Riverkeeper, Inc. v. U.S. EPA

Jan 25: In the U.S. Court of Appeals, Second Circuit, Case No.04-6692. Petitioners challenge a final rule promulgated by U.S. EPA pursuant to section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), that is intended to protect aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. In summary, the Appeals Court said, "While we conclude that certain aspects of the rule are based on a reasonable interpretation of the Clean Water Act and supported by substantial evidence in the administrative record, several aspects of the rule are not consistent with the statute, are not supported by sufficient evidence, or were not properly subject to notice and comment. We therefore grant in part and deny in part the petitions for review and dismiss in part one aspect of the petitions for lack of jurisdiction because there is no final agency action to review."

In its opinion, the Appeals Court says that it presumes familiarity with its previous decision in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir. 2004). It explains, these consolidated petitions for review concern a final rule promulgated by the EPA regarding the water that large, existing power plants withdraw from rivers, lakes, and other waterways of the United States to cool their facilities. See 40 C.F.R. § 125.91(a). This cooling process requires power plants to extract billions of gallons of water per day from the nation’s waters, thereby impinging and entraining a huge number of aquatic organisms. Indeed, a single power plant can kill or injure billions of aquatic organisms in a single year.

In its final conclusion to the 80-page decision, the Appeals Court said, "For the foregoing reasons, the state and environmental petitioners’ petitions are granted in part and denied in part, and the industry petitioners’ petitions granted in part, denied in part, and dismissed in part for lack of jurisdiction. We remand to the EPA the provision establishing BTA [best technology available] so that it may provide either a reasoned explanation of its decision or a new determination of BTA based on permissible considerations. We further remand the site-specific cost-cost variance and the TIOP provision because the cost-cost variance and subpart (d)(2) of the TIOP provision provided inadequate notice and both depend on the BTA determination, which we remand today.

"We remand as based on impermissible constructions of the statute those provisions that (1) set performance standards as ranges without requiring facilities to achieve the greatest reduction of adverse impacts they can; (2) allow compliance through restoration measures; and (3) authorize a site-specific cost-benefit variance as impermissible under the statute. We further remand for notice and comment the independent suppliers provision. We also direct the EPA on remand to adhere to the definition of 'new facility' set forth in the Phase I Rule or to amend that definition by rulemaking subject to notice and comment. Finally, we dismiss for lack of jurisdiction so much of the petitions as challenges the purported definition of “Great Lakes” and deny as moot the motions to strike certain material from the record and to supplement the record with other material."

Access the complete opinion (click here). Access EPA's Cooling Water Intake Structure website for additional information (click here). [*Water, *Wildlife]