Without proper technology, cooling water intake structures will continue to kill billions of fish, eggs, larvae, and other aquatic organisms.Photo: Stock Exchange.

Boston, MA—On June 16, EPA decided against setting environmental standards that would protect fish from being killed by intake structures at many of the largest industrial facilities in the country, even though such regulation is required by the Clean Water Act.

On June 30, NELC filed a petition on behalf of the Massachusetts Public Interest Research Group (MASSPIRG) asking the First Circuit Court of Appeals in Boston to overturn EPA’s decision.

Industrial facilities withdraw billions of gallons of water each day from rivers, lakes, oceans and estuaries in order to control the temperatures of various industrial processes. Without proper technology, these structures will continue to kill billions of fish, eggs, larvae and other aquatic organisms by entraining them through the plants or impinging them against intake screens.

The Clean Water Act requires EPA to determine the “best technology available” to prevent this destruction of aquatic life, and to promote regulations consistent with the use of such technology. In two earlier rule-making decisions, EPA required new facilities to install recirculating cooling water systems (which do not draw water and organisms from the wild), and required a limited number of existing power plants to make other efforts to reduce the impingement and entrainment of aquatic life.

Now, in Phase III of its cooling water intake regulations, EPA has decided not to set national standards for existing facilities in the pulp and paper, petroleum and coal, chemical and primary metals manufacturing industries, which together use approximately 40 billion gallons of cooling water per day.

EPA’s decision not to abide by the Clean Water Act here has wide-ranging consequences. The damage caused by these cooling water intake structures is significant. And worse, the grounds for EPA’s decision would set a bad precedent: EPA based its decision not to regulate on a cost-benefit analysis, which is at odds with policies Congress has directed EPA to use to implement the Clean Water Act.

Similar challenges to EPA’s decision have been filed in three other circuit courts, and the cases are currently consolidated in the Fifth Circuit Court of Appeals in New Orleans.

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