Somach Simmons & Dunn - New State Water Board Policy Represents a Fundamental Shift in NPDES Permitting of Power Plants

New State Water Board Policy Represents a Fundamental Shift in NPDES Permitting of Power Plants
June 15, 2010

by Cassie N. Aw-yang
cawyang@somachlaw.com

On May 4, 2010, the State Water Resources Control Board (State Water Board) adopted the Statewide Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling (Policy), signaling a fundamental shift in the permitting of power plants under the National Pollutant Discharge Elimination System (NPDES) program.

Background

In order to minimize adverse environmental impacts, the federal Clean Water Act requires that the location, design, construction, and capacity of power plant cooling water intake structures reflect the best available technology.  One potential impact is the impingement and entrainment of marine life, primarily fish and fish larvae, from the use of power plant intake structures of once-through cooling systems.  This Clean Water Act requirement is implemented through conditions adopted in NPDES permits.  Nationwide or statewide standards for such conditions are absent, however.  As such, they have been developed on a case-by-case basis by the Regional Water Quality Control Boards (Regional Water Boards).  The Policy is aimed at correcting the State Water Board’s perceived lack of uniformity in the conditions adopted by the Regional Water Boards.

The Policy’s New Requirements and Implementation Provisions

The Policy applies only to the state’s 19 existing power plants (including two nuclear plants) that may use the state’s coastal and estuarine waters as a source of cooling water in a once-through cooling system.  An overarching goal of the Policy is to reduce the impingement and entrainment of marine life by power plant cooling water intake structures consistent with the Clean Water Act while ensuring reliable energy supplies.  The Policy would take effect upon the Office of Administrative Law’s approval of the adopted Policy and the State Water Board’s filing of a Notice of Decision.

If and when effective, the Policy would aim to reduce the impingement and entrainment of marine life by power plant cooling water intake structures while ensuring reliable energy supplies.  To this end, the Policy encourages (but does not require) the use of recycled water for cooling in lieu of marine or estuarine water or freshwater.  

In addition, the Policy requires existing power plants to reduce their intake flow rate and through-screen intake velocity at each individual facility unit to enumerated standards.  Where the standards are not feasible for a given power plant, the State Water Board may authorize an alternative compliance strategy that involves monitoring of impingement and entrainment impacts.  The Policy’s implementation schedule sets final dates for power plants to come into compliance with the enumerated standards or alternative compliance strategy.  The California Independent System Operator Corporation (CAISO) may suspend the compliance date for a power plant up to 90 days if its continued operation is deemed necessary to maintain the reliability of the electric grid system.  CAISO is a California agency charged with balancing the state’s electrical supply and load and ensuring sufficient capacity to meet electricity demands.  Additional suspensions are subject to a hearing by the State Water Board.

The Policy also requires existing power plants to comply with certain conditions within one year of the Policy’s effective date.  For example, a power plant with an offshore intake must install devices to prevent large organisms from becoming impinged or entrained through the intake structures.  The Policy also requires each power plant to mitigate impingement and entrainment impacts within five years of the Policy’s effective date through the plant’s final compliance date.

The Policy includes implementation provisions, such as the required submittal of implementation plans by the existing power plants (except nuclear-fueled power plants); creation of a Statewide Advisory Committee on Cooling Water Intake Structures (SACCWIS); and reissuance or modification of NPDES permits by the State Water Board.  The State Water Board would convene the SACCWIS, comprised of various state agency and State Water Board representatives, within three months after the Policy’s effective date.  Within six months after the Policy’s effective date, each non-nuclear power plant must submit an implementation plan and schedule to the State Water Board.  The SACCWIS would review these implementation plans and schedules and advise the State Water Board on whether they appropriately account for local area conditions and grid reliability.   

The State Water Board, rather than the Regional Water Boards, would reissue or modify the individual NPDES permits for existing power plants (i.e., the power plants subject to the Policy) to ensure that the permits are consistent with the Policy.  The meeting transcript suggests that the obligation to prepare the initial draft of the NPDES permit would remain with the Regional Water Boards.  The State Water Board would issue the permits only after a hearing is held in the affected region.  

Conclusion and Implications

The Policy would place significant new requirements on existing power plants to minimize the impingement and entrainment of marine life.  Further, the Policy represents a fundamental shift in the traditional roles of the State and Regional Water Boards in the NPDES permitting of the state’s existing power plants.  This shift is likely to result in increased uniformity of permit conditions adopted.  

Other potential outcomes of the Policy are less clear.  The degree of any additional protection of marine life that arises under the Policy may depend on the collaboration of the State and Regional Water Boards to ensure the proper consideration and balance of statewide objectives and local concerns, conditions and constraints.  Also remaining to be seen is the Policy’s potential impacts on the reliability of California’s future electrical power supplies.  Finally, the Policy’s encouragement of recycled water use may reduce the pressure on the state’s increasingly scarce surface water and groundwater resources.  Such a result would be consistent with the State Water Board’s 2009 Recycled Water Policy, which establishes a goal to increase the use of recycled use over 2002 levels by at least one million acre-feet per year (afy) by 2020 and two million afy by 2030.

For further information related to the Policy, please contact Cassie Aw-yang at cawyang@somachlaw.com.