Endangered Species Act Case Studies Related to Clean Water Act 316(b)

The National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service share authority under the Endangered Species Act (ESA) to protect federally threatened and endangered species and designated critical habitat. The 2014 316(b) rule and associated biological opinion set forth a mandatory 60-day technical assistance process for facilities that withdraw more than 125 million gallons per day of cooling water. For proper technical assistance from NMFS, adequate descriptive information is necessary to fully understand the components and operations of the cooling water system as well as the affected aquatic environment. Any activities that occur before completion of the technical assistance process or that are not related to operation of the cooling water intake structure are subject to ESA “take” prohibitions unless excepted by permit. This presentation will focus on NMFS case studies of facilities undergoing the technical assistance process and other permitting actions necessary for compliance with both the Clean Water Act and the ESA.