HomeMy WebLinkAbout2009-09-22; City Council; 19973; Desalination project changesCITY OF CARLSBAD - AGENDA BILL
19.973AB#
MTG. 09/22/09
DEPT. Clerk
DESALINATION PROJECT CHANGES
PDF 00-02(b)/SP 144(J)/DA 05-01 (A)
DEPT. HEAD
CITY ATTY.
CITY MGR.
RECOMMENDED ACTION:
Adopt Ordinance No. CS-057, approving an amendment to the Encina Specific Plan to
incorporate Precise Development Plan POP 00-02(6), for the Encina Power Station and
Carlsbad Seawater Desalination Plant located at 4600 Carlsbad Boulevard; and,
Adopt Ordinance No. CS-058, amending the Encina Power Station Precise Development
Plan POP 00-02, to approve changes to the Carlsbad Seawater Desalination Plant proposed
at the Encina Power Station; and
Adopt Ordinance No. CS-059, approving the amended and restated Development Agreement
DA 05-01 (A), with Poseidon Resources (Channelside) LLC to provide for the construction of
the Carlsbad Seawater Desalination Plant and appurtenant facilities, including pipelines,
located at the Encina Power Station and offsite of the Power Station.
ITEM EXPLANATION:
Ordinance Nos. CS-057, CS-058, and CS-059 were was introduced and first read at the City
Council meeting held on September 15, 2009. The second reading allows the City Council to
adopt the ordinances. Ordinance Nos. CS-057 and CS-058 will become effective thirty days
after adoption. Ordinance No. CS-059 will become effective no sooner than thirty days after
adoption. (Notwithstanding the preceding, Ordinance No. CS-059 shall not be effective within
the City's Coastal Zone until the Development Agreement is approved by the California
Coastal Commission.)
The City Clerk will have the Ordinances published within fifteen days, if adopted.
FISCAL IMPACT:
See Agenda Bill No. 19,964 on file in the Office of the City Clerk.
EXHIBITS:
1. Ordinance No. CS-057.
2. Ordinance No. CS-058.
3. Ordinance No. CS-059.
DEPARTMENT CONTACT: Karen R. Kundtz (760) 434-2808,
karen.kundtz@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
D
D
Dn
D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
D
D
D
D
EXHIBIT 1
ORDINANCE NO. CS-OS7
2"
3 I AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AMENDING THE ENCINA
SPECIFIC PLAN SP 144(H) TO INCORPORATE
PRECISE DEVELOPMENT PLAN POP 00-02(6) AS
APPROVED BY CITY COUNCIL ORDINANCE NO.
re-OSS FOR THE ENCINA POWER STATION AND
7 CARLS6AD SEAWATER DESALINATION PLANT
o LOCATED ON PROPERTY NORTH OF CANNON
ROAD, SOUTH OF AGUA HEDIONDA LAGOON,
9 EAST OF CARLS6AD 6OULEVARD AND WEST OF
10 INTERSTATE 5 AND IN LOCAL FACILITIES
MANAGEMENT ZONES 1 AND 3.
11 CASE NAME: DESALINATION PROJECT CHANGES
12 CASE NO.: SP 144(J)
13 WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
14 considered a request from Poseidon Resources (Channelside) LLC to incorporate Precise
16 Development Plan 00-02(6) as approved by City Council Ordinance No. CS-058 for
17 the Encina Power Station and Carlsbad Seawater Desalination Plant into Encina Specific Plan
18 144; and
19
20 WHEREAS, said application constitutes a request for a Specific Plan
Amendment as shown on Exhibit "Encina Specific Plan Amendment — SP 144(J)" attached
22
hereto and made a part hereof and in the document "Draft City of Carlsbad Specific Plan 144
24 Amended and Restated with Amendment SP 144J" on file in the Planning Department and also
and made a part hereof; and
26
WHEREAS, the amendment is proposed to approve changes to the Carlsbad
28 Seawater Desalination Plant; and
WHEREAS, changes proposed to SP 144 revise document text with changes
shown in strikeout for words to be deleted and underline for words to be added; and
WHEREAS, after procedures in accordance with the requirements of law, the
City of Carlsbad has determined that the public interest indicates that said specific plan
amendment be approved; and
WHEREAS, the City Council did on the 15tb day of September .
2009, hold a duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS at said public hearing, upon hearing and considering all testimony
2
and arguments, if any, of all persons desiring to be heard, said Council considered all factors
4 relating to Encina Specific Plan Amendment — SP 144(J).
5 NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
6
ordain as follows:
8 SECTION I: That Specific Plan Amendment SP 144(J) dated August 19, 2009,
9 on file in the Planning Department, and incorporated by reference herein, is approved. All
10
, development of the property shall substantially conform to the plan unless otherwise noted in
12 these conditions.
SECTION II: That the findings and conditions of the Planning Commission in
14
Planning Commission Resolution No. 6633 shall also constitute the findings and conditions of
16 the City Council.
17 EFFECTIVE DATE: This ordinance shall be effective thirty days after its
18
19 adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
20 published at least once in a publication of general circulation in the City of Carlsbad within
21 fifteen days after its adoption.22
23 '"
24 ///
25
26
27 ///
28 ///
-2-
1
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
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on
the 15th day of September, 2009, and thereafter.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the
City of Carlsbad on the 22nd day of September, 2009 by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
ABSTAIN: None.
APPROVED AS TO FORM AND LEGALITY
I QEPgg-
RONADD R. BALL, City Attorney
ATTEST:
LORRAINE
(SEAL)
Encina Specific Plan Amendment - SP144(J)
August 19, 2009
J=JL CAMINO REAL
Precise Development Plan
(with Amendments per POP 00-02(B)
to be incorporated into Specific Plan 144)
Specific Plan 144 Boundary
o
Feet
0 500 1,000
J:\Requests\Planning\4103790_09
EXHIBIT 2
1 ORDINANCE NO. CS-058
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, AMENDING THE ENCINA POWER
4 STATION PRECISE DEVELOPMENT PLAN PDP 00-02 TO
APPROVE CHANGES TO THE CARLS6AD SEAWATER
DESALINATION PLANT PROPOSED AT THE ENCINA POWER
6 STATION (EPS), 4600 CARLS6AD 6OULEVARD, IN LOCAL
FACILITIES MANAGEMENT ZONES 1 AND 3 AND GENERALLY
' NORTH OF CANNON ROAD, SOUTH OF AGUA HEDIONDA
8 LAGOON, EAST OF THE PACIFIC OCEAN, AND WEST OF
INTERSTATE 5.
CASE NAME: DESALINATION PROJECT CHANGES
10 CASE NO.: PDP 00-02(6)
WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
12
considered a request to approve an amendment to the Encina Power Station Precise
14 Development Plan, PDP 00-02, via application Precise Development Permit 00-02A(6); and
WHEREAS, the amendment is proposed to approve changes to the Carlsbad
16
Seawater Desalination Plant; and
18 WHEREAS, changes proposed to the PDP 00-02 revise document graphics and
19 text, with text changes shown in strikeout for words to be deleted and underline for words to be
20
added;and
22 WHEREAS, after procedures in accordance with the requirements of law, the
23 City of Carlsbad has determined that the public interest indicates that said precise development
25 plan amendment be approved; and
26 WHEREAS, the City Council did on the -^ day ofsepta±a^_,
27
2009, hold a duly noticed public hearing as prescribed by law to consider said request; and28
WHEREAS, said application constitutes a request for a precise development
plan amendment consistent with Chapter 21.36 of the Municipal Code as shown and described
in the "Encina Power Station Precise Development Plan PDP 00-02(6)" document and on
Exhibits "A" - "P," both dated August 19, 2009, and incorporated herein by reference and on
file in the Planning Department.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
ordain as follows:
1 SECTION I: That Precise Development Plan POP 00-02(6), dated August 19,
2 2009, on file in the Planning Department and incorporated by reference herein, is adopted.
The Encina Power Station Precise Development Plan POP 00-02(6) shall constitute the
4
development plan for the property and all development within the plan area shall conform to
5
the plan.
6
SECTION II: That the findings and conditions of the Planning Commission in
7
Planning Commission Resolution No. 6632 shall also constitute the findings and conditions of
8
the City Council.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
12 published at least once in a publication of general circulation in the City of Carlsbad within
13 fifteen days after its adoption.
14 ///
15 ///
16 ///
17 ///
18 ///
19 ///
20 ///
21
22
23
24
25
26 '"
27 '"
28 '"
-2-
1
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
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on
the 15th day of September, 2009, and thereafter.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the
City of Carlsbad on the 22nd day of September, 2009 by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: None.
ABSTAIN: None.
APPROVED AS TO FORM AND LEGALITY
RONAtD R. BALL, City Attorney
ayor
EXHIBIT 3
1 ORDINANCE NO. CS-059
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE AMENDED AND
RESTATED DEVELOPMENT AGREEMENT DA 05-01 (A)
BETWEEN THE CITY OF CARLSBAD AND POSEIDON
RESOURCES (CHANNELSIDE) LLC TO PROVIDE FOR THE
6 CONSTRUCTION OF THE CARLSBAD SEAWATER
7 DESALINATION PLANT AND APPURTENANT FACILITIES,
INCLUDING PIPELINES, LOCATED BOTH AT THE ENCINA
8 POWER STATION AND OFFISTE OF THE POWER STATION.
CASE NAME: DESALINATION PROJECT CHANGES
CASE NO.: DA 05-01 (A)
10
1} WHEREAS, the City Council of the City of Carlsbad, California has reviewed and
12 considered a request from Poseidon Resources (Channelside) LLC to approve the Amended
and Restated Development Agreement - DA 05-01 (A) for the Carlsbad Seawater Desalination
14
Plant; and
16 WHEREAS, after procedures in accordance with the requirements of law, the
17 City of Carlsbad has determined that the public interest indicates that said Amended and
18
19 Restated Development Agreement be approved; and
20 WHEREAS, changes made by the Amended and Restated Development
21 Agreement are shown in strikeout for words to be deleted and underline for words to be added;22
23 and
24 WHEREAS, California Government Code Sections 65867.5 and 65868 and
25 Carlsbad Municipal Code Sections 21.70.090 and 21.70.120 state the approval of an
27 amendment to a development agreement is a legislative act which must be approved by
28 ordinance; and
WHEREAS, this ordinance is adopted pursuant to Article 2.5 of the California
Government Code, Chapter 21.70 of the Carlsbad Municipal Code, and Carlsbad Council Policy
Statement 56; and
WHEREAS, the City Council did on the 15th day of September. 2009, hold a
duly noticed public hearing as prescribed by law to consider said request; and
WHEREAS at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Council considered all factors
relating to the Amended and Restated Development Agreement.
2
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
4 ordain as follows:
SECTION I: The City Council finds that there have been further refinements in
6
7 the development agreement and that the Amended and Restated Development Agreement
8 between the City of Carlsbad and Poseidon Resources (Channelside) LLC, attached hereto
9 marked Exhibit "X-1," dated September 9, 2009, and incorporated by reference ("Amended and
10
Restated Development Agreement"), and it has carefully reviewed that document and it is
12 approved in substantially the form presented at the Council meeting of September 15, 2009
and subject to obtaining the consent of the property owner (Cabrillo Power I, LLC) in a form
14
satisfactory to the City Attorney.
16 SECTION II: The Council further finds that the findings and conditions of the
17 Planning Commission in Planning Commission Resolution No. 6634 that recommended for
18
19 approval the ("Amended and Restated Development Agreement" dated August 19, 2009, on file
20 jn the Office of the City Clerk), also apply to the September 9, 2009 development agreement as
21 it complies with the intent and purpose of the development ordinance and therefore constitute
22
23 the findings and conditions of the City Council.
24 SECTION III: Upon the occurrence of the Effective Date (as defined in the
25 Amended and Restated Development Agreement), the City Clerk is authorized and directed to26
27 record the Amended and Restated Development Agreement in the Office of the San Diego
County Recorder pursuant to Section 21.70.130 of the Carlsbad Municipal Code.
EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after
its adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to be
published at least once in a publication of general circulation in the City of Carlsbad within
fifteen (15) days after its adoption. Notwithstanding the preceding, this ordinance shall not
become effective unless and until the Development Agreement is approved by the California
Coastal Commission.
-2-
1
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
INTRODUCED AND FIRST READ at a joint special meeting of the Carlsbad
City Council and Housing and Redevelopment Commission on the 15th day of September
2009, and thereafter.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the 22nd day of September 2009, by the following vote, to wit:
AYES:COUNCIL MEMBERS, LEWIS, KULCHIN, HALL, PACKARD AND BLACKBURN.
NOES: NONE.
ABSENT: NONE.
ABSTAIN:NONE.
APPROVED AS TO FORM AND LEGALITY
ONAtQR. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST:
-3-
Recorded at request of:
Clerk, City Council
City of Carlsbad
When recorded return to: )
ClTY OF CARLSBAD
j
)
1200 Carlsbad Village Drive 1
Carlsbad, CA 92008 )
Attn: City Attorney 1
)
(Space above for Recorderrs Use Only)
This document is exempt from the payment of
a recording fee pursuant to Government Code
Section 6103.
DEVELOPMENT AGREEMENT
A DEVELOPMENT AGREEMENT BETWEEN
ClTY OF CARLSBAD
and
POSEIDON RESOURCES (CHANNELSIDE) LLC
Exhibit X-I
September 9, 2009
15'
TABLE OF CONTENTS
1 DEFINITIONS AND EXHIBITS ................. ....... ................................................ 2 . . 1.1 Defin~t~ons .................... ......... ...................................................................... 2
I2 xh
2 GENERAL PROVISIONS .............................. - -
2.1 Binding Effect of Agreement44
2.2 Legal Interest in Property44
2.3 Term44
2.4 Sale, Transfer or Assignment44
2.5 Amendment or Cancellation of Agreement4-
2.6 Termination44
2.7 Liability-W........................................
2.8 Compliance With Environmental Law*-
3 DEVELOPMENT OF THE PROJECT. ........................................
3.1 Permitted .............................................
3.2 Vested Right&&
3.3 Effect of Agreement on Land Use Regulationsll...........................
3.4 Timing of Developrnentll...........................
3.5 Changes and AmendmentsIIa
3.6 Reservations of AuthorityIZ........................................
3.7 Public work&&
3.8 Provision of Real Property Interests by the Cityla-
' 3.9 Regulation by Other Public AgenciePA
3.10 Tentative Tract Map ExtensionIA-
3.1 1 Poseidon Obligation to Obtain and Maintain Insurancel4d
...................... ....................................................... 4 PUBLIC BENEFITS .. Mg
4.1 lntentl~a
4.2 Mitigation Measures and Fees--
4.3 ~edication-&
5 FINANCING OF APPURTENANT FACILITIES; OTHER PUBLIC
FINANCING; USE OF PUBLIC RIGHTS OF WAY .......................................... Ss
5.1 Appurtenant ~acilities46-
5.2 Other Public Financing**
5.3 Use of Public Rights of Way%%
6 ANNUAL REVIEW. ......................................................................................... S a
6.1 Periodic Review464
6.2 Opportunity to Be& ~eardII*
6.3 Information to 4e& Provided Poseidon*-
7 INCORPORATION AND ANNEXATION. .......................... .. ........................ Sa
7.1 intent**
7.2 1ncorporationlZ~
7.3 ~nnexation47-
8 DEFAULT AND REMEDIES ................................
8.1 Remedies in General473
8.2 Termination by City*. The C- this
8.3 Liquidated Damages for Poseidon's Failure to Amend This
Agreement Upon Relocation of Plant Facilities*-
8.4 Specific Performancs%O........................................
8.5 Release and Rese~ationlg4
8.6 Terminationsf Agreement for Default of Poseidonl-8-
8.7 Termination of Agreement for Default of the City=-
8.8 Rights, Remedies for Negligence, Willful Misconduct4OL
9 THIRD PARTY LITIGATION; INDEMNIFICATION ......................................
9.1 General Plan Litigationa........................................
9.2 Third Party Litigation Concerning Agreementah
9.3 Breaches of Agreement; Property Damage, Bodily Injury or Death
ax
9.4 Indemnification Procedur&&
9.5 SUN~V~I~~........................................
..................................................................... 10 MORTGAGEE PROTECTION. =a
11 MISCELLANEOUS PROVISIONS. a
11 .I Recordation of Agreement223
11.2 ~urther ~ctionsm
11.3 ~mendmentaa
11.4 Entire ~~reementaa
11.5 ~otices233
11.6 Controlling ~aw31a
11.7 Headings2
11.8 Cumulative Rights; waiver==
11.9 Liberal ~onstruction*a
11.10 ~everability*a
11.11 Good Faith and Fair ~ealing-24-
11.12 No Third Party ~eneficiaries-24-
11.13 Execution in Counterparts. ........................................................*=
11.14 Time of the ~ssence-?4-
11.15 Number, ~ende.252
11.16 ~elationship-252
11.17 Joint and Several Obligations3-
11.18 Force Majeur-a
11.19 Mutual Covenants**
11.20 Successors in interests-
11.21 Jurisdiction and ~enu&-
11.22 Project as a Private Undertaking=-
11.23 Eminent Domain%%
11.24 Agent for Service of Proces-A
11.25 Authority to ~xecut&&
11.26 Commission Approval Required%-
11.27 Approval Procedur-&
- DEVELOPMENT AGREEMENT
This Agreement, entered into as of the Effective Date, by and between the
City and Poseidon, is made with respect to the following facts:
RECITALS
WHEREAS, the City is authorized to enter into binding development
agreements with persons having legal or equitable interests in real property for the
development of such property, pursuant to Section 65864, gt g. of the Code; and,
WHEREAS, pursuant to Section 65865 of the Code, the City has adopted
Chapter 21.70 of the Carlsbad Municipal Code, establishing rules and regulations for
consideration of development agreements; and,
WHEREAS, Poseidon and the City have agreed to enter into a development
agreement and proceedings have been taken in accordance with Chapter 21.70 and
otherwise in accordance with the rules and regulations of the City; and,
WHEREAS, by electing to enter into this Agreement, the City shall bind future
City Councils of the City by the obligations specified herein and limit the future exercise
of celtain governmental and proprietary powers of the City; and,
WHEREAS, the terms and conditions of this Agreement have undergone
extensive review by the City and the City Council of the City and have been found to be
fair, just and reasonable; and,
WHEREAS, the best interests of the citizens of the City and the public health,
safety and welfare will be served by entering into this Agreement; and,
WHEREAS, the Project (as hereinafter defined) is consistent with, and
includes elements specificallv intended to advance the goals of the State of California
related to, the protection, maintenance and where feasible enhancement and
restoration of the overall quality of the coastal zone environment and to maximize public
access and recreational opportunities along the coast, and includes public dedication of
several acres of ocean and lagoon front property that has been agreed to by Poseidon
as described in Exhibit 5 of the Precise Development Plan (PDP 00-02); and,
WHEREAS, all of the procedures of CEQA have been met with respect to the
Project and this Agreement; and,
WHEREAS, by Council Resolution No. , the City Council, afler
making appropriate findings, cetirfied the Environmental Impact Repo- for the
Project, dated , 2006, under the provisions of CEQA; and,
WHEREAS, this Agreement and the Project are consistent with the City's
General Plan and the Precise Development Plan applicable to the Property; and.
WHEREAS, all actions taken and approvals given by the City have been duly
taken or approved in accordance with Chapter 21.70 and with all applicable legal
requirements for notice, public hearings, findings, votes, and other procedural matters;
and,
WHEREAS, pursuant to the Approval Ordinance, the City Council approved
the Approval Or-
oval Ordimme&&&
WHEREAS, development of the Project in accordance with this Agreement
will provide substantial benefits to the City and will further important policies and goals
of the City; and,
WHEREAS, this Agreement will eliminate uncertainty in planning and provide
for the orderlv develooment of the Proiect. ensure progressive installation of necessary
improvemenk, provide for public serv~ces'appropr~ate~to the development of the ~rojed.
and qenerallv serve the purposes for which development agreements under Sections
65864, &. of the code and Chapter 21.70 are intended and,
WHEREAS, Poseidon has incurred and will in the future incur substantial
costs in the development of the Project in accordance with this Agreement in order to
assure vesting of legal rights to develop the Project in accordance with this Agreement.
NOW. THEREFORE. in consideration of the above recitals and of the mutual ~. ~~
covenants hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
COVENANTS
1 DEFINITIONS AND EXHIBITS.
1.1 Definitions. When used in this Agreement, the following terms shall
have the meaning set forth below:
1 .I .1 !:Agreement!!: means this-
Development Agreement.
1.1.2 "Agreement Date" means the date this Agreement is fully
executed by the parties.
U +M-"Approval Ordinance" means the City Ordinance No.
,N=7& which became effective on
attached.
jJ& *Appurtenant Facilities" means product Mhx . . .. . assets, whether or not located at the Power Plant, consisting of
$$%!%and ancillary facilities, including without limitation (a) pipelines, pump
stations and other facilities within the Citv that are necessaw or convenient for the use.
conveyance, storage, and distribution ofdesalinated seawater, and (b) such incidental
amurtenant and ancillaw facilities as are located in the Cities of Oceanside& - ?&ms or Vista. ~aliforhia.
1;LL WCabrillo" means Cabrillo Power I, LLC, a Delaware limited
liability cornpa-ts successors and assigns, and the successors in interest to all or
any part of Cabrillo's interest in the Property.
lU M+"CEQA means the California Environmental Quality Act,
California Publicesources Code Sections 21000 gt sea.
WCityZE means the City of Carlsbad, California, a municipal - corporation and a general law city formed under the laws of the State of California.
WCity Council" means the duly elected members of the City
Council of the City, as those members may from time to time be elected.
MCode" means the California Government Code,
WCommission" means the California Coastal Commission.
WDefault" means (a) with respect to either party, any
failure to perform any material duty or obligation under this Agreement, (b) with respect
to Poseidon, any Event of Default with respect to Poseidon under the Water Purchase
Agreement, and uwith respect to the City, any Event of Default with respect to the
District under the Water Purchase Agreement.
44AL''Development~~ means the improvement of the portion of
the Property subject to the Leasehold for the purposes of completing the structures,
improvements and facilities comprising the Plant Facilities, including, but not limited to:
grading; the construction of infrastructure and public facilities, whether located within or
outside the portion of the Property subject to the Leasehold that are related to the Plant
Facilities; the construction of buildings and structures; and the installation of
landscaping. ~~Developmenr~: does not include the maintenance, re air, reconstruction
or redevelopment of any building, structure, improvement or facility a er the
construction and completion thereof.
T!
LLU development Approvals~~ means all permits and other
entitlements for, subject to approval or issuance by the City, the RDA or the
Commission, as applicable, in connection with: (id Development of the portion of the
Property subject to the Leasehold and (Mu the Appurtenant Facilities, including, but not
limited to:
@)-Project EIR;
&+Precise Development Plan (PDP 00-02w and any
amendments thereto;
(+Coastal Development Permit;
&) ++Redevelopment Permi-
f the p;
@ teflmprovement Plans;
&+Habitat Management Plan Permit:
42!
#Haul Route Permit;
Illl-
CkfThis Agreement: andanveto as of
oval Ordinance:
(+Special Use Permit7d
u- . .
4AW"Development Plan:: means the Existing Development
Approvals and the Existing Land Use Regulations applicable to Development of the
Project on4kp&ewd the Property subject to the Leasehold.
&lJJ WDistrict" means the Carlsbad Municipal Water District, a
municipal water district.
4&M-"Effective Datg: means the last to occur of the following: (a) the date the- Approval Ordinance becomes effective, (iil2) the date that
the Agreement is fully executed by the parties, (iiis) the date the Commission approves
this Agreement, or (i@ the date Cabrillo has provided the consent attached hereto as
Exhibit "A!!. 1
WExisting Development Approvals!: means all
Development Approvals approved or issued prior to the Agreement Date. Existing
Development Approvals include the approvals incorporated herein as Exhibit E:Dzz and
all other approvals which are a matter of public record on the Agreement Date.
-Existing Land Use Regulations!: means all Land Use
Regulations in-ct on the Agreement Date. Existing Land Use Regulations include
the Land Use Regulations incorporated herein as Exhibit l:E!z and all other Land Use
Regulations which are a matter of public record on the Agreement Date. Existing Land
Use Regulations do not include Police Power Regulations.
WLand Use Regulation$: means all ordinances,
resolutions, codes, rules, regulations and official policies of the City, other than the
Police Power Regulations, governing the development and use of land, including
without limitation the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the development of the Property.
U M20-"LeaseM means that certain Ground Lease and Easement
Agreement, dateduly 11, 2003, and entered into by and between Poseidon and
cabrill&---%
%l&l- "Leasehold" means Poseidon's interest in a+a&w&the
Property under the tens and conditions of the Lease.
I.l.32- ,I
recordable-
_ti33: WMGD" means million gallons per day.
4&S"Mortgage&!! means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any ot5er security-device lender, and their
successors and assigns.
-Plant Facilities" means production assets consisting of a
reverse-osmosis seawater desalination plant.
LlS 4X%-"Police Power Regulations" means any City ordinance,
resolution, come, regulation or official policy, governing: (a) public health, safety,
morals and welfare, in general, and the control and abatement of nuisances, in
particular; (b) the granting of right of way permits and the conveyance of rights and
interests which provide for the use of or the entry upon public property (excluding any
Development Approvals or any rights of way necessary to implement the Project as
specified in the Development Approvals); or (c) the exercise of the power of eminent
domain.
LlX - posei id on^^ means Poseidon Resources (Channelside)
LLC, a Delaware l~mited liability company, its successors and assigns, and the
successors in interest to all or any part of Poseidon's interest in the Project.
WPower Plant" means the Encina Power Station owned and
operated by Cabrillo.
product Water" means desalinated seawater produced
from the Project.
&GX-"Project~~ means, generally, the Development of the
portion of the Property subject to the Leasehold contemplated by the Development Plan
as such Development Plan may be further defined, enhanced or modified pursuant to
the provisions of this Agreement, and specifically, the development of an integrated
reverse-osmosis desalination plant comprising: (1& the Plant Facilities; and (2M the
Appurtenant Facilities; provided, however that if the District elects to own or have a
goint pEowers aButhority own facilities pursuant to Section 9.2 of the Water Purchase
Agreement, such facilities shall be excluded from the definition of Project hereunder.
The Project is expected to have the capacity to produce and convey approximately 25
MGD to 55 MGD of Product Water, but the scope of the Project, including without
limitation the location of the Appurtenant Facilities, may be further defined, enhanced or
modified pursuant to the provisions of the Development Approvals.
1391 44ZL"PropertyY means the real property described on Exhibit
YW'nd - - - depwon Exhibit !:CEz to this Agreement.
Course.
44,W"RDA" means the Carlsbad Housing and Redevelopment
Commission.
-Reservations of Authority'~means the rights and
authoritv exce~ted from the assurances and riahts Drovided to Poseidon under this
Agreement and resewed to the City under seaions 3.6 through 3.6.4 of this Agreement.
1392 +AM-"Subsequent Development Approvals:: means all
Development~ovals required subsequent to the Agreement Date in connection with
development of the Project.
++34-Yiubsequent Development Exaction:: means any
reauirement of the Citv in connection with or ~ursuant to anv Subseauent Land Use
~e$ulation or ~ubseqbent Development ~ppkovals for the dedication of land, the
construction of im~rovements or Dublic facilities. or the Davment of fees in order to
lessen, offset, mitigate or compensate for the impacts of dkvelopment on the
environment or other public interests.
U-;aa"Subsequent Land Use Regulations!: means any Land
Use Regulations adopted and effective after the Agreement Date.
+&%-''Water Purchase Agreement" means that certain Water
Purchase Agreement, dated as of September 28, 2004, and entered into by and
between Poseidon and the District, as the same shall be amended from time to time.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A - Form of Cabrillo Consent.
Exhibit K:B!: -- Legal Description of the Property.
Exhibit c:C:E -- Map depicting Property and its location.
Exhibit :ED:: -- Existing Development Approvals.
Exhibit ::E!: -- Existing Land Use Regulations.
oved PublW&ws.
2 GENERAL PROVISIONS.
2.1 Bindina Effect of Aareement. This Agreement runs with, and is
binding upon, the Leaseholdi& the Project-, Development of the
Project is authorized by the Development Approvals and, except as otherwise provided
for herein, shall be carried out only in accordance with the terms of the Development
Approvals. Notwithstanding anything in this Agreement to the contrary, this Agreement
shall only apply to the Development of the Project on the Property subject to the
Leasehold, and shall not apply to any other development of the Property.
2.2 Leaal Interest in Propetty. Poseidon represents and covenants that
Cabrillo is the owner of the fee simple title to the Property, and that, as of the
Agreement Date, Poseidon has a legal interest in the Property pursuant to the Lease.
2.3 Term. The term of this Aareement shall commence on the Effective Date
and shall continuefor a period of forty 740) years thereafter, unless the Agreement is
terminated or the term is modified or extended pursuant to the provisions of this
Agreement.
2.4 Sale, Transfer or Assianment.
2.4.1 Riaht to Assi~n. Poseidon shall have the right to sell, transfer or
assign this Agreement, in whole or in part, if and only if it meets the conditions set forth
in clauses (a) and (b) below:
#UThe sale, transfer or assignment is made in connection
with a sale, transfer or assignment, voluntarily or involuntarily, by operation of law or
otherwise, of all or a part of the Project and the prior written consent of the City is
obtained; or
fwfUThe sale, transfer or assignment is made in
connection with a sale, transfer or assignment, voluntarily or involuntarily, by operation
of law or otherwise, of all or a part of Poseidon's interest in the Leasehold and the
-prior written consent of the City is obtained; or
(%+&&The sale, transfer or assignment is made in
connection with a permitted assignment of the Water Purchase Agreement; and
@juThe proposed assignee has provided the City Manager with
an executed aareement. in a form reasonably acceptable to the City, providing therein - ~~
that such purcfiaser, transferee or assignee expres'sly and unconditionally assumes all
the duties and obliaations of Poseidon under this Agreement, including but not limited to
the financial obligaiions of Poseidon set forth herein.
OJny sale, transfer or assignment not madeb compliance
with the foregoing conditions shall constitute a default by Poseidon under this
Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to
execute the agreement required by Paragraph (b), above, of this Subsection 2.4.1, and
regardless of whether such purchaser, transferee or assignee has succeeded to
Poseidon's interest in the Project, the Property or the Leasehold voluntarily or
involuntarily, by operation of law or otherwise, the burdens of this Agreement shall be
binding upon such purchaser, transferee or assignee, but the benefits of this Agreement
shall not inure to such purchaser, transferee or assignee until and unless such
agreement is executed.
2.4.2 Condemnation. In reliance upon the terms, covenants and
conditions set forth in this Agreement, the City and (or) the RDA have (has) incurred
andlor will incur costs and expenses, including but not limited to costs and expenses to
finance or refinance the construction and installation of public improvements of benefit
to the Project, a portion of Ware expected to be reimbursed to the City as
mitigation fees pursuant to Section 4 of this Agreement. The parties intend that the right
to this mitiaation fee and the recordation of this Agreement reflecting the mitigation fee -
obligation,-which runs with -- . , anithe project under
this Aareement, constitute a compensable interest in the Property held by the City
and1o;the RDA (the "CitylRDA property Interest"). If at any time-during the term of this
Agreement: (ia) all or any portion of Poseidon's interest in the Project or its interest in
the Lease or the real property underlying the Project (the "Poseidon Property Interest")
is taken under the power of eminent domain, or if there is a voluntary conveyance in lieu
of or under the threat of eminent domain, (iiM Poseidon is no longer obligated to pay
the mitigation fee pursuant to Section 4 of this Agreement and (&A the acquiring party
does not agree to pay such mitigation fee, the provisions of this Section 2.4.2 shall
apply.
&+If a court or jury renders a total, undivided award of
compensation in a condemnat~on action without apportioning the award between the
Poseidon Property Interest and the CitylRDA Property Interest, then the parties agree
(absent an agreement upon how the undivided sum should be shared), to request the
court to conduct a second phase of the trial to apportion the award between the City
andlor the RDA, on the one hand, and Poseidon, on the other hand, in accordance with
their respective property interests. In such a second phase, the City andlor RDA shall
present evidence of the value of theirits interest as described in subsection (63J
below, and Poseidon shall present evidence of the value of its interest according to the
method of valuation which it believes is most appropriate under the circumstances and
timing of the condemnation. If the amount of the undivided award is insufficient to
compensate the City andlor the RDA, on the one hand, and Poseidon, on the other
hand, based on each party's method of valuation, then it is the parties' intent that the
court shall equitably apportion the undivided award (without any preference or priority
being applied to the interest of either the City andlor the RDA, on the one hand, or
Poseidon, on the other hand).
&+If there is a voluntary conveyance by Poseidon of the
Poseidon Property Interest or any part thereof to a public or quasi-public agency or
entity (the "Condemning Agency") in lieu of or under threat by the Condemning Agency
to take the Poseidon Property Interest, or any portion thereof, by eminent domain
proceedings, Poseidon shall include in the voluntary sales price the present value
(calculated as of the date of the voluntary conveyance using as a discount rate the
Standard & Poor's (S&P) Composite Yield Table, prepared by the Bond Market
Association, showing the yield composites of AA-rated municipal bonds with 20-year
maturities (the "S&P Composite Bond Yield Index") for the month immediately
preceding the month in which the voluntary conveyance occurs) of the estimated
property taxes that the City, the District or the RDA would receive from the construction,
operation and ownership of the Project on the Property, from the date of the voluntary
conveyance to the end of the term of this Agreement, and within thirty (30) days of
receipt of the voluntary sales proceeds or the first installment thereof if there is an
installment sale, shall pay to the City andlor the RDA such present value (or in the case
of an installment sale a portion thereof based on the relative amount of such present
value and the aggregate voluntary sales price).
&J fsflf at any time during the term of this Agreement there is a
taking of an interest in the Project under the power of eminent domain, as more
particularly set forth in and subject to Section 2.4.2 (al) above, then, as between the
City andlor the RDA, on the one hand, and Poseidon, on the other hand, the parties
agree that the value of the CityIRDA Property Interest shall be calculated as follows:
the value shall be equal to the unamortized value of the total
cost and expenses incurred by the City andlor the RDA
pursuant to this Agreement, determined by calculating the
present value (calculated as of the date of the taking using
as a discount rate the S&P Composite Bond Yield Index for
the month immediately preceding the month in which the
taking occurs) of the estimated property taxes that the City,
the District or the RDA would receive from the construction,
operation and ownership of the Project on the Property, from
the date of the taking to the end of the term of this
Agreement.
&Within ten (10) days after receipt thereof, each party
shall give the other party copies of any notice received with respect to a proposed or
pending taking under power of eminent domain of any portion of the Project or the real
property underlying the Project. Poseidon shall give the City and RDA written notice at
least ten (10) days prior to entering into an agreement voluntarily conveying all or any
portion of the Poseidon Property Interest in lieu of or under the threat of eminent
domain.
@+This Section 2.4.2 shall not apply to any Condemning
Agency that has an agreement with the City andlor the RDA with respect to the
payment of a mitigation fee (including that certain Agreement Memorializing Certain
Understandings and Establishing a Framework for Cooperation, dated as of April 28,
2005, by and between the San Diego County Water Authority, the City, the District and
the RDA).
(+If (ia) at any time during the term of this Agreement there
is a taking of an interest in the Project under the power of eminent domain (or by a
voluntary conveyance in lieu thereof), as more particularly set forth in Section 2.4.2 (a%
or (82) above, (iiu the Condemning Agency does not have an agreement with the City
andlor the RDA with respect to the payment of a mitigation fee, (a) the Condemning
Agency nonetheless pays some or all of the mitigation fee required by Section 4 of this
Agreement, (iv@ the City or the RDA has received payment for the CityIRDA Property
Interest pursuant to Section 2.4.2 (a1) or (ba above and (va in the case of an award
being apportioned pursuant to Section 2.4.2(alJ above Poseidon receives less than its
proposed value of its interest, then the City shall pay Poseidon (or shall cause the RDA
to pay to Poseidon) such installments of the mitigation fee received from the
Condemning Agency, within thirty (30) days of the date the City andlor RDA receives
such payments, until such time as Poseidon has received an amount equal to the
amount paid to the City andlor RDA pursuant to Section 2.4.2 (al) or (82) above set
forth.
2.4.3 Subseauent Assianrnent. Any subsequent sale, transfer or
assignment of this Agreement after an initial sale, transfer or assignment of this
Agreement shall be made only in accordance with and subject to the tens and
conditions of this Section.
2.5 Amendment or Cancellation of Aareement. This Agreement may be
amended or cancelled in whole or in oart onlv bv written consent of all ~arties in the
manner provided for in Code ~ection'65868.' ~6is provision shall not liinit any remedy
of the City or Poseidon as provided by this Agreement
2.6 Termination. The parties acknowledge and agree that, except for Section
2.7 hereof, this Agreement is intended to run with the Leasehold and the Project and to
be binding on successors and assigns of the parties hereto. Accordingly, even if
Poseidon is no longer the lessee under the Lease or the owner of the Project, this
Agreement shall not be deemed terminated, but shall continue in full force and effect
unless any of the following events occurs:
(a) Expiration of the term of this Agreement stated in Section 2.3;
(b) Entry of a final non-appealable judgment setting aside, voiding or
annulling the adoption of the Amendedpproval Ordinance;
(c) The adoption of a referendum measure repealing theAmended
Approval Ordinance; or
(d) The Project does not commence operation within ten (10) years
after the Agreement Date.
Termination of this Agreement shall not constitute termination of any other
land use entitlements approved for the Project or the portion of the Property subject to
the Leasehold. Upon the termination of this Agreement, no party shall have any further
right or obligation hereunder except with respect to any obligation to have been
performed prior to such termination or with respect to any default in the performance of
the provisions of this Agreement which has occurred prior to such termination or with
respect to any obligations which are specifically set forth as surviving the termination of
this Agreement.
2.7 Liability. The parties acknowledge and agree that Poseidon Resources
(Channelside) LLC shall have no further liability under this Agreement in the event of:
@ (+A sale, transfer or assignment of this Agreement pursuant to
Section 2.4.1;
&)-Acquisition of Poseidon's interest in the Project as described in
Section 2.4.2; or
& CmfPoseidon otherwise ceases the Development of the Project.
The release of liability in this Section 2.7 shall apply to Poseidon Resources
(Channelside) LLC only, and not to any successor in interest, by operation of law or
otherwise, to Poseidon Resources (Channelside) LLC.
2.8 Comoliance With Environmental Law. Poseidon shall operate and
maintain the Project inaccordance with all applicable state and federal environmental
laws, notwithstanding any exemption that Poseidon may otherwise have under
international trade rules.
3 DEVELOPMENT OF THE PROJECT.
3.1 Permitted Uses. The Project shall be used and developed only for the
purposes more particularly set forth in the Development Plan and for such other uses
that may be mutually agreed upon by the parties hereto in accordance with Subsequent
Development Approvals and the applicable provisions of the Code relating to the
amendment of development agreements. In particular, the permitted uses of the portion
of the Property subject to the Leasehold, the density and intensity of use, the maximum
height and size of proposed buildings, the production capacity of the Plant Facilities,
and provisions for reservation and dedication of land for public purposes shall be those
set forth in the Development Plan.
3.2 Vested Riahts. Unless amended or terminated in the manner specified in
this Agreement (and subject to the provisions of this Agreement), or unless Poseidon
otherwise agrees. Poseidon shall have the rights and benefits afforded by this
Agreement and this Agreement shall be enforceable by Poseidon and the City
notwithstandina the occurrence of any of the following after the Agreement Date: (a) any .. .
growth controlheasure or any development moratorhm, or (b) any change in the
applicable general or specific plans, zoning, subdivision or building regulations adopted
by the City which alter or amend the Development Approvals, or (c) the adoption of any
new or amended ordinance, resolution, rule, regulation, requirement or official policy,
other than any of the Police Power Regulations, that is inconsistent with, or more
burdensome on Poseidon than, the Development Approvals so as to prevent or
materially adversely affect development, financing, construction or operation in
accordance with the Development Approvals. Unless Poseidon othewise consents in
writing, this Section shall be construed to prohibit the City from applying to the Project
any development moratorium that is adopted specifically to prohibit the construction of
the Project, or as an interim measure pending contemplated General Plan, specific plan
or zoning changes, or as a general growth control management measure without other
bona fide reasons relating to unforeseeable emeraencv situations (as described in
Section 3.2.1, below). ~tk Project shall remain s6bjedt to all subsequent Development
Approvals required to complete the Project as contemplated by the Development Plan.
3.2.1 Exceptions to Vested Riahts. Notwithstandin any provision to
the contraty contained herein, and without limiting the generality of 8ection 3.6, the City
expressly reserves the right to apply to the Project: (a) Reservations of Authority made
under Section 3.6; (b) any of the Police Power Regulations; or (c) any development
moratorium, limitation on the delivery of City-provided utility services, or other generally
applicable emergency rule, regulation, law or ordinance (collectively an "Emergency
Measure") which meets all of the following criteria: (i) such Emergency Measure is
based on genuine health, safety and general welfare concerns (other than general
growth mana ement issues); (ii) such Emergency Measure arises out of an emergency
s~tuation, as eclared by the President of the United States or the Governor of
California, or as declared by the Mayor or City Council of the City of Carlsbad; and (iii)
such Emergency Measureis& based upon its terms or its effect as applied, does not
apply exclusively or primarily to the Project.
3.3 Effect of Aareement on Land Use Reaulations. Except as otherwise
provided under the terms of this Agreement, including without limitation Section 3.2.1
above, the rules, reaulations and official policies aovernina permitted uses of the portion . -
of the Property subject to the ~easehold,'the deniity and kiensity of use of the
of the Property subject to the Leasehold, the maximum height and size of proposed
buildings, and the design. improvement and construction standards and s~ecifications
applic<bbla to development of the Project shall be the Existing Land Use ~e~ulations. In
connection with any Subsequent Development Approval, the City shall exercise its
discretion in accordance with the Development plan, and as provided bv this Agreement
including without limitation Section 3.2.1 'hereof. he City shall accept for
review and action all applications for Subsequent Development Approvals, and such
applications shall be processed in the normal manner for processing such matters.
3.4 Timina of Development. The parties acknowledge that Poseidon cannot
at this time predict when or the rate at which the Project will be developed. Such
decisions depend upon numerous factors which are not within the control of Poseidon,
such as approvals from other aovernment aaencies, availabilitv of subsidies from . . ~etro~oliiin Water District of Southern caliibrnia or others,
6interest rates,
construction completion and other similar factors. sin& the ~alifornia Supreme Court
held in Pardee Construction Co. v. Citv of Camarillo (1984) 37 Cal.3d 465, that the
failure of the parties therein to provide for the timing of development resulted in a later
adopted initiative restricting the timing of development to prevail over such parties!:
agreement, it is the partieg intent to cure that deficiency by acknowledging and
providing that Poseidon shall have the right to develop the Project in such order and at
such rate and at such times as are more particularly described in the Water Purchase
Agreement, subject only to any additional or different timing requirements set forth in
the Development Plan.
3.5 Chanaes and Amendments. The parties acknowledge that refinement and
further development of the Project will require Subsequent Development Approvals and
may demonstrate that changes are appropriate and mutually desirable in the Existing
Development Approvals. If Poseidon finds that a change in the Existing Development
Approvals is necessary or appropriate, Poseidon shall apply for Subsequent
Development Approvals to effectuate such change and the City shall process and act
on such application in accordance with the Existing Land Use Regulations, except as
otherwise provided by this Agreement, including the Reservations of Authority. If
approved, any such change in the Existing Development Approvals shall be
incorporated herein as an addendum to Exhibit Cp," and may be further changed from
time to time as provided in this Section. Unless otherwise required by law, as
determined in the City!:s reasonable discretion, a change to the Existing Development
Approvals shall not require an amendment to this Agreement, provided such change
does not:
(a) Alter the permitted uses of the Property as a whole; or,
(b) lncrease the density or intensity of use of the Project as a whole;
or,
(c) lncrease the maximum height and size of permitted buildings; or,
(d) lncrease the production capacity of the Plant Facilities; or,
(e) Delete a requirement for the reservation or dedication of land for
public purposes within the Property as a whole; or,
(9 Constitute a project requiring a subsequent or supplemental
environmental impact report pursuant to Section 21 166 of the Public Resources Code
3.6 Reservations of Authoritv.
3.6.1 Limitations. Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the City shall have the following Reservations of
Authoritv with resoect to aoolication of Subseauent Land Use Reaulations to the . ,~ ~ Development of the ~rojedt:
(a) Processing fees and charges of every kind and nature
imposed by the City to cover the estimated andlor actual costs to the City of processing
applications for Development Approvals or for monitoring compliance with any
Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
(c) Regulations governing construction standards and
specifications including, without limitation, the City'ls Building Code, Plumbing Code,
Mechanical Code. Electrical Code, Fire Code and Grading Code.
(d) Regulations imposing Subsequent Development Exactions;
provided, however, that no such Subsequent Development Exaction shall be applicable
to development of the Project unless such Subsequent Development Exaction is applied
uniformly to development, either throughout the City or within the South Carlsbad
Redevelopment Area. No such Subsequent Development Exaction shall apply if its
application to the Project would have a material adverse effect on the development of
the Project for the uses and to the density or intensity of development set forth in the
Development Plan.
(e) Regulations which may be in conflict with the Development
Plan but which are reasonably necessary to protect the public health, safety, morals and
welfare. To the extent possible, any such regulations shall be applied and construed so
as to provide Poseidon with the rights and assurances provided under this Agreement.
(0 Regulations which are not in conflict with the Development
Plan; provided that such regulations do not have a material adverse effect on the
development of the Project. Any regulation, whether adopted by initiative or otherwise,
limiting the rate or timing of development of the Project shall be deemed to conflict with
the Development Plan and shall therefore not be applicable to the development of the
Project.
(g) Regulations which are in conflict with the Development Plan,
provided Poseidon has given written consent to the application of such regulations to
development of the ProjGct.
3.6.2 Subseauent Development A~provals. This Agreement shall not
prevent the City, in acting on Subsequent Development Approvals, from applying
Subsequent Land Use Regulations which do not conflict with the Development Plan
(provided that such regulations do not have a material adverse effect on the
development of the Project).
3.6.3 Modification or Suspension bv State or Federal Law. If State or
Federal laws or regulations, whether existing on or enacted after the Agreement Date,
prevent or preclude compliance with one or more of the provisions of this Agreement,
such provisions of this Agreement shall be modified or suspended as may be necessary
to comply with such State or Federal laws or regulations, provided, however, that this
Agreement shall remain in full force and effect to the extent it is not inconsistent with
such laws or regulations and to the extent such laws or regulations do not render such
remaining provisions impractical to enforce.
3.6.4 !n&nJ. The parties acknowledge and agree that the City is
restricted in its authority to limit its police power by contract and that the foregoing
limitations, reservations and exceptions are intended to reserve to the City all of its
police power which cannot be so limited, including without limitation the Police Power
Regulations. This Agreement shall be construed, contrary to its stated terms if
necessary, to reserve to the City all such power and authority which cannot be restricted
by contract.
3.7 Public Works. If Poseidon'is required by this Agreement to construct any
public works facilities which will be dedicated to the City or any other public agency
upon completion, and if required by applicable laws to do so, Poseidon shall perform
such work in the same manner and subject to the same requirements as would be
applicable to the City or such other public agency should it have undertaken such
construction.
3.8 Provision of Real Propertv Interests bv the City. In any instance where
Poseidon is required to construct any public improvement on land not owned by
Poseidon, Poseidon shall at its sole cost and expense provide or cause to be provided,
the real property interests necessary for the construction of such public improvements.
If Poseidon is unable, and upon a showing that it has exhausted all legal remedies
available to it, including without limitation the rights under Sections 1001 and 1002 of
the California Civil Code, to acquire the real property interests necessary for the
construction of such public improvements, and if so requested by Poseidon and upon
Poseidon's provision of adequate security for costs the City may reasonably incur, then:
(a) the City may negotiate the purchase of the necessary real properly interests to allow
Poseidon to construct the public improvements as required by this Agreement; and (b) if
necessary, in accordance with the procedures established by law, the matter may be
brought before the City Council to, in its discretion, make the findings necessary to use
its power of eminent domain to acquire such required real properly interests. Poseidon
shall pay all costs associated with such acquisition or condemnation proceedings. This
Section 3.8 is not intended by the parties to impose upon: (x) the City a duty to acquire
any land or otherwise exercise any power of eminent domain; or (y) upon Poseidon an
enforceable duty to acquire land or construct any public improvements on land not
owned by Poseidon, except to the extent that Poseidon elects to proceed with the
Development of the Project, and then only in accordance with valid conditions imposed
by the City upon the Development of the Project under applicable legal authority.
3.9 Reaulation bv Other Public Aaencies. The parties acknowledge that other
public agencies not within the control of the City possess authority to regulate aspects
of the development of the Project separately from or jointly with the City, and this
Agreement does not limit the authority of such other public agencies. If any revisions or
corrections of the Development Plan approved by the City shall be required by any
government official, agency, department or bureau having jurisdiction over the
develo~ment of the Project (except the City), Poseidon and the City shall cooperate in
reasonable efforts in complying with such requirements, to obtain waiver of such
requirements or to develop a mutually acceptable alternative.
3.1 0 Tentative Tract Map Extension. Notwithstanding the provisions of Section
66452.6 of the Code, no tentative subdivision map or tentative parcel map, heretofore or
hereafter approved in connection with development of the Project, shall be granted an
extension of time except in accordance with the Existing Land Use Regulations.
3.1 1 Poseidon Obliaation to Obtain and Maintain Insurance. Before
commencing any improvement or construction work pursuant to any City-approved
permit on the Project, Poseidon shall obtain and maintain the insurance as required
under Section 12-of the Water Purchase Agreement,
4 PUBLIC BENEFITS.
4.1 intent. The parties acknowledge and agree that this Agreement and the
development of the Project will result in substantial benefits for Poseidon, and the City.
4.2 Mitiaation Measures and Fees
4.2.1 Pavment: Waiver: No Contest. Poseidon and its successors in
interest shall pay a mitigation fee to the City equal to the property taxes that the City,
the District or the RDA would receive from the construction, ownership, use and
occupancy of the Project on the portion of the Property subject to the Leasehold;
provided, however, that this shall not apply to any successor which has an agreement
with the City with respect to the payment of a mitigation fee (including that certain
Agreement Memorializin Certain Understandin s and Establishin a Framework for
Cooperation, dated as o 9 April 28,2005, by and 9, etween the San 8 iego County Water
Authority, the City, the District and the RDA). Notwithstanding the foregoing, such
mitigation fee shall be waived so long as Poseidon or its successors in interest shall pay
and continue to pay, as and when due, propert taxes due under state law for the
construction, ownership, use and occupancy o ! the portion of the Property subject to the
Leasehold, and shall not claim a partial or full exemption from payment for such tax.
Neither Poseidon nor any of its successors in interest shall contest the payment of (a)
any property taxes validly imposed under applicable law or (b) the mitigation fee above
described; provided however that this shall not prevent Poseidon or its successors from
contesting that such taxes were not correctly calculated.
4.2.2 No Discriminatorv Fees. The City agrees that for the term of this
Agreement, so long as the City, the District or the RDA is paid property taxes from the
construction, ownership, use and occupancy of the Project on the portion of the
Property subject to the Leasehold, or the mitigation fee described in Section 4.2.1, the
City agrees that it will not levy, set or impose any taxes, fees, rates or charges in a
discriminatory manner against Poseidon. For example and not by way of limitation, so
long as the City, the District or the RDA is paid property taxes from the construction,
ownership, use and occupancy of the Project on the portion of the Property subject to
the Leasehold, or the mitigation fee described in Section 4.2.1, the City will not attempt
to collect from Poseidon a franchise fee, tax, or other monetary charge levied only on
businesses which produce or sell water. Further, if such discriminatory fee, tax or
charge is adopted by the City, Poseidon and its successors shall be exempt therefrom.
4.2.3 Continuation of Fees. Should all or any portion of the Property
become part of a city or another county, the fees payable pursuant to Section 4.2 shall
remain and still be payable to the City.
4.2.4 Security. The performance of the terms and conditions of
Sections 4.2.1 and 8.3 shall, upon the closing of the construction financing (the
"Financing"), for the Project, be secured by a deed of trust and a security agreement
encumbering the -Project. Each of such deed of trust and security
agreement shall be in a form reasonably acceptable to both parties. The City's rights
under each of the deed of trust and the security agreement shall subordinated to the
prior payment in full of the lenders providing the Financing pursuant to an agreement
with the City acceptable to such lenders.
4.2.5 Preliminaw Security. The performance of the terms and
conditions of Section 4.2.1 shall be secured by a deed of trust encumbering the
Project. The deed of trust shall be: (id in a form reasonably
mrties, (iiu be recorded within ninety (90) days after the parties
agree upon the form thereof and (mg) released upon the earlier of (x) a termination of
this Agreement pursuant to Section 2.6 or (y) a recordation of this Agreement pursuant
to Section 11.27(d).
4.2.6 Accountina Reauirements. With respect to any fee the City
receives or costs the City recovers pursuant to this Agreement, in general, or this
Section 4, in particular, the City shall comply with the requirements of Section 21.70.025
of the Carlsbad Municipal Code and Section 66006 m. of the Code.
4.3 Dedications. Poseidon acknowledges that one of the Development
Approvals other than this Agreement shall require Cabrillo, at-%- . . . . e of ~recise . . oermits. real property tath&& as described in
Res-
5 FINANCING OF APPURTENANT FACILITIES: OTHER PUBLIC
FI A CI S s
5.1 Appurtenant Facilities. The City will use commercially reasonable efforts
to cooperate with Poseidon in obtainina subsidies. arants or external fundina. includina " without limitation funds available unde;~ro~osition>0, to pay for the const&tion of
Appurtenant Facilities required as part of the Development Plan. The City also agrees
that, to the extent any such subsidies, grants or external funding is available to finance
such Appurtenant Facilities, the City may join with Poseidon in applying therefor.
Notwithstanding the foregoing, the parties acknowledge and agree that nothing
contained in this Agreement shall be construed as requiring the City or the City Council
of the City to join with Poseidon to apply for such subsidies, grants or external funding.
5.2 Other Public Financing. The City shall have no obligation to use public
financing of any kind, including, without limitation, a community facilities district, an
assessment district or other land-secured financing, for financing the construction,
maintenance or operation of public infrastructure or other improvements, including
without limitation roads or pipelines.
5.3 Use of Public Riahts of Way. Tbep
tb City shall provide without charge, and shall cause any governmental agency under - . . its control to provide without charge, Poseidon access to any -&&&
required for the construction or installation of the Appurtenant Facilities to deliver
Product Water to the District from the Project. The City's obligations under this Section . . 5.3 shall apply only to-- already in existence or planned
as of the Effective Date as described in Exhibit €u!&I
sat and shall not apply to any rights of way on, in, under,
about or in anv wav relating to Q .. .
-. Nothing set forth in this
Section 5.3 shall require the City to provide without charge, or to cause any
governmental agency under its control to provide without charge, access to any . . required wn for the Appurtenant Facilities to deliver
Product Water from the Project to any purchaser of Product Water other than the
District.
to the Dp . ., . .
6 ANNUAL REVIEW.
6.1 Periodic Review. The City-D'n"-'-" shall review the
extent of good faith substantial compliance by Poseidon with the terms of this
Agreement annually, on or before each anniversary of the Effective Date. Subject to the
notice and cure procedure set forth in Section 8.6, such a periodic review may result in
termination of this Agreement, provided a Default has been established under the terms
of this Agreement. Pursuant to Government Code Section 65865.1, as amended,
Poseidon shall have the duty to demonstrate its good faith compliance with the terms of
this Agreement at such review. The parties recognize that this Agreement and the
documents incorporated herein could be deemed to contain many requirements and
that evidence of each and every requirement would be a wasteful exercise of the
parties' resources. Accordingly, Poseidon shall be deemed to have satisfied its duty of
demonstration if it presents substantial evidence to the City of its good faith and
substantial compliance with the provisions of this Agreement, including any information,
concerning the numbers, types, densities, heights and sizes of structures completed
and of any reservations and dedications to the City. Any party may address any
requirement of this Agreement during the review. However, ten (10) days' written notice
of any requirement to be addressed shall be made by the requesting party. If at the
time of review an issue not previously identified in writing is required to be addressed,
the review at the request of either party shall be continued to afford sufficient time for
analysis and preparation. Poseidon shall pay the City's reasonable costs incurred in
conducting annual review in accordance with this Agreement.
6.2 Op~ortunitv to be& Heard. Upon written request to the City by Poseidon,
Poseidon shall be permitted an opportunity to be heard orally and/or in writing at a
noticed public hearing regarding its performance under this Agreement. Poseidon shall
be heard before the City Council at any required public hearing concerning a review of
action on the Agreement.
6.3 Information to &em Provided Poseidon. The City shall deposit in
the mail to Poseidon a copy of staff reports and related exhibits concerning contract
performance a minimum of ten (10) calendar days prior to any such review or action
upon this Agreement by the City Council.
7 INCORPORATION AND ANNEXATION.
7.1 m. If all or any portion of the Property subject to the Leasehold is
annexed to or otherwise becomes a part of another city or another county, the parties
intend that this Agreement shall survive and be binding upon such other jurisdiction.
7.2 lncor~oration. If at any time during the term of this Agreement, another
city is incorporated comprising all or any portion of the Property subject to the
Leasehold, the validity and effect of this Agreement shall be governed by Section
65865.3 of the Code.
7.3 Annexation. Poseidon and the City shall oppose, in accordance with the
procedures provided by law, the annexation to any other city of all or any portion of the
Property subject to the Leasehold unless both Poseidon and the City give written
consent to such annexation.
8 DEFAULT AND REMEDIES.
8.1 Remedies in General. The parties would not have entered into this
Agreement without the limits on damages set forth herein. Accordingly, the parties
agree that each of the parties hereto may pursue any remedy at law or equity available
for breach of any provision of this Agreement, subject to the following:
@)-(&The City and all persons acting on behalf of the City shall not be
liable in damages to Poseidon, or to any successor in interest, or to any other person.
Poseidon covenants not to sue for monetary damages or claim any monetary damages:
(+yfor any breach of this Agreement or for any cause of action
which arises out of this greement; or
-for taking, impairment or restriction of any property right or
interest as the result of or arising under or pursuant to this Agreement, but excluding
claims based upon applicable obligations of the City acting in its governmental capacity
and not as a party to this Agreement, and resewing the reserved rights and remedies
described in Sections 8.5 and 8.8; or
++&arising out of or connected with any dispute, controversy or
issue regarding the application or interpretation or effect of the provisions of this
Agreement.
f8f Poseidon shall not be liable in monetary damages to City, or to any
person acting on 9, be alf of City, and City covenants not to sue for damages or claim any
monetary damages:
(+Ufor failure to construct and operate the Project or any breach
of this Agreement or for any cause of action which arises out ofthis Agreement; or
#ping out of or connected with any dispute, controversy or
issue regarding the app cation or interpretation or effect of the provisions of this
Agreement;
++&&provided, however, that City reserves the right to sue for any
sums, including without limitation any sums due pursuant to Section 4 of this
Agreement, that are specifically required to be paid by Poseidon or its successors
pursuant to this Agreement, and provided further, however, the City also reserves the
rights and remedies described in Section %=
Nothing in this Section 8.1 shall be construed to limit or otherwise effect the remedies
available to Poseidon and the District under the Water Purchase Agreement.
8.2 Termination bv City. The City may terminate this Agreement upon a
termination of the Water Purchase Agreement by the District pursuant to Section 2.3.4
thereof.
8.3 Liquidated Damaaes for Poseidon's Failure to Amend This Aareement
U~on Relocation of Plant Facilities. Provided the Desalination Project has commenced
Commercial Operation (as that term is defined in the Water Purchase Agreement), if all
of or a material portion of the Plant Facilities are relocated to real properly that is not
encumbered by this Agreement, then Poseidon agrees to amend this Agreement in all
respects necessary to provide for this Agreement to encumber the real property to
which the Plant Facilities are so relocated. If Poseidon fails to do so and fails to pay the
mitigation fees payable pursuant to Section 4.2.1 of this Agreement. Poseidon shall be
in Default of this Agreement, and shall pay liquidated damages to the City in the initial
amount of Fifteen Million Dollars 1$15.000.000.00~. to com~ensate the Citv for a oortion
of the mitigation fees that would be payabie to Gction 4 of this Agreemint.
Such amount of liquidated damages shall be reduced by One Million Dollars
($1,000,000) for each year that poseidon pays the property taxes or mitigation fee
pursuant to Section 4.2.1 of this Agreement. By signing or initialing in the space
provided below, Poseidon and the City acknowledge and agree that it would be
impractical and extremelv difficult for the Citv to estimate its costs and losses as the
result of the failure to pay such mitigation fees, and that under the circumstances as
they exist as of the date of execution of this Agreement, the sum of the liquidated
damages set forth above is a reasonable estimate of costs that the City would incur in
the event of such failure.
Initials of Authorized Initials of Authorized
Signatory on Poseidon's Signatory on City's
Behalf Behalf
8.4 Specific Performance. The parties acknowledge that, except as provided
in Sections 8.l(b)(@= above and 8.8 below, money damages and remedies at
law generally are inadequate and that specific performance and other non-monetary
relief are the exclusive remedies for the enforcement of this Agreement and should be
available to all parties for the following reasons:
+Money damages are unavailable against City, or against
Poseidon except as provided herein;
@ ++Due to the size, nature and scope of the Project, it will not be
practical or possible to restore the Property sub'ect to the Leasehold to its C, preexisting condition once impleme~sAgreernent as begun After such
imolementation Poseidon mav be foreclosed from other choices it mav have had to
ut~iiz the prop& subject to the Leasehold and prov~de for other
bene-has invested s~anificant time and resources and oerformed
extensive planning and processing'bf the Project in agreeing to the terms of this
Agreement, and will be investing even more significant time and resources in
implementing the Project in reliance upon these terms, and it will not be possible to
determine the sum of money that would adequately compensate Poseidon for such
efforts. By the same token, City will have invested substantial time and resources and
will have permitted irremediable changes to the land and increased demands on the
surrounding infrastructure and will have committed, and will continue to commit, to
development in reliance upon the terms of this Agreement, and it would not be possible
to determine a sum of money which would adequately compensate City for such
undertakings. For this reason, the parties hereto agree that, except as otherwise
provided in this Agreement, if any party fails to carry out its obligations under this
Agreement, an injured party shall be entitled to nondamages remedies, including the
remedy of specific performance of this Agreement.
8.5 Release and Reservation. Except for non-damage remedies, including
the remedy of specific performance and judicial review as provided for in Section 8.4,
Poseidon, for itself, its successors and assignees, hereby releases the City, its officers,
agents and employees from any and all claims, demands, actions, or suits of any kind
or nature arising out of any liability, known or unknown, present or future, including, but
not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19
of the California Constitution, the Fifth Amendment of the United States Constitution, or
any other law or ordinance which seeks to impose any other liability or damage,
whatsoever, upon the City because it entered into this Agreement or because of the
terms of this Agreement; provided, however, that Poseidon reserves all of its otherwise
applicable rights and remedies in the event of an actual condemnation, inverse
condemnation or inappropriate taking, restriction or regulation by the City, which are
rights and remedies Poseidon otherwise has as a properly owner.
8.6 Termin aptAareement tion for Default of Poseidon. The City may
terminate this Aareement for anv Default bv Poseidon: ~rovided. however. . . this S-the city may terminate this
Agreement pursuant to this Sections
actions, if any, required by Poseidon to cu;;? such Default and, where the Default can be
cured, Poseidon has failed to take such actions and cure such Default within sixty (60)
davs after Pose~don's receiot of such notice or, in the event that such Default cannot be
cu;ed within such sixty (60)'day period but can be cured within a longer time, Poseidon
has failed to commence the actions necessary to cure such Default within such sixty
(60) day period and to diligently proceed to complete such actions and cure such
Default.
8.7 Termination of Aareement for Default of the City. Poseidon may terminate
this Agreement for any Default by the City only after providing written notice to the City
of Default setting forth the nature of the Default and the actions, if any, required by the
City to cure such Default and, where the Default can be cured, the City has failed to
take such actions and cure such Default within sixty (60) days after the City's receipt of
such notice or, in the event that such Default cannot be cured within such sixty (60) day
period but can be cured within a longer time, the City has failed to commence the
actions necessary to cure such Default within such sixty (60) day period and to diligently
proceed to complete such actions and cure such Default.
8.8 Ri~hts, Remedies for Nealiaence. Willful Misconduct. Nothing in this
Agreement shall be deemed to waive or limit any rights and remedies that the parties
ohelwise would have against the other in the absence of this Agreement with respect to
injury caused by the negligence or willful misconduct of a party.
27
9 THIRD PARTY LITIGATION: INDEMNIFICATION.
9.1 General Plan Litioation. The City has determined that this Agreement is
consistent with its General Plan and the Precise Development Plan, and that the
General Plan and the Precise Development Plan meet all requirements of law.
Poseidon has reviewed the General Plan and the Precise Development Plan and
concurs with the City's determination. The parties acknowledge that:
(a) In the future there may be litigation challenging the legality, validity
and adequacy of certain provisions of the General Plan or Precise Development Plan or
other, similar challenges; and,
(b) If successful, such challenges could delay or prevent the
performance of this Agreement and the development of the Project.
The City shall have no liability in damages under this Agreement for any
failure of the City to perform under this Agreement or the inability of Poseidon to
develop the Project as contemplated by the Development Plan a this Agreement as
the result of a judicial determination that on the Agreement Date, or at any time
thereafter, the General Plan or the Precise Development Plan, or portions thereof, are
invalid or inadequate or not in compliance with law.
9.2 Third Partv Litiaation Concernino Aoreement. In the event of any legal
action instituted by a third party (not a party to this Agreement) or any governmental
entii or official (other than the City or an official of the City), challenging the validity of
any provision of this Agreement or the other Development Approvals or any City action
relating thereto, the parties hereby agree to cooperate in defending said action;
provided, however Poseidon shall indemnify and hold harmless City from all litigation
exoenses. includina reasonable attomevs' fees and costs. arisina out of anv leaal action . -
instituted by such gird party (not a pa^ to this ~~reement), or iher governmental
entity or official (other than City or an official of the City) challenging the validity of any
proision of this~~reement, oi the other ~evelopment Approvals or any City action
relating thereto. City shall promptly notify Poseidon of any such action and City shall
cooperate in the defense thereof.
9.3 Breaches of Aareement: Pro~ertv Damaae. Bodilv lniurv or Death. In
addition to the provisions of Se4ew~9.2 above, Poseidon shall
save, indemnify, hold harmless and defend, at its expense, including attorneys' fees, the
City, ' -the Zity
Indesnses or liability
whatsoever, arising out of or based upon any breach or alleged breach of this
Agreement by Poseidon . Poseidon shall not, however, be required to indemnify the
City lndemnitees with respect to any loss, costs, fees, expenses or liability arising
through the gross negligence or willful misconduct of the City.
9.4 Indemnification Procedure. In any situation in which Poseidon is required
to indemnify the pursuant to this Agreement, as a condition
thereto the stty- shall give Poseidon reasonably prompt notice of any
matter for which indemnification is sought hereunder. The S4y-a shall
cooperate in the defense of such claim (and pending assumption of defense, the City, in
its good faith judgment, may take such steps to defend itself against such claim as it
deems appropriate to protect its interests). Poseidon shall pay the stty-
&g&'s reasonable out-of-pocket expenses incurred in connection with such
cooperation and such steps taken to defend aself pending Poseidon's assumption of
defense. Poseidon shall keep the City- reasonably informed as to the
status of the defense of such claim. After notice from Poseidon to the Qtyh&mni&d
&&of the assumption, and the defense of a claim, Poseidon shall not be liable to the
Stty- for any legal or other expenses subsequently incurred by the
Stty- in connection with the defense thereof other than those
expenses referred to above. Poseidon, at its own expense and through counsel chosen
by it (which counsel shall be reasonably acceptable to the Wm), shall
defend any such claim; provided, however, that if, in the Stty-s
reasonable judgment at any time, either a conflict of interest arises between Poseidon
and the SttytndemMed Party or if there are defenses which are different from or in
addition to those available to Poseidon andlor the Sttyw and the
representation of both parties by the same counsel would be inappropriate, then in each
such case the shall have the right to employ a separate law firm
in each a~~licable iurisdiction (if necessarv) (!?!Separate CounseP!!), to rewesent the . . ,, .- . GI&-* in any action or group of related actions (wxich firm or firms shall
be reasonably acceptable to Poseidon), and in that event: (a) the reasonable fees and
expenses of such separate Counsel shall be paid by Poseidon (it being understood,
however, that Poseidon shall not be liable for the expenses of more than one Separate
Counsel with respect to any claim (even if against multiple ilndemnified Parties)); and
(b) Poseidon shall have the right to conduct its own defense in respect of such claim. If
Poseidon does not defend against a claim, the City- may defend,
compromise and settle such claim and shall be entitled to indemnification hereunder (to
the extent ~ermitted bv this Agreement). Notwithstanding the foregoing, Poseidon shall - not, witho"t the C2ty-s prior written consent (whkh shall not be
unreasonably withheld, conditioned or delayed), settle or compromise any claim or
consent to the entry of any judgment unless: (x) there is no finding or admission of any
violation of law or any violation of the rights of any person and no effect on any other
claims that may be made against the stcyw; and (y) the sole relief
provided is monetary damages that are paid in full by Poseidon.
9.5 Survival. The provisions of this Sections 9.1 through . . 9.4, inclusive, shall
survive the termination of this Agreeinent or the
Aareement.
10 MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit
Poseidon, in any manner, at pose id on!:^ sole discretion, from encumbering the Project
or any portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Project. The City
acknowledges that the lenders providing such financing may require certain Agreement
interpretations and modifications and agrees upon request, from time to time, to meet
with Poseidon and representatives of such lenders to negotiate in good faith any such
request for interpretation or modification. The City will not unreasonably withhold its
consent to any such requested interpretation or modification provided such
interpretation or modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of the Project shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on
the Project made in good faith and for value, unless otherwise required by law.
(b) Any Mortgagee of any mort age or deed of trust encumbering the
Project, or any part thereof, which has submitte j a request in writing to the City in the
manner specified herein for giving notices, shall be entitled to receive written notification
from the City of any Default by Poseidon in the performance of pose id on!:^ obli ations
under this Agreement concurrently with the receipt of any such notice by ~oseijon.
(c) The Mortgagee shall have the right, but not the obligation, to cure a
Default during the remaining cure period allowed Poseidon under this Agreement.
(d) Subject to compliance with the provisions of Section 2.4.l(b) of this
Agreement, any Mortgagee who comes into possession of the Project, or any part
thereof. Dursuant to foreclosure of the mortaaae or deed of trust. or deed in l~eu of such
foreclosure, shall take the Project, or part tKeeikof, subject to-
ed to thebenefit the terms of this Agreement.
11 MISCELLANEOUS PROVISIONS.
11.1 Recordation of Aareement. As more particularly set forth below in Section
11.27, this Agreement and any amendment or cancellation thereof shall be recorded - . . against the ~kasebkl by
the Clerk of the City Council filing a copy of this Agreement or any such amendment
with the San Diego County Recorder within the period required by Section 65868.5 of
the Code.
11.2 Further Actions. Each of the parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the
conditions of this Agreement. At any time and from time to time after the date hereof,
each Party agrees to take such actions and to execute and deliver such documents as
each other Party may reasonably request to effectuate the purposes of this Agreement.
11.3 Amendment. Except as otherwise provided in this Agreement, neither this
Agreement nor any provision hereof may be waived, modified, amended, discharged, or
terminated except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such writing.
11.4 Entire Acireement. This Agreement and the Water Purchase Agreement
constitute the entire understanding among the parties with respect to the matters set
forth herein, and supersede all prior or contemporaneous understandings or
agreements among the parties with respect to the subject matter hereof, whether oral or
written.
11.5 Notices. As used in this Agreement, ZEnoticg: includes, but is not limited
to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or permitted
hereunder. Any notice, approval, consent, waiver or other communication required or
permitted to be given or to be sewed upon any party in connection with this Agreement
shall be in writing. Such notice shall be personally sewed, sent by facsimile, sent
prepaid by registered or certified mail with return receipt requested, or sent by reputable
overnight delivery sewice, such as Federal Express, and shall be deemed given: (a) if
personally sewed, when delivered to the party to whom such notice is addressed; (b) if
given by facsimile, when sent, provided that the confirmation sheet from the sending fax
machine confirms that the total number of pages were successfully transmitted; (c) if
given by prepaid or certified mail with return receipt requested, on the date of execution
of the return receipt; or (d) if sent by reputable overnight delivery sewice, such as
Federal Express, when received. Such notices shall be addressed to the party to whom
such notice is to be given at the address below specified. Either party may, by notice
given at any time and sent in accordance with this Section, require subsequent notices
to be given to another person or entity, whether a party or an officer or representative of
a party, or to a different address, or both. Notices given before actual receipt of notice
of change shall not be invalidated by the change.
if to CITY, to:
If to Porcidon. to:
City of Carlsbad
IZOOCarlrbad Village Drive
Carlsbad. CA 92008
Am: City Manager
Fax No. (760) 729-9461
Poscidon Rcsovrcss (Channelside) LLC
501 West Broadway. Suite 848w
San Diego. CA. 92101
Am: President
Fax No.:. (619) 595-7892
11.6 -. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of California, without giving
effect to any choice-of-law or conflicts-of-laws rule or principle that would result in the
application of any other laws.
11.7 Headinas. Headings, titles and captions are for convenience only and
shall not constitute a portion of this Agreement or be used for the interpretation thereof.
11.8 Cumulative Ri~hts: Waiver. The rights created under this Agreement, or
by law or equity, shall be cumulative and may be exercised at any time and from time to
time. No failure by any party to exercise, and no delay or omission by any party in
exercising any rights, shall be construed or deemed to be a waiver thereof, nor shall any
single or partial exercise by any party preclude any other or future exercise thereof or
the exercise of any other right. Any waiver of any provision or of any breach of any
provision of this Agreement must be in writing, thee or its $4 II .
be us-and any waiver by any party of any breach of any
orovision of this Aareement shall not o~erate as or be construed to be a waiver of anv
kther breach of thgt provision or of an); breach of any other provision of this ~greemint.
The failure of any party to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered or construed or deemed a waiver of any
provision or any breach of any provision of this Agreement or deprive that party of the
right thereafter to insist upon strict adherence to that term or provision or any other term
or provision of this Agreement.
11.9 Liberal Construction. This Agreement constitutes a fully-negotiated
agreement among commercially sophisticated parties, each assisted by legal counsel,
and the terms of this Agreement shall not be construed or interpreted for or against any
party hereto because that party or its legal representative drafled or prepared such
provision.
11.10 Severability. If any provision of this Agreement shall be ruled invalid,
illegal or unenforceable, then the parties shall: (a) promptly negotiate a substitute for
such provision which shall, to the greatest extent legally permissible, therein effect the
intent of the parties in such invalid, illegal or unenforceable provision; and (b) negotiate
such changes in, substitutions for or additions to the remaining provisions of this
Agreement as may be necessary in addition to and in conjunction with clause (a) above
to give effect to the intent of the parties without the invalid, illegal or unenforceable
provision. To the extent that the parties are able to negotiate such changes,
substitutions or additions as set forth in the preceding sentence, and the intent of the
parties with respect to the essential terms of the Agreement may be carried out without
the invalid, illegal or unenforceable provision, then the balance of this Agreement shall
not be affected, and this Agreement shall be construed and enforced as if such invalid,
illegal or unenforceable provision did not exist.
11 .I 1 Good Faith and Fair Dealinq. The parties hereto acknowledge and agree
that the performances required by the provisions of this Agreement shall be undertaken
in good faith, and with all parties dealing fairly with one another.
11.12 No Third Pam/ Beneficiaries. Except as provided in-
& this Section 11.12, this Agreement does not create, and shall not be construed to
create, any rights enforceable by any person, partnership, corporation, joint venture,
limited liability company or other form of organization or association of any kind that is
not a party to this Agreement. Notwithstanding the foregoing, the RDA and the District
are intended beneficiaries of this Agreement, with the right to enforce this Agreement in
accordance with its terms.
11.13 Execution in Counter~arts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The signature page of any counterpart may be
detached therefrom without impairing the legal effect of the signature(s) thereon,
provided such signature page is attached to any other counterpart identical thereto
except for having an additional signature page executed by the other party.
11 .I4 Time of the Essence. Time is of the essence of each and every provision
of this Agreement. Unless business days are expressly provided for, all references to
"'dayg: herein shall refer to consecutive calendar days. If any date or time period
Sovided for in this Agreement is or ends on a Saturday, Sunday or federal, state or
legal holiday, then such date shall automatically be extended to the next day which is
not a Saturday, Sunday or federal, state or legal holiday.
11.15 Number. Gender. Where a word or phrase is defined in this Agreement,
its other grammatical forms have a corresponding meaning. As used herein, and as the
circumstances require, the plural term shall include the singular, the singular shall
include the plural, the neuter term shall include the masculine and feminine genders, the
masculine term shall include the neuter and the feminine genders, and the feminine
term shall include the neuter and the masculine genders.
11.16 relations hi^. Nothing in this Agreement shall be deemed to constitute
either party a partner, agent or legal representative of the other party, neither party is
acting as the agent of the other in any respect hereunder, each party is an independent
contracting entity with respect to the terms, covenants and conditions contained in this
Agreement, and no partnership, joint venture or other association of any kind is formed
by this Agreement. No liability or benefits, such as workers': compensation, pension
rights or liabilities, other provisions or liabilities arising out of or related to a contract for
hire or employerlemployee relationship, shall arise or accrue to any party!:s agent or
employee as a result of this Agreement or its performance.
11.17 Joint and Several Obliaations. If at any time during the term of this
Agreement the Project is owned, in whole or in part, by more than one owner, all
obligations of such owners under this Agreement shall be joint and several, and the
Default of any such owner shall be the Default of all such owners.
11.18 Force Maieure. Neither party shall be deemed to be in Default where
failure or delay in performance of any of its obligations under this Agreement is caused
&an event of Force Majeure. ?:Force Majeurg: as used herein shall have the
meaning more particularly set forth in Section 17 of the Water Purchase Agreement.
11.19 Mutual Covenants. The covenants contained herein are mutual covenants
and also constitute conditions to the concurrent or subseauent oefformance bv the oartv --~~-~ ~ ~ ~ ~ ~ .- . .
benefited thereby of the covenants to be performed hereunder by such benefiied party.
11.20 Successors in Interest. The burdens of this Agreement shall be binding
upon all successors in interest to the parties to this Agreemen-
.. . . .
bo f
this Agreement, the benefits of this Agreement shall inure to the successors in interest
to the parties to this Agreement. Subject to the receipt of any consent of Cabrillo
required under the Lease, all provisions of this Agreement shall be enforceable as
esuitable servitudes and constitute covenants running with the Leasehold for a time
Wementiff
-. Subject to the receipt of any consent of Cabrillo required under the Lease,
each covenant to do or refrain from doing some act hereunder with regard to
development of the Project and the Leasehold : (a& is for the benefit of and is a burden
upon every portion of the Project and the Property subject to the Leasehold,fBfOrthe
P Uu) . runs with the Project and the p&ew%eProperty subject
to the Leasehold and each portion thereof- . . ; and, (eg) is
binding upon each party and each successor in interest during ownership of the Project
or the Leasehold or any portion thereof-. . .
11.21 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of San Diego, State of California, and the parties hereto
waive all provisions of law providing for the filing, removal or change of venue to any
other court.
11.22 Proiect as a Private Undertakinq. The parties specifically understand and
agree that the development of the Project is a private development. The only
relationship between the City and Poseidon is that of a government entity regulating the
development of a private Project and the lessee, grantee and developer of such Project.
11.23 Eminent Domain. No provision of this Agreement shall be construed to
limit, restrict or require the exercise by the City of its power of eminent domain.
11.24 Aaent for Service of Process. Poseidon shall designate and maintain
Corporation Service Company (or a similar national company) as its agent for the
purpose of service of process in any court action arising out of or based upon this
Agreement, and the delivery to such agent of a copy of any process in any such action
shall constitute valid service upon Poseidon. If for any reason service of such process
upon such agent is not feasible, then in such event Poseidon may be personally served
with such process out of this County and such service shall constitute valid service upon
Poseidon.
11.25 Authoritv to Execute. Each party warrants and represents that this
Agreement has been duly authorized by such party. Each party shall deliver to the
other party copies of such resolutions, certificates or written assurances evidencing
authorization to execute, deliver and perform this Agreement.
11.26 Commission ADD~OV~~ Reauired. This Agreement shall not become
effective unless and until it is approved by the Commission, as required by Code
Section 65869.
11.27 A~~roval Procedure. The following procedure shall govern
approval of this Agreement:
(a) Prior to City Council consideration of this Agreement, Poseidon
shall execute this Agreement; provided, however, that Poseidon shall have the right
prior to the Agreement Date of this Agreement to withdraw its execution based upon the
terms and conditions contained in the Development Approvals, in which case this
Agreement shall be of no force or effect.
(b) City Council shall undertake all necessary proceedings to consider
this Agreement. Approval by the City shall be by adoption of the &.mode&Approval
Ordinance.
(c) Following adoption of theh,w.ui& Approval Ordinance, the
Mayor shall execute this Agreement on behalf of the City, and take such steps as may
be required to obtain Commission approval as described above in Section 11.26.
(d) This Agreement shall be effective on the Effective Date. As
provided in Code Section 65868.5, the City shall cause a copy of this Agreement to be
thJent 7 . with the Recorder within ten (10) days fol owlng the Effective Date. Poseidon
shall pay any recording costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year below set forth.
Dated: , mz?!B "CIN"
CITY OF CARLSBAD
Name:
Title:
By:
City Clerk
(SEAL)
FD ON NFXT PAGFJ
Dated: , mQ% "POSEIDON"
Poseidon (Channelside) LLC, a
Delaware limited liability company
By:
Name:
Title:
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO 1
On , before me,
, personally appeared
, proved to me on
the basis of satisfactow evidence) to be the ~erson(s) whose name@.) islare subscribed
to the within instrumeni and acknowledged to me that heisheithey executed the same in
hislherltheir authorized capacity(ies), and that by hislherltheir signature(s) on the
instrument the person(s) or theentity upon behalf of which the person(s) acted,
executed the instrument.
der PFNALTY OF PFRJ
Witness my hand and official seal.
Signature
STATE OF CALIFORNIA 1
COUNTY OF SAN DlEGO 1
On , before me,
-, personally appeared 7 proved to me on
the basis of satisfactory evidence) to be the person@) whose name(s) islare subscribed
to the within instrument and acknowledged to me that helshelthey executed the same in
hislherltheir authorized capacity(ies), and that by hislherltheir signature@) on the
instrument the person(s) or the entity upon behalf of which the person@) acted,
executed the instrument.
Witness my hand and official seal.
Signature
Exhibit "A"
CONSENT OF PROPERTY OWNER
Cabrillo Power I, LLC, a Delaware limited liability company ("Cabrillo"), is the
owner of the Property that is the subject of the Precise Development Plan !&---an9
DA 05-02 . . . . (Planning
No. 6Q9Q). Poseidon Resources (Channelside) LLC, a Delaware limited
liability company ("Poseidon"), currently is the lessee of the Property under the terms
and conditions of that certain Ground Lease and Easement Agreement, dated July 11,
2003, by and between Cabrillo and Poseidon:-
2009. Cabrillo hereby consents to the entering into of that
certain Development Agreement between the City of Carlsbad and Poseidon, to which
this Consent is attached and which affects . 9. the
Property.
Dated: "Cabrillo"
CABRILLO POWER I, LLC, a Delaware limited
liability company
By:
Name:
Title:
STATE OF CALIFORNIA }
1 ss
COUNTY OF SAN DlEGO }
On , before me.
personally appeared v-
@YJJQ proved to me on the basis of satisfactory evidence to be the person@) whose
name(@ islare subscribed to the within instrument and acknowledged to me that
helshetthey executed the same in hislherltheir authorized capacity(ies), and that by
hislherltheir signature(s) on the instrument the person@) or the entity upon behalf of
which the person@) acted, executed the instrument.
r PFNAI TY OF PFRJURY
Witness my hand and official seal.
Signature
EXRIBIT 'A*'
LEGAL DESCRIPTION
FOR
THE LEASED PREMISES
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALSPORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0789060, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOSS SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 173501 THENCE ALONG SAID WESTERLY LINE, NORTH 22*30f13"
WEST, 1319.08 FEET; THENCE LEAVING SAID WESTEWdY LINE AT RIGHT
ANGLES, SOUTH 67°29'47" WEST, 50.72 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 67"31121" WEST, 229.72 FEET; THENCE NORTH
4OQ03'53" WEST, 199.13 FEET; THENCE SOUTH 66'28' 49" WEST, 45.93
FEETi THENCE NORTH 22'28' 46" WEST, 507.13 FEET; THENCE NORTH
67'31'14'' EAST, 338.82 FEET; THENCE SOUTH 22'37'35" EAST, 536.65
FEE1'; THENCE SOUTH 20°08'20" EAST, 115.20 FEET; THENCE SOUTH
2Z037'35" EAST, 124.38 FEET 1'0. THE TRUE POINl! OF BEQINNING.
ATTACHED IIERETO IS A PLAT LABELED EXHIBIT 'A-1'' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GHID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
03, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 3.703 ACRES, MORE OR LESS
GARY L. flUS rjR,,E'~"'
L.S. 7019 - - . ..
EXPIRATION DATE 6/30/2010
EXHIBIT 'C*' I
LEOAL DESCRIPTION
POR
WATBR PLANT INTAKIC/DISCHARGE EASE~NT AREA I I
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CATIIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. ' 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001- !
0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: !
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RTGHT-
OF-WAY OF 'THE ATCHISON TOPEKA AND SAN'TA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NOHTH 22"30113"
WEST, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTI1
66'28'49" WEST, 340.71 FEET TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 66°28'49" WEST, 439.94 FEET TO THE BEGINNING OF A TANGENT
CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 70.00 FEET;
THENCE WESTERLY, ALONG THE ARC OF SAII) CURVE, THROUGH A CENTRAL
ANGLE OF 81°26'18", 99.50 FEET; THENCE TANGENT TO SAID CURVE, NORTI4
32'04'53'' WEST, 93.96 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OE' 45.00 FEET; THENCE
NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF
10°50'13", 8.51 YEET; THENCE TANGENT TO SAID CURVE, NORTH 42'55'06"
WEST, 37.86 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
SOIJTHWESTERLY AND HAVING A RADIUS OP 52.50 FEET; THENCE WESTERLY,
ALONG THE ARC OC' SAID CURVE, THRO[IGH A CENTRAL ANGLE OF 69'07'13",
63.33 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 67'57'41" WEST,
325.70 FEET TO A POINT ON THE EASTERLY LINE OF CARLSBADBOULEVARD
(FORMERLY XI-SD-23), BElNG 100.00 FEET WIDE AS SHOWN ON RECORD OF
SURVEY NO. 1.7350; 'THENCE NORTll 24"07'36" WEST, 41.25 FEET; THENCE
LEAVING SAID EASTERLY LINE, NORTH 34'28'03'' EAST. 161.11 FEET;
THENCE NOHTH 67'05'54" EAST, 142.26 FEET: THENCE SOUTH '16°03'09"
EAST, '74.70 VEET; THENCE SOUTH 67'18'36" EAST, 1.74.25 FEE'P THENCE
SOUIH 22'23' 45" EAST, 151.01 FEET; THENCE NORTH 66'31' 12" EAST,
403.04 FEET; THENCE SOUTM 22°28'46" ERST, 17.56 FEET; THENCE NORTH
66°20'49" EAST, 45.93 FEET; THENCE SOUTH 40'03'53" EAST, 26.08 FEET
TO THE TRUE POINT OF BEGINNXNF.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'c-l*' AND BY THTS i
RETI3RENCE MADE A PART THEREOF. ALL IIISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. AJ;L BEARINGS SHOWN IiEREON ARE GRID
BASED UPON CAT,IFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD- !
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 1.670 ACRES, MORE OR LESS
. -. GARY I,. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
EXHIBIT 'D*'
LEGAL DESCRIPTION
FOR
CONNECTION EASEMENT AREA
THAT PORTION OY LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0709068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS: i
COMMENCING AT 'I'HE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AN!) SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 1.7350; THENCE ALONG SAID WESTERLY LINE, NORTH 22'30'13"
WEST, 1490.22 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH
66'28'49" WEST, 340.71 FEET; THENCE SOUTH 66'28'49'' WEST, 439.94
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY
AND HAVING A RADIUS OF '10.00 FEET; THENCE WESTERLY, ALONG THE ARC
OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 81°26'18", 99.50 FEET;
THENCE TANGENT TO SAID CURVE, NORTH 32'04'53'' WEST, 93.96 FEET TO
THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADTUS OF 45.00 FEET; THENCE NORTHERLY, ALONG THE ARC OF SAID
CURVE, THROUGI.1 A CENTRAT, ANGLE OF 10°50'13", 0.51 FEET; THENCE
TANGENT TO SAID CURVE, NORTH 42'55'06'' WEST, 37.86 FEET TO THE
RHGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTEllLY AND HAVING A
RADIUS OF 52.50 P'EET; THENCE WESTERLY, ALONG TllE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLF, OF 69°07'13", 63.33 FELT; THENCE
TANGENT TO SAID CURVE, SOUTH '67°57'41" WEST, 122.13 FEET TO THE
TRUE POINT OP BEGINNXNG; THENCE SOUTtI 2Z010'36" EAST, 202.81 FEET;
TllENCE SOUTH 67'41' 24" WEST, 37.42 FEET; THENCE NORTH 22'18' 36"
WEST, 14.00 FEET; THENCE NORTH 67'41'24'' FAST, 23.42 FEET; THENCE
NORTH 22'18' 36" WEST, 188.07 FEET; THENCE NORTH 67'57' 41" EAST,
14.00 FEET TO THE TRUE POINT OF BEGINNING. .
ATTACHED HERETO IS A PLAT IsABELED EXHIBIT 'D-I*' &ND BY !THIS
REFERENCE MADE A PART 'THEREOF. ALL DISTANCES SHOWN IiEREON ARE
GHID DlSTANCES. TO COMPUTE GROUND DJSTANCES, DIVIDE GRID
DISTANCES BY 0.999363440. AT.1.. BEARINGS SHOWN HEREON ARE GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMEN'P, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 0.073 ACRES, MORE OR LESS
, . . - ,- GARY L. HUS DATE
L.S. 7019
EXPIRAl'ION DA'PE 6/30/2010
EXHIBIT 'E*'
LEGAL DESCRIPTION
FOR
PRODUCT WATER PIPELINE EASEMENT AREA
THAT PORTION OF LOT "II" OF RANCHO AGUA HED1ONI)A TN 'THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEllEOF NO. 623 AS 1)ESCRIBED IN CERTIFICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001-
0789068, PARCEI, 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY COllNEH OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL
4, NORTH 44"29'52" WEST, 52.55 FEET; THENCE NORTH 82'40'44" WEST,
56.01 FEET; THENCE LEAVING SAID SOUTHERLY LINE, NORTH 19O02'22"
WEST, 79.55 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 553.00 FEET, A RADIAL LINE TO
SAID POIN'P BEARS NORTH 31°3'1'17" EAST; THENCE WESTERLY, ALONG THE
ARC OF' SAID CURVE, THROUGH A CENTRAL ANGLE OF 11.'46'22", 113.63
FEET; THENCE NORTH 67°28'02" EAST, 03.57 FEET; THENCE NORTH
09'39'03" WEST, 32.20 FEET; THENCE NORTH 22'32'58" WEST, , 186,83
FEET; THENCE NORTH 2Y050' 25'' WEST, 434.98 I.'EE8T; THENCE NORTH
3.6°02.'06t' WEST, 234.09 FEET; THENCE NORTI-I 14*45'12" WEST, 147.72
FEET; THENCE NORTH 22e37a35" WEST, 171.35 E'EET; THENCE NORTH
20°08'20" WEST, 115.20 FEET; THENCE NORTH 22'37'35" WEST, 536.65
FEET; THENCE NOR'l'H 67O31.'14" EAST, 15.00 FEET; THENCE SOUTH
22O37'35" EAST, 829.42 FEET; THENCE SOUTH 23'07' 35'' EAST, 791.70
FEET TO A POINT ON SAID WESTERLY LINE OF THE A'PCHISON TOPEKA AND
SANTA FE PAILROAD; THENCE ALONG SAID WESTERLY LINE, SOUTH 22'30'13"
EAST, 252.87 FEET; THENCE I.,EAVING SAID WESTTSRLY LINE NORTH
67*29'4'7" k:AS'I', 1.00.00 FEET TO A P0:INT ON THE EASTERLY LINE Of.' SAID
ATCI.I:[SON a~~~?~~ AND SANTA FE KAII,ROAD; THENCE ALONG SA:II) I.:ASTERLY
LINE, SOUTll 220301 13" EAST, 69.2'7 FEI;:'P; ~I~HENCE LEAVING SAID
EASTERLY LINI.2, SOUTH 67'29' 47" WEST, 100.00 FEET TO SAID WESTERLY
LINE OF TI.IE ATCI-IISON TOI?EKA AND SANTA FE RAIIaROAI); THENCE ALONG
SAID WESTERLY I.,INI.: SOUTH 22'30'13'' EAST, 1.51. 99 FEET THE POINT OF
BEGINNING.
ATTACHED HERETO IS A PLAT LABELED EXHIBIT 'E-lC' AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
BASED UPON CALIFORNIA COORDINATE SYSTEM ZONE 6, ADJUSTMENT, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 3.036 ACRES, MORE OR LESS.
- - -
GARY L. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
I
EXHIBIT 'B*'
LEGAL DESCRIPTION
FOR
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIEQRNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 023 AS DESCRIBED IN CERTI!?ICATE OF
COMPLIANCE RECORDED OCTOBER 30, 2001, AS DOCUMENT NO. 2001.-
0789068, PARCEL 4, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
OEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RIGHT-
OF-WAY OF THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22'30'13''
WEST, 1692.10 FEET TO THE TRUE POIN2 OB BEGINNLNO, SAID POINT
BEING ON THE SOUTHERLY LINE OF THAT CERTAIN "PIPE LINE LICENSE"
DATED MARCH 1, 1971,. BY AND BETWEEN THE ATCHISON, TOPEKA AND SANTA
FE RAJLWAY COMPANY AND SAN I)IEGO GAS AND ELECTRIC COMPANY, WHICH
LICENSE GRANTS THE RIGHT TO CONSTRUCT AND MAINTAIN A TUNNEL, PIPE
AND PEDESTRIAN WALKWAY AND VARIOUS SIZES OF CARRIER PIPE: THENCE
ALONG SAID SOUTHERLY LINE, SOUTH 67°38'26" EAST, 54.52 FEET; THENCE
LEAVING SAID SOUTHERLY LINE, NORTH 22°37'35" WEST, 9.00 TO A POINT
ON THE NOHTliERLY LINE OF SAID "PIPE LINE LICENSE"; THENCE ALONG
SAID NORTHERLY' LINE, NORTH 67O38 '26" EAST, 183.15 FEET; THENCE
LEAVING SAID NORTHERLY LINE, NORTH 22'21' 34" WEST, 10 .O1 FEET;
THENCE NORTH 67"3R826" EAST, 35.00 FEET; THENCE SOUTH' 22'21'34"
EAST, 37.01 FEET; THENCE SOUTH 67930'26" WEST, 15.00 FEET; THENCE
SOUTH 22'21'34" EAST, 32.1.6 FEET; THENCE SOUTH 67'30'26" WEST,
40.78 FEET; THENCE NORTH 22"21134'! WEST, 20.00 FEET; THENCE NORTH
67°30'26" EAST, 20.70 PEET) THENCE: NORTH 22'21'34" WEST, 22.16 FEET
TO A POINT ON THE SOU'l'HERLY LINE OF SAID "PIPE LINE LICENSE";
THENCE ALONG SAID SOUTHERLY LINE, SOUl'H 67"38'26" WEST, 128.59 FEET
TO TllE TRUE POINT OF BEGINNING. . .
ATTACHED HERETO 1S A PLAT LABELED EXHIBIT 'P-1" AND BY THIS
REFERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARC
GRID DISTANCES. TO COMPUTE GROUND DISTANCES, DIVIDE GRIU
IIISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
RASED UPON CALIFORNIA COORDXNATE SYSTEM ZONE 6, ADJUSTMENT, NAO-
03, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 0.092 ACHES, MORE OR LESS.
.-*- ..-
GARY L. HUS DATE
L.S. 7019
EXPIRATION DATE 6/30/2010
EXHIBIT 'H*'
LEGAL DESCRIPTION
FOR
SEAWATER INTRKE/OUTFALL EASEMENT RREA
THAT PORTION OF LOT "H" OF RANCHO AGUA HEDIONDA TN TIiE CITY OF i
CARLSBAD, COUNTY OF SAN DIEGO, S'PATE OF CALIFORNIA, ACCORDING TO
PARTITION MAP THEREOF NO. 823 AS DESCRIBED IN CERTIFICATE OF I
COMPLIANCE RECORDED OCTOBER 30, 2001, A9 DOCUMENT NO. 2001-
0789068, PARCEL 4, MORE PARTICUIlARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 4, ALSO
BEING A POINT ON THE WESTERLY LINE OF THE 100.00 FOOT WIDE RICHT-
OF-WAY OF' THE ATCHISON TOPEKA AND SANTA FE RAILROAD, ALSO BEING
THE MOST SOUTHEASTERLY CORNER OF PARCEL 4 AS SHOWN ON RECORD OF
SURVEY NO. 17350; THENCE ALONG SAID WESTERLY LINE, NORTH 22O30'13"
WEST, 1490.22 FEET; THENCE IoEAVSNG SAID WESTERLY LINE, SOUTH
66O28' 49" WEST, 340. '11 FEW; THENCE NORTH 40°03'53" WEST, 26.08
FEET; THENCE SOUTH 66'28'49'' WEST, 45.93 NET; THENCE NORTH
22'28' 46" WEST, 1.7.56 FEET; THENCE SOUTH 66'31'12" WEST, 403.04
FEET; THENCE NORTH 22'23'45" WEST, 151.01 FEET; THENCE NORTH
67 '18' 36" WEST, 174.25 FEETf THENCE NORTH 76"03'09" WEST, 33.56
FEET TO THE TRUE POINT OF BEGINNING; 'I'HENCF: NORTH '16°03'09" WEST,
41.14 FEET: THENCE SOUTTU 67'05'54" WEST, 142.26 FEET; THENCE
SOUTH 34'28'03" WEST, 161.11 FEET TO A POINT ON THE EASTERL,Y LINE
OF CARLSBAD BOULEVARD (FORMERLY XI-SD-23), BEING 1.00.00 FEET WIDE
AS SHOWN ON RECORD OF SURVEY NO. 1.7350; THENCE ALONG SAID EASTERLY
LINE NORTH 24'07'36'' WEST, 498.52 FEET; THENCE LEAVING SAID
EASTERLY LINE NOK'PH 64'33'05" EAST, 16.50 FEET; THENCE NORTH
1,2°16'19'' EAST, 29.68 FEET; THENCE NOR'l'H 65°25'26" EAST, 158.31
FEET TO A POINT ON THE NOR'I'HERLY LINE OF SAID PARCEL 4; THENCE
ALONG SAID NORTHERLY LINE, SOUTH 30'14' 20" EAST, 44.12 FEET; TllENCE
SOUTH 05°5'1' 51" EAST, 202.95 FEET; 'I'HENCE SOUTH 74'44 ' 52" EAST,
1.64.81 FEW; THENCE NORTH 41'35'28'' EAST, 60.04 FEW; THENCE SOU'PH
22'28' 16" EAST, 152.31 FEET TO THE POINT OF. BE,GI,mING,.
ATTACHED HERETO IS A PLAT LABELED EXH:IRIT 'H-1" AND BY THIS
IIEF'ERENCE MADE A PART THEREOF. ALL DISTANCES SHOWN HEREON ARE
GRID DISTANCES. 'TO COMPUTE GROUND DISTANCES, DIVIDE GRID
DISTANCES BY 0.999963440. ALL BEARINGS SHOWN HEREON ARE GRID
13nSED UPON CALI170RNIA COORDINATE SYSTEM ZONE 6, ADJUSTNENT, NAD-
83, AND EPOCH 1991.35.
SAID PARCEL OF LAND CONTAINS 2.264 ACKKS, MORE OR LESS.
GARY t. NUS DATE
L.S. 7019
EXPIRATION DATE 6/30/201.0
T~lJRVE~~3~8UW~.Ql~l3 - PlhtrU.cpl$\T;xllibit H.I-mo!~(i~-lnlnk~~~a~l doc
NO. 7018
LEGAL mtpnav:
A PORnON OF PARCEL 4 PER CERnFlCAK W LEGEND:
COMPUANE RErnDED OCTOBER JO, 2001 AS
OOCUMENT NO. 2001-0789068. AND AS SHOW INDlCAKS EXlSnNC PROPERTY LINC
bV RECOWD W SVRMY NO. 17550, tN ME HEW
OF CARLSBAO, CWN lY (Wr SAN OIEGO, S M TE P.O.C. -- INDICA KS POIN T W COMMENCEMENT
W CALIFORNIA.
T.P.O.B. - INMCAiES RUE PCWT Cf KCINNING ASSESSORS PARCEL NO:
210-010-43 - INOICA l'CS WE LEASED PREMISES
BASIS OF BEARINGS: AREA - 5.703 ACRES, MUORE OR LESS
THE BASS W BEARINGS FOR THlS ORAWNC
IS M HQRIZCWTAL CONm BAS0 ED Ow CALIFORNIA
COdPDlNAlE SYSTEM ZONE 6, NAD 8J, AS DEERMINE0
LOCALLY BY THE UNE BEMEN FIRST ORDER CONTRa
PWNE 057 AND 141 PER REmO OF SURVEY NO. 17271.
I.E. N40'39'21"W.
0 WER:
CABRlllO POWR 1 LLC
4600 CARLSBAO BOULEVARD .~~. - -~
CARLSBAO, CALIFORNIA 92008
PHONE: (760) 268-401 1
a LICYNUY MAP
N NO SCALE
SURMYOR OF WORK:
PROJECT OEPCN CONSUL TANE
701 B SREET SUITE 800
SAN OIECa CALIFORNIA 92101
PHONE (619) 235-6471 NO. 7019
GARY L. HUS, L.S. 7019 0.4 lE THE LEASED
REG~S~RAIION EXPIRES 6/30/2010 PREMISES
APPIICANP PRCPAREO BY: EXHIBIT
POSflDON RESOURCES
501 KnF &PfJOM Y SUlK 2020
SAN OIfGO, CALIFORNlA 92101
I \SUW~\~J~~\~~-O~-IJ - Rols\FmfAl mmf4-1.0~&~nt~~N~~Ol an)
PROJECT DfSICN CONSUL TANrS
701 B SIREET SUITE 800
SAN OIE%O. CALIFORNIA 911101
'A-I*'
wmi(x'2
AP.H 210-010-4J
LEGAL DESCRIPllW:
A PMPnON W PARCR 4 PER CfRnFCAE OF
COUPLlANCE RfCaRDED OC7MKR JO 2001 A9 LEGEND:
OOCVUENT NO. 200i107&1&- AND'ASSHO~ INOICA AIES EXISTING PROPERTY LlNf
(W RWO ff SURVEY NO 17354 IN THE CITY
CF CARLSAD, COUNlY OF SAN DEW, STAlE P.O.C. INOlCAlET POINT OF COUMMCEMENT OF CALFa4NIA.
ASSESSORS PARCEL NO:
210-010-(5
BASS OF BEARINGS:
T.P.O.B. - INOCATES IRUC POINT OF KUNNINC
- lNOlCA7CS IN TAKE/b/SCHMGE EAKMElV
AREA r 1.678 AaPES, MaPE OR LESS
THE BAYS OF BEARINGS F~R mjs ORAWNC 1s WE HORlZCNTAL CONTRGi BAS0 ON M CALIfMNlA
COORDINATE SYSEU ZONE 6, NAD 8.5, AS DErEIUUNEO
LOCALLY BY M LWE BEWEN FIRST ORDER cwma
POINTS 057 AN0 I41 PER RECORO OF SURMY NO. 17271.
1E. ~4039'1I'W.
4600 CARLSEA0 BOULEVARD
CARLSEAO. CALIFORNIA 92008
N NO SCALE
SURMYOR OF WORK:
PROXCT DESIGN C6VSV1 TANV
701 8 S IREET SUITE 800
SAN DIECO, CALIfORNIA 92101
PHONE: (619) ZJ5-6471
WATER PLANT GARY L. HUS, L.S. 7019 DATE INTAKE/DISCHARGE
QCGISIRA nm EXPRES s/~o/zoio EASEMENT AREA
EXHIBIT
'C-I*'
SHEET I # J
A.P.N. 210-010-45
PLICANT:
'WON RESOURCES
HESI BROADWAY WE 2020
PREPARFO BY:
PRWCT DESlCN CONSUL TANS
701 B SllM7 SUE 600
SAN DIEGO, CALIFORNIA 92101
~*YlZJW\ZO29-0~-lJ - ~bl~\~lCl-~~c~~~-~~loW~s~l~~~lO~,~~
APPl/CANT: PREPARE0 8C EXHIBIT 'C-I*'
WEETBffJ
A.P.N. 210-010-43
POKIDON RtSOURCES
501 I#SI ~DWAY 2020
SAN OIECO, CALlf(WINIA 92101
l:\W~r\2J98\~-07-1J - PMI,\PMC~-~K~~~-~IOI~O.QPIO~.~~
PROJECT OESlCN CONSUL TANTS
701 B STREET sun 800
SAN OIEGO, CALlFaPNlA 92101
LA6W
\
\
\
\
PARCEL 4 \ +
R06 -17350
PARCEL 4
CPRTIPICATB OF COMPLIANCE
RCQORDeD OGTOEER 30. 2001 me NO. 2001-0780008
WATER PLANT
INTAKE/DISCHARGE
SCALE I" = 200' EASEMENT AREA
LINE TARE
LWE I BEARING 1 lENGM
' Lf 1 ~32~4'53"~ 1 93.96'
12 I N42'5J'Db"W 1 37.&
\ \
APPLICANT: PREPARE0 BY: EXHIBIT 'C-I*'
~TJffJ
A.P.N. 210-010-45
POSEIOON RESOURCES
MI KSI @R04DWAI WlE 2020
SAN DlECO, CALIFORNIA Q2101
c \MKI\UM\M09-07-IJ - fl~~r\~(Cl-rocol~-Inl~h'"pcShlOJ~
PRMCT DESIGN CONSUL TANM
701 B SlREET SUIE 800
SAN DIEGO, CALk%QMA 92/01
LEGAL DESCflP7lffl:
A PCRTION OF PARCEL 4 PER CERnFICAB OF LEGEND:
COMPLIANCE RECMIOEO OCTOBER 30, 2tWl AS
OOCUMENT NO. MOI-0789068, AN0 AS SHOW INOCA ES EElSllN6' PROPEI)TY LINE
(WV REm ff SURMY NO. 17JJO, IN WE ClN
W CARLSBAO, COUNTY W SAN MCO, STAE P.O.C. - INDICAlES PWT ff COUMENCEMENT
ASSESSWS PARCEL NO:
210-010-U
BASIS CIC BEARINGS:
T.P.O.B. INMtATES TAOE POINT ff BEWNING
-. lN#CATES CONNECnffl EASTMENT
AREA = a073 ACRCS MORf ChP LESS
WE HEBASlS OF BEARINGS FOR THIS DRAMNC'
IS mf HHORIZIWVT~ wma BAW ON mf CALIFORNIA
CCOROINAIE SYSlfM ZWE 6, NAD 83, AS DETfRMNEO
LOCALLY BY THE LlNf BEMEN FlRST WD€R CONTRIX
FONTS 057 AND.141 PER RECORO OF SURVFY NO. 17271,
I.€. N40'39'2I"W.
I CABRILLOPOMTRI LLC
N NO SCALE
SURMYOR Of WORK:
PROJECT DESIGN CONSUL TAN lS
701 B SmEET SUITf 800
SAN DIECO, CALIFORNIA 92101
PHONE (619) 235-6471 ,
GARY L HUS, L.S. 7019 DATE CONNECT ION
RECISTRA~~ EXPIRES tz/50/1010 EASEMENT AREA
APPLICANT: PREPAR~O 8R EXHIBIT '
glL+TlWJ
A.P.N. 210-010-43
WSNDCW RESOURCES
501 HST MOLlDWAY SUE 2020
SAN DIE&? CALIFORNIA 92101
c \ar*.*rr\2398\Zr%9-07-IJ - Molr\Pr~rol-n~~r~-hI~t*)rtr(l~~~~ylIOl.d~
PROJECr OESIGh' CONSUL TANE
701 8 SLQEET SUlK 800
SAN DlECO, CALIFORNIA 92101
LINE TABLE
~32V4'53'W 93.96'
LEGAL DESCRIPTION:
A PORllON OF PARCEL 4 PER CERTlNCATE OF
COMPLIANCE RECORDED OCrOBER JO, 2001 AS
LEGEND:
DOCUMENT NO. 2001-0789068. AND AS SHOW INOICATES EXlSnNG PROPERTY LINE
ON RECORD OF SURMY NO. 17350, IN WE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STA IE P.O.B. - INDICATES PWT LF EEGINNINC OF CALIFORNIA.
ASSESSORS PARCEL NO: - INDICA TES
210-010-43 PRODUCT WATER PIPELINE EASEMENT
AREA = 3.036 ACRES, MORE OR LESS
BASIS OF BEARING3
THE BASIS OF BEARINGS FOR WIS DRAW
6 IHE'HORIZDNTAL CONTROL BASED CW WE CALIFORNIA
COaRDINAa SYSTEM ZWE 6, NAD 83, AS DEKl#llNED
LOCALLY BY 1)1E LINE BETWEEN rrRST ORDER CONTROL
POINTS 057 AND 141 PER RECORD OF SURKY NO. 17271.
1.C N4V3921"W.
OWNER:
CABRKLO POKR I LLC
4600 CARLSBAD BOULEVARD
CARLSBAD, CIUIFORNIA 92008
PHONE: (760) 268-401 I
A WC/N/V MAP
N NO SCALE
SURMYhP OF WORK:
PROXCT DESIGN CONSUL TANTS
701 8 STREET SUITE 800
SAN DIECO. CALIFORNIA 92101
NO. 7019 PHONE: (619) 235-6471
PRODUCT
GARY L. .HUS. L.S. 7019 DATE WATER PIPELINE
RECISTRA nON EXPIRES 6/50/2010 EASEMENT AREA
APPLICANP PREPARED BY: EXHIBIT 'E-I*'
SIEET 1 ff 3
A.P.N. 210-010-43
POSEIDm RESOURCES
501 IKSI BROADWAr WE 2020
SAN DIEGC? CALIFORNA 91101
I: \wRKr\2J98\zOl9-ot.lJ - Ploa\rlolEl-rerm~ip-Predv~llm~~rPip~~in~mlol.aw~
PRMCl OESGN CONSUL TANIS
701 8 STREET SUITE 800
SAN OIEGO, CALIFORNIA 92101
APPLICANT: PRfPARfO BY: EXHIBIT 'E-I*'
SHEETZWJ
A.P.N. 210-010-43
POSEIDON RfSOURCfS
501 KST BROADWAY WE 2010
SAN OIfCO, CALIFORNIA 92101
r:\SWfEr\2J98\~P.-O7-lJ .. Phlr\N~CI-r~~0nl~-Pr0d~~lWolarPip~hh~ShlQ2.dr~
PR~~D~SICN CONSUL TAN5
701 B SlRff T SUITE 800
SAN OIECO, CALIFORNIA 92101
LEGAL DESCRlP7lOHI:
A PORnON LY PARCEL 4 PER CERnFICA E OF .LEGEND:
CWPLIAMX REroRgED OCTWER JO, 2001 AS
WCUMENT NO. 2001-0789064 AN0 AS SHOW WOICA ES EXISnNC PROPERTY LINE
mi RECW LY SURMY wa 17~50. IN ;RK arr
MMENCEMENT
IOICAES RUE POINT OF BEClNNlNG
OF CARLSAD, COUNTY OF SAN O~ECO, STAR P.O.C. INDICAES PWT OF Cl
OF CALIFORNIA
T.P.O.B. W
ASSESSORS PARCEL NO: m --dm
210-010-43, 10 & 41
BASIS Of BEARINGS: - g222wEsnc u m EAscuENr
AREA A092 ACRE, MORE OR LESS
WE BAS OF BEARINGS FOR THIS ORAklNC
IS ME HORIZWTAL CONTROL BASE0 ON THE CALIFORNIA
COaRDINA R SEEM ZONE 6, NAO 83, AS OEKRMIMO
LOCALLY BY THE LWr BEMEN FIRST ORDER CMVllML
CABRlLlO POWR I LLC
4600 CARLSBAO BOULEVARD
ChRLSBAO, CAUFORWA 92008
PHONE: (760) 268-4011
A WCiNlTY MAP
N NO SCALE
SURMWkP OF WRK:
PROKCT DESIGN CONSULTANTS
701 8 SMET SUITE 800
SAN DIEGO, CALIFORNIA 922101
PHONE: (619) 255-6471
SEWER/ GARY L. HUS. L.S 7019 OA TE DOMESTIC WATER
REClSlUAnON EXPIRES 6/30/2010 EASEMENT AREA
PPLICANR PREPARED BP EXHIBIT ' F-3 *'
st+T1 WJ
A.P.N. 210-010-43
OSEOON RfSWRCES
)I KST BRMOWAY SUlR 2020
IN MEW, CALIFORNIA 92101
URM.r\2JOBl2LW 47-IJ nols\~lr-t~a~-5~~nOmr~frrWrr~lOl dq
PROXCT OtSICaV CONSJL TAN rS
701 0 STRfET SUITE 800
SAN OIECO, CALIFORNIA 92101
PARCEL 4
CERTIFICATE
OF COMPLIANCE \
REC. OCT. 30. 2001 \
FILE NO. 2001-0789068 \
POSNDON RESOURCES
501 KST BROMWAY WIE 20.20
LEGAL DES(;WIPnON:
A mnm OF PARML 4 PER COP~~CATE w LEENO:
COMPLIANCE RECWDEO OCTOBER .SO, 2001 AS
OOCUYENT NO. 2001-0789068. AM) AS WOW. INDICATES EXlSnNC PROPERTY LINE
~ ... W RE^ OF s$MY NO, 17350.~1~ hI€ ~TY
Of CARLSBAO, COUNTY OF SAN DIEGO, STATE P.O.C. - 1NGiCATE.S PGiNI OF COMMENCEMENT
N CAI RfWNIA
ASSESSORS PARCEL NO:
210-010-4s
BASIS OF BEARING3
T.P.O.B. - INDICATES TRUE POINT OF BEGINNING '
- INWCAm INTAKE/OUFAU EASEMEN T
AREA 2.264 Am, MORE OR LESS
THE BASIS Of BEARINGS FOR MIS DRAWNG
IS THE HORIZONTAL CONTRCi BASED ON ME CAllFORNlA
COOROINAB SYSTEM ZONE 6, NAD 8.3, AS STERMINED
LOCALLY BY 7HE LINE BEMEN FRSI ORDER CQNTRDL
POINTS 057 AND 141 PER RECORD CF SURMY NQ 17271.
LE. NlO'39'21'W.
1 CABRlLLOPO*aI LLC
4600 CARLSBAD BOULEVARD
CARLSBAO, CALIFORNIA 92008
PmE: (760) 268-4011
A WONITY MAP
N NO SCALE
SURMWIR OF WRK:
PROJECT DESIGN CONSUL TANS
MI B smcr SUITE BOO
SAN DIEGO, CALIFORNIA 92101
PHONE (619) 235-6471
SEAWATER
GARY L. HUS, L.S 7019 OAR INTAKE/OUTFALL
REGJSlRAIION EXPIRES 6/J0/2010 EASEMENT AREA
APPLICANT: PREPARED BY: EXHIBIT 'H-l*'
SWZT1ff3
A.P.N. 210-010-15
POSEIDON RESOURCES
501 WST WADWAY WE 2010
SAN DIECO, CALIF04MA 92101 - ~:\swur\uss\zooo-o~..~~ - nofr\a~n~-~map-n~d~~~uxy~~o~~~lp
PROSEC~ OESIGN CONSUL TAN rs
701 8 SlREEr SUIE 800
SAN DIfC4 CALIFORNIA 92101
\ \
IPPLICANC PREPARED EV EXHIBIT
'OSnOON RESOURCES
01 WST 8ROADWAY SUE 2020
2N 01EC0, CALIfORWA 92101
~URK~\~J~~\?~-O~-,J - ma\~omr-/ccm$-ult~~~Ourra9hfoj.~q
PROXCT DESIGN CONSUL TANS
701 8 STREET SUllE 800
SAN DlECO, CALIfaRNIA 92101
' H-l*'
WEETJW.3
4.P.N 210-010-4~
EXHIBIT %FWD"
(Existing Development Approvals)
(a) Final EIR 03-05; Findings of Fact; Statement of Overriding
Considerations; and Mitigation Monitoring and Reporting Program;
u
&+Precise Development Plan f-PDP 00-02B);
4& (+Specific Plan 144(HJ);
@ 0-Coastal Development Permit CDP 04-41;
@South Carlsbad Coastal Redevelopment Permit AmendmentRP 05-
12m
\
!a Deve--t DA 05-01 14;
*Habitat Management Plan Permit AmendmentHMPP 05-08m;
(#+Special Use Permit SUP 05-04
(Existing Land Use Regulations)
a +City of Carlsbad General Plan as amended through Resolution No.
8XP-
b, Code ~ii
&---City of Carlsbad Precise Development Plan =00-02@) as
amended through Ordinance No.
& &South Carlsbad Coastal Redevelopment Plan:;
e +Specific Plan 144(MJ, as amended through City of Carlsbad
No.
TFD By I
er PFNAl TY OF PFRJURY undar of the State of
and correct,
. . conveved bwtkWWu
POSEIDON RESOURCE
September 22, 2009
Hon. Mayor Lewis
Hon. City Council Members
Carlsbad City Hall
1200 Carlsbad Village Drive
Carlsbad, CA 92008
RE: Poseidon Resources Corporation's Response to Coast Law Group September 15, 2009
Letter Delivered After the Close of Business; Agenda Item No. 9
Dear Honorable Mayor and Council Members:
Thank you for the opportunity to once again write to you regarding the Carlsbad
Desalination Facility ("Project"). This letter responds to the September 15, 2009 Coast Law
Group ("CLG") letter submitted to the City of Carlsbad ("City") just prior to the City Council
hearing on the pending Project approvals before the City.
We take particular issue with the CLG letter because there was no attempt by CLG, the
attorneys of record in each of four separate lawsuits opposing the Project, to provide pertinent
information for the City Council to consider prior to its September 15, 2009 decision. CLG's
letter arrived in a manner which did not allow City Council members to read or consider the
issues raised in the letter prior to the hearing. CLG submitted the letter not to the Office of the
City Clerk, but by electronic mail to Scott Donnell, the planner for the Project, after the 5:00
p.m. close of business. CLG then delivered an additional 800 pages of supplementary material in
electronic format via e-mail to Scott Donnell at 6:53 p.m., after the start of the City Council
hearing. Notably, the electronic attachment containing the supplementary material was not
readable and CLG did not resubmit the material in a readable format until 1:58 p.m., September
16,2009, the day after the City Council meeting. By failing to properly participate in the
administrative process before the City, CLG has excluded the public from responding in any
reasonable manner to their stated concerns with the Project.
The Project has received near unanimous approval from public civic groups and political
leaders throughout San Diego County and California who understand that the Project will
provide an important, drought-proof, reliable water resource to Carlsbad and San Diego County
at a time when water resources in California are rapidly diminishing due to drought and
regulatory restrictions. We have attached a list of supporters of the Project to this letter to once
again demonstrate the broad-based political, civic and public support this Project has received
throughout the approval processes. We therefore ask that the City Council exclude the CLG
letter and its supplemental material, because it was received outside of the normal course of
business and was not submitted in a manner sufficient to provide the City Council or the public
the opportunity to read and consider the information prior to the September 15, 2009 City
Council hearing. However, should the City choose to include the CLG letter and supplemental
material in the administrative record, we would ask that you also include the attached matrix
summarizing our responses to the CLG letter and providing supporting material and memoranda
from experts about the Project.
Poseidon Resources
50! West Broadway, Suite 2020, San Diego, CA 92)01, USA
619-595-7802 Fax-619-595-7892
As demonstrated in the attached response matrix, the majority of the CLG letter is spent
attacking the adequacy of the Final Environmental Impact Report ("FEIR") that was certified by
the City Council in June of 2006. CLG is attempting to re-argue points that it should have
argued three years ago during the original public hearings on the FEIR and/or a subsequent
lawsuit. CLG failed to avail itself of its right to challenge the FEIR in court in a timely manner
in 2006 and now appears to want to turn back the clock and re-litigate the FEIR. But litigation
against the FEIR and the City Council's June 2006 findings is now barred by the statute of
limitations governing the California Environmental Quality Act ("CEQA"). The State
Legislature developed these specific statutes of limitation to provide Project applicants with
regulatory certainty regarding the period within which a Project could be challenged,
Challenging the FEIR and its findings now is an abuse of CEQA that seeks to thwart the intent of
the Legislature in developing the law.
Poseidon Resources has consistently engaged in an honest public debate regarding the
Project. The City began discussing the issue of desalination 11 years ago in August 1998 and
began processing the PDP and other permits for the Project in 2003. Since then, the Project has
undergone 17 different public hearings with over 75 hours of public testimony; produced four
lawsuits; hundreds of pages of legal briefs; and thousands of pages of comments and responses
by the opponents and proponents of the Project. After the Project was approved by the City
Council in June 2006, the Project was reviewed at numerous hearings before the California
Coastal Commission, the San Diego Regional Water Quality Control Board, and the California
State Lands Commission. Each subsequent regulatory body has approved the Project after
vigorous public debate. It is notable that each of these regulatory bodies has relied on the City's
certified FEIR as a basis for its decision, and none of the regulatory bodies have seen it necessary
to prepare a subsequent or supplemental EIR ("SEIR"). CLG has argued the contrary at each of
these public agencies and found no concurrence. CLG also litigated this point after the Project's
approval at the State Lands Commission, and the San Diego Superior Court has tentatively found
that an SEIR was not required. It now appears that CLG will pursue the same lawsuit against the
City of Carlsbad that it pursued against the State Lands Commission.
CLG is not serving the public through this constant ban-age of lawsuits challenging the
Project. As discussed above, the Project has been fully vetted by the public, multiple state
agencies and the judicial system. Every political, administrative, public, and judicial venue has
found that this Project, as designed and conditioned, will serve San Diego County as a vital
resource that will protect and enhance the environment.
In conclusion, we respectfully ask that the City Council make the final approvals
necessary for the Project so that Poseidon may begin construction on this important and much-
needed source of water to the San Diego area.
Sincerely,
Peter MacLaggan
September 22, 2009
TO: City Manager
VIA: Community Development Director
FROM: Planning Director
RE: RESPONSE TO COAST LAW GROUP LETTER ON DESALINATION PROJECT
At the September 15, 2009, joint City Council and Housing and Redevelopment Commission
public hearing on the changes proposed to the desalination project, Coast Law Group submitted
comments on behalf of San Diego Coastkeeper and Coastal Environmental Rights Foundation.
The comment letter lists the organizations' concerns with the project's Addendum to Final
Environmental Impact Report EIR 03-05 and other related project approvals.
In reply, the Planning Department has drafted a response to each comment raised. The
responses, along with the comment letter (without the additional documents listed), are
attached.
Sincerely,
SCOTT DONNELL
Senior Planner
DN:SD:sm
City Clerk (with attachments)
File Copy
City of Carlsbad Responses to
Coast Law Group's September 15, 2009, comments on
Proposed Addendum to certified Final EIR 03-05 -
Desalination Project Changes
COMMENT 1:
The City Is Required to Prepare a SEIR: Use of an Addendum is Improper: The City's
decision to process Project and delivery pipeline changes through an addendum is
inappropriate and contrary to CEQA. An addendum may be used when none of the
conditions requiring a subsequent or supplemental EIR (SEIR) have occurred. CEQA
Guideline §15164(a). However, many of the applicant's proposed changes, other Project
changes, new information, and changed circumstances surrounding the Project since
certification of the FEIR are substantial and require evaluation in a SEIR. PRC §21166;
CEQA Guideline §15162.
RESPONSE 1:
None of the conditions requiring a Subsequent or Supplemental EIR have been met, and
therefore the City properly used an Addendum as the appropriate documentation under
CEQA for the proposed changes to the Project. Section 15164(c) of the CEQA
Guidelines provides guidance on a Lead Agency's disposition of Addendum to an EIR,
and states: "an Addendum need not be circulated for public review but can be included
in or attached to the final EIR...". Therefore, the City's procedural handling of the
Addendum is consistent with CEQA Guidelines.
The City conducted a thorough review of the proposed changes to the Project, pursuant
to guidance provided in Section 15162 of the CEQA Guidelines to determine the
appropriate need for a subsequent (or supplemental) EIR. Specifically, the City
examined the proposed Project changes, and changes in circumstances that may have
occurred since the time that the Final EIR was certified in 2006, based on Section 15162
of the State CEQA Guidelines, which states that:
(a) When an EIR has been certified...for a project, no subsequent EIR shall be
prepared for that project unless the lead agency determines, on the basis of
substantial evidence in the light of the whole record, one or more of the following:
1. Substantial changes are proposed in the project which will require major
revisions of the previous EIR...due to the involvement of new significant
environmental effects or a substantial increase in the severity of
previously identified significant effects;
2. Substantial changes occur with respect to the circumstances under which
the project is undertaken which will require major revisions of the previous
EIR or Negative Declaration due to the involvement of new significant
environmental effects or a substantial increase in the severity of
previously identified significant effects; or
3. New information of substantial importance, which was not known and
could not have been known with the exercise of reasonable diligence at
the time the previous EIR was certified as complete...shows any of the
following:
(A) The project will have one or more significant effects not discussed
in the previous EIR;
(B) Significant effects previously examined will be substantially more
severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be
feasible would in fact be feasible and would substantially reduce
one or more significant effects of the project, but the project
proponents decline to adopt the mitigation measure or alternative;
or
(D) Mitigation measures or alternatives which are considerably
different from those analyzed in the previous EIR would
substantially reduce one or more significant effects on the
environment, but the project proponents decline to adopt the
mitigation measure or alternative.
Each of these provisions were carefully reviewed against the proposed changes, as well
as and the findings of that review are documented in detail in the Addendum. The City
determined that none of the changes or additions meet the standards as provided for a
subsequent EIR pursuant to State CEQA Guidelines, section 15162.
The original Project EIR therefore is determined to be sufficient for purposes of fully
addressing the environmental effects of the Project as required under CEQA. It should
also be noted that the public review of the Draft EIR extended for a period of 60 days,
exceeding the minimum requirements of CEQA. In addition, the Final EIR was made
available to the public for nearly 6 months prior to the City taking action on the Project.
Therefore, it is unreasonable to suggest that the City has deprived the public of
meaningful review and comment.
COMMENT 2:
Project Operational Characteristics Have Changed: The City did not approve the
Project operating independently of Encina Power Station (EPS). The City cannot now
assert the Project has not changed since certification of the FEIR in 2006. The Project
approved did not consider stand-alone operations, or extended periods of EPS
shutdown. The Project approved in 2006 considered a co-located facility with "historical
extremes" requiring 304 million gallons per day (MGD) intake by EPS. The FEIR
explained the analysis:
The EPS can run with an "unheated" discharge (i.e., no power plant operation).
To account for these variables, two "historical extreme" conditions were modeled,
each reflective of a pump configuration that could be used during low- flow
operations.
Thus, the FEIR did not analyze a scenario or consider it reasonable to assume that on
certain days, EPS would have zero intake. The City's Additional Response to Comments
also make clear the "Final EIR assumefd] continued operation of the [EPS] within the
parameters of its historical operating conditions" based on "reasonably foreseeable
circumstances." FEIR Additional Response to Comments, June 13, 2006, p.1
Nonetheless, since certification of the FEIR, it has become unmistakably clear:
1) EPS now operates at lower intake volumes;
2) EPS will shutdown units 1-3 and repower to the closed-cycle Carlsbad Energy
Center Project (CECP);
3) CECP will include a small-scale desalination plant that will be reviewed by the
Regional Board in November 2009; and
4) EPS will shutdown completely in the near future.
[Note: see comment letter for Table showing daily EPS flows in the month of June 2009]
The days highlighted in yellow (in the table) represent days during which EPS flows
would be insufficient to provide the Project's required intake flow of 304 MGD. Thus, in
June 2009 the Project would have had to pump all or a portion of the water required 22
out of 30 days, or 73 percent of the time. The monthly average was only 178 MGD.
Moreover, on nine of those days EPS did not take in or discharge any water.
Thus, the Project has changed such that operational characteristics would not be the
"same as with the approved Project." (Addendum, p. 19) The FEIR did not (and could not
have) analyzed new requirements imposed by subsequent reviewing agencies:
1) Regional Board—at times when the EPS is not generating electricity (temporarily
or permanently) the EPS intake pumps would be decoupled from EPS
condensers and one pump from unit 4 and 5 would be operated, as opposed to
two pumps from one unit. Poseidon Revised Flow, Entrapment and Impingement
Minimization Plan, March 9, 2009 (Flow Plan), p. 3-7.
2) Regional Board - Poseidon is required to submit a technical report evaluating the
feasibility of any additional design or technology features within 45 days of being
notified by EPS that all generating units will be non-operational for power
production, and may be required to implement additional measures during the
prolonged period of temporary shutdown. Order No. R9-2009-0038, p.3.
3) State Board - EPS will not be allowed to intake sea water when it is not
generating electricity.
RESPONSE 2:
This comment contains false and misleading information, and is not supported by facts
in the record. The FEIR did indeed analyze operation of the Project in a "stand-alone"
condition. The City Council originally approved the Project based on an analysis that
included assessment of marine biological effects (impingement and entrainment)
associated with operation of the Project independent from the Encina Power Station
(EPS). This fact was recognized by the California Coastal Commission (CCC) in their
approvals for the Project. As noted in the CCC Final Adopted Findings, August 6, 2008,
(which coincidentally, is Attachment 1 to the CLG comment letter):
"The Project's EIR prepared by the City of Carlsbad analyzed the project's
impacts as both a co-located and a stand-alone facility. The EIR determined that
as a stand-alone facility, the project would cause less entrainment and
impingement losses than the existing power plant's operations and would have
no significant impacts" CCC Findings, Section 4.1
A complete summary of the analysis of stand-alone operation is contained in the
Additional Responses to Comments presented to the City Council and Housing and
Redevelopment Commission prior to taking their action to approve the Project in June
2006.
However, the description of baseline conditions in the FEIR reasonably describes the
continued operation of the EPS. Moreover, all relevant city permits specify that if the
desalination plant were to operate independently, Poseidon or its successors would
have to obtain new permits and undergo new CEQA compliance. See specifically
condition 7 of Planning Commission Resolution 6635.
There have been no changes in baseline conditions since the FEIR was certified.
1) The comment claims that EPS now operates at lower intake volumes. The FEIR
evaluated a full range of operating conditions for the EPS, including a scenario
under which EPS would not operate at all - therefore, any fluctuation (including
non-operation) in EPS intake volumes is considered in the FEIR analysis. As
such, there are no substantial changes with respect to the circumstances under
which the Project would be undertaken, nor any new information of substantial
importance based on fluctuation in EPS intake volumes.
2) The comment claims that EPS will shutdown units 1-3 and repower to the closed-
cycle Carlsbad Energy Center Project (CECP). The CECP is a proposed project
being considered by the California Energy Commission, which has not been, and
may never be approved. Notwithstanding that fact, reduction in intake flow by
the EPS that could potentially result from shutdown of units 1-3 is within the
scope of the stand-alone analysis of the Project in the FEIR. As such, there are
no substantial changes with respect to the circumstances under which the
Project would be undertaken, nor any new information of substantial importance
that is represented by the proposed CECP project.
3) The comment states that the proposed CECP will include a small-scale
desalination plant that will be reviewed by the Regional Board in November 2009.
See (2) above regarding the status of the proposed CECP. The comment does
not provide sufficient clarity to explain how the Regional Board's review of the
proposed CECP desalination operation represents a change in circumstance that
would have any affect on the proposed Project. However, the Addendum
considers the proposed CECP as an additional cumulative project, and
appropriately concludes that if approved, the proposed CECP would not result in
substantial changes in cumulative effects.
4) The comment claims that the EPS will shutdown completely in the near future.
As stated in the FEIR, the EPS is designated as a "Reliability Must Run" facility
by the California Independent Systems Operator, and there are no current plans
for the EPS to "shutdown completely". As such, there are no substantial changes
with respect to the circumstances under which the Project would be undertaken,
nor any new information of substantial importance associated with the claim that
the EPS would be shut down.
COMMENT 3:
The Addendum Results in Project Segmentation and Piecemealing: The City now
continues to opine on the significance of certain aspects of stand-alone operations, all
the while refusing to acknowledge the reality of the stand-alone operations in the near
future. But a project is defined as "the whole of an action" that may result in either a
direct or reasonably foreseeable indirect physical change in the environment. CEQA
Guidelines § 15378. The "term 'project' refers to the activity which is being approved and
which may be subject to several discretionary approvals by government agencies." Id.
The environmental impact of future Project operations without EPS units 1 to 3 must be
analyzed because it is a "reasonably foreseeable consequence" of the Project, and "will
be significant in that it will likely change the scope or nature of the initial project or its
environmental effects." Laurel Heights Improvement Ass'n v. Regents of University of
Cat. (1988) 47 Cal. 3d. 376, 396. The EPS re-power to CECP is more than reasonably
foreseeable. As soon as 2010, units 1 to 3 will be demolished, EPS oil fuel tanks 5, 6
and 7 would be demolished, and the CECP will be built, including a new, small
desalination plant. As detailed above, EPS flows are not sufficient to provide 304 MGD
to the Project, and will be further reduced upon retirement of units 1 to 3 and
implementation of the State Board's OTC Policy. The Project will have to implement new
design and technology measures if EPS flows discontinue for six months. All of these
new developments constitute Project changes and must be analyzed in a SEIR.
RESPONSE 3:
See response to comment 2. The CLG letter attempts to muddle the requirements of
CEQA in order to confuse the facts that are on record. It is a fact that the FEIR did
indeed analyze a condition where the Project would operate with zero intake by the EPS
facility. Therefore, the scope of the environmental effects analyzed in the FEIR would
not change based on fluctuations in flow rates at the EPS.
As we understand the comment, Coast Law Group would like the City to interpret
different provisions in CEQA to mean that a Lead Agency must include cumulative
projects into the description of the project itself. The comment attempts to confuse a
Lead Agency's obligation to consider cumulative effects of other projects, with the
obligation to describe and analyze the whole of a project's actions. This contorted
misstatement of CEQA requirements is used to support the notion that a Lead Agency
must incorporate cumulative projects into the project itself. This is simply false.
The City considered all cumulative impacts potentially resulting from reasonably
foreseeable cumulative projects in the FEIR and Addendum. And the City fully
described and analyzed the entire Project and all related actions associated with
6
implementation of the Project. To assert that the City is now piecemealing the Project by
not including an entirely separate cumulative project into the Project description is
unreasonable.
COMMENT 4:
Cumulative Impacts Will Result from Projects Undergoing Construction
Simultaneously With the Project and Delivery Pipelines: Several other (previously
unanalyzed) projects will simultaneously be undergoing construction within the Project
and delivery pipeline vicinity. The cumulative impacts from these projects have not been
discussed in the FEIR or Addendum, but require analysis and avoidance or mitigation.
1) La Golondrina and La Costa Meadows Sewer Extension (SCH# 2009021109) -
Construction of two gravity flow sewer pipeline segments including 2,800 lineal
feet of pipe to be cut, filled with sand, and capped with a concrete plug.
2) Bridges at Aviara (SCH# 2009021030) - Development of 428 senior
condominiums and 76 senior income restricted apartments, completion of
Poinsettia Lane, and a double span bridge over an existing canyon
3) El Fuerte View (under review until October 4, 2009) - Grading and subdivision of
3.9 acre property into six residential lots, private street lot, and one common
space lot
4) Bressi Ranch Industrial Lots - Subdivision of 40 industrial lots.
5) Alga Norte Park - A 32-acre project on Alacante Road and Poinsettia Lane
RESPONSE 4:
Pursuant to CEQA Guideline Section 15130 (b)(1)(A), the City compiled a list of
cumulative projects that it determined would have the potential to produce related or
cumulative effects, and that were not known at the time that the Final EIR was certified.
The City determined the scope of the cumulative projects based on a reasonable
assessment of the potential for the projects to have related or cumulative effects.
Considerations in determining the scope of cumulative projects included the location,
type and overall magnitude of the potential cumulative projects. A list of the identified
cumulative projects, and an analysis of the potential cumulative environmental effects
against the criteria contained in Section 15162 of the CEQA Guidelines, is presented in
the Addendum, pages 39-46.
The comment makes reference to additional cumulative impacts that may arise because
of the construction of five other projects within the vicinity of the Project. The comment
further alleges that the additional cumulative projects would have unanalyzed and/or
significant effects. The City disagrees. Due to the scope, size and location of the
additional projects identified in the comment letter, none of these projects would have
the potential to result in substantial cumulative effects. Evidence supporting this
conclusion is provided as follows:
1. La Golondrina and La Costa Meadows sewer extension:
This project is located in the vicinity of El Fuerte Street, Carillo Way and La
Golondrina Street between Poinsettia Lane and Alga Road. The project
involves installation of a residential sewer line that would serve two
residential areas now dependent on sewer lift stations. The construction route
for the sewer would not conflict with construction of the proposed water
delivery lines because it is not located within any of the proposed pipeline
routes. Additionally, due to its location, the residential sewer project would
not use the same construction travel routes as the proposed Project, as it is
afforded regional access by major arterials and freeways that are not
proposed for the water delivery pipelines. Therefore, the residential sewer
project would not have the potential to produce cumulatively considerable
construction traffic and noise effects. Due to topography, vegetation, and
distance, the site is not readily visible from any of the proposed pipeline
routes, and therefore would not produce any cumulative visual impacts during
construction.
2. Bridges at Aviara:
This project involves construction of approximately 505 multifamily residential
units and street improvements west of El Camino Real. The project is not
located within any of the roadways proposed for the Project's water delivery
pipelines. Further, the project site would be accessed by Poinsettia Lane and
El Camino Real south of Palomar Airport Road, neither of which are
anticipated to be construction routes for the proposed Project. Therefore, the
multi-family residential project would not have the potential to produce
cumulatively considerable construction traffic and noise effects. The site is
not visible from any of the proposed pipeline routes, and therefore would not
produce any cumulative visual impacts during construction.
3. El Fuerte View:
This project consists of 6 residential lots, one open space lot and one private
street on a 4 acre site. The project is on the west side of El Fuerte Street,
opposite Chorlito Street. Because of the small scale of the project, coupled
with the fact that the project is not located within or in close proximity to the
proposed pipeline routes, the residential project would not have the potential
to produce cumulatively considerable construction traffic and noise effects.
The site is not visible from any of the proposed pipeline routes, and therefore
would not produce any cumulative visual impacts during construction.
4. Bressi Ranch Industrial Lots:
' The City is not aware of any project known specifically by this name. There
are existing industrial areas within Bressi Ranch, which stretch between El
Camino Real and Melrose Drive, south of Palomar Airport Road. Some lots
within this area are developed and/or graded and vacant. No further
information can be provided without additional detail on the referenced
project.
5. Alga Norte Park:
This project consists of a proposed Park and Aquatic Center on a 32-acre
site, bordered on the south by Poinsettia Lane and on the east by Alicante
Road. The City Council decided to proceed with rough grading only for this
project due to financing constraints. The project is not located within any of
the roadways proposed for the Project's water delivery pipelines. Further, the
project would be graded such that a balance of cut and fill would remain on
the site. Therefore, the park grading would not involve hauling of earth
material, and the project would have not the potential to produce cumulatively
considerable construction traffic and noise effects. The site is not visible from
any of the proposed pipeline routes, and therefore would not produce any
cumulative visual impacts during construction.
COMMENTS:
Traffic Impacts: The conclusion that proposed changes will not increase any previously
identified impacts or create new potential impacts is unsupported. (Addendum, p.37).
The traffic impacts from installation of Project pipelines along Melrose Drive (south of
Palomar Airport Road) and Lionshead Avenue to Linda Vista Road to 9th Street have
not been studied. Merely claiming the impacts will be similar to those evaluated in the
FEIR is insufficient. Rather, as the FEIR mentions, impacts must be evaluated by
comparing existing traffic conditions to traffic conditions during construction of the
pipelines. (FEIR, p.4.10-3).
Impacts are considered to be significant if the project would:
a. Cause an increase in traffic which is substantial in relation to the existing traffic
load and capacity of the street system.
9
b. Exceed an applicable adopted level of service standard either individually or
cumulatively.
c. Result in a change in air traffic patterns, including either an increase in traffic
levels or a change in location that results in substantial safety risks.
d. Substantially increase hazards due to a design feature or incompatible uses.
e. Result in inadequate emergency access.
f. Result in inadequate parking capacity.
g. Conflict with adopted policies, plans or programs supporting alternative
transportation. (Appendix G ofCEQA Guidelines for significance).
Neither the Addendum nor does the FEIR describes, any level of detail, the traffic
impacts of construction within the road rights-of-way. (Addendum, p. 37; FEIR, p. 4.10-
9).
Moreover, much of the new proposed pipeline route will be in San Marcos, which will rely
upon the City's Addendum in determining significance of traffic impacts. The Addendum
does not provide any insight as to the average daily trips or level of service requirements
along pipeline route roads in San Marcos. (Addendum, p. 36-37).
Rather, the Addendum speaks in generalities about total pipeline length, reduced
hauling trips, and construction related vehicle trips. The "construction traffic impacts of
the revised Project would be reduced from what was anticipated for the approved Project
due to the reduced amount of soil hauling and overall reduced length of offsite
pipelines." (Addendum, p.36-37). Though the revised Project may result in reduced
pipeline length, the Addendum does not discuss impacts from the movement of pipelines
to new locations, increase in pipe diameter, or impacts to specific new pipeline
segments. Id.
The mitigation measures identified in the FEIR are also inadequate to render impacts
insignificant. (FEIR, p. 4.10- 12-13). Some of the mitigation measures are already being
sidestepped by Poseidon's hurried project amendment approvals.
Prior to issuance of grading permits and/or encroachment permits for work within public
rights-of-way, the Applicant shall provide the ultimate location of soil disposal sites to the
appropriate city.. .and shall further demonstrate that transport of soil and materials to and
from the proposed sites will not result in Levels of Service during peak hour periods on
affected roadways and intersections falling below acceptable standards established by
the affected cities.
10
Id. Poseidon has asked the City to issue encroachment permits in the public rights-of-
way before the City approves "construction plans, traffic control plans, technical studies,
posting of security, permit fees, notice to proceed, etc...things that [the City] normally
have done before [it] issuefs] a ROW permit, "(email communication between Jeremy
Riddle, Carlsbad Associate Engineer and Skip Hamman, on August 5, 2009). By
granting conditional approvals before required FEIR mitigation measures are
implemented, the City has already begun chipping away at the credibility of the proposed
mitigation measures. The City has shown its desire to bend over backwards and
disregard its own standard procedure for consideration and approval of necessary
permits.
Mitigation measures based upon the City's Traffic Control Plan approval and
implementation are therefore baseless. FEIR, p. 4.10-12-13. Thus, the resulting impacts
are unanalyzed and unmitigated. PRC § 21002; 21002.1. Further, deferral of mitigation
measures through a Traffic Control Plan to be submitted after Project approval or
permits have been issued is contrary to CEQA. Sundstrom v. County of Mendocino
(1988) 202 Cal. App. 3d 296 (deferral of mitigation until after project approval renders
success of mitigation uncertain); Oro Fino Gold Mining Corporation v. County of El
Dorado (1990) 225 Cal. App. 3d 872, 884-885 (post-approval formulation of mitigation
plans inappropriate because, "in the absence of overriding circumstances, the CEQA
process demands that mitigation measures timely be set forth, that environmental
information be complete and relevant, and that environmental decisions be made in an
accountable arena"); Gentry v. City of Murrieta (1995) 36 Cal. App. 4 1359, 1393-1394
(reiterating the principles of Sundstrom and Oro Fino Gold Mining)).
RESPONSE 5:
The Addendum's conclusions regarding traffic impacts are fully supported by facts
contained in the Addendum and the FEIR. The Addendum contains an analysis of
impacts to roadways within which the newly proposed pipelines would be placed,
including Lionshead Avenue, Linda Vista Road, Las Flores Drive to 9th Street and
Melrose Drive south of Palomar Airport Road. The Addendum does not "merely claim"
that the traffic impacts for the newly proposed segments of pipeline would be similar to
those evaluated in the FEIR. Analysis in the Addendum used the same methodology as
the FEIR for evaluating impacts - namely that the type and magnitude of impacts were
characterized, and mitigation was applied to ensure that acceptable levels of service
were maintained. The methodology in the Final EIR was appropriate and adequate, and
was not questioned or challenged by any party after certification of the EIR.
11
The Addendum was based on the analysis in the FEIR, which characterized pipeline
construction traffic to consist of truck trips associated with hauling earthwork, delivering
pipe, and delivering pavement materials. The FEIR noted that local impacts to smaller
roadways will be limited in duration, due to the length of pipeline segments within these
areas. The FEIR stated that the primary hauling activity within these areas will be to
remove the soils from the immediate area. The FEIR provided the example of where
pipelines are proposed in residential streets and collector roads, construction in any
given location will be completed within a matter of several days. The FEIR stated that
these roadways would not be used for hauling of cumulative quantities of soil from
multiple trench locations. Based on these facts, the FEIR concluded that there would
not be significant local traffic impacts to smaller roadways.
The Addendum made comparisons of the newly proposed roadway alignments,
including those alignments proposed within the City of San Marcos, such as those within
Linda Vista Road, Las Flores Drive and 9th Street, as well as new alignments within
Lionshead Avenue and Melrose Drive south of Palomar Airport Road. Despite the fact
that the FEIR concluded that no significant impacts were anticipated, as stated in the
FEIR and in the Addendum, a mitigation measure was included in the FEIR to ensure
that localized impacts do not occur. This mitigation measure requires the applicant will
be required to demonstrate, among other things, that construction operations will not
result in unacceptable Levels of Service during peak hour periods on affected roadways.
The FEIR identified Melrose Avenue (north of Palomar Airport Road) as a portion of a
haul route for soil disposal. The revised Project proposes pipeline installation within
Melrose Avenue south of Palomar Airport Road, which has the same roadway
classification (Prime Arterial), and is similar in terms of operational characteristics as the
segment of Melrose Drive north of Palomar Airport Road. By means of comparing the
proposed changes in alignments to the alignments evaluated in the FEIR, the Addendum
correctly concludes that traffic impacts would be similar, including the traffic impacts
along Melrose Drive south of Palomar Airport Road. Further, as noted above, mitigation
is required to ensure that construction operations will not result in unacceptable Levels
of Service during peak hour periods on affected roadways.
The comment alleges that the mitigation measures identified in the FEIR "are also
inadequate to render impacts insignificant". As noted above in these responses, the
FEIR was certified over three years ago, and no challenges or questions regarding the
adequacy of the analysis or mitigation measures were raised at that time, providing
further evidence that the mitigation measures are appropriate and adequate to reduce
potential effects to less than significant levels. The mitigation ensures that Project
12
construction traffic will not result in levels of service on any affected roadway falling
below acceptable levels.
The comment attempts to confuse the requirement for mitigation measures in a CEQA
document with mechanisms used to implement the measures. Contrary to what is stated
in the comment, mitigation measures have not been deferred. The mitigation
requirements are clearly spelled out in the FEIR, and will be implemented prior to any
actions that could result in impacts occurring.
Conditions of approval are routine mechanisms for moving a project through the
approval process. It is unreasonable to assume that all of the detailed actions required
to implement mitigation measures for a project of this scope and scale would happen all
at once. Imposition of conditions of approval is not deferral of mitigation, but is rather a
means to implement the required mitigation that was identified in the FEIR and set in
place with the initial Project approvals.
Finally, it is unreasonable to suggest that by adding conditions of approval to the Project
to implement a mitigation measure, "the resulting impacts are unanalyzed and
unmitigated". Actions taken by the City to implement the required mitigation do not
negate the effectiveness of the mitigation, and certainly do not "unanalyze" the impacts.
COMMENTS:
Noise Impacts: Though the Addendum states otherwise, the FEIR concluded no
significant noise impacts would result from the Project and thus imposed no mitigation
measures. FEIR, 1-15 (Table 1-1) and 4.9-14; CEQA Findings, p. 20-21; Addendum, p.
33-34. However, the concurrent construction of other projects listed above, the CECP,
and the Project may result in significant noise impacts, especially in residential areas
mentioned above. No analysis for pipeline routes in San Marcos has been completed, as
was originally completed for Vista and Oceanside. FEIR, p. 4.9-1. The construction
impacts will not be short in duration, as stated in the Addendum, as pipeline construction
is expected to take 16 months. Addendum, p. 45.
Moreover, noise impacts from nighttime construction have not been discussed. The
FEIR points to the City ordinances limiting construction to daytime hours in all relevant
cities. FEIR, p. 4.9-2-4. Once again, the City anticipates waiving these limitations or
simply labeling impacts insignificant. See email from Scott Donnell to Joe Monaco on
June 11, 2009 (regarding waiver of night construction ordinances and simply labeling
noise not "disturbing, excessive, or offensive"). The FEIR's promise that "[a]ll
13
construction activity will be limited to the City of Carlsbad's permitted hours of
construction," is therefore of no consequence. FEIR, p. 4.9-6.
In enacting CEQA, the Legislature has declared the policy of the state to "[tjake all action
necessary to provide the people of the state with .. .freedom from excessive noise." PRC
§ 21001 (b); See also, Berkeley Keep Jets Over the Bay Committee v. Board of Port
Com'rs (2001) 91 Cal.App.4th 1344, 1379 -1380. The City has failed to analyze the
individual and cumulative noise impacts from the Project. In light of the Project changes
and the significant noise impacts, a SEIR is required.
RESPONSE 6:
The following response is based on an analysis by Mr. Michael Komula, an expert
acoustician who has over 24 years' professional experience in environmental and
industrial noise analysis. The comment alleges that no analysis for pipeline routes in San
Marcos was completed in the Addendum.
This is false. The Addendum addresses impacts related to construction noise within the
City of San Marcos. As noted in the Addendum, only the final stretch of new pipeline
alignment along Linda Vista to 9th Street is within an area of residential uses. The
Addendum further points out that, as discussed in the FEIR, pipeline construction would
result in noise impacts on surrounding residences, and indicates that the same
conditions that were adopted in the FEIR would be required; namely compliance with all
appropriate noise regulations related to construction. With these standard conditions
applied to the newly proposed pipeline segments in the City of San Marcos, no new
significant impacts would result.
The comment alleges that construction impacts will not be short in duration, and that
pipeline construction is expected to take 16 months.
This statement attempts to confuse facts. While the entire schedule for construction
would last for approximately 16 months, construction activity in a given location affected
by construction noise would last only a few days. This is clearly documented in the
FEIR. The FEIR states that the duration to complete any phase of the open trench
phases of the Project such as trenching, backfilling, etc., would typically proceed at a
rate of approximately 75 feet per day. Thus, the forward progression of construction
activities would mean that the noise impact may last for only two to three days at any
one location. (FEIR Page 4.9-8)
14
The comment states that noise impacts from nighttime construction have not been
discussed, and acknowledges that the FEIR points to the City ordinances limiting
construction to daytime hours in all relevant cities.
The EIR does in fact document the applicable construction noise limitations contained in
the various cities municipal codes, all of which indicate limits on construction to daytime
hours, as noted in the following excerpts from the FEIR:
The City of Carlsbad Municipal Code regulates construction noise by limiting the
hours of operation. Construction activities are allowed to occur Monday through
Friday between the hours of 7 a.m. to sunset; and on Saturdays from 8 a.m. to
sunset, excluding legal holidays. (FEIR Page 4.9-2)
The City of Vista regulates construction activity noise by limiting the hours of
operation. Whenever a construction site is within 1,000 feet of any residential,
hotel, motel, hospital or similar facility, grading activities shall be conducted
between the hours of 7:00 a.m. and 5:00 p.m. Monday through Friday, and 8:00
a.m. to 4:00 p.m. on Saturday. (FEIR Pages 4.9-2 and 3)
The City's (Oceanside) Grading Ordinance (Ordinance No. 81-20) states that
grading and equipment operations within 0.5-miles of a structure used for human
occupancy can only be conducted Monday through Friday between the hours of
7:00 a.m. to 6:00 p.m. Further, the noise levels associated with any construction
equipment should not exceed 85 dB at a distance of 100 feet (City of Oceanside
1974). (FEIR Page 4.9-4)
The City of San Marcos has similar limitations on construction noise. Section 10.24.020
of the City's Municipal Code states that construction activities shall be restricted to
between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and on
Saturdays between 8:00 a.m. and 5:00 p.m.
With regard to comments that claim the City anticipates "waiving" of the City's
construction noise restrictions, the City's Municipal Code at Chapter 8.48.020 is the
provision of the Code which applies. The Code states:
8.48.020 (2) The city manager may grant exceptions to Section 8.48.010 by issuing a
permit in the following circumstances:
(A) When emergency repairs are required to protect the health and
safety of any member of the community;
15
(B) In nonresidential zones, provided there are no inhabited dwellings
within one thousand feet of the building or structure being erected,
demolished, altered or repaired or the exterior boundaries of the
site being graded or excavated.
Therefore, the City cannot exempt the Project "simply by labeling noise not 'disturbing,
excessive, or offensive'".
COMMENT 7:
Growth Inducement: The Addendum gives little attention to growth inducement
impacts, referring to previous analysis in the FEIR. Addendum, p. 46. The Project will
provide up to 50 MGD of potable water to the region, enabling new economic and
population growth. "Development of the Carlsbad Seawater Desalination Plant will assist
in the stimulation of new commercial/industrial expansion, employment, and economic
growth." Carlsbad Planning Commission Resolution No. 6088, p.4. Though the Project
may be one factor in removing barriers to such growth, the City must nonetheless
discuss the impacts resulting from one less obstacle to such growth. FEIR, p. 9-5.
Response to August 19, 2009 Letter on Desalination Project Changes, Scott Donnell, p.
5. But for the Project, some growth would not be possible.
Further, in light of the City's recent approval of a 20 percent reduction in reliance on
Project water from FEIR predictions, enabling 20 percent more water to reach other
regional customers, at a minimum this incremental increase must be discussed.
Carlsbad Municipal Water District, Resolution No. 1372, adopted August 18, 2009.
RESPONSE 7:
The Final EIR contains extensive discussion on the potential for the Project to cause
growth, and provides all available information to support conclusions, without engaging
in speculation. As noted in Section 9.0 of the Final EIR, the Project is anticipated to have
similar effects to those analyzed for the Regional Water Facilities Master Plan prepared
by the San Diego County Water Authority, which was found to have the potential to
foster additional growth indirectly by removing barriers to growth. Therefore, "the impacts
resulting from one less obstacle to such growth" have been addressed. However, further
analysis of indirect effects on growth is not possible without unreasonable speculation.
This also applies to any temporal or planned fluctuations in, or control of local demand
that could have similar indirect growth effects.
As also noted in Section 9.0 of the FEIR, while the overall effects on growth may not be
fully ascertainable, local effects are analyzed and documented. Section 9.0 of the FEIR
16
discusses how local and regional growth projections and control mechanisms ensure
that the change in water supply represented by the Project would not result in growth
beyond what is already anticipated on a local and regional level.
COMMENTS:
Aesthetics: The assertion that construction-related short-term and cumulative aesthetic
impacts would not result in new impacts or increase the severity of impacts identified in
the FEIR is absurd. Addendum, p.11. The proposed changes in the pipeline route
themselves warrant further discussion and analysis. The City has provided no evidence
of the impacts to San Marcos and Vista residential and commercial areas during
construction. Most of the area south of Linda Vista Dr, Los Flores Dr, and 9th St in San
Marcos is residential. The same is true of Melrose Drive south of Palomar Airport Road.
Many of these areas will have flow control facilities (FCF) built near the pipelines,
requiring undergrounding of structures 15 feet wide, 25 feet long, 11 feet deep to 30 feet
wide, 45 feet long, and 11 feet deep. Addendum, p. 10. The aesthetic impacts of digging
to place 4,125 to 14,850 cubic feet of structures in the public right of way or areas
adjacent to the pipeline will most certainly be significant. They have not been identified.
Construction of the off site water delivery pipelines and pump station would cause
temporary aesthetic impacts, including equipment storage, materials, soil stockpiling and
debris that are exposed to public views. The use of standard construction measures
such as fencing and screening would be utilized to a limited extent to screen
construction areas. Because these impacts are short-term in nature, and because they
affect a limited area, they are not considered to have a substantial adverse effect on a
scenic vista, nor would they substantially damage scenic resources. Construction
activities would not substantially degrade the existing visual character or quality of the
surrounding areas, and are therefore not considered significant. FEIR, p. 4.1-10
(emphasis added). The FEIR thus found no significant impacts resulting from delivery
pipeline construction. However, the FEIR did not discuss aesthetic impacts of FCF
construction. Nor did the FEIR consider the cumulative impacts of on-going,
simultaneous construction of pipelines for over a year, (email communication between
Nick Lyuber and Scott Donnell on May 28, 2009). The impacts of removing dirt,
stockpiling dirt for a year, and excavating an area for a 14,850 square foot FCF in
multiple residential neighborhoods have thus not been adequately analyzed.
The aesthetic impacts of increasing the Project dimensions as follows have also not
been adequately addressed:
• Overall Plant Site Area from 3.2 acres to 5.7 acres
17
• Pretreatment Area height of mostly 3 feet with some 7.5 feet to 27 foot height
• Pretreatment Area dimension from 42,632 square feet to 60,000 square feet
(almost 50 percent increase)
• Reverse Osmosis Building from 44,552 sq. feet to 49,700 sq. feet
• Solids Handling Building from 19.5 foot height to 25 foot height
• Solids Handling Building from one structure to two structures, doubling square
footage from 2,500 to 5,000 sq. feet
• Chemical Storage Area from 5,200 sq. feet to 6,000 sq. feet
• Chemical Storage Area allowed limited use of screening walls and now
extensively uses walls at a height of 20 to 30.5 feet
• Chemical Storage Area had retaining walls not visible beyond plant but now has
600-foot long wall along west boundary that is 10 feet tall
• Parking spaces increased from 14 to 23 spaces
Though the visible project features arguably have decreased, the height, size, and
location of the new features have not been adequately discussed. Addendum, p. 6, 11-
12. The mitigation measures in the FEIR are equally inapplicable or insufficient. FEIR, p.
4.10-12. None of the FEIR mitigation measures address either the increased heights,
views inland from the ocean, cumulative aesthetic impacts.
Cumulative aesthetic impacts from concurrent construction of the CECP, including the
demolition of units 1 to 3, the new plant and small desalination plant, and relocation of
the administration building are also significant. The City has simply labeled the Project's
incremental effects as not cumulatively considerable. Addendum, p. 41. This type of
analysis is exactly the opposite of cumulative impacts analysis. Because each impact
may be individually insignificant, impacts of several projects become cumulatively
considerable. CEQA Guideline §15064(h)(1); see also CEGA Guideline § 15355(b)
("Cumulative impacts can result from individually minor but collectively significant
projects taking place over a period of time"). Contributing to those impacts, the Project's
effects are significant when analyzed cumulatively. The Addendum inappropriately
disregards this reasoning, and fails to address the CEQA mandate to consider
cumulative impacts significant. CEQA Guideline § 15065(a)(3).
"It is vitally important that an EIR avoid minimizing the cumulative impacts. Rather, it
must reflect a conscientious effort to provide public agencies and the general public with
adequate and relevant detailed information about them." [Citation] A cumulative impact
analysis which understates information concerning the severity and significance of
cumulative impacts impedes meaningful public discussion and skews the
decisionmaker's perspective concerning the environmental consequences of the project,
the necessity for mitigation measures, and the appropriateness of project approval.
18
Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d. 421, 431
(quoting San Franciscans For Reasonable Growth v. City and County of San Francisco
(1984) 151 Cal.App.3d 61, 80).
RESPONSE 8:
The FEIR assumed that construction of offsite water delivery facilities would take place
within an approximately 30-foot easement area. Flow control facilities (FCF's) are within
the scope of the offsite water delivery facilities that were described in the FEIR in that
they are necessary connection points from existing pipelines to proposed pipelines.
These facilities manage the pressure from one system to another to ensure safety in the
overall systems. Moreover, and the construction footprint for these facilities would be
within the scope of what was described in the FEIR as the required construction
easement area.
The proposed flow control facilities would be located within or adjacent to existing
roadways, most of which are major roadway arterials. The facilities would be relatively
small in scale (covering a maximum area of 1,350 square feet, not 14,850 square feet as
noted in the comment), and the construction requirements would be similar to those
identified for the pipelines. FCF's are appurtenant to the pipelines, and serve as
connection points from existing water pipelines to the new pipelines. Only two FCF
facilities are new in the overall system. The FCF's shown in the area of Shadowridge
Drive have always been contemplated to connect the desalination system to the
Carlsbad and Oceanside municipal water systems as discussed in the FEIR. The FCF
facility contemplated at Business Park Drive is located in an industrial area with no
residences in close proximity. Therefore no aesthetic impacts would occur from FCF
construction. Similarly the FCF location in the City of San Marcos is not located in a
residential area as asserted by the commenter. The FCF facility at Pawnee is
surrounded on three sides by commercial/industrial buildings and on the fourth side by
Rancho Santa Fe Drive, a major arterial roadway. The area is characterized by industrial
buildings, an existing FCF facility for the Vallecitos Water District, and a quick oil
change. Therefore, construction of the flow control facilities are within the scope of the
construction-related visual impacts described in the FEIR, and construction of the FCF's
would not substantially degrade the existing visual character or quality of the site and its
surroundings, because the areas of new FCF construction are primarily in industrial
areas.
Revisions in the pipeline route are within areas of similar land uses as were identified in
the FEIR, and these new alignment areas therefore have similar sensitive receptors,
such as residential areas, including the area south of Linda Vista Dr, Los Flores Dr, and
9th St in San Marcos. Therefore, the temporary construction impacts on visual
19
resources within residential areas identified in the FEIR are similar to those anticipated
in the area south of Linda Vista Dr, Los Flores Dr, and 9th St in San Marcos. No new
impacts or increased severity of previously identified impacts would occur based on the
changes in pipeline alignments.
The comment again attempts to confuse facts by implying that construction in a given
location would last for over a year. It is preposterous to think that it would take over a
year to dig trenching and install pre-constructed pipeline or flow control facilities in a
single location. In fact, as stated in the FEIR, pipeline construction would move at a
pace of approximately 75 feet per day, meaning that construction in any continuously
visible location would only last several days.
The comment acknowledges that the visible Project features have decreased, which is
consistent with the analysis and conclusions in the Addendum. More importantly
however, the Addendum includes detailed visual simulations from the same locations
that were used to show the Project's visual impacts in the FEIR, as can be seen in
comparing Figures 2 and 3 from the Addendum with Figures 4.1-3 and 4.1-5 of the
FEIR. Therefore, the Addendum provides the viewer with a precise comparison of the
previously proposed and newly proposed visual impacts of the desalination plant,
allowing independent interpretation of the changes by the viewer.
The Addendum did not "simply labelf ] the Project's incremental effects as not
cumulatively considerable". The Addendum points to the fact that the proposed Project
is situated and designed such that its visual effects are minimal, and in comparison with
the other cumulative projects would not be noticeable in the overall viewshed of the
cumulative projects. The proposed Project would replace an oil storage tank that is 42
feet tall, with a structure that is lower in height, attractively designed to blend in with
surrounding topography and development, and largely shielded from public views by
existing berms.vegetation, and distance to public viewpoints, such as Carlsbad
Boulevard. By comparison, the proposed CECP is comprised of numerous buildings
and facilities across a 23 acre site that would have the appearance of a heavy industrial
use, with stacks rising 140 feet in the air and immediately adjacent to the Interstate 5
freeway. In the context of the visual impacts of the proposed CECP, the proposed
Project's impacts are negligible, and are therefore not cumulatively considerable. (Note:
Recent information provided by Poseidon Resources indicates the oil tank to be
replaced is 42 feet high, not 38 feet high as reported in the August 19, 2009, Planning
Commission staff report on the proposed Project; by comparison, the Project has a
maximum height of 35 feet with parapets extending to 40 feet.)
20
COMMENTS:
Air Quality: The air quality analysis in the Addendum suffers from the same flaws as the
aesthetics analysis. The City again addresses impacts through generalities and does not
fully explain or consider impacts resulting from individual changes proposed or other
changes occurring since FEIR certification. For example, the City claims the reduction in
pipeline length and earthwork will correspond to reduction in air emissions. However, the
City fails to analyze the specific air quality impacts in San Marcos and Vista from
pipeline construction. A decrease in the total amount of construction does not
necessarily equate to decrease in impacts. The air quality impacts to sensitive receptors
in residential neighborhoods surrounding much of the new pipeline routes in San
Marcos, Vista, and southern portions of Melrose Drive have not been discussed in the
FEIR or Addendum. Moreover, the air quality impacts analysis in the FEIR concerns
ambient air quality from 2001 to 2003. FEIR, p. 4.2-6. The City has not addressed
degradation of air quality since 2003 or since FEIR certification. Such air quality
information is easily obtainable from the California Air Resources Board.
For one constituent in particular, the air quality impacts to sensitive receptors will be
particularly significant. CEQA Guidelines, Appendix G. The FEIR concluded during
construction the "project's construction emissions are above the significance threshold
for A/Ox; however, construction would be temporary and would not have a long-term
impact." FEIR, p. 4.2-20. The FEIR also revealed, "NO2 is a respiratory irritant and may
affect those with existing respiratory illness, including asthma. NO2 can also increase
the risk of respiratory illness." FEIR, p. 4.2-2. Sensitive receptors, including children,
people with respiratory illness, and elderly individuals, most certainly will be exposed to
NO2 during pipeline and FCF construction in residential neighborhoods. Pipeline
construction is estimated to take 16 months, belying the notion that NO2 impacts will be
"temporary" and not significant. FEIR, p. 4.2-20. These impacts must be thoroughly
analyzed before they can be considered insignificant. Cumulative air quality impacts are
also given little attention in the Addendum, but require full analysis. Addendum, p. 41-42;
Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692. Project and
pipeline construction impacts will not be short in duration, and will now occur
simultaneously with CECP construction, exacerbating any air quality impacts. 13 Id.
Further, the FEIR proposed no mitigation measures for cumulative impacts to PM10 and
ozone (for which the San Diego air basin is non-attainment) and A/Ox and ROC (ozone
precursors). FEIR, p. 5-9. However, a reduction in energy consumption is a feasible
alternative, as it will reduce indirect emissions from energy production. FEIR, p. 5-9. Use
of renewable energy is also a feasible mitigation measure not analyzed.
21
The FEIR's consideration of indirect emissions resulting from energy use during Project
operations is also no longer applicable or accurate. FEIR, p. 4.2-19. The water districts,
including Carlsbad Municipal Water District (CMWD), purchasing Project desalinated
water have shown no intention to give up their imported water supplies in exchange for
desalinated water. In fact, the CMWD approved a water delivery scheme wherein only
80 percent of the City's water supply would offset with Project water, with the remaining
20 percent provided by the San Diego County Water Authority (SDCWA). Carlsbad
Municipal Water District, Resolution No. 1372, adopted August 18, 2009. Moreover, the
proposed delivery pipeline changes remove connection to Oceanside and divert water
directly to the SDCWA distribution system, where it may be used to augment current
supplies. (Addendum, p. 9). Therefore, the Project's indirect emission contribution must
be recalculated without accounting for "net increase in power consumption" and rather
calculate total emissions from energy requirements. FEIR, p. 4.2-19; 4.2-20, Table 4.2-9.
The FEIR indirect emissions for energy consumption were also based on the assumption
that the Project would receive electricity from EPS. Appendix D, p. 29. However, the EPS
will re-power and the Project will likely receive energy from a mix of SDG&E electricity.
Indeed, the Project's Green House Gas (GHG) emissions were calculated based on
SDG&E electricity production, not EPS. Poseidon's Energy Minimization and
Greenhouse Gas Reduction Plan14; California Coastal Commission Final Adopted
Findings, August 6, 2008, p. 82-83 (Poseidon based energy calculations on use of
246,156 megawatt-hours per year from SDG&E and "intends to buy all of its energy from
SDG&E system power..."). Because SDG&E obtains energy from a variety of sources,
including coal and natural gas plants which have higher emission rates than other
sources. Id. at 84. Thus, indirect emissions from power generation must be recalculated
based on new information revealed since FEIR certification, and changed circumstances
surrounding the Project. CEQA Guideline § 15162. Importantly, the FEIR found none of
the Project's direct or indirect air quality impacts significant, and therefore did not require
any mitigation measures. FEIR, p. 4.2-21. Any impacts that are now significant will
therefore not be mitigated.
RESPONSE 9:
Information used in response to this comment is derived from an expert analysis of the
issues raised in the comment by Dr. Valorie Thompson, with Scientific Resources
Associates. A memorandum summarizing Dr. Thompson's review is attached to these
responses.
The City's position that a reduction in pipeline length and earthwork will correspond to a
decrease in air impacts is correct and is based in fact. Emissions from earthwork
operations are directly related to the amount of earthwork that is required for
construction. If excavation decreases, the amount of fugitive dust (PM10) generated will
22
decrease proportionately. Likewise, if mileage decreases, the amount of miles traveled
by truck and the time required for use of equipment decrease proportionately.
The comment states that "the City has not addressed degradation of air quality since
2003 or since FEIR certification." In fact, air quality in the San Diego region has shown
improvement since 2003 overall. As of July 28, 2003, the San Diego Air Basin (SDAB)
was redesignated as an attainment area for the one-hour National Ambient Air Quality
Standards (NAAQS) for ozone. Upon implementation of the new 8-hour NAAQS for
ozone, the SDAB was designated as a "basic" nonattainment area, indicating that its
nonattainment classification is just below "attainment". This is an improvement from the
region's previous designation as a serious nonattainment area for ozone. The region's
attainment status for other pollutants has not changed since 2003; the region is still
classified as a nonattainment area for the state PM10 standard, but an attainment area
for all other pollutants for the state and federal standards.
The significance of impacts associated with construction is evaluated versus quantitative
emission thresholds. These thresholds do not change based on the location of the
construction; therefore, the FEIR correctly identified emissions from construction as
being above the thresholds. The FEIR also correctly identified that these emissions
would be temporary and would not result in long-term degradation of the ambient air
quality. It is also important to note that during construction of linear facilities such as
pipelines, construction activities and associated emissions are moving along the length
of the pipeline; thus the duration of construction in any one location would be short-term
and temporary.
The calculations of construction emission in the FEIR were based on emission factors
from the South Coast Air Quality Management District CEQA Handbook for heavy
equipment, and EMFAC emission factors for the year 2005 from the Air Resources
Board (ARB) Emission Factors Model (EMFAC) for vehicles and truck traffic. Since the
emission estimates were prepared, the ARB has implemented additional requirements
for heavy construction equipment and vehicles to meet increasingly stringent emission
standards. Title 13, article 4.8, Chapter 9, Section 2449 outlines the in-use off-road
equipment requirements to reduce PM10 and Nitrogen oxides (NOx) emissions; has
established emission thresholds designed to meet EPA Tier 4 emission limitations for
NOx and PMiofrom new off-road equipment in Title 13, Article 4.8, Chapter 9, Sections
2410 through 2425. Furthermore, the ARB has implemented its 5-minute idling rule
which restricts vehicles from idling longer than five minutes under Title 13, Article 4.8,
Chapter 9, Section 2485, and continues to regulate and adopt increasingly stringent
emission standards for on-road vehicles. Thus the emissions associated with
construction of the Project would be lower than evaluated in the FEIR, not higher.
23
The comment indicates that indirect emissions, including emissions of GHGs, would be
higher than estimated in the FEIR. Indirect emissions were calculated based on average
emission factors for California and/or using the U.S. EPA's AP-42 document. Both of
these sources of emission factors are not based on a specific power generation facility,
but provide estimates of emissions on average from combustion sources. GHG
emissions are also calculated based on California state-wide emission factors, taking
into account the general mix of power generation sources within the state. Thus the
emissions associated with energy consumption in the FEIR were not underestimated;
the comment does not introduce any new information that would warrant recalculation of
the indirect emissions associated with energy consumption.
COMMENT 10:
Green House Gas Emissions: The Addendum provides considerable detail on global
warming and Poseidon's requirement of net carbon neutrality through implementation of
the Energy Minimization and Greenhouse Gas Reduction Plan (GHG Plan). Addendum,
p. 14-18. However, the City does not address substantial operational changes to the
Project since FEIR certification that will result in increased GHG emissions through
energy use. Poseidon will now be responsible for pumping 304 MGD of seawater and
the associated energy demand. Importantly, only one-third of the 304 million gallons is
needed in the reverse osmosis process, while the remaining 200 million gallons are
needed to provide the required dilution for the brine discharge. The FEIR considered a
Project that only diverted 104 MGD, relying on EPS to pump the remaining 200 MGD.
The FEIR's technical analysis did not consider zero flow through EPS: "Seawater flow
through the EPS rarely stops completely (and if it did the desalination plant could not
operate), however, periods of minimal flow do occur." The Project will also no longer
have a continuous source of heated water. Poseidon's original energy calculations were
based on the expectation that they would be receiving warm water from the power plant
after it had cooled the generators. An industry rule of thumb energy demand calculation
holds that for every one degree centigrade decrease in water temperature there is an
accompanying three percent increase in energy demand. Notably, the FEIR did not
contain any discussion of GHG emissions or global warming. The City is therefore now
required to analyze the Project's energy use and resulting GHG emissions, to ensure the
Project's impacts are mitigated to a less than significant level. Pub. Res. Code §21002.
Moreover, the mandatory finding of significance dictated by CEQA Guideline 15065(a)(3)
for cumulatively considerable impacts also requires a thorough analysis to identify these
effects "in depth" and "make detailed findings on the feasibility of alternatives or
mitigation measures." 14 CCR 15065(c)(1) and (2).
24
7"/?e Addendum's claim that "net zero" impact on GHG emissions would not result in any
new significant effects is unsubstantiated. Addendum, p. 18. The "net zero" requirement
imposed by other agencies will still result in emissions of approximately 60,000 metric
tons of CO2 annually. The City provides no explanation of why this is not significant. The
City's assertion that Project water is replacement water is unsupported. Addendum, p.
18. The SDCWA and member agencies have not agreed to forego their imported water
allotments in exchange for product water. Moreover, the City cannot point to which water
sources would be displaced if the Project water did truly displace other sources.
Colorado River sources do not require as much energy as State Water Project sources.
Further, displaced State Water Project water will still travel to neighboring cities in the
region, or neighboring counties. Even assuming 100 percent of the Project water
displaces an equal amount of State Water Project water from being delivered to San
Diego, the State Water Project water will not simply remain in the Sacramento-San
Joaquin Delta, never to be distributed.
The Project's contribution of almost 100,000 metric tons of CO2 to the atmosphere is
substantial and cumulatively significant. GHG Plan, p.6. The City must analyze this
significant impact and detail possible alternatives and mitigation measures in a SEIR.
RESPONSE 10:
There are no "substantial operational changes to the Project since FEIR certification"
affecting the Project's energy requirements calculations.
The applicant's Energy Minimization and Greenhouse Gas Reduction Plan (GHG Plan)
(August 2008), provides the most recent calculation of GHG emissions, in accordance
with the CCC's "Draft Emissions Template". The analysis is based on a "stand-alone"
operation of the desalination plant, where all of the energy required for intake of 304
MGD of source water is attributable to the proposed Project, without reliance on EPS
pumping. The GHG Plan calculated the average daily energy use for the Project in
stand-alone conditions to be 31.32 MWh in the Project's "baseline" design, and 28.08
MWh in the "high efficiency design". The FEIR described the Project's daily energy use
to be 36.05MWh for full production of 50 MGD of product water. Therefore, under either
the baseline or high efficiency operating scenario, the energy consumption of the
Project, including all energy required for intake of 304 MGD of source water, would be
within the parameters of what was analyzed for energy use in the FEIR.
The comment states that "Poseidon's original energy calculations were based on the
expectation that they would be receiving warm water from the power plant". The
temperature of the source water is irrelevant to energy needs calculations for the
Project, because the Project does not require or propose to heat the intake water in the
25
absence of a heated discharge from the EPS. Therefore, any potential changes in the
thermal characteristics of the source water that may be affected by potential changes in
EPS operations, does not represent new information of substantial importance.
As discussed in the Addendum, the Final EIR contains a complete analysis of the
Project's impact on air emissions, including emissions that contribute to greenhouse
gases. That analysis also considers and quantifies indirect emissions from energy
consumption. Therefore, GHG emissions, including CO2 emissions, were analyzed and
disclosed in the FEIR, and the impacts were found to be less than significant. There has
been no change in the Project, or with respect to the circumstances under which the
Project will be undertaken, that changes any of the analysis or conclusions of the FEIR.
There have been no changes in circumstances regarding the existing or proposed
disposition of imported water by the County Water Authority or any other local water
agency since the time that the FEIR was certified. Moreover, the statement that "(e)ven
assuming 100 percent of the Project water displaces an equal amount of State Water
Project water from being delivered to San Diego, the State Water Project water will not
simply remain in the Sacramento-San Joaquin Delta, never to be distributed" is an
assertion that is not supported by fact. As indicated in the FEIR, the disposition of
imported water that would be displaced by the new water supply is unknown. However,
the Project would replace some imported water as a local supply source, and would
eliminate the need for some imported water to be pumped to the region.
COMMENT 11:
Substantial Changes will Result in Significant Marine Life Impacts: The City's
finding of no significant impacts to the marine environment is absurd in light of the
expansive data brought to light since FEIR certification. Addendum, p. 19-20. The
Regional Board, State Lands Commission (SLC), and California Coastal Commission
(CCC) have all found the Project's entrainment and impingement impacts significant.
The City and the applicant mischaracterize mitigation measures imposed by other
agencies as voluntary, a product of statutory schemes, or over-zealousness. However,
the validity of the data underlying the imposition of mitigation measures cannot be so
easily dismissed. In addition to the various significant environmental impacts detailed
extensively above, these significant marine life impacts warrant production of a SEIR.
Any of the SEIR triggers apply to the substantial changes to and surrounding the Project
since FEIR certification. CEQA Guideline § 15162. The City's assertion to the contrary is
an abuse of discretion and an affront to common sense.
26
RESPONSE 11:
The Regional Board, the SLC and the CCC have all relied upon the Project's FEIR to
satisfy the requirements of CEQA in taking their actions on the Project, and have found
the FEIR to be adequate. None of these permitting agencies has prepared any new,
subsequent or supplemental CEQA documentation, and therefore no new impacts or
mitigation measures have been identified by these agencies under CEQA. Judge Judith
Hayes of the San Diego Superior Court recognized this fact in Surfrider Foundation et al.
v. State Lands Commission (San Diego Superior Court Case No. 37-2008-00092607-
CU-WM-CTL), stating in the Tentative Decision that, "The Regional Board, Coastal
Commission and State Lands approvals each recognized the FEIR's determination that
the Project would not have significant marine life impacts under CEQA."
Moreover, the data used to evaluate the Project and determine mitigation requirements
under the other laws and regulations applicable by these agencies (e.g. intake flow data,
data on entrained organisms, and data on the proportion of entrained organisms to
ambient populations) is the same data used in the FEIR analysis.
COMMENT 12:
Project and EPS Operational Characteristics Have Changed Since FEIR Certification: As
highlighted above, since FEIR certification, it has become clear the Project will operate
in one of four modes: 1) Co-location when EPS is discharging sufficient volumes for
Project operation (EPS discharging 304 MGD); or 2) Co-location for Project benefit when
EPS is temporarily shut down (EPS discharging 0 MGD); or 3) Co-location for Project
benefit when EPS is operating, but its discharge volume is not sufficient to meet the
Project's intake requirements (EPS is discharging > 304 MGD); or 4) Stand-alone
operation when EPS shuts down. Order No. R9-2009-0038, p.2. On the other hand, the
FEIR merely considered Project impacts compared to EPS historical baseline
operations. FEIR, p. 4.3-36. A "historical extreme" was used as a proxy for evaluating
standalone marine life impacts. Addendum, p.19. But the EPS historical operation
scenario does not accurately describe or analyze all four of the possible operating
scenarios because EPS will not operate as historically predicted at the time of FEIR
certification.
The desalination plant feedwater intake will not increase the volume, nor the velocity of
the EPS cooling water intake nor will it increase the number of organisms entrained or
impinged by the EPS cooling water intake structure. Therefore, the project would not
result in any additional impingement effects of the EPS and therefore, impingement
27
effects are not considered as significant impacts attributable to desalination plant
operations. FEIR, p. 4.3-36.
The Project before the City now, or the "activity which is being approved," has changed.
CEQA Guideline § 15378(c). The Project must now ensure at least 304 MGD flows
through the EPS discharge channel, as the Project's NPDES permit from the Regional
Board requires at least 304 MGD of discharge from EPS for brine dilution. Order No. R9-
2009-0038, p. 1. Various other operational restrictions and requirements have been
imposed by the Regional Board, as well as other agencies. The FEIR does not address
these changes. First, in 2006, the City approved a Project to withdraw 104 MGD of
seawater for production of 50 MGD of potable water (and appurtenant facilities and
pipelines). 19 FEIR CEQA Findings of Fact and Statement of Overriding Considerations,
p.2. The Project, the "whole of an action", now involves the applicant either negotiating
with EPS to consistently pump 304 MGD, or operating the EPS pumps itself. See
Section l.b. above. This is a departure from the Project approved in 2006.
Baseline operating conditions at the time of FEIR certification were considered EPS
"historical operating conditions", or 576 MGD intake. FEIR, p.3-15. The FEIR concluded
entrainment and impingement impacts were not significant, as the normal operating
condition of 104 MGD, and even the historical extreme, would represent a reduction in
flows from baseline. Addendum, p. 20; FEIR, p. 4.3-36. For purposes of determining
whether a SEIR is needed, the physical change is measured against the previously
approved Project. Arguably Poseidon has not vested any of its permits or rights, as
Poseidon has not received any permits, nor has construction begun. Benton v. Board of
Supervisors (1991) 226 Cal.App.3d 1467, 1477 ("In our case, the actual physical
environment includes that which [the applicant] has a legal right to build under permits
which have already been issued and on which construction has already begun.").
However, even assuming the baseline condition for CEQA purposes is the approved
2006 Project, Poseidon could only have vested a right to draw in 104 MGD from EPS
discharge.
In contrast, the Project changes since certification now require Poseidon to draw in 304
MGD. Whether Poseidon is physically operating the pumps or has arranged with EPS to
draw in 304 for the Project's benefit, this scenario is a physical change to the
environment resulting from the changed Project. If the Project is operating as the driver
of intake flows, and/or decouples intake from EPS condensers, it will be responsible for
all impacts associated with such operations. This resulting change (200 additional MGD
attributable to the Project) will have significant environmental impacts, which require
preparation of a SEIR.
28
RESPONSE 12:
See response 2. The comment again misstates facts by saying that "the FEIR merely
considered Project impacts compared to EPS historical baseline operations". The FEIR
did not limit its impact analysis to baseline conditions, but also included a stand-alone
analysis, based on a scenario where the desalination plant would operate independently
from the EPS.
The comment references the Regional Board NPDES permit, and its requirements for
304 MGD of flow, but fails to acknowledge the fact that the Regional Board explicitly
states that the permits for the desalination plant do not include a permit to withdraw
seawater independently from the EPS. The Regional Board Staff Report (included as
Attachment 9 to the CLG comment letter) states that "additional evaluation of CDP's
operations for compliance with CWC section 13142.5(b) will be necessary if EPS ceases
power generation operations and Poseidon proposes, through a new Report of Waste
Discharge, to independently operate EPS's seawater intake and outfall for the benefit of
the CDP ("stand-alone operation"). Page 2. (emphasis added)
Moreover, similar to the Regional Board's requirements, the City of Carlsbad has made it
clear that in the event that the EPS were to shut down permanently, additional
environmental review and approvals would be required. See specifically condition 7 of
Planning Commission Resolution 6635.
COMMENT 13:
Subsequent Agency Action Identified Significant Environmental Impacts: The
Addendum itself belies the City's contention, and the FEIR's conclusion, that the Project
will not cause significant marine life impacts. Id. All agencies listed above required 55.4
acres of wetland mitigation to offset the Project's entrainment impacts. See Comment
Letter from CCC Executive Director to Regional Board, May 6, 2009. 21 The City
characterizes these "restoration" measures as support for the FEIR finding of no
significant impact. Addendum, p. 20. However, the FEIR was incorrect in finding no
significant impact. Since certification, three separate agencies have verified that marine
life impacts are significant. These determinations were based upon an empirical
transport model and area of habitat production foregone (AHPF) calculation of 42.5
acres, first brought to light after FEIR certification. PRO §21166. The AHPF calculation
triggers a mandatory finding of significance. CEQA Guideline § 15065. Poseidon
Revised Flow, Entrainment and Impingement Minimization Plan, June 1, 2007, p. 4. The
very definition of entrainment implicates marine life sustainability concerns. CCC Final
29
Adopted Findings, August 6, 2008, p. 40-41 (entrainment defined as: occurring "when
small organisms, such as plankton, fish eggs, larvae, etc., are pulled into an open water
intake"). Poseidon's first calculations presented to the Regional Board in June 2007
provided an AHPF estimate of 36.8 acres. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, June 1, 2007, p. 4; CCC Final Adopted Findings,
August 6, 2008, p. 40-41. A CCC expert found additional impact to ocean species, for a
total AHPF of 42.5 acres, at a 50 percent confidence level. CCC Final Adopted Findings
for MLMP approval, December 10, 2008, p. 13-16.23 Since certification of the FEIR, all
three of the above-named agencies have required some variation of the Marine Life
Mitigation Plan (MLMP), requiring 55.4 acres of wetland creation or restoration.
Addendum, p. 20.
RESPONSE 13:
The comment misstates facts by saying that "A CCC expert found additional impact to
ocean species, for a total AHPF of 42.5 acres, at a 50 percent confidence level." In fact,
as shown in the CCC Dec 2008 findings which are included as Attachment 1 to the
Coast Law Group comment letter, the expert retained by the CCC confirmed Poseidon's
calculation of APF of 37 acres, based on a 50 percent confidence level (APF is area
production foregone, interchangeable with AHPF):
"Poseidon concluded that the entrainment caused by 302 MGD of water
withdrawal by the desalination facility would result in an APF of 37 acres in Agua
Hedionda Lagoon. Dr. Raimondi's review revealed that Poseidon's APF
calculation was accurate, albeit at the 50% confidence level." (CCC Findings,
Section 4.2.2, December 2008)
Therefore, the CCC and their experts agreed with the assessment of impacts that was
consistent with the analysis in the FEIR. The CCC Findings further indicate that the CCC
chose to apply a different methodology in calculating mitigation for those impacts, and
concludes that the actual mitigation acreage would decrease as a result:
"Past entrainment studies have generally used the 50% confidence level APF as
the basis for mitigation and applied a mitigation ratio (e.g., 1:1, 2:1, 3:1, etc.) ...
For this review, however, Dr. Raimondi provided an alternative approach to
determine the amount of mitigation needed". "Dr. Raimondi's proposal, as
supported by the SAP [Scientific Advisory Panel] and Commission staff, would
actually result in less mitigation acreage than that standard mitigation approach,
but it would have higher certainty of success." (CCC Findings, Section 4.2.2,
December 2008) (emphasis added)
30
COMMENT 14:
New Information Reveals Significant Environmental Impacts: CCC Final Adopted
Findings for MLMP approval, December 10, 2008, p.13-16. at p. 15 (APF is area
production foregone, interchangeable with AHPF). As indicated in the CCC table above,
the three agencies have relied upon a 50 percent confidence level in the calculation of
AHPF in imposing mitigation. The AHPF calculation inherently involves agency
discretion as it requires the agency to choose a level of confidence in the underlying
data assumptions. As the lead agency, the City has not previously seen or evaluated the
AHPF methodology used to calculate the 55.4 acres of wetland mitigation. Now, three
years after FEIR certification, the City has before it new, relevant data that requires
analysis pursuant to CEQA. PRO § 21166; CEQA Guideline § 15162. Not only is such
analysis required because of its mandatory significance, but also because the City and
applicant themselves admit no previous agency has reviewed such data pursuant to
CEQA. Response to August 19, 2009 Letter on Desalination Project Changes, Scott
Donnell, p. 3 ("None of the permitting agencies has prepared any new, subsequent or
supplemental CEQA documentation, and therefore no new impacts or mitigation
measures have been identified under CEQA"), p.4 ("None of the conditions or other
requirements placed on permits issued by other agencies pursuant to laws, ordinances,
regulations, or policies other than CEQA require analysis under CEQA."); see also,
Addendum, p. 21. The City's contends a SEIR is not required because the CCC and
Regional Board relied on the same entrainment data relied upon in the FEIR.
Addendum, p. 21.
The APF methodology does not demonstrate any change in the number of marine
organisms that will be entrained or otherwise affected by the Project during stand-alone
operations, and therefore does not constitute "new information" triggering preparation of
a supplemental EIR. Addendum, p. 21. Though the EPS impingement and entrainment
sampling relied upon in the FEIR was conducted in 2004-2005, the impingement and
entrainment impacts constitute new information because such information was not
known and could not have been known with the exercise of reasonable diligence.25
CEQA Guideline § 15162(a)(3). "As a result of an accumulation of information from
various sources over a period of time [other agencies] became concerned with the
possibility of a substantially higher risk...". Security Environmental Systems, Inc. v.
South Coast Air Quality Management Dist. (1991) 229 Cal.App.3d 110, 124 ("Security
Environmental Systems").
Since the original [FEIR] was based upon assumptions and not hard data, the
new assumptions raise substantial concern as to the validity of the original data,
31
and strongly suggest the need for a reconciliation of adverse assumptions and a
full and complete investigation and disclosure of all [impacts].
Id. Similar to Security Environmental Systems, the FEIR's conclusions regarding the
significance of marine life impacts were based on the assumption that EPS would
continue to operate as it had historically. FEIR Additional Response to Comments, June
13, 2006, p.1. Several other underlying assumptions regarding co-located operations
have proven false. Entrainment impacts cannot be minimized because the "most
frequently entrained species are very abundant in the area of EPS intake." Addendum,
p. 19. The City's reliance on the department of Fish and Game Nearshore Fishery
Management Plan (2002), and the idea of surplus larvae production is no longer a valid
entrainment analysis tool. FEIR Additional Response to Comments, June 13, 2006, p. 20.
The CCC, the Regional Board, the SLC, and various other entities have since realized
entrainment and impingement individually and cumulatively cause significant
environmental impacts.
Moreover, the Project's impingement impacts have not been accurately characterized or
analyzed. The Addendum and FEIR both fall short. The EIR concluded the Project would
not cause any additional impingement losses because it will not require an increase in
the quantity or velocity of water withdrawn relative to the Encina Power Station. (EIR at
4.3-35.) Under the No Power Plant Operation scenario, approach velocity of the water
flowing through the EPS intake would not exceed 0.5 feet per second. Therefore, the
[Project] will not cause any additional impingement losses to the marine organisms
impinged by the EPS, under the assumed baseline EPS operating conditions, and would
not result in significant impingement effects under the No Power Plant Operation
scenario. (EIR at 4.3-36) Addendum, p. 20. The co-located scenario where EPS is not
drawing in 304 MGD, or is temporarily shut down is not addressed by the explanation
above. If EPS draws 304 MGD (or some fraction thereof) for the Project, approach
velocity will exceed .5 feet per second (fps). See Comment Letter from CCC Executive
Director to Regional Board, May 6, 2009.
Poseidon has also recently admitted a calculation error in its impingement data. See
Latham & Watkins Letter to CCC Executive Director, September 3, 2009, p. 1. Poseidon
"voluntarily" offered 11 additional acres in mitigation to the CCC as a result of this math
error. Id. at 1-2. Although the letter mischaracterizes the Regional Board's impingement
analysis, it nonetheless acknowledges a calculation error. The Regional Board found
impacts of no less than 4.7 kg/day and up to 7.16 kg/day. Estimation Of The Potential
For Impingement Should The CDP Operate In Stand-Alone Mode, March 9, 2009, p.
13.27 The calculation error and Poseidon's exclusion of two data points (not made
known to the public during FEIR review) required new calculations of the impingement
32
impacts at the Regional Board. The inclusion of heat treatment impingement impacts
was also newly considered by the Regional Board. Regional Board Staff Report, March
27, 2009, p. 11-13.
RESPONSE 14:
See Responses to Comments 12 and 13.
The commenter's contention that the Project's potential impingement impacts have not
been accurately characterized or analyzed is false.
When the EPS is operating, the Project will not cause the EPS to increase the quantity
of water withdrawn or increase the velocity of water withdrawn, and thus would not
cause any increase in impingement under co-located operations. Further, the FEIR
concluded that the Project would not result in significant impingement impacts under the
No Power Plant Operation scenario because the approach velocity of water flowing
through the EPS intake would not exceed 0.5 feet per second. (FEIR Additional
Responses, page 11.)
Similarly, the Coastal Commission concluded in its findings in support of the Project's
Coastal Development Permit that "The flow rate of the water in the intake bays, is
expected to be at or below 0.5 fps; therefore, the death of healthy sea turtles after
entering these areas is highly unlikely . . . Poseidon has documented that stand-alone
operation of the facility would result in intake water velocities at or below 0.5 feet per
second, which is consistent with U.S. EPA guidance for 'best available technology' for
cooling water intakes."
The FEIR's conclusion that the Project will not cause significant impacts from
impingement operating with or without the EPS is supported by substantial evidence.
The commenter's claim that Poseidon has "recently" admitted a calculation error
regarding its impingement calculations is false. Poseidon's position since an April 30,
2008 submission to the Regional Board (nearly 1.5 years ago) is that the forecasted
impingement effects for stand-alone operations will be 1.56 kg/day (3.43 pounds per
day), or less. This figure was included in Dr. David Mayer's April 2008 expert report.
While this value is slightly more than 2.12 pounds per day estimate of impingement that
the Coastal Commission cited in its findings in support of the Project's Coastal
Development Permit, it is still less than daily diet of one adult brown Pelican. There
simply has been no "recently" identified increase in forecasted impingement.
The Regional Board imposed mitigation based on an estimated impingement effect of
4.7 kg/day, or 1,715.5 kg/year, which the Regional Board and its staff determined "is a
33
reasonable, conservative, estimate of impingement." (RWQCB Order R9-2009-0038,
fl45; RWQCB Responsiveness Summary Including Responses to Comments, Adopted
May 13, 2009, page 5.)
Although Poseidon believes that this value is very conservative, and that actual
impingement is likely to be much lower than 4.7 kg/day, Poseidon has agreed to meet a
productivity performance standard of 4.7 kg/day, and to monitor impingement at the
intake and fish productivity at the mitigation site(s) so that the standard may be adjusted
if necessary in order to ensure that impingement will be fully mitigated. As such, the
Board found it was unnecessary to resolve the disagreement between Poseidon and
staff regarding whether or not impingement is likely to be lower than 4.7 kg/day.
(RWQCB Responsiveness Summary Including Responses to Comments, Adopted May
13, 2009, page 5.) The Regional Board's approval of Order R9-2009-0038 is final and
effective, and the commenter's contention that "new calculations of the impingement
impacts" are required by the Regional Board is false and irrelevant to this proceeding.
Regarding "heat treatments", the Regional Board concluded that Poseidon "lacks control
over the use of heat treatment" under co-located operating scenarios, since heat
treatment frequency is a matter of industry standard that is unaffected by flow rates. The
Regional Board therefore found that the Project will not increase the use of heat
treatments during co-located operations. (RWQCB Responsiveness Summary Including
Responses to Comments, Adopted May 13, 2009, pages 55 and 111.) The Regional
Board declined to evaluate Poseidon's Proposal to replace heat treatments with plastic
scrubbing balls during stand-alone operations, because such proposals can be
implemented only upon permanent EPS shut down, a scenario not before the Regional
Board. (Id. at 35.) Such analysis will be undertaken when/if the Regional Board
considers stand-alone operations.
COMMENT 15:
The trigger for SEIR preparation has been met: Since FEIR certification new information
has come to light, and substantial changes in the Project and to circumstances of Project
operation have been made or proposed. CEQA Guideline § 15162(a)(1) and (2). Further,
many of the City's assumptions regarding Project operations, impacts, and significance
of impacts have proven false, requiring further analysis. The City must evaluate all
significant environmental impacts mentioned above, as well as any other Project
impacts, and available alternatives, avoidance and mitigation measures in a SEIR. Id.
For these reasons, and those stated above, the City's approval of the revised Project,
including revisions to necessary agreements, permits, and Addendum, would be
34
contrary to CEQA. Consequently, we urge the City to deny the requested Project
changes and require preparation of a SEIR.
RESPONSE 15:
See response to comment 1. The Addendum appropriately identified all Project
changes, changed circumstances, and new information and memorialized in detail the
City's reasoned conclusion that the revised Project does not create the conditions
requiring the preparation of a Subsequent or Supplemental EIR pursuant to State CEQA
Guidelines, sections 15162 and 15163.
35
LlNSCOTT
LAW &
GREENSPAN
September 21,2009
Mr. Joe Monaco
DUDEK & Associates, Inc.
605 Third Street
Encinitas, California 92024
LLG Reference: 3-09-1922
Subject: Carlsbad Desalination Plant Project
Encinitas, California
Dear Mr. Monaco:
Linscott, Law & Greenspan, Engineers (LLG) is a 43-year old firm, specializing in
transportation planning and traffic engineering. We have provided traffic engineering
consultation for numerous water delivery/pipeline projects. Our firm has been
requested to review the City's responses to comments from Coast Law Group dated
September 15,2009 regarding the CEQA Addendum for the proposed changes to the
Carlsbad Desalination Plant Project. The specific focus of our review has been on
Comment and Response No. 5, regarding temporary traffic impacts associated with
construction of offsite water delivery facilities. We understand that the City's Final
EIR addressed construction traffic for the proposed facilities based on an identified
pipeline route, and that the Addendum examined potential effects based on changes
in that route.
We have reviewed the City's Final EIR and Addendum, along with the City's
responses referenced above. We believe that the City's Addendum uses appropriate
and reasonable methodology in assessing potential traffic impacts from the proposed
changes in water delivery facilities, and appropriately references the performance-
based mitigation from the FEIR to ensure that the no new significant impacts would
result from changes in the pipeline alignments
I can be reached at 858.300.8800, should you have any questions.
m, Engineers
John BoarmanfP^E:
Principal
cc: File
N:\1922'corTe5ponden«*Moruco teller 092109.doc
engineers
Engineers & Planners
Traffic
Transportation
Parking
Linscott Law &
Greenspan, Engineers
4542 Ruffner Street
Suite 100
San Diego, CA 92111
858.300.8800 T
853.300.8810 f
www.IIgengineers.com
Pasadena
Costa Mesa
San Diego
Las Vegas
Philip M. LJnSCDtt, PE (1924-2000
Jack M. Greenspan, PE (Rei)
William A. Law, PE(Ret)
Paul W. Wilkinson, PE
John P. Keating, PE
David S. Shender, PE
JohnA-Boarman, PE
Clare M. Look-Jaeger, PE
Richard EBarretto,PE
KeilD.Maberry.PE
An LG2WB Company Founded IS€5
DUDEK
MAIN OFFICE
60S THIRD STREET
ENCINITAS. CALIFORNIA 92024
T 760.942.5147 T 800.450 1818 F760632.0I64
MEMORANDUM
September 21,2009 4062-01
To: Joe Monaco
From: Mike Komula, Acoustician
Subject' Carlsbad Desalination Plant CEQA Addendum, Response to Comments Related to Noise
The comment alleges that no analysis for pipeline routes in San Marcos was completed in the
Addendum.
This is not true. The Addendum addresses impacts related to construction noise within the
City of San Marcos. As noted in the Addendum, only the final stretch of new pipeline alignment
along Linda Vista to 9th Street is within an area of residential uses within the City of San Marcos.
The Addendum further points out that, as discussed in the FEIR, pipeline construction would
result in noise impacts on surrounding residences, and indicates that the same conditions would
be required; namely compliance with all appropriate noise regulations related to construction.
With these standard conditions applied to the newly proposed pipeline segments in the City of
San Marcos, no new significant impacts would result.
The comment alleges that construction impacts will not be short in duration, and that pipeline
construction is expected to take 16 months.
This statement attempts to blur facts contained in the FEIR. While the entire schedule for
construction would last for 16 months, construction activity in a given location affected by
construction noise would last only a few days, as clearly documented in the FEIR. The FEIR
states that the duration to complete any phase of the open trench phases of the project such as
trenching, backfilling, etc., will would typically proceed at a rate of approximately 75 feet per
day. Thus, the forward progression of construction activities would mean that the noise impact
may last for only two to three days at any one location. (FEIR Page 4.9-8)
WWW.DUDEK.COM
Joe Monaco
Subject: Carlsbad Desalination Plant CEQA Addendum, Response to Comments Related to
Noise
The comment states that noise impacts from nighttime construction have not been discussed,
and acknowledges that the FEIR points to the City ordinances limiting construction to daytime
hours in all relevant cities.
The EIR does in fact state the construction noise limitations contained in the various cities
municipal codes, all of which indicate limitations of construction to daytime hours, as noted in
the following excerpts from the FEIR:
The City of Carlsbad Municipal Code regulates construction noise by limiting the hours
of operation. Construction activities are allowed to occur Monday through Friday
between the hours of 7 a.m. to sunset; and on Saturdays from 8 a.m. to sunset,
excluding legal holidays. (FEIR Page 4.9-2)
The City of Vista regulates construction activity noise by limiting the hours of operation.
Whenever a construction site is within 1,000 feet of any residential, hotel, motel,
hospital or similar facility, grading activities shall be conducted between the hours of
7:00 a.m. and 5:00 p.m. Monday through Friday, and 8:00 a.m. to 4:00 p.m. on Saturday.
(FEIR Pages 4.9-2 and 3)
The City's (Oceanside) Grading Ordinance (Ordinance No. 81-20) states that grading
and equipment operations within 0.5-miles of a structure used for human occupancy can
only be conducted Monday through Friday between the hours of 7:00 a.m. to 6:00 p.m.
Further, the noise levels associated with any construction equipment should not exceed
85 dB at a distance of 100 feet (City of Oceanside 1974). (FEIR Page 4.9-4)
The City of San Marcos has similar limitations on construction noise. Section 10.24.020 of the
City's Municipal Code states that construction activities shall be restricted to between the
hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and on Saturdays between 8:00 a.m.
and 5:00 p.m. The City does not have a quantitative noise ordinance limiting sound levels from
construction equipment. The City requires that the equipment not violate occupational health
and safety standards and that it be in proper working condition.
_,,__,, 6273-01
D U D E K 2 September 2009
Joe Monaco
Subject: Carlsbad Desalination Plant CEQA Addendum, Response to Comments Related to
Noise
Regarding "waiving" of the City's construction noise restrictions, the City's Municipal Code at
Chapter 8.48.020 is the provision of the Code which addresses exceptions to the construction
noise restrictions, stating the following:
8.48.020 (2) The city manager may grant exceptions to Section 8.48.010 by issuing a permit in
the following circumstances:
(A) When emergency repairs are required to protect the health and safety of
any member of the community;
(B) In nonresidential zones, provided there are no inhabited dwellings within
one thousand feet of the building or structure being erected, demolished,
altered or repaired or the exterior boundaries of the site being graded or
excavated.
Therefore, the City cannot exempt the project "simply by labeling noise not 'disturbing,
excessive, or offensive'".
6273-01
D U D E K 3 September 2009
MEMORANDUM
September 22, 2009
T o: Joe Monaco, Dudek
From: Valorie Thompson, Scientific Resources Associates
R e: Responses to Comments, Carlsbad Desalination Plant CEQA Addendum
1. The City's position that a reduction in pipeline length and earthwork will correspond to a
decrease in air impacts is correct. Emissions from earthwork operations are directly related to the
amount of earthwork that is required for construction. If excavation decreases, the amount of
fugitive dust (PM10) generated will decrease proportionately. Likewise, if mileage decreases, the
amount of miles traveled by truck and the time required for use of equipment decrease
proportionately.
2. The letter states that "the City has not addressed degradation of air quality since 2003 or since
FEIR certification." In fact, air quality in the San Diego region has shown improvement since
2003 overall. As of July 28, 2003, the SDAB was redesignated as an Os attainment area for the
one-hour NAAQS for ozone. Upon implementation of the new 8-hour NAAQS for ozone, the
SDAB was designated as a "basic" nonattainment area, indicating that its nonattainment
classification is just below "attainment". This is an improvement from the region's previous
designation as a serious nonattainment area for ozone. The region's attainment status for other
pollutants has not changed since 2003; the region is still classified as a nonattainment area for the
state PM10 standard, but an attainment area for all other pollutants for the state and federal
standards.
3. The significance of impacts associated with construction are evaluated versus quantitative
emission thresholds. These thresholds do not change based on the location of the construction;
therefore, the FEIR correctly identified emissions from construction as being above the
thresholds. The FEIR also correctly identified that these emissions would be temporary and
would not result in long-term degradation of the ambient air quality. It is also important to note
that during construction of linear facilities such as pipelines, construction activities and associated
emissions are moving along the length of the pipeline; thus the duration of construction in any
one location would be short-term and temporary.
The calculations of construction emission in the FEIR were based on emission factors from the
SCAQMD CEQA Handbook for heavy equipment, and EMFAC emission factors for the year
2005 from the EMFAC model for vehicles and truck traffic. Since the emission estimates were
prepared, the ARE has implemented additional requirements for heavy construction equipment
and vehicles to meet increasingly stringent emission standards. Title 13, article 4.8, Chapter 9,
Section 2449 outlines the in-use off-road equipment requirements to reduce PM10 and NOx
emissions; has established emission thresholds designed to meet EPA Tier 4 emission limitations
for NOx and PM10 from new off-road equipment in Title 13, Article 4.8, Chapter 9, Sections
2410 through 2425. Furthermore, the ARB has implemented its 5-minute idling rule which
restricts vehicles from idling longer than five minutes under Title 13, Article 4.8, Chapter 9,
Section 2485, and continues to regulate and adopt increasingly stringent emission standards for
on-road vehicles. Thus the emissions associated with construction of the project would be lower
than evaluated in the FEIR, not higher.
4. The comment indicates that indirect emissions, including emissions of GHGs, would be higher
than estimated in the FEIR. Emissions were calculated based on average emission factors for
California and/or using the U.S. EPA's AP-42 document. Both of these sources of emission
factors are not based on a specific power generation facility, but provide estimates of emissions
on average from combustion sources. GHG emissions are also calculated based on California
state-wide emission factors, taking into account the general mix of power generation sources
within the state. Thus the emissions associated with energy consumption in the FEIR were not
underestimated; the comment does not introduce any new information that would warrant
recalculation of the indirect emissions associated with energy consumption.
cientifie Resources Associated
VALORIE L. THOMPSON, PH.D.
PRINCIPAL
Dr. Thompson has over twnety years of experience in environmental planning, air quality
studies, air toxics emission evaluations, health risk assessments, process safety
management, hazard and operability studies, off-site consequence analysis, and
atmospheric dispersion modeling and is the founder of Scientific Resources Associated.
She has managed numerous environmental planning, air quality, and risk assessment
projects, including preparation of the Application for Certification for a proposed new
natural gas-fired power plant, evaluation of risks associated with hazardous waste sites,
and assessment of air emissions and air toxics risks from manufacturing facilities, oil and
gas processing facilities, chlorine repackaging facilities, incineration projects, and
cogeneration facilities. Dr. Thompson has also assisted government clients in the
development of air emission inventories and compliance strategies for large military
bases. Additionally, she has conducted research in atmospheric dispersion and enhanced
oil recovery.
EDUCATION
Ph.D., Chemical Engineering, Purdue University, 1986
M.S., Chemical Engineering, Purdue University, 1982
B.S., Chemistry, Eastern Michigan University, 1980
PROFESSIONAL REGISTRATIONS/AFFILIATIONS
Young Professional Award, Woodward-Clyde Consultants, 1991
Air and Waste Management Association
American Institute of Chemical Engineers
Small Woman-Owned Business Enterprise/Disadvantaged Business Enterprise
Certification: Caltrans CT-030697
PROFESSIONAL EXPERIENCE
Air Permitting/Air Quality Impact Assessments
Air Permitting - Western Co-Gen, LLC. Dr. Thompson prepared fast-track permit
applications for two reciprocating engines to be located at the Wawona Frozen Foods
facilities in Fresno and Clovis, California. The projects included permit application
preparation, agency interface, and risk evaluations. The permits were obtained within
three weeks of submittal to the San Joaquin Valley Air Pollution Control District.
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 2
Air Quality Impact Assessment - Anheuser-Busch, Inc. Dr. Thompson prepared the
Air Quality Impact Assessment and Air Toxics Evaluation for a proposed 7.5 MW
turbine installation at the Anheuser-Busch facility in Fairfield, California. The
assessment was conducted in support of the Application for Authority to Construct with
the Bay Area Air Quality Management District.
Air Quality Impact Assessment - Johns Manville, Inc. Dr. Thompson assisted in the
preparation of the PSD Air Quality Impact Assessment for the Johns Manville
manufacturing facility located in northwestern Ohio. The project involved evaluating
over 100 sources and determining appropriate source groupings for the purpose of air
dispersion modeling. The project also included assisting in developing assumptions
regarding stack parameters and downwash calculations.
Air Quality Impact Assessment - Los Angeles Department of Water and Power. Dr.
Thompson prepared the Air Quality Impact Assessment for the proposed repowering of
the Haynes Generating Station in Long Beach, California. The project included
evaluating potential criteria pollutant and toxic air contaminant impacts associated with
the installation of two new combustion turbines, and the net air quality benefit of
decommissioning existing boilers. The project involved conducting analyses of various
proposed design configurations and stack heights to determine potential worst case
impacts for the Environmental Impact Report. The project also involved evaluating
various operational scenarios, including startup/shutdown and diesel readiness testing.
The analysis was prepared in accordance with South Coast Air Quality Management
District guidelines.
Air Permitting - Herndon Energy Center, Calpine Corporation. Dr. Thompson
prepared the air permit application for a proposed 49.5-MW power generation facility to
be located in Fresno, California. The project included conducting an air quality impact
assessment and toxics evaluation to demonstrate that the project would not have an
adverse impact on the ambient air quality. The project also involved negotiations with
the San Joaquin Valley Air Pollution Control District on BACT requirements and permit
conditions. The project obtained an air permit on an expedited schedule.
Air Permitting - California Casualty Management Co. Dr. Thompson prepared the
air permit application and air toxics evaluation for a proposed emergency diesel generator
to be located at a facility in San Mateo, California. The project was permitted on a
expedited schedule.
Air Permit Modification - Creed, Lambie, and Goose Haven Energy Centers,
Calpine Corporation. Dr. Thompson assisted Calpine Corporation in the modification
of three Authority to Construct permits granted to three projects located in Solano
County, California. The project configurations and operational parameters were modified
to meet the client's needs, and the Authority to Construct permits were revised as well.
The project included negotiations with the Bay Area Air Quality Management District to
draft permit conditions that were acceptable to both the agency and the project proponent.
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson
Page 3
Applications for Authority to Construct - ICI Paints North America. Dr. Thompson
has been assisting ICI Paints' Commerce, California facility in obtaining Authority to
Construct permits for new equipment to accommodate a proposed facility expansion.
The project has included negotiations with the South Coast Air Quality Management
District on applicable permit conditions, as well as development of a user-friendly
calculation methodology to track emissions to demonstrate that the facility will be a non-
major source. The project has also included banking of Emission Reduction Credits in
association with cessation of solvent-based paint production. The permits have been
issued and expansion is under construction.
Title V Permitting Assistance - PG&E Dispersed Generating. Dr. Thompson
provided technical support and assistance in developing the Application for Title V
Operating Permit for the PG&E Dispersed Generating facility in Chula Vista, California.
The project involved regulatory review and evaluation of Multiple Applicable
Requirements Streamlining for the facility.
CEC Application for Certification - Three Mountain Power, LLC. Dr. Thompson
managed a multidisciplinary project to prepare the Application for Certification for a
proposed 500 MW natural gas fired combined cycle plant in Burney, California. The
project involved conducting a review of potential environmental concerns, including
preparation of a PSD permit application, health risk assessment, biological and cultural
resources surveys, traffic studies, socioeconomic evaluation, waste management
evaluation, water resources studies, and soils/geological investigations. The Application
for Certification was prepared pursuant to the California Energy Commission's Siting
Regulations. The project also involved attendance and presentations at public meetings
and CEC workshops and hearings. The project was certified in May, 2001. In addition,
Dr. Thompson assisted in the preparation of legal briefs and technical documents to
support the BACT finding that SCR, and not SCONOx, is BACT for the Project. The
BACT finding was upheld by the EPA's Environmental Appeals Board.
CEC Application for Certification - CalPeak Power. Dr. Thompson conducted the
Air Quality Impact Assessments and developed Risk Management Plans for two 50-MW
peaking power generation facilities to be located in San Diego County, California. The
projects qualified for expedited permitting under the California Governor's 21-Day
Emergency Siting Regulations as administered by the California Energy Commission.
The project involved interface with the San Diego Air Pollution Control District in
expediting permit processing, appearance at hearings and public workshops in support of
the projects, and assisting CalPeak in preparation of application documents.
CEC Application for Certification - Evergreen Energy Facility. Dr. Thompson
prepared the Application for Certification under the Governor's 21-day Emergency Siting
Procedures for a proposed 50-MW power generation facility to be located in Contra
Costa County, California. The project involved conducting a review of potential
environmental concerns, including identification of potential fatal flaws for the site,
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L Thompson Scientific Resources Associated
Page 4
coordination of subcontractors for conducting biological, cultural resources, and
paleontological surveys, and development of the AFC. Dr. Thompson prepared an
evaluation of land use, air quality, public health, hazardous materials handling, waste
management, and socioeconomics. The AFC included information provided by various
subcontractors for biological and cultural resources, traffic studies, water resources
studies, and soils/geological investigations. Dr. Thompson also prepared an Application
for Authority to Construct that was submitted to and accepted by the Bay Area Air
Quality Management District. The AFC was withdrawn pending Department of Water
Resources contracting requirements.
Air Permit Applications - CalPeak Power. Dr. Thompson prepared the Air Qualtiy
Impact Analyses and Risk Management Plans for five peaking power generation facilities
to be located throughout the state of California. The project involved interfacing with
local regulatory agencies to develop permit application packages and Risk Management
Plans for the facilities. The project also included conducting a screening human health
risk assessment to evaluate the potential for significant impacts due to emissions of
ammonia and trace contaminants from combustion.
Air Permit Applications — Panda Energy International. Dr. Thompson prepared the
air permit applications and assisted in developing information in support of the Initial
Studies for three power generation projects located in Solano County. The tasks included
offsets negotiations, development of permitting strategies, and review of initial draft
permits issued for the facilites. The project also involved attending and providing public
testimony to assist the applicant. The project also included conducting a screening
human health risk assessment to evaluate the potential for significant impacts due to
emissions of ammonia and trace contaminants from combustion.
Permitting Assistance - Duke Energy. Dr. Thompson assisted Duke Energy in the
preparation and approval of air permits for introducing operational flexibility into
existing permits, permitting of burner modifications, and permitting of a selective
catalytic reduction (SCR) system for the South Bay Power Plant in San Diego, California.
The project involved demonstrating to the San Diego Air Pollution Control District that
operational changes, burner modifications, and SCR operation do not result in significant
emissions increases. In addition, Dr. Thompson assisted Duke Energy in evaluating
options for increased operations at the facility.
CEC Application for Certification and New Source Review - Wildflower Larkspur
Energy Facility. Dr. Thompson assisted in the preparation of an Application for
Certification and Authority to Construct application for the Wildflower Larkspur Project,
the first peaker project to be certified in California under the Governor's 21-day
Emergency Siting Process. The project included preparation of a regulatory review and
Air Quality Impact Analysis, as well as assistance with sections of the AFC. The project
also involved preparing an evaluation of the requirements for compliance with air toxics
regulations.
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 5
Title V Permit Renewal and Compliance Assurance Monitoring Program - Ogden
Martin Systems of Marion, Inc. Dr. Thompson prepared the Title V Permit Renewal
and evaluated the requirements under 40 CFR Part 64 for a waste-to-energy facility
located in Marion County, Oregon. The project involved preparing an update to the Title
V Permit, including evaluating revisions to operating scenarios and inclusion of NOx
controls in the permit application. The project also involved conducting a detailed review
of existing monitoring systems and a review of the requirements of waste-to-energy
facilities under 40 CFR Part 64. Dr. Thompson worked with the client and regulators to
demonstrate that the facility should be exempted from the requirements of 40 CFR Part
64 due to the adoption of MACT standards for the industry.
Air Permitting Strategies - Mojave Pipeline Northward Expansion. Dr. Thompson
assisted the Mojave Pipeline Company in evaluating permitting requirements for
proposed expanded compressor stations to be constructed in Arizona, the San Joaquin
Valley, and the Mojave Desert. The project involved identification of permitting
requirements for these facilities and evaluating permitting options. One of the key
challenges for the proposed project was to identify potential sources of ozone-precursor
offsets for a major facility located in Daggett in the Mojave Desert Air Quality
Management District. The Mojave Desert Air Quality Management District had not
established an emissions trading program. Dr. Thompson assisted the Mojave Pipeline
Company in evaluating potential emissions trading strategies along with potential
emissions control strategies.
New Source Review/Air Quality Impact Assessment - Solar Turbines, Inc. Dr.
Thompson prepared an air quality impact assessment in support of two proposed
modifications to Solar Turbines facilities in San Diego, California. The assessment
involved negotiations with the San Diego Air Pollution Control District to evaluate the
requirements for treating ozone-limiting calculations for multiple sources located at a
single facility. Dr. Thompson developed an approach to evaluate the interaction between
combustion turbine exhaust plumes that was accepted by the San Diego Air Pollution
Control District. Both Solar Turbines facilities in San Diego were allowed to increase
production and add new test cells based on the air quality impact assessment.
New Source Review - Cargill Flour Milling. Dr. Thompson prepared the application
for Authority to Construct for an expansion of the Cargill Flour Milling facility in San
Bernardino, California. The application included engineering design information, an air
quality impact analysis, and offsets negotiations in accordance with the South Coast Air
Quality Management District's requirements. The Authority to Construct was granted.
Title V Permit Application Preparation - ICI Paints - Sinclair. Dr. Thompson
prepared the Title V Operating Permit Application for a paint manufacturing facility
located in Commerce, California, in accordance with the requirements of the South Coast
Air Quality Management District. The project involved performing a review of the
current permits held by the facility, developing flexible operating scenarios and emissions
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 6
inventories, and identification of applicable regulations. Dr. Thompson worked with the
facility to identify operational flexibility concerns and to introduce adequate flexibility
into the permit application.
Title V Permit Application Preparation - ICI Paints - Devoe Coatings. Dr.
Thompson prepared the Title V Operating Permit Application for an industrial coatings
manufacturing facility in Riverside, California, in accordance with the requirements of
the South Coast Air Quality Management District. The project involved performing a
review of the operating scenarios and emissions inventories, and identification of
applicable regulations. Dr. Thompson worked with the facility to identify operational
flexibility concerns and to introduce adequate flexibility into the permit application.
Title V Facility Review - Zynolyte Products, Inc. Dr. Thompson completed a Title V
facility review to evaluate the applicability of the South Coast Air Quality Management's
Title V requirements to a paint packaging facility in Carson, California. The project
involves a review of applicable regulations and identification of potential process
changes over the five-year permit term. Dr. Thompson is currently reviewing the
emissions inventory to develop a more accurate inventory for the facility.
Title V Permit Application Preparation - ACE Cogeneration, Inc. Dr. Thompson
prepared the Title V Operating Permit Application for a coal-fired cogeneration facility in
Trona, California, which is located in the Mojave Desert Air Quality Management
District. The project involved performing a review of the operating scenarios and
emissions inventories, and identification of applicable regulations. Dr. Thompson
worked with the facility to identify operational flexibility concerns and to introduce
adequate flexibility into the permit application.
Title V Permit Application Preparation - Ogden Martin Systems of Marion, Inc. Dr.
Thompson prepared the Title V Operating Permit Application for a waste-to-energy
facility in Marion County, Oregon. The project involved evaluating the applicable local,
state, and federal regulations, developing alternative operating scenarios, and assisting
the facility with operational flexibility issues. The application was deemed complete by
the Oregon DEQ, and issuance of the permit is pending.
Air Emission Inventories and Regulatory Review - U.S. Army Corps of Engineers,
Europe District, Wuerzburg BSB. Dr. Thompson served as technical lead on a project
to conduct air emission inventories at 9 U.S. Army installations in the Wuerzburg BSB in
Germany. The air emission inventories included field visits to document potential
sources of air emissions; gathering of data to develop estimates of air emissions on a
maximum hourly and annual basis; evaluation of the facilities with respect to the Final
Governing Standards for Germany; and development of a compliance tracking program
for the U.S. Army installations to evaluate their continued compliance with the Final
Governing Standards for Germany.
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 7
Title V Permit Application Preparation - Hawaiian Electric Company. Dr.
Thompson managed a project to prepare permit applications for 13 facilities in the state
of Hawaii for compliance with Title V of the Clean Air Act. The project involved
performing a detailed emission inventory for all facilities and all operations and preparing
an emission inventory database for the facilities. The project also involved evaluating
alternative operating scenarios and control technologies and assessing their impacts on
the emission inventory. Permit applications were deemed complete by the Hawaii DOH.
Title V Permit Assistance - Salt River Project. Dr. Thompson provided Salt River
Project environmental personnel with technical assistance in the preparation of Title V
operating permit applications for coal, oil, and natural gas-fired power plants in the State
of Arizona. The project involved performing facility audits, evaluating emission factors
for criteria pollutants and hazardous air pollutants, identifying compliance issues, and
evaluating alternative operating scenarios and operational flexibility issues for the
facilities.
Title V Permit Application Preparation - Babcock & Wilcox, Idaho National
Engineering Laboratory. Dr. Thompson managed a project to provide Title V
permitting assistance to Babcock & Wilcox facilities located at the Idaho National
Engineering Laboratory. The project involves performing a review of existing emission
inventories, evaluating alternative operating scenarios and compliance issues, and
development of recordkeeping and reporting systems for the facility. The work products
developed provided the input for the operating permit application for the Specific
Manufacturing Capability facility at INEL.
Title V Permit Application Preparation - Pearl Harbor Naval Station. Dr.
Thompson has been involved in assisting with the preparation of and providing peer
review of the operating permit applications for seven facilities at the Pearl Harbor Naval
Station and Ford Island on the island of Oahu. Key issues include alternative operating
scenarios, emissions trading, review of emission inventories, demonstration of
compliance, reporting and recordkeeping, and identification of insignificant sources.
Title V Facility Reviews - TRW Vehicle Safety Systems, Inc. Dr. Thompson
performed facility reviews and regulatory interface for two airbag manufacturing
facilities in Mesa, Arizona. The project involved a review of the existing processes and
emissions inventories to develop estimates of the maximum potential to emit. A review
of the air pollution control devices and strategies was also performed. Applications for
synthetic minor status will be prepared for the facilities.
CEQA/NEPA Air Quality Analyses
Air Quality Analysis - Mitsubishi Cement Expansion, Port of Long Beach. In
support of the Negative Declaration, Dr. Thompson prepared the air quality analysis for
the proposed expansion of the Mitsubishi Cement facility located at the Port of Long
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
PageS
Beach, California. The project involved estimating emissions from cement loading
operations as well as truck traffic accessing the facility.
Air Quality Analysis - Rhodes Crossing Development. Dr. Thompson prepared the
Air Quality Analysis for a proposed commercial and residential development located in
San Diego, California. The project involved evaluating construction and operational
impacts to the ambient air quality, as well as a screening CO "hot spots" evaluation for
traffic.
Air Quality Analysis - UTC Expansion. Dr. Thompson is preparing the Air Quality
Analysis for the proposed expansion of the University Towne Center commercial
development in San Diego, California. The project involves evaluating air quality
impacts associated with development alternatives, including traffic at congested
intersections.
Air Quality Analysis - The Bridges at Rancho Santa Fe. Dr. Thompson prepared the
Air Quality Analysis and Air Quality Technical Report for a residential development
located in north San Diego County. The analysis included evaluating construction and
operational impacts associated with the project.
Air Quality Analysis - San Clemente Island Range Complex EIS. Dr. Thompson
prepared the air quality analysis for the San Clemente Island Range Complex EIS. The
project involved the movement of military training operations from other locations to the
San Clemente Island Range Complex. Dr. Thompson was responsible for conducting air
emission calculations for mobile sources, including aircraft and marine vessels, and for
evaluating the project's requirements under NEPA and the General Conformity Rule.
Air Quality Evaluation - San Elijo Ridge Development. Dr. Thompson prepared the
air quality evaluation for .a proposed residential development in North San Diego County.
The project involved estimating emissions from construction during four construction
phases, and assisting the client in evaluating their options for phasing construction and
use of heavy equipment to mitigate potential impacts.
Air Quality Analysis and Risk Evaluation - Science Research Park, UCSD. Dr.
Thompson prepared the air quality anlaysis and risk evaluation for a proposed Science
Research Park development at the University of California, San Diego. The project
involved estimating amounts of air toxics that could be released on a routine basis from
the facility due to normal operations of the facility. The project also involved estimating
whether the chemical usage is acceptable from a health risk standpoint.
Air Quality Impact Analysis - La Jolla Commons. Dr. Thompson prepared the air
quality evaluation of the proposed La Jolla Commons project in San Diego. The analysis
involved estimating emissions associated with construction and operation of the project,
and evaluating the project's compliance with air quality standards.
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson
Page 9
Conformity Applicability Analysis - NAS North Island. Dr. Thompson prepared the
conformity applicability analysis and the Record of Non-Applicability for the proposed
homeporting of a nuclear carrier at NAS North Island. The project involved evaluating
emissions from the construction stage of the project as well as emissions from the
carriers, emissions from support equipment, and emissions from traffic.
Emergency Water Storage Project - San Diego County Water Authority. Dr.
Thompson prepared the Air Quality Impact Analysis and the Public Health and Safety
Section for an EIR prepared for a project involving the construction of a new reservoir
for emergency water storage in San Diego County. The Air Quality Impact Analysis
involved evaluating the emissions associated with the construction and operational phases
of the proposed project, including evaluating emissions from dam construction.
Mitigation measures were proposed to reduce potential impacts on air quality. The
Public Health and Safety Section included an evaluation of dam and component safety,
water quality issues, and recreational safety issues associated with the reservoir. The
dam safety analysis included an engineering analysis of the potential for dam breach or
break and an evaluation of the downstream impacts of a catastrophic event.
Air Quality Impact Analysis - San Diego River Outfall. Dr. Thompson prepared the
Air Quality Impact Analysis for a proposed project in San Diego to construct an offshore
outfall for the San Diego River. The project involved evaluating the emissions associated
with construction and evaluating potential health risk and odor issues associated with the
project.
San Francisco Airport Extension - Bay Area Rapid Transit District. Dr. Thompson
provided technical oversight for preparation of the Air Quality Technical Report for the
Environmental Impact Report required for the proposed Bay Area Rapid Transit San
Francisco Airport Extension project. The project involved evaluating the potential for
carbon monoxide hot spots to develop at intersections affected by the proposed project.
Dr. Thompson was also responsible for evaluating the proposed project and its associated
impacts for conformance with the State Implementation Plan for CO attainment and the
1990 Federal Clean Air Act Amendments.
Gregory Canyon Landfill - Waste Management, Inc. Dr. Thompson prepared the Air
Quality Impact Analysis and Health Risk Assessment for a proposed new landfill in
northern San Diego County. The evaluation involved identifying the maximum
anticipated activity levels for the landfill and estimating air emissions from traffic, solid
waste handling, and the landfill gas collection system. The health risk assessment
evaluated the potential cancer risks associated with exposure to emissions from the
landfill.
Air Quality Impact Analysis - SR78/Sycamore Avenue Interchange. Following
Caltrans guidelines, Dr. Thompson prepared the Air Quality Impact Analysis for a
proposed improvement project for the SR78/Sycamore Avenue Interchange in northern
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valerie L. Thompson Scientific Resources Associated
Page 10
San Diego County. The project involved estimating traffic queuing patterns and
calculating the potential air quality impacts associated with carbon monoxide emissions,
Encinitas Specific Plan Amendment - City of Encinitas, California. Dr. Thompson
managed a project to evaluate air quality impacts associated with various development
alternatives for roadways in the City of Encinitas, California. The project involved
evaluating carbon monoxide emissions associated with seven alternative roadway
developments and developing mitigation measures to reduce or eliminate impacts.
Chiquita Canyon Landfill - Laidlaw Waste Systems, Inc. Dr. Thompson prepared the
Air Quality section of the Draft Environmental Impact Report for a proposed landfill
expansion for Laidlaw Waste Systems, Inc. The project involved evaluating emissions
from construction, operation, and mobile sources. The project also involved evaluating
measures to control emissions and their effectiveness in order to reduce the impacts
associated with the proposed project.
Air Quality Technical Report - CalMat Company. Dr. Thompson prepared the Air
Quality Technical Report for a proposed sand and gravel mining operation in southern
San Diego County. The project involved developing an emissions inventory for
stationary and mobile sources associated with the project and evaluating the impacts of
fugitive dust and combustion emissions on air quality. The project also involved
evaluating the effectiveness of control measures to control dust emissions from point
sources, material excavation, and travel on paved and unpaved roads.
Air Quality Analysis - Robinson Mine, Ely, Nevada. Dr. Thompson evaluated the air
quality impacts associated with reoperation of a major copper mining facility in Ely,
Nevada. The project involved preparing an emissions inventory for the facility,
evaluating ambient air quality measurements in the area and their representativeness to
existing conditions and future operations, and assessing impacts associated with
reoperation of the mine. Major impacts included PM-10 impacts and impacts associated
with acid spray for leaching.
State Implementation Plan Evaluation - City of Yuma, Arizona. Dr. Thompson
assisted the City of Yuma, Arizona in evaluating their State Implementation Plan for
achieving attainment of the PM-10 standard. The project involved reviewing the
proposed State Implementation Plan and the proposed control measures and evaluating
their effectiveness and applicability to activities in the City of Yuma. The project also
involved negotiations with the Arizona Department of Environmental Quality regarding
the proposed measures and evaluating the locations of ambient air quality monitoring
stations with regard to their representativeness in evaluating progress on achieving the
Federal PM-10 standard.
Health Risk Assessments
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 11
Human Health Risk Assessment - Pearl Harbor Sediment Study. Dr. Thompson is
the task manager for the human health risk assessment for the Pearl Harbor Sediment
Study that is currently under way. The project involves screening contaminants detected
in marine sediments and marine tissue samples to identify those chemicals which may
pose a potential human health risk; developing exposure scenarios for exposure to
sediments and ingestion of fish and shellfish from Pearl Harbor; evaluating toxicity of
contaminants detected in marine sediments, including PCB congeners, PAHs,
dioxins/dibenzofurans, ordinance compounds, metals, and semi-volatile organics; and
estimating the risks associated with exposure to contaminants. The screening human
health risk assessment has been completed in accordance with the requirements of the
U.S. EPA Region IX and the Hawaii Department of Health. In addition, Dr. Thompson
developed an innovative approach to identifying spatial patterns in risk calculations and
effectiveness of cleanup options using a GIS-based methodology. The methodology links
the ecological risk assessment with the human health risk assessment.
Air Toxics Evaluation - National Steel and Shipbuilding Co. Dr. Thompson is
assisting the National Steel and Shipbuilding Company in the preparation of an air toxics
evaluation under San Diego Air Pollution Control District's Rule 1200. The rule requires
new sources to demonstrate that the risk associated with emissions from the source do not
exceed acceptable levels.
AB 2588 Health Risk Assessment Update - GKN Chem-Tronics, Inc. Dr. Thompson
is assisting an aerospace manufacturing facility in assessing its potential human health
risks associated with operations at the facility. The project involves evaluating emission
quantification methodologies and assessing their effect on health risk predictions. The
project also includes preparing an update to the facility's AB 2588 Health Risk
Assessment to incorporate risk reduction measures employed at the facility.
Human Health Risk Assessment - Pearl Harbor Naval Station. Dr. Thompson
performed a screening human health risk assessment for PCB-contaminated sites located
at Pearl Harbor Naval Station in Honolulu, Hawaii. The purpose of the risk assessment
was to provide assistance and guidance for the EE/CA and to develop risk-based cleanup
goals for PCB sites. U.S. EPA and State of Hawaii guidance for PCB-contaminated sites
was used to support the conclusions of the risk assessment.
Human Health Risk Assessment - Norton Air Force Base. Dr. Thompson performed a
screening health risk assessment for contaminated sites located at Norton Air Force Base
in California. Contamination at the site included petroleum hydrocarbons and metals
contamination. The human health risk assessment was conducted to evaluate the
effectiveness of recommended action at the site.
Human Health Risk Assessment - Giebelstadt Army Base. Dr. Thompson served as
task manager for the preparation of a human health risk assessment for a contaminated
site at the Giebelstadt Army Base in Germany. Concern was expressed by local agencies
regarding the presence of chlorinated hydrocarbons in local ground water wells. The
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 12
sampling program evaluated ground water and subsurface soils for a variety of
contaminants, including total petroleum hydrocarbons, chlorinated hydrocarbons, and
PCBs. A screening human health risk assessment was performed for ingestion of ground
water in order to support a recommendation for no further action at the site.
Proposition 65 Compliance Support - National Steel and Shipbuilding Company
and Southwest Marine. Dr. Thompson has been providing support to both the National
Steel and Shipbuilding Company and Southwest Marine to assist them in demonstrating
compliance with the notification requirements of California' Proposition 65. Both
facilities submitted AB 2588 health risk assessments that were based on worst-case
hexavalent chromium emission factors provided by the local Air Pollution Control
District. Subsequent to that, Dr. Thompson assisted the facilities in evaluating alternative
emission factors for welding and painting processes and in preparing alternative health
risk assessments. The alternative health risk assessments were submitted both to the
APCD and the California Attorney General's Office. The alternative emission factors
and risk assessments were used to demonstrate that notification under Proposition 65 was
not required despite the conservative AB 2588 health risk assessment results. Dr.
Thompson has also written a windows-based program that evaluate's the facilities' status
with regard to Proposition 65 compliance on a real-time basis.
Air Toxics Health Risk Assessment - National Steel and Shipbuilding Company. Dr.
Thompson served as project manager for an air toxics emissions inventory and health risk
assessment pursuant to the California AB 2588 Air Toxics "Hot Spots" Information and
Assessment Act. The facility is a major shipbuilding facility operating in San Diego,
California, with air toxics emissions from processes including combustion, welding,
solvent use, and abrasive blasting operations. Dr. Thompson assisted facility
environmental staff in preparing emission estimates for the processes, and prepared the
multi-pathway health risk assessment to evaluate human health risks associated with air
emissions. The risk was driven by emissions of hexavalent chromium from welding
operations; Dr. Thompson also provided assistance to NASSCO in evaluating alternative
emission factors for metals from welding operations. The health risk assessment was
reviewed and accepted by the San Diego County Air Pollution Control District and the
California Environmental Protection Agency, Office of Environmental Health Hazard
Assessment (OEHHA).
Air Toxics Health Risk Assessment - Southwest Marine. Dr. Thompson served as
project manager for a health risk assessment that was prepared for the Southwest Marine
facility pursuant to the California AB 2588 Air Toxics "Hot Spots" Information and
Assessment Act. The facility is a major ship repair facility in San Diego, California.
Major sources of emissions included welding operations, combustion operations, solvent
use, and abrasive blasting. Dr. Thompson prepared the air toxics health risk assessment
to evaluate human health risks associated with exposure to emissions from these sources.
The health risk assessment was reviewed and accepted by the San Diego County Air
Pollution Control District and the California Environmental Protection Agency, Office of
Environmental Health Hazard Assessment (OEHHA).
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Pas?e 1 3
Health Risk Assessment - U.S. Navy Comprehensive Long-Term Environmental
Action Navy (CLEAN). Dr. Thompson managed a project to evaluate the human health
risks associated with a former firefighting training area and drain field area at PMRF
Barking Sands, Kauai, Hawaii. The contamination at the site included minor amounts of
polynuclear aromatic hydrocarbons (PAHs) and elevated levels of metals. Dr. Thompson
evaluated the risks associated with exposure to surface soils, ground water, and surface
water. One of the important aspects of the health risk assessment was the evaluation of
background health risks associated with naturally occurring levels of arsenic and other
metals at the site.
Health Risk Assessment - U.S. Navy Comprehensive Long-Term Environmental
Action Navy (CLEAN). Dr. Thompson managed a project to evaluate the human health
risk associated with exposure to contaminants at a landfill at the South Finegayan
Construction Battallion Landfill site on Guam. Contaminants detected at the site include
PAHs, pesticides and PCBs, metals, and total petroleum hydrocarbons. The evaluation
included an assessment of the risks associated with exposure to surface soils and to
potable ground water underlying the site.
Air Toxics Health Risk Assessment - Mobil Platform Holly and Ellwood Oil and Gas
Facility. Prepared the AB 2588 Air Toxics Health Risk Assessment for an offshore oil
platform and an onshore oil and gas processing facility in Santa Barbara, California. The
assessment involved evaluating health risks associated with air toxics emitting from oil
and gas facilities, which included benzene, toluene, xylenes, and hydrogen sulfide. In a
related project, Dr. Thompson also prepared an evaluation of the background health risks
associated with emissions from natural offshore seeps in Santa Barbara County.
Air Toxics Health Risk Assessment - Hi-Shear Corporation. Prepared the AB 2588
Air Toxics Health Risk Assessment for an aerospace fastener manufacturing operation in
Torrance, California. The main source of toxic emissions at the facility was the use of
chromium-based paints. Dr. Thompson evaluated the health risk associated with
hexavalent chromium emissions and assisted the facility in evaluating alternative
emission factors for paint emissions.
Health Risk Assessment - South Miramar Landfill. Prepared a screening health risk
assessment to evaluate the potential health risks associated with excavation of a portion
of the South Miramar Landfill. The assessment included evaluating the potential
emissions of landfill gases such as chlorinated hydrocarbons.
Risk Management Plans and Hazard Evaluations
Risk Management Plans - CalPeak Power, LLC. Dr. Thompson prepared seven Risk
Management Plans for handling of 19.5% aqueous ammonia at seven power generation
sites throughout the state of California. The project involved conducting a hazard review
of the proposed system design, preparing an offsite consequence analysis to assess the
1 328 Kaimaiino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L Thompson
Page 14
potential worst-case impacts, and developing and documenting plans and programs for
the facilities. The project included interface with regulatory agencies to obtain approval
of the RMPs, as well as providing support in public meetings to address public concerns
regarding potential risks and mitigation measures employed.
Risk Management Plans - Panda Energy International Dr. Thompson prepared three
Risk Management Plans for handling of 19.5% aqueous ammonia at three 49 MW power
generation facilities in Solano County, California. The project involved conducting a
hazard review of the proposed system design, preparing an offsite consequence analysis
to assess the potential worst-case impacts, and developing and documenting plans and
programs for the facilities. The project included interface with regulatory agencies to
obtain approval of the RMPs, as well as providing support in public meetings to address
public concerns regarding potential risks and mitigation measures employed. As part of
the CEQA process, the project also involved addressing potential impacts to sensitive
species at locations near the site.
Hazard Review - Wildflower Larkspur Facility. Dr. Thompson served as team leader
in conducting a hazard review for an aqueous ammonia system to be used at a peaking
power generation facility in Otay Mesa, California. The project included conducting the
review with participation from the County Hazardous Materials Division, and preparing a
list of recommended action items for the facility to employ in the design of the aqueous
ammonia system.
Hazard Review - PG&E Distributed Generation. Dr. Thompson served as team
leader in conducting a hazard review for aqueous ammonia systems to be used at two
peaking power generation facilities in Chula Vista and Escondido, California. The
project included conducting the review with participation from the County Hazardous
Materials Division, and preparing a list of recommended action items for the facility to
employ in the design of the aqueous ammonia system.
Hazard Review - National City Marine Terminal. Dr. Thompson served as team
leader for a Hazard and Operability study for a cold storage facility located in National
City, California. The project included evaluating the potential for hazards associated
with the handling of anhydrous ammonia, and development of recommendations to
improve the safety and operations at the facility.
Hazard Review - Otay Water District. Dr. Thompson served as team leader for a
hazard review conducted for a water treatment facility in San Diego County. The system
employed chlorine gas for use in water treatment systems. Dr. Thompson conducted the
review with participation by the County Hazardous Materials Division, and also prepared
an offsite consequence analysis for inclusion in the facility's Risk Management Plan.
Hazard and Operability Study - Praxair Corporation. Dr. Thompson conducted a
fast-track Hazard and Operability Study for two hydrogen/specialty gas production
facilities located in Louisiana. The facilities were under construction and the Hazard and
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valerie L. Thompson Scientific Resources Associated
Page 1 5
Operability Study was required to be completed in a short time frame in order to proceed
with permitting from the State of Louisiana. Dr. Thompson led the team and assisted the
engineering staff in identifying potential modifications to the design of the system to
increase safety and lessen the possibility of a release.
Hazard and Operability Study - Port of San Diego. Dr. Thompson served as team
leader for a Hazard and Operability study for the Port of San Diego's use of methyl
bromide in fumigation of produce received at the 10th Avenue Marine Terminal in San
Diego, California. The project involved a review of the storage and handling system for
methyl bromide and development of recommendations and a schedule for implementation
of recommended actions to improve safety at the facility.
Risk Management and Prevention Program - Basic Vegetable Company. Dr.
Thompson was the project manager for the preparation of a Risk Management and
Prevention Program for a vegetable processing facility. The facility used a one-ton
cylinder of chlorine in the purification of water involved in food processing. Dr.
Thompson conducted a hazard review for the facility and developed the offsite
consequence analysis and RMPP.
Hazard Evaluation - Rocky Mountain Arsenal, U.S. Army. Dr. Thompson served as
team leader and scribe for a Preliminary Hazard Analysis and Hazard and Operability
Study of a submerged quench incinerator proposed for treating Basin F liquids at the
Rocky Mountain Arsenal in Denver, Colorado. The studies were conducted in
conformance with the Army's PHA and SHAR requirements. The study served to
evaluate safety concerns associated with the proposed incinerator and to develop
recommendations to increase safety and reliability of the system.
Risk Management and Prevention Program - All-Pure Chemical Company. Dr.
Thompson served as project manager to prepare a Risk Management and Prevention
Program (RMPP) under the California AB 3777 program for a chlorine repackaging
facility. The program involved assisting All Pure in developing up to date piping and
instrumentation diagrams, performing a hazard and operability study on the facility,
evaluating operating, maintenance, inspection and training procedures, and evaluating the
potential consequence of off-site releases of chlorine, hydrochloric acid, and sulfur
dioxide.
Risk Management and Prevention Program - All-Pure Chemical Company. Dr.
Thompson served as project manager to prepare a Risk Management and Prevention
Program (RMPP) under the California AB 3777 program for two facilities located in
Pittsburg and Antioch, California, involved in the handling and repackaging of sulfuric
acid, hydrochloric acid, and nitric acid. The program involved conducting a hazard and
operability study on the facility, evaluating operating, maintenance, inspection and
training procedures, and evaluating the potential consequence of off-site releases of
sulfuric, nitric, and hydrochloric acids.
1 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 16
Risk Management and Prevention Program Update — Torch Operating Company.
Dr. Thompson prepared an update to the RMPP for an oil and gas facility in Lompoc,
California. The project included conducting a review of the Hazard and Operability
study and reviewing the deviations and recommendations identified in the previous study.
The RMPP was updated and approved by Santa Barbara County.
Risk Management and Prevention Program - Unocal Oil. Dr. Thompson prepared the
off-site consequence analysis for an onshore oil and gas processing facility for Unocal.
The consequence analysis involved performing accidental release modeling for releases
of hydrogen sulfide-containing produced gases and oil from pipelines and from facility
operations.
Hazard Evaluation of Gas Transmission Pipeline - City of Bakersfield. Dr.
Thompson managed a project to evaluate the risk of a release from a gas transmission
pipeline in the City of Bakersfield. The project involved evaluating the regulatory
requirements for pipeline operation, the potential causes and frequencies of accidents
involving gas transmission pipelines, and the potential consequences associated with an
accidental release and subsequent explosion of natural gas.
Risk of Upset Evaluation - Lokern Hazardous Waste Landfill. Dr. Thompson
prepared the Risk of Upset section of an Environmental Impact Report that was prepared
in support of the proposed expansion of a hazardous waste landfill in western Kern
County, California. The Risk of Upset section addressed the potential for accidental
releases of hazardous wastes during transport and operation of the facility. The study
involved evaluating the potential types of waste to be transported and their subsequent
risks upon release, and involved dispersion modeling for toxic and flammable events.
Hazard and Operability Study - DuPont Corporation. Dr. Thompson served as team
leader and scribe for a Hazard and Operability study conducted for the imine processing
facility operated by DuPont Corporation in Victoria, Texas. The project included
evaluating operations and tank farm facilities at the plant and development of
recommendations for improving safety for the facility.
Hazard and Operability Study - Exxon Las Flores Canyon. Dr. Thompson was
involved in a detailed hazard and Operability study for the proposed Exxon Las Flores
Canyon facility. The HazOp study was conducted as part of the Santa Barbara County's
requirements for preparation of a Risk Management and Prevention Program prior to
construction, and was conducted on a 90% design of the facility. The HazOp study
addressed all portions of the design include the oil and gas processing facilities, support
facilities, and wastewater treatment facilities.
RMPP Qualified Person Review - Mobil Torrance Refinery. Dr. Thompson
performed the Qualified Person Review as required under the California AB 3777 Risk
Management and Prevention Program for the RMPP that was prepared for the Mobil
Torrance Refinery's HF Alkylation Unit. The review involved evaluating and reviewing
1 328 Kaimalino Lane San Diego, CA 92109 (858)488-2987
Dr. Valorie L. Thompson Scientific Resources Associated
Page 1 7
the hazard and operability study and recommendations and the off-site consequence
analysis that was performed for accidental releases of HF from the facility.
PUBLICATIONS AND PRESENTATIONS
Thompson, V. L., and Westbrook, J. 2001. "Case Studies in Air Dispersion Modeling."
Presented at AWMA West Coast Section Meeting, San Diego, California.
Thompson, V. L., Nakamura, P., Lester, W. C., and Clayton, J. R. Jr. 1998.
"Multipathway Human Health Risk Assessment for Marine Sediments in Pearl Harbor,
Hawaii." Presented at SETAC Annual Meeting, Charlotte, North Carolina.
Thompson, V. L. 1993. "Source Term Estimation for a Hydrochloric Acid Release."
AWMA Proceedings, Annual Meeting, Denver, Colorado.
Thompson, V. L. 1990. "Acute vs. Chronic Risk." Presentation at A.I.Ch.E. Summer
National Meeting, San Diego, California.
Thompson, V.L. and Greenkorn, R. A. 1988. "Non-Gaussian Dispersion in Model
Smokestack Plumes," A.I.Ch.E. J., V. 34, p. 223.
Thompson, V. L. 1986. "Non-Ideal Dispersion in Power Plant Plumes," Ph.D. Thesis,
Purdue University.
I 328 Kaimalino Lane San Diego, CA 92109 (858) 488-2987
RESUME
JOHN BOARMAN, P.E.
PRINCIPAL
PROFESSIONAL REGISTRATION
Civil Engineer, California (C 50033)
Traffic Engineer, California (TR 1855)
EDUCATION
Purdue University, Master of Science in Civil Engineering
PROFESSIONAL EXPERIENCE
Transportation Engineer: Linscott, Law & Greenspan (1990 to Present)
PROFESSIONAL MEMBERSHIPS
Institute of Transportation Engineers, Associate Member
Association of Environmental Professionals, Member
AREAS OF PROFESSIONAL COMPETENCE
Traffic Sections of Environmental Impact Studies and Reports
Traffic Impact Studies
Parking Studies
Transportation Planning
REPRESENTATIVE ASSIGNMENTS
Mr. Boatman has personally prepared, participated in or directed the preparation of several hundred
traffic impact studies and reports and their subsequent integration into Environmental Impact
Reports, Statements and Assessments (EIR, EIS, EIA). His work has included not only traffic
impact studies but studies of parking impact and sufficiency, site access and circulation, and internal
auto, pedestrian and public transit traffic circulation.
Mr. Boarman has worked closely with other professionals in the preparation and presentation of
environmental documentation to citizens groups, local government engineers and planners,
Transportation Commissions, Planning Commissions, and City Councils. He has also made
presentations to the California Coastal Commission.
Mr. Boarman has managed traffic studies for several high profile projects including the City of
Santee General Plan, the Imperial County General Plan Update, the San Diego Convention Center
Expansion, the Hotel Del Coronado Expansion, the Qualcomm Stadium Expansion, the Imperial
Valley Mall, Fanita Ranch, The Del Mar Fairgrounds Master Plan, the I-805/Mira Mesa Blvd. PSR,
Merriam Mountain, and the North Embarcadero Visionary Plan. He has also conducted numerous
parking studies including studies for Downtown Coronado, the Oceanside Harbor area, and the San
Diego Convention Center Expansion.
His City of El Centro work included managing traffic studies for the Imperial Valley Mall, Buena
Vista Park, Wildflower Subdivision, Las Aldeas and Linda Vista projects.
S:\900.Marketing\Proposals\Subconsultant InfoVLinscott, Law &Greenspan\Resume_JB.doc
8/13/08
LINSCOTT
LAW &
GREENSPAN
engineers
Mike Komula - Acoustician
EXPERIENCE
Mike Komula has over 24 years' professional experience in
environmental and industrial noise as well as architectural acoustics. Mr.
Komula also presents workshops on worker noise exposure and
implementation of noise monitoring programs. Mr. Komula provides a
range of acoustical services to clients, including:
• Acoustical technical studies
• Design of noise control measures for noise sources; e.g., refineries,
manufacturing facilities, and mechanical equipment
• Assessment of environmental noise impacts associated with
roadways, railroads, helipads, and airports
• Preparation of noise elements and ordinances
« Community noise studies
• Evaluation of interior noise levels associated with the architectural
design of buildings.
Noise Elements/Ordinances
• City of La Mesa Noise Element
• City of Encinitas Noise Element
• City of Santa Fe Noise Ordinance
Electric Utility/Fiber Optics/Energy
• California Public Utilities Commission (CPUC) Environmental
Services, Statewide, California
• Pacific Bell University Town Center Facility, San Diego, California
• Pacific Bell Vista and Encinitas, North San Diego County, California
• SDG&E Valley to Rainbow Transmission Line, California Public
Utilities Commission, Riverside and San Diego Counties, California
Water/Wastewater/Reclaimed Water
• Twin Oaks Valley WTP Noise and Vibration Assessment, San Diego
County Water Authority, San Marcos, California
• Pipeline 3 Pomerado to Scripps Relining Noise Assessment, San
Diego County Water Authority, San Diego, California
• Pipeline 4 Paint Mountain Relining Noise Assessment, San Diego
County Water Authority, San Diego, California
EDUCATION
Heriot-Watt University
MS Acoustics, Vibration,
Noise Control
1996
San Diego State
University
BA Geography
1984
DUDEK Insert project name here in this font style Page I of 5
Mike Komula-continued
• Pipelines 3 and 4 Construction Noise Monitoring, San Diego County Water Authority, San Diego,
California
• Pipelines 3 and 4 Rancho Penasquitos Relining Noise Assessment, San Diego County Water
Authority, San Diego, California
• Pipeline 4 Del Dios Relining Noise Assessment, San Diego County Water Authority, San Diego,
California
• Pipelines 4 Black Mountain Relining Noise Assessment, San Diego County Water Authority, San
Diego, California
• 4S Ranch Treatment Plant, San Diego, California
• As-Needed Biological Services 2000-2005, Metropolitan Wastewater Department, City of San
Diego, San Diego, California
• Carlsbad Power and Desalination Plants EIR Project, City of Carlsbad, California
• Encina Phase V Expansion, Encina Water Authority, Carlsbad, California
• Flowmeter Installation, Metropolitan Water District of Southern California
• Gafner Treatment Plant, Leucadia County Water District, San Diego County, California
« La Orilla Pump Station and Generator
• Pipeline and Well, Laguna Beach County Water District, Orange County, California
• Moreno-Lakeside Pipeline, San Diego County Water Authority, San Diego, California
• Olivenhain Municipal Water District Pipeline, San Diego County, California
• Olivenhain Municipal Water District Reclaimed Water Facilities, San Diego County, California
• Otay 30B-Silver Sage, D.R. Morton, San Diego, California
• Pipeline 3, San Diego County Water Authority, San Diego, California
• Rancho Santa Fe Treatment Plant and Pump Station, San Diego, California
• Reclaimed Water Facilities Plan, Leucadia County Water District, San Diego County, California
• San Joaquin Reservoir Project, Irvine Ranch Water District, Orange County, California
• Santa Ana Basin Well, Irvine Ranch Water District, Orange County, California
Transportation
• Highway 78 Road Widening Project, Caltrans
• 15/Rancho Bernardo Interchange Widening, San Diego, California
• El Norte Parkway Road Widening, City of Escondido, California
• Bear Valley Parkway
• Bear Valley Parkway Road Widening EIR, San Diego County, California
• Bear Valley Parkway EIR
DUDEK /nsert project name here in this font sty/e Page 2 of 5
Mike Komula - continued
• Dillon Road Widening Improvements Project, City of Coachella, California
• Hummel Drive Connection MND/IS
• Juniper Street and Felicita Avenue Widening, Escondido, California
• Miramar Hills Curve Project, North County Transit District, San Diego, California
• Ninth Avenue Widening
• Oceanside to Escondido Railway, North County Transit District, Cities of Oceanside, Vista, San
Marcos, and Escondido, California
• Pomerado Road Widenings
• Rancho Santa Fe Road Widening, City of Carlsbad, California
« Union Valley Parkway, Santa Barbara County, California
Universities/Colleges
• California State University, San Marcos Master Plan, San Marcos, California
• San Diego State University, Campus Master Plan Updates 2000 and 2005, San Diego, California
• San Diego State University, Campus Master Plan 1999, San Diego, California
• University of California, San Diego, Student Housing Project, La Jolla, California
Schools (K-12)
» Poway Unified School District, San Diego, California
• San Dieguito Union High School District, Encinitas, California
• Torrey Del Mar Day Care, San Diego, California
Commercial/Office/lndustrial
• Chevron Montebello Property
• Eastlake Village Center
• Maryland Hotel
• Southern Land Swap Commercial Center
• Torrey View Corporate Center
• University Commons Rock Crusher Noise Monitoring
• University Walk
Residential (subdivisions)
• Village of San Jacinto Project EIR, San Jacinto, California
• 4S Ranch Village
• 809 Front Street Condominium
DUDEK /nsert project name here in this font style Page 3 of 5
Mike Komula- continued
• Brookfield Homes
• Chocolate Mountain Ranch, East San Diego County, California
• Dennery Ranch
• Garden Homes at Santaluz, San Diego, California
• Maravilla Senior Community Project, Santa Barbara, California
• Newland/Torrey Reserve Residential, San Diego, California
• Rancho Santalina EIR, San Marcos, California
« Santa Barbara Beach Properties
• Sitella Multi-Family
• Sunbow PA-1OA, Unit 14, Chula Vista, California
Master-Planned Communities (includes mixed-use projects)
• 4S Ranch-San Moritz-PA 37, San Diego, California
• 4S Ranch, TM 5216-2, San Diego, California
« 4S Ranch, TM 5067-2, San Diego, California
• 4S Ranch, Unit 6, San Diego, California
• 4S Ranch Village, San Diego, California
• 4S Ranch Village Gas Stations, San Diego, California
• Alicante-Chula Vista, Chula Vista, California
• Encinitas Ranch Restoration
• Kelwood Development Community, 4S Ranch
• Las Montanas/Synthesis, South San Diego County, California
• Merriam Mountains EIR Project, San Diego County, California
• Otay Ranch Village 11, Chula Vista, California
• Otay Ranch Spring Survey, South San Diego County, California
• Rosemary Lane at 4S Ranch PA 34 Project, San Diego, California
• Springfield at San Elijo Hills, San Marcos, California
• University Commons Due Diligence, San Marcos, California
• University Commons PA 3 & 6, San Marcos, California
Parks and Recreational Facilities (includes golf courses and water feature projects)
• Anza-Borrego Desert State Park
• Camino Ruiz Sports Park
• Manchester Sports Park, Encinitas, California
DUDEK Insert project name here in this font style Page 4 of 5
Mike Komula - continued
• Ray and Joan Kroc Community Center
• Trump National Golf Course (Ocean Trails), Rancho Palos Verdes, Los Angeles County, California
Habitat Conservation Plans
• NCCP Southern Subregion, Orange County California
DU DEK /nsert project name here in this font style Page 5 of 5
COY
COAST LAW GROUP
11^0 S. Coac-i Hwy
Enciniiss, CA 92024
Te! 760-942-8505
September 15, 200S
Scott Donneli via electronic mail and hand delivery
Senior Planner Scott.Donnell@carlsbadca.gov
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
scott.donnell@carlsbadca.gov
RE: AB #19,964 - DESALINATION PROJECT CHANGES. Encina Specific Plan SP 144(H); Precise
Development Plan POP 00-02(8), POP 00-02; Development Agreement DA 05-01{A); Addendum to
the Environmental Impact Report 03-05, Habitat Management Plan Permit HMP 05-08; Ordinance
Nos. CS-057, CS-058, CS-059. Resolution No. 2009-223; Redevelopment Permit RP 05-02;
Commission Resolution No. 477.
Dear Mr. Donneli,
Please accept the following comments on behalf of San Diego Coastkeeper, Coastal Environmental Rights
Foundation, (collectively "Environmental Groups"), non-profit environmental organizations protecting San Diego
County's bays, beaches, watersheds and ocean. Environmental Groups have serious concerns regarding the City
of Carlsbad's ("City") California Environmental Quality Act (CEQA) Addendum, to the City's Precise Development
Plan and Desalination Plant Project Final Environmental Impact Report (EIR 03-05) ("Addendum"), as well as the
City's other various approvals.
I. The City Is Required to Prepare a SEIR*
a. Use of an Addendum is Improper
The City's decision to process Project and delivery pipeline changes through an addendum is inappropriate and
contrary to CEQA. An addendum may be used when none of the conditions requiring a subsequent or
supplemental EIR (SEIR) have occurred. CEQA Guideline § 15164(a). However, many of the applicant's
proposed changes, other Project changes, new information, and changed circumstances surrounding the Project
since certification of the FEIR are substantial and require evaluation in a SEIR. PRC § 21166; CEQA Guideline §
15162.
b. Project Operational Characteristics Have Changed
The City did not approve the Project operating independently of Encina Power Station (EPS). The City cannot
now assert the Project has not changed since certification of the FEIR in 2006. The Project approved did not
consider stand-alone operations, or extended periods of EPS shutdown. The Project approved in 2006
considered a co-located facility with "historical extremes" requiring 304 million gallons per day (MGD) intake by
EPS. The FEIR explained the analysis:
The EPS can run with an "unheated" discharge (i.e., no power plant operation). To account for
these variables, two "historical extreme" conditions were modeled, each reflective of a pump
configuration that could be used during low-flow operations.
FEIR, p.4.3-44. Thus, the FEIR did not analyze a scenario or consider it reasonable to assume that on certain
days, EPS would have zero intake.1 The City's Additional Response to Comments also make clear the "Final EIR
1 "...the dataset used in the EIR analysis represents operation of all production units, and is considered to provide data
representing the current operational characteristics from which to analyze existing baseline conditions. The average cooling
water discharge rate over the 20-year period was 576 mgd. Daily average flow rates have not fallen below 304 mgd in the 20-
AP -'*lr'.9C4 - Destination Project Changes
Environments! Groups' Comments
SepU'rnbtr 15, 2009
Psee2of 34
assume[d] continued operation of the [EPS] within the parameter? of its historical operating conditions" based on
"reasonably foreseeable circumstances." FEiR Additional Response to Comments, June 13, ?OC6, p.1
Nonetheless, since certification of the FEIR, it has become unmistakably clear:
1) EPS now operates at lower intake volumes;
2) EPS will shutdown units 1-3 and repower to the closed-cycle Carlsbad Energy Center Project
(CECP)2;
3) CECP will include a small-scale desalination plant that will be reviewed by the Regional Board in
November 2009; and
4) EPS will shutdown completely in the near future3
The table below shows the daily flows for EPS submitted to the Regional Board pursuant to EPS' NPDES permit.4
DATE Combined Discharge (million gallons per day)
6/1/2009 228.6
6/2/2009 372.1
6/3/2009 443.5
6/4/2009 439.6
6/5/2009 293.8
6/6/2009 293.8
6/7/2009 263.8
6/8/2009 144
6/9/2009 39.9
6/10/2009 0
6/11/2009 12.4
6/12/2009 0
6/13/2009 0
6/14/2009 0
6/15/2009 0
6/16/2009 ' 0
6/17/2009 0
6/18/2009 47.3
6/19/2009 232.3
6/20/2009 144
6/21/2009 144
6/22/2009 144
year dataset." FEIR, p. 3-15; "The 'historical extreme' scenarios are considered to be short-term and episodic." PEER, p. 4.3-50;
FEIR, p. 4.3-44-46.
2 Carlsbad Energy Center Project (07-Afc-6) Status Report #9, September 10,2009 (expecting FSA, and turning proceeding over
to the Committee and Hearing Office by September 24, 2009)
(htrp://www.energy.ca.gov/sitingcases/carlsbad/documents/2009-09-10_CEC_Staffs_Status_Report_09_TN-53192.PDF)
3 Draft Statewide Water Quality Control Policy On The Use Of Coastal And Esruarine Waters For Power Plant Cooling, June
2009 (requires EPS compliance by 2017 and assumes repower to closed cycle for units 1-3)
4 Pursuant to Order No. R9-2006-0043 (NPDES No. CA0001350). section VII. Paragraph B.2, submitted July 29, 2009.
Fr-.vii'.nments! Groups' Corrments
6/23/2009 111.3
6/24/2009 7.6
6/25/2009 0
6/26/2009 C
6/27/2009 410.5
6/28/2009 341.8
6/29/2009 667,1
6/30/2009 . 565.4
Average Daily Flow 178.3
The days highlighted in yellow represent days during which EPS flows would be insufficient to provide the
Project's required intake flow of 304 MGD. Thus, in June 2009 the Project would have had to pump all or a portion
of the water required 22 out of 30 days, or 73 percsrst of the time. The monthly average was only 178 MGD.
Moreover, on nine of those days EPS did not take in or discharge any water.
Thus, the Project has changed such that operational characteristics would not be the "same as with the approved
Project." (Addendum, p. 19) The FEIR did not (and could not have) analyzed new requirements imposed by
subsequent reviewing agencies:
1) Regional Board—at times when the EPS is not generating electricity (temporarily or permanently) the
EPS intake pumps would be decoupled from EPS condensers and one pump from unit 4 and 5 would be
operated, as opposed to two pumps from one unit. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, March 9, 2009 (Flow Plan), p. 3-7.5
2) Regional Board - Poseidon is required to submit a technical report evaluating the feasibility of any
additional design or technology features within 45 days of being notified by EPS that all generating units
will be non-operational for power production, and may be required to implement additional measures
during the prolonged period of temporary shutdown. Order No. R9-2009-0038, p.3.
3) State Board - EPS will not be allowed to intake sea water when it is not generating electricity.6
II. The Addendum Results in Project Segmentation and Piecemealinq
The City now continues to opine on the significance of certain aspects of stand-alone operations, all the while
refusing to acknowledge the reality of the stand-alone operations in the near future. But a project is defined as
"the whole of an action" that may result in either a direct or reasonably foreseeable indirect physical change in the
environment. CEQA Guidelines § 15378. The "term 'project' refers to the activity which is being approved and
which may be subject to several discretionary approvals by government agencies." Id. The environmental impact
of future Project operations without EPS units 1 to 3 must be analyzed because it is a "reasonably foreseeable
consequence" of the Project, and "will be significant, in that it will likely change the scope or nature of the initial
5 "The [Project] must comply with the best available design requirement in Water Code section 13142.5(b) when
EPS is operating for the benefit of [Project] (whether EPS is temporarily shut down or not otherwise discharging
sufficient volume of water to meet [Project's] operational needs). Features that will be incorporated in the
desalination plant design to reduce impingement, entrainment, and flow collection when EPS is temporarily shut
down include operation of a modified (EPS) pump configuration to reduce both inlet (bar racks) and fine screen
velocity, and ambient temperature processing/'Order No. R9-2009-0038, p.7.
6 No later than one year after the effective date of this Policy, the owner or operator of an existing power plant
unit that is not directly engaging in power generating activities, or critical system maintenance, shall cease intake
flows, unless the owner or operator demonstrates to the Regional Water Board that a reduced minimum flow is
necessary for operations. Draft Statewide Water Quality Control Policy On The Use Of Coastal And Estuarine Waters For
Power Plant Cooling, June 2009, p.4.
A3 ^'19,964- Declination Frojcxt Channel
nnvirvri'Tientai Gioups' Corv,inc«its
Sepi- <nber 15, 2009
Pare 4 rfj4
project or its environmental effects." inure! Heights Improvement Ass'n v. Regents of University cf CK!. (1968) 4/
Gel. 3d. 376, 396.
The EPS re-power to CECP is more than reasonably foreseeable.7 As soon as 2010, units 1 to 3 will be
demolished, EPS cii fuel tanks 5, 6 and 7 would be demolished, and the CECP will be built, including a new, small
desalination plant.8 As detailed above, EPS flows are not sufficient to provide 304 MGD to the Project, and will be
further reduced upon retirement of units 1 to 3 and implementation of the State Board's OTC Policy. The Project
will have to implement new design and technology measures if EPS flows discontinue for six months. All of these
new developments constitute Project changes and must be analyzed in a SEIR.
III. Cumulative Impacts Will Result from Projects Undergoing Construction Simultaneously With the
Project and Delivery Pipelines
Several other (previously unanalyzed) projects will simultaneously be undergoing construction within the Project
and delivery pipeline vicinity. The cumulative impacts from these projects have not been discussed in the FEIR or
Addendum, but require analysis and avoidance or mitigation.
1) La Golondrina and La Costa Meadows Sewer Extension (SCH# 2009021109)
a. Construction of two gravity flow sewer pipeline segments including 2,800 lineal feet of pipe to be
cut, filled with sand, and capped with a concrete plug
2) Bridges at Aviara (SCH# 2009021030)
a. Development of 428 senior condominiums and 76 senior income restricted apartments,
completion of Poinsettia Lane, and a double span bridge over an existing canyon
3) El Fuerte View (under review until October 4, 2009)
a. Grading and subdivision of 3.9 acre property into six residential lots, private street lot, and one
common space lot
4) Bressi Ranch Industrial Lots
a. Subdivision of 40 industrial lots.
5) Alga Norte Park ---,
a. A 32-acre project on Alacante Road and Poinsettia Lane
IV. Significant Environmental Impacts Will Result from Project Changes
a. Traffic Impacts
The conclusion that proposed changes will not increase any previously identified impacts or create new potential
impacts is unsupported. (Addendum, p.37). The traffic impacts from installation of Project pipelines along Melrose
Drive (south of Palomar Airport Road) and Lionshead Avenue to Linda Vista Road to 9th Street have not been
studied. Merely claiming the impacts will be similar to those evaluated in the FEIR is insufficient. Rather, as the
FEIR mentions, impacts must be evaluated by comparing existing traffic conditions to traffic conditions during
construction of the pipelines. (FEIR, p.4.10-3).
Impacts are considered to be significant if the project would:
a. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of
the street system.
b. Exceed an applicable adopted level of service standard either individually or cumulatively.
7 CECP Preliminary Staff Assessment, December 2008.'" ~
8 Id. at p. 3-2.
http://carlsbadenergycenter.com/pdf/CECP%20FACT%20OR%20FICTION%20FINAL%20OCTOBER%202008.pdf
: http://www.energy.ca. gov/sitingcases/carlsbad/documents/2007-11-
03 NOTICE OF RECEIPT SUPPLEMENTAL A.PDF;
c. Result in a change in air traffic pat'.erns, including either an increase in iieffic levels cr a change in
location that results in substantial safety riskc.
d. Substantially increase hazards due to E design feature or incompatible uses.
e. Result in inadequate emergency access.
f. Result in inadequate parking capacity.
g. Conflict with adopted policies, plans or programs supporting alternative transportation.
(Appendix G of CEQA Guidelines for significance). Neither the Addendum nor does the FEIR describes, any level
of detail, the traffic impacts of construction within the road rights-of-way. (Addendum, p. 37; FEIR, p. 4.10-9).
Moreover, much of the new proposed pipeline route will be in San Marcos, which will rely upon the City's
Addendum in determining significance of traffic impacts. The Addendum does not provide any insight as to the
averaae daily trips or level of service requirements along pipeline route roads in San Marcos. (Addendum, p. 36-
37).
Rather, the Addendum speaks in generalities about total pipeline length, reduced hauling trips, and construction-
related vehicle trips. The "construction traffic impacts of the revised Project would be reduced from what was
anticipated for the approved Project due to the reduced amount of soil hauling and overall reduced length of off-
site pipelines." (Addendum, p.36-37). Though the revised Project may result in reduced pipeline length, the
Addendum does not discuss impacts from the movement of pipelines to new locations, increase in pipe diameter,
or impacts to specific new pipeline segments. Id.
The mitigation measures identified in the FEIR are also inadequate to render impacts insignificant. (FEIR, p. 4.10-
12-13). Some of the mitigation measures are already being sidestepped by Poseidon's hurried project
amendment approvals.
Prior to issuance of grading permits and/or encroachment permits for work within public
rights-of-way, the Applicant shall provide the ultimate location of soil disposal sites to the
appropriate city...and shall further demonstrate that transport of soil and materials to and
from the proposed sites will not result in Levels of Service during peak hour periods on
affected roadways and intersections falling below acceptable standards established by
the affected cities.
Id. Poseidon has asked the City to issue encroachment permits in the public rights-of-way before the City
approves "construction plans, traffic control plans,4echnical studies, posting of security, permit fees, notice to
proceed, etc...things that [the City] normally have done before [it] issue[s] a ROW permit."(email communication
between Jeremy Riddle, Carlsbad Associate Engineer and Skip Hamman, on August 5, 2009). By granting
conditional approvals before required FEIR mitigation measures are implemented, the City has already begun
chipping away at the credibility of the proposed mitigation measures. The City has shown its desire to bend over
backwards and disregard its own standard procedure for consideration and approval of necessary permits.
Mitigation measures based upon the City's Traffic Control Plan approval and implementation are therefore
baseless. FEIR, p. 4.10-12-13.
Thus, the resulting impacts are unanalyzed and unmitigated! PRC § 21002; 21002.1. Further, deferral of
mitigation measures through a Traffic Control Plan to be submitted after Project approval or permits have been
issued is contrary to CEQA. Sundstrom v. County ofMendocino (1988) 202 Cal. App. 3d 296 (deferral of
mitigation until after project approval renders success of mitigation uncertain); Oro Fino Gold Mining Corporation
v. County of El Dorado (1990) 225 Cal. App. 3d 872, 884-885 (post-approval formulation of mitigation plans
inappropriate because, "in the absence of overriding circumstances, the CEQA process demands that mitigation
measures timely be set forth, that environmental information be complete and relevant, and that environmental
decisions be made in an accountable arena"); Gentry v. City ofMurrieta (1995) 36 Cal. App. 4 1359,1393-1394
(reiterating the principles of Sundstrom and Oro Fino Gold Mining)).
b. Noise Impacts
Though the Addendum stales otherwise, the FEiR concluded no significant noise impacts would result fiom the
Project and iiius imposed no mitigation measures. FEIR, 1-15 (Table 1-1) and 4.9-14; CEQA Findings, p. 20-21,
Addendum, p. 33-34. However, the concurrent construction of ether projects lifted above, the CECP, and the
Project may result in significant noise impacts, especially in residential areas mentioned above. No analysis for
pipeline routes in San Marcos has been completed, as was originally completed for Vista and Oceanside. FEIR,
p. 4.9-1. The construction impacts will not be short in duration, as stated in the Addendum, as pipeline
construction is expected to take 16 months. Addendum, p. 45.
Moreover, noise impacts from nighttime construction have not been discussed. The FEIR points to the City
ordinances limiting construction to daytime hours in all relevant cities. FEIR, p. 4.9-2-4. Once again, the City
anticipates waiving these limitations or simply labeling impacts insignificant. See email from Scott Donnell to Joe
Monaco on June 11, 2009 (regarding waiver of night construction ordinances and simply labeling noise not
"disturbing, excessive, or offensive"). The FEIR's promise that "[a]ll construction activity will be limited to the City
of Carlsbad's permitted hours of construction," is therefore of no consequence. FEIR, p. 4.9-6.
In enacting CEQA, the Legislature has declared the policy of the state to "[t]ake all action necessary to provide
the people of the state with ...freedom from excessive noise." PRC § 21001(b); See a/so, Berkeley Keep Jets •
Over the Bay Committee v. Board of Port Com'rs (2001) 91 Cal.App.4th 1344, 1379 -1380. The City has failed to
analyze the individual and cumulative noise impacts from the Project. In light of the Project changes and the
significant noise impacts, a SEIR is required.
c. Growth Inducement
The Addendum gives little attention to growth inducement impacts, referring to previous analysis in the FEIR.
Addendum, p. 46. The Project will provide up to 50 MGD of potable water to the region, enabling new economic
and population growth. "Development of the Carlsbad Seawater Desalination Plant will assist in the stimulation of
new commercial/industrial expansion, employment, and economic growth." Carlsbad Planning Commission
Resolution No. 6088, p.4. Though the Project may be one factor in removing barriers to such growth, the City
must nonetheless discuss the impacts resulting from one less obstacle to such growth. FEIR, p. 9-5. Response to
August 19, 2009 Letter on Desalination Project Changes, Scott Donnell, p. 5. But for the Project, some growth
would not be possible.
Further, in light of the City's recent approval of a 20 percent reduction in reliance on Project water from FEIR
predictions, enabling 20 percent more water to reach other regional customers, at a minimum this incremental
increase must be discussed.9 Carlsbad Municipal Water District, Resolution No. 1372, adopted August 18, 2009.
d. Aesthetics
The assertion that construction-related short-term and cumulative aesthetic impacts would not result in new
impacts or increase the severity of impacts identified in the FEIR is absurd. Addendum, p.11. The proposed
changes in the pipeline route themselves warrant further discussion and analysis. The City has provided no
evidence of the impacts to San Marcos and Vista Residential and commercial areas during construction. Most of
the area south of Linda Vista Dr, Los Flores Dr, and 9th St in San Marcos is residential. The same is true of
Melrose Drive south of Palomar Airport Road. Many of these areas will have flow control facilities (FCF) built near
the pipelines, requiring undergrounding of structures 15 feet wide , 25 feet long, 11 feet deep to 30 feet wide, 45
feet long, and 11 feet deep. Addendum, p. 10. The aesthetic impacts of digging to place 4,125 to 14,850 cubic
By approving the Project delivery pipeline route and cost apportionment on August 18,2009, the City effectively approved
the Project pipelines and changes before CEQA review was complete. The City limited its discretion with respect to the
Addendum and environmental review, foreclosing meaningful options. No other pipeline delivery options have been
presented or analyzed in the Addendum, resulting in an Addendum that constitutes post hoc rationalization of a previous
approval. Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116,142,194 P.3d 344,363. The City committed "itself to a
definite course of action regarding the project before fully evaluating its environmental effects." Id.; Pub. Res. Code §§ 21100,
21151; CEQA Guideline § 15352.
AB frl9,9G4 - Destination Project Chr-nges
Fnvironn.crilal Gi^ups' Com riant?
r-cplemb'-r 15, Zi'HS
feet of structures in the public right of way or aieas adjacent to the pipeline wi!! most certainly be significant. They
have not been identified. ' ' ~
Construction of the off site water delivery pipelines and purnp station would cause temporary
aesthetic impacts, including equipment storage, materials, soil stockpiling and debris that are
exposed to public views. The use of standard construction measures such as fencing and
screening would be utilized to a limited extent to screen construction areas. Because these
impacts are short-term in nature, and because they affect a limited area, they are not considered
to have a substantial adverse effect on a scenic vista, nor would they substantially damage
scenic resources. Construction activities would not substantially degrade the existing visual
character or quality of the surrounding areas, and are therefore not considered significant.
FEIR, p. 4.1-10 (emphasis added). The FEIR thus found no significant impacts resulting from delivery pipeline
construction. However, the FEIR did not discuss aesthetic impacts of FCF construction. Nor did the FEIR consider
the cumulative impacts of on-going, simultaneous construction of pipelines for over a year, (email communication
between Nick Lyuber and Scott Donnell on May 28, 2009). The impacts of removing dirt, stockpiling dirt for a
year, and excavating an area for a 14,850 square foot FCF in multiple residential neighborhoods have thus not
been adequately analyzed.
The aesthetic impacts of increasing the Project dimensions as follows have also not been adequately
addressed:
OveralTPlant Site Area from 3.2 acres to 5.7 acres
Pretreatment Area height of mostly 3 feet with some 7.5 feet to 27 foot height
Pretreatment Area dimension from 42,632 square feet to 60,000 square feet (almost 50 percent
increase) ,'..-,..
Reverse Osmosis Building from 44,552 sq. feet to 49,700 sq. feet
Solids Handling Building from 19.5 foot height to 25 foot height
Solids Handling Building from one structured two structures, doubling square footage from 2,500
to 5,000 sq. feet
Chemical Storage Area from 5,200 sq. feet to 6,000 sq. feet
Chemical Storage Area allowed limited use of screening walls and now extensively uses walls at
a height of 20 to 30.5 feet
Chemical Storage Area had retaining walls not visible beyond plant but now has 600-foot long
wall along west boundary that is 10 feet tall
Parking spaces increased from 14 to 23 spaces
Though the visible project features arguably have decreased, the height, size, and location of the new features
have not been adequately discussed. Addendum, p.6,11-12. The mitigation measures in the FEIR are equally
inapplicable or insufficient. FEIR, p.4.10-12. None of the FEIR mitigation measures address either the increased
heights, views inland from the ocean, cumulative aesthetic impacts.10
Cumulative aesthetic impacts from concurrent construction of the CECP, including the demolition of units 1 to 3,
the new plant and small desalination plant, and relocation of the administration building are also significant. The
City has simply labeled the Project's incremental effects as not cumulatively considerable. Addendum, p.41. This
type of analysis is exactly the opposite of cumulative impacts analysis. Because each impact may be individually
insignificant, impacts of several projects become cumulatively considerable. CEQA Guideline § 15064(h)(1); see
also CEGA Guideline § 15355(b)("Cumulative impacts can result from individually minor but collectively significant
projects taking place over a period of time"). Contributing to those impacts, the Project's effects are significant
when analyzed cumulatively. The Addendum inappropriately disregards this reasoning, and fails to address the
CEQA mandate to consider cumulative impacts significant. CEQA Guideline § 15065(a)(3).
10 http://carlsbadenergvcenter.com/images/CECP Figure L2-3.pdf: http://carlsbadenerevcenter.com/photo renders.htm
"it is vitaiiy important that an EiR avoid minimizing the a.;:;ii';3'ive impacts. Rather, it must
reflect a conscientious effort to provide public agencies and the general public with
adequate and relevant detailed information about them." [Citation] A cumulative impact
analysis which understates information concerning ihe severity and significance of
cumulative impacts impedes meaningful public discussion and skews the decision-
maker's perspective concerning the environments! consequences of the project, the
necessity for mitigation measures, and the appropriateness of project approval.
Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d. 421, 431 (quoting San
Franciscans For Reasonable Growth v. City and Gounty of San Francisco (1984) 151 Cal.App.3d 61, 80).
e. Air Quality
The air quality analysis in the Addendum suffers from the same flaws as the aesthetics analysis. The City again
addresses impacts through generalities and does not fully explain or consider impacts resulting from individual
changes proposed or other changes occurring since FEIR certification. For example, the City claims the reduction
in pipeline length and earthwork will correspond to reduction in air emissions. However, the City fails to analyze
the specific air quality impacts in San Marcos and Vista from pipeline construction. A decrease in the total amount
of construction does not necessarily equate to decrease in impacts. The air quality impacts to sensitive receptors
in residential neighborhoods surrounding much of the new pipeline routes in San Marcos, Vista, and southern
portions of Melrose Drive have not been discussed in the FEIR or Addendum. Moreover, the air quality impacts
analysis in the FEIR concerns ambient air quality from 2001 to 2003. FEIR, p. 4.2-6. The City has not addressed
degradation of air quality since 2003 or since FEIR certification. Such air quality information is easily obtainable
from the California Air Resources Board.11
For one constituent in particular, the air quality impacts to sensitive receptors will be particularly significant. CEQA
Guidelines, Appendix G.The FEIR concluded during construction the "project's construction emissions are above
the significance threshold for NOx; however, construction would be temporary and would not have a long-term
impact." FEIR, p. 4.2-20. The FEIR also revealed, "NO2 is a respiratory irritant and may affect those with existing
respiratory illness, including asthma. NO2 can also increase the risk of respiratory illness." FEIR, p. 4.2-2.
Sensitive receptors, including children, people with respiratory illness, and elderly individuals, most certainly will
be exposed to NO2 during pipeline and FCF construction in residential neighborhoods. Pipeline construction is
estimated to take 16 months, belying the notion that NO2 impacts will be "temporary" and not significant. FEIR, p.
4.2-20. These impacts must be thoroughly analyzed before they can be considered insignificant.12
Cumulative air quality impacts are also given little attention in the Addendum, but require full analysis. Addendum,
p. 41-42; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692. Project and pipeline
construction impacts will not be short in duration, and will now occur simultaneously with CECP construction,
exacerbating any air quality impacts.13 Id. Further, the FEIR proposed no mitigation measures for cumulative
impacts to PM10 and ozone (for which the San Diego air basin is non-attainment) and NOx and ROC (ozone
precursors). FEIR, p. 5-9. However, a reduction in energy consumption is a feasible alternative, as it will reduce
11 http://www.arb.ca.gov/aqd/aqdpage.htm
12 NCh emissions are presented as an example here because only NOx emissions exceed the FEIR's threshold of
significance. However, all contaminants should be re-evaluated in light of the new pipeline delivery route in
highly residential areas. Moreover, the thresholds considered in the FEIR inappropriately segment Project
construction from pipeline construction so as not to exceed thresholds. FEIR, Appendix D, Tables 6 and 7.
Because the Project will now be constructed at the same time as CECP and in light of other construction projects
proposed along or near the pipeline delivery route, these emissions should be considered additive.
13 CECP construction was expected to begin third quarter of 2009, but will begin after final California Energy Commission
approval, expected in 2010. CECP construction will take 25 months. CECP Preliminary Staff Assessment, December 2008, p. 3-
2.
AB ;;j 9,964- Desalination Project Changes
Fnvircnme'itai Groups' Comments
Se; -terrbt-r IS, 2009
Tare 9 of 14
indirect emissions from energy production. FE!R, p. 5-9. Use of renewable energy is sir.o a feasible mitigation
measure not analyzed.
The FEIR's consideration of indirect emissions resulting from energy use curing Project operations is also no
longer applicable or accurate. FEiR, p. 4.2-19. The water districts, including Carlsbad Municipal Water District
(CMWD), purchasing Project desalinated water have shown no intention to give up their imported water supplies
in exchange for desalinated water. In fact, the CMWD approved a water delivery scheme wherein only 80 percent
of the City's water supply would offset with Project water, with the remaining 20 percent provided by the San
Diego County Water Authority (SDCWA). Carlsbad Municipal Water District, Resolution No. 1372, adopted
August 18, 2009. Moreover, the proposed delivery pipeline changes remove connection to Oceanside and divert
water directly to the SDCWA distribution system, where it may be used to augment current supplies. (Addendum,
p. 9). Therefore, the Project's indirect emission contribution must be recalculated without accounting for "net
increase in power consumption" and rather calculate total emissions from energy requirements. FEIR, p. 4.2-19;
4.2-20, Table 4.2-9.
The FEIR indirect emissions for energy consumption were also based on the assumption that the Project would
receive electricity from EPS. Appendix D, p.29. However, the EPS will re-power and the Project will likely receive
energy from a mix of SDG&E electricity. Indeed, the Project's Green House Gas (GHG) emissions were
calculated based on SDG&E electricity production, not EPS. Poseidon's Energy Minimization and Greenhouse
Gas Reduction Plan14; California Coastal Commission Final Adopted Findings, August 6, 2008, p. 82-83
(Poseidon based energy calculations on use of 246,156 megawatt-hours per year from SDG&E and "intends to
buy all of its energy from SDG&E system power..."). Because SDG&E obtains energy from a variety of sources,
including coal and natural gas plants which have higher emission rates than other sources. Id. at 84. Thus,
indirect emissions from power generation must be recalculated based on new information revealed since FEIR
certification, and changed circumstances surrounding the Project. CEQA Guideline § 15162.
Importantly, the FEIR found none of the Project's direct or indirect air quality impacts significant, and therefore did
not require any mitigation measures. FEIR, p. 4.2-21. Any impacts that are now significant will therefore not be
mitigated.
f. Green House Gas Emissions
The Addendum provides considerable detail on global warming and Poseidon's requirement of net carbon
neutrality through implementation of the Energy Minimization and Greenhouse Gas Reduction Plan (GHG
Plan). Addendum, p. 14-18. However, the City does not address substantial operational changes to the
Project since FEIR certification that will result in increased GHG emissions through energy use.
Poseidon will now be responsible for pumping 304 MGD of seawater and the associated energy demand.
Importantly, only one-third of the 304 million gallons is needed in the reverse osmosis process, while the
remaining 200 million gallons are needed to provide the required dilution for the brine discharge.15 The FEIR
considered a Project that only diverted 104 MGD, relying on EPS to pump the remaining 200 MGD.
The FEIR's technical analysis did not consider zero flow through EPS: "Seawater.flow through the EPS rarely
stops completely (and if it did the desalination plant .could not operate), however, periods of minimal flow do
occur." FEIR Appendix E, Marine Biological Considerations Related To The Reverse Osmosis Desalination Project At The
Encina Power Plant, Carlsbad, CA, p. 15.
The Project will also no longer have a continuous source of heated water. Poseidon's original energy calculations
were based on the expectation that they would be receiving warm water from the power plant after it had cooled
the generators. An industry rule of thumb energy demand calculation holds that for every one degree centigrade
decrease in water temperature there is an accompanying three percent increase in energy demand.16
"http://www.carlsbad-desal.com/media/FinalGHGPlan070308.pdf
15 Order No. R9-2006-0065.
16 Tom Pankratz, editor of Water Desalination Report; Dow Chemical Desalination Manual.
AB -:.'19,9G4- De.Sulir.Kllor, Prr-.iect Changes
Environmenvai Groups' CC'ViniF^ls
September 15, 2003
Page 10 of K
Notably, the FE!R did not contain, any discussion of GKG emissions or global warming. The City is theretr-re new
required to analyze the Project's energy use and resulting GHG emissions, to ensure the Project's impacts are
mitigated to a less than significant level. Pub. Res. Code §21002. Moreover, the mandatory finding of significance
dictated by CEQA Guideline 15065(a)(3) for cumulatively considerable impacts also requires a thorough analysis
to identify these effects "in depth" and "make detailed findings on the feasibility of alternatives or mitigation
measures." 14 CCR 15065(c)(1) and (2).
The Addendum's claim that "net zero" impact on GHG emissions would not result in any new significant effects is
unsubstantiated. Addendum, p. 18. The "net zero" requirement imposed by other agencies will still result in
emissions of approximately 60,000 metric tons of CO2 annually.17 The City provides no explanation of why this is
not significant. The City's assertion that Project water is replacement water is unsupported. Addendum, p. 18. The
SDCWA and member agencies have not agreed to forego their imported water allotments in exchange for product
water. Moreover, the City cannot point to which water sources would be displaced if the Project water did truly
displace other sources. Colorado River sources do not require as much energy as State Water Project sources.
Further, displaced State Water Project water will still travel to neighboring cities in the region, or neighboring
counties.18 Even assuming 100 percent of the Project water displaces an equal amount of State Water Project
water from being delivered to San Diego, the State Water Project water will not simply remain in the Sacramento-
San Joaquin Delta, never to be distributed.
The Project's contribution of almost 100,000 metric tons of CO2 to the atmosphere is substantial and
cumulatively significant. GHG Plan, p.6. The City must analyze this significant impact and detail possible
alternatives and mitigation measures in a SEIR.
V. Substantial Changes will Result in Significant Marine Life Impacts
The City's finding of no significant impacts to the marine environment is absurd in light of the expansive data
brought to light since FEIR certification. Addendum,.p. 19-20. The Regional Board, State Lands Commission
(SLC), and California Coastal Commission (CCC) have all found the Project's entrainment and impingement
impacts significant. The City and the applicant mischaracterize mitigation measures imposed by other agencies
as voluntary, a product of statutory schemes, or over-zealousness. However, the validity of the data underlying
the imposition of mitigation measures cannot be so easily dismissed. In addition to the various significant
environmental impacts detailed extensively above, these significant marine life impacts warrant production of a
SEIR. Any of the SEIR triggers apply to the substantial changes to and surrounding the Project since FEIR
certification. CEQA Guideline § 15162. The City's assertion to the contrary is an abuse of discretion and an affront
to common sense.
a. Project and EPS Operational Characteristics Have Changed Since FEIR Certification
As highlighted above, since FEIR certification, it has become clear the Project will operate in one of four
modes:
1) Co-location when EPS is discharging sufficient volumes for Project operation (EPS discharging
304 MOD); or
2) Co-location for Project benefit when EPS is temporarily shut down (EPS discharging 0 MGD); or
3) Co-location for Project benefit when EPS is operating, but its discharge volume is not sufficient to
meet the Project's intake requirements (EPS is discharging > 304 MGD); or
4) Stand-alone operation when EPS shuts down.
17 http://www.carlsbad-desal.com/media/FinalGHGPlan070308.pdf
18 See SLC Staff Report for Lease Amendment, p. 17-18 ("It should be noted, however, that in light of the current drought,
climate change, and recent and anticipated legal decisions giving rise to reductions in SWP exports from the Delta, MWD may
be expected to take all of the SWP water that they can get in the foreseeable future." );
htrp://arduves.slc.ca.gov/Meetmg_Summaries/2008_Docurnents/08-22-08/ITEMS_AND_EXHIBITS/R55.pdf
Aii ;P;iD,SG4-- Desalination Project Changes
rnviro'.n-ipntsi Groups' Comments
iipten-'her j.r, 2009
Pare 11 of 14
Order No. R9-20G9-0038, p.2. On the other hand, the FEiR merely considered Project impacts compared to EPS
historical baseline operations. FEIR, p. 4.3-36. A "historical extreme" was used as a proxy for evaluating stand-
alone marine life impacts. Addendum, p. 19. But the EPS historical operation scenario does not accurately
describe or analyze all four of the possible operating scenarios because EPS will not operate as historically
predicted at the time of FEIR certification.
The desalination plant feedwater intake will not increase the volume, nor the velocity of the EPS
coolingwater intake nor will it increase the- number of organisms entrained or impinged by the
EPS coolingwater intake structure. Therefore, the project would not result in any additional
impingement effects of the EPS-and"therefore, impingement effects are not considered as
significant impacts attributable to desalination plant operations.
FEIR, p. 4.3-36.
The Project before the City now, or the "activity which is being approved," has changed. CEQA Guideline §
15378(c). The Project must now ensure at least 304 MGD flows through the EPS discharge channel, as the
Project's NPDES permit from the Regional Board requires at least 304 MGD of discharge from EPS for brine
dilution. Order No. R9-2009-0038, p. 1. Various other operational restrictions and requirements have been
imposed by the Regional Board, as well as other agencies. The FEIR does not address these changes.
First, in 2006, the City approved a Project to withdraw 104 MGD of seawater for production of 50 MGD of potable
water (and appurtenant facilities and pipelines).19 FEIR CEQA Findings of Fact and Statement of Overriding
Considerations, p.2. The Project, the "whole of an action", now involves the applicant either negotiating with EPS
to consistently pump 304 MGD, or operating the EPS pumps itself.20 See Section l.b. above. This is a departure
from the Project approved in 2006.
Baseline operating conditions at the time of FEIR certification were considered EPS "historical operating
conditions", or 576 MGD intake. FEIR, p.3-15. The FEIR concluded entrainment and impingement impacts were
not significant, as the normal operating condrtion of 104 MGD, and even the historical extreme, would represent a
reduction in flows from baseline. Addendum, p. 20; FEIR, p. 4.3-36. For purposes of determining whether a SEIR
is needed, the physical change is measured against the previously approved Project. Arguably Poseidon has not
vested any of its permits or rights, as Poseidon has not received any permits, nor has construction begun. Benton
v. Board of Supervisors (1991) 226 Cal.App.3d 1467,1477 ("In our case, the actual physical environment
includes that which [the applicant] has a legal right to build under permits which have already been issued and on
which construction has already begun."). However^ even assuming the baseline condition for CEQA purposes is
the approved 2006 Project, Poseidon could only have vested a right to draw in 104 MGD from EPS discharge.
In contrast, the Project changes since certification now require Poseidon to draw in 304 MGD. Whether Poseidon
is physically operating the pumps or has arranged with EPS to draw in 304 for the Project's benefit, this scenario
is a physical change to the environment resulting from the changed Project. If the Project is operating as the
driver of intake flows, and/or decouples intake from EPS condensers, it will be responsible for all impacts
associated with such operations. This resulting change (200 additional MGD attributable to the Project) will have
significant environmental impacts, which require preparation of a SEIR.
b. Subsequent Agency Action Identified Significant Environmental Impacts
In 2006, the City approved the FEIR and findings for a Precise Development Plan for EPS and the Project; a Redevelopment
Permit; and, a Development Agreement between Carlsbad and Poseidon. Changes to all of these documents are now
proposed.
As mentioned, in light of the State Water Board's OTC Policy, it is unlikely Poseidon will be able to pump 304 MGD
require EPS to pump 304 MGD when such intake is not required for energy production.
ect Changes
i he Addendum itself beiies the City's contention, and the FLiR's conclusion, that the Project will not cause
significant marine life impacts. Id. All agencies listed above required 55.4 acres cf wetland mitigation to offset (he
Project's entrapment impacts. See Comment Letter from CCC Executive Director to Regional Board, May 6,
2008. ^ The City characterizes these "restoration" measures as support for the FEiR finding of no significant
impact. Addendum, p. 20. Hov/ever, the FEIR was incorrect in finding no significant impact.
Since certification, three separate agencies have verified that marine life impacts are significant. These
determinations were based upon an empirical transport model and area of habitat production foregone (AHPF)
calculation of 42.5 acres, first brought to light after FEIR certification. PRC § 21166. The AHPF calculation
triggers a mandatory finding of significance. CEQA Guideline § 15065. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, June 1, 2007, p. 4. The very definition of entrainment implicates marine life
sustainability concerns. CCC Final Adopted Findings, August 6, 2008, p. 40-41 (entrainment defined as:
occurring "when small organisms, such as plankton, fish eggs, larvae, etc., are pulled into an open water
intake").22
Poseidon's first calculations presented to the Regional Board in June 2007 provided an AHPF estimate of 36.8
acres. Poseidon Revised Flow, Entrainment and Impingement Minimization Plan, June 1, 2007, p. 4; CCC Final
Adopted Findings, August 6, 2008, p. 40-41. A CCG expert found additional impact to ocean species, for a total
AHPF of 42.5 acres, at a 50 percent confidence level. CCC Final Adopted Findings for MLMP approval,
December 10, 2008, p.13-16.23 Since certification of the FEIR, all three of the above-named agencies have
required some variation of the Marine Life Mitigation Plan (MLMP), requiring 55.4 acres of wetland creation or
restoration.24 Addendum, p. 20.
c. New Information Reveals Significant Environmental Impacts
Table 2: Adjusted APT Totals
Habitat Type
Estuarine
Nearshore
Total Mitigation
APF (in acres) at thre*
levels of confidence
50%
37
55
80%
49
64
95%
61
72
Conversion
ratio
1:1
10:1
Resulting APF (iu acres) at
three levels of confidence
50%
37
5.5
42,5
80%
49
6.4
55.4
95%
61
7.2
68.2
CCC Final Adopted Findings for MLMP approval, December 10, 2008, p.13-16. at p. 15 (APF is area production
foregone, interchangeable with AHPF).
1 The Regional Board also estimated impingement impacts of 4.7 kg/day, subject to verification through monitoring. Order
No. R9-2009-0038, p.9-10; Addendum, p. 20.
22 The method of calculating entrainment effects involves the use of "proportional mortality," which determines "[t]he
proportion of larvae lost" to give an "estimate of how much overall production of the species in this area is lost due to
entrainment." Id. This calculation gives the area of habitat production foregone due to Project impacts. Id.
23 http://documents.coastal.ca.gov/reports/2008/12/W16a-12-2008.pdf
The CCC approved the MLMP on August 6, 2008 (Mtp://www.coastal.ca.gov/meetings/mtg-mm8-8.htmr): the SLC required
implementation of the MLMP as a condition of Poseidon's lease amendment to Lease PRC 8727.1 on August 22, 2008
(http://archives.slc.ca.gov/Meeting Summaries/2008 Documents/08-22-08/Voting Record.pdf): the Regional Board approved
the Flow Plan incorporating the MLMP on May 13, 2009
(http://www.waterboards.ca.gov/sandiego/board decisions/adopted orders/2009/R9 2009 0038 revl.pdfl.
AB n i9..3£4 - Du".cllr;<-.1 icn f'rc;"ct Chanros
Environ'ru'ruel Groups' Comments
Septemut; 15, ;-OG9
Page 13 of ] A
As indicated in the CCC table above, the three agencies have relied upon a 50 percent confidence level in the
calculation of AMPF in imposing mitigation. The AHPF calculation inherently involves agency discretion as it
requires the agency to choose a level of confidence in the underlying data assumptions. As the lead agency, the
City has not previously seen or evaluated the AHPF methodology used to calculate the 55.4 acres of wetland
mitigation. Now, three years after FEiR certification, the City has before it new, relevant data that requires
analysis pursuant to CEQA. PRC § 21166; CEQA Guideline § 15162. Not only is such analysis required because
of its mandatory significance, but also because the City and applicant themselves admit no previous agency has
reviewed such data pursuant to CEQA. Response to August 19, 2009 Letter on Desalination Project Changes,
Scott Donnell, p. 3 ("None of the permitting agencies has prepared any new, subsequent or supplemental CEQA
documentation, and therefore no new impacts or mitigation measures have been identified under CEQA"), p.4
("None of the conditions or other requirements placed on permits issued by other agencies pursuant to laws,
ordinances, regulations, or policies other than CEQA require analysis under CEQA."); see a/so, Addendum, p. 21.
The City's contends a SEIR is not required because the CCC and Regional Board relied on the same entrainment
data relied upon in the FEIR. Addendum, p. 21.
The APF methodology does not demonstrate any change in the number of marine organisms that
will be entrained or otherwise affected by the Project during stand-alone operations, and therefore
does not constitute "new information" triggering preparation of a supplemental EIR.
Addendum, p. 21. Though the EPS impingement and entrainment sampling relied upon in the FEIR was
conducted in 2004-2005, the impingement and entrainment impacts constitute new information because such
information was not known and could not have been known with the exercise of reasonable diligence.25 CEQA
Guideline § 15162(a)(3). "As a result of an accumulation of information from various sources over a period of time
[other agencies] became concerned with the possibility of a substantially higher risk...". Security Environmental
Systems, Inc. v. South Coast Air Quality Management Dist. (1991) 229 Cal.App.3d 110, 124 ("Security
Environmental Systems").
Since the original [FEIR] was based upon assumptions and not hard data, the new assumptions
raise substantial concern as to the validity bf the original data, and strongly suggest the need for
a reconciliation of adverse assumptions and a full and complete investigation and disclosure of all ~
[impacts].
Id. Similar to Security Environmental Systems, the FEIR's conclusions regarding the significance of marine life
impacts were based on the assumption that EPS would continue to operate as it had historically. FEIR Additional
Response to Comments, June 13, 2006, p.1. Several other underlying assumptions regarding co-located
operations have proven false. Entrainment impacts cannot be minimized because the "most frequently entrained
species are very abundant in the area of EPS intake." Addendum, p. 19. The City's reliance on the Department of
Fish and Game Nearshore Fishery Management Plan (2002), and the idea of surplus larvae production is no
longer a valid entrainment analysis tool. FEIR Additional Response to Comments,, June 13, 2006, p.20. The
CCC, the Regional Board, the SLC, and various other entities have since realized entrainment and impingement
individually and cumulatively cause significant environmental impacts.26
Moreover, the Project's impingement impacts have not been accurately characterized or analyzed. The
Addendum and FEIR both fall short.
25 With regard to entrainment impacts, it should be noted that Poseidon's full entrainment study (ie. underlying data) was not
made publicly available and the CCC's staff's inability to obtain a full copy after numerous attempts shows the futility and
impossibility of the public attempting to obtain and assess the study. CCC Final Adopted Findings, August 6, 2008, p. 43-45.
26 See Understanding Entrainment at Coastal Power Plants: Informing A Program To Study Impacts And Their Reduction, CEC, March
2008 (explaining short-comings of current tools and models and various assumptions).
AC. •rtt?,<jr-t. - Oess;;n3lion r rojoa Genres
Environments! Groups' Cornrr.rrtts
September 15, J.'.'OC
Page I-" i>f 14
i he E!R concluded the Project would not cause any additional impingement losses because it will
not require an inc-ease in the quantity or velocity of water withdrawn relative to the Encina Power
Station. (EiR at 4.3-35.) Under the No Power Plant Operation scenario, approach velocity of the
water flowing through the EPS intake would not exceed 0.5 feet per second. Therefore, the
[Project] will not cause any additional impingement losses to the marine organisms impinged by
the EPS, under the assumed baseline EPS operating conditions, and would not result in
significant impingement effects under the No Power Plant Operation scenario. (EIR at 4.3-36)
Addendum, p. 20. The co-located scenario where EPS is not drawing in 304 MOD, or is temporarily shut down is
not addressed by the explanation above. If EPS draws 304 MOD (or some fraction thereof) for the Project,
approach velocity will exceed .5 feet per second (fps). See Comment Letter from CCC Executive Director to
Regional Board, May 6, 2009.
Poseidon has also recently admitted a calculation error in its impingement data. See Latham & Watkins Letter to
CCC Executive Director, Septembers, 2009, p.1. Poseidon "voluntarily" offered 11 additional acres in mitigation
to the CCC as a result of this math error. Id. at 1-2. Although the letter mischaracterizes the Regional Board's
impingement analysis, it nonetheless acknowledges a calculation error. The Regional Board found impacts of no
less than 4.7 kg/day and up to 7.16 kg/day. Estimation Of The Potential For Impingement Should The CDP
Operate In Stand-Alone Mode, March 9, 2009, p. 13.27 The calculation error and Poseidon's exclusion of two
data points (not made known to the public during FEIR review) required new calculations of the impingement
impacts at the Regional Board. The inclusion of heat treatment impingement impacts was also newly considered
by the Regional Board. Regional Board Staff Report, March 27, 2009, p. 11-13.
VI. Conclusion
The trigger for SEIR preparation has been met. Since FEIR certification new information has come to light, and
substantial changes in the Project and to circumstances of Project operation have been made or proposed. CEQA
Guideline § 15163fe)(1) and (2). Further, many of the City's assumptions regarding Project operations, impacts,
and significance of impacts have proven false, requiring further analysis. The City must evaluate all significant
environmental impacts mentioned above, as well as any other Project impacts, and available alternatives,
avoidance and mitigation measures in a SEIR. Id. For these reasons, and those stated above, the City's approval
of the revised Project, including revisions to necessary agreements, permits, and Addendum, would be contrary to
CEQA. Consequently, we urge the City to deny the requested Project changes and require preparation of a SEIR.
Sincerely,
'•.- v" "
COAST LAW GROUP LLP
MARCO A. GONZALEZ
Attorney for San Diego Coastkeeper
Coastal Environmental Rights Foundation
End.
http://www.waterboards.ca.gov/sandiego/press_room/announcements/carlsbad_desalination/updates_3_13_09/item_131_e.pd
f
LIST OF ADDITONAL DOCUMENTS
I) CCC l-'ina! Adopted Findings.. August 6, 2008 (ATTACK KD in tnriail)
2} CCC Final Adopted Findings for MLMP, December 10, 200K
(http://documents.coastal.ca.gov/reports/2008/12/W16a-12-2008.pdf)
3) Petitioners' Briefs in Surfrider v. SIC (ATTACHED in email)
4) OTC Scoping Policy
(http://vsww.ivaterboardsxa.gov/waterjssues/prog rani s/npdes/docs/cwa316/draft_otcpoticy.pdf)
5) June 2007 Flow Plan
(http://www.waterboards.ca.gov/sandiego/press_room/announcements/carlsbad_desa!ination/up
dates_3_13_09/item_7.pdf)
6) CCC Letter to Regional Board, May 6, 2009
(http://www.waterboards.ca.gov/sandiego/press j"oom/announcements/carlsbad_desalination/up
dates_5_6_09/CCC_ltr.pdf)
1} Final Adopted Order No. R9-2009-0038
(http://www.waterboards.ca.gov/sandiego/board_decisions/adopted_orders/2009/R9_2009_0038_
revl.pdf)
8) Flow Data, June 2009 (ATTACHED in email)
9) Regional Board Staff Report, March 27, 2009
(http://www.waterboards.ca.gov/sandiego/press_room/announcements/carlsbad_desalination/up
dates_3_27_09/sta ff_report_3_27_09.pdf)
10) Latham & Watkins Letter September 3, 2009 (acknowledging impingement calculation error and
offering 11 acres of mitigation ) (ATTACHED in email)
II) Environmental Group Supplemental Comment Letter to Regional Board, May 7, 2009
(http://www.waterboards.ca.gov/sandiego/boardjnfo/agendas/2009/may/itemll/supp doc_10.p
df)
12) CEC Status Report (http://www.energy.ca.gov/sitingcases/carlsbad/documents/2009-09-
10_CEC_Staffs_Status_Report_09_TN-53192.PDF)
13) CECP Figure (http://carlsbadenergycenter.com/images/CECP_Figure_1.2-3.pdf)
14) CEC Notice Of Receipt November 2, 2007
(http://www.energy.ca.gov/sitingcases/carlsbad/documents/2007-ll-
03_NOTICE_OF_RECE1PT_SUPPLEMENTAL_A.PDF)
15) Final GHG Plan (http://www.carlsbad-desal.com/media/FinalGHGPlan070308.pdf)
16) SLC Staff Report 8-22-09 (http://archives.slc.ca.gov/Meeting_Summaries/2008_Documents/08-22-
08/ITEMS_AND_EXHIBlTS/R55.pdf)
17) City staff emails (ATTACHED in email)
18) 2008 Carlsbad Resolution #1372, 8/18/09
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
No.CLG Comment Poseidon Response
1.Please accept the following comments on behalf of
San Diego Coastkeeper, Coastal Environmental
Rights Foundation (collectively "Environmental
Groups"), non-profit environmental organizations
protecting San Diego County's bays, beaches,
watersheds and ocean. Environmental Groups have
serious concerns regarding the City of Carlsbad's
("City") California Environmental Quality Act
(CEQA) Addendum, to the City's Precise
Development Plan and Desalination Plant Project
Final Environmental Impact Report (EIR 03-05)
("Addendum"), as well as the City's other various
approvals.
Poseidon objects to the submission of the September 15, 2009 CLG Letter,
along with over 800 pages of cited documents, less than one hour before the
City Council hearing. These materials were not submitted in a manner that
would allow the City Council to reasonably review and consider them prior to
the hearing and thus should not be included as part of the administrative record
before the City. The Letter was emailed to Scott Donnell, the City Project
planner, after 5:00 p.m. on the day of the City Council hearing, and CLG only
provided one CD to the City with its supporting material during the actual
hearing. The City Council could not plausibly be expected to read and consider
over 800 pages worth of supporting comments while simultaneously conducting
the City Council hearing.
CLG's submission of over 800 pages of objections less than one hour before the
City Council hearing is very similar to the situation faced by Justice Butler at
the Court of Appeal in San Diego in the case of City ofPoway v. City of San
Diego (1984) 155 Cal.App.3d 1037. In that case the opponents of the Sabre
Springs development presented the City of San Diego with 53 challenges to the
project on the day of the City Council hearing on the project. Justice Butler
ruled that these late comments did not required detailed responses from the City
of San Diego:
"On August 10, the day of the hearing, Poway filed 53 challenges to the
EIR. Understandably, delay is a tactic in environmental disputes to force
developers to accede to project design changes simply because of the
economic pressures to move a development forward. Fairness is a concept
not yet outmoded. We think the dumping of 53 challenges on the day of the
hearing without explanation as to the obvious delay is unconscionable."
Similarly, the behavior of CLG and their clients, with their decision to dump
over 800 pages of challenges on the evening of the hearing, is also
"unconscionable."
SDN694480.-2
No.CLG Comment Poseidon Response
2.I. The City Is Required to Prepare a SEIR
a. Use of an Addendum is Improper
The City's decision to process Project and delivery
pipeline changes through an addendum is
inappropriate and contrary to CEQA. An
addendum may be used when none of the
conditions requiring a subsequent or supplemental
EIR (SEIR) have occurred. CEQA Guideline §
15164(a). However, many of the applicant's
proposed changes, other Project changes, new
information, and changed circumstances
surrounding the Project since certification of the
FEIR are substantial and require evaluation in a
SEIR. PRC § 21166; CEQA Guideline § 15162.
CLG again fails to assert the proper legal standard under CEQA for either the
preparation of an addendum or a supplemental or subsequent EIR. CEQA
Guideline § 15164(a) states that, "the lead agency shall prepare an addendum to
a previously certified EIR if some changes or additions are necessary but none
of the conditions described in Section 15162 calling for the preparation of a
subsequent EIR have occurred." Both CEQA § 21166 and its analog Guidelines
§ 15162 provide that a SEIR may not be prepared in the absence of the
following: (1) substantial changes to the project, (2) substantial changes to the
project circumstances, or (3) new information of substantial importance.
(CEQA § 21166; Guidelines §§ 15162(a), 15163(a).) Specifically, Guidelines §
15162(a) states:
When an EIR has been certified or a negative declaration adopted for a
project, no subsequent EIR shall be prepared for that project unless the
lead agency determines, on the basis of substantial evidence in the light
of the whole record, one or more of the following:
(1) Substantial changes are proposed in the project which will
require major revisions of the previous EIR or negative declaration due
to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified significant
effects;
(2) Substantial changes occur with respect to the circumstances
under which the project is undertaken which will require major
revisions of the previous EIR or negative declaration due to the
involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects; or
(3) New information of substantial importance, which was not
known and could not have been known with the exercise of reasonable
diligence at the time the previous EIR was certified as complete or the
negative declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not
discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially
more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be
feasible would in fact be feasible and would substantially reduce one or
SD\694480.2
No.CLG Comment Poseidon Response
more significant effects of the project, but the project proponents
decline to adopt the mitigation measure or alternative; or
(D) Mitigation measures or alternatives which are considerably
different from those analyzed in the previous EIR would substantially
reduce one or more significant effects on the environment, but the
project proponents decline to adopt the mitigation measure or
alternative.
(CEQA Guidelines § 15162(a); accord CEQA § 21166.)
As shown below and in the corresponding September 14, 2009 Latham &
Watkins response letter, CLG has not shown any substantial Project change,
substantial change in the Project circumstances, or new information of
substantial importance that was not known in 2006 and could not have been
known with the exercise of reasonable diligence which would result in new or
increased significant impacts. Therefore, the City properly prepared the
Addendum to document the minor and immaterial modifications to the Project.
CEQA Guideline § 15164(a).
3. b. Project Operational Characteristics Have
Changed
The City did not approve the Project operating
independently of Encina Power Station (EPS).
This comment is simply incorrect. The Additional Responses to Comment
incorporated into the FEIR provided a comprehensive analysis of the "No
Power Plant Operation" scenario wherein the desalination plant would operate
independently from the EPS. In fact, the No Power Plant Operation analysis
was completed in 2006 at the request of CLG and its clients. Therefore it is
surprising that CLG now would assert otherwise.
The Additional Responses to Comments clearly shows that the City, responding
to comments by CLG and other groups, performed an analysis of the Project in
"stand-alone" or "No Power Plant" mode of operation:
"Certain public comments received on the EIR reflect different opinions on
what is considered to be 'reasonable' relative to assumptions for the continued
operation of the EPS. Certain commentors asserted that shut-down of the EPS
is relatively certain within the foreseeable future. These commentors further
assert that the EIR analysis should take into account operation of the
desalination plant under a scenario in which the EPS is no longer operating.
While as noted above, the City believes it is reasonably foreseeable that EPS
SD\694480.;
No.CLG Comment Poseidon Response
will continue to operate, the EIR does contain information that analyzes
operation of the desalination plant in the absence of EPS operation. The
following summary and clarification is provided to demonstrate more clearly
that even if the EPS were to shut down permanently or for extended periods of
time, the analysis and conclusions of the Final EIR are still accurate and valid."
(Additional Responses to Comments, at 2.)
4.The City cannot now assert the Project has not
changed since certification of the FEIR in 2006.
The City is not asserting that the Project has not changed since the certification
of the FEIR in 2006. Indeed, the current project approvals before the City
Council demonstrate that Poseidon is requesting minor and immaterial
modifications to the Project site to reflect final Project design. However, as the
Addendum shows, this minor site reconfiguration does not result in any new or
increased significant impacts which would authorize the preparation of a SEIR
under CEQA. (CEQA Guidelines § 15162(a); accord CEQA § 21166.)
The Project approved did not consider stand-alone
operations, or extended periods of EPS shutdown.
The Project approved in 2006 considered a co-
located facility with "historical extremes" requiring
304 million gallons per day (MOD) intake by EPS.
The FEIR explained the analysis The EPS can run
with an "unheated" discharge (i.e., no power plant
operation). To account for these variables, two
"historical extreme" conditions were modeled, each
reflective of a pump configuration that could be
used during low-flow operations.
CLG is confusing two separate issues associated with the City's 2006 review of
the Project. First, as CLG notes, the City's 2006 approvals did not authorize
stand-alone operations of the Project. Instead, the City required that in the event
that EPS were to fully shut down and the Project were to operate independently,
"Poseidon and its successors would have to obtain new permits and undergo
new CEQA compliance." (Additional Responses to Comments, at 2.)
However, notwithstanding the extent of Project operations approved by the City
in 2006, the City in its FEIR fully analyzed the operation of the Project under a
scenario in which the EPS was no longer operating, i.e. the No Power Plant
Operation scenario. The Additional Responses to Comments specifically state
that:
"The Lead Agency and the Applicant have analyzed the impacts of the project
with and without the operations of the Encina Power Station (EPS). This
information is included in the Final EIR and Appendix E thereto. The resource
areas potentially impacted under the "No Power Plant Operation" scenario are
(1) Aesthetics; (2) Air Quality (3) Marine Biology - brine discharge; (4) Marine
Biology - entrainment/impingement; and (5) Land Use. The baseline used by
the lead agency for measuring potential environmental impacts of the project
under CEQA is the current physical environment ("With Power Plant
Operation" scenario), including current operating conditions. However, the ,
SDN694480.2
No.CLG Comment Poseidon Response
worst case scenario in the Final EIR analyzed the No Power Plant Operation
scenario to determine the level of significance in the "historical extreme." The
Final EIR contains substantial evidence that shows that the impacts from a No
Power Plant Operation scenario to have the same level of significance as the
With Power Plant Operation scenario for all of the impact areas."
Thus, it is clear that in reviewing the Project in the No Power Plant Operation
scenario, the City has reviewed the Project throughout the complete range of
EPS operations, including the With Power Plant Operation, and No Power Plant
Operation, and every operating scenario of the desalination plant with EPS
operation in between. By making vague references to "historical extremes" and
continually ignoring the full analysis of the range of EPS operations, the
commenter is simply trying to confuse the reader. By analyzing the With Power
Plant Operation scenario and the No Power Plant Operation scenario, the City
has sufficiently completed an analysis of every operating scenario in between.
It is unnecessary to individually review every conceivable scenario that fall
between either end of the EPS operation spectrum. (See Village Laguna of
Laguna Beach v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1028-32
[holding that an EIR need not analyze the impacts of hypothetical alternatives of
dwelling unit counts falling in between the identified alternatives].)
Thus, the FEIR did not analyze a scenario or
consider it reasonable to assume that on certain
days, EPS would have zero intake.
As shown above, the City has analyzed the entire range of EPS operations,
including from full EPS operation to zero EPS operation and found that "the
impacts from a No Power Plant Operation scenario will have the same level of
significance as the With Power Plant Operation scenario for all of the impact
areas." (Additional Responses to Comments, at 3.) More specifically, under the
No Power Plant Operation scenario, the analysis assumed that the EPS would
have zero intake and the desalination plant would be responsible for the full 304
MOD necessary for desalination plant operations: "[T]he 304 MGD flow rate is
used as the worst case operating condition, under the assumption that the
discharge is 'unheated', which therefore represents conditions without operation
of the EPS." (Additional Responses to Comments, at 11.)
7.The City's Additional Responses to Comments also
make clear the "Final EIR assume[d] continued
operation of the [EPS] within the parameters of its
historical operating conditions" based on
In an attempt to confuse the reader, this comment selectively quotes one
sentence of the Additional Responses to Comments while ignoring the
subsequent section which clearly states: "[T]he EIR does contain information
that analyzes operation of the desalination plant in the absence of EPS
SD\694480.2
No.
8.
9.
10.
11.
12.
CLG Comment
"reasonably foreseeable circumstances." (FEIR
Additional Response to Comments, June 13, 2006,
P.I.)
Nonetheless, since certification of the FEIR, it has
become unmistakably clear: 1) EPS now operates at
lower intake volumes;
2) EPS will shutdown units 1-3 and repowerto the
closed-cycle Carlsbad Energy Center Project
(CECP);
3) CECP will include a small-scale desalination
plant that will be reviewed by the Regional Board
in November 2009; and
4) EPS will shutdown completely in the near future.
The table below shows the daily flows for EPS
submitted to the Regional Board pursuant to EPS'
NPDES permit. The days highlighted in yellow
Poseidon Response
operation." (Additional Responses to Comments, at 2.)
As stated above, the FEIR has analyzed the entire range of EPS operations,
including from full EPS operation to zero EPS operation, and found that "the
impacts from a No Power Plant Operation scenario will have the same level of
significance as the With Power Plant Operation scenario for all of the impact
areas." (Additional Responses to Comments, at 3.) Therefore, the City has
already reviewed the scenario presented by CLG's unsupported assertion that
EPS now operates at lower intake volumes.
The comment assumes the future retirement of units 1, 2, and 3. The permanent
shutdown of Units 1, 2, and 3 has been proposed as part of the Carlsbad Energy
Center (California Energy Commission Application for Certification No. 07-
AFC-06). As Poseidon has consistently stated and as the Regional Board
properly found in approving Order No. R9-2009-0038, although the shutdown
of three out of five of the EPS power generation units has been proposed as part
of the Carlsbad Energy Center project, such proposal has not been certified by
the California Energy Commission and "it is speculative at this time to
determine whether the project will be approved" by the CEC and constructed
following any such approval. (Regional Board RTC #50 at 51-52.) Even if that
project were approved and constructed, and the three EPS units were shut down,
two units with a total intake capacity of 633 MGD would remain online and
could provide sufficient discharge to satisfy the Project's needs. (Id.) In
addition, a Cabrillo representative testified to the State Lands Commission in
October 2007 that two of the EPS units would continue to operate "indefinitely"
and cannot be shut down unless Cal-ISO determines they are no longer needed
for grid stability. (Excerpt from SLC Transcript at 153; Exhibit C, Final CCC
Findings, at 14.)
See RTC # 9 above.
See RTC # 9 above.
CLG mischaracterizes overall EPS flow operations by selectively choosing
daily flow data from only one month. Contrary to CLG's assertions, this table
simply demonstrates the normal ebb and flow of EPS daily flow. Indeed, as the
SD\694480.2
No.CLG Comment Poseidon Response
represent days during which EPS flows would be
insufficient to provide the Project's required intake
flow of 304 MOD. Thus, in June 2009 the Project
would have had to pump all or a portion of the
water required 22 out of 30 days, or 73 percent of
the time. The monthly average was only 178 MOD.
Moreover, on nine of those days EPS did not take
in or discharge any water.
Regional Board found, although the cooling water withdrawals of the EPS vary
from year to year, information available from 2008 indicates that the EPS would
have met approximately 89% percent of the CDP's water needs (i.e., 304
MOD), had the CDP been in operation in calendar year 2008 (March 27, 2009
Flow, Entrainment and Impingement Minimization Plan, Attachment 1 - EPS
2008 Daily Flow Data). Since the fifth EPS generating unit (Unit 5) was put into
service in 1976, annual water use at the EPS for cooling water purposes has
never dropped below 61% of the water that would be needed on a daily basis by
the CDP. (Minimization Plan, 6-4.) (Regional Board RTC, at 2.)
Moreover, the FEIR analyzed the entire range of EPS operations, including
from full EPS operation to zero EPS operation, and found that "the impacts
from a No Power Plant Operation scenario will have the same level of
significance as the With Power Plant Operation scenario for all of the impact
areas." (Additional Responses to Comments, at 3.) Therefore, the City has
already reviewed the scenario in which EPS will not take in or discharge any
water.
13.Thus, the Project has changed such that operational
characteristics would not be the "same as with the
approved Project." (Addendum, p. 19) The FEIR
did not (and could not have) analyzed new
requirements imposed by subsequent reviewing
agencies:
1) Regional Board-at times when the EPS is not
generating electricity (temporarily or permanently)
the EPS intake pumps would be decoupled from
EPS condensers and one pump from unit 4 and 5
would be operated, as opposed to two pumps from
one unit. Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, March 9,2009
(Flow Plan), p. 3_7 5
2) Regional Board - Poseidon is required to submit
a technical report evaluating the feasibility of any
additional design or technology features within 45
The commenter is unclear on how the Project's operational characteristics have
changed from what was analyzed in the 2006 FEIR. The City approved a 50
MOD desalination plant in 2006, and the Project currently before the City
remains a 50 MOD desalination plant. Additionally, by analyzing the With
Power Plant Operation scenario and the No Power Plant Operation scenario, the
City has sufficiently completed an analysis of every operating scenario in
between. It is unnecessary to individually review every conceivable scenario
that may fall between either end of the EPS operation spectrum. (See Village
Laguna of Laguna Beach v. Board of Supervisors (1982) 134 Cal.App.3d 1022,
1028-32].)
Furthermore, none of the "new requirements" cited by this comment would
involve new or increased environmental impacts that would require further
environmental review. Indeed, most of the new requirements result in the
minimization of already insignificant environmental impacts:
(1) The comment cites to a Project design feature that the Regional Board found
would minimize impingement. The Regional Board found that using one pump
SD\694480.2
No.CLG Comment Poseidon Response
days of being notified by EPS that all generating
units will be non-operational for power production,
and may be required to implement additional
measures during the prolonged period of temporary
shutdown. Order No. R9-2009-0038, p.3.
3) State Board - EPS will not be allowed to intake
sea water when it is not generating electricity.
from two independent generating units instead of two pumps from one
generating unit allows for the same water flow through a two-times larger area,
reducing the volume and velocity of the water transported through a particular
intake channel, and therefore across the racks and screens for that channel,
which reduces impingement. (Regional Board RTC #52 at 53-54.)
(2) The comment correctly states that Poseidon is required to submit a technical
report to the Regional Board in the event that all EPS generating units will be
shut down. This technical report will detail the feasibility of any additional
design or technology features that may have become available since approval of
Order No. R9-2009-0038 that could further minimize entrainment and
impingement impacts.
(3) The comment cites to a draft statewide policy that would require EPS to
forgo the intake of sea water when it is not generating electricity. This presents
the exact factual scenario that was described and analyzed in the FEIR by the
No Power Plant Operation scenario. Having already found that "the impacts
from a No Power Plant Operation scenario will have the same level of
significance as the With Power Plant Operation scenario for all of the impact
areas", further environmental review is not necessary.
SD\694480.2
No.
14.
15.
16.
17.
CLG Comment
The City now continues to opine on the
significance of certain aspects of stand-alone
operations all the while refusing to acknowledge
the reality of the stand-alone operations in the near
future. But a project is defined as "the whole of an
action" that may result in either a direct or
reasonably foreseeable indirect physical change in
the environment. CEQA Guidelines § 15378. The
"term 'project' refers to the activity which is being
approved and which may be subject to several
discretionary approvals by government agencies."
Id. The environmental impact of future Project
operations without EPS units 1 to 3 must be
analyzed because it is a "reasonably foreseeable
consequence" of the Project, and "will be
significant in that it will likely change the scope or
nature of the initial project or its environmental
effects." Laurel Heights Improvement Ass 'n v.
Regents of University ofCal. (1988) 47 Cal. 3d.
376,396.
The EPS re-power to CECP is more than
reasonably foreseeable. As soon as 2010, units 1 to
3 will be demolished, EPS oil fuel tanks 5, 6 and 7
would be demolished, and the CECP will be built,
including a new, small desalination plant.
As detailed above, EPS flows are not sufficient to
provide 304 MGD to the Project, and will be
further reduced upon retirement of units 1 to 3 and
implementation of the State Board's OTC Policy.
The Project will have to implement new design and
technology measures if EPS flows discontinue for
Poseidon Response
As shown above, the FEIR analyzed the entire range of desalination project
operations, including both the With Power Plant Operation scenario and the No
Power Plant Operation scenario. Thus, there has been no project segmentation
or project splitting.
See RTC # 9 above.
SeeRTC#9and 12 above.
CLG provides no evidence that the possible implementation of new design and
technology measures would result in new or increased environmental effects
SD\694480.2
No.CLG Comment Poseidon Response
six months. All of these new developments
constitute Project changes and must be analyzed in
a SEIR.
sufficient to require the preparation of a SEIR. (CEQA Guidelines § 15162(a);
accord CEQA § 21166.) In fact, the Regional Board found that any additional
design or technology features that may be incorporated into the Project would
only serve to further minimize already insignificant entrainment and
impingement impacts. (Regional Board RTC #106 at 77.)
18.With the Project and Delivery Pipelines Several
other (previously unanalyzed) projects will
simultaneously be undergoing construction within
the Project and delivery pipeline vicinity. The
cumulative impacts from these projects have not
been discussed in the FEIR or Addendum, but
require analysis and avoidance or mitigation.
1) La Golondrina and La Costa Meadows Sewer
Extension (SCH# 2009021109)
a. Construction of two gravity flow sewer pipeline
segments including 2,800 lineal feet of pipe to be
cut, filled with sand, and capped with a concrete
plug
2) Bridges at Aviara (SCH# 2009021030)
a. Development of 428 senior condominiums and
76 senior income restricted apartments,
completion of Poinsettia Lane, and a double span
bridge over an existing canyon
3) El Fuerte View (under review until October 4,
2009)
a. Grading and subdivision of 3.9 acre property into
six residential lots, private street lot, and one
common space lot
4) Bressi Ranch Industrial Lots
a. Subdivision of 40 industrial-lots.
5) AlgaNorte Park
a. A 32-acre project on Alacante Road and
Poinsettia Lane
The Addendum contains a thorough cumulative impacts analysis of those
projects which the City considered to be reasonably foreseeable and which
would be impacted by the Project, including the 1-5 widening, the Coastal Rail
Trail, the Los Angeles-San Diego-San Luis Obispo Rail Corridor, the Carlsbad
Energy Center Project, and the Agua Hedionda Sewer Line and Lift Station.
(Addendum, at 39-46.) Substantial evidence supports the City's selection of
these projects for its cumulative impacts analysis based on the nature of the
resource in question, the location of the Project, and the type of Project at issue.
CEQA Guidelines § 15130(b)(2).
The commenter appears to have chosen the listed projects at random from the
City's web site in an attempt to prompt additional analysis. These projects are
geographically distant from the desalination plant site, and are also quite
removed from the pipeline alignment as shown on the attached map. The
attached map shows the project locations in comparison to the desalination plant
and pipeline shown in red. The Bridges at Aviara is the closest project to the
desalination facility at an approximate four mile distance. Some of these
projects are already approved while others are awaiting approval, but none
would interfere with the Project development, and the commenter provides no
information on how the exclusion of these projects renders the cumulative
impacts analysis inadequate. (Kings County Farm Bureau v City ofHanford
(1990) 221 Cal.App.3d 692, 723.)
In addition, although these projects have no relation to the desalination plant
and pipeline, they are in varying phases of development and entitlement and
therefore timing on construction is speculative.
1. La Golondrina and La Costa Meadows sewer extension: Project located
along El Fuerte Street and La Golondrina Street between Poinsettia
Lane and Alga Road. An MND was approved 4/13/09. Project would
serve two residential areas now dependent on sewer lift stations through
SD\694480.2
No.CLG Comment Poseidon Response
construction of gravity flow sewer pipes to connect to City's existing
sewer collection system. The right of way for this pipeline is not the
same as right of way serving the pipeline project.
2. Bridges at Aviara: 428 senior assisted care condominiums and 76 senior
inclusionary apartments. The project site is located approximately 1.7
mile east of Interstate 5 and approximately 4.9 miles south of State
Route 78. The site is located west of El Camino Real at the western
terminus of Poinsettia Lane, south of Cassia Road, east of Ambrosia
Lane, and north of Aviara Oaks School. The project is proposed and
has not yet been approved. Therefore construction timing is speculative.
3. El Fuerte View: 6 residential lots, one open space lot and one private
street on a 4 acre site. Close of public comment period on Draft
Mitigated Negative Declaration is 10/4/09, and therefore still requires
approval. Project is near corner of Cacatua St and El Fuerte Street.
Construction timing appears unknown.
4. Bressi Ranch Industrial Lots: No project specifically by this name.
Commenter may be referring to industrial lots in general of Bressi
Ranch, which stretch between El Camino Real and Melrose Drive,
south of Palomar Airport Road. Some lots in this area are developed
and some are vacant. The Bressi Ranch Master Plan has been approved
and these lots will be developed as the market allows. No specific time
frame for construction is known.
5. Alga Norte Park: Alga Norte Park is a 35-acre sports park planned at
the corner of Poinsettia Lane and Alicante Road. The City's web site
states that, "at its April 24, 2009, meeting the City Council decided to
proceed with rough grading only for Alga Norte Park...Citing
continued uncertainty about the economy, the City Council stopped
short of authorizing construction of the park at this time. Although the
city has set aside money for the park's construction, the city's current
financial forecast shows it will not have enough money to pay for
operating the park until fiscal year 2013-14." Therefore construction of
SD\694480.2
No.CLG Comment Poseidon Response
this Project is uncertain.
19.IV. Significant Environmental Impacts Will Result
from Project Changes
a. Traffic Impacts
The conclusion that proposed changes will not
increase any previously identified impacts or create
new potential impacts is unsupported. (Addendum,
p. 37).
The conclusion that revisions to the Project will not increase any previously
identified impact or create new potential impacts is supported by the Addendum
and the FEIR. The Addendum states that "[g]iven that revised Project is
operationally the same, and would have the same construction and operational
traffic generating characteristics as the approved Project, impacts will not be
increased due to proposed Project changes and will remain less than significant.
All construction activities for the desalination plant will take place within the
Encina Power Plant site, and therefore no lane closures or safety hazards on
public roads would result from plant construction. Impacts related to road
hazards and emergency access would be less than significant. In addition, given
the approximate 62% reduction (34,746 CY) in cut/fill required to be removed
from the Project site, potential construction impacts on traffic will be further
reduced than what was originally evaluated in the FEIR." (Addendum at 36.)
These statements support the conclusion that no additional impact above what
was identified in the previously certified FEIR will occur.
The Addendum provides a numeric analysis of the reduction in truck haul trips:
"Additionally, the average number of truck trips over all phases of the
construction process will not increase above those evaluated within the FEIR for
the on-site facility. In fact, while the total earthwork of the proposed Project is
anticipated to increase from approximately 61,940 cubic yards (CY) to 68,500
CY, due to the opportunity for increased on-site reuse of the cut/fill, the actual
volume of earthwork to be removed from the site will decline from 55,746 CY
to approximately 21,000 CY. Based upon an average haul truck capacity of 20
CY per trip, this approximate reduction of 34,746 CY of earth corresponds to a
reduction of approximately 1,737 haul trucks leaving the site." (Addendum at
34.) Therefore, traffic generated by the on-site construction of the desalination
facility will decrease with the revisions to the Project.
With respect to the construction traffic for off-site pipelines, the FEIR provides
substantial evidence showing that there will be no significant impacts from
traffic if the all of the pipeline alignments contemplated in the FEIR were
SD\694480.2
No.CLG Comment Poseidon Response
constructed. Notably, CLG did not challenge this determination when the FEIR
was certified in 2006 and the time for doing so has long since expired. (CEQA
§ 21167.) In addition, as noted in the Addendum and FEIR, construction traffic
is primarily caused by trucks hauling dirt from the construction site. The total
number of potential haul trips for pipeline construction analyzed in the FEIR
was 216 ADT. As noted in the FEIR, these trips would primarily be along
major arterial roadways, and 216 ADT would not represent a substantial
increase in peak hour trips on those roadways. The Addendum states that the
total number of haul trips required for pipeline construction will decrease due to
the amount of dirt being removed from various sites. Therefore, the impacts to
these roadways would be even less than the 216 ADT shown in the FEIR. In
fact, in a letter from Steve Tedesco with Tetra Tech, the contractor for the
Project, Mr. Tedesco indicates that the number of daily truck trips for the
residential areas in San Marcos will "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." Two to three truck trips per hour for a
temporary period of time cannot be considered a significant amount of new
traffic, and therefore will not cause any new impact.
20.The traffic impacts from installation of Project
pipelines along Melrose Drive (south of Palomar
Airport Road) and Lionshead Avenue to Linda
Vista Road to 9th Street have not been studied.
Merely claiming the impacts will be similar to
those evaluated in the FEIR is insufficient. Rather,
as the FEIR mentions, impacts must be evaluated
by comparing existing traffic conditions to traffic
conditions during construction of the pipelines.
(FEIR, p. 41 0-3).
SeeRTC# 19 above.
21.Impacts are considered to be significant if the
project would:
a. Cause an increase in traffic which is substantial
in relation to the existing traffic load and capacity
of the street system.
b. Exceed an applicable adopted level of service
standard either individually or cumulatively.
Both the Addendum and the FEIR sufficiently analyze the traffic impacts of the
product water pipeline construction in the road rights-of way. See RTC #19
above.
Additionally, despite the temporary nature of construction traffic impacts,
mitigation measures were put in place in the FEIR to avoid any localized
impacts from pipeline construction. These mitigation measures mitigate the
SD\694480.2
No.CLG Comment Poseidon Response
c. Result in a change in air traffic patterns,
including either an increase in traffic levels or a
change in location that results in substantial safety
risks.
d. Substantially increase hazards due to a design
feature or incompatible uses.
e. Result in inadequate emergency access.
f. Result in inadequate parking capacity.
g. Conflict with adopted policies, plans or programs
supporting alternative transportation.
(Appendix G of CEQA Guidelines for
significance). Neither the Addendum nor does the
FEIR describes, any level of detail, the traffic
impacts of construction within the road rights-of-
way. (Addendum, p. 37; FEIR, p. 4.10-9).
impacts discussed in the thresholds shown in the comment. These mitigation
measures include the following at FEIR 4.10-12 and 13:
4.10-1 Prior to issuance of grading permits and/or encroachment permits for
work within public rights-of-way, the Applicant shall provide the ultimate
location of soil disposal sites to the appropriate city (if they are different from
the disposal site identified in this analysis), and shall further demonstrate that
transport of soil and materials to and from the proposed sites will not result in
Levels of Service during peak hour periods on affected roadways and
intersections falling below acceptable standards established by the affected
cities.
4.10-2 Prior to improvement plan approval, a traffic control plan will be
prepared for approval by each jurisdiction within which the project is proposed
to be located. The traffic control plan will show all signage, striping, delineate
detours, flagging operations and any other devices which will be used during
construction to guide motorists safely through the construction zone and allow
for adequate access and circulation, to the satisfaction of the city or agency with
applicable jurisdiction. The traffic control plan will also include provisions for
coordinating with local emergency service providers regarding construction
times and locations of lane closures as well as specifications for bicycle lane
safety. The construction contractors will coordinate traffic diversions, street and
lane closures, and obstruction of intersections with each jurisdiction's
engineering department prior to commencing construction activities through the
development of routing and detour plans. This Traffic Control Plan will be
prepared in accordance with each jurisdiction's traffic control guidelines and
will be prepared to ensure that access will be maintained to individual properties
and businesses, and that emergency access will not be restricted. Additionally,
the Plan will ensure that congestion and delay of traffic resulting from project
construction are not substantially increased and will be of a short-term nature.
The limits of construction work area(s) and suggested alternate traffic routes for
through traffic will be published in a local newspaper periodically throughout
the construction period. In addition, the construction contractor shall provide not
less than a 2-week written notice prior to the start of construction by mailing to
owners/occupants along streets to be impacted during construction.
SD\694480.2
No.CLG Comment Poseidon Response
During construction, the contractor will ensure that continuous, unobstructed,
safe and adequate pedestrian and vehicular access to and from public facilities
such as schools, parks, post offices and fire stations. If normal access to these
facilities is blocked by construction for more than four hours in any given
workday, alternative access will be provided. The contractor will coordinate
with each facility's administrators in preparing a plan for alternative access.
During construction, the contractor will ensure that continuous, unobstructed,
safe and adequate pedestrian and vehicular access remains to commercial/
industrial establishments during regular business hours. If normal access to
business establishments is blocked by construction for more than four hours in
any given workday, alternative access will be provided. The contractor, and
possibly the city, will coordinate with the businesses in preparing a plan for
alternative access.
During construction, the city will maintain continuous vehicular and pedestrian
access to residential driveways from the public street to the private property
line, except where necessary construction precludes such continuous access for
reasonable periods of time. For example, when the pipeline is initially being
excavated, access to individual driveways may be closed during the course of a
workday. Access will be reestablished at the end of the workday. If a driveway
needs to be closed or interfered with as described above, the construction
contractor shall notify the owner or occupant of the closure of the driveway at
least five working days prior to the closure.
Methods to maintain safe, vehicular and pedestrian access includes the
installation of temporary bridge or steel plates to cross over unfilled
excavations. Whenever sidewalks or roadways are removed for construction, the
contractor will place temporary sidewalks or roadways promptly after
backfilling until the final restoration has been made. The traffic control plan will
include provisions to ensure that the construction contractor's work in any
public street does not interfere unnecessarily with the work of other agencies
such as emergency service providers, mail delivery, school busses and waste
services.
SD\694480.2
No.CLG Comment Poseidon Response
22.Moreover, much of the new proposed pipeline route
will be in San Marcos, which will rely upon the
City's Addendum in determining significance of
traffic impacts. The Addendum does not provide
any insight as to the average daily trips or level of
service requirements along pipeline route roads in
San Marcos. (Addendum, p. 36, 37).
As noted above, the FEIR and Addendum describe the traffic impacts from
pipeline construction as temporary in nature and the relatively small number of
haul trips and temporary construction period do not warrant a separate ADT
analysis or segment analysis. Further traffic impacts are associated with peak
hour impacts from ADTs. As noted in the letter from Steve Tedesco with Tetra
Tech, the contractor for the Project, "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." These construction hours would
therefore only implicate peak hour impacts in the morning. In addition the Tetra
Tech letter notes that the total number of truck trips in any given day in the San
Marcos pipeline area will be 10 to 15 truck trips over a 5-hour period. This is an
insignificant number of trips and will not add to peak hour degradation of
service levels.
23.Rather, the Addendum speaks in generalities about
total pipeline length, reduced hauling trips, and
construction related vehicle trips. The "construction
traffic impacts of the revised Project would be
reduced from what was anticipated for the
approved Project due to the reduced amount of soil
hauling and overall reduced length of offsite
pipelines." (Addendum, p.36-37) Though the
revised Project may result in reduced pipeline
length, the Addendum does not discuss impacts
from the movement of pipelines to new locations,
increase in pipe diameter, or impacts to specific
new pipeline segments. Id.
The Addendum provides a full discussion of the overall temporary construction
impacts related to construction of both the desalination plant and the pipelines.
As noted in the FEIR, which was not challenged by CLG and whose
assumptions and methodologies cannot now be challenged, traffic impacts are
caused by the temporary construction trips associated with hauling dirt from the
desalination plant site, or along the pipeline route. As noted in the Addendum,
significantly less dirt will be required to be hauled from the desalination plant
site and from along the pipeline route due to changes in construction technology
and greater use of backfill on the premises. Less dirt creates less overall truck
trips. The Addendum provides a numeric analysis of the reduction in truck haul
trips: "Additionally, the average number of truck trips over all phases of the
construction process will not increase above those evaluated within the FEIR for
the on-site facility. In fact, while the total earthwork of the proposed Project is
anticipated to increase from approximately 61,940 cubic yards (CY) to 68,500
CY, due to the opportunity for increased on-site reuse of the cut/fill, the actual
volume of earthwork to be removed from the site will decline from 55,746 CY
to approximately 21,000 CY. Based upon an average haul truck capacity of 20
CY per trip, this approximate reduction of 34,746 CY of earth corresponds to a
reduction of approximately 1,737 haul trucks leaving the site." (Addendum, at
SD\694480.2
No.CLG Comment Poseidon Response
34.) Similarly, a reduction in the length of the overall pipeline will reduce the
amount of dirt that is required to be excavated an hauled from the site, and will
therefore reduce the number of trips on local roadways. (See Tetra Tech Letter.)
CLG's comment regarding how the movement of pipelines to new locations and
the diameter of pipelines would impact traffic is unclear. An increase in
pipeline diameter has no bearing on traffic impacts, because pipelines are placed
below the surface of the roadway, and therefore cannot impact traffic. In
addition, there has been no physical movement of pipeline from one location to
another. The alignment of the product water pipeline has changed slightly. The
construction impacts for all new pipeline segments are discussed above.
24.The mitigation measures identified in the FEIR are
also inadequate to render impacts insignificant.
(FEIR, p. 41012-13). Some of the mitigation
measures are already being sidestepped by
Poseidon's hurried project amendment approvals.
Prior to issuance of grading permits and/or
encroachment permits for work within public
rights-of-way, the Applicant shall provide the
ultimate location of soil disposal sites to the
appropriate city ... and shall further demonstrate
that transport of soil and materials to and from the
proposed sites will not result in Levels of Service
during peak hour periods on affected roadways and
intersections falling below acceptable standards
established by the affected cities.
Id Poseidon has asked the City to issue
encroachment permits in the public rights-of-way
before the City approves "construction plans, traffic
control plans, technical studies, posting of security,
permit fees, notice to proceed, etc... things that [the
City] normally have done before [it] issuers] a
ROW permit..." (email communication between
The comment challenges the mitigation measures in the FEIR. The mitigation
measures in the FEIR have been certified and accepted by the City Council as
adequate and those mitigation measures were not timely challenged. Therefore
the mitigation measures are deemed adequate to reduce impacts to below a level
of a significance and cannot now, three years later, be challenged through a
backdoor attempt to challenge the certified FEIR. CLG's claim is a thinly veiled
effort to re-argue criticisms of the adequacy of the original FEIR's analysis.
Courts have rejected similar attempts to "disguise" challenges to an EIR by
arguing that a SEIR is required. (See A Local And Regional Monitor v. City of
Los Angeles ("ALARM"') (1993) 12 Cal.App.4th 1773, 1794 ("[petitioner's]
assertion that a subsequent or supplemental EIR is required is seen by this court
as a disguised challenge to the EIR's original traffic analysis . . ."; "[petitioner]
has [] been forced ... to make this oblique argument" because the EIR was not
timely challenged).)
Poseidon has requested a right of way permit consistent with all procedures and
practices of the City of Carlsbad, and will comply with all required Project
mitigation.
SD\694480.2
No.CLG Comment Poseidon Response
Jeremy Riddle, Carlsbad Associate Engineer and
Skip Hamman, on August 5, 2009). By granting
conditional approvals before required FEIR
mitigation measures are implemented, the City has
already begun chipping away at the credibility of
the proposed mitigation measures. The City has
shown its desire to bend over backwards and
disregard its own standard procedure for
consideration and approval of necessary permits.
Mitigation measures based upon the City's Traffic
Control Plan approval and implementation are
therefore baseless. FEIR, p. 4.10-12-13. Thus, the
resulting impacts are unanalyzed and unmitigated.
PRC 8 21002 21002.1.
25.Further, deferral of mitigation measures through a
Traffic Control Plan to be submitted after Project
approval or permits have been issued is contrary to
CEQA. Sundstrom v. County of Mendocino (1988)
202 Cal. App. 3d 296 (deferral of mitigation until
after project approval renders success of mitigation
uncertain); Oro Fino Gold Mining Corporation v
County of El Dorado (1990) 225 Cal App. 3d
872,884-885 (post-approval formulation of
mitigation plans inappropriate because, "in the
absence of overriding circumstances, the CEQA
process demands that mitigation measures timely
be set forth, that environmental information be
complete and relevant, and that environmental
decisions be made in an accountable arena");
Gentry v City of Murrieta (1995) 36 Cal. App. 4
1359, 1393-1394 (reiterating the principles of
Sundstrom and Oro Fino Gold Mining)).
The comment appears to challenge the adequacy of Mitigation Measure No.
4.10-2, which was approved with the original FEIR in 2006. As stated above, it
is over three years too late to challenge this mitigation measure and courts
continually reject similar attempts to "disguise" challenges to an EIR by arguing
that a SEIR is required. See ALARM, 12 Cal.App.4th at 1794 ("[petitioner's]
assertion that a subsequent or supplemental EIR is required is seen by this court
as a disguised challenge to the EIR's original traffic analysis . . ."; "[petitioner]
has [] been forced ... to make this oblique argument" because the EIR was not
timely challenged).
Even assuming CLG could now contest the adequacy of Mitigation Measure
No. 4.10-2, the City has not improperly deferred mitigation by requiring
Poseidon to submit a Traffic Control Plan prior to improvement plan approval.
Mitigation Measure No. 4.10-2 meets CEQA's deferred mitigation standards
because it evidences the City's commitment to mitigating impacts and specifies
the criteria that the Traffic Control Plan was required to meet. (See Cal. Native
Plant Soc. v. City ofRancho Cordova, 2009 Cal.App.LEXIS 430 at *34;
Endangered Habitats League, Inc. v. County of Orange, 131 Cal.App.4th 777,
794-96 (2005); see also FEIR, 4.10 "[A] traffic control plan will be prepared
for approval by each jurisdiction within which the project is proposed to be
located. The traffic control plan will show all signage, striping, delineate
SDN694480.2
No.CLG Comment Poseidon Response
detours, flagging operations and any other devices which will be used during
construction to guide motorists safely through the construction zone and allow
for adequate access and circulation, to the satisfaction of the city or agency with
applicable jurisdiction. The traffic control plan will also include provisions for
coordinating with local emergency service providers regarding construction
times and locations of lane closures as well as specifications for bicycle lane
safety. The construction contractors will coordinate traffic diversions, street and
lane closures, and obstruction of intersections with each jurisdiction's
engineering department prior to commencing construction activities through the
development of routing and detour plans. This Traffic Control Plan will be
prepared in accordance with each jurisdiction's traffic control guidelines and
will be prepared to ensure that access will be maintained to individual properties
and businesses, and that emergency access will not be restricted. Additionally,
the Plan will ensure that congestion and delay of traffic resulting from project
construction are not substantially increased and will be of a short-term nature.")
See also RTC # 24 above.
26.Though the Addendum states otherwise, the FEIR
concluded no significant noise impacts would result
from the Project and thus imposed no mitigation
measures. FEIR, 1-15 (Table 1-1) and 4.9-14;
CEQA Findings, p. 20-21; Addendum, p. 33-34.
However, the concurrent construction of other
projects listed above, the CECP, and the Project
may result in significant noise impacts, especially
in residential areas mentioned above.
The commenter is mistaken. Both the FEIR and Addendum correctly conclude
that there will be no significant Project impacts from noise. The Addendum
states, "The FEIR determination that impacts from on-site construction activities
would be less than significant is also applicable to the revised Project, because
the revised Project is in substantially the same location relative to sensitive
noise receptors and the impact would occur only during permitted construction
hours and would represent only a minor temporary increase in noise levels in
the Project vicinity. All construction will take place during appropriate hours for
such activities as proscribed by the City's appropriate noise ordinance and,
given the significant distance from the proposed Project to the nearest sensitive
receptors, no construction impacts are anticipated for the on-site facility."
(Addendum, at p. 33-34.)
As noted in the FEIR at 4.9-6, "The closest residences would be located
approximately 450 feet or more from the closest onsite ancillary facility
construction area and more than approximately 1,800 feet from the proposed
desalination plant. At both distances the maximum noise level would be
approximately 70 dB or less. All construction activity will be limited to the City
SD\694480.2
No.CLG Comment Poseidon Response
of Carlsbad's permitted hours of construction. Therefore impacts from onsite
construction activities would be less than significant since the impact would
occur only during permitted construction hours and would represent only a
minor temporary increase in noise levels in the project vicinity."
Construction of the Projects listed in section III of the CLG letter are not in
close proximity to the desalination plant site or the pipeline routes and would
therefore could not have any cumulative impact on noise. Construction of the
CECP is speculative at this time, given that the CEC has not approved the
Project.
27.No analysis for pipeline routes in San Marcos has
been completed, as was originally completed for
Vista and Oceanside. FEIR, p 4.9-1.
As noted in the memorandum from noise expert Mike Komula, acoustician with
Dudek and Associates, "the comment alleges that no analysis for pipeline routes
in San Marcos was completed in the Addendum. This is not true." (See
September 18, 2009 memorandum from Mike Komula)
Construction noise impacts from construction of the pipelines within San
Marcos has been evaluated and is fully mitigated through the FEIR. The Project
will be required to abide by construction ordinances for each jurisdiction where
construction activity will take place. As noted in the letter from Tetra Tech, the
contractor for the Project, "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."
28.The construction impacts will not be short in
duration, as stated in the Addendum, as pipeline
construction is expected to take 16 months.
Addendum, p. 45.
The comment incorrectly characterizes the pipeline construction. Although
construction of the entire 16 mile pipeline will take approximately 16 months,
the construction will move forward as pipeline is laid. As noted in the FEIR at
4.9-7, "The duration to complete any phase of the open trench phases of the
project such as trenching, backfilling, etc., will vary, but, would typically
proceed at a rate of approximately 75 feet per day. Thus, the forward
progression of construction activities would mean that the noise impact may last
for only two to three days at any one location. The construction activities would
comply with the local jurisdictions' noise ordinance for allowable hours."
SD\694480.2
No.CLG Comment Poseidon Response
Therefore any noise impacts are temporary in nature and are fully mitigated
because they are conditioned to not exceed construction noise ordinances in the
various jurisdictions.
29.Moreover, noise impacts from nighttime
construction have not been discussed. The FEIR
points to the City ordinances limiting construction
to daytime hours in all relevant cities. FEIR, p. 4.9-
2-4. Once again, the City anticipates waiving these
limitations or simply labeling impacts insignificant
See email from Scott Donnell to Joe Monaco on
June 11, 2009 (regarding waiver of night
construction ordinances and simply labeling noise
not "disturbing, excessive, or offensive") The
FEIR's promise that "[a)l 1 construction activity
will be limited to the City of Carlsbad's permitted
hours of construction," is therefore of no
consequence. FEIR, p. 4.9-6.
The FEIR explicitly states that, "the construction noise would be restricted
based on the requirements of the local jurisdiction relative to construction noise
and would therefore not exceed established standards." (FEIR at 4.9-9).
Contrary to the commenter's assertion, this determination remains true as the
Project will comply will all applicable noise ordinances in all affected
jurisdictions.
With regards to construction in San Marcos, the letter from Steve Tedesco with
Tetra Tech, the contractor for Project construction, confirms that within the City
of San Marcos, "no nighttime work will be allowed," and any work will require
compliance with local codes and ordinances regarding construction as noted in
the FEIR above.
With regards to construction in San Marcos, the City of San Marcos Municipal
Code contains the following noise ordinance which the Project will be required
to follow as noted in the FEIR:
10.24.020
(b) The following described noises are hereby declared to be in
violation of this Chapter; this list is deemed illustrative and shall not be
deemed or construed in any degree or way to be an exclusive or all-
inclusive list of the noises prohibited by this Chapter, it being the intent
and purpose of this Chapter to include and prohibit all noises of the
character described in section 10.24.010. References to "adjacent" or
"neighboring" residences or units in this subsection (b) shall mean those
residences or units located next to or in close proximity to the source of
the noise, and no specific distance standard for audibility shall be
required for such locations. (Ord. No. 2008-1300; 2/26/08)
(9) Erection or demolition of buildings, excluding owner resident
additions or remodeling, and the grading and excavation of land
including the use of blasting, the start up and use of heavy equipment
SD\694480,2
No.CLG Comment Poseidon Response
such as dump trucks and graders and the use of jack hammers except on
week days Monday through Friday between the hours of 7:00 a.m. and
6:00 p.m. and on Saturdays 8:00 a.m. to 5:00 p.m. The City Manager
may waive any or all of the provisions of this subsection in cases of
urgent necessity, or in the interest of public health and safety. The
provisions of this subsection may also be waived or modified pursuant
to a Conditional Use Permit or other development entitlement processed
and issued in accordance with the applicable City requirements and
procedures. (Ord. No. 2008-1300; 2/26/08)
The City of Carlsbad may desire nighttime work be completed to lessen the
impact on heavily trafficked roadways. The City Municipal Code specifically
allows the City Manager to authorize work outside of normal construction hours
in non-residential areas where the closest residence is 1000 feet from the
construction (Carlsbad Municipal Code 8.48.020(2)(B)). Specifically, the
Municipal Code states:
(2) The city manager may grant exceptions to Section 8.48.010 by
issuing a permit in the following circumstances:
(A) When emergency repairs are required to protect the health and
safety of any member of the community;
(B) In nonresidential zones, provided there are no inhabited dwellings
within one thousand feet of the building or structure being erected,
demolished, altered or repaired or the exterior boundaries of the site
being graded or excavated.
Should the City choose to have nighttime construction on portions of the
pipeline, this determination will be made by the City at the time of construction.
This decision is within the police powers of the City of Carlsbad, is consistent
with the FEIR section noted above, will be done at the City's direction and will
follow the ministerial processes required prior to construction.
Poseidon remains obligated to follow the City Municipal Code sections
governing construction in each jurisdiction. Poseidon seeks no waiver of the
applicable municipal code provisions and the City of Carlsbad has not provided
any such waiver.
SD\694480.2
No.CLG Comment Poseidon Response
In addition, the threshold for a significance determination is not whether
nighttime work will be completed or not. The threshold considers whether,
"exposure of persons to or generation of noise levels [is] in excess of standards
established in the local general plan or noise ordinance or applicable standards
of other agencies." Therefore compliance with the municipal code, as noted in
the FEIR, is compliance under the "noise ordinance or applicable standards"
noted in the significance threshold. As stated above, no nighttime work will
occur in residential areas, and therefore no exposure of sensitive receptors to
nighttime construction noise will occur.
30.In enacting CEQA, the Legislature has declared the
policy of the state to '[t]ake all action necessary to
provide the people of the state with ... freedom
from excessive noise." PRC § 21001 (b); See also,
Berkeley Keep Jets Over the Bay Committee v.
Board of Port Com 'rs (2001)91 Cal.App.4th 1344,
1379 -1380. The City has failed to analyze the
individual and cumulative noise impacts from the
Project In light of the Project changes and the
significant noise impacts, a SEIR is required.
See RTC # 29 above.
31.c. Growth Inducement
The Addendum gives little attention to growth
inducement impacts, referring to previous analysis
in the FEIR. Addendum, p. 46. The Project will
provide up to 50 MOD of potable water to the
region, enabling new economic and population
growth. "Development of the Carlsbad Seawater
Desalination Plant will assist in the stimulation of
new commercial/industrial expansion, employment,
and economic growth" Carlsbad Planning
Commission Resolution No. 6088, p.4. Though the
Project may be one factor in removing barriers to
such growth, the City must nonetheless discuss the
impacts resulting from one less obstacle to such
The FEIR provided an extensive analysis of the Project's potential for growth
inducement in Section 9.0 of the FEIR and the City Council ultimately found
that, although the Project would not cause direct growth inducement, a
possibility of indirect growth inducement was considered a potentially
significant impact. The City further found that:
Desalinated seawater is already considered in regional growth analyses
conducted by SANDAG, as contained in its 2004 Regional
Comprehensive Plan, and in demand projections by the CWA as
contained in its 2003 RWFMP. The Project will not supply water in
excess of what is already anticipated to meet future projected needs.
The Project will not cause significant direct growth-inducing impacts.
However, City recognizes that replacement of imported water supplies
with locally produced desalinated water supplies could have the effect
of making the imported water supplies that are displaced by the
desalinated water supplies available for other use. Determination of the
SD\694480.2
No.CLG Comment Poseidon Response
growth. FEIR, p. 9-5. Response to August 19, 2009
Letter on Desalination Project Changes, Scott
Donnell, p. 5. But for the Project, some growth
would not be possible.
specific potential indirect growth inducing effects outside of the
Project's service area would require speculation that is beyond the scope
of the environmental analysis for the Project. Therefore, City considers
the possibility of indirect regional growth inducement a potentially
significant effect and finds that there is no feasible mitigation for this
potential impact. (FEIR Findings, Section 4.2.)
The Addendum recognized this finding and found that the operation of the
reconfigured facility will not change from what was analyzed in the FEIR. The
City approved a 50 MOD desalination plant in 2006, and the Project currently
before the City remains a 50 MOD desalination plant. Therefore, the growth-
inducing impacts from the Project remain a potentially significant effect. It
should be noted, however, that since the certification of the FEIR, SANDAG
has updated their demographic projections to show that growth projections in
San Diego County remain almost unchanged and long-term growth projections
for Carlsbad have actually decreased. (Exhibit I, SANDAG Regional Growth
Forecast, June 2004 / SANDAG 2030 Regional Growth Forecast Update, July
2008.)
In addition, the growth inducing impact of the Project must be viewed in light of
the severe water shortage that is currently plaguing Southern California. In light
of the current water crisis, the product water from the desalination plant will
likely be displacing the rapidly diminishing water supply for San Diego County,
not adding to it. It is therefore highly unlikely that any additional growth will
result from the Project.
32.Further, in light of the City's recent approval of a
20 percent reduction in reliance on Project water
from FEIR predictions, enabling 20 percent more
water to reach other regional customers, at a
minimum this incremental increase must be
discussed. Carlsbad Municipal Water District,
Resolution No. 1372, adopted August 18, 2009.
SeeRTC#31.
33.d. Aesthetics
The assertion that construction-related short-term
and cumulative aesthetic impacts would not result
The comment provides a litany of attacks on the aesthetics of construction but
provides no substantial evidence of any particular impact. The comment also
applies no standard for its assertions other than that of an attorney who wishes
SD\694480.2
No.CLG Comment Poseidon Response
in new impacts or increase the severity of impacts
identified in the FEIR is absurd. Addendum, p. 11.
The proposed changes in the pipeline route
themselves warrant further discussion and analysis.
The City has provided no evidence of the impacts
to San Marcos and Vista residential and
commercial areas during construction. Most of the
area south of Linda Vista Dr, Los Flores Dr, and
9th St in San Marcos is residential. The same is true
of Melrose Drive south of Palomar Airport Road.
Many of these areas will have flow control facilities
(FCF) built near the pipelines, requiring
undergrounding of structures 15 feet wide, 25 feet
long, 11 feet deep to 30 feet wide, 45 feet long, and
11 feet deep. Addendum, p. 10. The aesthetic
impacts of digging to place 4,125 to 14,850 cubic
feet of structures in the public right of way or areas
adjacent to the pipeline will most certainly be
significant. They have not been identified.
Construction of the off site water delivery pipelines
and pump station would cause temporary aesthetic
impacts, including equipment storage, materials,
soil stockpiling and debris that are exposed to
public views. The use of standard construction
measures such as fencing and screening would be
utilized to a limited extent to screen construction
areas. Because these impacts are short-term in
nature, and because they affect a limited area, they
are not considered to have a substantial adverse
effect on a scenic vista, nor would they
substantially damage scenic resources.
Construction activities would not substantially
degrade the existing visual character or quality of
the surrounding areas, and are therefore not
considered significant. FEIR, p. 4.1-10 (emphasis
to delay the Project.
Construction of the desalination plant and associated pipelines has been a
known fact for over 6 years as the Project has moved through the permitting
process at the City. It is notable that although CLG was well aware of the type
and extent of construction that would be taking place since 2006, they did not
challenge the FEIR findings and cannot do so now. Construction of the
pipelines will require the excavation of dirt and the use of heavy equipment.
These facts have always been known, and mitigation measures have been put in
place to reduce the aesthetic impacts. However, as is the nature of construction,
these impacts are temporary and will only remain for the short duration of time
that the pipeline is being constructed in a particular area. As noted above, the
forward progress of the pipeline construction assures that impacts from
construction will only occur in an area for a short time.
The comment also states that excavation and construction of the FCFs will
"most certainly be significant." However the commenter provides no basis for
this statement, cites to no aesthetic principal on which it is based, and has no
expertise to make this determination. Again, this comment is a rant from an
attorney, not one calculated to improve the aesthetics of the environment in the
area of the pipeline. FCFs have always been contemplated as part of the Project
because they are the pipeline architecture necessary to connect the desalination
plant product water pipelines to the existing water delivery pipelines of
Carlsbad and the other water customers. These facilities manage the pressure
from one system to another to ensure safety in the overall systems. (See Tetra
Tech Letter.)
Only three FCFs are new in the overall system. The FCFs shown in the area of
Shadowridge Drive have always been contemplated and are the architecture that
connects the desalination system to the Carlsbad and Oceanside municipal water
systems as discussed in the FEIR. The FCF contemplated at Business Park
Drive is located in an industrial area with no residences in close proximity.
Therefore no aesthetic impacts would occur from FCF construction. Similarly
the FCF location in the City of San Marcos is not located in a residential area as
asserted by the commenter. The FCF at Pawnee Street is surrounded on three
SD\694480.2
No.CLG Comment Poseidon Response
added). The FEIR thus found no significant impacts
resulting from delivery pipeline construction.
sides by commercial/industrial buildings and on the fourth side by Rancho Santa
Fe Drive, a major arterial roadway. The area is characterized by industrial
buildings, an existing FCF for the Vallecitos Water District, and a Quick Oil
Change. The closest residence to the FCF construction would be approximately
500 feet, and screened by Rancho Santa Fe Road.
The following are the significance thresholds reviewed by the FEIR and
Addendum:
a) Would the project have a substantial adverse effect on a scenic vista?
b) Would the project substantially damage scenic resources, including but not
limited to, trees, rock outcroppings, and historic buildings within a State scenic
highway?
c) Would the project substantially degrade the existing visual character or
quality of the site and its surroundings?
d) Would the project create a new source of substantial light and glare, which
would adversely affect day or nighttime views in the area?
The commenter has not identified any scenic vista that would be adversely
effected by the construction of the plant or pipelines. In addition, the comment
has not provided any evidence of how construction of the Plant would possibly
damage scenic resources within a State scenic highway. Construction would not
substantially degrade the existing visual character or quality of the site and its
surroundings, because the areas of new FCF construction are primarily in
industrial areas. Pipeline construction will only be temporary in nature.
Aesthetics of the residential streets in San Marcos will actually be enhanced
because the City has required full curb-to-curb paving of the streets and the
installation of curbs, gutter and sidewalks in areas where none have existed. At
a neighborhood information meeting on August 10, 2009 at the Vallecitos Water
District, residents in the area were informed about the Project, construction
timeline, and improvements that would be made to the streets. Residents in the
area were enthusiastic about the Project, and residents on neighboring streets not
connected with the Project lamented the fact that they would not receive new
streets and sidewalks, since the pipeline would not be routed on their street.
Given these enthusiastic public responses to the Project, it is hard to see how
construction of the delivery pipelines would result in a adverse aesthetic impact.
SDN694480.2
No.CLG Comment Poseidon Response
34.However, the FEIR did not discuss aesthetic
impacts of FCF construction.
FCFs have always been contemplated as part of the Project because they are the
pipeline architecture necessary to connect the desalination plant product water
pipelines to the existing water delivery pipelines of Carlsbad and the other water
customers. These facilities manage the pressure from one system to another to
ensure safety in the overall systems. (See Tetra Tech Letter.)
35.Nor did the FEIR consider the cumulative impacts
of on-going, simultaneous construction of pipelines
for over a year, (email communication between
Nick Lyuber and Scott Donnell on May 28, 2009).
The impacts of removing dirt, stockpiling dirt for a
year, and excavating an area for a 14,850 square
foot FCF in multiple residential neighborhoods
have thus not been adequately analyzed.
The FEIR did take into consideration the cumulative impacts of on-going
simultaneous construction of pipelines for over a year. In fact the FEIR at 4.10-
7 states, "It is anticipated that multiple construction crews will be working on
pipeline construction simultaneously. Based on the applicant's proposed
schedule for construction, it is assumed that a total of nine contractors (one 22.5
person crew per contract) would be working on the project which would result
in a construction timeframe of approximately 445 working days (608 calendar
days)."
The e-mail cited by the comment shows that construction of the total 16-mile
pipeline will take at least one year. The e-mail does not state that one area of
the pipeline would take one year to construct. As noted in the FEIR at 4.9-7,
"The duration to complete any phase of the open trench phases of the project
such as trenching, backfilling, etc., will vary, but, would typically proceed at a
rate of approximately 75 feet per day. Thus, the forward progression of
construction activities would mean that the noise impact may last for only two
to three days at any one location." As noted in the Tetra Tech Letter, pipeline
construction will be an on-going operation of removing dirt in a trench, placing
the pipes and backfilling dirt in the trench. Dirt will not be stockpiled in one
place for over a year, because there will be ongoing backfill operations as the
pipeline moves forward." These statements, again, are made by an unqualified
observer and do not constitute substantial evidence. (See CEQA § 21082.2(c)
[defining substantial evidence to include "expert opinion support by facts"].)
Finally, the comment asserts that excavation for FCFs facilities of 14,850 square
feet will occur in multiple residential areas. This is simply an untrue statement.
First, the only FCF contemplated of that size is the connection to the SDCWA
aqueduct at the Pawnee Street site. The other FCF indicated are smaller in size.
SD\694480.2
No.CLG Comment Poseidon Response
Secondly, as noted above, the Pawnee Street location is characterized by
industrial buildings, and commercial areas, and there are no residences in direct
proximity to the area. The FCFs in the residential areas in the Shadowridge
Drive area have been contemplated as part of the original FEIR, as they are the
connections to the Oceanside and Carlsbad municipal water systems. The
commenter cannot now challenge the findings of the FEIR.
36.The aesthetic impacts of increasing the Project
dimensions as follows have also not been
adequately addressed:
Overall Plant Site Area from 32 acres to 5.7 acres;
Pretreatment Area height of mostly 3 feet with
some 7.5 feet to 27 foot height; Pretreatment Area
dimension from 42,632 square feet to 60,000
square feet (almost 50 percent increase); Reverse
Osmosis Building from 44,552 sq. feet to 49,700
sq. feet; Solids Handling Building from 19.5 foot
height to 25 foot height; Solids Handling Building
from one structure to two structures, doubling
square footage from 2,500 to 5,000 sq. feet;
Chemical Storage Area from 5,200 sq. feet to 6,000
sq. feet; Chemical Storage Area allowed limited use
of screening walls and now extensively uses walls
at a height of 20 to 30.5 feet; Chemical Storage
Area had retaining walls not visible beyond plant
but now has 600-foot long wall along west
boundary that is 10 feet tall; Parking spaces
increased from 14 to 23 spaces.
The comment makes the statement that the aesthetic impacts of minor revisions
to the Project dimensions have not been addressed, but provides no substantial
evidence as to what type of impact would be created by the Project revisions. It
is unclear what the comment means. As noted at page 2 of the City staff report
to the Planning Commission on the Project revisions, "The proposed project
changes at the EPS would consolidate uses, better utilize the desalination plant
site, and obtain efficiencies in project construction and plant operations.
Because of the consolidation of uses and other enhancements, staff believes the
proposal represents an overall improvement to the approved project and a
benefit to any future redevelopment of the EPS."
37.Though the visible project features arguably have
decreased, the height, size, and location of the new
features have not been adequately discussed
Addendum, p.6, 11-12. The mitigation measures in
the FEIR are equally inapplicable or insufficient.
FEIR, p,41 0-12. None of the FEIR mitigation
measures address either the increased heights,
The comment correctly notes that visible project features have decreased due to
the undergrounding of the many of the project's features. The comment that
changes to the project were not analyzed from various viewpoints is odd, given
that visual simulations are provided in the Addendum as Figures 2 and 3 of the
Addendum. These simulations mirror the ones shown in the FEIR and the City
has determined that the visualimpacts from these viewpoints has actually
decreased. The comment also states that the mitigation measures in the FEIR
SD\694480.2
No.CLG Comment Poseidon Response
views inland from the ocean, cumulative aesthetic
impacts.
are insufficient and inapplicable, but the commenter cannot now challenge the
mitigation in the FEIR, over three years after certification of the FEIR.
38.Cumulative aesthetic impacts from concurrent
construction of the CECP, including the demolition
of units 1 to 3, the new plant and small desalination
plant, and relocation of the administration building
are also significant. The City has simply labeled
the Project's incremental effects as not
cumulatively considerable. Addendum, p.41. This
type of analysis is exactly the opposite of
cumulative impacts analysis. Because each impact
may be individually insignificant, impacts of
several projects become cumulatively considerable
CEQA Guideline § 15064(h)(l); see also CEQA
Guideline § 15355(b)("Cumulative impacts can
result from individually minor but collectively
significant projects taking place over a period of
time"). Contributing to those impacts, the Project's
effects are significant when analyzed cumulatively.
The Addendum inappropriately disregards this
reasoning, and fails to address the CEQA mandate
to consider cumulative impacts significant. CEQA
Guideline § 15065(a)(3). "It is vitally important
that an EIR avoid minimizing the cumulative
impacts. Rather, it must reflect a conscientious
effort to provide public agencies and the general
public with adequate and relevant detailed
information about them." [Citation] A cumulative
impact analysis which understates information
concerning the severity and significance of
cumulative impacts impedes meaningful public
discussion and skews the decisionmaker's
perspective concerning the environmental
consequences of the project, the necessity for
This comment is made by an attorney who is not qualified to make aesthetic
determinations. Although the comment alludes to a cumulative impact from
simultaneous construction of various projects, the comment states no standard
or substantial evidence upon which they have reached or would reach this
conclusion. The Addendum has made a thorough review of cumulative impacts
and found that there are no new or increased impacts. In addition, this comment
attempts to attack the FEIR's cumulative impacts analysis three years after
certification of the FEIR. CLG is well aware that they cannot now challenge the
conclusions of the FEIR.
SD\694480.2
No.CLG Comment Poseidon Response
mitigation measures, and the appropriateness of
project approval. Citizens to Preserve the Ojai v.
County of Ventura (1985) 176 Cal.App.3d 421,431
(quoting San Franciscans For Reasonable Growth
v City and County of San Francisco (1984) 151
Cal.App.3d 61, 80).
39.e. Air Quality
The air quality analysis in the Addendum suffers
from the same flaws as the aesthetics analysis. The
City again addresses impacts through generalities
and does not fully explain or consider impacts
resulting from individual changes proposed or other
changes occurring since FEIR certification. For
example, the City claims the reduction in pipeline
length and earthwork will correspond to reduction
in air emissions However, the City fails to analyze
the specific air quality impacts in San Marcos and
Vista from pipeline construction. A decrease in the
total amount of construction does not necessarily
equate to decrease in impacts.
CLG's air quality comments are made by an attorney who is unqualified to
evaluate the subject. The City of Carlsbad has provided specific responses to
these issues by Valerie Thompson with Scientific Resource Associates, a
qualified Air Quality specialist. (See memorandum to Dudek & Associates
from Scientific Research Associates). The memorandum clearly illustrates that
the Addendum's conclusion was correctly analyzed and that "significance of
impacts associated with construction are evaluated versus quantitative emission
thresholds. These thresholds do not change based on location of the
construction."
40.The air quality impacts to sensitive receptors in
residential neighborhoods surrounding much of the
new pipeline routes in San Marcos, Vista, and
southern portions of Melrose Drive have not been
discussed in the FEIR or Addendum. Moreover, the
air quality impacts analysis in the FEIR concerns
ambient air quality from 2001 to 2003. FEIR. P 4.2-
6. The City has not addressed degradation of air
quality since 2003 or since FEIR certification. Such
air quality information is easily obtainable from the
California Air Resources Board.
The FEIR addresses impacts to sensitive receptors, and as noted in the
memorandum from Scientific Research Associates, "significance of impacts
associated with construction are evaluated versus quantitative emission
thresholds. These thresholds do not change based on location of the
construction." In addition, the FEIR at 4.2-7 acknowledged that "other sensitive
receptors also exist along the pipeline construction routes." Impacts from air
pollution are looked at in terms of long term exposure to pollutants, but as noted
in the FEIR at 4.2-16, "[bjecause of the short-term nature of the construction
project, adverse long-term impacts associated with diesel exhaust particulate
matter would not occur as a result of project construction."
The comment also states that air quality in the San Diego County basin has
degraded since the FEIR analysis was completed. The attorney writing the
letter provides no substantial evidence for this unsupported assertion, and as
stated to the contrary in the expert memorandum from Scientific Research
SD\694480.2
No.CLG Comment Poseidon Response
Associates, "in fact, air quality in the San Diego region has shown improvement
since the FEIR certification."
41.For one constituent in particular, the air quality
impacts to sensitive receptors will be particularly
significant. CEQA Guidelines, Appendix G. The
FEIR concluded during construction the "project's
construction emissions are above the significance
threshold for NOx; however, construction would be
temporary and would not have a long-term impact."
FEIR, p. 4.2-20. The FEIR also revealed, "N02 is a
respiratory irritant and may affect those with
existing respiratory illness, including asthma. N02
can also increase the risk of respiratory illness."
FEIR, p. 4.2-2. Sensitive receptors, including
children, people with respiratory illness, and elderly
individuals, most certainly will be exposed to N02
during pipeline and FCF construction in residential
neighborhoods. Pipeline construction is estimated
to take 16 months, belying the notion that N02
impacts will be "temporary" and not significant.
FEIR, p 42-20. These impacts must be thoroughly
analyzed before they can be considered
insignificant. 12 Cumulative air quality impacts are
also given little attention in the Addendum, but
require full analysis. Addendum, p 41-42; Kings
County Farm Bureau v City ofHanford (1990) 221
Cal.AppSd 692. Project and pipeline construction
impacts will not be short in duration, and will now
occur simultaneously with CECP construction,
exacerbating any air quality impacts. Id. Further,
the FEIR proposed no mitigation measures for
cumulative impacts to PM10 and ozone (for which
the San Diego air basin is non-attainment) and NOx
and ROC (ozone precursors). FEIR, p. 5-9.
As discussed in the expert memorandum from Scientific Research Associates,
the "increasingly stringent emission standards for on-road vehicles," has
decreased the potential for emission impacts from the time the FEIR analysis
was completed, and "emissions associated with construction of the project
would be lower than evaluated in the FEIR, not higher."
See also RTC # 33 and 35.
SD\694480.2
No.CLG Comment Poseidon Response
42.However, a reduction in energy consumption is a
feasible alternative, as it will reduce indirect
emissions from energy production. FEIR, p. 5-9.
Use of renewable energy is also a feasible
mitigation measure not analyzed.
To the extent that the commenter is asserting that a SEIR is required to evaluate
the Project's potential impact on global warming, please see RTC # 49.
The commenter fails to acknowledge that the Project has incorporated as a
design feature the Energy Minimization and Greenhouse Gas Reduction Plan
("GHG Plan"), which includes $55 million in state of the art on-site energy
minimization features, including the "pressure exchanger" energy recovery
technology that allows recovery and reuse of 33.9% of the energy associated
with desalination's reverse osmosis process, as well as high efficiency and
premium efficiency motors and variable frequency drives on the intake water
pumps to improve their efficiency. The Project also will implement as many
Leadership in Energy and Environmental Design building design features as are
reasonably practicable, among other energy-minimizing features.
One element of the Project's "green" building design that Poseidon may explore
is on-site solar power generation through the installation of rooftop photovoltaic
system. Poseidon continues to explore other solar proposals as well. (GHG
Plan, 10-11.) The Project expects to obtain its electricity from SDG&E, whose
emissions factors are expected to decrease over time as more of its retail
electricity is generated from renewable sources, which are expected to account
for 20% of the supply by year 2017. (Id. at 5 n.6.)
43.The FElR's consideration of indirect emissions
resulting from energy use during Project operations
is also no longer applicable or accurate. FEIR, p
4.2-19. The water districts, including Carlsbad
Municipal Water District (CMWD), purchasing
Project desalinated water have shown no intention
to give up their imported water supplies in
exchange for desalinated water. In fact, the CMWD
approved a water delivery scheme wherein only 80
percent of the City's water supply would offset
with Project water, with the remaining 20 percent
provided by the San Diego County Water Authority
(SDCWA). Carlsbad Municipal Water District,
To the extent that the commenter is asserting that a SEIR is required to evaluate
the Project's potential impact on global warming, please see RTC # 49.
The City's determination that the Project will replace, on a one-for-one basis,
water that the Project's customers otherwise would have imported from the
State Water Project, is supported by substantial evidence. Further, under
CEQA, the Project is not required to assess and account for impacts that will
occur if water that is replaced by the Project is still imported into the region for
another hypothetical use. Nor does CEQA require a project proponent to
guarantee that a project's preservation of a renewable resource will not be
undone by the consumption of that resource by another project. (See RTC #
52.) The commenter does not support its contention that Project water obtained
by Carlsbad will not replace imported water.
SD\694480.2
No.CLG Comment Poseidon Response
Resolution No. 1372, adopted August 18, 2009.
To the extent that the commenter is' asserting that a SEIR is required to evaluate
the Project's potential impact on global wanning, please see RTC # 49.
Contrary to the commenter's assertions, the Project has always planned to
connect to the SDWCA distribution system. The only change is in the route the
pipeline will use to make the connection. Moreover, the total pipeline length
will be reduced 7%, from 17.4 to approximately 16.2 miles, and the pipeline
diameter has been increased from 48 to 54 inches, which will reduce friction
headlosses and thus reduce the power needed for water delivery by
approximately 4,056 MWh/yr from the originally proposed Project.
(Addendum, p. 13.)
The commenter's contention that the evaluation of indirect emissions should not
account for the "net increase in power consumption" misunderstands CEQA
impact analysis, which requires consideration of the net emissions contributed
by the Project relative to existing conditions (i.e., the "baseline"), factoring in
both increases caused by the Project's energy use and decreases caused by the
Project's replacement of imported water and elimination of energy needed to
transport imported water. (See RTC # 52.)
44.Moreover, the proposed delivery pipeline changes
remove connection to Oceanside and divert water
directly to the SDCWA distribution system, where
it may be used to augment current supplies.
(Addendum, p. 9). Therefore, the Project's indirect
emission contribution must be recalculated without
accounting for "net increase in power consumption"
and rather calculate total emissions from energy
requirements. FEIR, p. 4.2-19; 42-20, Table 4.2-9.
45.The FEIR indirect emissions for energy
consumption were also based on the assumption
that the Project would receive electricity from EPS.
Appendix D, p.29. However, the EPS will re-power
and the Project will likely receive energy from a
mix of SDG&E electricity Indeed, the Project's
Green House Gas (GHG) emissions were calculated
based on SDG&E electricity production, not EPS.
Poseidon's Energy Minimization and Greenhouse
Gas Reduction Plan 14; California Coastal
Commission Final Adopted Findings, August
6,2008, p. 82-83 (Poseidon based energy
calculations on use of 246,156 megawatt-hours per
year from SDG&E and "intends to buy all of its
To the extent that the commenter is asserting that a SEIR is required to evaluate
the Project's potential impact on global warming, please see RTC # 49. (See
also RTC # 47.)
The commenter has not provided any information supporting its claim that
energy obtained from SDG&E will result in greater indirect emissions than
energy obtained from EPS, and the Project will use less energy than analyzed in
the FEIR. (Compare GHG Plan at Table 2 [noting total energy use by
desalination plant of 28.08 MW] with FEIR Appendix D [noting total energy
use by desalination plant of 29.8 MW].) The FEIR stated that "[t]he
desalination plant would purchase power from the local utility, a power
generator or other supplier or suppliers. No decision has been made as to which
electrical supplier will be used," and the EPS was identified as one potential
seller of electricity to the Project. (FEIR, at 4.2-18.) Moreover, the FEIR's
SD\694480.2
No.CLG Comment Poseidon Response
energy from SDG&E system power..."). Because
SDG&E obtains energy from a variety of sources,
including coal and natural gas plants which have
higher emission rates than other sources. Id. at 84.
Thus, indirect emissions from power generation
must be recalculated based on new information
revealed since FEIR certification, and changed
circumstances surrounding the Project. CEQA
Guideline § 15162.
analysis did not use emissions factors based on a specific power generation
facility (EPS or otherwise), but instead used average factors for California
and/or using the USEPA's AP-42 document. Further, the GHG Plan requires
the Project to fully offset all indirect emissions resulting from purchased
electricity, based on annual calculations incorporating actual electricity usage
and the emissions factor of the entity from whom electricity is obtained. (See
also RTC # 47.) Moreover, emissions factors change from year to year. For
years 2004, 2005 and 2006, SDG&E's emissions factors have been 614, 546
and 781 pounds of CO2/MWh, respectively. (GHG Plan, p. 5 n.6.) SDG&E's
emissions factors are expected to decrease over time as more of its retail
electricity is generated from renewable sources, which are expected to account
for 20% of the supply by year 2017. (Id. at 5.)
46.Importantly, the FEIR found none of the Project's
direct or indirect air quality impacts significant, and
therefore did not require any mitigation measures.
FEIR, p. 4.2-21. Any impacts that are now
significant will therefore not be mitigated.
As noted by the City's Air Quality Specialist, no new impacts are implicated by
the Project revisions, and therefore the mitigation measures provided in the
FEIR will be adequate.
In addition to failing to establish a "substantial change" or "new information"
triggering a SEIR, the commenter also has failed to demonstrate that the Project
will cause an increase in the severity of direct or indirect air quality impacts
relative to the analysis in the FEIR, or that it will cause a new significant
impact.
47.f. Green House Gas Emissions
The Addendum provides considerable detail on
global warming and Poseidon's requirement of net
carbon neutrality through implementation of the
Energy Minimization and Greenhouse Gas
Reduction Plan (GHG Plan). Addendum, p. 14-18.
However, the City does not address substantial
operational changes to the Project since FEIR
certification that will result in increased GHG
emissions through energy use. Poseidon will now
be responsible for pumping 304 MGD of seawater
To the extent that the commenter is asserting that a SEIR is required to evaluate
the Project's potential impact on global warming, please see RTC # 49.
The commenter's assertion that "substantial operational changes" implemented
after certification of the FEIR now require 304 MGD of seawater for the Project
is false. The FEIR made clear that the Project will require 104 MGD of
seawater to create 50 MGD of desalinated water, with an additional 200 MGD
needed for dilution purposes only. (E.g., Additional Responses, at pp. 11 and
19.) (GHG Plan, Table 2.) Further, the GHG Plan expressly accounted for the
energy required to intake 304 MGD of seawater during stand-alone operations.
In addition, the GHG Plan requires the Project's net indirect GHG emissions to
be calculated on an annual basis - by multiplying the amount of energy actually
SDN694480.2
No.CLG Comment Poseidon Response
and the associated energy demand. Importantly,
only one-third of the 304 million gallons is needed
in the reverse osmosis process, while the remaining
200 million gallons are needed to provide the
required dilution for the brine discharge. 15 The
FEIR considered a Project that only diverted 104
MOD, relying on EPS to pump the remaining 200
MGD. The FEIR's technical analysis did not
consider zero flow through EPS: "Seawater flow
through the EPS rarely stops completely (and if it
did the desalination plant could not operate),
however, periods of minimal flow do occur." FEIR
Appendix E, Marine Biological Considerations
Related To The Reverse Osmosis Desalination
Project At The Encina Power Plant, Carlsbad, CA,
p. 15. '
used by the Project by the appropriate emissions factor (less the amount of
emissions avoided as a direct result of the Project's operations). The GHG Plan
ensures that the Project will fully offset its net indirect GHG emissions, as
determined by the Coastal Commission and State Lands Commission.
See also RTC # 5.
48.The Project will also no longer have a continuous
source of heated water Poseidon's original energy
calculations were based on the expectation that they
would be receiving warm water from the power
plant after it had cooled the generators. An
industry rule of thumb energy demand calculation
holds that for everyone degree centigrade decrease
in water temperature there is an accompanying
three percent increase in energy demand.
The commenter's assertion is incorrect. All of the energy calculations are based
on the Project operating on a stand-alone basis using cold rather than hot water.
As noted in the Additional Responses to Comments, "[Tjhe 304 MGD flow rate
is used as the worst case operating condition, under the assumption that the
discharge is 'unheated', which therefore represents conditions without operation
of the EPS." (Additional Responses to Comments, at 11.)
49.Notably, the FEIR did not contain any discussion of
GHG emissions or global warming. The City is
therefore now required to analyze the Project's
energy use and resulting GHG emissions, to ensure
the Project's impacts are mitigated to a less than
significant level. Pub. Res. Code §21002.
The commenter's contention that a SEIR is required to evaluate the Project's
potential impacts on global climate change is incorrect. Pursuant to CEQA
section 21166, a SEIR is not required unless (a) substantial changes are
proposed in the project requiring major revisions in the EIR, (b) substantial
changes occur with respect to the circumstances under which the project is
undertaken which will require major revisions to the EIR, or (c) new
information, which was not known and could not have been known at the time
the EIR was certified, becomes available. Furthermore, the "substantial
changes" or "new information" must result in a new significant impact, or a
substantial increase in the severity of a previously identified significant effect,
SD\694480.2
No.CLG Comment Poseidon Response
that was not considered in the EIR. (CEQA Guidelines § 15162.)
First, information regarding greenhouse gas ("GHG") emissions is not "new
information" under CEQA § 21166 because it was widely known and available
long before certification of the FEIR in June 2006. See, e.g., Massachusetts v.
EPA, 549 U.S. 497, 507-14 (2007) (discussing numerous legislative and
executive actions prior to 2006 which addressed GHG emissions and global
climate). In fact, CLG filed a petition for writ of mandate on July 19, 2006
challenging Carlsbad's 2006 certification of the FEIR on the grounds that it
failed to evaluate how the Project would "contribute to global climate change,"
clearly rejecting CLG's current claim that a SEIR is needed because the effects
of GHG emissions were not known or knowable in June 2006.
Second, CLG has argued in litigation challenging the State Lands Commission's
approval of the Project that that the legislative enactment of Assembly Bill 32
("AB32") in September 2006 and Senate Bill 97 ("SB97") constitute "changed
circumstances", i.e., the California Legislature's acknowledgment of impacts of
global warming upon the State. This argument fails because California adopted
GHG regulations several years before the adoption of AB32 and SB97, through
enactment of AB1493 in 2002 to regulate GHG emissions from cars and trucks,
and the issuance of Executive Order No. S-3-05, in June 2005, which
established the exact emissions targets that were later incorporated into AB32.
Further, legislative mandates that do not pertain to a particular project or its
environmental effects are not "new information" within the meaning of CEQA
§ 21166. Trial courts have specifically held that AB32 was not "new
information" requiring a SEIR because "new legislation requiring creation of
state regulations certainly does not pertain to this particular Project or its
effects" as it must under CEQA Guidelines § 15162 and CEQA § 21166 to
trigger a SEIR. (American Canyon Cmty. United for Responsible Growth v.
City of Am. Canyon (Napa County Superior Court, May 22, 2007) [AB32 does
not constitute new information requiring further environmental review]). In
National Resources Defense Council v. Reclamation Board, the Sacramento
Superior Court agreed with the California Attorney General that climate change
was not "new information" triggering preparation of a SEIR because the
SD\694480.2
No.CLG Comment Poseidon Response
possibility of global warming was already known by mid-2005, when the
Addendum to the EIR at issue in that case was prepared. (National Resources
Defense Council v. Reclamation Board, (Sacramento County Superior Court,
December 27, 2007) [climate change does not constitute "new information"
requiring further environmental review]).
CLG's claim that a SEIR was needed to evaluate the Project's impact on global
warming already has been litigated in Surfrider Foundation, et al. v. State Lands
Commission, where the Court's Tentative Decision rejected CLG's claim,
stating that GHG emissions and the threat of global warming did not constitute
"new information" requiring preparation of a SEIR. The Tentative Decision
also found that the adoption of AB 32 and SB97 did not constitute "changed
circumstances" requiring preparation of a SEIR, for the reasons set forth above.
In addition, CLG's argument that global warming required preparation of a
SEIR was rejected in another recent San Diego Superior Court case captioned
Unite-Here Local 30 v. San Diego Unified Port District (12/05/08 ruling by
Judge Ronald S. Prager).
Finally, the Project will not cause or contribute to any increase in GHG
emissions because the Coastal Commission and State Lands Commission
approvals incorporated into the Project as a design feature the GHG Plan, which
includes numerous energy-minimization features and results in the reduction to
zero of the Project's net indirect GHG emissions. As such, the Project will have
no net impact on GHG emissions. Substantial evidence exists to support the
uncontested findings by the Coastal Commission and State Lands Commission
that the GHG Plan will result in net carbon neutrality and will fully mitigate any
effects of the Project's indirect emissions on coastal resources. Because
substantial evidence demonstrates that the Project will not cause a significant
effect on global climate change, and that any potential Project impacts to global
climate change will be fully mitigated, a SEIR was not required even if global
warming did constitute "new information" or "changed circumstances." (CEQA
Guidelines § 15162; River Valley Pres. Project v. Metro. Transit Dev. Bd., 37
Cal. App. 4th 154, 179 [1995].)
See also Latham & Watkins September 14, 2009 letter to the Carlsbad City
SD\694480.2
No.CLG Comment Poseidon Response
Council at section I.J; Addendum at 14-18.
50.Moreover, the mandatory finding of significance
dictated by CEQA Guideline 15065(a)(3) for
cumulatively considerable impacts also requires a
thorough analysis to identify these effects "in
depth" and make "detailed findings on the
feasibility of alternatives or mitigation measures."
14CCR 15065(c)(l)and(2).
The commenter's contention that CEQA Guidelines section 15065(a)(3)
requires a SEIR to evaluate potential global warming impacts is misplaced.
Because the threat of global warming does not constitute "new information" or
"changed circumstances" requiring a SEIR pursuant to CEQA section 21166,
for the reasons explained in RTC # 48, the claim that CEQA Guidelines section
15065 required a SEIR fails. Moreover, CEQA Guidelines section 15065(a)(3),
by its terms, only establishes circumstances where an EIR must be prepared,
which occurred here. For these reasons, among others, CLG's claim that that
the State Lands Commission should have prepared a SEIR pursuant to section
15065 was rejected in the Tentative Decision issued by the Court in Surfrider
Foundation et al. v. State Lands Commission.
51.The Addendum's claim that 'net zero' impact on
GHG emissions would not result in any new
significant effects is unsubstantiated. Addendum, p.
18. The "net zero" requirement imposed by other
agencies will still result in emissions of
approximately 60,000 metric tons of CO2 annually.
To the extent the commenter is asserting that a SEIR is required to evaluate the
Project's potential impact on global warming, please see RTC # 49.
The commenter concedes that the GHG Plan will fully offset the Project's net
indirect GHG emissions resulting from electricity purchased to run the
desalination plant (the Project will not directly emit GHGs), and that the Project
will thus be "net zero" regarding GHG emissions. But the commenter
nonetheless asserts that the Project will have a significant impact on GHG
emissions by resulting in "approximately 60,000 metric tons" of carbon
emissions annually. Under CEQA principles, however, the appropriate method
of assessing the Project's emissions-related impacts is to consider the ultimate
change in GHG emissions against the existing baseline, factoring in both the
increases and decreases in energy use that the Project will cause. (See CEQA
Guidelines § 15126.2(a) ["In assessing the impact of a proposed project on the
environment, the Lead Agency should normally limit its examination to changes
in the existing physical conditions in the affected area as they exist at the time
the notice of preparation is issued . . ."]). Because the Project will not cause any
increase in GHG emissions relative to existing conditions, the Project will not
cause an adverse or significant impact under CEQA.
Notably, the Executive Director of the CEC submitted correspondence to the
Coastal Commission and State Land s Commission supporting the GHG Plan's
SD\694480.2
No.CLG Comment Poseidon Response
approach of offsetting net carbon emissions as consistent with CEQA. The
Chairman of the Air Resources Board, Mary D. Nichols, also submitted a letter
to the Coastal Commission endorsing the GHG Plan's approach of offsetting the
Project's net GHG emissions.
The GHG Plan also requires the Project to minimize energy consumption
through its $55 million state of the art on-site energy minimization features,
which include the "pressure exchanger" energy recovery technology that allows
recovery and reuse of 33.9% of the energy associated with desalination's
reverse osmosis process, as well as high efficiency and premium efficiency
motors and variable frequency drives on the intake water pumps to improve
their efficiency. The Project also will implement as many Leadership in Energy
and Environmental Design building design features as are reasonably
practicable, among other energy-minimizing features.
52.The City provides no explanation of why this is not
significant. The City's assertion that Project water
is replacement water is unsupported. Addendum, p.
18. The SDCWA and member agencies have not
agreed to forego their imported water allotments in
exchange for product water. Moreover, the City
cannot point to which water sources would be
displaced if the Project water did truly displace
other sources. Colorado River sources do not
require as much energy as State Water Project
sources Further, displaced State Water Project
water will still travel to neighboring cities in the
region, or neighboring counties. Even assuming
100 percent of the Project water displaces an equal
amount of State Water Project water from being
delivered to San Diego, the State Water Project
water will not simply remain in the Sacramento San
Joaquin Delta, never to be distributed.
To the extent the commenter is asserting that a SEIR is required to evaluate the
Project's potential impact on global warming, please see RTC # 49.
The commenter claims that "the City's assertion that Project water is
replacement water is unsupported." This claim is easily refuted. The Project
will produce 56,000 acre-feet per year of desalinated water that will directly
replace, on a one-for-one basis, water that would have been imported to the
Project's customers from the State Water Project ("SWP"). This is confirmed
by letters from the Project's water agency partners to the State Lands
Commission, dated November 6 and 7, 2007. (CCC Final Adopted Findings, at
86-87.) Indeed, the Project is part of the Metropolitan Water District of
Southern California's ("MWD") Seawater Desalination Project, which requires
that "Project production for any beneficial use must replace an existing demand
or prevent a new demand on Metropolitan's imported supplies." The MWD has
agreed to subsidize the purchase of Project water at $250 per acre foot ($14
million per year), so long as it offsets an equivalent amount of imported water
and subject to an annual audit demonstrating that the desalinated water was used
to offset a demand for imported water that otherwise would have been delivered
by MWD. (Id. at 87.) The MWD rebate and audit system contribute to the
substantial evidence in the record establishing that the Project's water will
SD\694480.2
No.CLG Comment Poseidon Response
replace imported water.
The Coastal Commission specifically found that the Project will avoid
emissions under the GHG Plan from displacement of imported water, a finding
that was not challenged in CLG's lawsuit against the Coastal Commission
approval and which constitutes further substantial evidence in support of the
City's conclusion that Project water is replacement water.
The commenter also contends that even if the Project does replace imported
water for its customers, 56,000 AFY of water will still be imported to the region
for other uses. It is speculative to predict whether some or all of the replaced
water would still be imported to the San Diego region after implementation of
the Project. Contrary to the commenter's implication, however, CEQA does not
require the Project to assess and account for impacts that would result if the
56,000 AFY of water replaced by the Project is ultimately imported to the
region for another hypothetical use. Instead, the end user of that water will be
required by CEQA and other applicable laws to address any emissions (or other)
associated impacts. (See Environmental Council of Sacramento v. City of
Sacramento, 142 Cal.App.4th 1018, 1036(2006).)
CEQA also does not require a project proponent to guarantee that a project's
preservation of a nonrenewable resource will not be undone by the consumption
of that resource by another project. Nor is any such "guarantee" required under
CEQA when a lead agency makes significance conclusions regarding
environmental impacts. "A public agency can make reasonable assumptions
based on substantial evidence about future conditions without guaranteeing that
those assumptions will remain true." (Environmental Council, 142 Cal. App. 4th
at 1036.) "CEQA only requires that an EIR discuss 'the significant
environmental effects of the proposed project" including in the analysis
consideration of the environmental benefits that will be achieved from key
project components. Village ofLaguna ofLaguna Beach, Inc. v. Board of
Supervisors, 134 Cal. App. 3d 1022, 1030 (1982) (original emphasis) (citing
Pub. Res. Code§21100(a)).
Any requirement that Poseidon mitigate impacts of additional water imported to
the San Diego region for separate uses, in addition to mitigation that the end
SD\694480.2
No.
53.
54.
CLG Comment
The Project's contribution of almost 100,000 metric
tons of CO2 to the atmosphere is substantial and
cumulatively significant. GHG Plan, p. 6. The City
must analyze this significant impact and detail
possible alternatives and mitigation measures in a
SEIR.
V. Substantial Changes will Result in Significant
Marine Life Impacts
Poseidon Response
user of that water would be required to undertake, would result in "double
mitigation" of impacts. Moreover, under two landmark opinions issued by the
United States Supreme Court - Nollan v. California Coastal Commission and
Dolan v. City ofTigard- public agencies may not constitutionally impose
conditions on development unless there is a "nexus" between the condition and
the project's environmental impact and the condition is "roughly proportional"
to the impact being addressed. These constitutional requirements are explicitly
recognized in CEQA's implementing regulations. (CEQA Guidelines
§ 15126.4(a)(4)(A), (B).) Here, there is no nexus for requiring Poseidon to
offset GHG emissions that may result at some uncertain point in the future
should the water that Poseidon is displacing be imported for some unrelated use.
The commenter asserts that imported water displaced by the Project could be
water imported from the Colorado River rather than the SWP, and that Colorado
River sources do not require as much energy as SWP sources. To the contrary,
the MWD now operates its imported water delivery system to base load its
Colorado River allotment and draw from the SWP only as needed to serve
demand that cannot be met by lower cost water available from the Colorado
River Aqueduct. This is a result of the 2003 multi-state Colorado River
quantitative settlement agreement that forced MWD to reduce its pumping from
the Colorado River by 53% -- from 1.20 MAFY to 0.56 MAFY. Consequently,
the Project will reduce its customers' demand on the SWP, not the Colorado
River, and the GHG Plan appropriately credits avoided emissions offsets on this
basis. (GHG Plan at p. 14.) A July 29, 2008 correspondence from the General
Manger of the MWD of Southern California to the Executive Director of the
Coastal Commission confirmed that the Project will replace water from the
SWP not the Colorado River.
The commenter's contention that a SEIR is needed to evaluate the Project's
potential impacts on global warming is incorrect for the reasons stated in RTC
#49. (See a/so RTC #51.)
The commenter's claim that review of the Project by the Regional Board,
Coastal Commission and State Lands Commission identified new significant
SD\694480.2
No.CLG Comment Poseidon Response
The City's finding of no significant impacts to the
marine environment is absurd in light of the
expansive data brought to light since FEIR
certification Addendum, p. 19-20. The Regional
Board, State Lands Commission (SLC), and
California Coastal Commission (CCC) have all
found the Project's entrainment and impingement
impacts significant. The City and the applicant
mischaracterize mitigation measures imposed by
other agencies as voluntary, a product of statutory
schemes, or over-zealousness. However, the
validity of the data underlying the imposition of
mitigation measures cannot be so easily dismissed.
marine life impacts under CEQA that would occur during stand-alone operation
of the Project is incorrect. None of these agencies determined that the Project
would have significant marine life impacts pursuant to CEQA. Instead, each of
these agencies imposed mitigation measures according to their respective
responsibilities under separate statutory schemes, outside of CEQA, in order to
maximize environmental protection. Moreover, the Regional Board, Coastal
Commission and State Lands Commission approvals each recognized the
FEIR's determination that the Project would not have significant marine life
impacts under CEQA. In a Tentative Decision rejecting CLG's challenge to the
State Lands Commission's approval of the Project, the Court specifically made
both of the preceding points while finding that a SEIR was not required to
address marine life impacts.
The commenter suggests that the Regional Board determined that a stand-alone
Project would cause new significant impacts. To the contrary, however, the
Project's NPDES Permit incorporated the FEIR's determination that the Project
would not have significant marine life impacts operating with or without the
EPS. Further the Regional Board's imposition of the Flow, Entrainment and
Impingement Minimization Plan ("Minimization Plan") was pursuant to CWC
§ 13142.5(b), in order to implement the best available design, technology and
mitigation measures feasible to minimize intake and marine life mortality when
"CDP intake requirements exceed the volume of water being discharged by the
EPS." (Addendum, 20.) The Minimization Plan was not imposed based on a
finding of significant impacts under CEQA. CWC § 13142.5(b) establishes a
different standard of review than CEQA's "significant" impact threshold, and
requires implementation of the best feasible and available measures regardless
of whether there are significant impacts under CEQA.
Nor did the Coastal Commission find that the Project would have significant
impacts under CEQA. To the contrary, the Coastal Commission's findings state
expressly that "[t]he Final EIR . . . addressed the potential stand-alone operation
of the facility and concluded that such a facility would not result in any
significant adverse environmental impacts." Acknowledging that there would
not be significant marine life impacts under CEQA, the Coastal Commission
imposed the MLMP to ensure consistency with Coastal Act Sections 30230 and
SD\694480.2
No.CLG Comment Poseidon Response
30231. Like the Water Code, the Coastal Act also applies a different standard of
review than CEQA, requiring that "[mjarine resources shall be maintained,
enhanced, and where feasible restored," and that adverse effects of entrainment
be minimized where feasible. The Coastal Commission's findings could not
have been clearer that the MLMP was imposed to ensure Coastal Act
conformity, rather than mitigation of impacts under CEQA:
Although the Final EIR found the project would cause no significant impacts
pursuant to CEQA, the Commission finds that the project's entrainment impacts
require mitigation to ensure conformity to Coastal Act Sections 30230 and
3023J. (CCC Final Adopted Findings, 46) (emphasis added).
The commenter's suggestion that the State Lands Commission's adoption of the
MLMP was intended as mitigation for newly identified significant impacts
under CEQA also is incorrect. The Staff Report and testimony by the State
Lands Commission's Executive Officer confirm that a SEIR was not necessary
because the FEIR analyzed stand-alone operations and concluded there would
be no marine life impacts. The record is also clear that the MLMP was imposed
pursuant to the SLC's public trust responsibilities, not CEQA.
Responsible agency review did not identify any new significant impacts to
marine life under CEQA, and the commenter has not identified any "substantial
changes" to the Project or its circumstances or any "new information" triggering
preparation of a SEIR under CEQA section 21166. Accordingly, the
commenter's claim that a SEIR is required to evaluate the Project's potential
marine life impacts during stand alone operations is incorrect. Further, it is
undisputed that the FEIR analyzed stand-alone and co-located operation of the
Project and concluded that marine life impacts would not be significant under
either operating scenario.
55.In addition to the various significant environmental
impacts detailed extensively above, these
significant marine life impacts warrant production
of a SEIR. Any of the SEIR triggers apply to the
substantial changes to and surrounding the Project
since FEIR certification. CEQA Guideline § 15162
The City's assertion to the contrary is an abuse of
The commenter's statement that a SEIR is required to analyze the Project's
impact on marine life due to "substantial changes to and surrounding the Project
since FEIR certification" is erroneous. The commenter does not identify any
alleged changes to the Project or its circumstances that would trigger
preparation of a SEIR, and it is undisputed that the FEIR analyzed the Project,
operating with or without the EPS, and concluded that it would not have
significant marine life impacts. The Project's operational characteristics have
SD\694480.2
No.CLG Comment Poseidon Response
discretion and an affront to common sense.not changed since certification of the FEIR; as the Project always has called for
104 MOD of source water to create 50 MGD of desalinated water, with an
additional 200 MGD needed for dilution purposes only. Further, additional
CEQA compliance and environmental review will be undertaken by Carlsbad in
the event that the EPS permanently ceases operations
56.a. Project and EPS Operational Characteristics
Have Changed Since FEIR Certification
As highlighted above, since FEIR certification, it
has become clear the Project will operate in one of
four modes:
1) Co-location when EPS is discharging sufficient
volumes for Project operation (EPS discharging
304 MGD); or
2) Co-location for Project benefit when EPS is
temporarily shut down (EPS discharging 0 MGD);
or
3) Co-location for Project benefit when EPS is
operating, but its discharge volume is not sufficient
to meet the Project's intake requirements (EPS is
discharging> 304 MGD); or
4) Stand-alone operation when EPS shuts down.
Order No. R9-2009-0038, p.2.
On the other hand, the FEIR merely considered
Project impacts compared to EPS historical
baseline operations. FEIR, p 4.3-36. A "historical
extreme" was used as a proxy for evaluating
standalone marine life impacts. Addendum, p. 19.
But the EPS historical operation scenario does not
accurately describe or analyze all four of the
possible operating scenarios because EPS will not
operate as historically predicted at the time of FEIR
certification. The desalination plant feedwater
intake will not increase the volume, nor the velocity
The commenter suggests that the Project has "changed" because it now will
require at least 304 MGD of discharge from the EPS. To the contrary, the
Project always has called for 304 MGD (104 MGD to create 50 MGD of
desalinated water and 200 MGD for dilution purposes); the FEIR analyzed the
Project's impacts based on use of at least 304 MGD; and no "change" in Project
operations has been identified by the commenter. (E.g., Additional Responses,
at 6.)
The commenter also appears to assert that the FEIR is inadequate because it did
not evaluate a co-located operating scenario where impacts would be less than
those occurring under the "stand-alone" or "No Power Plant" scenario that the
commenter concedes was evaluated in the FEIR. But the FEIR evaluated
impacts under the full spectrum of EPS operations, including the worst case
scenario - No Power Plant Operation with 304 MGD of intake fully attributable
to the Project - and concluded any marine life impacts would be insignificant.
The FEIR's analysis was therefore sufficient for the public and decisionmakers
to make an informed decision about operational scenarios where the EPS is
operating and providing some level of discharge less than 304 MGD, as any
marine life impacts under such a scenario would be less significant than under
the scenario evaluated in the FEIR. (Village ofLaguna ofLaguna Beach, Inc. v.
Board of Supervisors, 134 Cal. App. 3d 1022, 1028-29 (1982)). An EIR is not
invalid because it "fails to consider in detail each and every conceivable
variation" of the project. (Id. at 1029 (citation omitted). Further, the
commenter has not identified a "substantial change" or "new information"
triggering preparation of a SEIR to re-evaluate co-located operations.
SD\694480.2
No.CLG Comment Poseidon Response
of the EPS coolingwater intake nor will it increase
the number of organisms entrained or impinged by
the EPS coolingwater intake structure. Therefore,
the project would not result in any additional
impingement effects of the EPS and therefore,
impingement effects are not considered as
significant impacts attributable to desalination plant
operations. FEIR, p. 4.3-36.
The Project before the City now, or the "activity
which is being approved," has changed. CEQA
Guideline § 15378(c). The Project must now ensure
at least 304 MOD flows through the EPS discharge
channel, as the Project's NPDES permit from the
Regional Board requires at least 304 MOD of
discharge from EPS for brine dilution. Order No.
R9-2009-0038, p. 1. Various other operational
restrictions and requirements have been imposed by
the Regional Board, as well as other agencies. The
FEIR does not address these changes.
57.First, in 2006, the City approved a Project to
withdraw 104 MOD of seawater for production of
50 MOD of potable water (and appurtenant
facilities and pipelines). FEIR CEQA Findings of
Fact and Statement of Overriding Considerations,
p.2. The Project, the "whole of an action", now
involves the applicant either negotiating with EPS
to consistently pump 304 MOD, or operating the
EPS pumps itself. 20 See Section I.b. above. This is
a departure from the Project approved in 2006.
As noted in the preceding RTC, the commenter's assertion that the Project
originally required only 104 MGD of intake water, but was then "changed" to
require 304 MGD of intake water, is incorrect. The commenter's confusion
may stem from the fact that only 104 MGD will be diverted to the desalination
plant intake to create 50 MGD of desalinated water, with a discharge of
approximately 54. The other 200 MGD will be used only for purposes of
diluting the approximately 54 MGD of combined filter backwash and brine
discharge before it returns to the ocean via the existing EPS discharge. The 200
MGD of dilution water will not enter the desalination plant intake for
desalination processing. (See, e.g., FEIR Figure 3-7; SLC Tentative Decision at
9:4-13).
58.Baseline operating conditions at the time of FEIR
certification were considered EPS "historical
operating conditions", or 576 MGD intake. FEIR
The FEIR indicated that the average discharge from EPS between 1980-2000
was 576 MGD. (Additional Responses, p. 11.) The commenter does not appear
to disagree with this statement in the FEIR.
SD\694480.2
No.CLG Comment Poseidon Response
p.3-15. The FEIR concluded entrainment and
impingement impacts were not significant, as the
normal operating condition of 104 MOD, and even
the historical extreme, would represent a reduction
in flows from baseline. Addendum, p. 20; FEIR, p.
4.3-36.
The FEIR concluded that impingement impacts would not be significant under
stand-alone or co-located operations. When the EPS is operating, the Project
will not cause the EPS to increase the quantity of water withdrawn or increase
the velocity of water withdrawn, and would thus not cause any increase in
impingement. Under the No Power Plant Operation scenario, the FEIR
concluded that impingement impacts would not be significant because the
approach velocity of water flowing through the EPS intake would not exceed
0.5 feet per second. (Additional Responses, page 11).
Regarding entrainment, the FEIR concluded that under co-located operations,
the Project would have an incremental loss of approximately 0.01 to 0.28
percent of larvae present in the power plant source water that made it into the
desalination plant, as the average observed mortality of larvae in the EPS was
97.6 percent (2.4 percent survival). The FEIR found this impact insignificant.
Under stand-alone operations, the FEIR concluded that any loss of larval fish
would not have a substantial effect on the species' ability to sustain their
populations because of their widespread distribution and high reproductive
potential. Moreover, 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. The FEIR found 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. Accordingly, the FEIR
concluded stand-alone operations would not cause a significant ecological
impact.
SeeRTC#5.
59.For purposes of determining whether a SEIR
is needed, the physical change is measured against
the previously approved Project. Arguably
Poseidon has not vested any of its permits or rights,
as Poseidon has not received any permits, nor has
The commenter appears to be confused. It is unclear why the commenter is
referring to "vested rights," or what "physical change" is being referenced. As
noted throughout these RTCs, the commenter's implication that the Project has
"changed" to require 304 MGD is incorrect. (E.g., Additional Responses pp. 11
and 19.)
SD\694480.2
No.CLG Comment Poseidon Response
construction begun. Benton v Board of Supervisors
(1991) 226 Cal.App.3d 1467, 1477 ("In our case,
the actual physical environment includes that which
[the applicant] has a legal right to build under
permits which have already been issued and on
which construction has already begun."). However,
even assuming the baseline condition for CEQA
purposes is the approved 2006 Project, Poseidon
could only have vested a right to draw in 104 MOD
from EPS discharge.
A SEIR is not required unless (a) substantial changes are proposed in the project
requiring major revisions in the EIR, (b) substantial changes occur with respect
to the circumstances under which the project is undertaken which will require
major revisions to the EIR, or (c) new information, which was not known and
could not have been known at the time the EIR was certified, becomes
available. Furthermore, the "substantial changes" or "new information" must
result in a new significant impact, or a substantial increase in the severity of a
previously identified significant effect, that was not considered in the EIR.
(CEQA Guidelines § 15162.) The commenter does not identify any "substantial
change" or "new information" triggering preparation of a SEIR under CEQA. It
also is undisputed that the FEIR analyzed a stand-alone Project - with intake of
304 MOD fully attributable to the Project - and concluded it would not have
significant marine life impacts from entrainment or impingement.
60.In contrast, the Project changes since certification
now require Poseidon to draw in 304 MOD.
Whether Poseidon is physically operating the
pumps or has arranged with EPS to draw in 304 for
the Project's benefit, this scenario is a physical
change to the environment resulting from the
changed Project. If the Project is operating as the
driver of intake flows, and/or decouples intake from
EPS condensers, it will be responsible for all
impacts associated with such operations. This
resulting change (200 additional MOD attributable
to the Project) will have significant environmental
impacts, which require preparation of a SEIR.
As noted, the commenter's claim that the Project has been "changed" after
certification of the FEIR to require 304 MOD of intake water is false. It is also
undisputed that the FEIR analyzed a stand-alone Project - with intake of 304
MOD fully attributable to the Project - and concluded it would not have
significant marine life impacts from entrainment or impingement.
The commenter's contention that review of the Project by other agencies
identified significant marine life impacts under CEQA is incorrect. (See RTC
#54.)
61.b. Subsequent Agency Action Identified Significant
Environmental Impacts
The Addendum itself belies the City's contention,
and the FEIR's conclusion, that the Project will not
cause significant marine life impacts. Id. All
agencies listed above required 55.4 acres of
wetland mitigation to offset the Project's
SD\694480.2
No.CLG Comment Poseidon Response
entrainment impacts. See Comment Letter from
CCC Executive Director to Regional Board, May 6,
2009. The City characterizes these as "restoration"
measures as support for the FEIR finding of no
significant impact. Addendum, p. 20. However, the
FEIR was incorrect in finding no significant
impact.
52. Since certification, three separate agencies have
verified that marine life impacts are significant.
The commenter's contention that review of the Project by other agencies
identified significant marine life impacts under CEQA is incorrect. (See RTC
#54.)
53. These determinations were based upon an empirical
transport model and area of habitat production
foregone (AHPF) calculation of 42.5 acres, first
brought to light after FEIR certification. PRC §
21166. The AHPF calculation triggers a mandatory
finding of significance. CEQA Guideline § 15065.
Poseidon Revised Flow, Entrainment and
Impingement Minimization Plan, June 1, 2007, p.
4. The very definition of entrainment implicates
marine life sustainability concerns. CCC Final
Adopted Findings, August 6, 2008, p. 40-41
(entrainment defined as: occurring "when small
organisms, such as plankton, fish eggs, larvae, etc,
are pulled into an open water intake").
The commenter's contention that review of the Project by other agencies
identified significant marine life impacts under CEQA is incorrect. (See RTC
#54.)
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. 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, the FEIR's conclusion that
the Project will not cause a significant ecological effect on marine life remains
valid. (See Expert Statement of D. Mayer, dated September 21, 2009.)
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
in use in California since 2001. (Id) The commenter could have requested the
use of APF methodology by the City in its review of the Project in 2006, and/or
submitted its own APF analysis to the City. A SEIR is not required because
APF methodology is not "new information [that] was not known and could not
have been known at the time the EIR was certified." (A Local & Regional
Monitor v. City of Los Angeles ("ALARM"), 12 Cal. App. 4th 1773, 1800
(1993) (original emphasis).)
Because the commenter has not identified any "substantial change" or "new
SD\694480.:
No.CLG Comment Poseidon Response
information" relating to marine life impacts triggering preparation of a SEIR
pursuant to CEQA section 21166, the claim that CEQA Guidelines section
15065 required a SEIR fails. Moreover, CEQA Guidelines section 15065(a)(3),
by its terms, only establishes circumstances where an EIR must be prepared,
which occurred here. For these reasons, among others, CLG's claim that that
the State Lands Commission should have prepared a SEIR pursuant to CEQA
Guidelines section 15065 was rejected in the Tentative Decision issued by the
Court in Surfrider Foundation et al. v. Slate Lands Commission.
64.Poseidon's first calculations presented to the
Regional Board in June 2007 provided an AHPF
estimate of 36.8 acres. Poseidon Revised Flow,
Entrainment and Impingement Minimization Plan,
June 1, 2007, p. 4; CCC Final Adopted Findings,
August 6, 2008, P 40-41. A CCC expert found
additional impact to ocean species, for a total
AHPF of 42.5 acres, at a 50 percent confidence
level. CCC Final Adopted Findings for MLMP
approval, December 10, 2008, p. 13-16. Since
certification of the FE1R, all three of the above-
named agencies have required some variation of the
Marine Life Mitigation Plan (MLMP), requiring
55.4 acres of wetland creation or restoration 24
Addendum, p. 20.
SeeRTCs#54and#63.
65.CCC Final Adopted Findings for MLMP approval,
December 10, 2008, p. 13-16. at p. 15(APFisarea
production foregone, interchangeable with AHPF)
As indicated in the CCC table above, the three
agencies have relied upon a 50 percent confidence
level in the calculation of AHPF in imposing
mitigation, The AHPF calculation inherently
involves agency discretion as it requires the agency
to choose a level of confidence in the underlying
data assumptions.
SeeRTCs#54and#63.
66.As the lead agency, the City has not previously SeeRTCs#54and#63.
SD\694480.2
No.CLG Comment Poseidon Response
seen or evaluated the AHPF methodology used to
calculate the 55A acres of wetland mitigation, Now,
three years after FEIR certification, the City has
before it new, relevant data that requires analysis
pursuant to CEQA PRC § 21166; CEQA Guideline
§ 15162. Not only is such analysis required
because of its mandatory significance, but also
because the City and applicant themselves admit no
previous agency has reviewed such data pursuant to
CEQA Response to August 19, 2009 Letter on
Desalination Project Changes, Scott Donnell, p. 3
("None of the permitting agencies has prepared any
new, subsequent or supplemental CEQA
documentation, and therefore no new impacts or
mitigation measures have been identified under
CEQA"), pA ("None of the conditions or other
requirements placed on permits issued by other
agencies pursuant to laws, ordinances, regulations,
or policies other than CEQA require analysis under
CEQA"); see also, Addendum, p 21.
67.The City's contends a SEIR is not required because
the CCC and Regional Board relied on the same
entrainment data relied upon in the FEIR.
Addendum, p, 21. The APF methodology does not
demonstrate any change in the number of marine
organisms that will be entrained or otherwise
affected by the Project during stand-alone
operations, and therefore does not constitute "new
information" triggering preparation of a
supplemental EIR. Addendum, p, 21. Though the
EPS impingement and entrainment sampling relied
upon in the FEIR was conducted in 2004-2005, the
impingement and entrainment impacts constitute
new information because such information was not
known and could not have been known with the
SeeRTCs#54and#63.
The commenter's claim that the FEIR "was based upon assumptions and not
hard data" is simply false. The FEIR's entrainment and impingement analysis
was based on analysis by Tenera Environmental, a recognized expert in the
evaluation of entrainment and impingement studies, and included the results of
an entrainment and impingement sampling study for the EPS intake conducted
over 12-months, from 2004-2005. This same data was used in the APF analysis
conducted by the Coastal Commission and Regional Board to quantify
mitigation requirements. The APF methodology thus 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. Therefore, APF
methodology does not constitute "new information" triggering preparation of a
SEIR. (See Fort Mojave Indian v. Cal. Dep 't of Health Servs., 38 Cal.App.4th
1574, 1605 (1995) [federal designation of project site as critical habitat did not
SD\694480.2
No.CLG Comment Poseidon Response
exercise of reasonable diligence. CEQA Guideline
§ 15162(a)(3), "As a result of an accumulation of
information from various sources over a period of
time [other agencies] became concerned with the
possibility of a substantially higher risk .. ,",
Security Environmental Systems, Inc. v. South
Coast Air Quality Management Dist. (1991) 229
Cal,App.3d 110, 124 ("Security Environmental
Systems"). Since the original [FEIR] was based
upon assumptions and not hard data, the new
assumptions raise substantial concern as to the
validity of the original data, and strongly suggest
the need for a reconciliation of adverse assumptions
and a full and complete investigation and disclosure
of all [impacts]. Id. Similar to Security
Environmental Systems, the FElR's conclusions
regarding the significance of marine life impacts
were based on the assumption that EPS would
continue to operate as it had historically.
trigger preparation of a SEIR because, "however legally characterized, the
habitat would be affected the same as before."]; see also Chaparral Greens v.
City ofChula Vista, 50 CaI.App.4* 1134, 1149 (1996) [listing of gnatcatcher as
a threatened species did not require recirculation of EIR because it had "no
bearing on the impact of the project on the California gnatcatcher population
and habitat."].) Because the underlying biological facts evaluated in the FEIR
have not changed, a SEIR is not required based on the subsequent use of
different methodologies by other agencies to characterize mitigation
requirements.
68.FEIR Additional Response to Comments, June 13,
2006, p. 1. Several other underlying assumptions
regarding co-located operations have proven false,
Entrainment impacts cannot be minimized because
the "most frequently entrained species are very
abundant in the area of EPS intake," Addendum, p,
19. The City's reliance on the Department of Fish
and Game Nearshore Fishery Management Plan
(2002), and the idea of surplus larvae production is
no longer a valid entrainment analysis tool FEIR
Additional Response to Comments, June 13, 2006,
p. 20. The CCC, the Regional Board, the SLC, and
various other entities have since realized
entrainment and impingement individually and
cumulatively cause significant environmental
impacts.
SeeRTCs#54and#63.
The commenter provides no support for its disagreement with the FEIR's
conclusion, based on expert analysis by Tenera Environmental, that marine life
impacts will not be significant because the most frequently entrained species are
very abundant in the area of the EPS intake. The commenter has not submitted
any evidence demonstrating that the entrained species are not abundant near the
EPS intake. Nor does the commenter provide any support for its disagreement
with the Department of Fish & Game's Nearshore Fishery Management Plan.
SD\694480.2
No.CLG Comment Poseidon Response
69.Moreover, the Project's impingement Impacts have
not been accurately characterized or analyzed. The
Addendum and FEIR both fall short.
The EIR concluded the Project would not cause any
additional impingement losses because it will not
require an increase in the quantity or velocity of
water withdrawn relative to the Encina Power
Station. (EIR at 4.3-35.) Under the No Power Plant
Operation scenario, approach velocity of the water
flowing through the EPS intake would not exceed
0.5 feet per second. Therefore, the [Project] will not
cause any additional impingement losses to the
marine organisms impinged by the EPS, under the
assumed baseline EPS operating conditions, and
would not result in significant impingement effects
under the No Power Plant Operation scenario. (EIR
at 4.3-36).
The commenter's contention that the Project's potential impingement impacts
have not been accurately characterized or analyzed is false.
When the EPS is operating, the Project will not cause the EPS to increase the
quantity of water withdrawn or increase the velocity of water withdrawn, and
thus would not cause any increase in impingement under co-located operations.
Further, the FEIR concluded that the Project would not result in significant
impingement impacts under the No Power Plant Operation scenario because the
approach velocity of water flowing through the EPS intake would not exceed
0.5 feet per second. (Additional Responses, page 11.)
Similarly, the Coastal Commission concluded in its findings in support of the
Project's Coastal Development Permit that "The flow rate of the water in the
intake bays is expected to be at or below 0.5 fps; therefore, the death of healthy
sea turtles after entering these areas is highly unlikely . . . Poseidon has
documented that stand-alone operation of the facility would result in intake
water velocities at or below 0.5 feet per second, which is consistent with U.S.
EPA guidance for 'best available technology' for cooling water intakes."
The Regional Board found that the principle that intake through-screen
velocities at or below 0.5 fps reduce impingement mortality "has been widely
followed by key regulatory agencies" including USEPA and the State Board
"and is backed by extensive scientific study and review." (Responsiveness
Summary at pp. 38-40.)
The FEIR's conclusion that the Project will not cause significant impacts from
impingement operating with or without the EPS is supported by substantial
evidence.
70.Addendum, p. 20. The co-located scenario where
EPS is not drawing in 304 MOD, or is temporarily
shut down is not addressed by the explanation
above. If EPS draws 304 MGD (or some fraction
thereof) for the Project, approach velocity will
exceed .5 feet per second (fps). See Comment
Letter from CCC Executive Director to Regional
Board, May 6, 2009.
The commenter has failed to identify any "substantial change" or "new
information" that would require preparation of a SEIR to re-assess the Project's
potential impingement impacts under a co-located operating scenario. (CEQA
§21166. See also RTC # 69.)
In addition, Regional Board Order R9-2009-0038 requires the Project to provide
mitigation for impingement in an amount equal to 4.7 kg/day or 1,715.5 kg/year
of "available" fish biomass, through wetlands restoration required as a Project
SD\694480.2
No.CLG Comment Poseidon Response
design feature under the Marine Life Mitigation Plan. The Regional Board
found that 4.7 kg/day is a "reasonable, conservative" estimate of impingement,
and that Poseidon therefore will fully mitigate for any impingement associated
with the Project's operations for up to 304 MOD of source water drawn directly
from Agua Hedionda Lagoon under co-located operations. (Addendum, p. 20;
Responsiveness Summary at 5, 11-13.) This determination is consistent with
the City's finding that the Project will not cause significant impingement
impacts under a co-located operating scenarios. Further, even assuming the co-
located operating scenario described by the commenter did constitute a
"substantial change" or "new information," a SEIR still would not be required
because the Project will fully mitigate any unavoidable losses to impingement.
(See River Valley Pres. Project v. Metro. Transit Dev. Bd, 37 Cal. App. 4th
154, 170(1995).)
71.Poseidon has also recently admitted a calculation
error in its impingement data. See Latham &
Watkins Letter to CCC Executive Director,
September 3, 2009, p.l. Poseidon "voluntarily"
offered 11 additional acres in mitigation to the CCC
as a result of this math error. Id at 1-2. Although
the letter mischaracterizes the Regional Board's
impingement analysis, it nonetheless acknowledges
a calculation error. The Regional Board found
impacts of no less than 4.7 kg/day and up to 7.16
kg/day. Estimation Of The Potential For
Impingement Should The COP Operate In Stand-
Alone Mode, March 9. 2009, p. 13.27 The
calculation error and Poseidon's exclusion of two
data points (not made known to the public during
FEIR review) required new calculations of the
impingement impacts at the Regional Board. The
inclusion of heat treatment impingement impacts
was also newly considered by the Regional Board.
Regional Board Staff Report, March 27, 2009, p.
11-13.
The commenter's claim that Poseidon has "recently" admitted a calculation
error regarding its impingement calculations is false. Poseidon's position since
an April 30, 2008 submission to the Regional Board (nearly 1.5 years ago) is
that the forecasted impingement effects for stand-alone operations will be 1.56
kg/day (3.43 pounds per day), or less. This figure was included in Dr. David
Mayer's April 2008 expert report. While this value is slightly more than 2.12
pounds per day estimate of impingement that the Coastal Commission cited in
its findings in support of the Project's Coastal Development Permit, it is still
less than daily diet of one adult brown Pelican. There simply has been no
"recently" identified increase in forecasted impingement.
The Regional Board imposed mitigation based on an estimated impingement
effect of 4.7 kg/day, or 1,715.5 kg/year, which the Regional Board and its staff
determined "is a reasonable, conservative, estimate of impingement." (2009
Order, f 45; Responsiveness Summary, 5.) Although Poseidon believes that this
value is very conservative, and that actual impingement is likely to be much
lower than 4.7 kg/day, Poseidon has agreed to meet a productivity performance
standard of 4.7 kg/day, and to monitor impingement at the intake and fish
productivity at the mitigation site(s) so that the standard may be adjusted if
necessary in order to ensure that impingement will be fully mitigated. As such,
the Board found it was unnecessary to resolve the disagreement between
SD\694480.2
No.CLG Comment Poseidon Response
Poseidon and staff regarding whether or not impingement is likely to be lower
than 4.7 kg/day. (Responsiveness Summary, 5.) The Regional Board's approval
of Order R9-2009-0038 is final and effective, and the commenter's contention
that "new calculations of the impingement impacts" are required by the
Regional Board is false and irrelevant to this proceeding.
Regarding "heat treatments", the Regional Board concluded that Poseidon
"lacks control over the use of heat treatment" under co-located operating
scenarios, since heat treatment frequency is a matter of industry standard that is
unaffected by flow rates. The Regional Board therefore found that the Project
will not increase the use of heat treatments during co-located operations.
(Responsiveness Summary, at 55 and 111.) The Regional Board declined to
evaluate Poseidon's Proposal to replace heat treatments with plastic scrubbing
balls during stand-alone operations, because such proposals can be implemented
only upon permanent EPS shut down, a scenario not before the Regional Board.
(Id. at 35.) Such analysis will be undertaken when/if the Regional Board
considers stand-alone operations.
72.VI. Conclusion
The trigger for SEIR preparation has been met.
Since FEIR certification new information has come
to light, and substantial changes in the Project and
to circumstances of Project operation have been
made or proposed. CEQA Guideline § 15162(a)(l)
and (2). Further, many of the City's assumptions
regarding Project operations, impacts, and
significance of impacts have proven false, requiring
further analysis. The City must evaluate all
significant environmental impacts mentioned
above, as well as any other Project impacts, and
available alternatives, avoidance and mitigation
measures in a SEIR. Id. For these reasons, and
those stated above, the City's approval of the
revised Project, including revisions to necessary
agreements, permits, and Addendum, would be
For the reasons set forth throughout these RTCs, all of which are incorporated
into this response, a SEIR is not required and the City's 2009 Project approvals
are consistent with CEQA and applicable law.
SD\6944S0.2
No.CLG Comment
contrary to CEQA. Consequently, we urge the City
to deny the requested Project changes and require
preparation of a SEIR.
Poseidon Response
SD\694480.2