Clean Water Act Section 316(b) – Intake Structures WVDEP Efforts to Implement

WV Department of Environmental Protection has been issuing NPDES permits with provisions that require intake structure best technology available (BTA) recommendations and permit modifications within 12 months of the permit issuance. In some instances the impacted West Virginia facilities have sought an administrative appeal of that provision. The problem at hand is U.S. EPA has a rulemaking that is expected to be proposed at the end of the year that will specifically address technology review benchmarks for intake structures regulated by the Clean Water Act under Section 316(b). If West Virginia requires intake structure modifications and U.S. EPA initiates a program different from West Virginia, facilities will be in the unacceptable and expensive bind of having to change its operations to conform to the federal.  

The regulatory background is that on April 1, 2009, The U.S. Supreme Court ruled 6 to 3 in the case, Riverkeeper, Inc. v. U.S. EPA, 129 S. Ct. 1498, (2009), that EPA can weigh costs against benefits under parts of the CWA overturning a Second Circuit decision stating the opposite. EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals' reliance in part on the agency's use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision, was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used. U. S. EPA, under a new administration, now has to make a decision as to what rule it will be proposing by its announced deadline of September, 2010. 

Efforts are underway to work with DEP and U.S. EPA to create a permitting program that will take into consideration the pending EPA rulemaking. Kathy Beckett is heading that effort on behalf of interested industrial parties and would welcome an opportunity to discuss the efforts with you further. 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.