CONFIDENTIAL© Copyright Baker Botts 2017. All Rights Reserved.

Paulina Williams

Water Supply and Quality Crossing: Recent Developments

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Water Transfers Rule

Unitary Waters

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Chevron Deference

The Water Transfers Rule is “precisely the sort of policymaking decision that the Supreme Court

designed the Chevron framework to insulate from judicial second- (or third-) guessing.”

What is the future of Chevron deference?

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Elk River Spill of MCHM

Freedom Industries Site on the Elk River

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CWA - Hazardous Substance Spill Prevention

Environmental Health Alliance for Chemical Policy Reform v. EPA (S.D.N.Y. 2016)

• Sue and Settle• Non-discretionary duty under CWA 311(j)

(1)(C)• Hazardous Substances• Information Request and Public Meetings• Rule Proposal June 2018• Final Rule August 2019

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CWA Section 316(b)

“Require that the location, design, construction, and capacity of

cooling water intake structures (CWIS) reflect the best

technology available (BTA) for minimizing adverse

environmental impact ”

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Adverse Environmental Impact

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316(b) Rule Basics

• Federal rule effective as of October 14, 2014• Applicable to:

– Existing power generating, manufacturing, industrial facilities– Point source (NPDES permits)– "Use" of cooling water intake structure– With design intake > 2 mgd – From waters of the United States– 25% or more actual intake used exclusively for cooling

• Provides Services Two Comment Opportunities and an EPA "Pinky Promise""

• Status– Federal litigation but the rule is effective– States are implementing the rule now, with only minimal direction from

EPA

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What does this mean?

Do you have a TPDES permit?

It is up for renewal AFTER July 14, 2018?

> 2 MGD DIF?

CWIS from WOTUS?

25%+ exclusively for cooling?

Not from PWS?

Best Professional Judgment

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Hypothetical

City (PWS)Manufacturer

1 2 3Manufacturer

City (PWS)

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Hypothetical

City (PWS)Manufacturer

1 2 3Manufacturer

City (PWS)

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Hypothetical

City (PWS)Manufacturer

1 2 3Manufacturer

City (PWS)

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What does this mean?

Do you have a TPDES permit?

It is up for renewal AFTER July 14, 2018?

> 2 MGD DIF?

CWIS from WOTUS?

25%+ exclusively for

cooling?

Not from PWS?

Best Professional Judgment

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Assuming WOTUS Canal

100 MGD

15 MGD

20 MGD

Industrial Cooling Water SupplyAgricultural/Other Water Supply

Water Authority River Intake

15 MGD

50 MGD

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Assuming WOTUS Canal

100 MGD

15 MGD

20 MGD

Industrial Cooling Water SupplyAgricultural/Other Water Supply

Water Authority River Intake

15 MGD

50 MGD

15%

20%

NOT 35%

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