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Riverkeeper, Inc. v. EPA

ELR Citation: 34 ELR 20017
Nos. Nos. 02-4005 et al., (2d Cir., 02/03/2004)

The Second Circuit upholds all but one aspect of a U.S. Environmental Protection Agency (EPA) regulation designed to protect fish and other wildlife from harm by structures that withdraw cooling water from the nation's water bodies. For the most part, the regulation is based on a reasonable interpretation of the Clean Water Act (CWA) and is sufficiently supported by a factual record. Insofar as the regulation allows compliance through restoration measures, however, the regulation contradicts Congress' clearly expressed intent. A new facility may comply with the rule in one of two ways. Under track I, a facility is bound by certain capacity and velocity requirements. Under track II, a facility may take any steps or "restoration measures" provided it can show "that the technologies employed will reduce the level of adverse environmental impact . . . to a comparable level to that which" would be achieved applying track I's capacity and velocity requirements. CWA §316(b) instructs EPA to "minimiz[e] adverse environmental impact" by regulating the "location, design, construction, and capacity of cooling water intake structures." By allowing compliance through restoration measures that are unrelated to the "location, design, construction, and capacity of cooling water intake structures" that EPA is charged with regulating, track II is plainly inconsistent with the CWA. Reclaiming abandoned mines to reduce acid mine drainage into the water body, removing barriers to fish migration, and creating buffers to reduce destructive runoff from agricultural lands, however beneficial to the environment they may be, have nothing to do with the location, design, construction, or capacity of cooling water intake structures because they are unrelated to the structures themselves. EPA exceeded its authority by allowing compliance with §316(b) through restoration methods, and the court remands that aspect of the rule. All other aspects of the rule, however, including other challenges to the track II system, are upheld.

Counsel for Petitioners
Carole Hendrick
Riverkeeper Delaware Network
1298 General Washington Blvd., Washington Crossing PA 18977
(215) 369-1188

Counsel for Respondent
Cynthia J. Morris
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000