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EPA Proposes Rules for|Water Intake Structures

WASHINGTON (CN) - The Environmental Protection Agency has proposed rules for existing power generating, manufacturing and industrial facilities that withdraw more than 2 million gallons of water per day from U.S. waters.

The rules regulate the location, design, construction, and capacity of water intake structures on the facilities, as mandated by the Clean Water Act.

The proposed rules, which apply only to facilities that use 20 percent of the water they withdraw for cooling purposes, require that intake structures be minimally invasive to the environment by using the best available technology to limit the rate flow into the structure, keep animals for being sucked into the intake system and control construction related damage to the area when the intake structures are built.

In 1977, the U.S. Fourth Circuit Court remanded most of the EPA's first attempt at regulation after 58 electric-utilities argued that the agency had violated the Administrative Procedures Act by failing to properly notify stakeholders of its proposed rules.

The agency withdrew the proposed rules, and ever since state permitting agencies have approved construction of new intake structures on a case by case basis voluntarily following guidelines provided by the agency.

In 2001 the agency tried again with new regulations that grandfathered structures approved by local permitting agencies while requiring all new facilities to meet national standards.

The agency proposed to implement the rules in three phases. The first would apply to new facilities, the second to existing power generating facilities the agency believed did not meet the standards under the act, and the third to regulate off-shore oil and gas exploration and extraction facilities.

Both conservation and industry groups challenged the Phase I rules, which were sustained by the Second Circuit except for a provision that allowed the agency to consider restoration of an ecosystem damaged by the construction or operation of intake structures as a "best available technology" for protecting the environment. In the current proposal, the agency has dropped the restoration provision.

Phase II regulations were challenged by some states and conservation and industry groups because the rules did not identify which best available technologies facility operators could use to meet the environmental protection standards of the act. Some groups also challenged the agency's use of cost benefit analysis to determine if some environmental outcomes were worth the investment required.

The Second Circuit remanded most of the Phase II rules, finding that it was inconsistent for the agency to specifically identify technologies that were not the "best available" while not identifying which specific technologies would meet the demands of the act.

In response, the EPA withdrew the Phase II rules while part of the Second Circuit's decision worked its way to the Supreme Court. In 2009, the Court found that the agency could use cost benefit analysis to determine which technologies for intake structures best met standards under the act.

The EPA crafted the new rules in light of the federal court decisions on all of its rule making attempts and in compliance with a settlement agreement with many of the stakeholders, which challenged its previous attempts to issue a proposed final rule by July 2012.

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