Voices of Wetlands v. St. Water Res. Control 12/14/07 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H028021

Case Date: 03/19/2008

Preview:Filed 12/14/07

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

VOICES OF THE WETLANDS, Plaintiff and Appellant, v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD, et al. Defendants and Appellants. _______________________________________ DUKE ENERGY MOSS LANDING, LLC, et al. Real Parties in Interest and Appellants.

H028021 (Monterey County Super. Ct. No. M54889)

This litigation arose from administrative approvals of a project to modify the Moss Landing Power Plant, which is located in Monterey County. In connection with state energy commission certification proceedings for the project, the regional water board issued a federal water pollution permit. Appellant challenged the issuance of that permit. Following two judicial hearings punctuated by an administrative remand, the trial court dismissed appellant's administrative mandamus petition. This appeal and cross-appeal followed. The complex issues before us include procedural challenges to the trial court's jurisdiction and to its interim remand. The parties also dispute the sufficiency of the evidence supporting issuance of the water permit, both before and after remand, and the proper application of the governing statute. For reasons explained in this opinion, we affirm the trial court's final judgment denying appellant's petition for writ of mandate.

INTRODUCTION The Parties: This action was initiated by Voices of the Wetlands, petitioner below and appellant and respondent on appeal. Appellant is a nonprofit association of individuals dedicated to preserving Elkhorn Slough. Respondents in the trial court were two state agencies (collectively, the Water Boards): the California State Water Resources Control Board (State Board) and the California Regional Water Quality Control Board, Central Coast Region (Regional Board). Real party in interest is Duke Energy Moss Landing, LLC, and Duke Energy North America, LLC (collectively, Duke). At all times relevant to this litigation, Duke owned and operated the Moss Landing Power Plant, which is located at the mouth of Elkhorn Slough. Both Duke and the Water Boards are respondents and cross-appellants on appeal (collectively, respondents). The Challenged Administrative Decision: Appellant challenges a permit issued to Duke by the Regional Board, under the National Pollutant Discharge Elimination System (NPDES). The NPDES permit allows Duke to cool the Moss Landing Power Plant using water taken from Moss Landing Harbor and later discharged back into Monterey Bay. According to appellant, the issuance of the NPDES permit here violates federal law, because the Water Boards did not require Duke to use the best technology available to minimize adverse environmental effects, as required by federal law.1 Citing several specific grounds, appellant attacks the Boards' approval of once-through cooling, claiming that it kills unacceptable numbers of aquatic larvae.

The federal law at issue here is commonly known as the Clean Water Act (CWA), which is codified at 33 U.S.C. sections 1251-1387. In keeping with the general practice in federal courts, we "refer to statutory provisions by their section in the Clean Water Act and provide the parallel citation to the United States Code only on first reference or where necessary to avoid confusion." (Riverkeeper, Inc. v. U.S. E.P.A. (2004) 358 F.3d 174, 181, fn. 2 (Riverkeeper I).) In addition, we refer to Clean Water Act statutory subdivisions in shorthand fashion. We thus refer to the provision that governs here

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