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In Surfrider Foundation v. California Regional Water Quality Control Board (Nov. 30, 2012) 2012 Cal. App. LEXIS 1223, the Fourth District Court of Appeal upheld the trial court’s denial of a petition for writ of mandamus challenging the California Regional Water Quality Control Board’s (Board) issuance of a National Pollutant Discharge Elimination System (NPDES) permit for a desalination facility proposed in San Diego County.  The petitioners argued the Board failed to comply with the requirements of Water Code section 13142.5, subdivision (b), in issuing the NPDES permit, which provides that “[f]or each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life.”

Applying the substantial evidence standard of review, the court held that the minimization plan prepared for the NPDES permit comprehensively addressed the requirement that “the best available site, design, technology, and mitigation measures feasible” be used.  The court found that substantial evidence demonstrated that co-locating the desalination facility next to the Encina Power Station reduced intake and mortality to marine life and that a new NPDES permit would be required if the power station ceased operations in the future.  The court also concluded that Water Code section 13142.5 does not preclude the Board from requiring compensatory wetland creation as part of the plan to reduce intake and mortality to marine life.

The court also rejected the petitioners’ claims that several measures proposed in the minimization plan were illusory.  First, the court explained that a comment from a Coastal Commission staff member questioning whether the project could achieve the intake screen velocity required by the NPDES permit did not demonstrate the measure was illusory and that such disagreement during the administrative review process is healthy.  Second, the court concluded that the requirement to use variable frequency drives on the seawater intake pumps was not illusory merely because certain data could not be quantified.  The court found that despite the uncertainties, the evidence demonstrated that the drives would reduce intake and mortality of marine life to some degree.

Next, the court found that the project objective to provide at least 50 million gallons per day of desalinated water at or below the cost of imported water supplies was reasonable.  The court concluded that, in rejecting measures that may otherwise further reduce intake or mortality impacts on marine life, the Board could first consider whether such measures were feasible in light of the project objectives.  The court also determined that the Board could rely on the feasibility analysis included in the prior environmental impact report prepared pursuant for the project to the California Environmental Quality Act to complete the feasibility analysis required by Water Code section 13142.5 because the Board had the discretion to find that “feasibility” had the same definition under both statutory schemes.  Finally, the court rejected the petitioners’ argument that the Board was compelled to include a quantitative analysis comparing potential measures that could be adopted to comply with Water Code section 13142.5.  The court explained that the petitioners argument lacked any statutory or regulatory support.

Key Point:

A court will review the Board’s compliance with Water Code section 13142.5, subdivision (b), based on the substantial evidence standard of review.  Based on this standard, dissenting voices from other agencies do not alone render a decision inadequate.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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