The Environmental Protection Agency has recently proposed a new rule under section 316(b) of the Clean Water Act. Section 316 governs the design, construction and use of cooling water intake structures, requiring that the “location, design, construction, and capacity” of such structures “reflect the best technology available for minimizing adverse environmental impact.” The proposed rule is designed to mitigate the impact of cooling water intake structures on fish and wildlife populations. In the ordinary course of operations, cooling water intake structures present a risk to fish, shellfish, and other wildlife; specifically, the cooling intake unit may impinge or entrain such organisms, causing fatalities and adversely affecting the ecological makeup of the body of water from which the water is drawn.

Facilities Subject to the Proposed Rule

The new rule will apply to existing facilities if:

• The facility is a point source that uses or proposes to use cooling water from one or more intake structures (whether it does so directly or through an independent supplier that provides cooling water to the facility pursuant to a contract or other arrangement)...

Article authored by McAfee & Taft Attorney: Jessica John Bowman.