EPA Issues Final Rule on Cooling Water Intake, Significantly Affecting Electric Power Generation and Water-Intensive Manfacturing
Yesterday, the U.S. Environmental Protection Agency ("EPA") issued a Final Rule under Section 316(b) of the Clean Water Act ("CWA") designed to reduce damage to aquatic organisms from entrainment or impingement in large cooling water intake structures. The rule covers facilities that are designed to withdraw more than two million gallons per day ("mgd") from "waters of the United States" and that withdraw at least 25% of their cooling water from those waters. EPA estimates the rule will cover more than 1,000 major facilities, about half of which are power plants and the other half manufacturing plants. Smaller facilities that do not meet the 2 mgd threshhold but are otherwise subject to the CWA will remain subject to Section 316(b), with specific requirements to be developed in a case-by-case basis.
In contrast to most other provisions of the CWA, which regulate discharges of pollutants, Section 316(b) regulates the intake of water. Section 316(b) requires that "the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." To carry out this statutory mandate, the Final Rule has three major features. First, facilities meeting the 2 mgd threshold are required to select one of seven design options for the cooling water intake structures in order to meet Section 316(b)'s "best technology available" requirement for minimizing damage to aquatic ecosystems. Second, facilities withdrawing very large quantities of water -- 125 mgd or more -- must conduct studies to help permitting authorities identify site-specific measures that meet Section 316(b)'s requirements.