Cooling Water Intake Structure Coal. v. U.S. Envtl. Prot. Agency
| Decision Date | 23 July 2018 |
| Docket Number | 14-4670(CON),14-4667(CON),August Term, 2017,14-4664(CON),14-4659(CON),14-4657(CON),Docket Nos. 14-4645(L) |
| Citation | 898 F.3d 173 |
| Parties | COOLING WATER INTAKE STRUCTURE COALITION, Petitioner, American Petroleum Institute, Utility Water Act Group, Entergy Corporation, American Littoral Society, Environment America, Environment Massachusetts, Riverkeeper, Inc., Natural Resources Defense Council, Incorporated, Delaware Riverkeeper Network, Raritan Baykeeper, Inc., dba NY/NJ Baykeeper, Hackensack Riverkeeper, Casco Baykeeper, Save The Bay–Narragansett Bay, Scenic Hudson, Inc., Sierra Club, Waterkeeper Alliance, Inc., Soundkeeper, Inc., Surfrider Foundation, Intervenors-Petitioners, Center For Biological Diversity, Louisiana Environmental Action Network, California Coastkeeper Alliance, Humboldt Baykeeper, Suncoast Waterkeeper, Inc., Puget Soundkeeper Alliance, Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Andrew R. Wheeler, in his official capacity as Acting Administrator of the United States Environmental Protection Agency, National Marine Fisheries Service, United States Fish and Wildlife Service, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
In these consolidated cases, several environmental conservation groups and industry associations petition for review of a final rule promulgated four years ago, in August 2014, by the United States Environmental Protection Agency ("EPA") pursuant to section 316(b) of the Clean Water Act ("CWA"), 33 U.S.C. § 1326(b), establishing requirements for cooling water intake structures ("CWISs") at existing regulated facilities, see National Pollutant Discharge Elimination System — Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48,300 (Aug. 15, 2014) (codified at 40 C.F.R. pts. 122, 125) ("Final Rule" or "Rule").1 The Petitioners also seek review of a May 19, 2014 biological opinion jointly issued by the United States Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS," and, together with the FWS, the "Services") at the close of formal Endangered Species Act ("ESA") consultation on the Final Rule. The Government continues to defend the Rule today. Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA gave adequate notice of its rulemaking, we DENY the petitions for review.
To start, we describe CWISs; their general impact on the environment; and the statutes, regulations, and rules relevant to these petitions. We then provide an overview of the relevant regulatory and procedural history and a summary of the arguments advanced in the various petitions before us.
To dissipate waste heat, power plants and manufacturing facilities use CWISs to extract large volumes of water — nearly 75 trillion gallons annually — from nearby water sources. The force of inflowing water can trap, or "impinge," larger aquatic organisms against the structures and draw, or "entrain," smaller aquatic organisms into a facility's cooling system. Impingement and entrainment kill hundreds of billions of aquatic organisms from waters of the United States each year.
The harm to aquatic organisms caused by a CWIS most directly relates to the amount of water the structure withdraws, which in turn depends on the type of cooling system the facility uses. "Once-through" cooling systems draw cold water from a waterbody and return heated water to the waterbody in a continuous flow. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 182 n.5 (2d Cir. 2004) ("Riverkeeper I"). "Closed-cycle" cooling systems generally recirculate the same cooling water within a CWIS by using towers or reservoirs to dissipate heat from the water. Id.; see also 79 Fed. Reg. at 48,333. Closed-cycle cooling withdraws approximately 95 percent less water than once-through cooling.
The express purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Sections 301 and 306 of the CWA broadly authorize the EPA to establish pollution discharge standards. Id. §§ 1311, 1316. In 1972 Congress amended the CWA to specifically address the operation of CWISs. See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816; see also Riverkeeper I, 358 F.3d at 184 (). In section 316(b), it directed the EPA to establish standards governing the operation of CWISs:
Any standard established pursuant to [CWA section 301] or [CWA section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.
33 U.S.C. § 1326(b). Section 316(b) lists no specific factors that the EPA should consider in establishing the applicable "best technology available" ("BTA") standard. We have held that "interpretation of section 316(b) is informed by the two provisions it cross-references," Riverkeeper, Inc. v. EPA, 475 F.3d 83, 91 (2d Cir. 2007) ("Riverkeeper II"), rev'd on other grounds, Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009), but that the EPA need not comply with "every statutory directive contained" in those two provisions when acting pursuant to section 316(b), id. (quoting Riverkeeper I, 358 F.3d at 187). Moreover, the EPA may consider "the benefits derived from reductions [in adverse environmental impact] and the costs of achieving them" when establishing the BTA. Entergy, 556 U.S. at 219, 129 S.Ct. 1498.
The standards promulgated under CWA sections 301, 306, and 316(b) are implemented by permits issued through the National Pollutant Discharge Elimination System ("NPDES"). See 33 U.S.C. § 1342; 40 C.F.R. §§ 122.44(b)(3), 125.90(a). "An NPDES permit serves to transform generally applicable . . . standards . . . into the obligations . . . of the individual discharger. . . ." EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). NPDES permits are issued by the EPA or, if the EPA has approved a State's permitting program, by the Director of the NPDES program for the State.2 See 33 U.S.C. § 1342. Under the authorized State programs, Directors must submit draft permits to the EPA for review. Id. § 1342(d)(1)-(2). If a Director fails to amend the permit in response to any EPA objections, the EPA may federalize the permit (i.e., reclaim permitting authority for that permit). Id. § 1342(d)(4). And if a State fails to administer the NPDES program in accordance with standards promulgated pursuant to the CWA, the EPA may withdraw approval of the State program. Id. § 1342(c).
In enacting the ESA, Congress wanted to ensure "that all Federal departments and agencies . . . seek to conserve endangered species and threatened species." 16 U.S.C. § 1531(c)(1). To "reverse the trend toward species extinction," Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the ESA provides for the listing of species as threatened or endangered and the designation of their critical habitats, 16 U.S.C. § 1533. Once a species is listed, certain statutory protections apply. For example, section 9 of the ESA prohibits the "take"3 of endangered species and those threatened species to which the Services have extended protection, 16 U.S.C. § 1538(a)(1)(B), except that take "incidental" to an otherwise lawful activity may be exempted pursuant to the procedures set forth in ESA sections 7 or 10, id. § 1539(a)(1)(B). Section 7 of the ESA directs federal agencies, in consultation with one or both of the Services, to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species," or to adversely modify critical habitats designated for such species.4 Id. § 1536(a)(2). A federal agency must consult with the Services on a proposed action whenever there is "reason to believe that an endangered species or a threatened species may be present in the area affected by [the proposed action] and that implementation of such action will likely affect such species." Id. § 1536(a)(3); see 50 C.F.R. § 402.14(a) ().
Consultation with the Services may be informal or formal. Informal consultation is an optional process to determine whether formal consultation is necessary. 50 C.F.R. § 402.13(a). As part of informal consultation, the acting agency may prepare a "biological evaluation" that analyzes the potential effects of a proposed action on listed species and their critical habitat. See Memorandum of Agreement Between the Environmental Protection Agency, Fish and Wildlife Service and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and Endangered Species Act, 66 Fed. Reg. 11,202, 11,210 (Feb. 22, 2001) ("MOA"). If the acting agency determines, with the written concurrence of the consulting Service, that the action "is not likely to adversely affect" listed species or critical habitat, the consultation process ends. 50 C.F.R. § 402.13(a); see id. §§ 402.12(k)(1), 402.14(b)(1). But if either the acting agency or the consulting Service determines that the proposed action is "likely to adversely affect" listed species or critical habitat, the agency and the...
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