 or older—a
higher percentage than is seen today
in the state of Florida.
Jurisdictions
Table 4 summarizes how the one
million new residents will likely be
distributed among the 19 jurisdictions,
based on current land use plans and
policies and the County’s GP2020.
Although the region as a whole will
grow by 37 percent, Figure 2 indicates
the growth rates vary widely by
jurisdiction. Only four jurisdictions will
grow faster than the regional rate:
Carlsbad, Chula Vista, San Marcos, and
the unincorporated area. While these
four jurisdictions will see the largest
percentage gains in population over
the forecast period, it is important to
note that the City of San Diego will
absorb by far the greatest number of
people (433,400, a 35% gain).
The projected distribution of new
housing units by jurisdiction is shown
in Table 5. The general pattern,
not surprisingly, follows that of the
population forecast. It is signifi cant
to note that 18 of the 19 jurisdictions
will see a higher percentage increase
in population than in housing. The net
effect of this is a fi ve-percent gain in
the average number of persons per
household, from 2.73 in 2000 to 2.88
in 2030.
The forecast of total employment by
jurisdiction is the subject of Table 6
and Figure 3. The region is expected
to add about 440,000 jobs over
the forecast period, a 32 percent
increase. Compared to population
growth, the growth rates for
employment are a little more balanced Percent Change in Population, 2000 - 2030
0%10%20% 30% 40% 50% 60% 70%
Solana Beach
Coronado
Del Mar
La Mesa
El Cajon
National City
Poway
Lemon Grove
Imperial Beach
Escondido
Encinitas
Vista
Oceanside
Santee
San Diego
REGION
Unincorporated
San Marcos
Chula Vista
Carlsbad
Figure 2
Growth Rates Vary Widely Among Jurisdictions
4
June 2004, No. 4 info SANDAG/SOURCEPOINT
among jurisdictions. Eight of the 19
jurisdictions will see faster employment
growth than the region as a whole.
Five of those are in the North County:
Vista, Poway, Oceanside, San Marcos,
and Carlsbad. Again, this is due to a
relative abundance of vacant land
planned for employment use.
Maps 1 and 2 on page 7 group the
19 jurisdictions into six geographic
subareas: North County Coastal
(Carlsbad, Del Mar, Encinitas,
Oceanside, Solana Beach), North
County Inland (Escondido, Poway,
San Marcos, Vista), East County
(El Cajon, La Mesa, Lemon Grove,
Santee), South County (Chula Vista,
Coronado, Imperial Beach, National
City), the City of San Diego, and the
unincorporated County of San Diego.
Map 1 shows the distribution of the
2000 to 2030 population growth by
these six subareas. The City of San
Diego takes the lion’s share, absorbing
41 percent of the new residents. The
unincorporated area is next, with
23 percent. However, much of that
growth comes in the later years of
the forecast, as the cities begin to fi ll
up under their current land use plans,
and more growth is forced into the
unincorporated area. The two North
County subareas combine to absorb
20 percent, and the South County
takes 12 percent, most of which occurs
in the City of Chula Vista.
Map 2 portrays the distribution of
employment growth among the same
areas. Again, the City of San Diego
accounts for the largest share (45%),
but the nine North County cities,
several with a large stock of vacant
employment land, will capture 28
percent of the new jobs. Even though
45 percent of the new jobs will be in
the City of San Diego, its share of the
region’s jobs will drop from today’s 56
percent to 54 percent in 2030.
Age and income are two widely used
demographic characteristics. The 2030
Forecast projects that the region’s
median age will increase by almost six
years over the 30-year period. That
may be considered bad news by some,
but the good news is that our median
incomes, adjusted for infl ation, are
projected to rise by a regional average
of 36 percent.
Figure 4 depicts median age by
jurisdiction in 2000 and 2030 and is
sorted by age in 2000. While median
age increases in all jurisdictions over
time, the largest increases are seen
in Solana Beach (11.0 years), and
National City (10.6 years).
1The County's proposed general plan is designed to accommodate a higher population in 2020 than is forecasted, in part because not all areas that could be developed by 2020 will develop, and some areas will develop at a lower density than
contemplated by the plan.
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast, November 2003, SANDAG.
2000 - 2030 Change
78,200 107,300 120,600 128,800 50,500Carlsbad 65%
24,100 24,800 25,200 25,500 1,400Coronado 6%173,600 247,900 269,000 278,200 104,600Chula Vista 60%
4,400 4,600 4,700 4,700 300Del Mar 8%
58,000 64,900 68,400 71,000 13,000Encinitas 22%Escondido 133,600 144,700 153,400 163,300 29,700 22%Imperial Beach 27,000 27,900 30,000 32,800 5,800 22%La Mesa 54,700 57,000 59,800 62,500 7,800 14%Lemon Grove 24,900 26,200 27,800 29,700 4,800 19%National City 54,300 56,100 59,000 62,800 8,600 16%Oceanside 161,000 189,000 201,500 208,600 47,500 30%Poway 48,000 51,800 54,500 56,100 8,000 17%San Diego 1,223,400 1,370,300 1,507,800 1,656,800 433,400 35%San Marcos 55,000 77,600 82,400 86,000 31,100 56%
Santee 53,000 55,300 61,000 71,100 18,100 34%Solana Beach 13,000 13,500 13,600 13,700 700 5%Vista 89,900 97,600 104,600 111,600 21,800 24%Unincorporated1 442,900 436,600 581,600 682,800 239,900 54%REGION 2,813,800 3,211,700 3,528,600 3,855,100 1,041,300 37%
El Cajon 94,900 98,600 103,700 109,070 14,200 15%
2000 2010 2020 2030 Num. Pct.
Table 4
Total Population by Jurisdiction
San Diego Region
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast, November 2003, SANDAG.
2000 - 2030 Change
33,800 45,300 49,000 50,700 16,900Carlsbad 50%
9,500 9,600 9,700 9,900 400Coronado 4%59,500 81,500 86,400 87,500 28,000Chula Vista 47%
2,600 2,600 2,600 2,600 0Del Mar 2%
23,800 26,200 26,900 27,200 3,400Encinitas 14%Escondido 45,100 48,000 49,600 51,600 6,500 15%Imperial Beach 9,700 9,800 10,300 10,900 1,200 12%La Mesa 24,900 25,300 25,700 26,000 1,100 4%Lemon Grove 8,700 9,000 9,300 9,700 1,000 11%National City 15,400 15,700 16,200 17,000 1,600 10%Oceanside 59,600 67,800 69,800 70,700 11,100 19%Poway 15,700 16,700 17,100 17,200 1,500 10%San Diego 469,700 520,000 558,100 604,400 134,700 29%San Marcos 18,900 27,200 28,600 29,200 10,300 55%
Santee 18,800 19,400 20,800 23,700 4,900 26%Solana Beach 6,500 6,500 6,600 6,600 100 2%Vista 29,800 31,900 33,300 34,600 4,800 16%Unincorporated 152,900 167,800 198,000 236,900 84,000 55%REGION 1,040,100 1,166,100 1,254,600 1,353,900 313,800 30%
El Cajon 35,200 35,800 36,600 37,500 2,300 7%
2000 2010 2020 2030 Num. Pct.
Table 5
Total Housing Units by Jurisdiction
San Diego Region
5
info SANDAG/SOURCEPOINT June 2004, No. 4
1Includes uniformed military.
Totals may be affected by rounding.
Source: 2030 Regional Growth Forecast, November 2003, SANDAG.
2000 - 2030 Change
50,800 57,300 65,700 79,200 28,400Carlsbad 56%
29,900 30,100 30,200 30,300 400Coronado 1%53,700 59,800 68,900 79,400 25,700Chula Vista 48%
3,800 3,900 4,100 4,200 400Del Mar 10%
24,200 26,100 28,300 29,700 5,500Encinitas 23%Escondido 49,700 53,000 56,900 63,800 14,100 28%Imperial Beach 3,900 4,400 4,800 4,900 1,000 24%La Mesa 25,400 26,000 26,600 27,800 2,400 9%
Lemon Grove 8,600 8,900 9,400 9,800 1,200 14%National City 24,800 25,200 25,700 27,300 2,500 10%Oceanside 39,600 44,500 51,400 62,400 22,800 58%Poway 21,800 26,400 31,600 35,000 13,200 61%San Diego 777,600 866,100 931,900 976,000 198,400 26%San Marcos 30,400 34,000 38,600 47,400 56%Santee 16,100 17,400 19,200 21,800 5,700 36%Solana Beach 8,900 9,600 9,900 10,300 1,400 16%Vista 33,800 39,900 47,000 55,800 22,000 66%Unincorporated 140,300 153,200 178,100 211,200 70,900 51%
REGION 1,384,600 1,528,600 1,672,800 1,823,800 439,200 32%
El Cajon 41,300 42,800 44,500 47,500 6,200 15%
2000 2010 2020 2030 Num. Pct.
17,000
Table 6
Total Employment1 by Jurisdiction
San Diego Region
0% 10% 20% 30% 40% 50% 60% 70%
Coronado
La Mesa
National City
Del Mar
Lemon Grove
El Cajon
Solana Beach
Encinitas
Imperial Beach
San Diego
Escondido
REGION
Santee
Chula Vista
Unincorporated
Carlsbad
San Marcos
Oceanside
Poway
Vista
Percent Change in Employment, 2000 - 2030
Figure 3
North County Cities Show Greatest Gains in Employment
0 5 10 15 20 25 30 35 40 45 50
Escondido
Vista
Imperial Beach
San Marcos
El Cajon
San Diego
REGION
Oceanside
Coronado
Santee
Lemon Grove
National City
Chula Vista
Unincorporated
Poway
Encinitas
La Mesa
Carlsbad
Del Mar
Solana Beach
Median Age, 2000 and 2030
2000 2030
Figure 4
We Are Getting Older...
6
June 2004, No. 4 info SANDAG/SOURCEPOINT
0 5 10 152.5
Miles
11%9%
41%4%
12%
23%
Map 1
San Diego Region
SHARE OF POPULATION
GROWTH
2000 - 2030
Oceanside
Carlsbad
Encinitas
Solana Beach
Del Mar
Coronado
Imperial
Beach
Vista
San Marcos
Escondido
Poway
Unincorporated
El Cajon
Santee
La Mesa
San DiegoLemon Grove
Chula
Vista
Vista
National City
ORANGE
COUNTY
MEXICO IMPERIAL COUNTYSAN DIEGO COUNTY
RIVERSIDE COUNTY
Temecula
0 5 10 152.5
Miles
13%15%
45%4%
7%
16%
Map 2
San Diego Region
SHARE OF EMPLOYMENT
GROWTH
2000 - 2030
Unincorporated
Escondido
Poway
San Marcos
Vista
Santee
El CajonLa Mesa
Lemon
Grove
San Diego
National City
Chula
Vista
Imperial
Beach
Coronado
Del Mar
Solana Beach
Encinitas
Carlsbad
Oceanside
TemeculaORANGECOUNTY
RIVERSIDE COUNTY
SAN DIEGO COUNTY
IMPERIAL COUNTYMEXICO
7
info SANDAG/SOURCEPOINT June 2004, No. 4
Background
The 2030 Regional Growth
Forecast represents the
best assessment of the
changes we can anticipate for
the region and its communities
based on the most current
available information and
well-proven computer models.
It is meant to help policy and
decision makers prepare for the
future and is not an expression
for or against growth.
SANDAG’s forecasts are
developed through a
collaborative effort with experts
in demography, housing, the
economy and other disciplines,
and the close cooperation of
the local planning directors and
their staffs. Each jurisdiction had
several opportunities to provide
and corroborate their forecast
inputs as well as review and
comment on the forecast results.
The forecast process includes
two phases. First, a forecast for
the entire region is prepared,
based largely on economic
trends and the associated
demographic characteristics.
The second phase allocates the
regional forecast to jurisdictions
and smaller geographic
areas based on the region’s
general and community plans.
In addition, the forecast
process now employs a new
Interregional Commuting Model
(ICM) to estimate the number of
households located outside of
the region that contain at least
one San Diego worker. A
full description of SANDAG’s
forecasting process and the
computer models used is
contained in the publication
Final 2030 Forecast Process
and Model Documentation,
available on the SANDAG Web
site (www.sandag.org).
It has been apparent since the
mid-1990s that our local land
use plans and policies, in
aggregate, cannot support
the long-range economic and
population growth that is
anticipated for the region. In
part, this is because the local
plans typically have a shorter
horizon year than the forecast
does. General plans and
community plans are intended
to guide development within a
jurisdiction over a certain period
of time, and then be updated to
refl ect changing conditions.
While the forecast looks out to
the year 2030, the horizon year
of current local plans is typically
2010 or 2020. As those plans
evolve, future forecasts may
result in different outcomes. The
Regional Comprehensive Plan
(RCP) is intended to provide
guidance for future plan
changes. Basing our forecasts
on current plans and policies
provides us with an important
tool to help monitor the RCP’s
progress in maintaining and
improving the region’s quality
of life.
SourcePoint is a chartered nonprofi t
corporation of SANDAG.
SANDAG Member Agencies:
Carlsbad
Chula Vista
Coronado
Del Mar
El Cajon
Encinitas
Escondido
Imperial Beach
La Mesa
Lemon Grove
National City
Oceanside
Poway
San Diego
San Marcos
Santee
Solana Beach
Vista
County of San Diego
Advisory Agencies:
Imperial County, Caltrans, Metropolitan
Transit System, North San Diego County
Transit Development Board, U.S.
Department of Defense, San Diego
Unifi ed Port District, San Diego County
Water Authority, Baja California/Mexico
info
info presents information produced as
part of the San Diego Association of
Governments’ overall planning
program. The series contains
population, housing, employment, land
use, transportation, criminal justice
and other data, as well as occasional
reports on other subjects of general
interest. This report is fi nanced with
federal funds from the U.S. Department
of Transportation, state funds from
Caltrans, and local funds from SANDAG
member jurisdictions.
San Diego Association of Governments
401 B Street • Suite 800
San Diego, CA 92101
(619) 699-1900 • (619) 699-1905
8
1
2
COURT REPORTER:AUdible,please.
CHAIR KRUER:Let's see,there is Commissioner
59
3 Burke,and Commissioner Blank,Potter,myself,Vice Chair
4 Neely,and Commissioner Hueso.
5 So,it is six,zero,unanimous,so we have adopted
6 the findings.
7 And,before we --staff,Commissioners,my
8 colleagues,people out in the aUdience,maybe it would be a
9 good time,before we jump into the next item,that we take a
10 bio-break for 10 minutes.
11 [Recess &
12 Item No.5.a.Condition Compliance
13 Energy Minimization &Greenhouse Gas Reduction Plan ]
14 So,with that,we will start with the Condition
15 Compliance 5.a.,and will go to staff.
16 Mr.Luster,do you want to go first.
17 ENVIRONMENTAL SPECIALIST LUSTER:Thank you,Mr.
18 Chair,Commissioners.Our next item is 5.a.Condition
19 Compliance.
20 I would like to introduce Sarah Townsend,the
21 coastal analyst who will be making the presentation.
22 COASTAL STAFF ANALYST TOWNSEND:Good morning,
23 Chair Kruer and Commissioners.This next item is consider-
24 ation of Condition Compliance for Poseidon Resources proposed
25 energy minimization and greenhouse gas reduction plan.
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1 As you may recall from last November's hearing,
2 Poseidon offered,as part of its project description to make
3 it desalination facilities net carbon neutral.In your
4 approval of this project,the Commission required through
5 Special Condition 10 that Poseidon submit a plan describing
6 how it would achieve that level of greenhouse gas reduction.
7 Staff has been working with Poseidon and a numb.er
8 of agencies over the past several months to develop an
9 acceptable plan.Poseidon I s most recent plan is attached to
10 Exhibit 1 to the staff report,and staff is recommending you
11 approve the plan as modified in the staff report.
12 Please note that staff provided you with an
13 addendum last night,or early this morning,that includes
14 correspondence received regarding the plan.
15 Please note,too,that Poseidon has clarified that
16 the intent of this plan is not to have the project be net
17 carbon neutral,but to bring the net indirect greenhouse gas
18 emissions from purchased electricity to zero.This is not
19 the same as being carbon neutral,which generally means
20 bringing to zero a larger set of both direct and indirect
21 emissions,such as emissions from transportation of
22 materials,products,waste from employees,emission from fuel
23 combustion from stationary sources,emissions from production
24 of purchased materials,et cetera.
25 However,staff concurs with Poseidon that the
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1 focus of its plan should be on just those net indirect
2 emissions resulting from the.facility's electricity use,
3 since they do represent a majority of the emissions expected
4 during the life of the project.
5 Staff's presentation today will briefly summarize
6 some key points of Poseidon's proposed plan,and staff's
7 recommended modifications,provide a brief background of
8 Assembly Bill 32,the state's landmark greenhouse gas
9 emission reduction statute,and describe why staff's
10 modifications to Poseidon's plan are needed to insure
11 conformity to Special Condition 10,and the Commission's
12 findings.
13 Poseidon's proposed plan includes several features
14 to reduce the desalination facility's expected energy use,
15 and includes other features meant to mitigate for the
16 remaining net indirect emissions resulting from the
17 desalination facility's electricity use.
18 One of the key energy reduction measures will be
19 Poseidon's use of an energy recovery system to reduce its
20 overall electricity use.Poseidon is also considering
21 installing a solar voltaic system on its roof,and using
22 electricity generated from that system to further reduce its
23 net emissions.It has also identified a number of other
24 measures it expects will reduce or offset its net emissions,
25 including a reforestation project in the San Diego area,
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1 purchase of offsets for renewable energy credits,and others.
2 The plan,as proposed,would also establish a
3 committee to assess,select,and account for the various
4 emission reduction measures,and would require the San Diego
5 Air Pollution Control District to maintain a data base
6 showing the results of Poseidon's efforts.
7 Just a quick note regarding these last few points.
8 We understand Poseidon may be proposing today a change in its
9 proposed committees,and we also understand that at this
10 point the San Diego Air Pollution Control District has not
11 yet committed to managing Poseidon's data base.
12 Now,onto staff's recommended modifications.
13 Staff recommends the Commission approve the plan with some
14 key modifications to insure the plan is consistent with
15 Special Condition 10,as well as the Commission's findings
16 and applicable Coastal Act provisions.
17 Staff has evolved a very simple approach to
18 provide the Commission with the necessary level of assurance.
19 The recommended ,modifications are show:n on page 4 of the
20 staff report,and they include,first,'have Poseidon
21 implement its plan usingAB32.This modification includes
22 two main steps,one,insure Poseidon uses the protocols,
23 mechanisms,and criteria approved by the California Air
24 Resources Board,CARB,or by the California Climate Action
25 Registry,CCAR,which are the two entities most responsible
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11 Third,have Poseidon modify the plan to match the
12 review processes being implemented by CARB or CCAR.
13 And,finally require Poseidon to submit a revised
14 plan that incorporates these modifications.
15 Staff's recommendations are based entirely on
16 coordination and consultation with Poseidon,as well as a
17 number of state,regional,and local agencies that provided
18 assistance and comments during development of Poseidon's
19 plan.All of the agencies that participated in reviewing the
20 plan,including CARB and CCAR,recommended that AB32 serve as
21 the basis for Poseidon's plan.
22 In addition,and through our recent consultation
23 with Poseidon,staff is recommending the following additional
24 modifications,and in the first of staff's proposed modifica-
25 tions on page 4,we recommend you allow Poseidon to use not
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1 only those programs approved by CARB or CCAR,but also those
2 approved by any of the state's Air Pollution Control
3 Districts pursuant to AB32.staff believes this will broaden
4 the scope of acceptable emission reduction programs available
5 to Poseidon,and will insure the same level of verification
6 and scrutiny provided by the CARB and CCAR programs.
7 Now,before I explain the need for staff's
8 recommended modifications,I'll provide a very brief back-
9 ground of AB32.The statute adopted by the state in 2006
10 establishes a state wide target to reduce by 2020 all
11 greenhouse gas emissions emitted in the state to 1990 levels.
12 Meeting this goal will require a substantial
13 change in how the state addresses the effects of proposed
14 developments,including those effecting coastal resources,as
15 noted in your findings.
16 AB32 includes a number of mechanisms,protocols,
17 and criteria,that are to be used to implement this goal.
18 AB32 includes provisions that apply to the regulated
19 community,to voluntarY,efforts to offset emissions,and to
20 market-based strategies for emission reductions.These
21 provisions include 6 criteria that apply to all emission
22 reduction measures implemented in support of AB32.The
23 criteria are meant to insure that emission reductions are
24 real,permanent,quantifiable,verifiable,enforceable,and
25 in addition to measures that would otherwise occur.
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14 Now,I will return to the need for modifications.
15 As I mentioned earlier,staff is recommending the Commission
16 approve Poseidon's plan with modifications.These
17 modifications are meant to insure that the measures Poseidon
18 implements meet the applicable criteria of AB32.This will
19 provide thenece~sary level of assurance that the plan
20 conforms to the Commission's conditions and findings.
21 As yo).!may know,there is currently a wide variety
22 of emission reduction measures and credits available on the
23 market today,some of which are of uncertain value,or which
24 have not been seen to result in actual emission reductions.
25 This is one reason why CARB is adopting regulations that meet
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1 the 68032 criteria.
2 By using the mechanisms of AB3.2,Poseidon's
3 efforts will be independently verified,and will be available
4 as part of the state's implementation of the statute.
5 Staff's understanding is that the most significant elements
6 of Poseidon's plan,as currently proposed,do not yet conform
7 to AB32 standards,which means that Poseidon would not be
8 able to fUlly participate in AB32-based mechanisms,such as
9 trading emission reduction credits within a state approved
10 market.It also means that the Commission will not have the
11 leVel of assurance necessary to show that the plan results in
12 emission reductions recognized by California.
13 Additionally,staff's recommendations insure that
14 Poseidon's plan avoids redundancy and confusion over what
15 protocols might apply to various proposed measures,and how
16 those measure will be evaluated.
17 As noted above,the plan,as currently proposed,
18 would establish its own review committee,its own reporting
19 and accou~ting mechanisms,and its own verification system,
20 outside o£those already established and available through
21 CCAR.Staff's recommended modification would simplify this
22 process,and provide independent verification that Poseidon's
23 plan will meet its goal of net zero indirect greenhouse gas
24 emissions,from the purchase of its electricity.
25 Poseidon has raised a number of concerns about
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1 staff's recommended modifications,which I will address
2 briefly.For example,Poseidon has stated.that its plan is
3 voluntary,and that it~is not regulated under AB32.This is
4 true.Staff recognizes that Poseidon is not regulated by
5 AB32;however,as noted previously,AB32 also applies to
6 voluntary measures that are meant to be part of the state's
7 emission reduction efforts.
8 Poseidon has stated a number of times that its
9 plan is meant to meet AB32 requirements for voluntary offset
10 programs,and that it considers the plan to be a model for
11 voluntary emission reductions under AB32.Although the plan
12 as currently proposed would not conform to AB32,by adopting
13 staff's recommendations,the Commission would insure that the
14 plan meets Poseidon's stated goal.
15 Poseidon has also expressed the concern that
16 staff's modifications would limit poseidon to using less than
17 1 percent of the offset market.Staff recognizes that
18 offsets approved by CARB,CCAR,and the air districts will be
19 a small percentage of all available offsets;however,staff's
20 recommendation would insure that any offsets Poseidon
21 purchases are verifiable and legitimate.
22 Regarding the concern about supply,staff
23 understand that CCAR expects to have at least 5 million
24 approved offset credits available by the time Poseidon starts
25 operations,therefore,even if Poseidon chose to simply
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1 purchase approved offsets to zero out its net emissions,it
2 would be fewer than 2 percent of the expected approved supply
3 from just one of the approved entities.
4 We note,too,that CARB also has in place AB32-
5 based protocols for one of the measures the Commission
6 .specifically requested of poseidon,the $1 million worth of
7 trees for reforestation,and that Poseidon has committed to
8 use those protocols.Poseidon has also committed to use the
9 CCAR approved methodology for determining the project's
10 greenhouse gas emissions.staff's recommendations would
11 provide that Poseidon build on these commitments,and insure
12 all of its plan be reviewed under CARB and CCAR approved
13 measures.
14 Poseidon has also requested that its plan include
15 a contingency measure that would allow it to opt out if
16 certain emission reduction efforts --if offsets are not
17 reasonably available,or if the maarket is somehow
18 dysfunctional.
19 If these conditions exist,Poseidon has proposed
20 that instead deposits go into an escrow account to be used
21 for future emission reduction measures.staff's concern with
22 this proposal is that Poseidon's plan does not assign the
23 conditions under which the market would be considered
24 disrupted or unstable,or at what costs offsets would be
25 economically infeasible.Again,however,staff believes this
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1 concern to be alleviated by having Poseidon participating
2 fully in AB32-approved mechanisms,which are to include
3 considerations of costs and feasibilities.
4 As another concern,Pciseidon has stated that
5 staff's recommendations would have it mitigate for growth
6 emission;however,this is incorrect.staff concurs with
7 Poseidon that the plan is to mitigate only for its net
8 emissions.The difference is that Poseidon's plan,as
9 currently proposed,does not allow for independent
10 verification of all of its net emissions.This issue
11 illustrates one of the most significant differences between
12 Poseidon's plan and staff's recommended modification,that
13 is,how to treat what Poseidon describes as project related
14 measures.
15 Poseidon states that its project related measures
16 should not have to meet the AB32 criteria;however,AB32 does
17 not include such a distinction,and in fact,the state says
18 its criteria are meant to apply to any greenhouse gas
19 emission reduction measure implemented in support of AB32.
20 This is a key issue in the Commission's decision
21 today,because it involves the single largest emission
22 reduction measure Poseidon is proposing.specifically,
23 Poseidon is proposing emission reduction credits for
24 offsetting water imports in the state water project.This
25 one measure would represent about two/thirds of Poseidon's
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1 proposed emission reductions;however,the plan as currently
2 proposed would not insure this measure can be adequately
3 verified by an independent third party,as established in
4 AB32.
5 Now,you received a number of comments about this
6 measure,including correspondence staff provided to you
7 earlier,which shows a split of opinions,including some
8 differences within the same agencies about whether this
9 measure should,or should not,count for part of the
10 project's emission reductions.
11 Staff's review of the available information,and
12 water agency planning documents,shows that Poseidon's
13 project would not result in reduced emissions due to reduced
14 water inports.Nonetheless,staff recognized that answering
15 this question would require significant additional research
16 about how the state water system operates,how decisions are
17 made to import or redirect water,and other similar issues.
18 Staff recommendation,therefore,is that the
19 Commission not decide one way Or another on this question,
20 but that it allow the question to be answered through the use
21 of the CARB and CCAR processes available to address just this
22 sort of issue.The result would be that this proposed
23 measure would be evaluated just like the others in Poseidon's
24 plan,and would be reviewed using CARB or CCAR approved
25 protocols.
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1 By adopting staff's recommended modifications,the
2 Commission will insure that this key mitigation element
3 receives the necessary level of expert scrutiny and
4 verification to provide the Commission with the assurance
5 that the project is adequately mitigated.
6 In closing,staff recommends the Commission
7 approve Poseidon's plan as modified by the staff's recommend-
8 ations in our report.We understand the applicant has a
9 presentation for you,but we will be available for your
10 questions.
11 Thank you.
12 EXECUTIVE DIRECTOR DOUGLAS:Mr.Chairman,I have
13 some additional comments
14
15
CHAIR KRUER:Yes,Director.
EXECUTIVE DIRECTOR DOUGLAS:relative to the
16 issue of whether or not the Commission has the authority to
17 impose conditions relating to greenhouse gas emissions.
18 As we described before,when this matter was
19 before you,and the Commission approved it,anq.adopted these
20 conditions,the Commission has,on a number of 'occasions,had
21 extensive discussions about the impacts of greenhouse gas
22 emissions,and greenhouse gases and carbon deposition,on
23 coastal resources.
24 You looked at the variety of policies in the
25 Coastal Act,the variety of coastal resources that are
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1 adversely affected by climate change,by temperature change,
2 by deposition from greenhouse gases in the atmosphere,and
3 you have imposed those conditions relating to greenhouse gas
4 reductions in other projects.It was a major element in the
5 Commission's denial of the LNG terminal off of Oxnard,
6 relative to the impacts.of greenhouse gas emissions,that
7 would result from that project.As you recall,we had
8 identified that the emissions from that would equate to about
9 40 percent of the city of New York's emissions in any year.
10 You also used that as an issue,and looked at that
11 issue,relative to the toll road.There are other major
12 projects that clearly this Commission has identified as
13 needing to address the greenhouse gas emissions generated by
14 the specific project.
15 And,your approach has included both reducing up
16 front the amount of energy to be used,so that you reduce the
17 potential for greenhouse gas emissions,and then compensation
18 or mitigation,which includes the offsets,and then
19 adaptation somewhere along the line .
20 So.the Commission has a history of dealing with
21 this issue,and we think that there is no question that you
22 have the legal basis for addressing the issue,as well as
23 looking at the particular policies in the Coastal Act that
24 are being applied,relative to the inconsistency with some of
25 the policies and the need to use the override policy in the
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1 Act.
2 The other point I wanted to make is that,as we
3 entered into this,and as the Commission discussed at the
4 time that it was approved,we are not going out to try to
5 reinvent a wheel here.we recognize other agencies'
6 jurisdiction,other agencies'responsibilities,specifically
7 the state Air Resources Control Board,and the regional
8 boards,and work with the Energy Commission.That is why we
9 spent considerable time coordinating with these agencies as
10 we crafted our approach to the plan submitted by Poseidon in
11 response to your condition that you imposed as necessary in
12 order to make the findings that this project would be
13 consistent with the Coastal Act.
14 I think that those coordination sessions were very
15 productive.We appreciate all the agencies'representatives
16 who participated in that.Our staff worked really hard to
17 insure that coordination,and that is why we came up with the
18 recommendation that we have,which really relies on those
19 agencies that have the primary r~sponsibility for addressing
20 greenhouse gas emissions pursuant to AB32.
21 And,we have recently had a lot of input from
22 various sources in this administration,questioning our going
23 off on our own,relative to greenhouse gas impacts,and
24 reductions,and compensation mitigation,which is just wrong.
25 We have,as I say,gone out of our way to coordinate and to
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1 work with the other agencies,and we have crafted our
2 recommendation here for suggested modifications for this plan
3 accordingly,.and that is what it does.
4 It does not put the burden on you,or your staff,
5 to make determinations that we really have no expertise to
6 make,specifically,whether or not there is going to be a
7 reduction of energy use,or consumption and resulting in the
8 reduction of greenhouse gas emissions from the production of
9 this water through the Poseidon desalination project,that
10 would then be reduced by a comparable amount in reduction of
11 State Water Project pumping,or energy needs.We have no way
12 of determining whether or not that is real,or illusory.
13 That is why we are recommending what we are,to
14 rely on CARB,and the other entities to make that determine
15 ation,given the expertise that they have.
16 So,with that,Mr.Chairman,we have completed our
17 report --oh,I think Ms.Schmeltzer has some additional
18 comments.
19
20
21
CHAIR KRUER:Ms.Schmeltzer.
CHIEF COUNSEL SCHMELTZER:Thank you,Mr.Chair.
I just wanted to clarify a statement that was
22 made about voluntary participation under AB32.That part of
23 the presentation was discussing how AB32 is set up;however,
24 the project that the Commission has approved does have
25 Special Condition 10 which requires a Greenhouse Gas
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1 Reduction Plan,so that is not voluntary.
2 The mechanisms under which that may be fulfilled
3 could be under what is .called the voluntary part of A.B32,so
4 I just wanted to make sure people were clear about the use of
5 the term "voluntary".
6 EXECUTIVE DIRECTOR DOUGLAS:Right,and I am sorry
7 I didn't make that clear,because as you will remember,when
8 the Commission approved this,Poseidon said we are
9 voluntarily doing all of this,relative to greenhouse gas
10 emissions.And,we and the Commission made clear that is
11 nice,but that is not what is necessary to comply with
12 Coastal Act policies.What is necessary is the assurance
13 that you have an enforceable condition that will,in fact,
14 result in greenhouse gas reductions.
15 So,you accepted a lot of the things that were
16 being proposed,but you incorporated them in your capacity as
17 a regulatory agency,and insuring compliance with the Coastal
18 Act policies,that as a condition of your permit.
19.CHAIR ~RUER:Thank you,Director Douglas,and
20 thank the staff for their presentation.
21 with that I will go to ex partes on this,again,
22 and some of you might have covered it previously,and if you
23 have just say that,under the findings.If you need
24 something more to add then I will start on the end with
25 Commissioner Hueso.
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76
2 meetings I had with Poseidon,they had,again,mentioned that
3 they had a problem with the AB32 law,and that it was not
4 being applied to this project appropriately.
5 And,my staff member,Alonzo Gonzalez,also had
6 meetings with Poseidon on this matter,and never got to
7 disclose the details of his conversation with them,so I
8 never was apprised of the specific conversation,nor the
9 content with Gabriel Solmer and David Grubb,and Bruce
10 Reznik,other than I think in a meeting with Bruce Reznik and
11 Gabriel Solmer,he mentioned that they were opposed to this,
12 as proposed by the applicant,and in support of the staff
13 recommendation.
14
15
16
17
CHAIR KRUER:Thank you,Commissioner Hueso.
Vice Chair Neely.
VICE CHAIR NEELY:Mr.Chairman,mine are on file.
CHAIR KRUER:Mine are on file,with the
18 additional one that I spoke about under the findings,that
19 was the meeting with Gabri~l Solmer,Bruce Reznik,Marco
20 Gonzalez,and Leslie Gaun,that I previously disclosed under
21 the previous ex parte under the findings.
22 Commissioner Lowenthal.
23 COMMISSIONER LOWENTHAL:Mine are on file,as
24 well,and the same as the ones I had mentioned for the
25 previous item.
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1 I also wanted to mention I had a discussion that
2 started out as a personal discussion with Mr.Keith Lewinger,
3 from the Fallbrook Water Agency,and I had asked a question
4 about this project relative to offsets,and it was informal,
5 but I just wanted to communicate that.
6
7
8
9
CHAIR KRUER:Thank you,Commissioner Lowenthal.
Anyone else?
Commissioner Reilly.
COMMISSIONER REILLY:Thank you,Mr.Chair,my ex
10 partes on Item 5.a.are on file.
11
12
13
CHAIR KRUER:Thank you.
Commissioner Potter.
COMMISSIONER POTTER:Thank you,Mr.Chair,I had
14 a conversation last Wednesday with McCabe and MacLaggan,
15 similar to the one described by Commission Hueso.
16 I also had Bruce Reznik of Coast Keepers in my
17 office on Monday,expressing his support for staff's
18 recommendation.He was followed by Grant Wesaman of ORCA,
19 who provided similar testimony.
20
21
22
CHAIR KRUER:Thank you,Commissioner Potter.
Commissioner Achadjian.
COMMISSIONER ACHADJIAN:Thank you,Mr.Chair.
23 On August 1st,11:00 a.m.I did have a conference
24 call with Ms.McCabe and representatives of Poseidon,with
25 similar discussions as reported by Commissioner Hueso.
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2
3
CHAIR KRUER:Thank you,sir.
Commissioner Blank.
COMMISSIONER BLANK:specifically,on energy
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4 minimization,Special Condition 10,in my meeting with Bruce
5 Reznik,he said he felt this does not comply with the goals
6 of AB32,that it improperly calculates carbon neutrality by
7 assuming CDP will fully offset the state Water Project
8 transfers,and improperly calculates GHG emissions by
9 omitting direct emissions,and is too spective [sic.]and
10 does not contain sufficient specificity for GHG offsets.
11 The rest of my ex partes are on file.
12
13
14
CHAIR KRUER:Thank you Commissioner Blank.
Commissioner Kram.
COMMISSIONER KRAM:My previous ex parte was
15 disclosed in connection with the discussion on W4.a.
16
17
CHAIR KRUER:Thank you,sir.
Commissioner Burke.
18 COMMISSIONER BURKE:[No response ]
19
20
CHAIR KRUER:Commissioner Scarborough.
COMMISSIONER SCARBOROUGH:similarly for the
21 findings,mine were the same.
22 CHAIR KRUER:Thank you,very much.
23 And,with that we will open the pUblic hearing,
24 and will go to the applicant,Rick Zbur,for Poseidon
25 Resources.
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1 Sir,how much time for your organized present-
2 ation?
3 MR.ZBUR:YEs,if we could,before you set the
4 clock,just make sure we can get our slides up,because.we
5 are going to be very tight.
6 CHAIR KRUER:We aren't not going to start the
7 time until you get them up,but how much time do you need?
8 MR.ZBUR:I think we were planning on 30 for both
9 of the plans,so I think we would like to allocate 20 for the
10 greenhouse gas plan,and 10 for the wetlands plan,and then
11 if we could have rebuttal in addition to that,we would
12 appreciate it.
13 CHAIR KRUER:Okay,how much time for rebuttal,
14 sir,are you requesting?
15
16
17 you.
18
19
20
MR.ZBURl Three to five minutes.
CHAIR KRUER:We'll give you five minute,thank
MR.ZBUR:Thank you,very much,Mr.Chairman.
CHAIR KRUER:That's 20 minutes.
MR.ZBUR:I would like to start with Mr.Peter
21 MacLaggan,who will start the beginning of the presentation.
22
23
24
25
CHAIR KRUER:This is just on 5.a.,correct?
MR.MAC LAGGAN:Wetlands,right?
CHAIR KRUER:No,nice try.
MR.MAC LAGGAN:Good morning,Mr.Chairman,my
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1 name is Peter MacLaggan,on behalf of the application,
2 Poseidon Resources.
3 Today we are here for you to consider and adopt
4 the greenhouse gas plan submitted by Poseidon in satisfaction
5 of Special Condition 10.We have submitted a letter to the
6 Commission that includes the form of the motion which would
7 allow you to adopt Poseidon's plan.Attached to that letter
8 is the version of the plan Poseidon seeks your approval of
9 today,and which is copied on green paper.
10 The plan was developed in consultation with an
11 incorporated input from a multitude of state,regional,and
12 local agencies,and incorporates that input.
13 The initial plan was submitted to your staff last
14 fall,Poseidon has worked closely with Commission's staff to
15 address a number of staff's concerns with that plan,and
16 those discussions have led to a number agreed upon
17 modifications to the plan.Those are listed in Exhibit A of
18 the submittal that Poseidon provided on August 2 to the
19 Commission,in response to the staff report.
20 However,what I would like to make very clear to
21 the Commission this morning is that there are four key areas
22 of disagreement that remain between Poseidon's proposal and
23 the Commission's recommended modifications of the plan.
24 While Poseidon supports staff's recommendation that the
25 Commission approve the plan,Poseidon is not in support of
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1 the recommended modifications.
2 To start out,it is important to keep in mind that
3 the plan is a voluntary commitment on the part of Poseidon.
4 Since the project does not emit greenhouse gas emissions,
5 AB32 does not impose requirements on the proj ect,and is not
6 anticipated to impose any requirements in the near term.
7 Instead,AB32 regulates direct emitters,such as
8 San Diego Gas and Electric Company,which will be the source
9 of the project·s electricity,nor has the California Air
10 Resources Board adopted regulations applicable to the
11 project,so Poseidon's commitment is voluntary,although it
12 is enforceable through Condition 10.
13 Poseidon's commitment also is unprecedented.In
14 fact,this is the first major infrastructure project to
15 completely offset its incremental increase in electricity
16 usage.The plan has several robust and enforceable measures
17 to insure tht .the proj ect 's net greenhouse gas emission
18 reductions will be certain,verified,and reduced to zero.
19 Some of the key elements of the plan include
20 state-of-the art energy minimization measures and green
21 building design features,reforestation of the San Diego
22 areas impacted by the 2007 wildfires,purchase of carbon
23 offsets and renewable energy credits to sufficient zero out
24 the project's net indirect greenhouse gas emissions,and the
25 total cost of this plan is estimated to be $61 million.
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1 with respect to the four key differences which
2 remain between Poseidon's proposal and staff's recommended
3 modifications to the plan,these disagreements focus on
4 recommendations by staff that would incorrectly apply AB32 so
5 that Poseidon would be required to offset the ·project's gross
6 emissions rather than net greenhouse gas emissions;secondly,
7 artificially constrain the offset market by severely limiting
8 the carbon offsets available for acquisition by Poseidon.
9 And,third,eliminate a contingency plan to address the
10 potential dysfunction in the emerging and maturing carbon
11 offset market.
12 And,finally,staff is recommending prohibiting
13 Poseidon from opting into any new government carbon certified
14 programs that may become available in the future.
15 As you can see from this graphic,the light blue
16 portion of the graphic,specifically,the plan requires
17 Poseidon will offset the project's incremental increase in
18 carbon emissions that will result from the electricity used
19 to produce the desalinated water relative to the energy
20 required to import equivalent amount of water from the state
21 Water Project.Staff is proposing that,instead,Poseidon
22 offset the entire amount on that chart,and that is the net
23 result of their recommended modifications to our plan.
24 Now,what you see on this chart,the project will
25 produce 56,000-acre feet per year of desalinated water that
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1 will directly'replace on a 1:1 basis water that otherwise
2 would be imported to Poseidon's.'customers from the state
3 Water Project.The Metropolitan Water District,in
4 communications to the Commission on July 29,in a letter to
5 Mr~Douglas,confirms that the project"will reduce regional
6 demand for imported water by 56,000-acre feet.In fact,the
7 Metropolitan Water District is financing our customers
8 participation in this program,to the tune of $14 million per
9 year,expressly because it will replace water demands on MWD,
10 and in exchange for that commitment,that financial
11 commitment,our customers are required to document annually
12 that they will replace water.So,there is a verification
13 step that is in place.
14 And,contrary to what you heard from the San Diego
15 city Attorney earlier today,there is tremendous evidence in
16 the record that each of our customers will be resulting in
17 replacement of water through their purchases from Poseidon.
18 Each of the public agencies,or officials,that
19 are listed on the slide before you,has written the
20 Commission to endorse Poseidon's plan to offset the project's
21 net greenhouse gas emissions,and to confirm that this
22 approach,rather than staff's recommendation is consistent
23 with state policy.
24 Particularly noteworthy here is a letter received
25 yesterday from the California Air Resources Board,and the
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1 Air Resources Board is the entity under state law,that is
2 responsible for the implementation of AB32,and under
3 Condition ~O,your staff is required to consult with CARB to
4 get input on how to implement the plan.In CARB's letter,
5 you will note that they point that the netting out of the
6 imported water that will no longer be used,is the
7 appropriate way of looking at this project.
8 Notably,Commission staff has supported a net
9 offset approach for a separate project that is on today's
10 agenda.The Southern California Edison proposed generation
11 facility,and even though that facility is a direct emitter
12 of greenhouse gas emissions that is regulated under AB32,
13 staff did not apply AB32 criteria and standards for the
14 voluntary offsets to determine whether Edison should receive
15 credit for replaced power;yet,they are applying the
16 criteria to determine whether or not Poseidon --who is not
17 regulated by AB32 should receive credit for the replaced
18 power.Staff got it right on the Edison project,they got it
19 wrong on poseidon's project.
20 staff's recommendation would limit Poseidon to
21 acquiring offsets for only a handful of projects that have
22 been verified by the California Climate Action Reserve and/or
23 the Air Resources.Board,and represents less than a tenth of
24 one percent of the available domestic carbon offset market.
25 Staff's proposed restrictions,therefore,could result in the
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1 unavailability of offsets necessary to achieve the goals of
2 the greenhouse gas plan,and are opposed by Poseidon on this
3 basis.
4 As a member of the California Climate Action
5 Registry,however,Poseidon is committed to acquiring offsets
6 fromCCAR and/or CARB to the extent that these entities have
7 offsets that are both available and cost effective.
8 But,given the uncertainty at this point,Poseidon
9 is also seeking authorization to acquire offsets from/through
10 additional respected third-party providers that are members
11 of the offset quality initiative,which includes CCAR.CCAR
12 has recognized several other entities as being reputable
13 suppliers,and we are simply asking to have the ability to
14 gain access to those offset providers.Offsets acquired from
15 these providers would be consistent with AB32 principles for
16 voluntary offsets.
17 With respect to the proposed contingency plan,the
18 carbon offset market is new,and it is unpredictable.In
19 order to address a dysfunction that might occur on the offset
20 market,Poseidon's Plan proposes a contingency that subject
21 to the Executive Director,or the Commission's approval,
22 would allow Poseidon to pay into an escrow fund in lieu of
23 acquiring offsets.Monies deposited into this account,in
24 lieu of purchasing offsets,would be spent on carbon offsets
;t
25 as soon as the market stabilizes and becomes available again.
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1 without such a contingency,Poseidon would be at
2 risk of being in violation with Special Condition 10,in that
3 the event the offsets are not reasonably available.
4 Additionally,Poseidon's proposal would allow
5 Poseidon to opt into carbon offset fee or mitigation programs
6 that may be developed in the future by relevant governmental
7 agencies,so that Poseidon has flexibility to utilize the
8 most efficient and cost effective means to fulfill its
9 commitment on the plan.
10 Poseidon's proposed greenhouse gas plan is
11 estimated to cost $61 million.Staff's recommendation for
12 gross offsets would increase this amount up to a 5-fold
13 increase in the cost of removing the carbon emissions from
14 the project.Its proposed restrictions on the availability
15 of offsets could result in another 2.5 tons increase in the
16 costs of offsets,in combination,staff's recommended
17 modifications could raise the total cost of the g~eenhouse
18 gas mitigation imposed upon the project to $121 million from
19 what we estimate to be $61 million under Poseidon's plan.
20 We respectfully submit that the additional costs
21 would place an excessive burden on the project,and the San
22 Diego regional water supply.
23 with that,Mr.Chairman,I would like to turn the
24 podium over to Mr.Zbur,who has some additional comments.
25 MR.ZBUR:Good morning,again,Chairman Kruer,
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1 and members of the Commission.My name is Rick Zbur,with
2 Latham and Watkins,counsel for the applicant,Poseidon
3 Resources.
4 I would like to now turn to several key issues
5 regarding "staff's recommendation with respect to the GHG
6 plan,which we believe should not be adopted,according to
7 the staff recommendation,because they exceed Coastal Act
8 requirements,misapply AB32,are inconsistent with state law,
9 and would inhibit Poseidon's ability to meet the plan
10 requirements over the life of the project.
11 Therefore,for each of the reasons lam going to
12 discuss,Poseidon is asking the Commission to approve
13 Poseidon's plan without staff's conditions,referring
14 specifically special Condition 10,of the proposed
15 development permit.
16 Although Poseidon's greenhouse gas plan originated
17 as a voluntary commitment,Poseidon agreed to make its
18 voluntary commitment,the voluntary commitment defined by
19 Poseidon,to make it enforceable through Special ,Condition
20 10;however,the Commission's authority to impose
21 requirements under the plan,beyond Poseidon's voluntary
22 commitment,are carefully circumscribed by three provisions
23 of the Coastal Act.No other Coastal Act provisions are
24 applicable to these issues.
25 The energy minimization features are contained in
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1 30253.4,and the plan amply satisfies the coastal
2 requirements to minimize energy.use with a $55 million energy
3 minimization plan,which includes applying reasonably
4 feasible lead standards,as well as energy recovery and other
5 features.
6 In addition,section 30253 provides the commission
7 may only impose conditions consistent with requirements --
8 and look at the word requirement imposed by CARB.AB32
9 does not impose any requirements on any desalination
10 facilities like the project,and staff cannot point to a
11 single provision in AB32 that imposes a requirement that
12 would be applicable to the project.There is nothing in the
13 staff report.
14 The limitations on the Commission's authority over
15 air programs are underscored by another provision,30414(a),
16 which expressly prohibits the Commission from establishing
17 any ambient air quality standard,or emission standard,or
18 air pollution control program.AB32 established that
19 greenhouse gas emissions are regulated as.an air.pollution
20 control program,and they gave exclusive rule-making
21 authority and implementation authority to CARB.
22.CARB has not promulgated any requirements
23 applicable to indirect emitters like the project,and has not
24 adopted programs even governing the voluntary offsets yet.
25 While the staff report suggests that the AB32
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1 framework is firmly in place and applies to the project,the
2 fact of the matter is that CARB only released a discussions
3 draft of its climate change draft scoping plan in June of
4 this year,and both AB32 and the scoping plan focused on the
5"regulation of direct emitters --which the project is not.
6 The scoping plan does not anticipate imposing requirements on
7 indirect emitters in the near term --like the project --
8 but,rather contemplates developing incentives for voluntary
9 reductions for indirect emitters like the project.
10 To further illustrate how far before the horse
11 staff is putting the cart,CARB will need to undertake a
12 thorough rulemaking process in accordance with the State
13 Administrative Procedures Act before it may promulgate
14 regulations to implement AB32's air pollution control
15 program.That process will require both public review and
16 comment on proposed regulations,and would require CARB to
17 adopt findings that,among other things,to make sure that
18 the regulations are cost effective,feasible,and equitable
19 among sources.
20 To adopt staff's recommendation would be to apply
21 AB32 principles --which they cite --which are applicable to
22 CARB's rUle-making function directly on the project,and they
23 cannot do that without affording Poseidon,and in doing so
24 would not afford Poseidon,and other indirect emitters,of
25 the important procedural protections contained in AB32 and in
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1 state law.
2 Accordingly,by defining principles of AB32 that
3 are applicable to CARB's regulatory process to the project,
4 staff's proposal of a gross offset program violates Coastal
5 Act section 304~4(a)because it would impose an air quality
6 standard,and an emission standard,or an air pollution
7 control program,or all .three that is expressly prohibited by
8 the Coastal Act.
9 Staff's proposed carbon offset program is also
10 inconsistent with the standards and rationale underlying CEQA
11 impact analysis.Under CEQA,a project's impact are measure
12 from a baseline,which is the environmental conditions as
13 they exist when a project undergoes the environmental
14 analysis.The use of a baseline allows for a reviewing
15 agency to examine a project's actual impacts as compared to
16 the conditions after the project.
17 For example,under existing conditions,water is
18 imported to San Diego County through the state water project,
19 which requires energy that produces carbon emissi9ns --if
20 you look at the example.This illustrative example,which is
21 roughly proportionate to the actual impacts,if We assign a
22 value of 100 units to represent carbon emissions resulting
23 from the imported water,then the baseline in the absence of
24 the Poseidon project,is 100 units.Since the Poseidon
25 project would completely replace the imported water,energy
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1 is no longer assigned to that imported water,and there are
2 no longer any emissions or carbon use impacts from the
3 importer water.Instead,energy is required to produce
4 Poseidon's water,which would be,roughly,proportionate to
5 125 carbon units.
6 Once Poseidon implements its net offset plan,it
7 would offset 25 carbon units.As a result,the remaining
8 energy required to produce Poseidon's water would have a
9 value of 100 units,which is the same as the existing
10 baseline.Accordingly,Poseidon's net offset proposal would
11 not result in any impacts above the existing baseline.
12 And,with respect to those 100 carbon units,that
13 are in the baseline,those are regulated by CARB,as a direct
14 emitter,so those emissions will be coming down.
15 This slide also shows the impact of the project on
16 the carbon emissions above the baseline,which is what Mr.
17 MacLaggan showed you before.
18 Next slide.
19 Standard ,CEQA methodology would allow a project to
20 account for beneficial impacts that are reasonably
21 anticipated to result from the project.The replacement of
22 the imported water is not only reasonably anticipated,but it
23 has been confirmed by MWD --and here is the language in
24 their letter.They have committed to provide Poseidon's
25 customers --the water district --with a financial
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1 incentive.Receipt of that financial incentive requires the
2 water district to demonstrate that they are replacing an
3 equivalent amount of water from MWD.MWD's program will also
4 verify and audit to insure that the water is replaced.
5 Staff asserts that Poseidon must offset the carbon
6 from the imported water,because it cannot guarantee that it
7 will not be used.Essentially,what they are saying is you
8 have to apply AB32 offset provisions that would apply to
9 credits that are going to be sold on a market to the
10 project's impact analysis.Any project,because it requires
11 that ycuhave a guarantee of that water not being imported,
12 this water would never be applicable to that.So,
13 essentially,the bottom line is that they are requiring
14 Pos.eidon to offset all of the energy from the replaced water.
15 If water continues to be pumped to Southern
16 California from the state water project,it would be for new
17 or expanded uses.Those new uses would be required under
18 CEQA to address the impacts of importing the new water,and
19 as a result of SB97,the Office of ~lanning and Research is
20 preparing guidelines for the mitigation of greenhouse gas
21 emissions under CEQA,which are anticipated to be effective
22 next year.
23 Moreover,the attorney general has become used to
24 using his enforcement powers to assure that greenhouse gas
25 emissions are evaluated and mitigated under CEQA.According
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1 to staff's proposal,Poseidon would need to offset carbon
2 emissions associated with imported water it is replacing,but
3 since only new or expanded projects would be using this
4 imported water,and those projects are required to mitigate
5 the carbon impacts under CEQA,staff's proposal would result
6 in double mitigation for the same impacts.
7 Using staff's logic,the Commission would require
8 a project using low flush toilets to demonstrate that the
9 foregone water would not be used by another hypothetical
10 project,in order to get credit for it.
11 In summary,there are four fundamental differences
12 between staff's proposal and Poseidon.Poseidon's plan
13 requires offsetting of net emissions,those that are above
14 the baseline,and it defines net -~and its voluntary
15 proposal was that net was defined by the difference between
16 its electrical use and the reduction of the electrical use
17 from the foregone water from the state water project.That
18 was its voluntary commitment.Staff Cannot rejigger its
19 voluntary commitment at thi~time.
20 The second fundamental difference is that staff's
21 proposal also limits poseidon to an artificial market to
22 purchase carbon offsets.One of the things that is a little
23 bit frustrating is that we submitted mid last week a set of.
24 changes to respond to the staff report,which we had only
25 gotten 3 or 4 days beforehand,one of which was to,
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1 basically,respond to the staff's concern about having a
2 3cperson committee verify the offsets.
3 Our response to that iS,we will take away the
4.committee,we'll use CCAR,but we want three other entities
5 that are,basically,equivalent,and in this offset quality
6 initiative to allow us to purchase offsets through.That is
7 part of what is submitted and attached to your revision
8 today,and was not reflected in the staff's comments.
9 This artificial limitation,literally,limits
10 Poseidon to purchase less than 1 percent of its domestic
11 market.We think it makes it unworkable.We want to buy
12 offsets through CeAR,but we ask the Commission to not impose
13 a plan that at the get go,we don't have certainty that we
14 can bUy the requisite offsets.
15 Finally,staff recommends that the plan not
16 include any contingency program to insure that the require-
17 ments can be met during times of market dysfunctions.
18 The thing we point out to you on this is that the
19 original plan had th~committee making that determination,
20 now the revisions that we gave you have the Coastal
21 Commission staff,or Commission making that determination.
22
23
CHAIR KRUER:sir,your time is up.
MR.ZBUR:Thank you,very much.We appreciate
24 the opportunity to address the Commission,and we request
25 that the plan that is attached to the documents in green be
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1 adopted today,and we have given you the motion should the
2 Commission decide to do that.
3 Thank you,very much.
4 CHAIR KRUER:Okay,thank you.
5 Before I go into the speaker slips,and again if
6 you are not here to talk about 5.a.the Energy Minimization
7 and Greenhouse Gas Reduction Plan,just let us know,and you
8 can speak at the next one,if that is the one that was your
9 intent.And,then we can move through this.
10
11
12
13
14
Mr.Reznik,I didn't see a speaker slip.Is your
organized presentation for the next item?
MR.REZNIK:Yes.
CHAIR KRUER:Thank you,very much.
Rachel,this item?yes,greenhouse gas.We don't
15 have your speaker slip in here,so you can do it later,and
16 if this is the one where you want to do your organized
17 opposition,we will provide that.
18
19
20
How much time are you requesting,sir?
UNIDENTIFIED SPEAKER:Roughly 20 minutes.
CHAIR KRUER:That is fine,sir.
21 UNIDENTIFIED SPEAKER:And,I am going to hand it
22 off,initially,to Jonas Minton,from the Planning
23 Conservation League,followed by Dr.Rosenblum,and then I am
24 going to close.
25 CHAIR KRUER:Okay.
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2
UNIDENTIFIED SPEAKER:Thank you:
CHAIR KRUER:That is fine,sir.
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3 MR.MINTON:Good morning,commissioners,I am
4 Jonas Minton,senior advisor to the Planning Conservation
5 League.For 30 years I worked for the California Department
6 of Water Resources,and including serving as the deputy
7 director.I am going to have two points for you today.
8 First,is that the Carlsbad desalination project
9 will not reduce energy for pumping water to Southern
10 California,or accompanying greenhouse gas emissions.
11 The second point I am going to share with you is
12 why the staff I s recommended permit condition is not only a
13 good idea,but it is necessary.
14 As most of you know the San Diego County area
15 receives a large portion of it water supply from the
16 Metropolitan Water District in Southern California,which,in
17 return,receives a large part of its supplies from the
18 California Department of Water Resources where I served.
19 You have received a letter from the Metropolitan
20 Water District indicating that they consider that the water
21 supply from the Carlsbad project to be an offset.But,a
22 very careful reading of that letter does not indicate that
23 they will reduce their pumping of water all the way from
24 northern California to Southern California.This is the one
25 very important reason:San Diego is not their only customer.
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1 Even if San Diego did not take the water,Metropolitan is
2 required by its act,its organic act,to provide water
3 supplies to its other customers in Southern California
4 equally,or in some cases even more water intensive,places
5 like the Coachella Valley Water District,San Bernardino
6 Valley Municipal Water District,Castaic Lake Water Agency.
7 Let's go up the water supply chain.If
8 Metropolitan did forego the water supply what would the
9 California Department of Water Resources do?As a former
10 employee,I can tell you it is drummed into our heads that we
11 will comply with the contract,and bond,and covenants used
12 to finance the state water project.In the last 10 years,
13 Metropolitan has received less than 64 percent of the water
14 to which it is contractually entitled.They will take that
15 water.If they don't take that water,the Department of
16 Water Resources is required to deliver it to others.So,
17 although this does supply water for this region,it does not
18 offset energy use or greenhouse gas emissions.
19 Now,to my second point,this is not just an issue
20 of accounting,there real consequences to your actions.I
21 will hand out an abstract of research done by Professor
22 Martin Weisman from Harvard University,and I am just going
23 to go over this very quickly with you,because it is so
24 significant.
25 In looking at the.results of the 22 major climate
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1 models,he found that there is a 5 percent chance --that is
2 1 in 20 that by the end of this century,earth
3 temperatures will increase by as much as 18 degrees
4 Fahrenheit.One chance in 20.He defines,quote:
5 "At a minimum such temperatures would trigger
6 mass extinctions and biosphere ecosystem
7 disintegration,matching or exceeding the
8 immense planetary dioxin associated in earth
9 history with a handful of previous geo-
10 environmental mega catastrophes."
11 My next handout is an abstract of research showing
12 that at least one previous time in our history we have seen a
13 temperature increase of 22 degrees in just 50 years --22
14 degrees in 50 years.Before I prepared this testimony,I
15 tripled fact checked it,because that shocked me,and I was
16 frankly a little concerned giving it today,because it
17 sounded so draconian.
18 Last night,I was in my hotel,and I turned on the
19 TV,and watched a PBS NOAA special on the earth,and they had
20 this same statistical analysis and conclusions.That means,
21 unless we drastically reduce our greenhouse emissions,there
22 is one chance in 20 that our grandchildren will .not live out
23 their full lifetime.That is what it means,one chance in
24 20.
25 Lastly,are these questions within your purview,
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1 your jurisdiction?yes,they are directly on point.Even a 3
2 degree --not l8 degrees -~a 3 degree increase in global
3 temperatures will melt the ice sheets.That will increase
4 sea level by over 20 feet.One horrific result,right here
5 where we are today,communities such as this,would no longer
6 be known as Oceanside,but would be know as Ocean --not .that
7 funny,actually.
8 The statistics for climate change,to give you
9 your last challenge,the things or the decisions you make
10 today accumulate.That greenhouse gas emission that goes up
11 there persists for several decades,the results,in our
12 scale,human kind,are irreversible.If within the next
13 decade we see temperatures starting to spiral out of control
14 it is going to be too late to say,"Umm,I'm bad,do over."
15 with that,I encourage you to adopt the staff's
16 recommendation.
17 Next will be Dr.John Rosenbloom giving you
18 additional information about greenhouse gas offsets,thank
19 you.
20 MR.ROSENBLUM:I am John Rosenbloom.I am giving
21 calculations of the gas,the greenhouse gas credits for
22 displacing water,and I wanted to show you some slides.
23 While he is looking
24 So,first of all,I want to address something that
25 is very narrow,just the displacement of imported water,and
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1 the greenhouse gas impacts;however,climate change is a real
2 catastrophe,much more than just to this one community,or to
3 the state,it is for the world.
4 And,the other point is that the state water
5 program,and the Colorado system will have to find some
6 water,although they will be faced with inavailability.I
7 just don't think there will be enough water to supply
8 everyone.
9 Now,this is the first slide.Now,this is how
10 the regional water plan intends to provide water.This was
11 the plan,without taking too much climate catastrophe into
12 account.And,at the top there,in the red,under 2010 is
13 the desalination project.
14 So,the first obvious thing is that there is a
15 reduction of imported water --that is the arrow that I am
16 showing;however,there is also an increase in the amount of
17 water that is required,socalled new water.And,when you
18 look at the numbers this is the numbers,and what I am
19 trying to show here is the for all of the measures between
20 these two arrows,some of that water is allocated to
21 displacement,some of it is allocated to new.And,the
22 allocations are 46 percent of any of these measures,
23 including the desalination at the top,are allocated to
24 import reduction;however,54 percent are new water.
25 So,from there we go and see what the impacts on
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1 electrical energy and greenhouse gas emissions are.So,here
2 is.a revised graph from what Poseidon showed before.These
3 are all of the imports on the left-hand column,and on the
4 right-hand column,this is how much of those imports can be
5 allocated to the 56,000-acre.feet per year of desalination.
6 The rest of the desalination project,as proposed
7 by Poseidon,with the existing power plant replaced,so the
8 water is topped at about 103,000 megawatts hours per year,
9 and then there is some very complex technical issues that
10 would indicate given the experience of just about every
11 other seawater desalination project --is that the boron will
12 become an issue,a very complex technical issue that has to
13 be addressed.It will increase energy conservatively,by
14 about 10 percent,however,it will increase the cost of that
15 desalination plant immensely,and that is something that I am
16 not privi to,yet.
17 So,first of all,only 72,000 megawatt hours can
18 be allocated to displacement of imported water.Poseidon--
19 the equivalent is about 191,000.And,then the rest needs to
20 be offset,create a zero net impact is 241,000,of which
21 Poseidon is proposing,under their vastly increased
22 displacement allocation,they are requesting 56.
23 However,the main issue is the greenhouse gas
24 impacts,and here again,I start with the allocation of
25 .deported water to the 56,000,and then we look at what the
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1 actual electricity requirement,the greenhouse gas impacts,
2 and I can find 18,000 times a year,credit from imported
3 water,Poseidon is hopirig :Eor a lot more.
4 And,then,there is a lot more to create the net
5 zero carbon,indirect,just from the electricity.A key
6 author looked at other,the other elements in Poseidon plan,
7 so they are also larger,except for this,as is stated by the
8 facts,is two~thirds of the amount of greenhouse gas,
9 indirect greenhouse gas emissions.
10 And,·then,finally,I believe there is a very
11 strong need for Condition No.10,very strong,and it begins
12 with independent measurements and verification of
13 performance,and I am not saying just energy,but the whole
14 performance of the plant,which I believe that boron will
15 become a problem.
16 Next,we need an accountable allocation of
17 greenhouse gas offsets,and it appears that the AB32
18 protocols are being developed with CCAR are the best way to
19 do it,and they are an independent way,rather than me,or
20 Poseidon,clashing of experts.
21 And,then,finally,this is the last message,we
22 need.an accountable allocation of the costs of the offsets,
23 as Poseidon has said.The market for carbon offsets is very
24 unstable,.and·anyone who has tracked a European experience
25 can see what speculators and the states can do to that
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1 market,that the $10 per ton that is being proposed as atop
2 is already below what carbon has been traded for,at least
3 $30 now,and it is inevitable,inevitable,as it is a climate
4 crisis that were inevitable,so those carbon costs will go
5 up.So,in a sense,I agree with Poseidon,it isa very
6 unstable issue.
7 However,they are proposing a virtual smokeless
8 desalination plant,and there are other alternatives,but I
9 won I t get into them now,because this is what we are really
10 talking about,these for now.
11 Thank you.
12 MR.REZNIK:Good morning,my name is Bruce
13 Reznik.I am the executive director of San Diego Coast
14 Keeper,and they are pulling up my slide presentation,brief
15 as it is,next.I also wanted to let you know that there is
16 a handout from two consultants on the greenhouse gas that was
17 handed out today.
18 When I met with Commissioner Kruer on this issue,
19 a few days ago,he warned me to take a few deep breaths.I
20 know I get a little emotional,so I am going to try to do
21 that.
22 There is one thing I think everyone agrees,on
23 both sides,which is this is one of the most important
24 decisions this Commission is ever going to make.This sets
25 the policy and direction on water supply and energy,and
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1 Garbon footprints for the state of California.So,you see,
2 they have all got desal buttons,beGause they have got more
3 money than we do.I just put on the slide Got Climate
4 Change?We do,we know we do.We see it all of the time,
5 and it will only get worse with this project.
6 I wanted to talk a little bit about the moral
7 issues here,because I think that is what it boils down to
8 for me.Now,this was a quote about civil rights that John
9 F.Kennedy gave shortly be.fore his assassination,but I
10 thought it was relevant:
11
12
13
14
15
16
17
"We face,therefore,a moral crisis of the
country and the people,cannot be quieted by
token moves or talk.It is time to act.
Those who do nothing are inviting shame,
those who act boldly are recognizing a right
as well as reality."
I am asking this Commission to recognize right and
18 reality.Everybody talks about global warming.Everybody
19 acknowledges that the crisis,the moral and environmental
20 Grisis we face and the.imperative to do something about it
21 I won't read the list from Al Gore down to all of your
22 appointing authorities.As a matter of facti some of them
23 are cosigners of AB32,one of them who is up there,"We must
24 simply do everything in our power to slow down global
25 warming,before it is too late."All the way to Pope
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1 Benedict,and frankly even President Bush,at this point
2 finally.
3 We don't even need to rely on the scientists.We
4 don't need rely on the scientists,because we can see it with
5 our own eyes.You know,we have had people talk already
6 about the drought.We know we are in an historic drought.
7 We know the Colorado River is drying up.Our reservoirs are
8 at an all~time low.That is the result of climate change.
9 Now,why in God's name would we approve the most
10 energy dependent,and energy intensive project to create
11 local water when there are better options,to acerbate the
12 very problem we are trying to address,is beyond me.If
13 somebody could pull me out in the hallway after this and·
14 explain how that makes a lick of sense,please do so.
15 But it is not only drought.It is historic floods
16 faced in the mid-west.It is 11 of our warmest years on
17 record have occurred in the last 13,and it is the most
18 intense hurricane season ever,we all saw Katrina and Rita
19 and,of course,the fires:we have all heard about.And those
20 fires --and this is related to the 2007 fires down here --
21 are consistent with what climate change in models have been
22 predicting for years.And,most frightening is that massive
23 destructive wildfires could occur even more frequently,at a
24 greater velocity,dUe to global warming.
25 It is a moral imperative to not add one ounce of
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1 carbon to the atmosphere,let alone the .80,000 metric tons
2 this company is trying to put out into our air.
3 The reality is that we need to act now.Dr.
4 Hanson,one of the first people who warn about climate
5 change,said we have used up all of the slack in the schedule
6 for actions needed,otherwise it will become impractical to
7 constrain atmospheric carbon dioxide to a level that prevents
8 the climate system from passing tipping points that lead to
9 disastrous climate change that spirals dynamically out of
10 humanity's control.
11 I don't know what else people need.I don't know
12 if the clouds need to open up --I mean,indeed,the choice
13 is to walk down and say,we are screwing up the planet.We
14 are doing it fast,and we need to act now.
15 This is the cap,right now.Are we going to take
16 climate change seriously?are we going to do everything we
17 can to address it?Or are going to say,we signed AB32,we
18 signed the Kyota protocols,we had press conferences,we
19 patted ourselves on the back,the Problem is solved,we can
20 move on.
21 Well,that is what a lot of folks want to do,but
22 the reality is these are the token measures that President
23 ~ennedy was talking about.We need to take real steps,and
24 that is things like Special Condition 10.We need to --
25 this is literally the first step of AB32,and the first step
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1 of this state's resolve to take serious actions to address
2 climate change,and this is not going to be done by approving
3 one of the most energy intensive carbon contributing projects
4 ever put forward before this commission with a plan that
5 offers token reductions.
6 This project will immediately become one of San·
7 Diego Gas and Electric's largest,if not the largest single
8 facility consumer of electricity.It is just absurd that we
9 have gotten there.
10 And,I won't get into the legal ramifications.I
11 think your staff has covered it.You have the legal
12 authority.I think it is offensive when I continually hear
13 the voluntary word --it may be voluntary under AB32,but it
14 is an insult to the authority of this Commission and State
15 Lands,that you couldn't require it,that you did require it,
16 this is a required condition,and not a voluntary condition.
17 And,I am frankly offended when Poseidon gets up
18 here and they talk about carbon neutrality.It happens in
19 every press·release:the State Lands Commission,this
20 project's unconditional commitment to be carbon neutral;
21 there is no evidence that it will have an adverse impact.
22 Saying does not make it true.And,the mitigation plan that
23 will mitigate less than 20 percent of their full impact does
24 not make that true.
25 And,well,we know right now,by their own
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1 admissions,the facility is going to put out 97,000 metric
2 tons of carbons in the atmosphere every year.We know that
3 that is an under estimation because it doesn't include direct
4 impacts.The only way they get carbon mitigation is saying
5 that there is going to be a 1:1 offset.
6 In the driest time,which you have already heard
7 about in San Diego,do you really believe that we are going
8 to take a drop less of the state water project,the Colorado
9 River water,than we can get?we are going to take every
10 single drop we can get,everyone of you knows it,I know it,
11 Poseidon knows it,everyone in this Commission room knows it.
12 This is new water,and they,themselves,
13 acknowledge it.They say,well,there may be some new
14 projects that,you know,but for our facility,one half of
15 it,but you have to worry about that later.No,we have to
16 worry about that today and now.And,putting off their
17 responsibilities to future projects,is not the way we are
18 going to address climate change.
19 Let's see"I know I am running short on time.The
20 plan also lacks any kind of real specificity.If you read
21 through it,you heard about the reasonable,you know,to
22 become reasonably practical we will follow these standards,
23 we are exploring roof top voltaic,photo voltaic,30 percent
24 reasonably available,that is not good enough.
25 And,it is not the job of this Commission,by the
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1 way,to provide corporate welfare to insure that a project
2 that would otherwise not be approved,be cost effective,is
3 made so by passing off the costs of carbon impacts and marine
4 impacts to the people of San Diego,the people of California,
5 and future generations.We know we need water.Nobody has
6 said that more than Coast Keeper.
7 There are better options out there,like
8 conservation and recycling that are more energy intensive.
9 This decision today is going to be judged by history,and
10 when future generations look back on this Commission,are
11 they going to say,what in God's name were these people
12 doing,at a time when we needed to be do everything we could
13 to stop and slow climate change,to approve the most energy
14 intensive plan,with just a hint of reductions,despite the
15 promises of Poseidon.Are they going to look back at the
16 bold leadership provided by this Commission setting a course
17 for water and energy policy in California,for my children
18 and grandchildren,our children and grandchildren,your
19 children and grandchildren?I pray to God it is the latter.
20 Thank you.
21 CHAIR KRUER:Thank you,sir.
22 And,with that,Rachel Solorzano,for
23 Assemblymember Mary Salas,and then after that,Melissa
24 Jones,executive director of the Energy Commission.
25 MS.SOLORZANO:Good afternoon,Commissioners,I
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1 am here on behalf of Assemblymember Mary Salas.
2 Assembly member's district includes the cities of
3 Imperial Beach,Chula Vista,National City,Coronado,and San
4 Diego.Our constituents are served by the Sweetwater
5 Authority,which has signed a long term purchase agreement
6 with Poseidon Resources,for 2400-acre feet of water.
7 There is no doubt this project will help us meet
8 the needs of our region by providing a drought-proof supply
9 of water that is locally produced and locally controlled.
10 with the state of emergency now in effect in
11 numerous counties throughout the state,it is vital to San
12 Diego to lessen its dependence on imported water,and the
13 Carlsbad desalination project will help us to do so.
14 It is clear the Commission shares,based on your
15 approval of the project·s Coastal Development Permit last
16 year.Assemblymember Salas supports the permit conditions
17 the Commission attached to the project last.Poseidon's
18 energy minimization and greenhouse gas reductions plan offers
19 .precedent setting commitment ,and the marine life mitigation
20 plan is complete and comprehensive.Both plans meet the
21 project's obligations under t,he Coastal Act.
22 We ask that you approve these two plans as they
23 are proposed,and refrain from any additional mitigation
24 requirements that are unjustified and threaten the financial
25 viability of the project.
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Time is of the essence,and we cannot afford to
2 put off the construction of this landmark project.I
3 respectfully ask you to please finalize approval of the
4 Carlsbad desalination project today.
5 Thank you.
6
7
8
CHAIR KRUER:Thank you,very much,Ma'am.
Melissa Jones,Kevin Sharrar.
MS.JONES:Good morning,for the record,my name
9 is Melissa Jones.I am an executive director of the
10 California Energy Commission.It is a pleasure to be before
11 you today.
12 First,I think it is notable that the Poseidon
13 project demonstrates that desalinization of ocean and
14 brackish waters is becoming an important element in
15 California's strategy to meet its water needs.The Energy
16 Commission's long study,of both ocean and brackish water
17 desalinization,and its industry and research approved
18 technologies are to address issues associated with
19 ,desalination.
20 The Poseidon project is consistent with our
21 efforts to improve the efficiencies of the environmental
22 effects of desalinization,and to lower its costs to
23 customers.Towards those ends,this project's plans for
24 mitigation are laudable.
25 Poseidon's voluntary commitment to offset 100
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1 percent of its net or incremental increase in greenhouse gas
2 emissions above the baseline conditions,along with their
3 lack of growth-inducing impacts,is a ground breaking
4 commitment on Poseidon I spart.
5 Poseidon's plan to mitigate carbon emissions from
6 the increase of electricity requires it to deliver its
7 project water to customers,as compared with the baseline of
8 current electricity required to serve those customers from
9 the state water project,is supportable.
10 The city and the Coastal Commission's environ-
11 mental analysis have both concluded that the project will not
12 cause growth-inducing impacts.I was recently informed that
13 Poseidon has applied for membership --and they may already
14 be a member--of the Climate Action Registry,and that they
15 are committed to follow the accounting protocols for
16 reporting emissions and reductions.We believe that this is
17 an important step forward in making sure that the reductions
18 are verifiable and all possibly accounted for.
19 I svpport the project,and would answer any
20 questions,if you have any.
21 CHAIR KRUER:Thank you,Ms.Jones,for coming
22 here today.
23 Kevin Sharrar.
24 MR.SHARRAR:Thank you,for the opportunity to
25 speak today.My name is Kevin Sharrar,and I live in
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22 innovative solutions to cure our present day water supply
23 deficits,the deficits that we currently have,and as well as
24 meet our needs in the future,so that future generations,
25 like Braden's and Savannah's,will be afforded the
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1 opportunity to live in San Diego,that we have all come to
2 enjoy,including having water coming out of our tap.
3 We need a water supply solution that is
4 dependable,and environmentally sensitive.I support the
5 Carlsbad desalination project because it is that type of
6 water supply solution.
7 We ask lastly,I would like to leave you with this
8 thought:I believe that each and everyone of us will
9 fundamentally leave two things for our children to consider
10 and ponder once we are gone,their inheritance,and our
11 legacy.Granted,inheritances aren't at issue today,but
12 perhaps legacies are.I respectfully submit that your legacy
13 could include the vision and determination to help provide
14 dependable water for their future.I am confident that my
15 legacy will.
16 Please approve Poseidon's submitted greenhouse
17 reduction plan today,thank you for your attention.
18 CHAIR KRUER:Thank you,sir.
19 Nancy Donaven,I think it is,and then Carlton
20 Lund,and Joey Ricano.
21 [No Response 1
22 Nancy is not here.
23
24
MS.DONAVEN:I'm here.
CHAIR KRUER:Oh,I see,there she is,.I'm sorry.
25 We have time,so take your time,Nancy.
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1 EXECUTIVE DIRECTOR DOUGLAS:And,again,Mr.
115
2 Chairman,we are talking .about the greenhouse gas mitigation
3 plan,and not whether or not the overall project is -~you've
4 already approved that.
5
6 up -_.
7
8
CHAIR KRUER:Yes,that is true.He did wind it
EXECUTIVE DIRECTOR DOUGLAS:I noticed that.
CHAIR KRUER:--and I am trying to be fair and
9 let everybody from the pUblic,easier on the findings,and
10 there is a little overlap here,I am sure,but I agree with
11 you.
12 Ms.Donaven,is it?
13 MS.DONAVEN:Yes,Nancy Donaven,from Huntington
14 Beach,good morning,Commissioners --I think it is still
15 morning --Commission staff,and others present.
16 I came here today for one thing,and that is to
17 ask you,please,to protect the ocean and the air we breathe.
18 AB32 was passed in 2006 and is on its way to helping
19 California cope with the issues of global warming,and
20 consequent destruction of our earth.
21 I went back·to New York a few weeks ago,and
22 visited a beach where I lived during the summers of my
23 childhood.The fish trawlers are gone.The clam bed which
24 was so prolific is gone,and so are the .black skimmers who
25 were there by the hundreds,all in two generations.
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1 As Commissioners,you have.the responsibility of
2 protecting our coast from the depredations which seem .to
3 convenient to businesses.we must not be in abusiness-as-
4 usual mode.We must not be in a business-as-usual mode.We
5 must be in a mode of asking what needs to be done to preserve
6 our coast and to make up for the depredations which have
7 already occurred.
8 I leave it to your individual consciences to
9 decide what needs to be done with this desalination project.
10 Remember that there are other methods to obtain more water so
11 that anything that this project does to add to our greenhouse
12 gases is a negative.
13 What other ways?why conservation and recycling
14 the water,of course.Well,conservation is not more water,
15 it means better use of water.Recycling would provide a
16 bigger supply and the carbon footprint would be a lot
17 smaller,and less destruction to the ocean,than desalination
18 of seawater.
19 One other thing,we have a very talented and
20 dedicated staff.I hope you will heed their advice,you and
21 I,too,pay for it,why not take advantage of their
22 expertise?
23 Thank you,very much.
24
25
CHAIR KRUER:Thank you,Ma'am.
Carlton Lund,and again,Joey Racano,then Mark
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1 Massara.
2 MR.OWEN:Mr.Chairman,members of the
3 Commission,Carlton left his time to me,and I don't think
4 you remember me from November,but I brought several dozen
5 people with us,and I would like to release them and speak
6 for them,if you would give me,perhaps,some time.I do
7 have a speaker slip in there.
8 CHAIR KRUER:Sir,everybody gets 3 minutes,so if
9 somebody wants to speak for the 3 minutes,we have already
10 the organized presentations,but we cannot afford more than 3
11 minutes per speaker.
12
13 minutes.
14
15 ahead.
16
17
18
MR.OWEN:Oh,I am fine.I have less than 3
CHAIR KRUER:Yes,what is your name,sir,and go
MR.OWEN:Ted Owen.
CHAIR KRUER:Ted Owen,yes,sir,go ahead.
MR.OWEN:Good morning,and thank you very much
19 for bringing your hearing here to us today,instead of us all
20 having to traverse to another location.My name is Ted Owen.
21 I am the president and CEO of the Carlsbad Chamber of
22 Commerce.We are the tenth largest Chamber in the state,and
23 I represent about 75,000 employees.
24 I am here in support of the Carlsbad desalination
25 project.Out of consideration for your time ~-and thank you
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1 for giving me Carlton's time --instead of each of our
2 Chamber members speaking,I will,hopefUlly,speak for the
3 majority of them tOday.
4 As you know,California is in the midst of one of
5 our worse droughts in years,and San Diego's imported water
6 supplies have been hit very hard.The future of our imported
7 water in San Diego County is very dim.Protectingour
8 economy and pUblic health is important to the people standing
9 before you today,and to the thousands more throughout this
10 county who support this project and have been following its
11 journey for the last 10 years.
12 While 10 years is a long time to wait for a
13 project,everyone agrees we need,10 years is a long time to
14 wait for a project that scientific studies have proven can be
15 built and operated without negative impacts to the environ-
16 ment.
17 Recognizing food and gas prices,the mortgage
18 industry meltdown,and unpredictable economies,have made the
19 people of San Diego County both angry and somewhat scared.
20 Now,we are being asked to restrict our water use,and to add
21 insult to injury we are going to be required to pay more for
22 less.
23 The Carlsbad desalination project offers the
24 region a viable solution.The two mitigation plans before
25 you today fulfill Poseidon's obligations under the Coastal
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1 Development Permit you issued last year,in fact,Poseidon's
2 voluntary --I believe ~-greenhouse gas plan is
3 unprecedented.
4 As you consider your staff's proposed
5 modifications to these plans before you today,please ask
6 yourself these two questions:does the Coastal Act give the
7 Coastal Commission the legal authority to require the project
8 to abide by AB32 criteria when the project isn't regulated
9 under AB32?and,secondly,most importantly,what are the
10 costs associated with the staff's proposed modifications to
11 the mitigation plan,and how would these costs impact the
12 ratepayers and the project's financial viability?The
13 doubling the costs would be devastating.
14 I don't believe this Commission approved a proj ect
15 last year only to burden it with mitigation costs that
16 ultimately threaten its existence.Poseidon's proposed
17 mitigation plans meet the project's obligations under the
18 Coastal Act,and will insure the project is environmentally
19 denied.
20 We urge your leadership in approving the
21 mitigation plans today,and make sure they are fair,
22 justifiable and protective of the ratepayers.
23 Thank you,very much for letting me take this
24 time.
25 CHAIR KRUER:Thank you,Mr.Owen.
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1 Mr.Racano,and again,we are on the Greenhouse
2 Gas Reduction Plan --and why do you think I mention that to
3 you?
4 MR.RACANO:Because you thought I was going to do
5 my "I have a dream"speech.
6 CHAIR KRUER:Yes,and you have three minutes,
7 sir.We are glad you are here.
8 MR.RACANO:Oh,thank you,thank you,Chair
21 Of course,I am aghast that there are those who
22 see our coast as a profit center,and I feel we should be
23 desalinating our waste water streams so as to bring about
24 sustainability;however,right now I did want to come before
25 this Commission and thank you for all of your hard work.
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2
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I urge you to support staff on this,thank you.
CHAIR KRUER:Thank you,Joey Racano,thank you,
3 very much.
4 Mr.Massara,then Patti Krebs,then Ed Kimerau --
5 can't read it.
6 MR.MASSARA:Honorable Chair,Commissioners,I am
7 Mark Massara,representing the Sierra Club's Coastal Program.
8 Commissioners,preliminarily,we are not here to
9 contest your abandonment of California's long held policy
10 prohibiting privately owned profit-based residential fresh
11 water desalination facilities,or the wisdom of subjecting
12 Carlsbad and San Diego water ratepayers to the most expensive
13 fresh water in the history of the united States ~-you
14 considered and crossed that one-way bridge last November.
15 Today,we would like to address the climate change
16 and greenhouse gas emissions,and atmospheric impacts that
17 were unknown,unaddressed,and unmitigated in your November
18 '07 approval of this project,and to oppose Poseidon's
,19 inadequate and self-serving plan presented here today.Your
20 job is not to make this project and its applicant profitable,
21 but instead to protect the health of the coast.
22 Poseidon Claims,in the PR,that they are off-
23 setting greenhouse gas emissions and impacts 100 percent.
24 But,you know,from the fine print,that this is a ruse,it
25 is a scam,it is untrue and it is a fiction.You know that
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1 Poseidon wants to establish a committee they would dominate
2 to evaluate and address impacts.You know that they can,if
3 they choose,walkaway from the entire offset commitment,and
4 simply pay $10 a ton for emissions.
5 Similarly,this fiction that water imports would
6 be reduced 1:1 with Poseidon's water is a tall tale,as well,
7 given the inclusion of zero growth controls of conservation
8 measures associated with this plan.
9 In sum,the Poseidon plan is untethered and
10 unconnected to any verifiable or measurable scheme whereby it
11 can ever be independently known if success is achieved.
12 Commissioners,the only way to assure success is
13 to tie the Poseidon plan to reality,to the state's AB32
14 program and goal.It doesn't matter whether the facility is
15 strictly regulated by AB32 or not.It only matters that it
16 is tied to some coherent,rational and measurable process.
17 For this reason,we are submitting over 400 letters from
18 around the State of California in support of urging you to
19 support your staff's recommendations and not abandon them
20 here today.
21 Thank you.
22
23
CHAIR KRUER:Patti KrebS.
MS.KREBS:Good morning,Mr.Chairman and
24 Commissioners.My name is Patti Krebs and I am with an
25 organization called the Industrial Environmental
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1 Organization,and we promote corporate environmental
2 responsibility and sustainability.As an industry
3 association,weare also very closely involved with the
4 implementation of AB32,and in fact I served as a member of
5 one of the statutory committees in AB32,the Economic and
6 Technology Advancement Advisory Committee.
7 ARB has a very agressive program.They have
8 already set target reductions by sectors.They are already
9 in rule development for early actions,and the sectors are
10 also already under mandatory reporting,and those include
11 power plants,cement producers,landfills,and refineries.
12 The ARB plan is agressive,but it is also
13 methodical,it is incremental,it is designed to meet the
14 goals,but it is fair to businesses,as well.
15 Desalination is not in a capped sector,it is a
16 downstream user.The ARB scoping plan has just been
17 released.It is not even due for adoption until later in the
18 year.The appendices just came out last week.While cap and
19 trade is in the plan,as well as offsets,those have not yet
20 been approved.The Western Climate Initiative also was just
21 San Diego last week,their plan is being developed.
22 Progressive corporate citizens like Poseidon join
23 the Climate Action Registry.This is the way that companies
24 can have their reductions tracked,they can have them
25 validated and accounted for.And,the Climate Registry is
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1 very highly regarded,and they have achieved results that can
2 be shown,and,measured.,
3 Poseidon has gone above and beyond what they are
.4 planning in their Greenhouse Gas Reduction Plan,and we would
5 urge you to support it as they have submitted it.
6 Thank you,very much.
7
8
9
CHAIR KRUER:Thank you,Ms.Krebs.
Ed Kimura,Sara Honadle.
MR.KIMURA:Thank you,Mr.Chairman and members
10 of the Commission.My name is Ed Kimura.I am here speaking
11 on behalf of the San Diego Chapter of the Sierra Club.
12 We concur with the staff to modify the energy
13 minimization and gas reduction plan.The other thing I would
14 like to add --and I will be very brief about it --is that
15 there is this concern that AB32 does not apply.I would beg.
16 ,to differ with you,because one concern that I have that
17 hasn't been discussed is that while there is a climate
18 change,a temperature change,the area that carbon dioxide
19 impacts is the ocean acidification.This is a growing
20 problem throughout the world,and it certainly is going to
21 start effecting us here along the coastal areas.
22 The second item I have to recommend,that hasn't
23 been discussed so far,is to consider the energy minimization
24 problem over the life cycle of the project.That means
25 taking into consideration what is sometimes called cradle-to-
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1 the-grave planning,and that has been used in an economic
2 sense and from an engineering standpoint,to do the cost
3 evaluation cradle-to-the-grave,but here we should be
4 looking at it from the standpoint of minimizing electrical
5 energy demands.
6 So,therefore,I would certainly recommend that as
7 an addition,and those conclude my comments,thank you.
8 CHAIR KRUER:Well,what we are going to do is to
9 try to break for lunch around 12:30,or so.So,we are going
10 to have to stop in the middle,and I hate to do this,but we
11 have way too many speaker slips to go through.There is
12
13
14
15
probably 45 more,and no one would get a change to eat.So,
we are going break for lunch in a little bit here.
What we are going to do is to stop going through
the speaker slips,keep this order,and continue the public
16 hearing until after we come back from lunch,and I'll give
17 you that time after we go through a few public speaker slips.
18 Director Douglas,do you have a problem with any
19 of that?
20
21
EXECUTIVE DIRECTOR DOUGLAS:No.
CHAIR KRUER:Okay,and because the hearing is
22 still open,and we are discussing the subject,please during
23 .the lunch break you are welcomed to talk to any of us,but
24 don't talk to us about any of these items that are on the
25 agenda,because we have already done our ex partes,and it
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1 would be inappropriate to discuss anything with us in regard
2 to this item,or the next item.
3 12:10 p.m.
4 [Public Speakers Heard,Lunch &Closed Session Taken]
5 CHAIR KRUER:Now,we still have,and we are going
6 to continue and move through the process,and there are quite
7 a few speaker slips here,and if you don't feel the necessity
8 to use the whole 3 minutes,please don 't,and don't reiterate
9 what some other people are saying,if possible.
10 We will continue on S.a.,the Condition Compliance
11 on the approval of Energy Minimization and GreenhouSe Gas
12 Reduction Plan.And,again,if you would stay with your
13 issues and questions,and agree or disagree with the plan,or
14 what you think it should be,it is appreciated,and if you
15 don't need to speak,or you are really on S.b.let us know,
16 and we will just keep going,otherwise we are going to be
17 here a long time.
18 Sara Honadle.
19 MS.HONADLE:Good afternoon,Sara Honadle,I am,a
20 member of the Surfrider Foundation,and a resident,along
21 with my 2 daughters and husband,in the Vallecitos Water
22 DistriCt .
23 Primarily,first and foremost I am a parent.My 8
24 and 9~year old daughters are very aware of our climate change
25 issues.They come back to me after a day at school,
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1 concerned about the rising water levels that are projected in
2 .their lifetime,and,I would be remiss not to address their
3 concerns this afternoon.
4 You have,within your ability today,to consider
5 all of the data that you have been presented with.Some of
6 that,I believe,is pretty biased.Obviously,project
7 proponents are going to give you the best possible spin to
8 make their greenhouse gas emissions as minimal as possible,
9 and your own staff has stated,sort of opposite that.
10 So,I would urge you to follow the recommendations
11 previously presented by Bruce Reznik,on behalf of Coast
12 Keeper and Surfrider,and at the very least,your own staff.
13 Thank you.
14 CHAIR KRUER:Thank you,Ma'am.
15 Andrew Sienkiewich --I am sorry,I cannot
16 pronounce it,and.thank you for staying sir.
17 MR.SEINXIEWICH:Thank you,Mr.Chairman,and
18 member.s of the Commission,Andrew Seinkiewich,with the
19 Metropolitan Water District.There were a number of.comments
20 made by earlier speakers that made reference to our
21 organization.I would like to express our position,and
22 perhaps a few points of clarity.
23 First of all,we do believe it is appropriate for
24 the project's greenhouse gas plan to be based on offsetting
25 net carbon emissions,and this is because when this project
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1 turns on -~the 56,000~acre feet turns on,it will reduce
2 56,000-acre feet of demand off of the Metropolitan system.
3 In particular,by "net"what we mean is the
4 difference in the energy-related emissions required for
5 moving water through the state water.project,as compared to
6 operating a desalination plant.
7 Now,we felt previously,and informed you that we
8 are supporting the project financially.we have made a
9 decision to support this desalination project,and four
10 others.It is a $900 million commitment,in financial
11 incentives.We will be paying upwards of $250 for each acre
12 foot that is produced for 25 years.The reason we are doing
13 this is because it makes good economic sense,when you look
14 at the regional water supply reliability strategy.The
15 alternative would be to import more water,as opposed to
16 developing these local resources.
17 When you look at it,we are backing not only
18 desalination plants,we are backing recycling and
19 conservation,anything we can do in local water management,
20 makes sense from a regional perspective.
21 Now,we are paying money so people don't buy our
22 water,why are we doing that?because we defer infrastructure
23 costs and.expansion of our system in the future.I point
24 out,the state water project is not fully developed,as the
25 demands go up,we will have huge costs in terms of enlarge-
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1 ments on the facility.
2 Also,I would like to point out that in years like
3 this,when the state water projects apply is very limited.A
4 project coming on like this,would still defer the use of our
5 system,and that is because on top of the water that
6 contractually moves by the State of California through the
7 project,we are engaged in water transfers.Weare still
8 going to use the same infrastructure,the same pumping plant,
9 still moving water through the system that sources other than
10 derived from the state water project,and those are
11 expensive,and a project like this would help us avoid those
12 costs.
13 So,I thank you,and again we believe that net is
14 the way to go,thank you.
15
16
CHAIR KRUER:Thank you,sir.
Patti Kreb --spoke already.And,Ted Owen,you
17 spoke,I see another slip in here.
18 Faith Picking,Stefanie Sekich.
19 MS.PICKI~G:Good afternoon,Chair and
20 Commissioners.Thank you for visiting us,and for allowing
21 me to speak on behalf of the Poseidon desalination plan,and
22 in support of the adoption of their mitigation plans.
23 CHAIR KRUER:Could you state your name,for the
24 record,please.
25 MS.PICKING:My name is Faith Picking,and I am
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1 here representing Bio-Com.Bio-Com is an association of over
2 550 life science companies,and related service providers in
3 Southern California.
4 In the past two decade,Southern California has
5 become a magnate for the life science companies,amounting to
6 one of the largest life sciences coffers in the world.In
7 San Diego,alone,the life science companies support over
8 37,000 employees with an annual local economic impact of
9 approximately $8.5 billion.
10 with that being said,none of this would even be
11 possible without a reliable supply of clean water to support
12 the current and expanding needs of the life science
13 industries.Water is critical in the research,development,
14 and manufacturing of life science products.For many
15 companies,this one item may be their deciding factor for
16 them coming to Southern California.Life science companies
17 need water in order to be successful.We cannot survive
18 without it.
19 Given the current economi~and water crisis,
20 California needs concerns the state's supply of water in
21 order to promote the success of Southern California's life
22 science industry.Desalinization is a central part of a
23 diversified water strategy,by which Southern California can
24 address its long term water needs.
25 And,therefore,on behalf of Bio-Com,I strongly
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1 urge you to approve the final permit for the Poseidon
2 Resources desalination project.
3 Thak you,very much.
4 Thank you,Ma'am.
5 Larry Porter,Robin Everts,Keith Lewinger.
6 MR.LEWINGER:Good afternoon,Mr.Chairman,
7 members of the Commission.My name id Keith Lewinger.I am
8 here today speaking on behalf of the board of directors of
9 the San Diego County Water Authority.I chair the water
10 authority's water planning committee.I am also general
11 manager of the Fallbrook Public utility District.
12 The water authority testified last December at the
13 initial hearing in favor of the project,and we appreciate
14 the Commission's action to approve the permit for the
15 project.We encourage very swift resolution of the
16 outstanding conditions --like today.
17 This project will provide our region with reliable
18 new local supplies of 56,000-acre feet,about 8 percent of
19 the total supply needed for san Diego County.
20 As you just heard from the Metropolitan Water
21 District,that 56,000-acre feet is water that will then not
22 have to be pumped over the Tehachapis.Earlier,you heard
23 Mr.Jonas.Minton say,"Well,that won't reduce the amount of.
24 water that the state water project delivers."
25 Well,he is right,but what he forgot to tell you
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1 was that the vast majority of the state water contractors are
2 north of Tehachapis.Metropolitan Water District is south of
3 the Tehachapis,so the water that is saved won't have to be
4 pumped over the Tehachapis;therefore,you should consider
5 the net result of energy saved,and carbon credits.
6 Water supplies from this agency will serve
7 agencies who have contracted to purchase water from Poseidon,
8 and it will replace imported water that would,otherwise,be
9 pumped over the Tehachapis,as I just mentioned.
10 As such,the water authority supports the approach
11 whereby direct,indirect carbon emissions associated with the
12 importation of water,offset by the project,are netted out.
13 Further delays in this project will complicate the
14 water authority's task of providing reliable water for the
15 region.Earlier,you heard speaker talk about we should be
16 doing conservation,we should be doing recycled water,
17 instead of this project.I beg to differ.We need to do all
18 of those things.No one of them is a silver bullet.
19 In the Sout,hern California region,Metropolitan
20 Water District has estimated that we need 200,OOO-acre feet
21 of conservation,and we need 200,OOO-acre feet of
22 desalination,and we need 200,OOO-acre feet of recycled
23 water.No one of them will solve our problem,so you can't
24 be picking and choosing which one you want,you need them
25 all,and this water will offset 56,OOO-acre feet of water
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1 delivered to the San Diego region.
2 That 56,000-acre feet could be on line by 2011 if
3 you approve the Conditions today.In 2011 that could be the
4 difference between stressed ponds and dead ponds.That could
5 be the difference between mandatory cutbacks to our
6 customers,or voluntary conservation.That 56,000-acre feet
7 could mean the difference between economic growth,and
8 economic shutdown.
9 I urge you to approve the offsets based on net
10 reductions.Thank you.
11
12
13
14
CHAIR KRUER:Thank you,sir.
Larry Porter,Robin Everts.
Mr.Porter?
MR.PORTER:Yes,sir,Chairman Kruer,and members
15 of the Commission,my name is Larry Porter.I am with
16 Residents for Responsible Desalination,and I want to bring
17 up the point again,when I inappropriately spoke before.
18 The man from Metropolitan and the man from the San
19 .Diego County W~ter Authority did not show you a letter that
20 was a declaration and/or a determination by the Metropolitan
21 Water District that these offsets would actually happen.
22 Metropolitan has not said that they will deliver
23 56,000-acre feet less of water,which is the water that
24 Poseidon is intending to deliver.That fact,that is a fact,
25 that is a fact,and all you are hearing from these folks are
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1 illusions.Well,yes,it could reduce,but there is no fact
2 that says Metropolitan has agreed that it will deliver that
3 amount of water left.So,the argument that is being used
4 doesn't hold any water,thank you,Chairman Kruer.
5
6
7
CHAIR KRUER:Thank you,sir.
Robert Simmons,Chris Dugan.
MR.SIMMONS:Mr.Chairman,may I ask somebody to
8 give me a verbal cue when I have 30 seconds left?
9
10
11
12
CHAIR KRUER:Yes,sir,we will do that.
MR.SIMMONS:Thank you.
CHAIR KRUER:State your name for the record.
MR.SIMMONS:My name is Robert Simmons.I am a
13 retired professor of Biology with USD,former chief trial
14 counsel for the Sierra Club.I have about 20 years
15 experience dealing with coastal water issues,similar to
16 those that are before you today.
17 I am very familiar with this project,and I am
18 here to say that both mitigation plans that have been
19 submitted to you by Poseidon are good plans.They fUlly
20 comply with the applicable facts in the case,your require-
21 ments delivered last November are reasonable,consistent with
22 the Coastal Act,and they ought to be implemented by you by
23 adoption today without modifications or delay.
24 I am disheartened to hear good friends of mine,
25 like Bruce Reznik,testify to you today that he urges you not
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1 to,quote,not to add one ounce of greenhouse gas to the
2 atmosphere.He,and several others who I know,and have
3 worked with,argue you to reject the plan by Poseidon,in
4 favor of restrictive and preemptive expensive modifications.
5 What saddens me with this is that these very
6 people who are asking you to forego one ounce of greenhouse
7 gases,are seeking to stop a project that will provide
8 drinking water for 112,000 families in San Diego.
9 with respect to the issue that is before you right
10 now,the position of your staff is incomprehensible to me,
11 impressing you to impose modifications that are not only not
12 necessary,are illogical,and erroneous,at least contrary to
13 law.On the one hand,your staff tells you that,yes,
.14 PoSeidon is not subj ect to the mandates of AB32,but on the
15 other hand they then tell you --
16 CHAIR KRUER:You have 30 seconds,sir.
17 MR.SIMMONS:--the right to compel it.
18 On the one hand,nobody has explained why staff is
19 recommending a full offset credit to Southern California
20 Edison,a direct producer of greenhouse gas,and at the same
21 time denying it to Poseidon.And,thirdly,you are hearing
22 from staff,well,we can't rely upon an offset because there
23 is no guarantee that the water that Poseidon will be
24 replacing,will be replaced.But,you have a letter from
25 Metro saying --
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CHAIR KRUER:Mr.Simmons,time,please.
MR.SIMMONS:--that it will be replaced,well,
3 Commissioners --
4
5
CHAIR KRUER:Thank you,for your testimony.
MR.SIMMONS:--this is nonsense.Don't delay
6 this by continuing this process of spinning wheels,and
7 minimizing the importance of this project.
8 Thank you,for your indulgence.
9
10
11
CHAIR KRUER:Thank you.
Andrea Cook,Dr.Cook.
MR.COOK:Thank you,for listening to us today.
12 My name is Andrea Cook.I am a Ph.d.climating scientist,
13 and have been tracking carbon molecules around the earth for
14 almost 20 years,am I not acquainted?I have been tracking
15 these things,and where they go,and how the carbon cycle
16 works,and the whole thing about climate change,and
17 greenhouse gases,and how they interact with the other
18 impacts of water,et cetera.
19 I am no longer collecting my own data,I have
20 switched into being an implementer of climate changes.
21 Scientists create the data,and now we want to take what we
22 know and implement acquiring greenhouse gas reductions as
23 soon as we can.
24 This plan that is before you now goes towards
25 steps towards reducing our greenhouse gas emission in an
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1 unprecedented way.Our nation has not signed onto doing
2 this,our state has,our local jurisdiction has,and this is
3 way out front and where we are trying to get,in terms of
4 greenhouse gas reductions,and mitigations for climate
5 change,and it considers the water impacts,and the
6 greenhouse gas impacts.
7 We have reviewed Poseidon's plan.Their plan is
8 solid.There are ways to do it.We are on Board.We work
9 here locally.We are willing,through our organization,the
10 California Center for sustainable Energy,to help guarantee,
11 and to work with CARB,that they get credits that make sense,
12 and are good credits.
13 I don't want anymore greenhouse gas emissions.
14 They have signed up to lead here in San Diego in showing how
15 industry can do that,and it is doing it ahead of AB32,and
16 the AB32 is coming,will soon be in place,but it is not in
17 place now.All of the rules are not set up.We do not know
18 exactly how these systems will work.We are developing
19 systems on multiple levels that will come together.
20 To restrict it to one certain way that isn't
21 developed yet,is difficult.There are opportunities that
22 will be developed over the years,and should be,I believe,
23 should be made available to them.They want to make
24 reductions,they want to make them now.
25 I am concerned about stopping it any longer.We,
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1 certainly need the water,we need the greenhouse gas,and we
2 need precedent that.says,companies will do this,they are
3 willing to do this,if this is how you do it,how you make it
4 real and solid,and this is setting precedent.You don't
5 throw the baby out with the bath water.
6 We just went through this in Chula vista,in some
7 level,working with them on their emissions,and they have
8 already reduced their emissions from their operations.They
9 are going out into their community in doing it.They have
10 agreed to implement the greenhouse gas standards for energy
11 efficiencies,and outdo it by 15 percent.And,yet the press
12 comes out and says,well,you gutted it because you went for
13 15 percent rather than 20.
14 This is an historic step forward,and this is one
15 of them,and I think you should go with the Poseidon plan as
16 it is,and let them do the reductions now.
17 Thank you.
18 CHAIR KRUER:Thank you,Ma'am.
19 Ronald Lekles,Jr.and Chuck Badger next,and
20 Rachel Davis after that.
21 MR.LATHAM:Good afternoon,my name is Ronnie
22 Latham,the associate executive director at the Magdalena
23 Ecke Family YMCA and aquatics park.
24 For more than 50 years the YMCA has operated in
25 this aquatic park in Aqua Hedionda Lagoon.They are known as
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1 Camp H20.The YMCA aquatic park is a summer camp geared
2 towards kids between ages of 7 years old,to 17,offering
3 affordable day camp activities,including swimming,kayaking,
4 paddle boat,row boating,and fishing.
5 The camp plays an important role in educating the
6 youth about precious marine environments,and the need to
7 preserve the lagoon for future generations.
8 I am here to urge you to accept Poseidon's
9 proposed Marine Life Mitigation Plan.I also hope that you
10 have --that you will take advantage of Poseidon's commitment
11 to serve as a long term steward of the lagoon,once the power
12 plant is decommissioned.The lagoon means a lot to the YMCA
13 families,and we should not take its long term preservation
14 for the lagoon --not take the long preservation for granted.
15 Poseidon should be given the opportunity to
16 demonstrate that its Marine Life Mitigation Plan will benefit
17 the lagoon.
18 Thank you for your support of the YMCA.
19
20
CHAIR KRUER:,Thank you,sir.
Chuck Badger.
21 UNIDENTIFIED SPEAKER:[Inaudible ]
22 CHAIR KRUER:Okay,we will put you down for S.b.
23 then,thank you,Ma'am.
24 Bob Simmons,Kevin Byrne.
25 [No Response
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1
2
3
4
5
6 Commission,my name is Gary Arant,and I am general manager
7 of the Valley Center Municipal Water District.
8 I am here today representing my agency and 8 other
9 pUblic water agencies in this region that have signed --and
10 this is important --takeorpay [sic.]contracts for
11 desalted seawater from the Carlsbad Poseidon Plant.
12 I am also here today representing the Association
13 of California Water Agencies,an association that represents
14 450 public water agencies,serving over 90 percent of the
15 water used in California.
16 Since you approved this project last year,a
17 couple of important things have happened.Flows through the
18 Sacramento delta have been reduced,and the Governor has
19 declared a statewide drought.
20 Currently,my customers in my agency are suffering
21 a 30 percent cutback,mandated cutback in imported water
22 supplies,and this is affecting agricultural customers
23 throughout San Diego County.
24 VWR and the state water plan has called for the
25 state to diversify its water resources,to secure our long
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1 term needs,and desalinated seawater is an important element
2 in that diversification.The longer it takes to bring this
3 project on line,the more perilous our situation becomes.
4 Additional delays in this project will only make our
5 conditions worsened.
6 We encourage the Commission to take action today
7 to finalize the permit,and the conditions to the permit.
8 As you have heard from your own staff,Poseidon's
9 greenhouse plan is voluntary.The project is not regulated
10 under AB32.As to the issue as to whether they should
11 mitigate net,or gross demand,I will point out that in the
12 urban water management plans,and the resource management
13 plans of Metropolitan,the water authority,my agency,and
14 the other member agencies of the water authority,that the
15 desalted seawater is counted upon as a source of supply,and
16 will replace on a 1:1 basis imported water coming to this
17 region.So,in our view,the mitigation plan should address
18 the net energy impact.
19 .And,in general,.the mitigation plan should be
20 fair,and should let this project remain a financially viable
21 project.
22 So,again,I would encourage your Commission to
23 finalize this permit today by approving the Greenhouse Gas
24 Emission Plan,and also the Marine Life Mitigation Plan.
25 Thank you.
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CHAIR KRUER:Thank you,sir.
Chris Duggan,Angelika Villagrana,next after you.
MR.DUGGAN:Okay,good afternoon,Chairman Kruer,
4 and honorable Commissioners,I am Chris Duggan.I am with
5 the San Diego Regional Economic Development Corporation.
6 As we are all aware,and as we have heard numerous
7 times here that California is in a crisis.We do have a
8 drought,it is serious,and it is statewide.Our ability to
9 attract and maintain high paying jobs depends on affordable
10 dependable water supplies.
11 On the issue that you have before you today,the
12 EDC urges this Commission to adopt Poseidon's energy
13 minimization greenhouse reduction plan.Poseidon's energy
14 minimization and GHG reduction plan is comprehensive.It
15 fully complies with Special Condition 10.
16 When we look at the plan's performance criteria,
17 we feel that it is strong,and the voluntary commitment is
18 there to mitigate the project's indirect GHG emissions,
19 through the minimization pf energy by implementing new
20 technologies,and high energy efficiency designs,also
21 through the purchase of offset credits,funding
22 reforestation,and lastly putting in place the oversight
23 measures that need to be there.
24 This plan identifies feasible mitigation
25 opportunities,and provides regulatory assurances that the
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1 implementation of the mitigation plan will continue to be
2 subj ect to a state agency's coordinated process to insure the
3 best available mitigation feasibility.
4 Again,on behalf of the San Diego Regional
5 Economic Development Corporation,we urge you to support
6 Poseidon's plan.
7 Thank you.
8
9
10
CHAIR KRUER:Thank you,sir.
Angelika Villagrana.
MS.VILLAGRANA:Thank you,Mr.Chairman,
11 Commissioners.My name is Angelika Villagrana,I represent
12 the San Diego Regional Chamber of Commerce,its 3,000
13 members,and their 400,000 employees.
14 The San Diego Chamber has been a long time
15 supporter of the desalination project.We have testified in
16 support before many agencies,and we were also before you
17 last year.
18 We have been kept informed by Poseidon as to the
19 various conditions.that were added as the project moved
20 forward,and as Poseidon continued working on its mitigation
21 policies,and we have been assured and we are confident that
22 adequate safeguards are in place to mitigate environmental
23 issues.
24 The project is an excellent additional tool to
25 diversify our water supply,especially,with historic
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1 droughts hanging over all of our heads right now.This extra
2 resource is critical for our region,and for our economy.
3 As many of us are still trying to get our arms
4 around AB32 implementation,we believe that Poseidon has
5 stepped up and done a good job with its mitigation plans;
6 therefore,the San Diego Regional Chamber of Commerce urges
7 you to approve the mitigation plans submitted by Poseidon,
8 and not delay the project any further by adding additional
9 conditions.
10 It is in all of our interests to get this
11 additional water source now on line as soon as possible,
12 thank you.
13 CHAIR KRUER:Thank you,Ma'am.
14 Jim Schmidt,and then corie Lopez,Fred
15 Sandoquist.
16 MR.SCHMIDT:Chairman Kruer,and Commissioners,
17 Jim Schmidt,retired banker and attorney.I am representing
18 San Diego East County Chamber of Commerce,representing the
19 cities of EI Mesa,EI Cajon,Lemon Grove,Spring Valley,an
20 unincorporated area.
21 I just would like to,again,urge you to only
22 approve the requirements and modifications that Poseidon
23 agrees with,because that is very important,and.that would
24 include their position on the greenhouse gas.
25 This project is a must for the San Diego region.
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1 We are at the end of the line on resources for water.Back
2 when I talked to you last fall,I told to you about the
3 horror stories I faced,I saw up in Monterey and Santa
4 Barbara,the horror stories on water.When you have a water
5 problem and you can't water your lawns ,et cetera.It was
6 unbelievable what I saw up there.We don't want to face
7 that.
8 One of the underlying issues you have here,people
9 that oppose everything.They oppose growth.They oppose new
10 growth,new housing,new roads,whatever.One of the facts
11 that I want to mention about San Diego County,on growth,the
12 number one growth issue here,why we are growing,is we are
13 living too long.The San Diego Association of Governments
14 show that in 2030,people over 65 years old are going to
15 increase 134 percent,almost 2.5 times.so,I hope the
16 opponents are not going to argue against the use of
17 prescription drugs,because that is helping me to live a lot
18 longer.
19 But,San Diego needs more water.Let's approve
20 this project as Poseidon has suggested,and again,with
21 people living longer that is the issue of growth,and I hope
22 that continues,and I hope we all continue to live longer,
23 like all of you,I hope when you age to 65,you are still
24 here,thank you.
25 EXECUTIVE DIRECTOR DOUGLAS:Let the record show
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1 staff supports growth through age.
2 [Audience Reaction ]
3
4
CHAIR KRUER:Okay,Corie Lopez,Chris Sandoquist.
MS.LOPEZ:Good afternoon,my name is Corie
5 Lopez,with Food and Water Watch.We are a non-profit
6 consumer advocacy organization.We promote clean and safe
7 water to all public.
8 We certainly believe that the Carlsbad
9 desalination plant has the potential to create more problems
10 than it will solve.So,regulatory agencies,and other
11 experts,have expressed concern over the environmental
12 impacts the Carlsbad desalination plant will have on our
13 sensitive coastal areas,and greenhouse gas emissions.
14 Although,we do not support the construction of
15 the Carlsbad desalination plant,it has already been
16 approved,and as it moves forward we want to insure that the
17 health and safety of the public,and environment,are
18 protected.
19,Food and Water Watch,and other members of this
20 community are concerned with the potential loss of oversight
21 to make society comply with environmental regulations,and
22 conservation practices.Poseidon has a track record of not
23 being transparent.One way to help insure Poseidon complies
24 with environmental regulations,and is transparent,is for
25 this Commission to adopt their staff's recommendations.
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4
Thank you.
CHAIR KRUER:Thank you,very much.
Fred Sandoquist.
MR.SANDOQUIST:Mr.Chairman,I'll hold my
147
5 remarks to Item S.b.
6 CHAIR KRUER:Okay,thank you,sir.We will put
7 you down for S.b.
8 Again,anyone else,we encourage that,if you want
9to do that.
10
11 Thorner.
12
Christopher Cole,I believe it is,and Kimberly
UNIDENTIFIED SPEAKER:If you would call a number
13 of speakers ahead,it would help,please.
14
15
16
17
CHAIR KRUER:I have been doing that,okay.
UNIDENTIFIED SPEAKER:Thank you.
CHAIR KRUER:Thank you.
MS.THORNER:I have "good morning"written down,
18 so good afternoon.I am actually thankful it is not evening,
19 when I was here last time.My name is Kimberly Thorner.I
20 am the general manager of Oliveheim Municipal Water District.
21 I am here today speaking on behalf of VOCAL,and
22 VOCAL stands for Voice of the Consumer at the Local Level.
23 VOCAL is an organization of several water agencies in San
24 Diego County,including Fallbrook Public Utilities District,
25 Oliveheim Municipal Water District,Otay Water District,and
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1 Padre Dam Municipal Water District,together we represent
2 over 400,000 rate payers in San Diego county.
3 Several of VOCAL's members have joined me in the
4 audience today,and in the interest of your time,I'll convey
5 the groups comments on the matter before you today.
6 VOCAL was organized so that water ratepayers had a
7 voice in Sacramento.Unlike the Metropolitan,the DWI,the
8 water authority,we are retail water agencies.As such,we
9 are the ones who interact with the rate payers,on a daily
10 basis.We are also the ones that are held directly
11 accountable for the delivery of reliable and affordable
12 water.
13 Many of you are elected and appointed officials.
14 You know what it means to be held directly accountable.We
15 take that obligation very seriously.We know you do,as
16 well.
17 The bottom line for VOCAL is that San Diego must
18 become water self sufficient.We can no longer depend on the
19 bay delta in its environmentally damaged condition.The bay
20 delta conservation plan,even if it were implemented,would
21 be 7 to 10 years before Southern California could see any
22 water from that plan.We cannot wait ·for that to happen,and
23 VOCAL focuses on desalinated water,recycled water,and
24 conservation.Echoing the sentiments of one of the previous
25 speakers,you need all three of those for Southern
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1 California.
2 We are also focuseq on getting through the
3 regUlatory requirements on these projects,to get them on
4 line,so that they mean real water.
5 We are here today asking the Commission to
6 finalize its approval of the Carlsbad desal plant mitigation
7 plans.We urge you to bring to a close the 2-year permitting
8 process on a project that should have rightfully been built
9 years ago.
10 We also ask the Commission to be mindful --to the
11 limits of its regulatory authority --the mitigation
12 requirements that are placed on this project must be
13 justifiable,and they must be based on the project's
14 obligations under the Coastal Act.
15 We appreciate staff's due diligence,but the
16 amendment they are asking you to make to Poseidon's
17 greenhouse gas and wetlands mitigation plans are unprecedent-
18 ed.Excessive and arbitrary mitigation will unnecessarily
19 drive up the project's costs.These costs are going to
20 ultimately be passed on to the San Diego ratepayers,the
21 customers that we serve.We do not believe this is what you
22 had in mind when you approved this project 9 months ago.
23 On behalf of VOCAL,we appreciate the Commission's
24 actions today,and your support for fair,justifiable and
25 affordable permit conditions,so that we can get.this project
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1 moving and on line.
2 Thank you.
3 CHAIR KRUER:Thahkyou.
4 Robert Gilleskie,Eric Munoz,and Stefanie
5 Ungerson.
6 MR.GILLESKIE:Good afternoon,Mr.Chairman,
7 members of the Commission,thank you for the opportunity to
8 speak to you this afternoon.My name is Robert Gilleskie,
9 and I represent the California Center for Sustainable Energy.
10 We are an independent non-profit,sponsoring the responsible
11 use of energy technologies.
12 And,I am here this afternoon,not as a project
13 proponent,but as one who is the independent evaluator for
14 Poseidon's repts to make this project carbon neutral,not
15 just carbon neutral,but to minimize their use of energy.
16 After a thorough evaluation by our staff,oUr
17 energy experts,we have concluded that this project is indeed
18 sound.In fact,Poseidon has broken new ground in its
19 proposal.To the best of our knowledge,this is the only
20 major --I mean major infrastructure project in the State of
21 California that is being designed to be net carbon neutral
22 from the start.
23 This plant will not only provide an alternative
24 source of energy,and a source of water for San Diego County,
25 but it will also set an excellent example of how to implement
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1 AB32.
2 Thank you.
3
4
5
6
7
8
CHAIR KRUER:Thank you,sir.
Eric Munoz.
MR.MUNOZ:-I'm on S.b.
CHAIR KRUER:Okay,thank you,sir,S.b.
stephanie Jungersen,John steinbeck.
MS.JUNGERSEN:Good afternoon,my name is
9 Stephanie Jungersen,and I'm here on behalf of the San Diego
10 North Economic Development Council.It is my pleasure to
11 testify before you today.
12 The San Diego North Economic Development Council
13 is a coalition of private and public sector entities working
14 together to grow and sustain the economy of the north county.
15 As you can imagine,our ability is to attract and retain
16 businesses,and link partially to San Diego's attractive
17 climate and environment.
18 Our economic stability is also tied to the
19 availability of water resources.Many of San Diego's high
20 tech and bio-tech companies are clustered in north county,
21 and rely on high quality water for manufacturing,and
22 operations.San Diego County must have access to a more
23 reliable,drought proof,and locally controlled supply of
24 water to sustain our economy and our quality of life.
25 On behalf of all of our members,and all of our
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1 employees,we respectfully ask the Commission to approve
2 Poseidon's proposed mitigation plans.
3 Thank you.
4
5
6
7
CHAIR KRUER:Thank you,Ma'am.
John-steinbeck.
MR.STEINBECK:I'm on S.b.
CHAIR KRUER:Merle Moshin,John Scott.
8 [No Response ]
9 John Scott,Merle Moshin,William Ruckel.
10 MR.SCOTT:My name is John Scott,and I am 77
11 years old,so I guess I am part of the problem.,according to
12 an earlier speaker.
13 I had other remarks prepared for today,but
14 because of the Chair's admonitions,I decided to modify
15 those.I live in Huntington Beach,and I live between AES
16 and OCSD.As the result of that,I consider myself to be
17 somewhat of an expert on pollution.OCSD emits about 2 tons
18 of pollutants into the air each day,and now they dump
19 somewhat less than 200 million gallons of pollutants into the
20 ocean each day.AES dumps about 2 tons of pollutants into
21 the air,in my neighborhood each day,and they dump God knows
22 what into.the ocean.
23 Carbon neutral seems to have a couple of different
24 meanings for different groups here.Poseidon seems to have
25 one understanding of it,and environmentalists seem to have
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1 another.Let me tell you what I think is carbon neutral.I
2 have had for over 20 years panels that heat my water,and for
3 most of the year I don't use any gas to make the hot water
4 that I need.Two years ago,I put 20 solar panels on my
5 roof,arid those panels produce all of the electricity that I
6 need.I don't --my bill from Edison is $5 each month for
7 services,and nothing for electricity.
8 My back yard is filled with native plants.On
9 these hot days I give each of those plants 2 gallons of
10 water,and that is more than adequate for them.Every two
11 weeks I wash the panels,and when I do I wonder what in God's
12 name is the Coastal Commission doing?Those panels are just
13 absolutely filthy,and if your charge is to clean the air,
14 then I think you need to look at my solar panels and see what
15 the air contains.
16
17
18
19 coming.
20
21 ever seen.
22
CHAIR KRUER:Mr.Scott.
MR.SCOTT:Yes.
CHAIR KRUER:Your time is up,sir,thank you for
MR.SCOTT:That was the fastest 3 minutes I've
CHAIR KRUER:They get fast when you are 77,
23 right?like me,and well,I am getting there,so they go
24 pretty fast.
25 William Ruckel,and David Nydegger.
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I'm sorry,Ma'am,I am sorry,what is your name?
MS.MOSHIE:My name is Merle Moshie.
CHAIR KRUER:Go ahead,Ma'am.
MS.MOSHIE:I am president of Residents for
5 Responsible Desalination,a party to the meet and greet in
6 Huntington Beach,California.
7 My questions,and my apprehensions regarding the
8 findings,mitigations,compliances,and plans for the
9 Carlsbad desalination plant,revolve around how all of these
10 would fit into a plan by Governor Schwarzenegger and Diane
11 Feinstein to bring to the November ballot a bipartisan
12 comprehensive water bond.The bond would one,improve the
13 conveyance of water by including a significant investment in
14 healing and safe guarding the Sacramento San Joaquin delta
15 delivery system.It would increase water storage facilities,
16 such as reservoirs,and ground water aquifers.It would
17 emphasize heavily conservation and reclamation.It would
18 protect a healthy environment.
19 We simply hope that any findip.g by the Commission
20 will not conflict with this sort of comprehensive plan.It
21 would appear that allowing a global profiteer to piecemeal
22 efforts at desalination up and down the California coast does
23 not lend itself well to a comprehensive plan.
24 Lastly,for those of you who think you know the
25 Governor well,he remains a quixotic figure,as witnessed by
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1 the 1 percent sales tax increase suggestion in today's paper,
2 and he may well decide that his legacy --as did Pat Brown
3 lies in his creating a lasting water solution to our water
4 crisis.And,we can only hope that desalination,as proposed
-5 by Poseidon Resources,plays little or no part at all in this
6 development.
7 Thank yoU.
8
9
CHAIR KRUER:Thank you,Ma'am.
William Ruckel and David Nydegger.Mr.Nydegger,
10 go ahead,sir.
11 MR.NYDEGGER:Evening,Chairman Kruer,members of
12 the Commission,my name is David Nydegger.I am the
13 president and chief executive officer of the Oceanside
14 Chamber of Commerce here in Oceanside.We have over 900
15 .businesses I'm representing.
16 The business community is very,very concerned
17 about the future of water as it relates to the business
18 community.We have substantial agriculture in the area.
19 They have already been hit with fires,been hit with frost,
20 have been asked 'to reduce their water consumption by 36
21 percent,so this is a very,very serious issue.
22 We would like very much for you to support
23 Poseidon in their efforts,and make the desal plant a
24 reality,thank you.
25 CHAIR KRUER:Thank you,sir,and thank you for
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1 testifying.
2 Michael Cowett,and Joel Levin,and Don
3 Christianson.
4 MR.COWETT:Good afternoon,Michael Cowett,law
5 firm of Best Best and Krieger.We serve as general counsel
6 to the Sweetwater Authority,Valley Center Municipal Water
7 District,Santa Fe Irrigation District,and special counsel
8 to Oliveheim Municipal Water District,Ricon del Diablo,and
9 Rainbow,six of the nine retail agencies that have contracted
10 to purchase desalted water,speaking in favor of Poseidon's
11 greenhouse gas reduction plan,to offset net impacts of the
12 greenhouse gas emitted to produce the recycled water.
13 The main point here is that the reason that these
14 six agencies contracted to purchase desalted water is to
15 replace imported water,not to increase their water supply,
16 and that is sUbject to audit by the Metropolitan Water
17 District,that is,we are planning to serve existing
18 customers,not new customers.
19 The purpose was to enhance the relia~ility of our
20 water supply,in light of the uncertainties,environmental
21 constraints,and drought conditions that are impacting the
22 delta.
23 The project will mitigate for the incremental gas
24 emissions needed to produce desalted water.If water users
25 in the San Joaquin Valley,or other areas of California
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1 increase the supply of pumped water,we believe it is those
2 users who should pay for .the mitigation of that increase,not
3 the customers who are buying the desalted water in San Diego.
4 We urge your support for the Poseidon plan,thank you.
5
6
CHAIR KRUER:Thank you,sir.
Joey Levin.
7 MR.LEVIN:My name is Joel Levin --got to work
8 on my writing,I think.I am the vice president of the
9 California Climate Action Registry.The registry has been
10 referenced quite a bit here today,so I thought it would be
11 useful to come up and in my 3 minutes give you a little over
12 view of the registry,and what we do and what we don't do.
13 The California Registry is a nonprofit 501(c)(3)
14 organization.We were chartered by California state law in
15 2001,and given a mandate to do two things:first,to develop
16 broadly recognized accounting standards for measuring
17 emissions,and emission reductions of greenhouse gases;and
18 second,to establish a registry,where these things could be
19 tracked and pUblicly reported,or not,an advocacy
20 organization.We,generally,don't take positions on public
21 policy issues,probably the only one in the room here today
22 that can say that.
23 In our registry for entity footprints we have over
24 360 organizations that are tracking and publicly reporting
25 their greenhouse gas emissions through our system,including
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1 many of California's largest companies.
2 More recently,we have turned our focus to
3 developing a registry for greenhouse gas reduction projects.
4 In developing our project protocols,or accounting standards,
5 we seek to build on existing international best practices,
6 and come up with standards that can be broadly accepted by
7 industry,environmental community,regulators,and local
8 communities.It is not a simply task,but it is one that I
9 think we have been quite successful,as evidenced by the
10 strong support for our program from all of these sectors.
11 It is also reflected in the composition of our
12 board,which includes representation from such diverse
13 organizations as California EPA,Metropolitan Water District,
14 Shell Oil Company,Pacific Gas and Electric,Goldman Sachs,
15 the Sierra Club,and the Natural Resources Defense Council.
16 These are all folks on our board,and I think you will agree
17 that it is quite a diverse mix.
18 We currently have five approved project protocols,
19 three for different types of forestry projects,plus land
20 fill methane capture,and agricultural methane capture.We
21 have about another 10 protocols under development over the
22 next year and a half.
23 Once the project has been carried out and
24 verified,the developer is credited with the appropriate
25 number of offsets in their account on the climate action
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1 reserve,and the offsets can then be traded with anyone else
2 who has an account in the system,or they can be permanently
3 retired.
4 The reserve has a very high degree of public
5 transparency.This is part of our philosophy as an
6 organization,so if for example Poseidon were participating,
7 and they were committed to retire a certain number of tons of
8 offsets,the retired tons,along with detailed information
9 about the projects they came from,the protocols they were
10 calculated under,and to verify that they used,would all be
11 visible to the public on our web site.
12 The reserve component of our program is like new,
13 and has been in operation for about 2 months.We currently
14 have two projects that have been registered,with a total of
15 about --
16
17
18
19
20
21
CHAIR KRUER:Sir,your time is up.
MR.LEVIN:Okay.
CHAIR KRUER:Thank you,very much.
.MR.LEVIN:Thank you.
CHAIR KRUER:Don Christianson.
MR.CHRISTIANSEN:Good afternoon,my name is Don
22 Christiansen.I live in Carlsbad.I am a long term advocate
23 of seawater desalination,and renewable energy.I am also an
24 advocate of sustainability.I view sustainability as a
25 three-legged stool.There is the environmental component,
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1 the social component,and the economic component.You need
2 all three legs to have balance,and balance is the key.It
3 doesn't have to be perfect.It has to be stable enough to
4 support whatever the issue is.
5 At this time,we are discussing water and
6 electrical energy.We need water for life.We use
7 electrical energy to improve our quality of life.
8 There have been years of due diligence on
9 Carlsbad's proposed seawater desalination plant to get us
10 where we are at this point in time.There has been much talk
11 in the past about conservation.Conservation is a good
12 thing;however,whether it is water or electricity,we can't
13
14
15
16
17
conserve what we don't have.and the more sources of supply
we have,whether it is water or electricity,the more
reliable we are,or our sources are.
There has been a lot of talk about climate change.
Recently,I attended a meeting where the guest speaker was a
18 professor from Scripps Oceanographic.When of his takeaway
19 points was look fo~wet areas to get wetter,and dry areas to
20 get drier.with that,I would like to welcome you all to the
21 California coastal desert.
22 The greenhouse gas reduction plan calls for being
23 net carbon neutral for electricity used.I look at this as
24 progress on the sustainability front.There is an old saying
25 that the devil is in the details.I request that you don't
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1 get hung up on the details,and end up forfeiting the greater
2 good of a drought proof water source,because of a quixotic
3 quest for perfection.
4 The three legs of sustainability do not have to be
5 perfect to achieve the goal of a sustainable drought proof
6 water supply.I encourage you to think globally,assess
7 regionally,act locally,by approving this project with no
8 further conditions.
9 I appreciate your time,and the opportunity to
10 share my opinion.
11
12
13
14
CHAIR KRUER:Thank you,sir.
Jack Minnon,Tom Lemmon.
MR.MINNON:I'll speak on S.b.
CHAIR KRUER:On S.b.,thank you,sir.
15 Tom Lemmon,and after that Milt Dardis,and after
16 that,Joy Shih.
17 MR.WIDDICK:I am going to speak in place of Tom
18 Lemmon,if that is all right.He had another meeting to
19 make.
20 CHAIR KRUER:What is your name,and you need to
21 put a speaker slip in.
22
23
24
25
MR.WIDDICK:I'll have to do a slip?
CHAIR KRUER:Yes,that's it,just
VICE CHAIR NEELY:Afterwards.
CHAIR KRUER:Afterwards,go ahead.
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1 MR.WIDDICK:Okay,my name is Mike widdick.
162
2 Good afternoon everyone,my name is Mike widdick.
3 I am a business agent with the Teamsters Construction here is
4 San Diego,and I am speaking on behalf of Tom Lemmon,who is
5 the business manager for San Diego County Building and
6 Construction Trades Council.
7 The Carlsbad desalination project will create good
8 jobs,and have a tremendous positive impact on thousands of
9 San Diego workers and their families.
10 Right now,the quality of life for San Diego's
11 working families is being threatened by many things,lack of
12 affordable housing,as we all know,soaring gas prices,
13 driving costs for groceries and everyday goods,and rising
14 water rates.
15 The California Coastal Commission has the power to
16 help clear the way for new jobs,and address San Diego's
17 water supply crisis by finalizing this approval of the
18 Carlsbad desalination facility.
19 I urge you to issue your final approval of the
20 Carlsbad desalination plant today,and let us get to work,
21 thank you.
22 CHAIR KRUER:Thank you,sir.
23 Joy Shih,and then Doug Korthof.
24 [No Response ]
25 Okay,neither one are here?okay.
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2
with that --oh,g9 ahead,sir.
MR.KORTHOF:Doug Korthof,and I am a member of
163
3 the general public,and I come from Seal Beach,and I have
4 good news,and bad news,but it is the same.The good news
5 and the bad news there will never by a geyser of water coming
6 from desalination.You know,we have to rely upon other
7 methods,such as conservation,and reclamation.That is the
8 facts.
9 The outrageous thing here,we are talking about,
10 Poseidon says there are no impacts to their air pollution.
11 The idea that this is all new water,all old water,is very
12 difficult to swallow.In reality,what will happen is it
13 will go into new construction,and you know,we have 200
14 gallons a day goes in,and 100 gallon a day goes out in
15 sewage,and the more people the more usage.
16 Some of this water will probably all go to new
17 construction,because you have to have new water before you
18 can justify new construction.
19 Now,this is an enormous use of energy.It is
20 about $500 in current prices per acre foot in electrical
21 costs alone,that is the electrical costs.And,it is
22 extremely energy intensive.
23 Now,MWD says they will pay $250 in subsidies,but
24 what the reality is,is that we will pay,allover
25 California,we will be chipping in for San Diego's water,and
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1 $250 will be the start of it --if it ever happens --and
2 there will be much more.It will by a geyser of money from
3 everybody in California,as MWD is nothing but us.
4 What I suggest,if Poseidon has a problem finding
5 offsets,and I think that you have to worry about things like
6 credits.The California Air Resources Board hands out
7 credits like candy.They give extra credits,partial
8 credits,and credits allover the place.The only real
9 credits that count are the benefits to the communities.
10 I suggest that it would be a lot easier for
11 Poseidon,so long as it exists in this incarnation we know
12 it is not going anyway --why don't they do something like
13 finance solar power?We installed solar power systems all
14 throughout California,and Poseidon could do something like,
15 you know,the amortized costs for solar power on your roof is
16 less than the cost of the utility electric that it replaces.
17 So,if Poseidon puts in solar power on the roofs
18 of houses in Carlsbad,you know,it wouldn't have to cost
19 them any money at all.All they would have to do is float
20 the bonds,could be public service bonds,tax free bonds,put
21 in solar power,and the vast majority of the money comes from
22 the citizens.They could,maybe,give a little bit extra,
23 and finance it,and the majority of the money and the private
24 property --the roofs come from the citizens,and this would
25 be a real benefit for the local communities.It wouldn't
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1 involve arcane credits,and replanting trees that are just
2 going to be burned down again as the climate is changing,and
3 would actually have a benefit for the people of Carlsbad,and
4 Oceanside,and all of San Diego.
5 So,I think that that would be the best way,if
6 you are going to do offset credits,you know,so long as
7 Poseidon exists,which will be for long.
8
9
CHAIR KRUER:Thank you,sir.
And,with that,that was the last speaker slip,
10 and now we are going to have rebuttal.We will go back to
11 Mr.Zbur,and you have five minutes for Poseidon.
12 MR.ZBUR:Good afternoon,Chairman and members of
13 the Commission.I just wanted to make a couple of responses,
14 and then Mr.MacLaggan,I think,will finish,if I have any
15 additional time.
16 First point I wanted to address was Mr.Mitton's
17 assertion that we have asserted that water will not be used
18 in other places.That is actually not accurate.What we
19 have said is that Poseidon's customers,the water districts,
20 have agreed to replace the water,and therefore that the
21 water that is replaced,where that goes is speculative,but
22 wherever it goes,CEQA will apply to require those people to
23 mitigate it.
24 So,our view is that the new users of the water
25 should be responsible for the environmental mitigation of
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1 that.That is consistent with CEQA methodology.That is
2 consistent with -~we have assurances that the attorney
3 general will enforce that.
4 In addition,this commission determined that the
5 project was not growth inducing.That-was part of your
6 findings.The requirement that Poseidon be assigned the
7 mitigation for the replaced water is just not consistent with
8 the determination that you have already made that the project
9 is not growth inducing.
10 Another point that we wanted to address is the
11 request by Mr.Massara that the AB32 criteria should apply to
12 the energy reduction from replaced water.This is really the
13 key issue related to the growth versus net issue,and is the
14 crux of what is before the Commission.Essentially,what the
15 staff does is they apply these vague principles to the
16 replaced water,which,.in effect,would impose the growth
17 requirements,because the principles would require that the
18 replaced water would have contractual agreements that the
19 replaced water would be retired and not used by anyone.That
20 effectively would not allow --it effectually imposes the
21 growth requirement.
22 Your staff has indicated that it does not have the
23 expertise in this area to evaluate this.Each of the
24 agencies that are responsible for the implementation of AB32,
25 have supported Poseidon's ability to take credit for the
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1 replaced water,and in the packets are the letters from the
2 California Air Resources Board,the California Energy
3 Commission,the Resources Agencies are in the blue packet we
4 distributed.They have supported the net approach,and
5 supported Poseidon's calculation of the net approach.
6 Finally,the last point I would like to raise is
7 with respects to the references to the committee to verify
8 the offsets that was originally in the Poseidon's proposal.
9 I am a little bit frustrated,in that what we are asking you
10 to adopt today is the proposal that is attached to your green
11 sheet.We made a number of changes to respond to the staff's
12 concerns when we got the staff report a week ago Friday.We
13 got those into the staff,and the staff has not responded to
14 the changes that we made to address their concerns.
15 One of those was that they said that they had a
16 concern about the committee verifying the offsets.The
17 committee that we had originally proposed,included Poseidon,
18 it included CCSE,the California Center for sustainable
19 Energy,and the San Diego APCD,a three-member committee.
20 The APCD had concerns about their ability to do
21 this,because of their authority,so that was an issue that I
22 think was valid upon the staff's part.They recommended,
23 instead,that we buy all of our offsets through CCAR.We
24 have not problems buying our offsets through CCAR.We think
25 they are a high quality verifier.Our concern is that CCAR
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1 is in very early stages of the implementation.
2 As you heard,they have three forestation
3 protocols,one for land fills and one for dairies.That
4 really limits the offsets we can bUy in the early year,and
5 while we are hopeful that they will progress fast with these
6 other protocols out there,we want to be able to buy offsets
7 in the broadest market to keep the costs reasonable.
8 So,what we have done is,the proposal you have
9 takes out the committee that the staff had concerns about,
10 and it says we will bUy credits through CCAR,or three of the
11 other entities that are all part of the offset quality
12 initiative,which are listed in your program,that we think
13 that they are equivalently high quality entities.CCAR is
14 one of the four entities that is a member of that quality
15 initiative,and includes some other think tanks that don't
16 sell credits,but that is what we are proposing.So,we do
17 think that these are CCAR equivalents.It would broaden out
18 the market,and that is really our proposal.
19 There are some other things that are in there,
20 that we tried to respond to the staff's concerns,which I
21 don't think I am going to have time to go through,but we
22 would be happy to walk you through that if you have any
23 questions related to the proposals.
24 So,the main things that are in that are the
25 differences on gross and nets,and in order to apply the net
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1 approach,you need to not apply these AB32 principles to the
2 offsets to the replaced water.The application,by
3 definition,means that Poseidon cannot take credit for it.
4 The other main differences are the CCAR issue,with the three
5 other entities,and the two contingency plans.
6 If I have any more time,I would like to --
7
8
9
10
11
CHAIR KRUER.You don't.
MR.ZBUR:No,so.
CHAIR KRUER:Thank you.
MR.ZBUR:We will close.
CHAIR KRUER:Appreciate it.
12 with that,I will close the public hearing and go
13 back to staff for staff response.
14 Mr.Luster.
15 ENVIRONMENTAL SPECIALIST LUSTER:Thank you,Chair
16 Kruer.I'll start with a number of comments.
17 First,in response to the last comment by Mr.
18 Zbur,staff did respond to Poseidon's latest changes last
19 week.We concurred with Poseidon's proposal to allow the use
20 of CARB,CCAR and additionally any programs adopted by state
21 air districts for any of their emission reduction programs.
22 We did not concur with Poseidon's proposal
23 allowing use of programs developed by any government entity.
24 We weren't sure how widespread that would be,that could
25 include all sorts of things,water districts,very small
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1 government entities that may not have the expertise,but we
2 did concur with their proposal to use air districts,along
3 with CCAR and CARB for approved programs.We didn't concur
4 with their proposal to allow them to use SDG&E programs.
5 And,regarding the proposal to change their
6 committee structure for reporting,we asked for more
7 information about that.We didn't have enough information to
8 go on.They just said that they were going to do away with
9 that,and we had some more questions about it,and we haven't
10 heard what those changes are.They may be reflected in this
11 latest document,but we haven't had a chance to review that,
12 yet.
13 Going on,just covering on AB32,Poseidon is
14 subject to the Coastal Act and the only methods to address
15 greenhouse gas emissions that are approved by the state are
16 those established in AB32,so through your findings and
17 Special Condition,staff is recommending that Poseidon's
18 Greenhouse Gas Emission Reduction Program be implemented
19 using the guidelines provided by AB32.The Coastal Act
20 doesn't have independent guidance on how to deal with those
21 issues,so staff believes the best and only real protocols
22 and mechanisms approved at the state level are those that are
23 being developed and are developed through AB32.
24 Poseidon has also asked to use some emission
25 reduction methods not established through the state system.
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1 For example,they referenc.e the offset quality initiative,
2 which includes three entities,the Climate Trust,the
3 Environmental Resources Trust,and the Climate Group.
4 Staff researched what was available through these
5 entities,and found that they do not have consistent
6 standards or protocols,so staff believes Poseidon's proposal
7 would be confusing and onerous to implement,and would not
8 provide the level of independent verification the state has
9 identified as a necessary part of its greenhouse gas
10 reduction approach.
11 Additionally,AB32 does have mechanisms for
12 developing these guidelines and protocols for voluntary
13 efforts for regulated entities,pretty much any sort of
14 emission reduction measure that is meant to be part of the
15 state's program,regulated community,voluntary,market based
16 incentives are covered by AB32,and we believe that is the
17 appropriate method to use.
18 That has also been supported by the agencies we've
19 worked with.You heard from CARB.They still support the
20 use of AB32.The air district supports staff's recommend-
21 ations ,so we believe our coordination efforts with the
22 involved agencies supports staff's recommendations,as well.
23 Regarding comments about the Commission's
24 authority being limited by Coastal Act provisions.Staff is
25 not suggesting imposing an emission control program,
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1 therefore we don't believe our proposal is inconsistent with
2 Section 30414.It is not inconsistent with what CARB is
3 doing,and in fact CARB and the air district supports the use
4 of AB32.
5 Additional authority the Commission has for
6 implementing this program,is through the use of section
7 30260,the override as determined in your findings.The
8 findings state that the project's adverse effects will be
9 mitigated to the maximum extent feasible,and staff's
10 recommendation would help carry out that aspect of the
11 Commission's findings.
12 Regarding gross versus net,that whole question,
13 again staff is not asking that Poseidon mitigate its gross
14 emissions,just the net.Much of the difference in the two
15 proposals is that staff is addressing the expected net
16 emissions from the facility's electrical use,and Poseidon is
17 relying on speculative changes in water deliveries to somehow
18 reduce emissions.As you have heard several times today,the
19 state water project will not necessarily reduce its
20 electrical use or its emissions,due to Poseidon's project.
21 The state water project is affected by any number
22 of issues that may increase or decrease its pumping rates,
23 and regardless of how those issues play out,Poseidon's
24 project is expected to continually use about 30 megawatts of
25 electricity to produce its water,and the emissions would
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1 result from that use of that electricity.
2 Also,regarding the state water project,you
3 received a letter from the Metropolitan Water District.The
4 letter,however,is not consistent with the Met's program
5 that establishes its desal incentives,or Met's water
6 management plans.Met describes its desal program as
7 allowing Metropolitan to redirect imports,not necessarily
8 reduce them.For example,Met's recent integrated water
9 resources plan from 2004 --which staff is adding to the
10 record states that desal is expected to offset water use
11 in one area of its service area,and allow it to send
12 additional imported water to other parts of its service area.
13 Moreover,Metropolitan doesn't say anything about
14 reducing its electricity use in its emissions,which is the
15 impact that the Commission is addressing today.Even at the
16 local level,some of the planning documents from as recently
17 as earlier this year,from the water districts Poseidon has
18 contracted with,show expected increase in imports over the
19 next 25 years,in addition ,to their desalination supplies.
20 For example,the January 2008 update of the
21 Oliveheim Water District urban water management plan --which
22 staff is adding to the record --shows that it and three
23 other associated districts will increase their imports.
24 Further,the state water project has a lower
25 emission factor than Poseidon's electricity supplies,so if
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1 there is an offset,it would be a much lower level than
2 Poseidon proposes.Similarly,in the San Diego region,much
3 of the imported water comes from the Colorado River,and
4 pumping that supply has its own emission factor adding more
5 complexity to the issue.
6 Again,however,staff is not asking that you
7 decide this question today,but to allow the agencies with
8 expertise to make the determination to work through these
9 issues and to figure out what offset,if any,is appropriate.
10 You also heard a Comment earlier about staff
11 treating an Edison project differently than this project.We
12 are not recommending emission reduction requirements for that
13 project,because its net emissions are so low.You will hear
14 the details of that project a little later,today,but if you
15 would like,Ms.Dettmer is available now to answer any
16 questions you may have about the difference between the
17 Edison project and Poseidon's.
18 I believe the Edison project is in the range of
19 something like 750 tons of emissions over its 30-year life.
20 With Poseidon,their gross emission are expected to be about
21 90,000 tons per year,so there is a significant range between
22 the two projects,and staff believe that the Edison project
23 is small enough whereas Poseidon's was significant enough for
24 the Commission to handle.
25 Regarding CEQA,we should note that the project's
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1 environmental impact report did not address greenhouse gas
2 emissions at all,and so the commission establishes the
3 baseline,just Poseidon's project,what emissions would
4 result from it.
5 I also want to note that the California Air
6 Pollution Control Officers Association,in January published
7 its report called CEQA and climate change --which staff is
8 adding to the record --and it provides guidance on how it
9 intends to address climate change issues through CEQA,
10 including those associated with meeting AB32's emission
11 reduction targets.
12 Staff believes this provides further support for
13 staff's recommendation that the Commission allow the air
14 districts,along with CARB and CCAR to address the issues
15 involved with vrifying Poseidon's proposed plan.
16 A couple of points on the cost of the mitigation,
17 based on your findings,staff's recommendations will not
18 prevent the project from being built,or render the project
19 economically,infeasible.Your findings identify costs of up
20 to several hundred dollars per acre foot,above Poseidon's
21 stated costs,and Poseidon has stated that had it included
22 those cost then its assessment of project feasibility --
23 Poseidon's proposed $6 million program over 30 years --would
24 increase the costs of its water by about $3.50 per acre foot,
25 and its estimates of $32 million would add about $19 per acre
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1 foot,and that is well below the range of the costs that
2 staff identified in the report,and that Poseidon said it had
3 already assessed as part of its feasibility.
4 We note,too,that an even larger desal facility
5 being built in Australia has committed to use entirely
6 renewable energy for its operations,and will purchase that
7 energy using a government regulated offset program,which is
8 similar to what staff is proposing .in having Poseidon use
9 CARB CCAR or air district approved measures.
10 And,I think that is all that I have for now.I
11 believe Ms.Schmeltzer and Director Douglas have something.
12 EXECUTIVE DIRECTOR DOUGLAS:I just have a couple
13 of comments,and then ask Ms.Schmeltzer to address some of
14 the legal issues Mr.Zbur raised.
15 But,I just want to underscore,again,the
16 assertion that somehow we are using Coastal Commission
17 authority to subject Poseidon to AB32 is simply wrong.We
18 recognize that this project is not subject to AB32 controls
19 at this time,but what we are saying is we are using the
20 Coastal Act the policies and authorities that you have under
21 the Coastal Act,and the responsibility that this Commission
22 has to protect coastal resources consistent with the policies
23 in the Coastal Act leads to a requirement for greenhouse gas
24 mitigation,and offsets and reductions of emissions.And,
25 that the best way to deal with that is to use the protocols
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1 and the approaches set forth in AB32,that that makes sense,
2 because that is where the expertise lies.
3 And,if in fact,Poseidon is going to keep its
4 promise of being carbon neutral,I don't understand why they
5 object to a review by an entity that will,in fact,verify
6 whether or not that is the case,and that is exactly what we
7 have recommended.
8 In terms of the state water project,or the
9 reductions and the offsets there,that just doesn't make
10 sense to us.We are not talking about water here.We are
11 not talking about displacing or placing water,and where that
12 is going to go.We are talking about the energy that it
13 takes to provide the desalinated water by Poseidon.
14 And,if they are looking to get credit because
15 there is going to be a reduction in energy generation,or
16 energy use in the state water project,as a result of the
17 Poseidon project,we just don't see how that happens.All of
18 what we have heard is speculative --that mayor may not
19 happen.We have no ~eason to believe that there is going to
20 be any reduction whatsoever in energy usage for bringing
21 state water from the north to the south,as a result of this,
22 or any other project that we know about at this point.So,
23 that just doesn't match.
24 But,in any event,we are not saying that it can't
25 work that way,if in fact there is a reduction in energy
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1 usage.We are just saying that that needs to be verified by
2 somebody who has got the expertise,who could look at it,and
3 say,"Yes,indeed,as the ~result of this project,or but for
4 this project,there would be this level of energy production
5 for the state water project,but because of this project
6 there is going to be a reduction,which means less air
7 emissions,and they get credit for it,"they would get it,
8 under our recommendation.
9 The final point is,we have not said this project
10 is not growth inducing.We have said this project is not
11 growth inducing in the coastal zone.What happens outside of
12 the coastal zone,as a result of this water being freed up
13 for the Met,that they could use elsewhere for projects that
14 are.waiting for water,that don't have water now,that is
15 beyond the purview of this Commission,and we have never
16 expressed an opinion on that.
17 So,I think it is misleading to say that we have
18 concluded this is not growth inducing.It is not growth
19 inducing in the coastal zone.
20 with that,let me ask Ms.Schmeltzer to make some
21 comments on legal issues.
22 CHIEF COUNSEL SCHMELTZER:Thank you.
23 Poseidon's attorney,Mr.Zbur,stated that the
24 Commission only had three statutory provisions under which it
25 could assert authority.He specifically mentioned 30253(4)
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1 30253 (3)and 30414 (a).
2 The first is the Commission's ability to minimize
3 energy use,which he asserted that Poseidon was doing.
4 For the second,he paraphrased what that statutory
5 language said,and he said that it said that the Commission
6 may only impose conditions requirements that have been
7 imposed by CARB.That is actually a misstatement of that
8 statutory provision.That provision that says that "For the
9 minimization of adverse impacts new development shall be
10 consistent with the requirements imposed by an air pollution
11 control district,or CARB,"which the Commission's staff
12 proposal in having this follow AB32 and CCAR,we believe is
13 conSistent,and that it does comply with that,and it is not
14 contrary to it,as described.
15 In addition,as Mr.Luster described,30414(a)
16 only talks about not creating a new air program,which again
17 staff is not proposing.
18 What he left out was 30260,which is the override
19 provision,that the Commission made in its findings that it
20 adopted this morning.Under the override provision of the
21 findings,which begins --the discussion begins on page 115
22 of your findings.
23 There is extensive discussion of adverse impacts,
24 the impacts to coastal resources that can occur from gr~en-
25 house gas emissions,and global warming,and the Commission
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1 does have the authority,and does exert that authority under
2 Special Condition 10,in this case,and so the authority for
3 Special Condition 10 also flows from 30260.
4
5 staff.
6
7
CHAIR KRUER:Okay,thank you,is that it from
EXECUTIVE DIRECTOR DOUGLAS:Yes.
CHAIR KRUER:Thank you for your presentation,and
8 your comments.
9 Now,I will go to the commission,and Commissioner
10 Hueso,first,and then Commissioner Reilly.
11 [MOTION]
12 COMMISSIONER HUESO:Yes,I move that the
13 Commission approve the Energy Minimization and Greenhouse Gas
14 Reduction Plan as attached to the letter submitted by the
15 permittee,Poseidon Resources LLC,dated August 6,2008,as
16 compliant with Special condition 10 of the Coastal
17 Development Permit E-06-013.
18
19 "second"?
20
21
22
23
24
CHAIR KRUER:I have a motion,is there a
COMMISSIONER POTTER:Second.
CHAIR KRUER:Seconded by Commissioner Potter
EXECUTIVE DIRECTOR DOUGLAS:Mr.Chairman.
CHAIR KRUER:What?
EXECUTIVE DIRECTOR DOUGLAS:I just wanted to
25 check with counsel.
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1 The motion that staff has recommended,I am just
2 wondering whether that is the motion that needs to .be made,
3 and then that motion needs to be amended,or whether or not
4 the motion proposed by Commissioner.Hueso is the correct way
5 to go?I thought it needed to be --
6 CHAIR KRUER:I don't think so,but,we will see
7 what the attorney says,but I think --I am not a lawyer,but
8 it sounds like he can do it.
9 CHIEF COUNSEL SCHMELTZER:It would be helpfUl if
10 the entire motion was read.I think you just referred to the
11 motion as it was stated here,but if you could read the whole
12 motion into the record,that would be helpful.
13 COMMISSIONER HUESO:I actually did,but you want
14 me to also state the resolution to the proof.
15
16
17
18
19
CHIEF COUNSEL SCHMELTZER:I have that,so I --
COMMISSIONER HUESO:I did.
CHAIR KRUER:He did read the whole motion.
CHIEF COUNSEL SCHMELTZER:Okay.
CHAIR KRUER:And,the question was,can he do it
20 that way?to the general counsel,from Director Douglas.
21 And,I think he can.
22
23
CHIEF COUNSEL SCHMELTZER:Yes.
CHAIR KRUER:So,with that,and there has been a
24 n secondn by Commissioner Potter.
25 Commissioner Hueso,would you like to speak to
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1 your motion?
2 COMMISSIONER HUESO:Yes,and I have some
3 questions of staff.
4
5
CHAIR KRUER:That's fine.
COMMISSIONER HUESO:This came back-to the air
6 quality issues,specifically to this project.
7 What disturbed me a little bit --and I will just
8 give you some general feedback concerning the Oxnard facility
9 you said that facility doesn't generate a lot of energy,
10 so you don't really see fit to apply the state's AB32
11 regulations to that project,because it was not a big
12 generator.
13 What are we talking about,in terms of the amount
14 of wattage that that facility is going to be generating?just
15 to compare it to this project?do we know what the amounts
16 are,in terms of this project is going to be using 50
17 megawatts,per year,or is it what is the usage of this
18 desal project?
19
20
EXECUTIVE DIRECTOR DOUGLAS:Okay.
COMMISSIONER HUESO:And,if we can get that as a
21 comparison to the Oxnard one?
22 EXECUTIVE DIRECTOR DOUGLAS:Well,Allison is
23 going to come back and address this,she has been working on
24 it.
25 But,just so that you know,we have been looking
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1 at projects coming before the commission,and as we have
2 indicated to you before,we are only suggesting the
3 application of greenhouse gas reduction conditions on major
4 proj ects,that have major emissions per year of carbons.We
5 are not applying them to every project that comes along.
6 So,we have identified new subdivisions,we have·
7 identified new Caltrans projects,major energy projects,but
8 when we looked at this particular project --and Allison can
9 explain to you why --we just felt it was not an area where
10 we wanted to enter into this particular issue.
11 COMMISSIONER HUESO:I understand that,and just
12 to get an idea of what criteria you are using,what are we
13 talking about here?in differences?
14 COASTAL PROGRAM MANAGER DETTMER:Sure,for the
15 Edison project,on your agenda later today,we did ask Edison
16 to do a greenhouse gas analysis,which they did do.They
17 submitted their calculations to us,as well as their analysis
18 of what their net emissions would be over the 3D-year life of
19 the project.
20 We had that analysis peer reviewed,independently
21 reviewed by Steve Radus with Marine Research Specialists.At
22 the end of the day,Mr.Radus agreed with Edison's analysis.
23 And,what the conclusion was,was that over the 3D-year life
24 of the project,there would be about 726 metric tons of C02
25 emitted,and that is over a 3D-year period,which is a
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1 relatively small number.In the staff report,we go through
2 that,and we give an example that that equates to driving 8
3 Prius for 15,000 miles over that30-year period.
4 And,just to back up a little bit,Edison's
5 project is a direct emitter,and so they will come under AB32
6 requirements,probably in the next 3 or 4 years.I
7 understand that may be 2011 or 2012,and they will be
8 regulated system wide.
9 So,what we were looking at for the Coastal
10 Commission is to actually look at that gap,if Edison had
11 their project approved,and that they were going to be in
12 operational phase later in 2008,that this commission would
13 consider,possibly,requiring mitigation or offsets for that
14 gap period,so maybe for the next 4 or 5 years.So,we are
15 really talking about a very small number.
16 So,in staff's judgment,we did not think that
17 this Commission needed to require mitigation or offsets.
18 COMMISSIONER HUESO:But,you didn't answer the
19 question about what the desal facility --
20
21
22
ENVIRONMENTAL SPECIALIST LUSTER:Yes.
COMMISSIONEa HUESO:Okay.
ENVIRONMENTAL SPECIALIST LUSTER:The Edison
23 project,as Allison said,is just over 700 tons,over a
24 30-year life.Poseidon's project looks like about 2.7
25 million tons over the 30-life of this project,so
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1 sUbstantially greater,and that is why Commission staff
2 worked so hard on this emission reduction program for the
3 Poseidon project.
4 COMMISSIONER HUESO:In and around the facility,
5 itself,in and around the plant,will the air quality be
6 effected in the area around the plant?will the facility be
7 discharging pollutants in the area in which the construction
8 for this project is proposed?
9
10 ing of --
11
ENVIRONMENTAL SPECIALIST LUSTER:Our understand-
COMMISSIONER HUESO:And,the specific number of
12 the 2.7 million,will that discharge be in and around the
13 facility
14 EXECUTIVE DIRECTOR DOUGLAS:No.
15
16
COMMISSIONER HUESO:--of the plant?
ENVIRONMENTAL SPECIALIST LUSTER:That discharge
17 is just from the electrical generation needed to run the
18 plant,so the air quality impacts would be based on where the
19,energy production facilities are.If they use some of the
20 power from the Encino Power Plant,there could be some nearby
21 emission effects.
22 COMMISSIONER HUESO:So,we don't necessarily know
23 where this project is going.to effect the air quality?
24 ENVIRONMENTAL SPECIALIST LUSTER:Because we are
25 only looking at greenhouse gas emissions,that is not really
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1 considered a local problem,as much as a world wide problem
2 and so,generally,any emission reduction anywhere in the
3 world affects the greenhouse gas problem.
4 EXECUTIVE DIRECTOR DOUGLAS:Well,it is also a
5 difference.It is not an air pollutant.We are not talking
6 about that.We are talking about emissions of a gas that
7 goes into the atmosphere,and that effects the climate,and
8 the temperature on the planet,not the kind of air pollutants
9 that are discharged and regulated by air pollution control
10 limits.So,it does not affect the air quality around the
11 facility.
12
13 looked at
COMMISSIONER HUESO:Because every project we've
you have cited some projects,like the LNG where
14 we looked at air quality,where air quality in the area of
15 the coastal resourCeS were directly affected,and because you
16 use those as examples,I thought it was slightly misleading
17 because we were talking about air quality in the coastal
18 zone,and here we are talking about air quality regionally,
19 statewide or --
20 EXECUTIVE DIRECTOR DOUGLAS:In the LNG case,for
21 example,one of the big issues was air quality,separate from
22 greenhouSe gases,they are distinct.
23 And,one --
24 COMMISSIONER HUESO:The number had to do with the
25 shifting and the exchange of the material,so it had a more
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1 direct --from my recollection,in the testimony and the
2 arguments,it had to do more with an immediate impact of the
3 air quality in the area.
4 EXECUTIVE DIRECTOR DOUGLAS,That was a separate
5 issue,and-that was one on what rule would be applied,would
6 the onshore rules for air quality,air pollutants,air
7 emissions,be applicable,or would the rules that apply to
8 the islands be applicable?That is for air quality.
9 For greenhouse gases,that was totally different.
10 That was the question of how much,in terms of greenhouse
11 gases,were going to be emitted,and that was a different
12 issue.Both of those were issues that formed the basis for
13 our recommendation of denial,but they were distinct.
14 COMMISSIONER HUESO:Would you agree that in
15 future years,the power sources that are going to electrify
16 the grid,are going to be more diverse.We might see more
17 wind power come on line?more solar power come on line?more
18 hydro-thermal power?is that something that we contemplate in
19 this action?
20 EXECUTIVE DIRECTOR DOUGLAS:I think it is
21 inevitable,and it is already occurring,and we understand
22 that part of the source here needs to be renewable.We just
23 don't know what that is going to be,unless Tom you have
24 something?
25 COMMISSIONER HUESO:But,it is possible in the
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1 future,that a greater source of our grid is going to come
2 from renewable sources,and sources that are friendly to the
3 environment?
4
5
EXECUTIVE DIRECTOR DOUGLAS:We hope so.
COMMISSIONER HUESO:SQ,it is possible that this
6 project will have a smaller carbon footprint in future years,
7 if that improves?
8 ENVIRONMENTAL SPECIALIST LUSTER:That is correct,
9 both Poseidon's proposal and staff's are based on an annual
10 reporting and recognition that the emission factor for the
11 San Diego Gas and Electric will change every year,as they
12 put more renewable energy sources on line,their emission
13 factor will go down,and Poseidon would have to,presumably,
14 do fewer mitigation measures,because of that.
15 COMMISSIONER HUESO:But,are you taking that into
16 consideration in our policy,in staff's policy towards this
17 project?
18
19
ENVIRONMENTAL SPECIALIST LUSTER:Yes.
CHIEF COUNSEL SCHMELTZER:Yes,,and also,to
20 answer your question,relatively anticipated that that will
21 happen over time,and we can't base mitigation on speculative
22 increases in renewable power in the future.We don't know
23 when those will occur,and how much they will occur,so we
24 can't do something now that relies on something unknown in
25 the future.
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1 But,what we have built into the review process is
2 an annual report that will look at what is happening on the
3 ground as it happens,and then in that way be able to take
4 account of actual improvements to the power grid,as far as
5 renewable resources,as they occur.
6 COMMISSIONER HUESO:Okay,and I think that that
7 is the principal issue that I am looking at here.I think
8 this power plant is definitely a consumer of electricity,
9 thereby having an impact on air quality regionally,and I
10 think we are using,in this instance,the Commission to kind
11 of effect air quality regionally,which I think is a good
12 goal,but I think,from my perspective,we are looking at the
13 Coastal Act and it endeavors to specifically concentrate in
14 the coastal zone.
15 I remember having a project,the Pebble Beach
16 Project,that sought to replace trees in the Del Monte Forest
17 at a rate of 10:1 --I forget what it was and I remember
18 us being told specifically that we cannot mitigate for
19 impacts,you know,outside of the coastal zone in an area
20 that wasn't in the coastal zone,because it wasn't,it wasn't
21 identical,and here we are trying to apply that policy
22 towards air quality,which I think kind of exceeds the scope
23 of coastal area.
24 But,I understand that this is a very,very
25 sensitive issue,and I am very concerned about air quality,
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1 but there is always,you know,there is always some
2 contradiction in terms of we heard some person speak earlier,
3 during non-agenda public comment,about San Diego's waiver
4 for water treatment,and that we are the only city that
5 obtains a waiver.Well,one of the arguments our city has
6 been making is because we don't go through tertiary
7 treatment,we have been able to show that we haven't
8 negatively affected the coastal resources and the water,due
9 to the depth of our outfall.
10 But,because of that,we haven't been negatively
11 affecting air quality,because tertiary treatment is a very,
12 very intense industrial use that has an impact on air
13 quality.So,on the one hand,we've been contributing to
14 better air quality to try to find a balance between good
15 water quality,and good air quality,and this is one of those
16 projects that falls into the balance,where we need water,
17 but it is going to affect air quality.
18 And,from my perspective,in terms of what we are
19 doing in our city,in terms pf trying to reduce our
20 dependence on the river delta in Sacramento,this 'is one
21 those efforts that would really have a real effect on
22 reducing our dependence on the river delta.In addition to
23 conservation,in addition to other methods of retreating
24 water,weare really trying to reduce our dependence on
25 foreign water,and that does have a direct impact on air
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1 quality.
2 And,I do think that this project will reduce our
3 dependence on outside water,thereby reducing our impacts for
4 air quality,so I do think there is a direct relationship
5 there between this project and our intent to make our city
6 self sufficient,and create a well balanced portfolio of
7 predictable and affordable water.
8
9
10
11
12
CHAIR KRUER:So,you recommend a "Yes"vote?
COMMISSIONER HUESO:So,I recommend a "Yes"vote.
CHAIR KRUER:Thank you,sir.
COMMISSIONER POTTER:Thank you,Mr.Castro.
CHAIR KRUER:Commissioner Potter,as the
13 "seconder",would you like to speak to the motion?
14 COMMISSIONER POTTER:Sure,I'll try to speak to
15 the condition,itself.
16 I want to talk,just for a second,about my level
17 of comfort with being the "seconder"of this motion,and I
18 will talk specifically to what Director Douglas talked about
19 fora moment,which ~as what is the level of reduction in
20 gases that are going to go into the atmosphere,as a result
21 of this project?And,I am comfortable that what is before
22 us today,in this GHG plan,does comply with Special
23 Condition 10,that the measures that are provided through
24 this will provide enough reductions that are certain and
25 verifiable,and would reduce to zero the impacts of this
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1 project.
2 And,you know,there is one element that I am not
3 overly compelled by,but I do think that there is significant
4 investment into energy reducing portions of this proj ect that
5 make a difference.The commitment to the use of solar seems
6 kind of weak to me.What it says is if it is economically
7 feasible over the life of the project,then we will do it.I
8 would prefer to see it done,period,because I do think it is
9 a viable source of energy that would be appropriate for this
10 project.
11 The reforestation plan,I think that is a good
12 idea.There is,certainly,quantifiable return on that
13 investment,and if there is another fire,there is another
14 fire,but that is not an issue before us today.
15 And,in the purchase of offsets,I think makes a
16 difference.There is a proposal as part of this,that there
17 be,at least,third party providers who would be verifying,
18 quantifying,through annual reports to this Commission,the
19 viability and.successes of those pu~chases,and I think that
20 is an appropriate way to verify the 'success of that intent.
21 And,then,finally,it does seem to me that the
22 carb process is going to require,you know,public review and
23 the associated findings,and I think it is feasibility,
24 equitability,and cost effectiveness,something like that,
25 but I think those are reasons why,specific to the GHG
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1 portion of this --which is special Condition 10 --that is
2 why I have a level of comfort with what is before us,as
3 proposed,and the motion,itself.
4
5
CHAIR KRUER:Thank you,Commissioner Potter.
Commissioner Reilly.
COMMISSIONER REILLY:Thank you,Mr.Chair.
I was going to ask for some additional comments by
6
7
8 one of the folks who testified,and then offer I have a
9 couple of questions about the motion,itself.
10
11
CHAIR KRUER:Sure.
COMMISSIONER REILLY:The gentleman from CCAR,the
12 registry,I think you weren't quite able to complete your
13 comments within the three minutes that we gave you,and
14 assuming that you don't have too many more minutes,I think
15 your testimony was certainly pertinent to the issues before
16 us,and I would like to hear your concluding comments.
17 MR.LEVIN:Okay,sure,and I was pretty close to
18 done.I just wanted to talk a little bit about supply.I
19 know that has been an issue that people talked about,whether
20 there would be --
21
22
CHAIR KRUER:Your name,for the record,please.
MR.LEVIN:Sorry,Joel Levin,with the California
23 Climate Action Registry.
24 SOi what I was summing up to say is that we
25 currently,the reserve program that we track and register
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1 greenhouse gas reduction projects has been operational for
2 just a couple of months.We currently have two project
3 registered,with about 200,000 tons of credits issued.We
4 have about another 5 in hand that we are reviewing,and about
5 another 25 that I have been actually talking with developers
6 and expect to be delivered over the next 6 to 12 months,or
7 so.
8 So,just in terms of projects that I am aware of,
9 conservatively,we are expecting to have about 1.5 million
10 tons,or so,by next year,and about 5 million tons
11 registered by the end of 2012.So,the kind of volumes that
12 you are talking here with this project are,actually,fairly
13 minor,in the scope of our program.Unless our program is,
14 you know,a complete failure,the volumes we are looking at
15 are much greater than what you would need for this.
16 But,I wanted to say that I don't think supply
17 would really be an issue.
18 COMMISSIONER REILLY:So,just to be clear,what
19 .is CCAR seeing as their preferred relationship relative to
20 Poseidon project before us?
21 MR.LEVIN:A preferred relationship?Well,what
22 we understood was the staff proposal was to,essentially,say
23 that they would buy --to have an account on the reserve,and
24 then they could negotiate purchases with project developers,
25 and those would be tracked through the reserve,and then they
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1 would buy them and retire them,and that would be publicly
2 visible.
3 So,that is sort of how we operate.It is,
4 essentially,it is a banking system where people can register
5 projects,and then we track trades of those credits and
6 verify them.
7 COMMISSIONER REILLY:So,it is both sale and
8 verification?
9 MR.LEVIN:Yes,we don't get involved in the
10 financial transactions
11
12
13
14
15
16
17
COMMISSIONER REILLY:No,that's right.
MR.LEVIN:--but,we track ownership of the --
COMMISSIONER REILLY:Fine,thank you.
MR.LEVIN:--and it is all very public visible.
COMMISSIONER REILLY:Thank you.
MR.LEVIN:Yes.
COMMISSIONER REILLY:Staff had mentioned that the
18 air quality board and CCAR and CARB had all indicated support
19 for having the verification be part of their process,as
20 opposed to some other process.It seems like a lot of the
21 same agencies,along with State Lands.
22 And,I would also say Lieutenant Governor
23 Garamendi,who I have tremendous respect for,is also sort of
24 saying that they see the argument that Poseidon should,in
25 fact,get credit for the energy saved in the MWD imports.
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1 So,it seems like they are agreeing with you on one point,
2 and they are agreeing with them on the .other point.
3 I am sympathetic on allowing these credits,but
4 what I am not clear about,in terms of the motion before us,
5 as opposed to CCAR or CARB verification,is under the motion
6 before us,who actually does the verification on --who does
7 the verification,you know,in a publicly transparent way,
8 under the current motion before us --
9
10
11
12
13
EXECUTIVE DIRECTOR DOUGLAS:We have
COMMISSIONER REILLY:--and I --
EXECUTIVE DIRECTOR DOUGLAS:--no idea.
COMMISSIONER REILLY:Okay.
EXECUTIVE DIRECTOR DOUGLAS:And,that is one of
14 the problems,that we don't know what it is that you are
15 going to be adopting here,if you adopt this --
16 COMMISSIONER REILLY:Yes,why don't you take a
17 shot at that.
18
19 changed,.
20
EXECUTIVE DIRECTOR DOUGLAS:--unless it was
MR.ZBUR:There are two separate provisions that
21 are part of the motion,and they are sort of getting muddled
22 a but,so if I could sort of take one at a time.
23 One provision in the Poseidon proposal,basically,
24 allows for Poseidon to opt in to offset programs that may be
25 developed by government agencies,like the AQMD,you know,
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1 the air districts,and we did have SDG&E on that.We don't
2 have any problems taking SDG&E,and just limiting it to the
3 air districts on that piece of it.
4 COMMISSIONER REILLY:I think staff's problem was
5 the court of all of the governments,because they didn't know'
6 what that meant.
7 MR.ZBUR:All of the governments,I mean we,
8 basically,want to make sure that,you know,that basically
9 government supervise their programs,but if you wanted to
10 limit it to the --you know,we think the most likely folks
11 that will do it will be CARB,probably the South Coast
12 District air districts,will probably be the most likely ones
13 that will develop them,if they do,soon.
14 So,that piece crossed,is really just something
15 we thought that if it is a government supervised program,we
16 should be able to opt in.That is probably better
17 verification than anything else.So,that is one piece.We
18 don't have any limits.We don't have any concerns,and could
19 take out the small governments,the SDG&E,if you would like.
20 The other piece,which is a separate provision,is
21 that the staff's proposal would require that all of our
22 purchase of credits be run through,or purchased through
23 CCAR.We have no problem doing that.We think CCAR is a
24 high quality entity.Our concern is,as you have heard,is
25 that it is simply that we are going to be subject to this for
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1 the next 30 years,and then next 3 or 4 years,we don't know
2 how fast things are going to be moving,and we need to be
3 able to buy the credits that we need,and in fact weare
4 going to be buying some credits up front.
5 So,we are just concerned that there may not be
6 enough credits from CCAR,and what we have asked is that,
7 just like CCAR,we would be able to buy credits that are run
8 through other entities that are doing the same thing as CCAR,
9 and those three other entities are all entities that are part
10 of offset quality initiative,and we can provide more
11 information about that,if you would like.
12 COMMISSIONER REILLY:My interest is,not only in
13 the acquisition of credits,it is also the verification of
14 reductions
15 MR.ZBUR:The way our proposal works is that
16 basically,all of them would have to be run through one of
17 those four entities,and we are happy to have CCAR to be the
18 main one,so long as we can get credits that are sort of at
19 the market price through CCAR.
20 But,it would be run through those entities,and
21 we would,at the end of each year --I mean,there are time
22 periods in our plan,but that basically,there are two things
23 that have to happen.One,we have to sort of have CCAR
24 emission factors to measure the emissions from our that
25 are going to be offset,and once the emission factors are
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1 available,we have to,within a certain amount of time,
2 submit a report that says what needs to be offset,and at
3 that point demonstrate that we have provided offsets.
4 We can do the annual.report that would,basically,
5 show what our emissions are,what our offsets are.We would
6 have to show that it was run through one of those four
7 programs,and we have to provide documentation that they were
8 verified through one of those four programs.
9 COMMISSIONER REILLY:All right,and don't go
10 away.
11 Is that any clearer for staff,then it has been in
12 the past?does staff want to comment on that?
13 ENVIRONMENTAL SPECIALIST LUSTER:Well,we still
14 have to call this a verification issue.
15 CCAR has a very clear transparent verification
16 mechanism in place.We have looked into --
17 COMMISSIONER REILLY:What are these other three
18 entities that are listed there on the quality program?
19 ENVIRONMENTAL SPECIALIST LUSTER:The Climate
20 Trust,the Environmental Reserve Trust,and I don't recall
21 the other name,right off hand.They each have their own
22 different protocols,and don't appear to have independent
23 third party verification built into their processes.
24 We have just found a little bit out about them
25 through their web sites,which don't provide a whole lot of
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1 detail,but there is not enough for staff to assume that
2 those entities would provide the same level of verification
3 that CCAR would,and that is established in AB32 as being
4 necessary for state programs.
5 COMMISSIONER REILLY:Well,let me ask this of the
6 applicant,then,would Poseidon be will to accept the
7 requirement of going through CCAR unless you can come back
8 and demonstrate to the executive director that that is
9 infeasible because they just don't have the credits,or they
10 are not available to you?
11 MR.ZBUR:Yes,I mean,really the key issue for
12 us we are worried that we are not going to have enough
13 credits,and we would actually like that the infeasibility
14 issue be focused in part on whether the credits are available
15 at a generally domestic market price,and if is --you know,
16 if we can show that it significantly exceeding that of going
17 through CCAR,we would like to have the ability to evaluate
18
19 COMMISSIONER REILLY:Through CCAR unless you come
20 back and get an "Okay"then?can you live with that?
21
22
MR.ZBUR:Say that again?
COMMISSIONER REILLY:It is CCAR unless you come
23 back and get an "Okay"for mediation.
24 MR.ZBUR:Yes,we are fine with that,and we
25 would just like the criteria to take the cost into account.
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1 COMMISSIONER REILLY:All right.
201
2 And,what I am also hearing is that we modified
3 your other language about local governments,and stuff,you
4 are staying with?
5 MR.ZBUR:That is acceptable,as well.We would
6 like to have the major air districts and CARB included in
7 that.
8 COMMISSIONER REILLY:Mr.Chair,that clears up a
9 couple of things for me,thank you.
10 CHAIR KRUER:Thank you,very much,Commissioner
11 Reilly,for those questions.
12 Commissioner Burke.
13 COMMISSIONER BURKE:First of all,let me try and
14 help out the discussion between Commissioner Hueso and Mr.
15 Douglas.
16 What one was talking about was particulate matter,
17 2.5,which is a particle in the air which is small enough to
18 transfer to your blood vessels,through your lungs,when you
19 are breathing,and go into your blood stream.The other was
20 a gas which goes into the air,and causes diminishing of the
21 air quality,in that manner,so they are totally two
22 different things.And,one is a regional --one is a very
23 localized,and one is a regional,regional problem.
24 And,I don't think that this project should be
25 penalized because they are facing a problem that is an
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21 So,I think that what staff is trying to do is
202
22 admirable,but I don't think it is doable.So,I am going to
23 support yours and Commissioner Hueso's motion,to go ahead
24 and get this done in this manner.
25 CHAIR KRUER:Thank you,Commissioner Burke.
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Commissioner Wan.
COMMISSIONER WAN.Yeah,I just want to deal with,
3 maybe just three or four issues,very quickly.
4 The first one deals with the issue of what the
5 amount of credits we should be dealing with,and that is the
6 replacement water issue.poseidon says that this will
7 directly replace water,and therefore they only need to
8 offset the net energy --and we are talking about the energy
9 offsets here for that replacement water.
10 From my perspective,if there were conditions that
11 actually required that water be replacement water,and not
12 new water,I would agree with that,okay.But,there aren't
13 any such conditions.There are promises,but there aren't
14 any contractual agreements,and therefore there is no
15 certainty that they will really offset this water from the
16 state water project.And,as we have heard,in fact,it will
17 probably be diverted to other uses,and that is not really,
18 therefore an offset.
19 And,therefore,they may not be reducing the
20 overall energy use for the state water project,and that is a
21 very serious issue,in terms of the amount of credits that
22 they need to have.
23 Therefore,from my perspective,this needs to be
24 dealt with by either providing the proof.If you can provide
25 the proof to us that is fine,but if you don't then we need
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1 to deal with this the way the staff is recommending.
2 There is a second issue,major issue,for me,and
3 that is this,quote,opt out --what I can an opt out
4 provision,where they are allowed to pay just $10 per ton --
5 rather than"doing what we have all been talking about.If
6 they are allowed to retain that opt out provision,that is
7 the cheapest way to go,and they are going to do that,and
8 you are going to see a token replacement here.Yeu are not
9 geing to see real replacements.And,I am not sure I
10 understand why that opt out provision is in there,given all
11 of the other ways,particularly after this discussion with
12 Commissioner Reilly,fer them te make sure --and that we
13 make sure that they can actually buy these credits,why the
14 opt out provision?
15 But,there is one thing that is most important
16 here,okay.Poseidon maintains that this is voluntary,
17 because they don't directly emit anything,and it is through
18 their use of electricity that we are dealing with it,and
19 that we don't have the authority to require this of them.
20 That is a very dangerous path for this Commission togo down.
21 section 30253(4)requires that new development
22 minimizes energy consumption.That is directly on point to
23 what is happening here.We are talking about energy usage.
24 It is not talking about direct emission,it is talking about
25 energy consumption,and 30260 requires that all impacts be
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1 fully mitigated.It does not exempt energy consumption
2 impacts from that.
3 The two sections together give this Commission its
4 regulatory authority.To decide that this is voluntary will
5 set an unacceptable precedent for all future projects that
6 need greenhouse gas emission reductions.If you find that
7 the Coastal Act does not allow us to require greenhouse gas
8 mitigations,regardless of what plan you adopt,whether you
9 go with the applicant's plan,or not,please don't undermine
10 our long term regulatory authority by saying that this is
11 voluntary.Because,if you say it is voluntary here,and
12 that we don't have that authority,then it is voluntary with
13 everything else,as well.
14 And,you don't need to do that,to even agree with
15 the applicant's plan,and I think that is a very,very
16 important thing for everyone here to remember,relative to
17 this Commission's regulatory authority.
18 COMMISSIONER REILLY:Well,Mr.Chair,just
19 quickly,is there anything in the motion before us that would
20 restrict or effect the Commission's jurisdiction?And,I ask
21 counsel to respond to that.
22 COMMISSIONER WAN:Can I answer that question,in
23 fact,there is,because in this
24 COMMISSIONER REILLY:Either attorney can answer
25 it,so that is fine.
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1 COMMISSIONER WAN:Let me answer,and then the
206
2 attorneys can answer,because this was my question,my issue.
3 Let me tell you that in here,which we have asked,
4 according to Commissioner Hueso's motion,we adopt this in
5 its entirety,there are statements in here about it being
6 voluntary.
7
8
COMMISSIONER REILLY:Where?
COMMISSIONER.WAN:First page.
9 If you remove just the word "voluntary"that would
10 change it.
11 CHAIR KRUER:Okay,well,we will hear from our
12 other counsel,now.
13 EXECUTIVE DIRECTOR DOUGLAS:Well,one of the
14 problems we have got --as they are looking --is that we
15 have not had time to review everything that,apparently,will
16 be adopted if this motion passes.
17 I was under the impression that there was nothing
18 in the motion that would say this is a voluntary plan,but
19 rather that this complies with the requirements of the
20 Commission's condition for a Greenhouse Gas Reduction
21 Mitigation Plan.If I am wrong,on that,please let me know.
22 COMMISSIONER HUESO:I agree with that.
23 This entire motion is designed to comply with
24 Special Condition No.10 --
25 EXECUTIVE DIRECTOR DOUGLAS:Right.
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1 COMMISSIONER HUESO:--which is condition of
207
2 approval of the project.
3 So,none of this is being stated as voluntary,but
4 rather --and if there is any language that implies that this
5 is a voluntary requirement,it conflicts with Special
6 Condition No.10,so,if there are some comments regarding
7 because I know there were some comments here with voluntary
8 offsets,but I think that doesn't get to the point of this
9 being a voluntary matter.This entire plan is specifically
10 designed to get to Special Condition No.10
11
12
EXECUTIVE DIRECTOR DOUGLAS:Right.
COMMISSIONER HUESO:--and I think in its spirit
13 and intent,it does that.
14
15
CHAIR KRUER:Commissioner Potter.
EXECUTIVE DIRECTOR DOUGLAS:And,as far as we are
16 concerned,Mr.Chairman,the maker of the motion having
17 clarified that,if that is agreeable with the "seconder"then
18 that is the way the motion,if it is approved,will be
19 passed,and we will make whatever adjustments have to be made
20 to,in fact,reflect that.
21 CHAIR KRUER:I see both Commissioner Potter
22 nodding his head,that he is fine with that,and Commissioner
23 Hueso.
24 COMMISSIONER REILLY:Well,just to try to
25 complicate it a little bit further.
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1 I don't think it matters if it is a voluntary
208
2 plan,or not.They offered a voluntary plan,we codified it
3 under Condition 10,and made it a requirement,and so it
4 doesn't matter whether you call it a voluntary plan,or not.
5 The issue is that there is nothing --we don't
6 want to have anything in the motion before us,to indicate
7 that the Commission does not have the authority to require
8 measures above and beyond what they submitted.
9
10
11 Reilly.
COMMISSIONER HUESO:That is precisely correct.
CHAIR KRUER:I think you are right,Commissioner
12 Commissioner Potter,you have no problem with
13 that,either,right?
14 COMMISSIONER POTTER:No,in fact,I concur
15 exactly with what Commissioner Reilly just stated.I was
16 about to do the same.
17
18
19
20
21
22 over here.
CHAIR KRUER:Thank you.
Okay,Commissioner Burke,or Commmissioner --
COMMISSIONER SCARBOROUGH:We've taken care of it.
CHAIR KRUER:It is taken care of'.
COMMISSIONER BURKE:Yes,we are doing a tag team
23 !just wanted to report that I had an exparte,
24 just a few seconds ago,with Rick Zbur,because what I wanted
25 to do was clarify the fact that if,in fact,a government
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1 institution like South Coast Air Quality Management District,
2 did organize a qualification unit,and license some one of
3 these companies to sell credits that had been verified by a
4 government agency,that they would be willing to do that.He
5 said it was already in the proposal.
6 So,that is what my ex parte is.
7
8
9
10
11
12
13
14
15 speak.
16
17 slow.
18
19
CHAIR KRUER:Okay.
commissioner Thayer.
EXECUTIVE DIRECTOR DOUGLAS:Mr.Chairman?
CHAIR KRUER:Yes.
EXECUTIVE DIRECTOR DOUGLAS:Can I just clarify
CHAIR KRUER:Are you Commissioner Thayer?
EXECUTIVE DIRECTOR DOUGLAS:Pardon me?
CHAIR KRUER:Commissioner Thayer was going to
EXECUTIVE DIRECTOR DOUGLAS:Well,he was a little
CHAIR KRUER:He said that about you.
EXECUTIVE DIRECTOR DOUGLAS:He's been saying that
20 for 30 years.
21 CHAIR KRUER:Commissioner Thayer,do you want to
22 yield to Director Douglas?
23
24
COMMISSIONER THAYER:No.
CHAIR KRUER:No,so go ahead,Commissioner
25 Thayer,and then Director Douglas.
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COMMISSIONER THAYER:Now?
CHAIR KRUER:Yes.
COMMISSIONER THAYER:Okay,sorry,I just wanted
210
4 to clarify one small point,and that is Commission Reilly,
5 earlier on made the discussion of some of the agencies that
6 had weighed in,and had worked on the air issues,and the
7 offset issues,and as he pointed out,the Lieutenant Governor
8 did write a letter on that issue,as Ann Sheehan,another one
9 of our Commissioners,but the State Lands Commission hasn't
10 yet weighed in on that issue.
11 And,of course,as you know,the Lands Commission
12 heard this last fall,about the same time as the Coastal
13 commission,and had almost the exact same concerns,and
14 directed that staff return with additional information on,in
15 essence,both Conditions 8 and 10.We have worked closely
16 with your staff,in that regard.
17 Our staffs have a lot of the same concerns and the
18 same analyses of these issues,and we will be reporting to
19 our own.commission on August ~2,and so at that point,the
20 State Lands Commission will be evaluating the same thing,and
21 the people with whom I almost have a first name basis,at
22 this point,in the crowd,will be there,as well,I am sure,
23 and we will hear all of the same issues,again,and the state
24 Lands Commission will figure out what it will do then.
25 But,I wasn't sure whether Commission Reilly was
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1 inferring that the State Lands Commission had already weighed
2 in on this,and it hasn't,really.
3 CHAIR KRUER.Okay,anything else,Commissioner
4 Thayer,okay.
5 Director Douglas,what were you going to say?
6 EXECUTIVE DIRECTOR DOUGLAS.I just wanted to
7 clarify.
8 There was some conversation in which Mr.Zbur
9 indicated --in an exchange with Commissioner Reilly,I
10 believe it was --that they were prepared to just use only
11 purchase from CCAR,unless the executive director approves
12 others,in case there aren't enough available.Is that
13 incorporated into the motion?
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CHAIR KRUER.Yes.
COMMISSIONER HUESO.From my reading of the
16 motion,there is a Special Exhibit A where it talks about
17 priority acquisition and verification,and it talks about
18 CCARor CARB,and I am fine with CCAR being the first choice,
19 and then having any other options available pursuant to
20 approval of the executive director,just so long as they have
21 the opportunity to look at other cost effective savings,
22 because,from my perspective,as long as we make sure that
23 the credits are purchased through a program that accomplishes
24 what--
25 EXECUTIVE DIRECTOR DOUGLAS.Okay,there are a
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1 couple of issues,just to make clear,because we don't want
2 to come back and .have an argument over this.
3 Poseidon would only purchase from CCAR,unless the
4 executive director approves other sources for acquisition
5 because they don't have enough credits available.That is
6 what I understood on that part of it.
7 CHAIR KRUER:And,reasonably priced.Price was
8 one of the issues,too.In other words,if they go to CCAR
9 --I am just telling you what they said,and we agree or
10 disagree,but I am just saying they added a caveat on that.
11 EXECUTIVE DIRECTOR DOUGLAS:Okay,but they would
12 have to come back --
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CHAIR KRUER:Right,they would
EXECUTIVE DIRECTOR DOUGLAS:if they are going
15 to go to somewhere else,they would have to come back and
16 say,"We can't bUy the credits we need here,because of this
17 reason"--
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CHAIR KRUER:Right.
EXEqJTIVE DIRECTOR DOUGLAS:--"therefore can we
20 go somewhere else."
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CHAIR KRUER:Yes.
EXECUTIVE DIRECTOR DOUGLAS:And,if we have a
23 dispute,it comes back to you.
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CHAIR KRUER:Right.
EXECUTIVE DIRECTOR DOUGLAS:And,then,the second
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1 question was,they would use any programs adopted by any air
2 districts,by CARR,or CCARB and eliminate all of the other
3 governmental entities,local.I heard them say that,but I
4 wanted to make sure that that was included in the motion.
5
6 acceptable.
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COMMISSIONER HUESO:That is fine.That is
EXECUTIVE DIRECTOR DOUGLAS:Okay.
8 COMMISSIONER BURKE:[remarks off microphone
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12 said any
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COURT REPORTER:Please use your microphone.
CHAIR KRUER:On your mike,please.
EXECUTIVE DIRECTOR DOUGLAS:Well,I thought they
COMMISSIONER BURKE:Well,let's call them up and
14 ask that,because I want to get that clarified.
15 CHAIR KRUER:Fine,Commissioner Burke,that is a
16 good idea.
17 Mr.Zbur,you heard what Director Douglas said.
18 MR.ZBUR:We are happy and it is acceptable to
19 have any,major air district,or CARB and the South Coast,
20 either one of those is acceptable to us.
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CHAIR KRUER:Okay.
EXECUTIVE DIRECTOR DOUGLAS:That is included,
CHAIR KRUER:And,the "seconder"they can adopt
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COMMISSIONER POTTER:Yes.
CHAIR KRUER:IS there anyone else?
Director Douglas.
EXECUTIVE DIRECTOR DOUGLAS:Yes,this is not
relative to what is in the motion.This is for clarification
because we are going to have to implement this.
One of the opt out provisions does indicate that
they can opt out if the market is unstable for credits.And,
I don't understand any criteria for what is unstable,and
what that means?If we could get some guidance,so that we
don't end up being in an argument over that,because that is
still part of the motion.
COMMISSIONER POTTER:Mr.Douglas,as the
"seconder"I would be in support of knocking out the opt out
piece.I think to keep buying your way into this does
nothing for the environment.It is just paying for a sin.
So,I would support,or offer as the "seconder"if
the maker agrees,that the condition is that the opt out.
piece is eliminated."
COMMISSIONER HUESO:I am okay with eliminating
it,but I would ask that we include at least some provision
for review
COMMISSIONER POTTER:Bring it back here.
COMMISSIONER HUESO:--given extenuating
circumstances that are beyond anyone's control,if we can
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have,at the executive director's discretion,working with
the applicant to determine a condition which fits that,where
we can either have the executive director make a recommend-
ation back to the Commission that we can act on.
I am just --
COMMISSIONER REILLY:Mr.Chair
COMMISSIONER HUESO:--from my perspective,I am
not interested in having them opt out of a requirement.I
don't want that,at all,but given certain circumstances,it
may be prudent to wait out a certain period,to purchase
credits that either are at a more favorable rate,or I don't
know,if the program ends,and if there is no substitute
program,if they were in transition in programming.I mean,
there may be a situation in which it may render the applicant
in default,and we don't want to put this project in that
situation.
MR.ZBUR:Mr.Chair,would it be in order for me
to explain what the proposal does,because I think a lot of
the concerns would be addresse~,although I do believe that
Mr.Douglas is right,that the opt out has a sUbjective
standard.
So,essentially,what it says is if there are
market disruptions,or the price of offsets make the
compliance infeasible,we would have to come back to the
executive director,first,and he would have to make a
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determination that those factors occurred,and if that is the
case we would be able to go into the opt in program.It may
3 be for a temporary period of time.It may be for a longer
4 period of time.It is up to the executive director to make
5 that determination.
6 We are just worried about the fact if there are
7 not offsets on the market,as there have been many cases with
8 other offset markets.But,anyway,if there is a disagree-
9 ment,then it would come to the Commission.
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11
EXECUTIVE DIRECTOR DOUGLAS:That's right.
COMMISSIONER POTTER:Exactly,this placing the
12 money into an escrow account,and then letting that account
13 sit there is perpetuity,does nothing as far as zero
14 reductions.
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MR.ZBUR:.I think the term of the escrow period
is subject to the Executive Director's determination,and if
there is a disagreement we would bring it to the Commission.
So,this isn't something that is permanent,it
also has contingencies.
COMMISSIONER HUESO:I'm fine with that.
COMMISSIONER POTTER:I am absolutely fine with
22 it.
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CHAIR KRUER:Okay,we are fine.
Commissioner Shallenberger.
COMMISSIONER SHALLENBERGER:Yes,I would like to
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ask Joel Levin of the California Registry to come up for just
a question,and that is that I am talking now about the
baseline reason,which seems to be the.other major issue
before us,the disagreement between the project proponent and
the staff recommendation.
If the Commissioner were to request the project's
baseline be determined through the California Registry,how
would you calculate that?how would it be calculated?
MR.LEVIN:Okay,well,if you can bear with for a
10 second,as I need to talk.a little bit about greenhouse gas
11 accounting rules.
12 There is,in international practice,all green-
13 house gas emissions are divided into Scope 1,Scope 2,and
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Scope 3 emissions.Scope 1 emissions are direct emissions,
which in this project are very small,and hasn't really been
any discussion.
Scope 2,is indirect emissions from purchases and
sales of electricity,and schemes --there is no scheme here
--so,Scope 2 e~ission would,basically be --and this an
international standard --essentially,your purchases of
electricity,minus your sales of electricity,so that is your
net purchases of electricity.
Scope 3 is all other kinds of indirect emissions
that go up and down the supply chain,and so,for example
what you are talking about with the State water Project,the
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way I understand that,that would,essentially,be a Scope 3
emission.
In international accounting standards,you keep
all three of those separately.They are all significant,
5 each one of them is real,but they are different.Theyare
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apples and oranges,so you can't add Scope 1 and Scope 2
together,or Scope 2 and Scope 3.
Under our program,we require people to report
Scope 1 and Scope 2.Scope 3 is voluntary.Some people
report certain aspects of their Scope 3,some don't.
So,if we were to calCUlate this,it depends a
little bit on what you ask for.If you said you would like
the California Registry just to calculate the base line,and
we'd like it to be their Scope 2 emissions,then,it would be
just that,it would be their net electricity purchases,which
is not to say that .the emission reductions associated with
the State Water Project are nothing,but it is a different
type of emission.It is not something that we have a
calculat~on methodology for right now.
So,that would be sort of a policy decision for
you,if you wanted to,to put those together,and math them
out,but in terms of the way we calculate,Scope 2 would be
just straight electricity purchases.
COMMISSIONER SHALLENBERGER:May I ask you one
more question.
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MR.LEVIN:Sure.
COMMISSIONER SHALLENBERGER:If I were to tell you
3 --and we can talk later about whether it is true but,if
4 I were to assert that this project coming online will make no
5 difference in the exports through the State Water Project
6 into the Metropolitan Water District,how would you then
7 calculate that,in this project?
8 MR.LEVIN:Well,again,we don't have a protocol
9 for that.It is not something - -the way that we operate is
10 we develop accounting standards through a big public process,
11 with a working group,and we will establish rules for how you
12 measure a specific source.To look at what are the emissions
13 associated with water from the State Water Project,we just
14 have never tackled that,so I am not even sure I could answer
did want to address that.
15 that.
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COMMISSIONER SHALLENBERGER:Okay,thank you,I
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As my fellow Commissioners know,I worked in water
pqlicy:for 15 years,began with the Peripheral Canal Bill
passing the legislature,and ditch ditch,and many bonds,
right up and including the current proposal about
alternatives to the delta,and there has been a lot of talk
about the use of the words gross versus net,which I think is
a bit of a smokescreen as opposed to what is really going to
happen here.
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The state Water Project is over contracted,and
when Metropolitan Water District says it is not fUlly built
out,that is absolutely true,and nobody would disagree with
that,nor will it ever be fully built out.It was a grand
5 concept,and it didn't there was no understanding at the
6 time of what the impact of the State Water Project and the
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Central Valley Project would have on the delta.The delta is
now in a state of --and I don't think anybody would disagree
that it is in a complete state of deterioration,and we are
not sure --nobody is actually sure that it can be saved.
There are actually three different alternatives
being floated now for ways to save it,but none of those
alternatives include fully building out the state Water
Project.
So,the Metropolitan Water District -"and these
are round numbers,so if somebody ends up going to court,you
are going to have to look it up on your own --but,the
Metropolitan Water District,I believe,has contracted for,
:approximately,2 million acre feet of water a year.I don't
believe they have ever gotten more than 1.7 million acre
feet,and it has gone down way below that in times of
drought.
We have heard a lot of statements about being in a
time of drought,and we are.I absolutely agree that we need
to have a broad portfolio of new water sources,and
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1 desalination is one of them,and this project,absolutely,
2 should be one of the pieces in the portfolio for increasing
3 reliability of water,but if it were to go online tomorrow,
4 and have maximum productions,it would not reduce the amount
5 of water being pumped through the state Water Project into
6 the Metropolitan Water District,and yes,that is over the
7 Tehachapis,and no it would not have to go through an EIR
8 review,because that is contracted water.
9 The Metropolitan Water District has a contract for
10 that water,and every year they go through how they are going
11 to distribute that water within their jurisdiction,which
12 includes selling it to San Diego.
13 So,I have to commend staff,our staff,for what I
14 understand working very constructively with both the Energy
15 Commission staff and the Air Resources staff.The first
16 letter we got from the Energy Commission,dated July 18,was
17 very clear and constructive and told us where it needed to be
18 strengthened.
19 Eleven days later we get a letter which is about
20 as mealymouth as a state agency can be.This is a Governor,
21 an administration who has claimed AB32 as the most strongest
22 legislation in the country.He haS gone abroad,he has gone
23 to Germany,he has gone to many places,and California is
24 leading on what we are doing about climate change.
25 And,then,the first big project to come before
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1 us,happens to be before the Coastal Commission,it is going
2 to have a huge impact on climate change,and we get letters
3 like this from the Air Resources Board,who we know staff has
4 been working constructively on real substance with our
5 staff.
6 But,as I read these,none of them,including the
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Deputy Director of the Department of Science,who admits the
State Lands has not had a hearing on this yet,but
apparently,already has an opinion on it,none of them
actually,they are very careful about how they word this.
They talk about it should only be the net greenhouse gases
12 that are taken into account.None of them say that there is
13 going to be a reduction of State Water Project energy use to
14 pump it over the Tehachpis.
15 Metropolitan Water District is going to,and needs
16 to,and has a right to take all of the water that is
17 available to them out of the delta.
18 This project is going to increase reliability.It
19 is going to increase,kind of stop the ebs and flows of
20 drought,and time of plenty.
21 So,I really,on the baseline,and here is --now
22 I am getting to the problem,is that we have a 32-page
23 redlined proposal that comes from the project proponent,
24 which I got this morning,I admit I have not read,and
25 therefore the motion that is before me,I don't know what it
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1 does with this baseline.
2 So,now I am going to turn to staff and say with
3 the motion that is before us,and with your understanding of
4 the amendments that have been made to it,with having to do
5 with the Registry,what else is different between your
6 proposal for a motion,and the one that is before uS,because
7 I am going to need to vote on this without having actually
8 read the proposal that is before us.
9 ENVIRONMENTAL SPECIALIST LUSTER:Staff's
10 understanding,addressing your concerns as I understand it,
11 one of the main differences,is that Poseidon refers to the
12 state water offset as a project related measure that is,
13 essentially,automatically included in calculating where it
14 starts for its net emissions.
15 And,so,although CCAR would --it would work with
16 CCAR to get agreed emission credits in place,the issue of
17 the State Water Project would not be included in that review.
18 That is staff's understanding,just having briefly read
19 through the plan we received this morning.
20 COMMISSIONER SHALLENBERGER:Well,it is funny,
21 because our critics say,you know,you are specialists in
22 greenhouse gases,and you are not specialists in climate
23 change,and the Air Resources Board is the specialist,and
24 Assembly Bill 32 put them in charge for determining things
25 like this,and yet we are about to,perhaps;pass something
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1 which says that we are,in fact,in a position to know what
2 the baseline is.
3 So,I would like to urge my fellow Commissioners
4 not to approve the resolution,as it sits before you,because
5 of the baseline calculation,which we are not in a position
6 to foreclose the Air Resources Board making their own
7 determination.
8
9
CHAIR KRUER:Commissioner Scarborough.
COMMISSIONER SCARBOROUGH:Yes,thank you.
10 Talking overarching,I agree with commissioner
11 Shallenberger about the importance of adding desal to the
12 portfolio of the water supply.Getting to the elements of
13 baseline,yes AB32 staff have worked together at many
14 different levels.
15 What the new letter from the Energy Commission
16 describes is a further understanding with further meetings
17 and the executive director was here this morning,I am sorry
18 you weren't able to ask her further questions,Ms.
19 Shallenberger,when she was here,but she tried to describe
20 in her letter the better understanding of,perhaps,is the
21 glass half fUll,or is it half empty?
22 The concept of net or gross has been wrestled
23 around through CARB,through the CEC,through the Resources
24 Agency,through many,in fact,as I know in here with many of
25 our staff.
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1 In essence,what I understand from a Resources
2 perspective --indeed,we are arguing within our family as
3 well --is that,yes,Met will continue to receive that
4 water.They are not going to turn the state tap off.Other
5 projec:ts that will then need to use that water will have to
6 go through a process by which they get the okay to use that
7 water.And,it is that new project that will then have to be
8 in compliance with CARB and APCD,or whatever local district,
9 on their greenhouse gas emission reductions for that project.
10 So,therein lies the neutrality of the 100,with
11 the charts of 100 and the 25.So,net versus gross is pretty
12 clear that the impacts on the increase of the 56,000-feet
13 that they are providing,that is what they are reducing.
14 So,from a Resources Agency perspective,from
15 CARB,naturally,it still astonishes me how people refer to
16 AB32.Yes,it was a bill,you understand that,Commissioner
17 Shallenberger,and it got signed.The implementation of that
18 bill is still being done.
19 It was noted by several local speakers that just
20 last week some of the documents had hit the street.It is
21 not final.It is not approved.A scoping plan is out for
22 public comment.You can't refer to AB32 as having guidelines
23 by which a project will have to mitigate,yet,it will,and
24 that is why,therefore,a sister agency,as CARB,should be
25 adjoined to this,which it is.CCAR, CARB,they are all a
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1 collected family,of which you are joining by approving this
2 mitigation plan that has CARB connected to it.
3 So,ResoUrces Agency,for one,agrees that the
4 project mitigation plan as an overall water supply portfolio
5 expansion,completely supports the concept of it going net,
6 as justified in the letter attached from the Energy
7 Commission,and the ARB.
8 CHAIR KRUER:Thank you,Commissioner Scarborough.
9 And is that it,before I call for the motion?
10 I'm sorry,Commissioner,do you want to go again.
11 No.I am going to wait until last,just so we don't get into
12 a debate here.
13 COMMISSIONER SHALLENBERGER:Yes,I just wanted to
14 respond that either this is water being freed up for new
15 development,or it is not.
16 It is my understanding,given the condition of the
17 Metropolitan Water District's water supply,that this isn't
18 for new development,and I agreed with people who said that
19 it was not growth inducing.They don't have enough water.for
20 reliable water source,given what is already on the ground.
21 So,when I hear the ResOurces Agency saying that
22 it will have to go through,get a permit for new development,
23 now I am hearing that it is new development.So,I don't
24 believe that is true.I don't think it is,and if it is not
25 due to new development,there will be no environmental
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1 review,because it is already contracted for.
2 My question to staff is,given that we are not
3 working otf your motion,is there a way to have this baseline
4 issue addressed by the agencies,state agencies,who in fact
5 are recognized as that is their expertise,not ours,rather
6 than us foreclosing that now?
7 ENVIRONMENTAL SPECIALIST LUSTER:My initial
8 suggestion,as you heard earlier from the CCAR represent-
9 ative,of the different,three different forms of emissions,
10 if the Commission required CCAR to evaluate all Scope 2 and
11 Scope 3 forms of emissions from the project,that would allow
12 CCAR to review the state water project offsets,and to see
13 whether they meet various criteria.
14 EXECUTIVE DIRECTOR DOUGLAS:I think that the most
15 important element of that is since we have a real difference
16 of opinion here,on what the baseline is,and we agree with
17 your analysis of this,to have a credible independent review
18 of what the baseline is,if you could ask CCAR to look at the
19 category 3 --I know they don't have any protocols,yet for
20 that,but at least they have got the expertise to be able to
21 look at that and determine,in their best jUdgment,what they
22 think the baseline might be.You could look at that as an
23 alternative.
24 COMMISSIONER SHALLENBERGER:And,if there is an
25 amending motion to do that,would the project proponent
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1 probably come forward and say this is going to cost time,and
2 delay?
3 EXECUTIVE DIRECTOR DOUGLAS:Well,you could
4 approve the plan today,which would get you passed that issue
5 .of prior to issuance,with a provision,a proviso,that you
6 have the baseline determined by CCAR,and that if they have a
7 dispute with what that means,in terms of feasibility or
8 costs,again they could come back,and you could authorize
9 them to come back for an amendment,if they wish.
10 CHAIR KRUER:Okay,I am going to go to
11 Commissioner Lowenthal,and then I will address this last
12 idea of yours,Director Douglas.
13 Commissioner Lowenthal.
14 COMMISSIONER LOWENTHAL:Actually,was wondering
15 if the applicant --looked like the applicant had a response
16 to that.Would that be appropriate,on the baseline being
17 described by CCAR,would that be appropriate,just to hear
18 what his response would have been?from Mr.Zbur?
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CHAIR KRUER:You can do that.
COMMISSIONER LOWENTHAL:May I ask Mr.Zbur to do
MR.ZBUR:We would not like that.We would want
23 it to be clear,as I think the ARB letter said,that it be
24 the net approach,which allows us to automatically reduce the
25 water that is foregone from the State Water Project,so we
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would actually prefer that the plan be adopted,as the motion
would do.
COMMISSIONER LOWENTHAL:Okay,and I also wanted
to just make a couple of comments regarding the imported
water from the state Water Project.
I think we all understand that Metropolitan has a
contract for the amount that it does take annually,and I
don't look to creating additional facets to water portfolios
necessarily as a 1:1 trade.I think,in the reality of a lot
of what is going on with water in our state,drought being
one of them,it is difficult to make that 1:1 assumption if
there are 100 units of water produced by the desal project,
that 100 units would be reduced in terms of imported
supplies.
I think what we are seeing in communities across
California,we have been seeing this for many,many years,
separate from various contamination issues,so where they may
have had ground water resources in the past,they actually
take greater imported supplies,and.so that ends up upsetting
this 1:1 offset that we may expect when we add new facets to
the portfolio.
So,I understand the difference in the total
landscape and what has changed,and why.For instance,water
imported into San Diego may continue at the same level,or
into other areas,one accounting for increase in population,
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1 not necessarily inducing the growth,and two,accounting for
2 any changes in local portfolio that need to take place
3 because of their need to address any contamination issues.
4 And,so,I just wanted to make that remark,and
5 also mention that I am a board member of the MWD and am very
6 familiar with their operations,and do understand the
7 challenges that members of the audience and communities may
8 experience when it comes to looking at why we continue to
9 take the same amount of contractual water annually.
10 But,I think it is a little bit more complex,than
11 the 1:1 offset we would expect from every project.
12 CHAIR KRUER:Thank you,Commissioner Lowenthal.
13 I'll go to Commissioner Thayer,then myself,and
14 then I am going to call the question.
15
16
COMMISSIONER THAYER:I'll be brief.
I wanted to respond,in connection to the question
17 about Ms.Sheehan,one of my Commissioner's letters.I think
18 she does a good job of speaking two different voices here.
19 One of them,she speaking as a representative of
20 the administration,and advocating that the approach taken on
21 the replacement versus additive questions for the water
22 offsets is something that the Commission,this Commission,
23 the Coastal Commission,should feel satisfied with the permit
24 conditions --not a State Lands Commission issue.In the
25 next sentence,she gets onto the State Lands Commission role
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1 that she has,a separate one,indicates she will be
2 considering this matter further,before she acts as a
3 Commissioner.
4 So,I think,her letter reflects knowing a lot
5 about the project for her work as a State Lands Commissioner,
6 but she is speaking as a official who is not a State Lands
7 Commissioner,in this letter.
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CHAIR KRUERt Okay?
COMMISSIONER THAYER:Yes,thank you.
CHAIR KRUER:Thank you.
11 Yes,I would like to just say that at this point
12 in time,this project has been before us quite some time ago,
13 and before that,and I think it is time to move forward today
14 with this motion.I have heard a lot of testimony,some
15 things got cleared up,like voluntary,that I had issue with,
16 those .words.But,I am concerned that we move forward today,
17 and take a decisive action on this.
18 In listening to the testimony of all of the
19 people,today,it was,excellent,but listen:j.ng to the
20 regulatory agencies,.that are going to be responsible for
21 AB32,at this juncture,on an approved project like this,I
22 have no problem understanding,from my own perspective,that
23 there is the net versus the growth.
24 If somebody is going to spend $300 million on a
25 project,and it goes under the old "no good deed goes
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1 unpunished,"they should get some credits.And,what happens
2 is AB32 comes along,which is fine,et cetera,but if you add
3 I don't want to have happen --the support,in this case,
4 of the staff recommendation because if you did that,and
5 added --the testimony was given that the mitigation plan
6 went from $55 million to $121 million --and it isn't just
7 $19 a ton,or some of the numbers you had.
8 The infrastructure costs of putting all of that
9 money up front,and putting all of that money that you have
10 to amortize over a period of time,those are the things that
11 create very big difficulties,that delay projects,and that
12 makes them,sometimes,infeasible.You just can't add $50 or
13 $60 or $70 million to a project like that.The capital
14 markets won't allow it.
15 And,in this case,there is a good participation
16 between the private sector and the pUblic sector,and I think
17 there has been a lot of testimony that now is the time.I
18 think I have heard enough about that the plan is flexible,
19 good,fair,and equitable.
20 And,it is always good to hear from Mr.Simmons.
21 I think he is one of the most astute men in law today,that
22 has for so many years been in water,et cetera,and his
23 testimony was very important to hear that today,along with
24 Dr.Cook,and others.
25 So,with that we will move on.
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2 vote,and
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The maker and seconder are asking for a "Yes"
Clerk,would you call the roll,please.
SECRETARY MILLER:Commissioner Achadjian?
COMMISSIONER ACHADJIAN:Yes.
SECRETARY MILLER:Commissioner Blank?
COMMISSIONER BLANK:Yes.
SECRETARY MILLER:Commissioner Burke?
COMMISSIONER BURKE:Yes.
SECRETARY MILLER:Commissioner Lowenthal?
COMMISSIONER LOWENTHAL:Yes.
SECRETARY MILLER:Commissioner Hueso?
COMMISSIONER HUESO:Yes.
SECRETARY MILLER:Commissioner Kram?
COMMISSIONER KRAM:Yes.
SECRETARY MILLER:Commissioner Neely?
VICE CHAIR NEELY:Yes.
SECRETARY MILLER:Commissioner Potter?
COMMISSIONER POTTER:Aye.
SECRETARY MILLER:Commissioner Reilly?
COMMISSIONER REILLY:Yes.
SECRETARY MILLER:Commissioner Shallenberger?
COMMISSIONER SHALLENBERGER:No.
SECRETARY MILLER:Commissioner Wan?
COMMISSIONER WAN:No.
SECRETARY MILLER:Chairman Kruer?
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234
CHAIR KRUER:Yes.
SECRETARY MILLER:Ten,two.
CHAIR KRUER:Ten,two,the motion passes,and the
4 Commission hereby finds that the Compliance Plan entitled
5 Carlsbad Seawater Desal Plant Energy Minimization and
6 Greenhouse Gas Reduction Plan,prepared and submitted by the
7 permittee,Poseidon Resources,Channelside,LLC,dated August
8 6,2008,is adequate and fully implemented to comply with the
9 Special Condition 10 of the Coastal Development Permit
10 E-06-013.
11 We are going to take a break now,a 10-minute
12 break.
13 [Recess &
14 Item No.S.b.Condition Compliance
15 Marine Life Mitigation Plan
16 CHAIR KRUER:Is everybody ready to go?Director
17 Douglas,are you all set?Okay.
18 EXECUTIVE DIRECTOR DOUGLAS:We are ready to
19 ,proceed,Mr.Chairman"if you are.
20 CHAIR KRUER:And,that is what we are going to
21 dO,Director Douglas,go to S.b.
22
23
EXECUTIVE DIRECTOR DOUGLAS:Tom.
ENVIRONMENTAL SPECIALIST LUSTER:Okay,thank you,
24 Chair Kruer and Commissioners.This next item is Condition
25 Compliance report for Poseidon Resources proposed Marine Life
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