Posted on February 8, 2012 by Philip Ahrens
Section 316(b) of the Clean Water Act is a model of statutory simplicity: “Any standard established pursuant to section 301 or section 306 of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” The effort by EPA to implement rules to interpret Section 316(b) approaches the opposite extreme.
The latest rulemaking effort began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least two million gallons of water per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes.
Pursuant to a settlement agreement with the environmental group Riverkeeper and other organizations, EPA is required to issue the revised rule by July 27, 2012. In the proposed rule, EPA agrees to impose flexible technology standards to deal with fish trapped against intake structures or drawn into cooling water systems. The rule requires facilities to obtain an NPDES permit reflecting best available technology in the design, location and construction of cooling water intake structures to minimize impingement (trapping of fish against intake screens) and entrainment (drawing of fish into a cooling water system).
The proposed rule has been attacked by the Natural Resources Defense Council and Riverkeeper, among other environmental groups. The rule has also been criticized by industry.
On January 25, 2012, EPA submitted a draft notice of data availability that could lead to amendments of the proposed rule. Notwithstanding the fact the rule has yet to be adopted and EPA has acknowledged the draft may be amended prior to adoption this summer, EPA staff in Region 1 have sent detailed information requests to facilities in Maine concerning any cooling water intake structure at those facilities.
Given the status of the 316(b) rulemaking, why EPA is requesting such information at this time is unclear. Given the existence of the proposed rule, EPA’s acknowledgement that it may revise the proposed rule and the court-required issuance date of July 27, this rulemaking process bears close scrutiny.