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State Supreme Court Accepts Clean Water Act Case

The state Supreme Court has accepted for review a Clean Water Act case involving a power plant along the Monterey County coast.

The case concerns water discharge permits for the Moss Landing power plant, which Duke energy rebuilt and expanded. In late 2007, the Sixth District Court of Appeal upheld permits issued by the Central Coast Regional Water Quality Control Board over the objection of environmentalists (see CP&DR Legal Digest, March 2008).

Much of the challenge concerns the board's comparison between the expense of implementing "best technology available" versus the environmental benefits of such technology. Environmentalists want Duke to employ a closed system that recirculates water for cooling, but the water board approved Duke's less expensive "once-through" cooling system that involves pumping water from Elkorn Slough through the plant and discharging the heated water into the ocean.

The state high court postponed any action in the case until the U.S. Supreme Court decides whether or not to review a Second U.S. Circuit Court of Appeals ruling that the Environmental Protection Agency may not consider the cost of implementing best technology available. Utilities in three combined cases have asked the federal high court to overturn the Second Circuit. The EPA, which also disagreed with the Second Circuit, has asked the Supreme Court not to accept the cases until the agency completes further administrative proceedings. The cases at the U.S. Supreme Court are Entergy Corp. v. EPA, No. 07-588, PSEG Fossil LLC v. Riverkeeper, Inc., No. 07-589, and Utility Water Act Group v. Riverkeeper, Inc., No. 07-597.

The state Supreme Court case is Voices of the Wetlands v. State Water Resources Control Board, No. H028021.

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