Posted on November 7, 2013 by Molly Cagle
Quoting our colleague Philip Ahrens, “We shall see” indeed.
Invoking force majeure due to the 16-day government shutdown, EPA has again (for the third time) delayed the issuance of the Clean Water Act 316(b) rules past the November 4, 2013 deadline most recently agreed to in its settlement with Riverkeeper. It remains to be seen if EPA will deliver the 316(b) rules on November 20, 2013 – just in time for a little light reading over your turkey dinner – or seek a further extension with Riverkeeper. EPA and environmentalists are now in talks for a new deadline, so you can probably head home to enjoy your turkey and sides at Thanksgiving without toting home a Federal Register package to disrupt your holiday.
Advocates for a more stringent set of rules appear to have used the latest delay to secure political support from a group of House Democrats that recently encouraged EPA Administrator Gina McCarthy to require power plants and other industrial facilities to install closed-cycle cooling water technologies not just to save local ecosystems, but also to respond to climate change. According to the elected officials, “Closed-cycle cooling structures would ensure greater energy grid security and reduce ecological harm in a warming world.” That’s a pretty incredible statement all around given that, although the cooling water intake rules have been embroiled in a multi-decade-long saga of regulations and litigation about entrainment and impingement of fish, they have never been about a meaningful assessment of the ecological impact of various entrainment and impingement rates in various types of water bodies. In fact, the proposed rule completely failed to take into account significant variations in different types of waterbodies.
Given the proposed 316(b) rules, EPA is unlikely to jump on the closed-cycle cooling bandwagon and abandon a more flexible approach. The Democratic Congressmen say in their letter that flexibility unfairly burdens state environmental protection agencies. Environmentalist say that the flexible approach will bring more litigation because the proposed approach is not lawful. Industry groups continue to prefer flexibility as it allows them options such as upgraded screens, barrier nets, reduced intake velocity, fish return systems – technologies that would lead to reduced impingement and entrainment but cost far less than retrofitting plants with cooling towers and other high-energy technologies. So industry too remains primed for challenge. At stake is the potential for hundreds of millions of dollars of upgrades for an ill-defined environmental benefit.
While it’s anyone’s guess when the rules will come out, it does seem reasonable to predict that whenever they emerge, the lawsuits will follow.