Update on EPA’s Clean Water Act Section 316(b) Rulemaking Effort

August 16, 2013
Bryan P. Franey
MGKF Newsflash

Section 316(b) of the Clean Water Act requires that the “location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.”  Cooling water intake structures are commonly used by power plants and manufacturing facilities to draw in water from natural water bodies to cool process water and equipment.  When water is withdrawn by the intake structure, fish and other aquatic organisms may get trapped against intake screens (known as impingement) or may get drawn into the process itself (known as entrainment).

Since section 316(b) was passed by Congress in the 1970s, EPA has made several attempts to establish nationwide technology standards for impingement and entrainment reduction at existing facilities, only to have those rules remanded, withdrawn, or rewritten either voluntarily, through settlement agreements, or by court order.  EPA’s latest attempt to establish nationwide rules for cooling water intake structures at existing facilities began with the publication of a proposed rule on April 20, 2011.  EPA’s proposal would impose impingement reduction standards on existing power generating and manufacturing facilities that withdraw at least 25% of their water for cooling and have a design intake flow of two million gallons or more per day.  For entrainment, EPA proposed to continue allowing permitting authorities to determine the best technology available for reducing entrainment based on site-specific circumstances.  The permitting authorities would be aided in their decision-making by information and studies that would be developed by the facilities.  EPA estimates that its proposed rule would affect approximately 1,260 existing facilities (590 manufacturing facilities and 670 power plants).

Pursuant to a settlement agreement with Riverkeeper, EPA was initially required to finalize its latest section 316(b) rulemaking effort by July 27, 2012. On July 17, 2012, EPA and Riverkeeper agreed to modify the settlement agreement to extend the date for finalizing the rule until June 27, 2013.  More recently, EPA and Riverkeeper agreed to an additional amendment to the settlement agreement to extend the deadline until November 4, 2013.  According to the amended settlement agreement, the four month extension will allow EPA to conclude its formal consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service as required by the Endangered Species Act.

EPA appears to be on track to meet the November 4, 2013, as it recently submitted the rule to the White House Office of Management and Budget (“OMB”).  OMB review is generally the last step before an agency issues a final rule.