COAST LAW GROUP, LLP MARCO A. GONZALEZ (SBN 190832 .

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123456789COAST LAW GROUP, LLPMARCO A. GONZALEZ (SBN 190832)CHRISTIAN C. POLYCHRON (SBN 230103)169 Saxony Road, Suite 204Encinitas, CA 92024Ph: (760) 942-8505Fx: (760) 942-8515SAN DIEGO COASTKEEPERENVIRONMENTAL LAW & POLICY CLINICGABRIEL G. SOLMER (SBN 228449)2825 Dewey Road, Suite 200San Diego, CA 92106Ph: (619) 758-7743Fx: (619) 224-46381011Attorneys for Petitioners,SURFRIDER FOUNDATION and PLANNING AND CONSERVATION LEAGUE121314SUPERIOR COURT FOR THE STATE OF CALIFORNIACOUNTY OF SAN DIEGO1516171819202122232425262728SURFRIDER FOUNDATION, a California nonprofit public benefit corporation; PLANNINGAND CONSERVATION LEAGUE, a Californianon-profit public benefit corporation)))))Petitioners,))v.))CALIFORNIA COASTAL COMMISSION, a)California public agency.))Respondent.)))POSEIDON RESOURCES, (CHANNELSIDE) )LLC., a Delaware limited liability company;)POSEIDON RESOURCES CORPORATION, a )Delaware corporation; POSEIDON WATER,)LLC, a Delaware limited liability company; CITY )OF CARLSBAD, a California municipal)Case No.PETITION FOR WRIT OF MANDAMUS(California Code of Civil Procedure §§ 1094.5)

123456789101112corporation; NRG ENERGY, INC., a Delaware )corporation; WEST COAST POWER LLC, a)Delaware limited liability company, CABRILLO )POWER I, LLC, a Delaware limited liability)company; CABRILLO POWER II, LLC, a)Delaware limited liability company; CARLSBAD )MUNICIPAL WATER DISTRICT, a municipal )water district; VALLEY CENTER MUNICIPAL )WATER DISTRICT, a municipal water district; )RINCON DEL DIABLO MUNICIPAL WATER )DISTRICT, a municipal water district;)SWEETWATER AUTHORITY, a municipal)water district; RAINBOW MUNICIPAL WATER )DISTRICT, a municipal water district;)VALLECITOS WATER DISTRICT, a municipal )water district; SANTA FE IRRIGATION)DISTRICT, a municipal water district;)OLIVENHAIN MUNICIPAL WATER)DISTRICT, a municipal water district.)Real 01.The SURFRIDER FOUNDATION, by and through its San Diego County Chapter,(hereinafter “SURFRIDER FOUNDATION”), and the PLANNING AND CONSERVATION LEAGUE(hereinafter “PCL”) bring this action in the public interest to challenge the CALIFORNIA COASTALCOMMISSION’s (hereinafter “COMMISSION”) approval of POSEIDON RESOURCE(CHANNELSIDE) LLC ‘s (hereinafter “POSEIDON”) Coastal Development Permit E-06-13(hereinafter “CDP”). The CDP allows for the construction and operation of a 50 million gallon per day21seawater desalination facility (hereinafter “facility” or “project”). This action claims the CDP is22inconsistent with the California Coastal Act and thus the COMMISSION’s approval of the CDP was23illegal.242.The facility is proposed to be constructed at the site of the Encina Power Plant in25Carlsbad, San Diego County. The site is located adjacent to the Agua Hedionda Lagoon, a coastal26estuary, and to the Pacific Ocean.27283.The site location is owned by CABRILLO POWER I LLC (hereinafter “CABRILLO”)which currently operates the Encina power plant. The facility would be located adjacent to the power2PETITION FOR W RIT OF M ANDATE

1234plant on land leased from CABRILLO.4.The Agua Hedionda Lagoon is a coastal estuary extending 1.7 miles inland, downstreamof Agua Hedionda Creek.5.Parts of the lagoon are listed by the California Regional Water Quality Control Board as5having impaired water quality due to the presence of indicator bacteria and because of siltation and6sedimentation. Part of the excess sedimentation within the lagoon is caused by water taken in and used7to cool turbines at the Encina Power Plant.8910116.The California Department of Fish and Game (hereinafter “DFG”) includes the AguaHedionda lagoon on a list of 19 high-priority coastal wetlands. DFG also manages a Marine EcologicialReserve within the lagoon that provides habitat for a number of listed sensitive species.7.The Agua Hedionda Lagoon provides habitat for important commercial and recreational12fish species, special listed species, and forage fish used by other species. The lagoon is also considered13“Essential Fish Habitat” pursuant to provisions of the federal Magnuson-Stevens Fishery Conservation14and Management Act.1516178.Field surveys in 1994 and 1995 identified 81 different bird species in the lagoon area,including 12 listed as sensitive. Many of these species rely on marine life within the lagoon andadjoining wetlands.II.JURISDICTION1819209.This Court has jurisdiction under Public Resources Code sections 30801 and 30803, and21Code of Civil Procedure sections 1085 and 1094.5. Venue is proper in this court pursuant to California22Code of Civil Procedure section 393.III.PARTIES23242510.Petitioner SURFRIDER FOUNDATION is a nonprofit public benefit corporation duly26organized and existing under the laws of the State of California for charitable purposes. The27SURFRIDER FOUNDATION meets all standing requirements for prosecuting this petition for writ of28mandamus, is beneficially interested in the subject matter of this mandamus petition, and will be3PETITION FOR W RIT OF M ANDATE

1adversely affected by the environmental impacts of this project. The SURFRIDER FOUNDATION is2an environmental organization dedicated to the protection and enjoyment of the world’s oceans, waves,3and beaches, including the coastline and lagoons in and around Carlsbad. The SURFRIDER4FOUNDATION engages in community activism, participates in governmental hearings, and educates5children and adults about the past, present and future impacts on the ocean and beaches. The interests6that the SURFRIDER FOUNDATION seeks to protect in this petition are germane to its fundamental7purpose. Members of the SURFRIDER FOUNDATION regularly use the beach and the lagoon areas8adjacent to the facility location for recreation including surfing, fishing, hiking, sunbathing, water sports,9and passively enjoying nature. The SURFRIDER FOUNDATION brings this petition on its own behalf,10on behalf of the San Diego County Chapter of the Surfrider Foundation, and on behalf of more than1125,000 members who live in California.1211.Petitioner PCL is a California nonprofit corporation and statewide organization devoted13to protecting California’s natural resources and environment. PCL meets all standing requirements for14prosecuting this petition for writ of mandamus, is beneficially interested in the subject matter of this15mandamus petition, and will be adversely affected by the environmental impacts of this project. For16decades, PCL, has served as one of California’s leading advocates for careful natural resources planning17and management, principled environmental assessment, and environmental protection. Much of PCL’s18work is focused on protection of water resources, including the coastline and lagoons in and around19Carlsbad. The interests that PCL seeks to protect in this petition are germane to its fundamental purpose.20Members of PCL regularly use the beach and the lagoon areas adjacent to the facility location for21recreation including hiking, water sports, and passively enjoying nature.2212.Respondent CALIFORNIA COASTAL COMMISSION is a public agency formed and23operated under the laws of the State of California and charged with regulation and administration of land24use and development in the coastal zone of California. Development within the coastal zone may not25commence until a coastal development permit has been issued by either the Commission or a local26government that has a Commission-certified local coastal program. The COASTAL COMMISSION was27established by the California Coastal Act of 1976, Public Resources Code section 30000 et. seq.2813.Petitioners are informed, believe, and thereon allege real party-in-interest CITY OF4PETITION FOR W RIT OF M ANDATE

1CARLSBAD (“CITY”) is a municipal corporation. Petitioners are further informed, believe, and2thereon allege CITY has the option, but not the obligation, to purchase facility from POSEIDON after3the expiration of the 30 year term of its water supply agreement with POSEIDON. CITY also maintains4the right of first refusal to buy facility should POSEIDON wish to sell. Petitioners are informed, believe,5and thereon allege that CITY retains land-use control over the facility site, will gain approximately 26million dollars in new property tax revenue, and will gain three key parcels of land adjacent to Agua7Hedionda Lagoon as a result of the project.8914.Petitioners are informed, believe, and thereon allege real party-in-interest POSEIDONRESOURCES, (CHANNELSIDE) LLC, the project applicant, is a Delaware limited liability company10headquartered in Stamford Connecticut, and registered and operating in the State of California.11Petitioners are informed, believe, and thereon allege real party-in-interest POSEIDON RESOURCES12CORPORATION is a Delaware corporation headquartered in Stamford Connecticut, and registered and13operating in the State of California. Petitioners are informed, believe, and thereon allege real party-in-14interest POSEIDON WATER, LLC is a Delaware limited liability company headquartered in Stamford15Connecticut, and registered and operating in the State of California. (Collectively, real parties-in-interest16referenced in this paragraph shall hereinafter be referred to as “POSEIDON” or “POSEIDON RPIs”)171819202122232425Petitioners are informed, believe, and thereon allege POSEIDON RPI’s are affiliates, subsidiaries, orparents of each other and share the same business address per filings with the California Secretary ofState. POSEIDON RPIs have a beneficial interest in the project and the CDP.15.Petitioners are informed and believe, and on that basis allege real party-in-interestCABRILLO POWER I LLC is a Delaware limited liability company headquartered in Houston, Texas,and registered and operating in the State of California. Petitioners are informed and believe, and on thatbasis allege, that real party-in-interest CABRILLO POWER II LLC is a Delaware limited liabilitycompany headquartered in Houston, Texas, and registered and operating in the State of California.Petitioners are informed and believe, and on that basis allege real party-in-interest WEST COASTPOWER LLC is a Delaware limited liability company headquartered in Houston, Texas, and registered26and operating in the State of California. Petitioners are informed and believe, and on that basis allege27real party-in-interest NRG ENERGY, INC. is a Delaware corporation headquartered in Princeton, New28Jersey, and registered and operating in the State of California. (Collectively, real parties-in-interest5PETITION FOR W RIT OF M ANDATE

1referenced in this paragraph shall hereinafter be referred to as “CABRILLO” or “CABRILLO RPIs”)2Petitioners are informed, believe, and thereon allege CABRILLO RPIs are affiliates, subsidiaries, or3parents of each other. CABRILLO owns and operates the Encina Power Plant, including infrastructure4for seawater intake from the Agua Hedionda Lagoon. CABRILLO RPIs have a beneficial interest in the5project and the CDP.616.Petitioners are informed and believe, and on that basis allege CARLSBAD MUNICIPAL7WATER DISTRICT is a subsidiary municipal water district of the City of Carlsbad. Petitioners are8informed and believe, and on that basis allege VALLEY CENTER MUNICIPAL WATER DISTRICT,9RINCON DEL DIABLO MUNICIPAL WATER DISTRICT, SWEETWATER AUTHORITY,10RAINBOW MUNICIPAL WATER DISTRICT, VALLECITOS WATER DISTRICT, SANTA FE11IRRIGATION DISTRICT, and OLIVENHAIN MUNICIPAL WATER DISTRICT (hereinafter12collectively “WATER DISTRICTS”), are municipal water districts formed pursuant to the Municipal13Water District Law of 1911, California Water Code section 71000 et seq. According to POSEIDON,14WATER DISTRICTS have entered into public-private partnerships with POSEIDON and signed long-15term purchase agreements to receive 100 percent of the desalinated water from the facility.1617181920212217.Petitioners are informed and believe, and on that basis allege additional real parties-in-interest may exist by virtue of their ownership, use and/or enjoyment of the Agua Hedionda Lagoon andits surrounding, but that any such situated real party-in-interest’s beneficial interest shall be sufficientlyprotected by another real party named in this petition.18.The paragraphs below refer to and rely on information in documents relating to thisaction, all of which will be filed with this court as part of the record of proceedings and all of which arehereby incorporated by reference.IV.PROCEDURAL HISTORY23242519.Petitioners incorporate all previous paragraphs as if fully set forth herein.2620.On June 13, 2006, the City of Carlsbad certified the Environmental Impact Report2728(“EIR”) for the facility as part of its review under the California Environmental Quality Act. The City ofCarlsbad also issued a Conditional Use Permit to POSEIDON on June 13, 2006.6PETITION FOR W RIT OF M ANDATE

121.In August 2006, POSEIDON submitted an application to the COMMISSION for a CDP.2Between September 2006 and July 2007 COMMISSION staff notified POSEIDON on four separate3occasions that its CDP application was incomplete. On July 25, 2007 COMMISSION staff determined4that POSEIDON’s CDP application was complete.522.Between August 2006 and November 2007, POSEIDON submitted a number of6additional documents regarding entrainment, mitigation, dredging, sedimentation, alternatives, and other7issues that were not part of the original CEQA review before the CITY OF CARLSBAD.89101123.On September 14, 2007, CABRILLO filed an application with the California EnergyCommission for a new power plant that would not use seawater. In addition, the application statedexisting steam boiler Units 1, 2, and 3 at the Encina Power Station would be retired.24.The certified EIR described the possibility of the Encina Power Station shutting down as12“speculative.” Since the EIR certification on June 13, 2006, the facility plans analyzed in the EIR and13filed with the COMMISSION have changed. The facility will now predominantly operate as a stand-14alone facility.151617181920212225.information was needed to assess the impacts of the stand-alone facility. The staff report recommendeddenial of POSEIDON’s CDP application.26.25262728On November 15, 2007, the COMMISSION held a public hearing for the approval of aCDP for POSEIDON. Petitioners provided written and oral testimony at the hearing.27.On or about November 15, 2007, the COMMISSION approved the CDP under theCoastal Act. Petitioners have filed this Petition within sixty days of the final action of the Commission,in compliance with Public Resources Code Section 30801.V.PRELIMINARY ALLEGATIONS2324On November 2, 2007, COMMISSION staff issued a staff report stating that additional28.Petitioners incorporate all previous paragraphs as if fully set forth herein.29.This action is brought pursuant to Public Resources Code section 30801 and sections1085 and 1094.5 of the Code of Civil Procedure, which require that a public agency’s approval of aproject be set aside if the public agency has prejudicially abused its discretion. Prejudicial abuse ofdiscretion occurs where the agency fails to proceed in a manner required by law, where the agency fails7PETITION FOR W RIT OF M ANDATE

1to adopt findings that adequately support its determinations or decisions, or where its findings,2determinations or decisions are not supported by substantial evidence in light of the whole record.330.In approving the project the COASTAL COMMISSION committed a prejudicial abuse of4discretion and failed to fulfill its duties under the Coastal Act. The project approval is invalid under the5Code of Civil Procedure section 1094.5 because the Coastal Commission failed to proceed in the manner6required by law and its findings, determinations, or decision are not supported by substantial evidence in7light of the whole record.8931.Petitioners participated in the administrative review process for the approval challengedherein, and submitted detailed written and oral comments setting forth the concerns raised in this action.10All of the issues presented in this action were brought to the attention of respondent and real parties11during the administrative review process by Petitioners, members of the public, or both.1232.Petitioners exhausted administrative remedies under the Coastal Act and the procedures13of the CALIFORNIA COASTAL COMMISSION. Petitioners are aggrieved persons within the meaning14of Public Resources Code section 30801.151617181920212233.Petitioners have commenced this action within 60 days of the final decision of the CoastalCommission in compliance with Public Resources Code section 30801.34.On the date of filing of this action, Petitioners, through counsel, requested the CoastalCommission prepare a true and correct copy of the record of proceedings for the challenged projectapproval.35.Petitioners are entitled to attorneys’ fees pursuant to Code of Civil Procedure section1021.5 in that:a.The successful disposition of this lawsuit will result in the enforcement ofimportant rights affecting the public interest and will confer significant benefits23upon the public or a large class of persons. Petitioners seek to enforce provisions24of important state environmental laws for the benefit of the public;25b.The necessity and financial burden of private enforcement are such as to26make the award appropriate; and27c.Such fees will not be paid out of any recovery.288PETITION FOR W RIT OF M ANDATE

1VI.FIRST CAUSE OF ACTION(PETITION FOR WRIT OF MANDAMUS - COASTAL ACT VIOLATIONS)2345678910111236.Petitioners incorporate all previous paragraphs as if fully set forth herein.37.In approving Application No. E-06-013, COMMISSION committed an arbitrary andcapricious abuse of discretion by violating various sections of the Coastal Act.38.The facility’s use of Agua Hedionda Lagoon, as approved, does not conform to section30233(c) of the Coastal Act, which permits limited alterations of wetlands, including Agua HediondaLagoon. The continuous dredging required by the facility would significantly disrupt marine and wildlifehabitat and water circulation, and would therefore not comply with Coastal Act section 30233(b). Thefacility does not include feasible mitigation measures to minimize adverse effects of dredging inviolation of Coastal Act section 30233(a).39.Construction and operation of the facility, with expected adverse marine impacts, as13approved, will not maintain, enhance, or restore marine resources as required by Coastal Act section1430230. The impingement and entrainment impacts of the facility’s seawater intake will adversely affect15the marine life of Agua Hedionda Lagoon. The entrainment, discharge, and sedimentation problems16caused by the facility, as approved, will not sustain the biological productivity of the lagoon and will not17maintain healthy populations of all species of marine organisms.1840.The facility, as approved, will not maintain biological productivity and minimize adverse19effects of entrainment, violating Coastal Act Section 30231. The adverse impacts caused by the project20are avoidable through the use of less environmentally damaging alternatives. The facility’s discharge21into the ocean, as approved, is also damaging to the biological productivity of Agua Hedionda Lagoon22and is unmitigated.2341.2425The facility, as approved, does not minimize energy consumption as required by CoastalAct section 30253(4).42.Respondent COMMISSION violated Coastal Act section 30412, and therefore California26Water Code section section 13142.5. COMMISSION did not require that the facility utilize the best27available site, design, technology, and mitigation measures feasible to minimize the intake and mortality28of all forms of marine life, as required by Pub. Res. Code Section 13142.5(b).9PETITION FOR W RIT OF M ANDATE

143.COMMISSION committed an arbitrary and capricious abuse of discretion by approving2the CDP without requiring best technology available in the facility’s design intake. The facility does not3use best technology available.444.COMMISSION further violated Section 13142.5(a) of the California Water Code which5requires highest priority be given to improving or eliminating discharges that adversely affect wetlands6and estuaries.78945.COMMISSION committed an arbitrary and capricious abuse of discretion by notrequiring the best mitigation measures feasible prior to approval of the CDP.46.COMMISSION committed an arbitrary and capricious abuse of discretion by violating10Coastal Act section 30601.5. POSEIDON, as of the date of approval, had not obtained a lease from the11State Lands Commission. POSEIDON is not the owner of a fee interest in the property on which the12facility will be located. POSEIDON failed to prove its ability to conform to the Coastal Act requirements13under section 30601.5. COMMISSION violated the Coastal Act in not requiring that POSEIDON14demonstrate its authority to comply with all conditions of approval prior to issuance of a CDP.151617181920212223242547.COMMISSION committed an arbitrary and capricious abuse of discretion by violatingCoastal Act section 30260. The facility does not meet any of the three criteria of Coastal Act section30260. Alternative locations for the facility are not infeasible; denying approval of the facility would notadversely affect the public welfare; and the facility’s adverse environmental effects are not mitigated tothe maximum extent feasible. Therefore, the facility does not qualify under Section 30260 for approval.48.COMMISSION committed an arbitrary and capricious abuse of discretion by issuing aCDP that will allow the taking or possession of Garibaldi by POSEIDON. COMMISSION Staff and thecertified EIR documented the presence of Garibaldi in Agua Hedionda Lagoon. The certified EIRconsidered the entrainment of Garibaldi a de minimus impact. However, this is contrary to CaliforniaCode of Regulations, Title 14, section 28.05, which states that Garibaldi may not be taken or possessed.Therefore, COMMISSION violated Coastal Act section 30230 and California Code of Regulations andcommitted an arbitrary abuse of discretion.2649.The COMMISSION’s approval of the CDP constitutes an abuse of discretion in that27COMMISSION failed to proceed in a manner required by law, failed to adopt findings that adequately2810PETITION FOR W RIT OF M ANDATE

1support its determinations or decisions, and its findings, determinations or decisions are not supported by2substantial evidence in light of the whole record. The COMMISSION’s approval must be vacated,3overturned and declared null and void.4VII.SECOND CAUSE OF ACTION(PETITION FOR WRIT OF MANDAMUS - FAILURE TO MAKE FINDINGS)56750.Petitioners incorporate all previous paragraphs as if fully set forth herein.851.COMMISSION committed an arbitrary and capricious abuse of discretion by approving910111213141516CDP Application No. E-06-013. COMMISSION did not issue findings of approval as required, and thusviolated California Code of Civil Procedure Section 1094.5 and California Code of Regulations Title 14,Section 13096(a).52.COMMISSION failed to proceed in a manner required by law, failed to adopt findings that adequatelysupport its determinations or decisions, and its findings, determinations or decisions are not supported bysubstantial evidence in light of the whole record. The COMMISSION’s approval must be vacated,overturned and declared null and void.VIII.THIRD CAUSE OF ACTION(PETITION FOR WRIT OF MANDAMUS - DECLARATORY RELIEF)171819202122COMMISSION’s approval of the CDP constitutes an abuse of discretion in that the53.Petitioners incorporate all previous paragraphs as if fully set forth herein.54.PETITIONERS request declaratory relief pursuant to California Code of Civil Proceduresection 1060. An actual case or controversy exists relating to the legal rights of the respective parties.55.COMMISSION committed an arbitrary and capricious abuse of discretion by approving23CDP Application No. E-06-013 by failing to assess the environmental impacts of the facility and24delaying mitigation for the facility’s impacts. COMMISSION approved the CDP without assessing25compliance with the Coastal Act, California Code of Regulations Section 13096, and Public Resources26Code Section 21002. In failing to assess and mitigate the facility’s impacts, COMMISSION committed27an arbitrary and capricious abuse of discretion.2856.PETITIONERS herein seek a declaration by the Court that COMMISSION committed an11PETITION FOR W RIT OF M ANDATE

1arbitrary and capricious abuse of discretion and the CDP granted to POSEIDON is invalid and null and2void.357.PETITIONERS seek, request, and are entitled to a judicial declaration that the CDP4granted to POSEIDON by COMMISSION is illegal, in violation of the requirements of law, and5constitutes a prejudicial abuse of discretion.6IV.PRAYER FOR RELIEF78WHEREFORE, Petitioners pray:91.101112For an immediate stay of all construction activities, approvals, permit processing or anyother activities related to, or dependent on the COMMISSION’s approval of the CDP described above;2.For the court to issue a peremptory writ of mandamus directing COMMISSION to vacateand set aside its approval of the CDP, and proceed in a manner required by law;133.For reasonable attorneys fees pursuant to statute;144.For costs incurred herein, and;155.For any other relief that the court deems necessary and proper.16171819202122DATED: January 14, 2008COAST LAW GROUP LLPMarco A. GonzalezGabriel G. SolmerAttorneys for Petitioners,SURFRIDER FOUNDATION and PLANNINGAND CONSERVATION LEAGUE23242526272812PETITION FOR W RIT OF M ANDATE

1VERIFICATION2345678910I, JOE GEEVER, declare:I am the Southern California Coordinator of Surfrider Foundation, a California public benefitcorporation organized and existing under the laws of California. Surfrider Foundation is the petitioner inthe above-entitled action, and I have been authorized to make this verification on its behalf.I have read the foregoing Petition for Writ of Mandamus and know the contents thereof. Thesame is true of my own knowledge except as to those matters which are alleged on information andbelief, and as to those matters I believe them to be true.I declare under penalty of perjury, under the laws of the State of California, that the foregoing is11true and correct and that this verification was signed on the 14th day of January, 2008 in El Segundo,12California.13141516Joe Geever17181920212223242526272813PETITION FOR W RIT OF M ANDATE

WATER DISTRICT, a municipal water district; RINCON DEL DIABLO MUNICIPAL WATER DISTRICT, a municipal water district; SWEETWATER AUTHORITY, a municipal water district; RAINBOW MUNICIPAL WATER DISTRICT, a municipal water district; VALLECITOS WATER DISTRICT, a municipal water district; SANTA FE IRRIGATION DISTRICT

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