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Cooling Water Intake Structure Coalition v. United States Environmental Protection Agency

ELR Citation: 48 ELR 20129
Nos. 14-4645, (2d Cir., 07/23/2018)

The Second Circuit denied environmental groups' and industry associations' petitions to review a final rule promulgated by EPA establishing requirements for cooling water intake structures (CWISs) at existing power plants and manufacturing facilities, as well as a biological opinion jointly issued by FWS and NMFS (the Services) at the close of formal ESA consultation on the final rule. The groups argued that the rule's entrainment and impingement requirements violated the CWA. But the court disagreed, concluding that the Agency acted both reasonably and within its authority in establishing best available technology standards to minimize aquatic mortality resulting from both entrainment and impingement. The groups further argued that the Services' biological opinion violated the ESA by failing to use the best scientific and commercial data available and wrongly concluding that the rule was unlikely to harm listed species. The court disagreed, concluding that the biological opinion is consistent with the ESA and its implementing regulations. The associations argued that the Service-driven requirements of the rule are neither authorized nor consistent with the CWA. But the Agency acted within its statutory authority by including provisions in the rule that allow the Services to advise the Agency on site-specific impacts of CWISs. The associations further argued that the biological opinion violates the ESA because the Services should have conferred in the Agency's initial determination that the proposed rule was unlikely to adversely affect listed species. But the agencies acted appropriately in conducting formal consultation. Because the rule and biological opinion were based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and EPA gave adequate notice of its rulemaking, the court denied the groups' and associations' petitions for review.