33 U.S.C. § 1326

Thermal discharges

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(a) Effluent limitations that will assure protection and propagation of balanced, indigenous population of shellfish, fish, and wildlife

With respect to any point source otherwise subject to the provisions of section 1311 of this title or section 1316 of this title, whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections for such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water.

(b) Cooling water intake structures

Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.

(c) Period of protection from more stringent effluent limitations following discharge point source modification commenced after October 18, 1972

Notwithstanding any other provision of this chapter, any point source of a discharge having a thermal component, the modification of which point source is commenced after October 18, 1972, and which, as modified, meets effluent limitations established under section 1311 of this title or, if more stringent, effluent limitations established under section 1313 of this title and which effluent limitations will assure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made, shall not be subject to any more stringent effluent limitation with respect to the thermal component of its discharge during a ten year period beginning on the date of completion of such modification or during the period of depreciation or amortization of such facility for the purpose of section 167 or 169 (or both) of title 26, whichever period ends first.

(June 30, 1948, ch. 758, title III, § 316, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 876; amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095.)Editorial NotesAmendments

1986—Subsec. (c). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

Notes of Decisions

Cited in 61 cases (8 in the last 5 years), 1976–2024 · leading case: Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009).

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Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009). · cites it 11× “” 33 U. S. C. §1326 (b). Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate effluent discharge into the Nation’s waters.”

Voices of the Wetlands v. State Water Resources Control Bd., 257 P.3d 81 (Cal. 2011). · cites it 6× “" (CWA, § 316(b); 33 U.S.C. § 1326 (b), italics added (hereafter CWA section 316(b)).”

In Re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 2009 VT 124 (Vt. 2009). · cites it 10× “33 U.S.C. § 1326 . Under this section, a permit applicant may apply for a variance from otherwise applicable thermal discharge limitations (including state water quality standards) if the applicant can demonstrate that it will nonetheless “assure the protection and propagation…”

Clean Wisconsin, Inc. v. Pub. Serv. Comm'n, 2005 WI 93 (Wis. 2005). · cites it 4× “" 33 U.S.C.A. § 1326 (b) (emphasis added). ś 327.”

Cooling Water Intake Structure Coal. v. U.S. Envtl. Prot. Agency, 905 F.3d 49 (2d Cir. 2018). · cites it 4× “LOHIER, Circuit Judge: *58 In these consolidated cases, several environmental conservation groups and industry associations petition for review of a final rule promulgated four years ago, in August 2014, by the United States Environmental Protection Agency ("EPA") pursuant to…”

Entergy Nuclear Generation Co. v. Dep't of Env't Prot., 944 N.E.2d 1027 (Mass. 2011). · cites it 3× “First, Entergy notes that CWISs already are regulated by EPA, see 33 U.S.C. § 1326 (b) (2006), and that further State regulation is not necessary.”

Am. Littoral Soc'y v. United States Env't Prot. Agency Region, 199 F. Supp. 2d 217 (D.N.J. 2002). · cites it 3× “See 33 U.S.C. § 1326 (a); N.J. Admin. Code tit.”

Sw. Elec. Power Co. v. U.S. E.P.A., 920 F.3d 999 (5th Cir. 2019). “26 Riverkeeper held that a distinct CWA standard-"best technology available for minimizing environmental impact" (or "BTA"), 33 U.S.C. § 1326 (b) -implicitly allows cost-benefit analysis.”

Clean Wisconsin, Inc. v. Pub. Serv. Comm'n of Wisconsin, 2005 WI 93 (Wis. 2005). · cites it 2× “ķ326 Additionally, the water intake structure must satisfy the requirements of the Clean Water Act, which requires that "the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental…”

Burton v. Dept. of Env't Prot., 337 Conn. 781 (Conn. 2021). “’’ 33 U.S.C. § 1326 (b) (2018); see Natural Resources Defense Council, Inc.”

ConocoPhillips Co. v. United States Env't Prot. Agency, 612 F.3d 822 (5th Cir. 2010). · cites it 2× “Establishing Requirements for Cooling Water Intake Structures at Phase III Facilities, 71 Fed.”

Riverkeeper, Inc. v. United States Env't Prot. Agency, 475 F.3d 83 (2d Cir. 2007). · cites it 9× “Act”), 33 U.S.C. § 1326 (b), 1 that is intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by regulating “cooling water intake structures” at large, existing power-producing facilities.”

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