California Senate Bill SB42 Amended / Bill

 BILL NUMBER: SB 42AMENDED BILL TEXT AMENDED IN SENATE MARCH 18, 2009 INTRODUCED BY Senator Corbett JANUARY 6, 2009 An act to add Division 20.6 (commencing with Section 30970) to the Public Resources Code, relating to coastal resources  , and making an appropriation therefor  . LEGISLATIVE COUNSEL'S DIGEST SB 42, as amended, Corbett. Coastal resources: seawater intake. (1) Under the Warren-Alquist State Energy Resources Conservation and Development Act, the State Energy Resources Conservation and Development Commission (energy commission) has the exclusive authority to certify a site for the construction of a new thermal powerplant or the modification of an existing thermal powerplant and related facilities. The California Coastal Act of 1976 provides for the planning and regulation of development, under a coastal development permit process, within the coastal zone, as defined. The act regulates various types of developments within the coastal zone, including industrial developments and thermal electric generating plants. This bill would prohibit a state agency, as defined, from authorizing, approving, or certifying a new powerplant or industrial facility, as defined, that uses  an open ocean intake   once-   through cooling  , as defined,  a new open ocean intake,  or the expansion of an existing open ocean   seawater  intake  at a powerplant that uses a once-through cooling system unless necessary to connect to an alternative system  . The bill  also  would, on and after January 1, 2015, prohibit a powerplant from using once-through cooling, as defined.  The bill would also prohibit a state agency from authorizing, app   roving, or certifying the use of a new, expanded, or existing open seawater intake for the purpose of desalination, unless certain findings are made during a public hearing. The   bill would require the State Water Resources Control Board (state board) to adopt and implement a schedule to phase out once-through cooling at all powerplants other than those specified. The bill would also require each regional water board to review and issue a powerplant's national pollutant discharge elimination system (NPDES) permit for its once-through cooling system within 6 months of the expiration of that permit.  (2) Under existing law, the  State Water Resources Control Board (state board)   state board  and the 9 California regional water quality control boards regulate water quality in accordance with the Porter-Cologne Water Quality Control Act (act) and the federal Clean Water Act. Under the act, the state board is required to adopt specified state policies with respect to water quality as it relates to the coastal marine environment, including a policy requiring coastal powerplants and other industrial installations using seawater for cooling, heating, or industrial processing to use the best available site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life. Existing law establishes the State Coastal Conservancy in the  Natural  Resources Agency and authorizes the conservancy to acquire, manage, direct the management of, and conserve specified coastal lands and wetlands in the state. Existing law establishes the Coastal Trust Fund  (fund)  in the State Treasury to receive and disburse funds paid to the conservancy in trust. Existing law authorizes the conservancy to expend the moneys in the fund for purposes of the San Francisco Bay Area Conservancy Program and for other specified purposes. This bill would require  , from January 1, 2011, to December 31, 2014,  a powerplant that uses once-through cooling, as defined, to pay a specified fee.  The bill would also require an industrial facility that uses open seawater intake to pay a fee.  The bill would require the state board to collect the fee and to deposit the revenues from the fee in the Marine Life Restoration Account, which the bill would establish in the fund. The bill would require the conservancy to administer the account and  would continuously appropriate the moneys in the account   expend the money in the account only upon appropriation by the Legislature  to the conservancy and the  state  board to reimburse their costs of administering the fee  ,   and  to the conservancy for specified projects and activities that address the impacts of once-through cooling processes  , thereby making an appropriation   , and to the s   tate board to provide grants to powerplants currently using once-through cooling, as specified  . Vote: majority. Appropriation:  yes   no  . Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) Nineteen coastal powerplants located in California use once-through cooling water intake systems. The majority of those powerplants are located on bays and estuaries where there are sensitive fish nurseries and populations of many important species, including species important to the commercial and recreational fishing industries. (b) Coastal powerplants in California collectively withdraw up to 16.3 billion gallons of water per day. (c) The United States Environmental Protection Agency has determined that there are multiple undesirable and unacceptable environmental impacts associated with once-through cooling technology. (d) The Ocean Protection Council and the State Lands Commission have passed resolutions expressing concern about the devastating impacts of the once-through cooling process on California's aquatic ecosystems and calling for  an  expeditious  phaseout   phasing out  of once-through cooling systems. (e) Various studies have documented the harm caused by once-through cooling processes, and it is estimated that once-through cooling systems kill over 79 billion fish and other marine organisms annually in California waters. (f) Once-through cooling systems needlessly kill fish, larvae, plankton, and other marine organisms as they are drawn into once-through cooling water intake structures. Once-through cooling systems also kill larger marine species such as sea lions, seals, and turtles as they become trapped by those structures. (g) In enclosed bays and estuaries, such as Alamitos, Santa Monica, San Diego, and Elkhorn Slough, the environmental harm of once-through cooling systems is often more pronounced due to the cumulative impacts caused by the concentration of several powerplants in biologically critical areas. (h) The environmental devastation caused by once-through cooling systems is counterproductive to the California Ocean Protection Act (Division 25 (commencing with Section 35500) of the Public Resources Code), the Marine Life Protection Act (Chapter 10.5 (commencing with Section 2850) of Division 3 of the Fish and Game Code), and other state efforts to ensure healthy aquatic ecosystems and productive fisheries. (i) Steam boiler plants using once-through cooling systems tend to be less efficient and have higher rates of greenhouse gas emissions than new generation sources. (j) Protection of marine life in California's coastal waters, prompt  phaseout   phasing out  of once-through cooling systems, and restoration of damage caused to California's aquatic environment  is   are  in the best interest of the state. SEC. 2. Division 20.6 (commencing with Section 30970) is added to the Public Resources Code, to read: DIVISION 20.6. SEAWATER INTAKE CHAPTER 1. DEFINITIONS 30970. The following definitions govern the interpretation of this division: (a) "Account" means the Marine Life Restoration Account established pursuant to subdivision (c) of Section 30972.  (b) "Capacity utilization rate" means the ratio between the average annual net generation of power, in megawatthours, and the total net capability of the facility to generate power, in megawatts, multiplied by the number of hours during the year.   (b)   (c)  "Conservancy" means the State Coastal Conservancy established pursuant to Section 31100.  (c)   (d)  "Fund" means the Coastal Trust Fund established pursuant to subdivision (a) of Section 31012.  (d)   (e)  "Industrial facility" includes, but is not limited to, a desalination facility. "Industrial facility" does not include a scientific research facility or a recreational facility  ,   such as an aquarium  .  (e)   (f)  "Once-through cooling" means a system that uses an open  ocean   seawater  intake to pump seawater from an ocean  , estuary,  or bay and then discharges the water after only one cycle of cooling.  (f)   (g)  "Open  ocean   seawater  intake" means a conduit for seawater intake that is above the seafloor. "Open  ocean   seawater  intake" does not include a well, gallery, or any other subseafloor seawater intake.  (g)   (h)  "Powerplant" means an electrical generating facility, including a nuclear thermal powerplant.  (h)   (i)  "Seawater" means saltwater that resides in the ocean  , an estuary,  or a bay within the waters of the state.  (i)   (j)  "State agency" means the state or any agency or department of the state.  (j)   (k)  "State board" means the State Water Resources Control Board established pursuant to Section 175 of the Water Code. CHAPTER 2. OPEN  OCEAN  SEAWATER INTAKE 30971. Notwithstanding any other provision of law, a state agency shall not authorize, approve, or certify any of the following: (a) A new powerplant or a new industrial facility that first commences operation on and after January 1, 2010, if that powerplant or industrial facility would use  an open ocean intake.   (b) A new open ocean intake that first commences operation on and after January 1, 2010.   (c)     The expansion of an existing open ocean intake.   once-through cooling.   (b) The expansion of an existing open seawater intake at a powerplant, unless the expansion is necessary to convert a once-through cooling system to an alternative cooling system.   30971.1. A state agency shall not authorize, approve, or certify the use of a new, expanded, or existing open seawater intake for the purpose of desalination unless it has made, during a public hearing, supported by substantial evidence in the record, the following findings: ____.   30971.5. (a) On and after January 1, 2015, a powerplant shall not use a once-through cooling system that uses an open ocean intake. (b) An open ocean intake, the use of which is prohibited pursuant to subdivision (a), shall not be used for any other purpose, including desalination.   30971.5. (a) On and after January 1, 2015, a powerplant with an average annual capacity utilization rate of 20 percent or less from the year 2006 to the year 2008, inclusive, shall not use a once-through cooling system. (b) The state board shall expeditiously, and no later than March 1, 2010, adopt and implement a schedule to phase out once-through cooling at all powerplants other than those described in subdivision (a). (c) Each regional water board shall review and reissue a powerplant's national pollutant discharge elimination system (NPDES) permit for that powerplant's once-through cooling system within six months of the expiration of that permit, or by July 1, 2010, for those permits expired as of January 1, 2010. The permit shall address only the following: (1) The use of open seawater intake for cooling purposes by a powerplant. (2) The incorporation of the phaseout dates for once-through cooling pursuant to this section. (3) The full implementation of cooling water intake structure requirements in Section 316(b) of the federal Clean Water Act (33 U.S.C. Sec. 1344 et. seq.), as that section read on October 18, 1972, and consistent with the best professional judgment of the regional water boards, until applicable final regulations are adopted and implemented by the United States Environmental Protection Agency.  CHAPTER 3. SEAWATER INTAKE FEE 30972. (a)  From January 1, 2011, to December 31, 2014, inclusive, each   Each  operator of a powerplant  or industrial facility  using a once-through cooling system shall pay to the state board a fee that is based on the amount of seawater, as determined by the state board, that is removed by the powerplant  or industrial facility  for purposes of once-through cooling.  (b) An industrial facility, approved by a state agency after January 1, 2010, using an open seawater intake shall pay to the state board a fee that is based on the amount of seawater, as determined by the state board, that is removed by that facility's open seawater intake.   (b)   (c)  The fee for seawater  taken by an open seawater intake or  used for once-through cooling shall be  fifteen one-hundred-thousandths dollars ($0.000015)   ____ ($____)  per gallon.  (c)   (d)  The state board shall collect the fee in a manner determined by the state board and, after payment of its administrative costs of collection, deposit the revenue from the fee in the Marine Life Restoration Account, which is hereby created in the fund.  (e) The fees required pursuant to this division shall not be considered as a mitigation for the impact associated with once-through cooling or open seawater intake, and shall not diminish an obligation to account for or mitigate the impact pursuant to any other law.  30973. (a) The account shall be administered by the conservancy. (b)  Notwithstanding Section 13340 of the Government Code, the   The  moneys in the account  are continuously appropriated, without regard to fiscal year,   shall be expended, only upon appropriation by the Legislature in the annual Budget Act,  as follows: (1)  To   By  the conservancy and the state board, to reimburse the costs of administration and implementation of this division. (2)  To   By  the conservancy, for direct expenditure and award of grants for projects and activities, as authorized by the Ocean Protection Council, that address the negative impacts of once-through cooling systems on the mortality of all forms of marine life and marine habitat.  (3) By the state board to provide grants to powerplants currently using once-through cooling if the powerplant can certify that it is repowering for more efficient, cleaner generating equipment that does not use once-through cooling.