For Immediate Release - April 13, 2011

SJC Rules in Favor of MassDEP's Authority to Protect State Waters

Court Rules that MassDEP Can Limit Cooling Water Withdrawals at Power Plants Such as Entergy's Pilgrim Nuclear Power Station on Cape Cod Bay

BOSTON - The Supreme Judicial Court ruled that the state's Clean Waters Act authorizes the Massachusetts Department of Environmental Protection (MassDEP) to regulate power plant water withdrawals to ensure that water quality, including aquatic life, is protected. The SJC issued its decision in Entergy Nuclear Generation Company v. MassDEP, reversing an earlier Superior Court ruling that found that the state statute did not authorize MassDEP to impose restrictions on the power plant's cooling water intake structures, or CWIS, to address the harm to fish, shellfish, and other aquatic organisms that can result from a power plants' cooling operations.

Power plants, such as Entergy's Pilgrim Station on Cape Cod Bay in Plymouth, withdraw billions of gallons of water from the nation's waterways each day to cool their facilities. The flow of water into these plants traps large aquatic organisms against grills or screens, which cover the intake structures, and draws small aquatic organisms into the cooling mechanisms. The resulting impingement and entrainment from these operations kill or injure billions of aquatic organisms every year and can severely compromise the quality of the water body from which the water is withdrawn.

"We are pleased that the SJC recognized the important role that MassDEP plays in protecting our water resources at these power plants," said Attorney General Martha Coakley. "Congress adopted the current federal permitting scheme to guarantee that states would play an important role in protecting their own waters, and this decision recognizes that the Massachusetts Legislature wisely gave MassDEP the ability to carry out that mandate."

"The SJC opinion is great news for the Massachusetts environment," said MassDEP Commissioner Kenneth Kimmell. "It will allow us to protect the aquatic resources during water intake and we will not be dependent on the federal government to achieve that protection. The court also makes it clear that MassDEP has the authority to protect these resources from emerging environmental threats even if that threat is not specifically outlined in the law."

There is a sophisticated state and federal regulatory framework, known as the National Pollutant Discharge Elimination System, or NPDES, that is part of a national strategy for addressing water pollution. Because of the potential for severe environmental damage resulting from facilities' cooling water operations, federal law requires that CWISs employ the "best technology available for minimizing adverse environmental impact."

The NPDES program is generally cooperatively administered throughout the country by the states and the federal government. While the United States Environmental Protection Agency has delegated to a number of states the authority to administer the NPDES program within their boundaries, MassDEP maintains separate permitting authority under Massachusetts state law. When issuing permits to power plants and other industrial facilities in the state, MassDEP works in tandem with USEPA to issue joint permits to protect the quality of the Commonwealth's waters.

In the lawsuit that resulted in Monday's SJC decision, Entergy, which owns and operates the Pilgrim Station nuclear plant, challenged MassDEP's recently enacted amendments to the state water quality standards, in which the agency asserts its authority to place restrictions on CWIS to protect the designated uses of state waters. Entergy asserted in the case that the state Clean Waters Act only empowers the agency to regulate discharges, and because the intake structures take water in and do not discharge it, MassDEP cannot regulate CWIS.

In defending the regulations, the Attorney General's Office argued that regulating CWISs falls squarely within MassDEP's authority under the state Clean Waters Act to protect the quality and value of the Commonwealth's water resources. The state said that the restrictions should be upheld because the state act unambiguously gives MassDEP the necessary authority to act, and because CWISs are an integral component of the power plant's operations that directly affect the quality and value of the waters from which the cooling water is withdrawn and to which it is discharged.

The SJC decision reverses an earlier decision of the Superior Court invalidating the regulations.

This case addressed the state agency's authority to regulate cooling water intake to protect the quality of state waters under federal and state water pollution control law. The case did not involve issues regarding the safety of the Pilgrim Nuclear Power Station, which are addressed in separate proceedings.

Assistant Attorney General Andrew Goldberg of AG Coakley's Environmental Protection Division is handling the case. Attorney Bob Brown of MassDEP's Office of General Counsel is handling the case for the agency.