The EPA has released final standards under Section 316(b) of the Clean Water Act (CWA) that will impose strict rules on power plants and manufacturing facilities with cooling water intake structures (CWIS). The rule is aimed at protecting the billions of fish and aquatic life that are drawn into CWIS each year. EPA, who received input from the U.S. Fish and Wildlife Service and National Marine Fisheries Service, stated in support of the rule that an estimated 2.1 billion fish, crabs and shrimps are killed annually by being pinned against CWIS structures (impingement) or drawn in and affected by heat, chemicals, or physical stress (entrainment).
The final rule establishes requirements under the CWA for all existing power generating facilities and existing manufacturing and industrial facilities that withdraw more than 2 million gallons per day of water from waters of the U.S. and use at least 25% of the water withdrawn exclusively for cooling purposes (Covered Facilities). The rule will cover roughly 1,065 existing facilities, 521 of which are factories and the remaining 544 are power plants.
The rule will be implemented through the National Pollution Discharge Elimination System (NPDES) permits, with the applicable restrictions being based on the best technology available (BTA) for minimizing environmental impact. According to EPA, the rule establishes a strong baseline level of protection for protecting aquatic life from CWIS, while allowing additional safeguards for aquatic life to be developed through site-specific analysis, an approach that ensures that the best technology available is used. Permit writers at the state level will be able to tailor additional requirements to individual facilities.
The three major components of the rule are:
- Covered Facilities are required to reduce fish impingement. To allow flexibility, the owner or operator is able to choose one of seven options for meeting the BTA for reducing impingement.
- Large 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. The process includes public input.
- New units at an existing facility that are built to increase the generating capacity of the facility are require to reduce the intake flow to a level similar to a closed cycle, recirculation system. Closed systems are the most effective at reducing entrainment. This can be done by incorporating a closed-cycle system into the design of the new unit, or by making other equivalent design changes.
Industry groups have expressed tepid support for the final rule, mainly because it is an improvement from their perspective from the version EPA issued in 2011. In turn, environmental groups expressed disappointment due to the fact that the rule allows significant input from state agencies. Environmental groups worry that states are either not equipped to handle the workload or less willing to enforce strict standards.
Final Rule to Protect Fish, Aquatic Life from Cooling Water Intakes, EPA Pre-Publication Rule (http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/upload/316b-prepub-preamble.pdf)
Bethany K. Hatef, EPA unveils final fooling water intake structures rule, Lexology, May 21, 2014 (http://bit.ly/1k9o3Yf)
Red-on-line EHS Legal counsel