EPA Issues Final Rule on Cooling Water Intake, Significantly Affecting Electric Power Generation and Water-Intensive Manufacturing
May 20, 2014 posted by Eric Christensen
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. Third, of particular importance to the electric industry, existing facilities that add new generating units must meet one of two alternate "best technology available" requirements. The facility may reduce intake flows to a level equivalent to what would be withdrawn by a closed-loop cooling system. Alternatively, the facility may install mitigation structures on its cooling water intake that reduce entrainment mortality to the level that would be achieved by a sieve with a maximum opening of 0.56 inches. The Final Rule is the latest iteration in litigation dating back to the 1970s. Over the course of the ensuing decades, EPA's attempts to draft regulations under Section 316(b) were repeatedly thwarted in litigation, and the "best technology available" requirement was generally enforced on a case-by-case basis in the CWA permitting process. Most notably, the U.S. Supreme Court in 2009 found that EPA misinterpreted Section 316(b) when EPA concluded that the "best technology available" language precludes use of cost-benefit analysis in rulemaking under that section. The Supreme Court therefore invalidated regulations that would have required larger power plants to restrict water intakes to amounts equivalent to what would be required for closed-loop cooling systems. As noted above, the Final Rule establishes several alternative paths to compliance for power plants, depending on their intake flows and post-construction unit additions. The Final Rule applies to withdrawals of cooling water from "waters of the United States." Thus, the scope of the Final Rule is tied to EPA's recent rule defining the "waters of the United States" for purposes of CWA jurisdiction. As with EPA's efforts to enact regulations under Section 316(b), its efforts to define "waters of the United States" have been litigated for decades. In light of the controversy that has greeted the new "waters of the United States" rule, there is little doubt that litigation will continue for the foreseeable future. If you have any questions about the cooling water intake rule, the Clean Water Act, energy law in the Pacific Northwest, environmental permitting, or other matters involving the energy or environmental law, please contact a member of GTH's Energy, Telecommunications, and Utilities or Environment & Natural Resources practice groups. We're proud that our partner Jim Waldo was recently named 2013 Lawyer of the Year for Energy and Natural Resources Law, and practice group members Don Cohen, Bill Lynn, and Brad Jones were all named among Seattle's Best Lawyers.