EPA Issues Final Rule on Cooling Water Intakes at Existing Facilities

On May 19, EPA issued a final rule implementing Section 316(b) of the Clean Water Act (“CWA”) governing the location, design, construction, and capacity of cooling water intake structures (“CWIS”) at existing power generating and manufacturing facilities. This rule serves to protect fish and other organisms from impingement and entrainment in CWIS and covers approximately 1,065 facilities (544 electric power generators and 521 industrial manufacturing facilities across a wide variety of industrial sectors).

Section 316(b) of the CWA requires “best technology available” (“BTA”) to reduce impingement and entrainment of aquatic organisms. Impingement occurs when aquatic organisms are trapped against the screens at the intake sources. Entrainment occurs when organisms are swept into the intake structure.

EPA’s final rule has three key components:

  1. 7 Fish Impingement Options.  The rule requires facilities to choose from seven options that reduce levels of fish impingement. With regard to entrainment, the rule requires the permitting authority to establish further measures on a case-specific basis to meet the BTA standard.
  2. Entrainment Mortality Study.  The rule requires that facilities withdrawing more than 125 million gallons of cooling water per day conduct studies into what measures would be appropriate or necessary to reduce entrainment mortality.
  3. New Units.  New units at existing facilities that are built to increase generating capacity are required to lower the intake flow to a level similar to a closed cycle, recirculation system. Closed cycle systems are required at new plants.

Applicability.  The final rule applies to existing facilities that (1) draw cooling water from U.S. waters or require National Pollutant Discharge Elimination System (“NPDES”) permits, (2) are designed to intake at least 2 million gallons of water per day, and (3) use at least 25% of the water for cooling purposes.

Case-by-case.  Facilities not meeting these requirements, existing offshore oil and gas facilities, and seafood processing plants are all expected to address impingement and entrainment on a case-by-case basis. Currently, industries that are most effected by this rule are food processing, electric generating plants, pulp and paper mills, iron and steel manufacturing, chemical manufacturing plants, petroleum refineries, and aluminum manufacturing.

Protected Species Habitat.  In certain circumstances, the final rule triggers the Endangered Species Act (“ESA”) by requiring facilities to perform studies of protected species’ habitats. Further, it provides a 60-day period for the Fish and Wildlife Service and the National Marine Fisheries Service to review NPDES permit applications, including those filed with state agencies. During review, permittees’ list of protected species or habitats in an application may be changed and measures to protect listed species may be recommended. Further, the EPA intends to use its CWA authority “to object to a permit where the EPA finds that issuance of the permit is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat.”

Environmental groups take issue with the final rule stating that it gives too much responsibility to state agencies and allows industry to contravene water recycling requirements. The groups believe that the finalized rule will allow for old facilities to continue withdrawing nearly 100 trillion gallons of water per year without recycling or using dry cooling technology. Critics also include industry allies who regard the final rule as a misuse of the ESA and are pessimistic about broad, sweeping negative economic impacts.

No specific compliance deadline for covered existing facilities is set, but the rule requires facilities to comply “as soon as practicable.”  State permitting authorities have the authority to establish interim compliance milestones in permits, and new units must comply with the “best technology available” standard when they begin operations.

Twenty-seven years of experience practicing environmental, regulatory, and natural resources law have enabled Kathy Beckett to develop a national reputation for her ability to influence environmental policies on behalf of her clients. She has been instrumental in the development of national and state regulatory programs and the drafting of environmental legislation.
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