Riverkeeper, Inc. · Natural Resources Defense Council · Sierra Club		

Waterkeeper Alliance · Earthjustice · Environment America		

Clean Air Task Force · Surfrider Foundation

Super Law Group · National Environmental Law Center

March	13,	2014	

The	Honorable	Regina	A.	McCarthy,	Administrator	

U.S.	Environmental	Protection	Agency		

William	Jefferson	Clinton	Federal	Building		

1200	Pennsylvania	Avenue,	N.W.		

Washington,	DC	20460		

The	Honorable	Sally	Jewell,	Secretary	

U.S.	Department	of	the	Interior	

1849	C	Street,	N.W.	

Washington,	D.C.	20240	

The	Honorable	Penny	Pritzker,	Secretary	

U.S.	Department	of	Commerce	

1401	Constitution	Avenue,	N.W.	

Washington,	D.C.	20230	

Re:	 CWA	§	316(b)	–	Cooling	Water	Intake	Structure	Rule	

Dear	Administrator	McCarthy,	Secretary	Jewell	and	Secretary	Pritzker:	

As	attorneys	representing	some	of	the	largest	national	and	regional	environmental	

organizations	in	the	United	States,	with	millions	of	members	keenly	interested	in	

protection	of	our	nation’s	air,	water	and	other	natural	resources,	we	write	with	respect	to	

the	Clean	Water	Act	§	316(b)	cooling	water	rule	for	existing	facilities,	which	the	

Environmental	Protection	Agency	(EPA)	has	committed	to	issue	by	April	17,	2014.			

In	particular,	we	wish	to	respond	to	certain	requests,	recommendations	and	legal	

assertions	made	in	letters	from	the	Edison	Electric	Institute	and	the	heads	of	several	utility	

and	energy	companies	(collectively,	“EEI”)	in	September	and	December	2013,	the	Utility	

Water	Act	Group	(UWAG)	in	October	2013,	and	Senator	David	Vitter	and	other	Senators	in	

July	2013	and	February	2014.			

As	explained	below,	what	EEI,	UWAG	and	the	Senators	ask	of	EPA,	the	National	

Marine	Fisheries	Service	(NMFS)	and	the	U.S.	Fish	and	Wildlife	Service	(USFWS)	

(collectively,	the	“Services”)	would	plainly	violate	the	Clean	Water	Act	(CWA)	and	the	

Endangered	Species	Act	(ESA).	
EPA,	USFWS	and	NMFS	

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I.

Endangered Species Act Consultation and

ESA‐Related Requirements in 316(b) Rule

Cooling	water	intakes	cause	widespread	and	substantial	harm	to	federally‐listed	

threatened	and	endangered	(T&E)	species.		In	initiating	formal	consultation	under	the	ESA,	

EPA	acknowledged	that	“after	promulgation	and	implementation	of	the	316(b)	rule,	the	

rule	may	allow	as	many	as	215	T&E	species	and	30	habitats	of	T&E	species	to	continue	to	

be	affected.”1		We	wish	to	make	six	points	in	this	regard:	

 First,	in	light	of	the	acknowledged	effects	on	T&E	species,	if	EPA	were	to	issue	

the	final	rule	in	the	absence	of	a	final	Biological	Opinion	from	each	Service,	the	

agency	would	be	in	clear	violation	of	ESA	§	7(a)(2)	and	50	C.F.R.	§	402.14.	

Contrary	to	EEI	and	UWAG’s	assertions,	the	law	is	crystal	clear	that	all	future	fish	

kills	and	thermal	discharges	at	regulated	facilities	are	legally	attributable	to	

EPA’s	upcoming	rule.		There	is	no	such	thing	as	“baseline	impingement	and	

entrainment”	or	“baseline	thermal	discharges”;	to	the	contrary,	the ESA baseline

assumes that the plants and their intake structures have been built, but are

not operating.

2		Consequently,	there	is	no	legal	or	factual	basis	on	which	the

Services	could	“vacate	the	consultation”	as	requested	by	Senator	Vitter,	et al.,	or	

conclude	the	consultation	with	a	“not	likely	to	adversely	affect”	concurrence,	as	

requested	by	EEI	and	UWAG.	

 Second,	EPA	should	make	clear	in	the	316(b)	rule	that	nothing	in	the	Section	7	

consultation	process	can	eliminate	the	duties	of	state	agencies,	federal	agencies	

and	plant	operators	to	comply	with	the	ESA	Section	9	prohibition	against	taking	

listed	species	or	modifying	their	critical	habitat.		EPA	recognizes	that	“any	take	

of	listed	species	without	an	incidental	take	statement	or	ESA	Section	10	take	

permit	is	in	violation	of	ESA	regulations.”3		As	previously	explained,	the	record	

provided	by	EPA	to	the	Services	precludes	issuance	of	an	Incidental	Take	

Statement	(ITS)	that	would	insulate	future	take	or	habitat	modification	from	ESA	

protections.4

																																																								

1	Letter	from	Robert	K.	Wood,	Director,	Engineering	and	Analysis	Division,	EPA	Office	of	Water,	to	Donna	

Wieting,	Director,	Officer	of	Protection	Resources,	NMFS,	and	Gary	Frazer,	Assistant	Director,	Endangered	

Species,	USFWS,	June	18,	2013,	at	2.			

2 See	Comments	of	Riverkeeper,	et al.	regarding	ESA	Biological	Evaluation	for	CWA	Section	316(b)	

Rulemaking,	October	31,	2013,	(“RK	Comments”)	at	9‐17	(citing	Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries

Serv.,	524	F.3d	917,	929	(9th	Cir.	2008)	and	other	authority).		

3	ESA	Biological	Evaluation	for	CWA	Section	316(b)	Rulemaking,	June	18,	2013,	(“BE”)	at	65.	

4	RK	Comments	at	44‐45.	
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 Third,	the	record	is	also	insufficient	to	support	a	“no	jeopardy”	finding,	

particularly	in	light	of	harm	to	a	number	of	salmonid	and	sturgeon	Distinct	

Population	Segments	and	various	species	of	freshwater	mussel.5		Closed‐cycle	

cooling	(CCC)	technology	must	be	the	focus	of	any	Reasonable	and	Prudent	

Alternative	(RPA)	analysis	or	Reasonable	and	Prudent	Measures	(RPM)	analysis	

because	it	reduces	fish	kills	and	thermal	discharges	by	approximately	98	percent	

and	no	other	technology	comes	anywhere	close.6			

 Fourth,	if	the	316(b)	rule	directs	permit	writers	to	make	any	Best	Technology	

Available	(BTA)	determinations	on	a	case‐by‐case	basis,	the	rule	must	require	

that	EPA	and	the	Services	remain	involved	in	permitting,	in	both	delegated	and	

non‐delegated	states,	to	identify	the	appropriate	control	requirements	to	be	

included	in	NPDES	permits	to	protect	listed	species.		Contrary	to	EEI’s	assertion,	

the	ESA	and	CWA	provide	for	those	agencies’	continuing	involvement.		For	

example,	an	ITS	must	establish	clear	triggers	for	subsequent	consultation	if	there	

is	a	risk	of	jeopardizing	the	species.7		Further,	as	the	action	agency,	EPA	must	

report	on	“the	progress	of	the	action	and	its	impact	on	the	species	to	the	

Service[s].”8		Indeed,	EPA	and	the	Services	agreed	in	their	2001	MOA	to	

coordinate	with	State	and	Tribal	permitting	agencies	to	remove	or	reduce	

detrimental	impacts	of	any	NPDES	permit	on	listed	species,	including,	in	

appropriate	cases,	by	EPA	“objecting	to	and	Federalizing	the	permit...”9		

 Fifth,	to	implement	that	process,	the	316(b)	rule	must	require	permittees	to	

undertake	robust	monitoring,	including	the	use	of	environmental	metagenomic	

sampling	to	detect	the	presence	of	listed	species	near	an	intake.		Because	T&E	

species	are,	by	definition,	rare,	they	may	not	be	collected	or	observed	in	limited,	

traditional	sampling	events	despite	being	impinged	and	entrained.	

 Sixth,	the	rule	must	require	the	submittal	of	comprehensive	information	on	the	

potential	for	direct and indirect impacts	to	listed	species,	including	impacts	to	

listed	species’	prey.		EEI’s	opposition	to	collecting	information	regarding	the	

taking	of	prey	or	other	indirect	impacts	to	T&E	species	has	no	statutory	basis.		

Avoiding	“jeopardy”	and	avoiding	“adverse	modification	of	critical	habitat”	are	

separate	and	independent	requirements.10		Further,	the	taking	of	prey	may	

																																																								

5	RK	Comments	at	44‐45.	

6	RK	Comments	at	35‐38,	39‐42.	

7 See Miccosukee Tribe of Indians v. United States,	566	F.3d	1257,	1271‐72	(11th	Cir.	2009)	(citing	50	C.F.R.	§	

402.14(i)(4)).	

8	50	C.F.R.	§	402.14(i)(3).	

9	Memorandum	of	Agreement	Between	the	Environmental	Protection	Agency,	Fish	and	Wildlife	Service	and	

National	Marine	Fisheries	Service	Regarding	Enhanced	Coordination	Under	the	Clean	Water	Act	and	

Endangered	Species	Act,	January	2001,	at	20.	

10 Sierra Club v. U.S. Fish and Wildlife Service,	245	F.3d	434,	441‐43	(5th	Cir.	2001).	
EPA,	USFWS	and	NMFS	

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constitute	either	a	take	of	listed	species	or	adverse	modification	of	critical	

habitat,11	and	both	must	be	avoided.		

II.

Definition of New Units at Existing Facilities

In	promulgating	the	Phase	I	Section	316(b)	rule	in	2001,	EPA	established	Best	

Technology	Available	(BTA)	standards	for	cooling	water	intake	structures	at	new	facilities	

based	on	closed‐cycle	cooling	(CCC),	a	0.5	foot‐per‐second	maximum	intake	velocity,	and	a	

prohibition	against	withdrawals	that	are	disproportionate	to	the	size	of	the	waterbody.12		

Throughout	the	administrative	and	judicial	review	processes,	industry	argued	that	CCC	and	

the	other	standards	should	not	be	considered	BTA	or	that	BTA	for	new	facilities	should	be	

determined	case‐by‐case.		Those	arguments	were	fully	considered	and	rejected,	first	by	

EPA	and	then	by	the	court	when	it	upheld	the	Phase	I	rule	in	2004.13			

	 In	the	context	of	the	current	existing	facility	rulemaking,	a	decade	later,	EPA	is	not

reconsidering	BTA	for	new	facilities	or	comparing	the	merits	of	CCC	with	once‐through	

cooling	–	an	antiquated	technology	rarely	installed	in	plants	built	since	the	1980s.		That	

debate	was	settled	at	the	federal	level	long	ago,	in	the	first	term	of	the	Bush	administration.		

The	only remaining question concerns the retrofitting	of	CCC	on	existing	facilities	and	

whether	those	facilities	can	meet	the	velocity	limits	and	proportional	flow	requirements.		

The	Phase	I	rule	did	not	establish	standards	for	new	units	built	at	existing	facilities.		

Nor	did	EPA	determine	that	such	units	were	to	be	treated	as	existing	facilities.		Rather,	EPA	

deferred	regulation	of	those	units	until	it	had	completed	analysis	of	data	on	existing	

facilities.14		Having	completed	that	analysis,	the	draft	proposed	rule	EPA	sent	to	OMB	

shortly	before	proposal	in	2011	required	that	“[n]ew	units	constructed	at	an	existing	

facility	...	comply	with	provisions	for	impingement	and	entrainment	mortality	based	on	

closed‐cycle	[cooling]	that	are	similar	to	those	required	in	the	Phase	I	new	facility	rule.”15		

That	was	appropriate	because	new	units	–	including	rebuilt,	repowered	and	replaced	units	

–	are	like	new	facilities;	they	do	not	encounter	retrofitting	issues.			

Accordingly,	the	draft	proposed	rule	defined	new	unit	at	an	existing	facility	to	

																																																								

11 See, e.g., 64	Fed.	Reg.	60727,	60730	(Nov.	8,	1999)	(NMFS	adopting	USFWS’s	definition	of	harm,	and	noting	

that	“[r]emoving	...fish	...	or	other	biota	required	by	the	listed	species	for	feeding”	can	constitute	a	take).	

12 See	40	C.F.R.	§	125.84;	see also generally	66	Fed.	Reg.	65256	‐	65345	(Dec.	18,	2001).	

13 Riverkeeper, Inc. v. EPA,	358	F.3d	174,	197	(2d	Cir.	2004)	(“Riverkeeper I”)	(“The	EPA	considered	all	of	the	

factors	that	UWAG	now	raises...”).	

14	66	Fed.	Reg.	at	65286.	

15 See	EPA‐HQ‐OW‐2008‐0667‐1295.2	(redline‐strikeout	version	documenting	changes	made	during	

Executive	Order	12866	review)	(hereinafter,	“Redlined	Version	of	Proposed	Rule”)	at	2.	
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include	“rebuilt,	repowered,	or	replaced	unit[s].”16		EPA	further	defined	“rebuilt”	with	

reference	to	“major	modifications	affecting	operation	of	the	cooling	water	intake	structure	

such	as	replacement	of	the	turbine,	boiler,	or	condensers”	and	defined	“repowering”	to	

mean	rebuilding	and	replacing	major	components	of	a	power	plant	instead	of	building	a	

new	one.”17		After	many	years	of	careful	analysis	by	its	engineers	and	economists,	EPA	

explained	why	installing	CCC	at	rebuilt,	repowered	and	replaced	units	is	unlike	a	retrofit:	

As	 [older]	 units	 are	 retired	 and	 replaced	 based	 on	 individual	 facility	

circumstances,	 facilities	 have	 the	ideal	 opportunity	 to	 design	and	 construct	

the	 new	 units	 without	 many	 of	 the	 additional	 expenses	 associated	 with	

retrofitting	 an	 existing	 unit	 to	 closed‐cycle.	 	 ...	 	 [D]owntime	 ...	 	 may	 be	

avoided	 or	minimized	 [,]	 	...	 condensers	 can	 be	 configured	 for	 closed‐cycle,	

reducing	 energy	 requirements,	 and	 high	 efficiency	 cooling	 towers	 can	 be	

designed	as	part	of	the	unit	replacement,	allowing	for	installation	of	smaller	

cooling	towers.18

In	 summary,	 ...	 repowering,	 replacement,	 and	 additional	 unit	 installation	

decisions	can	be	accomplished	feasibly	and	with	lower	costs	than	retrofitting	

an	entire	existing	facility...		New	units	are	similar	to	new	facilities,	regardless	

of	 whether	 that	 unit	 is	 a	 green	 field	 construction,	 an	 additional	 unit,	 a	

replacement	 unit,	 or	 a	 repowered	 unit.	 	 ...	 	 [N]ew	 units	 [also]	 would	 be	

similar	to	new	facilities	in	terms	of	the	useful	expected	plant	life...19

...	 EPA	 considered	 whether	 such	 requirements	 ...	 would	 serve	 as	 a	

disincentive	to	replace	older	units	and	determined	that	this	would	not	be	the	

case	 given	 closed‐cycle	 cooling’s	 comparable	 cost	 relative	 to	 once	 through	

cooling	and	its	small	cost	as	a	percentage	of	overall	costs	at	the	new	unit.		...		

Furthermore,	the	costs	usually	comprise	less	than	1	percent	of	the	total	costs	

of	a	new	unit.		Recent	experience	indicates	that	the	Phase	I	requirements	are	

not	a	disincentive	for	new	facility	construction...20

Shortly	before	proposal	in	the	Federal	Register,	however,	for	reasons	unknown	and	

wholly	unexplained,	OMB	changed	the	definition	of	new	units	at	existing	facilities	to	

exclude	rebuilt,	repowered	or	replacement	units.21		That	change	should	not	have	been	

made	and,	indeed,	EPA	has	reconsidered	it.		According	to	EEI’s	recent	letters,	EPA’s	current	

approach	more	closely	aligns	with	the	February	2011	draft	proposal	in	that	the	definition	

																																																								

16 Id.	at	423	(proposed	40	C.F.R.	§	125.92(r)).			

17 Id.	at	423	(40	C.F.R.	§§	125.92(r)	and	125.92(t)).			

18 Id.	at	92‐93.	

19 Id.	at	147.	

20 Id.	at	147‐148.	

21	Proposed 40	C.F.R.	§	125.92(r).			
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of	new	unit	at	existing	facility	includes	repowered,	replaced	or	rebuilt	units,	so	long	as	the	

turbine	and	condenser	are	replaced	(and	the	location	of	the	cooling	water	intake	structure	

or	design	intake	flow	is	changed).22		

There	is	no	factual	or	legal	basis	for	EEI’s	request	that	repowered,	replaced	or	

rebuilt	units	be	excluded	from	the	definition	of	new	unit	at	an	existing	facility.		As	noted,	

EPA	has	considered	and	rejected	EEI’s	argument	that	a	CCC	requirement	would	be	a	

disincentive	to	upgrade	or	repower	facilities.		EEI	also	rehashes	its	argument	that	“EPA’s	

authority	under	§	316(b)	extends	only	to	the	cooling water intake structure.”23		But	for	

nearly	four	decades	EPA	has	recognized	that	Section	316(b)	authorizes	it	to	regulate	the	

volume	and	velocity	of	water	withdrawn	through	a	cooling	water	intake	structure	as	a	

means	of	addressing	capacity.24		That	authority	is	no	different	for	new	units	than	for	new	or	

existing	facilities	and	does	not	depend	on	whether	the	intake	structure	or	anything	else	has	

been	modified.		Moreover,	given	that	existing	facilities	can	be	subjected	to	stricter	

requirements	during	permit	renewal	in	the	absence	of	any	change	to	the	facility,25	there	is	

obviously	no	legal	impediment	to	regulating	modified	units	in	the	absence	of	changes	to	the	

intake	or	design	flow.			

For those reasons, EPA should not define new unit based on whether the location

of the intake structure or design intake flow will change.		Using	turbine	and	condenser	

replacement	as	the	sole	touchstone	for	rebuilt,	repowered	and	replaced	units	is	consistent	

with	EPA’s	statutory	authority,	and	properly	recognizes	that	such	units	are,	for	all	intents	

and	purposes,	new	facilities.		

If	the	electric	power	industry	were	given	authority	to	repower	the	nation’s	existing	

fleet	of	antiquated,	destructive	once‐through‐cooled	power	plants	by	installing	new	boilers,	

new	condensers	and	new	turbines	without	also	replacing	their	1950s	cooling	systems,	EPA	

would	create	an	enormous	loophole	that	would	swallow	not	only	the	existing	facility	rule,	

but	also	the	Phase	I	rule	for	new	facilities	as	well.			

	 Notably,	the	last	time	EPA	(or	OMB)	attempted	an	Orwellian	re‐write	of	the	

definitions	of	“new”	and	“existing,”	that	aspect	of	the	Phase	II	rule	was	remanded	by	the	

Second	Circuit,	with	the	court	noting	that	no	deference	is	owed	to	an	agency	interpretation	

that	is	“plainly	erroneous.”26

																																																								

22	EEI	Dec.	20,	2013	letter	at	3.	

23	EEI	Sept.	17,	2013	letter	at	3	(emphasis	in	original).	

24 See	66	Fed.	Reg.		at	65313	(citing	In re Brunswick Steam Electric Plant,	Decision	of	the	General	Counsel	No.	

41	(June	1,	1976)).	

25	Entergy’s	argument	that	Section	316(b)	imposes	only	a	pre‐construction	requirement	and	does	not	allow	

EPA	to	later	revisit	the	design,	location,	capacity	or	construction	of	an	existing	plant’s	cooling	water	intake	

structure	was	rejected	by	the	Second	Circuit	in	Riverkeeper II.		See Riverkeeper, Inc. v. EPA,	475	F.3d	83,	121‐

23	(2d	Cir.	2007)	

26 Riverkeeper II,	475	F.3d	at	117‐20	(citing	Fowlkes v. Adamec,	432	F.3d	90,	97	(2d	Cir.	2005)).	
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III.

Permit Application Requirements & Deadlines

EEI	has	asked	EPA	to	“[p]rovide	a	minimum	of	five	years	for	all	facilities	to	complete	

the	permit	application	requirement.”27		Allowing	five	years	to	complete	an	application	for	a	

five‐year	permit	would	be	patently	excessive,	particularly	since	it	has	long	been	clear	to	

industry	what	information	it	will	need	to	submit.		As	EPA	noted	in	the	proposal,	many	of	

the	regulated	facilities	were	previously	subject	to	the	withdrawn	Phase	II	rule	and	should	

have	already	compiled	much	of	the	proposed	application	data,	which	can	be	used	to	meet	

many	of	the	information	submittal	requirements.28		For	newly	covered	facilities,	the	2011	

proposal	gave	them	advance	notice	as	to	what	the	agency’s	expectations	are	regarding	

application	requirements.29		Once	the	final	316(b)	rule	has	been	issued,	plant	operators	can	

hit	the	ground	running	with	their	application	materials	and	should	be	kept	to	a	tight	time	

frame.		In	light	of	this,	the	information	submittal	time	periods	are	entirely	too	long;	the

schedule set forth in the proposal should be cut in half.30

Apart	from	the	length	of	the	schedule,	the	proposed	rule’s	phased	approach	for	

information	submittal	is	a	significant	improvement	over	prior	316(b)	rules	because	it	

requires	facilities	to	submit	application	materials	at	intervals	triggered	by	promulgation	of	

the	final	rule.31		This	is	critical	because	certain	components	of	an	application	take	less	time	

to	complete	than	others,	regulators	can	evaluate	only	so	much	information	at	any	one	time	

and	may	not	request	information	expeditiously,	and	certain	items	may	need	to	be	

supplemented.		Tying	the	schedule	to	the	rule’s	promulgation	date	provides	far	greater	

efficiency,	uniformity	and	transparency	than	if	50	permitting	agencies	were	directed	to	set	

information	submittal	schedules	for	the	1,200	covered	facilities.			

Many	facilities	operate	under	long‐expired,	administratively‐continued	NPDES	

permits	even	though	their	renewal	applications	do	not	yet	include	the	information	needed	

by	permit	writers.		As	EPA	is	well	aware,	the	CWA	authorizes	states	to	issue	NPDES	permits	

“for	fixed	terms,	not	exceeding	five	years.”32		The	five‐year,	time‐limited	nature	of	the	

permit	is	central	to	Congress’s	plan	to	press	new	technologies	–	and	incrementally	stricter	

																																																								

27	EEI	Dec.	20,	2013	letter	at	4.	

28 See	76	Fed.	Reg.	at	22254.	

29 See	76	Fed.	Reg.	at	22248	(similar	statement	in	context	of	compliance	schedules).			

30	In	addition,	the	Clean	Water	Act	mandates	compliance	with	the	316(b)	rule	no	later	than	three	years	from	

promulgation.		CWA	Sections	301(b)(2)(C),	(D),	(E)	&	(F)	and	301(b)(3)(A)	&	(B)	require	compliance	“as	

expeditiously	as	practicable,	but	in	no	case	later	than	three	years	after	the	date	such	limitations	are	

promulgated....”		As	the	courts	have	explained,	“the	time	limits	in	sections	301	and	306	govern	EPA's	duty	to	

take	action	under	section	316(b).	“		Cronin v. Browner,	898	F.	Supp.	1052,	1059	(S.D.N.Y.	1995).		The	same	is	

true	with	respect	to	permittees’	duty	to	comply.		

31	76	Fed.	Reg.	at	22254.	

32	33	U.S.C.	§	1342(b)(1)(B).			
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effluent	limits	–	onto	dischargers	at	regular	five‐year	intervals.33		Once	a	five‐year	NPDES	

permit	expires,	the	Administrative	Procedure	Act	(APA)	allows	licensees	who	have	made	

“timely	and	sufficient	application	for	a	renewal	or	new	license in accordance with agency

rules,”	to	conduct	“an	activity	of	a	continuing	nature	...	until	the	application	has	been	finally	

determined	by	the	agency.”34			

As	a	result	of	the	administrative	continuance	of	their	permits,	some	power	plants	

are	currently	operating	under	permits	that	were	issued	in	the	late	1980s	or	early	1990s	

and	expired	approximately	20	years	ago.		These	plants	are	typically	inefficient	and	highly	

polluting	facilities	still	using	antiquated	technologies	from	that	era	or	earlier	and	badly	in	

need	of	technology	upgrades.		The	generational	delay	in	repermitting	them	is	unacceptable	

and	plainly	contrary	to	the	intent	of	Congress.		Consequences	should	be	attached	to	the	

failure	of	a	permit	applicant	to	complete	its	renewal	application	on	a	timely	basis.		That	

failure	can	affect	the	administrative	continuance	of	an	expired	permit	or	the	opportunity	to	

contend	that	the	putative	best	technology	for	minimizing	adverse	environmental	impact	is	

not	available	at	a	particular	plant.		Such a “backstop” provision is necessary to prevent

dilatory plant owners from continuing to operate under 1980s and 1990s permits in

the 2020s and beyond.		EPA	must	do	its	utmost	to	ensure	that	long	overdue	permits	are	

reviewed,	renewed	and	modified	as	needed.		EPA’s	final	rule	should	address	this	issue,	in	

delegated	and	non‐delegated	states.	

IV.		

Cost‐Benefit Analysis and EPA’s Stated Preference Survey

EPA	is	most	assuredly	not	required	to	base	its	Section	316(b)	determinations	on	

cost‐benefit	analysis	or	to	direct	permit	writers	to	do	so.		In	EPA’s	very	first	316(b)	rule,	

the	agency	stated:	“No	comparison	of	monetary	costs	with	the	social	benefits	of	minimizing	

adverse	environmental	impacts,	much	less	a	formal,	quantified	‘cost/benefit’	assessment	is	

required	by	the	terms	of	[§	316]	of	the	Act.”35		More	recently,	“[i]n	Entergy Corp. v.

Riverkeeper,	the	Supreme	Court	has	now	made	pellucid	that	the	EPA	may	but	is	not	

required	to	engage	in	cost‐benefit	analyses	for	CWIS	rule	making.”36			

Furthermore,	as	Justice	Breyer	noted	in	Entergy,	Congress	“intended	the	law’s	text	

to	be	read	as	restricting ... the use of cost‐benefit comparisons.		...		[because]	the	Act’s	

sponsors	...	feared	that	such	analyses	would	emphasize	easily	quantifiable	factors	over	

more	qualitative	factors	(particularly	environmental	factors,	for	example,	the	value	of	

preserving	nonmarketable	species	of	fish).”37		Justice	Breyer	was	particularly	concerned	

																																																								

33 See NRDC v. EPA,	822	F.2d	104,	123	(D.C.	Cir.	1987).	

34	5	U.S.C.	§	558(c)	(emphasis	added).			

35	41	Fed.	Reg.	17387,	17388	(Apr.	26,	1976).	

36 ConocoPhillips Co. v. EPA,	612	F.3d	822,	837	(5th	Cir.	2010).	

37 Entergy Corp. v. Riverkeeper, Inc.,	556	U.S.	208,	232	(2009)	(Justice	Breyer,	concurring).	
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about	“futile	attempts	at	comprehensive	monetization.”38		Justice	Scalia’s	majority	opinion	

similarly	acknowledged	that	“arguments	may	be	available	to	preclude	such	a	rigorous	form	

of	cost‐benefit	analysis	as	that	which	was	prescribed	under	the	statute’s	former	BPT	

standard,	which	required	weighing	‘the	total	cost	of	application	of	technology’	against	‘the	

...	benefits	to	be	achieved.’”39			

Notably,	EPA	chose	not	to	rely	on	cost‐benefit	considerations	in	developing	its	Phase	

III	rule	for	new	oil	rigs,	and	neither	that	rule	nor	the	Phase	I	rule	include	a	cost‐benefit	

variance.		Both	were	upheld	in	court.40		EPA’s	reason	to	eschew	cost‐benefit	analysis	in	

Phase	III	was	plain:		“it	did	not	have	enough	information	to	perform	a	meaningful	cost‐

benefit	analysis.”41		The	Fifth	Circuit	agreed,	explaining	that	“[t]he	agency’s	decision	to	

regulate	on	the	basis	of	economic	achievability	was	borne	out	by	the	existence	of	cost	

information	but	not	benefit	information.”42			

EEI	now	asks	EPA	to	require	permit	writers	to	rely	on	quantified,	monetized	cost‐

benefit	analysis	but	to	prevent	them	from	using	stated	preference	methods	for	valuing	

ecological	benefits.43		EPA	must	decline	that	request	because	doing	so	would	guarantee	the	

development	of	meaningless	and	futile	analyses	of	the	kind	that	Justice	Breyer	warned	

against	in	Phase	II.		The	lack	of	meaningful	benefits	information	is	exactly	the	reason	EPA	

did	not	employ	cost‐benefit	analysis	in	Phase	III,	and	it	would	also	violate	the	Clean	Water	

Act	in	ways	that	Justices	Breyer	and	Scalia	foreshadowed.		States	have	informed	EPA	of	the	

enormous	difficulties	in	placing	an	accurate	dollar	value	on	aquatic	resource	impacts.		And	

EPA	itself	recently	noted	that	the	“difficult,	time‐consuming	and	expensive”	process	of	cost‐

benefit	analysis	“will	rarely	be	sustainable	for	individual	permits.”44			Accordingly, EPA

should not mandate cost‐benefit analysis as a part of the permit issuance process

because	it	would	result	in	1,200	meaningless	cost‐benefit	analyses.	

Furthermore,	to	the	extent	that	cost‐benefit	analysis	is	allowed	as	a	voluntary

component	of	permitting,	the	analysis	must	fully	value	all	benefits	by	using	the	data	from	

EPA’s	regional	and	national	stated	preference	survey.			EEI	and	the	Senators’	attempt	to	

malign	stated	preference	methods	as	“controversial”	or	“inappropriate”	is	belied	by	EPA	

and	OMB’s	guidelines	for	regulatory	analysis.		Those	guidelines	have	long	recognized	that	

such	methods	are	not	only	appropriate	and	well‐established	economic	tools,	but	also	that	

they	are	necessary	to	a	complete	benefits	analysis:	

																																																								

38 Id. at	235.			

39 Entergy,	556	U.S.	at	223.	

40 ConocoPhillips	at	833‐42;	see also Riverkeeper I,	358	F.3d	174.	

41 ConocoPhillips,	612	F.3d	at	838	(emphasis	added).	

42 Id.	at	842.	

43	EEI	Sept.	17,	2013	letter	at	2‐3;	EEI	Dec.	20,	2013	letter	at	2‐3.	

44 EPA - New England, Clean Water Act NPDES Permitting Determinations for the Thermal Discharge and Cooling 

Water Intake Structures at Merrimack Station in Bow, New Hampshire NPDES Permit No. NH 0001465 at 327.
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Stated	Preference	Methods	(SPM)	have	been	developed	and	used	in	the	peer‐

reviewed	literature	to	estimate	both	“use”	and	“non‐use”	values	of	goods	and	

services.		They	have	also	been	widely	used	in	regulatory	analyses	by	Federal	

agencies...	 	 	 	 A	 stated‐preference	 study	 may	 be	 the	 only	 way	 to	 obtain	

quantitative	information	about	non‐use	values...45		

	 Because	biological	diversity	and	other	non‐use	values	are	invariably	significant	in	

this	context	–	typically	they	account	for	98	percent	of	the	total	benefits46	–	conducting	cost‐

benefit	analyses	without	stated	preference	methods	would	result	in	virtually	all	of	the	

benefits	being	zeroed	out,	thereby	guaranteeing	a	completely	useless	analysis.		The	

national	and	regional	cost‐benefit	study	EPA	conducted	in	the	context	of	the	rulemaking	

represents	the	most	comprehensive	and	rigorous	effort	yet	to	monetize	all	of	the	benefits	

of	reducing	impingement	and	entrainment.		States	have	neither	the	time	nor	resources	to	

conduct	their	own	stated	preference	surveys.		EPA’s	survey	showed	that	the	economic	

benefits	of	minimizing	impingement	and	entrainment	dramatically	exceed	the	costs.47		The	

use	of	those	data	in	the	plant‐specific	context	would	be	manifestly	more	reliable	than	

placing	a	zero	value	on	benefits	that	are	known	to	exist	and	that	in	the	aggregate	vastly	

outweigh	the	costs.	

Accordingly,	if	permit	writers	are	permitted	to	undertake	cost‐benefit	on	a	

voluntary	basis,	or	to	accept	such	analyses	prepared	by	permit	applicants,	they	should	be	

prohibited	from	using	any	such	analysis	that	does	not	take	full	account	of	all	benefits,	

including	ecological	benefits,	on	equal	footing	with	all	other	benefits	and	costs.			

V.

Low Capacity Utilization Units (“Peakers”)

EEI	also	asks	EPA	to	“specify	a	capacity	factor	or	flow	rate	below	which	the	final	

rule’s	requirements	will	not	apply,”	based	on	its	unsupported	assertion	that	low	capacity	

utilization	units	(i.e.,	“peakers”)	have	“little	risk”	of	adverse	environmental	impact.

48			

																																																								

45	OMB	Circular	A‐4	at	§	4	(emphasis	added);	see also	EPA,	Guidelines	for	Preparing	Economic	Analyses.	

46	As	EPA	has	explained,	98.2	percent	of	the	aquatic	organisms	affected	by	intake	structures	are	not	harvested	

and	thus	do	not	go	to	market.		69	Fed.	Reg.	41576,	41661		(July	9,	2004).	

47 See	Comments	on	EPA’s	Section	316(b)	Stated	Preference	Survey,	Dr.	Frank	Ackerman,	Stockholm	

Environment	Institute‐US	Center,	Tufts	University,	July	10,	2012.		Notably,	the	Senators	cite	a	NERA	

Consulting	report	prepared	for	UWAG	and	EEI	for	the	proposition	that	the	stated	preference	survey	estimates	

benefits	to	be	$2.275	billion	annually	for	EPA’s	preferred	option	and	five	times	the	value	of	the	costs.		See	July	

22,	2013	letter	from	Senator	Vitter,	et	al.,	to	EPA	at	2.

48	EEI	Sept	17,	2013	letter	at	4‐5;	see also	EEI	Dec.	20,	2013	letter	at	4.	
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In	fact,	as	state	regulators	have	found,	there	is	“no	predictable	relationship”	

between	capacity	factor	and	cooling	water	use.49		There	are	several	reasons	for	this,	

including	that	cooling	water	systems	at	non‐baseload	facilities	may	be	operated	more	than	

is	necessary	to	condense	steam.50		Further,	“non‐targeted	reductions”	in	cooling	water	use	

may	have	little	effect	on	reducing	adverse	environmental	impact	because	the	“driving	

factors”	influencing	entrainment	and	impingement	at	a	facility	are	the	“seasonal	dimension	

of	both	energy	demand	and	fish	reproductive	and	migratory	life	history.”51		In	other	words,	

peaking	and	load‐following	facilities	can	have	a	disproportionately	large	adverse	

environmental	impact	on	aquatic	resources	if	they	operate	when	biological	activity	is	high.		

In	addition,	many	facilities	that	now	operate	as	peakers	or	load‐following	units	were	

originally	designed	as	baseload	units	but	are	no	longer	efficient	enough	to	be	operated	

regularly.		This	means	that	they	also	have	a	disproportionately	large	adverse	impact	on	air	

quality	and	climate	relative	to	more	efficient	baseload	facilities.	

Moreover,	a	plant’s	past	operational	history	does	not	guarantee	that	it	will	run	

infrequently	in	the	future,	due	to	changes	in	demand	and	fuel	costs.		Facilities	should	not	be	

exempted	from	certain	requirements	based	on	prior	capacity	utilization	and	given	free	rein	

to	ramp	up	operations	in	the	future.		

Consequently,	if	capacity	factor	or	average	flow	rate	is	to	be	a	component	of	BTA	for	

certain	facilities,	the	NPDES	permit	must	contain	mandatory	limits	on	future	capacity	and	

flow.		In	addition,	those	limits	must	be	expressed	as	targeted,	seasonal	reductions	and/or	

be	accompanied	by	additional	requirements	specifying	the	minimum	reductions	in	

impingement	and	entrainment	to	be	achieved	as	a	result	of	reduced	operation,	as	has	been	

done	in	some	recent	state‐issued	permits	for	peakers.	

	 Thank	you	for	considering	these	legal	issues	as	the	rulemaking	is	completed	

Very	Truly	Yours,	

Reed	Super	

Legal	Director,	Waterkeeper	Alliance	

Principal,	Super	Law	Group		

Phillip	Musegaas		

Hudson	River	Program	Director	

Riverkeeper,	Inc.	

																																																								

49 See generally New York State Department of Environmental Conservation, The Relationship between Cooling 

Water Capacity Utilization, Electric Generating Capacity Utilization, and Impingement and Entrainment at New 

York State Steam Electric Generating Facilities, Technical Document, July 2010, at 2. 

50 Id.		For	example,	plants	may	withdraw	water	when	not	generating	electricity,	or	may	withdraw	a	

disproportionately	high	volume	of	water	relative	to	kilowatt	hours,	in	order	to	prevent	condenser	fouling;	to	

dilute	discharges;	because	they	have	single‐speed	intake	pumps	that	do	not	allow	withdrawals	to	be	scaled	

down;	or	to	cool	the	plant	during	the	start‐up	and	cool‐down	periods	before	and	after	operation.		

51 Id.	
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Steve	Fleischli	

Senior	Attorney	

Natural	Resources	Defense	Council	

Joshua	Berman	

Staff	Attorney	

Sierra Club

Ann	Brewster	Weeks	

Senior	Counsel,	Legal	Director	

Clean	Air	Task	Force	

Thomas	Cmar		 	

Coal	Program	Attorney	

Earthjustice	

John	Rumpler	

Senior	Attorney	

Environment	America	

Charles	C.	Caldart	

Director	of	Litigation	

National	Environmental	Law	Center	

Angela	T.	Howe	

Legal	Director	

Surfrider	Foundation	

cc:	 Bob	Perciasepe,	EPA	Deputy	Administrator		

Avi	Garbow,	EPA	General	Counsel	

Daniel	Ashe,	Director,	U.S.	Fish	and	Wildlife	Service	

Gary	Frazer,	Assistant	Director,	Endangered	Species,	USFWS	

Eileen	Sobeck,	Assistant	Administrator	for	NOAA	Fisheries		

Donna	Wieting,	Director,	Office	of	Protected	Resources,	NMFS	

Howard	Shelanski,	OIRA	Administrator	

Andrei	Greenawalt,	OIRA	Associate	Administrator	

Nancy	Sutley,	Chair,	Council	on	Environmental	Quality	

Dan Utech,	Director	for	Energy	and	Climate	Change,	Domestic	Policy	Council	

Robert	Dreher,	Acting	Asst.	Attorney	General,	Environment	&	Nat.	Resources	Div.