Reiterating earlier court decisions stating that "neither the public nor a public service corporation could tolerate as many standards and policies as there were towns, cities, or boroughs through which they operated," the Fourth District Court of Appeal has ruled that the City of Carlsbad may not require San Diego Gas & Electric Co. to remove dredged sand from its beach. San Diego Gas & Electric has dredged the Agua Hedionda Lagoon in Carlsbad ever since the early '50s, when it first constructed the Encina Electrical Generating Plant. The dredging is required to permit sea water to be used for cooling the plant's electrical generating units. The dredging spoils are typically piped westward to an adjacent beach owned by the State Lands Commission and operated by the California Department of Parks & Recreation. The beaches in the Carlsbad area have undergone severe erosion in recent years. Ten years ago, Carlsbad adopted its floodplain management ordinance, which requires a special use permit for any structure in floodplain areas. SDG&E resisted compliance with this ordinance but agreed, under protest, to a five-year special use permit for dredging in 1993. Two years later, the city ordered SDG&E to place the spoils on a different beach about a mile north of the typical location to which SDG&E spoils are pumped. SDG&E did not appeal the conditions of the permit, but began dredging in violation of the permit. City ordered work stopped. In response, SDG&E appealed unsuccessfully to the Carlsbad City Council and then sued. Carlsbad cross-complained and also obtained an advisory opinion from the state Public Utilities Commission staff stating that the city would not be pre-empted from its jurisdiction over where to place the sand. However, SDG&E won a motion for summary judgment in the trial court, which concluded that the ordinance represented a thinly disguised attempt to regulate a public utility in violation of state law. On appeal, the case boiled down to a contest between state public utilities law and state planning law. The state has clearly pre-empted public utilities regulation by local government. But the city argued that the floodplain ordinance represented an area of that is not specifically regulated by the PUC and therefore is not pre-empted. But the Fourth District disagreed. "Here, City's regulation of a special use permit for dredging, placing conditions on the exercise of SDG&E's right to dredge, on its face places a significant physical and economic burden on SDG&E's operation and maintenance of its facilities," the court wrote. "...This form of regulation goes beyond City's police power into a field that is significantly and fully occupied by the state in such a manner as to indicate clearly that a paramount state concern will not tolerate further or additional local action." In addition, the court rejected the city's argument that the trial judge should have specified whether the floodplain ordinance violated the state constitutional provisions covering public utilities facially or as applied. Clearly, the court said, this was an as-applied challenge and the trial judge was not required to deal with a facial challenge. Carlsbad also contended that the city was permitted to impose the floodplain regulations pursuant to the Coastal Act and that regulatory mechanisms that appear to conflict can co-exist so long as they serve different purposes. But the court rejected this argument as well. "Essentially," the court wrote, "the floodplain ordinance adds another layer of regulation to the operation and maintenance of the utility plat," creating an illegal "checkerboard of regulation by local governments". The court also rejected a proposal by many cities that filed as amici curiae to establish standards permitting local regulation if no state or PUC regulation exists. These standards "disregards the rule of implied pre-emption and would promote endless litigation," the court wrote. The Case: San Diego Gas & Electric co. v. City of Carlsbad, No. d027407, 98 Daily Journal D.A.R. 6042 (issued June 9, 1998). The Lawyers: For San Diego Gas & Electric: Jeffrey A. Chine, Luce, Forward, Hamilton & Scripps, (619) 699-2545. For City of Carlsbad: Ronald R. Ball, City Attorney, (619)434-2891.