On 19 May 2014, the U.S. Environmental Protection Agency (EPA) released a long-awaited final rule establishing requirements governing the location, design, construction, and capacity of cooling water intake structures (CWIS) at existing power generating and manufacturing facilities. Pursuant to section 316(b) of the Clean Water Act (CWA), the EPA is required to establish the “best technology available” (BTA) for minimizing the adverse environmental impacts of CWIS caused by impingement and entrainment (I&E) of aquatic organisms in the intake water. 

According to the EPA, the new rule affects approximately 1,065 existing facilities with cooling water intake structures, including 544 electric power generators and 521 industrial manufacturing facilities in the following sectors:

  • petroleum refineries
  • chemical manufacturing plants
  • food processing
  • pulp and paper mills
  • iron and steel manufacturing
  • aluminum manufacturing

A map of the facilities affected by the rule can be found here.

The new rule applies to all existing facilities that have or require a National Pollutant Discharge Elimination System (NPDES) permit and that withdraw more than 2 million gallons per day (MGD) of water from waters of the U.S. and use at least 25% of this withdrawn water exclusively for cooling purposes. The rule establishes requirements to reduce both impingement mortality and entrainment mortality of aquatic organisms at these facilities. Fish and other organisms that are pinned to intake screens are “impinged,” while smaller fish, eggs, and larvae that are swept through the structure with the cooling water are “entrained.” Facilities designed to intake less than 2 MGD, or that use less than 25% of their water for cooling purposes, are not subject to these BTA requirements and instead must address impingement and entrainment mortality on a case-by-case basis according to best professional judgment (BPJ) of the permitting agency. Similarly, existing offshore oil and gas facilities and seafood processing facilities also must address I&E mortality on a case-by-case basis using BPJ.

With regard to impingement, the rule requires all covered facilities to choose one of seven options to reduce fish impingement. (40 CFR § 125.94(c)). Facilities also must comply with any additional impingement reduction measures established by the permitting authority. With regard to entrainment, the EPA stopped short of requiring closed-cycle cooling (CCC) to be implemented nationwide at all existing facilities as the BTA, citing several reasons including reliability of energy delivery and prohibitive costs for some facilities. (40 CFR § 125.94(d)). Instead, the final rule requires the permitting authority to establish BTA standards for entrainment mortality at existing facilities on a case-by-case basis and requires large existing facilities that withdraw at least 125 MGD to conduct additional peer reviewed studies to help determine what site-specific controls may be necessary to reduce entrainment mortality. New units at existing facilities, however, must meet entrainment mortality reductions that would be achieved by installation of CCC. (40 CFR § 125.94(e)). Facilities with CCC meet the entrainment mortality standards of the final rule. In addition to impingement and entrainment standards, the final rule includes significant data collection and informational requirements, as well as monitoring and record-keeping requirements for permitted facilities, which vary depending on the design intake flow and actual intake flow of the CWIS at the facility.

The EPA’s release of the rule follows conclusion of the agency’s Endangered Species Act (ESA) consultation with both the Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services). In a  biological opinion released with the rule, the Services conclude that the final rule “is not likely to jeopardize the continued existence of ESA-listed species" or their critical habitat.” The Services’ opinion is based on several factors, including that the rule requires studies of the habitat of protected species, including more detailed studies from the largest units, and also provides a 60-day period for the Services to review NPDES permit applications, including those filed with state agencies. Such review will allow the Services to modify a permittee’s list of protected species or habitats in an application — including to add larger species that feed on the smaller I&E species — and to recommend measures to protect listed species. In addition, the biological opinion emphasizes the EPA’s previous commitment — in its 2001 MOU with the Services — to use the full extent of its CWA authority “to object to a permit where the EPA finds that issuance of the permit is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat.”

This rule is the third and final installment of the EPA’s 316(b) rulemaking. Phase I addressed new facilities (except offshore oil and gas facilities); Phase II addressed existing large electric generating facilities; and Phase III addressed remaining small electric generating facilities and all manufacturing facilities. Following numerous legal challenges, the Phase II and III regulations were remanded to the EPA for reconsideration. The new rule combines Phase II and III into one rule addressing all existing facilities, as well as new offshore oil and gas exploration facilities. Like the EPA’s previous rulemakings, the new rule is expected to be the subject of litigation.