STATE OF CALIFORNIA
Conservation and Development Commission
In the Matter of: ) Docket No. 97-AFC-1 ) Application for Certification ) ORDER DENYING for the High Desert Power Project ) RECONSIDERATION ___________________________________)
The Commission adopted its Decision approving the High Desert Power Project ("HDPP") on May 3, 2000, and the Decision was docketed on May 5, 2000. (Commission Decision, Docket No. 97-AFC-1, Commission Publication No. P800-00-003, May 2000 ("Decision").) On June 2, 2000, Mr. Gary Ledford, an intervenor in the High Desert proceedings, timely filed his Petition for Reconsideration of the Decision to Certify High Desert Power Project ("Petition"). The Applicant and the Commission Staff filed responses opposing the Petition. Based on those pleadings, the arguments made at our hearing on June 21, 2000, and the entire record of the proceeding, this Order denies the Petition.
II. PETITIONER'S ASSERTIONS
The Petition is "made on the following grounds" (Petition, p. 1):
" . . . the Decision is contrary to the Warren-Alquist Act requiring the Energy Commission certify [sic] ‘reliable' power plants."
"The . . . Decision does not comply with [two applicable laws:]
"the California Constitution Article X Section 2 requiring scarce water resources be put to their highest and most beneficial use[; and]
"State Water Resources Control Board Resolution 75-58's (SWRCBR) . . . ‘preferred use' policies."
"[T]he . . . Decision that there are no significant adverse environmental effects can not be supported . . . ."
"[T]he Decision . . . to Certify the HDPP should be reconsidered and the certification process stayed pending the Supreme Court decision [on water rights in the Mojave Basin] . . . ."
"[T]he . . . Commission . . . violated provisions of the Public Resources Code and CEQA by failing to respond to the [sic] specific public comments."
"The environmentally-preferred method for cooling [i.e., dry cooling] is ignored in the HDPP Decision."(Petition, pp. 1 - 3 (footnotes omitted).)
Our regulations require that parties seeking reconsideration describe "any error in fact or law" in a power facility decision. (Cal. Code Regs., title 20, § 1720, subd. (c).) Nothing in Mr. Ledford's Petition indicates that the Commission should grant reconsideration. The project Committee and the Commission have previously heard and responded to all of the Petition's assertions; we briefly summarize our resolution of the issues below.
Certification of Reliable Facilities. The Decision notes that applicable law does not establish specific criteria for power plant reliability or procedures for ensuring reliable operation. (Decision, p. 75.) Nevertheless, the uncontradicted evidence establishes that all of the powerplant's equipment will comport with industry standards for reliability.
The Decision also notes that a reliable supply of water is necessary to ensure reliable project operations. (Decision, p. 77.) The cooling water supply is addressed at length in the Decision. (Id., pp. 206 - 231, 243 - 251.) The Decision recognizes that the Applicant has chosen to use wet cooling tower technology. HDPP will use about 4,000 acre-feet per year ("afy") of water for wet cooling, which is much more than Mr. Ledford's preferred alternative, dry cooling. But even using wet cooling, there is little reason to believe that HDPP's water supply would have to be curtailed. The Mojave Water Agency (MWA), which will supply water to the project, has an allotment of 75,800 afy of SWP water, and the agency has never used more than 17,000 afy. (Id., p. 222.) Cooling water is also discussed at page 4 below.
Finally, the Decision states that the Applicant has ". . . knowingly assumed the risk of curtailing project operations should cooling water not be available." (Decision, p. 249.) Before the restructuring of the electricity industry, when the construction and operation of power facilities were underwritten with financial guarantees from utility ratepayers, it was crucial for state government to ensure that ratepayers' investments would not be unduly risky. Now that electricity generation is competitive, investment risks are appropriately borne by power facility developers.
Conformance with Applicable Laws. The Decision discusses this matter at great length. With regard to Mr. Ledford's first assertion concerning applicable laws, there is nothing in the State Constitution that prohibits the use of fresh inland waters for power plant cooling. There is a prohibition against the waste or unreasonable use of water, but nothing in the Constitution or in any other applicable legal requirement states that the use of SWP water for power plant cooling is per se waste or an unreasonable use.
With regard to SWRCB Resolution 75-58, Mr. Ledford is mistaken in believing that the policy is unambiguous and clearly applicable to the HDPP case. Resolution 75-58 has a number of qualifying words and phrases (e.g., "should" rather than "shall"; "[i]t is the Board's position that"), is apparently limited to cases "[w]here the Board has jurisdiction" (which it does not here), and directs specific actions only with regard to applications for water appropriations and waste discharge requirements (neither of which is at issue here). We find nothing in it that expressly prohibits (1) a water agency's decision to let a powerplant use 4,000 afy of its 75,800 afy SWP allocation or (2) any aspect of our Decision.
Environmental Impacts. The Decision discusses the considerable evidence supporting the conclusion that the project will not cause significant adverse environmental impacts in any area, including water supply and resources. (See, e.g., Decision, pp. 228 - 229.) In particular, cumulative and growth-inducing impacts were analyzed, contrary to Mr. Ledford's assertions. (Id., pp. 225 - 226.) While Mr. Ledford may disagree with the Commission's conclusions, any assertion that the Commission "did no ‘evaluation'" (Petition, p. 10) is simply wrong.
Pending Supreme Court Decision. The Decision describes the extensive litigation concerning the Mojave water basin, which includes Mr. Ledford, the MWA, and other parties. (Decision, pp. 211 - 213.) On June 5, 2000, the state Supreme Court heard oral argument. A ruling could issue in as soon as ninety days, or be substantially delayed. It is at best unclear whether the Court's ruling could affect the Commission's HDPP Decision at all, and trying to determine at this time the specific details of how the ruling might affect HDPP would be highly conjectural. There is no justification for delaying the Decision for a matter that is so speculative, both in regard to its timing and its substantive effect. In the unlikely event that the Court's ruling necessitates changes to HDPP's water supply plan as contained in the Decision's Conditions of Certification, they could and should be accomplished through the normal post-certification amendment process.
Responses to Comments. Mr. Ledford participated actively in the HDPP proceeding, especially during the evidentiary hearing phase. The Decision contains many responses – more accurately, elaborate discussions – concerning his concerns to pertinent comments, including specific modifications made to the Conditions of Certification. (e.g., Decision, pp. 203, 208, 220, 223 - 228.) It is clearly incorrect to assert that the Commission failed to respond properly or thoroughly.
Dry Cooling. The Decision discusses the evidence on dry, wet, and hybrid cooling technologies, including technological, economic, and environmental factors. (Decision pp. 243 - 251.) It states that dry and hybrid cooling are technologically feasible; the Decision also states that as a general matter dry and hybrid cooling use less water, consume more power, and cost more money than wet cooling. The Decision correctly states that because all environmental impacts associated with the project, including water-related impacts, will be reduced to below a level of significance, the law does not require the use of an alternative cooling technology. (Id., pp. 249 - 250.)
The Petition fails to demonstrate that there is "any error of fact or law" in the Decision (Section 1720 (c)). Therefore, it is Denied.
Dated: June 21,2000
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION
WILLIAM J. KEESE
ROBERT A. LAURIE
MICHAL C. MOORE
ARTHUR H. ROSENFELD