e-Bulletin: Environmental Groups File Lawsuit Challenging Conditional Approval of Carlsbad Desalination Project

Two environmental groups have filed a lawsuit to overturn the California Coastal Commission’s conditional approval of a seawater desalination plant in Carlsbad.  The complaint alleges that the proposed $300 million plant would significantly disrupt marine and wildlife in the adjacent Agua Hedionda Lagoon.  Scheduled for completion in 2010, the facility is expected to satisfy 7% of San Diego County’s water demand by 2010 by using a reverse osmosis process.  The Lagoon will provide 100 million gallons per day of seawater to the plant, where half will be converted by the desalination facility into potable water and the other half will be returned to the discharge channel with an elevated salt content and diluted with additional seawater before being ultimately discharged into the ocean.  According to plaintiffs Surfrider Foundation and Planning Conservation League, the California Coastal Commission failed to consider that the dredging required by the project, the increased salinity of discharged water, and the impingement and entrainment effects of the intake and discharge process will significantly adversely impact marine resources.  

Carlsbad-based Poseidon, Inc. plans to construct the Carlsbad Desalination Project on the site of the Encina Power Plant adjacent to the Agua Hedionda Lagoon, a coastal estuary in San Diego County.  The man-made Lagoon is owned by Cabrillo Power LLC, and has been kept open to the Pacific Ocean by routine maintenance dredging since 1952.  The Lagoon supports a variety of beneficial uses, including habitat for a number of listed sensitive species as well as commercial and recreational fish species and forage fish used by other species. 

Locating the desalination facility on the site of the Encina Power Plant provides close proximity to the ocean and compatibility with existing land use.  Moreover, as originally designed the desalination project would have been supplied by Lagoon water that was already being discharged by the Encina Plant’s once-through cooling system for steam-driven turbines.  However, recently the Encina Plant announced plans to phase out its water-cooled system in favor of an air-cooling facility, forcing the desalination project to draw directly from the Lagoon. 

The City of Carlsbad certified the Environmental Impact Report for the Carlsbad Desalination Project on June 13, 2006, leaving the California Coastal Commission as the project’s greatest regulatory obstacle.  An agency charged with protecting and restoring California’s coast, the Commission reviewed the CEQA documents for the project as well as additional documents regarding entrainment, mitigation, dredging, sedimentation, and project alternatives.  At the public hearing on November 15, 2007, the Commission granted a conditional coastal development permit for the facility.  The Commission attached more than 20 conditions to the permit, noting in particular that the plans lacked enough detail to determine their feasibility.  The Commission must review and approve more detailed plans within the next six months before Poseidon may commence construction.

Plaintiffs’ lawsuit alleges that the Coastal Commission acted illegally by approving a conditional permit where there was not sufficient substantial evidence to evaluate the environmental effects of the project.  In particular, the coastal development permit application did not analyze the effect of the recent announcement that cooling discharge water will no longer be available from the Encina Power Plant.  Moreover, plaintiffs allege more generally that the facility’s adverse impact on marine life violates provisions of the Coastal Act requiring the Commission to protect and conserve the Lagoon.

If completed, the Carlsbad Desalination Project will be the largest facility of its kind in the Western Hemisphere with an output of 50 million gallons of potable water per day.  Ocean desalination plants have also been proposed in Dana Point, El Segundo, Huntington Beach, Long Beach, Los Angeles, San Onofre, and the South Bay.  Desalination facilities currently exist on Catalina Island, in Diablo Canyon, and in Santa Barbara, but none are currently operational.  Since 2006, Poseidon has operated a fully functional desalination pilot plant at the Encina Power Station.  The pilot project currently produces about 40,000 gallons of desalinated water per day under the same conditions that the full-sized project will.  The pilot plant was awarded the Global Grand Prize for Applied Research from the International Water Association in 2006 and the Environmental Engineering Award from the American Academy of Environmental Engineers. 

For more information, contact any attorney with BB&K's Environmental Law and Natural Resources Practice Group.

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