Surfrider seeks a ruling that the Poseidon desalination facility planned for Carlsbad must strictly comply with the California Water Code to minimize the intake and mortality of marine life.
In the complaint filed last week, Surfrider objects to Poseidon's plan to take cooling water from Agua Hedionda Lagoon in Carlsbad and replace the fish and other marine life killed in the facility by establishing a restoration project somewhere else.
"When the law says you must 'minimize the intake and mortality' of marine life, that doesn't mean you can kill millions of marine organisms and then try to replace them somehow," said Joe Geever, Surfrider Foundation's California policy coordinator.
In March, the State Water Resources Control Board for the third time dismissed an appeal of Poseidon's permit filed by Surfrider Foundation and San Diego Coastkeeper.
Location of Poseidon's Carlsbad desalination plant on Agua Hedionda Lagoon (Photo courtesy Poseidon)
The appeals have challenged the San Diego Regional Water Quality Control Board approval of Poseidon's Marine Life Mitigation Plan for the Carlsbad desalination project.
The Marine Life Mitigation Plan is a condition of the National Pollutant Discharge Elimination System, NPDES, permit issued to the project by the Regional Board in 2006.
In denying the appeal, the State Board upheld the Regional's Board's determination that the Carlsbad Desalination Project is in compliance with California Water Code by "utilizing the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life."
Although the San Diego chapters of the Surfrider Foundation and Coastkeeper have a long and unsuccessful history of filing legal challenges and appealing project permit approvals, five of each, the groups are not deterred.
"The Regional Water Quality Control Board misinterpreted the law, and it's unfortunate the project has progressed this far without a final decision on the type of intake and facility design that meets California's law to protect our precious marine environment," said Geever.
"Poseidon Resources is pleased the State Board has denied yet another politically-motivated attempt to stop seawater desalination from becoming a part of California's drinking water supply," said Poseidon Resources' Vice President Scott Maloni in March.
"After spending the better part of the past decade successfully permitting the state's first large-scale seawater desalination plant, construction of the Carlsbad project has started and the inevitable completion of the plant cannot be derailed by opponents of seawater desalination," said Maloni.
Phase I of Poseidon construction started in November 2009. Maloni says that during the construction and start up, the project will create 2,100 jobs and hundreds of millions of dollars in economic stimulus. The facility is scheduled to start operating in 2012.
The $320 million seawater desalination plant is expected to produce 50 million gallons of drinking water a day, about 10 percent of the water San Diego County needs.
Drinking water has been in short supply and water restrictions are a fact of life for San Diego's growing population, located in dry southernmost California.
The Carlsbad desalination project will provide a locally-controlled, drought-proof supply of high-quality water that meets or exceeds all state and federal drinking water standards, developed at no expense to the region's taxpayers, Poseidon says.
Surfrider Foundation and San Diego Coastkeeper, as well as several state attorneys general and other environmental organizations, have been working with federal and state agencies for years to minimize loss of marine life in the cooling water intake systems of coastal power plants such as the one used at the Encina Power Station in Carlsbad.
State agencies, including the California Energy Commission, State Lands Commission, Ocean Protection Council and State Water Resources Control Board, have found that the marine life mortality from these facilities creates a significant impact on healthy fish populations and marine ecological systems, says Geever.
"Open ocean intake is 1940s technology that is being phased out around the nation because new cooling technology is more effective and avoids killing marine life," he said.
The ruling in this Surfrider lawsuit could have importance beyond the Poseidon desalination facility planned for Carlsbad. There are approximately 20 desalination facilities proposed for California.
Some are designed with sub-seafloor intakes that eliminate the marine life mortality, including one in Sand City that was permitted quickly and without much public opposition. Others, however, plan a similar use of abandoned power plant intake structures and will have to amend their plans if the lawsuit is successful.
California's State Water Resources Control Board is currently finalizing a statewide policy on cooling intakes. The agency also has promised to develop a policy on ocean desalination intakes, but that will come too late for this proposal, Geever says.
Poseidon's permit was granted on condition that the desalination plant draw its water from the stream that the Encina Power Station uses to cool its electrical generators. If the power plant stops using ocean water for cooling, Poseidon must get a new permit.
Now, the Encina Power Station plans to voluntarily demolish three of its five generators and replace them with high-efficiency units that do not require cooling water from the ocean. The remaining two units are projected to run on a limited basis and be demolished in the near future.
San Diego Coastkeeper Legal Director Gabriel Solmer said, "Coastkeeper supports Surfrider's lawsuit to protect our marine life from Poseidon while we work together to pursue additional projects to help the region define a dependable water supply portfolio."
"It's time to enforce the law to protect our ocean resources, not only for the environment but so that other ocean desalination project proponents know what the rules are," says Geever. "Killing fish by the millions is not necessary or legal in the design of any ocean desalination facility."
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