HomeMy WebLinkAbout2009-09-15; City Council; 19964 Part 6b; Part 6b - Desalination Project Changes - EIR 03-05A |DA 05-01A|HMP 05-08A|PDP 00-02B|RP 05-12A|SP 144J| 1140 S. Coast Hwy 101
Encinitas, CA 92024
Tel 760-942-8505
Fax 760-942-8515 www.coastlawgroup.com
September 15, 2009
Scott Donnell via electronic mail and hand delivery
Senior Planner Scott.Donnell@carlsbadca.gov
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
scott.donnell@carlsbadca.gov
RE: AB #19,964 - DESALINATION PROJECT CHANGES. Encina Specific Plan SP 144(H); Precise
Development Plan PDP 00-02(B), PDP 00-02; Development Agreement DA 05-01(A); Addendum to
the Environmental Impact Report 03-05, Habitat Management Plan Permit HMP 05-08; Ordinance
Nos. CS-057, CS-058, CS-059. Resolution No. 2009-223; Redevelopment Permit RP 05-02;
Commission Resolution No. 477.
Dear Mr. Donnell,
Please accept the following comments on behalf of San Diego Coastkeeper, Coastal Environmental Rights
Foundation. (collectively “Environmental Groups”), non-profit environmental organizations protecting San Diego
County's bays, beaches, watersheds and ocean. Environmental Groups have serious concerns regarding the City
of Carlsbad's ("City") California Environmental Quality Act (CEQA) Addendum, to the City's Precise Development
Plan and Desalination Plant Project Final Environmental Impact Report (EIR 03-05) ("Addendum"), as well as the
City’s other various approvals.
I. The City Is Required to Prepare a SEIR
a. Use of an Addendum is Improper
The City’s decision to process Project and delivery pipeline changes through an addendum is inappropriate and
contrary to CEQA. An addendum may be used when none of the conditions requiring a subsequent or
supplemental EIR (SEIR) have occurred. CEQA Guideline § 15164(a). However, many of the applicant’s
proposed changes, other Project changes, new information, and changed circumstances surrounding the Project
since certification of the FEIR are substantial and require evaluation in a SEIR. PRC § 21166; CEQA Guideline §
15162.
b. Project Operational Characteristics Have Changed
The City did not approve the Project operating independently of Encina Power Station (EPS). The City cannot
now assert the Project has not changed since certification of the FEIR in 2006. The Project approved did not
consider stand-alone operations, or extended periods of EPS shutdown. The Project approved in 2006
considered a co-located facility with “historical extremes” requiring 304 million gallons per day (MGD) intake by
EPS. The FEIR explained the analysis:
The EPS can run with an "unheated" discharge (i.e., no power plant operation). To account for
these variables, two "historical extreme" conditions were modeled, each reflective of a pump
configuration that could be used during low-flow operations.
FEIR, p.4.3-44. Thus, the FEIR did not analyze a scenario or consider it reasonable to assume that on certain
days, EPS would have zero intake.1 The City’s Additional Response to Comments also make clear the “Final EIR
1 “…the dataset used in the EIR analysis represents operation of all production units, and is considered to provide data
representing the current operational characteristics from which to analyze existing baseline conditions. The average cooling
water discharge rate over the 20‐year period was 576 mgd. Daily average flow rates have not fallen below 304 mgd in the 20‐
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assume[d] continued operation of the [EPS] within the parameters of its historical operating conditions” based on
“reasonably foreseeable circumstances.” FEIR Additional Response to Comments, June 13, 2006, p.1
Nonetheless, since certification of the FEIR, it has become unmistakably clear:
1) EPS now operates at lower intake volumes;
2) EPS will shutdown units 1-3 and repower to the closed-cycle Carlsbad Energy Center Project
(CECP)2;
3) CECP will include a small-scale desalination plant that will be reviewed by the Regional Board in
November 2009; and
4) EPS will shutdown completely in the near future3
The table below shows the daily flows for EPS submitted to the Regional Board pursuant to EPS’ NPDES permit.4
DATE Combined Discharge (million gallons per day)
6/1/2009 228.6
6/2/2009 372.1
6/3/2009 443.5
6/4/2009 439.6
6/5/2009 293.8
6/6/2009 293.8
6/7/2009 263.8
6/8/2009 144
6/9/2009 39.9
6/10/2009 0
6/11/2009 12.4
6/12/2009 0
6/13/2009 0
6/14/2009 0
6/15/2009 0
6/16/2009 0
6/17/2009 0
6/18/2009 47.3
6/19/2009 232.3
6/20/2009 144
6/21/2009 144
6/22/2009 144
year dataset.” FEIR, p. 3‐15; “The ‘historical extreme’ scenarios are considered to be short‐term and episodic.” FEIR, p. 4.3‐50;
FEIR, p. 4.3‐44‐46.
2 Carlsbad Energy Center Project (07‐Afc‐6) Status Report #9, September 10, 2009 (expecting FSA, and turning proceeding over
to the Committee and Hearing Office by September 24, 2009)
(http://www.energy.ca.gov/sitingcases/carlsbad/documents/2009‐09‐10_CEC_Staffs_Status_Report_09_TN‐53192.PDF)
3 Draft Statewide Water Quality Control Policy On The Use Of Coastal And Estuarine Waters For Power Plant Cooling, June
2009 (requires EPS compliance by 2017 and assumes repower to closed cycle for units 1‐3)
4 Pursuant to Order No. R9‐2006‐0043 (NPDES No. CA0001350). section VII. Paragraph B.2, submitted July 29, 2009.
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6/23/2009 111.9
6/24/2009 7.6
6/25/2009 0
6/26/2009 0
6/27/2009 410.5
6/28/2009 341.8
6/29/2009 667.1
6/30/2009 565.4
Average Daily Flow 178.3
The days highlighted in yellow represent days during which EPS flows would be insufficient to provide the
Project’s required intake flow of 304 MGD. Thus, in June 2009 the Project would have had to pump all or a portion
of the water required 22 out of 30 days, or 73 percent of the time. The monthly average was only 178 MGD.
Moreover, on nine of those days EPS did not take in or discharge any water.
Thus, the Project has changed such that operational characteristics would not be the “same as with the approved
Project.” (Addendum, p.19) The FEIR did not (and could not have) analyzed new requirements imposed by
subsequent reviewing agencies:
1) Regional Board—at times when the EPS is not generating electricity (temporarily or permanently) the
EPS intake pumps would be decoupled from EPS condensers and one pump from unit 4 and 5 would be
operated, as opposed to two pumps from one unit. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, March 9, 2009 (Flow Plan), p. 3-7.5
2) Regional Board – Poseidon is required to submit a technical report evaluating the feasibility of any
additional design or technology features within 45 days of being notified by EPS that all generating units
will be non-operational for power production, and may be required to implement additional measures
during the prolonged period of temporary shutdown. Order No. R9-2009-0038, p.3.
3) State Board – EPS will not be allowed to intake sea water when it is not generating electricity.6
II. The Addendum Results in Project Segmentation and Piecemealing
The City now continues to opine on the significance of certain aspects of stand-alone operations, all the while
refusing to acknowledge the reality of the stand-alone operations in the near future. But a project is defined as
“the whole of an action” that may result in either a direct or reasonably foreseeable indirect physical change in the
environment. CEQA Guidelines § 15378. The “term ‘project’ refers to the activity which is being approved and
which may be subject to several discretionary approvals by government agencies.” Id. The environmental impact
of future Project operations without EPS units 1 to 3 must be analyzed because it is a “reasonably foreseeable
consequence” of the Project, and “will be significant in that it will likely change the scope or nature of the initial
5 “The [Project] must comply with the best available design requirement in Water Code section 13142.5(b) when
EPS is operating for the benefit of [Project] (whether EPS is temporarily shut down or not otherwise discharging
sufficient volume of water to meet [Project’s] operational needs). Features that will be incorporated in the
desalination plant design to reduce impingement, entrainment, and flow collection when EPS is temporarily shut
down include operation of a modified (EPS) pump configuration to reduce both inlet (bar racks) and fine screen
velocity, and ambient temperature processing.”Order No. R9‐2009‐0038, p.7.
6 No later than one year after the effective date of this Policy, the owner or operator of an existing power plant
unit that is not directly engaging in power generating activities, or critical system maintenance, shall cease intake
flows, unless the owner or operator demonstrates to the Regional Water Board that a reduced minimum flow is
necessary for operations. Draft Statewide Water Quality Control Policy On The Use Of Coastal And Estuarine Waters For
Power Plant Cooling, June 2009, p.4.
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project or its environmental effects.” Laurel Heights Improvement Ass’n v. Regents of University of Cal. (1988) 47
Cal. 3d. 376, 396.
The EPS re-power to CECP is more than reasonably foreseeable.7 As soon as 2010, units 1 to 3 will be
demolished, EPS oil fuel tanks 5, 6 and 7 would be demolished, and the CECP will be built, including a new, small
desalination plant.8 As detailed above, EPS flows are not sufficient to provide 304 MGD to the Project, and will be
further reduced upon retirement of units 1 to 3 and implementation of the State Board’s OTC Policy. The Project
will have to implement new design and technology measures if EPS flows discontinue for six months. All of these
new developments constitute Project changes and must be analyzed in a SEIR.
III. Cumulative Impacts Will Result from Projects Undergoing Construction Simultaneously With the
Project and Delivery Pipelines
Several other (previously unanalyzed) projects will simultaneously be undergoing construction within the Project
and delivery pipeline vicinity. The cumulative impacts from these projects have not been discussed in the FEIR or
Addendum, but require analysis and avoidance or mitigation.
1) La Golondrina and La Costa Meadows Sewer Extension (SCH# 2009021109)
a. Construction of two gravity flow sewer pipeline segments including 2,800 lineal feet of pipe to be
cut, filled with sand, and capped with a concrete plug
2) Bridges at Aviara (SCH# 2009021030)
a. Development of 428 senior condominiums and 76 senior income restricted apartments,
completion of Poinsettia Lane, and a double span bridge over an existing canyon
3) El Fuerte View (under review until October 4, 2009)
a. Grading and subdivision of 3.9 acre property into six residential lots, private street lot, and one
common space lot
4) Bressi Ranch Industrial Lots
a. Subdivision of 40 industrial lots.
5) Alga Norte Park
a. A 32-acre project on Alacante Road and Poinsettia Lane
IV. Significant Environmental Impacts Will Result from Project Changes
a. Traffic Impacts
The conclusion that proposed changes will not increase any previously identified impacts or create new potential
impacts is unsupported. (Addendum, p.37). The traffic impacts from installation of Project pipelines along Melrose
Drive (south of Palomar Airport Road) and Lionshead Avenue to Linda Vista Road to 9th Street have not been
studied. Merely claiming the impacts will be similar to those evaluated in the FEIR is insufficient. Rather, as the
FEIR mentions, impacts must be evaluated by comparing existing traffic conditions to traffic conditions during
construction of the pipelines. (FEIR, p.4.10-3).
Impacts are considered to be significant if the project would:
a. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of
the street system.
b. Exceed an applicable adopted level of service standard either individually or cumulatively.
7 CECP Preliminary Staff Assessment, December 2008.
8 Id. at p. 3‐2.
http://carlsbadenergycenter.com/pdf/CECP%20FACT%20OR%20FICTION%20FINAL%20OCTOBER%202008.pdf
; http://www.energy.ca.gov/sitingcases/carlsbad/documents/2007‐11‐
03_NOTICE_OF_RECEIPT_SUPPLEMENTAL_A.PDF;
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c. Result in a change in air traffic patterns, including either an increase in traffic levels or a change in
location that results in substantial safety risks.
d. Substantially increase hazards due to a design feature or incompatible uses.
e. Result in inadequate emergency access.
f. Result in inadequate parking capacity.
g. Conflict with adopted policies, plans or programs supporting alternative transportation.
(Appendix G of CEQA Guidelines for significance). Neither the Addendum nor does the FEIR describes, any level
of detail, the traffic impacts of construction within the road rights-of-way. (Addendum, p. 37; FEIR, p. 4.10-9).
Moreover, much of the new proposed pipeline route will be in San Marcos, which will rely upon the City’s
Addendum in determining significance of traffic impacts. The Addendum does not provide any insight as to the
average daily trips or level of service requirements along pipeline route roads in San Marcos. (Addendum, p. 36-
37).
Rather, the Addendum speaks in generalities about total pipeline length, reduced hauling trips, and construction-
related vehicle trips. The “construction traffic impacts of the revised Project would be reduced from what was
anticipated for the approved Project due to the reduced amount of soil hauling and overall reduced length of off-
site pipelines.” (Addendum, p.36-37). Though the revised Project may result in reduced pipeline length, the
Addendum does not discuss impacts from the movement of pipelines to new locations, increase in pipe diameter,
or impacts to specific new pipeline segments. Id.
The mitigation measures identified in the FEIR are also inadequate to render impacts insignificant. (FEIR, p. 4.10-
12-13). Some of the mitigation measures are already being sidestepped by Poseidon’s hurried project
amendment approvals.
Prior to issuance of grading permits and/or encroachment permits for work within public
rights-of-way, the Applicant shall provide the ultimate location of soil disposal sites to the
appropriate city…and shall further demonstrate that transport of soil and materials to and
from the proposed sites will not result in Levels of Service during peak hour periods on
affected roadways and intersections falling below acceptable standards established by
the affected cities.
Id. Poseidon has asked the City to issue encroachment permits in the public rights-of-way before the City
approves “construction plans, traffic control plans, technical studies, posting of security, permit fees, notice to
proceed, etc…things that [the City] normally have done before [it] issue[s] a ROW permit.”(email communication
between Jeremy Riddle, Carlsbad Associate Engineer and Skip Hamman, on August 5, 2009). By granting
conditional approvals before required FEIR mitigation measures are implemented, the City has already begun
chipping away at the credibility of the proposed mitigation measures. The City has shown its desire to bend over
backwards and disregard its own standard procedure for consideration and approval of necessary permits.
Mitigation measures based upon the City’s Traffic Control Plan approval and implementation are therefore
baseless. FEIR, p. 4.10-12-13.
Thus, the resulting impacts are unanalyzed and unmitigated. PRC § 21002; 21002.1. Further, deferral of
mitigation measures through a Traffic Control Plan to be submitted after Project approval or permits have been
issued is contrary to CEQA. Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296 (deferral of
mitigation until after project approval renders success of mitigation uncertain); Oro Fino Gold Mining Corporation
v. County of El Dorado (1990) 225 Cal. App. 3d 872, 884-885 (post-approval formulation of mitigation plans
inappropriate because, “in the absence of overriding circumstances, the CEQA process demands that mitigation
measures timely be set forth, that environmental information be complete and relevant, and that environmental
decisions be made in an accountable arena”); Gentry v. City of Murrieta (1995) 36 Cal. App. 4 1359, 1393-1394
(reiterating the principles of Sundstrom and Oro Fino Gold Mining)).
b. Noise Impacts
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Though the Addendum states otherwise, the FEIR concluded no significant noise impacts would result from the
Project and thus imposed no mitigation measures. FEIR, 1-15 (Table 1-1) and 4.9-14; CEQA Findings, p. 20-21;
Addendum, p. 33-34. However, the concurrent construction of other projects listed above, the CECP, and the
Project may result in significant noise impacts, especially in residential areas mentioned above. No analysis for
pipeline routes in San Marcos has been completed, as was originally completed for Vista and Oceanside. FEIR,
p. 4.9-1. The construction impacts will not be short in duration, as stated in the Addendum, as pipeline
construction is expected to take 16 months. Addendum, p. 45.
Moreover, noise impacts from nighttime construction have not been discussed. The FEIR points to the City
ordinances limiting construction to daytime hours in all relevant cities. FEIR, p. 4.9-2-4. Once again, the City
anticipates waiving these limitations or simply labeling impacts insignificant. See email from Scott Donnell to Joe
Monaco on June 11, 2009 (regarding waiver of night construction ordinances and simply labeling noise not
“disturbing, excessive, or offensive”). The FEIR’s promise that “[a]ll construction activity will be limited to the City
of Carlsbad’s permitted hours of construction,” is therefore of no consequence. FEIR, p. 4.9-6.
In enacting CEQA, the Legislature has declared the policy of the state to “[t]ake all action necessary to provide
the people of the state with …freedom from excessive noise.” PRC § 21001(b); See also, Berkeley Keep Jets
Over the Bay Committee v. Board of Port Com'rs (2001) 91 Cal.App.4th 1344, 1379 -1380. The City has failed to
analyze the individual and cumulative noise impacts from the Project. In light of the Project changes and the
significant noise impacts, a SEIR is required.
c. Growth Inducement
The Addendum gives little attention to growth inducement impacts, referring to previous analysis in the FEIR.
Addendum, p. 46. The Project will provide up to 50 MGD of potable water to the region, enabling new economic
and population growth. “Development of the Carlsbad Seawater Desalination Plant will assist in the stimulation of
new commercial/industrial expansion, employment, and economic growth.” Carlsbad Planning Commission
Resolution No. 6088, p.4. Though the Project may be one factor in removing barriers to such growth, the City
must nonetheless discuss the impacts resulting from one less obstacle to such growth. FEIR, p. 9-5. Response to
August 19, 2009 Letter on Desalination Project Changes, Scott Donnell, p. 5. But for the Project, some growth
would not be possible.
Further, in light of the City’s recent approval of a 20 percent reduction in reliance on Project water from FEIR
predictions, enabling 20 percent more water to reach other regional customers, at a minimum this incremental
increase must be discussed.9 Carlsbad Municipal Water District, Resolution No. 1372, adopted August 18, 2009.
d. Aesthetics
The assertion that construction-related short-term and cumulative aesthetic impacts would not result in new
impacts or increase the severity of impacts identified in the FEIR is absurd. Addendum, p.11. The proposed
changes in the pipeline route themselves warrant further discussion and analysis. The City has provided no
evidence of the impacts to San Marcos and Vista residential and commercial areas during construction. Most of
the area south of Linda Vista Dr, Los Flores Dr, and 9th St in San Marcos is residential. The same is true of
Melrose Drive south of Palomar Airport Road. Many of these areas will have flow control facilities (FCF) built near
the pipelines, requiring undergrounding of structures 15 feet wide , 25 feet long, 11 feet deep to 30 feet wide, 45
feet long, and 11 feet deep. Addendum, p. 10. The aesthetic impacts of digging to place 4,125 to 14,850 cubic
9 By approving the Project delivery pipeline route and cost apportionment on August 18, 2009, the City effectively approved
the Project pipelines and changes before CEQA review was complete. The City limited its discretion with respect to the
Addendum and environmental review, foreclosing meaningful options. No other pipeline delivery options have been
presented or analyzed in the Addendum, resulting in an Addendum that constitutes post hoc rationalization of a previous
approval. Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 142, 194 P.3d 344, 363. The City committed “itself to a
definite course of action regarding the project before fully evaluating its environmental effects.” Id.; Pub. Res. Code §§ 21100,
21151; CEQA Guideline § 15352.
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feet of structures in the public right of way or areas adjacent to the pipeline will most certainly be significant. They
have not been identified.
Construction of the off site water delivery pipelines and pump station would cause temporary
aesthetic impacts, including equipment storage, materials, soil stockpiling and debris that are
exposed to public views. The use of standard construction measures such as fencing and
screening would be utilized to a limited extent to screen construction areas. Because these
impacts are short-term in nature, and because they affect a limited area, they are not considered
to have a substantial adverse effect on a scenic vista, nor would they substantially damage
scenic resources. Construction activities would not substantially degrade the existing visual
character or quality of the surrounding areas, and are therefore not considered significant.
FEIR, p. 4.1-10 (emphasis added). The FEIR thus found no significant impacts resulting from delivery pipeline
construction. However, the FEIR did not discuss aesthetic impacts of FCF construction. Nor did the FEIR consider
the cumulative impacts of on-going, simultaneous construction of pipelines for over a year. (email communication
between Nick Lyuber and Scott Donnell on May 28, 2009). The impacts of removing dirt, stockpiling dirt for a
year, and excavating an area for a 14,850 square foot FCF in multiple residential neighborhoods have thus not
been adequately analyzed.
The aesthetic impacts of increasing the Project dimensions as follows have also not been adequately
addressed:
‐ Overall Plant Site Area from 3.2 acres to 5.7 acres
‐ Pretreatment Area height of mostly 3 feet with some 7.5 feet to 27 foot height
‐ Pretreatment Area dimension from 42,632 square feet to 60,000 square feet (almost 50 percent
increase)
‐ Reverse Osmosis Building from 44,552 sq. feet to 49,700 sq. feet
‐ Solids Handling Building from 19.5 foot height to 25 foot height
‐ Solids Handling Building from one structure to two structures, doubling square footage from 2,500
to 5,000 sq. feet
‐ Chemical Storage Area from 5,200 sq. feet to 6,000 sq. feet
‐ Chemical Storage Area allowed limited use of screening walls and now extensively uses walls at
a height of 20 to 30.5 feet
‐ Chemical Storage Area had retaining walls not visible beyond plant but now has 600-foot long
wall along west boundary that is 10 feet tall
‐ Parking spaces increased from 14 to 23 spaces
Though the visible project features arguably have decreased, the height, size, and location of the new features
have not been adequately discussed. Addendum, p.6, 11-12. The mitigation measures in the FEIR are equally
inapplicable or insufficient. FEIR, p.4.10-12. None of the FEIR mitigation measures address either the increased
heights, views inland from the ocean, cumulative aesthetic impacts.10
Cumulative aesthetic impacts from concurrent construction of the CECP, including the demolition of units 1 to 3,
the new plant and small desalination plant, and relocation of the administration building are also significant. The
City has simply labeled the Project’s incremental effects as not cumulatively considerable. Addendum, p.41. This
type of analysis is exactly the opposite of cumulative impacts analysis. Because each impact may be individually
insignificant, impacts of several projects become cumulatively considerable. CEQA Guideline § 15064(h)(1); see
also CEGA Guideline § 15355(b)(“Cumulative impacts can result from individually minor but collectively significant
projects taking place over a period of time”). Contributing to those impacts, the Project’s effects are significant
when analyzed cumulatively. The Addendum inappropriately disregards this reasoning, and fails to address the
CEQA mandate to consider cumulative impacts significant. CEQA Guideline § 15065(a)(3).
10 http://carlsbadenergycenter.com/images/CECP_Figure_1.2‐3.pdf; http://carlsbadenergycenter.com/photo_renders.htm
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“It is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it must
reflect a conscientious effort to provide public agencies and the general public with
adequate and relevant detailed information about them.” [Citation] A cumulative impact
analysis which understates information concerning the severity and significance of
cumulative impacts impedes meaningful public discussion and skews the decision-
maker's perspective concerning the environmental consequences of the project, the
necessity for mitigation measures, and the appropriateness of project approval.
Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d. 421, 431 (quoting San
Franciscans For Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 80).
e. Air Quality
The air quality analysis in the Addendum suffers from the same flaws as the aesthetics analysis. The City again
addresses impacts through generalities and does not fully explain or consider impacts resulting from individual
changes proposed or other changes occurring since FEIR certification. For example, the City claims the reduction
in pipeline length and earthwork will correspond to reduction in air emissions. However, the City fails to analyze
the specific air quality impacts in San Marcos and Vista from pipeline construction. A decrease in the total amount
of construction does not necessarily equate to decrease in impacts. The air quality impacts to sensitive receptors
in residential neighborhoods surrounding much of the new pipeline routes in San Marcos, Vista, and southern
portions of Melrose Drive have not been discussed in the FEIR or Addendum. Moreover, the air quality impacts
analysis in the FEIR concerns ambient air quality from 2001 to 2003. FEIR, p. 4.2-6. The City has not addressed
degradation of air quality since 2003 or since FEIR certification. Such air quality information is easily obtainable
from the California Air Resources Board.11
For one constituent in particular, the air quality impacts to sensitive receptors will be particularly significant. CEQA
Guidelines, Appendix G.The FEIR concluded during construction the “project’s construction emissions are above
the significance threshold for NOx; however, construction would be temporary and would not have a long-term
impact.” FEIR, p. 4.2-20. The FEIR also revealed, “NO2 is a respiratory irritant and may affect those with existing
respiratory illness, including asthma. NO2 can also increase the risk of respiratory illness.” FEIR, p. 4.2-2.
Sensitive receptors, including children, people with respiratory illness, and elderly individuals, most certainly will
be exposed to NO2 during pipeline and FCF construction in residential neighborhoods. Pipeline construction is
estimated to take 16 months, belying the notion that NO2 impacts will be “temporary” and not significant. FEIR, p.
4.2-20. These impacts must be thoroughly analyzed before they can be considered insignificant. 12
Cumulative air quality impacts are also given little attention in the Addendum, but require full analysis. Addendum,
p. 41-42; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692. Project and pipeline
construction impacts will not be short in duration, and will now occur simultaneously with CECP construction,
exacerbating any air quality impacts.13 Id. Further, the FEIR proposed no mitigation measures for cumulative
impacts to PM10 and ozone (for which the San Diego air basin is non-attainment) and NOx and ROC (ozone
precursors). FEIR, p. 5-9. However, a reduction in energy consumption is a feasible alternative, as it will reduce
11 http://www.arb.ca.gov/aqd/aqdpage.htm
12 NO2 emissions are presented as an example here because only NOx emissions exceed the FEIR’s threshold of
significance. However, all contaminants should be re‐evaluated in light of the new pipeline delivery route in
highly residential areas. Moreover, the thresholds considered in the FEIR inappropriately segment Project
construction from pipeline construction so as not to exceed thresholds. FEIR, Appendix D, Tables 6 and 7.
Because the Project will now be constructed at the same time as CECP and in light of other construction projects
proposed along or near the pipeline delivery route, these emissions should be considered additive.
13 CECP construction was expected to begin third quarter of 2009, but will begin after final California Energy Commission
approval, expected in 2010. CECP construction will take 25 months. CECP Preliminary Staff Assessment, December 2008, p. 3‐
2.
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indirect emissions from energy production. FEIR, p. 5-9. Use of renewable energy is also a feasible mitigation
measure not analyzed.
The FEIR’s consideration of indirect emissions resulting from energy use during Project operations is also no
longer applicable or accurate. FEIR, p. 4.2-19. The water districts, including Carlsbad Municipal Water District
(CMWD), purchasing Project desalinated water have shown no intention to give up their imported water supplies
in exchange for desalinated water. In fact, the CMWD approved a water delivery scheme wherein only 80 percent
of the City’s water supply would offset with Project water, with the remaining 20 percent provided by the San
Diego County Water Authority (SDCWA). Carlsbad Municipal Water District, Resolution No. 1372, adopted
August 18, 2009. Moreover, the proposed delivery pipeline changes remove connection to Oceanside and divert
water directly to the SDCWA distribution system, where it may be used to augment current supplies. (Addendum,
p. 9). Therefore, the Project’s indirect emission contribution must be recalculated without accounting for “net
increase in power consumption” and rather calculate total emissions from energy requirements. FEIR, p. 4.2-19;
4.2-20, Table 4.2-9.
The FEIR indirect emissions for energy consumption were also based on the assumption that the Project would
receive electricity from EPS. Appendix D, p.29. However, the EPS will re-power and the Project will likely receive
energy from a mix of SDG&E electricity. Indeed, the Project’s Green House Gas (GHG) emissions were
calculated based on SDG&E electricity production, not EPS. Poseidon’s Energy Minimization and Greenhouse
Gas Reduction Plan14; California Coastal Commission Final Adopted Findings, August 6, 2008, p. 82-83
(Poseidon based energy calculations on use of 246,156 megawatt-hours per year from SDG&E and “intends to
buy all of its energy from SDG&E system power…”). Because SDG&E obtains energy from a variety of sources,
including coal and natural gas plants which have higher emission rates than other sources. Id. at 84. Thus,
indirect emissions from power generation must be recalculated based on new information revealed since FEIR
certification, and changed circumstances surrounding the Project. CEQA Guideline § 15162.
Importantly, the FEIR found none of the Project’s direct or indirect air quality impacts significant, and therefore did
not require any mitigation measures. FEIR, p. 4.2-21. Any impacts that are now significant will therefore not be
mitigated.
f. Green House Gas Emissions
The Addendum provides considerable detail on global warming and Poseidon’s requirement of net carbon
neutrality through implementation of the Energy Minimization and Greenhouse Gas Reduction Plan (GHG
Plan). Addendum, p. 14-18. However, the City does not address substantial operational changes to the
Project since FEIR certification that will result in increased GHG emissions through energy use.
Poseidon will now be responsible for pumping 304 MGD of seawater and the associated energy demand.
Importantly, only one-third of the 304 million gallons is needed in the reverse osmosis process, while the
remaining 200 million gallons are needed to provide the required dilution for the brine discharge.15 The FEIR
considered a Project that only diverted 104 MGD, relying on EPS to pump the remaining 200 MGD.
The FEIR’s technical analysis did not consider zero flow through EPS: “Seawater flow through the EPS rarely
stops completely (and if it did the desalination plant could not operate), however, periods of minimal flow do
occur.” FEIR Appendix E, Marine Biological Considerations Related To The Reverse Osmosis Desalination Project At The
Encina Power Plant, Carlsbad, CA, p. 15.
The Project will also no longer have a continuous source of heated water. Poseidon’s original energy calculations
were based on the expectation that they would be receiving warm water from the power plant after it had cooled
the generators. An industry rule of thumb energy demand calculation holds that for every one degree centigrade
decrease in water temperature there is an accompanying three percent increase in energy demand.16
14 http://www.carlsbad‐desal.com/media/FinalGHGPlan070308.pdf
15 Order No. R9‐2006‐0065.
16 Tom Pankratz, editor of Water Desalination Report; Dow Chemical Desalination Manual.
AB #19,964 – Desalination Project Changes
Environmental Groups’ Comments
September 15, 2009
Page 10 of 14
Notably, the FEIR did not contain any discussion of GHG emissions or global warming. The City is therefore now
required to analyze the Project’s energy use and resulting GHG emissions, to ensure the Project’s impacts are
mitigated to a less than significant level. Pub. Res. Code §21002. Moreover, the mandatory finding of significance
dictated by CEQA Guideline 15065(a)(3) for cumulatively considerable impacts also requires a thorough analysis
to identify these effects “in depth” and “make detailed findings on the feasibility of alternatives or mitigation
measures.” 14 CCR 15065(c)(1) and (2).
The Addendum’s claim that “net zero” impact on GHG emissions would not result in any new significant effects is
unsubstantiated. Addendum, p. 18. The “net zero” requirement imposed by other agencies will still result in
emissions of approximately 60,000 metric tons of CO2 annually.17 The City provides no explanation of why this is
not significant. The City’s assertion that Project water is replacement water is unsupported. Addendum, p. 18. The
SDCWA and member agencies have not agreed to forego their imported water allotments in exchange for product
water. Moreover, the City cannot point to which water sources would be displaced if the Project water did truly
displace other sources. Colorado River sources do not require as much energy as State Water Project sources.
Further, displaced State Water Project water will still travel to neighboring cities in the region, or neighboring
counties.18 Even assuming 100 percent of the Project water displaces an equal amount of State Water Project
water from being delivered to San Diego, the State Water Project water will not simply remain in the Sacramento-
San Joaquin Delta, never to be distributed.
The Project’s contribution of almost 100,000 metric tons of CO2 to the atmosphere is substantial and
cumulatively significant. GHG Plan, p.6. The City must analyze this significant impact and detail possible
alternatives and mitigation measures in a SEIR.
V. Substantial Changes will Result in Significant Marine Life Impacts
The City’s finding of no significant impacts to the marine environment is absurd in light of the expansive data
brought to light since FEIR certification. Addendum, p. 19-20. The Regional Board, State Lands Commission
(SLC), and California Coastal Commission (CCC) have all found the Project’s entrainment and impingement
impacts significant. The City and the applicant mischaracterize mitigation measures imposed by other agencies
as voluntary, a product of statutory schemes, or over-zealousness. However, the validity of the data underlying
the imposition of mitigation measures cannot be so easily dismissed. In addition to the various significant
environmental impacts detailed extensively above, these significant marine life impacts warrant production of a
SEIR. Any of the SEIR triggers apply to the substantial changes to and surrounding the Project since FEIR
certification. CEQA Guideline § 15162. The City’s assertion to the contrary is an abuse of discretion and an affront
to common sense.
a. Project and EPS Operational Characteristics Have Changed Since FEIR Certification
As highlighted above, since FEIR certification, it has become clear the Project will operate in one of four
modes:
1) Co-location when EPS is discharging sufficient volumes for Project operation (EPS discharging
304 MGD); or
2) Co-location for Project benefit when EPS is temporarily shut down (EPS discharging 0 MGD); or
3) Co-location for Project benefit when EPS is operating, but its discharge volume is not sufficient to
meet the Project's intake requirements (EPS is discharging > 304 MGD); or
4) Stand-alone operation when EPS shuts down.
17 http://www.carlsbad‐desal.com/media/FinalGHGPlan070308.pdf
18 See SLC Staff Report for Lease Amendment, p. 17‐18 (“It should be noted, however, that in light of the current drought,
climate change, and recent and anticipated legal decisions giving rise to reductions in SWP exports from the Delta, MWD may
be expected to take all of the SWP water that they can get in the foreseeable future.” );
http://archives.slc.ca.gov/Meeting_Summaries/2008_Documents/08‐22‐08/ITEMS_AND_EXHIBITS/R55.pdf
AB #19,964 – Desalination Project Changes
Environmental Groups’ Comments
September 15, 2009
Page 11 of 14
Order No. R9-2009-0038, p.2. On the other hand, the FEIR merely considered Project impacts compared to EPS
historical baseline operations. FEIR, p. 4.3-36. A “historical extreme” was used as a proxy for evaluating stand-
alone marine life impacts. Addendum, p.19. But the EPS historical operation scenario does not accurately
describe or analyze all four of the possible operating scenarios because EPS will not operate as historically
predicted at the time of FEIR certification.
The desalination plant feedwater intake will not increase the volume, nor the velocity of the EPS
coolingwater intake nor will it increase the number of organisms entrained or impinged by the
EPS coolingwater intake structure. Therefore, the project would not result in any additional
impingement effects of the EPS and therefore, impingement effects are not considered as
significant impacts attributable to desalination plant operations.
FEIR, p. 4.3-36.
The Project before the City now, or the “activity which is being approved,” has changed. CEQA Guideline §
15378(c). The Project must now ensure at least 304 MGD flows through the EPS discharge channel, as the
Project’s NPDES permit from the Regional Board requires at least 304 MGD of discharge from EPS for brine
dilution. Order No. R9-2009-0038, p. 1. Various other operational restrictions and requirements have been
imposed by the Regional Board, as well as other agencies. The FEIR does not address these changes.
First, in 2006, the City approved a Project to withdraw 104 MGD of seawater for production of 50 MGD of potable
water (and appurtenant facilities and pipelines).19 FEIR CEQA Findings of Fact and Statement of Overriding
Considerations, p.2. The Project, the “whole of an action”, now involves the applicant either negotiating with EPS
to consistently pump 304 MGD, or operating the EPS pumps itself.20 See Section I.b. above. This is a departure
from the Project approved in 2006.
Baseline operating conditions at the time of FEIR certification were considered EPS “historical operating
conditions”, or 576 MGD intake. FEIR, p.3-15. The FEIR concluded entrainment and impingement impacts were
not significant, as the normal operating condition of 104 MGD, and even the historical extreme, would represent a
reduction in flows from baseline. Addendum, p. 20; FEIR, p. 4.3-36. For purposes of determining whether a SEIR
is needed, the physical change is measured against the previously approved Project. Arguably Poseidon has not
vested any of its permits or rights, as Poseidon has not received any permits, nor has construction begun. Benton
v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1477 (“In our case, the actual physical environment
includes that which [the applicant] has a legal right to build under permits which have already been issued and on
which construction has already begun.”). However, even assuming the baseline condition for CEQA purposes is
the approved 2006 Project, Poseidon could only have vested a right to draw in 104 MGD from EPS discharge.
In contrast, the Project changes since certification now require Poseidon to draw in 304 MGD. Whether Poseidon
is physically operating the pumps or has arranged with EPS to draw in 304 for the Project’s benefit, this scenario
is a physical change to the environment resulting from the changed Project. If the Project is operating as the
driver of intake flows, and/or decouples intake from EPS condensers, it will be responsible for all impacts
associated with such operations. This resulting change (200 additional MGD attributable to the Project) will have
significant environmental impacts, which require preparation of a SEIR.
b. Subsequent Agency Action Identified Significant Environmental Impacts
19 In 2006, the City approved the FEIR and findings for a Precise Development Plan for EPS and the Project; a Redevelopment
Permit; and, a Development Agreement between Carlsbad and Poseidon. Changes to all of these documents are now
proposed.
20 As mentioned, in light of the State Water Board’s OTC Policy, it is unlikely Poseidon will be able to pump 304 MGD or
require EPS to pump 304 MGD when such intake is not required for energy production.
AB #19,964 – Desalination Project Changes
Environmental Groups’ Comments
September 15, 2009
Page 12 of 14
The Addendum itself belies the City’s contention, and the FEIR’s conclusion, that the Project will not cause
significant marine life impacts. Id. All agencies listed above required 55.4 acres of wetland mitigation to offset the
Project’s entrainment impacts. See Comment Letter from CCC Executive Director to Regional Board, May 6,
2009. 21 The City characterizes these “restoration” measures as support for the FEIR finding of no significant
impact. Addendum, p. 20. However, the FEIR was incorrect in finding no significant impact.
Since certification, three separate agencies have verified that marine life impacts are significant. These
determinations were based upon an empirical transport model and area of habitat production foregone (AHPF)
calculation of 42.5 acres, first brought to light after FEIR certification. PRC § 21166. The AHPF calculation
triggers a mandatory finding of significance. CEQA Guideline § 15065. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, June 1, 2007, p. 4. The very definition of entrainment implicates marine life
sustainability concerns. CCC Final Adopted Findings, August 6, 2008, p. 40-41 (entrainment defined as:
occurring “when small organisms, such as plankton, fish eggs, larvae, etc., are pulled into an open water
intake”).22
Poseidon’s first calculations presented to the Regional Board in June 2007 provided an AHPF estimate of 36.8
acres. Poseidon Revised Flow, Entrainment and Impingement Minimization Plan, June 1, 2007, p. 4; CCC Final
Adopted Findings, August 6, 2008, p. 40-41. A CCC expert found additional impact to ocean species, for a total
AHPF of 42.5 acres, at a 50 percent confidence level. CCC Final Adopted Findings for MLMP approval,
December 10, 2008, p.13-16.23 Since certification of the FEIR, all three of the above-named agencies have
required some variation of the Marine Life Mitigation Plan (MLMP), requiring 55.4 acres of wetland creation or
restoration.24 Addendum, p. 20.
c. New Information Reveals Significant Environmental Impacts
CCC Final Adopted Findings for MLMP approval, December 10, 2008, p.13-16. at p. 15 (APF is area production
foregone, interchangeable with AHPF).
21 The Regional Board also estimated impingement impacts of 4.7 kg/day, subject to verification through monitoring. Order
No. R9‐2009‐0038, p.9‐10; Addendum, p. 20.
22 The method of calculating entrainment effects involves the use of “proportional mortality,” which determines “[t]he
proportion of larvae lost” to give an “estimate of how much overall production of the species in this area is lost due to
entrainment.” Id. This calculation gives the area of habitat production foregone due to Project impacts. Id.
23 http://documents.coastal.ca.gov/reports/2008/12/W16a‐12‐2008.pdf
24 The CCC approved the MLMP on August 6, 2008 (http://www.coastal.ca.gov/meetings/mtg‐mm8‐8.html); the SLC required
implementation of the MLMP as a condition of Poseidon’s lease amendment to Lease PRC 8727.1 on August 22, 2008
(http://archives.slc.ca.gov/Meeting_Summaries/2008_Documents/08‐22‐08/Voting_Record.pdf); the Regional Board approved
the Flow Plan incorporating the MLMP on May 13, 2009
(http://www.waterboards.ca.gov/sandiego/board_decisions/adopted_orders/2009/R9_2009_0038_rev1.pdf).
AB #19,964 – Desalination Project Changes
Environmental Groups’ Comments
September 15, 2009
Page 13 of 14
As indicated in the CCC table above, the three agencies have relied upon a 50 percent confidence level in the
calculation of AHPF in imposing mitigation. The AHPF calculation inherently involves agency discretion as it
requires the agency to choose a level of confidence in the underlying data assumptions. As the lead agency, the
City has not previously seen or evaluated the AHPF methodology used to calculate the 55.4 acres of wetland
mitigation. Now, three years after FEIR certification, the City has before it new, relevant data that requires
analysis pursuant to CEQA. PRC § 21166; CEQA Guideline § 15162. Not only is such analysis required because
of its mandatory significance, but also because the City and applicant themselves admit no previous agency has
reviewed such data pursuant to CEQA. Response to August 19, 2009 Letter on Desalination Project Changes,
Scott Donnell, p. 3 (“None of the permitting agencies has prepared any new, subsequent or supplemental CEQA
documentation, and therefore no new impacts or mitigation measures have been identified under CEQA”), p.4
(“None of the conditions or other requirements placed on permits issued by other agencies pursuant to laws,
ordinances, regulations, or policies other than CEQA require analysis under CEQA.”); see also, Addendum, p. 21.
The City’s contends a SEIR is not required because the CCC and Regional Board relied on the same entrainment
data relied upon in the FEIR. Addendum, p. 21.
The APF methodology does not demonstrate any change in the number of marine organisms that
will be entrained or otherwise affected by the Project during stand-alone operations, and therefore
does not constitute “new information” triggering preparation of a supplemental EIR.
Addendum, p. 21. Though the EPS impingement and entrainment sampling relied upon in the FEIR was
conducted in 2004-2005, the impingement and entrainment impacts constitute new information because such
information was not known and could not have been known with the exercise of reasonable diligence.25 CEQA
Guideline § 15162(a)(3). “As a result of an accumulation of information from various sources over a period of time
[other agencies] became concerned with the possibility of a substantially higher risk…”. Security Environmental
Systems, Inc. v. South Coast Air Quality Management Dist. (1991) 229 Cal.App.3d 110, 124 (“Security
Environmental Systems”).
Since the original [FEIR] was based upon assumptions and not hard data, the new assumptions
raise substantial concern as to the validity of the original data, and strongly suggest the need for
a reconciliation of adverse assumptions and a full and complete investigation and disclosure of all
[impacts].
Id. Similar to Security Environmental Systems, the FEIR’s conclusions regarding the significance of marine life
impacts were based on the assumption that EPS would continue to operate as it had historically. FEIR Additional
Response to Comments, June 13, 2006, p.1. Several other underlying assumptions regarding co-located
operations have proven false. Entrainment impacts cannot be minimized because the “most frequently entrained
species are very abundant in the area of EPS intake.” Addendum, p. 19. The City’s reliance on the Department of
Fish and Game Nearshore Fishery Management Plan (2002), and the idea of surplus larvae production is no
longer a valid entrainment analysis tool. FEIR Additional Response to Comments, June 13, 2006, p.20. The
CCC, the Regional Board, the SLC, and various other entities have since realized entrainment and impingement
individually and cumulatively cause significant environmental impacts.26
Moreover, the Project’s impingement impacts have not been accurately characterized or analyzed. The
Addendum and FEIR both fall short.
25 With regard to entrainment impacts, it should be noted that Poseidon’s full entrainment study (ie. underlying data) was not
made publicly available and the CCC’s staff’s inability to obtain a full copy after numerous attempts shows the futility and
impossibility of the public attempting to obtain and assess the study. CCC Final Adopted Findings, August 6, 2008, p. 43‐45.
26 See Understanding Entrainment at Coastal Power Plants: Informing A Program To Study Impacts And Their Reduction, CEC, March
2008 (explaining short‐comings of current tools and models and various assumptions).
AB #19,964 – Desalination Project Changes
Environmental Groups’ Comments
September 15, 2009
Page 14 of 14
The EIR concluded the Project would not cause any additional impingement losses because it will
not require an increase in the quantity or velocity of water withdrawn relative to the Encina Power
Station. (EIR at 4.3-35.) Under the No Power Plant Operation scenario, approach velocity of the
water flowing through the EPS intake would not exceed 0.5 feet per second. Therefore, the
[Project] will not cause any additional impingement losses to the marine organisms impinged by
the EPS, under the assumed baseline EPS operating conditions, and would not result in
significant impingement effects under the No Power Plant Operation scenario. (EIR at 4.3-36)
Addendum, p. 20. The co-located scenario where EPS is not drawing in 304 MGD, or is temporarily shut down is
not addressed by the explanation above. If EPS draws 304 MGD (or some fraction thereof) for the Project,
approach velocity will exceed .5 feet per second (fps). See Comment Letter from CCC Executive Director to
Regional Board, May 6, 2009.
Poseidon has also recently admitted a calculation error in its impingement data. See Latham & Watkins Letter to
CCC Executive Director, September 3, 2009, p.1. Poseidon “voluntarily” offered 11 additional acres in mitigation
to the CCC as a result of this math error. Id. at 1-2. Although the letter mischaracterizes the Regional Board’s
impingement analysis, it nonetheless acknowledges a calculation error. The Regional Board found impacts of no
less than 4.7 kg/day and up to 7.16 kg/day. Estimation Of The Potential For Impingement Should The CDP
Operate In Stand-Alone Mode, March 9, 2009, p. 13.27 The calculation error and Poseidon’s exclusion of two
data points (not made known to the public during FEIR review) required new calculations of the impingement
impacts at the Regional Board. The inclusion of heat treatment impingement impacts was also newly considered
by the Regional Board. Regional Board Staff Report, March 27, 2009, p. 11-13.
VI. Conclusion
The trigger for SEIR preparation has been met. Since FEIR certification new information has come to light, and
substantial changes in the Project and to circumstances of Project operation have been made or proposed. CEQA
Guideline § 15162(a)(1) and (2). Further, many of the City’s assumptions regarding Project operations, impacts,
and significance of impacts have proven false, requiring further analysis. The City must evaluate all significant
environmental impacts mentioned above, as well as any other Project impacts, and available alternatives,
avoidance and mitigation measures in a SEIR. Id. For these reasons, and those stated above, the City’s approval
of the revised Project, including revisions to necessary agreements, permits, and Addendum, would be contrary to
CEQA. Consequently, we urge the City to deny the requested Project changes and require preparation of a SEIR.
Sincerely,
COAST LAW GROUP LLP
MARCO A. GONZALEZ
Attorney for San Diego Coastkeeper
Coastal Environmental Rights Foundation
Encl.
27
http://www.waterboards.ca.gov/sandiego/press_room/announcements/carlsbad_desalination/updates_3_13_09/item_131_e.pd
f
LIST OF ADDITONAL DOCUMENTS
1) CCC Final Adopted Findings, August 6,2008 (ATTACHED in email)
2) CCC Final Adopted Findings for MLMP, December 10,2008
(http://documents.coastal.ca.gov/reports/2008/12AV16a-12-2008.pdf)
3) Petitioners' Briefs in Surfrider v. SLC (ATTACHED in email)
4) OTC Scoping Policy
(http://www.waterboards.ca.gov/water issues/programs/npdes/doc$/cwa316/draft otcpolicy.pdf)
5) June 2007 Flow Plan
(http://www.waterboards.ca.gov/sandiego/press room/announcements/carlsbad desalination/up
dates 3 13 09/item 7.pdf)
6) CCC Letter to Regional Board, May 6,2009
(http://www.waterboards.ca.gov/sandiego/press room/announcements/carlsbad desalination/up
dates 5 6 09/CCC ltr.pdf)
7) Final Adopted Order No. R9-2009-0038
(http://www.waterboards.ca.gov/sandiego/board decisions/adopted orders/2009/R9 2009 0038
revl.pdfl
8) Flow Data, June 2009 (ATTACHED in email)
9) Regional Board Staff Report, March 27,2009
(http://www.waterboards.ca.gov/sandiego/press room/announcements/carlsbad desalination/up
dates 3 27 09/staff report 3 27 09.pdf)
10) Latham & Watkins Letter September 3,2009 (acknowledging impingement calculation error and
offering 11 acres of mitigation) (ATTACHED in email)
11) Environmental Group Supplemental Comment Letter to Regional Board, May 7, 2009
(http://www.waterboards.ca.gov/sandiego/board info/agendas/2009/may/itemll/supp doc IQ.p
df)
12) CEC Status Report (http://www.energy.ca.gov/sitingcases/carlsbad/documents/2009-09-
10 CEC Staffs Status Report 09 TN-53192.PDF)
13) CECP Figure (http://carlsbadenergycenter.com/images/CECP Figure L2-3.pdf)
14) CEC Notice Of Receipt November 2, 2007
(http://www.energy.ca.gov/sitingcases/carlsbad/documents/2007-ll-
03 NOTICE OF RECEIPT SUPPLEMENTAL A.PDF)
15) Final GHG Plan (http://www.carlsbad-desal.com/media/FinalGHGPlan070308.pdf)
16) SLC Staff Report 8-22-09 (http://archives.slc.ca.gov/Meeting Summaries/2008 Documents/08-22-
08/ITEMS AND EXHIBITS/RSS.pdf)
Aquaforest TIFF Junction Evaluation
STATE OP CALIFORNIA—THE RESOURCES AGENCY
9-17-09 Note to file:
This documentation wa<? presented by
Marco Gonzales, representing San Diego
Coa ? tkeeper ARNOLD SCHWARZENEGGER, core/wo*
CALIFORNIA COASTAL COMMISSION
45 FREMONT, SUITE 2000
SAN FRANCISCO, CA 94105-2219
VOICE AND TDD (415) 904- 5200
FAX (415) 904-5400
at toe y-lj-uy toouncii neeong.
W4a
FINAL ADOPTED FINDINGS
APPLICATION FILE NO.:
PERMITTEE:
PROJECT LOCATION:
PROJECT DESCRIPTION:
ADOPTED:
SUBSTANTIVE FILE
DOCUMENTS:
EXHIBIT 1:
EXHIBIT 2:
EXHIBITS:
EXHIBIT 4:
ATTACHMENT 1:
ATTACHMENT 2:
ATTACHMENT 3:
ATTACHMENT 4:
ATTACHMENT 5:
ATTACHMENT 6:
E-06-013
Poseidon Resources (Channelside) LLC / Cabrillo Power II
LLC
On the Encina Power Plant site, adjacent to Agua Hedionda
Lagoon, in the City of Carlsbad, San Diego County.
Construction and operation of a 50 million gallon per day
seawater desalination facility.
August 6, 2008
See Appendix A
Location Map
Site Layout
Aerial View of Site
Diagram of Subsurface Intakes
November 15, 2007 Hearing Transcript. Note: attached
transcript includes Commission deliberations only.
Staff Proposed Conditions of November 14, 2007 and
Poseidon Proposed Conditions of November 15,2007.
Ex Pane Forms.
June 25, 2008 letter from Latham & Watkins with
requested revisions to Revised Findings.
June 11,2008 e-mail from Latham & Watkins with
requested revisions to Revised Findings.
May 22,2008 Applicant's Requested Revisions to Revised
Findings.
014041
Final Adopted Findings -Coastal Development Permit Application E-06-0J3
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 2 of J06
EXECUTIVE SUMMARy
Project Description:The proposed project is a seawater desalination facility to be constructed
and operated at the site of the Encina Power Plant in Carlsbad,San Diego County.The facility
would be owned and operated by Poseidon Resources (Channelside)LLC.Itwould withdraw
about 304 million gallons per day (MGD)of water from Agua Hedionda Lagoon (the Lagoon),a
coastal estuary,to produce about 50 MGD of potable water for sale and distribution.
The project was originally proposed to co-locate with the power plant in order to use some of the
several hundred million gallons per day of water the power plant pumped from Agua Hedionda.
However,the power plant owner announced in September 2007 that it intends to shut down the
existing plant and build a new one elsewhere on the site that would not use seawater for cooling.
During the last few years,the power plant has operated at a substantially reduced level over its
historical rate of use,and it is expected to operate only sporadically for a few more years once
the new facility is built.As a result,the desalination facility would now operate as a "stand-
alone"facility,and the analyses in these Findings are based on these "stand-alone"operations.
Key Coastal Act Issues:
•Protection of Marine Life and Water Quality:The project as proposed and conditioned
herein will be consistent with policies of Coastal Act Sections 30230 and 30231 meant to
protect marine life and water quality.Results of Poseidon's entraimnent study show the
entraimnent caused by the project's use of an open-water intake within Agua Hedionda
would result in a loss of productivity in the Lagoon equal to that produced in no less than37acresofwetlandandopenwaterhabitat.
The Commission finds that the certified project EIR determioed that the project's
discharge into coastal waters of its waste stream would result in levels of salinity higher
than the natural variability of these waters in an area ranging from about eight to over 40
acres of benthic habitat,but would not cause significant adverse impacts to marine life,
and that the San Diego Regional Water Quality Board (Regional Board)studied the
project's expected discharge before issuing the project's NPDES permit,and that the
Regional Board adequately conditioned all potential discharge-related impacts to ensure
compliance with applicable Clean Water Act criteria and the California Ocean Plan.As
documented in the certified EIR prepared for the project by the City of Carlsbad,the
desalination facility would not cause significant impingement or entraimnent impacts
when it operates while the power plant is using at least 304 million gallons per day
(MGD)of cooling water (i.e.,"co-located"operations).Operating stand-alone _that is,
when the power plant is using little or no cooling water -the EIR found that the
desalination facility would not canse significant impacts.Poseidon's entraimuent study
results show that the desalination facility's entrainment impacts would result in a loss of
productivity in the Lagoon equal to that produced in approximately 37 acres of wetlandandopenwaterhabitat.
014042
Final Adopted Findings -Coastal Development Permit Application E-06-0J3
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 3 of J06
To address these impacts,Poseidon submitted a conceptual plan to restore 37 acres oflost
wetland and upland habitat productivity.I The Commission is requiring through Special
Condition 8 that Poseidon submit its full entrainment study and develop a Marine Life
Mitigation Plan for further Commission review and approval that fully documents the
facility's anticipated entrainment and impingement impacts,mitigates those impacts to
the maximum extent feasible through creation,enhancement,or restoration of aquatic and
wetland habitat,and ensures long-term performance,monitoring,and protection of the
approved mitigation measures in a manner consistent with the policies of Coastal Act
Sections 30230 and 30231.The Commission is also requiring through Special
Condition 9 that Poseidon obtain an amendment to its coastal development permit if it
proposes or is required to withdraw more than the currently anticipated 304 million
gallons per day of estuarine water from Agua Hedionda Lagoon.Further,the project is
subject to continuing review by the Regional Board to ensure conformity to federal Clean
Water Act and state Porter-Cologne Act requirements related to protection of water
quality impacts.Special Condition 4 requires Poseidon to submit,prior to construction,
documentation that it has received final approvals from the Regional Board and other
agencies for project construction and operations.For the reasons set forth more fully
below in these Findings and in Poseidon's submissions,the Commission finds that
alternative intakes that would avoid or reduce entrainment and impingement impacts are
infeasible or would cause greater adverse impacts.
With implementation ofthese Special Conditions,the Commission finds the project will
conform to applicable provisions of Coastal Act Sections 30230 and 30231 by ensuring
that marine resources are maintained,enhanced,and restored.
•Energy Use and Greenhouse Gas Emissions:The project's electrical use would cause
emissions of carbon dioxide of about an estimated 130 million to 200 million pounds
(approximately 61,000 to 90,000 metric tonnes)per year',which would result in adverse
impacts to a wide range of coastal resources,as described in Section 4.5.5 of these
Findings.Poseidon has agreed to "go carbon-nentral"-i.e.,to reduce its emissions
through various measures so that its facility would contribute net zero greenhouse gas
emissions,but it has not yet demonstrated how it would implement this mitigation
proposal.To ensure the project conforms to Coastal Act Section 30253(4)and other
applicable policies,and avoids or minimizes its effects on coastal resources,the
Commission is requiring through Special Condition 10 that Poseidon develop an Energy
Minimization and Greenhouse Gas Reduction Plan for further Commission review andapproval.
I Poseidon has also submitted the plan to the San Diego Regional Water Quality Control Board (Regional Board)as
required by its conditional NPDES permit.The Regional Board reviews various water quality issues and will ensurecompliancewithits'regulations and policies via its review and approval of the plan.
2 As described more fully in Section 4.5.5 herein,Commission staff estimates that the project will emit 90,000
metric tonnes (200,000,000 pounds)of carbon dioxide per year,while Poseidon,relying on the California Climate
Action Registry's certified protocol,estimates 61,000 metric tonncs (134,500,000 pounds)of carbon emissions.
014043
Final Adopted Findings -Coastal Development Permit Application E-06-013
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Approved August 6,2008-Page 4 of 106
s Dredging and Protection of Coastal Waters and Wetlands:The project may require
future dredging to ensure its continued use of the existing intake structure,and the
Commission,through imposition of Special Condition 12 requiring Poseidon to obtain
separate coastal development permits for any future proposed dredging activities,has
ensured that any needed dredging will conform to applicable Coastal Act policies.
However,the project represents a use and alteration of Agua Hedionda Lagoon that is not
permitted under Coastal Act Section 30233(c).That Coastal Act policy identifies Agua
Hedionda as one of 19 coastal estuaries in which alterations are allowed for just a limited
set of uses,including"...very minor incidental public facilities,restorative measures,
[and]nature study ...",and the project's removal and use of water from Agua Hedionda
does not fall within the set of allowable uses or alteration.The Commission therefore
finds the project is not consistent with the use prohibitions of Coastal Act Section
30233(c).Even so,because the project is a coastal-dependent industrial facility,the
Commission can approve the project,notwithstanding its nonconformity to Coastal Act
Section 30233(c),if the Commission finds that it meets the requirements of Section
30260,as described below.
e Application of Coastal Act Section 30260:Because the proposed project is a coastal-
dependent industrial facility,its inconsistencies with Coastal Act Section 30233(c)may
be "overridden"pursuant to Coastal Act Section 30260.That policy allows the
Commission to approve coastal-dependent industrial facilities that are not consistent with
other Coastal Act policies contained in Chapter 3 if the proposal meets three tests.Those
tests require:(1)that there be no feasible and less enviromnentally damaging location for
the proposed project;(2)that the project's adverse enviromnental impacts be mitigated to
the maximum extent feasible;and,(3)that not permitting the proposed project would
adversely affect the public welfare.In applying these tests to the proposed project,the
Commission finds,as discussed in detail in Section 4.5.7 of these Findings,thefollowing:
•There are no feasible and less environmentally damaging alternative locations to draw
in the needed seawater (e.g.,subsurface or offshore,as further described in Section
4.2.1 of these Findings)that would avoid nonconformity to the use prohibitions of
Section 30233(c).For reasons set forth more fully below in these findings,the
Commission finds that slant wells are infeasible because the water quality available
from such intakes would make it difficult,if not impossible,to treat for desalination
purposes,and that the construction impacts associated with this alternative render it
enviromnentally inferior to the proposed project.The Commission also finds that an
infiltration gallery is enviromnentally irIferior to the proposed project because this
alternative would disrupt public access to marine resources,require frequent
dredging,and would require the destruction of 150 acres of coastal habitat,and that
the alternative is economically infeasible.The Commission further fmds that an
offshore intake system would result in greater enviromnental impacts and that
construction of an offshore intake would render the project economically infeasible.
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Final Adopted Findings -Coastal Development Permit Application E-06-0 13
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 5 of 106
•Special Conditions 4,8,9,10,11,12,15,16,and 17,ensure the project's adverse
effects to Agua Hedionda Lagoon are mitigated to the maximum extent feasible.The
Commission finds that the required development of the necessary mitigation plans,
the limitation on water withdrawals,prohibition of dredging without further
Commission review and approval,and imposition of water quality best management
practices,will ensure that the project is mitigated to the maximum extent feasible.
•Denial of the proposed project would adversely affect the public welfare for a number
of reasons.As set forth in the project's EIR and described herein and elsewhere in
the Commission's record,the project would provide public benefits in the form of a
local water supply in an area where current and anticipated water imports are
expected to decline.Although it is a privately funded project,the water produced by
the project will be put to public use by eight public water districts.The sale of water
to public water districts is expected to both alleviate expected water supply shortfalls
and augment other supply options such as recycled water and conservation.It also
provides public benefits to those districts and their ratepayers because they will not be
expected to pay directly for more than $300 million of the project's start-up and
construction costs.The project also includes public benefits in the form of increased
public access opportunities to both Agua Hedionda Lagoon and to the Pacific Ocean.
Commission Action:On August 6,2008,the Commission approved,as conditioned,proposed
project E-06-013 as described herein.
014045
Final Adopted Findings -Coastal Development Permit Application E-06-013
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 6 of 106
GLOSSARY
Terms Used:
•Acre-foot:An acre-foot is equal to about 326,000 gallons,which is enough to supply
from one to four households for a year.
•Kilowatt-hour (kWh):As used in these findings,it refers to the amount of electricity
needed to produce one kilowatt for one hour.
e Megawatt-hour (m Wh):As used in these findings,it refers to the amount of electricity
needed to produce one megawatt for one hour.A megawatt is 1,000 kilowatts.
•Million gallons per day (MGD):A million gallons is equal to about three acre-feet.
TABLE OF CONTENTS
1.0 Motion and Resolution 7
2.0 Standard Conditions 8
3.0 Special Conditions 8
4.0 Findings andDec1arations ,14
4.1 Project Purpose and Description 14
4.2 Background 18
4.3 Coastal Commission Jurisdiction and Standard of Review ,"29
4.4 Other Permits and Approvals 29
4.5 Conformity to Applicable Coastal Act Policies 33
4.5.1 Protection of Marine Life (Coastal Act Sections 30230 &30231)33
4.5.2 Use of Wetlands and Coastal Waters (Coastal Act Section 30233)65
4.5.3 Public Access 71
4.5.4 Scenic and Visual Resources 73
4.5.5 Energy Use and Greenhouse Gas Emissions (Coastal Act Section 30253(4))75
4.5.6 Development and Public Services (Coastal Act Sections 30250 &30254)91
4.5.7 Coastal-Dependent "Override"(CoastalAct Section 30260)93
5.0 California Environmental Quality Act 100
014046
Final Adopted Findings -Coastal Development Permit Application E-06-013
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 7 of 106
1.0 MOTION AND RESOLUTION
Motion
Staff reconnnends the Commission adopt the following findings in support of its actions on
November 15,2007 to approve Coastal Development Permit E-06-013.
I move that the Commission adopt the Revised Findings in support of the Commission's
actions on November 15,2007 concerning the Commission's Coastal Development
Permit E-06-013.
Resolntion
The Commission hereby adopts the Findings set forth below regarding Coastal
Development Permit E-06"013.
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Final Adopted Findings -Coastal Development Permit Application E-06-0 13
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 8 of 106
2.0 STANDARDCONDITIONS
1)Notice of Receipt and Acknowledgment:This permit is not valid until a copy of the permit
is signed by the Permittee or authorized agent,acknowledging receipt of the permit and the
acceptance of the terms and conditions,and is returned to the Connnission office.
2)Expiration:Construction activities for the proposed project must be initiated within two
years of issuance of this permit.This permit will expire two years from the date on which the
Connnission approved the proposed project if development has not begun.Construction of
the development shall be pursued in a diligent manner and completed in a reasonable period
of time.Application for extension of the permit must be made at least six months prior to the
expiration date.
3)Interpretation:Any questions of intent or interpretation of any condition will be resolved by
the Executive Director of the Commission (hereinafter,"Executive Director")or the
Connnission.
4)Assignment:The permit may be assigned to any qualified person,provided the assignee files
with the Connnission an affidavit accepting all terms and conditions of the permit,
5)Terms and Conditions Run with the Land:These terms and conditions shall be perpetnal,
and it is the intention of the Commission and the Permittee to bind all futnre owners and
possessors of the subject property to the terms and conditions.
3.0 SPECIAL CONDITIONS
1)Liability for Costs and Attorneys Fees:The Permittee shall reimburse the Coastal
Connnission in full for all Coastal Commission costs and attorneys fees -inclnding (1)those
charged by the Office of the Attorney General,and (2)any conrt costs and attorneys fees that
the Coastal Commission may be reqnired by a conrt to pay -that the Coastal Connnission
incurs in connection with the defense of any action brought against the Coastal Commission,
its officers,employees,agents,successors and assigns challenging the approval or issuance
of this permit.The Coastal Commission retains complete authority to conduct and direct the
defense of any such action against the Coastal Connnission.
2)Proof of Legal Interest:PRIOR TO ISSUANCE OF THE PERMIT,the Permittee shall
provide for Executive Director review and approval documentation of the Permittee's legal
interest in all property within the coastal zone needed to construct and operate the project,
including:
•Lease(s)from the California State Lands Commission for structures on state tidelands.
Any conflicts between conditions of the lease(s)and those adopted by the Coastal
Connnission shall be presented to the Coastal Connnission for resolution.
•Lease(s)or other forms of approval from the power plant owner allowing the Permittee to
use portions of the power plant site and Agua Hedionda Lagoon.
•Lease(s)or other forms of approval from the City of Carlsbad and other local
governments for the project's water delivery pipelines.
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Final Adopted Findings -Coastal Development Permit Application E-06-013
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Approved August 6,2008-Page 9 of 106
3)Lease and Deed Restriction:PRIOR TO ISSUANCE OF THE PERMIT,the applicant shall
provide to the Executive Director for review and approval documentation demonstrating that
the applicant has executed and recorded against its leasehold interest(s)in the property
governed by this permit a lease restriction (in which any private owner of the fee interest in
such property shall join or to which it shall agree to be bound),in a form and content
acceptable to the Executive Director (a)indicating that,pursuant to this permit,the California
Coastal Commission has authorized development on the Property,subject to terms and
conditions that restrict the use and enjoyment of the Property;and (b)imposing all of the
Special Conditions of this permit as covenants,conditions and restrictions on the use and
enjoyment of the Property,The restriction shall include a legal description of the Property.It
shall also indicate that,in the event of an extinguishment or termination of the deed
restriction for any reason,the Standard and Special Conditions of this permit shall continue
to restrict the use and enjoyment of the Property so long as either this permit or the
development it authorizes -or any part,modification,or amendment thereof -remains in
existence on or with respect to the Property.
4)Other Approvals:PRIOR TO COMMENCEMENT OF CONSTRUCTION,the Permittee
shall submit to the Executive Director for review and approval documentation showing that
the project has obtained final approvals for project construction and operation from the City
of Carlsbad,the Regional Water Quality Control Board,the California Department of Health
Services,the National Marine Fisheries Service,and the U.S.Fish and Wildlife Service,or
documentation showing that these approvals are not needed.
S)Assumption of Risk and Waiver of Liability:The Permittee acknowledges and agrees,on
behalf of itself and all successors and assigns:(i)that the project site may be subject to
hazards from seismic events,liquefaction,storms,waves,floods and erosion;(ii)to assume
the risks to the Permittee and the property that is the subj ect of this permit of injury and
damage from such hazards in connection with this permitted development;(iii)to
.unconditionally waive any claim of damage or liability against the Commission,its .officers,
agents,and employees for injury or damage from such hazards;and (iv)that any adverse
effects to property caused by the permitted project shall be fully the responsibility of the
landowner.
6)Limits of Development:This permit authorizes the construction and operation ofthe
Poseidon Carlsbad Desalination Project and associated infrastructure as described in the
project description of this staff report,as clarified and modified by these conditions.
1)Final Plans:PRIOR TO COMMENCEMENT OF CONSTRUCTION,the Permittee shall
submit to the Executive Director for review and approval final plans for the proj ect
components located in the coastal zone.The Permittee shall undertake development in
accordance with the approved plans and any changes shall be reported to the Executive
Director.No material changes within the coastal zone shall occur without a Commission-
approved amendment to this coastal development permit unless the Executive Director
determiues that no amendment is necessary.Changes to the proj ect requiring review for
amendment would include changes in the physical,operational,or delivery capacity
increases,or extension of water supply distribution pipelines beyond those shown on the final
plans.
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Final Adopted Findings -Coastal Development Permit Application E-06-0 13
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 10 of 106
8)Marine Life Mitigation Plan:PRIOR TO ISSUANCE OF THE PERMIT,the Permittee
shall submit to and obtain from the Commission approval of a Marine Life Mitigation Plan
(the Plan)that complies with the following:
a)Documentation of the project's expected impacts to marine life due to entrainment and
impingement caused by the facility's intake of water from Agua Hedionda Lagoon.This
requirement can be satisfied by submitting a full copy of the Permittee's Entrainment
Study conducted in 2004-2005 for this project.
b)To the maximum extent feasible,the mitigation shall take the form of creation,
enhancement,or restoration of aquatic and wetland habitat.
c)Goals,objectives and performance criteria for each ofthe proposed mitigation sites.It
shall identify specific creation,restoration,or enhancement measures that will be used at
each site,including grading and planting plans,the timing of the mitigation measures,
monitoring that will be implemented to establish baseline conditions and to determine
whether the sites are meeting performance criteria.The Plan shall also identify
contingency measures that will be implemented should any of the mitigation sites notmeetperformancecriteria.
d)Requires submittals of "as-built"plans for each site and annual monitoring reports for no
less than five years or until the sites meet performance criteria.
e)Defines legal mechanism(s)proposed to ensure permanent protection of each site -e.g.,
conservation easements,deed restriction,or other methods.
The Permittee shall comply with the approved Plan.Prior to implementing the Plan,the
Permittee shall submit a proposed wetlands restoration project that complies with the Plan in
tile form of a separate coastal development permit application for the planned wetlandsrestorationproject.
9)Change in Seawater Withdrawal:Ifat any time during the life ofthe project Poseidon
proposes or is required to withdraw more than an average flow of 304 MGD of seawater,it
must obtain frrst an amendment to this permit.
10)Energy Minimization and Greenhouse Gas Rednction Plan:PRIOR TO ISSUANCE OF
THE PERMIT,the Permittee shall submit to the Commissiona Revised Energy
Miuimization and Greenhouse Gas Reduction Plan that addresses comments submitted by the
staffs of the Coastal Connnission,State Lands Commission and the Califoruia Air Resources
Board.The permit shall not be issued until the Connnission has approved a Revised Energy
Minimization and Greenhouse Gas Reduction Plan after a public hearing.
11)Public Access Enhancements:PRIOR TO COMMENCEMENT OF OPERATIONS,
Poseidon shall cause to be dedicated,in accordance with the City of Carlsbad's Precise
Development Plan PDP 00-02,the below-described parcels of land.The dedications shall be
in the form of easements,title transfers,and/or deed restrictions,whose purpose is to further
Coastal Act goals of maximizing public access and recreational opportunities along the coast
in the South Carlsbad Coastal Resource Redevelopment Area and maintaining,restoring andenhancingmarineresources.The four sites are:
•Fishing Beach:public access and parking easement in favor of the City of Carlsbad
covering approximately 2.4 acres of land along the west shore of Agua HediondaLagoon.
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Final Adopted Findings -Coastal Development Permit Application E-06-013
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 11 of 106
•Bluff Area:approximately 10.2 acres of land on the west side of Carlsbad Boulevard
opposite the power plant,which shall be dedicated in fee title to the City of Carlsbad for
recreational and coastal access uses.
•Hubbs Site:approximately 2 acres of land along the north shore of Agua Hedionda
Lagoon to be used for a fish hatchery,aquatic research,and public access,which shall be
deed restricted to uses such as fish hatchery,aquatic research,and trails.
•South Power Plant Parking Area:an access easement over approximately 0.3 acres of
land on the east side of Carlsbad Boulevard near the south entrance of the power plant
that shall be dedicated to the City of Carlsbad for public parking.
12)Dredging:This permit does not authorize dredging that may be needed to maintain flows to
the desalination facility's intake structure.The Permittee shall submit separate coastal
development permit applications for proposed dredging operations.
13)Visnal Resources:PRIOR TO COMMENCEMENT OF CONSTRUCTION,the Permittee
shall submit to the Executive Director for review and approval a Screening Plan.
Desalination plant exterior mechanical equipment and facilities,including tanks,heating,air
conditioning,refrigeration equipment,plumbing lines,duct work and transformers,shall be
screened from view on all sides visible to the public.The design and material used for
screening shall be architecturally compatible with the bnilding.
14)Lighting Plan:PRIOR TO COMMENCEMENT OF CONSTRUCTION,the Permittee shall
submit a Lighting Plan to the Executive Director for review and approval.Exterior lighting
f01'the desalination facilities shall serve the purpose of operations,security and safety only.
The Lighting Plan shall demonstrate that project lighting is shielded from surrounding areas,
and that only the minimum amount of lighting required for safety purposes is provided to
avoid adverse effects on surrounding areas.In general,lighting fixtures shall be shielded
downward and away from the ocean,Lagoon and adjacent properties.Construction of the
desalination plant and related facilities and improvements shall be in conformance with theapprovedplan.
15)Constrnction Plan:PRIOR TO COMMENCEMENT OF CONSTRUCTION,the Permittee
shall submit to the Executive Director f01'review and approval a Construction Plan.The
Construction Plan shall identify the specific location of all construction areas,all staging
areas,and all construction access corridors in site plan view in the coastal zone.The Plan
shall identify any expected disruptions to public access to the shoreline and shall include
measures to avoid,minimize,01'mitigate for those disruptions.
The Plan shall also identify the type and location of erosion control/water quality best
management practices that will be implemented during construction to protect coastal waterquality,including the following:
•Silt fences,or equivalent apparatus,shall be installed at the perimeter of the construction
areas to prevent construction-related runoff andlor sediment from entering the dunesand/or the Pacific Ocean.
o Grading and land alteration outside of the approved construction zone is prohibited.
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Approved August 6,2008-Page 12 of 106
•Equipment washing,refueling,and/or servicing shall not take place on the beach or sandy
dune area.All construction equipment shall be inspected and maintained at an off-site
location to prevent leaks and spills of hazardous materials at the proj ect site.
•The construction site shall maintain good construction housekeeping controls and
procedures (e.g.,clean up all leaks,drips,and other spills immediately;keep materials
covered and out ofthe rain (including covering exposed piles of soil and wastes);dispose
of all wastes properly,place trash receptacles on site for that purpose,and cover open
trash receptacles during wet weather;remove all construction debris from the beach).
•All erosion and sediment controls shall be in place prior to the commencement of
construction as well as at the end of each workday.A copy of the approved Construction
Plan shall be kept at the construction job site at all times and all persons involved with
the construction shall be briefed on its content and meaning prior to commencement of
construction.The Permittee shall notify the Executive Director at least three working
days in advance of commencement of construction,and immediately upon completion of
construction.The Permittee shall undertake construction in accordance with the approved
Construction Plan.Any proposed changes to the approved Construction Plan shall be
reported to the Executive Director.No material changes to the approved Construction
Plan shall occur without a Commission amendment to this coastal development permit
unless the Executive Director determines that no amendment is necessary.
16)Storm Water Pollution Preventiou Plan:PRIOR TO COMMENCEMENT OF
CONSTRUCTION,the Permittee shall submit for Executive Director review and approval a
Storm Water Pollutiou Prevention Plan (SWPPP).:At minimum the SWPPP shall include the
following Best Management Practices (BMPs):
•Gravel bags,silt fences,etc.shall be placed along the edge of all work areas as
determined appropriate by the City'S construction inspector in order to contain
particulates prior to contact with receiving waters.
•All concrete washing and spoils dumping will occur in a designated location.
•Construction stockpiles will be covered in order to prevent blow-off or runoff during
weather events.
•A pollution control education plan developed by the General Contractor and implemented
throughout all phases of development and construction.
•Severe weather event erosion control materials and devices shall be stored onsite for use
as needed.
17)Water Quality Techuical Report:PRIOR TO COMMENCEMENT OF
CONSTRUCTION,the Permittee shall submit for Executive Director review and approval a
Water Quality Technical Report as specified in the City of Carlsbad Standard Urban
Stormwater Mitigation Plan (April 2003)(Carlsbad SUSMP)for the post construction
desalination facility,prepared by a licensed Civil Engineer,which shall include plans,
descriptions and supporting calculations.The Storm Water Management Plan shall
incorporate all feasible Best Management Practices (BMPs)designed to reduce,to the
maximum extent practicable,the volume,velocity and pollutant load of stormwater leaving
the developed areas of the site.The plan shall include the following criteria:
•Post-Development peak runoff rates and average volumes shall not exceed pre-
development conditions.
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Approved August 6,2008-Page 13 of 106
•Runofffrom all parking areas,turnouts,driveways and other impermeable surfaces (e.g.,
roofs)shall be collected and directed through a system of structural BMPs including
vegetated and/or gravel filter strips or other media filter devices or other equivalent
means.The filter elements shall be designed to 1)trap sediment,particulates and other
solids and 2)remove or mitigate contaminants through infiltration andlor biological
uptake.The drainage system shall also be designed to convey runoff in excess of this
standard from the developed site in a non-erosive manner.
e Provisions for maintaining the drainage and filtration systems so that they are functional
throughout the life of the approved development.Such maintenance shall include the
following:1)the drainage and filtration system shall be inspected,cleaned and repaired
prior to the onset of the storm season,but not later than September 30th each year and 2)
should any of the project's surface or subsurface drainage/filtration structures fail or
result in increased erosion,the applicant/landowner or successor-in-interest shall be
responsible for any necessary repairs to the drainage/filtration system and restoration of
the eroded area.
e A drainage system approved by the City Engineer to ensure that runoff resulting from 10-
year frequency storms of 6 hours and 24 hours duration under developed conditions,are
equal to or less than the runoff from a storm of the same frequency and duration under
existing developed conditions.Both 6-hour and 24-hour storm durations shall be
analyzed to determine the detention basin capacities necessary to accomplish the desired
results.
The Permittee shall implement and maintain the Plan for the life ofthe project.
014053
Final Adopted Findings ~Coastal Development Permit Application E-06-013
Poseidon Resources (Channelside)LLC
Approved August 6,2008~Page 14 of 106
4.0 FINDINGS AND DECLARATIONS
4.1 PROJECT PURPOSE AND DESCRIPTION
The proposed project is a seawater desalination facility proposed by Poseidon Resources
(Channelside)LLC (referred to herein as Poseidon).Poseidon's proposed facility would use
about 304 million gallons per day (MGD)of water drawn from Agua Hedionda Lagoon (the
Lagoon)in Carlsbad,San Diego County (see Exhibit 1),to produce 50 MGD of potable water for
local and regional use.'At 50 MGD,Poseidon's proposed project would be the largest seawater
desalination facility in the United States and in the Western Hemisphere.The proposed
development also includes pipelines and pump stations necessary to deliver the produced water
to a water reservoir in Carlsbad.The project's objectives include providing a local and reliable
source of water,reducing local dependence on imported water,and providing water at or below
the cost of imported water supplies.Poseidon has announced agreements to sell various amounts
of its desalinated water to water districts in San Diego County for up to about 90 years.
Project Setting:The project would be located at the Encina power plant in Carlsbad on a site
leased from the power plant owner,Cabrillo Power II,LLC (Cabrillo)(see Exhibit 2).During
the past half-century,the power plant used water from Agua Hedionda Lagoon to cool its
generating units.Poseidon's project as initially proposed in 1999 would have used some of the
hundreds of millions of gallons of estuary water the power plant drew in from Agua Hedionda
Lagoon to cool its generating units;however,Cabrillo recently proposed replacing the existing
power plant with a new plant to be located elsewhere on the site,and which Cabrillo expects will
be operating by 2010.'This new power plant would use dry cooling instead of using water from
Agua Hedionda.Cabrillo proposes to keep two of the five units in the existing plant available
for a few years beyond 2010 to provide additional grid reliability if needed.Although they
represent about two-thirds of the plant's generating capacity,'Cabrillo anticipates that these two
units would operate only a few weeks per year.The power plant's generating capacity is subject
to "Reliability Must Run"status,as contracted by the Califomia Independent System Operator
(Cal-ISO),which is meant to provide electrical grid reliability.At the October 2007 State Lands
Commission meeting,a Cabrillo representative testified that the units would remain in service
indefinitely and that Cal-ISO would determine when they are no longer needed for grid stability.
Cabrillo's announced change in the power plant's operations represents a change in how
Poseidon's facility was originally proposed.Poseidon's project would no longer function as a
co-located desalination facility ~that is,it would not re-use the estoarine water already used by
the power plant ~but instead would be a new "stand-alone"facility,drawing in waterjust for
desalination.The project's EIR prepared by the City of Carlsbad analyzed the project's impacts
a 'The project would use about 100 MGD inthe desalination process to create about 50 MGD of potable water and
about 50 MGD of a high salinity discharge.The total amount would vary based on project operations -e.g.,during
maintenance,periods of start-up,etc.-and could be as high as 129 MGD.To reduce the salinity concentrations of
its discharge,Poseidon would pump an additional 200 MGD into its intake and discharge system for dilution.This
is discussed in more detail in Section 2.5.1 of these Findings.
'On September 14,2007,Cabrillo submitted to the Califomia Energy Commission its Application For Certification
to start the review process needed to replace the existing power plant (Application #07-AFC-06).
5 Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.B,atp.2.
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Approved August 6,2008-Page 15 of 106
as both a co-located and a stand-alone facility.The EIR determined that as a stand-alone facility,
the project would cause less entrainment and impingement losses than the existing power plant's
operations and would have no significant impacts.'Poseidon's lease with the power plant owner
would allow it to operate the power plant's pumps when the power plant is shut down and would
allow the proposed desalination facility to operate for up to 90 years.These Findings evaluate
Poseidon's proposal as a "stand-alone"facility and the analyses herein are based on the coastal
resource impacts that would result from the "stand-alone"project.
A key environmental feature of the proposed project site is Agua Hedionda Lagoon.Several
sections of these Findings address project-related impacts to the Lagoon's water quality and
habitat values and the measures imposed to mitigate those impacts and ensure conformity to the
Coastal Act.The description below provides a brief introduction to the Lagoon and subsequent
sections provide additional relevant details.
Agua Hedionda Lagoon is a coastal estuary that extends about 1.7 miles inland and is up to about
one-half mile wide.It is at the downstream end of Agua Hedionda Creek,which has a watershed
of about 29 square miles.The Lagoon has been altered substantially over the past century or so.
Ithas been bridged several times -in the late 1800s for a railroad,in 1919 for the Pacific Coast
Highway,and in 1967 for Interstate 5.It now consists ofthree main "lobes"-an Outer Basin of
about 66 acres,a Middle Basin of about 23 acres,and an Inner Basin of about 167 acres.The
Lagoon's mouth is about 3,000 feet north of the power plant,and is maintained by two jetties
extending a few hundred feet into the ocean.The jetties are on State tidelands and are leased by
UlGState Lands Commission to Cabrillo.The power plant also has a State Lands lease for use of
its discharge structure,which crosses a state beach aud state tidelands to the south of the Lagoon
mouth (see Exhibit 3).
Before the mid-1950s,Agua Hedionda Lagoon was a shallow coastal wetland that was
periodically shut off from tidal flows (the name is Spanish for "stinky water").In the mid-1950s,
Southern California Edison purchased much of the Lagoon and dredged about four million cubic
yards of material to create an intake channel for the power plant's cooling water system.'Edison
sold the power plant in 1999.The power plant has operated since the mid 1950s using up to
about 850 million gallons per day of water from the estuary,although its water use has declined
significantly in recent years.Ithas required regular dredging during that time to maintain the
power plant's intake channel,with at least 25 separate dredging events occurring during the
power plant's history.The estuary is also used for other purposes,including aquaculture (sea
bass net pens,and a mussel farm),recreation (primarily boating and beach use),and ocean
research (Hubbs-Seaworld Research Institute).Cabrillo,the current owner,also allows use of
the Lagoon for various scientific research and monitoring activities.A study submitted by Dr.
Scott Jenkins on September 28,2007 on behalf of Poseidon indicates that ifthe Lagoon is not
regularly dredged,it would close in about five to seven years and slowly revert to its pre-
dredging condition,which consisted largely of shallow marshy channels with hyper-saline water.
In that condition,many of the Lagoon's current uses,such as recreation,fishing,and aquaculture
6 See also Poseidon Resources Corporation,Response to Sta/fReport,November 9,2007,Exh.A atpp.9-11;seeProjectEIRSection4.3.
7 In 1999,Southern California Edison sold most of the power plant property and Agua Hedionda Lagoon to Cabrillo,
although it continues to own land along the lagoon's shoreline.
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would be eliminated or reduced."Past dredging of the Lagoon has also provided sand to
maintain Carlsbad State Beach,grunion spawning habitat,and a popular surfing break.
The state's water quality standards identify Agua Hedionda Lagoon's listed beneficial uses as the
power plant's industrial use,recreational uses,aquaculture,and habitat.The estuary is also listed
as impaired,pursuant to Section 303(d)of the federal Clean Water Act,due to excess
sedimentation and coliform bacteria.Additionally,the Carlsbad Watershed Management Plan'
identifies the Lagoon as being further impaired due to habitat fragmentation and the presence of
invasive species.During the past several years,the Lagoon experienced an outbreak of the
highly invasive Caulerpa taxifolia,but in 2006 local and state efforts to eradicate Caulerpa from
the Lagoon were deemed successful.Monitoring for Caulerpa continues,however.
Despite these impacts and the degraded water quality,Agua Hedionda continues to provide
significant habitat values.The California Department ofFish and Game (DFG)includes it in a
list of 19 "high-priority"coastal wetlands and DFG manages a Marine Ecological Reserve within
the Lagoon that provides habitat for a number of listed sensitive species.These features are
described in more detail in Section 4.5.1 of these Findings.
Need for the Project:The project would provide an important and much-needed source of
potable water for Southern California.Since Poseidon filed its Coastal Development Permit
("CDP")application,the water supply situation in the State of California -already bad -has
substantially deteriorated.Poseidon has previously provided the Connnission with newspaper
reports that recognize a loorning water crisis and clearly identify the need for California,and
more specifically San Diego County,to lessen its demand on the State Water Project and
Colorado River watersheds,which were critically dry in 2007.10
There is a convergence of warnings that California's water supply will continue to shrink.
Climate change brought on by global warming could disrupt weather patterns,leaving the state
vulnerable to punishing drought.There is a possibility that 2007 will be the beginaing of a
multi-year drought.If2008 offers hydrologic conditions similar to those this year,some
significant sources of water for Southern California may not be available.The most recent
example of the deteriorating supply situation occurred in May 2007,when state water officials
temporarily turned off the pumps that send water to Southern California from the Sacramento-
San Joaquin Delta to protect the endangered smelt and salmon."
8 Comparative Analysis a/Intake Flow Rate on Sand Influx Rates at Agua Hedionda Lagoon:Low Flow vs.No-Flow
Alternatives,Dr.Scott Jenkins,September 28,2007.
'The Carlsbad Watershed Plan was published in2002 pursuant to an NPDES permit issued in 2001 by the State
Water Resources Control Board to the cities of San Diego County.The permit requires participating cities to
develop a cooperative and coordinated watershed approach to address water quality issues.The Plan's goals include
the following:"Protect coastal and wetland resources:Extra credit should be given to "Action Items"that serve to
protect the wetland resources,sensitive species and fragile ecosystems associated with coastal lagoons and riverine
resources.These resources are not only sensitive and highly valued,but they support a great diversity of species and
tend to be "sink holes"where water quality problems become much greater."
10 See Poseidon Resources .Corporation,Response to Staff Report,November 9,2007,Exh.A at p.5.
II See id.
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In the summer of2007,the Metropolitan Water District put San Diego County Agriculture on
notice that it will cut agricultural water deliveries by 30 percent beginning January 1,2008.
With $1.4 billion in annual revenue,San Diego County is the twelfth largest agricultural
economy among all counties in the nation,and it could be severely harmed by this reduction in
water supply.The Metropolitan Water District also has warned municipal and industrial water
users to anticipate water rationing if2008 ~like preceding years ~is a dry year.Rationing of
municipal and industrial supplies would be highly disruptive to San Diego's $150 billion armualeconomy.12 .
Moreover,State,regional,and local water plans all have confirmed that the immediate and
pressing water needs are so great,that they cannot be met by conservation and recycled water
alone and that a substantial investmeut in seawater desalinatiou,including the project,is
required.The project's capacity of 56,000 AFY of uew water supply for the San Diego region is
about ten percent of 500,000 AFY of desalinated water ideutified by the California Department
of Water Resources as needed by 2030,as stated in its 2006 Water Plan Update.This Update
lists the project as a potential source of desalinated water.The Metropolitan Water District of .
Southern California's Integrated Water Resources Plan identified a need for 150,000 AFY of
seawater desalination (including 56,000 AFY from the Carlsbad project)to ensure regional water
supply reliability.In addition,the San Diego County Water Authority updated its 2005 Urban
Water Management Plan in April 2007 specifically to reaffirm the need for 56,000 AFY of
seawater desalination from the project by 2011.The project is a central componeut of state,
regional and local water supply planning to meet already-identified demand."Recognizing the
importance of the project,eight water agencies ~Carlsbad Municipal Water District,Valley
Center Municipal Water District,Rincon del Diablo Municipal Water District,Sweetwater
Authority,Rainbow Municipal Water District,Santa Fe Irrigation District,Vallecitos Water
District,and Olivenhain Municipal Water District ~have already contracted to purchase 100%of
the project's capacity,and have identified the project's water supply as a component of theirwaterplans."
13 See id.at p.6.
14 See id.atp.6-7.
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4.2 BACKGROUND
Seawater Desalination's Role in California's Water Portfolio
Both California and the Coastal Commission have recognized that environmentally and
econornically appropriate seawater desalination is an acceptable method for providing part of the
state's water supply.There are currently about a dozen facilities operating along the California
coast,mostly providing relatively small amounts of water to local users or to certain industrial
facilities.During the past few years there has been increased interest in seawater desalination,
due largely to recent advances in desalination technology,concerns about increasing the
reliability over local water supplies,and interest in reducing dependence on imported supplies.
There are now about twenty proposals for new facilities to be built along the coast to serve bothlocalandregionalwaterneeds.
The 2005 Update of California's State Water Plan expects seawater desalination to provide about
200,000 acre-feet of water by 2030.Both the Metropolitan Water District of Southern California
(MWD)and the San Diego County Water Authority (SDCWA,or Authority)have included
seawater desalination as part of their long-term water supply portfolio.The Authority has
established a goal that seawater desalination provide 89,600 acre-feet of its water supply by
2030.E';en the Sonthern Nevada Water Authority has identified seawater desalination as part of
its long-term water supply,with its idea being that water from the Colorado River would be used
in Nevada in exchange for the Nevada water users paying for desalinated water to be producedalongtheCaliforniacoast.
Several recent initiatives in California illustrate this increased interest:
•State Desallnation Task Force:In2003,pursuant to AB 27 I7,the California Department of
Water Resources convened an interagency task force"to report to the Legislature on
potential opportunities and impediments for using seawater and brackish water desalination,
and to examine what role,if any,the state should play in furthering the use of desalination
technology.Based on information provided during a series of workshops around the state,
the task force developed recommendations and guidelines for desalination projects proposed
in California.Some key task force findings applicable to this proposed project include:
•Desalination canprovide a reliable supply during California's periodic droughts.
•Many communities and water districts are interested in developing desalination facilities
as a local,reliable source of water to reduce their dependence on imported water and/or
15 Task Force members included representatives from:State agencies -California Department of Water Resources,
Coastal Commission,State Water Resources Control Board,Central Coastal Regional Water Quality Control Board,
Energy Commission,Department of Health Services,Resources Agency,Califomia Environmental Protection
Agency,Department of Food and Agriculture,CALFED,Bay Conservation and Development Commission,
Department of Fish and Game,University of California;federal agencies -Bureau cfReclamation,Monterey
National Marine Sanctuary;local governments and water agencies -Monterey County Health Department,City of
Long Beach Water Department,League of Cities,County Supervisor Association of California,Central Basin and
West Basin Municipal Water Districts,Marin Municipal Water District,Inland Empire Utilities Agency;and interest
groups -California Building Industry Association,Surfrider,American Membrane Technology Association,
National Water Research Institute,Clean Water Action and Clean Water Fund.
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to meet existing or projected demand.Some communities see desalination as a way to
reduce their diversions from rivers and streams,thus contributing to ecosystemrestoration.
•Technologically,desalination is aproven,effective mechanism for providing a new
source of water.A variety of desalination technologies have been applied in many
locations throughout the world.
•Economically and environmentally acceptable desalination should be considered aspart
of a balanced water portfolio to help meet California's existing andfuture water supplyandenvironmentalneeds.
•While they vary on a site-specific level,potential impediments to seawater desalination
include the environmental impacts associated with thefeedwater intake and
brine/concentrate disposal.As is the case with many other water management strategies,
otherpotential issues include cost,siting and growth-inducement.
~Withproper design and location of outfalls,brine/concentrate disposal may not be a
major impediment to desalination.
e Seawater desalination is more energy intensive,per acre-foot,than brackisli water
desalination or water recycling.For energy comparison purposes,current desalination
systems using reverse osmosis technology require about 30percent more energy than
existing interbasin supply systems currently delivering water to parts of Southern
California.Efforts including those supported by the Bureau of Reclamation,US
Desalination Coalition,and the National Water Research Institute are underway to
increase the energy efficiency of desalination through improved membranes,dual pass
processes,and additional energy recovery systems.
•Advantages to co-locating desalination facilities with coastal power plants using once-
through cooling may include:compatible land use,use of the existing infrastructure for
feedwater intake and brine discharge,location security,use of the warmed power plant
cooling water as thefeedwater for the desalination facility,reduction of the power plant
discharge thermal plume and the potential topurchase power from the hostpower plantatpricesbelowretailrates.
•Co-locating a desalination facility with a coastal power plant may provide ajustification
for the continued use of once-through cooling technology.Once through cooling
technology has well-documented environmental impacts,including impacts on marineorganisms.
•The appropriate State regulatory agencies have indicated that the siting of a new
desalination facility,which utilizes any new or existing open water feedwater intakes,will
require a current assessment of entrainment and impingement impacts as part of the
environmental review and permitting process.
•Various technologies exist that may avoid,reduce or minimize the impacts offeedwaterintake.
o Drawingfeedwater from beach wells is one way to avoid the ecological impacts of
entrainment and impingement associated with open water intakes;however,the
capacity of each well is limited and is subject to local hydrogeologic conditions.
o Low velocity intake systems,marine fish screens,sub-floor intakes and appropriate
intakepipe design and location are methods that may reduce or minimize impacts of
entrainment and impingement associated with open water intakes.
•Water,including ocean and estuarine water,is a public resource,subject to thepublic
trust doctrine,and should beprotected and managed for thepublic good.
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o The extent to which private companies are involved in the ownership and operation of
proposed desalination plants varies widely,from completely private projects that may be
regulated by the State Public Utilities Commission,topublic-private partnerships,to
projects that would be wholly owned,operated and controlled by public entities.The
involvement of private companies in the ownership and/or operation of a desalination
plant raises unique issues.
o There are implications associated with the range ofpublic-private possibilities for
ownership and operation of desalination facilities.Local government has the
responsibility to make the details of these arrangements available to the public.
o Recently adopted international trade agreements and international trade agreements
currently being negotiated may affect howfederal,State and local agencies adopt or
apply regulations concerning activities ofpublic agencies or private entities with
multinational ties.
•Desalination proposals are subject to existing regulatory andpermitting processes to
ensure environmental protection and public health.
e Environmental justice considerations include the siting of desalination facilities,
determining who accrues the costs and benefits of desalination and who has the
opportunity to use higher quality (desalinated)water,and the possible impacts of
replacing low-cost with high-cost water.
•Growth inducing impacts of any new water supply project,including desalination,must
be evaluated on a case-by-case basis through existing environmental review andregulatoryprocesses.
•Each desalination project involves different environmental characteristics,other water
supply alternatives,proposed plant ownership/operation arrangements,demographics,
economics,community values andplanning guidelines.
•Coastal Commission Report -Seawater Desalination and the California Coastal Act:In
2004,Commission staff published a report describing many of the issues associated with
seawater desalination along the California coast and discussing how proposed desalination
facilities could conform to Coastal Act provisions ..The report provides general information
about desalination,describes the status of desalination in California,identifies key Coastal
Act policies most likely to apply to proposed desalination facilities,and identifies much of
the information likely to be required during review of a coastal development permit
application for those facilities.
Its key conclusions recognize that each facility will require case-by-case review due to the
unique 'operating characteristics and environmental settings,that Coastal Act policies do not
suggest overall support of,or opposition to,desalination,that there may be differences in
applying those policies to public or private proposals,that the most significant potential
impacts to address are likely entrainment of marine organisms and growth-inducement,and
that proposed co-located facilities raise unique issues regarding Coastal Act conformity,
o Proposition 50 Grants:As part of Proposition 50,which Californians approved in 2002 to
provide funding for a munber of water-related projects around the state,the state Department
of Water Resources distributed about $50 million to public agencies for various types of
desalination research projects.Several of the Commission's past decisions have been in
support of these projects -for example,the Conunission has approved projects conducted by
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the City of Long Beach Water Department to conduct pilot tests and subsurface intake
methods and projects by the Metropolitan Water District of Orange County for its innovative
'and successful research on using slant-drilled wells for subsurface desalination intakes.
There are also a number of initiatives at local or regional levels to support or research the
potential for seawater desalination to provide part of an area's water supply.For example,
Southern California's Metropolitan Water District (MWD),which represents most water
agencies in coastal Southern California,established a program offering to its member agencies
subsidies of up to $250 for each acre-foot of desalinated seawater produced.The agencies
eligible for this subsidy include the San Diego County Water Authority,Long Beach Water
Department,Los Angeles Department of Water and Power,West Basin Municipal Water
District,and the Municipal Water District of Orange County.The MWD has also provided
about $250,000 to its member agencies for desalination research
Association with a power pJant once-through cooling water intake system
Poseidon proposes to use the existing Encina power plant intake and discharge.Originally,
Poseidon planned to reuse some of the estuary water the power plant drew in from Agua
Hedionda Lagoon to cool its generating units.However,as discussed in Section 4.1 above,
Cabrillo has applied to cease operations of its existing facility and to build a new power plant.In
September 2007,Cabrillo applied to the California Energy Commission to bnild by 2010 anew,
smaller,dry-cooled power plant on site that would not use water from Agua Hedionda.
Cabrillo's proposal includes removing three of the existing plant's five generating units and
operating the remaining two units only part time (expected to be up to a few weeks per year)for
several more years until replacement power becomes available.The two remaining units would
represent up to about 528 MGD of pumping capacity ..As noted previously,the power plant is
subject to "Reliability Must Run"contracts with Cal-ISO.At the October 2007 State Lands
Commission hearing,a Cabrillo representative stated that the generating units will be available
for service indefinitely and that Cal-ISO would ultimately determine when they are no longer
needed for grid reliability.Once the power plant's operations cease,Poseidon would continue to
use the existing power plant intake and discharge structure for its water supply.The proposed
proj ect was the subject of CEQA review conducted by the City of Carlsbad.The Final EIR,
certified by the City on June 14,2006,addressed the potential stand-alone operation of the
facility and concluded that such a facility would not result in any significant adverse .
environmental impacts.16 In March 2007,Poseidon provided Commission staff with resnlts of its
entrainment study showing impacts roughly equal to the loss of productivity from 37 acres of
wetlands and open water in Agua Hedionda Lagoon."Poseidon also provided in December
2006 and May 2007 technical papers showing the amount of Lagoon sedimentation caused byuseoftheintake.\8
16 See Project EIR Section 4.3,Appendix E.
17 See Carlsbad Seawater Desalination Project Revised Flow,Entrainment,and Impingement Minimization Plan,
June 1,2007,Attachment 4,Tenera Environmental,Inc.,Assessment of Potential Impingement and Entrainment
Attributed to Desalination Plant Operations and Associated Area of Production Forgone,May 2007,at p.4.
18 See Carlsbad Seawater Desalination Project Revised Flow,Entrainment,and impingement Minimization Plan,
June I,2007:Attachment 6,Scott A.Jenkins and Joseph Wasyl,Coastal Process Effects of Reduced Intake Flows at
Agua Hedionda Lagoon,December 13,2006,Attachment 8,Steve Le Page,Potential Adverse Changes in Agua
Hedionda Lagoon Resulting From Abandonment of the Lagoon Intake,May 18,2007.
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As a stand-alone facility,Poseidon would operate the power plant's pumps to take in
approximately 304 MGD of estuarine water.The project would use about 100 MGD of that
water in the desalination process to create about 50 MGD of potable water and about 50 MGD of
a high salinity discharge.The facility's NPDES permit issued to Poseidon by the Regional
Board requires that Poseidon's discharge not exceed a maximum salinity level of 40.1 parts per
thousand.Poseidon would use the additiona1200 MGD of estuarine water it pumps in to reduce
its discharge's salinity concentration to levels established in the NPDES permit.
Some other reverse osmosis desalination facilities can produce a particular amount of potable
water by using about twice that amount of seawater (i.e.,a 2:1ratio),but because of the approach
used in this project to dilute Poseidon's discharge and due to the Regional Board's requirements,
this project would require a 6:1 ratio.This is discussed in more detail in Section 4.5.1 of these
Findings.
Poseidon's preferred operating scenario,which is the basis of the analyses herein,is to use the
power plant's Unit 4 pumps to provide the necessary 304 MGD.19
A number of regulatory,policy,and legal challenges have been raised with respect to once-
through cooling.Their relevance to the project is not yet certain,in part because while the
project will use the existing once-through cooling system,it will not be using that system for
once-through cooling.Issues that may be relevant include:
e Entrainment/impingement studies along California's coast:California's coastal power plants
have been studied over the past few years to determine what effects their use of seawater for
cooling has on the marine environment."These power plants can use from several hundred
million gallons per day to over two billion gallons per day of water from the nearshore ocean,
open embayments,and enclosed estuaries.Each ofthe studies showed these cooling water
intakes cause significant adverse effects to the marine environment that in some cases
extended up to dozens of miles along the coast or covered up to hundreds of acres of
nearshore waters.
•California Ocean Protection Council's Once-Through Cooling Policy:illresponse to these
studies and in recognition of the degraded quality of California's ocean environment,the
California Ocean Protection Council last year adopted a policy to reduce the adverse effects
19 The power plant has five separate generating units,each with two cooling water pumps and one ortwo service
pumps.Each unit's pumps have a different capacity,from about 73 MGD to 326 MGD.Poseidon's preferred
scenario would be to operate the Unit 4 pumps,which would provide the required 304 MGD rate.The Regional
Board determined that 304 MGD would be necessary to adequately dilute Poseidon's 50 MGD high salinity
discharge..On June I,2007,Poseidon submitted to the Board a Revised Flaw,Entrainment and Impingement
Minimization Plan that the Board is currently reviewing.The draft Plan states that operating the Unit 4 pumps
would result in a discharge of304 MGD with a salinity level of 40.1 parts per thousand,which is the limit
established in the facility's conditional NPDES permit.This operating scenario serves as the basis of the various
analyses in these Findings related to entrainment,impingement,greenhouse gas emissions,and others.
20 Since 1998,power plant entrainment/impingement studies done in California include South Bay (in San Diego),
Huntington Beach (Orange County),DiabloCauyon and Morro Bay (San Luis Obispo County),and Moss Landing(Monterey County).
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of once-through cooling systems.'!The resolution recognizes that such systems cause
significant adverse impacts to the marine ecosystem.The Council further directed its staff to
complete by December 2007 a study of alternative cooling methods that would reduce
impacts,urged the State Water Resources Control Board to implement the most protective
controls to reduce entrainment and impingement impacts by 90-95%,and established an
interagency coordinating effortto address once-through cooling issues."
•Changes in regulatory /legal status of seawater intake systems:InJanuary 2007,the 2nd
Circuit Court of Appeals determined that U.S.EPA rules for regulating existing power plant
cooling water intakes did not conform to Clean Water Act requirements (Riverkeeper,Inc.,v.
United States EPA,475 F.3d 83,97 (2d Cir.2007)).Inresponse,the U.S.EPA rescinded its
.proposed requirements and directed state water quality agencies to use Best Professional
Judgment in determining applicable NPDES requirements for once-through cooling systems.
In conjunction with that ruling,the State Water Resources Control Board is developing a
Statewide Policy for Once-Through Cooling"that will incorporate the Riverkeeper II
decision,which was a decision involving the federal Clean Water Act,but will also be based
primarily on a state requirement that regulates more than just cooling water structures.
Porter-Cologne Act Section 13l42.5(b)24 states:
"For each new or expanded coastal powerplant or other industrial installation using
seawaterfor 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 allforms of marine life."
Although Poseidon's use of the power plant intake structure would not be for cooling
purposes,it would be subject to this Porter-Cologne Act provision and would cause the same
type of entrainment and impingement impacts both the Clean Water Act and the Porter-
Cologne-Act require be avoided and minimized.At this time,the Regional Water Quality
Control Board is processing a plan to regulate Poseidon's use of the power plant intake
structure for desalination purposes.This plan is described in more detail in Section 4.5.1 of
these Findings.In addition,the Commission retains full authority to ensure the project's
consistency with the Coastal Act's marine resources protection policies through the
imposition of Special Condition 8,which provides that Poseidon shall submit a Marine Life
Mitigation Plan for Commission review and approval.
21 See Resolution of the California Ocean Protection Council Regarding the Use of Once-through Cooling
Technologies in Coastal Waters,April 20,2006.
22 Coastal Commission staff is active in the interagency coordinating group.
23 In July 2006,the Board initiated CEQA review for the proposed policy and is expected to issue a draft policysometimeinearly2008,with a final policy later in 2008.
24 Pursuant to Coastal Act Section 30412(a),the Commission shares responsibilities with the State Board in
implementing this section of the Porter-Cologne Act.
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Without the mitigation measures in the Special Conditions contained herein,the proposed use of
the existing intake and discharge facilities would be inconsistent with applicable Coastal Act
policies.As mitigated aod conditioned,the Commission finds the project will be consistent with
the Coastal Act because all feasible mitigation measures will be adopted to reduce impacts to
marine resources and Special Condition 8 aod Poseidon's mitigation package will ensure that
marine resources are maintained aod enhaoced to the maximum extent feasible.
Public use of water
Poseidon has announced purchase agreements totaling 57,900 acre-feet of water per year with
the following water agencies:
•Carlsbad Municipal Water Department:22,000 acre-feet per year,or about 20 MGD
e Olivenhain Municipal Water District:5,000 acre-feet per year,or about 4.5 MGD
•Rainbow Municipal Water District:7500 acre-feet per year,or about 6.5 MGD
•Rincon Del Diablo Municipal Water District:4,000 acre-feet per year,or about 3.5 MGD
•Sante Fe Irrigation District:2000 acre-feet per year,or about 1.8 MGD
•Sweetwater Authority:2400 acre-feet per year,or about 2 MGD
e Vallecitos Water District:7500 acre-feet per year,or about 6.5 MGD
•Valley Center Municipal Water District:7,500 acre-feet per year,or about 6.5 MGD
Poseidon's stated objective is to provide water to purchasers at or below the price they would
pay for imported water,aod its purchase agreements with these agencies are based on that
objective.These agencies,all of which are members of the San Diego County Water Authority,
currently purchase imported water from the Authority at rates ranging from about $250 to $700
per acre-foot,which are below the costs aoticipated for water from the Poseidon project.Cost
considerations are described in more detail later in this section.
Of the purchasers above,several would not be able to receive water directly from Poseidon's
facility,as they are some distance from Carlsbad -for example,the Sweetwater Authority is
about twenty miles away at the southern end of San Diego Bay aod both Riocon and Valley
Center are several miles iuland.Instead,Poseidon's intent is to allow some of the agencies to
trade water it has purchased from Poseidon to agencies closer to the facility in exchange for
those nearby agencies'rights to imported water.
The project as cnrrently proposed would allow for only limited exchanges,since it does not
include several elements of public infrastructure needed to distribute the water beyond adjacent
communities.Poseidon's proposal includes pipelines aod pumps necessary to transport its
produced water to Carlsbad's Maerkle Reservoir,which serves parts of Carlsbad,and its other
pipelines would serve parts of some other neighboring communities.Poseidon's proposal
includes several pipeline route alternatives,for the most part outside the coastal zone,that would
allow it to provide water to portions of the cities of Carlsbad,Oceanside,Vista,Sau Marcos,
Escondido,Encinitas,aod Solana Beach.The project EIR examined facilities to connect with
these local water delivery systems.Getting water from this reservoir to the regional distribution
system where it would be usable or tradable by other water agencies would require an additional
pnmp station and pipeline between the reservoir aod elements of the regional system located
.further inlaod and several hundred feet higher in elevation.Poseidon does not currently plao to
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connect the desalination facility to the regional water distribution system.This new pump station
and pipeline are included in the SDCW A's 2007 Draft Integrated WaterResource Management
Plan,which describes the project as conveying desalinated water from Carlsbad to the regional
water distribution system.
Further,Maerkle Reservoir is currently designated by Carlsbad as its required emergency storage
reservoir -that is,water stored there is meant to provide the City with a 10-day emergency water
supply during a shutdown of the regional delivery system -and,as noted in the Water Purchase
Agreement between Poseidon and the Carlsbad Water Department,the City's need for water
from the regional system is likely to be significantly reduced after Poseidon is able to provide
water to the City at or below the cost of imported water,thereby freeing up capacity in the
reservoir for operational storage of desalinated water.
Expected Project Costs
The Commission does not directly regulate costs;however,the Coastal Act includes
consideration of project costs in an indirect but important way.Some Coastal Act provisions
require the Commission to determine whether certain adverse impacts of the proposed project are
mitigated to the extent feasible or whether there are feasible and less environmentally damaging
alternatives to aspects of a proposed project (see,for example,Coastal Act Sections 30212.5,
30230,30231,30233(a),and 30260).Coastal Act Section 30108 defines "feasible"as "capable
of being accomplished in a successful manner within a reasonable period oftime,taking into
account economic,environmental,social,and technological factors."Therefore,information
about proposed project costs may sometimes be necessary to fully evaluate what project changes
or mitigation measures may be economically feasible.The Commission includes the following
discussion of the project's estimated costs to assist in determining feasible mitigation measures
and alternatives for the project.
One of Poseidon's objectives and the basis of its purchase agreements is to provide water to
water districts at or below the costs of imported water."Those costs now range from about $250
to $700 per acre-foot for water districts in the San Diego area."Poseidon provided the
Conunission with a description of its expected costs,"which are currently higher than what local
"More precisely,Poseidon's Water Purchase Agreements describe the price as:"The lower of (i)the sum of (A)
$8611acre-foot [$0.70Im3
](the "Base Price"in 2004 dollars)and (B)a delivery charge for transportation of the
desalinated water to the Exchange Partner;and (ii)the sum (the "Avoided Cost")of (A)Buyer's cost of water
supplied by the SDCWA and (B)any subsidy received by Buyer from MWD or any other third party for the
purchase of water from the Project.To the extent the Base Price plus the delivery charge is less than the Avoided
Cost,the savings shall be shared equally between the Parties."
The "Avoided Case'method is equal to the sum of costs charged by the San Diego County Water Authority.
The "Base Price"method is tied to the Consumer Price Index and is based on the following formula:
Current Base Price ~(Base Priceilliti,,),(70%(CPI,I CPlrni",,)+(30%(EC;I ECrni.,'»)0 14065
26 The MWD,from whom SDCW A purchases most of its imported water,expects its imported water pnce to go up
from 4-6%per year for the next ten years.In the shorter term,SDCWA expects its costs to increase next year byabout10%.
27 Poseidon has provided the Commission with the following documents supporting its projections of expected costs:
Poseidon Resources Corporation,Response to California Coastal Commission's September 28 Request for
Additional Information,November 30,2006 pp.46-51;Poseidon Resources Corporation,Response to California
Final Adopted Findings -Coastal Development Permit Application E-06-013
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Approved August 6,2008-Page 26 of 106
water districts are paying for imported water.However,Poseidon stated at the Commission's
November 15,2007 hearing that it intends to operate at a loss for some unknown number of
years until the costs of imported water increase to match Poseidon's costs for constructing andoperatingthedesalinationfacility.
InJuly 2007,Poseidon provided the following figures for its expected project costs:
Total capital costs:
Annual gross revenues:
(based on 56,000 acre-feet per
year X -$950 per acre-foot)
Annual operations and
maintenance costs:
Debt service and taxes:
Anticipated net annual
revenues:
Total:
$300 million
$53 million
$30 million $535 per acre-foot
$375 per acre-foot
$36 per acre-foot
$21 million
$2 million
$946 per acre-foot
Commission staff believe,based on the analysis below,however,that the overall cost would
likely be somewhat higher and,in fact,for some components of the proposed project could only
verify higher costs.These higher costs,which would make Poseidon's water cost more than the
expected $950 per acre-foot,include those listed below.Poseidon states,however,that it has
taken all these potential costs into consideration in assessing the feasibility of its project."
•Overall trend of desalination costs:Over the past couple of decades,desalination costs have
declined significantly,due largely to advances in technology such as increased energy
efficiency,extended membrane and filter operating life,and other improvements.More
recently,however,the trend appears to have reversed,due in part to increased cost for energy
and materials.Of all significant sources of water,seawater desalination is the most energy
intensive and the most cost-sensitive to energy prices.In2004,Poseidon estimated its water
would cost $800 per acre-foot;its most recent estimate is $950 per acre-foot.Its overall
capital costs have increased from $270 million to about $300 million during the same period.
•Additional mitigation costs:As noted later in these Findings,several mitigation measures are
needed forthe proposed project to conform to various Coastal Act provisions.For example,
Poseidon stated it is considering purchasing "carbon offset"credits for its greenhouse gas
Coastal Commission's July 3 Request for Additional Information,July 162007,at pp.11-13;Poseidon ResourcesCorporation,Transmittal a/Intake Cost Estimates,October 17,2007.
28 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Ex.B,atp.7;Poseidon
Resources Corporation,Response to California Coastal Commission's July 3,2007 Request for Additional
Information,July 16,2007;and Poseidon Resources Corporation,Response to California Coastal Commission '8
September 28,2006 Request/or Additional In/ormation,November 30 2006:(Attachment 3)Water Purchase
Agreement by and between The Carlsbad Municipal Water District and Poseidon Resources (Channelside)LLC,
September 28,2004,at §3.1.2;(Attachment 4)Water Purchase Agreement by and between Rincon del Diablo
Municipal Water District and Poseidon Resources (Channelside)LLC,March 14,2006,at §3.1.2;(Attachment 5)
Water Purchase Agreement by and between Valley Center Municipal Water District and Poseidon Resources(Channelside)LLC,December 20,2005,at §3.1.2.
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ermssrons.At a current average cost'Of $20 per megawatt-hour,these credits would cost
Poseidon over $5 million per year to fully offset its emissions,which would add about $95 to
the cost of each acre-foot produced.Poseidon indicated that it has taken all of these costs
into consideration in assessing the feasibility of the project and addressed these costs in its
Climate Action Plan.
•Poseidon's reliance on a MWD subsidy:Poseidon's anticipated costs are also based in part
on it being eligible to benefit from the $250 per acre-foot subsidy available from the MWD
described previously in theseFindings.Without this subsidy,Poseidon's stated costs would
be $250 per acre-foot higher.
•Present andfuture costs for electricity:Poseidon estimates its average cost for electricity will
be $0.0749 per kWh.It bases this estimate on the rates available from the San Diego Gas &
Electric Company (SDG&E)for large industrial customers (SDG&E Tariff Sheet #AL-
TOU),which provides a range of energy prices based on the time-of-use (e.g.,higher costs at
peak afternoon hours,lower costs at night;generally higher costs in summer than in winter)
and its eligibility for a discount due to its participation in SDG&E's emergency responseprogram.
However,to Connnission staff,it appears that applying the rates from that Tariff Sheet would
result in an actual annual average rate of no less than $0.10 per kWh which,if applicable,
would increase Poseidon's expected costs per acre-foot by about $125.29Poseidon responds
that the applicable SDG&E tariffis subject to a discount due to the project's ability to reduce
demand during peak periods and to shed up to 95 percent ofthe project's energy load during
local utility emergencies."Additionally,to Commission staff,it appears that Poseidon's
anticipated costs do not recognize likely future rate increases for electricity,whichit expects
would add about $25 per acre-foot if applied next year to Poseidon's costs."
•Additional costs to pump water into SDCWA distribution system:As noted above,Poseidon's
current proposal includes installing the pipelines and pumps needed to deliver water only to
Carlsbad's Maerkle Reservoir and parts of Vista and Oceanside.Transporting water to other
entities would require an additional pipeline from the reservoir to the regional distribution
system along with an additional pumping station and additional electricity costs.SDG&E's
most recent cost estimates for these components are $80 million in capital costs and $2.5
million per year in operations and maintenance costs.
29 Poseidon stated that it could take advantage of lower off-peak electricity rates by reducing its production during
peak hours and increasing it during non-peak hours -it proposed,for example,that it could operate at 80%capacity
(40 MGD)during the highest rate periods and at 108%capacity (54 MGD)during lower rate periods.However,it
appears this scenario would have little effect on average electrical costs,since Poseidon would use even more
electricity during the longer low-rate periods and less during the much shorter high-rate periods.Further,this
"start/stop"operating scenario would likely increase Poseidon's operations and maintenance costs due to shortening
the operating life of the various membranes,filters,and other facility components.
30 See Poseidon Resources Corporation.Updated Response to Coastal Commission's September 28,2006 Request
for Additional Information,Section 13,CDP Energy Use,GHG Production &Mitigation,October 21,2007,at p.3.
3\For 2008,SDG&E has already proposed an increase of about 5%increase for its industrial users,which would
add about $25 per acre-foot to Poseidon's current estimated costs.
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•Additional costsfor dredging Aqua Hedionda Lagoon:The power plant owner is currently
responsible for dredging the Lagoon and is expected to maintain that responsibility as long as
the power plant plans to use its once-through cooling system.When the power plant ends its
use of that system,it might allow Poseidon to take on responsibilities for dredging the
Lagoon,which based on the power plant's current costs,could add about $1 million per yeartoPoseidon's costs.
Insum,Commission staff estimates that the additional costs described above could add up to
about $450 to Poseidon's stated $950 per acre-foot costs,which is more in line with cost
estimates available from other seawater desalination facilities operating or being developed in
California.
Regardless of which cost estimates are more accurate -those provided by Poseidon or those of
Commission staff -the Commission has found that the project,as conditioned herein,will
incorporate all feasible mitigation measures needed for the project to conform to applicable
Coastal Act provisions,and Poseidon has stated it has taken all these costs into consideration in
assessing the project's feasibility.There are no feasible and less enviroumentally damaging
alternative locations to draw in the needed seawater (e.g.,subsurface or offshore).The
Commission finds that slant wells are infeasible because the water quality available from such
intakes would make it difficult,if not impossible,to treat for desalination purposes,and that the
construction impacts associated with this alternative render it enviromnentally inferior to the
proposed project."The Commission also finds that an infiltration gallery is enviromnentally
inferior to the proposed project because this alternative would disrupt public access to marine
resources,require frequent dredging and require the destruction of 150 acres of coastal habitat,
and that the alternative is economically infeasible."The Commission further finds that an
offshore intake system would result in greater enviromnental impacts than the proposed proj ect's
use of the existing power plant intake,and that construction of an offshore intake would rendertheprojectinfeasible."
Moreover,should Poseidon's costs or other concerns make the project unsuccessful,measures
exist to protect coastal resources.First,under the water purchase agreements between Poseidon
and the Carlsbad Municipal Water District,the Water District at its option can assume operation
or ownership of the facility.Second,if the Water District chooses not to assume either ofthose
options,or if operations ceased for some reason,Poseidon is required to remediate the site and
remove the facility.To accomplish this,and as described in the Water Purchase Agreement
32 See Poseidon Resources Corporation Response to California Coastal Commission's Letter a/September 28,2006,
November 30,2006,at pp.24-51;Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A atpp.16-17.
33 See Poseidon Resources Corporation,Additional Analysis a/Submerged Seabed Intake Gallery,October 8,2007;
Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A at pp.17-18.
34 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A atpp.19-20;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.
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between the Water District and Poseidon,Poseidon is required to post a security in the form of
either a letter of credit or an irrevocable bond with the property owner.35
4.3 COASTAL COMMISSION JURISDICTION AND STANDARD OF REVIEW
The proposed desalination facility and portions of its associated pipelines would be located in the
coastal zone within the City of Carlsbad.Carlsbad has a certified Local Coastal Program CLCP),
and the Agua Hedionda area is one of six segments of that LCP.Although most of the city's
coastal zone is fully certified,the Agua Hedionda segment has only a certified Land Use
Program CLUP),not a certified implementation program.Therefore,review and permitting
authority within this segment remain with the Commission,with the standard of review being
Chapter 3 of the Coastal Act.The Commission may also nse provisions of the certified LUP as
gnidance.
4.4 OTHER PERMITS AND AFPROV ALS
City of Carlsbad:
@ Precise Development Plan:As part of its project review and approval,the City of Carlsbad
approved a Precise Development Plan for the project site,which modified the allowable uses
on the site to include the proposed desalination facility.
@ Environmental Impact Report:On June 14,2006,the City of Carlsbad certified a Final
EIR for the project.At the request of the Coastal Commission staff,the City added a
discussion to the Final EIR to address stand-alone operations of the project.ill addition,the
potential for stand-alone operations was evaluated in the City's staff reports to the City
Planning Department and City Council.The City concluded that the project,operating as
either a co-located or a stand-alone facility,would not result in any significant adverse
impacts."
State:
•Lease of state tidelands from the State Lands Commission:The proposed project would
require a lease from the State Lands Commission due to its use of two sets of structures built
on state tidelands -the jetties at the mouth of Agua Hedionda and the discharge structure
built across a state beach about 3000 feet south of the Lagoon mouth.
35 See Water Purchase Agreement byand between The Carlsbad Municipal Water District and Poseidon Resources
(Channelside)LLC,September 28,2004,at §14.2.
36 Note:The EIR found that all but one of the project-related impacts would be nonsignificant or through mitigation
would be less than significant.The EIR found that the project would indirectly contribute to a significant
cumulative impact to air quality because it is likely that at least part of the mix of electricity that the desalination
plant uses will come from pollutant-emitting sources in the San Diego air basin.However,the EIR also found that
there were no feasible mitigation measures to reduce this impact.(See Project EIR,Chapter 5,p.5-9.)
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The power plant currently has a lease from the State Lands Commission allowing it to use
those structures until 2026;however,that lease allows use of those structures only for power
plant cooling operations and for minor use by Poseidon's test desalination facility (up to 200
gallons per minute)only when the power plant is operating.The power plant's lease also
states that the "Commission has expressed concerns regarding Once-Through Cooling (OTC)
of power plants and the environmental impacts to the waters of California that may be caused
by OTC systems",and further states that the lease includes provisions that authorize the State
Lands Commission to amend the lease if the State or Regional Water Boards modify
CabriIIo's NPDES permit,This lease requires additional written approval from the State
Lands Commission for use ofthe intake or discharge by a future desalination project.
Poseidon submitted its lease application in February 2007.As Commissioner Thayer
explained at the hearing,the State Lands Commission held a hearing on Poseidon's lease
application on October 30,2007.Staff recommended approval of the lease but the
Commission took no action and continued the hearing at the request of the public because the
hearing was held just days after the San Diego region fires and at least one individual who
wanted to participate in that hearing had been evacuated.Commissioner Thayer said a
second hearing would be scheduled in December 2007 or at a later date.
Coastal Act Section 3060 I .537 requires in part that an applicant demonstrate its ability to
comply with all conditions of a coastal development permit prior to issuance of that permit.
This demonstration includes landowner approval,which in this case would take the form of
Poseidon obtaining the necessary State Lands Commission leases.To ensure Poseidon
complies with this requirement,Special Condition 2 requires Poseidon,prior to the
Commission's issuance of the coastal development permit,to submit for Executive Director
review and approval all necessary leases from the State Lands Commission,local
governments,and the power plant owner showing that it has the necessary legal interest in all
property within the coastal zone necessary to construct and operate the project.Special
Condition 3 further requires Poseidon to execute and record against its leasehold interests
restrictions that bind both Poseidon and any future holders of those interests to the terms and
conditions of the Commission's approval.This,too,requires review and approval by the
Executive Director before issuance of the coastal development permit.
•National Pollntant Discharge Elimination System (NPDES)permit from the Regional
Water Quality Control Board:Poseidon's proposed project is subject to a NPDES permit
issued by the San Diego Regional Water Quality Control Board in August 2006 pursuant to
the Clean Water Act (33 U.S.C.§1251 et seq.)and the Porter-Cologne Water Quality
Control Act (Cal.Water Code §13000 et seq.).The NPDES permit,issued after the
Regional Board reviewed several studies and analyses of the project,covers discharges from
the project to the Pacific Ocean.The NPDES permit addresses marine impacts ofthe project
by requiring compliance with applicable water quality control plans,water quality objectives,
37 Coastal Act Section 30601.5 states:"Where the applicant for a coastal development permit is not the owner of a
fee interest inthe property on which a proposed development is to he located,but can demonstrate a legal right,
interest,or other entitlement to use the property for the proposed development,the commission shall not require the
holder or owner of any superior interest in the property to join the applicant as coapplicant.All holders or owners of
any other interests of record in the affected property shall be notified in writing of the permit application and invited
to join as coapplicant.Inaddition,prior to the issuance of a coastal development permit,the applicant shall
demonstrate the authority to comply with all conditions of approval."
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performance goals,effluent limitations,and other receiving water and discharge limitations.
In September 2006,Surfrider Foundation and Orange County CoastKeeper filed a petition
with the State Board challenging the permit on several grounds.InJune 2007,the State
Board dismissed the petition because it failed "to raise substantial issues that are appropriate
for review"by the State Board."The permit requires Poseidon to submit additional
documentation for Board approval before starting operations and is based on Poseidon
operating with or without concurrent power plant operations,as long as either entity ensures
a discharge of at least 304 MGD to provide adequate dilution of the desalination facility'shighsalinitydischarge.
One of the required documents is a Flow,Entrainment and Impingement Minimization Plan,
which Poseidon submitted in February 2007 and revised in June 2007 and which the Board is
still reviewing.This plan is described in more detail in Section 4.5.1 ofthese Findings.The
NPDES Permit states that the Board will determine through its review of this Plan whether
the proposed project conforms to Porter-Cologne Act Section 13142.5.
Additionally,Poseidon's operations would cause sedimentation in Agua Hedionda,which is
listed by the State and Regional Boards as an impaired water body due in part to high rates of
sedimentation.Poseidon states,citing documentation by the Regional Board,that the 303(d)
listing of Agua Hedionda Lagoon as an impaired body is based on fine-grained sedimentation
discharged by urban run-off into the Lagoon from the neighboring watersheds
(predominantly Agua Hedionda Creek),impacting 6.8 acres primarily located in the east
basin ofthe Lagoon."As noted in the Carlsbad Watershed Plan,developed pursuant to an
NPDES Permit issued in 2001 to a number of local jurisdictions by the State Water Quality
Control Board,continued use of the power plant intake by either Poseidon or Cabrillo would
contribute to the high sedimentation rate in the Lagoon.As described later in these Findings,
Poseidon's studies show that sedimentation at the mouth of the Lagoon caused by use of the
intake results in increased sedimentation within the area of the Inner Basin identified as
impaired.For example,in describing sedimentation caused by the intake,Poseidon states
that the build-up of sediment near the Lagoon mouth restricts the tidal prism so that outflows
from the Inner Basin are both reduced and slowed,resulting in the Lagoon having
insufficient transport capacity to reduce the sediment load in the Inner Basin.Poseidon
contends that the intake is only partially responsible for this sedimentation,and that the fine-
grained sedimentation in the Inner Basin is primarily the result of urban run-off discharge.
This issue will likely require further consideration by the Regional Board as part of its
ongoing review of Poseidon's provisional NPDESpermit,which was issued in June 2006
before these studies were provided.The Commission expects that action by the Regional
Board will result in conformity to these applicable NPDES requirements.
38 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,at Exh.B p.6;see also
SWRCB/OCC File A-1773,June 5,2007.
39 2006 Clean Water Act 303(d)List of Water Quality Limited Segments Requiring TMDLs,San Diego RegionalWaterQualityControlBoard,June 28,2007.
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Federal:
•Federal "incidental take"permits:Poseidon's proposed project may result in the "take"of
species protected under the Marine Mammal Protection Act through entrapment of seals or
other marine mammals in the power plant intake.In a June 4,2007 letter to Commission
staff,Poseidon indicated it would apply for an independent "Incidental Harassment
Authorization"("incidental take"permit)under the Marine Mammal Protection Act for any
impacts to sea lions,seals,or any other protected marine mammals resulting from
construction or operation of the project.During review of Poseidon's application,the
National Marine Fisheries Service would engage in consultation under Section 7 of the
federal Endangered Species Act to ensure that the project will not jeopardize the continued
existence of any species listed as threatened or endangered under the Act.Past power plant
operations have caused documented entrapment of species protected under the federal
Endangered Species Act,including two endangered East Pacific green turtles (Chelonia
mydas)over the past several decades.Poseidon's operations of the intake system at
velocities of less than 0.5 feet per second are expected to decrease the likelihood of future sea
turtle impingement.
Agua Hedionda historically provided habitat for the tidewater goby (Eucyclogobius
newberryi)a species listed as endangered by the U.S.Fish and Wildlife Service in 1999.The
goby is also listed as a Special Status Species by the California Department ofFish and
Game.The Service was developing a critical habitat designation for the species about the
same time as publication of Commission staff's recommended Findings to the Commission."
In November 2006,the USFWS issued a proposed designation that did not include Agua
Hedionda as critical habitat,stating that the goby has not been detected in the Lagoon for
many years;the last goby specimen from Agua Hedionda was collected in 1940.'1
To ensure Poseidon conforms to these other coastal resource protection requirements,Special
Condition 4 requires Poseidon,prior to starting construction,to submit documentation of other
permits and approvals needed for project construction and operation,including those from the
City of Carlsbad,the Regional Water Quality Control Board,the Califomia Department of
Health Services,the National Marine Fisheries Service,and the U.S.Fish and Wildlife Service,
or documentation showing that these approvals are not needed.
40 In 1994,the U.S.Fish and Wildlife Service listed the goby as endangered.In 1999,the Service published in the
Federal Register a proposed rule to retain the goby as a listed endangered species in Orange and San Diego County
coastal waters and to establish Agua Hedionda as part of the critical habitat for fhe goby.The goby had been listed
as endangered inFebruary 1994.InNovember 2000,the Service published its final rule,which designated Agua
Hedionda as critical habitat for the goby.InAugust 2001,Cabrillo Power L.L.C.,owner of the Enema power plant,
filed a lawsuit challenging that designation.The Service later filed a consent decree with U.S.District Court in
which it agreed to vacate that designation and reconsider the entire critical habitat designation in the rule.That
consent decree also established that the Service would publish a revised proposal for critical habitat by November
15,2006 and a new final rule by November I,2007.The USFWS had not issued its final habitat designation as of
the date ofthe Commission's decision.
41 See Poseidon Resources,Response to Staff Report,November 9,2007,Exh.B,atp.9.
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4.5 CONFORMITY TO APPLICABLE COASTAL ACT POLICIES
4.5.1 Protection of Marine Life (Coastal Act Sections 30230 &30231)
Coastal Act Section 30230 states:
Marine resources shall be maintained,enhanced,and,where feasible,restored.Special
protection shall be given to areas and species of special biological or economic
significance.Uses of the marine environment shall be carried out in a manner that will
sustain the biological productivity of coastal waters and that will maintain healthy
populations of all species of marine organisms adequate for long-term commercial,
recreational,scientific,and educational purposes.
Coastal Act Section 30231 states:
The biological productivity and the quality of coastal waters,streams,wetlands,
estuaries,and lakes appropriate to maintain optimum populations of marine organisms
andfor the protection of human health shall be maintained and,wherefeasible,restored
through,among other means,minimizing adverse effects of waste water discharges and
entrainment,controlling runoff,preventing depletion of ground water supplies and
substantial interference with surface waterflow,encouraging waste water reclamation,
maintaining natural vegetation buffer areas that protect riparian habitats,and
minimizing alteration of natural streams.
These Coastal Act provisions require generally that marine resources be maintained,enhanced,
and where feasible,restored.They also require that the marine environment be used in a manner
that sustains biological productivity and maintains healthy populations of all marine species.
Coastal Act Section 30231 requires that biological productivity be maintained,and where
feasible,restored,including by minimizing the adverse effects of entrainment."
Other policies as guidance
In applying the above-quoted Chapter 3 policies,the Commission may be guided by Porter-
Cologne Act Section 13142.5,pursuant to Coastal Act Section 304l2(a).43 Subsection (b)of
Section 13142.5 states:
For each new or expanded coastal power plant or other industrial installation using
seawaterfor 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 allforms of marine life.
42 "Minimize",as used in these Findings,means "to reduce to the smallest possible amount,extent,size,or degree"
as defined in the American Heritage"Dictionary of the English Language:Fourth Edition (2000).
43 Coastal Act Section 30412(a)states:"In addition to Section 13142.5 of the Water Code,this section shall apply to
the commission and the State Water Resources Control Board and the California regional water quality control
.-boards."
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State,regional and local water plans all have confirmed that water needs in the San Diego region
will rely in part on seawater desalination."To that end:(1)the proposed project will provide
56,000 AFY of new water supply for the San Diego region;(2)the California Department of
Water Resources'2006 Water Plan Update identifies the need for 500,000 AF of desalinated
water by 2030;(3)the Metropolitan Water District of Southern California's Integrated Water
Resources Plan identified a need for 250,000 AFY of seawater desalination (including 56,000
AFY from the Carlsbad project)to ensure regional water supply reliability;(4)the San Diego
County Water Authority (SDCW A)updated its 2005 Urban Water Management Plan in April
2007 specifically to reaffirm the need for 56,000 AFY of seawater desalination from the
Carlsbad project by 2011;and (5)Carlsbad Municipal Water District,Valley Center Municipal
Water District,Rincon del Diablo Municipal Water District,Sweetwater Authority,Rainbow
Municipal Water District,Santa Fe Irrigation District,Vallecitos Water District,and Olivenhain
Municipal Water District have entered into long-term water purchase agreements with the
Carlsbad Desalination Project."Collectively,these water districts will use 100%of Poseidon's
capacity."These agencies that have or are planning to acquire water from the Carlsbad
Desalination Project have organized the "San Diego Desal Partners"and meet on a regular basis
to coordinate efforts to advance the project.In a communication to Commission Chairman
Kruer,the San Diego Desai Partners described the Carlsbad Desalination Project as "one of the
most important water infrastructure projects currently being planned for the State of
California."47
The SDCW A's April 18 Update of 2007 Metropolitan Water District supply assessment
projected 2007 to be a critically dry year in both the State Water Project and Colorado River
watersheds."In light of this concern,the public support for the project continues to grow.For
example,among key findings of the SDCW A 2006 Public Opinion Survey,the top response by
respondents when asked what the most critical things the SDCW A could do to ensure a safe and
reliable water supply was to develop seawater desalination."
Certified Agua Hedionda Land Use Plan:Because the proposed project is within the
Commission's retained jurisdiction,the standard of review is Chapter 3 ofthe Coastal Act.
However,in such instances,the Commission may use as guidance adjacent certified Local
Coastal Programs (LCPs).The proposed project would be in the coastal zone within the City of
Carlsbad.Although the City has a certified LCP,the Commission has not yet certified the LCP
for the portion of the City,known as the Agua Hedionda segment,where the project would be.
44 See Poseidon Resources Corporation.Response to California Coastal Commission's February 20 Request for
AdditionalInJormation,June 1,2007,at pp.7-9.
4S See id.
46 See id.
47 See id.
48 See id.
49 See id.
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The Commission,however,has certified the Land Use Plan (LUP)for the Agua Hedionda
segment.The certified Land Use Plan recognizes the Lagoon's unique environmental status and
designates the entire Lagoon as a "special treatment area".The Plan's goals for the Lagoon
include the following:
e Protect and conserve natural resources,fragile ecological areas,unique natural assets,
and historically significant features of the community.
•Preserve natural resources by protecting fish,wildlife,and vegetation habitats;retain the
natural character of waterways,shoreline features,hillsides,and scenic areas;safeguard
areas for scientific and educational research;respect the limitations of our air and water
resources to absorb pollution;and encourage legislation that will assist in preserving
these resources.
Agua Hedionda is also one of 19 coastal wetlands identified in the California Department of Fish
and Game report,Acquisition Priorities for the Coastal Wetlands of California.This report
identifies high priority wetlands for acquisition,based primarily on their values for fish and
wildlife habitat and threats to their continued existence as a natural resource.50 Coastal wetlands
identified in this report are subject to the additional protections of Coastal Act Section 30233(c),
which are described in Section 4.5.2 ofthese Findings.
Other policies and requirements spplicsble to the proposed project
Marine Reserve Designation:Additionally,part of Agua Hedionda has been designated by the
California Department of Fish and Game as the Agua Hedionda Lagoon State Marine Reserve.
Pursuant to Section 1580 ofthe state Fish and Game Code,the Reserve is to be managed to:
"...protect threatened or endangered native plants,wildlife,or aquatic organisms or
specialized habitat types,both terrestrial and nonmarine aquatic,or large heterogeneous
natural gene pools for the future use of mankind through the establishment of ecological
reserves.11
NPDES permit:Activities within the City of Carlsbad affecting Agua Hedionda Lagoon are in
part subject to an NPDES permit issued in 2001 by the State Water Resources Control Board to
several San Diego County cities to address significant water quality impacts in several coastal
watersheds.The permit in part requires the cities to develop a comprehensive plan to manage
the region's watersheds and to avoid and solve surface water quality problems.The Carlsbad
Watershed Management Plan,published in 2002 pursuant to these NPDES requirements,
includes a number of goals and objectives to implement the NPDES permit requirements.Its
goals include,for example:
Protect Beneficial Water Uses:To be considered supportable by this plan,all "Action
.Items"must protect,restore,or enhance beneficial water uses within the watershed The
action should focus on the protection of human public health first and then on the health
of wildlife and natural ecosystems.The action item should recognize that public health
,0 See also the California Coastal Plan,December 1975.
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includes flood protection and should strive to balance natural restoration with water
quality improvements and flood control.
Protect Coastal and Wetland Resources:Extra credit should be given to "Action Items"
that serve toprotect the wetland resources,sensitive species andfragile ecosystems
associated with coastal lagoons and riverine resources.These resources are not only
sensitive and highly valued,but they support a great diversity of species and tend to be
"sink holes"where water quality problems become much greater.
Multiple Habitat Conservation Program:The Multiple Habitat Conservation Program (MHCP)
is a comprehensive habitat conservation planning process that addresses multiple species needs
and the preservation of native vegetation communities for the cities of Carlsbad,Encinitas,
Escondido,Oceanside,San Marcos,Solana Beach,and Vista,California.The MHCP is
established in part to develop coordinated habitat preserve system.In Carlsbad,the MHCP is
focused on preserving eight vegetation types,including marsh and estuarine wetlands.The
covered species for this plan include invertebrates,birds,and plants found in and near Agua
Hedionda and use the Lagoon as habitat.
Marine Life Management Act:The California Marine Life Management Act (MLMA)was
established to ensure the conservation,sustainable use,and restoration of California's marine life.
This includes the conservation of healthy and diverse marine ecosystems and marine living
resources.To achieve this goal,the MLMA calls for allowing and encouraging only those
activities and uses that are sustainable.Although most of the MLMA is devoted to fisheries
management,it also recognizes that non-consumptive values such as aesthetic,educational,and
recreational are equally important.Unlike previous law,which focused on individual species,the
MLMA recognizes that maintaining the health of marine ecosystems is important in and of itself.
The MLMA also holds that maintaining the health of marine ecosystems is key to productive
fisheries and non-consumptive uses of marine living resources.
One of the MLMA's primary goals is to provide for sustainable fisheries.A sustainable fishery is
defined in the MLMA as one in which fish populations are able to replace themselves.The
MLMA recognizes that populations of marine wildlife may fluctuate from year to year in
response to external environmental factors,such as climate and oceanic conditions.Unlike
traditional definitions of sustainability in fisheries,a key feature of the MLMA definition calls
for maintaining biological diversity.
"Essential Fish Habitat":Agua Hedionda Lagoon is also considered "Essential Fish Habitat"
(EFH),pursuant to provisions of the federal Magnuson-Stevens Fishery Conservation and
Management Act.The Act defined EFH as "those waters and substrate necessary to fish for
spawning,breeding,feeding,or growth to maturity",and establishes that activities that would
affect this habitat require consultation with the National Marine Fisheries Service pursuant to
Section 305(b)of the Act.
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Proposed Project Location and Site Conditions
Poseidon's proposed facility would be located on the site of the Encina power plant adjacent to
Agua Hedionda.The facility would pump approximately 304 million gallons per day (MGD)of
estuarine water from the Lagoon."Although Poseidon's proposal is to use 100 MGD of
seawater to produce 50 MGD of potable water,the Regional Water Quality Control Board has
required through its issuance of an NPDES permit that Poseidon discharge no less than 254
MGD to dilute its high salinity discharge."These proposed project characteristics and issues
associated with this discharge are discussed later in these Findings.
Characteristics of Agua Hedionda Lagoon:Agua Hedionda Lagoon is located within the City
of Carlsbad and is used for a wide variety of activities.It is used recreationally,it includes
extensive aquaculture operations,and it has served as the location for the power plant's cooling
water intake structure since the mid-1950s.
The vast majority of the water in the estuary is from tidal sources.Each semi-diurnal tide brings
in or discharges about 500 million gallons of seawater,so Poseidon's water withdrawals would
represent about 30%of the estuary's daily water influx."The Lagoon receives a relatively small
amount of freshwater from Agua Hedionda Creek,from twenty-three storm drains,and from
urban and agricultural runoff.The Lagoon's three basins have very different habitat
characteristics,based largely on the hydrodynamics ofthe tidal flow and the resulting different
substrates -froer materials in the Inner Basin grading to coarser materials in the Outer Basin.
Agua Hedionda Lagoon is listed by the Regional Board as having impaired water quality due to
the presence of indicator bacteria and because of siltation and sedimentation.54 As noted in the
Carlsbad Watershed Plan,the impairment is due largely to fine-grained sediments being
discharged into the Lagoon from urban ruuoff coming from the neighboring watersheds
(predominantly Agua Hedionda Creek)",although part of the excess sedimentation within the
estuary has been due to the power plant's water intake causing an imbalance between sediment
51 To provide a sense of scale,the 304 million gallons of estuarine water Poseidon would use each day equals about
932 acre-feet,or the amount afwater that would cover 932 acres (about 1.5 square miles)with a foot of water.Over
the course ofa year,Poseidon would use more than 100 billion gallons of water from the estuary,or about 340,000
acre-feet,which would cover over 500 square miles up to a foot deep.
52304 MGD is an average volume.Poseidon's NPDES Permit limits the facility's salinity discharge to no more
than about 40 parts per thousand,which requires Poseidon to pump from up to about 320 MGD at various times.
53 Poseidon's Flow Plan states that the tidal cycle brings in about 475 million gallons.The San Diego County Water
Authority estimated in its recent Draft EIR for a similar proposed desalination facility that tidal inputs were about
528 million gallons.The average of these two estimates would result in a twice-per-day influx of about 1003 MGD,
so Poseidon's 304 MGD withdrawal would represent about 30%oftbe average tidal inputs.
54 As noted in Section 4.4 of these Findings,pursuant to provisions of the federal Clean Water Act,states are
required to identify polluted surface water bodies that do not meet water quality standards.States are to then
prioritize those waterbodies for cleanup activities througb developing a "Total Maximum Daily Load"(TMDL)for
those waterbodies that identifies the cleanup steps needed to allow the waterbodies to meet the standards.CaliforniabasnotyetdevelopedaTMDLforAguaHediondaLagoon.
55 2006 Clean Water Act 303(d)List of Water Quality Limited Segments Requiring 11)MLs,San Diego RegionalWaterQualityControlBoard,June 28,2007.
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inflow and outflow,and Poseidon's proposed project would cause similar sedimentation
problems.Poseidon has also submitted a study indicating that due to sedimentation and in the
absence of the power plant,if the Lagoon is not regularly dredged,it would close in from about
five to seven years and slowly revert to its natural state of marshy channels with hyper-salinewaters.
Despite these water quality concerns,Agua Hedionda provides extensive habitat values for a
wide variety of marine biological resources and other wildlife.Surveys from 1994-95 found that
the Lagoon and nearby wetlands supported 29 fish species and 143 species of benthic
invertebrates."Agua Hedionda provides habitat for important commercial and recreational fish
species,special listed species,and forage fish used by these other species.Fish in the Lagoon
include California halibut,which use the Lagoon as an important nursery area,garibaldi,
Northern anchovy,and various gobies,blennies,and others.The Lagoon formerly provided
habitat for the endangered tidewater goby (Eucyclogobius newberryii.The U.S.Fish and
Wildlife Service determined in 2006 that the goby's absence from the Lagoon is due to habitat
loss and other anthropogenic factors."The Lagoon is also identified as Essential Fish Habitat
(EFH),pursuant to the Magnuson-Stevens Act described above.
The surveys also identified 81 different bird species in these areas,including 12 listed as
sensitive:Belding's Savanna sparrow,California Ieasttern,Western snowy plover,Brown
pelican,White-faced ibis,California gull,Osprey,Cooper's hawk,Long-billed curlew,
Loggerhead shrike,Northern harrier,and Black skimmer.illthe coastal scrub sage habitat
adjacent to many of its wetlands,the surveys found additional sensitive bird species,including
the California gnatcatcher,the least Bell's vireo,and the light-footed Clapper rail.Many of these
species rely on marine life within the Lagoon and adjoining wetlands.
Anticipated Project Impacts and Coastal Act Conformity -Intake-Related
Findings in this section evaluate the proposed project's impacts on marine biological resources
associated with its intake of estuarine water.Findings in subsequent sections describe discharge-
related impacts caused by the proposed facility's discharge of highly saline wastewater into
nearshore ocean waters and its cumulative impacts.All analyses are based on Poseidon's
proposed use and discharge of an average of 304 MGD of estuarine water,and on Poseidon's use
of the existing power plant pumps as a stand-alone desaliuation facility.
Adverse Impacts Caused by Poseidon's Intake:The project's proposed withdrawal of304
MGD of estuarine water through the power plant intake structure would cause several types of
impacts to marine biological resources,including impingement,entrainment,and potential
"take"of protected species.However,with implementation of the mitigation measures and
Special Conditions described in these Findings,these impacts can be mitigated to an
insignificant level such that the project conforms to Coastal Act Sections 30230 and 30231.
56 From California Wetlands Information System database at:
http://ceres.ca.gov/wetlands/geo_info/so_caVagua_hedionda.htmI.
57 From Federal Register,November 28,2006,proposed rule pursuant to 50 CFR 17 (see:
http://www.epa.gov/fedrgstrfEPA-SPECIESI2006INovemberlDay_28/e929I.htm).Additionally,as noted in Section
4.4 of these fmdings,Agua Hedionda Lagoon is not listed as critical habitat for the species.
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•Impingement:Impingement occurs when fish or other organisms are caught on an intake's
screening system and are either killed or injured.The impingement rate for an intake is
primarily a function of water velocity.The current Clean Water Act regulations (at 40 CFR
125)applicable to cooling water systems establish a maximum velocity of 0.5 feet per second
as the required Best Available Technology.When velocities are below that level,fish are
usually able to swim away from the pull of the intake.Impingement rates may also vary
seasonally or when schools of fish get close to the intake.
Regarding Poseidon's expected impingement impacts,the project EIR at Section 4.3 and
Poseidon's 2004-05 study described below showed that it would not cause impingement at
levels beyond those caused by the power plant and that its use of the power plant intake
would impinge about 20,000 fish per year (or about 55 per day)weighing a total of about
4500 pounds (or about 12 pounds per day).During the study period,however,most of this
impingement -about 80%-was caused by power plant heat treatments,which Poseidon
would not have to do as a stand-alone desalination facility.Therefore,Poseidon's
impingement rate would be much less,averaging less than 2.5 pounds per day.The City of
Carlsbad's EIR determined that under the stand-alone "No Power Plant Operation"scenario,
the project would have an intake flow velocity that would not exceed 0.5 feet per second,
which is consistent with the U.S.EPA guidance for "best available technology"for cooling
water intakes,and that under these operating conditions the project "would not result in
significant impingement effects."See project EIR Section 4.3.Poseidon has prepared a
Flow,Entrainment and Impingement Minimization Plan in accordance with its Regional
Board issued NPDES Permit (Regional Board Order No.2006-0065).The Flow,
Entrainment and Impingement Minimization Plan provides that the project,when operating
stand-alone,is expected to impinge approximately 2.12 pounds offish per day,which
Poseidon provides is less than the average daily consumption of an adult pelican (more than
2.5 pounds per day),which for this project the Commission considers de minimis andinsignificant."
Moreover,Special Condition 8 requires Poseidon to submit a Marine Life Mitigation Plan
for Commission approval,and implementation of that Plan will mitigate any expected
impingement impacts.Past impingement at the power plant has inclnded entrapment and
"take"of the endangered Eastern Pacific green turtle a protected species.During the past
several decades,one green sea turtle has been entrained and released unharmed and a second
one was found dead at the intake structure.Sea turtles are rarely seen in the Lagoon area,or
in the intake or outflow bays of the power plant.The flow rate ofthe water in the intake bays
is expected to be at or below 0.5 :IPs;therefore,death of healthy sea turtles after entering
these areas is highly unlikely.Because there will be either no change to the existing
conditions,or in the case ofthe project operating by itself a snbstantial reduction in the
seawater pumping rate,it is not anticipated that continued operation of the power plant or the
needs of the project will have significant adverse impacts on sea turtle species.The current
design of the power plant minimizes the possibility of entrainment of sea turtles in the power
plant structures.The intake structure is outfitted with metal guard rails (trash racks)that
prevent animals from entering the forebay area on the plant side.The slow moving water in
the Lagoon and through the intake trash racks allow the sea turtles to get out of the area if
saSee also Poseidon Resources Corporation,Response 10 Steff Report,November 9,2007,Exh.A at pp.9-10.
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they enter."Because the turtles do not breed in this area,only adults would be susceptible to
potential "take",and adult turtles are too large to fit through the bar racks at the intake
entrance.Poseidon has documented that stand-alone operation of the facility would result in
intake water velocities at or below 0.5 feet per second,which is consistent with the U.S.EPA
guidance for "best available technology"for cooling water intakes.As noted above,
Poseidon will also apply for an incidental take permit from NMFS to mitigate any such
impacts.Based on the above,and with Special Condition 8,the Commission finds the
impingement impacts and the potential for an incidental take associated with stand-alone
operations will be consistent with the Coastal Act and fully mitigated.
8 Entrainment:Entrainment occurs when small organisms,such as plankton,fish eggs,
larvae,etc.,are pulled iuto an open-water intake.Once-through cooling systems like the one
at the Encina power plant are considered to cause esseutially 100%mortality due to the
organisms being subjected to high temperatures or high pressures within the system.
Entraimnent causes direct impacts by killing the small organisms that are pulled through the
cooling system and causes indirect impacts to the larger marine community by altering the
food web and removiug part of the conununity's productivity.Seawater is not just water,but
is habitat,and along the California coast an acre-foot of seawater (about 326,000 gallons)can
contain an average of about 500 different species of fish,invertebrates,plankton,and other
marine life.Large intake systems such as the one Poseidon proposes to use can kill millions
of organisms each day and cause a loss or change in ecosystem resources and alterations in
community structure.While impingement rates are largely a function of water velocity and
can be reduced when velocities are reduced,the amount of entrainment is priruarily
associated with the amount of water used,so the main way to reduce entrainment impacts is
to reduce water volumes pulled into an intake system.
Background -How to Determine Entrainment Effects:Determining the scale aridthe extent
of entrainment impacts generally requires a study that iucludes obtaining at least one year's
worth of regular sampliug data and application of any of several modeling approaches.The
samples are taken from waters near the intake and from nearby source waters.Organisms
captured are identified to the lowest possible taxon.Inmost cases,all organisms carmot be
identified,so the known taxa serve as indicators or surrogates for the full set of affected
species.Ofthe various models available,the most acceptable is known as the Empirical
Transport Model (ETM).It is used to provide an estimate of the proportion of organisms lost
due to entrainment compared to the overall number of organisms in a source water body.
The ETM approach allows estimates ofloss for each identified species,in part by
recognizing that each species is subject to entrainment during particular life stages.Once the
species subject to entrainment are identified,the ETM approach then determines what period
oftime each of the species are subject to entraimnent -that is,based on local currents,it
determines how many days an egg stage or larval stage of a particular species is subject to
being pulled into the cooling system rather than be able to move away and escape from it.
This period varies by species,ranging from just a few days to several weeks.It will also vary
by whether it is calculated using the maximum or mean duration of larvae in the source
water.As a very simple example,ifindividuals of a species are "entrainable"for the first
five days of their lives and the average currents in the area move past the cooling system
intake at half a mile per hour,that species has a source water area of sixty rniles (5 days x 24
59 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Bxh.B at p.14.
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hours x 0.5 mph =60 miles).Determining source water areas maybe complicated by
seasonal changes in current speed or direction and whether the species are from nearshore or
offshore areas,and for intakes proposed iu enclosed estuaries,the calculations must
iucorporate the hydrologic pattern of the estuary.
The proportion oflarvae lost to larvae in the source water (known as "proportional
mortality")is then multiplied by the source water area to provide an estimate of how much
overall production of the species iu this area is lost due to entraiument.This result of this
calculation,known as "habitat production foregone"(HPF)can be expressed in acres or in
miles of shoreline.Even a low "proportional mortality"figure can result in a large impact if
the loss occurs over a large stretch of shoreline.Usiug the example above,if5%of the larval
stage of that species is lost due to entraiument,that represents that species'production along
about three miles of shoreline (0.05 x 60 miles =3 miles).The HPF for the various species
can be kept separate or can be combiued as an overall average figure.
Results of entrainment studies such as this do not reflect all the variables that may affect
populations within a given area -for example,populations may decrease or increase due to
seasonal or long-term changes,the habitat within the source water areas is likely to iuclude
characteristics that affect particular species and may be of variable quality within the same
source water area,etc.These methods do,however,provide a good sense of scale ofthe
overall impacts of a given intake system during the period sampled.
Poseidon's anticipated entrainment effects:The project is expected to cause adverse effects
to marine life due to its use of 304 MGD of estuarine water.The City of Carlsbad
determined,iu Section 4.3 ofthe project ElR,that under standalone operations,the facility
would have no significant effects "on the source water populations [ability]to sustain
themselves"."However,in 2004-05,Poseidon conducted a study as part of the
documentation for its Flow,Entrainment,and Impingement Minimization Plan to determine
the entrainment impacts that would be caused by continuous 304 MGD water use.In May
2007,Poseidon provided a technical memorandum to Commission staff summariziug the
results of that study and its Flow,Entrainment,and Impingement Miuimization Plan and
stated that the study used Regional Board approved protocols for sampling and analysis.
Poseidon stated its study showed that the desalination facility's water withdrawals would
entrain an average of about 12%of three types of fish larvae iu Agua Hedionda subject to
entrainment -gobies,blennies,and garibaldi -in addition to smaller percentages of other
species,iuc1udingwhite croaker,Northern anchovy,California halibut,and queenfish,none
of which are listed as endangered or threatened.Poseidon identified these species as comiug
from about 302 acres of Agua Hedionda's open water habitat (253 acres)and its mudflat/tidal
channel habitat (49 acres).Applying the ETM and HPF methods described above suggests
that Poseidon's entrainment would cause a loss of productivity about equal to that created by
36 acres of Agua Hedionda's open water and mudflat/tidal channel habitat (i.e.,12%of302acres=~36 acres).
To ensure Poseidon's study accurately assesses the project's entraiument impacts,Special
Condition 8 requires that Poseidon provide a full copy of its study for further Commissionreviewandapproval.
60 See Project ElR,Section 4.3.
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Poseidon has argued,for a number of reasons,that this expected entrainment impact does not
constitute a siguificant adverse impact,and that several features of its project wilI reduce
entrainment impacts:
o Ongoing use of the intake by the power plant:Poseidon states that its entrainment impacts
will be reduced as long as the power plant continues to use its cooling water intake.
Poseidon states that the power plant expects to continue its use of the once-through
cooling system indefinitely.The maguitude of the entrainment losses identified in
Chapter 3 of Poseidon's Revised Flow,Entrainment and Impingement Minimization Plan,
dated June 1,2007,is estimated for continuous operation ofthe desalination plant on a
stand-alone basis notwithstanding the fact that the power plant generating units will be
available for service indefinitely.The power plant owner has proposed removing three of
the existing plant's five generating units and operating the remaining two units only part
time for several more years until replacement power becomes available.The two
remaining generating units represent 528 MGD of pumping capacity.Cal-ISO would
ultimately determine when the remaining units are no longer needed for grid reliability.
Poseidon states that in the meantime,seawater pumping by the power plant would likely
meet a substantial portion of the desalination facility's flow requirements,resulting in a
comparable reduction of entrainment and impingement impacts attributable to thefacility."
o Modifications to the intake system for desalination facility use:Poseidon states that
entrainment mortality that occurs within the existing power plant screens,pumps,and
condensers upstream of the desalination facility intake wonld be substantialIy reduced
during the desalination facility's standalone operations due to lower water temperatures,
volumes,velocities,and turbulence resulting from desalination operations compared tothoseofthepowerplant.62
o Use of water for dilution:Of Poseidon's 304 MGD use of estuarine water,about two-
thirds,or 200 MGD,would be pulled in to the intake system and used,without further
processing,to dilute the high salinity discharge from the desalination facility.Poseidon
states that only 104 MGD would be subjected to additional processing that would cause
entrainment mortality,as 200 MGD bypasses the desalination facility and is dischargedtotheocean!'
o "Cropping"andpopulation size:Poseidon states,for example,that because there are
large numbers of planktonic organisms in estuarine water and because they experience a
very high natural mortality rate,the effects of entrainment are generalIy similar to what
these organisms already experience;Poseidon further states that the "cropping"of these
61 See Poseidon Resources Corporation Response to California Coastal Commission's Letter of February 20,2007,June 1,2007,at Attachment 25.
62 See Carlsbad Seawater Desalination Project Revised Flow,Entrainment,and Impingement Minimization Plan,J1111e1,2007,atp.26.
63 See Carlsbad Seawater Desalination Project Revised Flow,Entrainment,and Impingement Minimization Plan,June 1,2007,atpp.1-19.
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organisms via entrainment is beneficial in that it allows remaining individuals to have
less competition.It states that entrainment samples collected during the study were
consistently dominated by larvae of three lagoon-dwelling species and contained
relatively few numbers of ocean-dwelling species.It states that study samples were
dominated by gobies,a mud-dwelling group of fish Ubiquitous to all California lagoons
and bays,blennies,fish that are crevice dwellers;and garibaldi,a typical rocky reef
dweller in open ocean habitat,but in this case occupying the rocky reef of rock rip-rap
annoring the Lagoon side of the Carlsbad Boulevard jetty.None of the species entrained
is listed as threatened or endangered.In addition,Poseidon states its samples showed
entrainment would affect about 0.2%of other species,including white croaker,Northern
anchovy,California halibut,and queenfish.Poseidon further states that because the
affected species are primarily gobies,which are Ubiquitous in California lagoons and
bays,blennies,which are also common,and garibaldi,which are more often found in
rocky habitats in the open ocean,the 12%average loss is not significant.Poseidon states
that most of the organisms that would be entrained are species that are not commercially
or recreationally fished,and since they are not harvested,the entrainment mortality is
being imposed on populations that are at a level close to the natural carrying capacity of
the coastal environment.Therefore,Poseidon contends,mortality due to entrainment
would not affect such populations,and any impingement or entrainment impacts of the
project,if it should operate stand-alone in the future,would have no significant adverse
effects on marine biology.Poseidon also applies measures from the California
Department ofFish and Game's Nearshore Fisheries Management Plan to conclude that
because the 12%loss is below the levels identified in that Plan (i.e.,30%or 60%loss of a
fish stock's biomass)that require a fisheries management response,the entrainment loss
is not significant.Poseidon states that because the fish are not harvested,the mortality
levels caused by entrainment would not affect the populations.
However,Commission staff's analysis shows that Poseidon's arguments are not supported by
available science or the findings from the past several years of entrainment studies conducted
at power plants along the California coast and elsewhere in the U.S.
Regarding ongoing use by the power plant of its once-through cooling system,Commission
staff concur that in that situation,the entrainment caused would be shared by both Poseidon
and Cabrillo;however,it is not able to determine what proportion of the adverse effects
could be assigned to either entity.Staff's analysis was based on Poseidon's stand-alone
operations pulling in about 304 MGD.Cabrillo has stated that while it would continue to
make available two of its generating units as needed,that it expects them to operate for no
more than a few weeks per year once its new dry-cooled facility is operating,and it is not
possible to predict how often or for how long these units might run in the future.Therefore,
the Connnission is unable to determine whether continued,part-time co-located operations
would affect Poseidon's entrainment impacts.If the power plant operates at times when
Poseidon is operating and draws in additional water,Poseidon's impacts may be a "share"of
the overall total;however,as noted previously,the adverse effects to marine biology
evaluated in these Findings and the necessary nritigation are based on Poseidon operating as
a stand-alone facility and drawing in about 304 MGD.
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Regarding the modifications and different processes Poseidon states may occur within the
intake and discharge system,including use of estuarine water for dilution,staff notes that the
standard protocols used for conducting entrainment studies and determining the levels of
adverse effects do not allow a lower mortality rate to be applied to the different processes
organisms may experience in the various types of these systems.There are no peer-reviewed
scientific studies that support a lower mortality level -therefore,the protocols'assumption
of 100%mortality applies to each study regardless of the variable temperatures,water
volumes,velocity,and turbulence caused by any particular intake system.Further,the
project EIR stated that it did not evaluate how larvae may be affected differently by different
levels of turbulence and temperature,and also noted that entrained organisms would be
subject to the same level of turbulence from the desalination facility whether the power plant
is operating or not.
In all entrainment studies done at California's coastal power plants;and per guidance and
findings from the U.S.EPA,the California Regional Water Quality Control Boards,the
California Energy Commission,and previous Coastal Commission decisions,entrainment
mortality is assumed to be 100%regardless of the various processes and stressors the
entrained organisms may experience in different intake systems.Even if some organisms
may survive the initial heat,turbulence,or pressure-induced stresses experienced when
passing through these systems,they are expected to be injured and suffer mortality shortly
after being discharged due to injury,increased rates of predation,or other related causes.A
stand-alone desalination facility using the same type of water intake structure is assumed to
cause the same level of mortality,due to its use of filters and high pressures to remove most
particles from seawater and due to its high salinity discharge.Those organisms drawn into
the intake in water used just to dilute the desalination discharge may experience somewhat
less than 100%immediate mortality;however,there are insufficient data or peer-reviewed
scientific studies to conclude that the overall mortality from desalination processes and
discharges would be anything less than the 100%mortality the protocols apply to organisms
going through the power plant processes and discharges.Further,for this particular intake
and discharge system,organisms that may survive being pulled from the estuary and through
the desalination processes would be discharged into the very different habitat conditions of
the nearshore ocean shoreline,which in itself is likely to cause substantial mortality.
Regarding "cropping"and population size,staff notes that Poseidon's proposed use of the
CDFG's fisheries management definitions do not apply to the species Poseidon states are
most subject to its entrainment impacts -that is,gobies,blennies,and garibaldi,none of
which are managed as part of a fishery.Further,Poseidon's contentions regarding the
Ubiquity and population sizes ofthese species do not incorporate standard ecological
concepts that recognize the importance of forage fish,such as gobies and blennies in
supporting other species and ecosystem functions.
Each ofthe entrainment studies done in California since 1998 concluded that the power plant
intakes caused significant adverse impacts to local or regional marine biota."Additionally,
64 Since 1998,entrainment studies completed at California coastal power plants include those done at Moss Landing,
Morro Bay,Diablo Canyon,Huntington Beach,and South Bay (e.g.,Morro Bay Power Plant 316(b)Resource
Assessment,2001;AES Huntington Beach Generating Station Entrainment and Impingement Study,2005 and
California Energy Commission Entrainment and Impingement Final Staff Analysis,August,2006,etc.).
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for the most part,the main adverse entraimnent effects these studies identified were to
species offorage fish (e.g.,gobies,queenfish,etc.)similar to those identified in Poseidon's
study,and each study resulted in a requirement of substantial mitigation for the identified
losses.Some studies evaluated intake volumes in the same range as those proposed by
Poseidon -for example,the entraimnent study for the Huntington Beach power plant
determined that its use of253 MGD of ocean water resulted in Habitat Production Foregone
of over 100 acres.Each of the three recent studies done for intakes within estuarine
environments identified adverse entraimnent impacts and substantial mitigation needs.For
example,the Moss Landing study showed that its 1224 MGD estuarine intake resulted in
Habitat Production Foregone of 1135 acres.Ifapplied proportionally to Poseidon's 304
MGD intake,the HPF would be about 281 acres.Similarly,the study of Morro Bay's 668
MGD intake showed an HPF of from 230 to 759 acres,which is applied proportionally to
Poseidon's expected flow would result in an HPF of from 104 to 345 acres.In each of these
power plant siting cases,the Commission found that mitigation was necessary to allow
Coastal Act conformity.Finally,the South Bay power plant study of a 601 MGD intake
resulted in an HPF of 1003 acres,which if applied to Poseidon's flow would require 507
acres of mitigation.Poseidon's contentions that its entrainment effects would be minimal or
even beneficial are further refuted by both Coastal Act and Porter-Cologne Act requirements
that call for entrainment to be minimized to protect marine biology and water quality.
Having seen only the summary Poseidon provided,rather than the full study,the
Commission is requiring through Special Condition 8 that Poseidon provide the full study to
confirm these contentions,especially in comparison to these other recent entrainment studies,
all of which found significant adverse impacts and resulted in HPF and mitigation needs well
above Poseidon's proposal.The previous entrainment study done at the Encina power plant
in 1979 found that there was an average of more than 1400 individuals of just the ten most
abundant fish species in each 100 cubic meters of estuarine water.65 The results Poseidon
provided of its more recent study did not include this information,but ifthe current densities
are similar,Poseidon's 304 MGD intake would cause entrainment to at least 16 million fish
larvae per day (i.e.,304 MGD /100 cubic meters (or 26,400 gallons)=11,515 x 1400 =
16,121,000).That 1979 study also found that the power plant's 795 MGD intake would
cause annual entrainment losses of identified zooplankton (including Crustacea,copepods,
Mysidacea,Decapoda,etc.)of30.9xl09,or more than 30 billion organisms per year.When
applied to Poseidon's 304 MGD flow volume,this would be about 11 billion of these
identified organisms per year.
Along with the lost productivity that would result from Poseidon's estuarine water use,the
water use would also cause significant adverse effects to specific species.The species
identified in the study as subject to entrainment include several subject to "take"prohibition
or fishing limits and others that provide important functions in the estuarine food web.Of
the species that would be entrained,most have a role in the estuary's food web as prey
species for higher trophic level species,including many that are important for commercial or
recreational fishing."
65 See Cabrillo Power I LLC,Proposal for Information Collection Clean WaterAct Section 316(b)Encina Power
Station,April!,2006.
66 The recently published report by the Environment California Research and Policy Center,Net Loss:Overfishing
Off the Pacific Coast (October 2007)identifies significant overfishing along the coast of California and other states.
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Three species -the garibaldi,California halibut,and Northern anchovy -make up about 6%
of the identified organisms collected during entrainment sampling.They would constitute a
.similar percentage of the millions of organisms that Poseidon's project would entrain,and
therefore represent an adverse impact to marine biological resources protected under the
Coastal Act.
Overall,Poseidon's entrainment study results show that its proposed use of an estuarine
intake would causes a substantial reduction of important individual species and of production
within Agua Hedionda.Itmay also cause losses in nearby nearshore waters due to the intake
entraining organisms that would otherwise enter nearshore areas due to tidal discharges;.
however,the study results did not identify whether that hydrodynamic-related effect was
included.
Therefore,although the Final EIR found the proj ect would cause no significant entrainment
impacts pursuant to CEQA,the Commission finds that the project's entrainment impacts will
require mitigation to ensure conformity to Coastal Act Sections 30230 and 30231.
Mitigating the Impacts Caused by the Poseidon's Use of an Estuarine Open Water Intake:
Mitigation Background:The standard approach for identifying,selecting,and implementing
appropriate mitigation for project impacts is to first avoid the impacts,to then minimize the
impacts,and to finally compensate for the impacts that remain."Mitigation sequencing,as it is
known,requires that mitigation measures to achieve the first step be considered and selected (or
be determined infeasible)before moving to the next step.Ifthe third step,compensatory
mitigation,is necessary to address remaining impacts,it also includes a preferred sequence -to
first create environmental conditions similar to those being lost;to next restore or enhance
conditions similar to those being lost;and to finally preserve or protect an area that provides
habitat value.It is generally preferable to select "in-kind"mitigation;that is,to develop
mitigation sites with habitat similar to that being adversely affected,rather than to develop "out-
of-kind"mitigation.Similarly,it is generally considered better to develop rnitigation on-site
rather than off-site.
Avoiding and MinimizingImpingement Impacts:As noted above,Poseidon's study showed that
its use of the power plant intake would impinge less than 2.5 pounds offish per day,which the
Commission considers a de minimis impact.
The primary method of avoiding and minimizing impingement is to maintain intake water
velocities below 0.5 feet per second (fps),a rate that the U.S.EPA considers to be "best available
technology"for cooling water intakes.This velocity represents the rate from which most fish
species are able to swim away from intake screens and avoid being impinged.Poseidon showed
in its draft Revised Flow,Entrainment,and Impingement Minimization Plan that its use ofthe
power plant pumps would create intake velocities higher than 0.5 fps and that its preferred
operating scenario -using the power plant's Unit 4 pumps--would result in rates between 1.8
Among the populations identified as overfished (i.e.,reduced to below 20-25%of its original population)are several
that rely on fish that would be entrained by Poseidon's project.
67 See,for exainple,the CEQA Guidelines at Section 15370.
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and 2.8 fps,or from more than three to five times the acceptable rate.However,in Exhibit B of
its November 9,2007 letter to Commission staff,Poseidon states that water velocities at the
intake bar racks dnring stand-alone operations would be less than 0.5 fps,which would conform
to the U.S.EPA's "Best Technology Available"standard for minimizing impingement impacts.
Additionally,as noted previously,Poseidon has stated it intends to apply for an "incidental take
permit"from NMFS.With these measures,the project is not likely to cause substantial adverse
impingement effects.Furthermore,Poseidon's Exhibit Band its Revised Flow,Entrainment,and
hnpingement Minimization Plan state that it will install variable frequency drives to further
decrease water flow intake velocities.With these low velocities,the already de minimis
impingement impacts that Poseidon's project may cause are expected to be further reduced and
thus mitigated to an insignificant level and consistent with Coastal Act Sections 30230 and
30231.
Avoiding Entrainment Impacts:The most direct way to avoid Poseidon's expected adverse
entrainment effects would be,if feasible,to use an alternative intake structure that avoids those
effects.Certain types of subsurface intakes may avoid these effects by drawing in water through
an overlying layer of sand.As discussed below,however,the Commission finds that these
alternatives are infeasible.
The four main types of intakes are vertical beach wells,Raney-type wells,slant-drilled wells,
and infiltration galleries (see Exhibit 4).Vertical beach wells are essentially the same as wells
located at inland locations,drilled to a depth where they intercept an underlying aquifer,or for
beach wells,where they intercept the seawater "wedge"underlying the beach.Raney-type wells
are vertical wells with an additional series of horizontal collector wells extending out from the
bottom ofthe vertical well shaft.This type of well can significantly add to the yield obtained
from a vertical well shaft.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.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.As explained below,
the most common adverse effects of wells would be caused by construction or would be related
to groundwater quality or quantity.For example,an improperly located subsurface intake could
draw down aquifers or could intercept areas of contaminated groundwater or water with naturally
high mineral content,high salinity concentrations,or high levels of suspended solids that are
difficult to treat and which may make a project practically or economically infeasible.Adverse
effects of galleries for this project would include significant enviromnental impacts related to
constructing structures that would affect up to more than 150 acres of coastal habitat.Although
subsurface intakes can,like open water intakes,cause adverse environmental effects,they may
be less severe and temporary,and a properly designed subsurface system can be environmentally
benign.At least four desalination facilities along the California coast use beach wells as their
feedwater system,and the Commission recently approved two pilot studies to determine the
applicability of both a slant-drilled intake and an infiltration gallery for desalination.
The amount of water subsurface intakes can take in depends on the permeability of the overlying
substrate and other geoteclmical characteristics.With an infiltration gallery,the substrate can be
engineered to allow much higher permeability than would occur with the natural substrate.
Subsurface intakes also offer additional operational advantages,such as reduced chemical use
and reduced operating costs.Water from subsurface intakes generally has lower concentrations
of solids,organic material,oil and grease,and other constituents that would have to be removed
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before the water contacts a desalination facility's reverse osmosis membranes.The natnral
filtering effect of the overlying substrate can buffer changes in the open water column caused by
storms,runoff,or spills,and they may be able to operate dnring times when facilities with open
water intakes would have to shut down.Subsurface intakes also provide some of the pre-
treatment needed before seawater goes through desalination filters or membranes,thus
eliminating part of the chemical or physical treatment that would otherwise be required at the
desalination facility.While subsurface intakes may have higher initial construction costs,they
can result in long-term operational savings due to their lower pre-treatment and chemical costs,
and because water quality from those intakes is generally less variable,which allows for more
efficient desalination operations.These characteristics are likely more evideut from intakes that
extend under the nearshore ocean water column than those that intercept aquifers that may be
affected by surface infiltration from inland areas or have high mineral content.
Carlsbad EIR analyzed 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."Poseidon also provided evidence that
subsurface intakes would cause more significant impacts than those caused by the existing power
plant intake and that they would be economically infeasible.In support of this position,
Poseidon has submitted extensive analysis and cost estimates it prepared at the request of
Commission staff.This information provides further confirmation that alternative intake systems
were infeasible and not the environmentally preferred alternative."Regarding economic
infeasibility,Poseidon believes that subsurface intake options would be infeasible in part because
they would raise the anticipated cost of desalinated water from Poseidon's current estimate of
$950 per acre-foot to about $1300 per acre-foot.
Regarding slant-drilled wells,a recent study conducted by the Municipal Water District of
Orange County (MWDOC)showed that that type of intake could be used to draw in 30 MGD of
seawater for its proposed desalination facility near Dana Point.70 The facility would draw 30
MGD from nine 500-foot long wells extending under the seafloor at about a 200 angle.
68 See Project EIR at Section 6.3.
69 See Poseidon Resources Corporation,Response to California Coastal Commission's Letter a/September 28,
2006,November 30,2006,at pp.24-51;See Poseidon Resources Corporation,Response to California Coastal
Commission's December 28 Requestfor Additional Information,February 2,2007,atpp.2-4;See Poseidon
Resources Corporation,Response to California Coastal Commission's February 20 Requestfor Additional
Information,June 1,2007,at pp.2-7,10-11;See Poseidon Resources Corporation,Response to California Coastal
Commission's July 3 Request for Additional Information,July 16,2007,at pp.4-8,11-14;Poseidon Resources
Corporation,Additional Analysis of Submerged Seabed Intake Gallery,October 7,2007;Poseidon Resources
Corporation,Issues Related to the Use of the Agua Hedionda Inlet Jetty Extension EIR to Recommend an Alternative
Seawater Intake for the Carlsbad Desalination Project,October 8,2007;Poseidon Resources Corporation,Intake
Cost Estimates,October 2007.
70 See Boyle Engineering's Dana Point Ocean Desalination Project -Engineering Feasibility Report (March 2007),
prepared for the Municipal Water District of Orange County.
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Poseidon submitted evidence stating slant wells are infeasible because pilot testing indicates that
the quality of the water available from them 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 suspended
solids."Poseidon's studies also confirmed that,at best,one slant well could provide only 5%of
the water required by the project.Thus,numerous slant wells would be needed to meet project
objectives and address the well-documented water needs in Southern California.As a result of
the necessity for multiple slant wells in public areas,this option is infeasible due to their
noticeable presence on the beach and disruption of public access and recreation.The EIR
prepared by the City of Carlsbad concluded that the construction and use of subsurface intakes
for the project would cause adverse environmental impacts to coastal resources at Carlsbad
beach,including but not limited to the creation of negative traffic,noise,and air pollution
impacts for a period of two years during construction,and disturbance of and,loss of public
access to,the beach area occupied by the wells both during and after construction."The EIR
also concluded that the slant wells would require the construction of permanent access ramps
from the Pacific Coast Highway to the beach to transport equipment during construction and to
permit well inspection during the life of the wells.Because the project would require multiple
smaller well facilities to meet its water needs,these wells would result illfar greater
environmental impacts and costs than the project,and they would be neither feasible to address
water needs nor'consistent with Coastal Act policies."
An infiltration gallery is another potential alternative.These systems are inplace at a number of
locations around the world,including one that provides water for a 45 MGD desaliuation facility,
with plans for other galleries that would provide up to several hundred million gallons per day
for power plant cooling water use.While these systems would result in seafloor disturbance
during construction,they would cause few,if any,impacts to marine life once inoperation.
When installed in an area of open sandy seafloor,the post-construction benthic habitat conditions
would be essentially the same as pre-construction conditions.The initial construction impacts to
the offshore sandy bottom habitat would be similar to the continual offshore sand deposition and
movement already experienced by that type of habitat.
As noted above,once a gallery is installed,it is essentially invisible from the surface of the
seafloor,both in terms of its structure and any effects on marine life.The systems are designed
so that the pull of the pumps are undetectable at the seafloor,thus making it highly unlikely that
organisms would be "trapped".While Poseidon's initial geophysical surveys of an area offshore
of Agua Hedionda showed an area of over 200 acres of featureless bottom with fine-grained
sand,which may be suitable for such a system,recent surveys of the area indicated that 70%of
the inspected area would contain sensitive basement and high relief reefs.74 During construction,
not all the seafloor material within the gallery area would need to be removed,and it certainly
71 See Poseidon Resources,Transmittal of Analysis of Alternative Subsurface Seawater Intake Structures,Proposed
Desalination Plant,Carlsbad,CA,Wied1in &Associates (January 30,2007),sent February 2,2007;Poseidon
Resources Corporation,Response to California Coastal Commission's September 28,2006 Request for Additional
Information,November 30,2006,atpp.31-41.
72 See Project EIR Section 6.3.
73 See Poseidon Resonrces Corporation,Response to Staff Report,November 9,2007,Exh.A at pp.16-18.
74 See Poseidon Resources Corporation,Response to StajfReport,November 9,2007,Ex.B,p.18.
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would not require being transported to a landfill.Most material would likely be suitable for the
ongoing longshore sand movement in this area of the coast.The largest infiltration gallery used
for desalination,at San Pedro del Pinatar in Spain,was selected in recognition of its location next
to the highly sensitive marine environment of a regional nature reserve.That installation was
also able to use horizontal directional drilling,which siguificantly reduced its installation
impacts.However,based on testimonyprovided at the Commission's November 15,2007
hearing,the facility in Spain is now having siguificant fouling problems with the intake;the plant
and a future expansion will rely on an open ocean intake for its primary source of seawater.
For this project,infiltration galleries would cause even greater environmental impacts than slant
wells and would be economically infeasible.In Exhibit B of its November 9,2007 letter to
Commission staff,Poseidon confirmed that over 70%ofthis area offshore of Carlsbad actually
consists of more sensitive basement and high relief reefs.Poseidon also provided evidence that
an adequately-sized subsurface system would require about 150 acres of seafloor,which would
be adversely affected by gallery installation.Based on this information,environmental impacts
to 150 acres of offshore habitat would be greater adverse impacts than caused by the proposed
existing intake for the following reasons:
First,construction of an infiltration gallery would result in a physical removal and alteration of
150 acres of coastal habitat,such that a IS-foot thick layer of ocean bottom shelf with all living
organisms in it would be removed,as compared to the aonual productivity loss of 36.8 acres
identified in Poseidon's entrainment study results."
Second,it would be necessary to excavate and construct 76 intake water collection wells and
trenches for collector piping along a three-mile beach strip of the City of Carlsbad shore,which
would limit public access to the beach for a period of 2 to 4 years,result in sigoificant 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.76
Third,excavation of 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 vastarea."
Fourth,in order to secure consistent operation of the filter bed at this location,the bed may
require dredging everyone to three years to remove the sediment and entrained marine life that
would accumulate in the intake filter bed and which,over time would plug the bed.The dredged
material would require disposal away from the one-mile strip of the intake filter bed to prevent
the removed solids from returuing to the area of the bed.This would not only result in frequent
adverse impacts to the marine flora and fauna in the area but would also render the area
75 See Poseidon Resources Corporation,Additional Analysis of Submerged Seabed Intake Gallery,October 8,2007.
76 Id.
77 rd.
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unavailable for recreational activities during maintenance activities."Based on the foregoing,a
150-acre gallery in this area would be physically and environmentally infeasible.Poseidon also
submitted evidence demonstrating that such a system would be economically infeasible.Its
October 2007 cost estimates show that an infiltration gallery for its Carlsbad facility would cost$646 million.
In reviewing the EIR,Commission staff's presentation,and Poseidon's submissions about
alternative intake systems,includiug the potential environmental impacts,site-specific
constraints,and costs of subsurface intakes,the Commission finds that the substantial weight of
the evidence is that subsurface intakes are an infeasible alternative for two reasons.First,the
proposed alternatives would result in greater environmental impacts than the proposed project
due to destruction of 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.Second,the
alternative intake systems are infeasible at the project site due to site-specific geologic and/or
water quality conditions,which render the water untreatable,and the increased and prohibitive
costs of such intake systems.
Minimize or reduce entrainment impacts:Another alternative that was considered to reduce but
not eliminate adverse entrainment and impingement impacts would be to move the intake
offshore into open coastal waters.
In Exhibit B of its November 9,2007 letter to Commission staff,Poseidon states that using an
offshore intake would likely require installation of a large diameter pipe over one thousand feet
long which,depending on placement,might cross areas of rocky reef habitat,and terminate in an
area near some kelp beds.It also states that the effects of this pipe's placement and operations
on habitat,sand flow,and sedimentation are not known.Poseidon's experts concluded that
entrainment and impingement caused by this intake could potentially affect a greater diversity of
organisms than those affected by the existing intake in Agua Hedionda and that organisms
colonizing the inside of the pipe would consume much of the entrained plankton."
Poseidon also provided evidence that such an intake would also be economically infeasible.On
October 18,2007,Poseidon provided cost estimates showing that a 1000-foot long offshore
intake would cost about $150 million.
One measure Poseidon offered to include in its facility to reduce entrainment would be to install
variable speed pumps (see Poseidon's June 2007 Flow.Entrainment and impingement
Minimization Plan);however,since the entrainment rate is primarily a function of the amount of
water used,this measure would not likely reduce entrainment as long as Poseidon continued to
pump the anticipated 304 MGD into the desalination facility.
78 Id.
79 See Issues Related to the Use of the Agua Hedionda Inlet Jetty Extension EIR to Recommend An Alternative
Seawater1ntake for the Carlsbad Desalination Project,Graham,Le Page and Mayer,October 8,2007.
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Other available mitigation options that would avoid or reduce entrainment impacts include the
use of a zero-discharge system or routing more of Poseidon's discharge to the sanitary sewer
system,as either of these options would reduce the amount of estuarine water needed for
dilution.A zero-discharge system uses either mechanical means or evaporation to re-use and
reduce discharge volumes.Some of these systems may also allow some cost savings through
their recovery of salts or minerals from the seawater.Although the scale of the proposed project
may prevent use of a zero-discharge system for the entire amount,it could possibly used for
some ofthe discharge,perhaps in conjunction with routing additional volumes to the sanitary
sewer system at the nearby Encina Wastewater Pollution Control Facilities.However,the sewer
system has limited capacity,and this option would be feasible only if additional capacity were to
be made available.Further,Poseidon has noted that the system is not currently designed to
handle what wonld be a highly corrosive discharge of concentrated seawater,thereby making this
option infeasible.
As noted in Exhibit B of its November 9,2007 letter,Poseidon has submitted to the Regional
Board a Flow,Entrainment and Impingement Minimization Plan meant to identify feasible
methods to minimize the remaining entrainment impacts.The Board's approval of that Plan is to
be based on Poseidon identifying the best available and feasible operational,technological,and
mitigation measures to meet that standard.Poseidon further notes that a proposed condition of
the draft State Lands Commission lease would require,ten years after the lease is issued,that
Poseidon be subject to further environmental review to ensure its operations at that time are
using technologies that may reduce any impacts.Regarding the potential to route all or part of
its discharge to the nearby sewer treatment system,Poseidon notes that the system is not
designed to handle highly corrosive concentrated seawater.
Therefore,based on the above,and along with the Regional Board's approval of Poseidon's
Flow,Entrainment and Impingement Minimization Plan to ensure that Poseidon implements all
feasible methods to minimize the project's entrainment impacts,the Commission finds that
Poseidon's proposal is using all feasible methods to minimize or reduce its entrainment impacts.
Even so,project operations will result in ongoing substantial entrainment impacts that require
compensatory mitigation,as described below.
Compensatory mitigation:The third main step in mitigation sequencing is to provide
compensatory mitigation -that is,creating,restoring,or enhancing the same or similar types of
habitats as those a project would adversely affect.This mitigation step has its own sequence .;it
should first be "in-kind",if possible -that is,it should result in the same type of habitat as that
being lost;it should be "on-site"-that is,it should be at or near the site of tile affected habitat;
and it should be "in time"-that is,the mitigation site should provide habitat functions at the
same time the affected habitat is losing its habitat value.As mitigation options move away from
any of these three characteristics,the amount of mitigation needs to increase to reflect that the
mitigation is not fully providing the habitat ftmctions and values being lost.For example,if a
mitigation site is not expected to provide its expected habitat :functions for several years -due to
the need to construct it,plant the necessary vegetation,let the vegetation take hold,etc.-that
time lag is addressed by requiring mitigation at greater than a I:I ratio to make up for the time
period between when the habitat impact starts and when the mitigation site begins providing the
anticipated habitat :function.Similarly,when mitigation is intended to replace lost high-quality
habitat,a restoration or enhancement mitigation site will often be larger than the project site to
reflect the overaUlower quality of the habitat that comes about through mitigation.Mitigation
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ratios can range from as low as 1:1 when mitigation is certain,immediate,and of equivalent
value as the lost habitat,to 30:1 or higher for lower quality or delayed mitigation to make up for
the loss of high-quality habitat.
On October 10,2007,Poseidon provided to Commission staff its updated proposed Coastal
Habitat Restoration and Enhancement Plan that it intends to submit to the Regional Board.This
Plan described seven possible mitigation options at varions locations in Agua Hedionda or
elsewhere in northern San Diego County.Commission staff evaluated it to determine whether it
would provide adequate mitigation for Poseidon's anticipated entraiument and impingement
impacts.As discussed below,the Plan does not yet include the level of information or certainty
to determine that any ofthe possible measures would be implemented,would provide adequate
mitigation,or would confonn to Coastal Act provisions.However,with the Commission's
imposition of Special Condition 8,requiring that Poseidon submit for further Commission
approval a revised Plan that fully documents Poseidon's entrainment stndy,identifies specific
mitigation measures,implementation criteria,monitoring measures,and other standard
mitigation plan elements,the Commission ensures that the Plan will provide adequate mitigation
for Coastal Act conformity,
The Commission has authority to require mitigation for the anticipated entraiument impact even
though the Regional Board is expected to also address any mitigation needs.Coastal Act
Sections 30230 and 30231 confer on the Commission authority to regulate impingement and
entrainment impacts ofprocesses that involve the intake of seawater.This authority is not
affected by the limitation of Section 30412(b)that prohibits the Commission from taking any
action that is "in conflict with"any determination by the State Water Quality Control Board or a
Regional Board "in matters relating to water quality ...."The Commission's position is that
adverse entrainment and impingement effects on marine organisms are not matters of "water
quality."This interpretation of the "no conflict"language of Section 30412(b)is supported by
the second paragraph of that provision which provides that nothing in Section 30412(b)"shall be
interpreted in any way...as...limiting the Commission ...from exercising"its authority under the
Coastal Act "except as provided in this section."(Emphasis added.)
Past Commission decisions have included findings and conditions based in part on entrainment
and impingement impacts to marine resources.Recently,for example,the Commission denied
the proposed BHP Billiton Liquefied Natural Gas terminal (CC #079-06)due in part to its
inadequate entrainment mitigation.In several power plant siting cases during the past seven
years,the Commission found that the predicted adverse entrainment effects would be significant
and would require mitigation to conform to Coastal Act policies.As noted previously,these
include Moss Landing,Morro Bay,and South Bay,which have intakes in estnaries.
Poseidon stated in the Plan that it would provide up to $2.79 million for various potential
mitigation projects in northern San Diego County.The Plan identified those potential projects
based on responses to Poseidon's distribution in August 2007 of a "Request For Expressions of
Interest"(REI).The REI asked interested parties to submit mitigation proposals that would
"preserve,restore or enhance existing wetlands,lagoons,or other high-productivity near-shore
coastal areas"in San Diego County.The proposals were also to be consistent with requirements
of the Coastal Commission,Regional Board,National Marine Fisheries Service,and other
federal,state,and local agencies.Poseidon asked that the proposals cover areas of from five to
37 acres,that they hold promise for long-term benefits,and that they be teclmically feasible.
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Poseidon then presented Connnission staff with seven proposals from the responses received.
On November 9,2007,Poseidon presented to Connnission staff a modified plan focused on just
one ofthe seven mitigation options (i.e.,the San Dieguito Coastal Habitat Restoration,shown
below)described in its previous plan.The seven proposals are described below:
•San Dieguito Coastal Habitat Restoration:This proposal describes possible mitigation
measures at San Dieguito Lagoon,abont 12 miles sonth of Agua Hedionda.This mitigation
site would be adjacent to a l Ifi-acre mitigation site being developed by Southern California
Edison pursuant to Coastal Development Permit #6-81-330.The proposal describes two
options,each of which would create about 37 acres of various wetland and upland habitat
types -e.g.,high salt marsh,seasonal salt marsh,native grasslands,etc.-for about $2.4
million to $2.79 million.Both options would rely in part on water quality treatment ponds
that have been funded but not yet constructed.It is unclear from the description how either
option would be selected or implemented.
•Lorna Alta Lagoon Restoration:This proposal describes acquiring two privately-owned
parcels that total 0.89 acres and restoring those and three other publicly-owned adjacent
parcels to add 3.01 acres of wetlands to an already restored 2.0 acre lagoon in Oceanside.
The overall project,proposed by the City of Oceanside,wonld cost about $5.6 million.It is
not clear from the proposal whether other funds have been provided or what amount is being
requested from Poseidon.The proposal does riot provide specific descriptions of the
expected habitat types.
•Agua Hedionda Lagoon Ecological Reserve Expansion:This proposal describes acquiring
and preserving a parcel ofland near the existing Ecological Reserve on the north shore of
Agua Hedionda's Inner Basin.The subject parcel is apparently being considered for a
housing development,but provides wildlife habitat adjacent to the Lagoon's wetlands.
However,the proposal does not identify details about expected mitigation benefits or project
costs.Additionally,it is apparently contingent on first determining whether the current
owner is interested in selling and then raising other needed funds for the purchase.It
describes Poseidon's potential contributions as helping with a down payment or helping to
secure a loan for the property.
•Agua Hedionda Lagoon Invasive Plant Eradication and Native Plant Restoration:Tlris
proposal would involve removing invasive,exotic species from the Agua Hedionda
watershed and planting native species.Itproposes a one-year,$1 million project that would
locate and map non-native,invasive plants,removal some number of those plants,revegetate
those areas with native plants,measure water quality and habitat parameters before and after
site treatments to determine ecosystem improvements,and provide pnblic education and
outreach.However,the proposal does not specify how many acres of invasive plants would
be removed or how many acres of native plants would be planted,and does not include any
monitoring or contingency plans to ensure the areas are maintained.
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•Agua Hedionda Lagoon Abalone Stock Enhancement:This proposal by the Carlsbad
Aquafarmwould involve growing and planting about 100,000 abalone at unspecified sites in
Agua Hedionda and other nearby waters.It would require $910,000 and is expected to take
from three to five years.
•Buena VistaLagoon Environmental Analysis:This proposal consists of a request that
Poseidon fund the completion of a Restoration Plan and Enviromnental Impact Report for the
Buena Vista Lagoon Foundation.
•Frazee State Beach Coastal Bluff Habitat Restoration:This proposal,from the California
Department of Parks and Recreation,would restore about 5.8 acres of coastal bluff habitat
near Agua Hedionda.The project would cost $508,330 and would involve removing non-
native vegetation,performing unspecified habitat restoration,and providing public
interpretation.
Poseidon states that it believes the San Dieguito Coastal Habitat Restoration is best fit to
preserve,restore and enhance existing wetlands,lagoons or other high-productivity near-shore
coastal areas located in the vicinity of Agua Hedionda Lagoon and/or elsewhere in San Diego
County."Poseidon's proposal is to create 40.71 acres of coastal wetlands habitat which it states
will be comparable to that found in and around Agua Hedionda Lagoon and will provide
sustainable,comprehensive enviromnental benefits for water quality,habitat diversity for species
abundance and for sensitive and endangered species."
Overall,although Poseidon contends this proposal will more than mitigate for Poseidon's
anticipated entrainment impacts,Commission staff's evaluation shows that the Plan does not
currently provide enough information or certainty to determine what mitigation would actually
occur.Staff notes that the Plan's shortcomings include the following:
•The Plan provides no certainty that the potential project would occur,as Poseidon states the
mitigation is contingent upon possible Regional Board approval.
The proposal does not include the type or level of information needed to determine what
mitigation benefits would accrue,what performance standards or contingency measures
would be used to ensure mitigation success,or other similar descriptions generally required
for determining the adequacy of a mitigation proposal.The proposal has the potential to
mitigate for entraimnent impacts,but the Commission would need a substantially more
detailed proposal to determine whether it would meet Coastal Act mitigation standards.
The Commission notes,for example,that Poseidon's proposed mitigation area would be
adjacent to a wetland mitigation site the Commission required as part of its approval of the
San Onofre Nuclear Generating Station (SONGS).To ensure the Commission's approval of
the SONGS mitigation plan conformed to Coastal Act policies,it required extensive
scientific study,substantial amounts of data collection,and detailed impact analyses to
80 Poseidon Resources,Carsbad Desalination Project,Coastal Habitate Restoration andEnhancement Plan,
November 2007,alp.3.
"rd.alp.7.
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determine the appropriate types and amount of mitigation needed to compensate for the
identified adverse effects of the SONGS once-through cooling system -for example,the
mitigation required included creation of new kelp beds to address the SONGS'impacts to
nearby kelp beds.The Commission's approval also required Southern California Eclison to'
meet specific performance standards and to provide ongoing monitoring efforts to ensure the
mitigation area functions as intended.Mitigation necessary to address Poseidon's impacts
will need to include a similar approach and level of detailed information to ensure Coastal
Act conformity.
•Commission staff further notes that the Plan does not include habitat restoration projects in
Agua Hedionda Lagoon,which is already the subject of extensive study on restoration needs
and mitigation work.There are a number of initiatives already occurring or planned that
involve enhancing or restoring water quality or habitat in Agua Hedionda,many being
implemented with substantial amounts of public funding.Poseidon's planned use of the
estuarine intake and its proposed compensatory mitigation approach away from Agua
Hedionda would diminish many of the water quality benefits and habitat values that these
other mitigation efforts are expected to provide.
As noted previously,for example,Carlsbad and other nearby cities are subject to
requirements of an NPDES permit issued by the Regional Board to improve storrnwater
management practices affecting Agua Hedionda.Also,the State Water Resources Control
Board is funding development of an Agua Hedionda Watershed Management Plan by the
Carlsbad Watershed Network.That plan calls for coordinated and integrated planning for
watershed management initiatives.As part ofthis plan,the Network is establishing a
comprehensive and prioritized list of mitigation opportunities in the watershed,which it
expects to complete in August 2008.The Network recently completed research identifying
shortcomings in the mitigation approach used thus far in the Lagoon that has resulted in low
success rates and recommencling steps to improve mitigation success.The Network
requested that any mitigation the Commission may require of Poseidon be integrated with
this existing state-funded effort.Thus far,however,Poseidon's possible mitigation projects
do not show the necessary level of coordination with these other ongoing efforts,
•Poseidon states that the Plan is based on provicling 1:1 mitigation for the loss of about 37
acres of habitat within Agua Hedionda.Staff believes,however,that the potential proj ects
offered do not provide "in-kind",on-site mitigation -that is,none would replace the habitat
or organisms lost in Agua Hedionda due to entrainment -and so the individual projects or
any combination of projects would have to provide mitigation at more than a 1:1 ratio.
•Commission staff further notes that the Plan appears to be based more on cost than mitigation
needs.Poseidon has established an upper limit of$2.79 million for mitigation costs,but that
does not appear to reflect the cost to provide adequate mitigation for its expected impacts.
For example,the October 10,2007 Plan assumes wetland restoration in Southern California
would cost about $75,000 per acre,but it includes several proposals where the costs are
unspecified or are well above that figure.The San Dieguito proposal comes closest to
Poseidon's assumed cost figure,but about a quarter of the mitigation at that site would be
uplands.The Oceanside proposal,to restore about three wetland acres for about $2.5.million
is well beyond Poseidon's expected costs.Even the completely out-of-kindmitigation that
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could result from the Frazee coastal bluff restoration would cost about $100,000 per acre.
Regarding Commission staffs concerns about the Plan's relationship to costs rather than
mitigation needs,at the November 15,2007 hearing Poseidon confirmed that it commits to
providing 37 acres of tidally-exchanged marine wetlands.Poseidon has also proposed
additional marine resources restoration and enhancement beyond that described in the Plan.
Poseidon contends,however,that the Plan adequately resolves the concerns raised by
Commission staff,will more than fully mitigate any project-related entrainment impacts,and
ensures that the productivity of coastal waters,wetlands and estuaries will be enhanced and
restored in compliance with Coastal Act Sections 30230 and 30231,based on the following:
..Regarding the concerns about Regional Board approval of the Plan,Poseidon's position is
that Carlsbad and other nearby cities are subject to requirements of an NPDES permit issued
by the Regional Board to improve stormwater management practices affecting Agua
Hedionda.Also,the State Water Resources Control Board is funding development of an
Agua Hedionda Watershed Management Plan by the Carlsbad Watershed Network.That
plan calls for coordinated and integrated planning for watershed managements initiatives."
As part of this plan,the Network is establishing a comprehensive and prioritized list of
mitigation opportunities in the watershed,which it expects to complete in August 2008.The
Network recently completed research identifying shortcomings in the mitigation approach
used thus far in the Lagoon that has resulted in low success rates and recommending steps to
improve mitigation success.B3 The Network requested that any mitigation the Commission
may require of Poseidon be integrated with this existing state-funded effort."In addition,the
Commission retains full authority to ensure theproject's consistency with the Coastal Act's
marine resource protection policies through the imposition of Special Condition 8,which
provides that Poseidon submit a Marine Life Mitigation Plan for Commission review andapproval.
•Poseidon has stated that it would be very interested in collaborating on a habitat restoration
project for Agua Hedionda Lagoon,but that it has not yet received proposals from entities
interested in doing marine wetlands mitigation in the Lagoon.On-site mitigation has not yet
been identified as a feasible mitigation option for the project,but the revised Plan provides
for further research into on-site mitigation opportunities.The revised Plan contains a
detailed description of Poseidon's efforts to identify feasible restoration projects on-site in
82 For example,the Carlsbad Watershed Management Plan includes the following objectives:
•"Coordinate watershed efforts:"Action Items"should facilitate coordinated efforts between municipalities,
regulatory agencies,and environmental organizations to implement watershed management policies and
physical improvements at the most functional locations and in the most effective manner,without the restrictionofpoliticalboundaries.
•Integrate various planning efforts:Planning for land use,transportation,watershed protection and habitat
conservation need to be integrated and coordinated."Action Items"related to planning must look for as many
overlapping benefits between these planning topic areas as possible."
83 Case Study:Systemic Evaluation of Compensatory Mitigation Sites Within the Carlsbad Hydrologic Unit,byNicholasR.Magliocca,UCSD.
84 See September 24,2007 letter from Carlsbad Watershed Network to Commission staff.
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Agua Hedionda Lagoon.In August 2007,Poseidon sent "Requests for Expressions of
Interest"to 77 public and private eutities and individuals that are involved in,have
jurisdiction over,or interest in wetlands restoration in the San Diego region,including the
Carlsbad Watershed Network.Through this effort,Poseidon received a total of eight
mitigation proposals.Three proposals involved proposed mitigation projects in the Agua
Hedionda Lagoon watershed;however,none of these proposals addressed the primary
purpose of the mitigation project -restoration of marine wetlands.Because these proposals
did not meet the mitigation project objective,they were not considered further.
Because investigations to date have not resulted in the identification of any mitigation
opportunities within Agua Hedionda Lagoon that meet the basic marine wetlands restoration
objectives ofthe Plan,Poseidon's proposed mitigation includes a core off-site project that
meets the Plan goals and objectives.This mitigation project,located in the San Dieguito
River Valley adjacent to the marine wetlands restoration project implemented by Southern
Califomia Edison as mitigation for the entrainment and impingement impacts from its San
Onofre Power Plan,is being developed in parallel with continued efforts to identify feasible
mitigation opportunities in Agua Hedionda Lagoon.
In addition to the core off-site mitigation project,Poseidon's Flow,Entrainment and
Impingement Minimization Plan sets forth a mitigation plan that includes additional
coordination activities either (1)to identify if new mitigation options within Agua Hedionda
Lagoon have arisen since Poseidon's last Requests for Expressions of Interest or (2)to
confirm the lack of on-site mitigation opportunities.If mitigation opportunities within Agua
Hedionda Lagoon have arisen,and such mitigation is detemrined to be feasible,Poseidon
will coordinate with regulatory agencies -including the Commission -to implement such
mitigation.B5 IfAgua Hedionda Lagoon mitigation that meets the objectives is confirmed to
be unavailable and infeasible,Poseidon win implement the proposed off-site mitigation
project."In the meantime,however,on-site mitigation remains as an option to be furtherexploredafterapprovalofthePlan.
•Poseidon also contends that the Plan provides more than I:1 mitigation for reduced
productivity in about 37 acres of habitat within Agua Hedionda.However,in Commission
staffs view,none of the potential projects offered would provide "in-kind",on-site
mitigation -that is,none would replace the habitat or organisms lost in Agua Hedionda due
to entrainment -and so the individual projects or any combination of proj ects may have to
.provide mitigation at more than 1:I ratio.In contrast to staffs view,Poseidon contends that
the wetlands in the Plan's proposed off-site San Dieguito mitigation are ofthe same type of
habitat that would be impacted by desalination plant operations (i.e.,gobies,blennies,
anchovy,topsmelt,white croaker,etc.),based on the biological survey ofthe existing tidal
wetlands of the San Dieguito Lagoon completed as a part of the Southern California Edison
Restoration Project."Poseidon therefore states that implementation of the proposed
restoration project at San Dieguito will create in-kind replacement habitat,which has 1:1
restoration value.Poseidon notes that the Coastal Commission found the San Dieguito
es [d.
"[d.
87 SeE,San Dieguito Wetlands Restoration Project,Final Restoration Plan,November 2005.
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Lagoon to be acceptable for mitigation of the entrainment and impingement impacts ofthe
San Onofre Nuclear Generating Station,which is 45 miles away from the San Dieguito
Lagoon and which is impacting open water fish species that do not necessarily reside in a
lagoon environment.The proposed desalination facility is much closer to the proposed
mitigation site (12 miles)and Poseidon is proposing to replace tidally exchanged coastal
lagoon habitat with in-kind mitigation.
..Regarding Commission staff s concerns about the Plan's relationship to costs rather than
mitigation needs,at the November 15,2007 hearing Poseidon did confirm that it commits to
providing at least 37 acres of tidally exchanged marine wetlands.
In sum,Poseidon has described several mitigation options,but has not yet confirmed which
mitigation option(s)it would implement to address impacts caused by its use of the estuarine
intake Poseidon has currently identified the need to restore no less than about 37 acres of
marine wetlands.However,as described in these Findings and through imposition of Special
Cond1uiijlJll8,which requires Poseidon to submit for Commission review and approval a Marine
Life Mitigation Plan that includes a full entrainment study that documents its expected impacts
and ',,,,nlifies the specific mitigation measures,implementation plans,and compliance
mo..».wing needed to mitigate the impacts identified in that study,the Commission is ensuring
thai Puseidon will provide the mitigation necessary to address those impacts in a manner
consistent with applicable Coastal Act provisions.Special Condition 8 ensures that all project-
related entrainment impacts will be fully mitigated and that marine resources and the biological
pro-n.cu vity of coastal waters,wetlands,and estuaries will be enhanced and restored in
compliance with Coastal Act Sections 30230 and 30231.
Anticipated Project Impacts and Coastal Act Conformity -Discharge-Related
Description of Impacts:The proposed project would result in a discharge of about 250 MGD '
from the desalination facility to the outfall currently used by the power plant,which is located on
state tidelands and on Carlsbad State Beach.The discharge would contain at least 50 MGD of
high salinity water from the facility along with at least abont 200 MGD of estuarine water
pumped into the intake system to provide dilution for the high salinity discharge.The expected
"end of pipe"salinity of the blended discharges is expected to be about 40 parts per thousand
(ppt)of salinity.This would be about twenty percent higher than the naturally occurring average
salinity of about 33.5 ppt in these nearshore waters.Because the discharge would be
immediately adjacent to the shoreline,the plume of higher salinity water would extend along the
beach and nearshore waters.Poseidon's discharge would be subject to conditions of an NPDES
permit that allows discharges at an average daily concentration of up to 40 ppt and an average
hourly concentration of up to 44 ppt.The NPDES permit additionally requires Poseidon to
conduct monitoring,identify additional methods to minimize its discharge-related impacts,and
to implement many of those methods.
Poseidon's desalination process would also inclnde adding a number of chemicals to the water
during desalination.The chemicals used would be those commonly used in water treatroent
plants,such as coagulants,alkalinity adjusters,and various membrane cleaning chemicals such
as hydrochloric acid,detergents,or caustic soda.Poseidon stated in Exhibit B of its November
9,2007 Response to Staff Report that chemicals used would be neutralized or sent to the sanitary
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sewer system instead of the seawater discharge.The discharge would also include biological
matter -i.e.,the entrained organisms from the intake.
Poseidon's project as originally proposed -that is,co-located with an operating power plant
cooling water system -would have withdrawn 100 MGD of the several hundred million gallons
used by the power plant,processed that water to produce 50 MGD of potable water,and
discharged about 50 MGD of its high salinity waste stream back into the up to eight huudred
million gallons of seawater being discharged by the power plant.Blending the desalination
discharge with the much larger power plant discharge would have resulted in an overall
discharge with salinity levels very close to the natural backgrouud levels in the nearshore ocean
waters.Without the power plant discharge,however,a 50 MGD high salinity discharge would
cause salinity levels twice that of seawater and cause significant adverse impacts to marine life inthenearshorewatersandontheseafloor.
Mitigation measures:To address this issue,Poseidon proposes to maintain a discharge of at
least 254 MGD when the power plant is not operating or is discharging less than that amount.
Poseidon determined that an overall 254 MGD discharge would dilute its 50 MGD desalination
discharge so that salinity levels near the outfall would be about 40 ppt instead of 67 ppt.This 40
ppt level is about 20 percent higher than the average receiving water salinity and about 15
percent higher than the level of natural variation in local seawater salinity.Local seawater
averages about 33.5 ppt and varies naturally up to about 34.4 ppt,due to phenomena such as
upwellings,changes in freshwater inputs,and others.The project EIR determined that a
discharge of 40 ppt salinity would not cause significant adverse impacts to marine life."
Guidance from the U.S.EPA recommends that salinity levels from a discharge should not vary
more than 4 ppt from the range of natural variation in areas permanently occupied by food and
habitat forming plants (e.g.,hard bottom habitat,kelp beds,etc.).Using the EPA gnidance
would result in a maximum allowable discharge level of about 38.4 ppt in the kelp beds 2000
feet offshore.Poseidon's NPDES permit allows an average daily concentration of 40 ppt and an
average hourly concentration of up to 44 ppt.Poseidon's hydrodynamic modeling indicated that
as long as the discharge remains at or below these concentrations,the salinity in the kelp bedwouldbebelow36.8 ppt.
Poseidon also submitted modeling results showing the expected extent of the salinity plume
based on local historical.data for characteristics such as ocean temperatures,currents,and
salinity levels.The extent of the high salinity in the discharge would vary based on how these
characteristics interact at any given time.Poseidon's models show that salinity concentrations
above the level of natural variation would cover abou!8.3 acres of the nearshore seafloor during
average conditions (i.e.,a frequency of 50%)and would cover up to about 44 acres during
extreme conditions (i.e.,a frequency ofless than 0.1%).
Under either condition,the salinity range of the discharge would not .exceed 40 ppt (or 44 ppt
maximum hourly concentration)at the point of discharge,and the discharge would be diluted to
near 36.5 ppt within the zone of initial dilution,which extends 1000 feet from the discharge
channel.While the discharge would create conditions beyond the range experienced by the local
88 The ErR stated that elevated salinity levels would cause significant impacts if they had a substantial adverse effect
on marine biota,included extended exposure to salinity levels above 40 ppt or permanent elevation of salinity levels
above 38.4 ppt on hard bottom habitat.
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biota,Poseidon has provided test results showing that a 40 ppt salinity level would cause no
acute or chronic effects to several test organisms.The site-specific Comprehensive Salinity
Tolerance Study completed for Poseidon by Dr.Steven Le Page and Dr.Jeffrey Graham
indicates that the proposed discharge will not result in acute or chronic toxicity.The Study
inclnded long term (5.5 months)exposure of 18 marine species inhabiting the discharge area to a
typical discharge salinity of36 ppt.According to the proj ect's ErR,all of the test species were
chosen due to their known existence in the subject area,and several of the species (abalone,sand
dollar and red sea urchin)where chosen for their susceptibility to environmental stress.(See
project EIR,at Appendix E.)Poseidon provides that the results ofthe 5.5 month test of exposure
of the 18 species to typical discharge salinity of36 ppt indicate that all organisms remained
healthy throughout the test period.No mortality was encountered and all species showed normal
activity and feeding behavior.Poseidon further provides that additional acute and chronic
toxicity studies completed subsequently for the project using the United States Environmental
Protection Agency's standard whole effluent toxicity (WET)test have confirmed the validity and
results ofthe Salinity Tolerance Study.
However,Commission staff's view is that the organisms studied in the Salinity Tolerance Study
are not representative of the full suite of marine life living in these nearshore waters and benthic
habitat that would experience this level of salinity.Further,several species used in these tests
are generally considered more salinity tolerant than others,so the test results likely do not reflect
actual effects that would occur to species exposed to these high salinity levels in the natural
environment.For example,a State Board proposal to establish a salinity limit in the state's
Ocean Plan includes a proposed limit of 36.5 ppt based on study results showing that level
caused adverse effects to sea urchin embryos,which is one of standard test species more
sensitive to salinity differences."Other studies show that slight differences in salinity levels can
affect the population density of various species,their ability to tolerate various environmental
stressors,reproductive rates,and other effects."
In addition to higher than natural levels of salinity,Poseidon's discharge would include some as-
of-yet unknown amounts of other constituents that would enter the discharge from various
materials or methods used in the proposed facility.As noted above,these include various
chemicals and the dead organic matter from organisms entrained in the intake.
89 The State Board is considering an amendmentto the state's Ocean Plan that would establish an upper salinity limit
for discharges into California's coastal waters.The Ocean Plan at this time does not have a specific salinity limit,
but requires in general protection of beneficial uses and water quality objectives for other contaminants.and physical
water quality characteristics.In JlIDe 2007,the State Board issued a Scoping Document for its proposed policy that
included three proposed alternatives:"No Action"-that is,do not add a salinity limit to the Plan;''No discharges
above natural variation"-that is,limit salinity in discharges to the range of natural variation which is about 10%
above average;or,"Numeric water quality objective of36.5 ppt",based on study results showing that salinity levels
above than 36.5 ppt caused adverse effects to sea urchin embryos.
90 See,for example,Technical Report 39:San Francisco Estuary Regional Monitoring Program for Trace
Substances,Result of the Benthic Pilot Study,August 2000;and Voyer,R.A.,and Glen Modica,Influence of salinity
and temperature on acute toxicity of cadmium on Mysidopsis bahia,in Environmental Contamination and
TOxicology,Vol.19:1,January 1990.
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Based on the above,Poseidon's proposed discharge would likely result in salinity levels higher
than the natural range in from about eight to 44 acres of nearshore benthic habitat.Although the
extent of the areas would vary continually based on environmental conditions,some areas would
be subject to nearly continual salinity concentrations higher than natural salinity variations.
The Regional Board studied the project's discharge before issuing the project's NPDES Permit
(Regional Board Order No.2006-0065).The Regional Board considered the discharge impacts
of the project and conditioned all potential discharge-related impacts to ensure compliance with
Clean Water Act and California Ocean Plan requirements.The Ocean Plan contains water
quality objectives and beneficial uses for ocean waters of California.The beneficial uses of
ocean waters include industrial water supply;water contact and non-contact recreation,including
aesthetic enjoyment;navigation;commercial and sport fishing;mariculture;preservation and
enhancement of designated areas of special biological significance;rare and endangered species;
marine habitat;fish migration;and fish spawning and shellfish harvesting.The Regional Board -
determined that an average daily effluent limitation of 40 parts per thousand for salinity would
protect beneficial uses of the Ocean (including protection of fish habitat)and ensure that no
salinity-related toxicity effects would occur in receiving waters.The NDPES Permit establishes
extensive monitoring and reporting requirements to ensure compliance with this effluent
limitation."
As noted previously,Poseidon states inits November 9,2007 letter that the project's NPDES
permit and the Regional Board's eventual approval of Poseidon's Flow,Entrainment and
Impingement Minimization Plan will ensure that the proposed facility uses all feasible measures
to avoid and reduce any discharge-related impacts.Further,the Board's approval is necessary
before the facility can operate.Because the Board's final approval would include such findings
and would ensure that the project's discharges conform to relevant requirements of the federal
Clean Water Act and the water quality objectives ofthe state's Ocean Plan,the Commission
therefore finds that project-related discharges result in minimal adverse effects to water quality
and marine life.
Anticipated Project Impacts and Coastal Act Conformity -Cumulative
Impacts
In addition to the adverse marine biological effects the proposed project would cause to Agua
Hedionda Lagoon and the nearshore waters off of Carlsbad,the project would contribute to
cumulative impacts already occmring in those waters.As noted above,Agua Hedionda Lagoon
is listed as an impaired waterbody due inpart to excess sedimentation.The impairment affects a
number of beneficial uses of the waterbody and requires the ongoing dredging described in the
next section of these Findings.As docnmented by the Regional Board's 303(d)listing of Agua
Hedionda Lagoon as an impaired water body"and by Poseidon's sediment studies,the
"See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A,at p.12;NPDES
Permit,Regional Board Order R9-2006-0065 at 12,F-18,F-37 (Attachment I to Poseidon Resources Corporation,
Response to California Coastal Commission IS September 28,2006 Requestfor Additional Information,November30,2006).
922006 Clean Water Act 303(d)List of Water Quality Limited Segments Requiring TMDLs,San Diego RegionalWaterQualityControlBoard,June 28,2007.
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sedimentation is due both to fine-grained material from urban runoff being deposited in the
Lagoon's Inner Basin and to the intake drawing in water from the Lagoon that would otherwise
exit through the Lagoon mouth and take much of the sediment with it.The source of this
sediment is the longshore sand movement off the coast of Carlsbad,and as a result of the jetties
and the intake,sediment pulled into the Lagoon is removed from that longshore process,
resulting in the need for beach nourishment that causes effects to coastal resources in the form of
ongoing dredging every few years and the accompanying disruption of public access to areas of
the nearby beaches.As noted previously in Section 4.4 of these Findings,sedimentation
concerns will be addressed through the Regional Board's NPDES review and through ongoing
Coastal Commission permit review of future dredging proposals.
Conclusion
Regarding entrainment and impingement,Poseidon's proposed project would use 304 MGD of
estuarine waters (equal to about 932 acre-feet of water per day,which over a year would cover
more than 500 square miles up to one foot deep in water).This water use is assumed to kill all
the larval and planktonic organisms in that water,which Poseidon estimates represent about 37
acres worth of wetland and open water productivity in Agua Hedionda.Poseidon has proposed a
compensatory mitigation approach to mitigate these impacts.
Poseidon conterids that the assumption that the project will cause 100 percent mortality to the
marine organisms in the seawater diverted from Agua Hedionda Lagoon is overly conservative
because it ignores the design and technology features that have been incorporated inthe
proposed project.Poseidon contends the project has incorporated several technology features
that will substantially lessen the impacts to marine life,including:mortality will be reduced due
to the lower temperature,volume,velocity and turbulence of the desalination facility's
operations compared to the power plant;and only 35 percent of the seawater in the desalination
plant's intake will actually enter the desalination facility and be subject to processing that could
result in entrainment mortality,while the rest of the water will be returned to the ocean.
However,as noted above,both the project EIR and the entraiument study protocols used to
assess this type of impact do not recognize a lower mortality rate for these types off actors,and
the 100 percent mortality is a reasonable assumption.
As noted above,the Commission has determined that alternative intakes that might avoid or
minimize environmental impacts are infeasible or would cause greater environmental damage.
Therefore,to ensure Poseidon provides adequate compensatory mitigation for the proposed
project's marine life impacts and to conform to Coastal Act Sections 30230 and 30231,Special
Condition 8 requires Poseidon to submit to the Commission for review and approval a marine
life mitigation plan.TIlls plan must document the project's expected impacts to marine life
caused by entraimnent and impingement and identify the types and amounts of mitigation best
suited to address those impacts.It must also provide mitigation to the maximum extent feasible
in the form of creation,enhancement,or restoration of aquatic and wetland habitat and must
include standard mitigation measures,including acceptable performance standards,monitoring,
contingency measures,and legal mechanisms to ensure permanent protection of the proposed
mitigation site(s).The coastal development permit will not be issued until the Commission
approves a mitigation plan meeting these requirements.Further,to ensure the identified marine
life impacts do not exceed those identified through development of this mitigation plan,Special
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Condition 9 requires Poseidon to obtain an amendment of its coastal development permit before
any increase in its average seawater flows of304 MGD.
Therefore,based on the studies cited and the information provided above,the Commission finds
that the project as conditioned,conform to Coastal Act Sections 30230 and 30231.
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4.5.2 Use of Wetlands and Coastal Waters (Coastal Act Section 30233)
Coastal Act Section 30233(a)states,in relevant part:
The diking,filling,or dredging of open coastal waters,wetlands,estuaries,and lakes
shall be permitted in accordance with other applicable provisions of this division,where
there is nofeasible less environmentally damaging alternative,and where feasible
mitigation measures have been provided to minimize adverse environmental effects ...
Coastal Act Section 30233(b)states:
Dredging and spoils disposal shall beplanned and carried out to avoid significant
disruption to marine and Wildlife habitats and water circulation.Dredge spoils suitable
for beach replenishment should be transported for thesepurposes to appropriate beaches
or into suitable longshore current systems.
Coastal Act Section 30233(c)states:
"In addition to the other provisions of this section,diking,filling,or dredging in existing
estuaries and wetlands shall maintain or enhance thefunctional capacity of the wetland
or estuary.Any alteration of coastal wetlands identified by the Department of Fish and
Game,including,but not limited to,the 19 coastal wetlands identified in its report
entitled,"Acquisition Priorities for the Coastal Wetlands of California ",shall be limited
to very minor incidental public facilities,restorative measures,nature study,commercial
fishing facilities in Bodega Bay,and development in already developed parts of south San
Diego Bay,if otherwise in accordance with this division ...
Coastal Act Section 30233 requires in general tbat dredging in coastal wetlands and estuaries be
limited to certain types of uses,that it be allowed only where there are no feasible less
environmentally harmful alternatives,and that it be mitigated to the extent feasible.Italso
requires that dredging be implemented in a manner that avoids significant disruption to marine
and wildlife habitats and to water circulation.Section 30233(c)further imposes a more limited
set of allowable uses in some wetlands,including Agua Hedionda Lagoon.Because Agua
Hedionda Lagoon is one oftbe coastal wetlands subject to the use limitations in Coastal Act
Section 30233(c),tbat subsection serves for this proposed project as the standard of review for
allowable uses.
Description of theproject's alteration of,and its effects on,Agua Hedionds
Lagoon
Agua Hedionda Lagoon is one of 19 coastal wetlands identified in tbe California Department of
Fish and Game report,Acquisition Priorities for the Coastal Wetlands of California.This report
identifies high priority wetlands for acquisition,based primarily on tbeir values for fish and
wildlife habitat and tbreats to their continued existence as a natural resource.Areas of the
Lagoon where tbe plant and animal life is especially valuable due to its special nature in the
ecosystem include tbe Agua Hedionda Lagoon State Marine Reserve and Ecological Reserve,
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which cover about 180 acres extending along about a half-mile of the Lagoon's Inner Basin.The
Lagoon includes extensive areas of open water habitat,eelgrass beds,and various types of
wetlands,and provides significant habitat benefits to a number of species,as described
previously in these Findings.These Findings also show that Poseidon expects its use of estuary
water would create adverse entrainment effects equal to the loss of about 37 acres of Agua
Hedionda's wetland and open water areas.As explained below,Poseidon's proposed water use
and the resulting adverse effects would be an alteration of Agua Hedionda subject to review
under Coastal Act Section 30233(c).
Agua Hedionda Lagoon as it currently exists is a highly engineered coastal lagoon.During the
past half "century of power plant operations,the power plant's cooling water intake created an
imbalance between tidal inflow and outflow,resulting in more sediment entering the estuary than
leaving.Agua Hedionda Lagoon is on the state's list of impaired waterbodies due to high rates
of sedimentation,which are caused primarily by fine-grained sedimentation discharged by urban
rnnoff into the Lagoon and in part by the power plant's intake and would continue due to
Poseidon's proposed use of the intake.As an existing coastal-dependent industrial facility
operating in the Lagoon since the mid 1950s,the power plant has dredged its cooling water
intake channel at least 25 times over the last half-century."Since 1954,dredging is estimated to
have removed about eleven miIIion cubic yards of material from the Lagoon.
Starting in 1977,the Commission issued a number of coastal development permits to aIIow
various amonnts of dredging for one-year or multiple-year periods.During Commission review
of the last several permits,there was considerable debate about where to deposit the dredged
spoils.Much of the material was sand suitable for being placed on beaches and used for
recreation;however,it was believed that material placed on some of the nearby beaches,
particularly those to the north of the Lagoon mouth where recreational benefits were higher,
would be quickly transported by tide and currents back into the Lagoon where it would need tobedredgedagain.
The Commission required that some material be placed at various beaches in and near the
Lagoon where it would serve a recreational purpose;however,the Commission also required the
power plant owner to pay for an independent study to assess sediment transport conditions along
the ocean shoreline in and near Agua Hedionda."That 1999 study found that,on average,abont
80%of the sand trapped within the Lagoon comes from longshore transport from north and the
rest comes from the south.It recommended that most of the dredged spoils be placed to the
south ofthe lagoon to reduce the need for "re-dredging"the same material.At about the same
time,the San Diego Association of Governments (SANDAG)was implementing another
program to increase the amount of sand on nearby beaches with a focus on providing sand to
enhance recreational uses of beaches to the north (See CDP 6-06-061).
While it is clear that continued use of the intake will require some level of dredging,it is unclear
at this time how much dredging will be needed and whether dredging would be done just to
ensure the intake channel remains open or would also be done to protect or enhance other lagoon
93 Poseidon's proposed project would be a new,rather than an existing,facility,and with the pending power plant
shutdown,would result in new dredging-related impacts not necessary to maintain operations of an existing facility.
94 Elwany,Dr.Hany.Study of Sediment Transport Conditions in the Vicinity of the Agua Hedtonda Lagoon,1999.
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functions.Further,the power plant owner has stated it anticipates dredging and maintaining the
lagoon as long as it plans to use the existing once-through cooling system.To address these
uncertainties,Special Condition 12 clarifies that the Commission's approval at this time does
not authorize Poseidon to conduct any dredging and that futnre proposed dredging activities will
require submittal of new coastal development permit applications for the Commission's further
review and approval.However,Poseidon's proposed withdrawal of approximately 304 MGD of
estnarine water and the resulting loss of marine life and estnarine productivity caused by
entrainment represent an alteration to Agua Hedionda subject to review pursuant to Coastal Act
Section 30233(c).
Analysis of Conformity to Coastal Act Section 30233(c)
Coastal Act Section 30233(c)establishes that alterations to certain wetlands included in the
report,Acquisition Priorities for the Coastal Wetlands of California,must be limited to "...very
minor incidental public facilities,restorative measures,nature stndy,commercial fishing
facilities in Bodega Bay,and development in already developed parts of south San Diego
Bay ...".The report lists 19 of California's most productive coastal wetlands,which include
Agua Hedionda.
The proposed project would alter these wetlands in a mauner not allowed by Section 30233(c).
As stated in Section 30233(c),the allowable activities in Agua Hedionda are "very minor
incidental public facilities,restorative measures,[and]nature stndy ...".The project's proposed
development activity -i.e.,alteration in the form of removal and use of about 304 MGD of
estnarine water for desalination that results in a loss of estnarine productivity equal to about 37
acres of the lagoon,along with other lost biological functions and associated adverse impacts _is
not for a "very minor incidental public facility,"and is not a restorative measure or natnre stndy.
Further,although not currently proposed,dredging is expected to be necessary in the future to
allow the facility to use water from the lagoon,and this alteration would also be subject to
review under Section 30233(c)(see below).Therefore,the project's proposed use of these
wetlands does not conform to this section of the Coastal Act."The Commission further notes
95 Past Commission decisions have interpreted "minor"and "incidental"activities as those that are temporary in
nature and for which no alternatives exist.For example,in a recent decision approving the placement of pilings
within Agua Hedionda Lagoon to support an existing rail line (Consistency Certification #CC-52-05),the
Commission found that determining whether to allow an "incidental"public use under Section 30233(c)should also
consider whether there are feasible alternatives to the proposed wetland use.The Commission approved the project
in part because there were no alternatives,because the project would not affect the functional capacity of the lagoon,and becau~e it did not increase the capacity of the rail line.
In another example,the COUltof Appeal recognized the Commission's approach as a permissible interpretation of
the Coastal Act and supported the Commission's interpretation of "incidental"public service.In the case of Balsa
Chico Land Trust et al.,v.The Superior Court of San Diego County (1999)71 Cal.App.q'"493,517,the court foundthat:
...we accept Commission's interpretation of sections 30233 and 30240 ...In particular we note that under
Commission's interpretation,incidental public services are limited to temporary disruptions and do not usually
include permanent roadway expansions.Roadway expansions are permitted only when no other alternative exists
and the expansion is necessary to maintain existing traffic capacity.
As noted above,Poseidon's proposed dredging would not be temporary,as it would occur every three or four years
for 30 to 90 years.Also as noted above,there are alternatives available to this proposed dredging.
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that Section 30233(c)does not allow other uses in exchange for offsetting mitigation;therefore,
the mitigation Poseidon has offered for its entrainment impacts does not provide the needed
conformity to this section.
However,because the proposed project is considered a "coastal-dependent"industrial facility,
the Commission may evaluate it under Coastal Act Section 30260,which allows such projects to
be approved in some instances even when they are found to be inconsistent with other Coastal
Act provisions.The analysis and findings related to Section 30260 are in Section 4.5.7 of theseFindings.
Additional evaluation of the proposed project's dredging component
Coastal Act Section 30233 also includes other provisions that are applicable to projects involving
fill or dredging.These include Section 30233(a),which imposes a three-part test to determine
whether proposed dredging is for an acceptable use,whether there are feasible and less damaging
alternatives,and if feasible mitigation measures are included to minimize adverse environmental
effects.Additionally,Coastal Act Section 30233(b)requires dredging and spoils disposal be
implemented in a manner that avoids significant disruption to habitat and water circulation.
Further,Coastal Act Section 30233(c),in addition to the use limitations noted above,includes a
provision that dredging maintain or enhance the functional capacity of wetlands or estuaries.
However,with the Commission's imposition of Special Condition 12 requiring Poseidon to
submit separate coastal development permit applications for any proposed future dredging,the
project as currently reviewed does not include dredging activities that would be subject to these
provisions.Further,as noted above,there is substantial uncertainty about how much dredging
Poseidon would be required to perform,where the dredging would occur,its effects,and the
mitigation needed to address those effects.Additionally,the currently available information
shows that the power plant owner plans to dredge and maintain the lagoon for the foreseeable
future.Itis therefore appropriate to conduct the necessary review for Coastal Act conformity
when these aspects of any needed dredging are better known.At that time,proposed dredging
activities would be reviewed to determine their confonnity to applicable Coastal Act provisions.
Poseidon contends that its proposed dredging of the lagoon would be a permitted use under
Coastal Act Section 30233.It states that its dredging would benefit the lagoon and the marine
resources,scientific research,fishing,public access and recreational activities that rely on the
lagoon."Poseidon further contends that there is no feasible alternative to its proposed dredging
and that dredging is a project benefit that is fully consistent with the Coastal Act.It states that
the Commission has approved dredging of the Lagoon on at least 17 separate occasions since
1977,most recently in November 2006 (see CDP 6-06-061).Poseidon further contends that,
because Cabrillo Power,the owner of the power plant,currently dredges.the Lagoon on a routine
basis and has done so for the past fifty years,the existing environmental baseline from which the
Commission must review the project is an environment in which dredging occurs routinely."
Poseidon states that it would voluntarily take over this responsibility if,at some point in the
future,the power plant were to shut down and Poseidon would do nothing to change this existing
915 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A at p.25.
97 See.e.g.,Fat v.County a/Sacramento,97 Cal.App.4th 1270 (2002)(environmental baseline consists of
environmental conditions as they exist prior to the commencement of environmental review of the project).
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dredging activity other than rednce the frequency ofthe dredge cycle as described in Dr.Scott
Jenkin's report,Comparative Analysis of Intake Flow Rate on Sand Influx Rates at Agua
Hedionda Lagoon:Low-Flow vs.No-Flow Alternatives,September 28,2007.
Poseidon further contends that routine dredging is required to maintain the Lagoon in its current
state and prevent it from reverting to its original state -a slough comprised of shallow marsh
channels filled with anaerobic hyper-saline water -and that the recreational,fishing,and
aquaculture activities would halt if the power plant shut down and Poseidon did not volunteer to
continue maintenance dredging of the Lagoon.Poseidon also contends that,while dredging may
have minimal short-term environmental impacts,the long-term environmental benefits that
dredging provides,including frotecting the valuable Lagoon in its current state,far outweigh the
minimal short term impacts."Poseidon relies on Comparative Analysis of Intake Flow Rate on
Sand Influx Rates at Agua Hedionda Lagoon:Low-Flow vs.No-Flow Alternatives,Jenkins and
Wasyl,September 28,2007,to demonstrate that there is no alternative to dredging to protect the
Lagoon from returning to "stinky water."In the absence of Poseidon's operations and its
assumption of the responsibility for maintenance dredging and stewardship of the Lagoon after
the Encina power station is decommissioned,Lagoon sedimentation from urban run-off will
result in closure of the Lagoon in five to seven years,and nearly complete loss of existing
beneficial uses thereafter."Poseidon believes its project will therefore enhance marine habitat
because it will preserve the Lagoon for both existing organisms and current recreational,fishing
and aquaculture activities..
For several reasons,however,the Commission does not concur.Poseidon does not own or
control lagoon areas subject to dredging or the various activities described above.Cabrillo,the
power plant owner,owns the lagoon,including the underlying aquatic lands,and has stated it
intends to continue its dredging and maintenance activities for the foreseeable future,both to
ensure a water supply for any of its generating units that may be needed as a regional back-up
power supply and to maintain the lagoon's amenities to preserve the value of its adjacent upland
properties.It is therefore not apparent that Poseidon will be conducting dredging,or that it
would be able to conduct dredging without permission from Cabrillo and approval from the State
Lands Connnission,and the Commission is not aware of such any agreements or approvals that
could be incorporated into these Findings or Special Conditions.'?"The Commission also notes
that the original power plant owner dredged the lagoon and started operating in the 1950s,well
before adoption of the Coastal Act,and that Poseidon's proposal would represent a new use of
the lagoon.The Connnission notes,too,that it approved previous power plant-related dredging
activities on a case-by-case basis by reviewing detailed dredging proposals provided by the
power plant owners and making findings on those specific proposals.Poseidon has not yet
proposed or submitted a detailed dredging plan that describes how it would conduct dredging or
how it would maintain these lagoon functions and activities.Such a plan would not ouly require
98 See Sierra Club v.California Coastal Commission,19 Cal.App.4th 547,562 (4th Dist.1994)(finding that "the
Commission has the power in particular cases to permit significant short-term disruption [from dredging]in order to
provide long-term benefits [to coastal resources]"under Coastal Act Section 30233.)
99 Comparative Analysis of Intake Flow Rate on Sand Influx Rates at Agua Hedionda Lagoon:Low Flow vs.No-
Flow Alternatives,Dr.Scott Jenkins,September 28,2007.
100 As described previously,Coastal Act Section 30601.5 requires in part that an applicant demonstrate,prior to
issuance of a coastal development permit,its ability to comply with all conditions of approval.
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landowner approval and other regulatory approvals,but would require detailed analyses of the
amounts and locations of dredging needed to maintain the water intake channel,additional
dredging that may be needed to maintain these various functions and activities,and further
analyses to determine whether there are feasible and less enviromnentally damaging alternatives
to dredging for both the intake and the other functions.Additionally,Cabrillo's existing State
Lands Commission lease for the lagoon inlet structure on state tidelands is limited to use for
power plant operations only and would require modification to allow Poseidon's proposed use or
subsequent dredging in areas subject to State Lands Commission jurisdiction.Itwould therefore
be speculative for the Commission at this time to concur with Poseidon's contentions,and the
Commission is therefore requiring these issues be appropriately addressed through Special
Condition 12,which will ensure the Commission has the opportunity in the future to determine
whether proposed dredging activities conform to applicable Coastal Act provisions.
Conclusion
The proposed project would represent a use and alteration of the Agua Hedionda wetlands not
permitted by Coastal Act Section 30233(c);therefore,based on the studies cited and the
information provided above,the Commission finds that the project as proposed does not conform
to this Coastal Act provision.However,because the proposed project is considered a "coastal-
dependent"industrial facility,the Commission may therefore evaluate it under Coastal Act
Section 30260,which allows such projects to be approved in some instances even when they are
found to be inconsistent with other Coastal Act provisions.The analysis and findings related to
Section 30260 are in Section 4.5.7 ofthese Findings.The Commission further finds that the
project as currentlyproposed does not include dredging but that imposition of Special Condition
12 ensures that Poseidon will apply for new,separate coastal development permits for any future
dredging proj ects it may propose.Commission review at that time will determine whether a
particular proposed dredging project will conform to applicable Coastal Act provisions.
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4.5.3 Public Access
Coastal Act Section 30210 states:
In carrying out the requirement oj Section 4 oj Article X oj the California Constitution,
maximum access,which shall be conspicuously posted,and recreational opportunities
shall be provided Jor all the people consistent with public saJety needs and the need to
protect public rights,rights oj private property owners,and natural resource areas from
overuse.
Coastal Act Section 30211 states:
Development shall not interfere with the public's right oj access'to the sea where
acquired through use or legislative authorization,including,but not limited to,the use oj
dry sand and rocky coastal beaches to the first line oj terrestrial vegetation.
Coastal Act Section 30212(a)states:
Public access from the nearest public roadway to the shoreline and along the coast shall
be provided in new development projects except where (1)it is inconsistent with public
safety,military security needs,or the protection oj fragile coastal resources,(2)adequate
access exists nearby,or (3)agriculture would be adversely affected.Dedicated
accessway shall not be required to be opened to public use until a public agency or
private association agrees to accept responsibility Jor maintenance and liability oj the
accessway.
Coastal Act Section 30212.5 states:
Wherever appropriate and feasible,public facilities,including parking areas orfacilities,
shall be distributed throughout an area so as to mitigate against the impacts,social and
otherwise,oj overcrowding or overuse by the public oj any single area.
Coastal Act Section 30213 states,in relevant part:014111
Lower cost visitor and recreational facilities shall be protected,encouraged,and,where
feasible,provided.Developments providing public recreational opportunities are
preJerred ...
The proposed project would be bnilt largely on a site already occnpied by industrial uses and
would not affect public access to the shoreline at that location.The project also includes
constructing pipelines under roads within the coastal zone,although the pipeline construction
would be similar to other road construction projects and its temporary impacts would likely not
result in adverse effects on public access to the shoreline.
The project's proposed use of estuarine water from Agua Hedionda Lagoon,and its reliance on
intake jetties and a discharge structure on State tidelands would affect public access by limiting
accessibility to those areas.However,as noted previously in these Findings,no feasible
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alternatives exist that would allow cessation of use of these structures.Further,the project
would require ongoing dredging within the Lagoon and deposition of the dredged spoils (which
would be subject to Cabrillo,Poseidon,or another dredging proponent obtaining anew,separate
coastal development permit),which could allow for beach nourishment along nearby beaches.
While_these activities would cause temporary disruptions to public access,they would have a
long-term public benefit by adding sand to the beach.The alternatives determined by the
Commission to be infeasible would cause impacts to public access during construction and
possibly during operations.
To address the public access impacts of its project as proposed,Poseidon has offered to dedicate
to the City of Carlsbad the following sites to be used for public access:
•A site of about two acres,known as the Hubbs Site,on the north side of the Lagoon's
Outer Basin that would inchide a trail system and expansion of the existing fish hatchery
and aquatic research uses;
•A site of about 2.4 acres on the west shore of the Lagoon's Outer Basin to be used as a
fishing beach;
•A site of about 10.2 acres of bluffs west of the power plant site and adjacent to the
shoreline to be used for recreation and coastal access;and,
•A parking area covering about 0.3 acres at the south end of the power plant for public
parking.
These sites total about 15 acres,and are described in more detail in the City's precise
development permit for the project,and Poseidon's coastal development permit application
submittals.To ensure these sites are made available for public use,Special Condition 11
requires that,prior to starting operations of the desalination facility,Poseidon ensure these
parcels are dedicated for public access and recreation as described in the City's Precise
Development Plan #PDP 00-02.These public access dedications provide adequate conformity to
the Coastal Act's public access provisions.
Conclusion
Based on the above,the Commission finds that the project as conditioned conforms to the
Coastal Act's public access provisions.
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4.5.4 Scenic and Visual Resources
Coastal Act Section 30251 states:
The scenic and visual qualities of coastal areas shall be considered and protected as a
resource of public importance.Permitted development shall be sited and designed to
protect views to and along the ocean and scenic coastal areas,to minimize the alteration
of natural landforms,to be visually compatible with the character of surrounding areas,
and,where feasible,to restore and enhance visual quality in visually degraded areas.
New development in highly scenic areas such as those designated in the California
Coastline Preservation and Recreation Plan prepared by the Department of Parks and
Recreation and by local government shall be subordinate to the character of its setting.
The proposed project would be built largely within the existing developed area of the Encina
power plant.The desalination facility site is currently occupied by large oil tanks that are no
longer in use and that have been proposed for demolition.The desalination facility would create
less of a visual impact than the currently existing tanks.
Poseidon's project plans include a number of measures to minimize any adverse visual effects of
the proposed facility.The facility would be a relatively low profile building of about 44,000
square feet and reaching about 35 feet above the existing grade.Its appearance would be similar
to a large warehouse.As part of the facility design,Poseidon has added both vegetative and
architectural screening to ensure that exposed pipelines,tanks,and other industrial-type
equipment are screened from public view.
The Commission considered several intake alternatives,including slant wells and an intake
gallery,and concluded that they are environmentally inferior to the proposed project.With
respect to visual and scenic resources,each of the alternatives would require development of
permanent structures on the beach that could result in a permanent impact to visual resources.
The slant well alternative would require between 20 and 200 beach wells along a two mile
stretch of coast,and associated access roads,parking,pipelines and electrical supply.101 The
intake gallery alternative would require 78 beach wells,each of which would require
approximately 2,800 square feet of beach front property,for a combined loss of seven acres of
beachfront property.'?'Construction of the intake gallery alternative would also require trenches
for collection piping and could limit access to the beach for a period of 2 to 4 years,and would
require the creation of permanent access ramps from the Pacific Coast Highway to the beach to
transport equipment during construction and to permit well inspection during the life of the
wells.""Therefore,the proposed project is the environmentally superior alternative.
101 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.B at p.16.
102 rd.at 17-19.
103 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A atpp.17-18.
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To ensure the facility conforms to the Coastal Act's scenic and visual resource policies,Special
Conditions 13 and 14 require Poseidon to submit,prior to starting construction,a Screening
Plan and a Lighting Plan showing the planned appearance of the facility.The plans must
describe how Poseidon will screen the facility's industrial and mechanical equipment and how
the facility and surrounding area will be lighted to provide the necessary level of safety and
security while minimizing offsite glare and other adverse affects.Both plans must be submitted
to the Executive Director for review and approval before construction can begin.
Conclusion
,
Based on the above,the Commission finds that the project,as conditioned,will conform to the
Coastal Act's scenic and visual resource provisions.
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4.5.5 Energy Use and Greenhouse Gas Emissions (Coastal Act Section
30253(4))
Coastal Act Section 30253(4)states:
New development shall:...(4)Minimize energy consumption and vehicle miles traveled.
Section 30253(4)'s requirement to minimize energy consumption reduces impacts to coastal resources
caused by greenhouse gas emissions.Most of the electricity Poseidon would use would be produced
by natural gas-fired power plants,with some produced by coal,hydroelectric,or renewable sources.
According to methods developed by the Califomia Climate Action Registry (CCAR),Poseidon's
proposed electrical use would result in from about 134,400,000 pounds (or about 61,000 metric
tonnes)to 200,000,000 pounds (about 90,000 metric tonnes)of carbon dioxide emissions per year.104
The difference between the Commission's conclusion and Poseidon's estimates is further described
below.
Note:The anticipated emissions described herein,in Commission staff's view,likely represent
the very low end of the range of actual greenhouse gas contributions Poseidon would generate.
These analyses evaluate only those carbon emissions that would be generated by Poseidon's
.electrical use for pumping and desalinating water and transporting it to Maerkle Reservoir.It
does not include emissions that would result from project construction,manufacture of reverse
osmosis membranes,dredging needed to maintain the intake channel,etc.Also,it includes
only carbon dioxide emissions,not emissions of other greenhouse gases generated by power
plants.Commission staff's analyses also credit Poseidon with emission reductions that may
occur through its potential use of a high-efficiency energy recovery device that is still being
tested and that Poseidon has not yet committed to use.
Emissions from this facility's electrical use would be greater than those created by other water sources
and would contribute to California's greenhouse gas emissions.They would also cause siguificant
adverse effects to many coastal resources the Coastal Act is meant to protect.The global heating,sea
level rise,and ocean acidification resulting from greenhouse gas emissions affects public access
(Coastal Act Sections 30210-30214),recreation (Sections 30212.5,30213,30220-30222),marine
resources (Sections 30230-30231),wetlands (Sections 30231,30233),ESHA (Section 30240),
agriculture (Sections 30241-30242),natural land forms (30251),and existing development (Sections30235,30253).
Poseidon'sposition is that it shares the Governor's commitment to address climate change,but
disagrees with Commission staff that the project will be a contributing factor to climate change for
several reasons:the project is consistent with its proposed Climate Action Plan,which Poseidon
104 Protocols developed by the California Climate Action Registry estimate carbon dioxide emissions from California's
electricity sources tota1804.54 pounds per megawatt-hour.Poseidon's expected electrical use of about 250,000 megawatt-
hours per year would therefore total just over 200,000,000 pounds of carbon dioxide.These calculations are described inmoredetailbelow.
.For comparison,200,000,000 pounds of carbon dioxide is about the same amount produced during 235 million vehicle miles
traveled or is the amount of carbon stored each year in 75,000 acres of growing forest (see the U.S.EPA and U.S.Agency forInternationalDevelopmentClimateTechnologyGatewayatwww.usctcgateway.net).
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believes will result in a reduction in regional greenhouse gas emissions,and the project includes
numerous components to ensure that it will use only the minimum energy necessary.!"Moreover,
Poseidon maintains that the Commission's authority to impose greenhouse gas emission standards or
emissions-related mitigation is limited.'?"Poseidon states that due to the importance of the project and
Poseidon's environmental stewardship,it has proposed a Climate Action Plan pursuant to which
Poseidon commits to measures that will offset the project's net carbon emissions so that the project isnetcarbonneutral."?
As described below,Poseidon will demonstrate that its proposed project will conform to the Section
30253(4)requirement to minimize energy consumption to avoid or mitigate adverse effects to coastal,
resources caused by energy-related greenhouse gas emissions through its conformity to Special
Condition 10,as described below.
Issue Background
One of California's biggest overall energy uses,and one of its most intensive energy uses,is moving
water around the state.With most of its water in the north and most of its population in the south,
Califoruia has established conveyance systems to move water hundreds of miles and over hundreds of
feet of elevation gain.Because water is relatively heavy,it requires significant amounts of electricity
to transport -for example,the State Water Project uses up to about 5 billion kilowatt-hours each year
to move millions of acre-feet of water from Northern to Southern Califoruia.Its average demand per
acre-foot is about 3,400 kilowatt-hours,which is about the same as the annual residential use for eachpersonintheU.S.
Compared to California's existing water supply systems,seawater desalination is an even more energy
intensive source of water.Although desalination's energy needs have decreased significantly in the
past several years,reverse osmosis facilities such as Poseidon's proposed project still require much
more electricity than is needed for other water sources.For example,Poseidon's proposal is expected
to require no less than about 4,400 kilowatt-hours per acre-foot,about 30%more than the State Water
Project,which provides a part of the water imported to the San Diego area,and about 120%more
kilowatt-hours per acre-foot than water imported to the area from the Colorado River,which requires
about 2000 kilowatt-hours per acre-foot.
In many parts of the state,the electrical grid needed to provide water is under a great deal of strain.
Southern Califoruia,in particular,will be challenged to meet its energy needs due to its need to reduce
its reliance on aging power plants and to develop new energy sources,developing updated
transmission infrastructure,and other similar difficulties.!"Poseidon's proposal would rely on the
local and regional electrical grid,which generates most of its electricity from fossil fuel-fired power
plants.The proposed facility's electrical use would therefore result in substantial greenhouse gas
emissions due to its use of this type of electricity.Inresponse,Poseidon has proposed a Climate
Action Plan,which is discussed in greater detail later in these Findings.
105 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exb.A atpp.20-21.
106 See Poseidon Resources Corporation,Response to Steff.Report,November 9,2007,Exh.A at pp.20-21.
107 See id.
108 See,for example,the California Energy Commission's 2007 Draft Integrated Energy Policy Report.
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Background of Greenhouse Gas-related Issnes and Impacts:The Fourth Assessment Report of
Working Group I of the Intergovernmental Panel on Climate Change (IPCC)(2007)represents the
consensus of fifty top international scientists working in fields related to climate change.More than
one hundred national governments,including the United States,have approved the report.The report
concludes that the evidence of global climate system warming is unequivocal,as is now evident from
observations of increases in global average air and ocean temperatures,widespread melting of snow
and ice,and rising global mean sea level (IPCC,2007).Further,the report concludes that "most of the
observed increase in globally averaged temperatures since the nrid-20th century is very likely [greater
than 90%probable]due to the observed increase in anthropogenic greenhouse gas concentrations."
The report cites numerous long-term changes in climate,including changes in Arctic air temperatures,
decreases in the amount of Arctic sea ice,widespread changes in precipitation amounts,increase in
ocean salinity,changes in wind patterns and increased incidences of extreme weather including
droughts,heavy precipitation,heat waves and tropical storms,
Many studies consider a climate heating of more than 2 degrees Celsius above pre-industrial
temperatures as representing "dangerous"level of climate disruptions.Based on six emissions
scenarios ranging from "business as usual"to aggressive shifts to cleaner technologies,the best
estimates of global average temperature increase are between 1.8 and 4.0 degrees Celsius by
2099.A more recent study has found that comparing actual "on the ground"data compiled
during the last ten years shows that the model used to develop these scenarios has vastly
underestimated the rate and degree of global warming effects.It suggests that limiting global
heating to no more than 2 degrees Celsius will require measures that result in the equivalent of
complete elimination of industrial emissions (see Weaver et.al.Long term climate implications
of 2050 emission reduction targets,in Geophysical Research Letters,October 6,2007).
These six emission scenarios also estimate that sea level will rise between 0.18 and 0.59 m.This
amount of sea level rise does not include contributions from rapid melting of either the
Greenland or Antarctic ice caps.(Bindschadler,2006;Ekstrom et a!.,2006;Joughin,2006;Kerr,
2006).In addition,the ocean's absorption of carbon dioxide leads to a reduction in ocean pH
with concomitant consumption of dissolved carbonate"ions,which adversely affects calcite-
secreting marine organisms,marine water quality and the abundance and distribution of marine
species (The Royal Society,2005).
Impacts to the California Coastal Zone:In July 2006,the California Climate Change Center
released a series of reports describing ongoing and future effects of global warming on the California
environment (Baldocchi and Wong,2006;Battles et a!.,2006;Cavagnaro et aI.,2006;Cayan et al.,
2006a;Cayan et al.,2006b;Cayan et al.,2006c;Drechsler et a!.,2006;Franco and Sanstad,2006;
Fried et aI.,2006;Gutierrez et aI.,2006;Joyce et aI.,2006;Lenihan et al.,2006;Luers et al.,2006;
Luers and Moser,2006;Medellin et aI.,2006;Miller and Schlegel,2006;Moritz and Stephens,2006;
Vicuna,2006;Vicuna et aI.,2006;Westerling and Bryant,2006).Drawing on three projected warming
scenarios (low,medium,and high),the reports projected severe impacts by the end of the century in
the areas of public health,water resources,agriculture,forests and landscapes,and sea level.Many of
these effects will adversely impact resources of the coastal zone.The adverse effects include worsened
air quality,changes in species distribution,significant reductions in plant and animal diversity,loss of
various kinds of agriculture (such as fruit trees),expansion of invasive plant and animal species,
increase in plant pathogens,increase in number and severity of wildfires,rising sea level,coastal
flooding,and increased coastal erosion.In addition,absorption of carbon dioxide by the ocean is
causing a reduction in ocean pH with concomitant consumption of dissolved carbonate ions.which is
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adversely impacting calcite-secreting marine organisms.The warming of ocean waters is also
adversely affecting marine resources.
As identified in the 2006 Climate Change Center reports,air quality will be compromised by
soot from wildfires,which the report predicts will increase.Coastal agriculture,already
threatened by land development and habitat fragmentation,will be subject to further impacts
from climate change.Impacts to coastal agricultural will include impacts to wine grapes,which
will be subject to premature ripening and decreased fruit quality;adverse impacts to fruit and nut
trees,many of which will no longer be able to produce once the number of "chill hours"per day
drops below that necessary for proper ripening;and adverse impacts to milk production.Other
threats to coastal agriculture identified by the Climate Change Center reports include the
expansion of the ranges of agricultural weeds and an increase in plant pests and pathogens.
Coastal forests and scrublands will be increasiugly susceptible to wildfires due to longer and
warmer periods of summer drying.This,together with the warmer climate itself,will lead to
shifts in vegetation type,probably resulting in the loss of coastal scrub as it is converted to
grasslands.Inasmuch as suitable habitat exists,species requiring cooler climates can migrate
northward or to higher elevations.Their ability to do this,however,will be limited by the speed
with which they are able to disperse,the suitability and interconnectivity of available habitat,and
their ability to compete with non-native invasive species which,by definition,are able to
disperse and exploit habitat efficiently.All of these effects will lead to a decline in forest
productivity,with a concomitant loss in habitat.
The most direct impacts of global warming focused on the coastal zone are sea level rise and its
associated impacts,ocean warming,and ocean acidification:
e Sea Level Rise:According to tide gage data,global mean sea level has been rising at the rate
of approximately 1.8mm/yr for the past century (IPCC,2001).Although no acceleration of
this rate is apparent from the tide gage data (IPCC,2001),satellite measurements starting in
the early 1990s indicate an annual rate of approximately 2.8 mm/yr (Church and White,
2006).Sea level is clearly rising,and the rate of increase may in fact be accelerating.Since
land can also change elevation due to either uplift or subsidence,global sea level change
affects various coastal areas differently.Much of the California coast is rising;however the
rate of uplift is,everywhere except northernmost California,lower than the rate of sea level
rise.The relative historic rate of sea level rise (relative sea level rise is global sea level minus
local land uplift or plus local land subsidence)has been calculated by Commission staff to
range from a high of2."16±0.11 mm/yr in San Diego to a low of 0.92 ±0.17 mm/yr in Los
Angeles.Relative sea level is actually falling at Crescent City due to the high rates of
tectonic uplift at that locality.(California Coastal Commission,200 I).
Even the 0.18 to 0.59 meter lise in sea level by 2100 predicted by the IPCC will have a large
impact on the California coast.The effects of a much larger increase in sea level due to large
contributions from the Greenland and/or Antarctic ice sheet would be truly catastrophic.The
2001 Coastal Commission report concluded:
The most obvious consequence of a large rise in sea level will be changes in areas that are
submerged.Lands that now are only wet at high tide could be wet most of the day.Structures
that are built above the water,like docks and piers,will be closer to the water,or eventually
submerged.A second consequence will be an increase in wave energy.Wave energy is afactor
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of wave height.Wave heights along the California coast are influenced greatly by bottom
depths and for most locations along the coast,the heights of nearshore waves are "depth
limited".When the water depth increases,the wave height can be higher.Thus,higher waves
impact the coast during high tide than during low tide.Wave energy increases with the square
of the wave height.Thus,a 21"00t(0.6-meter)wave would have 4 times the energy of a 1-foot
(0.3-meter)wave.Small changes in water level can cause significant changes in wave energy
and the potentialfor shoreline damage from wave forces.A 1-foot to 31"00t(0.3 to 0.9 meter)
rise in sea level,such as projected to occur over the next 100 years,would cause enormous
changes in nearshore wave energy.The consequences of a 11"00tto 31"00t(0.3 to 0.9 meter)
rise in sea level arefar reaching.Along the California coast,the best analogy for sea level rise
is thought to be El Nino,where a significant rise in sea level will be like El Nifio on steroids.
One of thefactors that contributed to the amount of damage caused by the 1982183 El NiFlO
was that several storms coincided with high tide events and the elevated water levels (from
tides and low pressure system combined)brought waves further inland than would have
occurred otherwise ...
Beaches and Coastal Bluffs:Open coastal landforms like beaches and bluffs will be exposed to
greater and more frequent wave attack.There will more potential for erosion and shoreline
retreat.For gently sloping beaches,the general rule of thumb is that 50 to 100feet of beach
width will be lost from usefor every foot of sea level rise ...Some global circulation models
predict Significant increases in run-off from coastal watersheds in California (Wolock and
McCabe,1999)...
In general,erosion of the landward edge of a beach,dune,or coastal bluff creates additional
beach area,and so even in a period of sea level rise such as the present,iu which the seaward
extent ofthe beach is reduced by flooding and erosion,new beach creation can result iu a
relatively constant beach width.However,when threats to existiug development from erosion
lead to the construction of shoreline protective devices that halt the landward migration of the
back beach,contiuued floodiug of the seaward beach results in a reduction in beach width.
Thus,on beaches experienciug erosion due to rising sea level,the protection of threatened
structures will result iu the loss of beaches wherever property owners choose to harden the
coast to prevent coastal erosion.This loss of beach has immense negative impacts,including
loss of recreational value,tourism,marine mammal haul-out area,sandy beach habitat,and
buffering capacity agaiust future bluff erosion.
The 2001 Coastal Commission report goes on to iudicate other potential impacts of sea level
rise on the California coast:
Wetland changes also will be affected by inland development.Historically,wetland areas
migrated both upward and landward as they were inundated.If the inland area has a slope and
soil composition that can support a wetland and is not already developed,then inland
migration may bepossible.If there is a steep bluff or some type of'fixed development,such as a
highway or bulkhead,inland of a wetland,inland migration will not be possible and the
wetland area will diminish over time.
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Another physical change to wetland in response to a rise in sea level is an increase in the tidal
currents,with the potential for increased scour.Also,for estuarine systems there will be a shift
in the location of the salt water-freshwater interface,and an inland movement of the zone of
brackish water ...
Ports,Harbors and Marine Facilities:Much of the infrastructure of aport or harbor will be
affected by a change in sea level.So too will marine terminals and offshore structures.All of
the horizontal elements,such as the decking of wharves and piers,will be exposed more
frequently to uplift forces larger than those occurring now.Compared to current conditions,
ships will ride higher at the dock and cargo-handling facilities will have less access to all parts
of the ship.Loading and unloading may have to be scheduled for low tideperiods to allow
greatest access into the ship,or else mooring and cargo handlingfacilities will need to beelevated.
if breakwaters or jetties protect the harbor,these structures will become less efficient as water
levels increase.The breakwaters andjetties will need to be enlarged and heightened to keep up
with the rise in sea level,or the harbor will have to accept a higher level of overtopping and
storm surge,and a higher probability of storm damage.The increase in water level could also
increase the tidal prism of the harbor,resulting in increased scour at thefoundations of any
structures in the harbor.So,it may also be necessary to reinforce the base of the breakwater or
jetty to insure stability.Benefits that could occurfrom a rise in sea level would be the
opportunity for harbors to accommodate deeper draught ships and a decrease in dredging to
maintain necessary channel depths.
Seawalls and other engineered shoreline protection:[Seawall}foundations would be exposed
to greater scour and the main structure would be exposed to greater and more frequent wave
forces.As with breakwaters andjetties,these structures will need to be reinforced to withstand
these greater forces,or a lower level ofprotection will have to be accepted for the backshore
property.
•Ocean Warming:In December 2006,the Commission held the first in a series of workshops
on global warming.One ofthe well-recognized connections between the atmosphere and the
ocean is heat exchange.Global warming of the atmosphere is expected to cause an increase
in ocean warming as the ocean absorbs greater amounts ofthennal energy from the
atmosphere.At the workshop,Dr.James Barry (Associate Scientist,Monterey Bay
Aquarium Research Institute)presented a summary of observed and predicted effects of
ocean warming on California coastal ecosystems.Dr.Barry inventoried intertidal animals
along the Monterey coast,and compared his results to a 1932 baseline inventory.He found
that species that increased in abundance in southern California had increased markedly since
the baseline study.Over the same time,there was a dramatic decline in species more
associated with northern California.This demonstrates that the observed warming of the
ocean over the past 60 years has resulted in a shift in the geographic ranges of species.With
continued warming,species can be expected to continue to migrate northward as long as
suitable habitat is available.
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Some instances of remarkable biodiversity are due to the fortuitous combination of suitable
ocean temperature and suitable geomorphic conditions.For example,one of the most diverse
shallow water habitats in California is found in the rocky-bottom waters around the northern
Channel Islands.This is a zone of mixing of species characteristic of a "southern California
realm"and a "northern California realm."The abundant rocky bottom habitat in the shallow
waters ringing the islands provides a niche in which this diversity is expressed.If,because of
global warming,the suitable temperature zone rnigrates northward,it will be moved off of
the abundant rocky bottom habitat and the diversity and ocean productivity might decrease
significantly.
Declines in ocean productivity due to habitat shifts are an indirect consequence of ocean
warming.Ocean warming can cause a direct loss of primary productivity as well.Warming
of the surface of the ocean results in increased ocean stratification,limiting the upwelling of
deep,nutrient-rich waters that are responsible for California's rich coastal productivity.
Roemmich and McGowan (1995)report a 1.2 to 1.4 degree centigrade increase in ocean
temperature between 1950 and 1994.This was accompanied by a 75%reduction in
zooplankton biomass.Reductions in phytoplankton and zooplankton biomass have profound
cascading effects throughout the food chain.Short term warming events,such as EI Nifio
events,have resulted in abrupt decline in commercial fish species,marine manunals,and
birds (Laws,1997;Nezlin et aI.,2005).Similar effects might accompany global warming on
a longer time scale,vastly affecting California's coastal resources.
Ocean warming conld also create a disconnect between historic feeding and breeding
grounds for many species.Welch and others (1998)reported on potential changes in sockeye
sahnon distribution due to future global warming.Sockeye sahnon,which spend 2-3 years in
waters ofthe northern Pacific,migrate northwards to areas of high productivity,such as the
Bering Sea,in the sunnner.Productivity decreases with temperature increase,however,and
as the Bering Sea warms,migration routes would have to be longer.Eventually,tile
metabolic cost of migrating further northwards to feeding grounds could make the migration
infeasible.When summer feeding grounds are disconnected from winter breeding grounds,a
population crash may be anticipated.A population crash in such species would not only
impact commercial fishing in California,but would ripple up through the food chain,
impacting protected coastal resonrces such as marine mammals and birds.
•Ocean Acidification:Just as there is an exchange of thermal energy between the atmosphere
and the oceans,there is an ongoing exchange of gases between the atmosphere and the ocean.
Each year some 92 billion metric tonnes of C02 annually are directly absorbed by the ocean
from the atmosphere.At the same time,approximately 90 billion metric tonnes are released
back to the atmosphere (Scblesinger,1997).The net increase in dissolved C02 in the ocean
is a direct result of increases in the atmosphere related to changes humans are making to the
carbon cycle-most notably fossil fuel burning and land use changes (deforestation,mostly
in the tropics).The ocean is an enormous reservoir that can absorb a vast amount of CO2,
although the rate of ocean mixing is too slow to prevent the current buildup in the
atmosphere.Without this net absorption of CO2 by the oceans,the atmospheric buildup-and
global warming-would be far greater than it is now.
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Over the past 200 years,the oceans have taken up approximately half of the industrial age
CO2 emissions,substantially reducing the net atmospheric concentrations of CO2.This effect
does not come without a cost,however.When CO2is absorbed by the ocean,some of it
combines with water to form carbonic acid (H2C03).This results in only a modest decrease
in ocean pH,however,because most of the carbolic acid recombines to form bicarbonate
ions (HC03).Inthe process,carbonate ions (C03•2)are consumed,with the net result being
that absorption of CO2 by the ocean consumes carbonate ions and reduces the pH of the
ocean.The decrease in pH is minor because of the "buffering capacity"of these carbonate
reactions,but appears to have decreased mean average surface water pH by 0.1 pH units over
the past 200 years (Caldeira and Wickett,2003).Because the pH scale is logarithmic,this
decrease in ocean pH (commonly called "ocean acidification,"but more properly referred to
as a decrease in alkalinity)means that hydrogen ion activity (which defines acidity)has
increased by some 30%in this time frame (The Royal Society,2005).
The effects of decreasing ocean alkalinity and carbonate ion concentration are twofold.First,
many species are directly affected by the reduction in pH.Inhis presentation before the
Commission in December 2006,Dr.Barry identified several physiologic stresses to which
some species are susceptible.These stresses include respiratory stress (reduced pH limits
oxygen binding and transport by respiratory proteins,such as hemoglobin,leading to reduced
aerobic capacity),acidosis (disruption of acidlbase balance which impairs function and
requires energy to restore or maintain optimal pH balance),and metabolic depression'
(reduced pH associated with increased enviromnental CO2can cause some animals to enter a
state of torpor or semi-hibernation).In addition to these physiologic effects,calcite-secreting
organisms (including many phytoplankton,zooplankton,clams,snails,sea stars,sea urchins,
crabs,shrimp,and many others)have more difficulty secreting their shells or tests under
reduced carbonate ion concentrations.Deep-sea species will be particularly affected because
increasing CO2levels in seawater decreases the saturation state of seawater with respect to
calcium carbonate (CaC03)and raises the saturation horizon closer to the surface.The
CaC03 saturation horizon is a depth in the ocean above which CaC03 can form,but below
which CaC03 dissolves.Increasing surface CO2levels could have serious consequences for
organisms that make external CaC03 shells and plates (The Royal Society,2005).The
consequences of reduced calcification are not fully known,but are likely to include changes
to plankton communities,higher metabolic costs for water-breathing species,resulting in
lower growth,survival and reproduction,and higher metabolic costs for calcite secreting
organisms.The effect on food webs is unclear,but it is very likely that these effects will
result in a loss of biodiversity and complexity in California's coastal marine ecosystems.
AnaJysis of Poseidon's Anticipated Greenhouse Gas Emissions and Poseidon's
Response
As noted above,Commission staff estimates that Poseidon's electricity use would generate no
less than 200,000,000 pounds (about 90,000 metric tonnes)of carbon dioxide emissions each
year,based on Poseidon's use of approximately 250,000 megawatt-hours per year from the San
Diego Gas &Electric Company (SDG&E)energy portfolio.Conversely,Poseidon,relying on
California Climate Action Registry (CCAR)Protocol,estimates that its electricity use would
generate approximately 61,004 metric tonncs of carbon dioxide emissions each year,based upon
its use of246,156 megawatt-hours per year from SDG&E,which has a CCAR certified
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emissions factor of 546.461bs of C021MWH.Since Poseidon intends to buy all of its energy
from SDG&E system power,Poseidon states that the appropriate emission factor to use for the
project's indirect carbon emissions from its electricity purchases is SDG&E's annual emission
factor for delivered electricity as stated in their CCAR Annual Emissions Report.'?"SDG&E last
filed an Annual Emissions Report with the CCAR on March 7.2007,and it provides an emission
rate of 546 Ibs of C02IMWH.
In October 2007,Poseidon submitted several letters aud memoranda to Commission staff describing
the proposed facility's expected electricity use,some possible measures that would reduce its expected
use,and measures that Poseidon may use to address its greenhouse gas emissions.These are described
in more detail below.
Poseidon's most recent estimates show that it expects the project would use 4,833 kilowatt-hours to
produce each acre-foot of potable water,but that this figure would be lowered to about 4,400 kilowatt-
hours by implementing measures described below.This includes using the power plant's pumps to
bring water into the intake channel,pumping that water into the proposed facility,pretreating the
water,producing desalinated water using reverse osmosis membranes,and pumping the water from the
water from the facility to delivery points in Carlsbad and nearby commnnities.At 4,833 kilowatt-
hours per acre-foot,Poseidon's electrical use would total 270,648 megawatt-hours per year.110
Poseidon's estimates also show that its expected continual electrical demand would be between 28.1
and 33.8 megawatts,with an average demand of about 30 megawatts.Using these figures,Poseidon's
electrical use would range from 246,156 to 296,088 megawatt-hours per year,with an average annual
use of 262,800 megawatt-hours.III
Poseidon's proposed Climate Action Plan describes several measures that it may use to reduce its
electrical use.Those measures include a high-efficiency energy recovery device that Poseidon is still
testing,but which could reduce its electrical use by about 10%,to about 4400 megawatt-hours per
acre-foot of production.Although Poseidon has not yet committed to using this device,the emissions
analysis in these Findings credits Poseidon with the emission reductions that would occur due to its
use.Using the 4400 megawatt-hour per acre-foot figure would result in Poseidon's electrical use
being 246,400 megawatt-hours per year,or approximately 250,000 megawatt-hours per year,which is
used as the basis for the analyses in these frndings.Using Commission staffs calculations,this would
result in carbon dioxide emissions of about 200,000,000 pounds (about 90,000 metric tonnes)peryear.112
As noted above,the analyses in these Findings do not include several emission sources that could
add significantly to Poseidon's total.Theanalyses do not include emissions resulting from
project construction and manufacture of materials used.
109 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Ex11.A at pp.23-24.
110 4,833 X 56,000 acre-feet per year 11,000 kilowatts per megawatt ~270,648 megawatt-hours.
11l At a steady rate of eleerieal use,30 megawatts X 24 hours per day X 365 days per year ~262,800 megawatt-hours.
112 Based on the CCAR average rate of 804.54 pounds per megawatt-hour of carbon dioxide emissions from California'selectricalsources.
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Recent letters and memoranda from Poseidon (see October 21 and 22,2007)provide a much lower
estimate of its anticipated greenhouse gas emissions.Poseidon,citing the most recent CCAR protocol
and certified SDG&E emission rate,contends that its emission rate should be based on 546 pounds of
carbon dioxide emissions per megawatt-hour,based on emissions expected from the energy sources in
SDG&E's energy supply portfolio.This would result in about 134,400,000 pounds (about 61,000
metric tonnes)of carbon dioxide per year instead of 200,000,000 pounds (90,000 metric tonnes).
However,Commission staffs analysis shows that in comparing the SDG&E portfolio with the
CCAR's average California portfolio,the SDG&E portfolio appears to result in an even higher
emission figure than the California average.!"For example,coal and natural gas,which have average
emission rates much higher than 804.54 pounds per megawatt-hour,"!make up a larger proportion of
San Diego's portfolio than the state portfolio.Additionally,SDG&E testimony before the California
Public Utilities Commission suggests its carbon dioxide emissions are in the range of 1100 pounds per
megawatt-hour,based on an average of a range of natural gas technologies and heat rates.lIS
Elsewhere,SDG&E's emissions are cited as 915 pounds per megawatt-hour for electricity it
purchases.'"Commission staff,therefore,contend that Poseidon's reliance on the latest published
CCAR rate calculations for SDG&E may be in error.The CCAR-certified figure is derived from
SDG&E's 2005 self-reported Annual Entity Emissions report,which states that SDG&E expects
emissions of 546 pounds per megawatt-hour from owned and purchased generation sources;however,
that figure is not supported by other SDG&E sources or by other agencies,including the California
Energy Commission and State Lands Commission,in their determations related to emissions from
different types of electricity sources.For example,the State Lands Commission in its October 30,
2007 hearing used 815 pounds per megawatt-hour as the basis of its review,with a "best-case"low
emission nile of 690 pounds and a high rate of 1100pounds.Poseidon,however,states that the
CCAR-certified figure is not erroneous,since CCAR is the only certifying entity currently authorized
by California and because CCAR used SDG&E's credible self-reported Annual Entity Emissionsreport."?
113 Poseidon provided the following percentages of SDG&E's electricity sources,and the California averages are from the
California Energy Commission's 2006 Gross System Power Report:
Resource Type:SDG&E Percent:State Percent:Coal 18.0 IS.7
Natural Gas SO.O 41.S
Large Hydro 10.0 19.0
Nuclear IS.0 12.9
Biomass 3.0 2.1
Geothermal 2.0 4.7
Small Hydro <1 2.1
Solar <1 0.2
Wind 3.0 1.8
114 Natural gas emissions range from about 800-1200 lbs/megawatt-hour,and coal emissions are more than 2000lbs/megawatt-honr.
lIS See page 12 of the Prepared Rebuttal Testimony 0/San Diego Gas &Electric Company-J.Strack,in the
CPUC's Application No.06-08-010 for the Sunrise Powerlink Transmission project,June 2S,2007.
116 See Powers,Bill,Assessment of Energy Intensity and C02 Emissions Associated with WaterSupply Options for
San Diego County,October 12,2007.
111 See Poseidon Resonrces Corporation,Response to Staff Report,November 9,2007,Exh.A at pp.23-24.
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In selecting an appropriate rate to use for these analyses,Commission staff used CCAR's standard
figure for California to establish Poseidon's 200 million pound contribution to greenhouse gas
emissions.ue Poseidon disagrees,stating that because Commission staff did not follow the CCAR
protocol or rely on the CCAR certified SDG&E emissions factor,staff s analysis was in error.119
Regardless,because SDG&E reports its overall emission rate on an annual basis and that rate changes
based on the particular mix of electricity sources SDG&E uses each year,the rate used to determine
Poseidon's greenhouse gas contributions each year is at this point unknown but will be determined
through Commission review and approval of Poseidon's Energy Minimization and Greenhouse Gas
Reduction Plan as described later in these Findings.
In its October 21,2007 memorandum,Exhibit D to its November 9,2007 letter to the
Commission,and in its presentation to the Commission at the November 15,2007 hearing,
Poseidon presented its proposal to offset or reduce the proposed project's energy use and
greenhouse gas production so that the facility's operations would be net carbon neutral.
Poseidon states that it will develop a Climate Action Plan that (1)would ensure the project
minimizes energy consumption in compliance with Coastal Act Section 30253(4),and (2)would
render the project net carbon neutral.Poseidon stated its Climate Action Plan may include the
following,which are described in more detail below:
Energy Minimization Measures:
•Installing a state-of-the-art high efficiency energy recovery system that will decrease the
amount of electricity required by the facility by 10%or about 433 kWhiAF.
•Evaluating the proposed project through a LEED-type process,and implementing as many of
the LEED Checklist items as feasible ("LEED"is the "Leadership in Energy and
Environmental Design"program).
e Installing variable-frequency drives on the intake water pumps of the desalination facility to
improve the energy-efficiency of these pumps.
•Installing low-friction piping materials (e.g.,FRP and HDPE)wherever possible to reduce
head losses and related energy consumption through the piping.
Carbon Neutrality Measures:
•Acquiring renewable power through installation of photovoltaic array and other renewable
energy sources.
•Acquiring Renewable Energy Credits (RECs)or purchasing carbon offset projects.
•Restoring and preserving coastal wetlands for carbon sequestration.
•Providing $1 million worth of trees forreforestation in the San Diego area.
As noted previously,Poseidon initially estimated that its facility would require 4,833 kilowatt-hours of
electricity to produce each acre-foot of potable water (kWh!AF)and transport that water to delivery
points in and near Carlsbad.This figure would otherwise be somewhat bigher -about 5,990 kWh!AF
,118 Using the next higher credible estimate (1100 pounds per megawatt-hour)would result in Poseidon's emissions beingcloserto300,000,000 pounds per year.
119 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A at pp.23-24.
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-however,Poseidon plans to use an energy recovery turbine to reduce electricity demand by about
1,103 kWh!AF.Poseidon is also exploring the use ofa relatively new energy recovery device known
as a pressure exchanger,which it expects could reduce electrical use by an additional 10%.This
would result in electrical usage of about 4,400 kWh!AF and would reduce Poseidon's expected carbon
dioxide emissions to about 200 million pounds (90,000 metric tonnes)per year according to
Commission staff's calculations,or about 134 million pounds (61,000 metric tonnes)per year using
Poseidon's calculations.It would clearly be to Poseidon's advantage to use any cost-effective energy
efficiency devices available to reduce its operating costs,and Poseidon has committed to use this
device,so the emission estimates in these Findings already credit Poseidon with the emission
reductions that would result from its use.
Poseidon is also exploring a number of other energy efficiency measures,including installing variable
speed pumps,installing high efficiency lighting and motors throughout the facility,and using low-
friction piping material and installing larger diameter piping where possible.It is proposing to
implement as many LEED items as feasible,including providing bicycle storage,using water efficient
landscaping,providing recycling capability,using low-emission adhesives and sealants,etc.It is also
considering installing a rooftop solar energy system.The Commission supports Poseidon's proposed
use of the LEED guidelines,as implementing LEED-related measures would likely provide numerous
benefits;however,those guidelines would not result in significantly lower emissions from Poseidon's
anticipated electrical use.Further,Poseidon has not yet committed to these measures.
Poseidon also states that it could further rednce its energy nse by operating at 80%capacity during the
eight honrs per day of peak electricity demand and then operate at 108%of its average capacity during
the remaining hours each day.!"This proposed operating scenario,however,would not necessarily
reduce energy use or emissions;it would instead shift energy use from one time of day to another.
This would be beneficial in that it would lower Poseidon's electricity costs and reduce demand on the
electricity grid during those peak hours,but Poseidon wonld still produce about the same amount of
water each day requiring the same amount of electricity for each acre-foot.
Poseidon further contends it should be credited with emission reductions because its project wonld
result in less water being transported to the San Diego region from the State Water Project.Although
the State Water Project emits fewer emissions per acre-foot than Poseidon's project would,applying a
credit for any foregone use would lower Poseidon's overall greenhouse gas contributions by about
77%(i.e.,the difference between Poseidon's 4400 kilowatt-hour per acre-foot energy nse and the State
Water Project's 3400 kilowatt-hour per acre-foot).I2J Poseidon states that the Carlsbad facility will
supply 56,000 acre-feet of water per year to the San Diego region,water that would otherwise have to
be pumped into the region through either the State Water Project or the Colorado River Aqueduct.
Poseidon further contends,as stated by all Carlsbad desalination project water agency partners in
letters to the State Lands Commission dated November 6 and November 7,2007,which were also
provided to the Coastal Commission,that water from the desalination plant will provide direct,one-
120 An annual daily average of 50 MGD equals 2,083,333 million gallons per hour.Operating at 80%capacity for eight
hours would produce about 16.6 million gallons,and operating at 108%capacity for sixteen homos would produce about
33.3 million gallons,for an overall total of about 49.9 MGD.Since the energy required to produce each acre-foot is about
4400 kilowatt-hours,the overall energy difference between continual production of 50 MGD (153.4 AF)and variable
production of 49.9 MGD (153.1 AF)would be minimal.
121 See Poseidon Resources Corporation,Response to Sta/fReport,November 9,2007,Exh.D (Climate ActionPlan).
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for-one replacement of imported water to meet the requirements of their Urban Water Management
Plans,thus eliminating the need to pump 56,000 acre feet of water into the region.!"Conversely,
Poseidon contends that if the project is not approved the demand for imported water by the eight
public water agencies will increase by 56,000 AFIY starting in 2010.Additionally,Metropolitan
Water District of Southern California (MWD)has committed to pay Poseidon's customers $2501AF
for each acre-foot of water purchased from the project that offsets a demand on MWD.The
availability ofMWD funding is subject to annual audit demonstrating that the desalinated water was
used to offset a demand for imported water that would otherwise have to be delivered by MWD.
Poseidon concludes that,if the replaced water is pumped into the region for other uses,then the
associated carbon emissions from such pumping should be and is the responsibility of the proponents
of those other uses.Poseidon believes that any other result would be an unfair and unwarranted
"double counting"of carbon emissions,requiring Poseidon to offset emissions caused by other
activities not associated with its'own operations."3
For several reasons,however,the Commission staff believe this "crediting"approach is not warranted.
First,Poseidon's proposed project does not ensure a decrease in imported water supplies to the San
Diego Region.!"Other factors may contribute to such a decrease -e.g.,supply cutbacks imposed by
court order,a shift in water prices,etc.-but Poseidon's project itself does not include measures that
would implement such a decrease,such as retiring distant water rights or assigning water rights toinstreamuses.
Poseidon acknowledges that theState Water Project would continue to pump available water to
Southern California users,but then argues that it should still be credited for what would then be a non-
existent reduction in emissions.Additionally,because Poseidon's water would be more expensive
than imported sources,available imported water would likely remain the water of choice for most
users,and so Poseidon's project would not likely affect the cost preference for imported water (e.g.,
the San Diego County Water Authority has contracted with the Imperial Irrigation District for up to
200,000 acre-feet per year -about 175 MGD -at less than $300 per acre-foot).Further,much of the
water imported to San Diego comes from the Colorado River,which requires about a third less
electricity than water imported from the State Water Project (approximately 2,000 kilowatt-hours per
acre-foot versus 3,400 kilowatt-hours per acre-foot),so even if "crediting"was appropriate,it would
be at a much lower level than Poseidon proposes.
Poseidon further contends that its project should be seen as part of a proposed regional water supply
portfolio that would result in an overall reduction of electrical use and greenhouse gas emissions from
the area's water use.Poseidon states that the planned shift in the San Diego region's water portfolio-
nsing less imported water,gaining water through conservation,recycling,and canal lining projects,
using seawater desalination,etc.-will result in an overall 19%reduction in the energy use per acre-
foot now used for the region's water supply.While such a shift would likely reduce overall electrical
use and emissions,those measures are not a part of Poseidon's proposal and those components of the
proposed future portfolio would not reduce Poseidon's carbon dioxide emissions.
122 See Poseidon Resources Corporation.Letter to Paul Thayer Re:Desalination Project's Impact on Imported
Water Use,November 8,2007,including attachments-from eight water agencies.
123 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A at p.24.
J24 We note that the San Diego County Water Authority continues to seek out additional imported water sources that wouldbeusedregardlessofPoseidon's project.
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In sum,Commission staffs analysis shows the electrical demand of Poseidon's proposed project
would contribute approximately 200 million pounds (90,000 metric tonnes)of carbon dioxide
annually,and Poseidon's calculations,using the most recent CCAR-certified emission factor estimate
about 134 million pounds (61,000 metric tonnes)of carbon dioxide emissions annually.
Poseidon and the Commission staff will consult with CCAR and CARE and other agencies to
ensure that the carbon emissions will be neutralized regardless of the actual output,and Special
Condition 10 will assure that all net greeuhouse gas emissions will be offset.Additionally,as
noted above,because the SDG&E emission factor will change each year based on its electricity
portfolio,the method used to determine Poseidon's needed emission reductions each year would
need to be identified in the plan reviewed and approved by the Commission.
As described above,Poseidon's proposed Climate Action Plan presents a variety of measures it
is exploring to reduce the plant's electricity consumption and resulting emissions and to offset
the remaining emissions,The Plan does not currently commit to specific electricity
minimization measures beyond those identified above;however,Poseidon is still exploring its
options in regard to further electricity minimization and the Plan commits to specific electricity
reductions.
To ensure Poseidon's proposal will conform to Coastal Act Section 30253(4)and other
applicable Coastal Act provisions by minimizing energy consumption and reducing effects of
greenhouse gas emissions on coastal resources,Special Condition 10 requires Poseidon,prior to
issuance of its coastal development permit,to submit to the Commission for review and approval
a revised Energy Minimization and Greenhouse Gas Reduction Plan.That Plan is to be
developed in conjunction with Coastal Commission staff and staff of other interested agencies
and is to describe the procedures and mitigation measures that will be implemented to minimize
electricity consumption of the desalination facility and to reduce or offset emissions resulting
from the facility's remaining electrical use.
As noted above,Poseidon contends that its Climate Action Plan further provides a commitment
that Poseidon will render the project "net carbon neutral"through measures including:
•Acquiring Renewable Energy Credits (RECs)
•Purchasing carbon offset projects
•Restoring and preserving coastal wetlands for carbon sequestration
•Providing $1 million worth of trees for reforestation in the San Diego area.
Poseidon states that it would consider purchasing RECs,which are credits bought and sold in an open
market and used to fund renewable energy sources.For example,a renewable energy provider can be
credited with one REC for every megawatt it produces,and can sell its RECs to make up some of the
difference between the generally higher-cost energy produced from the renewable source and the
generally lower-cost energy produced by a conventional fossil fuel source."Carbon offsets are
125 Recent REC prices have ranged from about $5 to $90 per megawatt-hour,with an average cost in2006 of about $20
(see U.S.Department of Energy,Energy Efficiency and Renewable Energy website at:
http://www.eere.energy.gav/greenpawer/markets/certificates.shtml?page~l).Based on the average 2006 cast,offsetting
Poseidon's anticipated use of250;OOO megawatt-hours per year would require it to purchase $5 million worth ofRECs,
equal to about $90 for each acre-foot of water it produced.
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similar,in that they can be purchased through various market systems -non-profit or for-profit
organizations,formal trading systems,etc.-and used for projects that reduce atmospheric carbon,
such as energy conservation proj ects,methane capture,reforestation,etc.One method of offsetting
carbon emissions involves sequestering carbon in growing plants,either through reforestation,or as
Poseidon describes,through restoring and preserving coastal wetlands.126 As part of its proposal,
Poseidon has committed to purchase one million dollars worth of native and non-invasive trees to be
planted in areas of San Diego County that were burned during the October 2007 wildfires.The
Commission requested that Poseidon work with the San Diego Air Quality Management District to
determine what kinds of trees would be appropriate to use.However,Poseidon has not provided
further details about the type or amount of emission credits it would purchase or what kinds of
emission reduction projects it would undertake.An additional concern is that there are only limited
methods currently available for offsetting emissions,and it may be necessary to commit those
offsetting measures to existing and critically needed facilities rather than a proposed and highly
energy-intensive use such as this desalination facility.Further,rather than use offsets,Poseidon would
be better able to conform to the Coastal Act Section 30253(4)requirement by including with its
proposed project an energy conservation plan that commits to specific measures it will take to
minimize energy use and its associated greenhouse gas emissions.A plan focusing on onsite and
offsite energy conservation measures that result in an annual znn million pound decrease in carbon
dioxide emissions would be most closely related to Section 30253 (4)'s mandate to minimize energy
use.If those measures are inadequate,the plan could then provide offsets for the remaining emissions.
To ensure Poseidon's proposal will avoid and offset the adverse coastal resource impacts noted above
and will conform to applicable Coastal Act provisions,Special Condition 10 requires Poseidon,prior
to issuance of its coastal development permit,to submit to the Commission for review and approval a
revised Energy Minimization and Greenhouse Gas Reduction Plan.That Plan is to be developed in
conjunction with Coastal Commission staff and staff of other interested agencies and is to describe the
procedures and mitigation measures that will be impleinented to determine the amount of carbon
dioxide emitted due to Poseidon's electrical use and to ensure that project operations are "net carbon
neutral".These may include measures described above and others,such as confnmed use of
renewable energy sources like solar or wind power that would reduce the project's carbon footprint.
Conclusion
Special Condition 10 requires Poseidon to submit to the Commission for review and approval a
Revised Energy Minimization and Greenhouse Gas Reduction Plan that addresses comments
submitted by the staffs of the Commission,State Lands Commission and the Air Resources Board
prior to issuance of the permit.The Commission finds that imposition of Special Condition 10 will
ensure that Poseidon minimizes electricity consumption ofthe project and mitigate any effects of the
project's emissions on coastal resources,and that,as mitigated and conditioned,the project is
consistent with the requirements of Section 30253(4)and other relevant Coastal Act provisions.The
proposed project is meant in part to respond to the threat of drought and dwindling water supplies,and
with adequate minimization and compensatory mitigation measures,the project will help achieve those
goals.Poseidon's revised plan shall establish that the project will avoid,minimize,or mitigate adverse
126 To provide a comparison,the U.S.EPA and U.S.Agency for International Development Climate Technology website
calculates that sequestering 200,000,000 pounds of annual carbon emissions each year requires about 75,000 acres of
growing forest (see www.usctcgateway.net).
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impacts to a wide range of coastal resources,including public access,recreation,marine resources,
wetlands,ESHA,agriculture,natural land forms,and existing development associated with its
minimized and mitigated energy consumption.Based on the above,the Commission finds that the
project,as conditioned,will conform to Coastal Act provisions related to minimizing energy use and
mitigating any adverse effects on coastal resources from greenhouse gas emissions.
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4.5.6 Development and Public Services (Coastal Act Sections 30250 &30254)
Coastal Act Section 30250(a)states:
New residential,commercial,or industrial development,except as otherwise provided in
this division,shall be located within,contiguous with,or in closeproximity to,existing
developed areas able to accommodate it or,where such areas are not able to
accommodate it,in other areas with adequate public services and where it will not have
significant adverse effects,either individually or cumulatively,on coastal resources.In
addition,land divisions,other 'than leasesfor agricultural uses,outside existing
developed areas shall be permitted only where 50 percent of the usable parcels in the
area have been developed and the created parcels would be no smaller than the average
size of surrounding parcels.
Coastal Act Section 30254 states:
New or expanded public works facilities shall be designed and limited to accommodate
needs generated by development or uses permitted consistent with theprovisions of this
division;provided,however,that it is the intent of the Legislature.that State Highway
Route 1in rural areas of the coastal zone remain a scenic two-lane road.Special
districts shall not beformed or expanded except where assessment for,andprovision of,
the service would not induce new development inconsistent with this division.Where
existing or planned public works facilities can accommodate only a limited amount of
new development,services to coastal-dependent land use,essential public services and
basic industries vital to the economic health of the region,state,or nation,public
recreation,commercial recreation,and visitor-serving land uses shall not beprecluded
by other development.
Coastal Act Section 30250(a)generally requires that new industrial development,such as the
proposed project,be sited in developed areas able to accommodate it or in areas with adequate
public services and where it will not result in significant adverse effects to coastal resources.
The facility would be located on an existing industrial site in an area with public services
provided.Coastal Act Section 30254 requires in part that development not preclude public
works facilities able to accommodate only limited new development from providing essential
public services.Taken together,these policies are meant to ensure,in part,that new
development not outpace the ability of communities to provide necessary public services and that
development be supportive of other coastal resources.
The project's capacity of 56,000 AFY of new water supply for the San Diego region is about ten
percent of 500,000 AFY of desalinated water identified by the California Department of Water
Resources as needed by 2030,as stated in its 2006 Water Plan Update.This Update lists the
project as a potential source of desalinated water.The Metropolitan Water District of Southern
California's Integrated Water Resources Plan identified a need for 250,000 AFY of seawater
desalination (including 56,000 AFY from the Carlsbad project)to ensure regional water supply
reliability.In addition,the San Diego County Water Authority updated its 2005 Urban Water
Management Plan in April 2007 specifically to reaffrrm the need for 56,000 AFY of seawater
desalination from the project by 2011.The project is a central component of state,regional and
local water supply planning to meet already-identified demand.
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The proposed project conforms to Sections 30250(a)and 30254 because any adverse effects to
coastal resources will be mitigated as described in other sections of these Findings.Regarding
growth implications,the Commission finds that the project will not induce growth since
Poseidon will be selling its produced water to various public water districts.Inthis instance,use
ofthat water by those districts will be subject to the applicable current and future growth plans,
allowable levels of build-out,and conservation plans adopted by those districts or by the local
jurisdictions they serve.The project provides part of the water supply that the Califoruia
Department of Water Resources has identified as being needed in the area.The project does not
induce growth,but rather,concentrates on providing a secure water supply for a region importing
about 85%of its water and whose sources of imported water may not be secure.Accordingly,
the project is a needed component of,and is consistent with,state,regional,and local water
supply planning to meet an identified demand.
Conclusion
Based on the above,the Commission fmds that the project will not result in growth-inducing
impacts and,as proposed and conditioned conforms to Coastal Act Sections 30250 and 30254.
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4.5.7 Coastal-Dependent "Override"(Coastal Act Section 30260)
Coastal Act Section 30101 states:
"Coastal-dependent development or use"means any development or use which requires a
site on,or adjacent to,the sea to be able tofunction at all..
Coastal Act Section 30260 states:
Coastal-dependent industrialfacilities shall be encouraged to locate or expand within
existing sites and shall be permitted reasonable long-term growth where consistent with
this division.However,where new or expanded coastal-dependent industrial facilities
cannotfeasibly be accommodated consistent with other policies of this division,they may
nonetheless be permitted in accordance with this section and Sections 30261 and 30262if(1)alternative locations are infeasible or more environmentally damaging;(2)to do
otherwise would adversely affect the public welfare;and (3)adverse environmental
effects are.mitigated to the maximum extent feasible.
Coastal Act Section 30260 provides for special consideration of coastal-dependent industrial
facilities that may otherwise be found inconsistent with the Coastal Act's Chapter 3 policies.Such
coastal-dependent proposals must first be evaluated for consistency to all other applicable policies
and standards contaioed in Chapter 3.If a proposal is found to be inconsistent with any Chapter 3
policy,Section 30260 provides that it may be approved,notwithstaoding its inconsistencies with
those other policies,but only upon application of a three-part test -(1)that alternative locations are
infeasible or more enviromnentally damaging;(2)that adverse enviromnental effects are mitigated to
the maximum extent feasible;aod (3)that to do otherwise (i.e.,to deny the proj ect)would adversely
affect the public welfare.
Poseidon's proposed seawater desalination facility would be a coastal-dependent industrial facility,
as it would need to be sited on or adjacent to the sea in order to function at all.Additionally,as
determined previously in these findings,the Commission has found that the proposed proj ect,as
conditioned,would conform to applicable Coastal Act policies except Section 30233(c).Therefore,
the Commission's approval of the project reqnires use of the Section 30260 "oven-ide".As shown in
the discussion below,the Commission has determined that the project,as conditioned,meets the
three tests of Section 30260 aod thereby conforms to this Coastal Act policy.Each ofthe three tests
is applied below.
Test 1-Alternative Locations are Infeasible or More Environmentally
Damaging
Under Section 30260,the project cao be approved ifthe Commission finds there are no alternative
locations that would lessen the project's enviromnental impacts.Previously in Section 4.5.1 ofthese
Findings,the Commission found that there are no feasible alternative locations that would
significantly reduce aoy impacts of the proposed intake aod the outfall.
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Based on the analysis provided previously in these Findings,the Commission finds that there are no
feasible and less environmentally damaging alternative locations available for the project's seawater
intake and discharge components and that the proposed project meets the first test of Section 30260.
Test 2 -Adverse environmental effects are minimized to the maximum extent
feasible
Section 30260's second test requires that a proposed project include maximum feasible mitigation
measures.Poseidon's proposal meets this test of Section 30260 through imposition of Special
Conditions 4 (Other Agency Approvals),8 (Marine Life Mitigation Plan),9 (Seawater Withdrawal),
10 (Energy Minimization and Greenhouse Gas Reduction Plan);11 (public Access),12 (Dredging),
13 (Visual Resources),15 (Construction Plan),16 (Storm Water Pollution Prevention Plan)and 17
(Water Quality),which,among other protections,impose requirements that Poseidon implement
mitigation measures that will minimize potential adverse environmental effects to the maximum
extent feasible.These conditions will,among other things require Poseidon to (1)submit to and
obtain from the Commission approval of a revised Marine Life Mitigation Plan in the form of an
amendment to the CDP that will mitigate to the extent feasible project-related impacts to marine life;
(2)submit to and obtain from the Commission approval of a revised Energy Miniruization and
Greenhouse Gas Reduction Plan that results in reduction in electrical use and reduction or offset of
greenhouse gas emissions associated with the project's operations to the maximum extent feasible
through Poseidon's agreement that the project will be net carbon neutral;and (3)submit separate
coastal development permit applications to the Commission for future dredging of the Lagoon so the
Commission can ensure that future dredging is consistent with the Coastal Act.Together,these and
the other Special Conditions ensure the project will mitigate to the maximum extent feasible the
project's adverse effects on coastal resources.
Based on the above and on the previous Findings herein,the Commission finds that the proposed
project as conditioned mitigates its impacts to the maximum extent feasible and that it meets the
second test of Section 30260.
Test 3 -To not permit the development would adversely affect public welfare
Section 30260's final test provides that coastal-dependent industrial development may be permitted
if to do otherwise would adversely affect the public welfare.This test requires more than a finding
that,on balance,a project as proposed is in the interest of the public.It requires that the
Commission fmd that there would be a detriment to the public welfare were the Commission to deny
the project.The Commission recoguizes that it is clearly in the interest ofthe San Diego region to
develop local and reliable water sources and that seawater desalination is a part of this portfolio.For
the reasons below,the Commission finds that denial of the proposed project is not in the public
interest.
•Effects of environmental impacts on public welfare:Through imposition of Special
Conditions 8 and 10,the Commission finds that the project as mitigated will address the need to
improve marine life productivity and will therefore be consistent with the goals of Sections
30230 and 30231.The Lagoon also provides many beneficial uses to the public that this project
will support through continued and increased opportunities for public access,ongoing use for
marine life science and research,and others.Additionally,Special Condition 12 requires
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Poseidon to obtain separate coastal development permits for any proposed future dredging
activities in the Lagoon,which will ensure those activities conform to applicable Coastal Act
provisions.
•Public welfare as applied to public or private water supplies:As noted in the Commission's
2004 report,Seawater Desalination and the California Coastal Act:
A fundamental Coastal Act principle is that many coastal resources are imbued with a
public interest and value that must be vigorously protected for the benefit of current and
future generations.Unlike many coastal resources that areprivately owned,ocean
water,and the uses and values it embodies,constitute apublic trust resource held in
common for public use and enjoyment.This principle is codified in numerous federal
and state laws and regulations,including the Coastal Act ...Notwithstanding the public
nature of coastal ocean waters,use of such waters and of living and non-living resources
in and under them have historically been allowed for non-public purposes,
Ocean water serves a number of beneficial uses and vital environmental,social,and
economic functions.It ispart of the shared public "commons",it serves as habitat for a
multitude of species,it is a source offood and livelihood for society,and it is used to
support transportation,commerce,recreation,and other important societal uses.For the
most part,these uses are non-consumptive and sustainable,in that using ocean water for
one of these purposes does not necessarily impair its ability to be used for others.
Privatization of water supplies,in and of itself,may not cause effects on coastal resources
different than those caused by a public agency.Most differences would be due to how each type
of entity implements its water use.Both public and private projects may include particular
characteristics that change how they affect resources and how they meet the public interest.
Further,California has recognized there is a role for private water purveyors and for providers of
other basic utilities such as gas and electricity.The state has a system to regulate public and
private utilities to ensure that public interests are being met.
Private entities can clearly bring benefits to public agencies.One of the benefits stated by the
public agencies involved with Poseidon's proposed project is that Poseidon is willing to provide
the initial capital investment and obtain the approvals needed to build and operate the facility,
which can represent a siguificant savings to public agencies.However,this benefit comes with
risks and costs,as noted by the Commission in previous decisions.
The Commission in the past has both approved and deuied proposed private desalination
facilities.For example,it approved a privately-owned facility on Catalina Island in part because
there were .no feasible alternatives for the proposal.In 1994,the Commission denied
construction ofa private desalination facility (A-3-SNC-94-008-E2,Sterling Center in the City
of Sand City)based in part that it would result in fragmentation of public works facilities.In
1995,the Commission's Findings for an adopted LCP amendment to the Santa Barbara Coastal
Program stated:"Private desalination facilities also raise the basic policy question of the effect of
allowing the proliferation of privately owned and operated water supply facilities on the ability
to comprehensively plan for the provision of essential public services".Those Findings go on to
express concerns about the abilities of private owners to operate and be accountable for
desalination operations,to mitigate associated impacts,to maintain the facility in a manner
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necessary for public health and environmental safety,and other issues.The Findings also state
that proliferation of private desalination facilities could fragment public utility services.127 They
conclude by stating that proliferation of such facilities where consolidation is feasible is
inconsistent with the Coastal Act.In 1997,the Commission found in its consideration of a LOP
update in San Luis Obispo County that a proposed desalination facility would be inconsistent
with Coastal Act policies because it would provide for continued urban development that could
uot be supported by existing water supplies.
The recent history of privatizing water services has identified some of these risks and has
resulted in some key questions about such proposals:Will there be adequate public oversight and
monitoring,and transparency in decision-making and financial issues?;What measures will
ensure that ecosystem values are protected?;How will privatization affect initiatives related to
water-use efficiency and conservation?;and,What happens if it doesn't workv'"
Regarding transparency in decision-making and financial issues,both the State Desalination
Task Force and the Califomia Resources Agency have recognized that private desalination
proponents should disclose the same information as that disclosed by public entities.!"Public
water districts are required by law to publish financial statements that disclose the basis of a
district's revenues,costs,cash flow,and other basic economic data that describe the financial
health of the district.These statements are public documents and serve to inform the public
about the basis for a district's rates,the need for additional funding for various projects,etc.
Many districts provide this information on their websites,along with meeting agendas,meeting
minutes,information about health and safety-related characteristics of their water supplies,and
other information useful to the public to find out about its water and about the important
decisions to be made about its water supply.Poseidon's water purchase agreements with the
eight municipal water agencies that will be purchasing water from the project are public
documents,which provide the public with transparency regarding the project's financialrelationshipwiththeagencies."?
Additionally,as noted previously in Section 4.2 of these Findings,Poseidon's contracts with the
Carlsbad Municipal Water District provide that the Water District could assume operation or
ownership of the facility if necessary,and Poseidon is required to post securities to ensure site
remediation or removal ofthe facility,if warranted.Additionally,Poseidon's water purchase
agreements with the various public water districts primarily obligate the purchasers to buy up to
a certain amount of water at a specified price.Decisions about use and distribution of that water
will remain the purview ofthese public water districts.
127 However,the San Diego County Water Authority supports the desalination facility and passed a resolution on June
28,2007 in support of the Project finding that "the Carlsbad Desalination Project is essential to the Water Authority's
ability to achieve the supply diversification goals contained in the 2005 UWMP [Urban Water Management Plan]."
128 See the Pacific Institute's report,The New Economy of Water:The Risks and Benefits oJGlobalization andPrivatizationofFreshWater,February 2002.
129 See State Desalination Task Force recommendations and March 15,2004 letter from Resources Secretary MikeChrismantoCoastalCommission.
no See Reporter's Transcript of Proceedings,Application No.E-06-013,November 15,2007,Agenda Item No.7.a.,at p.275-276.
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Overall,however,the Commission recognizes the importance and the urgency in providing a
reliable water supply in the San Diego region during a time of declining availability of imported
water and a time of significant fiscal constraints on public water agencies.Even with regional
initiatives to emphasize water conservation and to reuse existing supplies,the population and
economy of the San Diego area is heavily reliant on maintaining and creating an adequate water
supply such as the supply created by this facility.Further,this facility's initial development and
construction costs,which are expected to exceed $300 million,will be borne directly by a willing
private entity rather than by the water districts that have agreed to purchase the water produced at
the facility.Further,as noted above,the San Diego Couniy Water Authority withdrew its
proposal to construct a desalination facility at this site,leaving Poseidon as the only entity
willing to undertake construction and operation.The Commission therefore finds in this case
that it is in the public interest to allow private development of a portion of the region's water
supply.
$The combination of this facility and other alternatives provide for the pnblic welfare:The
Commission also believes that in combination with a well-designed desalination facility that
conforms to Coastal Act provisions,other water sources are available to provide a local and
reliable water supply.These other sources,including conservation,recycling,and others,are
feasible,less environmentally damaging,and are already being done to some degree in the San
Diego area and elsewhere.
Regarding conservation,it is considered the least expensive and often the least environmentally
damaging type oflocal water supply.Water users and providers in the San Diego region have
already implemented a number of effective conservation measures to increase the local water
supply and have recognized it as a necessary part of the regional water portfolio.For example,
the San Diego County Water Authority's May 2007 draft Blueprint for Water Conservation
states that conservation is the cheapest form of new water supplies and shows that it expects
conservation to go from providing about seven percent of the region's supply (about 51,000 acre-
feet per year)to about twelve percent (100,000 acre-feet per year)by 2030.As noted previously
in these Findings,the Blueprint also shows that seawater desalination is expected to provide
about ten percent (89,000 acre-feet per year)of the regional supply by 2030.Similarly,in March
2002,the San Diego County Board of Supervisors adopted Policy No.A-I06,which emphasizes
the need for water conservation as a significant part of the County's water portfolio.
The region could develop even more new water through conservation,similar to other coastal
areas in California with limited local water supplies but with ongoing growth.For example,in
Long Beach,conservation is expected to provide 15percent of the water supply by 2015,and in
the Monterey County area,conservation accounts for about twenty percent of the supply.
Applying those percentages to San Diego's total expected water use in 2030 would result in
conservation supplies of about 125,000 to 160,000 acre-feet per year.
Although many of the region's water districts have developed effective conservation programs,
there are still a substantial number of conservation measures and initiatives that could provide
significant amounts of water.For example,many ofthe agencies that have agreed to purchase
water from Poseidon are members of the California Urban Water Conservation Council,which
has developed a menu of cost-effective Best Management Practices (BMPs)to reduce urban
water use.These member agencies are implementing some,but not all,of the Council's fourteen
adopted BMPs,suggesting that there is an as-of-yet untapped source of conservation water
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available.Other sources include recycling and even indirect potable reuse.Carlsbad recently
reported that it is using less than half the recycled water it has available to it,which suggests it
has an underused local and reliable option.131 We note,too,for example,that the same treatment
system Poseidon proposes for its facility is used in indirect potable reuse applications.The
Commission expects that the use of these and other conservation measures will continue and will
increase,with or without the proposed project.
Even with these conservation measures in place and with other conservation measures still
available,the Commission finds that it is in the public interest for this desalination facility to
provide water that augments these other sources.The project would provide an important
and much-needed source of potable water for Southern California.Since Poseidon filed its
CDP application,the water supply situation in the State of California -already bad _has
substantially deteriorated.Poseidon has previously provided the Commission with
newspaper reports that recognize a looming water crisis and clearly identify the need for
California,and more specifically San Diego County,to lessen its demand on the State Water
Project and Colorado River watersheds,which were critically dry in 2007.132
State,regional,and local water plans all have confirmed that the immediate and pressing
water needs are so great,that.they cannot be met by conservation and recycled water alone
and that a substantial investment in seawater desalination,including the project,is required.
The project's capacity of 56,000 AFY of new water supply for the San Diego region is"about
ten percent of 500,000 AFY of desalinated water identified by the California Department of
Water Resources as needed by 2030,as stated in its 2006 Water Plan Update.This Update
lists the project as a potential source of desalinated water.The Metropolitan Water District
of Southern California's Integrated Water Resources Plan identified a need for 150,000 AFY
of seawater desalination (including 56,000 AFY from the Carlsbad project)to ensure
regional water supply reliability.In addition,the San Diego County Water Authority
updated its 2005 Urban Water Management Plan in April 2007 specifically to reaffirm the
need for 56,000 AFY of seawater desalination from the project by 2011.The project is a
central component of state,regional and local water supply planning to meet already-identified demand.133
Eight public water agencies have already entered into long-term agreements with Poseidonto
receive 1OO%.of the supply of desalinated water from the project.These agencies have some
of the most aggressive water recycling programs in the region,but they have stressed the
need for desalinated water to ensure regional water supply reliability and to meet existing
demands and planned-for future growth,and they have identified the project's water supply
as a component of their water plans.134The entire plant's output will be put to public use by
these public agency partners,ensuring that the water will remain in the public domain.
131 See Carlsbad's 2007 State of Effectiveness Report.
l32 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh,A at P.5.
133 See id.atp.6.
134 See Poseidon Resources Corporation,Letter to State Lands Commission Executive Director re:Desalination Project's
Impact on Imported Water Use,November 8,2007 (including attachments from water districts);Poseidon Resources
Corporation,Carlsbad Desalination Project Briefing Package,CDP Application No.E-06-013,November 2007.
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Public agencies will continue to control the allocation and use of the water,so local
government oversight will be preserved.Under Poseidon's contracts with each public water
agency,the customers'price of water will not exceed the price that the customer would have
paid for the imported water supply from the San Diego County Water Authority.
The region expects further restrictions in the amount of water being imported to the area.If the
restrictions are as severe as expected -i.e.,reductions of up to about 30%--it will need to rely
on conservation,desalination,and other means to make up the water deficit.This facility is
therefore a necessary and integral part of the region's water portfolio .
e Public benefits resulting from increased shoreline access opportunities:Inaddition to the
above public welfare benefits,the project will result in increased access to the shoreline of
both Agua Hedionda Lagoon and the Pacific Ocean.As part of its project,Poseidon has
offered to dedicate for public use four sites totaling about 15 acres on or near the shore of
both the Lagoon and the ocean.The dedicated area will not only provide greater public
access to formerly private ocean and Lagoon front property,but it will provide additional
opportunities for recreation,fishing and marine research and restoration.135 Specifically,the
dedicated area would be used for expansion of the existing fish hatchery and aquatic research
uses,a fishing beach,recreation and coastal access,and public parking.To ensure the sites
are made available for public use,Special Condition 11 requires that,prior to starting
operations of the desalination facility,Poseidon ensure these parcels are dedicated for public
access and recreation as described in the City's Precise Development Plan #PDP 00-02.
These public access dedications provide adequate conformity to the Coastal Act's public
access provisions.One ofthe Coastal Act's primary goals is to maximize public access and
recreational opportunities along the coast I",and the project's public access aspects support
that goal.
Based on the above,the Commission finds that the proposed project meets the final test of
Section 30260.
Conclusion
The Commission recognizes that the San Diego region is clearly in need of reliable and local water
sources.As noted above,the Commission has found that this coastal-dependent industrial facility,
as conditioned,conforms to all applicable Coastal Act policies except Section 30233(c).However,
the Commission has determined through applying the three tests above that the project conforms to
the "override"provisions of Coastal Act 30260 provided for such facilities.The Commission
therefore finds that by meeting the requirements of these three tests and with imposition of the
Special Conditions described previously in these Findings,the project conforms to Coastal Act
Section 30260.The Commission may therefore approve the project pursuant to that Coastal Act
policy.
135 See Poseidon Resources Corporation,Response to Staff Report,November 9,2007,Exh.A at p.4,26.
136 See,for example,Coastal Act Section 30001.5,which states in relevant part:"The Legislature further finds and
declares that the basic goals of the state for the coastal zone are to ...(c)Maximize public access to and along the
coast and maximize public recreational opportunities inthe coastal zone consistent with sound resources
conservation principles and constitutionally protected rights of property owners."
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5.0 CALIFORNIA ENVIRONMENTAL QUALITY ACT
On June 13,2006,the City of Carlsbad certified an Environmental Impact Report for the
proposed project.In addition,Section 13096 of the Commission's administrative regulations
requires Connnission approval of CDP applications to be supported by a finding showing the
application,as modified by any conditions of approval,to be consistent with any applicable
requirements ofthe California Environmental Quality Act (CEQA).Public Resources Code
Section 21080.5(d)(2)(A)prohibits approval ofa proposed development ifthere are feasible
alternatives or feasible mitigation measures available that would substantially lessen any
significant impacts that the activity may have on the environment.
As discussed above,although the project is not an allowable use pursuant to Section 30233(c),it
is a coastal-dependent industrial facility and the Commission has therefore approved the project
pursuant to the policies of Coastal Act Section 30260,which allows such projects to be approved
if the Commission finds there are no feasible less environmentally damaging alternative
locations,that all adverse environmental impacts are mitigated to the maximum extent feasible,
and that to not approve the proj ect would not be in the public welfare.Pursuant to these
Findings and the review conducted in the City of Carlsbad's EIR,the project includes all
available and feasible measures to avoid or minimize significant adverse environmental impacts.
There are no feasible alternatives or feasible mitigation measures available that would
substantially lessen any significant adverse impact that the activity would have on the
environment.Therefore,the Connnission finds that the proposed project,as conditioned,is
consistent with the requirements of CEQA.
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APPENDIX A:SUBSTANTIAL FILE DOCUMENTS E-06-013
Alpert,H.,Borrowman,c.,and B.Haddad.Evaluating Environmental Impacts of
Desalination in California,Center for Integrated Water Research,at
http://ciwr.ucsc.eduldesalplanninglworkshops.html,July 27,2007 ..
Bay,Steven,and Darrin Greenstein.Toxic effects of elevated salinity and desalination waste
brine,Southern California Coastal Water Research Project,1994.
Cabrillo Power I LLC.Proposal for Information Collection Clean WaterAct Section 316(b)Encina Power Station,April I ,2006.
Cabrillo Power I LLC.Letter to Coastal Commission staff regarding current and anticipated
future conditions at Encina Power Station,July 12,2007.
California Coastal Commission.Approved coastal development permits and rnitigation plans for
San Onofre Nuclear Generating Station (SONGS),including CDP #6-81-330A (1974)and #06-04-88 (2005).
California Coastal Commission.Seawater Desalination and the California Coastal Act,March2004.
California Department of Water Resources.California Water Plan Update,2005.
California Energy Commission.AES Huntington Beach Generating Station Entrainment and
Impingement Study,2005 and Entrainment and Impingement Final Staff Analysis,August,2006.
California Energy Commission.Issues and Environmental Impacts Associated with Once-
Through Cooling at California's Coastal Power Plants,June 2005.
California Energy Comrnission.Morro Bay Power Plant 3I6(b)Resource Assessment,200 I.
California Public Utilities Commission.San Diego Gas and Electric Company's Divesture of
Electric Generating Assets -Environmental Review (No.97-12-039).
California Public Utilities Commission.Initial Study for San Diego Gas &Electric Company'sApplicationNo.97-12-039,October 13,1998.
California State Desalination Task Force.Draft Desalination Task Force Report,September2003.
California State Lands Commission staff report for Poseidon Resources Channelside LLC State
Lands Lease Application,October 30,2007.
California State Lands Commission and U.S.Army Corps of Engineers.Draft Environmental
Impact Report!Environmental Assessment -Agua Hedionda Northern Inlet Jetty Restoration,January 2005.
Califomia State Water Resources Control Board.California Ocean Plan,2005.
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Carlsbad Watershed Management Plan,2002.
City of Carlsbad.Certified Land UsePlan,adopted August 27,1982.
City of Carlsbad.Final Environmental Impact Report for Precise Development Plan and
Desalination Plant,EIR 03-05 -SCH #2004041 081.
City of Carlsbad.Additional Responses to Connnents on the Final EIR 03-05 for the Precise
Development Plan and Desalination Plant Project #2004041081,June 13,2006.
City of Carlsbad.Master Water Plan Update,March 2003.
Clean Air,Cool Planet.A Consumer's Guide to Retail Carbon Offset Providers,December
2006.
Coast Law Group.June 4,2007 letter to California State Water Resonrces Control Board re:
Seawater Desalination Intakes and Once-Through Cooling Regulations.
Coast Law Group,letter to State Lands Commission re:CarlsbadfPoseidon Ocean Desalination
Project,October 29,2007
Coast Law Group.Issue papers on Coastal Dependent Use Exceptions (Coastal Act Section
30260),Failure to Adequately Consider and Minimize Energy Use,Failure to Adequately
Consider Discharge-Related Impacts,Failure to Adequately Consider Intake Alternatives,
Lagoon Sedimentation Impacts,and Marine Life Mortality From Entrainment,provided
November 13,2007.
Collector Wells International,Inc.Collector Wellsfor Filtered Seawater,n.d.;and Filtered
Seawater Supply for Desalination,2001.
Cooley,Heather,Dr.Peter Gleick,and Gary Wolff.Desalination,With a Grain of Salt,Pacific
Institute,June 2006.
Dale,Larry,Camilla Dunham Whitehead,and Andre Fargeix.Electricity Price and Southern
California's Water Supply Options,in Resources,Conservation and Recycling,Volume 42,Issue
4,November 2004.
Del Bene,J.V.,Gerhard Jirka,and John Largier.Ocean brine disposal,in Desalination,Volume
97,1994.
Dickie,Phil.Desalination:Option or Distraction for a Thirsty World,World Wildlife Fund,
June 2007.
Glcick,Dr.Peter H.,Heather Cooley,and David Groves.California Water 2030:An Efficient
Future,Pacific Institute,September 2005
Hunt,Henry.Filtered Seawater Supplies -Naturally,in Desalination and Water Reuse,Volume
6,No.2.
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Imam,Dr.Abdelghani,Samir Dweiri,Diego Fernandez &Dr.Paul Kent.Annex Ill:
Desalination Costs,for the United States Agency for International Development,March 2007
Latham &Watkins.Letter to State Lands Commission Re:CEQA Issues Raised for Poseidon
Project By Coastal Commission Staff,October 31,2007.
Latham &Watkins.Letter to Chair Kruer and Commissioners transmitting Poseidon's Proposed
Special Conditions and Proposed Instructions to Staff Regarding Preparation of Revised
Findings,November 15,2007.
Latham &Watkins.Letter to Chair Kruer and Commissioners transmitting Poseidon's
Suggested Basis for Findings and Updated Requested Additions to List of Substantive File
Documents,November 15,2007.
Lilien,Ben.Public Versus Private Ownership of Seawater Desalination Facilities,Stanford
Enviromnental Law Clinic,June 2005.
McRae,Timothy.Coastal Desalination,"Coastal-Dependency"and the California Coast:How
today's desalination proposals could affect tomorrow's coastline,pub!.In prep.2007.
Metropolitan Water District of Orange County.Dana Point Ocean Desalination Project,April
2007.
Miri,Rachid,and Abdelwahab Chouikhi.Ecotoxicological marine impacts from seawater
desalination plants;in Desalination 182,2005.
National Marine Fisheries Service and U.S.Fish and Wildlife Service.Recovery Plan
for u.s.Pacific Populations of the East Pacific Green Turtle (Chelonia mydas),1998.
Perata,Senator D.Letter to P.Kruer re:Carlsbad Desalination Project,November 13,2007.
Peters,Thomas,Domenec Pinto,and Esteve Pinto.Improved seawater intake and pre-treatment
system based on Neodren technology,in Desalination #203,2007.
Planning and Conservation League.Investment Strategy for California Water,2004.
Poseidon Resources Corporation.Application for Coastal Development Permit,August 28,2006,
including (but not limited to)attachments:
•Final Enviromnental Impact Report
•Verification of All Other Permits or Approvals Applied for by Public Agencies
•City of Carlsbad Resolution No.2006-156 -EIR 03-05
•City of Carlsbad Resolution No.420 -RP 05-12
•City of Carlsbad Ordinance No.NS-805 -SP 144 (H)
•City of Carlsbad Ordinance No.NS-806 -PDP 00-02
•Planning Commission Resolution No.6093 -SUP 05-04
•Planning Commission Resolution No.6092 -CDP 04-41
•Planning Commission Resolution No.6090 -DA 05-011 Development Agreement,Finding
of Fact
•CEQA Mitigation Monitoring and Reporting Program for the FEIR
014143
Final Adopted Findings -Coastal Development Permit Application E-06-0J3
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page J 04 of J 06
•Planning Commission Resolution No.6094 -HMPP 05-08
•Planning Commission Resolution No.6088 -PDP 00-02
.•Planning Connnission Resolution No.6091 -RP 05-12
•PlanningConnnissionResolutionNo.6089 -SP 144 (H)
Poseidon Resources Corporation.Response to California Coastal Commission's September 28,
2006 Reqnest for Additional Information,November 30,2006,including (but not limited to)
attaclunents:
•San Diego Regional Water Quality Control Board,Order No.R9-2006-0065
("NPDES Permit")
•Poseidon Resources Corporation.Response to California Coastal Connnission's December
28,2006 Request for Additional Information (including attaclunents),January 19,2006.
•Poseidon Resources Corporation.Transmittal of Analysis of Alternative Subsurface Seawater
Intake Structures,Proposed Desalination Plant,Carlsbad,CA,Wiedlin &Associates
(January 30,2007),sent February 2,2007.
•Poseidon Resources Corporation.Response to California Coastal Commission's February 20,
2007 Reqnest for Additional Information (including attaclnnents),Jnne 1,2007.
@ Poseidon Resources Corporation.Appeal of California Coastal Commission's July 3,2007
Notice of Incomplete,July 6,2007.
•Poseidon Resources Corporation.Response to California Coastal Connnission's July 3,2007
Request for Additional Information (including attaclnnents),July 16,2007.
e Poseidon Resources Corporation.Additional Analysis of Submerged Seabed Intake Gallery
(including attaclunents),October 8,2007.
•Poseidon Resources Corporation.Analysis of Offshore Intakes,October 8,2007,including
attachments:
o Scott A.Jenkins,Ph.D.and Joseph Wasyl.Comparative Analysis of Intake Flow Rate
on Sand Influx Rates at Agua Hedionda Lagoon:Low-Flow vs No-Flow Alternatives,
September 28,2007.
o J.B.Graham,S.Le Page and D.Mayer.Issues Related to the Use of the Agua
Hedionda Inlet"Jetty Extension EIR to Recommend An Alternative Seawater Intake
for the Carlsbad Desalination Proj ect,October 8,2007.
•Poseidon Resources Corporation.Coastal Habitat Restoration and Enhancement Plan
(including attaclnnents),October 9,2007.
•Poseidon Resources Corporation.Updated Response to Coastal Commission's September 28,
2006 Request for Additional Information,Section 13,CDP Energy Use,GHG Production &
Mitigation,October 9,2007.
•Poseidon Resources Corporation.Transmittal of Intake Cost Estimates,October 17,2007.
•Poseidon Resources Corporation.Climate Action Registry C02 Conversion Calculation,
October 18,2007.
•Poseidon Resources Corporation.Updated Response to Coastal Commission's September 28,
2006 Request for Additional Information,Section 13,CDP Energy Use,GHG Production &
Mitigation,October 21,2007.
•Poseidon Resources Corporation.Transmittal of GHG Emission Baseline Protocol,October
22,2007.
•Poseidon Resources Corporation.Transmittal of SDG&E GHG CCAR Report 2005,October
22,2007.
014144
Final Adopted Findings -Coastal Development Permit Application E-06-0 13
Poseidon Resources (Channelside)LLC
Approved August 6,2008-Page 105 of 106
•Poseidon Resources Corporation.Carlsbad Desalination Project Briefing Package,CDP
Application No.E-06-013,November 2007.
~Poseidon Resources Corporation.Transmittal of Garibaldi Study and Coastal Development
Permit for Southern California Edison and San Dieguito River Valley Joint Powers
Authority's San Dieguito Wetland Restoration Plan,November 7,2007.
•Poseidon Resources Corporation.Letter to Chairman Kruer and Honorable Commissioners
Attaching Draft Proposed Conditions of Approval,November 7,2007.
•Poseidon Resources Corporation.Letter to State Lands Commission Executive Director Re:
Desalination Project's Impact on Imported Water Use,November 8,2007,including the
following attachments:
o Carlsbad Municipal Water District.Letter to State Lands Commission Executive
Director Re:Desalination Project's Impact on Imported Water Use (including
attachments),November 7,2007.
o Valley Center Municipal Water District.Letter to State Lands Commission Executive
Director Re:Desalination Project's Impact on Imported Water Use (including
attachments),November 6,2007.
o Rincon del Diablo Municipal Water District.Letter to State Lands Commission
Executive Director Re:Desalination Project's Impact on Imported Water Use
(including attachments),November 6,2007.
o Rainbow Municipal Water District.Letter to State Lands Commission Executive
Director Re:Desalination Project's Impact on Imported Water Use (including
attachments),November 6,2007.
o Sweetwater Authority.Letter to State Lands Commission Executive Director Re:
Desalination Project's Impact on Imported Water Use (including attachments),
November 6,2007.
o Vallecitos Water District.Letter to State Lands Commission Executive Director Re:
Desalination Project's Impact on Imported Water Use (including attachments),
November 6,2007.
o Santa Fe Irrigation District.Letter to State Lands Commission Executive Director Re:
Desalination Project's Impact on Imported Water Use (including attachments),
November 7,2007..
o Olivenhain Municipal Water District.Letter to State Lands Commission Executive
Director Re:Desalination Project's Impact on Imported Water Use (including
attachments),November6,2007.
•Poseidon Resources Corporation.Letter to T.Luster Transmitting State Lands Commission
Hearing Presentation,November 8,2007.
Poseidon Resources Corporation.Letter to Chair Kruer and Commissioners,Response to Staff
Report,November 9,2007,including the following exhibits:
•Exhibit A:Response to Staff Report
•Exhibit B:Correction of Staff Report Misstatements,Inaccuracies and Omissions
•Exhibit C:Draft Proposed Conditions of Approval
•Exhibit D:Climate Action Plan,November 2007
•Exhibit E:Requested Additions to Substantive File Documents
Poseidon Resources Corporation.E-mail to T.Luster transmitting updated Climate Action Plan,
November 11,2007.
014145
Final Adopted Findings -Coastal Development Permit Application E-06-013
Poseidon Resources (Channelside)LLC
.Approved August 6,2008-Page 106 of 106
Poseidon Resources Corporation.Hardcopy printout of Power Point presentation prepared prior
to November 15,2007 hearing,submitted at November 15,2007 hearing.
Poseidon Resources Corporation.Revised electronic version of Power Point presentation
presented at November 15,2007 hearing,submitted electronically at November 15,2007
hearing.
Poseidon Resources Corporation.Bound compilation of72 supporter letters,submitted to
Commission at November 15,2007 hearing.
Powers,Bill,P .E.Assessment of Energy Intensity and C02 Emissions Associated with Water
Supply Options for San Diego County,October 12,2007.
San Diego County Water Authority.2006-2007 Annual Report.
San Diego County Water Authority.Draft Integrated Regional Water Management Plan.
San Luis Rey Municipal Water District.Final Programmatic Environmental Impact Report -
Master Water Plan,August 2007.
Soil/Waterl Air Protection Enterprise,LLC.Desalination White Paper:Reverse Osmosis
Product Water Quality Issues and Present Regulatory Status,prepared for Environment Now,
August 24,2006.
Southern California Edisou.San Onofre Nuclear Generating Station (SONGS)Mitigation
Documents,including San Dieguito Lagoon Final Restoration Plan,2005,and as referenced at
http://www.sce.comlPowerandEnvironmentIPowerGenerationIMarineMitigationlBackground.htm.
Steinbeck,John,John Hedgepeth,Peter Raimondi,Gregor Cailliet,and David Mayer.Assessing
Power Plant Cooling Water Intake System Entrainment Impacts,prepared for the California
Energy Commission,October 2007.
U.S.EPA.Water Quality Standards Handbook (publication EPA-823-B-94-005),August 1994
as revised June 2007.
Valley Center Municipal Water District.Comprehensive Annual Financial Report Fiscal Year
Ended June 30,2006.
Voutchkov,Nikolay.Challenges and Considerations when Using Coastal Aquifers for Seawater
Desalination,in Ultrapure Water,Volume 23:6,September 2006.
Voutchkov,Nikolay.The "Inconvenient Truth"About Desalination,in American Membrane
Technology Associates Newsletter,Summer 2007
Wolff,Gary.The Economics of Desalination,Pacific lustitute,September 9,2006.
World Health Organization.Desalination for Safe Water Supply:Guidance for the Health and
Environmental Aspects Applicable to Desalination,2007.
014146
STATE OF CALIFORNIA—THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER, GOVERNOR
CALIFORNIA COASTAL COMMISSION
45 FREMONT, SUITE 2000
SAN FRANCISCO, CA 94105-2219
VOICE AND TDD (415) 904-5200
FAX (415) 904- 5400 Click here to go
to the report addendum.
http://documents.coastal.ca.gov/reports/2008/12/W15a-s-12-2008-al.pdf
W16a
RECOMMENDED
REVISED CONDITION COMPLIANCE
FINDINGS
November 21, 2008
To: To Commissioners and Interested Parties
From:
Regarding:
Commissioners on
Prevailing Side:
Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Peter Douglas, Executive Director
Alison Dettmer, Deputy Director
Tom Luster, Staff Environmental Scientist
Condition Compliance for CDP No. E-06-013 - Poseidon Resources
(Channelside), LLC; Special Condition 8: Submittal of a Marine Life
Mitigation Plan
Commissioners Achadjian, Blank, Burke, Hueso, Kram, Lowenthal,
Neely, Potter, Reilly, Shallenberger, and Chair Kruer
Approved Marine Life Mitigation Plan (MLMP)
Staffs Proposed Draft MLMP Conditions (June 2008)
Poseidon's August 2, 2008 Proposed MLMP and attachments
Transcript of August 6, 2008 hearing (Commission deliberations only)
STAFF NOTE
Staff prepared these recommended Revised Findings to reflect the Commission's August 6, 2008
decision approving a Marine Life Mitigation Plan for the Poseidon desalination facility in
Carlsbad, San Diego County. The Plan is required pursuant to Special Condition 8 of Coastal
Development Permit #E-06-013. The Commission's approval at the August hearing included
modifications to the Plan proposed by both staff and Poseidon. Because the Commission's
action differed from staffs recommendation, revised findings are necessary. The recommended
Revised Findings herein support the Plan as approved by the Commission and are based on
staffs review of the August 6, 2008 hearing transcript and the record before the Commission.
Recommended changes from the August 6 document are shown in strikethrough and bold
underline text.
Item Wl6a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 2 of 19
Please note that the Commission required Poseidon to submit within 60 days of Commission
approval a revised Plan for Executive Director review and approval that incorporates the
Commission's approved modifications. Poseidon submitted a plan in early October 2008, which
has been reviewed and approved by the Executive Director, and is attached as Exhibit 1.
SUMMARY
On November 15, 2007, the Commission conditionally approved CDP E-06-013 for Poseidon
Resources (Channelside), LLC (Poseidon) for construction and operation of a desalination
facility to be located adjacent to the Encina Power Plant in Carlsbad, San Diego County. As part
of the Adopted Findings for its approval, the Commission imposed Special Condition 8, which
required Poseidon to submit for further Commission review and approval, a Marine Life
Mitigation Plan (MLMP, or the Plan).'
In June 2008, Commission staff provided to Poseidon recommended conditions to include
in its Plan (see Exhibit 2). On July 7, 2008, Poseidon submitted to Commission staff-ks-a
proposed Marine Life Mitigation Plan (the Plan). On August 2, Poseidon submitted a revised
version of that Plan (see Exhibit 3). This report provides staffs analysis of the Plan, staffs
evaluation of whether the Plan conforms to the Adopted Findings and Special Condition 8, and
staffs recommendation as to whether the Commission should approve the Plan.
In brief, staffs analysis shows that the Plan as submitted does not conform to the Adopted
Findings and Special Condition 8. However, if modified as described herein, staff believes the
modified Plan would conform to the applicable Findings and Special Condition 8. Staff
therefore recommends the Commission approve the Plan, as modified herein. The modifications
staff has identified as being necessary for Plan approval are summarized below and are further
detailed in Sections 1.1 and 4.0 of this memorandum. At its August 6, 2008 hearing, the
Commission approved a modified Plan. Because the Commission's action differed from
staffs recommendation, revised findings are necessary.
Staff recommends the Plan be modified to include the followingThe Commission modified the
Plan as follows:
1") Poseidon shall is to create or restore between up to 55.4 and 68 acres of coastal estuarine
wetland habitat within the Southern California Bight. For Phase I, within 10 months of
issuance of the desalination facility's coastal development permit (CDP), Poseidon
must submit proposed site(s) and a Preliminary Restoration Plan for Commission
review and approval. Within two years of issuance of the CDP for the desalination
facility, Poseidon must submit a complete CDP application to restore at least 37
1 The Commission's approval of this CDP also included Special Condition 10, which required Poseidon to submit
for Commission review and approval an Energy Minimization and Greenhouse Gas Reduction Plan. That Special
Condition and Poseidon's submitted plan are evaluated in a separate staff report under Item W5a of the August 6,
2008 Commission hearing. The Commission approved the Energy Minimization and Greenhouse Gas
Emission Reduction Plan at its August 6.2008 hearing. The recommended Revised Findings for that Plan are
on the Commission's December 2008 hearing agenda as Item W16b.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 3 of 19
acres of estuarine wetlands. For Phase II, Poseidon must within five years of
issuance of the Phase I CDP submit a complete CDP application either to restore an
additional 18.4 acres of estuarine wetlands or to propose reducing or eliminating
this Phase II restoration requirement by instead implementing technologies not
currently available or feasible that would reduce entrainment levels below currently
anticipated levels or by undertaking dredging in Agua Hedionda Lagoon in a
manner that warrants mitigation credit. Poseidon may apply to do all 55.4 acres of
restoration during Phase I.
2) Poseidon shall implement its Marine Life Mitigation Plan in conformity to the conditions
provided in Exhibit 2 of this memorandum these Findings.
3) Within 60 days of the Commission's approval of this modified the Plan (i.e., as
approved at the August 6, 2008 hearing), Poseidon shall submit for the Executive
Director's review and approval a revised Plan that includes these modifications.
The first recommendation modification is based on a review of Poseidon's proposed Plan by
staff and the Commission's independent scientific experts.2 Poseidon's entrainment study
identified impacts that these reviewers believe require more mitigation than Poseidon has-had
proposed. Staff further believes that tThis amount of mitigation is necessary to ensure the
project conforms to Special Condition 8 and Sections 30230, 30231, and 30260 of the Coastal
Act. Based on results from Poseidon's entrainment study, this range in acreage—from 55 to 68
acres—represents the range in statistical confidence that would 55.4 acres of wetland
restoration will provide the Commission with 80% (i.e., 55 acres) to 95% confidence (i.e., 68
acres) that the mitigation weuM-will fully mitigate the impacts identified in the study. Section
4.2 of this memorandum these Findings provides a more detailed discussion.*
The second recommendation is meant to modification ensures that mitigation is timely and
successful. It would requires Poseidon to implement its mitigation subject to the conditions
similar to those the Commission required of Southern California Edison at its San Dieguito
Restoration Project (see, for example CDPs #183-73 and #6-04-88). Although Poseidon's
current Plan does not commit to provide mitigation at a particular site, Poseidon had previously
identified a mitigation site in San Dieguito Lagoon adjacent to Edison's as the best its preferred
location to mitigate for its entrainment impacts. Staff recommends the two projects be held to
similar standards. The Commission's scientific experts concur with this recommendation
recommend that the two restoration projects be subject to similar standards (see Exhibit 1
- Approved Conditions for Marine Life Mitigation Plan). Section 4.2 provides a more
detailed discussion of this recommendation modification.
" Staff consulted with members of the Commission's Marine Review Committee Scientific Advisory Panel (SAP).
Committee members are identified in Section 3.0 of this memorandum.
j As an alternative to staffs recommendation, the Commiasion may wish to require mitigation in a manner similar to
past decisions in which it applied a mitigation ratio to the identified level of impact. If the Commission selects this
alternative approach, staff recommend mitigation be provided at between a 2:1 to 3:1 ratio, which would result in
from 85 to 127.5 acres of coastal estuarine wetland habitat as mitigation.
Item Wl6a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 4 of 19
The third recommendation modification is meant to help ensure Poseidon and the Commission
implements the approved mitigation plan as approved. Additionally, the 60-day deadline in the
recommendation would be inconsistent with the requirement imposed by the San Diego
Regional Water Quality Control Board that Poseidon provide a mitigation plan for Board
approval by October 9, 2008.4
With these recommended modifications, staff believes Poseidon's Plan would conform to
applicable provisions of Special Condition 8.
TABLE OF CONTENTS
1.0 MOTION & RESOLUTION 4
1.1 Recommended Modifications 5
2.0 STANDARD OF REVIEW 6
3.0 Plan Development and Review 7
4.0 ANALYSIS FOR CONFORMITY TO SPECIAL CONDITION 8 8
4.1 Plan Description 9
4.2 Analysis - Adequacy of Mitigation 10
4.2.1 Analysis of Poseidon's Entrainment Study 10
4.2.2 Determining the mitigation needed to address identified impacts 13
4.2.3 Analysis of Proposed Mitigation Phasing 16
4.2.4 Analysis of dredging as project mitigation 17
4.3 Analysis - Assurance that Mitigation will Succeed 18
1.0 MOTION & RESOLUTION
Motion:
"I mnvr that the Cnmmi'^inn cmnrnvc the Marine I ifc Mitivatinii Plrm attached tn the^11 US V \sII H~fl1.1 l\^ ^-slStlHlHiJiJI-lSfl*st-LSlSI \SV\sII ft- J.YJ.Isll tTft X-/17 t-J.VJ.H, li^lsll ll^JI I J.I Ml I C-tltHl^/ tt-H TC/ II ft--
staff recommendation as Exhibit 1 if modified as shown in Section 1.1 below and Exhibit
2 of this memorandum, as compliant with Special Condition 8 ofCDP E 06 013.1 move
that the Commission adopt the revised findings in support of the Commission's action
on August 6, 2008 to approve the Marine Life Mitigation Plan as compliant with
Special Condition 8 of CDP E-06-013. "
4 The Regional Board's Order, adopted on April 9, 2008 requires, in part: "Within six months of adoption of this
resolution, Poseidon shall submit to the Regional Board Executive Officer, for approval by the Regional Board an
amendment to the Plan that includes a specific proposal for mitigation of the impacts, by impingement and
entrainment upon marine organisms resulting from the intake of sea\vater from Agua Hedionda Lagoon, as required
by Section Vl.C.2(e) of Order No. R9-2006-0065; and shall resolve the concerns identified in the Regional Board's
February 19, 2008 letter to Poseidon Resources, 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.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 5 of 19
Resolution to Approve:
The Commission hereby finds that the compliance plan titled "Marine Life Mitigation
Plan" prepared and submitted by the permittee, Poseidon Resources (Channclsidc) LLC,
dated July 3, 2008, if modified as shown in Section 1.1 and Exhibit 2 of the July 21, 2008
Commission staff report, is adequate, if fully implemented to comply with Special
Condition 8 ofCDP E 06 013. The Commission hereby adopts the findings set forth
below for the Commission's approval of the Marine Life Mitigation Plan as compliant
with Special Condition 8 ofCDP E-06-013 on the ground that the findings support the
Commission's decision made on August 6, 2008 and accurately reflect the reasons for
it.
Staff Recommendation:
Staff recommends a "YES" vote, which will result in the approval of the modified plan
as compliant with the Adopted Findings and Special Condition 8 and adoption of the
motion, resolution, and Findings herein. The motion passes only by an affirmative vote of
a majority of the Commissioners present. Staffs recommended modifications are
provided in Section 1.1 below, and further detailed in Section 1.0 of this memorandum.
If these recommended modifications are not incorporated into the Plan, staff recommends
the Commission find the Plan, as submitted, does not conform to Special Condition 8
and staff would therefore recommend the Plan be denied. Staff recommends a "YES"
vote on the motion. Passage of the motion will result in the adoption of revised
findings as set forth in this staff report. The motion requires a majority vote of the
members from the prevailing side present at the revised findings hearing, with at
least three of the prevailing members voting. Only those Commissioners on the
prevailing side of the Commission's action are eligible to vote on the revised
findings.
1.1 RECOMMENDED MODIFICATIONS
1) Poseidon shall create or restore between up to 55.4 and 68 acres of coastal estuarine
wetland habitat within the Southern California Bight. For Phase I, within 10 months of
issuance of the desalination facility's coastal development permit (CDP), Poseidon
must submit proposed site(s) and a Preliminary Restoration Plan for Commission
review and approval. Within two years of issuance of the CDP for the desalination
facility, Poseidon must submit a complete CDP application to restore at least 37
acres of estuarine wetlands. For Phase II, Poseidon must within five years of
issuance of the Phase I CDP submit a complete CDP application either to restore an
additional 18.4 acres of estuarine wetlands or to propose reducing or eliminating
this Phase II restoration requirement by instead implementing technologies not
currently available or feasible that would reduce entrainment levels below currently
anticipated levels or by undertaking dredging in Agua Hedionda Lagoon in a
manner that warrants mitigation credit. Poseidon may apply to do all 55.4 acres of
restoration during Phase 1.
Item Wl6a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 6 of 19
2) Poseidon shall implement its Marine Life Mitigation Plan in conformity to the conditions
provided in Exhibit 2 of this memorandum these Findings.
3) Within 60 days of the Commission's approval of this modified the Plan (i.e., as
approved at the August 6, 2008 hearing), Poseidon shall submit for the Executive
Director's review and approval a revised Plan that includes these modifications.
2.0 STANDARD OF REVIEW
The Commission must determine whether the subject plan must conforms to Special Condition
8 of CDF E-06-013, which states:
"Marine Life Mitigation Plan: PRIOR TO ISSUANCE OF THE PERMIT, the Permittee
shall submit to and obtain from the Commission approval of a Marine Life Mitigation Plan
(the Plan) that complies with the following:
a) Documentation of the project's expected impacts to marine life due to entrainment and
impingement caused by the facility's intake of water from Agua Hedionda Lagoon. This
requirement can be satisfied by submitting a full copy of the Permittee 's Entrainment
Study conducted in 2004-2005 for this project.
b) To the maximum extent feasible, the mitigation shall take the form of creation,
enhancement, or restoration of aquatic and wetland habitat.
c) Goals, objectives and performance criteria for each of the proposed mitigation sites. It
shall identify specific creation, restoration, or enhancement measures that will be used at
each site, including grading and planting plans, the timing of the mitigation measures,
monitoring that will be implemented to establish baseline conditions and to determine
whether the sites are meeting performance criteria. The Plan shall also identify
contingency measures that will be implemented should any of the mitigation sites not
meet performance criteria.
d) Requires submittals of "as-built" plans for each site and annual monitoring reports for
no less than five years or until the sites meet performance criteria.
e) Defines legal mechanism(s) proposed to ensure permanent protection of each site - e.g.,
conservation easements, deed restriction, or other methods.
The Permittee shall comply with the approved Plan. Prior to implementing the Plan, the
Permittee shall submit a proposed wetlands restoration project that complies with the Plan
in the form of a separate coastal development permit application for the planned wetlands
restoration project."
The Commission's Permit Findings supporting Special Condition 8 state that the Plan is to
ensure that all project-related entrainment impacts will be fully mitigated and that marine
resources and the biological productivity of coastal waters, wetlands, and estuaries, will be
enhanced and restored in compliance with Coastal Act Sections 30230 and 30231. The Permit
Findings further state that the Plan must provide mitigation to the maximum extent feasible
through creating, enhancing, or restoring aquatic and wetland habitat and must include
acceptable performance standards, monitoring, contingency measures, and legal mechanisms to
ensure permanent protection of the proposed mitigation sites.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008-Page 7of 19
3.0 PLAN DEVELOPMENT AND REVIEW
On November 15, 2007, the Commission approved CDP No. E-06-013 for Poseidon's proposal
to construct and operate a desalination facility in Carlsbad, San Diego County. As part of that
approval, the Commission required Poseidon, through Special Condition 8, to submit for
additional Commission review and approval a Marine Life Mitigation Plan addressing the
impacts that will be caused by the facility's use of estuarine water and entrainment of marine
organisms.
Siftee-After the Commission's project approval in November 2007, staff and Poseidon have
worked to develop a Plan that would meet the requirements of Special Condition 8 and would be
consistent with the Commission's Permit Findings. In March 2008, and as required by Special
Condition 8, Poseidon provided a copy of its entrainment study for Commission staff review.
Staff provided the study to Dr. Pete Raimondi, an independent scientist with expertise in
evaluating entrainment studies, for his review and recommendations (described in more detail in
Section 4.0 below).5 Dr. Raimondi provided the initial results of his review and
recommendations to Poseidon in April 2008. In May 2008, staff conducted with Poseidon an
interagency meeting with representatives from state and local agencies to determine what
mitigation options might be available and feasible for Poseidon to include as part of its Plan.
Attendees included representatives from:
California Department of Fish and Game City of Carlsbad
California Department of Transportation City of Vista
California State Lands Commission U.S. Fish and Wildlife Service
San Diego Regional Water Quality Control Board
In June 2008, based in part on concerns Poseidon expressed about Dr. Raimondi's review and
recommendations, staff asked the Commission's Marine Review Committee (MRC) Scientific
Advisory Panel (SAP)6 to review Dr. Raimondi's conclusions and make further
5 Dr. Raimondi is Professor and Chair of Ecology and Evolutionary Biology at the University of California, Santa
Cruz Center for Ocean Health, Long Marine Lab. Dr. Raimondi is considered by many to be California's leading
expert on entrainment analysis. He has been a key participant and reviewer of most of the entrainment studies done
along the California coast during the past decade, including those done for the Diablo Canyon Nuclear Power Plant,
the Huntington Beach Generating Station, Morro Bay Power Plant, and Moss Landing Power Plant. He is also a
member of the Coastal Commission's Marine Review Committee Scientific Advisory Panel (SAP) responsible for
determining mitigation needed for the San Onofre Nuclear Generating Station (SONGS) and providing review and
oversight for the SONGS mitigation work at San Dieguito Lagoon.
6 The Marine Review Committee SAP is a team of independent scientists that provides guidance and oversight to
the Commission on ecological issues associated with the San Dieguito Restoration Project. That Project is being
implemented by Southern California Edison pursuant to requirements of coastal development permits issued by the
Commission and is meant to mitigate for marine resources losses caused by the San Onofre Nuclear Generating
Station (SONGS). The Marine Review Committee SAP currently consists of Dr. Richard Ambrose, Professor and
Director of Environmental Science & Engineering Program, Department of Environmental Health Sciences,
University of California Los Angeles; Dr. John Dixon, Senior Ecologist, California Coastal Commission; Dr. Mark
Page, Marine Science Institute, University of California at Santa Barbara; Dr. Pete Raimondi, Professor and Chair
of Ecology and Evolutionary Biology, University of California at Santa Cruz; Dr. Dan Reed, Marine Science
Institute, University of California at Santa Barbara; Dr. Steve Schroeter, Marine Science Institute, University of
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 8 of 19
recommendations for Poseidon to include in its proposed Plan. The MRC SAP review is
described in more detail in Section 4.0.
Also in June 2008, staff provided Poseidon a copy of the conditions the Commission had
required of Southern California Edison (Edison) for its wetland restoration project at San
Dieguito Lagoon (see Exhibit 2). Until June, Poseidon had been proposing a site adjacent to
Edison's as the best its preferred site for ite-mitigation. Based on the Commission's Permit
Findings and discussion at the November 2007 hearing, staff recommended to Poseidon that it
incorporate modified versions of the Edison conditions into its proposed Plan to ensure the two
adjacent mitigation sites would be subject to compatible and consistent mitigation requirements.
These conditions are in Exhibit 2L
On July 7, 2008, staff received Poseidon's currently proposed Plan for review by the
Commission (see Exhibit 1). On July 14, 2008, staff again consulted with the MRC SAP to
evaluate changes Poseidon had proposed in this most recent submittal. On August 2, 2008,
Poseidon submitted a revised Poseidon's current proposed PlanT (see Exhibit 3). and tThe
results of reviews by staff, Dr. Raimondi, and the MR€-SAP are described in Section 4.0 below.
4.0 ANALYSIS FOR CONFORMITY TO SPECIAL CONDITION 8
Staffs evaluation of the proposed Plan shows that thePoseidon's proposed Plan, as submitted,
dees-did not ensure conformity to Special Condition 8. Staff recommends the Plan be modified
The Commission therefore required modifications to the Plan to address two main areas in
which the Plan does not yet did not conform to the condition: 1) the adequacy of mitigation
proposed in the Plan; and, 2) assurances that the Plan will result in successful mitigation being
implemented in a timely ma~nner.
Section 4.1 below describes the submitted Plan's key elements and the Commission's adopted
modifications (shown in Exhibit 1). Sections 4.2 and 4.3 evaluate elements of the Plan that
staff believes require modification. Staffs recommendations The modifications are based on
review by staff and by members of the Commission's Marine Review Committee (MRC)
Scientific Advisory Panel (SAP), as described in Section 3.0. They also reflect comments
received from other agencies, including the U.S. Fish and Wildlife Service and the California
State Lands Commission. The discussions below also identify concerns Poseidon expressed
about staffs recommendations and staffs response to those concerns. Staff believes its third
recommendation The third modification, which would requires Poseidon to submit a revised
Plan that incorporates these modifications, would helps ensure the Commission and Poseidon m
implementing implements the modified Plan.
California at Santa Barbara; and, Dr. Russ Schmitt, Director of Coastal Research Center, University of California at
Santa Barbara.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 9 of 19
4.1 PLAN DESCRIPTION
Poseidon's proposed Plan includesd the following main elements:
• Phased Mitigation Approach: Poseidon proposesd that it implement necessary
mitigation in two phases. Phase I would result in 37 acres of wetland restoration or
creation within the Southern California Bight. During this phase, Poseidon would also
conduct technology review to determine whether new or developing technologies would
be reasonably feasible to reduce entrainment. It would also conduct a new entrainment
study ten years after beginning operations to determine whether additional mitigation is
needed for the facility's entrainment impacts. Phase I would apply during the time
Poseidon's desalination facility operations are concurrent with operations of the power
plant's cooling water system.
Phase II would occur if the power plant stops operating or, for three consecutive years,
operates at a level that provides less than 15% of the water Poseidon needs to operate the
desalination facility (i.e., about 16.6 billion gallons per year)7. This amount would be
based on the power plant's average water use over any three-year period. Under Phase II,
Poseidon would conduct a new entrainment analysis and evaluate potential new
technologies, similar to the review described in Phase I. Poseidon would then provide the
results of those analyses to the Commission for review. If the Commission determines
the analyses show a need for additional mitigation or the evaluations show certain
technologies might reduce entrainment impacts, Poseidon would request its Plan be
amended to require those changes. If additional mitigation is needed, Poseidon would
propose one of the following:
o Assume dredging obligations for Agua Hedionda Lagoon from the power plant and
obtain mitigation credit of up to 81 acres of restoration credit for conducting
dredging; or,
o Provide additional wetland mitigation of up to 5.5 acres.
• Suggested Conditions: T-he-Poseidon's proposed Plan includesd suggested conditions
that Poseidon would use to implement further studies, evaluate new technologies, select
its mitigation site(s), and implement mitigation options. Many of these are modified
versions of conditions the Commission required Edison use to implement its mitigation
measures for the impacts to marine life from the San Onofre Nuclear Generating Station.
These are discussed in Section 4.3 below.
In adopting the final MLMP, the Commission incorporated several concepts from
Poseidon's proposed Plan with a number of modifications, including:
• Entrainment impacts: The Commission determined that Poseidon's entrainment
impacts resulted in a loss of marine organisms equivalent to that produced in a 55.4-
acre area of estuarine and nearshore habitat (see Sections 4.2.1 & 4.2.2 below for
details).
7 Poseidon's average withdrawal of 304 million gallons per day would equal almost 111 billion gallons per year.
15% of that amount is about 16.6 billion gallons, or about 45 million gallons per day.
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Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 ~ Page 10 of 19
• Phased mitigation: The Commission required mitigation in up to two phases:
o During Phase I, Poseidon is to create or restore at least 37 acres of coastal estuarine
wetland habitat in one or two sites within the Southern California Bight. Within 10
months of issuance of the CDF for the desalination facility, Poseidon is to submit a
preliminary site selection and restoration plan for Commission approval, and with
24 months of issuance of that CDP, Poseidon is to submit a complete CDP
application for restoration of at least 37 acres of estuarine wetlands. Poseidon may
choose to restore the full 55.4 acres of wetlands during Phase I.
o For Phase II, Poseidon must within five years of issuance of the Phase I CDP submit
a complete CDP application to restore an additional 18.4 acres of estuarine
wetlands, or as part of that application may request to reduce or eliminate this
Phase II restoration requirement by instead implementing technologies that are not
currently available or feasible to reduce entrainment impacts below currently
anticipated levels or undertaking dredging in Agua Hedionda lagoon in a manner
that warrants mitigation credit.
• Required conditions: Poseidon is to implement its Marine Life Mitigation Plan as
modified by the Commission and in conformity to the conditions provided in Exhibit 1
of these Findings. Those modifications require Poseidon to submit within sixty days of
the Commission's August 6, 2008 approval a revised Plan that includes all required
conditions and modifications for the Executive Director's review and approval.
4.2 ANALYSIS - ADEQUACY OF MITIGATION
This section evaluates the following elements of Poseidon's proposed Plan:
Section 4.2.1: Analysis of Poseidon's entrainment study
Section 4.2.2: Determining the mitigation needed to address identified impacts
Section 4.2.3: Analysis of Poseidon's phased approach
Section 4.2.4: Analysis of dredging as proposed mitigation
4.2.1 Analysis of Poseidon's Entrainment Study
Special Condition 8 required Poseidon to submit its entrainment study for Commission staff
review. In March 2008, Poseidon submitted data and modeling results from its study. The study
was conducted using the Empirical Transport Model (ETM), which is used to identify the level
of adverse effect caused by entrainment. The model compares the portion of a population at risk
of entrainment to the portion of that population actually entrained. It calculates this proportional
mortality for each of the main species subject to entrainment, and uses the source water area of
each species - that is, the total volume or area of water in which species are at risk of being
entrained - to calculate the Area of Production Foregone (APF), which provides an estimate of
the average area of habitat that would be needed to produce the organisms lost to entrainment.
As shown below, this APF provides the basis for determining the amount of mitigation needed to
address entrainment impacts.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008-Page 11 of 19
As described in Section 3 above, staff provided Poseidon's data and study results to Dr.
Raimondi for review. In reviewing the study, Dr. Raimondi concluded the following:
• Adequacy of Study: Dr. Raimondi found that, as submitted, Poseidon's study could not be
evaluated for its technical merits or its estimates of impacts. However, by reviewing
additional relevant Poseidon documents and documents from the associated power plant's
entrainment study, and by working with the consultants that had conducted Poseidon's study
(Tenera Consultants), Dr. Raimondi was able to determine that the study's sampling and data
collection methods were consistent with those used in other recent studies conducted in
California pursuant to the protocols and guidelines used by the U.S. EPA, Regional Water
Quality Control Boards, California Energy Commission, and Coastal Commission.
Dr. Raimondi also found that the study provided adequate data to determine the types and
numbers of organisms that would be subject to entrainment and to determine the area of the
source water bodies - that is, the area of Agua Hedionda and nearshore ocean waters where
entrainable organisms would be subject to entrainment. The study identified a source water
area within Agua Hedionda of 302 acres and a nearshore source water area of about 22,000
acres. Poseidon's calculations were generally consistent with those used in other recent
studies, although the calculations Poseidon used to determine its source water areas differed
from those used in other recent studies to reflect the tidal exchange between Agua Hedionda
Lagoon and the nearshore ocean environment.
• Determining the Effects of Poseidon's Entrainment: Poseidon concluded that the
entrainment caused by 302 MGD of water withdrawal by the desalination facility would
result in an APF of 37 acres in Agua Hedionda Lagoon. Dr. Raimondi's review revealed that
Poseidon's APF calculation was accurate, albeit at the 50% confidence level -that is, the 37-
acre APF represented the area for which the study could assure with at least 50% confidence
that the area reflected the full extent of Poseidon's entrainment impacts in the Lagoon. This
calculation is based on applying standard statistical techniques to the error rates Poseidon
generated in its study. Dr. Raimondi also used those error rates to calculate APFs at the 80%
and 95% confidence levels - that is, the number of acres for which the area of full
entrainment impacts could be described with at least 80% or 95% confidence. This resulted
in APFs of 49 and 61 acres, respectively.
Poseidon's study did not include an APF for the area of nearshore ocean waters that would be
affected by entrainment; therefore, using Poseidon's data, Dr. Raimondi calculated an APF
for the entrainment effects Poseidon would cause in these nearshore waters. At the same
50%, 80%, and 95% confidence levels, the APFs would be 55, 64, and 72 acres, respectively.
The APFs for both source water areas and each confidence level are shown in Table 1 below.
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November 21, 2008 - Page 12 of 19
Table 1: APF'Totals
Source water areas:
Estuarine: 302 acres of
source water
Nearshore: 22,000 acres of
source water
Total APF
APF (in acres) at three levels of
confidence:
50%
37
55
92 acres
80%
49
64
113 acres
95%
61
72
133 acres
In its July 3, 2008 proposed MLMP submittal, Poseidon raised a number of concerns with
staffs and Dr. Raimondi's review (see also Exhibit B of Poseidon's August 2, 2008 submittal
in Exhibit 3 of the MLMP). In response, and to supplement Dr. Raimondi's review,
Commission staff requested that the MRC SAP assess the review and respond to Poseidon's
concerns.
Poseidon stated its study made a number of conservative assumptions that result in an
overestimate of the mitigation needed, and that tThose conservative assumptions, and the SAP's
response, include:
• The study overestimated the number of larvae in the lagoon and assumed a greater amount
of entrainable larvae than are actually present. In response, Dr. Raimondi and the MRC
SAP noted that this type of study is based on actual sampling data, not estimates. The data
reviewed were those Poseidon provided from its sampling efforts, so there should be no
overestimate or assumption of a greater number of larvae than were actually sampled. If
Poseidon believes the data are incorrect, that would suggest either that the raw data should be
re-evaluated or the study should be run again. Further, if Poseidon's contention were true -
that is, if the study overstated the number of larvae in the Lagoon — this would result in a
higher APF and would therefore result in a need for more mitigation.8
• The study assumes the project 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. In response, the MRG-SAP reiterated that these
entrainment studies do not assume the complete loss of ecosystem function within an area 01
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. 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 those effects.
8 To provide a simple example, the APF is based in part on proportional mortality, which is the ratio of the number
of organisms entrained compared to those at risk of being entrained. Assuming the number of entrained organisms
remains the same, the fewer organisms in the Lagoon, the higher the proportion of those organisms entrained -
therefore, Poseidon's contention results in a higher proportional impact area.
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Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 13 of 19
• The study protocols assume 100% mortality for entrained organisms; however, Poseidon
believes actual mortality will be significantly lower. Poseidon also contends that it should be
required to provide less mitigation based on its contention of a lower mortality rate. In
response, the MR€-SAP noted that the protocols used in these entrainment studies include an
assumption of 100% mortality based on guidance from the U.S. EPA and reflecting the
practice of California's State and Regional Water Boards, the California Energy
Commission, and the Coastal Commission in conducting and evaluating these studies. This
assumption applies to these studies regardless of the type of intake and discharge system
being evaluated. For example, although each power plant or desalination facility may use
different water volumes, have different and variable water velocities and levels of turbulence,
use different types of screens, pumps, and other equipment, and draw in a different mix of
organisms, all entrainment studies similar to Poseidon's have used this same 100% mortality
rate. Further, there are no peer-reviewed scientific studies that support using a lower
mortality rate for different types of power plant or desalination systems that cause
entrainment. In the case of Poseidon's desalination facility, entrained organisms will 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 they will then
be discharged to a different environment than is found in Agua Hedionda. Any one or a
combination of these stressors could result in mortality.
Poseidon's proposed phased mitigation approach, which is based in part on its contention of
lower mortality rates, is evaluated in more detail below. One element of this approach,
however, is that Poseidon states it might use alternative screening systems to reduce
entrainment or entrainment mortality. However, staff considers this only speculative at this
time, and notes that screening systems that have been tested for reducing entrainment have
not been found effective in the marine environment. The current scientific understanding is
that entrainment impacts are based on an assumption of 100% mortality of organisms present
in the full volume of water drawn into an intake system, and that is the basis of the analysis
herein. Pursuant to the Commission's action, if Poseidon proposes to adopt alternative
technologies that are not currently available or feasible to reduce entrainment, it may
apply for reduced mitigation requirements as part of its Phase II CDP application.
Based on the above, and on the reviews conducted by Dr. Raimondi and the SAP, the
Commission concurs with the conclusions of the scientific reviews showing that the
facility's expected entrainment impacts result in the above-referenced APFs and
incorporates those conclusions into its approval of the Plan.
4.2.2 Determining the mitigation needed to address identified impacts
The APFs generated from the study and shown in Table 1 identify the extent of expected
entrainment impacts, and also serve as the basis for identifying the type and amount of mitigation
needed to address those impacts. Past entrainment studies have generally used the 50%
confidence level APF as the basis for mitigation and applied a mitigation ratio (e.g., 1:1, 2:1, 3:1,
etc.) to compensate for mitigation occurring at a distance from the affected area, to reflect a
temporal loss of habitat functions caused by the impact, to reflect mitigation that provides a
different type of habitat than the affected area, or other concerns. This option is described briefly
later in this Section.
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Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 14 of 19
For this review, however, Dr. Raimondi provided an alternative approach to determine the
amount of mitigation needed, based on two main assumptions:
• First, that any mitigation provided would be in the form of restored habitat similar to the
types of habitat that produced or supported the affected entrained organisms - that is, that
mitigation would consist of tidally-influence salt marsh or shallow water areas similar to
those found in Agua Hedionda Lagoon.
• Second, that the mitigation provided would be fully successful - that is, the mitigation site
would provide fully functioning habitat that would meet required performance standards,
contingency plans, etc., required for such projects to ensure success. This was based on an
additional assumption -that Poseidon would be providing mitigation at a site in San Dieguito
Lagoon adjacent to Edison's restoration site and would be subject to the same conditions the
Commission required of Edison. Dr. Raimondi and the MRC SAP believe the conditions
required of Edison provide a high level of certainty that Edison's restoration efforts will be
successful and that they would provide a similar level of certainty for Poseidon's mitigation
at this location.
Using the above assumptions, and using the APF figures noted above, Dr. Raimondi concluded
with at least 50% confidence that creating or restoring 37 acres of suitable and fully functioning
estuarine habitat would fully replace the lost productivity of Agua Hedionda Lagoon, that 49
acres would be needed to provide an 80% level of certainty, and that 61 acres would be needed
to reach a 95% level of certainty. By applying the same approach to the nearshore APFs, Dr.
Raimondi concluded that creating or restoring 55 acres of open water habitat would be needed to
provide at least 50% certainty that that entrainment effects in that source water area would be
fully mitigated, that 64 acres were needed to provide 80% certainty, and 72 acres would provide
95% certainty. However, in recognition of the impracticality of creating 55 to 72 acres of
offshore open water habitat and recognizing the relatively greater productivity rates per acre of
estuarine wetland habitats, Dr. Raimondi suggested that these offshore impacts be "converted" to
estuarine mitigation areas. That is, by assuming that successfully restored wetland habitat would
be ten times more productive than a similar area of nearshore ocean waters, every ten acres of
nearshore impacts could be mitigated by creating or restoring one acre of estuarine habitat.9
Applying this 10:1 ratio to the nearshore APFs results in 5.5, 6.4, and 7.2 acres, respectively.
Although this approach would result in "out of kind" mitigation, it is also expected to produce
overall better mitigation - not only is it not practicable to create nearshore, open water habitat,
that habitat type is already well-represented along the shoreline, whereas creating or restoring
coastal estuarine habitat types would support a long-recognized need to increase the amount of
those habitat types in Southern California.10 These totals are shown Table 2 below.
9 This approach - converting offshore entrainment impacts to areas of wetland mitigation - has been used to help
determine mitigation in several recent California power plant siting cases, including Huntington Beach (00-AFC-
13), Morro Bay (OO-AFC-12), and others.
10 See, for example, the Southern California Wetlands Recovery Project at http://www.scwrp.org/index.htm
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November 21, 2008 - Page 15 of 19
Table 2: Adjusted APF Totals
Habitat Type
Estuarine
Nearshore
Total Mitigation
APF (in acres) at three
levels of confidence
50%
37
55
80%
49
64
95%
61
72
Conversion
ratio
1:1
10:1
Resulting APF (in acres) at
three levels of confidence
50%
37
5.5
42.5
80%
49
6.4
55.4
95%
61
7.2
68.2
In sum, Dr. Raimondi concluded that creating 55.4 to 68.2 acres of fully functioning estuarine
habitat similar to habitat in Agua Hedionda Lagoon would provide between 80 to 95%
confidence that Poseidon's entrainment impacts would be fully mitigated. This conclusion is
also based on Poseidon's mitigation being subject to conditions similar to Edison's, which is
discussed in more detail in Section 4.2.3 below.
Poseidon contends that Dr. Raimondi's staffs recommendation to apply an 80-95% level of
certainty for mitigation is "extraordinary and unprecedented" and would result in excess
mitigation for the project's expected impacts. In response, Dr. Raimondi and the MRC SAP
state that the confidence levels used are based on the error rates Poseidon calculated as part of its
study, and generating these calculations is a standard practice for this type of entrainment study
considering uncertainty is a standard practice in data analysis and that such consideration
provides a context for understanding the likelihood that a particular amount of mitigation
will provide full compensation for identified impacts. Staff notes that Poseidon's
entrainment study included error rates that Dr. Raimondi used initially to calculate a
higher estuarine APF of 87 acres at the 80% confidence level. Dr. Raimondi then used a
different error rate, which he considered more appropriate for this study, to calculate an
APF of 49 acres at the 80% confidence level.u
Dr. Raimondi's recommendation of using the 80-95% confidence level is "unprecedented" only
in that past studies have used the 50% confidence level to describe the expected impact and
then applied a mitigation ratio, such as 2:1 or 3:1, to reflect the lower confidence level^ and to
include consideration of mitigation that may be "out of kind'^e^provided at some distance from
the affected area, or may not be fully successful. Dr. Raimondi's proposal, as supported by the
MRC SAP and Commission staff, would actually result in less mitigation acreage than that
standard mitigation approach, but it would have higher certainty of success.
Staff recognizes that the Commission could apply a mitigation ratio to the identified level of
impact, consistent with past mitigation determinations for wetland impacts. For example,
applying a 2:1 ratio to the 50% 12.5 acre total APF would yield 85 acres of restored coastal
wetland habitat, and applying a 3:1 ratio would yield 127.5 acres of habitat. If the Commission
selects this approach, staff believes these ratios would be appropriate minimums to apply to
reflect that the Plan does not identify specific mitigation sites and the site(s) selected could be
more than a hundred miles from the impact site at and near Agua Hedionda.
— Poseidon's study included error rates based on source water sampling, which Dr. Raimondi believed were
unreasonably high. He instead calculated an error rate based on the proportional mortality of each species
being an independent replicate, which he believes better meshesnvith the logic behind the use of the APF to
determine impacts.
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November 21, 2008 - Page 16 of 19
However, as described previously, Commission staff believes that Dr. Raimondi's proposed
approach of creating 55.^1 to 68.2 acres would be an adequate and preferable approach—+£
Poseidon's proposed Plan is also modified to include staffs other recommended modifications,
including the one described in the next section of this memorandum.
Based on the discussion above and on the record, the Commission finds that requiring 55.4
acres of estuarine wetland restoration in the Southern California Bight subject to the
conditions shown in Exhibit 1 provides a sufficient degree of certainty that the facility's
entrainment impacts will be fully mitigated and brings the Plan into conformity to Special
Condition 8 and the Coastal Act's marine life protection policies.
4.2.3 Analysis of Proposed Mitigation Phasing
As noted above, Poseidon's Plan includes a proposed phased approach to mitigation, which
would be based on changes in power plant operations or possible changes in technology.
Because of the possibility that Poseidon might in the future adopt technologies that are not
currently available or feasible to reduce entrainment and because of uncertainty regarding
future power plant operations, the Commission finds that it is appropriate to allow phasing
of the mitigation. For the first phase, Poseidon must submit within two years of the
issuance of the CDP for the desalination facility a complete CDP application for wetland
restoration of at least 37 acres. Poseidon may apply during Phase I to implement the entire
55.4 acres of wetland restoration. For the second phase, Poseidon must within five years of
issuance of the Phase I CDP submit a complete CDP application to restore the additional
18.4 acres of restoration, or as part of that application request the Commission reduce or
eliminate the amount of required restoration if Poseidon implements the above-referenced
technologies that result in reduced entrainment or if, as explained below, Poseidon
performs dredging in Agua Hedionda Lagoon in a manner that warrants mitigation credit.
For several reasons, staff recommends the Commission not accept this aspect of the Plan and
instead require a specific type and amount of mitigation as described above. The entrainment
impacts described in the Commission's Findings were based on Poseidon application to
withdraw 304 million gallons per day of estuarine water to operate its desalination facility, and
staff recommends the Commission use this as the basis for its decision on the amount of
mitigation needed to address this impact.
Staff believes this phasing approach is speculative in that it is tied to unknown future operations
of the power plant. Additionally, information in the record shows that the power plant owner
expects to replace the existing power plant within the next few years and to operate the existing
plant only at very low levels or on a back up basis until it is no longer needed to support the
regional electrical power grid. More recently, the power plant owner announced that it would
consider constructing its own desalination facility to provide water for its proposed new power
plant. If built, this facility would use only about one percent of the water Poseidon proposes to
use, and so would likely have a relatively minor affect on the overall mitigation needed to
adequately address the impacts of both facilities.
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November 21, 2008 - Page 17 of 19
Staff also believes that tying Poseidon's mitigation to power plant operations would be
inappropriate for purposes of the coastal development permit and the Commission's Findings.
Poseidon's coastal development permit application did not include the power plant owner as a
co applicant, and the Commission has made no determinations about how the power plant should
or may operate.
4.2.4 Analysis of dredging as project mitigation
Similarly, staff recommends the Commission not approve Poseidon's proposal to allow it to use
as mitigation during Phase II the dredging activities now being conducted by the power plant
owner. Poseidon proposes a formula by which it could obtain up to 81 acres of credit for
conducting dredging in Agua Hedionda Lagoon. The Commission does not accept this
formula because it does not currently have sufficient information to evaluate the purpose,
nature, or extent of potential dredging, or whether Poseidon would be able to conduct the
proposed dredging. It is possible, however, that Poseidon might carry out future dredging
in a manner that warrants mitigation credit. Poseidon may therefore apply as part of its
Phase II mitigation CDP application for a reduction in restoration requirements in
exchange for mitigation credits that the Commission may consider for Poseidon's dredging
activities. However, the Commission has not considered dredging in and of itself to be
mitigation. Dredging that the power plant has conducted in the past has been done to maintain
its intake channel, and similarly, Poseidon's main purpose for dredging would be to maintain that
channel. The Commission has considered habitat benefits resulting from dredging for that
primary purpose as merely incidental to the primary purpose of the dredging activities rather than
mitigation. Had those dredging activities instead been considered mitigation, the power plant
owrner may have been required to continue dredging to maintain the area of mitigation,
regardless of the need for an intake structure.
Further, as noted in the Findings, the power plant owner also owns the Lagoon and has expressed
its intentions to maintain the Lagoon for the foreseeable future. Additionally, the power plant
owner is not a permit co applicant with Poseidon, and the permit record includes no agreement
between Poseidon and the owner regarding dredging, so staff believes it would not be
appropriate for the Commission to approve a plan that may create an expectation that Poseidon
would take on these activities on the owner's property without landowner approval.
As Poseidon notes in its Plan, the Commission accepted as part of Edison's San Dieguito
restoration project a commitment by Edison to maintain the San Dieguito tidal inlet in an open
condition in perpetuity. However, in that instance, dredging was necessary for that project to
support the more than 100 acres of restored tidal wetlands Edison had created as a substantial
portion of the mitigation required pursuant to its SONGS coastal development permit. The
Commission's acceptance of that mitigation element was also based on multiple years of study
by the MRC, whose recommendation the Commission used in its decision. The MRC has not
made a similar recommendation for Poseidon's proposal. Further, Poseidon has not proposed
mitigation within Agua Hedionda that would require dredging.
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November 21, 2008 - Page 18 of 19
Finally, Poseidon's proposal would not meet the provision of Special Condition 8 requiring
mitigation to be in the form of creation, enhancement, or restoration of aquatic and wetland
habitat, to the maximum extent feasible. As noted above, there are wetland mitigation
opportunities within the Southern California Bight well in excess of the amount needed to
mitigate for this project's impacts, and Poseidon has not shown that it would be infeasible to
provide the required type of mitigation.
4.3 ANALYSIS - ASSURANCE THAT MITIGATION WILL SUCCEED
Until recently, Poseidon had proposed that it provide wetland restoration at a site in San Dieguito
Lagoon, adjacent to Edison's restoration project. Review by staff, Dr. Raimondi, and the MRC
SAP had been based on determining whether that site would provide suitable mitigation. In
April 2008, Dr. Raimondi concluded that Poseidon's proposed San Dieguito site would likely
provide suitable habitat for the losses of estuarine larvae at Agua Hedionda if the restored habitat
was similar to the habitat affected at Agua Hedionda. In June 2008, Dr. Raimondi and the MRC
SAP also concluded that the San Dieguito site would also provide at least partial mitigation for
some species affected in Poseidon's nearshore impact area. Also in June, staff provided
Poseidon with a modified version of the conditions the Commission required Edison to meet for
conducting its site selection, construction, monitoring, and other aspects of its restoration plan,
and recommended that Poseidon include these conditions as part of its proposed Plan. These are
provided in Exhibit 2.
Since then. Several weeks before the August 2008 hearing, Poseidon altered its Plan so that
San Dieguito is-was no longer necessarily Poseidon's preferred site. The Plan instead proposes
that Poseidon select a site or sites somewhere within the Southern California Bight that meet
conditions shown in Sections 3.1 and 3.2 of the Plan. Those conditions included further
modifications to the conditions staff provided in June.
Staff asked the MRC SAP to review Poseidon's two proposed changes - that is, its proposal to
consider sites other than San Dieguito and the modifications in its Plan to staffs previously
recommended conditions. Regarding, staffs proposed conditions, the MRG-SAP believes those
conditions - i.e., Exhibit 2 - would generally provide adequate assurance of success for a
restoration project to be implemented in most coastal estuarine areas of Southern California,
although a higher degree of assurance would result if specific sites were identified. The MRC
SAP "also determined that the changes Poseidon proposed to staffs conditions and included in its
Plan would result in lesser mitigation standards than those required of Edison and would not
provide equal assurance of mitigation success. The changes Poseidon proposed include the
following:12
• Staff recommended that Poseidon submit a complete coastal development permit application
for its Final Restoration Plan within 24 months of Commission approval of its Preliminary
Plan (i.e., the Plan being reviewed herein). Poseidon proposed modifiedying that
recommendation in Section 4 of its Plan to allow submittal of that application either 24
months after issuance of the project coastal development permit or commencement of
12 For a full comparison, see Exhibit 3, Section 3 of Poseidon's proposed Plan, and Exhibit 2 showing staffs
originally recommended conditions.
Item W16a: E-06-013 - Condition Compliance for Special Condition 8
Poseidon Resources Corporation, Marine Life Mitigation Plan
November 21, 2008 - Page 19 of 19
commercial operations of the desalination facility, whichever is later. This could
substantially delay the implementation of mitigation and could result in several years of
impacts occurring without mitigation.
* A proposed change to Poseidon's Plan at Section 3.1(d) and at Section 3.2(c) would allow
the Executive Director or Commission to reduce the required buffer zone at its mitigation
sites from no less than at least 100 feet wide to an average that could be much less than 100
feet wide.
* A proposed change at Section 3.1(i) would allow the Plan to affect endangered species in a
way not allowed under the Edison requirements.
* Poseidon proposes to change Section 3.3(c) to allow mitigation to occur in up to four sites,
rather than up to two sites, as required of Edison, which could fragment the mitigation and
reduce its overall value.
* Poseidon also proposed deleting a requirement at Section 5.1 that would require a designed
tidal prism be maintained to ensure the wetland mitigation site has adequate tidal action.
* Poseidon proposes that any fees it pays for coastal development permits or amendments be
credited against the budget needed to implement the mitigation plan.
Staff and the MR€-SAP reviewed these proposed changes and believe they would result in
inadequate assurance that successful mitigation would be conducted in a timely manner, and the
Commission did not include those proposed revisions in its Plan approval. Staffs
recommendation, therefore, is The Commission finds that the Plan be modified to include the
conditions in Exhibit 2.
CONCLUSION
The Commission finds that, as modified as described above and with the conditions in
Exhibit 1, the Marine Life Mitigation Plan complies with Special Condition 8 and the
marine life protection policies of the Coastal Act. The Commission further finds that
implementation of the Plan 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 in conformity to Coastal Acts Sections 30230 and 30231.
Item W16a
Exhibit 1
Approved Marine Life
Mitigation Plan (MLMP)
Item W16a - Exhibit 1
Special Condition 8 of E-06-013 — Poseidon Resources
November 21,2008
APPROVED MARINE LIFE MITIGATION PLAN
INTRODUCTION
Poseidon's Carlsbad desalination facility will be co-located with the Encina Power Station and
will use the power plant's once-through cooling intake and outfall structures. The desalination
facility is expected to use about 304 million gallons per day (mgd) of estuarine water drawn
through the structure. The facility will operate both when the power plant is using its once-
through cooling system and when it is not.
This Marine Life Mitigation Plan (the Plan) will result in mitigation necessary to address the
entrainment impacts caused by the facility's use of estuarine water. The Plan includes two
phases of mitigation - Poseidon is required during Phase I to provide at least 37 acres of
estuarine wetland restoration, as described below. In Phase II, Poseidon is required to provide an
additional 18.4 acres of estuarine wetland restoration. However, as described below, Poseidon
may choose to provide all 55.4 acres of restoration during Phase I. Poseidon may also choose
during Phase II to apply for a CDP to reduce or eliminate the required 18.4 acres of mitigation
and instead conduct alternative mitigation by implementing new entrainment reduction
technology or obtaining mitigation credit for conducting dredging.
CONDITION A: WETLAND RESTORATION MITIGATION
The permittee shall develop, implement and fund a wetland restoration project that compensates
for marine life impacts from Poseidon's Carlsbad desalination facility.
1.0 PHASED IMPLEMENTATION
Phase I: Poseidon is to provide at least 37 acres of estuarine wetland restoration. Within two
years of issuance of the desalination facility's coastal development permit (CDP), Poseidon is to
submit a complete CDP application for a proposed restoration project, as described below.
Phase II: Within five years of issuance of the Phase I CDP, Poseidon is to submit a complete
CDP application proposing up to 18.4 acres of additional estuarine wetland restoration, subject to
reduction as described in Section 6.0 below.
Item W16a, Exhibit 1: E-06-013 Special Condition #8 — Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 2 of 11
2.0 SITE SELECTION
In consultation with Commission staff, the permittee shall select a wetland restoration site or
sites for mitigation in accordance with the following process and terms.
Within 10 months of the effective date of this permit, the permittee shall submit the proposed
site(s) and preliminary wetland restoration plan to the Commission for its review and approval or
disapproval.
The location of the wetland restoration project(s) shall be within the Southern California Bight.
The permittee shall select from sites including, but not limited to, the following eleven sites:
Tijuana Estuary in San Diego County; San Dieguito River Valley in San Diego County; Agua
Hedionda Lagoon in San Diego County; San Elijo Lagoon in San Diego County; Buena Vista
Lagoon in San Diego County; Huntington Beach Wetland in Orange County, Anaheim Bay in
Orange County, Santa Ana River in Orange County, Los Cerritos Wetland in Los Angeles
County, Ballona Wetland in Los Angeles County, and Ormond Beach in Ventura County. The
permittee may also consider any sites that may be recommended by the California Department of
Fish & Game as high priority wetlands restoration projects. Other sites proposed by the
permittee may be added to this list with the Executive Director's approval.
The basis for the selection shall be an evaluation of the site(s) against the minimum standards
and objectives set forth in subsections 3.1 and 3.2 below. The permittee shall take into account
and give serious consideration to the advice and recommendations of the Scientific Advisory
Panel (SAP) established and convened by the Executive Director pursuant to Condition B.1.0.
The permittee shall select the site(s) that meet the minimum standards and best meet the
objectives.
3.0 PLAN REQUIREMENTS
In consultation with Commission staff, the permittee shall develop a wetland restoration plan for
the wetland site(s) identified through the site selection process. The wetland restoration plan
shall meet the minimum standards and incorporate as many as feasible of the objectives in
subsections 3.1 and 3.2, respectively.
3.1 Minimum Standards
The wetland restoration project site(s) and preliminary plan(s) must meet the following minimum
standards:
a. Location within Southern California Bight;
b. Potential for restoration as tidal wetland, with extensive intertidal and subtidal areas;
c. Creates or substantially restores a minimum of 37 acres and up to at least 55.4 acres of
habitat similar to the affected habitats in Agua Hedionda Lagoon, excluding buffer zone
and upland transition area;
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 3 of 11
d. Provides a buffer zone of a size adequate to ensure protection of wetland values, and at
least 100 feet wide, as measured from the upland edge of the transition area.
e. Any existing site contamination problems would be controlled or remediated and would
not hinder restoration;
f. Site preservation is guaranteed in perpetuity (through appropriate public agency or
nonprofit ownership, or other means approved by the Executive Director), to protect
against future degradation or incompatible land use;
g. Feasible methods are available to protect the long-term wetland values on the site(s), in
perpetuity;
h. Does not result in a net loss of existing wetlands; and
i. Does not result in an adverse impact on endangered animal species or an adverse
unmitigated impact on endangered plant species.
3.2 Objectives
The following objectives represent the factors that will contribute to the overall value of the
wetland. The selected site(s) shall be determined to achieve these objectives. These objectives
shall also guide preparation of the restoration plan.
a. Provides maximum overall ecosystem benefits, e.g. maximum upland buffer,
enhancement of downstream fish values, provides regionally scarce habitat, potential for
local ecosystem diversity;
b. Provides substantial fish habitat compatible with other wetland values at the site(s);
c. Provides a buffer zone of an average of at least 300 feet wide, and not less than 100 feet
wide, as measured from the upland edge of the transition area.
d. Provides maximum upland transition areas (in addition to buffer zones);
e. Restoration involves minimum adverse impacts on existing functioning wetlands and
other sensitive habitats;
f. Site selection and restoration plan reflect a consideration of site specific and regional
wetland restoration goals;
g. Restoration design is that most likely to produce and support wetland-dependent
resources;
h. Provides rare or endangered species habitat;
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008-Page 4 of 11
i. Provides for restoration of reproductively isolated populations of native California
species;
j. Results in an increase in the aggregate acreage of wetland in the Southern California
Bight;
k. Requires minimum maintenance;
1. Restoration project can be accomplished in a reasonably timely fashion; and,
m. Site(s) in proximity to the Carlsbad desalination facility.
3.3 Restrictions
a. The permittee may propose a wetland restoration project larger than the minimum
necessary size specified in subsection 3.1(c) above, if biologically appropriate for the
site(s), but the additional acreage must (1) be clearly identified, and (2) must not be the
portion of the project best satisfying the standards and objectives listed above.
b. If the permittee jointly enters into a restoration project with another party: (1) the
permittee's portion of the project must be clearly specified, (2) any other party involved
cannot gain mitigation credit for the permittee's portion of the project, and (3) the
permittee may not receive mitigation credit for the other party's portion of the project.
c. The permittee may propose to divide the mitigation requirement between a maximum of
two wetland restoration sites, unless there is a compelling argument, approved by the
Executive Director, that the standards and objectives of subsections 3.1 and 3.2 will be
better met at more than two sites.
4.0 PLAN IMPLEMENTATION
4.f Coastal Development Permit Applications
The permittee shall submit complete Coastal Development Permit applications for the Phase !
and Phase II restoration plan(s) that include CEQA documentation and local or other state
agency approvals. The CDP application for Phase I shall be submitted within 24 months
following the issuance of the Coastal Development Permit for the Carlsbad desalination facility.
The CDP application for Phase II shall be submitted within 5 years of issuance of the CDP for
Phase I. The Executive Director may grant an extension to these time periods at the request of
and upon a demonstration of good cause by the permittee. The restoration plans shall
substantially conform to Section 3.0 above and shall include, but not be limited to the following
elements:
a. Detailed review of existing physical, biological, and hydrological conditions; ownership,
land use and regulation;
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 5 of 11
b. Evaluation of site-specific and regional restoration goals and compatibility with the goal
of mitigating for Poseidon's marine life impacts;
c. Identification of site opportunities and constraints;
d. Schematic restoration design, including:
1. Proposed cut and fill, water control structures, control measures for stormwater,
buffers and transition areas, management and maintenance requirements;
2. Planting program, including removal of exotic species, sources of plants and or seeds
(local, if possible), protection of existing salt marsh plants, methods for preserving
top soil and augmenting soils with nitrogen and other necessary soil amendments
before planting, timing of planting, plans for irrigation until established, and location
of planting and elevations on the topographic drawings;
3. Proposed habitat types (including approximate size and location);
4. Assessment of significant impacts of design (especially on existing habitat values)
and net habitat benefits;
5. Location, alignment and specifications for public access facilities, if feasible;
6. Evaluation of steps for implementation e.g. permits and approvals, development
agreements, acquisition of property rights;
7. Cost estimates;
8. Topographic drawings for final restoration plan at 1" = 100 foot scale, one foot
contour interval; and
9. Drawings shall be directly translatable into final working drawings.
e. Detailed information about how monitoring and maintenance will be implemented;
f. Detailed information about construction methods to be used;
g. Defined final success criteria for each habitat type and methods to be used to determine
success;
h. Detailed information about how Poseidon will coordinate with the Scientific Advisory
Panel including its role in independent monitoring, contingency planning review, cost
recovery, etc.;
i. Detailed information about contingency measures that will be implemented if mitigation
does not meet the approved goals, objectives, performance standards, or other criteria;
and,
j. Submittal of "as-built" plans showing final grading, planting, hydrological features, etc.
within 60 days of completing initial mitigation site construction.
Item W16a, Exhibit I: E-06-013 Special Condition #8 ~ Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 6 of 11
4.2 Wetland Construction Phase
Within 6 months of approval of the Phase I restoration plan, subject to the permittee's obtaining
the necessary permits, the permittee shall commence the construction phase of the wetland
restoration project. The permittee shall be responsible for ensuring that construction is carried
out in accordance with the specifications and within the timeframes specified in the approved
final restoration plan and shall be responsible for any remedial work or other intervention
necessary to comply with final plan requirements.
4.3 Timeframe for Resubmittal of Project Elements
If the Commission does not approve any element of the project (i.e. site selection, restoration
plan), the Commission will specify the time limits for compliance relative to selection of another
site or revisions to the restoration plan.
5.0 WETLAND MONITORING, MANAGEMENT AND REMEDIATION
Monitoring, management (including maintenance), and remediation shall be conducted over the
"full operating life" of Poseidon's desalination facility, which shall be 30 years from the date
"as-built" plans are submitted pursuant to subsection 4.1(1).
The following section describes the basic tasks required for monitoring, management and
remediation. Condition B specifies the administrative structure for carrying out these tasks,
including the roles of the permittee and Commission staff.
5.1 Monitoring and Management Plan
A monitoring and management plan will be developed in consultation with the permittee and
appropriate wildlife agencies, concurrently with the preparation of the restoration plan to provide
an overall framework to guide the monitoring work. It will include an overall
description of the studies to be conducted over the course of the monitoring program and a
description of management tasks that are anticipated, such as trash removal. Details of the
monitoring studies and management tasks will be set forth in a work program (see Condition B).
5.2 Pre-restoration site monitoring
Pre-restoration site monitoring shall be conducted to collect baseline data on the wetland
attributes to be monitored. This information will be incorporated into and may result in
modification to the overall monitoring plan.
5.3 Construction Monitoring
Monitoring shall be conducted during and immediately after each stage of construction of the
wetland restoration project to ensure that the work is conducted according to plans.
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November21, 2008-Page 7of 11
5.4 Post-Restoration Monitoring and Remediation
•\
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.
Successful achievement of the performance standards shall (in some cases) be measured relative
to approximately four reference sites, which shall be relatively undisturbed, natural tidal
wetlands within the Southern California Bight. The Executive Director shall select the reference
sites. The standard of comparison, i.e., the measure of similarity to be used (e.g., within the
range, or within the 95% confidence interval) shall be specified in the work program.
In measuring the performance of the wetland project, the following physical and biological
performance standards will be used:
a. Longterm Physical Standards. The following long-term standards shall be maintained
over the full operative life of the desalination facility:
1. Topography. The wetland(s) shall not undergo major topographic degradation (such
as excessive erosion or sedimentation);
2. Water Quality. Water quality variables [to be specified] shall be similar to reference
wetlands;
3. Tidal prism. If the mitigation site(s) require dredging, the tidal prism shall be
maintained and tidal flushing shall not be interrupted; and,
4. Habitat Areas. The area of different habitats shall not vary by more than 10% from
the areas indicated in the restoration plan(s).
b. Biological Performance Standards. The following biological performance standards
shall be used to determine whether the restoration project is successful. Table 1, below,
indicates suggested sampling locations for each of the following biological attributes;
actual locations will be specified in the work program:
1. Biological Communities. Within 4 years of construction, the total densities and
number of species offish, macroinvertebrates and birds (see Table 1) shall be similar
to the densities and number of species in similar habitats in the reference wetlands;
2. Vegetation. The proportion of total vegetation cover and open space in the marsh
shall be similar to those proportions found in the reference sites. The percent cover of
algae shall be similar to the percent cover found in the reference sites;
3. Spartina Canopy Architecture. The restored wetland shall have a canopy
architecture that is similar in distribution to the reference sites, with an equivalent
proportion of stems over 3 feet tall;
hem W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 8 of 11
4. Reproductive Success. Certain plant species, as specified by in the work program,
shall have demonstrated reproduction (i.e. seed set) at least once in three years;
5. Food Chain Support. The food chain support provided to birds shall be similar to
that provided by the reference sites, as determined by feeding activity of the birds;
and,
6. Exotics. The important functions of the wetland shall not be impaired by exotic
species.
Table 1: Suggested Sampling Locations
1) Density/spp:
-Fish
— Macroinvert-
ebrates
-Birds
2) % Cover
Vegetation
algae
3) Spartina
architecture
4) Reproductive
success
5) Bird feeding
6) Exotics
Spartina
X
X
X
X
X
X
Salt Marsh
Salicornia
X
/Y
X
X
•y
Upper
\.
X
X
X
~y~
Open
Lagoon
x .j
X
X
.'
x.
X
Water
Eelgrass
X
X
X
X
Tidal
Mudflat | Creeks
X X
X X
X X
X
_
X X
X X
6.0 ALTERNATIVE MITIGATION
As part of Phase II, Poseidon may propose in its CDP application alternatives to reduce or
eliminate the required 18.4 acres of mitigation. The alternative mitigation proposed may be in the
form of implementing new entrainment reduction technology or may be mitigation credits for
conducting dredging, either of which could reduce or eliminate the 18.4 acres of mitigation.
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation Plan
November 21, 2008 - Page 9 of 11
CONDITION B: ADMINISTRATIVE STRUCTURE
1.0 ADMINISTRATION
Personnel with appropriate scientific or technical training and skills will, under the direction of
the Executive Director, oversee the mitigation and monitoring functions identified and required
by Condition A. The Executive Director will retain scientific and administrative support staff
needed to perform this function, as specified in the work program.
This technical staff will oversee the preconstruction and post-construction site assessments,
mitigation project design and implementation (conducted by permittee), and monitoring
activities (including plan preparation); the field work will be done by contractors under the
Executive Director's direction. The contractors will be responsible for collecting the data,
analyzing and interpreting it, and reporting to the Executive Director.
The Executive Director shall convene a Scientific Advisory Panel to provide the Executive
Director with scientific advice on the design, implementation and monitoring of the wetland
restoration. The panel shall consist of recognized scientists, including a marine biologist, an
ecologist, a statistician and a physical scientist.
2.0 BUDGET AND WORK PROGRAM
The funding necessary for the Commission and the Executive Director to perform their
responsibilities pursuant to these conditions will be provided by the permittee in a form and
manner reasonably determined by the Executive Director to be consistent with requirements of
State law, and which will ensure efficiency and minimize total costs to the permittee. The
amount of funding will be determined by the Commission on a biennial basis and will be based
on a proposed budget and work program, which will be prepared by the Executive Director in
consultation with the permittee, and reviewed and approved by the Commission in conjunction
with its review of the restoration plan. If the permittee and the Executive Director cannot agree
on the budget or work program, the disagreement will be submitted to the Commission for
resolution.
The budget to be funded by the permittee will be for the purpose of reasonable and necessary
costs to retain personnel with appropriate scientific or technical training and skills needed to
assist the Commission and the Executive Director in carrying out the mitigation and lost resource
compensation conditions. In addition, reasonable funding will be included in this budget for
necessary support personnel, equipment, overhead, consultants, the retention of contractors
needed to conduct identified studies, and to defray the costs of members of any scientific
advisory panel(s) convened by the Executive Director for the purpose of implementing these
conditions.
Costs for participation on any advisory panel shall be limited to travel, per diem, meeting time
and reasonable preparation time and shall only be paid to the extent the participant is not
otherwise entitled to reimbursement for such participation and preparation. The amount of
funding will be determined by the Commission on a biennial basis and will be based on a
proposed budget and work program, which will be prepared by the Executive Director in
consultation with the permittee, and reviewed and approved by the Commission in conjunction
Item Wl6a, Exhibit I: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation Plan
November 21, 2008 - Page 10 of 11
with its review of the restoration plan. If the permittee and the Executive Director cannot agree
on the budget or work program, the disagreement will be submitted to the Commission for
resolution. Total costs for such advisory panel shall not exceed $100,000 per year adjusted
annually by any increase in the consumer price index applicable to California.
The work program will include:
a. A description of the studies to be conducted over the subsequent two year period,
including the number and distribution of sampling stations and samples per station,
methodology and statistical analysis (including the standard of comparison to be used in
comparing the mitigation project to the reference sites);
b. A description of the status of the mitigation projects, and a summary of the results of the
monitoring studies to that point;
c. A description of four reference sites;
d. A description of the performance standards that have been met, and those that have yet to
be achieved;
e. A description of remedial measures or other necessary site interventions;
f. A description of staffing and contracting requirements; and,
g. A description of the Scientific Advisory Panel's role and time requirements in the two
year period.
The Executive Director may amend the work program at any time, subject to appeal to the
Commission.
*
3.0 ANNUAL REVIEW AND PUBLIC WORKSHOP REVIEW
The permittee shall submit a written review of the status of the mitigation project to the
Executive Director no later than April 30 each year for the prior calendar year. The written
review will discuss the previous year's activities and overall status of the mitigation project,
identify problems and make recommendations for solving them, and review the next year's
program.
To review the status of the mitigation project, the Executive Director will convene and conduct a
duly noticed public workshop during the first year of the project and every other year thereafter
unless the Executive Director deems it unnecessary. The meeting will be attended by the
contractors who are conducting the monitoring, appropriate members of the Scientific Advisory
Panel, the permittee, Commission staff, representatives of the resource agencies (CDFG, NMFS,
USFWS), and the public. Commission staff and the contractors will give presentations on the
previous biennial work program's activities, overall status of the mitigation project, identify
problems and make recommendations for solving them, and review the next upcoming period's
biennial work program.
Item W16a, Exhibit 1: E-06-013 Special Condition #8 - Poseidon Resources
Approved Conditions for Marine Life Mitigation PLan
November 21, 2008 - Page 11 of 11
The public review will include discussions on whether the wetland mitigation project has met the
performance standards, identified problems, and recommendations relative to corrective
measures necessary to meet the performance standards. The Executive Director will use
information presented at the public review, as well as any other relevant information, to
determine whether any or all of the performance standards have been met, whether revisions to
the standards are necessary, and whether remediation is required. Major revisions shall be
subject to the Commission's review and approval.
The mitigation project will be successful when all performance standards have been met each
year for a three-year period. The Executive Director shall report to the Commission upon
determining that all of the performance standards have been met for three years and that the
project is deemed successful. If the Commission determines that the performance standards have
been met and the project is successful, the monitoring program will be scaled down, as
recommended by the Executive Director and approved by the Commission. A public review
shall thereafter occur every five years, or sooner if called for by the Executive Director. The
work program shall reflect the lower level of monitoring required. If subsequent monitoring
shows that a standard is no longer being met, monitoring may be increased to previous levels, as
determined necessary by the Executive Director.
The Executive Director may make a determination on the success or failure to meet the
performance standards or necessary remediation and related monitoring at any time, not just at
the time of the workshop review.
4.0 ADDITIONAL PROCEDURES
4.1 Dispute Resolution
In the event that the permittee and the Executive Director cannot reach agreement regarding the
terms contained in or the implementation of any part of this Plan, the matter may be set for
hearing and disposition by the Commission.
4.2 Extensions
Any of the time limits established under this Plan may be extended by the Executive Director at
the request of the permittee and upon a showing of good cause.
CONDITION C: SAP DATA MAINTENANCE
The permittee shall make available on a publicly-accessible website all scientific data collected
as part of the project. The website and the presentation of data shall be subject to Executive
Director review and approval.
Item W16a
Exhibit 2
Staffs Proposed Draft
MLMP Conditions
(June 2008)
CDP E-06-013
Condition Compliance
Special Condition 8
APPLICATION NO.
Exhibit 2
EXHIBIT NO. 2
Condition Compliance
Spacial Condition 8
July 24, 2008
Staffs Proposed Draft MLMP Conditions
This is a modified version of conditions the Commission required of Southern California Edison
in implementing its wetland restoration project at San Dieguito Lagoon pursuant to Coastal
Development Permit xx
Staff provided these conditions to Poseidon on June 20, 2008 and recommended Poseidon
include them in its Marine Life Mitigation Plan to present to the Commission. The modifications
shown in Btrikethrough and underline reflect differences between Poseidon's proposal and
Edison's and provide updated wetland mitigation standards since the Commission's approval of
Edison's project. Staffs notes to Poseidon are shown in [brackets and bold italics].
CONDITION A: WETLAND RESTORATION MITIGATION
The permittee shall develop, implement and fund a wetland restoration project that compensates
for post,-present and future- fish marine life impacts from SONGS Units 2 and 3, as identified by
tho Marino Roviow Committee Poseidon's Carlsbad desalination facility.
1.0 SITE SELECTION AND PRELIMINARY PLAN
In consultation with Commission staff, the permittee shall select a wetland restoration site and
develop a preliminary plan in accordance with the following process and terms.
Within 9 months of the effective date of this permit, the permittee shall submit the proposed site
and preliminary wetland restoration plan to the Commission for its review and approval or
disapproval.
Draft Partial Conditions for Poseidon's Preliminary MLMP
June 20, 2008
Page 2 of 13
1.1 Site Selection
The location of the wetland restoration project shall be within the Southern California Bight. The
permittee shall evaluate and select from sites including, but not limited to, the following eight
sites: Tijuana Estuary in San Diego County, San Dieguito River Valley in San Diego County,
Huntington Beach Wetland in Orange County, Anaheim Bay in Orange County, Santa Ana River
in Orange County, Los Cerritos Wetland in Los Angeles County, Ballona Wetland in Los
Angeles County, and Ormond Beach in Ventura County. Other sites proposed by the permittee
may be added to this list with the Executive Director's approval.
The basis for the selection shall be an evaluation of the sites against the minimum standards and
objectives set forth in subsections 1.3 and 1.4 below. The permittee shall take into account and
give serious consideration to the advice and recommendations of an Interagency Wetland
Advisory Panel, established and convened by the Executive Director. The permittee shall select
the site that meets the minimum standards and best meets the objectives.
1.2 Preliminary Restoration Plan
[Note: This is the type of Preliminary Plan we anticipate you'll provide for the August
hearing. The Plan should include the elements in Sections L2 -1.4 below.]
In consultation with Commission staff, the permittee shall develop a preliminary wetland
restoration plan for the wetland site identified through the site selection process. The preliminary
wetland restoration plan shall meet the minimum standards and incorporate as many as possible
of the objectives in subsections 1.3 and 1.4, respectively.
The preliminary wetland restoration plan shall include the following elements:
a. Review of existing physical, biological, and hydro logical conditions; ownership, land use
and regulation.
b. Site-specific and regional restoration goals and compatibility with the goal of mitigating
for SONGS impact to fish Poseidon's marine life impacts.
c. Identification of site opportunities and constraints.
d. Conceptual restoration design, including:
1. Proposed grading and excavation; water control structures; planting; integration of
public access, if feasible; buffers and transition areas; management and maintenance
requirements.
2. Proposed habitat types (including approximate size and location).
Draft Partial Conditions for Poseidon's Preliminary MLMP
June 20, 2008
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3. Preliminary assessment of significant impacts of design (especially on existing habitat
values) and net habitat benefits.
4. Evaluation of steps for implementation e.g. permits and approvals, development
agreements, acquisition of property interests.
5. A graphic depiction of proposed plan.
[Note: As part of the elements above, the Preliminary Plan should describe the current and
anticipated relationship between Poseidon's proposed mitigation and Edison's, including
applicable conditions of the MOA and any written agreements between Poseidon, Edison,
and/or the JPA, measures included that will ensure Poseidon's mitigation will not adversely
affect Edison's mitigation, coordination with Edison's Scientific Advisory Panel, etc.]
1.3 Minimum Standards
The wetland restoration project site and preliminary plan must meet the following minimum
standards:
a. Location within Southern California Bight.
b. Potential for restoration as tidal wetland, with extensive intertidal and subudal areas;
c. Creates or substantially restores a minimum of 150 acres (60 hectares) 55.4 to 68.2 acres
of wetlands habitat similar to the affected habitats in Agua Hedionda Lagoon, excluding
buffer zone and upland transition area; [Note: the acreage figures are from Pete
Raimondi's evaluation at the 80% and 95% confidence levels.]
d. Provides a buffer zone of a size adequate to ensure protection of wetland values, and not
less than at least 100 feet wide, as measured from the upland edge of the transition area.
e. Any existing site contamination problems would be controlled or remediated and would
not hinder restoration.
f. Site preservation is guaranteed in perpetuity (through appropriate public agency or
nonprofit ownership, or other means approved by the Executive Director), to protect
against future degradation or incompatible land use.
g. Feasible methods are available to protect the longterro wetland values on the site, in
perpetuity.
h. Does not result in loss of existing wetlands.
i. Does not result in impact on endangered species.
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June 20, 2008
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1.4 Objectives
The following objectives represent the factors that will contribute to the overall value of the
wetland. The selected site shall be that with the best potential to achieve these objectives. These
objectives shall also guide preparation of the restoration plan.
a. Provides maximum overall ecosystem benefits e.g. maximum upland buffer,
enhancement of downstream fish values, provides regionally scarce habitat, potential for
local ecosystem diversity.
b. Provides substantial fish habitat compatible with other wetland values at the site.
c. Provides a buffer zone of an average of at least 300 feet wide, and not less than 100 feet
wide, as measured from the upland edge of the transition area.
d. Provides maximum upland transition areas (in addition to buffer zones);
e. Restoration involves minimum adverse impacts on existing functioning wetlands and
other sensitive habitats.
f. Site selection and restoration plan reflect a consideration of site specific and regional
wetland restoration goals.
g. Restoration design is that most likely to produce and support wetland-dependent
resources.
h. Provides rare or endangered species habitat.
i. Provides for restoration of reproductively isolated populations of native California
species.
j. Results in an increase in the aggregate acreage of wetland in the Southern California
Bight.
k. Requires minimum maintenance.
1. Restoration project can be accomplished in a timely fashion.
m. Site is in proximity to SQNGS-the Carlsbad desalination facility.
1.6 Restrictions
(a) The permittee may propose a wetland restoration project larger than the minimum necessary
size specified in subsection 1.3(c) above, if biologically appropriate for the site, but the
additional acreage must (1) be clearly identified, and (2) must not be the portion of the project
best satisfying the standards and objectives listed above.
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(b) If the permittee jointly enters into a restoration project with another party: (1) the permittee's
portion of the project must be clearly specified, (2) any other party involved cannot gain
mitigation credit for the permittee's portion of the project, and (3) the permittee may not receive
mitigation credit for the other party's portion of the project.
(c) The permittee may propose to divide the mitigation requirement between a maximum of two
wetland restoration sites, unless there is a compelling argument, approved by the Executive
Director, that the standards and objectives of subsections 1.3 and 1.4 will be better met at more
than two sites.
[Note: We'll probably recommend the text below, or similar, as conditions for the Commission
to adopt in August to determine what will be required as follow-up to the Preliminary Plan to
ensure it results in an adequate Final Plan - that is, while you may include them in your Plan
for August, we'll probably handle them as conditions for approval}
2.0 FINAL PLAN AND PLAN IMPLEMENTATION
2.1 Final Restoration Plan
Within 45-24 months {Note: based on anticipated 18-month CEQA process] following the
Commission's approval of a site selection and preliminary restoration plan, the permittee shall
submit a complete Coastal Development Permit application for a final restoration plan along
with CEQA documentation generated in connection with and local or other state agency
approvals, to tho Executive Director of the Coastal Commiooion for roviow and approval. [Note;
the changes above reflect a difference between SONGS and Poseidon's processes. With
SONGS, Edison applied for a CDPfor its Preliminary Plan after Marine Resource Committee
review and Commission approval of the selected site and applied for a CDPfor its Final Plan.
With Poseidon, your CDP application for the mitigation site work will come after CEQA is
done and after other approvals are obtained.} The final restoration plan shall substantially
conform to the approved preliminary restoration plan as originally submitted or as amended by
the Commission pursuant to a request by the permittee. The final restoration plan shall include,
but not be limited to the following elements:
a. Detailed review of existing physical, biological, and hydrological conditions; ownership,
land use and regulation.
b. Evaluation of site-specific and regional restoration goals and compatibility with the goal
of mitigating for SONGS impacts to fish Poseidon's marine life impacts.
c. Identification of site opportunities and constraints.
[Note: the above three elements should include a complete description of the relationship
between Poseidon's mitigation and Edison's, and any legal/contractual relationships between
Draft Partial Conditions for Poseidon's Preliminary MLMP
June 20, 2008
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Poseidon, Edison, the JPA, and other involved entities. This should also describe how
Poseidon's ongoing sampling, monitoring, maintenance, contingency planning, etc. maybe
associated with Edison's.}
d. Schematic restoration design, including:
1. Proposed cut and fill, water control structures, control measures for stormwater,
buffers and transition areas, management and maintenance requirements.
2. Planting Program, including removal of exotic species, sources of plants and or seeds
(local, if possible), protection of existing salt marsh plants, methods for preserving
top soil and augmenting soils with nitrogen and other necessary soil amendments
before planting, riming of planting, plans for irrigation until estabb'shed, and location
of planting and elevations on the topographic drawings.
3. Proposed habitat types (including approximate size and location).
4. Assessment of significant impacts of design (especially on existing habitat values)
and net habitat benefits. [Note: this should include a description of any effects on
existing habitat values within Poseidon's mitigation site (e.g., are there existing
wetlands within your site that would be altered by your project?) and Edison's site,
along with proposed measures to mitigate those impacts - e,g., methods, locations,
etc.]
5. Location, alignment and specifications for public access facilities, if feasible.
6. Evaluation of steps for implementation e.g. permits and approvals, development
agreements, acquisition of property rights.
7. Cost estimates.
8. Topographic drawings for final restoration plan at 1" = 100 foot scale, one foot
contour interval.
9. Drawings shall be directly translatable into final working drawings.
g. Detailed information about how monitoring and maintenance will be implemented.
h. Detailed information about construction methods to be used
L Defined final success criteria for each habitat type and methods to be used to determine
success.
i. Detailed information about how Poseidon will coordinate with the SONGS Scientific
Advisory Panel, including its role in independent monitoring, contingency planning
review., cost recovery, etc.
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June 20, 2008
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k. Detailed information about contingency measures that will be implemented if mitigation
does not meet the approved goals, objectives, performance standards, or other criteria.
1. Submittal of "as-built" plans showing final grading, planting, hydrological features, etc,
within 60 days of completing initial mitigation site construction.
[Note: the additions above reflect conditions generally included in more recent mitigation
plans or needed to coordinate with Edison's efforts. ]
2.2 Wetland Construction Phase
Within 6 months of approval of the final restoration plan, subject to the permittee's obtaining the
necessary permits, the permittee shall commence the construction phase of the wetland
restoration project. The permittee shall be responsible for ensuring that construction is carried
out in accordance with the specifications and within the timeframes specified in the approved
final restoration plan and shall be responsible for any remedial work or other intervention
necessary to comply with final plan requirements.
2.3 Timeframe for Resubmittal of Project Elements
If the Commission does not approve any element of the project (i.e. site selection, restoration
plan), the Commission will specify the time limits for compliance relative to selection of another
site or revisions to the restoration plan.
3.0 WETLAND MONITORING, MANAGEMENT AND REMEDIATION
Monitoring, management (including maintenance), and remediation shall be conducted over the
"full operating life" of SONGS-Units 2-and 3 Poseidon's desalination facility. "Full operating
life" as defined in this permit includes past and future years of operation of SONGS units 2 and 3
including tho decommissioning period to the extent there are continuing discharges. Tho number
of past operating years at tho time tho wetland is ultimately oonotruotod, ohall bo-addod to the
number of future operating years and decommission period, to determine the length of the
monitoring, management and remediation requirement.
The following section describes the basic tasks required for monitoring, management and
remediation. Condition n-D specifies the administrative structure for carrying out these tasks,
including the roles of the permittee and Commission staff.
3.1 Monitoring and Management Plan
A monitoring and management plan will be developed in consultation with the permittee and
appropriate wildlife agencies, concurrently with the preparation of the restoration plan, to
Draft Partial Conditions for Poseidon's Preliminary MLMP
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provide an overall framework to guide the monitoring work. It will include an overall description
of the studies to be conducted over the course of the monitoring program and a description of
management tasks that are anticipated, such as trash removal. Details of the monitoring studies
and management tasks will be set forth in a work program (see Section II-D).
3.2 Pre-restoration site monitoring
Pre-restoration site monitoring shall be conducted to collect baseline data on the wetland
attributes to be monitored. This information will be incorporated into and may result in
modification to the overall monitoring plan.
3.3 Construction Monitoring
Monitoring shall be conducted during and immediately after each stage of construction of the
wetland restoration project to ensure that the work is conducted according to plans.
3.4 Post-Restoration Monitoring and Remediation
Upon completion of construction of the wetland, monitoring shall be conducted to measure the
success of the wetland in achieving stated restoration goals (as specified in restoration plan) 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 of
SONGS Units 2 and 3. 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.
Successful achievement of the performance standards shall (in some cases) be measured relative
to approximately four reference sites, which shall be relatively undisturbed, natural tidal
wetlands within the Southern California Bight. The Executive Director shall select the reference
sites. The standard of comparison i.e. the measure of similarity to be used (e.g. within the range,
or within the 95% confidence interval) shall be specified in the work program.
In measuring the performance of the wetland project, the following physical and biological
performance standards will be utilized:
a. Longterm Physical Standards. The following longterm standards shall be maintained over
the full operative life of SONGS Units 2 and 3 the desalination facility.
1) Topography. The wetland shall not undergo major topographic degradation (such as
excessive erosion or sedimentation).
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2) Water Quality. Water quality variables (to be specified) shall be similar to reference
wetlands.
3) Tidal prism. The designed tidal prism ohall be maintained, ond tidal flushing shall not
bo interrupted. [Note: this is Edison's requirement, but could be part of Poseidon's
obligiation based on the agreement you develop with Edison.]
4) Habitat Areas. The area of different habitats shall not vary by more than 10% from
the areas indicated in the final restoration plan.
b. Biological Performance Standards. The following biological performance standards shall
be used to determine whether the restoration project is successful. Table I, below,
indicates suggested sampling locations for each of the following biological attributes;
actual locations will be specified in the work program.
1) Biological Communities. Within 4 years of construction, the total densities and
number of species offish, macroinvertebrates and birds (see table 1) shall be similar
to the densities and number of species in similar habitats in the reference wetlands.
2) Vegetation. The proportion of total vegetation cover and open space in the marsh
shall be similar to those proportions found in the reference sites. The percent cover of
algae shall be similar to the percent cover found in the reference sites.
3) Spartina Canopy Architecture. The restored wetland shall have a canopy architecture
that is similar in distribution to the reference sites, with an equivalent proportion of
stems over 3 feet tall.
4) Reproductive Success. Certain plant species, as specified by in the work program,
shall have demonstrated reproduction (i.e. seed set) at least once in three years.
5) Food Chain Support. The food chain support provided to birds shall be similar to that
provided by the reference sites, as determined by feeding activity of the birds.
6) Exotics. The important functions of the wetland shall not be impaired by exotic
species.
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Table 1: Suggested Sampling Locations
1) Density/spp:
Fish
Macroinvert
s
Birds
2) % Cover
Vegetation
algae
3) Spar. arch.
4) Repro. sue.
5) Bird feeding
6) Exotics
Salt Marsh
Spartina
X
X
X
X
X
X
Salicorni
a
X
X
X
X
X
Upper
X
X
X
X
Open Water
Lagoon
X
X
X
X
X
Eelgrass
X
X
X
X
Mudflat
X
X
X
X
X
X
Tidal
Creeks
X
X
X
X
X
CONDITION D: ADMINISTRATIVE STRUCTURE
[Note: The conditions below will likely vary based on the relationship you develop with Edison
and the JPA regarding monitoring, review, administration, etc.]
1.0 ADMINISTRATION
Personnel with appropriate scientific or technical training and skills will, under the direction of
the Executive Director, oversee the mitigation and monitoring functions identified and required
by conditions II-A through C. The Executive Director will retain approximately two scientists
and one administrative support staff to perform this function.
This technical staff will oversee the preconstruction and post-construction site assessments,
mitigation project design and implementation (conducted by permittee), and monitoring
activities (including plan preparation); the field work will be done by contractors under the
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June 20, 2008
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Executive Director's direction. The contractors will be responsible for collecting the data,
analyzing and interpreting it, and reporting to the Executive Director.
The Executive Director shall convene a scientific advisory panel to provide the Executive
Director with scientific advice on the design, implementation and monitoring of the wetland
restoration and artificial reef. The panel shall consist of recognized scientists, including a marine
biologist, an ecologist, a statistician and a physical scientist.
2.0 BUDGET AND WORK PROGRAM
The funding necessary for the Commission and the Executive Director to perform their
responsibilities pursuant to these conditions will be provided by the permittee in a form and
manner determined by the Executive Director to be consistent with requirements of State law,
and which will ensure efficiency and minimize total costs to the permittee. The amount of
funding will be determined by the Commission on a biennial basis and will be based on a
proposed budget and work program, which will be prepared by the Executive Director in
consultation with the permittee, and reviewed and approved by the Commission. If the permittee
and the Executive Director cannot agree on the budget or work program, the disagreement will
be submitted to the Commission for resolution.
The budget to be funded by the permittee will be for the purpose of reasonable and necessary
costs to retain personnel with appropriate scientific or technical training and skills needed to
assist the Commission and the Executive Director in carrying out the mitigation and lost resource
compensation conditions (II-A through C) approved as part of this permit action. In addition,
reasonable funding will be included in this budget for necessary support personnel, equipment,
overhead, consultants, the retention of contractors needed to conduct identified studies, and to
defray the costs of members of any scientific advisory panel(s) convened by the Executive
Director for the purpose of implementing these conditions.
Costs for participation on any advisory panel shall be limited to travel, per diem, meeting time
and reasonable preparation time and shall only be paid to the extent the participant is not
otherwise entitled to reimbursement for such participation and preparation. Total costs for such
advisory panel shall not exceed $100,000 per year adjusted annually by any increase in the
consumer price index applicable to California.
The work program will include:
a. A description of the studies to be conducted over the subsequent two year period,
including the number and distribution of sampling stations and samples per station,
methodology and statistical analysis (including the standard of comparison to be used in
comparing the mitigation projects to the reference sites.)
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June 20, 2008
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b. A description of the status of the mitigation projects, and a summary of the results of the
monitoring studies to that point.
c. A description of the performance standards that have been met, and those that have yet to
be achieved.
d. A description of remedial measures or other necessary site interventions.
e. A description of staffing and contracting requirements.
f. A description of the Scientific Advisory Panel's role and time requirements in the two
year period.
The Executive Director may amend the work program at any time, subject to appeal to the
Commission.
3.0 ANNUAL REVIEW
A duly noticed public workshop will be convened and conducted by the Executive Director or
the Commission each year to review the status of the mitigation projects. The meeting will be
attended by the contractors who are conducting the monitoring, appropriate members of the
Scientific Advisory Panel, the permittee, Commission staff, representatives of the resource
agencies (CDFG, NMFS, USFWS), and the public. Commission staff and the contractors will
give presentations on the previous year's activities, overall status of the mitigation projects,
identify problems and make recommendations for solving them, and review the next year's
program. The permittee shall report on the status of the behavioral barrier devices.
The public review will include discussions on whether the artificial reef and wetland mitigation
projects have met the performance standards, identified problems, and recommendations relative
to corrective measures necessary to meet the performance standards. The Executive Director will
utilize information presented at the annual public review, as well as any other relevant
information, to determine whether any or all of the performance standards have been met,
whether revisions to the standards are necessary, and whether remediation is required. Major
revisions shall be subject to the Commission's review and approval.
The mitigation projects will be successful when all performance standards have been met each
year for a three-year period. The Executive Director shall report to the Commission upon
determining that all of the performance standards have been met for three years and that the
project is deemed successful. If the Commission determines that the performance standards have
been met and the project is successful, the monitoring program will be scaled down, as
recommended by the Executive Director and approved by the Commission. A public review shall
thereafter occur every five years, or sooner if called for by the Executive Director. The work
program shall reflect the lower level of monitoring required. If subsequent monitoring shows that
Draft Partial Conditions for Poseidon's Preliminary MLMP
June 20, 2008
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a standard is no longer being met, monitoring may be increased to previous levels, as determined
necessary by the Executive Director.
The Executive Director may make a determination on the success or failure to meet the
performance standards or necessary remediation and related monitoring at any time, not just at
the time of the annual public review.
CONDITION E: MRC DATA MAINTENANCE
The scientific data collected by the MRC will be stored in the Commission library in San
Francisco, and at the Los Angeles County Museum of Natural Science, or at an alternative
location in Southern California, as determined by the Executive Director; and will be made
available for public use. The permittee shall purchase the necessary computer equipment for the
Commission and the Southern California location to store and retrieve the data, and shall fund
appropriate staff training on data storage and retrieval at both locations.
Item W16a
Exhibit 3
Poseidon's August 2, 2008
Proposed MLMP and
attachments
POSEIDON RESOURCES
August 2,2008 Agenda Item
W5b
VIA OVERNIGHT DELIVERY
Chairman Kxucr and Honorable Commissioners ]£ E (7 E I V E D
California Coastal Commission
North Central Coast District At !G 0 -1 ZQ08
45 Fremont, Suite 2000 .wirr.r.iA
San Francisco, CA 94105-2219 COASTALCOMMSWW
Re: Carlsbad Desalination Project CDP Application No. E-06-013
Special Condition 8: Marine Life Mitigation Plan
Dear Chairman Kruer and Honorable Commissioners:
Poseidon Resources (Channelside) LLC ("Poseidon") requests that the Commission
approve Poseidon's proposed Marine Life Mitigation Plan ("MLMP") attached hereto as Exhibit
A, which Poseidon has prepared pursuant to Special Condition 8 of the above-referenced Coastal
Development Permit (the "Permit") for the Carlsbad Seawater Desalination Facility (the
"Project"). The Commission approved the Permit at its November 15, 2007 hearing, including
Special Condition 8, which requires the Applicant to submit a Marine Life Mitigation Plan for
Commission review and approval before the Permit will issue.
Following months of extensive collaboration with experts, Commission Staff, and state
and local agencies,1 Poseidon submitted its MLMP to the Commission on July 3, 2008. The
MLMP contains the following elements that ensure Poseidon will implement and fund a wetland
restoration project or projects that not only fully mitigate any Project impacts to marine life, but
also provide additional mitigation that creates, enhances, and restores aquatic and wetland habitat
consistent with Coastal Act Sections 30230 and 30231 and Special Condition 8:
• Contains performance standards and objectives that are consistent with those
applied in Edison's San Onofrc Nuclear Generating Station ("SONGS") project;
Poseidon has consulted with the Department of Fish and Game, the Department of Transportation, the State Lands
Commission, the San Diego Regional Water Quality Control Board, the City of Carlsbad, Coastal Commission
Staff, and the U.S. Fish and Wildlife Service, among others.
These materials have been provided to Coastal Commission Staff
Poseidon Resources Corporation
501 West Broadway, Suite 840, San Diego. CA 92101, USA
619-595-7802 Fax: 619-595-7892
Project Office: 4600 Carlsbad Boulevard, Carlsbad. CA 92008
August 2, 2008
Page 2
• Provides for up to 42.5 acres of wetland restoration, which is consistent with
California Energy Commission ("CEC") methodology and Commission
precedent;
• Implements a phased mitigation program to ensure that Poseidon is incentivized
to incorporate emerging technologies that are not currently available into Project
operations to further reduce marine impacts;
• Requires Poseidon to submit a new Coastal Development Permit application for
Phase I of the restoration project within 24 months of MLMP approval;
• Ensures long-term performance, monitoring, and protection of the mitigation
measures; and
• Allows for the Commission to determine in the future whether Lagoon dredging
should entitle Poseidon to restoration credit applicable to all or part of its Phase II
mitigation obligations.
On July 24, 2008, Commission Staff released its Staff Report recommending approval of
the MLMP if it is modified and amended to include Staff's recommendations. In response to the
Staff Report, Poseidon revised the MLMP to address substantially all of Staff s concerns
(excluding the three issues discussed in the remainder of this letter), and to ensure that the
MLMP substantially complies with Staffs recommendations.2 For the Commission's
convenience, we have attached as Exhibit B a document that sets forth the issues raised in the
Staff Report and how Poseidon responded to those issues, including citations to the changes
made to the MLMP. Poseidon's proposed MLMP is attached hereto as Exhibit A in redline
format showing all of the changes made in response to the Staff Report that are discussed in
Exhibit B. These documents demonstrate that Poseidon has made significant compromises to its
positions regarding the MLMP to address and resolve Staffs concerns.
A. Key Differences With Staff Report
Poseidon believes there remain only three key differences between Poseidon's MLMP
and Staffs position in the Staff Report that require the Commission's further consideration
including:
• (1) the amount of mitigation acreage;
• (2) whether mitigation may be phased; and
" Poseidon forwarded these revisions to Station July 31, 2008 and hoped to have Staff confirm, prior to finalizing
this letter, that these revisions addressed their concerns, but Staff cancelled the planned conference call to discuss
these changes.
These materials have been provided to Coastal Commission Staff
August 2. 2008
Page 3
• (3) whether the Commission should have the discretion to decide at a later date if
Poseidon may receive restoration credit for dredging the Agua Hedionda Lagoon
(the "Lagoon").
Poseidon contends that the MLMP's proposed 42.5 acres of mitigation is soundly based on CEC
methodology; that the phased approach to mitigation ensures the Project's marine life impacts
will be fully mitigated during all Project operating scenarios; and that the Commission should be
allowed to determine whether Poseidon may receive restoration credit for evidence
demonstrating the environmental benefits attributable to Lagoon dredging at the time Poseidon
actually requests such credit (if ever) for its Phase II obligations. Accordingly, for those reasons
and the reasons summarized below and set forth in detail in Exhibit C ("Marine Life Mitigation
Rationale"), Poseidon requests that the Commission not adopt Staffs recommended
modifications and instead adopt Poseidon's MLMP as revised and attached hereto as Exhibit A.
B. Poseidon's Restoration Acreage is Consistent with Commission Practice
Independent review has confirmed that Poseidon's proposed 42.5 acres is sufficient
restoration to fully mitigate the Project's marine life impacts, consistent with Coastal Act
Sections 30230 and 30231. Poseidon's entrainment study, which provides the basis for
Poseidon's proposed 42.5 acres of wetland restoration, was reviewed by the Coastal
Commission's independent expert. Dr. Pete Raimondi of UC Santa Cruz. Dr. Raimondi
confirmed, among other things, that: (1) Poseidon's study design is consistent with recent
entrainment studies conducted in California;' and (2) using CEC methodology, the habitat
restoration required to mitigate the Project's "stand-alone" operations would be 42.5 acres. This
methodology is also consistent with the peer-reviewed and approved methodology the CEC
applied to the Morro Bay Power Plant and the Moss Landing Power Plant.
Notably, Commission Staff originally recommended that Poseidon use CEC methodology
to determine Project mitigation acreage, but Staff is now recommending a substantial increase in
the mitigation acreage by applying a new standard that has never been peer-reviewed and which
adjusts variables in the modeling estimates. Specifically, Dr. Raimondi suggested that in order
to provide a greater level of assurance that impacts to lagoon and ocean species will be
mitigated, Poseidon could restore a total of 55.4 to 68.2 acres, which would provide an
unprecedented level of mitigation for the Project's "stand-alone" impacts that the Commission
has never applied before. This "enhanced mitigation" proposal is not consistent with CEC
methodology and established, peer-reviewed methodology and precedent. Notably, Dr.
Raimondi has not advocated that the Commission should apply the "enhanced mitigation"
methodology, and has appropriately left to the Commission the decision of which methodology
should be used.
As Set forth in the Staff Report. "Dr. Raimondi was able to determine that the study's sampling and data collection
methods were consistent with those used in other recent entrainment studies conducted in California pursuant to the
protocols and guidelines used by the U.S. EPA, Regional Water Quality Control Boards. California Energy
Commission, and Coastal Commission." (Staff Repon re: Condition Compliance tor CDP No. E-06-0/3; Special
Condition 8: Suhmittal of Marine Life Mitigation Plan. July 24. 2008, at p. 8.)
These materials have been provided to Coastal Commission Staff
August 2. 2008
Page 4
C. Phased Mitigation is Appropriate for this Project
Poseidon's phased approach to mitigation would fully compensate for the Project's
impacts to marine life under either of the power plant's operating scenarios. The initial phase
would provide 37 acres of wetland restoration, which would fully compensate for Project-related
impacts during the period when both the Encina Power Station ("EPS") and the Project are
operating ("Phase I"). The second phase would provide up to 5.5 acres of additional restoration
to address any additional unmitigated impacts occurring if the Project ever operates "stand-
alone"; that is, when the EPS is decommissioned or when the EPS is providing less than 15% of
the water needed for the Project based on the EPS's average water use over any three-year period
("Phase II").
• Phase I Substantially Over-mitigates Project Impacts. The 37 acres provided
under Phase I would fully mitigate the Project's impacts as long as at least 13% of
the Project's seawater requirements are provided by the EPS. In the last 18
months, the EPS would have provided over 65% of the water needed for the
Project. Based on that number, the 37 acres provided by Poseidon under Phase I
would have been about 2.5 times the mitigation actually required. Through the
phased approach to mitigation, Poseidon will substantially over-mitigate its
impacts while the EPS continues to operate.
• Phase II Mitigation Provides New Opportunities to Reduce Impacts. Under
Phase II, the MLMP ensures that Poseidon will fully mitigate its "stand-alone"
impacts by requiring Poseidon to: (1) analyze the environmental effects of
ongoing Project operations; (2) use that analysis to investigate and evaluate
reasonably feasible technologies that are unavailable today, which may reduce
any marine life impacts; (3) provide its analysis of environmental effects and its
evaluation of any reasonably feasible technologies to reduce impacts to the
Commission; and (4) undertake Lagoon dredging obligations, if feasible. The
Commission will then be able to determine if actual Project operations have less
of an impact to marine life than originally estimated, if Poseidon can further
reduce the Project's impacts through reasonably feasible technologies, or if
Poseidon should receive restoration credit for demonstrated environmental
benefits attributable to dredging (as discussed further in Section D below). Based
on these determinations, the Commission may proportionally reduce Poseidon's
habitat restoration obligation for Phase II mitigation. Accordingly, phased
mitigation will incentivize Poseidon to investigate new technologies that are not
available today to reduce impacts so that it can potentially reduce its restoration
obligation, and it will enable the Commission to make mitigation decisions based
on the Project's actual operational impacts rather than estimates. If the mitigation
obligation is not reduced, the MLMP requires Poseidon to restore an additional
5.5 acres of wetland habitat subject to the same performance standards and
objectives required under Phase I.
These materials have been provided to Coastal Commission Staff
August 2, 2008
Pages
D. Lagoon Dredging Credit Should Be Evaluated in the Future
Pursuant to Poseidon's MLMP, the Commission may decide at a later date whether
Poseidon should receive any restoration credit for assuming Lagoon dredging obligations.
Poseidon has not requested that dredging credit be applied to its mitigation obligations now; on
the contrary, Poseidon is asking the Commission only to leave open the possibility of allowing
such credit in the future if Poseidon assumes dredging obligations. The Staff Report, however,
recommends that the Commission should decide now that Poseidon's potential dredging is not
subject to restoration credit because dredging is inconsistent with Special Condition 8's
requirement that mitigation be in the form of creation, enhancement or restoration of wetland
habitat.
The Staff Report, however, fails to acknowledge that Lagoon dredging is necessary to
preserve the Lagoon's beneficial uses, and that sand dredged from the Lagoon would be used to
maintain, restore and enhance habitat for grunion spawning and enhance opportunities for public
access and recreation along the shoreline. Moreover, the Commission has applied dredging
credit in the past for the SONGS project. Further, approval of the MLMP would not constitute
approval of a particular dredging proposal or grant of dredging credit. Rather, any dredging
proposal would require a separate Coastal Development Permit pursuant to Special Condition 12,
so it would be premature for the Commission to analyze dredging that Poseidon cannot perform.
Accordingly, it is perfectly appropriate for the Commission to determine whether Poseidon
should receive restoration credit for dredging at the time it applies for such credit in the future (if
ever).
We appreciate the Commission's consideration of these important issues and respectfully
request that the Commission approve Poseidon's proposed Marine Life Mitigation Plan attached
hereto as Exhibit A at its August 6, 2008 meeting.
Sincerely,
Peter MacLaggan
Poseidon Resources
Attachments
cc: Tom Luster;
Rick Zbur, Esq.
These materials have been provided to Coastal Commission Staff
POSEIDON RESOURCES
Agenda Item
W 5b
EXHIBITS TO POSEIDON'S
AUGUST 2, 2008
RESPONSE TO STAFF REPORT
REGARDING THE
MARINE LIFE MITIGATION PLAN
Exhibit A Marine Life Mitigation Plan
Exhibit B Responses to Issues Identified in July 24, 2008
Staff Report
Exhibit C Marine Life Mitigation Plan Rationale
These materials have been provided to California Coastal Commission Staff
EXHIBIT A
MARINE LIFE MITIGATION PLAN
CONDITION A: WETLAND RESTORATION MITIGATION
The permittee shall develop, implement and fund a wetland restoration project that compensates
for marine life impacts from Poseidon's Carlsbad desalination facility.
1.0 PHASED IMPLEMENTATION
Poseidon's Carlsbad desalination facility will function under two operating scenarios: (1) using
the Encina Power Station's seawater intake while the Power Station continues to operate ("Phase
I "); and (2) as a stand-alone facility ("Phase II"). The permittee's restoration project shall be
phased to address marine life impacts from each of the applicable operating scenarios.
To mitigate marine life impacts for Phase I operations, the permittee shall develop, implement
and fund a 37-acre wetland restoration project consistent with the terms and conditions set forth
in this Plan. The permittee's additional obligations to mitigate marine life impacts for Phase II
operations, which may include up to 5.5 acres of additional wetland restoration, are set forth in
section 6.0. Combined, mitigation for Phase I and Phase II would require up to 42.5 acres of
wetland restoration.
1.1 Technology Review During Phase I Operations
On or before April 30 of each year following the commencement of the Carlsbad desalination
facility's commercial operations, the permittee shall provide the Executive Director with data
demonstrating the Encina Power Station's cooling water intake for the prior calendar year. On or
before April 30 following the first three years of the Carlsbad desalination facility's commercial
operations, the permittee shall also provide the Executive Director with the calculation
demonstrating the Power Station's average water use during the prior three-year period. The
permittee shall thereafter provide the Executive Director with that calculation annually, on or
before April 30, until either of the occurrence of either of the "Phase II Pre-Conditions," as
defined in subsection 1.2 below.
Consistent with the permittee's approvals from the State Lands Commission, the permittee shall
perform the following ten years after the commencement of commercial operations, unless either
of the "Phase II Pre-Conditions" occur before that time (as defined in subsection 1.2 below):
a. Conduct a new analysis of the environmental effects of ongoing desalination facility
operations ten years after the commencement of commercial operations. The analysis
Conditions for Poseidon 's MLMP
July 3, 2008
Page 2 o
shall provide information about the project's actual impacts from operations, taking into
account all project features and mitigation measures;
b. Using that analysis, the permittee shall investigate and evaluate new and developing
technologies that are reasonably feasible and unavailable today, which may further
reduce any marine life impacts; and
c. Within 24 months of the date that the permittee commenced its analysis of the
environmental effects of ongoing desalination facility operations, the permittee shall
provide that analysis and its evaluation of potential and reasonably feasible technologies
to the Commission for review. The determination of feasibility shall consider costs,
potential impacts, and acceptability to the Encina Power Station, among other things.
Upon receiving the analysis of environmental effects of ongoing desalination facility operations
and the evaluation of new and available technologies from the permittee, the Commission may
request a hearing to determine whether those technologies are reasonably feasible and whether
the permittee can implement any of the technologies to reduce marine life impacts. If the
Commission determines that any such technologies are reasonably feasible and may further
reduce marine impacts, this Marine Life Mitigation Plan may, after a public hearing before the
Commission, be amended to require implementation of reasonably feasible technologies.
1.2 Implementation of Phase II Mitigation
The permittee's Phase I mitigation obligations will not be affected by whether or not the
permittee is ultimately required to undertake mitigation for Phase II. If either the Encina Power
Station stops using its existing seawater intake for cooling water, or the Encina Power Station's
use of its seawater intake provides less than 15% of Poseidon's needed water based on the Power
Station's average water use over any three-year period ("Phase II Pre-Conditions"), then the
permittee shall also undertake the Phase II mitigation obligations set forth in section 6.0.
2.0 PHASE I SITE SELECTION
In consultation with Commission staff, the permittee shall select a wetland restoration site for
Phase I mitigation in accordance with the following process and terms.
Within 10 months of the effective date of this permit, the permittee shall submit the
proposed site and preliminary Phase I restoration plan to the Commission for its review
and approval or disapprovaL
The location of the wetland restoration project shall be within the Southern California Bight.
The permittee shall select from sites including, but not limited to, the following eleven sites:
Conditions for Poseidon 's MLMP
July 3, 2008
Page 3 of 4616
Tijuana Estuary in San Diego County; San Dieguito River Valley in San Diego County; Agua
Hedionda Lagoon in San Diego County; San Elijo Lagoon in San Diego County; Buena Vista
Lagoon in San Diego County; Huntington Beach Wetland in Orange County, Anaheim Bay in
Orange County, Santa Ana River in Orange County, Los Cerritos Wetland in Los Angeles
County, Ballona Wetland in Los Angeles County, and Ormond Beach in Ventura County. The
permittee may also consider any sites that may be recommended by the California Department of
Fish & Game as high priority wetlands restoration projects.
The basis for the selected site shall be an evaluation of the site against the minimum standards
and objectives set forth in subsections 3.1 and 3.2 below. The permittee shall take into account
and give consideration to the advice and recommendations of the scientific advisory panel
established and convened by the Executive Director pursuant to Condition B. 1.0. The permittee
shall select the site that meets the minimum standards and best meets the objectives.
2.1 Preliminary Phase I Restoration Plan
In consultation with Commission staff, the permittee shall develop a preliminary wetland
restoration plan for Phase I mitigation of the wetland site identified through the site
selection process. The preliminary Phase I restoration plan shall meet the minimum
standards and incorporate as many as possible of the objectives in subsections 3.1 and 3.2,
respectively.
The preliminary Phase I restoration plan shall include the following elements:
a. Review of existing physical, biological, and hydrological conditions; owner shjpv land
use and regulation^
b_j Site-specific and regional restoration gpals and compatibility with the goal of
mitigating Poseidon's marine life impacts.
£4 Identification of site opportunities and constraints.
d. Conceptual restoration design, including!
L Proposed grading and excavation; water control structures; planting;
integration of public access, if feasible; buffers and transition areas;
management and maintenance requirements.
2j Proposed habitat types (including approximate size and location).
i Preliminary assessment of significant impacts of design (especially on existing
habitat values) and net habitat benefits.
Conditions for Poseidon 's MLMP
July 3, 2008
Page 4 o
i« Evaluation of steps foxjmjlejnenlatiojLej!;. permits and ap^o_valsT development
agreements, agfljuisition of property interests.
1L A-grajhic depiction of proposed .plan*
3.0 PHASE I PLAN REQUIREMENTS
In consultation with Commission staff, the permittee shall develop a finajwetland restoration
plan for the wetland site identified through the site selection process for Phaso I. The wetland
fcstorationbased on the preliminary Phase I plan, which the permittee shall submlLtQ the
Commission as part of the Coastal Development Permit Application described in Section
4.0. The final plan shall also meet the minimum standards and incorporate as many as feasible
of the objectives in subsections 3.1 and 3.2, respectively.
3.1 Minimum Standards
The Phase I wetland restoration project site and preliminary plan must meet the following
minimum standards:
a. Location within Southern California Bight;
b. Potential for restoration as tidal wetland, with extensive intertidal and subtidal areas;
c. Creates or substantially restores a minimum of 37 acres of habitat similar to the affected
habitats in Agua Hedionda Lagoon, excluding buffer zone and upland transition area;
d. Provides a buffer zone of a size adequate to ensure protection of wetland values, and
substantially at least 100 feet wide, as measured from the upland edge of the transition
area. The Executive Director or the Commission may make exceptions to the 100-foot
buffer requirement in certain locations if they determine that the exceptions are de
minimis, or that a lesser buffer is sited and/or designed to prevent impacts that would
significantly degrade wetland areas and that they are compatible with the continuance of
those areas;
e. Any existing site contamination problems would be controlled or remediated and would
not hinder restoration;
f. Site preservation is guaranteed in perpetuity (through appropriate public agency or
nonprofit ownership, or other means approved by the Executive Director), to protect
against future degradation or incompatible land use;
g. Feasible methods are available to protect the long-term wetland values on the site, in
perpetuity;
Conditions for Poseidon's MLMP
July 3. 2008
Page 5 o
h. Does not result in a net loss of existing wetlands; and
i. Does not result in an adverse^.impact on endangered animal species, or an advepg un-
mitigated impact on end angered .plant species.
3.2 Objectives
The following objectives represent the factors that will contribute to the overall value of the
wetland. The selected site shall be determined to achieve these objectives. These objectives shall
also guide preparation of the restoration plan.
a. Provides siihstanttatmaximum overall ecosystem benefits, e.g. substantiali
upland buffer, enhancement of downstream fish values, provides regionally scarce
habitat, potential for local ecosystem diversity;
b. Provides substantial fish habitat compatible with other wetland values at the site;
c. Provides a buffer zone of at4east§n average of at least 300 feet wide, depending on
feasibility at the selected site(s% and not less than 1 00 feet wide, as measured from the
upland edge of the transition area, subject to the exemptions set forth in subsection
d. Provides substantialmaximum upland transition areas (in addition to buffer zones);
e. Restoration involves minimum adverse impacts on existing functioning wetlands and
other sensitive habitats;
f. Site selection and restoration plan reflect a consideration of site specific and regional
wetland restoration goals;
g. Restoration design is that most likely to produce and support wetland-dependent
resources;
h. Provides potential habitat for rare or endangered species;
i. Provides for restoration of reproductively isolated populations of native California
species;
j. Results in an increase in the aggregate acreage of wetland in the Southern California
Bight;
k. Requires minimum maintenance;
1. Restoration project can be accomplished in a reasonably timely fashion; and
m. Site is in proximity to the Carlsbad desalination facility.
Conditions for Poseidon's MLMP
July 3, 2008
Page 6 of 4616
3.3 Restrictions
(a) The permittee may propose a wetland restoration project larger than the minimum necessary
size specified in subsection 3.1(c) above, if biologically appropriate for the site, but the
additional acreage must (1) be clearly identified, and (2) must not be the portion of the project
best satisfying the standards and objectives listed above.
(b) If the permittee jointly enters into a restoration project with another party: (1) the permittee's
portion of the project must be clearly specified, (2) any other party involved cannot gain
mitigation credit for the permittee's portion of the project, and (3) the permittee may not receive
mitigation credit for the other party's portion of the project.
(c) The permittee may propose to divide the mitigation requirement between a maximum of
foartwo wetland restoration sites, unless the Executive Director determines that the standards
and objectives of subsections 3.1 and 3.2 will be better met at more than fenftwo sites.
4.0 PHASE I PLAN IMPLEMENTATION
4.1 . Coastal Development Permit Application
The permittee shall submit a complete Coastal Development Permit application for the Phase I
restoration plan along with CEQA documentation and local or other state agency approvals by
either 24 months following the issuance of the Coastal Development Permit for the Carlsbad
desalination facilityref-the commencement of-commercial opcr-a&efls at the facility, whichever is
Iratef. The Executive Director may grant an extension to this time period at the request of and
upon a demonstration of good cause by the permittee. The restoration plan shall substantially
conform to Section 3.0 above and shall include, but not be limited to the following elements:
a. Detailed review of existing physical, biological, and hydrological conditions; ownership,
land use and regulation;
b. Evaluation of site-specific and regional restoration goals and compatibility with the ^ >.'.•..'
of mitigating for Poseidon's marine life impacts;
c. Identification of site opportunities and constraints;
d. Schematic restoration design, including:
1. Proposed cut and fill, water control structures, control measures for stormwater,
buffers and transition areas, management and maintenance requirements;
2. Planting Program, including removal of exotic species, sources of plants and or seeds
(local, if possible), protection of existing salt marsh plants, methods for preserving
Conditions for Poseidon's MLMP
July 3, 2008
Page 7 ofU16
top soil and augmenting soils with nitrogen and other necessary soil amendments
before planting, timing of planting, plans for irrigation until established, and location
of planting and elevations on the topographic drawings;
3. Proposed habitat types (including approximate size and location);
4. Assessment of significant impacts of design (especially on existing habitat values)
and net habitat benefits;
5. Location, alignment and specifications for public access facilities, if feasible;
6. Evaluation of steps for implementation e.g. permits and approvals, development
agreements, acquisition of property rights;
7. Cost estimates;
8. Topographic drawings for final restoration plan at 1" = 100 foot scale, one foot
contour interval; and
9. Drawings shall be directly translatable into final working drawings.
g. Detailed information about how monitoring and maintenance will be implemented;
h. Detailed information about construction methods to be used;
i. Defined final success criteria for each habitat type and methods to be used to determine
success;
j. Detailed information about how Poseidon will coordinate with any other agency or panel
that will have a role in implementing and monitoring the restoration plan, including the
respective roles of the parties in independent monitoring, contingency planning review,
cost recovery, etc.;
k. Detailed information about contingency measures that will be implemented if mitigation
does not meet the approved goals, objectives, performance standards, or other criteria;
and
1. Submittal of "as-built" plans showing final grading, planting, hydrological features, etc.
within 60 days of completing mitigation site construction.
4.2 Wetland Construction Phase
Within 12 months of approval of the Phase I restoration plan, subject to the permittee's obtaining
the necessary permits, the permittee shall commence the construction phase of the wetland
restoration project. The permittee shall be responsible for ensuring that construction is carried
out in accordance with the specifications and within the timeframes specified in the approved
Conditions for Poseidon 's MLMP
July 3, 2008
Page 8 ofUlA
restoration plan and shall be responsible for any remedial work or other intervention necessary to
comply with plan requirements.
4.3 Timeframe for Resubmittal of Project Elements
If the Commission does not approve any element of the project (i.e. site selection, restoration
plan), the Commission will specify the time limits for compliance relative to selection of another
site or revisions to the restoration plan.
5.0 PHASE I WETLAND MONITORING, MANAGEMENT AND REMEDIATION
Monitoring, management (including maintenance), and remediation shall be conducted over the
"full operating life" of Poseidon's desalination facility, which shall be 30 years from the date
"as-built" plans are submitted pursuant to subsection 4. !(/).
The following section describes the basic tasks required for monitoring, management and
remediation for Phase I. Condition B specifies the administrative structure for carrying out these
tasks, including the roles of the permittee and Commission staff.
5.1 Monitoring and Management Plan
A monitoring and management plan will be developed in consultation with the permittee and
appropriate wildlife agencies, concurrently with the preparation of the restoration plan for Phase
I, to provide an overall framework to guide the monitoring work. It will include an overall
description of the studies to be conducted over the course of the monitoring program and a
description of management tasks that are anticipated, such as trash removal. Details of the
monitoring studies and management tasks will be set forth in a work program (see Condition B).
5.2 Pre- res to ration site monitoring
Pre-restoration site monitoring shall be conducted to collect baseline data on the wetland
attributes to be monitored. This information will be incorporated into and may result in
modification to the overall monitoring plan.
5.3 Construction Monitoring
Monitoring shall be conducted during and immediately after each stage of construction of the
wetland restoration project to ensure that the work is conducted according to plans.
Conditions for Poseidon's MLMP
July 3, 2008
Page 9 of±61&
5.4 Post-Restoration Monitoring and Remediation
Upon completion of construction of the wetland, monitoring shall be conducted to measure the
success of the wetland in achieving stated restoration goals (as specified in restoration plan) 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 implemented by the
permittee as soon as practicable with Commission staff direction. If the permittee does not agree
with the remedial measures prescribed by the Executive Director, or that remediation is
necessary, the matter may be set for hearing and disposition by the Commission.
Successful achievement of the performance standards shall (in some cases) be measured relative
to approximately four reference sites, which shall be relatively undisturbed, natural tidal
wetlands within the Southern California Bight. The reference sites and the standard of
comparison, i.e. the measure of similarity to be used, shall be specified in the work program.
In measuring the performance of the wetland project, the following physical and biological
performance standards will be utilized:
a. Longterm Physical Standards. The following long-term standards shall be maintained
over the full operative life of the desalination facility:
1) Topography. The wetland shall not undergo major topographic degradation (such as
excessive erosion or sedimentation);
2) Water Quality. Water quality variables [to be specified] shall be similar to reference
wetlands; and
21 Tidal Prism. If the plan requires dredging, the permittee shall provide such
dredging for the duration of the "full operating life" of the project (as definedjn
Section 5.0), in exchange for a dredging credit consistent with the credit
provided to Edison for the SONGS restoration project, and any designed tidal
prism shall he maintained, and tidal flushing shall not be interrupted.
£| 5>Habitat Areas. The area of different habitats shall not vary by more than 10% from
the areas indicated in the restoration plan.
b. Biological Performance Standards. The following biological performance standards shall
be used to determine whether the restoration project is successful. Table 1, below,
indicates suggested sampling locations for each of the following biological attributes;
actual locations will be specified in the work program:
Conditions for Poseidon's MLMP
July 3, 2008
Page 10 of 1416
1) Biological Communities. Within 4 years of construction, the total densities and
number of species offish, macroinvertebrates and birds (see Table 1) shall be similar
to the densities and number of species in similar habitats in the reference wetlands;
2) Vegetation. The proportion of total vegetation cover and open space in the marsh
shall be similar to those proportions found in the reference sites. The percent cover of
algae shall be similar to the percent cover found in the reference sites;
3) Spartina Canopy Architecture. The restored wetland shall have a canopy architecture
that is similar in distribution to the reference sites, with an equivalent proportion of
stems over 3 feet tall;
4) Reproductive Success. Certain plant species, as specified by in the work program,
shall have demonstrated reproduction (i.e. seed set) at least once in three years;
5) Food Chain Support. The food chain support provided to birds shall be similar to that
provided by the reference sites, as determined by feeding activity of the birds; and
6) Exotics. The important functions of the wetland shall not be impaired by exotic
species.
Table 1: Suggested Sampling Locations
1) Density/spp:
Fish
Macroinvert
s
Birds
2) % Cover
Vegetation
Algae
3) Spar. arch.
4) Repro. sue.
5) Bird feeding
6) Exotics
Salt Marsh
Spartina
X
X
X
X
X
X
Salicorni
a
X
X
X
X
X
Upper
X
X
x
X
Open Water
Lagoon
X
X
X
X
X
Eelgrass
X
X
X
--,; -
X
,
Mudflat
X
X
X
X
X
X
Tidal
Creeks
X
X
X
X
X
Conditions for Poseidon 's MLMP
July 3, 2008
Page 11 o
6.0 MITIGATION REQUIRED AFTER PHASE II PRECONDITION
6.1 Reasonably Feasible Technologies
Following the occurrence of either of the Phase II Pre-Conditions, as defined in subsection 1.1,
the permittee shall:
a. Conduct a new analysis of the environmental effects of ongoing desalination facility
operations. The analysis shall provide information about the project's actual impacts
from operations, taking into account all project features and mitigation measures;
b.
,
Using that analysis, the permittee shall investigate and evaluate new and developing
technologies that are reasonably feasible and unavailable today, which may further
reduce any marine life impacts;
c. Within 24 months of the occurrence of the applicable Phase II pre-condition, the
permittee shall provide that analysis and its evaluation of potential and reasonably
feasible technologies to the Commission for review. The determination of feasibility
shall consider costs, potential impacts, and acceptability to the Encina Power Station,
among other things; and
d. The analysis and evaluation provided to the Commission shall also include an evaluation
of whether the 37 acres of-wetland restoration implemented by the permittee has fully or
only partially mitigated marine life impacts for stand-alone operations, taking into
account actual operating conditions from facility operations for Phase I and potential
reductions to impacts that would occur as a result of any new and reasonably feasible
technologies that the permittee may implement pursuant to this subsection 6.1.
Upon receiving the evaluation of new and available technologies from the permittee, the
Commission may request a hearing to determine whether those technologies are reasonably
feasible and whether the permittee can implement any of the technologies to reduce marine life
impacts. If the Commission determines that any such technologies are reasonably feasible and
may further reduce marine impacts, this Marine Life Mitigation Plan may be amended after a
public hearing before the Commission to require implementation of reasonably feasible
technologies. The Commission also may determine the additional mitigation, if any, required
after implementation of available technologies to reduce marine life impacts from Phase II
operations.
6.2 Additional Mitigation
The permittee also shall comply with the following mitigation measures after the occurrence of
either Phase II Pre-Condition:
Conditions for Poseidon 's MLMP
July 3, 2008
Page 12 of442£
a. If within 24 months of the occurrence of the applicable Phase II Pre-Condition, the
permittee assumes dredging obligations of the Agua Hedionda Lagoon from the Encina
Power Station or other applicable entity, the permittee shall provide evidence to the
Executive Director in the form of a contract or other agreement that demonstrates the
permittee's assumption of dredging obligations, along with an evaluation of the
permittee's dredging activities and supporting documentation for the proposed mitigation
credit the permittee is seeking for this activity. Pursuant to Special Condition 12 of this
Permit, the permittee shall not dredge the Agua Hedionda Lagoon without obtaining a
new Coastal Development Permit approval from the Commission for dredging activities.
If such dredging obligations are assumed, the Commission shall evaluate and determine
the mitigation credit the permittee is entitled to receive for Lagoon dredging using
substantially the same methodology the Commission used for the San Onofre Nuclear
Generating Station's dredging approvals. If the Commission's evaluation set forth in
subsection 6.1 determines that there is any remaining mitigation obligation following the
implementation of reasonably feasible technologies to reduce marine impacts, the credit
for Lagoon dredging shall be applied to satisfy any remaining mitigation obligation of the
permittee; or
b. If the permittee does not assume the dredging obligations for the Agua Hedionda Lagoon
(for any reason other than delays by the Commission in issuing the Coastal Development
Permit for dredging) and the analysis and evaluation set forth in subsection 6.1 identifies
that additional wetland restoration is necessary to mitigate Phase II impacts not fully
mitigated by the 37-acre restoration project, then within 24 months of the occurrence of
the applicable Phase II Pre-Condition, the permittee shall apply for a new Coastal
Development Permit to perform additional wetland mitigation to mitigate marine life
impacts for Phase II operations that meets the following criteria:
(i) the Phase II wetland mitigation shall credit the 37-acres of restoration required
under this Plan for Phase I, and may require additional mitigation of up to an
additional 5.5 acres. The Commission shall proportionally reduce the potential 5,5
acre restoration requirement based on: (1) any reduction to marine life impacts
caused by the permittee's implementation of reasonably feasible technologies, as set
forth in subsection 6.1; and (2) any demonstration that actual plant operations have
caused less marine life impacts than originally anticipated during the project's
initial evaluation;
(ii) the permittee shall apply for a new Coastal Development Permit to perform the
wetland restoration, and the restoration shall be of habitat similar to the affected
habitats in Agua Hedionda Lagoon, excluding buffer zone and upland transition
area, and consistent with the objectives and restrictions in subsections 3.1
(excluding subsection 3.1(c)), 3.2 and 3.3 above;
Conditions for Poseidon's MLMP
July 3, 2008
Page 13 of+616
(iii) the permittee shall select a wetland restoration site for Phase II mitigation in a
manner generally in accordance with section 2.0 above;
(iv) the restoration plan for Phase II mitigation shall be generally in accordance with the
requirements in section 4.0 above, and shall be monitored in a manner generally in
accordance with that set forth in section 5.0 above; and
(v) Phase II wetland restoration shall be included in and administered as part of the
same administrative structure created for Phase I mitigation and set forth in
Condition B of this Plan.
CONDITION B: ADMINISTRATIVE STRUCTURE
1.0 ADMINISTRATION
i
Personnel with appropriate scientific or technical training and skills will, under the direction of
the Executive Director, oversee the mitigation and monitoring functions identified and required
by Condition A. The Executive Director will retain scientific and administrative support staff to
perform this function, as specified in the work program.
This technical staff will oversee the preconstruction and post-construction site assessments,
mitigation project design and implementation (conducted by permittee), and monitoring
activities (including plan preparation); the field work will be done by contractors under the
Executive Director's direction. The contractors will be responsible for collecting the data,
analyzing and interpreting it, and reporting to the Executive Director.
The Executive Director shall convene a scientific advisory panel to provide the Executive
Director with scientific advice on the design, implementation and monitoring of the wetland
restoration. The panel shall consist of recognized scientists, including a marine biologist, an
ecologist, a statistician and a physical scientist.
2.0 BUDGET AND WORK PROGRAM
The funding necessary for the Commission and the Executive Director to perform their
responsibilities pursuant to these conditions will be provided by the permittee in a form and
manner reasonably determined by the Executive Director to be consistent with requirements of
State law, and which will ensure efficiency and minimize total costs to the permittee. The
amount of funding will be determined by the Commission on a biennial basis and will be based
on a proposed budget and work program, which will be prepared by the Executive Director in
consultation with the permittee, and reviewed and approved by the Commission in conjunction
with its review of the restoration plan. Permit application fees paid by the permittee! for Coastal
Conditions for Poseidon 's MLMP
July 3, 2008
Page 14 of ±61&
Development Permits (or amendments-thereto) for the restoration program shall be credited
against the budget to be funded by the permittec-If the permittee and the Executive Director
cannot agree on the budget or work program, the disagreement will be submitted to the
Commission for resolution.
The budget to be funded by the permittee will be for the purpose of reasonable and necessary
costs to retain personnel with appropriate scientific or technical training and skills needed to
assist the Commission and the Executive Director in carrying out the mitigation. In addition,
reasonable funding will be included in this budget for necessary support personnel, equipment,
overhead, consultants, the retention of contractors needed to conduct identified studies, and to
defray the costs of members of any scientific advisory panel(s) convened by the Executive
Director for the purpose of implementing these conditions.
Costs for participation on any advisory panel shall be limited to travel, per diem, meeting time
and reasonable preparation time and shall only be paid to the extent the participant is not
otherwise entitled to reimbursement for such participation and preparation. The amount of
funding will be determined by the Commission on a biennial basis and will be based on a
proposed budget and work program, which will be prepared by the Executive Director in
consultation with the permittee, and reviewed and approved by the Commission in conjunction
with its review of the restoration plan. Total costs for such advisory panel shall not exceed
S100,000 per year adjusted annually by any increase in the consumer price index
applicable to California. If the permittee and the Executive Director cannot agree on the budget
or work program, the disagreement will be submitted to the Commission for resolution.
The work program will include:
a. A description of the studies to be conducted over the subsequent two year period,
including the number and distribution of sampling stations and samples per station,
methodology and statistical analysis (including the standard of comparison to be used in
comparing the mitigation project to the reference sites);
b. A description of the status of the mitigation projects, and a summary of the results of the
monitoring studies to that point;
c. A description of up to four reference sites;
d. A description of the performance standards that have been met, and those that have yet to
be achieved;
e. A description of remedial measures or other necessary site interventions;
f. A description of staffing and contracting requirements; and
Conditions for Poseidon s MLMP
July 3, 2008
Page 15 ofUJA
g. A description of the scientific advisory panel's role and time requirements in the two year
period.
Any amendment to the work program requested by-the permittee shall require an amendment-te
the Coastal Development Permit for the restoration plan, unless the Executive Director
determines that no Coastal Development Permit amendment is necessary or required. Any
amendment to the work program proposed by the Executive Director shall be made in
consultation with the permittee. If the permittee and the Executive Director- cannot agree on an
amendment to the work program, the disagreement will be submitted to the Commission for
resolution.
The Executive Director may amend the work program at any time, subject to appeal to the
Commission.
3.0 ANNUAL REVIEW AND PUBLIC WORKSHOP REVIEW
The permittee shall submit a written review of the status of the mitigation project to the
Executive Director each year on April 30 for the prior calendar year. The written review will
discuss the previous year's activities and overall status of the mitigation project, identify
problems and make recommendations for solving them, and review the next year's program.
Every fifth year, the Executive Director or the Commission shall also convene and conduct a
duly noticed public workshop to review the status of the mitigation project. The meeting will be
attended by the contractors who are conducting the monitoring, appropriate members of the
Scientific Advisory Panel, the permittee, Commission staff, representatives of the resource
agencies (CDFG, NMFS, USFWS), and the public. Commission staff and the contractors will
give presentations on the previous five years' activities and the overall status of the mitigation
project, identify problems and make recommendations for solving them, and review the next
period's program.
The workshop review will include discussions on whether the wetland mitigation project has met
the performance standards, identified problems, and recommendations relative to corrective
measures necessary to meet the performance standards. The Executive Director will utilize
information presented at the public review, as well as any other relevant information, to
determine whether any or all of the performance standards have been met, whether revisions to
the standards are necessary, and whether remediation is required. Major revisions shall be
subject to the Commission's review and approval.
The mitigation project will be successful when all performance standards have been met each
year for a three-year period. The Executive Director shall report to the Commission upon
determining that all of the performance standards have been met for three years and that the
Conditions for Poseidon's MLMP
July 3, 2008
Page 16ofUJA
project is deemed successful. If the Commission determines that the performance standards have
been met and the project is successful, the monitoring program will be scaled down, as
recommended by the Executive Director and approved by the Commission. The work program
shall reflect the lower level of monitoring required. If subsequent monitoring shows that a
standard is no longer being met, monitoring may be increased to previous levels, as determined
necessary by the Executive Director.
The GefflmissionExecutive Director may make a determination on the success or failure to meet
the performance standards or necessary remediation and related monitoring at any time, not just
at the time of the workshop review.
4.0 ADDITIONAL PROCEDURES
4.1 Dispute Resolution
In the event that the permittee and the Executive Director cannot reach agreement regarding the
terms contained in or the implementation of any part of this Plan, the matter may be set for
hearing and disposition by the Commission.
4.2 Extensions
Any of the time limits established under this Plan may be extended by the Executive Driector at
the request of the permittee and upon a showing of good cause.
EXHIBIT B
RESPONSES TO ISSUES IDENTIFIED IN JULY 24. 2008 STAFF REPORT
In response to Commission Staffs specific concerns regarding Poseidon's proposed
Marine Life Mitigation Plan ("MLMP"), as identified on page 15 of the July 24, 2008 Staff
Report, Poseidon has modified its MLMP to address Staffs concerns. Below we have listed
each of Staff s identified concerns, followed by Poseidon's response. In addition to the
responses herein, Exhibit A is a redline of Poseidon's MLMP that shows the changes Poseidon
has made in response to Staffs concerns. Note that this document does not address the three
issues discussed in Poseidon's letter responding to the Staff Report: mitigation acreage, phased
mitigation and restoration credit for lagoon dredging.
I. Responses to Bullet Points on Page 15: In this section, Poseidon has responded to each
of the bullet points listed on page 15 of the Staff Report.
Issue 1: Staff recommended that Poseidon submit a complete coastal development permit
application for its Final Restoration Plan within 24 months of Commission approval of its
Preliminary Plan (i.e., the Plan being reviewed herein). Poseidon modified that
recommendation in Section 4 of its Plan to allow submittal of that application either 24 months
after issuance of the project coastal development permit or commencement of commercial
operations of the desalination facility, whichever is later. This could substantially delay the
implementation of mitigation and could result in several years of impacts occurring without
mitigation.
• Poseidon Response to Issue 1: In Section 4.1 of Poseidon's MLMP, Poseidon has
revised its Plan so that the Coastal Development Permit for the Final Restoration Plan
will be submitted within 24 months of Commission approval of its Preliminary Plan.
Issue 2: A proposed change to Poseidon's Plan at Section 3.l(d) and at Section 3.2(c) would
reduce the required buffer zone at its mitigation sites from no less than 100 feet wide to an
average that could be much less than 100 feet.
• Poseidon Response to Issue 2: Poseidon has removed the word "substantially" from
Section 3.1(d) so that it is evident that buffer zones will be at least 100 feet wide. (See
Poseidon's MLMP, Page 4 of 16.)
Issue
in
sue 3: A proposed change to Section 3.1(i) would allow the Plan to affect endangered species
a way not allowed under the Edison requirements.
Poseidon Response to Issue 3: Poseidon has revised Section 3.1(i) to indicate that
Poseidon's Plan will not result in an adverse impact on endangered animal species, and
that it will require mitigation for Plan impacts on endangered plant species. (See
Poseidon's MLMP, Page 5 of 16.) The formulation of this provision in the Edison plan
does not take into account that substantially all wetlands restoration projects will have
impacts on sensitive plant species, which would likely be mitigated through relocation
to upland areas. The Edison plan's formulation would not allow mitigation in any area
where there is a sensitive plant. Accordingly, Poseidon modified this language to
ensure there are no adverse impacts to endangered animals, but to allow for mitigation
and relocation of sensitive plants.
Issue 4: Poseidon proposes to change Section 3.3(c) to allow mitigation to occur in up to four
sites, rather than up to two sites, as required of Edison, which could fragment the mitigation and
reduce its overall value.
• Poseidon Response to Issue 4: Poseidon has revised Section 3.3(c) to allow mitigation
to occur only at up to two sites without Executive Director approval. (See Poseidon's
MLMP,Page6of 16.)
Issue 5: Poseidon also proposed deleting a requirement at Section 5.4 that would require a
designed tidal prism to-be maintained to ensure the wetland mitigation site has adequate tidal
action.
• Poseidon Response to Issue 5: Poseidon has revised its Plan to include a requirement
at Section 5.4(a)(3) that would require a designed tidal prism be maintained if the Plan
requires dredging. (See Poseidon's MLMP, Page 9 of 16.)
Issue 6: Poseidon Proposes that any fees it pays for coastal development permits or
amendments be credited against the budget needed to implement the mitigation plan.
• Poseidon Response to Issue 6: Poseidon has revised Condition B, Section 2.0 to
remove its proposal regarding the crediting of fees paid for coastal development permits
or amendments. (See Poseidon's MLMP, Pages 13-14 of 16.)
II. Responses to Staffs Recommendation to Include Conditions in Exhibit 2: In this
section we have responded to Staffs comment on page 15 of the Staff Report that Poseidon's
Plan should be modified to include the conditions in Exhibit 2 by identifying each of the
differences between Poseidon's Plan and Staffs Exhibit 2, followed by Poseidon's response.
• Poseidon's Plan removes the requirement in Section 2.0 that would require Poseidon to
submit the proposed site and preliminary plan to the Commission within 9 months of the
effective date of the approval, and removes Exhibit 2's "Preliminary Plan" requirements set
forth in Staffs Exhibit 2 at §1.2.
o Poseidon Response: Poseidon has revised its Plan to include the "Preliminary Plan"
requirements (Poseidon's MLMP § 2.1, Pages 3-4 of 16.) and has modified its Plan so
that a proposed site and preliminary plan will be submitted to the Commission within
10 months of the effective date of the approval. (See Poseidon's MLMP § 2.0, Page
2 of 16.)
• Poseidon's Plan adds three potential restoration sites (Agua Hedionda, San Elijo, and Buena
Vista) for a total of 11 sites in Section 2.0.
o Poseidon Response: This remains part of Poseidon's proposal because these sites
are in close proximity to the Project site, and have been recommended as potential
mitigation sites by local and state agencies.
• Poseidon's Plan allows Poseidon to consider other sites that may be recommended by the
Department of Fish and Game ("DFG") as high-priority wetlands restoration projects, while
Staffs MLMP only allows additional sites to be considered with approval from the
Executive Director. (Section 2.0.)
o Poseidon Response: This remains part of Poseidon's proposal to allow consideration
of sites that could be proposed by DFG.
• Poseidon's MLMP has objectives of providing "substantial' upland buffer and upland
transition areas, as compared to Staffs objective of providing "maximum" upland buffer and
upland transition areas. (See Poseidon's MLMP §§ 3.2(a),(d).)
o Poseidon Response: Poseidon has revised Sections 3.2(a) and (d) of its Plan to
incorporate Staffs proposed "maximum" language. (See Poseidon's MLMP, Page 5
of 16.)
• Poseidon's Plan deletes Staffs Objective in Section 3.2(c) of providing a buffer zone of an
average of at least 300 feet wide, and includes a 100 feet-wide Objective.
o Poseidon Response: Poseidon has revised Section 3.2(c) so that the Objective
provides for a buffer zone that is an average of 300 feet wide, depending on the
feasibility at the selected site(s), and not less than 100 feet wide. (See Poseidon's
MLMP, Page 5 of 16.) This modification addresses Staffs concerns and will allow
Poseidon to have necessary flexibility in selecting the mitigation site(s).
• Poseidon proposes commencing restoration construction within 12 months of approval of the
restoration plan (Poseidon's MLMP § 4.2), while Staff proposes construction within 6
months of approval of the restoration plan (Staffs Exhibit 2 at § 2.2).
o Poseidon Response: This remains part of Poseidon's proposal because it is a more
reasonable estimate of time that will be required to undertake the restoration efforts.
• Poseidon's Plan adds a provision to assure that the mitigation is in place for 30 years, and
therefore adds a definition of the facility's "full operating life" of 30 years from the date as-
built plans are submitted. (See Poseidon's MLMP § 5.0)
o Poseidon Response: This remains part of Poseidon's proposal because it provides
clarity for Poseidon's responsibilities and obligations under the Plan.
• Poseidon modifies the requirement that the Executive Director will retain approximately two
scientists and one administrative support staff to oversee the plan's mitigation and
monitoring functions, and provides that the Executive Director shall retain staff as set forth in
the "work program." (See Poseidon's MLMP Condition B § 1.0, Page 13 of 16.)
o Poseidon Response: This remains part of Poseidon's proposal because Poseidon
does not believe this amount of staffing is necessary given the significantly smaller
scope of Poseidon's restoration obligations compared to SONGS. Poseidon's
proposal provides that the work program will identify the necessary staffing.
Poseidon's Plan removes the cap on total costs for the advisory panel of $100,000 per year
contained in Staffs Exhibit 2, and requires the Executive Director to submit a proposed
budget for the advisory panel to the Commission for approval on a biennial basis, and
provides that any disagreement over the budget to be submitted to the Commission for
resolution. (Poseidon's MLMP Condition B § 2.0.)
o Poseidon Response: Poseidon has revised Condition B Section 2.0 to include Staff's
language regarding the $ 100,000 cap, but has retained its procedures for the budget
due to the fact that the scope of Poseidon's restoration obligations will be
significantly smaller than Edison's, and the budget for the advisory panel should bear
a reasonable relationship to the scope of restoration. (See Poseidon's MLMP, Page
14 of 16.)
Poseidon's Plan modifies the Executive Director's ability to amend the work program.
(Poseidon's MLMP Condition B § 2.0.)
o Poseidon Response: Poseidon has modified Condition B, § 2.0 so .that it is now
consistent with the language in Staffs Exhibit 2. (See Poseidon's MLMP, Page 15 of
16.)
Poseidon's Plan requires submission of a written review of the restoration project's previous
year by April 30 instead of an annual public workshop. Poseidon provides for a public
workshop every fifth year, regardless of whether the project's performance standards have
been met. (Poseidon's MLMP Condition B § 3.0, Pages 15-16 of 16.) Staffs Exhibit 2
provides for an annual public workshop, and would lower the frequency of this obligation to
a five year review once performance standards are achieved.
o Poseidon Response: This remains part of Poseidon's proposal because of the
substantially limited size of the Poseidon's restoration project as compared to
Edison's SONGS restoration project, and the significant cost already imposed on
Poseidon's mitigation program.
Poseidon's Plan gives the Commission, rather than the Executive Director, the authority to
determine the success or failure to meet the performance standards, or necessary remediation
and related monitoring.
o Poseidon Response: Poseidon has modified Condition B, § 3.0 so that it is
consistent with the language in Staffs Exhibit 2. (See Poseidon's MLMP, Page 10 of
16.)
Poseidon's Plan adds a general dispute resolution provision that would allow any disputes to
be heard by the Commission. (Poseidon's MLMP Condition B § 4.1, Page 16 of 16.)
o Poseidon Response: This remains part of Poseidon's proposal because it retains and
states the permittee's implicit rights,
Poseidon's MLMP allows for time extensions by the Executive Director at Poseidon's
request upon a showing of good cause. Poseidon's MLMP Condition B § 4.2, Page 16 of
16.)
o Poseidon's Response: This remains part of Poseidon's proposal.
EXHIBIT C
MARINE LIFE MITIGATION PLAN RATIONALE
In addition to the reasons set forth in Poseidon's letter to the Commission, below
Poseidon has provided more detailed support for its position that the Commission should accept
Poseidon's arguments concerning mitigation acreage, mitigation phasing and dredging over
those offered by Staff. Accordingly, and for the following reasons, Poseidon respectfully asks
the Commission to adopt Poseidon's Marine Life Mitigation Plan ("MLMP") as amended and set
forth inJExhibit A, and without Staffs requested modifications from the Staff Report.
I. POSEIDON'S RESTORATION ACREAGE IS CONSISTENT WITH
COMMISSION PRACTICE
Independent review has confirmed that Poseidon's proposed 42.5 acres is sufficient
restoration to fully mitigate the Project's marine life impacts. Poseidon's entrainment study,
which provides the basis for Poseidon's proposed 42.5 acres of wetland restoration, was
reviewed by the Coastal Commission's independent expert, Dr. Pete Raimondi of UC Santa
Cruz. Dr. Raimondi confirmed, among other things, that: (1) Poseidon's study design is
consistent with recent entrainment studies conducted in California; (2) using CEC methodology
and Coastal Commission precedent, the habitat restoration required to mitigate the Project's
"stand-alone" operations would be 42.5 acres (37 acres to compensate for Agua Hedionda
Lagoon ("Lagoon") species impacts, and 5.5 acres to compensate for open ocean species
impacts); and (3) habitat mix for mitigation should include mudflat/tidal channel and open water
habitat. This methodology is also consistent with the peer-reviewed and approved methodology
the CEC applied to the Morro Bay Power Plant and the Moss Landing Power Plant.
Notablyr Commission Staff originally recommended that Poseidon use CEC methodology
to determine the Project's mitigation requirement. Staff, however, is now recommending a
substantial increase in the mitigation acreage by applying a new standard that has not been peer-
reviewed and which adjusts variables in the modeling estimates. Specifically, Dr. Raimondi
suggested that in order to provide an even greater level of assurance that impacts to lagoon and
ocean species will be mitigated, Poseidon could restore 12.9 to 25.7 acres above the 42.5 acres
required under CEC methodology - for a total of 55.4 to 68.2 acres - to provide an
unprecedented level of mitigation for the Project's "stand-alone" impacts that the Commission
has never applied before. This "enhanced mitigation" proposal is inconsistent with CEC
methodology and established, peer-reviewed methodology and precedent. Notably, Dr.
Raimondi has not advocated that the Commission should apply the "enhanced mitigation"
methodology, and has appropriately left to the Commission the decision of which methodology
should be used.
In contrast to the "enhanced mitigation" proposal, Poseidon's restoration acreage
methodology conforms entirely to Commission-accepted precedent, and Staff has not identified
any mitigation projects using this methodology that have resulted in under-compensation for
marine impacts. Poseidon's Area Production Foregone ("APF") calculation is extremely
conservative because it assumes that the proportional mortality resulting from entrainment occur
across the entire area of the Lagoon. In fact, the habitat areas in the Lagoon for the three species
used to calculate the APF estimate are all much smaller than the entire Lagoon. Accordingly, an
averaging approach was used because it accounts for the uncertainty associated with the
estimates of the exact areas of habitat associated for each species. This methodology is
considered conservative and conforms entirely to standards and procedures used for APF
determination at the Moss Landing project.
Staff has also suggested that if Poseidon does not use Staffs "enhanced mitigation"
proposal, that Poseidon should be required to apply a mitigation ratio (such as 2:1 or 3:1) to its
mitigation acreage so that Poseidon considers mitigation that may be "out of kind" or provided at
some distance from the affected area. Staff, however, has not and cannot provide examples of
any California entrainment mitigations that have apf lied a mitigation ratio on top of a
conservative "in-kind" approach to mitigation that is consistent with CEC methodology, such as
the mitigation acreage contained in the MLMP. Moreover, the MLMP ensures that Poseidon
will provide "in-kind" restoration in the Southern California Bight similar to the affected area in
the Lagoon.
For these reasons, Poseidon asks the Commission to approve its 42.5 acreage calculation
over that proposed by Staff to ensure that the Project's mitigation is consistent with prior
Commission approvals rather than subject to an obligation that is based on un-proven
methodology.
II. PHASED MITIGATION IS APPROPRIATE FOR THIS PROJECT
Poseidon's phased approach to mitigation would fully compensate for the Project's
impacts to marine life under either of the power plant's operating scenarios. The initial phase of
the mitigation plan would provide 37 acres of wetland restoration, which would fully compensate
for Project-related impacts during the period when both the Encina Power Station ("EPS") and
the Project are operating ("Phase I"). The second phase would provide up to 5.5 acres of
additional restoration to address any additional unmitigated impacts occurring from Project
operations when the EPS is decommissioned or when the EPS is providing less than 15% of the
water needed for the Project based on the EPS's average water use over any three-year period1
("Phase II"). Below, Poseidon has identified the benefits of phased mitigation for this Project
and explained why Staffs arguments against phasing are unsupported and inconsistent with the
benefits that phasing would provide.
A. Phase I Mitigation Over-mitigates Project .Impacts
Under Phase I, Poseidon would restore 37 acres of wetland habitat similar to the affected
habitats in Agua Hedionda Lagoon. Using CEC and prior Coastal Commission methodology,
the Phase I mitigation would mitigate 87% of the total requirements for the Project's "stand
alone" operations (when the EPS has ceased operating). Accordingly, the Phase I mitigation
This threshold is very conservative. The Phase I restoration project would fully mitigate the Project's impacts as
long as at least 13% of the Project's seawater requirements are provided by the EPS. Poseidon's MLMP is
conservative in that it requires Poseidon to implement Phase II mitigation if the EPS is providing an average of less
than 15% of the Project's seawater requirements over a three-year period.
would fully mitigate the Project's impacts as long as at least 13% of the Project's seawater
requirements are provided by the EPS. By providing this level of mitigation while the Project
and the power plant are both operating, Poseidon will perform more mitigation than what is
necessary to mitigate this stage of the Project's operations. For example, in the last 18 months
the EPS would have provided over 65% of the water needed for the Project. Based on that
number, Poseidon would have been required to provide only 14.9 acres of mitigation using CEC
methodology and Commission precedent. Poseidon's Phase I restoration of 37 acres would be
approximately 2.5 times the mitigation actually required. Therefore, through the phased
approach to mitigation, Poseidon is actually providing the substantial majority of the mitigation
required for the Project's stand-alone operations up front.
B. Phase II Mitigation Provides New Opportunities to Reduce Impacts
The MLMP requires Poseidon to implement mitigation measures for Phase II (including
up to 5.5 acres of additional restoration) if the EPS stops using its existing seawater intakes for
cooling purposes, or if the intakes provide less than 15% of Poseidon's needed water based on
the EPS' average water use over any three-year period ("Phase II Pre-Conditions"). To ensure
that the Commission is aware of the amount of water the EPS is providing to the Project, and
when Phase II mitigation should commence, the MLMP requires Poseidon to submit that
information to the Executive Director annually.
Wetland habitat restoration under Phase II would credit the 37 acres of restoration
already provided for under Phase I, and provide assurances that stand-alone operations are fully
mitigated in Phase II. Once either of the Phase II Pre-Conductions occur, the MLMP requires
Poseidon to: (1) analyze the environmental effects of ongoing Project operations; (2) use that
analysis to investigate and evaluate reasonably feasible technologies that are unavailable today,
which may reduce any marine life impacts; and (3) provide its analysis of environmental effects
and its evaluation of any reasonably feasible technologies to reduce marine life impacts to the
Commission within 24 months. Accordingly, the Commission will be able to determine if
Poseidon can further reduce the Project's impacts to marine life through reasonably feasible
technologies, and may proportionally reduce Poseidon's habitat restoration obligation for Phase
II mitigation based on that mitigation.2
In addition, Poseidon may assume dredging obligations of the Agua Hedionda Lagoon
from the EPS within 24 months of the occurrence of either Phase II Pre-Condition, if feasible.3
If Poseidon assumes dredging obligations, it will provide evidence of its obligations to the
Commission, along with an analysis of how Lagoon dredging is beneficial to the Lagoon and
Note that in the event the Phase II Pre-Conditions do not occur, Poseidon's approval from the State Lands
Commission requires Poseidon to undertake a substantially similar evaluation of environmental effects of ongoing
Project operations and to investigate and evaluate new and developing technologies that are unavailable today to
reduce any marine life impacts ten years after Project operations commence. Accordingly, if the State Lands
Commission requires Poseidon to implement any such technologies that constitute "development", such
development would be subject to Coastal Commission review and approval.
Since Special Condition 12 of the Project's Coastal Development Permit requires Poseidon to obtain a new Permit
approval from the Coastal Commission for any dredging activities, the Commission shall have oversight over any
Lagoon dredging.
how such dredging activities may entitle Poseidon to some amount of restoration credit. (See
Section C below).
In the event that Poseidon does not assume Lagoon dredging obligations (for example, if
the EPS never fully ceases use of its intakes but operates the intakes at very low levels and
continues to dredge the Lagoon), Poseidon's MLMP requires it to develop a plan within 24
months in which: (1) the Commission shall evaluate whether Poseidon's 37 acres of wetland
restoration under Phase I has fully mitigated the Project's stand-alone operations; and (2) the
Commission may reduce Poseidon's Phase II restoration based on the reduction to marine
impacts caused by Poseidon's implementation of new, reasonably feasible technologies (as
discussed above).
Accordingly, phased MLMP implementation would provide a tremendous incentive for
Poseidon to investigate and invest in new technologies and opportunities to further reduce
Project impacts and avoid additional mitigation costs. If Poseidon is required to provide all of
the mitigation for the "stand-alone" operations upfront, there is substantially less incentive to
invest in additional avoidance measures. In addition, the opportunity for the Commission to
consider these issues once Project operations have commenced is another valuable benefit of
phased implementation of the MLMP: with phased mitigation, Poseidon, the Commission and
other regulatory agencies would have an opportunity to measure the actual impacts of the
Project, and to evaluate new opportunities to further reduce the impacts and refine the scope of
the Phase II mitigation as necessary to ensure the "stand-alone" Project impacts are fully
mitigated.
If the Commission determines that none of the above-opportunities are feasible or if these
opportunities in combination with the Phase I mitigation plan do not fully mitigate the "stand-
alone" Project impacts, then the MLMP requires Poseidon to restore up to an additional 5.5 acres
consistent with the performance standards and objectives used for the 37 acres provided under
Phase I restoration.
C. Phased Mitigation is Not Speculative
Commission Staff argue in the Staff Report that the Commission should require Poseidon
to provide all mitigation up-front, rather than in two phases, because it considers "phasing to be
speculative in that it is tied to unknown future operations of the power plant." Staffs argument
is without merit. As set forth in MLMP Section 1.1, Poseidon will be obligated to provide the
Executive Director annually with data demonstrating the power plant's seawater intake for the
prior year, which will ensure that the Commission is always informed of the power plant's
operations. Since the MLMP requires Poseidon to undertake Phase II mitigation when the power
plant is decommissioned or when it provides less than 15% of the Project's water over a three-
year period, the Commission will have the necessary data about power plant operations so that it
will not need to "speculate" about when Poseidon will need to implement Phase II mitigation.
Staff also contends in the Staff Report that tying phased mitigation to the power plant's
operations would be "inappropriate" because the power plant is not a co-applicant on the
Project's Permit. Poseidon's Permit application and the Commission's approval, however,
provide that the desalination facility's intake would be connected to the power plant's discharge
channel. Accordingly, the discharge from the power plant, to the extent it is available, will serve
the Project's needs. In the past 18 months, the power plant would have provided over 65% of the
water needed for the Project. It is both appropriate and there is no prohibition on allowing the
phased approach proposed by Poseidon.
In addition to the reasons discussed above, a phased approach to mitigation for this
Project is based on sound policy for the following three reasons:
• (1) EPS will operate indefinitely: As discussed above, while the EPS continues
to operate, it will provide a significant portion of the seawater required for the
Project, and the need for Project mitigation would be proportionally reduced. The
power plant's generating capacity is subject to "Reliability Must Run" status, as
contracted by the California Independent System Operator (Cal-ISO), which is
meant to provide electrical grid reliability. At the October 2007 State Lands
Commission meeting, an EPS representative testified that the units will remain in
service indefinitely and that Cal-ISO would determine when they are no longer
needed for grid stability. Further, in a July 12, 2007 letter to the Commission,
EPS stated that at least two of its generating units "can be reliably operated for the
foreseeable future." Because the power plant will continue to operate in some
capacity and provide water to the Project, requiring more than 37 acres of
mitigation up-front would substantially over-mitigate the Project's impacts for
many years.
• (2) Phasing allows the Commission to retain authority and evaluate impacts; Due
to the phased approach, the Commission would have ongoing involvement in the
implementation of the MLMP alongside other regulatory agencies. This will
allow the Commission to evaluate the impacts of the Project's actual operations,
rather than relying on estimates, and will enable the Commission to more
accurately determine what additional mitigation should be required to fully
mitigate the Project's marine impacts (if any).
• (3) Other regulatory agencies retain authority to evaluate and address impacts:
The Regional Water Quality Control Board ("Regional Board") and the State
Lands Commission have indicated that upon decommissioning of the power plant,
they will undertake an environmental review of the Project to determine what, if
any, additional design, technology or mitigation measures should be required.
Further, and to the extent that there are modifications to the Project as a result of
power plant decommissioning or to comply with State Lands Commission or
Regional Board requirements, such modifications would also be subject to review
by the Coastal Commission for Coastal Act compliance.
For these reasons, Poseidon asks the Commission to reject Staffs argument about
phasing, and to approve Poseidon's MLMP as set forth in Exhibit A, without Staffs
recommended changes from the Staff Report.
III. LAGOON DREDGING CREDIT SHOULD BE EVALUATED IN THE FUTURE
Pursuant to Poseidon's proposed MLMP, the Commission may decide at a later date
whether Poseidon should receive any restoration credit for assuming dredging obligations of the
Agua Hedionda Lagoon. Poseidon has not requested that dredging credit be applied to its
mitigation obligations now; on the contrary, Poseidon is asking the Commission only to leave
open the possibility of allowing such credit in the future if Poseidon assumes dredging
obligations. Staff argues, however, that the Commission should decide now that Poseidon's
potential dredging is not subject to restoration credit - even though approval of the MLMP does
not involve any dredging approval.
Staff argues that Lagoon dredging would be inconsistent with Special Condition 8's
requirement that mitigation be in the form of creation, enhancement or restoration of wetland
habitat, but that argument is not supported by the evidence. The Lagoon supports a wide range
of beneficial uses, including over 300 acres of marine wetlands and a variety of recreational
activities, and needs to be dredged for those uses to continue. The sand dredged from the
Lagoon would be placed on adjacent beaches so as to maintain, restore and enhance habitat for
grunion spawning and enhance opportunities for public access and recreation along the shoreline.
In recognition of the value these uses, the Commission previously granted wetlands restoration
credit for inlet maintenance for Edison's SONGS project, and this precedent allowed one acre of
restoration credit for every 3.3 acres of tidally exchanged wetlands supported by dredging. As
applied to Poseidon, such credit would represent seventeen times the required 5.5 acres of
mitigation required under Phase II. The MLMP does not specify the amount of restoration credit
Poseidon should receive for dredging, and ultimately the Commission would need to determine
the amount of credit to which Poseidon is entitled (if any) if Poseidon applies for such credit.
Finally, Staff argues that credit for dredging cannot be granted because EPS is obligated
to dredge the Lagoon, and there is neither an agreement with EPS for Poseidon to undertake
dredging nor is EPS a co-applicant for the Project. As discussed above, Poseidon is not asking
for dredging credit now, only the possibility of such credit in the future, and Poseidon would
provide the Commission with any dredging agreement with EPS, or a new Coastal Development
Permit Application that may include EPS as a co-applicant, at the time it requests such credit.
Accordingly, Staffs argument is without merit, and Poseidon asks the Commission to approve
the MLMP as proposed by Poseidon in Exhibit A.
Item W16a
Exhibit 4
Transcript of
August 6, 2008 hearing
(Commission deliberations
only)
305
1 whoever makes the motion.- • • • «.., .
2 . CHAIR KRUER: Exactly.
3 EXECUTIVE DIRECTOR DOUGLAS: Right. .
4 CHAIR KRUER: Exactly, and your process sounds
5 rational, but then it might even take longer. I am not sure..
6 EXECUTIVE DIRECTOR DOUGLAS: Yes, those are the
7 points of differences, right.
8 CHAIR KRUER: Okay.
9 You don't get to speak, Mr. Geever.
10 MR. GEEVER: Mr. Chairman, I am going to ask you
11 for an exception.
12 CHAIR KRUER: No, I am not going to give any
13 exceptions tonight, at this hour, no, sir, cannot do it.
14 MR. GEEVER: I wanted to take issue with --
15 CHAIR KRUER: Well, you are not entitled to
16 rebuttal. We have closed the public hearing, first of all.
17 MR. GEEVER: Okay.
18 CHAIR KRUER: Thank you, sir.
19 Okay, Commissioner Hueso. '
20 [ MOTION ]
21 COMMISSIONER HUESO: Thank you.
22 I am going to.move that we approve the Marine Life
23 Mitigation Plan attached to the staff recommendation, as
24 Exhibit 1, if modified as shown in Section 1.1 below, and
25 Exhibit 2 of this memorandum as compliant with Special
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1 Condition 8 of CDP E-06-013.
2 . And, I will have some modifications.
3 CHAIR KRUERi Okay, it has been moved by
4 Commissioner Hueso, seconded by --
5 Is there a "seconded" to your motion?
6 Anyone want to "seconded" it.
7 COMMISSIONER LOWENTHAL: Second.
8 CHAIR KRUER: Seconded by Commissioner JJowenthal.
9 Would you like to speak to your motion?
10 COMMISSIONER HUESOi I would actually like to go
11 through some of the modifications with staff, and maybe go
12 over some of their recommendations that they have made, just
13 to understand how they apply it.
14 We have gone over this in the discussion, but I
15 would like to go over, for example, Modification No. 1, says
16 Poseidon shall create or restore between 55 and 68 acres of
17 coastal estuarine wetland habitat within the Southern
18 California bite. w
19 My question to staff about that, I mean, there
20 were a lot of complaints about there not being a specific
21 area, and staff also followed up that there aren't really
22 expressed locations, in terms of where this mitigation will
23 take place. In your recommendation, is that still the
24 condition, in terms of we don't know where this is going to
25 take place? .
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1 ENVIRONMENTAL SPECIALIST LUSTER: Staff consulted
2 with the SONGS Scientific Advisory Panel, and our recomniend-
3 ation is based on input we got from the panel.
4 The conditions that the Commission imposed on
5 Edison for the San Dieguito site, those were issued before
6 Edison had selected its site, and so we feel that if Poseidon
7 meets the same conditions that Edison was held to, arid
8 selects a site within the Southern California bite, that
9 would provide adequate assurance that subsequent plans that
10 come to you would be sufficient.
11 COMMISSIONER HUESO: So, we can still work out
12 locations, in terms of optimizing the location, and there is
13 the benefit of the improvements.
14 ENVIRONMENTAL SPECIALIST LUSTER: Right, as long
15 as they are held to the same conditions SONGS was.
16 COMMISSIONER HUESO: And, getting to this specific
17 acreage, you put a range of 55 to 68, that was your
18 recommendation. Now, that is not a very, very specific
19 number. Is that based on, again, putting the burden on,the
20 applicant to come back with a plan that mitigates the impacts
21 of the project?
22 ENVIRONMENTAL SPECIALIST LUSTER: Staff felt that
23 that was a decision for the Commission.
24 The two figures are based on the levels of
25 confidence that derive from the study. If the Commission
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"I wants 80 percent confidence that they would insure full
2 mitigation for the impacts, the 55 acres, staff believes,
3 would be sufficient. If you want 95 percent confidence ,in
4 your decision, then you go with the higher number.
5 So, the Commission could either decide on a
6 specific figure, this evening, or if Poseidon came back
7 later, with a mitigation proposal, somewhere within that
8 range, that would be the other option.
9 COMMISSIONER HUESOi So, is it so accurate, is it
10 possible to get 95 percent with 37 acres? You are saying, is
11 it impossible? is it improbable? is it that accurate? in
12 terms of the possibility of getting the kind of mitigation
13 that we want within a certain amount of acreage? Can that be
14 achieved through a very intense mitigation monitoring of a
15 specific acreage amount?
16 ENVIRONMENTAL SPECIALIST LUSTER* If you don't
17 mind I will ask Dr. Raimondi to answer that.
18 COMMISSIONER HUESOj Sure.
19 ENVIRONMENTAL SPECIALIST LUSTER* He has far more
20 expertise.
21 MR. RAIMONDIi There are really two issues here,
22 you have addressed one of the. One of them is the amount of
23 acreage that is required, and the other is insuring that it
24 works, because, clearly, you could put in 50, 70, 100 acres
. >.i
25 and if it doesn't work, you.get no compensation.
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1 The key thing here is using the information that
2 Poseidon provided, and just using what I laid out there —
3 and again, we are not using any data that didn't come from
4 Poseidon --the 80 percent really is 55 acres, and the 95
5 really is 68. In addition, you would still need to monitor
6 it, to make sure that it works, because 68 acres of garbage
7 is no compensation.
8 So, there are two issue/ really.
9 COMMISSIONER HUESO: So, in terms of maybe hearing
10 from Poseidon's representatives, in terms of what they can
11 guarantee, in terms of providing the adequate mitigation for
12 the project, you are saying you can do it with 42.5 acres is
13 the claim that you are making?
14 MR. ZBURi Yes, I mean I think we think that based
15 upon the standards that were used for the Morro Bay Plant,
16 and for the Moss Landing Plant, that the acreage amount
17 | consistent with that would be 42.5 acres.
18 j COMMISSIONER HUESOi And, what level of mitigation
19 would 42 acres provide? [ . :
20 MR. ZBURi It would provide --
21 COMMISSIONER HUESOi In terms of a percentage?
22 MR. ZBURi It would present 100 percent mitigation
23 for the stand-alone operations.
24 COMMISSIONER HUESO» If monitoring showed that it
25 didn't, would that mean that you are not let off the hook.
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1 You would have to come back and do some work?
2 MR. ZBUR: Well, I think that one of the concerns
3 that we have about the adoption of the staff recommendation
4 is that it, basically, is just a very vague recommendation,
5 if we conform it to the SONGS approach, which had a lot of
6 details, which were related to a much, much larger
7 restoration program, including very significant costs.
8 So, one of the things that we were hoping you
9 would do is to use the -- start with the Poseidon plan, and
10 if you wanted to make changes with respect to the acreage,
11 and I think we want --. phasing is an important thing. Not
12 having any phasing, really restricts the number of sites that
13 we can do, that we can get entitled and ready -to go on line,
14 within the 24 months that the plan has required.
15 I mean, one of the things that is very important
16 for us is that we are able to not delay the operation of the
17 plant, and in order to not delay the operation of the plant,
18 we need as broad a number of sites, as possible, and
19 obviously, we are^ requiring all of, that up front, so it
20 potentially restricts the number of sites, and that makes it
21 less likely --'•'.
22 COMMISSIONER HTJESOt And, that would be required
23 to come back to the Coastal Commission for approval, for each
24 project? , ,
25 MR. ZBURi What the Poseidon proposal does is it
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would require 37 acres up front. We would have to come back
2 to the Coastal Commission within 24 months for a CDP for that
3 project, at least 37 acres.
4 COMMISSIONER HUESO: That is 24 for the 37 acres?
5 and, then?
6 MR. ZBURt And, then, the Poseidon proposal was
7 that we would have to do the additional acreage at the time
8 that there was. stand alone operations occurring, which would
9 be that the power plant would completely shut down, or
10 provides less than 15 percent of the water.
11 And, I actually wanted to dispute, there is a lot
12 of information on the record which we can site, that provides
13 explanation as to what the basis was of those figures.
14 COMMISSIONER HUESO: So, how did you come up with
15 the 42.5? that is the 37 plus the 5.5 acres?
16 MR. ZBURi Yes, the 37 plus the 5.5 acres. The 42
17 acres is using the CEC methodology that was used for the
18 Morro Bay and Moss Landing. The 37 acres was, in part,
19 picked beqause the San Dieguito site, which is not the site
20 that we will, necessarily, . go to -- there are still issues
21 with respect to permitting on that site -- but, we know that
22 we can get 37 acres out of the San Dieguito site, if we can
23 resolve issues with the JPA and some of the other entities
24 involved in the site.
25 COMMISSIONER HUESO« So, under of the staff's
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recommended modifications, now where it says, under 1.1 on 1
we have to come up with a determination on the acres, and on
No. 2 in conformity with Exhibit 2 -- and we will get to that
a little bit later -- and in No. 3 it says when the 60 days
of the Commission's approval of the modified plan, Poseidon
shall submit for Executive Director's review an approval and
review -- excuse me -- of a revised plan that includes these
modifications.
So, that is not necessarily --- you are asking for
24 months, as opposed to 60 days? does that condition apply
to that?
MR. ZBUR: I didn't think we had any disagreement
with the staff on the timing of when the CDP had to come
back.
ENVIRONMENTAL SPECIALIST LUSTERt Right, and the
60 days refers to once we decide on a plan this evening, that
Poseidon returns within 60 days, and that incorporates all of
the changes that are made. If we end up with some
conditions, some Poseidon has proposed, and some staff has
proposed, that there is one plan that encapsulates all of
that.
COMMISSIONER HUESO: So, that would be taken care
of by No. 3? there is no disagreement on timing for that?
ENVIRONMENTAL SPECIALIST LUSTER» I don't think
there is any disagreement.
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COMMISSIONER HUESOi Special Condition No. 2, that
refers to Exhibit 2, are there any disagreements on Item No.
2?
ENVIRONMENTAL SPECIALIST LUSTER: Yes, staff's
recommendation in Exhibit 2, those are the conditions that
the Commission required of SONGS. Staff modified some of
those conditions to reflect some updates, and mitigation
approaches, and you know, removed references to SONGS and
Edison and replaced them with Poseidon.
COMMISSIONER HUESO* Why are we referencing SONGS,
specifically, because of their approach to the mitigation?
what you are doing is recommending that exact same approach?
ENVIRONMENTAL SPECIALIST LUSTER: Yes, going back
a ways, over the last several months we have been working
with Poseidon and up until about a month ago, Poseidon's
j proposal was to mitigate at San Dieguito adjacent to the
SONGS restoration site, and they had come up with a very
detailed preliminary plan, showing the number of acres of the
different types of habitat, hydraulic analyses, showing the
change in tidal flows, that sort o£ thing. And, so we were
basing our approach, up until then on consistency with the
adjacent SONGS restoration site. It all changed in the last
month.
We now no longer have that site as the selected
mitigation area, but in consulting with the SONGS scientists,
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1 we believe that the conditions that SONGS was held to would
2 be applicable to Poseidon if they did estuarine restoration
3 somewhere else in the Southern California bite.
4 So, that is how we ended up with proposing the
5 SONGS conditions.
6 COMMISSIONER HUESO: Okay, and what part of those
7 conditions can't you achieve?
8 MR. ZBURj The SONGS conditions?
9 COMMISSIONER HUESO* Yes,
10 MR. ZBUR: I think what you have attached to the
11 motion that we suggested that you make, included many things
12 to respond to the staff's concerns relating to the
-13 inconsistencies within the SONGS plan. I don't think that
14 there are very many, but I am trying to figure out what they
15 are, frankly.
16 I think the only change, really, is with respect
17 to how significant the funding and — you know, the SONGS
18 plan required the funding of a number of scientists, and
19 really very frequent reports back to the Commission about the
20 restoration plan. And, I think our plan, because it is a
21 much smaller restoration effort, did not anticipate imposing
22 that kind of costs, I mean, the number of scientists that
23 would be employed full time with annual reports --workshops,
24 it wasn't even reports -- workshops back to the Commission.
25 So, I think that is the major change that remains
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1 isn't it? plus the phasing and the number of acres.
2 COMMISSIONER HUBSO: Couldn't you propose that as
3 part of your mitigation plan? I mean, tell me here where it
4 is that specific, where it calls out a specific number of
5 scientists, and project management staff, and the other
6 things you alluded to?
7 MR. ZBUR: Well, basically, it is not in our plan.
8 it is in, basically, the old SONGS plan. There is a general
9 recommendation, and a staff recommendation that we make this
10 consistent with the SONGS plan.
11 It is in Section 1.0 Administration, and 2.0
12 Budget and Work Program. There are differences between the
13. SONGS approach, which required --
14 EXECUTIVE DIRECTOR DOUGLAS: Mr. Chairman, if I
15 may, I think this is going to be virtually impossible for us
16 to work through tonight.
17 COMMISSIONER HDESO: I agree, I mean --
18 EXECUTIVE DIRECTOR DOUGLAS: I think, if you would
19 just work on major issues --
20 COMMISSIONER HUESOj Exactly.
21 EXECUTIVE DIRECTOR DOUGLAS: -- and then ask us to
22 work with Poseidon, in terms of how we implement it, I think
23 that is what everybody is looking to at the end of the day.
24 YOU know what our recommendations are on the
25 points of contention. If you go with our recommendation on
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1 acreage, fine, we will work through what the nature of the
2 plan will have to be. If you go through each one of these,
3 at least you will be able to act on the plan tonight, and we
4 then come back and work through some of the details of what
5 exactly has to be in the plan, relative to whether or not it
6 is exactly tracking with the SONGS approach, or not.
7 But, that is something that we can work out. You
8 have to decide the fundamental questions here, and if we have
9 a dispute over any of those other items, we can bring those
10 back to you, too. But, at least, in terms of what you have
11 got before you, and what you have asked us to bring to you,
12 was something that you could act on today that would lead to
13 the issuance of the permit, and we were trying to do that.
14 i think the best way for you to go through it is
15 to address the issues in contention.
16 MR. ZBURj I think we would be comfortable in
17 working out the issues with the staff, in terms of consistent
18 with the SONGS, as they really are not that different.
19 : I think the one thing we would ask that the
20 Commission consider as part of the motion is that the detail
21 with respect to the budget is something that we could work
22 out with the staff, and potentially that would be -- the
23 budget, in terms of how much we have to spend could be
24 determined at the time the CDP comes forward.
25 COMMISSIONER HUESO: And, would you like a
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specific acreage amount to be decided today? or could that be
done through, your discusBions with the applicant?
EXECUTIVE DIRECTOR DOUGLAS: I think that is
pretty fundamental. I get the sense, from talking with them,
that that is what they want you to decide, and we would like
that guidance, too.
COMMISSIONER HUBSO: Well, I am going to propose
then, a --
CHAIR KRUER: Well, you have prefaced your --
COMMISSIONER HUESO: Okay.
COMMISSIONER LOWENTHAL: [ Inaudible ]
COMMISSIONER POTTER: Mr. Chair, if I might, I am
prepared to move through these items in an amending form, and
then we can give direction accordingly.
CHAIR KRUER: Well, just a --
Yes, go ahead, sir.
COMMISSIONER LOWENTHAL: [ Inaudible ]
COMMISSIONER POTTER: Unless there is the desire
to belabor this kind of conversation, anyway.
CHAIR KRUER: Commissioner Lowenthal, you don't
have a problem with Commissioner Potter going?
COMMISSIONER LOWENTHAL: No.
[ MOTION ]
CHAIR KRUER: Okay, thank you.
COMMISSIONER POTTER: Okay, I offer an amending
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motion that the restoration acreage be 55.4 acres.
2 I need a "second" and then I will speak to it,
3 briefly.
4 COMMISSIONER HUESO« I'll second it.
5 CHAIR KRUER: It has been moved by Commissioner
6 Potter, seconded by Commissioner Hueso.
7 COMMISSIONER POTTERi My concern is that wetland
8 restoration, I am compelled by the testimony by staff that
9 the higher percentage of success is with the 55 or 68 number.
10 That said, I also am concerned that this deal of like-kind
11 restoration, that they not get credit for a restoration
12 project that is not similar to this wetland.
13 The attachment that is here, Exhibit A, it does go
14 through a fairly involved criteria, with minimum standards
15 and objectives. I believe that that incorporated with the
16 increased acreage would get us to a successful wetland
17 mitigation project. That is my logic.
18 CHAIR KRUER: Okay, and the "seconder"
19 Commissioner Hueso, no question, please. Do you want to
20 speak to it?
21 COMMISSIONER HUESOt'. No.
22 CHAIR KRUBRi Okay, any other Commissioners?
23 Yes, Commissioner Shallenberger.
COMMISSIONER SHALLENBERGERi Question to the maker
25 of the motion. If it turns out that this doesn't adequately
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1 -- I mean, are there any performance standards that you are
2 proposing to put in so that we know whether or not at the end
3 of monitoring that 55.4 has, in fact, mitigated it?
4 COMMISSIONER POTTER: I think the CDP that comes
5 in is going to be conditioned for the project, is due in 24
6 months, and is going to have all of those necessary standards
7 as part of that CDP application, that is my belief.
8 COMMISSIONER SHALLENBERGER: My question is which
9 one rules? In other words, if we adopt the 5.4 now, and --
10 COMMISSIONER POTTER: It is 55.4.
11 COMMISSIONER SHALLBNBERGER» -- 55.4, sorry, and
12 right you are, and when we, in 24 months when we get the CDP,
13 and the performance standard show that maybe that doesn't --
14 COMMISSIONER POTTER* It is proposed --
15 EXECUTIVE DIRECTOR DOUGLAS« No, if I may.
16 CHAIR KRUERt Yes, Director Douglas.
17 EXECUTIVE DIRECTOR DOUGLASt The way that I
18 understand this would work is that 55.4 acres is what they
,19 have to restore. There are performance standards that have
20 to be met, and to the extent that those performance standards
21 aren't met, they have to take remedial action, but that
22 doesn't necessarily mean an increase. It means that they
23 have to go back and make the changes that are necessary to
24 make it function to the level that it meets the performance
25 standards. And, that is built into the'—'
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1 COMMISSIONER POTTER: And, specific to that, the
2 5.0 in here, with the wetlands monitoring management
3 remediation, reads monitoring management remediation shall be
4 conducted over the full operating life of Poseidon's
5 desalination facility, which shall be 30 years.
6 So, there is never going to be a lapse of non-
7 monitoring or mitigation.
8 CHAIR KRUERj Okay.
9 Commissioner Wan.
10 COMMISSIONER WAN: Yeah, along the lines of what
11 Commissioner Shallenberger was talking about, you know, I
12 don't have -- I think the problem here is that, as it has
13 been pointed out, we don't really have the plan in front of
14 us. We have the elements here of what will be a plan, and
15 that makes things very difficult and very uncomfortable,
16 because you can say, well, they will come in in 24 months,
17 and they will be required to do 55.4 acres of restoration,
18 and there will be some performance standards, of which I
19 don't know what they are now.
20 There will be monitoring, of which I, essentially,
21 don't know what that monitoring is, and then they will be
22 required to meet these performance standards on these 55.4
23 acres, but what happens if it turns out that they can't? what
24 happens if it turns out that after all is said and done,
25 because at this point, we do not even know where these acres
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1 are going to be located, so it is very difficult to really
2 know if it .is adequate. What happens then? and there is
3 where I am really uncomfortable with what we am doing npw.
4 I was going to talk about the total issue of
5 uncertainty, and whether you use 50 percent uncertainty, or
6 80 percent in the 50 percent, plus mitigation.
7 But, even if you go with the 55.4 it is the
8 uncertainty because we don't have a plan in front of us now.
9 We are putting off the actual plan for 24 months that I don't
10 know how you can do it.
11 CHAIR KRUER: Okay.
12 Commissioner Reilly.
13 COMMISSIONER REILLY» Well, the uncertainty isn't
14 with performance standards or whether they are going to be
15 able to do it. The uncertainty has to do with the impact of
16 their project. And, it is not going to change.
"17 Whatever performance standards we put on their
18 mitigation, for success, is not going to change the analysis
19 or the level of confidence that this Commission needs to be
20 able to set mitigation acreage, so those are two separate'
21 issues, I believe.
22 And, you know, when this, comes back, and you know
23 a couple of us were here for Edison -- little grayer than we
24 were then -- but, we were here, and when this comes back what
25 is going to be before the Commission is adoption of an entire
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1 restoration plan, you know, agreement on baselines, agreement
2 on what performance standards we are going to.use on this,
3 and I am sure we are going to go back to some of the ones we
4 have done before, and take a look at that. We are going to
5 make decision on status reports. We are going to make
6 decision on workshops and what period of time we do them
7 over, and so all of those things will be before us, along
8 with we will have an identification, hopefully, by'then, of
9 the sites that are involved, and but none of that has to do
10 with setting the acreage. The acreage is based on the
11 analysis, and the percentage level of confidence we have
12 based on uncertainties.
13 I don't have a problem with going forward with
14 this.
15 CHAIR KRUBRt Okay, thank you, Commissioner
16 Reilly.
17 EXECUTIVE DIRECTOR DOUGLAS: And, this is the
18 approach that we took in San Onofre.
19 CHAIR KRUERi And, I am going to call for the
20 question.
21 COMMISSIONER HUESO: I do want to include the
22 concept of phasing into -- •
23 COMMISSIONER POTTERi I am going to move each one
24 individually.
25 CHAIR KRUERi Phasing is in there.
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1 Okay, with that, again the maker and seconder are
2 asking for a "Yes" vote on the amending motion.
3 Would the Clerk call the roll.
4 SECRETARY MILLER: Commissioner Blank?
5 - COMMISSIONER BLANK: Yes.
6 SECRETARY MILLER: Commissioner Burke?
7 COMMISSIONER BURKE: Yes.
8 SECRETARY MILLER: Commissioner Lowenthal?
9 COMMISSIONER LOWENTHALi Yes.
10 SECRETARY MILLER: Commissioner Hueso?
11 COMMISSIONER HTTESO: Yes.
12 SECRETARY MILLER: Commissioner Kram?
13 COMMISSIONER KRAM: [ Absent ]
14 SECRETARY MILLER: Commissioner Neely?
15 VICE CHAIR NEELY: Yes.
16 SECRETARY MILLER: Commissioner Potter?
17 COMMISSIONER POTTER: Aye.
18 SECRETARY MILLERs Commissioner Reilly?
19 COMMISSIONER REILLY: Yes.
20 SECRETARY MILLER: Commissioner Shallenberger?
21 COMMISSIONER SHALLENBERGER: No.
22 SECRETARY MILLER: Commissioner Wan?
23 COMMISSIONER WAN: No.
24 SECRETARY MILLER: Commissioner Achadjian?
25 COMMISSIONER ACHADJIAN: Aye.
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1 SECRETARY MILLER: Chairman Kruer?
2 CHAIR KRUERi Yes.
3 SECRETARY MILLER: Nine, two.
4 CHAIR KRUERi Nine, two, the motion passes.
5 Next, on this.
6 COMMISSIONER POTTER: Yes, Mr. Chair --
7 CHAIR KRUERi Yes, Commissioner Potter.
8 [ MOTION ]
9 COMMISSIONER POTTER: --before the tech crew took
10 away the chart of options, and decided it was better to look
11 at us -- okay, there we go.
12 I believe the next issue was the phased
13 implementation, and I am prepared to move the phased
14 implementation approach, that is proposed in the Poseidon
15 recommendation, and if I get a "second" I'll speak to it.
16 COMMISSIONER HUESOi Second.
17 COMMISSIONER POTTER: The original approach was to
18 take the 37.5 and then the balance up to the 42 and phase
19 that. I am under the impression that.they can do the 37 in
20 the 2-year period, so then it leaves, basically, the balance
21 between the 37 and 55, so whatever that is -- and my math
22 says it is 18,4,'so that would be the second phase.
23 And, the details of that is to be worked out by
24 staff. What staff wanted was direction on these items, i(and
25 so for that reason I would throw that out as the approach.
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CHAIR KRTJER: Okay, Commissioner Hueso?
Commissioner Reilly.
COMMISSIONER REILLY: I would be willing to
support that if the Phase 2 had a time certain placed on it.
And, you know, we are talking about bringing it back within 2
years. They are anxious to get this project up and going, I
understand, and in their concern, they may not be able to get
-'- well, they were concerned that they weren't going to be
able to get 42.5 acres, I am assuming they are concerned they
are not going to be able get 55.4 within a 2-year period.
I am willing to let them come back with 37 on a
Phase 1, but from the time of that approval of Phase 1, I
don't think we should let more than 5 years pass before we
require the Phase 2 to come back.
COMMISSIONER POTTERi And, I would include that --
CHAIR KRUERi Is that okay with you, Commissioner
Potter, as the maker of the motion?
COMMISSIONER POTTER* -- in my recommendation.
with you?
CHAIR KRUER: Commissioner Hueso, is that okay
COMMISSIONER HUESOt Yes.
CHAIR KRUERj Okay, is there anyone else who wants
to speak to that amending motion?
Commissioner Lowenthal.
COMMISSIONER LOWENTHAL: So, with the acreage
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1 change to 55.4 what would Phase 2 acreage be?
2 COMMISSIONER POTTERi It would be 18.4.
3 COMMISSIONER LOWENTHAL: So, it will be clearly
4 the difference as what is in the report?
5 COMMISSIONER POTTER: Yes.
6 CHAIR KRUER: Yes, and thank you, Commissioner
7 Lowenthal.
8 EXECUTIVE DIRECTOR DOUGLAS: What I understand the
9 motion to be is that the initial acreage is 37, that has to
10 be done, and then according to their suggestion for phasing,
11 which is when the power plant goes down --
12 COMMISSIONER POTTER: No, that got changed to 5
13 years. -
14 EXECUTIVE DIRECTOR DOUGLAS: Okay, so the second
15 phase comes in when?
16 COMMISSIONER POTTER: Within 5, that is per the
17 Reilly idea.
18 COMMISSIONER REILLY« Five years after your
19 approval on Phase l. ' . , .
20 EXECUTIVE DIRECTOR DOUGLAS« All right, that is
21 more workable, thank you.
22 CHAIR KRUER: Commissioner Wan.
23 COMMISSIONER WAN: I still have a problem with the
24 phasing, although with the time certain, it is a little bit
25 better, because we are going to have a long period of time
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1 where are going to have impacts, and we are not going to have
2 any mitigations for those impacts.
3 And, in part, that is because I don't know when
4 this is going to come on line, relative to these dates, and
5 you have to remember, that if you start with 37 acres 2 years
6 from now,.it takes time to build it, and it takes even more
7 time, quite a few years, before it is actually functioning.
8 So, we are now looking at 2 years before they
9 start, to, probably, you know, 5 or 6 years down the road
10 before we even start to get anything out of the first phase,
11 and if you add some time on it, by the time you get, quote,
12 full mitigation, if you ever do, you are talking about 10
13 years, and you have had all of those impacts you haven't
14 accounted for.
15 And, so pushing this out, remember it takes time
16 for all of this. Pushing it out this way really leaves us
17 with a whole lot of impacts to that ocean without any
18 mitigation.
19 CHAIR KRDERt Commissioner, Reilly.
20 COMMISSIONER REILLYs I don't disagree with what'
21 Commissioner Wan said, but I would point out that SONGS
22 operated for 20 years before we got that mitigation, so and
23 we finally got it, and it is happening, and I think there is
24 a balance here betweem being able to move forward on this
25 project, for the local water needs, and our being able to
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nail down the mitigation that fully mitigates what is going
2 on, in terms of impacts.
3 EXECUTIVE DIRECTOR DOUGLAS: And, I might add that
4 the 5-year component is 5 years from what?
5 COMMISSIONER REILLY: Adoption of Phase 1.
6 EXECUTIVE DIRECTOR DOUGLAS: The permit for Phase
7 1. It may be that they decide, in looking at that, that it
8 is better to do it all at once, and they may, indeed, find an
9 area that is big enough to accommodate the whole thing, so
10 that would be an option open to them.
11 But, at least, this way, it is workable and we
12 don't get into the ambiguity of when does it trigger, and
13 when does it not.
14 CHAIR KRUER: Commissioner Scarborough, then
15 Commissioner Shallenberger.
16 COMMISSIONER SCARBOROUGH! That was -- thank you,
17 Chair, that was part of my question, was it 2 plus 5, or how
18 did. you get to the 5 plus 5, but I also wondered what would
19 be the association, or the relationship between ;the 5 years,
20 versus when the power plant does, potentially, close? I
21 didn't understand why Poseidon had chosen the plant closing,
22 and was wondering if I could enquire with them why that was
23 . chosen, and how it relates to 5?
24 CHAIR KRUER: Okay.
25 MR. ZBURt The reason why we had suggested doing
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the phasing at the plant closing is because, essentially, at
that time we think there will be other kinds of technologies
we can put in place that would reduce the potential impinge-
ment entrainment impacts that we don't have now, because we
have to, basically, rely on the power plant flow, so that is
why we thought that at that point we would have a technology
incentive to avoid additional mitigation by doing it through
avoidance and technology.
So, that is why we prefer doing it at the power
plant closure.
COMMISSIONER SCARBOROUGHi What is the estimated
time of that? time frame?
MR. ZBURs It is Uncertain. I mean, it could be a
few years, or it could be a long time. According to the
methodology, we are fully mitigated in the interim on the 37
acres, under the 50 percent compensated criteria, we would be
fully mitigated, 2.5 times mitigated at the get go, until --
I that is where that 15 percent number came from. We are fully
mitigated until you get. to the power plant only operating 15
percent of the time.
COMMISSIONER REILLY: That is where we got the 7
years.
CHAIR KRUER: Commissioner Shallenberger.
COMMISSIONER SHALLENBERGERi Yes, I would like to
hear from staff. Dr. Raimondi, about what you think about the
-
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phasing? and how workable that is?
MR. RAIMONDI: I am not going to comment about the
motivation for the phasing, but the practicality of it, as we
have had some experience with SONGS.
In the SONGS permit there was language that
allowed there to be restoration, and up to 2 wetland areas.
There was the initial phase where there was the selection of
the wetlands, where restoration could be done, and in the
end, Southern California Edison, and their partners, decided
it was logistically more easily to do it at a single wetland
for all sorts of reasons. It minimized the monitoring, it
minimized the costs associated with the permitting, it
minimized the construction costs, it was just cheaper to do
it.
Another thing about it, and again, it is going to
matter how you decide to do the monitoring, but with SONGS
they are on the hook for working for what they call the full
operating life of the plant.
So with phasing you are going to have two
sequences. You will have the first 37 acres, which will go
for a 30-yearperiod, if you adopt that, and then the second
17 or 16 acres that will be out of phase with that, and will
go longer, so that becomes problematic from a monitoring
standpoint, financially, as well, because you have to carry
the monitoring longer.
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COMMISSIONER SHALLENBERGER: But, it is
problematic to the project proponent, not to us, in terms, I
mean, they could decide to do them all at once.
MR. RAIMONDIi Yes, but there is a stronger issue,
and that is it is way better. It is possible, and I am
sympathetic to them, at this point, about being able to find
the acreage, but it is way better for the system if it is 55
rather than two pieces. You are going to have much more
likelihood of it working, and it is probably going to link
into other restorations, so from an ecological point of view,
bigger is better.
CHAIR KRUERj Right, okay.
COMMISSIONER POTTER: Well, just as the maker, to
that issue. It is a real estate issue. I mean if the
opportunity is out there, and during this period of working
with staff, they realize we would do better to do it in one
fell swoop, fine then come back and tell us that.
I understand the logic behind what you are saying,
but it is going to be more of a property acquisition problem
is my suspicion.
CHAIR KRUER: Okay.
Commissioner Lowenthal, and then we are going to
call for the question, if that is okay with everybody, unless
there is somebody who hasn't spoken yet.
COMMISSIONER LOWENTHALi I wanted to just be clear
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1 on when the second -- I know we have the 5-year time frame,
2 but just from the proponent's presentation there were
3 different triggering mechanisms, so under our new scheme what
4 would actually trigger Phase 2?
5 EXECUTIVE DIRECTOR DOUGLAS: It would be 5 years
6 from the first phase, that is, the 37 acres, which has to
7 come in for a permit within 24 months, as I understand it,
8 right, and then once that permit is issued, that is what I
9 understand, then the 5-year period is triggered.
10 But, I would suggest that the maker of the motion
11 also incorporate in it that if they want to do the entire
12 amount together, that that would be okay, they don't have to
13 wait.
14 COMMISSIONER POTTER: I literally stated that 3
15 minutes ago, but that is my intention, and I think everybody
16 else concurs, that if they come back and can do it great,
17 okay.
18 EXECUTIVE DIRECTOR DOUGLAS: Okay.
19 . CHAIR KRUER:, Okay, and we are going --
20 Ms. Schmeltzer, we are going to call ,for the
21 question. I thought I mentioned.
22 CHIEF COUNSEL SCHMELTZER: I am sorry, I just did
23 want to make sure, on this timing question, I thought I heard
24 the Executive Director say two different things.
25 . There is the provision of coming in for a permit
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1 within 24 months, and it being issued within the 24 months --
2 COMMISSIONER POTTERt Specific to the 37, and if
3 they want to go ahead and try to do more at that time, for
4 economy sake, then fine, they can go to the full 55.4, but
5 they have an option to go ahead and do it in a phase.
6 CHIEF COUNSEL SCHMELTZER: Right, and I understand
7 that, but if they just do the 37 within the first 24 months,
8 that the trigger is not -- the trigger is within 24 months.
9 it is not if the permit takes longer than that to issue.
10 COMMISSIONER POTTER: No.
11 EXECUTIVE DIRECTOR DOUGLAS: No, my understanding
12 was, that they have to come in for a permit within 24 months,
13 and then it depends on what the Commission does. They may
14 have conditions about the issuance of that permit. My
15 understanding was that the 5 years starts from the issuance
16 ! of the permit.
17 COMMISSIONER REILLY: That is correct.
18 COMMISSIONER POTTERt Correct.
•19 CHAIR. KRUER: That is correct, Mr. Douglas, thank
20 you.
21 Yes, Commissioner.
22 COMMISSIONER SCARBOROUGH: I am not sure where you
23 are headed with your phasing in your motions, where does the
24 dredging fit into this?
25 COMMISSIONER POTTER: I was going to that in the
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1 next
2 CHAIR KRUERi We will get to — I think we are
3 going to call the question, here, and then we will get to the
4 other amending, if there are other amending things.
5 Again, the amending motion, the maker and seconder
6 are asking for a "Yes" vote.
7 Would the Clerk call the roll, please.
8 MR. ZBURi Mr. Chair, can I just so there is not a
9 dispute on this, can I just make sure there is clarity on
10 what the timing is on the motion. We are assuming it is 24
11 months --
12 COMMISSIONER POTTER: I am hoping it gets moved
13 sometime tonight.
14 MR. ZBUR: -- 24 months -- well, only because I --
15 24 months to get our application in, which is what we thought
16 it was, and then from the date that the permit is issued, so
17 if it takes 9 months or a year to get the permit approved,
18 from the date the permit is issued, then the 5 years runs,
19 and then J assume that we have to get another permit
20 application in within that 5 years?
21 COMMISSIONER POTTER: That is correct.
22 CHAIR KRUERt Correct.
23 MR. ZBUR: Thank you for that clarification.
24 CHAIR KRUER: Okay, thank you.
25 Would the Clerk call the roll, please.
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1 SECRETARY MILLER: Commissioner Burke?
2 COMMISSIONER BURKEi Yes.
3 SECRETARY MILLER: Commissioner Lowenthal.
4 COMMISSIONER LOWENTHAL: Yes.
5 SECRETARY MILLER: Commissioner Hueso?
6 COMMISSIONER HUESO: Yes.
7 SECRETARY MILLER: Commissioner Kram?
8 COMMISSIONER KRAM: Yes.
9 SECRETARY MILLER: Commissioner Neely?
10 VICE CHAIR NEELY: Yes.
11 SECRETARY MILLER: Commissioner Potter?
12 COMMISSIONER POTTER: Aye.
13 SECRETARY MILLER: Commissioner Reilly?
14 COMMISSIONER REILLY: Yes.
15 SECRETARY MILLER: Commissioner Shallenberger?
16 COMMISSIONER SHALLENBERGER: Yes.
17 SECRETARY MILLER: Commissioner Wan?
18 COMMISSIONER WAN: Yes.
19 SECRETARY MILLER: Commissioner Achadjian?
20 COMMISSIONER ACHADJIAN: Aye.
21 SECRETARY MILLER: Commissioner Blank?
22 COMMISSIONER BLANK: Yes.
23 SECRETARY MILLER: Chairman Kruer?
24 CHAIR KRUER: Yes.
25 SECRETARY MILLER: Unanimous.
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motions?
CHAIR KRUERt Okay, the amending motion passes.
Commissioner Potter, do you have anymore amending
COMMISSIONER POTTERi I am going to actually ask
for staff clarification on these last two items. I think
they blend together.
Staff is saying that new technologies not appropo,
or in this consideration, and the applicant is saying they
would like the ability to utilize new technology.
And, the other one is this dredging credits, can
you explain what the conflicts are here?
EXECUTIVE DIRECTOR DOUGLASj What I understand,
relative to the new technology, that is that if they can come
up the way that they had originally proposed it, if they come
up with technology that shows that they can filter the water
and avoid entrainment impacts, because of new technology,
that there ought to be some adjustment in the mitigation
requirement.
It seems to me that one way you could address
that, and you know, we have some sympathy for that position.
Obviously, if we could avoid the impacts altogether, that
would be the best. But, if in that 5-year period, for the
second phase, they can come up with technology that shows
that they are not having impacts, you could then factor that
into whether or not it necessary to add that. But, take that
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1 into account in the permit that would be applied for in the
2 Phase 2.
3 COMMISSIONER POTTER: Okay, with that' said, I move
4 that we amend to allow to encourage the use of new
5 technologies --
6 CHAIR KRUER: Commissioner Potter.
7 COMMISSIONER POTTER: He spoke, I didn't preface.
8 CHAIR KRTJSRi Let me, just to be clear on it. I
9 am not sure about that.
10 Let me just go to Vice Chair Neely for one second,
11 and then I am coming right back to you for your motion.
12 There is a question of you prefacing.
13 COMMISSIONER POTTER: I would like to know where
14 in the law you can't speak anyway. I think that is something
15 that Rusty Arias made up from his stay in the state assembly.
16 VICE CHAIR NEELY: Mr. Chairman, I don't have any
17 questions at this time.
18 CHAIR KRUER: Okay, Commissioner Potter.
19 [ MOTION ]
20 COMMISSIONER POTTER: All right, I'll move to
21 amend, and incorporate in the motion that we encourage the
22 use of new technologies under the framework that was
23 expressed by the Executive Director.
24 COMMISSIONER HUESOi I'll second it.
25 COMMISSIONER POTTER: With the intent of lessening
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the impact.
CHAIR KRUKR: Just a second.
Commissioner Potter has made the motion, and
recommending a "Yes" vote, and Commissioner Hueso seconded
that motion.
Commissioner Potter, would you like to speak to
that motion?
COMMISSIONER POTTER: No, I think Mr. Douglas and
I worked pretty well on that item. That was exactly what I
wanted him to say, so thank you.
COMMISSIONER REILLY: Mr. Chairman.
CHAIR KRUER: That is why it was prefaced.
COMMISSIONER REILLYi Let me ask.
Staff is going to be incorporating the concept of
the 2-year application, and the 5 years afterwards, is staff
willing, in discussing that 5 years, willing to incorporate
language that suggests that they look into new technology to
lessen impacts, and that as part of thatA5-year hearing, if
they are able to do that, could be a review of mitigation
requirement? "
EXECUTIVE DIRECTOR DOUGLASi Well, that is what I
discussed, and I think that is what the motion would do, and
I we don't have a problem with that.
COMMISSIONER REILLYt Are you willing to just
incorporate that into the staff?
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1 EXECUTIVE DIRECTOR DOUGLASt I would rather have
2 the Commission do it,
3 COMMISSIONER REILLY: That's fine, okay.
4 CHAIR KRUERt Commissioner Wan.
5 COMMISSIONER WAN» I just have a question on this
6 one, and that is, I am assuming it is always okay, if you can
7 avoid the entrainment, that is the best, because the fact is
8 -- I don't care what you say -- no matter what mitigation you
Q perform, no matter how you try to compensate for it, you
10 never get full compensation. So, the best thing is always
11 avoidance, so I am certainly not opposed to that.
12 The question I want to make sure is that when they
13 come back for the review, that we are talking about a review
14 that requires some kind of proof, and not just a statement,
15 «we want to use it." That there is going to be some real
16 scientific analysis done to make sure that that is the case,
17 because up until now there doesn't seem to be anything that
18 has been developed that can avoid the entrainment, and we
19 went through that in great and painful detail when we did
20 SONGS.
21 So, I am not aware of it, and I just want to make
22 sure that we know how this is- going to be handled.
23 EXECUTIVE DIRECTOR DOUGLAS» Obviously, the proof
24 would have to be that there are reductions in impacts, or
25 elimination of impacts, in order for us to consider --if
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"I this motion passes --a reduction of the Phase 2 mitigation
2 requirement.
3 But, this leaves that open, and it is up to them
4 to try to find that technology, and again, if they decide
5 right up front, we are not going to worry about that, we are
6 just going to do the 55.4 acres, then it becomes a moot
7 point.
8 CHAIR KRUKRt Okay.
9 EXECUTIVE DIRECTOR DOUGLAS: But, it leaves open
10 that opportunity.
11 CHAIR KRUERi Okay, I am going to call on the
12 amending motion.
13 Priscilla's got her pen up, and we'll need a brief
14 break.
15 Call the roll, please, on the amending motion, on
16 the technology.
17 SECRETARY MILLERi Commissioner Lowenthal?
18 COMMISSIONER LOWENTHALt [ inaudible ]
19 VICE CHAIR NEELY: Speak up, she can't >ear you.
20 COMMISSIONER LOWENTHAL» Yes.
21 SECRETARY MILLER: Commissioner Hueso?
22 COMMISSIONER HUESO: Yes.
23 SECRETARY MILLER: Commissioner Kram?
24 COMMISSIONER KRAM: Yes.
25 SECRETARY MILLERi Commissioner Neely?
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1 VICE CHAIR NEELY: Yes.
2 SECRETARY MILLER: Commissioner Potter,?
3 COMMISSIONER POTTERj Aye.
4 SECRETARY MILLERj Commissioner Reilly?
5 COMMISSIONER REILLY: Yes.
6 SECRETARY MILLER: Commissioner Shallenberger.
7 COMMISSIONER SHALLENBERGER: Yes.
8 SECRETARY MILLER: Commissioner Wan?
9 COMMISSIONER WAN: Yes.
10 SECRETARY MILLERi Commissioner Achadjian?
11 COMMISSIONER ACHADJIAN: Aye.
12 SECRETARY MILLER: Commissioner Blank?
13 COMMISSIONER BLANK: Yes.
14 SECRETARY MILLER: Commissioner Burke?
15 COMMISSIONER BURKE: Yes.
16 SECRETARY MILLER: Chairman Kruer?
17 CHAIR KRUER: Yes.
18 SECRETARY MILLER: Unanimous.
19 CHAIR KRUER: The amending motiqn passes.
20 Commissioner Potter, any more?
21 [ MOTION ]
22 COMMISSIONER POTTER: I am going to move that the
23 dredging restoration credit be at the Commission's
24 discretion, and if I get a "second" I'll speak to it.
25 COMMISSIONER HUESO: Second.
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1 CHAIR KRTJERx Moved by Commissioner Potter,
2 seconded by Commissioner Hueso.
3 Commissioner Potter, would you like to speak to
4 your motion?
5 COMMISSIONER POTTER: I think my concern is, and
6 this is sort of an open ended question, that whether they can
7 even get ownership of the dredging operations, and can
8 incorporate that in, remains pretty much unanswered, and may
9 remain there for awhile.
10 So, if there does seem to be a dredging plan that
11 comes forward, and we can get something tangible there about
12 how is going to be operated? who is going to do it? when it
13 is going to occur? all of those ingredients, then it is up to
14 the Commission to decide if that is something that we want to
15 entertain at that time. That is my thought behind it.
16 CHAIR KRTTER: Okay, Commissioner Potter or
17 Commissioner Hueso, anything else?
18 Anyone else? Commissioner Wan.
19 COMMISSIONER WANi Just very quickly, if you are
20 going to leave this open for the discretion -- and I think I
21 heard Commissioner Potter say this, but I just want to make
22 sure --there is one thing, there is a big difference between
23 dredging connected with maintaining the project, and dredging
24 for mitigation, because as in SONGS it is required for the
25 mitigation, and as long as the dredging credit is understood,
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1 it is for whatever future project they are going to be
2 dredging for, not for the desal plant, then I would find that
3 acceptable.
4 COMMISSIONER POTTERi That is .--.
5 COMMISSIONER WANt You understand the distinction?
6 CHAIR KRUERt Commissioner Reilly.
7 COMMISSIONER REILLYt If I understood the staff
8 correctly, earlier, your statement was if dredging becomes
9 part of the project, and becomes a reality, as opposed to a
10 possibility, then staff would do a full analysis of that
11 activity, at that time, both in terms of impacts and in terms
12 of benefits, and be prepared to make recommendations relative
13 to whether additional conditions had to be added, or benefits
14 would be accorded to that.
15 i guess, I would prefer to wait to see what
16 happens with that issue, before we pre-judge it, that's all.
17 EXECUTIVE DIRECTOR DOUGLAS* That is the way we
18 understand it, and this motion would just say that they could
19 come in for credit for dredging, but they would have to prove
20 that it warrants it, so that is fine with us.
21 CHAIR KRUERt Okay.
22 Call for the question.
23 Clerk, would you call the roll, please. They are
24 asking for a "Yes" vote, on the amending motion.
25 SECRETARY MILLER* Commissioner Hueso?
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1 ' COMMISSIONER HUESOi Yes.
2 SECRETARY MILLER: Commissioner Kram?
3 COMMISSIONER KRAM: Yes.
4 SECRETARY MILLER: Commissioner Neely?
5 VICE CHAIR NEELY: Yes.
6 SECRETARY MILLERi Commissioner Potter?
7 COMMISSIONER POTTER: Aye.
8 SECRETARY MILLER: Commissioner Reilly?
9 COMMISSIONER REILLY: No.
10 SECRETARY MILLER: Commissioner Shallenberger?
11 COMMISSIONER SHALLENBERGER: Yes.
12 SECRETARY MILLER: Commissioner Wan?
13 COMMISSIONER WAN: No.
14 SECRETARY MILLER: Commissioner Achadjian?
15 COMMISSIONER ACHADJIAN: Aye.
16 SECRETARY MILLER: Commissioner Blank?
17 COMMISSIONER BLANK: Aye.
18 SECRETARY MILLER: Commissioner Burke?
19 COMMISSIONER BURKE: No.
20 SECRETARY MILLER: No?
21 COMMISSIONER BURKE: [ Inaudible ]
22 SECRETARY MILLER: Commissioner Lowenthal?
23 COMMISSIONER LOWENTHAL: Yes.
24 SECRETARY MILLER: Chairman Kruer?
25 CHAIR KRUER: Yes.
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1 SECRETARY MILLER: Nine, three.
2 CHAIR KRUERt Nine, three, the amending motion
3 passes.
4 And, now we will need back to the main motion,
5 okay. Back to the motion, and again the maker and the
6 seconder are asking for a "Yes" vote.
7 Commissioner Wan has her hand up.
8 COMMISSIONER WAN» Just on the main motion, this
9 is not an amending motion, and I just want a quick
10 explanation as to why I am going to vote "No" and the reason
11 I am going to vote "No" is that I don't believe, if you look
12 at this whole thing, that we really are getting the kind of
13 assurances we need that this is real mitigation, and the
14 reason is -- and that this is adequate mitigation -- this is
15 going to be doing, this facility, once it becomes a stand
16 alone facility, essentially, what once-through cooling does,
17 and once-through cooling has been found by the courts to be a
18 violation of the Porter Cologne Act, and I don't see how -- I
19 don't even know why you bother to phase out the power, plant,
20 if you are just going to substitute something that is going
21 to do exactly the same thing. It is not acceptable, because
22 it is not protective of the ocean.
23 Our oceans are under horrific assault, and this
24 | kind of thing is simply not appropriate, particularly, when
25 we get a plan that is -- we deferred our decision, we passed
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1 the power plant, deferred the decision on the mitigation, and
2 now we are again with all of the things that we had in the
3 amending motions, deferring the real plan for another 2
4 years.
5 We will not see a full plan, and I don't think you
6 can approve a mitigation without the appropriate plan, and if
7 I had a full plan in front of me, it might be different, but
8 I don't, and without that I don't have the confidence to know
9 just the real extent of the mitigation that is going to take
10 place here.
11 And, let me, again, say mitigations here, as
12 elsewhere, does not give you complete compensation.
13 CHAIR KRUER: Okay, would the Clerk call .the roll
14 on the main motion, please, as amended by the Commission.
15 SECRETARY MILLER: Commissioner Kram?
16 COMMISSIONER KRAM: Yes.
17 SECRETARY MILLER: Commissioner Neely?
18 VICE CHAIR NEELY: Yes.
19 • . ..; SECRETARY MILLER i Commissioner Pot.ter?
20 . COMMISSIONER POTTER: Aye.
21 SECRETARY MILLER: Commissioner Reilly?
22 COMMISSIONER REILLY: Yes.
23 SECRETARY MILLER: Commissioner Shallenberger?
24 COMMISSIONER SHALLENBERGER: Yes.
25 SECRETARY MILLER: Commissioner Wan?
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1 COMMISSIONER WAN) No.
2 SECRETARY MILLER: Commissioner Achadjian?
3 COMMISSIONER ACHADJIAN: Aye.
4 SECRETARY MILLER* Commissioner Blank?
5 COMMISSIONER BLANK: Yes.
6 SECRETARY MILLER: Commissioner Burke?
7 COMMISSIONER BURKE: Yes.
8 SECRETARY MILLERt Commissioner Lowenthal?
9 COMMISSIONER LOWENTHAL: Yes.
10 SECRETARY MILLERj Commissioner Hueso?
11 COMMISSIONER HUESO: Yes.
12 SECRETARY MILLER: Chairman Kruer?
13 CHAIR KRUER: Yes.
14 SECRETARY MILLERi Eleven, one.
15 CHAIR KRUER: Okay, the Commission hereby approves
16 the main motion, as amended by the Commission.
17 We will take a break.
18
19
20 [ Whereupon the hearing concluded at 7:35 p.m. ]
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