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A federal appeals court has struck down government regulations that allow power plants that kill huge numbers of fish to simply replenish surrounding waters with new ones. The 2nd U.S. Circuit Court of Appeals said destroying fish that get trapped in cooling systems and then replacing them is not the same as mitigating environmental damage as required by the Clean Water Act of 1972. “Restoration measures correct for the adverse environmental impacts of impingement and entrainment; they do not minimize those impacts in the first place,” Judge Robert A. Katzmann wrote for the unanimous court in Riverkeeper Inc. v. Environmental Protection Agency, 02-4005. He noted that since the passage of the Clean Water Act, Congress had rejected an amendment that would have explicitly allowed fish restoration measures. While the ruling said that this form of environmental maintenance did not pass muster, it upheld numerous aspects of regulations issued by the Environmental Protection Agency in 2001 after years of litigation. When the Clean Water Act was passed, Congress directed the agency to regulate cooling water structures that inadvertently trap and kill fish. “A single power plant might impinge a million adult fish in just a three-week period, or entrain some 3 to 4 billion smaller fish or shellfish in a year,” according to the 2nd Circuit’s opinion. The EPA’s first set of regulations were remanded by the 4th Circuit on procedural grounds in 1977, and new rules were not established until 2001, after environmental groups sued the agency and won a consent decree. Under “Track I” of the regulations, power plants can operate proper cooling structures by limiting the amount of water taken in by the coolers and implementing the best available technology to minimize the number of fish trapped in the systems. Another acceptable method of compliance, “Track II,” allowed plants to prove through studies that steps could be taken to reduce environmental impact by 90 percent of what could be done under Track I. Or, according to Track II, killed fish could simply be restocked. Riverkeeper, the lead plaintiff of numerous environmental groups, petitioned the 2nd Circuit for a final review of the rules. The group argued that Track II set a lower standard than Track I, and that “dry cooling,” a method that relies on air drafts and little or no water, is the best technology available. It also challenged the replenishing rules. The 2nd Circuit disagreed that Track II set a lower standard, and said the EPA did not overstep its authority when it considered the steep price and energy efficiency of dry cooling to determine the best technology available. But, the court said, “the EPA exceeded its authority by allowing compliance with section 316(b) through restoration methods.” The court remanded only that aspect of the regulations. Chief Judge John M. Walker and Judge James L. Oakes concurred with Judge Katzmann. Reed W. Super of Riverkeeper represented the lead plaintiff. Scott J. Jordan and Cynthia J. Morris of the U.S. Department of Justice represented the EPA.

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