Voices of the Wetlands v. State Water Resources Control Board, 257 P.3d 81

Voices of the Wetlands challenged the Regional Water Board’s 2000 NPDES permit renewal for the Moss Landing Powerplant (MLPP) and its cooling intake design modifications, asserting noncompliance with CWA 316(b) BTA requirements.
Energy Commission certification for the MLPP expansion coincided with the NPDES permit process; the two proceedings were coordinated but each agency maintained independent regulatory roles.
The Regional Water Board found that alternative cooling technologies would be wholly disproportionate to environmental benefits and approved a mitigation package funded via a $7 million habitat restoration program.
The trial court remanded for a focused reexamination of BTA on remand, allowed new evidence, and ultimately denied mandamus relief; the Court of Appeal affirmed.
The Supreme Court resolved jurisdictional conflicts, holding that mandamus review of the NPDES permit is within the superior court’s Porter-Cologne powers, not exclusively bound by the Warren-Alquist Act’s Energy Commission review, and approved the interlocutory remand under §1094.5 while upholding the board’s BTA analysis in light of Entergy Corp. and Riverkeeper II.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether superior court had jurisdiction to review the NPDES permit alongside Energy Commission certification.	Plaintiff contends Warren-Alquist Act exclusive review denied mandamus in superior court.	Defendants/Amici argue Energy Commission decision governs, precluding mandamus review of NPDES permit.	Superior court had jurisdiction.
Whether the interlocutory remand was allowable under §1094.5(e)-(f).	Remand before final judgment improperly withholds mandamus relief.	Remand is permissible to cure evidentiary gaps in the agency record.	Remand proper; allowed new evidence and reaffirmed findings.
Whether the Regional Water Board’s BTA finding based on cost-benefit wholly disproportionate analysis complied with CWA 316(b).	Cost-benefit analysis for BTA not permitted; compensatory mitigation invalid.	Phase II guidance and Entergy permit cost-benefit considerations; rigorous justification allowed.	The board’s wholly disproportionate standard, justified under Entergy, was proper.
Whether compensatory restoration measures (e.g., $7 million habitat program) could satisfy BTA.	RESTORATION cannot substitute for BTA.	Restoration can accompany BTA where appropriate.	Riverkeeper II preclusion not controlling; evidence supported BTA here.

Riverkeeper, Inc. v. U.S. E.P.A., 475 F.3d 83 (2d Cir. 2007) (clarified cost-benefit/compensatory relief issues under CWA 316(b))
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (U.S. 2009) (upheld EPA cost-benefit approach under Phase II regulations; standard context for 316(b))
Riverkeeper I, 358 F.3d 174 (2d Cir. 2004) (early Riverkeeper ruling on BTA analysis constraints)
Ashford v. Culver City Unified School Dist., 130 Cal.App.4th 344 (Cal. App. 2d Dist. 2005) (limitations of remand and extra-record evidence in mandamus)
No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68 (Cal. 1974) (premier authority on agency remand and mandamus scope)
Sierra Club v. Contra Costa County, 10 Cal.App.4th 1212 (Cal. App. 2d Dist. 1992) (concerns about prejudicial remand and due process in CEQA context)
Resource Defense Fund v. Local Agency Formation Com., 191 Cal.App.3d 886 (Cal. App. 3d Dist. 1987) (remand/remedial procedures in administrative mandamus)
Elizabeth D. v. Zolin, 21 Cal.App.4th 347 (Cal. App. 4th Dist. 1993) (evidentiary considerations in administrative proceedings)