KILLING FISH and GUTTING the CLEAN WATER ACT On April 9, 2002, EPA published proposed Phase II cooling water intake regulations for existing power plants (67 Fed. Reg. 17122) (

 The proposed rule is an abdication of Congress’s mandate to minimize the environmental damage from cooling water intakes. It sets low standards, and then grants the energy industry substantial opportunity to raise excuses to avoid the standards.

 The proposal represents a direct and significant threat to the nation’s aquatic ecosystems, and to the integrity and effectiveness of the Clean Water Act and other environmental laws.

Summary of Proposed Phase II Regulation ·

 EPA’s proposal fails to require closed-cycle cooling (which reduces fish kills by approximately 95%) as “best technology” for any of the 550 large power plants in the country, but instead sets a performance standard based loosely on the protection offered by a variety of cheaper, less effective, less reliable mechanisms.

 This weak mandate would allow existing plants to kill 20 to 1000 times more fish per megawatt than new plants, and continue to decimate aquatic life in U.S. waterways indefinitely. ·

 The proposal allows power companies to avoid the weak technology standard by pleading special economic circumstances, or arguing that the local ecosystem does not merit protection.

 Alternatively, the companies may attempt to replace the fish they kill. Such restoration measures are vague, unproven, likely to fail, and are rarely if ever intended to replace the number or variety of aquatic and marine animals killed by the water withdrawals. ·

 Instead of setting a protective, technology based standard, the rule would adopt and codify many of the site-specific arguments which permittees typically use to avoid closed-cycle cooling requirements.

Since even environmentally sympathetic regulators lack the resources needed to rebut, or in most cases fully evaluate, these arguments, the rule will allow applicants to continue to obstruct and delay needed technology upgrades.

 Flawed, Biased Cost-Benefit Analysis Trumps the Clean Water Act On December 28, 2001, after years of research by its Office of Science and Technology, EPA submitted its draft proposal to the White House’s Office of Management and Budget (OMB) for interagency review.

 EPA’s original draft regulation would have required closed-cycle cooling for 51 of the largest plants on tidal rivers, estuaries and oceans. This compromise proposal fell far short of a closed-cycle requirement on all major power plants, but it would have at least minimized the impact on the most ecologically productive waterbodies.

 However, antiregulatory ideologues in OMB’s Office of Information and Regulatory Affairs (OIRA) forced EPA to abandon its carefully chosen option and remove any closed-cycle requirements. The agencies relied on cost-benefit analyses which systematically belittle the value of aquatic ecosystems.

 Even using this drastic underestimate, the calculated benefits of the EPA original proposal would have exceeded costs to retrofit the most destructive facilities by an ample 3 to 2 margin. Nevertheless, in direct contravention to the Congressional “best technology available” mandate in the Clean Water Act, OIRA rejected any use of cooling towers and compelled the least cost alternative.

OIRA’s action also violated Executive Order (E.O. 12866), which prohibits regulatory economic analyses from dictating a result contrary to statutory requirements.


 Fish Kills, Cooling Intake Technology and the Clean Water Act ·

Every year, electric generating and industrial plants withdraw more than 100 trillion gallons from U.S. waters for cooling, and kill the overwhelming majority of organisms in this massive volume by entraining them into the facility or impinging them on intake screens.

 This staggering mortality – trillions of fish, shellfish, plankton and other species at all life stages – has stressed and depleted aquatic, coastal and marine ecosystems for decades, and has contributed to the collapse of some fisheries. ·

 A single large power plant can utilize hundreds of millions or even billions of gallons of cooling water per day before discharging the heated effluent directly into a lake, river or ocean.

 In contrast, a closed-cycle cooling system, which recirculates most of the water after dissipating the heat in a cooling tower and is standard technology for new plants, cuts withdrawals and fish kills by more than ninety-five percent. ·

Section 316(b) of the Clean Water Act requires such facilities to employ the “best technology available [BTA] to minimize adverse environmental impact.”

Despite this direct mandate and the decades-old availability of cooling towers, industrial pressure and EPA neglect has prevented effective regulation. Cooling withdrawals are the only NPDES-regulated activity not subject to national categorical standards, but instead regulated case-by-case. ·

In 1993, after years of frustration at agency failure to require protective technology, a coalition of environmental groups led by Riverkeeper sued to force EPA to finally promulgate cooling water intake standards, Riverkeeper, Inc. v. Whitman, U.S. District Court, Southern District of New York, No. 93-Civ.0314 (AGS).

 As a result of Riverkeeper’s lawsuit, on December 18, 2001 EPA promulgated its Phase I rule which requires closed-cycle cooling for new facilities (66 Fed. Reg. 65256).

 Help Stop this Abuse of Our Ecosystems and Environmental Laws Riverkeeper is mounting a comprehensive legal, technical and policy campaign to stop this needless killing of fish and evisceration of the Clean Water Act.

 Please contact us.

 Reed Super, Senior Attorney David Gordon, Senior Attorney 845-424-4149, ext 224 845-424-4149, ext 225

LIST OF COMMENTERS (on first Phase I Comment, August 2002)

1. Riverkeeper, Inc. (Garrison, NY) 2. Natural Resources Defense Council (New York, NY) 3. National Audubon Society (New York, NY) 4. National Fishing Association (Pompton Lakes, NJ) 5. Pacific Coast Federation of Fishermen’s Associations (Eugene, OR) 6. Waterkeeper Alliance (Tarrytown, NY) 7. U.S. Environmental Watch (Elizabeth, NJ and New York, NY) 8. Atlantic States Legal Foundation (Syracuse, NY) 9. Chesapeake Bay Foundation (Annapolis, MD) 10. New York PIRG (New York, NY) 11. Delaware Riverkeeper Network (Washington Crossing, PA) 12. Narragansett Baykeeper (Providence, RI) 13. Hackensack Riverkeeper, Inc. (Teaneck, NJ) 14. San Diego Baykeeper (San Diego, CA) 15. Santa Monica Baykeeper (Marina Del Rey, CA) 16. Waterkeepers Northern California (San Francisco, CA) 17. San Francisco Baykeeper (San Francisco, CA) 18. Deltakeeper (Stocketon, CA) 19. California Coastkeeper Alliance (Santa Monica, CA) 20. Orange County Coastkeeper (Newport Beach, CA) 21. Upper Chattahoochee Riverkeeper (Atlanta, GA) 22. Housatonic Riverkeeper (Lenoxdale, MA) 23. Chester River Association (Chestertown, MD) 24. James Riverkeeper (Mechanicsville, VA) 25. New York/New Jersey Baykeeper (Highlands, NJ) 26. Chattahoochee Riverkeeper, Inc. (Columbus,GA) 27. Soundkeeper, Inc. (Norwalk, CT) 28. Savannah Riverkeeper (Augusta, GA) 29. Lower Neuse Riverkeeper (New Bern, NC) 30. Potomac Riverkeeper (Herndon, VA) 31. Tualatin Riverkeepers (Sherwood, OR) 32. Blackwater/Nottoway Riverkeeper (Sedley, VA) 33. Pace Energy Project (White Plains, NY) 34. Hudson River Sloop Clearwater (Poughkeepsie, NY) 35. Green Delaware (Port Penn, DE) 36. Georgia Center for Law in the Public Interest (Atlanta, GA) 37. Ohio River Advocacy (Cincinnati, OH) 38. Coastal Alliance on Plant Expansion (Morro Bay, CA) 39. Southwest Wetlands Interpretative Association (San Diego, CA) 40. Mississippi Corridor Neighborhood Coalition (Minneapolis, MN) 41. National Committee for the New River (West Jefferson, NC) 42. Western Nebraska Resource Council (Chadron, NE) 43. Kentucky Resources Council (Frankfort, KY) 44. South Carolina Coastal Conservation League (Columbia, SC) 45. Northwest Environmental Defense Center (Portland, OR) 46. The UNPLUG Salem Campaign (Linwood, NJ) 47. Coalition for Peace and Justice (Linwood, NJ) 48. Surfers Tired of Pollution (San Diego, CA) 49. Institute for Fisheries Resources (Eugene, OR) 50. American Bottom Conservancy (East St. Louis, IL) 51. Friends of Fenholloway (Perry, FL) 52. Des Moines Founders Garden Club (Des Moines, IA) 53. Connecticut Fund for the Environment (New Haven, CT) 54. Golden Gate Audubon Society (Berkeley, CA) 55. Missouri Coalition for the Environment (St. Louis, MO) 56. High Country Citizens’ Alliance (Crested Butte, CO) 57. Centro de Accion Ambiental (San Juan, Puerto Rico) 58. New Jersey Environmental Federation (Trenton, NJ) 59. Voices of the Wetlands (Central Coast, CA) 60. PelicanNetwork (Central Coast, CA)

 Reed W. Super Senior Attorney Riverkeeper, Inc. P.O. Box 130 Garrison, NY 10524 845.424.4149, ext 224 845.424.4150 fax