ABSTRACT

This paper was written following publication of a Clean Water Act Section 316(b) proposed new CWIS facilities rule by U.S. EPA in August 2000, and was completed just as the final new facilities rule was published in the Federal Register in November 2001.40 The August 2000 proposed rule motivated some of the paper’s discussion, and the November 2001 final rule differs from the proposed rule in important respects. Publication of the final new facilities rule provided an opportunity to apply the framework proposed above by seeing how the final and proposed rules differ. In the final new facilities rule, proxy definitions such as the controversial littoral zone concept and biocriteria are given up in favor of what is essentially a technology standard. The final rule applies to all water body types uniformly, unlike the proposed rule, which included different criteria for rivers, lakes, oceans, and estuaries. The main feature of the final new facilities rule is that CWIS capacity and flow (above certain minimums) should be no greater than that for a closedcycle, but “wet” or evaporative (tower or pond), cooling system. Thus, BTA is not dictated, but CWIS protection should be equivalent to closed-cycle technology. The final new facilities rule also allows a CWIS permit applicant to carry out a site-specific study, very much like a “two-track” approach proposed by UWAG in response to the EPA’s proposed new facilities rule. However, the level of fish protection, primarily impingement and entrainment reduction, still has to be equivalent to that provided by closed-cycle cooling. Thus, a site-specific risk assessment can only conclude that an alternative CWIS technology provides a level of protection greater or less than closed-cycle cooling, not that impingement or entrainment does or does not create AEI. The following points summarize changes between the proposed and final rules using the comparative framework discussed above. A principal change was from a proxy-based to a technology-based approach, as just mentioned.