EPA announces another delay in cooling water intake rule

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The U.S. Environmental Protection Agency has delayed finalizing 316(b) of the Clean Water Act until May 16, marking another delay to the release of the cooling water intake rule. The rule will require about 670 existing power plants to use the best available technology on cooling water intake structures to protect against the impingement and entrainment of aquatic life.

In a letter to U.S. District Court Judge Laura Taylor Swain from U.S. Attorney Preet Bharara, the EPA stated the agency has not been able to finish consultations with the Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act.

The delay is the seventh since the 2004 Phase II Cooling Water Intake Structure rules were suspended in July 2007 in response to the U.S. Second Circuit Court of Appeals decision in Riverkeeper Inc. v. EPA. The EPA stated it would not meet its previous deadline of Jan. 14 because the agency was still in discussions with the involved parties, and the settlement agreement was amended to reflect the April 17 deadline. The EPA stated at that time it expected to conclude the consultations in advance of April 17 and did not intend to seek a further extension, but realized additional time would be needed because of the complexity of interagency consultations, according to the letter to Swain.

The EPA stated it has conferred with the other agencies and expects to receive a final, joint biological opinion in time for EPA Administrator Gina McCarthy to sign a notice of her final decision regarding the issuance of requirements implementing section 316(b) for publication in the Federal Register on May 16.

The letter to Swain states the EPA contacted Riverkeeper’s counsel on April 14 and has asked Riverkeeper to consider amending the settlement agreement to extend the deadline or another alternative to recommencing litigation on the matter.

The court had scheduled a conference between the parties on April 23 in the event the agency did not complete the rulemaking process before April 17.

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