On May 19, 2014, EPA issued its long-awaited rule establishing requirements under the Clean Water Act for existing power-generating facilities and manufacturing and industrial facilities that withdraw more than 2 million gallons per day from waters of the United States and use at least 25% of the withdrawal exclusively for cooling purposes. The stated purpose of the Rule is to reduce injury and death to fish and other aquatic life caused by cooling water intake structures at existing power plants and commercial and industrial facilities. The rule covers approximately 1,065 existing facilities of which slightly more than half are power-generating facilities.
The Rule as adopted is 559 pages long. Summarizing a very complex rule of that length is virtually impossible. Those facilities covered by the Rule will need to study the Rule carefully to learn exactly how it affects their facility. At the great risk of over-generalization, there are three broad components to the final Rule which are highlighted in the EPA Press Release of May 19, 2014:
• Existing facilities that withdraw at least 25% of their water from an adjacent water body exclusively for cooling purposes and have a design intake flow of greater than 2 million gallons per day are required to reduce fish impingement. To ensure flexibility, the owner or operator of the facility will be able to choose one of seven options for meeting best technology available requirements for reducing impingement.
• Facilities that withdraw at least 125 million gallons per day are required to conduct studies to help the permitting authority determine what site-specific entrainment mortality controls, if any, will be required. This process will include public input.
• New units at existing facilities that are built to increase the generating capacity of the facility will be required to reduce the intake flow to a level similar to a closed-cycle recirculation system.
Any facility not covered by EPA’s rules governing cooling water intake structures will continue to be subject to Section 316(b) requirements set by the EPA, state or territory NPDES permitting director on a case-by-case, best available judgment basis.
EPA began its Section 316(b) rulemaking pursuant to a 1995 Consent Decree with a number of environmental organizations. Whether environmental organizations, the regulated community or anyone else with standing will appeal this latest rulemaking by EPA is anyone’s guess. Certainly there have been statements made that one or more appeals will be filed. Who thinks that a rulemaking 20 years in the making will end quietly?