The U.S. Environmental Protection Agency (EPA) has suspended a fish protection rule in response to a January court decision. The decision vacated parts of the rule, which White House officials had edited and weakened. EPA will now have to begin a new round of rulemaking in order to address the ecological problem.

Electric power plants withdraw water from natural sources in order to cool their equipment. Larger fish and shellfish are often trapped on a plant's intake screen and die there from lack of oxygen and movement. A single plant may kill millions of fish in a year.

Closed-cycle cooling systems operate differently. Plants using a closed-cycle system recirculate or reuse water, withdrawing only 2 percent to 28 percent of the water used by the other systems. Closed-cycle systems can save a substantial number of fish and other organisms.

The Clean Water Act requires EPA to set standards protecting fish from power plants by requiring those plants to use the "best technology available." The closed-cycle system, used by 69 facilities in 2002, is widely believed to be the best technology available.

EPA sent a draft rule, which would have complied with the Clean Water Act, to the White House Office of Information and Regulatory Affairs (OIRA) in January 2002. As originally prepared, EPA's proposed rule sought to require the 59 largest plants in the most ecologically sensitive areas of the country to meet the performance achievable by a closed-cycle cooling system. EPA sought less stringent requirements for the roughly 500 remaining plants subject to the rule.

Under Executive Order 12866, Regulatory Planning and Review, EPA's draft rule was subject to review by OIRA. After the OIRA review, the rule appeared markedly different. OIRA stripped EPA's proposal to require any plant to use a closed-cycle system and instead required only minor upgrades. Plants would be able to avoid even these minor changes if costs were found to exceed benefits. This version of the rule was finalized in 2004.

In January 2007, the U.S. Court of Appeals for the Second Circuit decided large portions of EPA's rule did not comply with the Clean Water Act. The court ruled EPA's determination of minor upgrades as the best technology available was not adequate. The court also ruled EPA could not use cost-benefit analysis in developing the rule or in defining exceptions as it had done at OIRA's behest.

The decision in the case, Riverkeeper v. EPA, effectively nullified the rule. Since then, EPA has been weighing its options about how to proceed.

On July 9, EPA published a notice in the Federal Register suspending most of the requirements of the rule. "This suspension responds to the Second Circuit's decision, while the Agency considers how to address the remanded issues," EPA stated in the notice.

With the suspension in effect, the fish protection issue has effectively made no progress since EPA proposed its rule in 2002. EPA will initiate a new round of rulemaking in October, according to BNA news service ($).

Two questions remain. First, in light of the Second Circuit's decision, what definition of best available technology will EPA pursue? In the Riverkeeper decision, the court found the definition in the published rule to be inadequate. EPA may pursue the same definition it originally proposed before OIRA's interference. However, the current EPA administrator, Stephen Johnson, was not the head of EPA at that time and has not publicly indicated how he would like to see the agency move forward.

Second, how will OIRA revise or edit the next draft rule when it is once again submitted for review? Even after the Riverkeeper decision, OIRA may attempt to weaken the rule. Because the review process lacks full transparency, it will be difficult for the public to determine OIRA's exact impact. In the end, though, the courts will hold EPA accountable, not OIRA's hidden hand.