The California Supreme Court has upheld the State Water Resources Control Board’s issuance of a permit under federal Clean Water Act (CW A) best available technology standards. In Voice of the Wetlands v. State Water Resources Control Board, No. S160211 (Cal. 8/15/11), the California Supreme Court was faced with issues involving the proper technological and environmental standards to apply to the Moss Landing power plant.  

An environmental organization brought an administrative mandamus action against the state water board, alleging that the Central Coastal Regional Water Quality Control Board (regional water board) failed to comply with the CW A in issuing a permit that allowed the plant to draw cooling water from an adjacent harbor and slough. The supreme court agreed with the lower courts, finding that (i) the superior court had jurisdiction over the mandamus petition, (ii) the superior court properly ordered an interlocutory remand, pending a final judgment, for the regional water board to undertake a more comprehensive analysis, and (iii) the additional evidence and analysis on remand supported the regional water board’s decision to uphold its permit.

The court then confirmed that under Entergy Corp. v. Riverkeeper, 556 U.S. 208 (2009), the regional water board had properly applied the CW A’s § 316(b) requirement that “the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 33 U.S.C. § 1326(b). According to the court, the regional water board had properly used cost-benefit analysis, and in particular, a “wholly disproportionate” cost-benefit standard, when it concluded that the power plant’s existing cooling water intake design, as upgraded to accommodate the plant expansion, reflected “the best technology available for minimizing adverse environmental impact.” The court held that the regional water board’s “wholly disproportionate” standard was actually more stringent than CW A requirements and thus complied with both federal and state law.