Posted on October 21, 2013 by Philip Ahrens
Section 316(b) of the Clean Water Act requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. Although the statutory language is straight-forward, EPA continues to face – and create – enormous difficulties in promulgating the rules to implement Section 316(b).
The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of that water exclusively for cooling purposes. Pursuant to a judicial Settlement Agreement with the environmental group Riverkeeper and other organizations, EPA was required to issue the revised rule by July 27, 2012.
When EPA was unable to issue its new rule by the court-approved date, it entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations. That Agreement required that “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.”
On June 18, 2013, nine days before the June 27 deadline for publication of notice of final action, EPA initiated Endangered Species Act (ESA) Section 7 consultation with the National Marine Fisheries Service and the Fish and Wildlife Service. EPA has been criticized for many years for its failure to initiate Section 7 ESA consultation during rulemaking. With the agreement of Riverkeeper and the other plaintiffs, a revised Settlement Agreement now allows a delay in the issuance of the final rule until November 4, more than four months after the June 27, 2013 deadline.
Although the revised Settlement Agreement allows time for Section 7 consultation, it does not appear to allow time for review of the rule by the White House Office of Information & Regulatory Affairs.
Given the delays that have been experienced to date on this rule, coupled with the delays engendered by the government shutdown, it seems doubtful that EPA will be able to meet the new November 4, 2013 deadline for issuance of its cooling water intake rule. We shall see.