EPA Delays Final 316(b) Rule Until 2013

On July 17, the EPA reached an agreement with plaintiffs in the Riverkeeper action to delay by one year the release of a final rule under Section 316(b) of the Clean Water Act to regulate cooling water intake structures at industrial facilities and power plants. The new deadline for the final rule is July 27, 2013.

The proposed rule was released in April 2011 and attracted significant concerns from industry, mostly due to the inclusion of stringent impingement mortality standards. Under the terms of a November 2010 settlement agreement, EPA had been obligated to take final action on the proposed rule by July 27, 2012. It was expected that EPA would not meet that deadline since the Agency had recently released new data and information on the results of its stated preference survey, as well as additional options for reducing impingement mortality. EPA presented the additional information in two notices of data availability (NODAs) issued in June, and requested comments on the NODAs by July 12. The delay will allow more time for EPA to complete its analysis of data, options, and public comments on the NODAs prior to finalizing the rule. As with other regulatory actions, the delay ensures EPA will not need to release a final rule until well after the November 2012 election.