Voices of Wetlands v. State Water Res. Bd., No. H028021.

CourtCalifornia Court of Appeals
Writing for the CourtMcAdams
Citation69 Cal.Rptr.3d 487,157 Cal.App.4th 1268
PartiesVOICES 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.
Decision Date14 December 2007
Docket NumberNo. H028021.
69 Cal.Rptr.3d 487
157 Cal.App.4th 1268
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.
No. H028021.
Court of Appeal, Sixth District.
December 14, 2007.
As modified on Denial of Rehearing January 10, 2008.

[69 Cal.Rptr.3d 494]

Deborah A. Sivas, Stanford Law School, Environmental Clinic, Stanford, CA, for Plaintiff and Appellant.

Anita E. Ruud, Office of the Attorney General, San Francisco, CA, for Defendants and Appellants.

Sarah Gemma Flanagan, Pillsbury Winthrop Shaw Pittman, LLP, San Francisco, CA, for Real Parties in Interest and Appellants.

McADAMS, J.


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 cross-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 are 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

69 Cal.Rptr.3d 495

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.

Judicial Proceedings: After the State Board declined to review the issuance of the NPDES permit, appellant brought judicial proceedings in the superior court. Respondents demurred, asserting that the court lacked jurisdiction to hear the matter because the controversy arose from certification proceedings conducted by the California State Energy Resources Conservation and Development Commission (Energy Commission) and judicial review of such proceedings may be had only in the California Supreme Court. After overruling respondents' demurrer, the court conducted a hearing, ordered a limited remand to the Regional Board, and later conducted a second hearing, ultimately denying appellant's writ petition. The ensuing judgment culminated in this appeal and cross-appeal.

BACKGROUND

This litigation arose from Duke's 1999 application to modernize its Moss Landing Power Plant. The plant, previously owned by Pacific Gas and Electric, has been in continuous operation since 1950. Duke proposed to replace five old units at the Moss Landing Power Plant with two new 530-megawatt, natural gas fired, combined cycle generating units.

As described in the Energy Commission's October 2000 decision, the Moss Landing Power Plant is located in a biologically sensitive area, just south of "the Elkhorn Slough National Estuarine Research Reserve, which adjoins the much larger ... Monterey Bay National Marine Sanctuary near Moss Landing Harbor about midway between the cities of Santa Cruz and Monterey." The Elkhorn Slough is "a biological gem" and "a biologically rich wetland system, providing habitat for hundreds of resident and migratory bird species." The slough is home to a "great diversity of rare plants and animals" and it also "serves as an important nursery and source of nutrients for Monterey Bay." And "Elkhorn Slough is one of the few relatively large coastal wetlands remaining in California."

As proposed, the two new generating units would use seawater from the harbor for once-through cooling, the same basic technology utilized by the old units. Under section 316(b) of the federal Clean Water Act, cooling water intake structures must reflect the best technology available (BTA) for minimizing adverse environmental impacts. When a plant draws water in, the environmental effects may include "impingement" and "entrainment." As explained in the Energy Commission's October 2000 decision: "Impingement occurs

69 Cal.Rptr.3d 496

from suction when the cooling water intake system holds organisms against the traveling screens. Entrainment is where [smaller] aquatic organisms such as larvae and fish eggs are drawn [through the screens] into the [plant's] cooling system." When the cooling water is later discharged at a higher temperature, the water body receiving it may suffer harmful thermal effects. The Regional Board required Duke to address both impingement and entrainment intake effects, as well as the thermal discharge impact.

SYNOPSIS OF PROCEDURAL HISTORY

Starting in 1999, Duke sought administrative approval to modernize the Moss Landing Power Plant. Duke applied for the necessary certification from the Energy Commission. Duke also applied to the Regional Board for an NPDES permit for the modified facility. The two agencies' evaluation processes were integrated. For one thing, as described in the Energy Commission's decision, "the Commission and the RWQCB [Regional Board] formed a Technical Working Group (TWG) made up of representatives from various regulatory agencies, the scientific community, and Duke Energy. The TWG met regularly on a monthly basis beginning in March 1999, holding approximately 13 meetings. The TWG worked to design biological resource studies and then validate the results of these studies."

In October 2000, the Energy Commission approved Duke's application for certification, subject to various conditions including compliance with the requirements of the NPDES permit. In November 2000, the Regional Board approved Duke's NPDES permit. As relevant here, the Regional Board required Duke to "upgrade the existing intake structure for the new units to minimize the impacts due to impingement of larger fish on the traveling screens...." In addition, "the Board, California Energy Commission, and Duke Energy ... developed an acquisition and aquatic habitat enhancement program" designed to "minimize adverse environmental effects of the intake system on the Elkhorn Slough watershed resources," which would be funded by a $7 million payment from Duke.2 Appellant took an administrative appeal of the permit approval to the State Board, which rejected appellant's petition for administrative review in June 2001.

In July 2001, appellant instituted this judicial action, petitioning the Monterey County Superior Court for a writ of administrative mandamus to set aside the Water Boards' issuance of the NPDES permit. Duke and the Water Boards demurred to the petition, in part on the ground that the superior court lacked subject matter jurisdiction. The Energy Commission filed a memorandum as amicus curiae, supporting respondents' arguments. After the court overruled their demurrers, respondents opposed the petition on the merits.

Following a hearing in September 2002, the court filed its intended decision. In it, the court rejected one of the Regional

69 Cal.Rptr.3d 497

Board's NPDES permit findings, number 48, which concerned BTA for the cooling system. As the court put it: "Finding number 48 is not supported by the weight of the evidence." The court therefore ordered issuance of a writ of mandate "compelling the Regional Board to conduct a thorough and comprehensive analysis of Best Technology Available applicable to the Moss Landing Power Plant." A writ did not issue, however. Instead, in March 2003, the court entered an order of remand to the Regional Board. The court retained jurisdiction while the remand was pending.

In April 2003, appellant filed a writ petition in this court, which challenged the trial court's decision to remand the matter to the Regional Board without first issuing a writ directing the agency to vacate the entire NPDES permit. We summarily denied appellant's writ petition.

In May 2003, the Regional Board conducted a further public hearing. After considering additional evidence, the Regional Board concluded that the challenged finding was supported by the weight of the evidence. Appellant appealed administratively to the State Board, again without success.

The parties returned to the trial court. In June 2004, the court filed an intended decision upholding the Regional Board's action on remand and denying appellant's petition. The following month, the...

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1 practice notes
  • Citizens v. San Mateo County Formation Com., No. A116825.
    • United States
    • California Court of Appeals
    • January 31, 2008
    ...are not relevant to this appeal. 8. For this reason, Voices of the Wetlands v. California State Water Resources Control Bd. (2007) 157 Cal.App.4th 1268, 69 Cal.Rptr.3d 487, cited by Citizens in advance of oral argument, is distinguishable. In that case, the court reiterated the general rule......
1 cases
  • Citizens v. San Mateo County Formation Com., No. A116825.
    • United States
    • California Court of Appeals
    • January 31, 2008
    ...are not relevant to this appeal. 8. For this reason, Voices of the Wetlands v. California State Water Resources Control Bd. (2007) 157 Cal.App.4th 1268, 69 Cal.Rptr.3d 487, cited by Citizens in advance of oral argument, is distinguishable. In that case, the court reiterated the general rule......

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