211 Cal. App. 4th 557
Cal. Ct. App.2012Background
- Poseidon plans a 50 mgd desalination facility in Carlsbad that will use seawater and rely on the Encina Power Station’s (EPS) once-through cooling water discharge for some intake needs.
- The Regional Board approved an NPDES permit and required a Minimization Plan addressing 13142.5(b)’s mandate to minimize marine-life intake and mortality.
- The Minimization Plan separates site, design, technology, and mitigation measures and specifies Scenario 2 (EPS not fully supplying needs) for additional measures.
- The MLMP (coordinated with the Coastal Commission) mandates wetland restoration up to 55.4 acres as mitigation and is incorporated into the Minimization Plan.
- Surfrider challenged the Regional Board’s May 13, 2009 final order approving the Minimization Plan, arguing the plan relies on after-the-fact restoration rather than best feasible site/design/technology.
- The trial court denied Surfrider’s mandamus petition; the court of appeal affirmed, upholding compliance with section 13142.5(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Minimization Plan satisfies 13142.5(b) by combining site, design, technology and mitigation. | Surfrider contends wetland restoration alone satisfies the statute. | Poseidon/Regional Board argue Minimization Plan uses all four elements, not just mitigation. | Yes; plan uses site, design, technology and mitigation collectively. |
| Whether wetlands restoration is a proper mitigation type under 13142.5(b). | Restoration cannot satisfy intake/minimization goals; it’s post hoc. | Mitigation is included and can encompass restoration to offset mortality. | Mitigation includes wetlands restoration as part of the Plan. |
| Whether the Regional Board’s feasibility analysis properly balanced Poseidon’s goals with environmental factors. | Feasibility analysis improperly prioritizes economic goals. | Feasibility may consider economic, environmental, social and technological factors; Board properly weighed goals. | Feasibility analysis properly balanced goals under CEQA-based standards. |
| Whether the Board correctly deferred Scenario 3 analysis to future review and did not improperly foreclose review. | Future review should occur now; current plan should address all scenarios. | Future review is reasonable if EPS shuts down; current plan focuses on Scenario 2. | Deferred Scenario 3 analysis; approved plan consistent with law. |
Key Cases Cited
- Voices of the Wetlands v. State Water Resources Control Bd., 52 Cal.4th 499 (Cal. 2011) (standards for agency review; substantial evidence standard)
- City of Rancho Cucamonga v. Regional Water Quality Control Bd., 135 Cal.App.4th 1377 (Cal. App. 2006) (de novo legal determinations; agency interpretations weighed)
- In re Bay-Delta etc., 43 Cal.4th 1143 (Cal. 2008) (CEQA feasibility definition and alternative analysis)
- Riverkeeper, Inc. v. U.S. E.P.A., 358 F.3d 174 (2d Cir. 2004) (restoration measures cannot satisfy location/design/construction focus)
- Riverkeeper, Inc. v. U.S. E.P.A., 475 F.3d 83 (2d Cir. 2007) (reiterates Riverkeeper I; restoration not part of technology-for-minimizing)
- Butte Environmental Council v. U.S. Army Corps of Engineers, 620 F.3d 936 (9th Cir. 2010) (CEQA-like mitigation framework supports compensatory restoration)