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Water Blog

  • 25
  • October
  • 2016

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EPA Wants CWA Section 316(b) Rule Left in Place Unchanged

Environmental groups were not entirely satisfied with the U.S. Environmental Protection Agency’s (EPA) Cooling Water Intake Structure Rule promulgated under section 316(b) of the Clean Water Act (CWA) in 2014. As previously discussed, this case has seen a heavy degree of venue shopping, with challenges initially being filed in six circuits, consolidation of those challenges in the Fourth Circuit, only to then to have the case transferred to the Second Circuit upon urging from environmental groups.

Under the CWA, facial challenges to new regulations can be filed in any federal court of appeals. However, when multiple challenges to the same rule are filed in separate courts, the various challenges are consolidated and assigned to one court before briefing begins. The challenge ultimately landed in the Second Circuit based on the position of environmental groups that the Second Circuit is the proper venue because EPA finalized the rule only after the Second Circuit remanded it to the agency for reconsideration in 2007.

With the venue finally settled, last week, the EPA filed its brief with the court asking the Second Circuit to uphold the rule. EPA has asked the Court to reject both industry and environmental petitioners’ attempts to have the agency revise the rule. Environmentalists have taken issue with EPA’s decision to allow facilities to choose from a range of options, based on the performance of modified traveling screens, to address impingement and allow for the consideration of site-specific factors. Environmentalists would have preferred to see EPA establish a closed-cycle system as the best available technology for reducing impingement of aquatic resources. Meanwhile industry challengers have raised concerns about how much authority the rule gives to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”) in providing “technical assistance” to EPA and permit writers.

EPA asserted in its brief that Congress provided the agency with “maximum discretion and flexibility” when it comes to setting standards under section 316(b). This discretion allows for EPA’s consideration of site specific factors. Moreover, EPA’s brief argues that the key question is whether or not the proposed rule would minimize, rather than eliminate, impacts to aquatic resources. With respect to industry challenges, EPA contends that it has not ceded its permitting authority to the Services but has rather integrated them more closely with the permit issuing process to ensure that any discharge permits issued under the rule appropriately address potential environmental impacts to aquatic resources.

This rule has a long and tortured history: EPA has been trying to establish a cooling water intake structure rule since 1976 only to see its efforts repeatedly struck down in the courts. While the latest iteration has its own issues, it at least represents an attempt to provide facilities with some flexibility to address aquatic resource protection concerns. Although the current venue is the one favored by environmental groups, it remains too early to tell how the Second Circuit will judge the rule this time around.

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Author

Mattew T. Dobbins

Matthew Dobbins Senior Associate