Court holds RWQCB issuance of NPDES permit to Poseidon for desalinization plant properly minimizes intake and kill of marine life through a mix of feasible onsite measures and offsite mitigation.

Surfrider Foundation v. California Regional Water Quality Control Board

No. D060382 (2012 DJDAR 16050) (4th Dist., Div. 1) (November 30, 2012)

Surfrider challenged the RWQCB issuance of a NPDES permit to Poseidon to operate a coastal desalinization plant. The State Board affirmed the decision, and the trial court and Court of Appeal also affirmed the decision.

The main focus of Surfrider’s challenge was whether the RWQCB abused its discretion by not following Water Code section13142.5(b), which requires a new coastal power plant or other industrial application using seawater to use the “best available… site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life.” The Court disagreed with Surfrider and held the RWQCB could include mitigation by the creation of off-site restorative wetland measures. The Court held the statute allowed a collective set of measures to comply, including feasible approaches to minimize intake and kill as well as restorative mitigation measures.

Prepared by John Reaves

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