The Section 316(b) Final Rule is Almost Here
The final draft of EPA’s final Section 316(b) rule is now, as of July 30th, under review by the White House, the last major hurdle in the rulemaking process, which means the final rule should be released to the public before the November 4th settlement deadline. As a result, utility owners and operators will soon know with certainty, after years of debate, what regulatory requirements will apply to their cooling water intake structures.
Section 316(b) of the Clean Water Act requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts. Under a consent decree with environmental groups, EPA divided the section 316(b) rulemaking into three phases. EPA promulgated Phase II of the rule (also known as the Cooling Water Intake Structure Regulations) which covered large existing electric generating plants in 2004. However, in 2007, EPA suspended those Cooling Water Intake Structure Regulations for existing large power plants in response to a decision by the U.S. Court of Appeals for the Second Circuit in Riverkeeper, Inc., v. EPA. Following the decision in Riverkeeper, EPA entered into a settlement agreement related to section 316(b) rulemakings under which EPA agreed to issue final regulations by November 4 th, 2013. EPA proposed regulations in 2011 that included uniform controls at all existing facilities to prevent fish from being trapped against screens or drawn through cooling systems. Comments were received on the proposed rule in 2011 and EPA issued two Notices of Data Availability in 2012. The final rule, entitled “ Criteria and Standards for Cooling Water Intake Structures,” is currently pending review at the Office of Information and Regulatory Affairs.