February 1, 2023

Volume XIII, Number 32


February 01, 2023

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January 31, 2023

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January 30, 2023

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Court Upholds CWA Intake Structure Rule

Last week, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected challenges by environmental and industry groups to the Environmental Protection Agency’s (EPA) Clean Water Act (CWA) cooling water intake structure permit rule (Rule) in Cooling Water Intake Structure Coalition (CWISC), et al., v. EPA, et al. The panel’s ruling upholds the Rule and affirms broad deference to the EPA and wildlife agencies on both their factual findings and legal interpretations.

The Rule was promulgated in August 2014 pursuant to section 316(b) of the CWA to establish the requirements for cooling water intake structures (CWISs) at existing regulated facilities that withdraw more than 2 million gallons of water per day, of which 25 percent or more is used for cooling. In particular, the Rule addresses Section 316(b)’s requirement to use the “best technology available” (BTA) for CWISs to mitigate the entrainment and impingement of aquatic organisms.

Given the Rule’s potential impact on aquatic organisms, the EPA’s development of the Rule entailed an Endangered Species Act (ESA) biological opinion (BO) of no likely jeopardy following consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services).

The case entailed a number of claims from both environmental and industry groups. Among the important aspects of the panel’s decision is its upholding of the Rule’s case-by-case entrainment approach and agreement that it was permissible to consider a cost-benefit analysis in determining the BTA. In making that decision, the court rejected the environmental group’s argument that BTA for entrainment and impingement should uniformly be closed-cycle cooling for all facilities nationally. The court also upheld the biological determinations associated with the Rule (e.g,, the Services’ BO), finding (largely based on deference) that the jeopardy determination was not improper, the BO did not unlawfully defer the jeopardy analysis, and that the BO and Rule sufficiently establish required ESA processes supporting the ESA determinations.

The panel’s strong deference to the agencies could make any appeal of the case an interesting target for the Supreme Court, if Justice Anthony Kennedy’s departure leads the Court towards increased skepticism of Chevron deference principles.

© 2023 ArentFox Schiff LLPNational Law Review, Volume VIII, Number 211

About this Author


Sara A. McQuillen is an associate with Schiff Hardin in Washington. She is only admitted to the TX Bar, however is practicing under the supervision of partners in the District of Columbia offices. 


  • University of Notre Dame Law School, J.D., 2017, cum laude
    Journal of Legislation, Executive Notes Editor
    Dean’s List
    Best Brief Award, Legal Reseach and Writing II
  • University of Texas at Austin, B.A., 2014, magna cum laude
20- 724- 6837
Daniel Deeb Civil Litigation Attorney Schiff Hardin

Dan has been practicing environmental law for more than 20 years. His practice includes all facets of environmental law permitting, compliance and litigation, including federal and state cases involving the Clean Water Act, Clean Air Act, RCRA, CERCLA, FIFRA, TSCA, brownfields redevelopment, and state analogs. Before practicing law, Dan worked as a senior chemist for an environmental consulting firm and clerked for the U.S. EPA’s Office of Enforcement and Compliance Assurance. He is a frequent lecturer and has written about environmental legal issues for a variety of publications. His...