C OOLING WATER INTAKE STRUCTURE C OAL ., ET AL . V. EPA, ET AL .

14‐4645(L)
C OOLING WATER INTAKE STRUCTURE C OAL ., ET AL . V. EPA, ET AL .
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2017 4
5
(Argued: September 14, 2017 Decided: July 23, 2018 6
Amended: September 27, 2018) 7
8
Docket Nos. 14‐4645(L), 14‐4657(CON), 14‐4659(CON), 14‐4664(CON), 9
14‐4667(CON), 14‐4670(CON) 10
11
_____________________________________ 12
13
COOLING WATER INTAKE STRUCTURE COALITION, 14
15
Petitioner, 16
17
AMERICAN PETROLEUM INSTITUTE, UTILITY WATER ACT GROUP, 18
ENTERGY CORPORATION, AMERICAN LITTORAL SOCIETY, 19
ENVIRONMENT AMERICA, ENVIRONMENT MASSACHUSETTS, 20
RIVERKEEPER, INC., NATURAL RESOURCES DEFENSE COUNCIL, 21
INCORPORATED, DELAWARE RIVERKEEPER NETWORK, RARITAN 22
BAYKEEPER, INC., DBA NY/NJ BAYKEEPER, HACKENSACK RIVERKEEPER, 23
CASCO BAYKEEPER, SAVE THE BAY – NARRAGANSETT BAY, SCENIC 24
HUDSON, INC., SIERRA CLUB, WATERKEEPER ALLIANCE, INC., 25
SOUNDKEEPER, INC., SURFRIDER FOUNDATION, 26
27
Intervenors‐Petitioners, 28
29
CENTER FOR BIOLOGICAL DIVERSITY, LOUISIANA ENVIRONMENTAL 30
ACTION NETWORK, CALIFORNIA COASTKEEPER ALLIANCE, HUMBOLDT 31
BAYKEEPER, SUNCOAST WATERKEEPER, INC., PUGET SOUNDKEEPER 32
ALLIANCE, 33
34
Intervenors, 35

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2
v. 1
2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ANDREW R. 3
WHEELER, IN HIS OFFICIAL CAPACITY AS ACTING ADMINISTRATOR OF 4
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,* 5
NATIONAL MARINE FISHERIES SERVICE, 6
UNITED STATES FISH AND WILDLIFE SERVICE, 7
8
Respondents. 9
10
_____________________________________ 11
12
Before: 13
14
JACOBS, CABRANES, and LOHIER , Circuit Judges. 15
16
Environmental conservation groups and industry associations petition for 17
review of a final rule promulgated by the United States Environmental 18
Protection Agency (“EPA”) pursuant to section 316(b) of the Clean Water Act, 19
establishing requirements for cooling water intake structures at existing facilities. 20
The Petitioners also seek review of a May 19, 2014 biological opinion jointly 21
issued by the United States Fish and Wildlife Service and the National Marine 22
Fisheries Service at the close of formal Endangered Species Act consultation on 23
the final rule. Because we conclude that both the final rule and the biological 24
opinion are based on reasonable interpretations of the applicable statutes and 25
sufficiently supported by the factual record, and because the EPA gave adequate 26
notice of its rulemaking, we DENY the petitions. 27
28
Russell S. Frye, FryeLaw PLLC, 29
Washington, DC, for Petitioner Cooling 30
Water Intake Structure Coalition. 31
32
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Administrator
Andrew R. Wheeler is substituted for former Administrator Gina McCarthy as a
respondent. The Clerk of the Court is directed to amend the caption accordingly.

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3
Fredric P. Andes, Jill M. Fortney, Barnes & 1
Thornburg LLP, Chicago, IL; Jeffrey S. 2
Longsworth, Barnes & Thornburg LLP, 3
Washington, DC, for Intervenor‐Petitioner 4
American Petroleum Institute. 5
6
K RISTY A.N. B ULLEIT (Andrew J. Turner, 7
Todd S. Mikolop, Kerry L. McGrath, on the 8
brief), Hunton & Williams LLP, 9
Washington, DC, for Intervenors‐Petitioners 10
Utility Water Act Group, Entergy 11
Corporation. 12
13
R EED W. SUPER , E DAN R OTENBERG , Super 14
Law Group, LLC, New York, NY, for 15
Intervenors‐Petitioners Riverkeeper Inc., 16
American Littoral Society, Casco 17
Baykeeper, Delaware Riverkeeper 18
Network, Hackensack Riverkeeper, Natural 19
Resources Defense Council, Inc., Raritan 20
Baykeeper, Inc. d/b/a NY/NJ Baykeeper, 21
Save the Bay –Narragansett Bay, Scenic 22
Hudson, Inc., Sierra Club, Soundkeeper, 23
Inc., Surfrider Foundation, Waterkeeper 24
Alliance, Inc., and for Intervenors Center for 25
Biological Diversity, Louisiana 26
Environmental Action Network, California 27
Coastkeeper Alliance, Humboldt 28
Baykeeper, Suncoast Waterkeeper, Inc., 29
Puget Soundkeeper Alliance. 30
31
Eric E. Huber, Sierra Club, Boulder, CO, for 32
Intervenor‐Petitioner Sierra Club, and for 33
Intervenors Center for Biological Diversity, 34
California Coastkeeper Alliance, Humboldt 35
Baykeeper, Louisiana Environmental 36

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4
Action Network, Suncoast Waterkeeper, 1
Inc. 2
3
Charles C. Caldart, National 4
Environmental Law Center, Seattle, WA, for 5
Intervenors‐Petitioners Environment 6
America, Environment Massachusetts. 7
8
PERRY M. R OSEN, United States Department 9
of Justice, Environment & Natural 10
Resources Division, Environmental 11
Defense Section, Washington, DC; B RIDGET 12
K ENNEDY MCNEIL , United States 13
Department of Justice, Environment & 14
Natural Resources Division, Wildlife & 15
Marine Resources Section, Denver, CO 16
(Simi Bhat, United States Department of 17
Justice, Environment & Natural Resources 18
Division, Environmental Defense Section, 19
Washington, DC, Clifford E. Stevens, Jr., 20
United States Department of Justice, 21
Environment & Natural Resources 22
Division, Wildlife & Marine Resources 23
Section, Denver, CO, on the brief; Richard T. 24
Witt, Alexis Wade, United States 25
Environmental Protection Agency, Office of 26
General Counsel, of counsel), for 27
Respondents. 28
29
Andrew K. Jacoby, Varadi, Hair & Checki, 30
LLC, New Orleans, LA (Ann Brewster 31
Weeks, Legal Director, Clean Air Task 32
Force, Boston, MA, of counsel), for Amicus 33
Curiae Clean Air Task Force. 34

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LOHIER, Circuit Judge: 1
In these consolidated cases, several environmental conservation groups 2
and industry associations petition for review of a final rule promulgated four 3
years ago, in August 2014, by the United States Environmental Protection 4
Agency (“EPA”) pursuant to section 316(b) of the Clean Water Act (“CWA”), 33 5
U.S.C. § 1326(b), establishing requirements for cooling water intake structures 6
(“CWISs”) at existing regulated facilities, see National Pollutant Discharge 7
Elimination System—Final Regulations to Establish Requirements for Cooling 8
Water Intake Structures at Existing Facilities and Amend Requirements at Phase 9
I Facilities, 79 Fed. Reg. 48,300 (Aug. 15, 2014) (codified at 40 C.F.R. pts. 122, 125) 10
(“Final Rule” or “Rule”).1 The Petitioners also seek review of a May 19, 2014 11
biological opinion jointly issued by the United States Fish and Wildlife Service 12
(“FWS”) and the National Marine Fisheries Service (“NMFS,” and, together with 13
the FWS, the “Services”) at the close of formal Endangered Species Act (“ESA”) 14
consultation on the Final Rule. The Government continues to defend the Rule 15
today. Because we conclude, among other things, that both the Rule and the 16
1 The various abbreviations in this opinion are defined both in text and in a separate
glossary set forth in the Appendix.

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6
biological opinion are based on reasonable interpretations of the applicable 1
statutes and sufficiently supported by the factual record, and because the EPA 2
gave adequate notice of its rulemaking, we DENY the petitions for review. 3
BACKGROUND 4
To start, we describe CWISs; their general impact on the environment; and 5
the statutes, regulations, and rules relevant to these petitions. We then provide 6
an overview of the relevant regulatory and procedural history and a summary of 7
the arguments advanced in the various petitions before us. 8
1. Cooling Water Intake Structures 9
To dissipate waste heat, power plants and manufacturing facilities use 10
CWISs to extract large volumes of water—nearly 75 trillion gallons annually— 11
from nearby water sources. The force of inflowing water can trap, or “impinge,” 12
larger aquatic organisms against the structures and draw, or “entrain,” smaller 13
aquatic organisms into a facility’s cooling system. Impingement and 14
entrainment kill hundreds of billions of aquatic organisms from waters of the 15
United States each year. 16
The harm to aquatic organisms caused by a CWIS most directly relates to 17
the amount of water the structure withdraws, which in turn depends on the type 18

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of cooling system the facility uses. “Once‐through” cooling systems draw cold 1
water from a waterbody and return heated water to the waterbody in a 2
continuous flow. See Riverkeeper, Inc. v. EPA, 358 F.3d 174, 182 n.5 (2d Cir. 3
2004) (“Riverkeeper I”). “Closed‐cycle” cooling systems generally recirculate the 4
same cooling water within a CWIS by using towers or reservoirs to dissipate heat 5
from the water. Id.; see also 79 Fed. Reg. at 48,333. Closed‐cycle cooling 6
withdraws approximately 95 percent less water than once‐through cooling. 7
2. Statutory Framework 8
A. The Clean Water Act 9
The express purpose of the CWA is “to restore and maintain the chemical, 10
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). 11
Sections 301 and 306 of the CWA broadly authorize the EPA to establish 12
pollution discharge standards. Id. §§ 1311, 1316. In 1972 Congress amended the 13
CWA to specifically address the operation of CWISs. See Federal Water 14
Pollution Control Act Amendments of 1972, Pub. L. No. 92‐500, 86 Stat. 816; see 15
also Riverkeeper I, 358 F.3d at 184 (describing the 1972 amendments as marking 16
a “sea of change” in Congress’s approach to water pollution). In section 316(b), it 17
directed the EPA to establish standards governing the operation of CWISs: 18

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8
Any standard established pursuant to [CWA section 301] or [CWA 1
section 306] and applicable to a point source shall require that the 2
location, design, construction, and capacity of cooling water intake 3
structures reflect the best technology available for minimizing 4
adverse environmental impact. 5
6
33 U.S.C. § 1326(b). Section 316(b) lists no specific factors that the EPA should 7
consider in establishing the applicable “best technology available” (“BTA”) 8
standard. We have held that “interpretation of section 316(b) is informed by the 9
two provisions it cross‐references,” Riverkeeper, Inc. v. EPA, 475 F.3d 83, 91 (2d 10
Cir. 2007) (“Riverkeeper II”), rev’d on other grounds, Entergy Corp. v. 11
Riverkeeper, Inc., 556 U.S. 208 (2009), but that the EPA need not comply with 12
“every statutory directive contained” in those two provisions when acting 13
pursuant to section 316(b), id. (quoting Riverkeeper I, 358 F.3d at 187). 14
Moreover, the EPA may consider “the benefits derived from reductions [in 15
adverse environmental impact] and the costs of achieving them” when 16
establishing the BTA. Entergy, 556 U.S. at 219. 17
The standards promulgated under CWA sections 301, 306, and 316(b) are 18
implemented by permits issued through the National Pollutant Discharge 19
Elimination System (“NPDES”). See 33 U.S.C. § 1342; 40 C.F.R. §§ 122.44(b)(3), 20
125.90(a). “An NPDES permit serves to transform generally applicable . . . 21

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9
standards . . . into the obligations . . . of the individual discharger . . . .” EPA v. 1
California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976). NPDES 2
permits are issued by the EPA or, if the EPA has approved a State’s permitting 3
program, by the Director of the NPDES program for the State.2 See 33 U.S.C. 4
§ 1342. Under the authorized State programs, Directors must submit draft 5
permits to the EPA for review. Id. § 1342(d)(1)–(2). If a Director fails to amend 6
the permit in response to any EPA objections, the EPA may federalize the permit 7
(i.e., reclaim permitting authority for that permit). Id. § 1342(d)(4). And if a State 8
fails to administer the NPDES program in accordance with standards 9
promulgated pursuant to the CWA, the EPA may withdraw approval of the State 10
program. Id. § 1342(c). 11
B. The Endangered Species Act 12
In enacting the ESA, Congress wanted to ensure “that all Federal 13
departments and agencies . . . seek to conserve endangered species and 14
threatened species.” 16 U.S.C. § 1531(c)(1). To “reverse the trend toward species 15
extinction,” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978), the ESA provides 16
2 As of 2014, when the Final Rule was published, forty‐six States operated an EPA‐
approved NPDES permitting program. 79 Fed. Reg. at 48,312. In June 2018 Idaho
became the forty‐seventh State to receive the EPA’s approval. See 83 Fed. Reg. 27,769,
27,770 (June 14, 2018).

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for the listing of species as threatened or endangered and the designation of their 1
critical habitats, 16 U.S.C. § 1533. Once a species is listed, certain statutory 2
protections apply. For example, section 9 of the ESA prohibits the “take”3 of 3
endangered species and those threatened species to which the Services have 4
extended protection, 16 U.S.C. § 1538(a)(1)(B), except that take “incidental” to an 5
otherwise lawful activity may be exempted pursuant to the procedures set forth 6
in ESA sections 7 or 10, id. § 1539(a)(1)(B). Section 7 of the ESA directs federal 7
agencies, in consultation with one or both of the Services, to “insure that any 8
action authorized, funded, or carried out by such agency . . . is not likely to 9
jeopardize the continued existence of any endangered species or threatened 10
species,” or to adversely modify critical habitats designated for such species.4 Id. 11
§ 1536(a)(2). A federal agency must consult with the Services on a proposed 12
action whenever there is “reason to believe that an endangered species or a 13
threatened species may be present in the area affected by [the proposed action] 14
3 The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
4 The ESA’s implementing regulations define the phrase “[j]eopardize the continued
existence of” as “to engage in an action that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or distribution of that
species.” 50 C.F.R. § 402.02.

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and that implementation of such action will likely affect such species.” Id. 1
§ 1536(a)(3); see 50 C.F.R. § 402.14(a) (requiring consultation where the acting 2
agency determines that its action “may affect” listed species or critical habitat). 3
Consultation with the Services may be informal or formal. Informal 4
consultation is an optional process to determine whether formal consultation is 5
necessary. 50 C.F.R. § 402.13(a). As part of informal consultation, the acting 6
agency may prepare a “biological evaluation” that analyzes the potential effects 7
of a proposed action on listed species and their critical habitat. See 8
Memorandum of Agreement Between the Environmental Protection Agency, 9
Fish and Wildlife Service and National Marine Fisheries Service Regarding 10
Enhanced Coordination Under the Clean Water Act and Endangered Species Act, 11
66 Fed. Reg. 11,202, 11,210 (Feb. 22, 2001) (“MOA”). If the acting agency 12
determines, with the written concurrence of the consulting Service, that the 13
action “is not likely to adversely affect” listed species or critical habitat, the 14
consultation process ends. 50 C.F.R. § 402.13(a); see id. §§ 402.12(k)(1), 15
402.14(b)(1). But if either the acting agency or the consulting Service determines 16
that the proposed action is “likely to adversely affect” listed species or critical 17
habitat, the agency and the Service must engage in formal consultation. Id. 18

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§ 402.13(a); see id. § 402.14(a)–(b). At the end of formal consultation, the Service 1
must, using “the best scientific and commercial data available,” 16 U.S.C. 2
§ 1536(a)(2); 50 C.F.R. § 402.14(g)(8), prepare a biological opinion with both a 3
“detailed discussion of the effects of the action on listed species or critical 4
habitat,” 50 C.F.R. § 402.14(h)(2), and a position “as to whether the action, taken 5
together with cumulative effects, is likely to jeopardize the continued existence of 6
listed species or result in the destruction or adverse modification of critical 7
habitat,” id. § 402.14(g)(4). If the Service concludes that the action is likely to 8
jeopardize listed species, the biological opinion must suggest “reasonable and 9
prudent alternatives” to the agency’s proposed action. 16 U.S.C. § 1536(b)(3)(A); 10
50 C.F.R. § 402.14(g)(5). If the Service concludes that the action is not likely to 11
jeopardize listed species but that incidental take is reasonably likely to occur, the 12
Service is required to provide an incidental take statement (“ITS”) that meets the 13
requirements set forth in 16 U.S.C. § 1536(b)(4). A taking that complies with 14
measures specified in an ITS “shall not be considered to be a prohibited taking of 15
the species concerned.” 16 U.S.C. § 1536(o)(2). 16

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C. The Administrative Procedure Act 1
The Administrative Procedure Act (“APA”) requires a federal agency 2
conducting notice‐and‐comment rulemaking to include in its notice of proposed 3
rulemaking “either the terms or substance of the proposed rule or a description 4
of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). A final rule “need not 5
be an exact replica of the rule proposed in the [n]otice,” only a “logical 6
outgrowth.” Riverkeeper II, 475 F.3d at 113 (quotation marks omitted). A central 7
question under the APA is “whether the agency’s notice would fairly apprise 8
interested persons of the subjects and issues of the rulemaking.” Nat’l Black 9
Media Coal. v. FCC, 791 F.2d 1016, 1022 (2d Cir. 1986) (quotation marks omitted). 10
3. Regulatory History 11
Our decisions in Riverkeeper I, 358 F.3d 174, and Riverkeeper II, 475 F.3d 12
83, discuss at length the history of the EPA’s rulemaking pursuant to section 13
316(b) of the CWA. We assume familiarity with those decisions and therefore 14
provide only a brief overview of the various stages of the rulemaking relevant to 15
these petitions. 16
The EPA first promulgated a regulation implementing section 316(b) in 17
1976. See 41 Fed. Reg. 17,387 (Apr. 26, 1976). The Fourth Circuit remanded 18

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certain aspects of that regulation for procedural reasons, see Appalachian Power 1
Co. v. Train, 566 F.2d 451, 457 (4th Cir. 1977), and the EPA subsequently 2
withdrew the remanded regulation, see 44 Fed. Reg. 32,854, 32,956 (June 7, 1979). 3
In 1993 environmental conservation groups sued the EPA to compel the 4
issuance of regulations under section 316(b), which had already been 5
significantly delayed. An amended 1995 consent decree required the EPA to 6
promulgate new regulations in three phases, each addressing a different category 7
of facilities. See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314(AGS), 2001 WL 8
1505497, at *1 (S.D.N.Y. Nov. 27, 2001); Cronin v. Browner, 898 F. Supp. 1052, 9
1055 (S.D.N.Y. 1995). We describe each phase in turn. 10
The EPA’s Phase I rule, published in 2001,5 established uniform national 11
BTA standards for new facilities based on closed‐cycle cooling and offered two 12
alternative compliance options. See 40 C.F.R. § 125.84; 79 Fed. Reg. at 48,315–16. 13
In Riverkeeper I, we upheld the Phase I rule with the exception of the compliance 14
option based on “restoration measures,” holding that restoration was 15
5 Also in 2001, the EPA and the Services entered into the MOA, which addressed the
protection of endangered and threatened species under the CWA’s programs for water
quality standards and NPDES permitting. See 66 Fed. Reg. 11,202. The MOA
encouraged greater cooperation and communication among the Services, the EPA, and
Directors in ensuring that these programs protect ESA‐listed species consistent with the
scope of the EPA’s authority under the CWA. Id. at 11,203–04.

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inconsistent with Congress’s expressed intent in section 316(b) that the EPA 1
directly regulate the “design” of CWISs. 358 F.3d at 189–91. 2
The EPA’s Phase II rule, published in 2004, provided that large, existing 3
power plants could comply with BTA performance standards by choosing from a 4
suite of designated technologies that would reduce impingement mortality by 80 5
to 95 percent and entrainment by 60 to 90 percent. See 69 Fed. Reg. 41,576, 41,590 6
(July 9, 2004). The Phase II rule identified five compliance options, including a 7
“cost‐benefit comparison” option that allowed site‐specific variances from the 8
rule’s standards if a facility demonstrated that its compliance costs would be 9
“significantly greater than” the benefits. Id. at 41,591, 41,597. In Riverkeeper II, 10
we held that section 316(b) does not authorize the EPA to determine the BTA or 11
provide for site‐specific determinations of the BTA based on a cost‐benefit 12
analysis. 475 F.3d at 101, 114, 130–31. Because we could not determine whether 13
the EPA had relied on a cost‐benefit analysis in selecting the rule’s suite of 14
technologies as the BTA, we remanded the Phase II rule for the EPA to clarify the 15
basis for its decision and possibly to reassess the BTA. Id. at 101, 105. In Entergy 16
Corp. v. Riverkeeper, Inc., the Supreme Court granted certiorari only as to the 17
question whether section 316(b) “authorizes the EPA to compare costs with 18

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benefits in determining ‘the best technology available for minimizing adverse 1
environmental impact’ at [CWISs].” 556 U.S. at 217. The Supreme Court 2
answered that question in the affirmative, “express[ing] no view on the 3
remaining bases for the Second Circuit’s remand.” Id. at 226. 4
Lastly, the EPA’s Phase III rule, published in 2006, established standards 5
for new offshore facilities, smaller existing power plants, and existing 6
manufacturing facilities. See 71 Fed. Reg. 35,006 (June 16, 2006). After 7
petitioners challenged the Phase III rule in the Fifth Circuit, the EPA requested 8
and received a partial remand of the rule so that it could reconsider the 9
provisions addressing existing facilities in light of Entergy. See ConocoPhillips 10
Co. v. EPA, 612 F.3d 822, 832, 842 (5th Cir. 2010). 11
4. The Challenged Rule 12
In response to the Phase II and III remands, the EPA proposed a new 13
round of rulemaking for all existing facilities and new units at existing facilities. 14
See National Pollutant Discharge Elimination System—Cooling Water Intake 15
Structures at Existing Facilities and Phase I Facilities, 76 Fed. Reg. 22,174 (Apr. 16
20, 2011). Several rounds of comment on the proposed rule followed, and the 17

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EPA ultimately reviewed comments from over 1,100 organizations and 1
individuals. 79 Fed. Reg. at 48,352. 2
In 2012 the EPA initiated ESA consultation with the Services on the effects 3
of the proposed rule on listed species and their critical habitat. During informal 4
consultation, the Services disagreed with the EPA’s determination, in a draft 5
biological evaluation, that the proposed rule was unlikely to have adverse effects 6
on listed species. On June 18, 2013, after several meetings between the agencies, 7
the EPA requested formal section 7 consultation and submitted a final biological 8
evaluation. With that evaluation in hand, in late 2013 the Services preliminarily 9
concluded that the proposed rule would cause “jeopardy” as defined in the ESA. 10
The EPA and the Services continued to discuss the proposed rule and revisions, 11
culminating in a draft final rule in March 2014. Soon thereafter, in May 2014, the 12
Services jointly issued a biological opinion, concluding that although the 13
operation of CWISs could have significant adverse effects on listed species and 14
their critical habitat, the proposed rule’s inclusion of certain process‐based 15
protections ensured that it was not likely to “jeopardize” the continued existence 16
of listed species or “adversely modify” critical habitat within the meaning of ESA 17
section 7. See U.S. Fish and Wildlife Service & National Marine Fisheries Service, 18

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Endangered Species Act Section 7 Consultation Programmatic Biological Opinion 1
on the U.S. Environmental Protection Agency’s Issuance and Implementation of 2
the Final Regulations Section 316(b) of the Clean Water Act 71 (2014) (“Bio. 3
Op.”). The biological opinion also included an ITS, which found that the “large 4
scale and broad scope” of the proposed rule precluded an accurate estimate of 5
the precise amount of incidental take. Id. at 76. The Services therefore deferred 6
quantification of incidental take to the site‐specific permitting process laid out in 7
the proposed rule. 8
The Final Rule promulgated by the EPA and challenged by the Petitioners 9
applies to existing power plants and manufacturing facilities that use CWISs to 10
withdraw more than 2 million gallons of water per day (“mgd”), of which 25 11
percent or more is used for cooling.6 See 79 Fed. Reg. at 48,304–05. As we 12
discuss in more detail and as relevant below, the Rule establishes impingement 13
and entrainment standards for existing facilities and for new units at existing 14
facilities, id. at 48,321–23, and it implements several processes to ensure 15
compliance with the ESA, id. at 48,380–83. 16
6 The Rule covers 99.8 percent of total water withdrawals by industrial sources in the
United States. 79 Fed. Reg. at 48,308.

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5. Procedural History 1
After the Final Rule was published, petitions for review were filed in six 2
Circuits. The Fourth Circuit consolidated the petitions, allowed the Petitioners to 3
intervene in one another’s suits, and transferred the consolidated petitions to this 4
Circuit pursuant to 28 U.S.C. § 2112(a)(5). We then granted the Petitioners leave 5
to amend their petitions to include challenges to the Services’ biological opinion 6
and to add the Services as respondents. We also granted the motion filed by the 7
Center for Biological Diversity, Louisiana Environmental Action Network, 8
California Coastkeeper Alliance, Humboldt Baykeeper, Suncoast Waterkeeper, 9
Inc., and Puget Soundkeeper Alliance for leave to intervene as petitioners. 10
6. The Petitions 11
Four petitions for review are before us. 12
A. Environmental Petition 13
The first petition, filed by the self‐described “Environmental Petitioners” 14
and “Environmental Intervenors” (collectively, the “Environmental 15
Petitioners”),7 argues that: (1) the Rule’s entrainment and impingement 16
7 American Littoral Society, Environment America, Environment Massachusetts,
Riverkeeper, Inc., Natural Resources Defense Council, Incorporated, Delaware

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requirements violate section 316(b) of the CWA in several ways; (2) the Rule’s 1
definition of “new unit” is arbitrary and capricious under the APA insofar as it 2
excludes rebuilt, repowered, and replaced units; (3) the Services violated section 3
7 of the ESA and its implementing regulations, especially by finding that the 4
Rule incorporates adequate process‐based protections to avoid jeopardizing 5
listed species; and (4) the Services’ ITS fails to meet the requirements set forth in 6
section 7(b)(4) of the ESA. The Environmental Petitioners seek vacatur and 7
remand of the Final Rule and request that we declare unlawful and set aside the 8
biological opinion and ITS issued by the Services. 9
B. Industry Association Petition 10
The second petition, filed by several industry associations we refer to 11
collectively as “UWAG,”8 challenges the Rule primarily on the grounds that: 12
(1) the EPA exceeded its authority under the CWA; (2) the Services violated the 13
ESA by, among other things, issuing a biological opinion that relied on an 14
Riverkeeper Network, Raritan Baykeeper, Inc., d/b/a NY/NJ Baykeeper, Hackensack
Riverkeeper, Casco Baykeeper, Save the Bay – Narragansett Bay, Scenic Hudson, Inc.,
Sierra Club, Waterkeeper Alliance, Inc., Soundkeeper, Inc., Surfrider Foundation,
Center for Biological Diversity, Louisiana Environmental Action Network, California
Coastkeeper Alliance, Humboldt Baykeeper, Suncoast Waterkeeper, Inc., and Puget
Soundkeeper Alliance.
8 Utility Water Act Group, Entergy Corporation, Cooling Water Intake Structure
Coalition, and American Petroleum Institute.

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erroneous environmental baseline; and (3) the EPA violated the APA by failing 1
to provide notice of and an opportunity to comment on certain provisions of the 2
Rule adopted at the Services’ behest. UWAG requests that we vacate these so‐ 3
called “Service‐driven” provisions and set aside the Services’ biological opinion. 4
C. American Petroleum Institute Petition 5
The third petition, separately filed by the American Petroleum Institute 6
(“API”), argues that the EPA violated the APA when it concluded that 7
manufacturing facilities will incur minimal compliance costs in meeting the 8
Rule’s standards for “new units,” and when in the proposed rule it defined “new 9
unit” so vaguely that interested parties were deprived of notice and an 10
opportunity to comment. 11
D. CWIS Coalition Petition 12
The fourth petition, separately filed by the Cooling Water Intake Structure 13
Coalition (“CWIS Coalition” or “Coalition”), argues that the EPA acted 14
arbitrarily and capriciously in violation of the APA with respect to permit 15
application requirements and with respect to requirements for intake structures 16
that withdraw little or no water exclusively for cooling purposes. 17

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DISCUSSION 1
1. Jurisdiction 2
We have jurisdiction to review the Final Rule pursuant to CWA section 3
509(b)(1), 33 U.S.C. § 1369(b)(1). See Riverkeeper II, 475 F.3d at 95. Because 4
evaluating the biological opinion’s “evidentiary and analytic basis is . . . integral 5
to reviewing the EPA’s final decision,” we can “consider the adequacy of both 6
the section 7 consultation and the [b]iological [o]pinion that resulted from it 7
while reviewing the EPA’s final decision.” Defs. of Wildlife v. EPA, 420 F.3d 946, 8
956 (9th Cir. 2005), rev’d on other grounds, Nat’l Ass’n of Home Builders v. Defs. 9
of Wildlife, 551 U.S. 644 (2007). 10
2. Standard of Review 11
Our substantive review of the Rule has two steps. “First, we examine the 12
regulation against the statute that contains the [agency’s] charge.” Riverkeeper 13
II, 475 F.3d at 95 (quotation marks omitted). If Congress “has directly spoken to 14
the precise question at issue” and has unambiguously expressed its intent, we 15
must give effect to that intent. Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 16
Inc., 467 U.S. 837, 842–43 (1984). If the statute is silent or ambiguous, we ask only 17
“whether the agency’s answer is based on a permissible construction of the 18

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statute,” id. at 843, that is, we ask whether the agency’s action is “arbitrary, 1
capricious, or manifestly contrary to the statute,” Riverkeeper I, 358 F.3d at 184 2
(quotation marks omitted). “Second, if the agency has followed Congress’s 3
unambiguously expressed intent or permissibly construed an ambiguous statute, 4
we measure the regulation against the record developed during the rulemaking,” 5
Riverkeeper II, 475 F.3d at 95 (quotation marks omitted), holding it unlawful 6
only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 7
accordance with law,” id. (quoting 5 U.S.C. § 706(2)(A)). Our review is “narrow, 8
limited to examining the administrative record to determine whether the agency 9
decision was based on a consideration of the relevant factors and whether there 10
has been a clear error of judgment.” Riverkeeper I, 358 F.3d at 184 (quotation 11
marks omitted). Because “we lack the [agencies’] expertise when it comes to 12
scientific or technical matters,” id., we look only to see whether the agency 13
“examined the relevant data and articulated a satisfactory explanation for its 14
action,” and whether there is a “rational connection between the facts found and 15
the choice made,” Nat. Res. Def. Council v. FAA, 564 F.3d 549, 555 (2d Cir. 2009) 16
(quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. 17
Co., 463 U.S. 29, 43 (1983)). We apply the same analysis to the Services’ 18

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biological opinion. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997); Defs. of 1
Wildlife v. U.S. Dep’t of the Navy, 733 F.3d 1106, 1114–15 (11th Cir. 2013). 2
We also review the Rule for compliance with the procedural requirements 3
of the APA. See 5 U.S.C. § 553(b), (c). In particular, we will remand for further 4
proceedings if an agency fails to comply with the APA’s notice‐and‐comment 5
provisions. Riverkeeper II, 475 F.3d at 96. 6
With these general principles in mind, we consider first the several 7
challenges raised by the Environmental Petitioners and then turn to the 8
arguments raised by UWAG, API, and the CWIS Coalition. 9
3. The Environmental Petitioners 10
We address the Environmental Petitioners’ broader CWA‐based 11
arguments followed by their arguments based on the APA and the ESA. 12
A. Environmental Petitioners’ CWA‐Based Challenges9 13
i. Entrainment Requirements 14
The EPA recognized that closed‐cycle cooling is the most effective system 15
for minimizing entrainment. 79 Fed. Reg. at 48,342. But the EPA also concluded 16
9 As a preliminary matter, we deny the Environmental Petitioners’ motion to compel the
Respondents to amend the certified list of documents comprising the administrative

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that significant barriers at many existing facilities prevent retrofitting to 1
incorporate closed‐cycle cooling systems. Id. at 48,340–42. The EPA therefore 2
decided that closed‐cycle cooling is not the best technology actually “available” 3
on a national basis and declined to mandate it for all facilities as the required 4
entrainment technology. Id. The EPA also found that there is no alternative 5
high‐ or intermediate‐performing technology that is nationally available to 6
minimize entrainment. Id. at 48,330. For that reason, the EPA established that a 7
Director should determine the BTA to limit entrainment on a site‐specific basis 8
during the NPDES process, considering the factors identified in the Rule and 9
information that facilities are required to provide under 40 C.F.R. § 122.21(r). Id. 10
at 48,351–52; see also 40 C.F.R. §§ 122.43(a), 125.98(f). As contemplated by the 11
Rule, the Director determines the BTA (which may be closed‐cycle cooling) at 12
record to include certain specified additional documents. The Environmental
Petitioners have narrowed the scope of this motion to encompass just seven documents,
all of which are draft documents produced by the Services during consultation with the
EPA. The Respondents have produced a privilege log that adequately describes the
nature of the seven requested documents and their rationale for classifying those
documents as deliberative and therefore privileged. See Fed. R. Civ. P. 26(b)(5)(A)(ii).
We see nothing in the privilege log that would disturb the “presumption of regularity”
afforded to the agencies’ certified record. Citizens to Pres. Overton Park, Inc. v. Volpe,
401 U.S. 402, 415 (1971).

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each facility and ensures implementation of that technology through NPDES 1
permit conditions. 2
The Environmental Petitioners argue that, in promulgating these 3
entrainment provisions, the EPA violated CWA section 316(b) in four ways. 4
First, the Environmental Petitioners argue that section 316(b) requires the 5
EPA to establish a single, national, categorical entrainment standard. That might 6
be quite advantageous, but we have already held that “the EPA’s decision to 7
regulate some aspects of [CWISs] on a site‐specific basis is within its authority 8
and reasonable.” Riverkeeper I, 358 F.3d at 198; see id. at 203 (“The [CWA] does 9
not forbid the EPA from addressing certain environmental problems on a case‐ 10
by‐case basis where categorical regulation is not technologically feasible . . . .”). 11
As we explained in Riverkeeper I, section 316(b) “merely directs the EPA to 12
require every [CWIS] subject to regulation . . . to reflect the ‘best technology 13
available.’” Id. at 203. “It does not compel the EPA to regulate either by one 14
overarching regulation . . . or on a case‐by‐case basis . . . .” Id.; see also Nat’l 15
Wildlife Fed’n v. EPA, 286 F.3d 554, 566–67 (D.C. Cir. 2002) (upholding the EPA’s 16
decision to regulate color pollution on a case‐by‐case basis during the NPDES 17
permitting process where the EPA found that the impact of color pollutants 18

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27
depended on “highly site‐specific conditions” (quotation marks omitted)); Maier, 1
P.E. v. EPA, 114 F.3d 1032, 1043 (10th Cir. 1997). 10 Here, the EPA found that a 2
“one‐size‐fits‐all” approach to entrainment was infeasible. 79 Fed. Reg. at 48,342. 3
In light of this finding and our precedent, we conclude that the EPA acted both 4
reasonably and within its authority in adopting a case‐by‐case approach to 5
entrainment standards. We also reject the Environmental Petitioners’ related 6
argument that the EPA inappropriately abdicated its statutory obligation to set 7
standards for entrainment reduction. 8
Second, the Environmental Petitioners argue that the EPA acted arbitrarily 9
and capriciously when it concluded that closed‐cycle cooling is not nationally 10
available. We are not persuaded. The EPA identified three factors that, in 11
combination, render closed‐cycle cooling unavailable on a national scale: first, 12
about 25 percent of facilities have constraints on land availability (e.g., limited 13
physical space, restrictive zoning requirements) that would prevent them from 14
10 The Environmental Petitioners’ reliance on E.I. du Pont de Nemours & Co. v. Train,
430 U.S. 112 (1977), is misplaced. There, the Supreme Court held only that section 301
of the CWA does not require the EPA to establish effluent limitations on a site‐specific
basis, and that the EPA has the authority to issue regulations establishing effluent
limitations for classes of power plants. Id. at 128, 133–36; see Entergy, 556 U.S. at 223
(“[U]nder Chevron, that an agency is not required to do so does not mean that an
agency is not permitted to do so.”).

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retrofitting; second, retrofitting would increase the emission of various 1
pollutants at facilities because of the energy required to retrofit; and third, due to 2
the time required to design and construct closed‐cycle systems, facilities nearing 3
the end of their useful lives would not see a net benefit in entrainment reduction 4
resulting from a retrofit. 79 Fed. Reg. at 48,341–42. As to the first factor, the 5
Environmental Petitioners argue that the 25 percent land availability figure is 6
unsupported by the administrative record. Although the EPA acknowledged 7
that its data was inadequate to predict with certainty the number of facilities 8
facing space constraints, we decide only whether the data available provided the 9
EPA an adequate basis for its decision. See Miami‐Dade Cty. v. EPA, 529 F.3d 10
1049, 1064–65 (11th Cir. 2008); Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004– 11
05 (D.C. Cir. 1997). Here, the EPA rationally concluded, based on the studies and 12
surveys in the administrative record, that geographic limitations would curtail 13
the availability of closed‐cycle cooling at a significant number of facilities. With 14
respect to the second and third factors, the Environmental Petitioners argue that 15
air pollution and limited remaining useful life do not affect “availability,” which 16
they define as “technologically feasible.” Perhaps, but the EPA’s different 17
interpretation of “availability” is rational. See Riverkeeper I, 358 F.3d at 194–96 18

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(concluding that the EPA acted rationally in determining that dry cooling was 1
not nationally available due to its high cost, air emissions resulting from 2
increased energy use, and other factors). The Environmental Petitioners also 3
fault the EPA for relying in part on a “cost‐benefit concern,” Envtl. Br. 54, even 4
though, in the Rule’s preamble, the EPA disclaimed that costs were a 5
“dispositive factor,” 79 Fed. Reg. at 48,340. Yet even assuming that the EPA 6
compared costs to benefits (direct and indirect) in deciding whether to designate 7
closed‐cycle cooling as the BTA, the Environmental Petitioners have not 8
explained why the EPA could not do so to inform its analysis of availability. See 9
Entergy, 556 U.S. at 218–19 (BTA may “describe the technology that most 10
efficiently produces some good” and may “involve a consideration of the 11
benefits derived from reductions [in adverse environmental impact] and the 12
costs of achieving them”). Indeed, agencies are ordinarily required to consider 13
the relative costs and benefits of a regulation as part of reasoned decisionmaking. 14
See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (“Consideration of cost reflects 15
the understanding that reasonable regulation ordinarily requires paying 16
attention to the advantages and the disadvantages of agency decisions.”). For all 17
of these reasons, we reject the Environmental Petitioners’ second argument 18

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30
under the CWA and hold that the EPA did not act arbitrarily and capriciously in 1
determining that the combination of three “availability” factors justified rejecting 2
a national standard based on closed‐cycle cooling. 11 3
The Environmental Petitioners’ third argument under the CWA is that the 4
Rule fails adequately to define “best technology available,” leaving Directors 5
with “unfettered discretion” to establish entrainment requirements at individual 6
facilities. Envtl. Br. 62 (quoting Riverkeeper II, 475 F.3d at 111 n.22). We do not 7
think the Rule gives Directors excessive discretion. As the Environmental 8
Petitioners acknowledge, the Rule lists eleven factors that a Director may 9
consider when establishing a site‐specific entrainment standard, five of which the 10
Director must consider. 40 C.F.R. § 125.98(f)(2)–(3). The Environmental 11
Petitioners nonetheless argue that because the Rule provides no guidance on 12
how these factors should be weighed, Directors may “reach and justify any and 13
all decisions on any grounds that they please.” Envtl. Br. 64–65. Not so. After a 14
11 We also reject the Environmental Petitioners’ argument that the EPA could have
addressed its availability concerns by creating a variance procedure that exempts
certain facilities from the Rule’s standards. The existence of other permissible
approaches to regulation does not render the EPA’s chosen approach irrational. See
Entergy, 556 U.S. at 218. Moreover, the EPA expressly considered a variance procedure
and concluded that, due to the “complex interaction” of several factors limiting the
availability of closed‐cycle cooling, a variance procedure would be less precise than site‐
specific balancing of all relevant factors. See 79 Fed. Reg. at 48,343.

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31
Director considers the required and optional factors set forth in the Rule, which 1
themselves limit her discretion, she must explain to the EPA in writing why she 2
rejected any better‐performing technologies. 40 C.F.R. § 125.98(f)(1). The EPA 3
may then review the Director’s explanation and object if it disagrees with the 4
Director’s determination of the BTA. Id. § 123.44; 79 Fed. Reg. at 48,383. This 5
scheme hardly leaves the Director’s determination of the BTA “virtually 6
unreviewable.” Envtl. Br. 66. 7
Finally, the Environmental Petitioners argue that the EPA exceeded its 8
statutory authority by allowing Directors to base their BTA determinations in 9
part on a cost‐benefit analysis. See 40 C.F.R. § 125.98(f)(2)(v), (f)(4). As noted 10
above, the Supreme Court held in Entergy that the EPA may weigh costs against 11
benefits when setting BTA standards under section 316(b). 556 U.S. at 218–20, 12
226. The Environmental Petitioners acknowledge Entergy but insist that the 13
Court “did not give its blessing to all forms of cost‐benefit analysis,” endorsing it 14
only where necessary to prevent “extreme disparities” between costs and 15
benefits. Envtl. Br. 66, 70. We do not read Entergy so narrowly. Although the 16
Court in Entergy noted that the EPA, in the Phase II rule, had “sought only to 17
avoid extreme disparities between costs and benefits,” 556 U.S. at 224, it held that 18

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the EPA may generally “rel[y] on cost‐benefit analysis” in promulgating 1
standards pursuant to section 316(b), id. at 218–22, 226, and emphasized that 2
section 316(b)’s silence on the permissibility of cost‐benefit analysis “convey[s] 3
nothing more than a refusal to tie the agency’s hands as to whether cost‐benefit 4
analysis should be used, and if so to what degree,” id. at 222. And although the 5
Environmental Petitioners argue that the Supreme Court did not explicitly 6
approve the delegation of authority to consider costs and benefits to individual 7
Directors, they fail to explain why Directors would be precluded from 8
considering the same factors the EPA could have considered had it chosen to 9
establish a national, categorical standard. 10
For these reasons, we reject the Environmental Petitioners’ CWA‐based 11
challenges to the Rule’s entrainment requirements. 12
ii. Impingement Requirements 13
The EPA also declined to adopt closed‐cycle cooling as the BTA to 14
minimize impingement mortality at existing facilities, largely for the same 15
reasons it identified with respect to entrainment. See 79 Fed. Reg. at 48,325, 16
48,343. Instead, the EPA determined that “modified traveling screens with a 17

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33
fish‐friendly fish return” constitute the BTA.12 Id. at 48,329, 48,337. The EPA 1
projected that these screens will achieve, on average, a 76 percent survival rate 2
(in other words, reduce impingement mortality to no more than 24 percent). Id. 3
at 48,337 (citing 40 C.F.R. § 125.94(c)(7)). Under the Rule’s impingement 4
provisions, a regulated facility may choose from seven compliance options that 5
reduce impingement mortality, including any type of “modified traveling 6
screen” that meets the Rule’s definition and that the facility demonstrates to the 7
Director is the BTA at that particular site. See 40 C.F.R. § 125.94(c)(1)–(7); 79 Fed. 8
Reg. at 48,321. The Environmental Petitioners argue primarily that these 9
impingement provisions violate the CWA in three ways. 10
First, the Environmental Petitioners argue that closed‐cycle cooling, not 11
modified traveling screens, is the BTA for minimizing impingement mortality. 12
But as with the Rule’s entrainment standards, the EPA rationally concluded that 13
closed‐cycle cooling is not nationally available. Therefore, it was neither 14
arbitrary nor capricious for it to reject closed‐cycle cooling as the BTA to reduce 15
impingement mortality nationwide. 16
12 A traveling screen is a mesh screen that prevents debris from entering an intake
system. A modified traveling screen is a traveling screen that incorporates certain
features to protect aquatic organisms, such as a gentle vacuum that returns fish to the
water.

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34
Second, the Environmental Petitioners contend that even if the EPA’s BTA 1
determination were lawful, the Rule violates the CWA because it fails to ensure 2
that regulated facilities will meet the 76 percent survival rate standard set forth 3
in 40 C.F.R. § 125.94(c)(7). Specifically, they argue that two of the seven options 4
for reducing impingement mortality, 40 C.F.R. § 125.94(c)(6) and (c)(5), are 5
“loopholes” that allow regulated facilities to avoid complying with the 76 6
percent standard and that “impose[] no standard at all.” Envtl. Br. 75–76. One of 7
these two options allows a facility to “operate a system of technologies, 8
management practices, and operational measures” that “the Director determines 9
is the [BTA] for impingement reduction” at that particular site. 40 C.F.R. 10
§ 125.94(c)(6). To avail itself of this option, a facility must submit an 11
“impingement technology performance optimization study” under 40 C.F.R. 12
§ 122.21(r)(6) that includes at least two years of biological data and describes the 13
technologies that will be used to minimize impingement mortality. Id. 14
§ 125.94(c)(6). The Director’s determination will then “be informed” by 15
comparing the study results to the 76 percent standard. Id. Although the 16
Environmental Petitioners complain that this language does not technically 17
require compliance with the 76 percent standard, we conclude that the EPA acted 18

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35
rationally in affording Directors some discretion to determine whether a 1
particular facility’s impingement reduction efforts are adequate, especially 2
because, as the EPA persuasively explained, the overall impingement reduction 3
at a particular site cannot always be measured strictly by survival or mortality 4
percentages. See 79 Fed. Reg. at 48,365. 5
The other compliance option challenged by the Environmental Petitioners 6
allows facilities to operate a “modified traveling screen” that meets the definition 7
set forth in 40 C.F.R. § 125.92(s) and “is the [BTA] for impingement reduction at 8
the site.” 40 C.F.R. § 125.94(c)(5) (emphasis added). Relying on Riverkeeper II, 9
the Environmental Petitioners argue that this provision does not require facilities 10
to meet the 76 percent standard or even require a Director’s decision to be 11
“informed” by that standard, allowing facilities to choose a type of modified 12
traveling screen that does not achieve the 76 percent survival rate. But 13
Riverkeeper II does not support the Environmental Petitioners’ position. There 14
we held that the EPA may set national performance standards as ranges so long 15
as it “require[s] facilities to minimize the adverse environmental impacts 16
attributable to their [CWISs] to the best degree they can.” Riverkeeper II, 475 17
F.3d at 105 (emphasis added); see also id. at 106 (EPA should “require facilities to 18

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36
choose technologies that produce the greatest reduction possible” within the 1
ranges). That is essentially what the EPA has done here. A facility may choose 2
the modified traveling screen option only when “the Director determines [that it] 3
is the [BTA] for impingement reduction at the site,” that is, only when a facility 4
shows that “the technology is or will be optimized to minimize impingement 5
mortality of all non‐fragile species.” 40 C.F.R. § 125.94(c)(5); see also 79 Fed. Reg. 6
at 48,325, 48,346. Further, the Director must include in the permit “verifiable and 7
enforceable . . . conditions that ensure the technology will perform as 8
demonstrated.” 40 C.F.R. § 125.94(c)(5); 79 Fed. Reg. at 48,329. Under certain 9
circumstances, the Director can also require additional protective measures that 10
must be incorporated into the permit. See 40 C.F.R. § 125.94(c)(8)–(9), (g). This 11
process adequately ensures that a modified traveling screen at a particular site is 12
in fact the BTA for reducing impingement mortality at that site. 13
The third way in which these impingement provisions violate the CWA, 14
the Environmental Petitioners argue, is that the EPA arbitrarily excluded fragile 15
species from the calculation of impingement mortality. Under 40 C.F.R. 16
§ 125.94(c)(7), a facility meets the impingement mortality standard so long as no 17
more than 24 percent of “non‐fragile species” are killed. The EPA has explained, 18

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37
though, that it excluded fragile species because its data showed that the mortality 1
of those species depends largely on natural conditions, not technology 2
performance. Including fragile species in the mortality calculation would 3
therefore mask the true effectiveness of the technology and render it impossible 4
to identify a BTA to minimize impingement. The EPA’s explanation is 5
adequately supported by the administrative record, and the Environmental 6
Petitioners point to no evidence suggesting that it is irrational. 7
B. Environmental Petitioners’ APA‐Based Challenge 8
We turn to the Environmental Petitioners’ challenge under the APA to the 9
definition of “new unit.” The EPA determined that “new units” at existing 10
facilities, like the “new facilities” covered by the Phase I rule, 40 C.F.R. § 125.83 11
(defining “new facility”), must meet performance standards commensurate with 12
those that may be attained by closed‐cycle cooling, id. § 125.94(e)(1)–(2). It 13
defined “new unit” to exclude rebuilt, repowered, and replacement units at 14
existing facilities, such that only “new stand‐alone” units added after October 14, 15
2014 are subject to the more stringent closed‐cycle standard. Id. § 125.92(u) 16
(quotation marks omitted); see 79 Fed. Reg. at 48,311. The Environmental 17
Petitioners argue that there is no rational connection between the facts found by 18

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38
the EPA and its decision to exclude rebuilt, repowered, and replacement units 1
from the definition of “new unit.” We disagree. 2
Responding to comments on the proposed rule, the EPA explained that it 3
excluded rebuilt units for two primary reasons: first, including rebuilt units 4
would discourage manufacturers from improving their facilities; and 5
second, many activities that could be considered “rebuilding” or “repowering” 6
would raise the same hurdles that led the EPA to conclude that closed‐cycle 7
cooling was not nationally available. The Rule’s preamble reflects the same 8
concerns. See 79 Fed. Reg. at 48,311, 48,339. The EPA thus “articulate[d] a 9
satisfactory explanation for” limiting the definition of “new unit,” and there is a 10
“rational connection between the facts found and the choice made.” State Farm, 11
463 U.S. at 43 (quotation marks omitted). 12
The Environmental Petitioners stress that the EPA narrowed the definition 13
of “new unit” that appeared in the proposed rule. But an agency may modify a 14
rule through the notice‐and‐comment process so long as the agency’s 15
modification is rational and “the agency’s path may reasonably be discerned.” 16
Id. (quotation marks omitted); see also Ne. Md. Waste Disposal Auth. v. EPA, 17
358 F.3d 936, 951 (D.C. Cir. 2004) (“Agencies[] are free—indeed, they are 18

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39
encouraged—to modify proposed rules as a result of the comments they 1
receive.”). Here, the EPA explained why it ultimately defined “new unit” in the 2
manner it did after the notice‐and‐comment period, and we discern no “clear 3
error of judgment” in its explanation. See Nat. Res. Def. Council, Inc. v. 4
Muszynski, 268 F.3d 91, 97 (2d Cir. 2001) (quotation marks omitted). 5
Accordingly, we decline to vacate this portion of the Rule. 6
C. Environmental Petitioners’ ESA‐Based Challenges 7
The Environmental Petitioners next challenge various elements of the 8
section 7 consultation process—relating to the Services’ biological opinion and 9
ITS—as inconsistent with the ESA and the Services’ own implementing 10
regulations. 11
i. The Biological Opinion 12
The Environmental Petitioners argue that the Services’ biological opinion 13
violates section 7 of the ESA by (1) deferring analysis of the Rule’s impact on 14
jeopardy to later review by individual Directors; (2) failing to use the best 15
scientific and commercial data available to evaluate thermal impacts of the Rule; 16
(3) failing to analyze the Rule’s effect on species under the FWS’s jurisdiction; 17
and (4) concluding that the Rule is unlikely to jeopardize ESA‐listed species or 18

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40
adversely modify their critical habitat. We reject each of these arguments, most 1
of which are really challenges to the Services’ “programmatic” approach to the 2
biological opinion. 3
a. Jeopardy Analysis 4
As stated above, section 7 of the ESA requires federal agencies, in 5
consultation with the Services, to “insure that any action authorized, funded, or 6
carried out by” the agency “is not likely to jeopardize the continued existence of 7
any endangered species or threatened species” or destroy or adversely modify 8
any critical habitat designated for such species. 16 U.S.C. § 1536(a)(2). In 9
evaluating the Rule, the Services determined that a “programmatic,” or process‐ 10
based, approach was appropriate. Bio. Op. 36. Instead of site‐ and species‐ 11
specific analyses, this approach involves “examin[ing] whether and to what 12
degree [the] EPA has structured” the Rule to satisfy section 7’s mandate. Id. 13
Applying this approach, the Services concluded that the Rule was unlikely to 14
jeopardize listed species because it “built in a sufficient process” to avoid 15
jeopardy (e.g., giving the Services a meaningful opportunity to review permit 16
applications and to recommend control measures and requirements for 17
monitoring and reporting). Id. at 72. As this “technical assistance process” was 18

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41
critical to the Services’ no‐jeopardy conclusion, we briefly describe its key 1
features below. 2
The Rule contemplates that regulated facilities must include in their permit 3
applications information about the presence of ESA‐listed species. 40 C.F.R. 4
§ 125.95(f). The Director who reviews the application then sends it to the 5
Services for a sixty‐day review period, after which the Director must publish any 6
information or recommendations the Services provide. Id. § 125.98(h); 79 Fed. 7
Reg. at 48,382. In those jurisdictions where a Director administers the permitting 8
process, the Services may raise concerns with the EPA, which can then 9
coordinate with the Director to comply with the CWA and the ESA. 10
Alternatively, the EPA may federalize the permit and initiate formal consultation 11
with the Services pursuant to section 7 of the ESA.13 See 40 C.F.R. § 123.44; 79 12
Fed. Reg. at 48,381–83. 13
The Environmental Petitioners object, first, that “there is no formal 14
assurance that such a process will, in fact, be followed.” Envtl. Br. 98. Although 15
13 If the EPA determines, with the benefit of the Services’ expertise, that the terms of a
permit fail to comply with the CWA or the ESA, the EPA must either coordinate with
the Director to achieve such compliance or, failing that, federalize the permit and
initiate formal consultation with the Services pursuant to section 7 of the ESA. See 40
C.F.R. § 123.44; 79 Fed. Reg. at 48,381–83.

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42
the Rule explicitly requires Directors to send permit applications and draft 1
permits to the Services, 40 C.F.R. § 125.98(h), the Rule’s preamble, they point out, 2
characterizes the Services’ role as reflecting the EPA’s “expectations,” see, e.g., 79 3
Fed. Reg. at 48,381 (“EPA expects that the Services will respond within 60 days 4
and provide to the Director . . . any measures that the Services recommend . . . for 5
the protection of listed species . . . .” (emphasis added)). True, but the Rule itself 6
is properly interpreted to require the Services’ participation in the technical 7
assistance process because that process is part of the proposed action the Services 8
approved pursuant to formal consultation. See Ctr. for Bio. Diversity v. FWS, 807 9
F.3d 1031, 1046 & n.12 (9th Cir. 2015) (proposed conservation measures in 10
challenged memorandum of agreement were enforceable because they were 11
“included as part of the project consulted upon” (quotation marks omitted)); see 12
also FWS & NMFS, Endangered Species Consultation Handbook: Procedures for 13
Conducting Consultation and Conference Activities Under Section 7 of the 14
Endangered Species Act at 4‐19 (1998) (“Consultation Handbook”) (“Since 15
conservation measures are part of the proposed action, their implementation is 16

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43
required under the terms of the consultation.”). 14 We do not presume that an 1
agency will act in accordance with “expectations” set out in a governing 2
regulation. Rather, we reach the much more limited conclusion that where, as 3
here, the Services conditioned their no‐jeopardy finding on compliance with 4
certain procedures and represented to this Court at oral argument that they have 5
a “commitment” to those procedures, Oral Arg. Tr. 33:11, the Rule obligates the 6
Services to abide by those procedures. If the Services fail to honor the obligations 7
specified in the Rule’s technical assistance provisions, the Environmental 8
Petitioners may challenge individual permits pursuant to the ESA’s citizen‐suit 9
provisions once those permits issue. See 16 U.S.C. § 1540(g)(1)(A). 10
The Environmental Petitioners also contend that even if the technical 11
assistance process is binding, the Services nonetheless contravened the ESA and 12
its implementing regulations by deferring analysis of the Rule’s impact on 13
jeopardy to the permit‐specific review stage. According to the Environmental 14
Petitioners, the Services improperly disregarded their obligation to “consider all 15
phases” of the agency action in their initial biological opinion, as the Ninth 16
14 Moreover, formal consultation can be reinitiated if any of “the assumptions about the
[technical assistance] process . . . are not being followed.” Bio. Op. 78–79.

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Circuit appears to require. Envtl. Br. 100 (citing Conner v. Burford, 848 F.2d 1
1441, 1453–54 (9th Cir. 1988)). But “the rule that biological opinions must be 2
coextensive in scope with the entire action or else violate the ESA is nowhere to 3
be found in the language of the ESA,” Defs. of Wildlife, 733 F.3d at 1121 4
(quotation marks omitted), and, like the Eleventh Circuit, we decline to adopt 5
such a rule here.15 Nothing in the ESA requires that the Services assess every 6
future “phase” of an agency action on a site‐specific or species‐specific basis. 7
Therefore, properly construing the agency action as the promulgation of CWA 8
section 316(b) standards, the Services discharged their duty to assess “the effects 9
of the action as a whole” in their biological opinion. 50 C.F.R. § 402.14(c). 10
15 In any event, the Services’ biological opinion would satisfy even the Ninth Circuit’s
purported rule. The “agency action” subject to consultation here was the EPA’s
promulgation of the Rule, not the subsequent implementation of the Rule by State
Directors. See 50 C.F.R. § 402.03 (section 7 consultation requirement applies only to
“actions in which there is discretionary Federal involvement or control”); Nat’l Ass’n of
Home Builders, 551 U.S. at 650, 653 n.4 (“If [permitting] authority is transferred [from
the EPA to a State], then state officials—not the federal EPA—have the primary
responsibility for reviewing and approving NPDES discharge permits, albeit with
continuing EPA oversight.”). To the extent future permits affect ESA‐listed species,
those effects are not “phases” of the Rule, Envtl. Br. 100, but, as the Services concluded,
“indirect effects” of the Rule, 50 C.F.R. §§ 402.02, 402.14(g)(3).
For similar reasons, we reject the Environmental Petitioners’ complaint that the
technical assistance process “is not the equivalent of” section 7 consultation. Envtl. Br.
106. In those jurisdictions where the State administers the NPDES program, the
Services have no obligation to conduct section 7 consultation or its “equivalent” on
individual permits because the issuance of such a permit is not a federal action.

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b. Thermal Impacts 1
The Services similarly deferred consideration of how thermal pollution 2
resulting from the operation of CWISs would affect aquatic ecosystems. They 3
explained in the biological opinion that “[t]o date, [the] EPA has not been able to 4
reliably estimate the impact of thermal discharge associated with CWIS 5
operations on federally‐listed species or designated critical habitat.” Bio. Op. 51. 6
Instead of relying on available data, the Services thought it enough that the EPA 7
committed to overseeing the technical assistance process, “which will allow [the] 8
EPA to more reliably estimate the . . . stressors that are likely to be produced as a 9
direct or indirect result of thermal discharge activities” at individual facilities. 10
Id. The Environmental Petitioners argue that the Services thus shirked their 11
statutory responsibility to consider the “best scientific and commercial data 12
available.” 16 U.S.C. § 1536(a)(2). They claim that available modeling techniques 13
would have allowed the Services to estimate thermal pollution in the biological 14
opinion rather than defer analysis to the permitting process. 15
As an initial matter, we disagree with the Environmental Petitioners that 16
the Services failed to “seek out and consider” existing scientific data on thermal 17
pollution. Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1265 (11th 18

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Cir. 2009); see Bio. Op. App’x C, at 41 (citing a report on thermal stressors the 1
Environmental Petitioners suggest was ignored). Rather, evidently aware of this 2
data and the risk of environmental harm from thermal pollution, the Services 3
nonetheless agreed with the EPA that “[t]he exact nature and magnitude of . . . 4
indirect effects [including thermal pollution] would be species‐specific based on 5
the relative size and amount of overlap of habitat with facility and CWIS 6
locations . . . and many other factors.” Bio. Op. 42 (quotation marks omitted). 7
The more central question, then, is not whether the Services considered 8
available data, but whether they were authorized to determine that there was no 9
“best . . . data available” that would enable assessment of thermal pollution on a 10
national scale, 16 U.S.C. § 1536(a)(2), and therefore to defer consideration of 11
thermal impacts to the site‐specific permitting process. 12
We conclude that they were so authorized. We find support for our 13
conclusion in the Eleventh Circuit’s 2013 decision in Defenders of Wildlife, 733 14
F.3d 1106. Petitioners there challenged a biological opinion issued by the NMFS 15
that approved the installation of an “Undersea Warfare Training Range” and 16
allegedly deferred any consideration of the effects of operations expected to 17
occur on that range until those operations were actually authorized. Id. at 1113– 18

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14, 1118. The Eleventh Circuit concluded both that the NMFS adequately 1
considered the effects of future operations in its initial biological opinion and 2
that the NMFS was authorized to reconsider those effects in a new biological 3
opinion “closer in time to when [the] operations will actually commence.” Id. at 4
1122. 5
We agree with the Eleventh Circuit that, as long as the initial stage of an 6
agency’s project “does not foreclose the adoption of . . . reasonable and prudent 7
measures [to avoid jeopardy], and as long as the conclusions of the biological 8
opinion are not arbitrary, a staged structuring of consultation may comply fully 9
with Section 7’s mandate.” Id. Far from being arbitrary, the Services’ conclusion 10
here that a categorical assessment of thermal impacts was infeasible reflects a 11
“scientific determination deserving deference,” Miccosukee Tribe, 566 F.3d at 12
1265, and nothing else compels us to order that consultation be carried out in 13
some other manner, see Defs. of Wildlife, 733 F.3d at 1121–22. We therefore hold 14
that the Services did not violate their statutory obligations when they decided to 15
solicit more data (during the permitting process) in order to assess thermal 16
impacts on a site‐specific basis. 17

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c. Species Within the FWS’s Jurisdiction 1
The Environmental Petitioners next argue that the FWS failed adequately 2
to analyze the Rule’s effect on species within its jurisdiction before making a no‐ 3
jeopardy determination. Unlike the NMFS, which provided detailed appendices 4
containing information on species under its jurisdiction, the FWS provided one 5
section in the biological opinion that, according to the Environmental Petitioners, 6
is “cursory to the point of meaninglessness” and fails to satisfy the FWS’s duty 7
under 16 U.S.C. § 1536(b)(3)(A) to “detail[] how the agency action affects . . . 8
species or [their] critical habitat.” Envtl. Br. 131–32. As the Environmental 9
Petitioners acknowledge, however, a biological opinion need only include the 10
following elements: “the current status of the species, the environmental 11
baseline, the effects of the proposed action, and the cumulative effects of the 12
proposed action.” Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1063 (9th 13
Cir. 2004) (citing 50 C.F.R. § 402.14(g)(2)–(3)), superseded on other grounds by 14
Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. 15
Reg. 7214 (Feb. 11, 2016) (codified at 50 C.F.R. § 402.02). Here, the FWS provided 16
the current status of the species and the environmental baseline but, relying on 17
the protections of the technical assistance process, deferred evaluation of the 18

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Rule’s effects on the species within its jurisdiction. At bottom, then, the 1
Environmental Petitioners’ argument is yet another challenge to the Services’ 2
programmatic approach, and we reject it for the same reasons stated above with 3
respect to the Services’ analysis of thermal impacts. 4
d. No‐Jeopardy Conclusion 5
Having resolved the Environmental Petitioners’ various challenges to the 6
Services’ programmatic approach, we now turn to their attack on the Services’ 7
substantive conclusion that the Rule, including the protections of the technical 8
assistance process, is “not likely to jeopardize the continued existence of ESA‐ 9
listed species” or destroy or adversely modify their critical habitat. Bio. Op. 71. 10
The Environmental Petitioners argue that the administrative record does not 11
support the Services’ conclusion because the Services failed to consider four 12
factors: the current jeopardy of numerous listed species, the impact on listed 13
species during the Rule’s indefinite implementation period, the Rule’s impact on 14
species recovery (as opposed to species survival), and the discretionary nature of 15
the technical assistance process. We address each of these factors in turn. 16
First, the Environmental Petitioners fault the Services for reaching a no‐ 17
jeopardy conclusion after they identified several species that are currently or 18

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nearly in jeopardy. They argue that the Services may not sanction agency action 1
that causes any additional harm and thus “deepens” jeopardy. Envtl. Br. 110 2
(quoting Nat’l Wildlife Fed’n v. NMFS, 524 F.3d 917, 930 (9th Cir. 2008)). But the 3
Services made no formal finding that any species are, as the Environmental 4
Petitioners contend, “currently in jeopardy or nearly so.” Envtl. Br. 110. The 5
NMFS found only that continued operation of CWISs under the Rule would have 6
adverse impacts on species that are threatened or whose status is “precarious.” 7
See, e.g., Bio. Op. App’x B, at 15; Bio. Op. App’x C, at 53. Were this finding 8
enough to foreclose a no‐jeopardy conclusion, even the Environmental 9
Petitioners’ preferred solution of mandating closed‐cycle cooling—which, after 10
all, would not eliminate impingement and entrainment of threatened species by 11
CWISs—would fail ESA consultation. 12
Second, the Environmental Petitioners claim that the biological opinion 13
“ignores the harm that will occur during the significant time lag . . . between the 14
effective date of the Rule and implementation of any protective measures for 15
listed species at specific facilities.” Envtl. Br. 115. This argument rests on a 16
misunderstanding of the actions subject to section 7 consultation. Section 7 tasks 17
the Services with analyzing the effects of the EPA’s proposed action. “Take” 18

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resulting from CWIS operations at facilities operating under permits issued prior 1
to the Rule, see 16 U.S.C. § 1538(a)(1)(B), (G), and which the EPA has no 2
authority to modify, is not an “effect” of the Rule and is therefore not subject to 3
analysis by the Services.16 To the extent the Environmental Petitioners object to 4
the “significant lag time in the Rule’s implementation,” Envtl. Reply Br. 82, that 5
lag time, without more, is not arbitrary or capricious, especially where, as here, 6
the EPA reasonably explained why it may take three to fourteen years to fully 7
implement the Rule, see 79 Fed. Reg. at 48,358–60. 8
Third, the Environmental Petitioners argue that the Services failed to 9
consider whether the Rule would hinder the recovery of listed species. As part 10
of their jeopardy analysis, the Services were required to consider the Rule’s 11
impact on species recovery, in addition to species survival. See Nat’l Wildlife 12
Fed’n, 524 F.3d at 932. But an independent analysis of recovery is not required, 13
see Rock Creek All. v. FWS, 663 F.3d 439, 443 (9th Cir. 2011), in part because it is 14
hard to “draw clear‐cut distinctions” between survival and recovery, 51 Fed. 15
16 The Rule makes clear that it does not independently authorize take. 40 C.F.R.
§§ 125.90, 125.94(c)(11), 125.98(b)(1), 125.98(j); see 79 Fed. Reg. at 48,382. If a facility
engages in unlawful take before the Rule is fully implemented, the Environmental
Petitioners may file an action against that facility to enjoin the take. See 16 U.S.C.
§ 1540(g).

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Reg. 19,926, 19,934 (June 3, 1986). Nevertheless, the Services here recognized the 1
need to “assess[] whether the action would appreciably reduce the likelihood of 2
recovery of listed species,” Bio. Op. 17, and concluded that the Rule “has built in 3
a sufficient [technical assistance] process to insure that it is not likely to result in 4
an appreciable reduction in the likelihood of both the survival and recovery of 5
any listed species,” id. at 72 (emphasis added). The Services therefore did not 6
“avoid . . . consideration of recovery impacts,” Nat’l Wildlife Fed’n, 524 F.3d at 7
932, but rather concluded that such impacts, like survival impacts, should be 8
assessed on a site‐specific basis—an approach that complies with the ESA. 9
Finally, the Environmental Petitioners maintain that even if the Services 10
can rely on a rule’s process‐based protections rather than analyze its substantive 11
impacts, this Rule’s technical assistance process cannot support a no‐jeopardy 12
finding because it is “wholly voluntary” and “not designed to provide 13
meaningful species protection,” as it fails to promote the use of closed‐cycle 14
cooling. Envtl. Br. 120–21. We reject this argument because, as explained, the 15
technical assistance process involves a binding commitment by the Services, and 16
the EPA acted reasonably in declining to mandate standards based on closed‐ 17
cycle cooling. 18

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ii. The Incidental Take Statement 1
In their final challenge, the Environmental Petitioners contend that the 2
Services failed to comply with the provisions of the ESA that specify 3
requirements for ITSs. If a consulting Service concludes after formal consultation 4
that the incidental take of listed species will not cause jeopardy, that Service 5
“shall” provide the acting agency with an ITS that: 6
(i) specifies the impact of such incidental taking on the species, 7
(ii) specifies those reasonable and prudent measures that the 8
[Service] considers necessary or appropriate to minimize such 9
impact, 10
(iii) in the case of marine mammals, specifies those measures that 11
are necessary to comply with section 1371(a)(5) of [the Marine 12
Mammal Protection Act] with regard to such taking, and 13
(iv) sets forth the terms and conditions (including, but not limited 14
to, reporting requirements) that must be complied with by the 15
Federal agency . . . to implement the measures specified under 16
clauses (ii) and (iii). 17
18
16 U.S.C. § 1536(b)(4). The Environmental Petitioners assert that the ITS issued 19
by the Services here is deficient in all four respects. 20
The Services’ ITS fails to specify the impact of the take, the Environmental 21
Petitioners argue, because it does not numerically quantify the Rule’s anticipated 22
take. It is true that Congress preferred expressing take in numerical form, so as 23
to establish a “trigger” for the re‐initiation of consultation. See Endangered 24

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Species Act, H.R. Rep. No. 97‐567, at 27 (1982); Ariz. Cattle Growers’ Ass’n v. 1
FWS, 273 F.3d 1229, 1249 (9th Cir. 2001). But Congress also acknowledged that a 2
“precise number” is not always available. H.R. Rep. No. 97‐567, at 27; see Ariz. 3
Cattle Growers’ Ass’n, 273 F.3d at 1249 (“We have never held that a numerical 4
limit is required.”). Therefore, although an ITS that “contains no numerical cap 5
. . . normally violates the ESA,” such an ITS is adequate if it “explain[s] why it 6
was impracticable to express a numerical measure of take.” Ctr. for Bio. 7
Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1126–27 (9th Cir. 2012) 8
(quotation marks omitted); see also Miccosukee Tribe, 566 F.3d at 1275. The ITS 9
here explains that the “paucity of information” about facilities with CWISs 10
prevented the Services from quantifying anticipated take at this juncture, and it 11
contemplates that the Services’ field offices will quantify incidental take at 12
individual facilities as part of the technical assistance process. Bio. Op. 75–76. 13
Given the Services’ commitment to the technical assistance process, their 14
justification for not immediately quantifying take is adequate. 15
The Environmental Petitioners next assert that the Services’ ITS failed to 16
specify “reasonable and prudent measures” to minimize the impact of incidental 17
take on listed species, in contravention of 16 U.S.C. § 1536(b)(4)(ii), or to set forth 18

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terms and conditions required to implement those measures, in contravention of 1
16 U.S.C. § 1536(b)(4)(iv) and 50 C.F.R. § 402.14(i)(1)(iv). But the ITS does 2
identify one reasonable and prudent measure, namely, that the “EPA will use its 3
authorities under the CWA to minimize impacts to listed species pursuant to the 4
[section] 316(b) Rule and [the] CWA.” Bio. Op. 76. The ITS also includes various 5
administrative conditions, like a detailed annual reporting requirement, and 6
several substantive implementing conditions. It specifies, for example, that the 7
EPA will ask Directors to reopen continued permits if the Services determine that 8
a facility’s CWIS operations may have more than minor detrimental effects on 9
listed species. These elements of the ITS are adequate. The ESA does not 10
mandate any particular form or content for reasonable and prudent measures, 11
requiring only that the Services identify measures that they “consider[] necessary 12
or appropriate” to minimize the impact of incidental take. 17 16 U.S.C. 13
§ 1536(b)(4)(ii). And contrary to the Environmental Petitioners’ assertion, the 14
Services have not “delegate[d]” the task of determining reasonable and prudent 15
measures to the EPA. Envtl. Br. 124. Rather, the Services specified as a 16
17 The ESA’s implementing regulations, far from demanding an extensive list of
reasonable and prudent measures or terms and conditions, specify only that these
elements of the ITS “cannot alter the basic design, location, scope, duration, or timing of
the [agency] action and may involve only minor changes.” 50 C.F.R. § 402.14(i)(2).

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reasonable and prudent measure that the EPA must exercise its oversight 1
authority under the CWA in connection with the Rule’s technical assistance 2
process. Their reliance on the binding technical assistance process was a 3
“meaningful . . . attempt to minimize incidental takings associated with the 4
project.” Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1039 n.7 (9th Cir. 2007). 5
Finally, the Environmental Petitioners assert that the ITS fails to include 6
measures necessary to comply with the Marine Mammal Protection Act 7
(“MMPA”) and that the NMFS unlawfully failed to prescribe regulations under 8
section 1371(a)(5) of the MMPA that set forth permissible methods of taking 9
marine mammals due to the operation of CWISs.18 We are not persuaded, 10
especially because the biological opinion contemplates that facilities whose 11
CWISs may affect certain marine mammals or their critical habitat will be 12
required to “[i]nstall large organism excluder devices” and contact the NMFS “to 13
18 Section 1371(a)(5)(A)(i) provides that the NMFS may authorize the incidental taking
of small numbers of marine mammals if it:
(I) finds that the total of such taking . . . will have a negligible impact on
such species or stock . . . ; and (II) prescribes regulations setting forth—
(aa) permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species or
stock and its habitat . . . ; and (bb) requirements pertaining to the monitoring
and reporting of such taking.
16 U.S.C. § 1371(a)(5)(A)(i).

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determine whether [they] need to apply for a[n] [MMPA] permit.” Bio. Op. 1
App’x D, at 1. The biological opinion thus outlines a procedure under which 2
either no marine mammals are taken or, if necessary, the NMFS will authorize 3
take pursuant to the MMPA in the context of individual permit applications. 4
For these reasons, we reject the Environmental Petitioners’ challenges to 5
the ITS under the ESA. 6
4. The Industry Petitioners 7
We now turn to the three petitions for review filed by the Industry 8
Petitioners—UWAG, API, and the CWIS Coalition. 9
A. UWAG 10
UWAG challenges on procedural and substantive grounds what it 11
describes as the “Service‐driven” provisions of the Rule (including provisions 12
relating to the technical assistance process) that the EPA added after formal 13
consultation to minimize harm to listed species resulting from the operation of 14
CWISs. 15
i. Procedural Challenges 16
UWAG contends that the EPA violated the APA by failing to provide 17
adequate notice of and an opportunity to comment on the Rule’s Service‐driven 18

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provisions, the EPA’s biological evaluation, the Services’ biological opinion, and 1
the underlying data that supported each. See 5 U.S.C. § 553(b), (c). But there is 2
no “independent right to public comment with regard to consultations 3
conducted under § 7(a)(2)” of the ESA. Nat’l Ass’n of Home Builders, 551 U.S. at 4
660 n.6. So no procedural infirmity arises in failing to provide notice of or an 5
opportunity to comment on the biological opinion or other determinations by the 6
Services. See id. (“Nothing in section 7 authorizes or requires the Service[s] to 7
provide for public involvement (other than that of the applicant) in the 8
‘interagency’ consultation process.” (quoting 51 Fed. Reg. at 19,928)). Unless the 9
scientific material discussed in the biological opinion ultimately formed the 10
“basis” of the EPA’s rule, the public was not entitled to comment on it. See 11
United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977). 12
As for the Rule itself, the EPA was required only to “fairly apprise 13
interested persons of the subjects and issues of [its] rulemaking.” Nat’l Black 14
Media Coal., 791 F.2d at 1022 (quotation marks omitted). “The final rule need 15
only be a logical outgrowth of the proposed rule, not an exact replica of it.” 16
Riverkeeper I, 358 F.3d at 202 (quotation marks omitted); see also Riverkeeper II, 17
475 F.3d at 116 (“An agency cannot pull a surprise switcheroo on interested 18

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59
parties between a proposal and the issuance of a final rule.” (quotation marks 1
omitted)); Ne. Md. Waste Disposal, 358 F.3d at 951–52. Here, the proposed rule 2
addressed potential impacts on listed species. It would have required Directors 3
to identify the benefits of available technologies to threatened and endangered 4
species, 76 Fed. Reg. at 22,288, and NPDES permit applicants to submit 5
information on all threatened and endangered species susceptible to 6
impingement and entrainment at their CWISs, id. at 22,276. The proposed rule 7
also contemplated input from the Services by allowing Directors to confer with 8
both the EPA and the Services when issuing permit applications. See id. at 9
22,205, 22,210, 22,278. Because these provisions “fairly apprise[d] interested 10
persons” that the “subjects and issues of the rulemaking” included compliance 11
with the ESA and also fairly apprised them of the Services’ role in achieving that 12
compliance, Nat’l Black Media Coal., 791 F.2d at 1022 (quotation marks omitted), 13
we reject UWAG’s APA‐based challenge to the Service‐driven provisions. 14

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ii. Substantive Challenges 1
a. The Service‐Driven Requirements 2
UWAG broadly contends that the Service‐driven requirements of the Final 3
Rule are neither authorized by nor consistent with section 316(b) of the CWA.19 4
It goes so far as to say that the EPA had no authority to create a role for the 5
Services, even in advising the EPA and Directors on site‐specific environmental 6
impacts. Although that broad claim has no basis in the statutory language or, for 7
that matter, our caselaw, see Fund for Animals v. Kempthorne, 538 F.3d 124, 133 8
19 As stated above, section 316(b) mandates that any standard established pursuant to
section 301 or 306 “shall” require that the “location, design, construction, and capacity”
of CWISs “reflect the best technology available for minimizing adverse environmental
impact.” 33 U.S.C. § 1326(b). Relying on Riverkeeper I, UWAG argues that an agency
acting pursuant to section 316(b) may require measures related only to the “location,
design, construction, [or] capacity” of CWISs, but 40 C.F.R. § 125.98(b)(2) allows
Directors to require facilities to implement “additional control measures” unrelated to
these four parameters. This provision, though, is more limited than the “restoration”
provisions we remanded in Riverkeeper I. See 358 F.3d at 189–91. If a Director at a
given site includes in a permit control measures that “have nothing to do with” section
316(b)’s parameters, id. at 189, the EPA may still veto the permit, see 40 C.F.R.
§ 123.44(c). If the EPA fails to veto the permit, the affected parties can bring a
particularized, as‐applied challenge. We therefore agree with the EPA that UWAG’s
challenge is unripe. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1609
(2014); Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732–33 (1998) (ripeness
requirement is intended to “protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties” (quotation marks omitted)).

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(2d Cir. 2008), we address UWAG’s more pointed assertion that the EPA 1
unlawfully delegated its authority to the Services. 2
An agency impermissibly delegates its authority where, without statutory 3
authorization, “it shifts to another party almost the entire determination of 4
whether a specific statutory requirement . . . has been satisfied, or where [it] 5
abdicates its final reviewing authority.” Id. at 133 (quotation marks omitted). 6
“Agencies may seek advice and policy recommendations from outside parties, 7
but they may not rubber‐stamp decisions made by others under the guise of 8
seeking their advice.” Id. (quotation marks omitted). Because section 402 of the 9
CWA, which authorizes the EPA to delegate responsibility for administering the 10
NPDES program to the States (with the EPA retaining veto authority), does not 11
authorize delegation to the Services, UWAG objects to the provisions of the Rule 12
“requir[ing] States to coordinate or consult with the Services” and giving the 13
Services “a special opportunity to provide ‘technical assistance.’” UWAG Br. 38. 14
It also objects to an interpretation of the Rule that allows the EPA to veto a draft 15
permit “based on recommendations or determinations made by the Services.” 16
UWAG Br. 39. These objections lack merit for two reasons. 17

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First, the Rule does not require Directors to accept the Services’ 1
recommendations and clearly vests the authority to establish permit 2
requirements in Directors, not the Services.20 See 40 C.F.R. § 125.94(g) (“[C]ontrol 3
measures, monitoring requirements, and reporting requirements [established by 4
the Director] may include measures or requirements identified by [the Services].” 5
(emphasis added)); see also id. §§ 125.96(g), 125.98(b), 125.98(f). Second, the EPA 6
has hardly “abdicate[d] its final reviewing authority” by providing for the 7
Services’ input. Fund for Animals, 538 F.3d at 133 (quotation marks omitted); see 8
U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 568 (D.C. Cir. 2004). To the contrary, 9
nothing in the Rule itself suggests that the EPA will “rubber‐stamp” the Services’ 10
conclusions. See 79 Fed. Reg. at 48,382–83 (EPA has “discretionary” oversight 11
authority). Rather, the Rule contemplates that the EPA will independently 12
determine, with the benefit of the Services’ expertise, whether the terms of a 13
permit comply with section 316(b) of the CWA. Such a scheme reflects the 14
cooperative arrangement specified by Congress in the ESA and by the agencies 15
in their MOA, not unlawful delegation. 16
20 UWAG’s delegation challenge is therefore weaker than the one we rejected in Fund
for Animals, where the FWS issued an order under the Migratory Bird Treaty Act that
transferred final permitting authority to other agencies. 538 F.3d at 130, 132–33.

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b. The Biological Opinion 1
UWAG also challenges the Services’ biological opinion. Again, we are not 2
persuaded. 3
UWAG asserts that the biological opinion is unlawful because the Services 4
should have concurred in the EPA’s initial determination that the proposed rule 5
was unlikely to adversely affect listed species. This is especially true, UWAG 6
claims, where the EPA, in its biological evaluation, initially defined its action as 7
one that merely sets standards rather than authorizes any new activities. Under 8
these circumstances, UWAG asserts, the Services could not conduct formal 9
consultation. 10
We conclude that the agencies acted appropriately in conducting formal 11
consultation. The ESA requires the Services to independently evaluate the 12
effects of agency action on a species or critical habitat. See 16 U.S.C. 13
§ 1536(b)(3)(A); Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1051 (9th 14
Cir. 2013). The Services’ Consultation Handbook explains that the Services will 15
find that an agency action is “not likely to adversely affect” a species or habitat 16
“only if ALL of the reasonably expected effects of the proposed action will be 17
beneficial, insignificant, or discountable.” Consultation Handbook at 4‐1. In 18

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this case, the Services’ finding that this standard was not satisfied was 1
reasonable because the EPA acknowledged that listed species would continue to 2
be affected after implementation of the proposed rule and because the nature of 3
the proposed rule’s impact on listed species remained unclear. See id. at 3‐13 4
(“[I]f there is not enough information to adequately determine the nature of the 5
effects, a letter of nonconcurrence is provided to the action agency.”). 6
Nor do we agree that the Services, having proceeded with formal 7
consultation, should have issued a no‐jeopardy finding without including the 8
Service‐driven provisions just because the proposed rule would have produced 9
a net reduction in species mortality even absent those provisions. The ESA’s 10
implementing regulations provide a structure for issuing jeopardy findings. To 11
determine whether a proposed action is “likely to jeopardize” listed species or 12
adversely modify critical habitat, 50 C.F.R. § 402.14(g)(4), the Services are 13
required to evaluate the “[e]ffects of the action,” meaning “the direct and 14
indirect effects of an action on the species or critical habitat, together with the 15
effects of other activities that are interrelated or interdependent with that action, 16
that will be added to the environmental baseline,” id. § 402.02. The 17
“environmental baseline” includes, as relevant here, “the past and present 18

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impacts of all Federal, State, or private actions and other human activities in the 1
action area.” Id. § 402.02; see also Consultation Handbook at 4‐22 (“The 2
environmental baseline is a ‘snapshot’ of a species’ health at a specified point in 3
time. It does not include the effects of the action under review in the 4
consultation.”). “Indirect effects,” which are not included in the baseline, “are 5
those that are caused by the proposed action and are later in time, but still are 6
reasonably certain to occur.” 50 C.F.R. § 402.02. Where the future operation of a 7
regulated facility depends on the discretion of the acting agency, the continued 8
operation of that facility is not a “past” or “present” impact of previous federal 9
action. See Nat’l Wildlife Fed’n, 524 F.3d at 930–31; In re Operation of the Mo. 10
River Sys. Litig., 421 F.3d 618, 632–33 (8th Cir. 2005). 11
The Services here concluded that because “the operation of [CWISs] is 12
within [the] EPA’s discretion” under section 316(b)—i.e., the discretion to set 13
BTA standards that affect how CWISs operate and whether they will jeopardize 14
listed species—the continued operation of CWISs under the Rule is not “a past 15
impact of Federal action” (such that it would be included in the environmental 16
baseline), but rather an indirect effect of the Rule. Bio. Op. 28. We defer to the 17
Services’ reasonable interpretation that the effects of future CWIS operations on 18

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listed species are properly considered indirect effects of the Rule. See Forest 1
Watch v. U.S. Forest Serv., 410 F.3d 115, 117–18 (2d Cir. 2005). And the Services 2
were not cornered into making a no‐jeopardy finding just because the proposed 3
rule was expected to reduce entrainment and impingement mortality. 4
Consistent with the ESA’s goal of “conserv[ing] endangered species and 5
threatened species,” 16 U.S.C. § 1531(c)(1), the relevant inquiry is whether the 6
action causes jeopardy or adverse modification, period—not whether it provides 7
“incremental improvements” that make conditions “slightly less harmful” to a 8
species but still reduce the likelihood of survival and recovery for that species, 9
Aluminum Co. of Am. v. Adm’r, Bonneville Power Admin., 175 F.3d 1156, 1162 10
n.6 (9th Cir. 1999). 11
B. American Petroleum Institute 12
As we explained above, the Final Rule requires that “new units” at existing 13
power plants and manufacturing facilities be designed to withdraw an amount 14
of water commensurate with that withdrawn by a closed‐cycle cooling system or 15
otherwise provide the same protection from adverse environmental impacts. 40 16
C.F.R. § 125.94(e). Focusing on how the Rule applies to manufacturing facilities, 17
API argues that the proposed rule did not provide adequate notice of the 18

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meaning of “new unit” and that the EPA’s estimate of compliance costs for 1
manufacturing facilities that install “new units” improperly relied on limited and 2
outdated data. We reject both arguments. 3
i. Notice of “New Unit” Definition 4
As already noted, the Final Rule need only be a “logical outgrowth” of the 5
proposed rule. Riverkeeper II, 475 F.3d at 113 (quotation marks omitted). In its 6
proposed rule, the EPA defined “new unit” (which the preamble likened to “new 7
stand‐alone facilities”) as “any addition of an operating unit at an existing 8
facility” after the Rule’s effective date, including “newly built units added to 9
increase capacity at the facility.” 76 Fed. Reg. at 22,196, 22,282. During the 10
comment period, API commented on this proposed definition, arguing that it 11
was unclear and that, insofar as it referred to “increase[d] capacity,” it applied 12
only to power plants, not manufacturing facilities. In the Final Rule, the EPA 13
removed the “increase[d] capacity” language and defined “new unit” as a new 14
“stand‐alone” unit. See 40 C.F.R. § 125.92(u); see also 79 Fed. Reg. at 48,311, 15
48,353. API thus had, and took advantage of, the opportunity to comment on the 16
definition of “new unit,” and also had “fair notice” of the change the EPA 17
eventually adopted in response. Long Island Care at Home, Ltd. v. Coke, 551 18

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U.S. 158, 174–75 (2007). The EPA therefore complied with the APA’s notice‐and‐ 1
comment requirements in defining “new unit.” 2
ii. Estimate of Compliance Costs 3
We turn, then, to the EPA’s estimate of compliance costs. To analyze 4
compliance costs, the EPA collected data from site visits (including visits to eight 5
manufacturing facilities), reviewed industry comments, and considered 6
industry‐specific studies involving manufacturing facilities. The EPA 7
acknowledges that it collected more extensive data from power plants than from 8
manufacturing facilities. But in urging that the data on manufacturing facilities 9
is unduly limited, API fails to explain why data on intake structures used at 10
power plants would not apply equally to those used at manufacturing facilities. 11
Nor is the EPA’s greater focus on power plants arbitrary and capricious, as 12
manufacturing facilities have more options to reuse cooling water and therefore 13
will, on average, incur lower compliance costs than power plants. 14
We also reject API’s assertion that the EPA relied excessively on 15
“outdated” data. Although the EPA relied in part on surveys conducted during 16
the Phase II rulemaking in the early 2000s, see 67 Fed. Reg. 17,122, 17,134 (Apr. 9, 17
2002), the EPA sought to improve accuracy by collecting additional information 18

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and adjusting costs for inflation. Based on this information, the EPA determined 1
that most manufacturing facilities would comply with the Rule’s “new unit” 2
standards by reusing cooling water for manufacturing processes (now reported 3
to be an industry standard practice). The EPA thus “examine[d] the relevant 4
data” and articulated “a rational connection” between that data and its 5
conclusion that manufacturing facilities would not incur meaningful additional 6
costs in implementing the Rule’s requirements for new units. State Farm, 463 7
U.S. at 43 (quotation marks omitted); see also Forest Watch, 410 F.3d at 118–19. 8
C. CWIS Coalition 9
The CWIS Coalition brings two additional challenges to the Final Rule, 10
both of which rest on misinterpretations of the Rule. 11
i. Permit Application Requirements for “Below‐Threshold” 12
Facilities 13
The parties agree that the Final Rule, at least as described in its preamble, 14
sets standards only for facilities that withdraw more than 2 mgd and use 25 15
percent or more of that water exclusively for cooling purposes. 79 Fed. Reg. at 16
48,304–05, 48,361. But the Coalition argues that the Rule’s permit application 17
requirements at 40 C.F.R. § 122.21(r)(1)(ii)(A) apply more broadly to “[a]ll 18
existing facilities” as defined at 40 C.F.R. § 125.92(k), which does not contain any 19

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thresholds. Therefore, the Coalition asserts, the Rule arbitrarily subjects even 1
“below‐threshold” facilities to burdensome permit application requirements. 2
The Coalition reads the permit application requirements out of context. 3
The Rule’s permit application requirements “apply to [CWISs] at existing 4
facilities that are subject to this subpart,” which incorporates the 2 mgd and 25 5
percent thresholds. 40 C.F.R. § 125.90(a). Although section 122.21(r)(1)(ii)(A) 6
might appear to apply to below‐threshold facilities, other subparts of section 7
122.21(r) confirm that it does not. Section 122.21(r)(1)(ii)(E), for example, states 8
that if a new unit at an existing facility increases the capacity of that facility to 9
more than 2 mgd, then that facility must submit permit application information 10
even if it was “not previously subject to” the Rule’s requirements. This provision 11
would be incongruous if below‐threshold facilities were already required to meet 12
the permit application requirements. And even if the Rule were ambiguous with 13
respect to the applicability of its permit application requirements, the Coalition 14
has not shown that the EPA’s interpretation of its own regulations in this case is 15
“plainly erroneous or inconsistent with the regulation.” Chase Bank USA, N.A. 16
v. McCoy, 562 U.S. 195, 208 (2011) (quotation marks omitted). We therefore defer 17
to that interpretation and decline to vacate 40 C.F.R. § 122.21(r)(1)(ii)(A). 18

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ii. BTA Requirements for Individual Structures 1
The Coalition also contends that the EPA exceeded its authority under 2
section 316(b) by imposing BTA requirements on individual intake structures 3
that withdraw no water for cooling purposes. But the Rule defines a “cooling 4
water intake structure” as the “total physical structure and any associated 5
constructed waterways used to withdraw cooling water from waters of the 6
United States.” 40 C.F.R. § 125.92(f) (emphasis added). If a structure withdraws 7
water only for process purposes, it is not a “cooling water intake structure” and 8
therefore not subject to the Rule’s requirements. To the extent the Coalition 9
argues that the EPA may not regulate CWISs that use only a “small portion of the 10
water withdrawn” for cooling purposes, Coal. Br. 19, this argument lacks any 11
basis in the CWA. Section 316(b) directs the EPA to promulgate regulatory 12
standards for “cooling water intake structures” without defining the term or 13
setting any particular threshold for water withdrawal. 33 U.S.C. § 1326(b). 14
Again, we defer to the EPA’s reasonable determination that an intake structure 15
that withdraws some amount of cooling water is a “cooling water intake 16
structure.” See Chevron, 467 U.S. at 843; see also Riverkeeper I, 358 F.3d at 203. 17

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CONCLUSION 1
To summarize, we hold that: (1) the EPA acted reasonably and within its 2
statutory authority in establishing BTA standards to minimize aquatic mortality 3
resulting from both entrainment and impingement; (2) the EPA adequately 4
explained why it defined “new units” at existing facilities as new stand‐alone 5
structures; (3) the Services’ biological opinion is consistent with the ESA and its 6
implementing regulations, and their no‐jeopardy finding is supported by the 7
administrative record; (4) the Services’ ITS is consistent with the ESA; (5) the 8
EPA provided adequate notice of the Rule’s “Service‐driven” provisions; (6) the 9
EPA acted within, and did not unlawfully delegate, its statutory authority by 10
including provisions in the Rule that allow the Services to advise the EPA and 11
Directors on the site‐specific impacts of CWISs; (7) the EPA and the Services did 12
not violate the ESA by engaging in formal consultation on the proposed rule; 13
(8) the Services were not compelled to find that the proposed rule (without the 14
technical assistance process) would avoid jeopardy just because the proposed 15
rule was expected to reduce impingement and entrainment; (9) the Services 16
complied with their own implementing regulations by treating the continued 17
operation of CWISs as an “indirect effect” of the Rule rather than as part of the 18

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environmental baseline; (10) the EPA provided adequate notice of the Rule’s 1
definition of “new unit”; (11) the EPA reasonably estimated the cost of 2
complying with the Rule’s standards for “new units”; (12) the EPA reasonably 3
interpreted the Rule as not imposing new permit application requirements on 4
“below‐threshold” facilities (namely, those that do not withdraw more than 2 5
mgd and use 25 percent or more of that water exclusively for cooling purposes); 6
and (13) the EPA reasonably determined that section 316(b) of the CWA 7
authorizes it to regulate all CWISs, including those that use only a small portion 8
of the water withdrawn for cooling purposes. 9
We have considered the Petitioners’ remaining arguments and conclude 10
that they are without merit. For the foregoing reasons, we DENY the petitions 11
for review. 12

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APPENDIX 1
Glossary of Abbreviations 2
APA Administrative Procedure Act 3
API American Petroleum Institute 4
BTA Best Technology Available 5
CWA Clean Water Act 6
CWIS Cooling Water Intake Structure 7
EPA Environmental Protection Agency 8
ESA Endangered Species Act 9
FWS Fish and Wildlife Service 10
ITS Incidental Take Statement 11
MMPA Marine Mammal Protection Act 12
MOA Memorandum of Agreement 13
NMFS National Marine Fisheries Service 14
NPDES National Pollutant Discharge Elimination System 15
UWAG Utility Water Act Group 16

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