Green groups ready to sue EPA over dead fish

A coalition of environmental groups that sued the Environmental Protection Agency (EPA) to force it to issue standards for industrial cooling water intake devices is likely to go back to court to challenge the regulation.

Lawyers told reporters that the rule issued Monday does not do enough to change the status quo, in which states exercise nearly all authority over power plant and factory intake devices that can harm fish. 

“There is a very strong likelihood that we’ll be back in court to challenge the rule, because it doesn’t come close to what the Clean Water Act requires,” Reed Super, an attorney for the Riverkeeper coalition, said Tuesday.

ADVERTISEMENT
Steve Fleischli, an attorney for the Natural Resources Defense Council, said the “EPA has promulgated a largely worthless rule that will do almost nothing to protect our waterways and our fisheries from power plants.”

Riverkeeper sued in 1992, two decades after the Clean Water Act passed with a section that required the EPA to set standards for water intake systems. The group agreed to stop its legal action when the government agency promised to take action.

Cooling systems that pass water through once and put it back into a river, lake or other body of water can harm fish and other aquatic life by either taking them into the system, where the heat kills them, or trapping them at the intake. The EPA estimated that 2.1 billion fish, crabs and shrimp are killed each year in the cooling systems.

In 2001, the EPA required new facilities to use cooling systems that recycle water. It tried twice to issue rules for existing facilities, but courts rejected them both times.

That has left power plants and factories subject to state regulation.

“The reason why strict standards … from EPA is so important, is because in all this time, states have been issuing permits to power plants and manufacturers on an ad-hoc basis completely ineffectually,” Super said.

The EPA rule issued Monday allows existing facilities to choose from seven technologies to prevent fish from getting trapped on intakes, but it leaves enforcement up to states and lets facilities use other technologies if a state allows it.

For fish that get sucked into cooling systems, the EPA’s rule requires only that facilities submit plans to states to mitigate harm to fish.

“What’s happened is that EPA punted back to states,” Super said. “EPA essentially codified the practice that has not worked for the last four decades.”

Eric Huber, an attorney for the Sierra Club, said the agency also failed in its duty to protect endangered species. It should have consulted with the Fish and Wildlife Service and the National Marine Fisheries Service on endangered species protections, he said.

“The services … found that there was not sufficient information provided by the EPA for them to complete a conference on this rule,” Huber said. The agencies later agreed with EPA that there would not be harm to endangered species from the rule, but that was only based on the fact that EPA did not mandate certain intake technologies, Huber said.

Republican lawmakers criticized the rule Monday, calling it an attack on the power generation and manufacturing industries. Sen. James Inhofe (R-Okla.) said he would propose congressional action to overturn the rule.