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. Although the statutory language is straight-forward, EPA has run into enormous difficulties in promulgating rules to implement Section 316(b).
The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes. Pursuant to a Settlement Agreement with the environmental group, Riverkeeper, and other organizations, EPA was required to issue the revised rule by July 27, 2012.
When I last wrote about this rulemaking effort by EPA, EPA had received more than 1,100 comment letters and more than 80 documents containing new data for possible use in developing the final impingement mortality limitations. On June 12, 2012, EPA offered a 30-day comment period on the new information with comments due on or before July 11, 2012.
Through the Notice of Data Availability published by EPA on June 12, 2012, EPA also presented data it had received related to the results of EPA's stated preferences survey. Comments on the data related to EPA's preference survey were also required to be submitted on or before July 12, 2012.
In my previous blog on this subject, I wrote it was hard for me to understand how EPA would be able to comply with a court-ordered issuance date of new rulemaking by July 27.
Not surprisingly, EPA was unable to issue its new rule by July 27. Instead, EPA entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations. The Settlement Agreement contains the following language: "Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities." Since entry of the extension, EPA has been remarkably silent about any steps it plans to take prior to the June 27, 2013 deadline for notice of final action.
Concurrent activity at the state level is also of interest. Prior to this latest extension, EPA Region 1 sent about ten extensive Section 308 information requests to facilities in Maine to set the stage for possible issuance of case-by-case, best professional judgment permit requirements pursuant to 316(b) for the selected facilities. It is unclear how the facilities were selected given other Maine facilities also met the proposed thresholds. Those facilities have responded to the information requests but further action even on those facilities is on hold. EPA Region 1 and the Maine DEP have now determined that DEP, which administers a partially delegated NPDES program, now has the statutory capacity to administer the 316(b) program. DEP is in the process of formally seeking explicit delegation for the 316(b) program as anticipated under the original EPA-DEP NPDES Memorandum of Agreement. The DEP has indicated it intends to wait until after EPA issues a final rule implementing Section 316(b) before DEP decides how it proposes to implement 316(b) as a delegated state.
This post was originally published on the American College of Environmental Lawyers' blog on January 18, 2013.
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