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Voices of the Wetlands v. State Water Resources Control Board

ELR Citation: 41 ELR 20268
Nos. No. S160211, (Cal., 08/15/2011)

California's highest court upheld a regional water board's issuance of a NPDES permit authorizing a power plant to draw cooling water from an adjacent harbor and slough. An environmental group filed suit, claiming that the permit did not satisfy the "best technology available" requirement of CWA §316(b). They argued that the board erred by basing its best technology available determination on a finding that the costs of alternative cooling technologies for the plant were "wholly disproportionate" to the anticipated environmental benefits. But in Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 39 ELR 20067 (2009), the U.S. Supreme Court held that EPA may rely on cost-benefit analysis in setting national performance standards for cooling water intake structures and in providing for cost-benefit variances from those standards. Accordingly, recent Supreme Court authority confirms that, when applying federal CWA standards for the issuance of the permit, the board properly used cost-benefit analysis, and in particular a "wholly disproportionate" cost-benefit standard, to conclude 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.