Clean Water Act 316(b): What you need to know

The Environmental Protection Agency issued the final rule under Section 316(b) of the Clean Water Act in May 2014. It outlined the regulations and standards for the design and operation of cooling water intake structures.

The final rule has been long-anticipated among environmental consultants, activists and other invested parties, as it could help protect the aquatic ecology of the nations' waters. As the EPA estimates, 2.1 billion fish, crabs and shrimp are killed each year by cooling water intake structures, either from being trapped against the structures or drawn into the systems' and then exposed to extreme heat, chemicals or physical stress.

"EPA is making it clear that if you have cooling water intakes you have to look at the impact on aquatic life in local waterways and take steps to minimize that impact," said Nancy Stoner, assistant administrator for water at EPA, according to a press release.

The 500-page Clean Water Act document contains an abundance of information, but here are the important call-outs you need to know now:

"Section 316(b) protects the aquatic ecology of the nations' waters."

What does Section 316(b) stipulate?

Section 316(b) requires that facilities using cooling water intake systems to withdraw water must obtain a permit through the National Pollutant Discharge Elimination System. To do so, these facilities must meet one of three main components, each outlining the eligibility and requirements of various facilities:

2-million-gallon systems: The Section 316(b) final rule applies to all existing power-generating, manufacturing and industrial facilities that withdraw more than 2 million gallons of water per day from the nation's resources and use at least 25 percent of that water solely for cooling purposes. This may includes lakes, rivers, estuaries and oceans. About 1,065 existing facilities (more than 500 factories and more than 500 power plants) fit onto this category. Section 316(b) requires companies to take action to decrease the number of fish killed by their intake systems. This involves selecting one of seven options to ensure the best technology available (BTA) to minimize adverse impact on aquatic environments as well as demonstrating compliance through various means, such as regular biological monitoring.

125-million-gallon systems: Facilities that withdraw 125 million gallons or more per day from the nation's waters must also conduct studies to help the permitting authority determine if (and what specific type of) site-specific controls are necessary. Such controls would help reduce the amount of aquatic organisms trapped by intake systems.

New intake systems: New units installed at existing facilities that have been designed to increase the facility's generating capacity must reduce the intake flow to that of a closed-cycle recirculating system, which is more effective at reducing entrainment. This may call for incorporating a closed-cycle system into the new unit or making other alterations to reduce intake.

Power plants using 200 million gallons or more for cooling are affected by Section 316(b) of the Clean Water Act.Power plants that withdraw 2 million gallons or more and use at least 25 percent of that for cooling are affected by Section 316(b) of the Clean Water Act.

What are the seven BTA options?

The seven options for ensuring the best technology available to reduce environmental impact at water withdrawal sites include:

  1. Closed-cycle cooling
  2. Existing offshore velocity caps
  3. Through-screen velocity of 0.5 feet per second by design
  4. Through-screen velocity 0.5 feet per second when measured
  5. Modified traveling water screens to minimize impingement mortality
  6. Technologies determined by the permit director to be BTA
  7. Other approved technology that results in an impingement mortality below 24 percent annually

Is there any leeway?

The EPA has recognized that that there does not exist a single, one-size-fits-all solution that fulfills the "best technology available" requirement. In existing facilities, the permit director will establish the BTA standards according to the specific system design, facility construction and structure capacity.

"The rule establishes a strong baseline level of protection and then allows additional safeguards for aquatic life to be developed through site-specific analysis, an approach that ensures the best technology available is used," an EPA press release explained. "It puts implementation analysis in the hands of the permit writers so requirements can be tailored to the particular facility."

Are there additional monitoring requirements?

While finalizing Section 316(b), the EPA consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries to ensure the protection of endangered species during this regulatory change. As such, the final rule includes special provisions to support the Endangered Species Act.

"Permit directors may require additional monitoring and reporting for compliance."

Facilities must identify all federally-listed endangered and threatened species as well as critical habitats in and affected by the withdrawal area. This list goes beyond fish and shellfish and may require the help of experienced taxonomy and bioassessment services such as those provided by EcoAnalysts. Additionally, a permit director may require additional monitoring and reporting to ensure the safety of endangered and threatened species.

What is the compliance schedule?

The NPDES permit renewal dates determine the Section 316(b) compliance schedule. For those permits set to expire after Q3 2018, the facilities must submit to the permit director all applicable materials for a new permit 180 days prior to expiration. For those set to expire before Q3 2018, facilities are required to request from the permit director an alternative schedule for submitting the required documents. Failing to comply with Section 316 (b) of the Clean Water Act can come with great penalties, so facilities should begin to adapt their systems to meet the best technology available requirement, seek monitoring services and prepare for permit renewal now.