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HomeMy WebLinkAbout2009-09-22; City Council; 19973 Part 2; Desalinationomx POSEIDON RESOURCES CORPORATION'S RESPONSE TO COAST LAW GROUP SEPTEMBER 15, 2009 COMMENT LETTER TO CARLSBAD CITY COUNCIL Agenda Item No. 9 - Desalination Project Changes September 22,2009 TAB 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. DOCUMENT Index of Administrative Record Documents for Regional Water Quality Control Board Order R9-2009-003 8 CD-ROM of Administrative Record Documents Expert Statement of David L. Mayer dated September 22, 2009 regarding Marine Life Impacts Letter from Steve Tedesco of Tetra Tech to Scott Donnell dated September 22, 2009 regarding Carlsbad Desalination Facility Conveyance Pipeline Letter to California Coastal Commission from Mary D. Nichols at Air Resources Board dated August 5, 2008 Addendum to E-06-013 Revised Condition Compliance Findings for proposed Energy Minimization and Greenhouse Gas Reduction Plan - Poseidon Resources (Channelside) LLC - Carlsbad Desalination Facility Superior Court of California Minute Order dated December 05, 2008 Petition for Writ of Mandate between Southern California Watershed Alliance, et al. v. City of Carlsbad with Poseidon Resources as Real Parties in Interest. Letters from Participating Water Districts Project Endorsements Map per Response No. 1 8 SD\695151.2 PETITIONS OF SURFRIDER FOUNDATION AND SAN DIEGO COASTKEEPER (WASTE DISCHARGE REQUIREMENTS ORDER R9-2009-0038 [NPDES NO. CA0109223] AMENDING ORDER NO. R9-2006-0065 FOR THE POSEIDON RESOURCES CORPORATION, CARLSBAD DESALINATION PROJECT DISCHARGE TO THE PACIFIC OCEAN VIA THE ENCINA POWER STATION DISCHARGE CHANNEL) SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. . 1. 2. 3. 4. 5. 6. Date/Type 8/16/2006 Permit 8/9/2006 9/26/2007 Report 5/7/2008 Petition 8/1 9/2008 Letter Date Received by San Diego Water Board if applicable From San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Coastkeeper Coast Law Group, LLC Surfrider Foundation State Water Resources Control To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board State Water Resources Control Board Surfrider Foundation Description ''•>*: Order No. R9-2006-0065, NPDES No. CA1 09223 Poseidon Resources Corporation Administrative Record for Adoption of Resolution No. R9-2008-0039 Comments on Tentative Order No. R9- 2006-0065 NPDES No. CA01092231 Assessment of Impact of Desalination Plant and Feasibility of Closed-Cycle Wet Cooling Retrofit at Huntington Beach Generating Station2 Petition Requesting State Water Board Review of Regional Board Order No. R9- 2008-0039 (SWRCB/OCC File No. A-1931) Response to 5/7/2008 Petition for Review of Order No. R9-2008-0039 dismissing 1 After the administrative record for Adoption of Resolution R9-2008-0039 was prepared in the matter of Surfrider Foundation et al. v. San Diego Regional Water Quality Control Bord, San Diego County Superior Court no. 37-2008-00091983-CU-WM-CTL, (see Document 2), San Diego Coastkeeper and Surfrider Foundation asserted that Documents 3 and 4 listed here were omitted from that record. While the San Diego Water Board does not have a record of receiving either of these documents in the proceeding to adopt Resolution No. R9-2008-0039, they are included here for completeness. 2Seefn. 1. Page 1 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 7. 8. 9. 10. 11. 12. Date/Type 11/14/2008 Report 12/2/2008 12/4/2008 12/9/2008 12/19/2008 1/2/2009 Public Notice Date Received by San Diego Water Board if applicable 11/18/2008 12/8/2008 12/9/2008 From Board Poseidon Resources Corporation San Diego Regional Water Quality Control Board State Water Resources Control Board Poseidon Resources Corporation San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board To San Diego Regional Water Quality Control Board Poseidon Resources Corporation San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board State Water Resources Control Board Description / ; petition in SWRCB/OCC File No. A-1931 for failure to raise substantial issues. Marine Life Mitigation Plan Review of Proposed Poseidon Resources Marine Life Mitigation Plan Resolution No. R9-2008-0039, Conditional Approval of Revised Flow, Entrainment and Impingement Minimization Plan for Poseidon Resources Corporation Carlsbad Desalination Project, San Diego Regional Water Quality Control Board: Review of Proposed Marine Life Mitigation Plan Letter in response to Regional Board 12/2/2008 review of Proposed Marine Life Mitigation Plan Response to 1 2/4/2008 Letter Corrected Notice of Public Hearing California Regional Water Quality Control Board, San Diego Region re: February 11, 2009 Hearing Page 2 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 13. 14. 15. 16. 17. 18. Date/Type 1/1 6/2009 Letter 1/1 6/2009 Email 1/1 9/2009 Letter 1/1 9/2009 Letter 1/1 9/2009 Letter 1/1 9/2009 Letter Date Received by San Diego Water Board if applicable 1/16/2009 1/16/2009 1/22/2009 1/22/2009 1/23/2009 1/23/2009 From San Diego Coastkeeper Tom Luster, California Coastal Commission Hubbs-Sea World Research Institute Industrial Environmental Association Carlsbad Chamber of Commerce City of Carlsbad, Office of the Mayor To San Diego Regional Water Quality Control Board Brian Kelley, San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Letter regarding Regional Board's Closed Session of Ongoing Litigation, Surfrider Foundation v. San Diego Regional Board Transmits a copy of the Coastal Commission's adopted findings for the Carlsbad Desalination Project and a link to the Commission's approval of the Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Page 3 of 44 C I SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 19. 20. 21. 22. 23. 24. Date/Type 1/1 9/2009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/21/2009 Letter Date Received by San Diego Water Board if applicable 1/23/2009 1/21/2009 1/23/2009 1/23/2009 1/23/2009 1/23/2009 From San Diego County Building & Construction Trades Council, AFL-CIO Latham & Watkins, LLP Sweetwater Authority San Diego County Taxpayers Association The Flower Fields at Carlsbad Ranch Santa Fe Irrigation District To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description ;: r ? * Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Page 4 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 25. 26. 27. 28. 29. 30. Date/Type 1/2 1/2009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/2 1/2009 Letter 1/21/2009 Letter Date Received by San Diego Water Board if applicable 1/23/2009 1/26/2009 1/26/2009 1/21/2009 1/27/2009 1/22/2009 From Olivenhain Municipal Water District Councilmember Benjamin Hueso, San Diego City Council President Assemblymember Martin Garrick, Assembly, California Legislature, 74th District Senator Christine Kehoe, California State Senate, 39th District Don Christiansen, Carlsbad Resident Vallecitos Water District To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description 5 Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 11, 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Page 5 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 31. 32. 33. 34. 35. 36. 37. Date/Type 1/21 72009 Letter 1/21/2009 Letter 1/21/2009 Letter 1/22/2009 Letter 1/22/2009 Letter 1/23/2009 Public Notice 1/23/2009 Letter Date Received by San Diego Water Board if applicable 1/28/2009 1/22/2009 1/21/2009 1/27/2009 1/27/2009 1/27/2009 From Agua Hedionda Lagoon Foundation San Diego North Economic Development Council Farm Bureau, San Diego County Senator Mark Wyland, California State Senate, 38th District Robert Simmons, Counselor-at-Law San Diego Regional Water Quality Control Board San Diego Regional Chamber of Jo- San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Description • •' • - .•/>• ;; ~ Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Agenda Notice for February 1 1 , 2009 San Diego Regional Board Meeting Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to Page 6 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 38. 39. 40. 41. 42. Date/Type 1/23/2009 Letter 1/23/2009 Letter 1/23/2009 Email 1/26/2009 Letter 1/26/2009 Letter Date Received by San Diego Water Board if applicable 1/27/2009 1/27/2009 1/28/2009 1/26/2009 From Commerce Valley Center Water District Council Member Julianne Nygaard, Retired, City of Carlsbad Catherine Hagan, San Diego Regional Water Quality Control Board San Diego County Water Authority Poseidon Resources To .* |>. '-^ Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Christopher Garrett, Latham & Watkins, LLP San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description ; 4^ ~? - ' ± A s- ' ""',** A consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Acknowledgement of and initial response to Latham & Watkins January 21 comment letter regarding the Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Request that the audio tape and partial minutes of the November 12, 2008 Regional Board Meeting be admitted to the record Page 7 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 43. 44. 45. 46. 47. Date/Type 1/26/2009 Letter 1/26/2009 Report 1/26/2009 Report 1/26/2009 Report 1/26/2009 Letter and Appendices Date Received by San Diego Water Board if applicable 1/26/2009 1/26/2009 1/26/2009 1/26/2009 1/26/2009 From Latham & Watkins, LLP Poseidon Resources Corporation, David Mayer, Ph.D., Tenera Environmental Poseidon Resources Corporation, Chris Nordby, Nordby Biological Consulting Poseidon Resources Corporation, Scott A. Jenkins, Ph.D, Scripps Institution of Oceanography Latham & Watkins, LLP on behalf of Poseidon Resources Corporation To - ' San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description ;„', Statement of Procedural Objections and Request for Alternate Procedures at February 1 1 , 2009 Board Meeting Expert Opinion on Poseidon's Marine Life Mitigation Plan Expert Opinion on Poseidon's Marine Life Mitigation Plan Expert Opinion on Poseidon's Impingement and Entrainment Assessment Comment Letter with appendices regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Volume 1 November 14, 2009 Poseidon Resources Page 8 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description Marine Life Mitigation Plan PowerPoint Presentation Prepared by Dr. Raimondi: Review of Carlsbad Seawater Desalinization Project (CDP) Clean Water Act Section 31 6(b) Impingement Mortality and Entrainment Characterization Study. Cabrillo Power 1 LLC, Encina Power Station. January 2008. Tenera Environmental. February 19, 2008 Regional Board Comment Letter on 2/12/07 Revised Plan March 6, 2008 Revised Flow, Entrainment. and Impingement Minimization Plan March 7, 2008 Poseidon Response to February 1 9, 2008 Regional Board Comments March 7, 2008 Email from Eric Becker to Tom Luster;wpaznokas@dfg.ca.gov; Sharon_Taylor@fws.gov; Peter MacLaggan: bruce@sdcoastkeeper.org: Page 9 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description <i gabe@sdcoastkeeper.org; Judy Brown;rwilson@surfrider.org, copied to John Odermatt; Mike McCann. April 2, 2008 Email from S. Townsend to various people, including E Becker. April 4, 2008 RWQCB Technical Report, Review of Carlsbad Seawater Desalination Plant Flow, Entrainment and Impingement Minimization Plan April 9, 2008 Reporters Transcript of Proceedings. California Regional Water Quality Control Board, San Diego Region, Partial Transcript of Proceedings, Public Hearing Volume 2 April 10, 2008 Email from P. MacLaggan to J Robertus. Subject: Re: Update on Attendees for May 1 -2 Meetings April 1 0, 2008 Email from P. MacLaggan to J. Robertus. Subject: May 1 Desal Page 10 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description ; Mitigation Meeting. April 1 7, 2008 Email from C. Clemente to P. MacLaggan. Subject: Poseidon's GDP Plan - questions regarding IM&E Assessments April 22, 2008 Email from J. Steinbeck to P. Raimondi April 24, 2008 Email from J. Steinbeck to D Mayer April 30, 2008 Email from P. MacLaggan to C Clemente. copied to Brian Kelley; David Barker: Deborah Woodward; Mike McCann. Subject: Re: Poseidon's GDP Plan - questions regarding IM&E assessments July 8, 2008 Email from S. Townsend to various people, including J. Robertus Subject: Poseidon' Marine Life Mitigation Plan August 5, 2008 Email from G Newton to J. Brown Subject: Fwd: RE: Coordination re: Page 11 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date ft Received by San Diego Water Board if applicable « :From To ' Description v ,,? Marine Life Mitigation Plan, Resolution No. R9-2008-0039 April 2007 Updated 2005 Urban Water Management Plan. San Diego County Water Authority. December 18, 2001 National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities, Final Rule. 66 Fed. Reg 65256 July 9, 2004 National Pollutant Discharge Elimination System - Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities, Final Rule. 69 Fed. Reg. 41576 July 9, 2007 National Pollutant Discharge Elimination System - Suspension of Regulations Establishing Requirements for Cooling Water Intake Structures at Phase II Existing Facilities. 72 Fed. Reg. 37107 40C.FR 125.84 40C.FR 125.94 Page 13 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 48. 49. 50. 51. 52. 53. Date/Type 1/26/2009 Letter and Enclosures 1/26/2009 Letter 1/27/2009 Letter 1/29/2009 Letter 1/29/2009 Report (Dated for 2/1 1/2009) EOSR 1/30/2009 Letter Date Received by San Diego Water Board if applicable 1/26/2009 1/26/2009 1/27/2009 2/2/2009 From Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation Poseidon Resources Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board California Environmental Protection Agency To .- - / San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Latham & Watkins, LLP San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description? Cover letter with the following enclosures: 1 ) Declaration of Peter MacLaggan 2) Declaration of Jessica H. Jones 3) January 26, 2009 Letter from Peter MacLaggan to members of the Regional Board Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Letter for the removal of documents erroneously attached to Exhibit 1 6 of Peter MacLaggan's statement contained in Latham & Watkins 1/26/2009 submittal Response to Latham & Watkins 1/21/2009 and 1/26/2009 letters regarding procedural issues raised concerning the February 11, 2009 Regional Board Agenda Notice Executive Officer Summary Report for Item 6 of the Regional Board's February 11, 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Page 14 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 54. 55. 56. 57. 58. 59. Date/Type 2/2/2009 Letter 2/2/2009 Letter 2/2/2009 Letter 2/2/2009 Letter 2/2/2009 Letter and Enclosure 2/2/2009 Letter and Enclosures Date Received by San Diego Water Board if applicable 2/2/2009 2/5/2009 2/2/2009 2/2/2009 2/2/2009 2/2/2009 From California Department of Food & Agriculture Governor Arnold Schwarzenegger, State of California California Natural Resources Agency California Department of Fish and Game Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation Poseidon Resources To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Description Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 11 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Response to Staff Claim That Coastal Commission's Approved Inter-Agency MLMP Fails To Contain A Specific Mitigation Proposal Letter transmitting 3 Volumes for the Regional Board's consideration on Item No. Page 15 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From.To Board Description 6 at their February 1 1 , 2009 meeting Volume 1 Poseidon Summary Chart and Detailed Response to Executive Officer Summary Report Released January 29, 2009 Poseidon Request for Regional Board Action Re: Conduct of Hearing for Item No. 6 Poseidon Proposed Resolution For Adoption By Regional Board On February 1 1th Approving Submitted Marine Life Mitigation Plan, Finding Compliance With Resolution No. R9- 2008-0039, and Compliance With Resolution R9-2006-0065, and Making Appropriate Findings Volume 2 Poseidon's Response to Staffs "Overarching Concern" Re: The Inclusion of a "Specific Mitigation Alternative" in the Marine Life Mitigation Plan Supplemental Statement and Evidence Presented by Chris Nordby Re: Page 16 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description Impingement Issues Summary Charts of Staff Issues and Poseidon Responses to Regional Board Staff Review Letters and Technical Report of February 19, 2008 and April 4, 2008 Offer of Proof Regarding Testimony and Evidence From Poseidon Coastal Commission Recommended Revised Condition Compliance Findings for CDP No. E-06-013- Poseidon Resources (Channelside), LLC"; Special Condition 8: Submittal of a Marine Life Mitigation Plan, adopted December 10, 2008 Volume 3 Annotated Index of Authority and Technical Studies and Scientific Studies Supporting Board Decision National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities, 66 Fed. Reg. 65256, 65274 (December 18, 2001) (to be codified at 40 C.F.R. pts. 9,122, 123, 124, 125) (2009) Page 17 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From*To, • . ?.? -Description » ' * EPA Requirements Applicable to Cooling Water Intake Structures for New Facilities Under Section 316(B) of the Act, 40 C.F.R. §§125.84(b)(2), 125.84(c)(1)(2009) EPA Requirements Applicable to Cooling Water Intake Structures for New Facilities Under Section 316(B) of the Act, 40 C.F.R.§§ 125.94(a)(1)(ii) (2009) John Boreman et al., Impacts of Power Plant Intake Velocities on Fish, in TOPICAL BRIEFS: FISH AND WILDLIFE RESOURCES AND ELECTRIC POWER GENERATION, NO. 1 (Power Plant Project, Office of Biological Services, Fish and Wildlife Service, U.S. Department of the Interior) (1977) A.G. Christiansen et al., Reviewing Environmental Impact Statements- Power Plant Cooling Systems, Engineering Aspects (National Thermal Pollution Research Program, Pacific Northwest Environmental Research Laboratory, EPA- 660/2-73-016) (1973) John C. Sonnichsen, Jr. et al, A Review of Thermal Power Plant Intake Structure Designs and Related Environmental Page 18 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description - •<, •.,*»$''""- ' '&*'<ij?"t - Considerations (Hanford Engineering Development Laboratory, HEDL-TME 73- 24, UC-12)(1973) A.W.H. Turnpenny, The Behavioral Basis of Fish Exclusion from Coastal Power Station Cooling Water Intakes, in RESEARCH REPORT- CENTRAL ELECTRICITY (Vol.RD/L/2201/R88). (1988) King, W. Instructional Memorandum RB- 44: Review of NPDES (National Pollutant Discharge Elimination System) permit applications processed by the EPA (Environmental Protection Agency) or by the State with EPA oversight: In: U.S. Fish and Wildlife Service Navigable Waters Handbook. Electric Power Research Institute, Inc., Catalog of Assessment Methods for Evaluating the Effects of Power Plant Operations on Aquatic Communities (EPRI.TR-1 12013) (1999) Electric Power Research Institute, Inc., Evaluation of Biocriteria as a Concept Approach, and Tool for Assessing Impacts of Impingement and Entrapment Under § 316(b) of the Clean Water Act (EPR\, TR- Page 19 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description Viis ' , i -.,- j. 11 4007) (2000) Electric Power Research Institute, Inc., Technical Evaluation of the Utility of Intake Approach Velocity as an Indicator of Potential Adverse Environmental Impact under §316(b) (EPRI, TR-1 000731 )(2000) John Steinbeck et al, Assessing Power Plant Cooling Water Intake System Entrapment Impacts (California Energy Commission, CEC-700-2007-010) (2007) Hany Elwany et al, Agua Hedionda Lagoon Hydrodynamic Studies (Tenera Environmental Technical Report, CE No. 05-10) (2005) Scott A. Jenkins & Joseph Wasyl, Coastal Processes Effects of Reduced Flows at Agua Hedionda Lagoon (Study submitted to Tenera Environmental and Poseidon Resources) (2006) Tetra Tech, Inc., Agua Hedionda Watershed Water Quality Analysis and Recommendations Report (Report submitted to City of Vista) (2007) NWS, 2009, "National Weather Service Daily Climate Reports," Page 20 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 60. 61. 62. 63. 64. Date/Type 2/3/2009 Letter 2/5/2009 Letter 2/6/2009 Revised EOSR (Dated for 2/11/2009) 2/6/2009 Letter 2/9/2009 Email Date Received by San Diego Water Board if applicable 2/9/2009 2/5/2009 2/11/2009 2/9/2009 From Assemblymember Mary Salas, Assembly, California Legislature, 79th District Sierra Club San Diego Regional Water Quality Control Board Mayor Jerry Sanders, City of San Diego Ed Kimura, Sierra Club To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Mike Porter, Michelle Mata, and Chiara Clemente, San Diego Description http://www.wrh.noaa.gov/sqx/obs/rtp/ carlsbad.html Curriculum Vitae of David L. Mayer, PhD.- President / Principal Scientist - Tenera Environmental Inc. Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Revised Executive Officer Summary Report for Item 6 of the Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comment Letter regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Comments regarding Regional Board's February 1 1 , 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Page 21 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 65. 66. 67. 68. 69. Date/Type 2/1 0/2009 Letter 2/11/2009 Presentation 2/11/2009 Presentation 2/11/2009 Transcript 2/25/2009 Letter Date Received by San Diego Water Board if applicable 2/10/2009 2/11/2009 3/4/2009 From Coast Law Group, LLP Peter MacLaggan, Poseidon Resources Marco Gonzalez, Coast Law Group, LLP Kennedy Court Reporters, Inc. Martin Garrick, Mark Wyland, Denise Ducheny, Diane Harkey, Dennis Hollingsworth, Joel Anderson, Marty Block, Kevin Jeffries, Nathan Fletcher, Mary Salas, Assembly To Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Environmental Groups' response to Poseidon's comments regarding the Regional Board's February 1 1 , 2009 meeting to consider the Marine Life Mitigation Plan Power Point presentation for Item 6 at the Regional Board's 2/1 1/2009 meeting to consider Poseidon's Marine Life Mitigation Plan Power Point presentation for Item 6 at the Regional Board's 2/1 1/2009 meeting to consider Poseidon's Marine Life Mitigation Plan Partial Transcript of Proceedings for the February 1 1 , 2009 Board Meeting Comment Letter regarding Regional Board's April 8, 2009 Board Meeting Page 22 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 70. 71. 72. Date/Type 2/27/2009 Letter 3/5/09 Report 3/9/2009 Public Notice Date Received by San Diego Water Board if applicable 3/2/2009 3/9/2009 From ' ^ •4 ! California Legislature Amanda Halter with Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation Poseidon Resources Corporation San Diego Regional Water Quality Control To Catherine Hagan, San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Poseidon: Other Agencies' Requirements for CDP Planning Commission Resolution No. 6090 Planning Commission Resolution No. 6091 Exhibit "EIR-B", City of Carlsbad State Lands Commission Amendment of Lease PRC 8727 California Coastal Commission Recommended Revised Condition Compliance Findings (Item W16a). Condition Compliance for CDP No. E-06- 013 - Poseidon Resources (Channelside), LLC; Special Condition 8: Submittal of a Marine Life Mitigation Plan (Approved by Coastal Commission 12/10/08) 2004-05 Encina Power Station Flow Data based on EPS Pump flow rates, submitted by Poseidon 3/5/2009 (Poseidon clarified on March 25, 2009 that the dates in the study showing 0 flow are actually dates for which no flow data are available.) Notice of Public Hearing California Regional Water Quality Control Board, San Page 23 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 73. Date/Type 3/9/2009 Report Date Received by San Diego Water Board if applicable 3/9/2009 From Board Amanda Halter with Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation To San Diego Regional Water Quality Control Board Description Diego Region re: April 8, 2009 Hearing 'Revised Minimization Plan and Attachments (pdf version) Attachment 1- EPS's 2008 Daily Flow Attachment 2 - Cost Estimate of Subsurface Intake Alternatives Attachment 3 - Impingement Results, G1 - Traveling Screens and Bar Racks Weekly Surveys, G2 - Heat Treatment Surveys Attachment 4 Proposal for Information Collection Clean Water Act 316(b), Encina Power Station, Cabrillo Power I LLC, NPDES Permit No. CA0001350, April 1, 2006 Attachment 5 - Estimation of the Potential for Impingement Should the CDP Operative in Stand-Alone Mode Attachment 6 - Carlsbad Desalination Facility, Encina Power Station Summary of Fish and Target Shellfish Larvae collected from Entrainment and Source Water Studies in the Vicinity of Agua Hedionda Lagoon from June 2005 through May 2006 Page 24 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 74. 75. 76. 77. 78. Date/Type 3/9/2009 Letter 3/9/2009 Email 3/9/2009 Email 3/9/2009 Report 3/10/2009 Public Notice Date Received by San Diego Water Board if applicable Prom San Diego Regional Water Quality Control Board Melissa Valdovinos, San Diego Regional Water Quality Control Board Melissa Valdovinos, San Diego Regional Water Quality Control Board Poseidon Resources Corporation San Diego Regional Water Quality Control Board To Peter MacLaggan with Poseidon Resources Corp. Interested Parties Interested Parties San Diego Regional Water Quality Control Board Interested Parties Description Attachment 7 - Mitigation Computation Based on Impingement Assessment - Chris Nordby Attachment 8 - Numbers and Biomass of Species Collected During 2004/2006 Sampling Period Transmittal of tentative Order No. R9-2009- 0038 Transmittal of tentative Order No. R9-2009- 0038 Notice of Availability of tentative Order No. R9-2009-0038 on Regional Board Website Flow, Entrainment and Impingement Minimization Plan (March 9, 2009), Redline/Strikeout Version Showing Changes from March 6, 2008 Minimization Plan Notice of Availability of tentative Order No. R9-2009-0038 on Regional Board Website Page 25 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 79. 80. 81. 82. ' 83. Date/Type 3/1 4/2009 Email 3/1 8/2009 Email 3/19/2009 Public Notice 3/19/09 Statement 3/19/09 Statement Date Receivedtby San Diego; Water Board if applicable From Brian Kelley, San Diego Regional Water Quality Control Board Amanda Halter with Latham & Watkins, LLP, Poseidon Resources Corporation San Diego Regional Water Quality Control Board Howard H. Chang, Ph.D., P.E. on behalf of Poseidon Scott A. Jenkins, Ph.D., on behalf of Poseidon Resources To> Interested Parties Catherine Hagan, Chiara Clemente, and Deborah Woodward San Diego Regional Water Quality Control Board and Peter Raimondi, University of California Santa Cruz San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Notice of Availability- Carlsbad Desalination Project, Order No. R9-2006- 0065 - Index of Supporting Documents Replacement Attachment 7, Statement of Chris Nordby dated March 18, 2009 Agenda Notice for April 8, 2009 San Diego Regional Board Meeting Statement, Qualifications-, and Data files from Howard H. Chang Ph.D., P.E. Statement Statement (revised on 3/24 only to correct the URL on page 4) Qualifications HEC-Data File 1 HEC-Data File 2 2005 Rainfall Data From San Diego County Statement of Scott A. Jenkins, Ph.D. Addressing Regional Board Staff Concerns regarding the Biological Data Used to Page 26 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description Corporation Support Poseidon's Impingement and Entrainment Assessment 84.3/20/2009 Email Brian Kelley, San Diego Regional Water Quality Control Board Interested Parties Carlsbad Desalination Project, Order No. R9-2006-0065 - Additional Documents 85.3/26/2009 Report Amanda Halter with Latham & Watkins, LLP San Diego Regional Water Quality Control Board Poseidon: Min Plan Attachments Attachment 1 - EPS's 2008 Daily Flow Data Attachment 2 - Cost Estimate of Subsurface Intake Alternatives Attachment 3 - Impingement Results, G1 - Traveling Screen and Bar Rack Weekly Surveys, G2 - Heat Treatment Surveys Attachment 4 - Proposal for Information Collection Clean Water Act Section 316(b), Encina Power Station, Cabrillo Power Station, Cabrillo Power I LLC, NPDES No. CA0001350, April 1,2006 Attachment 5 - Estimation of the Potential for Impingement Should the CDP Operate in Stand-Alone Mode Attachment 6 - Carlsbad Desalination Facility - Encina Power Station, Summary Page 27 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To ; Description .'r>' Cf "', " . , '''' ?% : of Fish and Target Shellfish Larvae Collected for Entrainment and Source Water Studies in the Vicinity of Agua Hedionda Lagoon from June 2005 Through May 2006 Attachment 7 - Mitigation Computation Based on Impingement Assessment - Chris Nordby (March 18, 2009) Attachment 8 - Numbers and Biomass of Species Collected During 2004/2005 Sampling Period Attachment 9 - Impingement Estimation Analysis Based on Drs Chang's and Jenkins's Statements Regarding Outliers in 2004-2005 EPS Sampling Data Attachment 9-A - Frequency for Storm Events of January and February 2005, submitted by dr. Howard n. Chang, Ph.D., P.E. Attachment 9-B - Statement Addressing Regional Board Staff Concerns Regarding the Biological Data Used to Support Poseidon's Impingement and Entrainment Assessment, Submitted by Dr. Scott A Jenkins, Ph>d (March 19, 2009) Page 28 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description 86.3/26/2009 Report Amanda Halter with Latham & Watkins, LLP, on behalf of Poseidon Resources San Diego Regional Water Quality Control Board Poseidon: Min Plan Redlines comparing March 26, 2009 to March 9, 2009 Plans 87.3/26/2009 Report Garrett L Jansma with Latham & Watkins, LLP, on behalf of Poseidon Resources San Diego Regional Water Quality Control Board Redline comparing Mar 26, 2009 to Mar 6, 2008 Plans 88.3/27/2009 Email Lauren Ross with Latham & Watkins, LLP, on behalf of Poseidon Resources San Diego Regional Water Quality Control Board Revised Poseidon Minimization Plan Attachment 1 - EPS's 2008 Daily Flow Data Attachment 2 - Cost Estimate of Subsurface Intake Alternatives Attachment 3 - Impingement Results, G1 - Traveling Screen and Bar Rack Weekly Surveys, G2 - Heat Treatment Surveys Attachment 4 - Proposal for Information Collection Clean Water Act Section 316(b), Encina Power Station, Cabrillo Power Station, Cabrillo Power I LLC, NPDES No. CA0001350, April 1,2006 Attachment 5 - Estimation of the Potential for Impingement Should the CDP Operate in Stand-Alone Mode Page 29 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description Attachment 6 - Carlsbad Desalination Facility - Encina Power Station, Summary of Fish and Target Shellfish Larvae Collected for Entrainment and Source Water Studies in the Vicinity of Agua Hedionda Lagoon from June 2005 Through May 2006 Attachment 7 - Mitigation Computation Based on Impingement Assessment - Chris Nordby (March 1 8, 2009) Attachment 8 - Numbers and Biomass of Species Collected During 2004/2005 Sampling Period Attachment 9 - Impingement Estimation Analysis Based on Drs Chang's and Jenkins's Statements Regarding Outliers in 2004-2005 EPS Sampling Data Attachment 9-A - Frequency for Storm Events of January and February 2005, submitted by dr. Howard h. Chang, Ph.D., P.E. Attachment 9-B - Statement Addressing Regional Board Staff Concerns Regarding the Biological Data Used to Support Poseidon's Impingement and Entrainment Assessment, Submitted by Page 30 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 89. 90. 91. 92. 93. Date/Type 3/27/2009 Report 3/27/2009 Report 3/27/2009 Report 3/27/2009 Report (Dated for 4/8/2009) 3/27/2009 Email Date Received by San Diego Water Board if applicable From Lauren Ross with Latham & Watkins, LLP, on behalf of Poseidon Resources Lauren Ross with Latham & Watkins, LLP, on behalf of Poseidon Resources Brian Kelley, Chiara Clemente, Deborah Woodward, and Michelle Mata San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Brian Kelley, San Diego Regional Water Quality Control Board To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board John H. Robertus, San Diego Regional Water Quality Control Board Interested Parties Description Dr. Scott A Jenkins, Ph>d (March 19, 2009) Attachment 10 - Explanation of Modification to Entrainment Minimization Technology Measures Revised Poseidon Minimization Plan - Redline of March 6, 2008 Plan to March 27, 2009 Plan Revised Poseidon Minimization Plan - Redline of March 9, 2009 Plan to March 27, 2009 Plan Staff Report: Review of Poseidon's Flow Entrainment and Impingement Minimization Plan Dated March 9, 2009 with Supplemental Materials Executive Officer Summary Report and Supporting Documentation Carlsbad Desalination Project, Order No. R9-2006-0065-Notice of Availability of Documents Page 31 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 94. 95. 96. 97. 98. 99. Date/Type 3/30/2009 Letter 3/31/2009 Letter 4/1/2009 Letter 4/1/2009 Email 4/1/09 Report 4/2/2009 Letter Date ReceivecSKy San Diego Water Board if applicable From Robert Mclean Dianne Jacob, Supervisor, Second District, San Diego County Board of Supervisors Sierra Club, San Diego Chapter Marco Gonzalez, Coast Law Group Dr. Peter Raimondi, University of California Santa Cruz Christine Kehoe, Senate, 39th District To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Comment Letter for April 8, 2009 Board Meeting Comment Letter for April 8, 2009 Board Meeting Comments for Agenda Item 13 revision R9- 2006-0065 Flow, Entrapment and Impingement Plan Comments for Agenda item 13 NPDES Permit Revision and Approval of Flow, Entrainment and Impingement Minimization Plan: Poseidon Resources Corporation, Proposed Carlsbad Desalination Project (Order No. R9-2006-0065, NPDES No. CA01 09223). Statement from Peter Raimondi, Ph.D. (April 1 , 2009) Comment Letter for Regional Board Agenda Item #13 -- Poseidon Resources Page 32 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description 100.4/2/2009 Letter Group of Californians San Diego Regional Water Quality Control Board Comment Letter for Regional Board Agenda Item #13 -- Poseidon Resources 101.Lauren Ross with Latham & Watkins, LLP, on behalf of Poseidon Resources San Diego Regional Water Quality Control Board *Latham and Watkins LLP April 2, 2009 Comment Letter *Raulli, J., Balletto, J. "Carlsbad Desalination Plant Fish Return Feasibility Analysis," Joseph Raulli and John Balletto, ARCADIS U.S., Inc. March 31, 2009 *Mayer, D.L, Nordby, C. "Wetlands Mitigation Credit for Potential Impingement, as Well as for Potential Entrainment," David L. Mayer, Tenera Environmental and Chris Nordby, Nordby Biological Consulting 'Jenkins, S.A "Note on Regional Board Staff Concerns Regarding Rainfall Effects on Impingement Sample Outliers per RWQCB Staff Report 27 March 09," Scott A. Jenkins 'Appendix A - Correspondence with Regional Board Staff and Counsel Since February 11, 2009 San Diego Regional Water Quality Control Board Meeting 'Appendix B - Additional Expert Statements and Supporting Documents Page 33 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 102. 103. 104. 105. 106. Date/Type 4/3/2009 Email 4/3/2009 Email 4/3/2009 Letter 4/3/2009 Report (Dated for 4/8/2009) 4/3/2009 Email Date Received by San Diego Water Board if applicable From Marco Gonzalez, Coast Law Group Brian Kelley, San Diego Regional Water Quality Control Board Brian Kelley, Chiara Clemente, Deborah Woodward, and Michelle Mata San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Brian Kelley, San Diego Regional Water Quality Control Board To Chiara Clemente and Deborah Woodward, San Diego Regional Water Quality Control Board Interested Parties John H. Robertus, San Diego Regional Water Quality Control Board Interested Parties Description 'Appendix C - Additional Supporting Documents Appendix C - Documents Supporting Latham & Watkins Comment Letter Index Zip File containing Appendix C documents Carlsbad Desalination Project Carlsbad Desalination Project, Order No. R9-2006-0065 Supplemental Staff Report: Review of Poseidon's Flow Entrainment and Impingement Minimization Plan Dated March 9, 2009 with Supplemental Materials Supplemental Executive Officers Report and Supporting Documentation Carlsbad Desalination Project, Order No. R9-2006-0065 Page 34 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 107. 108. 109. 110. 111. 112. 113. Date/Type 4/5/2009 Email 4/5/2009 Email 4/6/2009 Email 4/6/2009 Letter 4/6/2009 Email 4/6/2009 Letter 4/7/2009 Letter Date Received by San Diego Water Board if applicable 4/6/2009 4/6/2009 FronV : Brian Kelley, San Diego Regional Water Quality Control Board Nancy and Richard Weaver Tom Luster, California Coastal Commission Marco Gonzalez, Coast Law Group Brian Kelley, San Diego Regional Water Quality Control Board Councilmember Benjamin Hueso, San Diego City Council President Marco Gonzalez, Coast Law Group To Bill Hickman with San Diego Surfider Foundation and Ed Kimura with Sierra Club, San Diego Chapter San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Interested Parties San Diego Regional Water Quality Control Board Chiara Clemente, Brian Kelley, and Deborah Woodward Description Carlsbad Desalination Project, Order No. R9-2006-0065 Comment Letter for Regional Board Agenda Item #13 - Poseidon Resources Comment Letter for Regional Board Agenda Item #13 -- Poseidon Resources April 8th Agenda Item 13: Environmental Groups Supplemental Comment Letter Carlsbad Desalination Project, Order No. R9-2006-0065 Comment Letter for Regional Board Agenda Item #13 -- Poseidon Resources Desal: Technical appendix - Surfrider supplemental comments Page 35 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 114. 115. 116. 117. Date/Type 4/7/2009 Email 4/7/2009 Letter 4/7/2009 Letter 4/8/2009 Report Date Received by San Diego Water Board if applicable From Guy McClellan Marco Gonzalez, Coast Law Group Marco Gonzalez, Coast Law Group John C Raney with Latham & Watkins, LLP To with San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Chiara Clemente, Brian Kelley, and Deborah Woodward with San Diego Regional Water Quality Control Board Chiara Clemente, Brian Kelley, and Deborah Woodward with San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Description Comments for Regional Board Agenda Item #13 - Poseidon Resources Desal; Enviro Supplemental Technical Rebuttal - Jenkins RE: Desal; Enviro Supplemental Technical Rebuttal - Nordby, Mayer * Response to Coastal Commission 'Balletto Response to Comments Submitted by Sierra Club 'Balletto Statement Regarding Compensatory Mortality "C. Nordby's Allen Productivity Calculations Page 36 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. Date/Type Date Received by San Diego Water Board if applicable From To Description *Email from C. Hagan to P. Singarella and A. Halter "Jenkins1 Statement Regarding Raimondi's Confidence Limits *Le Page Statement and CV "Poseidon's Response to San Diego Audubon Society Oral Comments * Poseidon's Response to Surfrider & Coastkeeper Oral Comments at 2.11.09 hearing "Analysis of 1979-1980 Flow and Impingement Data for EPS 118.4/8/2009 Report John C Raney with Latham & Watkins, LLP, on behalf of Poseidon Resources San Diego Regional Water Quality Control Board Poseidon Resources Corporation regarding supplemental materials which support Balletto's Statement Regarding Compensatory Mortality *Balletto_NMFS 1998 SE US Shrimp Trawl Bycatch Program *Balletto_NMFS 1998 Status of Fisheries of the US *Clark1993 Page 37 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 119. Date/Type 4/8/2009 Report Date Received by San Diego Water Board if applicable From Poseidon Resources Corporation To San Diego Regional Water Quality Control Board Description • .-' '•" 'Goodyear 1 993 'Goodyear 1996 'Harper 1977 'Hassell et al. 1989 'Krebs 1985 "Hilborn and Walters (1992) *Sissenwine and Shepherd 1987 *Mace1994 *McFadden 1977 *Myers and Cadigan 1993 (a) 'Myers and Cadigan 1993 (b) 'NRC1998 'Richkus and McLean (2000) Responses to Comments and Additional Expert Statements Page 38 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 120. 121. 122. 123. 124. 125. 126. Date/Type 4/8/2009 Presentation 4/8/2009 Presentation 4/8/2009 Transcript or Recording 4/9/2009 Letter 4/1 7/2009 Email 4/24/2009 Public Notice 4/30/2009 Letter Date Received by San Diego Water Board if applicable 4/30/2009 From Poseidon Resources Corporation Coast Law Group, LLP Francis J. Tepedino, Attorney At Law Brian Kelley, San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Peter MacLaggan, Poseidon Resources To San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Interested Parties San Diego Regional Water Quality Control Board Description ; Board Presentation for April 8, 2009 Board Meeting Board Presentation for April 8, 2009 Board Meeting Recording of April 8, 2009 Regional Board Meeting Please note this item begins 50 minutes into recording Comments regarding Regional Board's April 8, 2009 meeting to consider Poseidon's Marine Life Mitigation Plan Carlsbad Desalination Project, Order No. R9-2006-0065 Agenda Notice for May 13, 2009 San Diego Regional Board Meeting Comments for May 13, 2009 Board Meeting including attachments: Tab 1 - Key Points of Poseidon's Proposed Order and Supplemental Findings Tab 2 - Proposed Tentative Order No. R9- 2009-0038 and Attachment A, Page 39 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 127. 128. Date/Type 5/1/2009 Report (Dated for 5/13/2009) 5/1/2009 Report (Dated for 5/13/2009) Date Received by San Diego Water Board if applicable From i • , :' San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board To Description Supplemental Findings Regarding Proposed Tentative Order No. R9-2009- 0038 Tab 3- Redline of Poseidon's Proposed Tentative Order No. R9-2009-0038 Reflecting Changes from Staff's Proposed Tentative Order No. R9-2009-0038, released March 9, 2009 Tab 4- Preliminary Transcript of Relevant Excerpts of Regional Board's Deliberation at April 8, 2009 Regional Board Hearing, Prepared by Latham & Watkins LLP from Audio Files Tab 5- California Coastal Commission Final Adopted Findings (Item W4a). Application File No. E-06-013. Permittee: Poseidon Resources (Channelside) LLC I and Cabrillo Power II LLC, Adopted August 6, 2008 Tentative Order No. R9-2009-0038 (changes from the March 9, 2009 version are shown in blue underline/strikeout) Executive Officer Summary Report and Supporting Documentation Page 40 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 129. 130. 131. 132. 133. Date/Type 5/1/2009 Email 5/1/2009 Email 5/1/2009 Letter 5/4/2009 Email 5/6/2009 Letter Date Received by San Diego Water Board if applicable From Brian Kelley with San Diego Regional Water Quality Control Board Brian Kelley with San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Brian Kelley with San Diego Regional Water Quality Control Board Peter Douglas with Coastal Commission To Interested Parties Interested Parties Poseidon Resources Corporation Interested Parties San Diego Regional Water Quality Control Board Description Carlsbad Desalination Project, Order No. R9-2006-0065 - Notice of Availability and Transmittal of Revised Tentative Order No. R9-2009-0038, Executive Officer Summary Report for the May 13, 2009 Regional Board meeting, and An underline/strikeout version of a proposed alternative revised Tentative Order No. R9-2009-0038 submitted by Poseidon Resources on April 30, 2009 Carlsbad Desalination Project, Order No. R9-2006-0065- Further Clarification Transmittal of Revised Tentative Order No. R9-2009-0038 Resend to Undeliverable Emails- Carlsbad Desalination Project, Order No. R9-2006- 0065 - Notice of Availability and Transmittal of Revised Tentative Order No. R9-2009- 0038, Executive Officer Summary Report for the May 1 3, 2009 Regional Board meeting, and An underline/strikeout version of a proposed alternative revised Tentative Order No. R9-2009-0038 submitted by Poseidon Resources on April 30, 2009 Comment Letter for May 13, 2009 Board Meeting Page 41 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 134. 135. 136. 137. 138. 139. 140. Date/Type 5/6/2009 Letter 5/6/2009 Letter 5/6/2009 Report (Dated for 5/13/2009) 5/6/2009 Email 5/6/2009 Letter 5/7/2009 Statement of Decision 5/7/2009 Email Date Received by San Diego Water Board if applicable From Christopher Garrett, Latham & Watkins, LLP Christopher Garrett, Latham & Watkins, LLP San Diego Regional Water Quality Control Board Brian Kelley with San Diego Regional Water Quality Control Board Michael Lauffer - Chief Counsel Judith Hayes Brian Kelley with San Diego Regional Water Quality Control Board T'O-'1-- .' San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Interested Parties Dorothy Rice Barbara Dugal with State Lands Commission Description Response letter to 5/6/2009 Letter from Coastal Commission Comment Letter for May 13, 2009 Board Meeting Revised Tentative Order No. R9-2009- 0038 with errata dated May 6, 2009 (changes from the revised Tentative Order are shown in red underline/strikeout) Carlsbad Desalination Project, Order No. R9-2006-0065- Notice of Availability - Errata to Final Revised Tentative Order and 5/6/2009 Comment Letter from Coastal Commission State Water Resource Control Board Memo regarding US Supreme Court's Decision Statement of Decision Surfrider Foundation and Planning and Conservation League vs. California Coastal Commission Carlsbad Desalination Project, Order No. R9-2006-0065- Notice of Availability - Errata to Final Revised Tentative Order and 5/6/2009 Comment Letter from Coastal Commission Page 42 of 44 SWRCB/OCC File Nos. A-2024 and A-2024(a) ADMINISTRATIVE RECORD INDEX Document No. 141. 142. 143. 144. 145. 146. 147. Date/Type 5/7/2009 Email 5/7/2009 Letter 5/7/2009 Letter 5/8/2009 Report (Dated for 5/13/2009) 5/8/2009 Response to Comments 5/8/2009 Email 5/1 2/2009 Letter Date Received by San Diego Water Board if applicable From Brian Kelley with San Diego Regional Water Quality Control Board Marco Gonzalez with Coast Law Group Amanda Halter, Latham & Watkins, LLP, on behalf of Poseidon Resources Corporation San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Brian Kelley with San Diego Regional Water Quality Control Board Marco Gonzalez with Coast Law Group To Interested Parties Chiara Clemente and John Robertus, San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board Interested Parties Chiara Clemente, Brian Kelley, John Robertus and Deborah Woodward, San Diego Regional Water Quality Control Board Description - : Carlsbad Desalination Project, Order No. R9-2006-0065- Notice of Availability- CORRECTION Environmental Groups' Comments for May 1 3, 2009 Board Meeting - Carlsbad Desalination Project Poseidon Resources Corporation Proposed Responses to Comments Supplemental Executive Officers Report and Supporting Documentation Responsiveness Summary and Responses to Comments Carlsbad Desalination Project, Order No. R9-2006-0065-Notice of Availability of Documents- Revised EOSR and Supporting Documents No. 9-1 1 Environmental Group Supplemental Objections Re Desalination Procedures and Poseidon Submissions Page 43 of 44 SWRCB/OCC File Nos. A-2024 and A-2024{a) ADMINISTRATIVE RECORD INDEX Document No. 148. 149. 150. 151. 152. 153. Date/Type 5/13/2009 Report 5/13/2009 Report 5/13/2009 Transcript or Recording 5/13/2009 Report 5/13/2009 Report 5/13/2009 Report Date Received by San Diego Water Board if applicable From San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board San Diego Regional Water Quality Control Board TO;Description Regional Board staff Revised Responsiveness Summary (Changes to May 8, 2009 Responsiveness Summary shown in red) Regional Board Supplemental Errata- (Changes to revised Tentative Order with errata, dated May 6, 2009, shown in green text) Recording of May 13, 2009 Regional Board Meeting Regional Board final adopted Responsiveness Summary, including Responses to Comments Regional Board Order No. R9-2006-0065 as amended by Order No. R9-2009-0038 Regional Board final adopted Order No. R9-2009-0038 Page 44 of 44 September 22, 2009 VIA MESSENGER & ELECTRONIC MAIL Hon. Mayor Lewis Hon. Members of the City Council Carlsbad City Hall 1200 Carlsbad Village Drive Carlsbad, CA 92008 Dear Hon. Mayor and Council Members: At the request of Poseidon Resources Corporation, 1 have prepared the enclosed statement to assist the agency's consideration of Carlsbad Desalination Project, and in response to comments raised in Coast Law Group's September 15, 2009 comment letter. If you have any questions, please feel free to contact me. Respectfully submitted, David L. Mayer, Ph.D. President/Principal Scientist Tenera Environmental Enclosure: Expert Opinion I. INTRODUCTION My name is David Mayer of Tenera Environmental Consulting ("Tenera"). Poseidon Resources Corporation ("Poseidon") asked me to prepare this statement regarding the potential marine life effects of the proposed Carlsbad Desalination Plant, scheduled to begin operations in late 201 I/early 2012. II. QUALIFICATIONS > Ph.D. in Fisheries, Ph.D. in Quantitative Sciences from the University of Washington. ^ Over 30 years experience in environmental consulting specializing in studies of marine and freshwater systems. > Extensive experience in the areas of aquatic temperature and flow regimes, and their effects on ecological systems, beginning with doctoral research analyzing and modeling the relationships of water temperatures and hydrodynamics on aquatic communities. > Provided expertise and experience in research and problem solving marine and freshwater issues associated with water intake location, screening technology, and discharge effects. > Directed research scientists and engineers who provide contract services of environmental assessments and computer analysis in the disciplines of air quality, water quality, ecology, hazardous materials, and environmental risk assessment. III. ROLE ON THIS PROJECT In late 2003, Poseidon retained Tenera to determine the potential effects resulting from its proposed use of water from the Agua Hedionda Lagoon for desalination purposes. Tenera was asked to conduct a study to characterize the type and concentration of organisms within the source water for the cooling water intake structure and the incremental entrainment and impingement ("E&I") effects of the proposed desalination plant operations on these organisms when Poseidon is operating in conjunction with the Encina Power Station ("EPS"). This effort led to the report entitled: Carlsbad Desalination Facility Intake Effects Assessment, prepared by Tenera Environmental, dated March, 2005, included as APPENDIX E to the Final Environmental Impact Report for the Carlsbad Desalination Project ("FEIR") certified by the City of Carlsbad ("Carlsbad") on June 13, 2006. In response to comments received on the draft EIR, Poseidon expanded Tenera's scope of work to include an analysis of the impacts of the Project if it were to operate at times when the EPS was not providing it sufficient feedstock water, including a scenario where the EPS was not providing any feedstock water (the "No Power Plant Operation" scenario). This effort used the same E&I data that Tenera collected for the EPS Clean Water Act Section 316(b) study. Tenera's 316(b) study proposal ("Study Protocol") was approved by the San Diego Regional Water Quality Control Board. The data for the study were collected over a twelve-month period beginning in June 2004, with Dr. David Mayer's Expert Statement 1 September 21.2009 entrainment and source water sampling conducted monthly from June 2004 through May 2005, except that two surveys were done in June 2004 separated by a two-week interval. The thirteen surveys provided a complete year of seasonal data for 2004-2005. Tenera used proven and universally accepted sampling practices when it collected entrainment and impingement samples for the 2004-2005 study. These practices resulted in the collection of valid and scientifically sound data that are relevant and useful to the assessment of potential E&I impacts. Tenera applied proven and universally accepted modeling techniques and statistical analysis to the sampling data to estimate the potential for entrainment and impingement-related impacts from the Project's future operations. As a leading expert in the field of entrainment and impingement analysis, I can attest to the fact that the E&I Study that Tenera conducted from June 2004 to May 2005 was performed in accordance with commonly accepted practices and in conformity with the Study Plan that the Regional Board and the Board's independent, third-party technical reviewer (Tetra Tech) previously had approved. IV. DISCUSSION Poseidon has asked me to evaluate whether the "area of habitat production foregone" ("APF") methodology used by the Coastal Commission and San Diego Regional Water Quality Control Board ("Regional Board") in their review of the Carlsbad Desalination Project ("Project"), conducted after Carlsbad's certification of the FEIR in 2006, contains "new, relevant data" affecting or disturbing the FEIR's conclusion that the Project will not cause significant marine life impacts when operating with or without the EPS. Poseidon also has asked me whether or not APF methodology is a "new" methodology that was not used by experts in the entrainment and impingement field when the FEIR was certified in 2006. Regarding potential entrainment impacts from stand-alone operation of the Project, the FEIR concluded, based on analysis by my firm, Tenera Environmental, that any loss of larval fish would not have a substantial effect on the entrained species' ability to sustain their populations because of their widespread distribution and high reproductive potential. (FEIR, Additional Responses to Comments at pp. 21-22, 7.) Moreover, the analysis found that the most frequently entrained species are very abundant in the area of the EPS intake, Agua Hedionda Lagoon, and the Southern California Bight, and species of direct recreational and commercial value constituted less than 1 percent of entrained organisms. (Id.) The FEIR determined that the incremental entrainment effect of larval fishes from stand-alone operations, which would be approximately 1 to 34% depending on the species, would not have a significant effect on the species' ability to sustain their populations. (Id.) Accordingly, the FEIR concluded stand-alone operations would not cause a significant ecological impact. (Id.) It is my opinion that the FEIR's analysis and conclusion that a stand-alone Project will not cause a significant impact to marine life due to entrainment remain valid and correct. In my opinion, it is appropriate to determine whether or not an entrainment impact is "significant" based on whether entrainment will result in substantial losses to source populations. Dr. David Mayer's Expert Statement 2 September 21.2009 APF methodology was used by the Regional Board and the Coastal Commission to quantify the area of mitigation habitat needed to produce organisms lost to entrainment from the Project, based on the same entrainment data relied upon in the Carlsbad FEIR. I was previously retained by Poseidon to, among other things, comment on the APF calculations used by the Regional Board, so I am personally familiar with the APF methodology used in connection with this Project. 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, it merely characterizes the amount of mitigation used to offset any entrainment losses. The underlying biological facts evaluated in the FEIR have not changed, and, as noted, the FEIR's conclusion that the Project will not cause a significant ecological effect on marine life remains valid in my opinion. Moreover, APF methodology is not "new" and was being used by experts in the field when the FEIR was certified in 2006. In fact, APF methodology has been used to quantify mitigation requirements for entrainment impacts in California since approximately 2001. V. ATTACHMENTS A. Curriculum Vitae Dr. David Mayer's Expert Statement September 21.2009 EXHIBIT A David L. Mayer, Ph.D. President I Principal Scientist Education Ph.D. Fisheries and Quantitative Sciences, Unfversity of Washington, 1973 M.S.C. Environmental Biology, California State University, Hayward, 1970 B.A. Biology and Chemistry, California State University, San Jose, 1965 Experience Dr. Mayer has extensive experience in marine, estuarine, and freshwater environmental studies, He directed and provided overview of entrainment studies for two full-scale (100 mgd) desalination projects in Southern California and one pilot desalination project in San Francisco Bay. Dr. Mayer provided expert witness testimony before the Santa Ana and San Diego Regional Water Quality Control Board hearings during the National Pollutant Discharge Elimination System (NPDES) permit process for the Southern California desalination facilities. He also provided expert witness testimony before the cities of Huntingdon Beach and Carlsbad throughout the CEQA process. Both projects were approved by the cities. He directed and provided overview of entrainment and source water studies to assess the effects of candidate desalination projects located in the San Francisco Bay Area. He is currently directing ongoing entrainment studies of the Bay Area Regional Desalination Facility and the recently initiated entrainment and intake screen studies for the Santa Cruz and Soquel Water Districts' pilot desalination facility. / NPDES permits were granted to both facilities. Dr. Mayer is assisting West Basin Water District in their efforts to design and permit a demonstration desalination facility in Redondo Beach; and his recently completed research plan to investigate the benefits of wedgewire screen intakes to eliminate impingement and reduce entrainment effects is in the final stages of agency review and comment. Dr. Mayer specializes in aquatic temperature and flow regimes and their effects on ecological systems beginning with his doctoral research analyzing and modeling the relationships of water temperatures and hydrodynamics in northern Puget Sound aquatic communities. He has participated in the San Francisco Bay/Delta's Interagency Ecological Program's estuarine ecology work team since the group's founding. Dr. Mayer has devoted a majority of his professional career and expertise to studies of the thermal and hydraulic discharge effects of the majority most of California's major utility companies. He has also applied his expertise and experience in research the assessment and problem solving of issues related to the entrainment and impingement effects of marine, estuarine and freshwater water intakes and the location and screening technologies associated with these water intakes. Dr. Mayer's project results and conclusions, several involving multiple years of research, have been submitted to the State and Regional Water Resources Boards and the California Energy Commission (CEC). In addition to his testimony before the Santa Ana and San Diego Regional Water Quality Control Boards, he has also provided professional testimony before Central Coast, San Francisco, and Los Angeles Water Boards in formal hearings and workshops on the results of aquatic resources impact studies, water quality, and thermal and ecological modeling. He appeared as an expert witness on the biological effects resulting from expansion of the Moss Landing Power Plant. 1975 - Present President, Tenera Environmental Inc. Lafayette, California Poseidon Resources- Intake and Discharge Effects of the Huntington Beach and Carlsbad Desalination Project Dr. Mayer designed and directed the yearlong entrainment abundance and entrainment survival studies for the Poseidon's Huntington Beach and Carlsbad Desalination Projects. He collaborated with Scripps professors Drs. Jenkins and Graham and the potential effects of the facilities' hypersaline discharges. He provided expert witness ChiNERA David L. Mayer, Ph.D. Page 2 testimony, which ultimately led to the issuance of NPDES permits and project approvals by cities of Huntingdon Beach and Carlsbad. Matin Municipal Water District - Entrainment Effects of a Pilot Desalination Plant Dr. Mayer designed and directed studies for determining entrainment effects of a pilot desalination facility to be used to estimate effects of a full-scale facility. He also designed source water studies, mainly for assessing effects to Pacific herring. Moss Landing, Morro Bay, Huntington Beach, Encina, Diablo Canyon, Potrero, South Bay, Scattergood, Haynes, Alamitos, Redondo Beach, El Segundo, Harbor, San Onofre, Honolulu, Kahe, Waiau, Cabras (Guam) power plant entrainment and impingement investigations. Dr. Mayer designed and directed entrainment and impingement studies at the majority of California's power plants, and power plants in Hawaii and Guam in response to the recent Clean Water Act 316(b) Phase II Rule and the California Energy Commission's Application for Certification of new generating units. Diablo Canyon, San Luis Obispo County, PG&E Diablo Canyon Power Plant Dr. Mayer designed and directed the ongoing Diablo Canyon thermal effluent studies of discharge water effects on natural populations and habitats of the surrounding area. These studies incorporate in situ temperature recording instruments; the construction of a preliminary predictive mathematical model; a 1:75 scale hydraulic model at the University of California, Richmond Hydraulic Field Station; a final three-dimensional computer simulation of the operating prototype; and intertida) and subtidal observations of the distribution and abundance of fishes, invertebrates, and algae. The study represents California's longest and most comprehensive study of discharge effects on marine organisms. In addition to this ongoing study that began in 1975, he is currently directing discharge effects studies for ConocoPhillips in San Pablo Bay, Mirant Corporation in Antioch, Pittsburg and Potrero California, and recently completed a highly detailed study of Dynergy's South San Diego Bay Power Plant for the San Diego Regional Water Quality Control Board. In conjunction with other studies of repowering this facility, Dr. Mayer consulted with the power plant's former owner Duke Energy of North America on the feasibility and potential impacts of using the offshore international discharge located at the Mexican American border to discharge to rerouting the plant's in-San-Diego-Bay discharge to the offshore diffuser. Expert Witness Testimony Dr. Mayer conducted water quality modeling efforts in assessment of EBMUD's planned water diversions and prepared expert testimony of the plaintiffs water quality modeling evidence. The water contract was upheld and environmental assessments were continued under the authority of a court-appointed Special Master. Dr. Mayer provides expert witness testimony as part of the NPDES permit renewal process, the California Energy Commission's Application for Certification process, and during hearings before city councils. He has also received additional EPA training and certification in the use and interpretation of the EPA's QUAL-2e and is familiar with other commonly employed thermal and hydraulic models, including USFWS IFIM series models and the Better model. 1973 - 1975 Senior Biologist, Marine Biological Consultants, Costa Mesa, California TENERA David L. Mayer, Ph.D. Page 3 Designed and conducted studies for compliance with California State Thermal Plan for the Control of Temperature in Inland and Marine Waters - Southern California Edison Selected Publications and Technical Reports Steinbeck, J., J. Hedgepeth, P. Raimondi, G. Cailliet, and David Mayer. 2007. Assessing power plant cooling water intake system entrainment impacts. California Energy Commission Consultant Report, CEC-700-2007-010, 130 pages. Tenera Environmental. 2006. Draft Marin Municipal Water District Desalination Facility Intake Effects. Prepared for URS Corporation, Oakland, CA. Contributor. Tenera Environmental. 2006. ConocoPhillips Technology Installation and Operation Plan. Prepared for ConocoPhillips, Rodeo, CA. Contributor. Tenera Environmental. 2005. Huntington Beach Desalination Facility Intake Effects Assessment. Prepared for Poseidon Resources Corporation. August 2005. Contributor. Tenera Environmental. 2005. Carlsbad Desalination Facility Feedwater Intake Effects Assessment. Prepared for Poseidon Resources Corporation. November 2005. Contributor. Professional Affiliations Estuarine Ecology Team of the Sacramento/San Joaquin Interagency Ecological Program, American Society of Naturalists, Western Society of Naturalists, Pacific Fisheries Biologists, American Institute of Fisheries Research Biologists ^1 TENERA TETRATECH Mr. Scott Donnell September 22, 2009 Page 2 located along the pipeline route to provide for control of the water within the pipeline and to deliver water to the various water agencies. Each FCF consists of a meter, flow control valve, shutoff valves and instrumentation to measure and control flow to each member agency. The three locations added to the project as part of the EIR amendment are all located in commercial/industrial areas. Construction of these facilities includes excavation, structural concrete, piping, backfill and mechanical work. The connection at Alga Road will be underground piping and not an FCF. The FCF controlling this connection will be located in the business area near Melrose and Palomar Airport Road. Noise in San Marcos Section The conveyance design team has met with City of San Marcos staff to address noise issues. No night work will be allowed. The working hours provided by the City of San Marcos are 7:00 a.m. to 4:30 p.m. Monday through Friday. The project will also be required to meet the City of San Marcos Noise Ordinance. Construction in San Marcos Section The construction in the San Marcos City limits is approximately 6,700 lineal feet. The main pipeline construction will take approximately 22 to 30 weeks to complete. As mentioned at the beginning of our letter, the work will progress between each major intersection at a time. The City has also requested that street improvements be made in the project. These would be constructed after the pipeline is completed and tested. The pipeline construction will require soil to be exported from the site and materials to be imported. Total truck traffic generated by the project is estimated to be 10 to 15 trucks per day. If we assume that this truck traffic occurs over 5 hours instead of the whole work day it would generate 2 to 3 trucks per hour. The arterial streets in this area can handle this additional truck traffic without any deterioration of service level. If you have any questions regarding this letter please feel free to contact us. Sincerely, Steve Tedesco, P.E. Senior Vice President SDT/cg P:\10908\134-10908-09002\Wordpro\Letters\It009 w sig.docx TETRATECH September 22, 2009 Mr. Scott Donnell Senior Planner City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008-7314 Reference: Carlsbad Desalination Project Conveyance Pipeline Dear Mr. Donnell: This letter is in response to some of the questions and issues raised in the September 15, 2009 letter from the Coast Law Group LLP regarding the conveyance system construction in the City of San Marcos. The following sections clarify the construction process and procedures for this work. General Pipeline Construction The pipeline construction will be completed in various steps as follows: 1. First small equipment will be used to pothole and verify all utility locations crossing the alignment. 2. Relocations of any required utilities will then be performed. 3. Traffic control will then be set up between major intersections to reroute traffic around the construction work zone. Traffic control plans will be prepared and reviewed by City of San Marcos prior to start of construction. 4. The main pipeline crew will then begin work using excavation equipment. Pipe and other materials will be delivered to the job site. This crew will excavate; lay pipe and then backfill each day. 5. A second crew follows behind installing valves and structures. 6. Once a section between major intersections is completed a trench paving crew is brought in to pave the trench. 7. The street is then opened to traffic until all work in that area is completed. 8. In the City of San Marcos the City has requested that street repaving and drainage improvements be made. This work will be done once the pipeline is completed and tested. Flow Control Facilities (FCF) The FCFs are part of the proposed pipeline, and were part of the original pipeline facilities studied by the City of Carlsbad in the 2006 FEIR. The FCFs are incorporated within the pipeline and are Tetra Tech, inc. 16241 Laguna Canyon Road, Suite 200, Irvine, CA 92618 Tel 949.727.7099 Fax 949.727.7097 www.tetratech.com Air Resources Board Mary D. Nichols, Chairman 1001 I Street • P.O. Box 2815 Linda S.Adams Sacramento, California 95812 • www.arb.ca.gov Arnold Schwarzenegger Secretary for Governor Environmental Protection August 5, 2008 Mr. Patrick Kruer, Chairman California Coastal Commission 45 Fremont, Suite 2000 San Francisco, CA 94105-2219 Re: Carlsbad Desalination Project-Poseidon Resources Energy Minimization and Greenhouse Gas Reduction Plan Dear Chairman Kruer: State law charges the Air Resources Board (ARB) with implementing the Global Warming Solution Act of 2006 (AB 32). AB 32 requires ARB to develop a plan to achieve reductions in emissions based on projected growth in the population and economy of the State. According to the Draft Scoping Plan we released in June, California needs to achieve 169 million metric tons CO2 equivalent (MMTCC^E) reduction from a projected 596 MMTCOaE business-as-usual (BAD) case to meet the Legislative mandate to return to 1990 levels by 2020. The Draft Scoping Plan provides a preliminary recommendation for achieving these reductions through a mix of regulatory measures, including market mechanisms. Working with the Governor's Office of Planning and Research, ARB is also examining the thresholds of significance and appropriate mitigation measures that can be applied under the California Environmental Quality Act (CEQA) to address new projects. We are also working with local and regional government organizations to address the role of land use and transportation planning in meeting our climate goals. These discussions are ongoing; nevertheless, it is important to address new projects while recognizing that relevant policies are still under development. As part of our efforts to reduce GHG emissions, ARB is working with other agencies to seek opportunities to improve the efficiency and GHG impact of our State water supply. We will continue to evaluate options, including appropriate sector-wide policies for new water development projects. This evaluation will include the appropriate mechanisms for providing GHG credits for displacing existing water supplies. The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. For a list of simple ways you can reduce demand and cut your energy costs, see our website: http://www.arb.ca.qov. California Environmental Protection Agency Printed on Recycled Paper Mr. Patrick Kruer, Chairman August 5, 2008 Page 2 ARB staff has reviewed Poseidon Resources' Energy Minimization and Greenhouse Gas Reduction Plan (Plan). We appreciate their voluntary pledge to reduce their contribution to greenhouse gas (GHG) emissions. Since there are minimal direct emissions associated with the project, the primary contribution is from indirect emissions associated with electricity use. For this project, we believe the amount of emissions reduction that should be required need not exceed the net impact; that is, the direct emissions and any new indirect emissions from the project, less emissions that would be associated with providing an equivalent amount from existing supplies. Thank you for this opportunity to comment on this matter before the Commission. If you have any questions, please call Mr. Robert D. Fletcher, Chief, Stationary Source Division, at (916) 324-8167 or via email at rfletche@arb.ca.gov. Sincerely, Isl Mary D. Nichols Chairman cc: Mr. John Chiang, Chairman California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825-8202 Ms. Cindy Tuck Undersecretary California Environmental Protection Agency Mr. Robert D. Fletcher, Chief Stationary Source Division 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 W16b December 9, 2008 TO: Coastal Commissioners and Interested Parties FROM: Alison J. Dettmer, Deputy Director Tom Luster, Staff Environmental Scientist SUBJECT: Addendum to E-06-013 Revised Condition Compliance Findings for proposed Energy Minimization and Greenhouse Gas Reduction Plan - Poseidon Resources (Channelside) LLC - Carlsbad Desalination Facility STAFF NOTE [Please note that this Staff Note replaces in its entirety the Staff Note in the November 26, 2008 Revised Condition Compliance Findings.] This Addendum includes recommended modifications to staffs November 26, 2008 Revised Condition Compliance Findings. It also provides several ex pane forms Commission staff received before December 9, 2008, and briefing materials Poseidon provided to Commissioners. The recommended modifications herein cover three main areas [note - all page numbers refer to staffs November 26th report]: • Clarification (on pages 12-13 and 20) that Poseidon may request the Executive Director approve the use of offsets from entities other than the California Air Resources Board, the California Climate Action Registry, or any state air district, if offsets from those entities are not available at a price reasonably equivalent to offsets in the broader domestic market. This modification also corrects a minor typographical error on page 13. • Clarification (on page 22) that the approved Plan will mitigate the project's net GHG emissions to the maximum extent feasible. • Added language similar to that from the August 2008 Findings related to the Plan's annual reporting requirements. • Clarification (on pages 3, 6-7, 10, 12-15, 17, and 19) that Poseidon may obtain RECs from entities other than CARB, CCAR, or the Air District. Based on staffs review of the record, staff believes the recommended Revised Condition Compliance Findings, as modified herein, accurately reflect the Commission August 6, 2008 approval of Poseidon's Energy Minimization and Greenhouse Gas Reduction Plan. Staff therefore recommends the Commission approve the Findings, as modified. Addendum for Item W16b: E-06-013 - GHG Plan Condition Compliance December 9, 2008 Page 2 of 6 STAFF RECOMMENDED MODIFICATIONS TO THE REVISED FINDINGS: Staff recommends the Commission adopt the modifications as described below, or as shown in strikethrough and bold underline. Please note that recommended Findings from the November 26th report are shown in plain text. Pages 1 & 2, Staff Note: Delete the entire Staff Note. Page 3, bulleted paragraph, continuing to page 4: 1) Except as set forth in the Plan's contingency provisions (as described below in Section 4.0 of these Findings), Poseidon is to-implement the Plan's provisions regarding offsetting the project's net GHG emissions using the protocols, criteria, and mechanisms provided by Assembly Bill 32 (AB 32): a. Use CARB-, CCAR-, or California Air District-approved protocols and mechanisms for all emission reduction measures proposed, except for Renewable Energy Credits fRECs)3 to offset the net GHG emissions from Poseidon's purchased electricity. On-site and project-related measures identified in the Plan are used to calculate the project's net GHG emissions and therefore are not subject to the CARB, CCAR, or Air District requirements for offsetting the net GHG emissions.4 b. Join the CCAR "Climate Action Reserve" or other entities that require the use of CARB-, CCAR-, and/or California Air District-approved protocols to implement the Plan's emission reduction measures, except for RECS, and provide necessary accounting of those measures." "- Each REC confirms that one megawatt of electricity was generated from renewable energy (e.g., wind, solar, geothermal, etc.). The Plan provides that the acquisition of RECS is not limited to purchase from CARB, CCAR, or the Air Districts." Pages 6 & 7, Section 1.1, bullets a) and b): a) "Use California Air Resources Board (CARB), California Climate Action Registry (CCAR), and/or California Air District approved protocols and mechanisms for all emission reduction measures proposed to offset the net GHG emissions from Poseidon's purchased electricity use, except for RECs.- On-site and project-related measures identified in the Plan are used to calculate the project's net GHG emissions and are therefore not subject to the CARB, CCAR, or Air District requirements regarding offsetting the net GHG emissions.7 b) Join the CCAR "Climate Action Reserve" and other entities that require the use of CARB-, CCAR-, or California Air District-approved protocols to implement the Plan's emission reduction measures and provide necessary accounting of those measures, except for RECs." "- As noted previously, each REC confirms that one megawatt of electricity was generated from renewable energy (e.g., wind, solar, geothermal, etc.). The Plan provides that the acquisition of RECS is not limited to purchase from CARB, CCAR, or the Air Districts." Addendum for Item W16b: E-06-013 - GHG Plan Condition Compliance December 9, 2008 Page 3 of 6 Page 10, second full paragraph: "Based on the above, it is appropriate for the Commission to use AB 32 and its implementing regulations, protocols, criteria, and mechanisms as the basis for its review and approval of the provisions of Poseidon's Plan regarding offsetting the project's net GHG emissions. The Commission includes the Plan's identified on-site and project- related measures as part of Poseidon's calculation of the project's net GHG emissions and these measures, along with RECs, therefore will not be subject to the Commission's requirement that Poseidon use CARB-, CCAR-, or Air District- approved AB 32 regulations, protocols, or mechanisms regarding offsets for net GHG emissions. The California Center for Sustainable Energy (CCSE) or other consultant will prepare annual reports that will, among other things, analyze whether Poseidon acquired offsets and/or RECs in accordance with the Plan's requirements, including consistency with the six AB 32 criteria identified below. The annual report is subject to the Executive Director's review and approval. This approach is supported by other agencies that have been involved in Commission staffs review, including CARS, the San Diego Air Pollution Control District (SDAPCD), the State Lands Commission (SLC), and the California Energy Commission (CEC), all of which requested that Poseidon use AB 32 provisions to develop and implement its Plan. Implementing Coastal Act requirements using the terms, criteria, and mechanisms provided through AB 32 would result in the Plan's conformity to Special Condition 10. Additionally, this would ensure the Plan is consistent with the state goals and targets expressed in AB 32, and would result in maximum credible and verifiable emissions reductions." Page 12, first partial paragraph, last sentence: "Only the remaining provisions of the Plan intended to offset the project's net GHG emissions, except for RECs, are subject to CARB-, CCAR-, or Air District-approved AB 32 protocols." Page 12, last paragraph, continuing to page 13: "As recommended by CARB and other agencies, Commission staff provided in its review of Poseidon's proposed Plan an initial application of these six criteria to assess whether Poseidon's suggested emissions reduction measures might conform to AB 32. The Commission finds in Section 4.0 of these Findings that emission reduction measures to offset the project's net GHG emissions, except for RECs. must comply with CARB-, CCAR-, and/or Air District-approved measures and protocols and that Poseidon must purchase or implement these offsets through CCAR, CARB, or a California air district. If offsets cannot be acquired through these entities due to price or inadequate supply at a price that is reasonably equivalent to the price for offsets in the broader domestic market, Poseidon may request the Commission's Executive Director to approve purchases of offsets or implementation of projects from other entities. Poseidon may also, upon approval of the Executive Director or the Commission, deposit funds into an escrow account in lieu of purchasing offsets/RECs in the event that (i) offset/REC projects in an amount necessary to mitigate the Project's net indirect GHG emissions are not reasonably available; (ii) the "market price" for carbon offsets or RECs is not Addendum for Item W16b: E-06-013 - GHG Plan Condition Compliance December 9, 2008 Page 4 of 6 reasonably discernable; (iii) the market for offsets/RECs is suffering from significant market disruptions or instability; or, (iv) the market price has escalated to a level that renders the purchase of offsets/RECs economically infeasible to Poseidon. The funds placed in escrow will be paid in an amount equal to $10 per metric ton, adjusted for inflation from 2008, and will be used to fund offset projects as they become available, with the Executive Director or Commission determining the entities that may use these funds and the time period for which this contingency may be used. With these modifications, the Plan is consistent with Special Condition 10 and applicable Coastal Act requirements." Page 14, last partial bulleted paragraph describing Section 4.2.1: "Section 4,2.1 - Use CARB-, CCAR-, and/or California Air District-approved protocols and mechanisms for all emission reduction measures proposed, except for RECs, to offset the net GHG emissions from Poseidon's purchased electricity are "net zero"." Page 15, bulleted paragraph near top of page describing Section 4.2.2: "Section 4.2.2 - Join the CCAR "Climate Action Reserve" and other entities that require the use of CARB-, CCAR-, or California Air District-approved protocols to implement the Plan's emission reduction measures, except for RECs, and provide necessary accounting of those measures." Page 17, last paragraph, continuing to page 18: "As noted in Section 2.0, AB 32 includes a number of provisions meant to apply to emission reductions measures such as those Poseidon is proposing to offset its net GHG emissions. The Commission's primary modification is to require that Poseidon's Plan use these provisions to ensure these proposed emission reduction measures (i.e., those needed to reach net zero emissions after on-site and project-related measures are factored in), except for RECs, fit within the framework California has established for this type of project. The existing or anticipated protocols and mechanisms being implemented by CARB, CCAR, and/or California Air Districts pursuant to AB 32 can be used to evaluate these proposed emission reduction measures, except for RECs." Page 19, first partial paragraph: "The best way to ensure Poseidon's Plan provides the intended result - that is, to mitigate for Poseidon's net indirect GHG emissions - is for the Plan's offset provisions to be based on the protocols and mechanisms that are already approved or that will be approved pursuant to AB 32. The Commission's approval therefore requires that, with respect to offsetting the project's net GHG emissions (i.e., for other than Poseidon's identified on-site and project-related measures), except for RECs, Poseidon te-must select emission reduction measures and project proposals for which there are CARB-, CCAR-, or California Air District-approved project protocols and must purchase emission reduction offsets or credits, except for RECs, approved by CARB-, CCAR-, or California Air District-accredited verifiers." Addendum for Item W16b: E-06-013 - GHG Plan Condition Compliance December 9, 2008 Page 5 of 6 Page 19, last paragraph: "As noted above, AB 32's criteria are expected to apply to a wide range of emission reduction measures, including those implemented for both regulatory and voluntary efforts, which include Poseidon's. The Commission has determined, therefore, that the Plan will use one set of criteria - those established in AB 32 - to apply to the measures it proposes to mitigate for the net indirect GHG emissions resulting from its use of purchased electricity.18 This allows Poseidon's Plan to use a single, clear, and applicable set of criteria by which some of its emission reduction measures can be verified and incorporated into California's emission reduction framework. Trying to implement the Plan using three sets of different and sometimes overlapping or conflicting criteria would likely cause confusion and uncertainty and would not allow some of Poseidon's proposed measures to be adequately reviewed and verified. By relying on these criteria and on CARB's and CCAR's implementation of AB 32 each year's review and approval by the Executive Director of Poseidon's annual report, the Commission will have adequate assurance that Poseidon's modified Plan will conform to Special Condition 10. The Commission will also be assured that its review will be consistent with the framework the state has selected for addressing the need to reduce GHG emissions, and Poseidon will be able to validate some of its GHG emission reduction efforts ef-feet measures, including RECs, as part of California's program." Page 20, first paragraph, last sentence: "The Commission also authorizes the Executive Director to approve, upon Poseidon's request, the use of emission reduction measures that may be available from entities other than CARB, CCAR, or the Air Districts if offsets are not available from GARB, CCAR, or the Air Districts at a price that is reasonably equivalent to the price of offsets in the broader domestic market." Page 21, second paragraph: "The Commission modifies the Plan to require that Poseidon join CCAR's Climate Action Reserve, which is a program within CCAR, so that it could it implement some of acquire and verify offsets purchased under its Plan through the Reserve. The Reserve was designed specifically for the voluntary GHG emission reduction market. The Reserve provides account holders accurate and transparent measurement, verification, and tracking of GHG reduction projects and inventories of their GHG reductions offsets, thus assuring a high degree of integrity." Page 22, first full paragraph: "The Commission finds that the Project's energy minimization features described above will minimize the Project's energy consumption in accordance with Coastal Act Section 30253(4) and reduce impacts to coastal resources. Additionally, the Plan will mitigate impacts from the desalination facility's net GHG emissions from electrical usage by requiring all such net GHG impacts of the project be offset, and the Commission finds that the Plan will mitigate to the maximum extent feasible impacts on coastal resources Addendum for Item W16b: E-06-013 - GHG Plan Condition Compliance December 9, 2008 Page 6 of 6 of the project's net GHG emissions, in accordance with applicable Coastal Act policies, including Section 30260." Page 22-23, Section 4.3: 4.3 Submit annual reports for Commission staff review and approval "Poseidon's Plan includes an annual review process to ensure that the Commission has an opportunity to review the results of Poseidon's implemented emission reduction measures each year and to determine conformity to Special Condition JO. Poseidon has agreed to provide an annual report for Executive Director review and approval (see Exhibit 1 insert: July 24, 2008, Memorandum to File - Plan Modifications Agreed to By Poseidon and Commission Staff). As noted in the Plan, Poseidon will have its contractor initially analyze and validate the project's annual GHG emission calculations, the positive or negative balance of Poseidon's net emissions, the acquisition of offsets and/or RECs, and other related information. The type and amount of emission reductions is expected to vary each year based on the annual update of SDG&E's certified emission factor and the amount of electricity Poseidon purchases each year from SDG&E. However, the current Plan proposes a complex reporting method involving different timelines;, committee review, RFP submittals and approvals, accounting methods, and other elements. Staffs recommendation is that Poseidon's annual report submittal be based-on the review and timing needed to conform to the particular AB 32-related review processes Poseidon chooses to implement its Plan. The report should is to describe and account for all approved emission reduction measures and is to include both an annual and cumulative balance of Poseidon's net emissions; however, the particular mechanisms to develop each year;s report may vary. For example, as a member of the Reserve described above, Poseidon will have its own account that reflects the amount of emission reductions credits it owns. This accounting service negates-the need for Poseidon's committee, SDAPGD, or Commission staff to perform this function. It also eliminates the need for the committee to serve as a third party reviewer, as this would be provided by the Reserve. If Poseidon were to join the Reserve and use its accounting services for the annual report, the review process would be simplified and would provide Commission staff with a full account of its emission reduction credits that are CARS and/or CCAR approved. This recommendation would also provides the Commission with the necessary level of assurance that Poseidon's Plan is conforming to Special Condition 10 and meeting the Commission's expectations as expressed in its Findings." SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER Date: 12/05/2008 Time: 10:00:00 AM Dept: C-71 Judicial Officer Presiding: Judge Ronald S. Prager Clerk: Kathleen Sandoval Bailiff/Court Attendant: L Wilks ERM: Peter Stewart Case Init. Date: 02/08/2008 Case No: 37-2008-00077646-CU-MC-CTL Case Title: Unite-Here Local 30 vs. San Diego Unified Port District Case Category: Civil - Unlimited Case Type: Misc Complaints - Other Event Type: Hearing on Petition Causal Document & Date Filed: Appearances: The Court, having taken the above-entitled matter under submission on 12/05/2008 and having fullyconsidered the arguments of all parties, both written and oral, as well as the evidence presented^ nowrules as follows: RULING AFTER ORAL ARGUMENT: The Court rules on petitioner Unite-Here Local 30's ("Petitioner")petition for writ of mandate ("Petition") as follows: After taking the matter under submission, the Court affirms its tentative ruling. The Court's ruling will serve as the Court's Statement of Decision pursuant to California Rules of Court,rule 3.1590. Petitioner is a union of workers in the airport, apparel/textile, distribution/retail, gaming, hotel laundry and other industries. (Petition, fill.) Petitioner is represented by attorneys Rory R. Wicks, Marco A.Gonzalez, and Chnstian C. Polychron of the Coast Law Group, LLP. Respondent Is the San Diego Unified Port District ("Respondent"). Respondent is represented byMichael M. Hogan of Hogan Guiney Dick LLP. The Real Party In Interest is Lane Field San Diego Developers, LLC ("RPI"), a limited liability company. The RP! is represented by Dana J. Dunwoody ofSheppard, Mullin, Richter & Hampton LLP. Petitioner challenges Respondent's decision, on January 8, 2008, to approve the Lane Field Development Project ("2008 Project" or "Project"), including the resolution and findings that the Project is within the scope of the North Embareadero Alliance Visionary Plan Mater Environmental Impact Reportf'MEIR") and that "no new environmental document or findings...are required" under the CaliforniaEnvironmental Quality Act ("CEQA"). (Pub. Resources Code §21000 et seq.) The Project is a mixed-use blend of hotels, public spaces, shopping, a health club, restaurants, andpublic parking. (1 AR 14:415, 420, 483.) The 2008 Project proposes to construct 800 hotel rooms, with a 525-room hotel on the south parcel and a 275-room hotel on the north parcel. Rather than a 400,000 Date: 12/05/2008 ~ MINUTE ORDER Page: 1 Dept: C-71 Calendar No.: 52 Case Title: Unite-Here Local 30 vs. San Diego Unified Case No: 37-2008-00077646-CU-MC-CTL Port District square foot office building, the 2008 Project proposes 80,000 square feet of retail space, with 50,000 . square feet on the south parcel and 30,000 square feet on the north parcel. (1 AR 14:420.) In addition,the 2008 Project will have a substantially lower floor area ratio and maximum height and substantially wider street setbacks at the west side of Broadway than were analyzed in the MEIR. (1 AR 14:416, 420-421.) ' The Court has reviewed the record in light of the parties' briefs and the applicable law and concludes the petition for writ of mandate should be denied for the reasons stated below. The first issue is whether Respondent abused its discretion by failing to require a subsequent MElR orsupplement to the ME/R. Standard of Review. The parties agree that the appropriate standard for analyzing this issue is the substantial evidence test. • CEQA's general provisions for requiring a supplemental or subsequent environmental impact report ("SEIR") are set forth in Public Resources Code section 21166. It states: When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall oe required by the lead agency or by any responsible agency, unless one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes pccur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. {c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. Califprnia Code of Regulations, Title 14 ("CEQA Guidelines") section 15162 states that if a project considered in a certified EIR requires "further discretionary approval" and the "substantial changes or "new information" discussed in section 21166 are present, then a SEIR must be prepared by the agencythat grants the next discretionary approval. (Cal. Code Regs., tit. 14, §15162(c).) CEQA authorizes the use of a MEIR for a plan which consists of several individual projects that will be carried out in phases. (Pub. Resources Code §21157(3).) A MEIR is intended to allow for substantially reduced environmental review of subsequent projects tnat are within the scope of the MEIR. (Pub. Resources Code §§21156, 21157(a).) Where, as here, a MEIR is certified more than five years pri9r to the filing of an application for a subsequent project, a lead agency may use a MEIR for streamlined review of the subsequent project if it reviews trie adequacy of the MEIR and finds that (1) no substantial changes have occurred with respect to the circumstances under which the MEIR was certified, or (2) no new information, which was not known and could not have been known, at the time that the MEIR was _ .._„.... , §T£ sfioulcf include "a brief explanation" of the decision not to prepare a SEIR which mus't 'be supported bysubstantial evidence." (Cal. Code Regs, tit. 14, §15l64(e).) Petitioner made five principle arguments. First, Petitioner's expert, Dr. Petra Pless ("Pless"), opined that new information and changed circumstances regarding PM2.5 emissions exist. More specifically, Pless stated that a new informational and regulatory framework for particulate smaller than 2.5 micrometerswas developed after certification of the MEIR. (3 AR 52:1894, 1897-1898, 1900.) However, Petitioner failed to disclose that the MEIR discussed PM2.5 and diesel exhaust emissions, analyzed whether they would result in a significant impact, and determined their impact would be less than significant. (7 AK 174:4483-4485, 4671; 8 AR 176:5502-5506.) The failure to discuss the evidence supporting Respondent's decision and to show why It is lacking is deemed a concession that the evidence support'sthe agency's decision and is fatal to Petitioner's claim. (Citizens for a Mega-plex Fee Alameda v. City of Alameda (2007) 149 Cal.App.4th 91,112-113.) Date: 12/0572008 : " MINUTE ORDER ~ Page:!" Dept: C-71 Calendar No.: 52 Csfee Title: Unite-Here Local 30 vs. San Diego Unified Case No: 37-2008-00077646-CU-MC-CTL Port District . ^ Second. Petitioner argued that the following constituted substantial changes to the Project: (1) theomission of 1220 Pacific Highway from the current Project (1 AR 14:427) and (2) changed uses. With respect to the former, Respondent correctly noted that a project which proposed less development than was analyzed in a previous EIR is not subject to further environmental review, (Snarled Traffic Obstructs Progress v. City and County of San Francisco (1999) 74 Cal.App.4th 793. 800-801.) Here, the 2008 Project involves development of only two of the three parcels contemplated in the MEIR (1 AR 14:415-416) and replaces 400,000 square feet of office space with 80,000 sq. ft. for retail, restaurant, and other uses (1 AR 416). Furthermore, the 2008 Project will have a substantially lower floor area ratio and maximum height and substantially wider street setbacks at the west side of Broadway than wereanalyzed in the MBR. (1 AR 14:416, 420-421.) With respect to the latter, Petitioner's claims fail for three reasons: (1) a misunderstanding of the data contained in the MEIR and the Addendum, (2J the de minimis increase in ADTs does not constitute a "substantial change" in circumstances, and (3) its disagreement with the Addendum's traffic analysis does not require preparation of a subsequent or supplemental EIR. As to the first point, Respondent's use of the trip generation rates by the Institute of Transportation Engineers ("ITE") in the Addendum rather that the Centre City trip generation rates used in the MEIRoverestimated rather than underestimated the potential impacts of the 2008 Project. For example, theAddendum did not take into account assumed internal capture rate or discount of 40 percent authorizedby the ITE model for hotel guests who would not use a car to visit the retail shops. (1 AR 14:445, 2 AR 18:960.) In addition, had the Addendum used the Centre City rates, the 2008 Project's retail space would have been shown to generate only 1,440 ADTs, or 60 percent fewer trips than were considered in the Addendum. Two, Petitioner's estimate of the 2008 Project's ADTs show only a de minimis increase over the ADTs analyzed in the MEIR since Petitioner calculates that the 2008 Project would generate only 131 ADTs more than the estimate in the MEIR. An Increase of 1.3 percent in the ADTs would not constitute a substantial change in circumstances requiring preparation of a subsequent or supplemental EIR. (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1803\ Citizens Action toServe All Students v. Thornley (1990) 222 Cal.App.3d 748, 755, and Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538. 1545-1546.) Three, Disputes between the parties as to the methodology and conclusions of technical studies does not mean an agency's environmental review is inadequate. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 545, Federation of Hillside & Canyons Assns. v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1259, Citizens Action, supra, 222 Cal.App.3d at p. 755, and No Slo Transit, Inc. v. City-of Long Beach (1987) 197 Cal.App.3d 241, 255!) Thus. Petitioner's disagreement with Respondent's traffic analysis does not mean additional environmental review is required. Here, there is substantial evidence to support Respondent's conclusion that the 2008 Project would have lesser traffic and air-quality impacts than were studied in the MEIR. (1 AR 14:444-446, 485-490, .7 AR 174:4640-4645, 8 AR 176:5222-5314.) Third, Petitioner argued that new information and changed circumstances (i.e., the passage of AB 32 and SB 97) regarding greenhouse emissions ("GHG") require a revised CtQA document. (3 AR51:1862, 1681, 1900.) Petitioner's clajms fail for three reasons: (1) information regarding GHGemissions do not constitute new information because it was available long before the MEIR was certified (See e.g., Massachusetts v. EPA (2007) 549 U.S. 497), (2) neither AB 32, SB 97, nor any reportedappellate decision requires CEQA review of GHG emissions, and (3) despite the absence of regulatoryrequirements, the design of the Project incorporates numerous features which substantially reduce GHGemissions. The features include the installation of a solar photovoltaic system which will generate approximately 131.400 kwh of electricity annually, a hydrogen/oxygen fuel cell which will generate 4.3 million kwh per year of electrical power and 197 k therms of heafing energy, a highly efficient HVAC system which win exceed Title 24 energy requirements by 25 percent, extensive lighting controls, atrium design and building orientation to reduce energy consumption and maximize the use of natural lightingand ventilation, and ultra-efficient water fixtures and the extensive reuse of recycled water which win reduce water demand by approximately 14.5 million gallons per year. (3 AR 48:1832-1844.) Date: 12/05/2008 MINUTE ORDER Page: 3 Dept: C-71 Calendar No.: 52 Cfl3e Title: Unite-Here Local 30 vs. San Diego Unified Case No: 37-2008-00077646-CU-MC-CTL Port District ____ Fourth, Petitioner argued that new information and substantial changes regarding contaminated soil require a SEIR. More specifically. Petitioner cited to a 2006 Assessment prepared by Ninyo & MooreGeotechnical and Environmental Sciences Consultants which identified contaminated soil on the Projectsite. (1 AR 14:459.) Petitioner's experts concluded that it "documented significant pesticide contamination.11 (3 AR 37:1744.) However, there is substantial evidence that trie MEIR and the Addendum adequately examined soil contamination on the Project site. Respondent commissioned three studies of the nature and extent of soil contamination on the Project site: a Phase I site assessment by Ninyo & Moore in May 2006, a Phase II site assessment by Ninyo & Moore in September 2006, and a supplemental Phase II site assessment by Kleinfelder, Inc. in February 2007. (2 AR 19:961,2 AR 20:986, 2 AR 22:1066.) The 2006 Phase II study took 89 soil samples from 39 borings. (2 AR22:1088. Two of the samples detected the pesticides DDE and DDT (Ibid.) and concluded that the sitedid not contain "significant sources of contamination" and the areas where pesticides were found weregoing to be excavated during construction of the proposed hotel (Id. at 1094J The study also found thatthe "screen out and walk away" method to be adequate. (Id. at 1090-1100.) The supplemental 2007Phase II study reached the same conclusions. (2 AR 19:973, 976, 981-982.) The Addendum describedthese studies and fully disclosed their findings and conclusions. (2 AR 14:458-462.) It also analyzed the potential for pesticide run-off into San Diego Bay and identified the mitigation measures required by theMEIR. (1 AR 14:464-468.) These provisions were made conditions of approval of the Project. (1 AR 13:402*403, 405-407.) Finally, as noted above, a disagreement with the methodology or conclusions of the site assessment does not mean additional environmental review is required. Fifth, Petitioner argued that substantial changes and new information exist with respect to: (1) impactsregarding fire, police and other public services (3 AR 52:1873-1878, 1975-1983, 1949-1951, 1957-1958,19BO-1962, 1970-1972. 3 AR 1721-1723, 3 AR 28:1630), (2) water supply (3 AR 52:1883-1887, 2000-2067, 3 AR 28:1633), (3) construction of the Project's two-level subterranean parking structure,which was not part of the project discussed in the MEIR and according to Pless* testimony will cause unreviewed significant impacts related to fugitive dust (PM10) and diesel emissions (3 AR 52:1893-1895, 3 AR 37:773-1736,. 3 AR 28:1631), and (4) geologic faulting beneath the Project site (4 AR 113 and 121, 2 AR 17, 3 AR 28:1618-1619.) None of these issues constitutes a substantial change in circumstances or new information for the reasons stated below. Fire, Police, and other Public Services. Petitioner's claim fails for the reasons stated below. Notably, the City has not adopted the National Fire Protection Association's 1710 standard for emergency response times. Thus, compliance with this standard is not an issue. Furthermore, the 2008 Project proposes lessintensive development and so the demand for public services will be less than what was analyzed in theMEIR. (1 AR 14:481-482.) Notably, the MEIR determined that existing facilities could handle the demandfor pubfie services posed by the Project without adverse effects on current or future service levels. (7 AR174:4685.) Respondent also pointed out that there are plans to build a fire station two blocks from the 2008 Project site (3 AR 28:i630) and that the 2008 Project will contribute its fair share toward the construction of the fire station through its payment of the applicable DIF. (Ibid.) .In addition, the 2008 Project is entirely consistent with the location and demand for public services analyzed in the MEIR (3 AR 28:1630) and. as noted above, is even less intensive than that which was analyzed under the MEIR (1 AR 14:420-421,469-473.) Finally, Police protection within Respondent's tidelands is provided by its Harbor Police Department.Thus, the City's budget does not affect services provided by the Harbor Police. A mutual aid agreementexists between Respondent and the City if additional police are needed. (3 AR 28:1630.) Respondentconcluded that the 2008 Project would create "No New Impact." (1 AR 14:481.) Water Supply Assessments ("WSA"). Petitioner cites to Water Code sections 10910-10915 (3 AR52:1883-1884) as a new legislative requirement and Water Code section 10910 subd. (h){2) and (3) asrequiring the preparation of a new WSA and new information about water supply. However, therequirement to conduct a formal WSA is limited only to cities and counties, not Respondent, which is alocal district established by state statute. If the Legislature had intended to require all lead agencies toprocess a WSA for large development projects, it would have used the term lead agency" instead of 'city or county." Notably, CEQA Guidelines section 15155 subd. (a)(5) limits the WSA requirement to a city or county. The mandate in section 10910 subd. (h)(2) and (3) for a new WSA applies only to citiesand counties. (Wat. Code §10910(a).) Date: 12/05/2008 ~ MINUTE ORDER Page: 4 Dept: C-71 Calendar No.: 52 Cas'e Title: Unite-Here Local 30 vs. San Diego Unified Case No: 37-2008-00077646-CU-MC-CTL Port District . • Fugitive Dust and Diesel Emissions. Contrary to Petitioner's expert's contention that Respondent failed to fist the measures in the permit that would reduce diesel emissions, the MEIR does contain mitigationmeasures to provide for significant construction impacts caused by fugitive dust emissions. (7 AK 174:4488.) More specifically, the MEIR identified six enhanced fugitive dust control measures that "shall be used for all construction projects exceeding five (5) acres in size." (Ibid.) The mitigation measures will be implemented because the 2008 Project is 5.7 acres. (1 AR 14:415.) The fugitive dust emissions mitigation program includes "[(Increased water frequency to at least twice daily,-"sweep/wash public streets at the end of each workday," and "[s]uspend excavation when winds exceed 25 mph," among other things. (7 AR 174:4488.) In addition, dust control measures were imposed on the project as permit conditions, including requiring construction contractors to "keep fugitive dust down by regular watering,"to adequately protect trucks hauling loose material, to limit speeds to 15 mph on unpaved surfaces, andto keep access points "clean and swept as necessary." (1 AR 12:269.) In addition, courts have held that a lead agency is allowed to rely on its own experts and that a dispute between experts as to methodology and conclusions of technical studies does not render a leadagency's environmental review inadequate. (Laurel Heights Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.Sd 376, 409.) Here, Respondent based its finding of less than significant air impacts from its experts who prepared the Initial Study/Addendum. (1 AR 14:444-446.) Notably, Respondent found Pless' argument that the MEIR contemplated an above-ground parking structure rather than an underground parking structure (3 AR 37:1734) is not supported by the record (6AR 172:3738). Finally, the evaluation of the 2008 Project independent of the future 1220 Pacific Highway project does not constitute piecemealing of analyses because the MEIR envisioned that the two projects would be developed and evaluated separately. The MEIR is consistent with the NEVP; which clearly indicates that the two projects are distinct. (1 AR 14:426, 6 AR 172:3664.) Geologic Faulting. Respondent found that "the potential for ground rupture to occur on the site due to tectonic activity on known faults is considered to be less man significant." (1 AR 14:452-456.) Thefinding was based, in part, on the expert evidence provided in a geotechnical report prepared by GeocpnIncorporated in May 2007, which had not been released at the time Johnson wrote the letter. (1 AR14:452-456.) Furthermore, the geotechnical information-is,not new information because the MEIR covered the issue of site-specific geotechnical evaluations in requiring that an Initial Study/Addendum be completed; and, in fact, an Initial Study/Addendum was completed pursuant to the MEIR. (3 AR 28:1618-1019:) Finally, the City's geologist reviewed the geotechnical report and concluded that "the submitted report is considered to have adequately addressed the geotechnical aspects of the site." (4AR65:2105.) In sum, the Court finds that Respondent did not abuse its discretion by failing to require a subsequent MEIR or supplement to the MEIR. The second issue is whether Respondent abused its discretion by not preparing a new environmental document for the Project. Standard ot Review. The parties disagree on the appropriate standard of review. Petitioner contends that the fair argument test applies while the Respondent and RPI contend that the substantial evidencetest applies. Foiblic Resources Code section 21157.1 states, in relevant part, that a MEIR allows for"limited review of subsequent projects that were described in the [MEIR] as being within the scope of the report" if certain requirements are met. (See also Gal. Code Regs., tit. 14, §15177 (a)-"After a [MEIR] has been prepared and certified, subsequent projects which the lead agency determines as being within the scope of the [MEIR] will be subject to only limited environmental review".) "Whether a subsequentproject is within the scope of the [MEIR] is a question of fact to be determined by the lead agency. (Cal.Code Regs, tit. 14, §15i77(c).) Petitioner's argument that the review of Respondent's decision should be subject to the lower threshold fair argument standard runs counter to intent to limit further review that theabove noted statue and applicable CEQA Guidelines. Furthermore, the fair argument standard is mostfrequently applied when an agency decides not to prepare an EIR in the first instance, which is not atissue here. Although the Court recognizes that the court in Citizens for Responsible Equitable Environmental Development v. City of San Diego (2005) 134 Cal.App.4th 598 (hereafter "CREED") was dealing with a program EIR, this Court finds {hat its reasons for declining to apply the fair argument standard should be applied in this context. (CREED, supra, 134 Cal:App.4th at p. 257-258-"the fair Date: 12/05/2008 'MINUTE ORDER Page: 5 Dept: C-71 Calendar No.: 52 Case Title: Unite-Here Local 30 vs. San Diego Unified Case No: 37-2008-Q0077646-CU-MC-CTL Port District argument standard does not apply to Judicial review of an agency's determination that a_project is' the scope of a previously completed EIR [Citation] Once an agency has prepared an EIR. its decisionnot to prepare a supplemental or subsequent EIR for a later project is reviewed under the deferentialsubstantial evidence standard.") Notably, the court in American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062,1073, stated that the fair argument standard does not apply where section 21166 applies. Here, it is undisputed that section 21166 appl|es to this case. Notably, Petitioner did not contend that the 2008 Project was a new project.Thus, Petitioner's analogy to tiered EIRs and citation to Sierra Club v. County of Sonoma (1997) 6 Cal.App.4th 1307 is misplaced. Given the above/the Court concludes that the substantial evidencestandard should be applied in this case. As to Petitioner's arguments regarding PM2.5 emissions, soil contamination, seismic faulting and other significant additional effects, no new environmental document is required because the Respondent adequately considered the potential impacts of these items for the reasons stated above. Based on the foregoing, the Court denies Petitioner's writ of mandate. Respondent is directed to preparethe Judgment. IT IS SO ORDERED. Date: 12/05/2008 Dept: C-71 MINUTE ORDER Page: 6 Calendar No.: 52 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO Central 330 West BroadwaySan DiegOiCA92101 SHORT TITLE: Unite-Here Local 30 vs. San Diego Unified Port District CLERK'S CERTIFICATE OF SERVICE BY MAIL CASE NUMBER: 37-2008-00077646-CU-MC-CTL I certify that I am not a party to this cause. I certify that a true copy of the attached was mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as indicated befow. The mailing and this certification occurred at San Diego. California, on 12/09/^008. Cterk of the Court, by: J CHRIS POLYCHRON 169 SAXONY ROA0. SUITE 201 ENCINITAS, CA 92024 MICHAEL M. HOGAN 225 BROADWAY STE 1900 SAN DIEGO, CA 92101 ., Deputy \. I Additional names and address attached. CLERK'S CERTIFICATE OF SERVICE BY MAIL 8 18 19 24 25 26 RoryR. Wicks (85340) Todd T.Cardiff (221851) Rachel C. Lipsky (239128) COAST LAW GROUP LLP 169 Saxony Road, Suite 204 Encimtas, California 92024 Telephone: (760) 942-8505 Facsimile: (760)942-8515 Attorneys for Petitioners SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE GROUP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION SOUTHERN CALIFORNIA WATERSHED ALLIANCE, an unincorporated association; DESAL RESPONSE GROUP, an unincorporated) G JN05408? PETITION FOR WRIT OF MANDATE ) Case No. ) association, vs. Petitioners, [Filed Under CEQA For Assignment To Superior Court's Designated CEQA Judge] CITY OF CARLSBAD, a municipal entity, Respondent. POSEIDON RESOURCES (CHANNELSIDE) ) LLC, a Delaware limited liability company; ) CABRILLO POWER I LLC, a Delaware limited ) liability company, ) Real Parties in Interest.) FIRST CAUSE OF ACTION (Violations of the California Environmental Quality Act Against Respondent and All Real Parties-In-Inlerest) Petitioners SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE I PETITION FOR WRIT OF MANDATE SLC003510 3 4 S 6 7 8 9 10 I! 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GROUP allege: SUMMARY OF PETITION 1. Petitioners' SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE GROUP seek a stay, temporary restraining order and preliminary injunction enjoining construction and operation of the proposed Carlsbad Seawater Desalination Facility (project) until the Court can rule on the merits of this petition; an order adjudicating that respondent CITY OF CARLSBAD (City)'s Final Environmental Impact Report (FEIR) on the project fails to comply with the California Environmental Quality Act, Public Resources Code §§ 21000, et seq. (CEQA); a writ of mandate vacating, setting aside and voiding respondent's resolution approving the application of real party-in-interest POSEIDON RESOURCES (CHANNELSIDE) LLC; an order certifying that the FEIR was not prepared in compliance with CEQA; an order suspending all project activities that could result in an adverse change or alteration to the physical environment until the City has taken actions necessary to bring the FEIR into compliance with CEQA; and an order that the Court retain jurisdiction over the City's proceedings by way of a return to the peremptory writ until the Court has determined that that the City has fully complied with CEQA. 2. The Court should issue this relief under Code of Civil Procedure sections 1085 and 1094.5 because the FEIR does not reflect a good faith effort at full disclosure and fails to comply with CEQA; the City prejudically abused its discretion in certifying that the FEIR complies with CEQA; the City's decision to certify the FEIR is not supported by substantial evidence; and the City has not proceeded in the manner required by law in violation of CEQA, Public Resources Code sections 21168 and 21168.5, as more fully alleged in the following paragraphs. JURISDICTION AND VENUE 3. The San Diego County Superior Court has jurisdiction of this action under Code pf Civil Procedure section 393(b) because petitioners' cause of action arose in the County of San Diego. 4. The North County Division is the proper venue for this action, pursuant to San Diego Superior Court Rule 1.2.2(E), and Appendix 1 -A, and because the project is located and the City and real parties in interest conduct business within the North County Division. PETITION FOR WRIT OF MANDATE SLC003511 10 II 12 13 14 15 i6 17 IS 19 20 21 22 23 24 25 26 27 PARTIES 5. Petitioner SOUTHERN CALIFORNIA WATERSHED ALLIANCE (Alliance) is, and at times herein mentioned has been, an unincorporated association of local, regional and nation-wide environmental organizations including the Surfrider Foundation, the Center for Biological Diversity, the Sierra Club-San Diego Chapter, the San Diego Audubon Society, San Diego Baykeeper, The Ocean Conservancy, California Earthcorps, Public Citizen, Friends of the Sea Otter, Elkhom Slough Coalition, Save Our Shores, Save Our Waterfront Committee, Friends and Artists of the Elkhorn Slough, and the California Coastal Protection Network, organized and existing under the laws of California, with its principal place of business in Ericino, Los Angeles County, California. 6. Petitioner DESAL RESPONSE GROUP (Desal Response Group) is, and at times herein mentioned has been, an unincorporated association duly organized and existing under and by virtue of the laws of the State of California consisting of approximately seventeen non-profit membership corporations and associations including the SOUTHERN CALIFORNIA WATERSHED ALLIANCE, •with its principal place of business in Santa Monica, Los Angeles County, California. 7. Petitioners are informed and believe and thereon allege that respondent CITY OF CARLSBAD (City) is a municipal entity, organized and existing under the laws of California, and doing business and with offices located in Carlsbad, San Diego County, California. 8. Petitioners are informed and believe and thereon allege that real party-in-interest POSEIDON RESOURCES (CHANNELSIDE) LLC (Poseidon) is a limited liability company, organized and existing under the laws of Delaware, with offices located in Stamford, Connecticut, and authorized to do and doing business in Carlsbad, San Diego County, California. 9. Petitioners are informed and believe and thereon allege that real party-in-interest CABRILLO POWER I LLC (Cabrillo) is a limited liability company, organized and existing under the laws of Delaware, with offices located in Houston, Texas, and authorized to do and doing business in Carlsbad, San Diego County, California. STANDING, EXHAUSTION AND CEQA COMPLIANCE ] 0. Petitioners as environmental organizations, and as representatives on behalf of their members, have a geographical nexus with the affected environment, are beneficially interested in the 3 PETITION FOR WRIT OF MANDATE SLC003512 s 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 subject matter of this petition and will be adversely affected by the environmental impacts from operation of the project, and therefore meet all standing requirements for prosecuting this petition in full compliance with Code of Civil Procedure section 1086. 11. Petitioners are informed and believe and thereon allege that the project will cause significant unmitigable environmental impacts to the ocean, marine life and marine ecosystems: The existing Encina Power Station (power plant) is an aging power plant. The power plant uses a "once- through cooling system" which takes in approximately 600 million gallons a day of seawater directly from the estuarine waters of the adjacent Agua Hedionda Lagoon to cool the power plant's steam- powered turbine system (described as "source water intake" in the FELR); the power plant's taking in seawater results in two conditions which kill fish, larger marine animals and small marine organisms; the power plant's taking in seawater results in "entrainment," that is, the pulling in of fish or larger marine animals into the power plant's intake which results in the trapping offish or large marine animals against screens within the intake, causing their death or injury due to water pressure, abrasion, thermal effects or other causes; the power plant's taking in seawater also results in "impingement," that is, the power plant's intake draws in small marine organisms such as plankton, larvae, fish eggs and other animals along with seawater, causing these small organisms to be pulled through the intake screens, resulting in their being heated, crushed and killed as they are drawn through the facility; the killing of these fish, larger marine animals and small marine organisms causes significant environmental impacts to the ocean and vital marine ecosystems; adding the desalination plant to the aging power plant will extend the current life of the power plant thereby causing further killing of fish, larger marine animals and small marine organisms and further significant environmental impacts to the ocean and vital marine ecosystems; the project proponent then proposes that after the power plant uses that seawater for cooling purposes, up to 104 million gallons a day of that seawater will be diverted from the power plant and piped to the desalination facility; that seawater will then be pre-treated and filtered through reverse osmosis membranes at the desalination plant to produce potable water; an effect of the reverse osmosis treatment is that any small marine organisms that survived the transportation through the power plant's cooling system will then be killed at the desalination facility; the additional killing of small marine organisms causes further significant environmental impacts to the ocean and vital marine ecosystems; PETITION FOR WRIT OF MANDATE SLC003513 r, 7 S 9 10 II 12 13 14 15 16 17 18 1.9 20 21 22 23 24 25 26 27 28 another by-product of the reverse osmosis treatment process is that approximately 50 millions gallons a day of concentrated water with twice the salt content of seawater (7.0 percent vs. 3.5 percent) will be produced (concentrated brine); the concentrated brine will then be mixed with seawater from the power plant's cooling water system and then discharged back into the ocean (described as by-product water discharge in the FEIR); and the discharge of the concentrated brine from the project into the ocean will cause further significant environmental impacts to the ocean and vital marine ecosystems. 12. Petitioner SOUTHERN CALIFORNIA WATER ALLIANCE (Alliance) works within the Southern California Bight from Point Conception, Santa Barbara County in the north, to Ensenada, Baja Frontera. Mexico, in the south, on watershed, water conservation, restoration of southern steelhead trout, and water quality problems. The Alliance works on legislation, funding, environmental impact reports (EIRs) and litigation issues to promote watershed, water conservation, restoration of southern steelhead trout, and water quality issues, giving credit to the successes of Southern California based organizations. The interests that the Alliance seeks to protect in this petition are therefore germane to its fundamental purpose. The Alliance brings this petition on its own behalf. 13. Some of the environmental organizations which are associated as the Alliance, including the Surfnder Foundation, the Center for Biological Diversity, the Sierra Club-San Diego Chapter, the San Diego Audubon Society, San Diego Baykeeper, The Ocean Conservancy, California Earthco.rps, Public Citizen, Friends of the Sea Otter, Elkhorn Slough Coalition, Save Our Shores, Save Our Waterfront Committee, Friends and Artists of the Elkhorn Slough, and the California Coastal Protection Network, have members and families which reside, own property and work in the City of Carlsbad and the County of San Diego. These members and their families have a geographical nexus with the affected environment. Some of these members and their families recreate in the coastal waters off of the City of Carlsbad. Some of the these members and their families enjoy recreational activities, and engage in scientific study including monitoring activities, on and adjacent to the City of Carlsbad's beaches and coastal waters. Some of these members and their families enjoy the aesthetics of the City of Carlsbad's beaches and coastal waters. The proposed operation of the project will interfere with the enjoyment of recreational, scientific and aesthetic activities by these members and their families. These members and their families will therefore be directly and adversely affected by the significant environmental impacts PETITION FOR WRIT OF MANDATE SLC003514 I 2 3 4 5 6 7 g 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the City of Carlsbad's beaches and coastal waters caused by operation of the proposed project; and are within the class of persons beneficialJy interested in the subject matter of this petition. The recreational, aesthetic, scientific, educational and conservation interests of these members and their families will be, unless the relief prayed herein is granted, affected and irreparably injured by operation of the proposed project. The injuries of these members and their families are actual concrete injuries and will be redressed by the relief sought herein. Petitioners have no adequate remedy at law. The Alliance also brings this petition on behalf of these members and their families. 14. Petitioner DESAL RESPONSE GROUP (Desal Response Group) was initially formed when entities and individuals interested in ocean water desalination brought together environmental organizations working on diverse issues such as water conservation, watershed management, drinking water quality, beach pollution, marine issues (including fisheries and sanctuaries) and ocean water quality, to discuss the potential for desalination plants in Southern California. DesaJ Response Group allied with regional and local groups concerned about the rush to place desalination plants in their neighborhoods. Desal Response Group today communicates with organizations across the country, participates in conferences, responds to EIRs prepared on proposed desalination facilities, works on related legislation, and produces educational materials on all issues concerning ocean desalination. The interests that DesaJ Response Group seeks to protect in this petition are therefore germane to its fundamental purpose. Desal Response Group brings this petition on its own behalf. DesaJ Response Group also brings this complaint on behalf of its members. 15. The claims asserted and the relief requested in this petition does not require that petitioners' individual members directly participate as parties to this lawsuit. 16. Petitioners have performed all conditions precedent to filing this action. 17. The Alliance, the Desal Response Group and their members exhausted all administrative remedies in full compliance with Public Resources Code section 21177(b) by objecting to the approval of the project orally and in writing prior to the close of the public hearing on the project before the issuance of the notice of determination. The City's determinations are final and no further appeal procedures are provided by State or local law. PETITION FOR WRIT Of MANDATE SLC003515 10 12 13 )4 15 16 17 18 19 20 21 22 23 24 25 26 27 2g ] 8. Each ground for noncompliance with CEQA alleged in this petition was presented to the City orally or in writing by a public agency, environmental organization or an individual during the public comment period provided by CEQA or prior to the close of the public hearing on the project before the issuance of the notice of determination. 19. Petitioners served a written notice of intent to commence this action in full compliance with Public Resources Code section 21167.5 on July 18, 2006. 20. Petitioners will seek leave at the time of the hearing on the merits to amend this petition to conform to proof that petitioners timely completed all procedural requirements for prosecuting this action to judgment including the following: Petitioners timely filed this action within thirty (30) days of the filing of the Notice of Determination in full compliance with Public Resources Code section 21167(c). Petitioners timely served the petition on the City and real parties in full compliance with Public Resources Code sections 21167.6(a) and 21167.6.5(a). Petitioners timely requested preparation of the record of proceedings in full compliance with Public Resources Code section 21167.6. Petitioners timely gave notice to the California Attorney General in full compliance with Public Resources Code section 21167.7. Petitioners timely served the Statement of Issues in full compliance with Public Resources Code section 21167.8(f). And petitioners timely requested a hearing on the merits in full compliance with Public Resources Code section 21167.4. THE PROJECT AND THE CEQA PROCESS 21. Petitioners are informed and believe and thereon allege that the project consists of the proposal of real party-in-interest, POSEIDON RESOURCES (CHANNELSIDE) LLC (Poseidon), to construct and operate a seawater desalination plant on the site of the Encina Power Station (power plant) located at 4600 Carlsbad Boulevard, Carlsbad, owned and operated by real party-in-interest CABRILLO POWER LLC (Cabrillo); the proposed desalination plant will have the capacity to deliver approximately 50 million gallons of drinking (potable) water per day; the project will include the construction and operation of a water storage facility and a pumping station; the project will include the construction and operation of new pipelines to deliver desalinated water from the desalination plant to Carlsbad and to water districts in the cities of Oceanside and Vista; the project will include the sale of water to Carlsbad and to water districts in the cities of Oceanside and Vista; the project will also include the discharge of PETITION FOR WRIT OF MANDATE SLC003516 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 2) 22 23 24 25 26 27 up to 50 million gallons a day of concentrated brine into the ocean; and the project will include extending the life of the aging power plant (collectively the "project"). 22. Petitioners are informed and believe and thereon allege that the City is the lead agency responsible under CEQA for evaluating the environmental impacts of the project. 23. Petitioners are informed and believe and thereon allege that real parties-in-interest jointly applied to the City for some regulatory approval of the project. 24. Petitioners are informed and believe and thereon allege that on or about April 2004, the City circulated a Notice of Preparation (NOP) of an environmental impact report for the project. 25. Petitioners are informed and believe and thereon allege that on or about May 13, 2005, the City issued a draft environmental impact report for the project (DEIR) for review and comment by public agencies and the public. 26. During the review period, and prior to the close of the public hearing on the City's certification of the FE1R, objections to the adequacy of the DEIR and FEIR and to approval of the project were made orally and in writing to the City. Written objections were made by state public agencies including (he California Coastal Commission (Coastal Commission), the California State Lands Commission (State Lands Commission) and the California Department of Parks and Recreation (Parks and Recreation); by federal public agencies including the National Oceanic and Atmospheric Administration (NOAA); by environmental organizations including the AJliance, the Center for Biological Diversity, Inc., the Planning and Conservation League, the Surfrider Foundation, Heal The Bay and Preserve Calavera; and by residents and groups from the City of Carlsbad and San Diego County. Verbal objections were also made by environmental organizations prior to the close of the public hearing on the City's certification of the FEIR, including the Desal Response Group, Surfrider Foundation and others. Each issue raised in this mandamus action was presented to the City. 27. Petitioners are informed and believe and thereon allege that on or about December 9, 2005, the City issued the FEIR. 28. Petitioners are informed and believe and thereon allege that on or about June 13, 2006, the City adopted a resolution approving the application of real party-in-interest Poseidon for an order certifying that the FEIR was prepared in compliance with CEQA. PETITION FOR WRIT OF MANDATE SLC003517 15 10 17 IS 19 20 21 22 23 24 25 26 27 28 29. Petitioners are informed and believe and thereon allege thai on or about June 19, 2006, the Cily caused a Notice of Determination (NOD) for the FEIR to be recorded in the offices of the Recorder of the County of San Diego. THE FEIR FAILS TO COMPLY WITH CEQA 30. The FEIR does not reflect a good faith effort at full disclosure and therefore fails to comply with CEQA; the City prejudically abused its discretion in certifying that the FEIR complies wit CEQA; the City's decision to certify the FEIR is not supported by substantial evidence; and the City has not proceeded in the manner required by law, in violation of CEQA, Public Resources Code sections 21168 and 21168.5, as more fully alleged in the following paragraphs. 31. For example, the Coasta] Commission objected in writing that "there are numerous significant shortcomings in the D.EIR that makes it inadequate for purposes of CEQA review." INADEQUATE PROJECT DESCRIPTION 32. CEQA (Public Resources Code sects. 21151 and 21065), CEQA Guidelines (14 Cal. Code Regs sects. 15124, 15125, 15126 and 15378(a)) and CEQA case law require that the EIR's project description be accurate. 33. The description of the project in the FEIR is inadequate, and state and federal public agencies, environmental organizations, and residents and groups from the City of Carlsbad objected to the inadequate project description, for reasons including, but not limited to, those set forth in the following paragraphs. 34. The DEIR "does not adequately describe the relationship between the proposed desalination facility and the power plant" and does not describe "how the proposed project will operate both in conjunction with the power plant and independent of the power plant." The description of the project is based on the assumption that the proposed desalination plant will only use seawater that passes through the power plant's cooling system and will not require any additional seawater beyond what is used by the power plant. This assumption for the project description is likely incorrect because the amount of water used by the desalination facility is likely to be substantially higher than water just used by the power plant; the DEIR failed to describe the project if the power plant were to shut down for any period of time; the DEIR failed to describe the project given the uncertainty about future power plant PETITION FOR WRIT OF MANDATE SLC003518 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 operations during the expected operating life of the proposed desalination facility; the DEIR failed to describe the short, medium and long-term operational changes likely to occur in the power plant operations and how those changes may affect the desalination facility; and the DEIR failed to describe the project as the proposed desalination facility operating on its own. 35. Following the City's receipt of the foregoing objections that the DEIR failed to adequately describe how the project will operate independent of the power plant, and only four days before the City's hearing on the proposal to certify the FEIR, on or about June 9, 2006, the City made available to the public a new document purported to address the impacts of the desalination facility as a "stand alone project." The description of the project in that June 9, 2006, document is also not adequate. 36. The FEIR failed to adequately describe the energy demands of the desalination facility and failed to describe the cost of energy to run the desalination facility. 37. The FEIR failed to describe the cost of water to be produced by the desalination facility. 38. The FEIR failed to describe the existing baseline conditions for marine biology at the site of the project that may be affected by the project. 39. The FEIR failed to describe the characteristics of the power plant's operations. 40. Petitioners further incorporate herein by reference as though set forth in full their objections to the adequacy of the project description, and the objections to the adequacy of the project description set forth in the comment letters of the Coastal Commission, State Lands Commission, Parks and Recreation, NOAA, Center for Biological Diversity, Inc., the Planning and Conservation League, the Surfrider Foundation, Heal The Bay, Preserve Calavera, and residents and groups from the City of Carlsbad and San Diego County. INADEQUATE EVALUATION OF SIGNIFICANT ENVIRONMENTAL IMPACTS 41. CEQA (Public Resources Code sect. 21100), CEQA Guidelines (14 Cal. Code Regs sects. 15126,15126.2 and 15151) and CEQA case law require that an EDR. identify and focus on the significant environmental impacts of a proposed project, with a "sufficient degree of analysis to provide decisionmakers with information which allows them to make a decision which intelligently takes account of environmental consequences." 10 PETITION FOR WRIT OF MANDATE SLC003519 10 12 13 14 15 16 17 19 20 22 23 24 25 26 27 28 42. The FEIR's conclusions that the project will not result in significant environmental impacts are not supported by substantial evidence, the FEIR failed to adequately evaluate the potential significant environmental impacts from the project on marine organisms, biological resources, hydrology, vvaler quality, air quality, hazards and hazardous materials, growth inducement and cumulative impacts, and state and federal public agencies, environmental organizations, and residents and groups from Carlsbad, objected to the inadequate evaluation of significant environmental impacts, for reasons including, but not limited to, those set forth in the following paragraphs. 43. The DEIR failed to evaluate the impacts caused by the power plant and the desalination facility operating both together and separately, that is, the DEIR failed to evaluate at all "the effects caused by the desalination facility operating on its own." 44. Following the City's receipt of the foregoing objections that the DEIR failed to adequately evaluate the environmental impacts caused by the desalination facility operating on its own, and only four days before the City's hearing on the proposal to certify the FEIR, on or about June 9, 2006, the City made available to the public a new document purported to address the impacts of the desalination facility as a "stand alone project." The evaluation of environmental impacts contained in that June 9, 2006, document is also not adequate. 45. The FEIR failed to comply with CEQA's requirements to address project-specific impacts. For example, the FEIR failed to contain a complete analysis regarding marine biology, both for existing baseline conditions at the proposed project site and for potential impacts likely to be caused by the project. 46. The FEIR's analysis of significant impacts to water use is inadequate. 47. The FEIR's analysis of potential significant impacts to energy uses is inadequate; and the FEIR failed to evaluate whether the project supports CEQA's requirements that a project further CEQA's goals to decrease reliance on natural gas and oil and increase reliance on renewable energy sources. 48. The FEIR failed to analyze source water movement through Agua Hedionda Lagoon and how the pumping action of both the power plant and the desalination facility affects the hydrodynamics of the estuary. The FEIR should include hydrodynamic modeling showing the areas of the estuary which contribute water to the cooling system and the resulting effects on biological communities. 11 PETITION FOR WRIT OF MANDATE SLC003520 10 1) 12 13 14 15 17 18 19 20 22 23 24 25 26 27 28 i 49. The FEJR failed to evaluate whether the project may affect species listed under the Endangered Species Act (ESA) including sea turtles, other marine mammals including sea lions, and fish species, as a result of the entrainment and impingement caused by the cooling water intake into the power plant and the desalination facility. 50. The FEIR failed to adequately evaluate the effects of elevated salinity from the desalination facility's discharges of concentrated brine on several species offish and invertebrates, and failed to adequately evaluate the effects of increased water temperature as a result of the project. 51. The FEIR's analysis of impacts to organisms that may be affected by the desalination facility's discharge of concentrated brine back into the ocean is not adequate. The FEIR's analysis assumed that the concentrated brine discharged back into the ocean would have a diluted reverse osmosis concentrate at 36 parts per thousand (ppt) range; but failed to analyze if significant effects to these organisms would result if concentrated brine is discharged at higher concentrations. 52. The FEIR failed to analyze the impacts of boron in the source water from the Agua Hedionda Lagoon and NDMA in the pre-treated water, and as a result, failed to analyze whether the source water is suitable as a source of drinking water. 53. The FEIR failed to adequately evaluate significant environmental impacts from the discharge of the concentrated brine on marine organisms, because, among other reasons, the FEIR relied on misleading standards for determining "significance" of impacts to marine life (the "40-10 rale") and because the FEIR narrowly defined the scope of potential impacts from the co-location of a massive desalination facility with the existing power plant. 54. The FEIR failed to evaluate the significant environmental impacts caused to marine organisms from the potential discharge into the ocean of the liquid chlorine that will be used as part of the project. 55. The FEJR failed to evaluate how the energy required for operation of the desalination facility will be affected by and contribute to global climate change. The California Energy Commission's report entitled "Potential Change in Hydropower Production from Global Climate Change in California and the Western United States" concluded, among other things, that in dry periods, hydropower production will decrease. However, the FEIR fails to evaluate how climate change will 12 PETITION FOR WRJT OF MANDATE SLC003521 I 2 3 •1 5 6 7 S 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 affect the energy sources for the desalination facility and the reliability and cost of that water supply. Further, the FEIR failed to evaluate the impacts on the energy grid for California and the Pacific Northwest and how the increased energy demand from the project may contribute to global climate change. Power plants have been identified as some of the largest sources of C02, the leading contributor to global climate change, and smog forming NOx and PM10 emissions. Any increase in CO2, NOx and PM10 emissions from increases in energy production from the project should be evaluated. 56. The FEIR failed to evaluate the growth inducing impacts of the project. The Coastal Commission's March 2004, Report on Seawater Desalination and The California Coastal Act concluded that "The most significant potential indirect adverse impacts are likely to be those associated with growth-inducement." (Page 7.) Yet the FEIR failed to evaluate the growth inducing impacts of the project. 57. The FEIR does not adequately address cumulative impacts associated with the project and its environmental setting. As an example, the FEIR does not address at all the effects associated with impairment of nearby affected ocean and estuarine waters, and only partially addresses the numerous intakes, outfalls and discharges of all types in the area affected by the project. 58. The FEIR failed to address the cumulative impacts associated with increased freshwater runoff from the desalination facility into adjacent coastal lagoons which are already polluted and listed as pollution-impaired water bodies by the State of California's Regional Water Quality Control Board, San Diego Region. That resulting reduced water quality may lead to unhealthy conditions and beach closures. 59. The FEIR failed to address the cumulative impacts associated with increased freshwater runoff from the desalination facility into the area's coastal bluffs which may exacerbate hydrological problems within the coastal bluffs. 60. The FEIR failed to address the cumulative impacts from extending the operation of the power plant; in the absence of the proposed desalination facility, the aging power plant would close as newer, more efficient and less environmentally damaging power generation is developed; and the FEIR should be redone to analyze the impacts of continued power plant operation on the local community, anc 13 PETITION FOR WRIT OF MANDATE SLC003522 1 in particular the environmental justice impacts that result from continued use of the power plant. 2 61. The FEIR did not evaluate the cumulative impacts on energy demand, marine life and 3 growth inducement from the numerous desalination projects planned within the area of the Southern 4 California Bight. 5 62. Petitioners incorporate herein by reference as though set forth in full their objections to 6 the inadequacy of the FEIR's evaluation of environmental impacts, and the objections to the inadequacy 7 of the evaluation of environmental impacts set forth in the comment letters of the Coastal Commission, 8 State Lands Commission, Parks and Recreation, NOAA, Center for Biological Diversity, Inc., the o Planning and Conservation League, the Surfrider Foundation, Heal The Bay, Preserve Calavera, and 10 residents and groups from the City of Carlsbad and San Diego County. 11 FAILURE TO ADEQUATELY EVALUATE MITIGATION MEASURES 12 63. CEQA (Public Resources Code sect. 21100), CEQA Guidelines (14 Cal. Code Regs 13 sects. 15092,15126 and 15129) and CEQA case law require that EIRs contain adequate evaluations of 14 measures to mitigate significant environmental impacts.15 64. The FEIR failed to adequately evaluate mitigation measures, and improperly deferred 16 evaluation of mitigation measures, for reasons including, but not limited to, those set forth in the 17 following paragraphs. 18 65. Because the FEIR does not describe the cost of water to be produced, and the cost of 19 energy to run the desalination facility, and because cost is a consideration of determining the feasibility 20 of proposed projects and mitigation measures, the FEIR failed to adequately evaluate the feasibility of mitigation measures. 22 66. Mitigation measures contained in the FEIR are too general, not specific, failed to state the 23 operational remedy or protocol when mitigation measures failed, and were improperly deferred. 24 67. Petitioners incorporate herein by reference as though set forth in full their objections to 25 the inadequacy of the FEIR's evaluation of mitigation measures, and the objections to the inadequacy of 26 the evaluation of mitigation measures set forth in the comment letters of the Coastal Commission, State 27 Lands Commission, Parks and Recreation, NOAA, Center for Biological Diversity, Inc., the Planning 28 14 PETITION FOR WRIT OF MANDATE SLC003523 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 and Conservation League, the Surfrider Foundation, Heal The Bay, Preserve Calavera, and residents and groups from the City Carlsbad and San Diego County. FAILURE TO ADEQUATELY EVALUATE ALTERNATIVES 68. CEQA (Public Resources Code sect. 21100), CEQA Guidelines (14 Cal. Code Regs sects. 15126 and 15126.6) and CEQA case law require that EIRs describe a range of alternatives to the proposed project which could feasibly attain the project's basic objectives, and evaluate the comparative merits of the alternatives. 69. The FEIR failed to adequately evaluate alternatives; the FEIR contains nothing more than the City's bare conclusions and opinions about alternatives; the FEIR fails to contain sufficient concrete information about alternatives to allow a fact-based evaluation, analysis and comparison of alternatives with the project; and the FEIR failed to evaluate a reasonable range of alternatives to the project, for reasons including, but not limited to, those set forth in the following paragraphs. 70. Because the FEIR does not describe the cost of water to be produced, and the cost of energy to run the desalination facility, and because cost is a consideration of determining the feasibility of proposed projects and alternatives, the FEIR failed to adequately evaluate the feasibility of project alternatives. 71. The FEIR does not adequately establish the need for the specific level of water production for the project, and, as a result, the FEIR improperly dismisses alternatives that may be feasible and may meet all or most of the project's objectives. 72. The FEIR failed to evaluate alternative intake technologies, that is, using alternatives to the once-through cooling water system of the aging power plant as the water source; there may be substantial adverse effects related to the use of that cooling system; the FEIR should have evaluated the use of various subsurface intakes at the proposed project site; and the FEIR should evaluate the use of other water sources that may be available including brackish groundwater, recycled water or other sources. 73. The FEIR failed to fully analyze alternatives to the proposed project because it failed to include an analysis of how other water supply reliability methods could increase the reliability of PETITION FOR WRIT OF MANDATE SLC003524 I 2 .? 4 5 6 S 9 10 II 12 13 14 15 16 17 IS 19 20 21 22 23 24 25 26 27 available water supplies; and failed to include an analysis of conservation, water recycling and use of stored groundwater 74. The Coastal Commission recommended that the alternatives analysis be redone. The City rejected the recommendation. 75. Petitioners incorporate herein by reference as though set forth in full their objections to the inadequacy of the FElR's evaluation of alternatives, and the objections to the inadequacy of the evaluation of alternatives set forth in the comment letters of the Coastal Commission, State Lands Commission, Parks and Recreation, NOAA, Center for Biological Diversity, Inc., the Planning and Conservation League, the Surfrider Foundation, Heal The Bay. Preserve Calavera, and residents and groups from Carlsbad and San Diego County. FAILURE TO ADEQUATELY RESPOND TO PUBLIC COMMENTS 76. CEQA Guidelines (14 Cal. Code Regs sect. 15088) and CEQA case law require that the lead agency must provide a "good faith, reasoned analysis in response" to comments received on an EIR and "conclusory statements unsupported by factual information will not suffice;" and lead agencies must address recommendations and objections in detail and explain why specific comments and suggestions were not accepted. 77. The Final ETR fails to provide adequate responses to comments of public agencies and the public on the DEIR, for reasons including, but not limited to, those set forth in the following paragraphs. 78. The FEIR's responses to comments of public agencies and members of the public consists of conclusory statements unsupported by specific references to empirical information, scientific authorities, or explanatory information, are insufficient and in violation of CEQA Guidelines, 14 Cal. Code Regs. sect. 15088 (c). 79. For example, the Coastal Commission objected that the DEIR does not describe the cost of the water to be produced, and, as a result, the DEIR failed to adequately evaluate mitigation measures and alternatives (Comment 4-P). The City provided the following non-responsive "comment": "The proposed project and its related facilities are considered to be feasible, as are the proposed mitigation measures contained in the Draft EIR. Further, none of the !6 PETITION FOR WRIT OF MANDATE SLC003525 24 25 27 alternatives considered in the Draft EIR were rejected on the basis of economic mfeasibiJity. Therefore, the relationship the commentor attempts to draw between costs and feasibility is misplaced. Further evidence demonstrating economic feasibility of the proposed project is contained in the provisions of the Water Purchase Agreement (Appendix B of the Draft EIR), in which the project applicant has contractually committed to pursuing the project and providing product water to the City of Carlsbad from the project at an established price." 80. Petitioners incorporate herein by reference as though set forth in full the City's responses to the comment letters of the Coastal Commission, State Lands Commission, Parks and Recreation, NOAA, the Alliance, the Center for Biological Diversity, Inc., the Planning and Conservation League, the Surfrider Foundation, Heal The Bay, Preserve Calavera, and residents and groups from the City of 9 Carlsbad and San Diego County. 10 FAILURE TO RECLRCULATE FEIR " 81. CEQA (Public Resources Code sect. 21092.1), CEQA Guidelines 15088.5, and CEQA 12 case law require that an environmental impact report must be recarculated for a second round of review 13 and comment by the public and public agencies if significant new information is added to the 14 environmental impact report after notice of public review has been given but before final certification of 15 the environmental impact report. 16 82. Significant new information was added to the FEIR after respondent gave notice of 1 public review but before final certification of the FEIR, and the City violated CEQA when it failed to 18 revise and recirculate the FEIR, for reasons including, but not limited to, those set forth in the following 19 paragraphs. 83. Petitioners are informed and believe and thereon allege that after the close of the public 21 comment period, and only four days before the City's hearing on the proposal to certify the FEIR, on or 22 about June 9,2006, the City made available to the public a new document purported to address the 23 impacts of the desalination facility as a "stand alone project." 84. The new document is "new information" including "additional data or other information" and is "significant" in that the FEER was changed in a way that deprived the public of a meaningful 26 opportunity to comment upon a substantial adverse environmental effect of the project. The new document therefore constitutes "significant new information" as that term is used in CEQA, Public 28 Resources Code § 21092.1 and CEQA Guidelines, 14 Cal. Code Regs. sect. 15088.5, requiring 17 PETITION FOR WRIT OF MANDATE SLC003526 3 4 5 6 7 S 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 recirculalion of (he revised FEIR and a second public comment period. 85. The Coastal Commission objected that the DELR should "be thoroughly revised and then recirculated for additional review." SECOND CAUSE OF ACTION (Injunctive Relief Against Respondent and All Real Parties-In-Interest) 86. Petitioners incorporate by reference as though set forth in full the allegations of paragraphs 1 through 85. 87. Unless petitioners are granted injunctive relief, petitioners, petitioners' members, and members and families of the members of petitioners, will suffer irreparable harm in that the implementation of the project will cause significant unmitigable environmental impacts to the ocean, marine life and marine ecosystems of the City of Carlsbad and the County of San Diego. 88. Petitioners lack an adequate remedy at law because monetary damages cannot be ascertained and petitioners and their and members cannot be compensated for the significant immitigable environmental impacts caused by the project. 89. The court should issue a stay, temporary restraining order and/or preliminary injunction, restraining respondent from implementing the project pending the court's judgment on the matters raised herein. 90. The court should also issue a stay, temporary restraining order and/or preliminary injunction, restraining respondent from implementing the project, pending the Court's judgment on the matters raised in the mandamus petition, and pending the Court's judgment on matters which will be raised in separate mandamus petitions filed against the San Diego County Water Authority for the following reasons. In addition to the project proposed by real party Poseidon, the San Diego County Water Authority is proposing a desalination facility project at the same location; the San Diego County Water Authority has prepared its own EIR on the proposed desalination facility project at the same location; the San Diego County Water Authority has scheduled a public hearing for July 27, 2006, on a proposal to certify its EIR as complying with CEQA; and issuing the stay, temporary restraining order and/or preliminary injunction is necessary to avoid a multiplicity of lawsuits and the possibility of conflicting judgments. 18 PETITION FOR WRIT OF MANDATE SLC003527 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 91. The court should issue the stay, temporary restraining order and/or preliminary injunction because there is a probability that petitioners will prevail on the merits, and petitioners do not have a plain, speedy and adequate remedy in the ordinary course of law because the petitioners, their members and the public will be irreparably harmed by the ensuing environmental damage and by respondent's violations of CEQA. PRAYER FOR RELIEF Petitioners SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE GROUP pray for the following relief: FIRST CAUSE OF ACTION 1. For a judgment determining or declaring that respondent CITY OF CARLSBAD'S approval of the project was illegal and therefore is null and void; 2. For a judgment determining or declaring that respondent CITY OF CARLSBAD failed to comply with CEQA and therefore the approval of the project was illegal and is null and void; 3. For a peremptory writ of mandate ordering respondent CITY OF CARLSBAD to set aside its decision to certify the FEIR for the project; and ordering respondent CITY OF CARLSBAD to suspend all activities implementing the project until the court by way of return writ adjudicates that respondent has fully complied with all requirements of CEQA; 4. For reasonable attorneys' fees under Code of Civil Procedure section 1021.5; For statutory costs; and For such other and further relief as the Court may deem just and proper. SECOND CAUSE OF ACTION For a stay, temporary restraining order and/or preliminary injunction restraining respondent CITY OF CARLSBAD and real parti es-in-interest POSEIDON RESOURCES (CHANNELSBDE) LLC and CABRILLO POWER I LLC from implementing the project pending the court's judgment on the matters raised herein, including, but not limited to, restraining said respondent and real parties-in-interest from executing any agreements relating to the project, obtaining any permits for the project, or otherwise going forward with any acquisition of real property, demolition, construction, or other activities or undertakings pursuant to or in furtherance of the project, pending the 5. 6. 1. 19 PETITION FOR WRIT OF MANDATE SLC003528 1 2 3 4 5 6 7 S 9 10 11 12 13 !4 15 16 17 18 19 20 2) 22 23 24 25 26 27 28 court's judgment on the matters raised herein; 2. For reasonable attorneys' fees under Code of Civil Procedure section 1021.5; 3. For statutory costs; and 4. For such other and further relief as the Court may deem just and proper. Dated: July 19, 2006 COAST LAW GROUP LLP Rory R. Attorneys for Petitioners SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE GROUP 20 PETITION FOR WRIT OF MANDATE SLC003529 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, Rachel C. Lipsky, declare: I am one of the attorneys for SOUTHERN CALIFORNIA WATERSHED ALLIANCE and • DESAL RESPONSE GROUP (petitioners), the petitioners in the above-entitled action, and am authorized to make this verification for and on their behalf. This verification is made by attorney on behalf of petitioners because the parties are absent from the county where my office is located. Coast Law Group LLP is located at 169 Saxony Road, Suite 204, Encinitas, California, 92024. The office of Desal Response Group is located at 2515 Wilshire Blvd, Santa Monica, CA 90403. The office of Southern California Watershed Alliance is located at 5321 Amestoy Avenue, Encino, CA 91316. I have read the foregoing Petition for Writ of Mandate and know its contents. The matters stated therein are true, and on that ground allege that the matters stated therein are true, except for those allegations stated on information and belief, which I believe to be true, and if called as a witness, I could and would testify competently to these facts. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this verification was executed on July 19, 2006, at Encinitas, California. Rachel C. Lipsky Attorneys for Petitioners SOUTHERN CALIFORNIA WATERSHED ALLIANCE and DESAL RESPONSE GROUP 21 PETITION FOR WRIT OF MANDATE SLC003530 AMOflNFV OR PARTY WITHOUT AtTQRKV f/W/nr ana AtHfft$Sf. TELEPHONE NO. _ Rory R. Wicks (SBN 85340) 760-942-8505 Coast Law Group, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 ATTORNEY FOR (Ntirr) Petitioners litibrt name of court ana name ut judicial ftsinci and branch court, il any: San Diego County Superior Court, North County Division PLAINTIFF/PETITIONER: Southern California Watershed Alliance, et al. DEFENDANT/RESPONDENT: City of Carlsbad, et al. REQUEST FOR DISMISSAL (_ | Personal Injury, Property Damage, or Wrongful Death 1 I Motor Vehicle l~ 1 Other 1 1 Family Law I | Eminent Domain [71 Other (specify): CEQA fon COURT use ONLY CASE NUMBER: GIN 054087 — A conformed copy will not be returned by the clerk unless a method of return is provided with the document. — 1 TO THE CLERK: Please dismiss this action as follows: a • ( 1 ) I I With prejudice (2) I / 1 Without prejudice ° (ivr__l Complaint (211 I Petition Cross-complaint filed by (name): Cross-complaint filed by (name): (5) I / I Entire action of all parties and all causes of action (6) f I Other (specify):' on (date): on (date): Dale: July 24, 2006 . Wicks (TYPE OR PRINT NAME OF [JjJ ATTORNEY Q PARTY WITHOUT ATTORNEY) ' If dismissal requested is of specified parties only, of specified causes of action only, or of specified cross-complaints only, so stale and identify the parties, causes of action, or cross-complaints to be dismissed.Plaintiff/Petitioner Cross-complainant I I Defendant/Respondent 2. TO THE CLERK: Consent to the above dismissal is hereby given."* Date: ITYPE OR PTONT NAME OF fj ATTOBNEY Q PARTY WITHOUT ATTORNEY) " If a cross-complaint—or Response (Family Law) seeking affirmative relief—is on file, trie attorney for cross-complainant (respondent) must sign this consent if required by Code of Gvtl Procedure section 58l(i) orfj) (SIGNATURE) Attorney or party without attorney for: I "I Plaintiff/Petitioner | | Defendant/Respondent I I Cross-complainant (To he completed by clerk) «\nne 3. I M Dismissal entered as requested on (date): JUL <- 5 ZUUO 4. | ' | Dismissal entered on (date): as to only (name): 5. I I Dismissal not entered as requested for the following reasons (specify): a. Attorney or party without attorney notified on (date): JUL 27 2006 b Attorney or party without attorney not notified. Filing party failed to provide I I a copy to conform |_ J means to return conformed copy Dale:Clerk, by._, Deputy FormJudicial Coun REQUEST FOR DISMISSAL re. § Sflt et s*q of Court, rUes3KJ. 1233 SLC003531 MIOHWEV V T'AHIY wr'nOul fcTIOPi'E" W-WII-? *>fl*Mt»M TFl£PMON£ NO Kory K. Wicks (SUN H53-10) 760-942-8505 C O;isl l.;iw Group, 1.1,1' l6')S:i\i>M\ Road. Suiic 20-1 |-;iKinii;is. California 9202J iiio'<Ncv i<;K|W....«j Petitioners San Diego County Superior Court, North County Division PLAINTIFF/PETITIONER: Southern California Watershed Alliance, ct al. DEFENDANT/RESPONDENT: City of Carlsbad, et al. REQUEST FOR DISMISSAL f 1 Personal Injury, Property Damage, or Wrongful Death 1 ] Motor Vehicle ["""I Other 1 I Family Law 1 1 Eminent Domain GZD O'her (specify): CEQA fOBCOWruSEOMY CASE NUM6ER GIN 054087 A conformed copy will not be returned by the cleric unless a method of return Is provided with the document. — 1. TO THE CLERK: Please dismiss I his action as follows: a (1)1 I With prejudice (2) ['_f\ Without prejudice b. (Dll Complaint (2) IT I Petition Cross-complaint filed by (name):(3) (1) (5) Cross-complaint filed by (namef. Entire action of all parties and all causes of action Other (specify):' on (date): on (date): Dale: July 24, 2006 Rory R. Wicks fTVP€ OR PRINT NAME Of Q ATTORNEY Q PARTT WITHOUT ATTORNEY) • If dismissal reouesie0 is of specified parties only, of specified causes of action omy. or of specified cross-coroplainlt only, so stale and ioenlff> Ifte parties, causes of action, or cross-compfeintt to be dismissed. 2. TO THE CLERK: Consent lo the above dismissal is heret Date: frvre OR PRINT NAME OF Q ATTORNEY Q PARTY WITHOUT ~ If a cross-complainl—or Response (Family Law) seeking affirmative refel-b on file, ine attorney for crDss-cornplalnanl (respondent) must sign Ihii consent If required by Code o) Civil Procedure section 581(1) or«) lespondent ccmpteled by clerk) JUL 2Dismissal entered as requested on (date): Dismissal entered on (date): as Dismissal not entered as requested for the following rea a. Attorney or party without attorney notified on (dale): o b. Attorney or party without attorney not notified. Filing party failed I | a copy to conform ( J means to return conformed copy Date:JUL 2 7 2006 CterKby._, Deputy Fom Adopted by 1h«MttM Com* * CUXon,REQUEST FOR DISMISSAL CodmfCMPraoMun. CH. ftUft of Coin. nH»» 3H. 1233 SLC003532 Ai rOBNEY OH PAHTV WITHOUT ATTORNEY (V»rr» and «»«*s; TELEPHONE NO _ Rory R. Wicks (SBN 85340) 760-942-8505 Coast Law Group, LLP 1 69 Saxony Road, Suite 204 Encinitas, CA 92024 ATTORNEY FOR'*;™/ Petitioners Insert mtme of court arxj iwne ol judicial Aslricl and branch court, il any: San Diego County Superior Court, North County Division PLAINTIFF/PETITIONER: Southern California Watershed Alliance, et al. DEFENDANT/RESPONDENT: City of Carlsbad, et al. NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE | J Personal Injury, Property Damage, or Wrongful Death CZI Motor Vehicle CD Other 1 I Family Law 1 '_ 1 Eminent Domain 1 / 1 Other (specify): CEQA fOK COURT USE ONLY $ OSf. NUMBER GIN 054087 TO ATTORNEYS AND PARTIES WITHOUT ATTORNEYS: A dismissal was entered in this action by the clerk as shown on the Request for Dismissal. (Attach a copy completed by the clerk.) Date: August 7, 2006 Rory R. .Wicks f (TYPE OB PRINT NAME OF Bf ATTORNEY D PARTY WITHOUT ATTORNEY)(SIGNATURE) PROOF OF SERVICE 1. I am over the age of 18 and not a party lo this cause. I am a resident of or employed in the county where the mailing occurred. My residence or business address is: 169 Saxony Road, Suite 204 Encintas, California 92024 2. I •/ \ I served a copy of the Notice of Entry of Dismissal and Request for Dismissal by mailing them, in a sealed envelope with postage fully prepaid, as follows: a. I I I deposited the envelope with the United States Postal Service. b. [•/ I I placed the envelope for collection and processing for mailing following this business's ordinary practice with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United Stales Postal Service. c. Date of deposit: August 7, 2006 d. Place of deposit (city and state): Encinitas, California e. Addressed as follows (name and address): (1) City of Carlsbad, City Clerk, 1200 Carlsbad Village Dr. Carlsbad, CA 92008; (2) Poseidon Resources(Channelside)LLC P.O. Box 526036 Sacramento, CA 95852 + 1055 Washington Blvd Stamford, CT 06901; (3) Cabrillo Power 1 LLC, 1000 Louisiana, Ste. 5800 Houston, TX 77002 3 I I I served a copy of the Notice of Entry of Dismissal and Request for Dismissal by personally delivering copies to the person served as shown below: Name. Date: Time: Address. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: Melissa Brannen r fTYPE OR PRIh/T NAME)(SIGNATURE OF DECLARANT} Form Adopted by lire Jucfcoial Council of C»Hto/n*a 8?taM5->) |New January 1. 1997] NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE Code oi Civ* Protsdurt, § 581 el seq Cal, RulBS of Court, (utes 383. t?33 SLC003533 MuoicJp?,! Water District Dr. Hanno Ix Otena Towne i5se P#ssWft(« OMsimV John Hinrichs Division,' David Drake General Counsel District Office FAX: 7SO-745-4235 November 6,200? RECEIVE NOV 0 9 Z007 CALIFORNIA COASTAL COMMISSION Mr. Paul Thayer, Executive Director Califernte State Lands €£rssussion 100 l-lowsAvaj Suite 100 South Sacramento, CAi582S /IE; Caiisba&DessfffWfttiiri Pttsfccgs impact on M/awtae? Water Use Pear Mr, Tfeyer: During the October 30, 2007 State Lands CommJssJon hearing, a quesiten was raised regarding the trapse* the 5S- GOO AF/V Carlsbad Desalination Projeci will havo on San Diego Counts need to Import a corresponding umount of '.rater. Trie foflowmg tetter addresses lr» Carts&ad Desalination PfGjad's a&!% to reptecc imported water on a one-for-ons Oasis, and the related impact or. energy consumption ana green nousd gas emissions, Attached for your review i$ 2 copy of the Rincon del Diablo Municipal Wefef Dismcfs (Disijfcl) 200S Urban Watsr Msnegainent Pteo (Plans), which guides ft§ mansg&snsnt of our existing and planned water resources fcr our se"vk?g area. IN* Ostrict ser<«»s ai^rcocarjatefy 25.000 residentiai, industrial, cofiKnsrcta! and agricultural cystorn$r4 lf> sMtKth San Dfego Coun^, The <?2-square mife service area Jndudes pans of EsconciidQ, San Dli^o, San Marcos snds parts of tie wnsfteorporatsd area of San Diego County The Plan (TeM? 5 a« ps§a tf of ifte .^a/v requires ma District to pur^igse 9,793 acre-fee.t per ysar from our regional water suppfr/ \vhoiesaten the San Df0go Co«nty Water Authority (Authority). Due to iimfted local suf^iy optlcris, the AuSiferitv' rnust miport.85% <rf gs wafer supply from the State Wale? Pfc^fit aftd Colorado Rfver. in an ©Ifcrt to reduce our dsosndence on inportssi water by 201 0, ine Oistrrd itienSflas the fleod fcr 4,300 dfcre-feet per ysar of iacaiiy-produced tfesaifnated seawater. To ensure v«5 meet our gee! of reducing demand en imported water, and s$i meet our planned water supply needs, tfte District fces sntered into a 30-year contraoj to purchase 4,000 acre-fset of '.vatcf per year frojn the Carfebad Desa'Jna&ca Project, repcesenling 'atout 29% of the Bis&tef s totai supply. This ccnlract gt-arantess its a drought-proof v/afer supply, 008542 r- Paul Thgyer, Executes .Director - California State Lands .2007 the CfetrM teorpote where, wRen ana how use. tly, the Carfeb&t De$aHrwttton Project will replace on a onMowme basis o«r demand fo*r wsjt$f thot Jtiust bfe frnported. If the Csttebad Dfisarm^goi* Project is not approved, our demand fbr imported water -Aft fnor&age fey 4,000 acre^feei: per year. Wa hope-thte furlher expfanafion answers any questions you mfghf hava had about 8»e Cartsfead Desatinaticn Ptojael's impact on our imported wafer etewrefe, and we appreciate your support in ensuring $*& regron has a safe, relk&fis and affordafels water supply, Sincerely, Aiiachmenf /feco0 tfe/ Oisiijo MunMpQJ Water- w'udy Bmwt, Barttam Ougaf Tom Filter Tom Luster 008543 AINBOW MuNtCiPAt WATER DISTRICT Coasn RECEIVED November 6,2007 NOV 0 9 Z007 Mr. Paul Thayer, Executive Director California State Lands Commission COASTAL COMMISSION 100 Howe Aye, Suite 100 South Sateramento, CA 95823 RE: Carlsbad Desalination Project's impact on imported wafer use Dear Mr. Thayer: ©tiring the October 30,2007 State Lands Coimtassiom heating, a question was raised regarding s . IftefdUpving letter addresses the Carlsbad Desalination Project's ability t© tepkce imported wafer on a ©ne-for-one basis, and the rekted raipaeton energy eomumption and green Bouse gas emissi Attached for your review is a copy of the Baaititfcow Municipal Water District's (District) 2005 IMjan Water Management Plan (Flan), wMeis guides the management -.of our existing and planned water resources for our serace area. The District serves approximately 18,000 residential, industrial, and commercial customers in North San Diego County. The District contains a large agricultural demand and as a result, the agricultural demand for water is over twice that of municipal and industrial water demand. The 49,800-acre service area serves the unincorporated communities of Rainbow, Bonsall, and a portion of Fallbrook. The Plan (Table 5 on page 10 of the Plan) requires the District 1o purchase 25,849 acre feet per year from our regional water supply wholesaler, the San Diego County Water Authority (Authority). Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River, hi aaeflbtt to reduce our dependence on imported water, by 201 0 the District's identifies the' need for 7,500 acre feet per year of locally-produced desalinated seawater. To ensure we meet our goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase 7,500 acre-feet of water per year from the Carlsbad Desalination Project, representing about 29% of the District's total supply. This contract guarantees us a drought-proof water supply, and the District controls where, when and how this water will be appropriated for public use. 3707 Old Highway 395 'Failbrook, CA 92Q28 (760) 72&"t178 • Fax (760) 728-2575 - vvww.rainb6wmvvrd;com 008587 Consequently, the Carlsbad Desalination Project will replace on a one-for-one basis our demand for water that must be imported. If the Carlsbad desalination Project is not approved, our demand for imported water will increase by 7,500 acre feet per year. We hope this further explanation answers any questions you might have had about the Carlsbad Desalination Project's impact on our imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, David Seymour General Manager, Rainbow Municipal Water District Attachment: Rainbow Municipal Water Distrirt 2005 IJrbm Water Management Flan cc. Judy Brown Marina Brand Barbara Dugal Tom Filler Tom Luster 3707 Old HlgHvyay 395 -Fjall^POk. CA 82)28 (760) 728-1178 * Fax <7BO) 72&Z575« www.rahibowmwd.eom 008588 Santa Fe Irrigation District November 7,2007 Mr. Paul Thayer, Executive Director California State Lands Commission 100 Howe Ave, Suite 100 South Sacramento, CA 95825 RE: Carlsbad Desalination Project's impact on imported water use Dear Mr. Thayer: During the October 30,2007 State Lands Commission hearing, a question was raised regarding the impact the 56,000 AF/Y Carlsbad Desalination Project will have on San Diego County's need to import a corresponding amount of water. The following letter addresses the Carlsbad Desalination Project's ability to replace imported water on a one-for-one basis, and the related impact on energy consumption and green house gas emissions. Attached for your review is a copy of the Santa Fe Irrigation District's (District) 2005 Urban Water Management Plan (Plan), which guides the management of our existing and planned water resources for our service area. The District serves approximately 20,900 residential, industrial, and commercial customers in North San Diego County. The 16-square mile service area encompasses Solana Beach, Rancho Santa Fe, and Fairbanks Ranch. The Plan (Table 4-1 on page 4-1 of the Plan) requires the District to purchase 11,473 acre feet per year in-2010 from our regional water supply wholesaler, the San Diego County Water Authority (Authority). Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River. A water supply of locally produced desalinated sea water would reduce our dependence on imported water by 2010. To ensure we meet our goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase 2,000 acre-feet of water per year from the Carlsbad Desalination Project, representing about 13% of the District's total supply. This contract guarantees us a drought-proof water supply, and the District controls where, when and how this water will be appropriated for public use. Consequently, the Carlsbad Desalination Project will replace on a one-for-one basis our demand for water that must be imported. If the Carlsbad desalination Project is not approved, our demand for imported water will not be reduced by 2,000 acre feet per year. Santa Fe Irrigation District ~ PO Box 409 ~ 5920 Linea del Cielo ~ Rancho Santa Fe, CA 92067-0409 Phone858.756.2424 Fax858.756.0450 www.sjidwater.org 008620 We hope this further explanation answers any questions you might have had about the Carlsbad Desalination Project's impact on our imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, Michael Bardin General Manager, Santa Fe Irrigation District Attachment: Santa Fe Irrigation District 2005 Urban Water Management Plan cc. Judy Brown Marina Brand Barbara Dugal Tom Filler Tom Luster Santa Fe Irrigation District ~ PO Box 409 ~ 5920 Lima del Cielo ~ Rancho Santa Fe, CA 92067-0409 Phone858.756.2424 Fax858.756.0450 www.sfidwater.org 008621 Carsbad Municipal Water District (760) £38-2 722 * f ax (760) 43 M 601 November 7,2007 f*f%DVIw-faulThayer^J^iKuaTOlliffectiQr :^&%Jii^' • QarfsSad 'Desalination Project's impact on i Durisg th&Qetober 30, 2007 State lauds Commission bearing, a question was raised regaining ffie impact the 56»000 AF/Y Carlsbad Desalination Project will have on San Diego Comity's ueed to import a corresponding amount of water. The following letter adctessesfih&Oarfsbad Besaltaaft'oa Projcef s ability to replace imported water on a one- &>f*Qifi& basis, and' the related impact oa energy eonsuiHption and green house gas eanssteas. toeg for yoor i&n&w is a copy of the-Carfsbad Manicipal Wafer District's (District) 2DD5 llrblBjr Water Managemeiit Flin (Platt)» wbi«h guides she management of our ejostijig an4p&tBied water resources for OIK service area. Th& District*? service.area is entirely within the City of Carlsbad's boundaries and covers lyJi $^ar« miles; Carisbad.ls currently hoiftfr to approximately 100,000 lained growtli will bring our population to approxiftaCely 109,500 to 2030. I00%reliaot oh imported v?ater purchased ftom o«r regional water supply er; tb> Sfan IDiego County Water Aaibority (AuCboriry) for its potable water supply »eedk The Plan (TabliB 3-1) projects the District would purchase 18,475 acre feet per year from the Authority in 2010 absent any purchases ftem the desaliiiation facility. Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River. In an effort to reduce our dependence on imported water, the District is planning on receiving 100% of its potable water from locally- produced desalinated seawater, making Carlsbad the only water independent municipality in San Diego County, A Subsidiary Mstrfct«fth£C»jrofCatrkbad "Serviag Carlsbad Since 1954* 008668 To ensure we meet oar goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase alj of its po&bJe water from Poseidon Resources' Carlsbad D^afirtatioa PtaaL Consequently, ft© Carlsbad Desalination Project win repkce on a one-for-one basis oar demand for water &?t,mast be imported, If flie Carlsbad desalination Project is not approved, oar demand fb'r Imported water will Increase to 18,475 acre feet per year starting in 2010. We hope this fiirdbcc explanation ans%vers any questions yon might have had about the Carlsbad Desalination Project's impact on our imported water demands* and we appreciate your support ia ensuring the region has a safe, reliable and afifordabte water supply. Sincere] M&fcStc Oenera] Manager, Carlsbad Municipal Water District Attachment: Carlsbad Municipal Water District Urban Water Management Plan ec. Marina Btaad TomHtler Tom Luster 008669 VALLECITOS WATER DISTRICT A PUBLIC AGENCY 201 Vallecitos de Oro • San Marcos, California • 92069-1453 Telephone (760)744-0460 November 6, 2007 ^RECEIVED Mr. Paul Thayer, Executive Director A Q nn? California State Lands Commission NOV ° y zuu/ 100 Howe Ave, Suite 100 South CA, (FORNIA Sacramento, CA 95825 COASTAL COMMISSION RE: Carlsbad Desalination Project's impact on imported water use Dear Mr. Thayer: During the October 30, 2007, State Lands Commission hearing, a question was raised regarding the impact the 56,000 AF/Y Carlsbad Desalination Project will have on San Diego County's need to import a corresponding amount of water. The following letter addresses the Carlsbad Desalination Project's ability to replace imported water on a one-for-one basis, and the related impact on energy consumption and green house gas emissions. Attached for your review is a copy of the Vallecitos Water District's (District) 2005 Urban Water Management Plan (Plan), which guides the management of our existing and planned water resources for our service area. The District serves approximately 81,000 residential, industrial, and commercial customers in North San Diego County. The 45-square mile service area includes San Marcos; the unincorporated community of Lake San Marcos; parts of Carlsbad, Escondido, and Vista; and other surrounding unincorporated areas. The Plan (Table 2-1 on page 2-2 of the Plan) requires the District to purchase 19,409 acre feet per year from our regional water supply wholesaler, the San Diego County Water Authority (Authority). Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River. In an effort to reduce our dependence on imported water, by 2010 the District identifies the need for 7,500 acre feet per year of locally- produced desalinated seawater. To ensure we meet our goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase 7,500 acre-feet of water per year from the Carlsbad Desalination Project, representing about 39% of the District's total supply. This 008292 FAX numbers by Department: Administration (760) 744-2738; Engineering (760) 744-3507; Finance (760) 744-5989; Meadowlark Water Reclamation Facility (760) 744-2435; Operations/Maintenance (760) 744-5246 e-mail: vwd@vwd.org http://www.vwd.org RE: Carlsbad Desalination Project's impact on imported water use Page 2 contract guarantees us a drought-proof water supply, and the District controls where, when and how this water will be appropriated for public use. Consequently, the Carlsbad Desalination Project will replace on a one-for-one basis our demand for water that must be imported. If the Carlsbad desalination Project is not approved, our demand for imported water will increase by 7,500 acre feet per year. We hope this further explanation answers any questions you might have had about the Carlsbad Desalination Project's impact on our imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, William Rucker, General Manager Vallecitos Water District Attachment: Vallecitos Water District 2005 Urban Water Management Plan cc. Judy Brown Marina Brand Barbara Dugal Tom Filler Tom Luster 008293 SWEETWATER AUTHORITY 505 GARRETT AVENUE POST OFFICE BOX 2328 CHULA VISTA, CALIFORNIA 91912-2328 (619)420-1413 FAX (619) 425-7469 http://www.sweetwater.org November 6, 2007 GOVERNING BOARD R MITCHEL BEAUCHAMP. CHAIR JAMES C. ALKIRE. VICE CHAIR JAMES "JIM" DOUO RON MORRISON WD -BUD-POCKLINGTON TERRY THOMAS MARGARET COOK WELSH DENNIS A BOSTAD GENERAL MANAGER MARKN ROGERS OPERATIONS MANAGER Mr. Paul Thayer Executive Director California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825 NOV 0 9 Z007 CALIFORNIA COASTAL COMMISSION Re: Carlsbad Desalination Project's impact on imported water use Dear Mr. Thayer: During the October 30, 2007 State Lands Commission hearing, a question was raised regarding the impact the 56,000 acre-feet per year Carlsbad Desalination Project will have on San Diego County's need to import a corresponding amount of water. The following letter addresses the Carlsbad Desalination Project's ability to replace imported water on a one-for-one basis, and the related impact on energy consumption and green house gas emissions. Attached for your review is a copy of Sweetwater Authority's (Sweetwater) 2005 Urban Water Management Plan (Plan), which guides the management of existing and planned water resources for Sweetwater's service area. Sweetwater serves a population of approximately 179,485 within the City of National City, a portion of the City of San Diego, and the South Bay Irrigation District, which consists of a portion of the City of Chula Vista, and the unincorporated portion of the County of San Diego known as Bonita. Sweetwater's service area covers 36.5 square miles and contains approximately 33,180 service connections. The Plan (Table 12) requires Sweetwater to purchase 12,013 acre-feet per year from its regional water supply wholesaler, the San Diego County Water Authority (Authority). Due to limited local supply options, the Authority must import 85 percent of its water supply from the State Water Project and the Colorado River. In an effort to reduce dependence on imported water by 2010, Sweetwater has identified the need for 2,400 acre-feet per year of additional locally-produced desalinated seawater. To meet this goal, Sweetwater has entered into a 30-year contract to purchase 2,400 acre-feet of water per year from the Carlsbad Desalination Project, representing about 10 percent of Sweetwater's total supply. This contract guarantees a drought-proof water supply, and allows Sweetwater to control where, when and how this water will be appropriated for public use. A Public Water Agency Serving National City, Chula Vista and Surrounding Areas 008374 Mr. Paul Thayer California State Lands Commission Re: Carlsbad Desalination Project's impact on imported water use November 6, 2007 Page 2 of 2 Consequently, the Carlsbad Desalination Project will replace a one-for-one basis of Sweetwater's demand for imported water. If the Carlsbad Desalination Project is not approved, Sweetwater's demand will increase by 2,400 acre-feet per year. We hope this further explanation answers any questions you may have about the Carlsbad Desalination Project's impact on Sweetwater's imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, in is Bostad[ General Manager DB:jg Attachment: Sweetwater Authority 2005 Urban Water Management Plan cc. Judy Brown, California State Lands Commission Marina Brand, California State Lands Commission Barbara Dugal, California State Lands Commission Tom Filler, California State Lands Commission Tom Luster, California Coastal Commission 008375 VALLEY CENTER MUNICIPAL WATER DISTRICT A Public Agency Organized July 12, 1954 November 6,2007 Mr. Paul Thayer, Executive Director California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825 ECEIVED NOV 0 9 2007 CALIFORNIA COASTAL COMMISSION Board of Directors Gary A. Broomell Preston! Robert A. Polito Vice President Merle J.AIeshire Diiedex Charles W. Stone, Jr. Director Randy D. Haskell Director RE: Carlsbad Desalination Project's Impact on Imported Water Use Dear Mr. Thayer: During the October 30, 2007 State Lands Commission hearing, a question was raised regarding the impact the 56,000 AF/Y Carlsbad Desalination Project will have on San Diego County's need to import a corresponding amount of water. The following letter addresses the Carlsbad Desalination Project's ability to replace imported water on a one-for-one basis, and the related impact on energy consumption and green house gas emissions. Attached for your review is a copy of the Valley Center Municipal Water District's (District) 2006 Urban Water Management Plan (Plan), which guides the management of our existing and planned water resources for our service area. The District covers an area of approximately 100 square miles of which approximately 58 percent receives water service. The District imports 100 percent of its water and the District now ranks as the San Diego County Water Authority's (Authority) second largest water customer. The District serves 9,217 active water meters and is the largest retail purchaser of agricultural water in San Diego County. The Plan (Table 4-1 on page 4-1 of the Plan) requires the District to purchase 43,736 acre feet per year from our regional water supply wholesaler, the Authority. Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River. In an effort to reduce our dependence on imported water, by 2010/2011 the District's Plan identifies the need for 7,500 acre feet per year of locally-produced desalinated seawater (Table 4-3 on page 4-2 of the Plan). To ensure we meet our goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase 7,500 acre-feet of water per year from the Carlsbad Desalination Project, representing about 17% of the District's total supply. This contract guarantees us a drought-proof water supply, and the District controls where, when and how this water will be appropriated for public use. 29300 Valley Center Road • P.O. Box 67 • Valley Center, CA 92082 (760) 749-1600 • FAX (760) 749-6478 • TDD (760) 749-2665 • www.vcmwd.org • e-mail vcwatef@vcmwd.org 008447 Consequently, the Carlsbad Desalination Project will replace on a one-for-one basis our demand for water that must be imported. If the Carlsbad desalination Project is not approved, our demand for imported water will increase by 7,500 acre feet per year. We hope this further explanation answers any questions you might have had about the Carlsbad Desalination Project's impact on our imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, Gary Arant General Manager Attachment: Valley Center Municipal Water Distn'ct's 2006 Urban Water Management Plan cc. Judy Brown Marina Brand Barbara Dugal Tom Filler Tom Luster 008448 Board of Directors i General Manager Susan J. Varty. President f^\T~ TlTf^TVTT T A YTVT Kimberly A. Thomer Robert F. Topolovac. Wee President I II I V H |\| H A I I \| General Counsel Mark A. Muir, Treasurer VilidL* ^L^ -kMMJLj Wesley Peltzer Jacob J. Krauss, Secretary ^—• --^ Harold L. Gano. Director Municipal Water District 1966 Olivenhain Road, Encinitas. California 92024 I Phone (760) 753-6466 I Fax (760) 753-1578 I www.omwd.com November 6,2007 Mr. Paul Thayer, Executive Director California State Lands Commission 100 Howe Ave, Suite 100 South Sacramento, CA 95825 RE: Carlsbad Desalination Project's impact on imported water use Dear Mr. Thayer: During the October 30,2007 State Lands Commission hearing, a question was raised regarding the impact the 56,000 AF/Y Carlsbad Desalination Project will have on San Diego County's need to import a corresponding amount of water. The following letter addresses the Carlsbad Desalination Project's ability to replace imported water on a one- for-one basis, and the related impact on energy consumption and green house gas emissions. Attached for your review is a copy of the Olivenhain Municipal Water District's (District) 2005 Urban Water Management Plan (Plan), which guides the management of our existing and planned water resources for our service area. The District serves approximately 58,000 residential, industrial, and commercial customers in North San Diego County. The 48-square mile service area includes parts of Encinitas, Carlsbad, San Diego, Solana Beach, and San Marcos as well as the communities of Olivenhain, Leucadia, Elfin Forest, Rancho Santa Fe, Fairbanks Ranch, Santa Fe Valley and 4S Ranch. The Plan (Table 3 on page S of the Plan) requires the District to purchase 24,309 acre feet per year from our regional water supply wholesaler, the San Diego County Water Authority (Authority). Due to limited local supply options, the Authority must import 85% of its water supply from the State Water Project and Colorado River. In an effort to reduce our dependence on imported water, by 2015 the District's Plan identifies the need for 5,000 acre feet per year of locally-produced desalinated seawater. To ensure we meet our goal of reducing demand on imported water and still meet our planned water supply needs, the District has entered into a 30-year contract to purchase 5,000 acre-feet of water per year from the Carlsbad Desalination Project, representing about 15% of the District's total supply. This contract guarantees us a drought-proof A Public Agency Providing Water I Wastewater Services I Recycled Water I Hydroetectricity I Ellin Forest Recreational Reserve 008241 water supply, and the District controls where, when and how this water will be appropriated for public use. Consequently, the Carlsbad Desalination Project will replace on a one-for-one basis our demand for water that must be imported. If the Carlsbad desalination Project is not approved, our demand for imported water will increase by 5,000 acre feet per year. We hope this further explanation answers any questions you might have had about the Carlsbad Desalination Project's impact on our imported water demands, and we appreciate your support in ensuring the region has a safe, reliable and affordable water supply. Sincerely, jmberly j&rThorner General Manager, Olivenhain Municipal Water District Attachment: Olivenhain Municipal Water District 2005 Urban Water Management Plan cc. Judy Brown Marina Brand Barbara Dugal Tom Filler Tom Luster 008242 10 •+-»L_ O Q. 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