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Part 704: Criteria Governing Thermal Discharges

(Statutory authority: Environmental Conservation Law §§15-0313, 17-0301)

Historical Note

Part (§§704.1-704.4) filed Aug. 12, 1969; repealed, new filed: April 28, 1972; Sept. 20, 1974 eff. 30 days after filing with the Secretary of State, provided, however, if the application, pursuant to Parts 800 to 941 inclusive of Title 6, of any provision of Part 704 shall be found to be invalid, the corresponding provision of Part 704 in effect immediately prior to such effective date shall be deemed not to have been repealed and shall remain in effect until such time as the provision, the application of which was found to be invalid, can lawfully be made applicable.

Contents:

Sec.

§704.1 Water quality standards for thermal discharges

(a) All thermal discharges to the waters of the State shall assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water.

(b) The criteria contained in this Part shall apply to all thermal discharges and shall be complied with, except as provided in this Part.

Historical Note

Sec. filed Aug. 12, 1969; repealed, new filed: April 28, 1972; Sept. 20, 1974 eff. 30 days after filing with the Secretary of State, provided, however, if the application, pursuant to Parts 800 to 941 inclusive of Title 6, of any provision of Part 704 shall be found to be invalid, the corresponding provision of Part 704 in effect immediately prior to such effective date shall be deemed not to have been repealed and shall remain in effect until such time as the provision, the application of which was found to be invalid, can lawfully be made applicable.

§704.2 Criteria governing thermal discharges

(a) General criteria. The following criteria shall apply to all waters of the State receiving thermal discharges, except as provided in section 704.6 of this Part:

(1) The natural seasonal cycle shall be retained.

(2) Annual spring and fall temperature changes shall be gradual.

(3) Large day-to-day temperature fluctuations due to heat of artificial origin shall be avoided.

(4) Development or growth of nuisance organisms shall not occur in contravention of water quality standards.

(5) Discharges which would lower receiving water temperature shall not cause a violation of water quality standards and section 704.3 of this Part.

(6) For the protection of the aquatic biota from severe temperature changes, routine shut down of an entire thermal discharge at any site shall not be scheduled during the period from December through March.

(b) Special criteria. The following criteria shall apply to all waters of the State receiving thermal discharges, except as provided in section 704.6 of this Part:

(1) Nontrout waters.

(i) The water temperature at the surface of a stream shall not be raised to more than 90 degrees Fahrenheit at any point.

(ii) At least 50 percent of the cross sectional area and/or volume of flow of the stream including a minimum of one-third of the surface as measured from shore to shore shall not be raised to more than five Fahrenheit degrees over the temperature that existed before the addition of heat of artificial origin or to a maximum of 86 degrees Fahrenheit whichever is less.

(iii) At least 50 percent of the cross sectional area and/or volume of flow of the stream including a minimum of one-third of the surface as measured from shore to shore shall not be lowered more than five Fahrenheit degrees from the temperature that existed immediately prior to such lowering.

(2) Trout waters (T or TS).

(i) No discharge at a temperature over 70 degrees Fahrenheit shall be permitted at any time to streams classified for trout.

(ii) From June through September no discharge shall be permitted that will raise the temperature of the stream more than two Fahrenheit degrees over that which existed before the addition of heat of artificial origin.

(iii) From October through May no discharge shall be permitted that will raise the temperature of the stream more than five Fahrenheit degrees over that which existed before the addition of heat of artificial origin or to a maximum of 50 degrees Fahrenheit whichever is less.

(iv) From June through September no discharge shall be permitted that will lower the temperature of the stream more than two Fahrenheit degrees from that which existed immediately prior to such lowering.

(3) Lakes.

(i) The water temperature at the surface of a lake shall not be raised more than three Fahrenheit degrees over the temperature that existed before the addition of heat of artificial origin.

(ii) In lakes subject to stratification as defined in Part 652 of this Title, thermal discharges that will raise the temperature of the receiving waters shall be confined to the epilimnion.

(iii) In lakes subject to stratification as defined in Part 652 of this Title, thermal discharges that will lower the temperature of the receiving waters shall be discharged to the hypolimnion and shall meet the water quality standards contained in Part 703 of this Title in all respects.

(4) Coastal waters.

(i) The water temperature at the surface of coastal waters shall not be raised more than four Fahrenheit degrees from October through June nor more than 1.5 Fahrenheit degrees from July through September over that which existed before the addition of heat of artificial origin.

(ii) The water temperature at the surface of coastal waters shall not be lowered more than four Fahrenheit degrees from October through June nor more than 1.5 Fahrenheit degrees from July through September from that which existed immediately prior to such lowering.

(5) Estuaries or portions of estuaries.

(i) The water temperature at the surface of an estuary shall not be raised to more than 90 degrees Fahrenheit at any point.

(ii) At least 50 percent of the cross sectional area and/or volume of the flow of the estuary including a minimum of one-third of the surface as measured from water edge to water edge at any stage of tide, shall not be raised to more than four Fahrenheit degrees over the temperature that existed before the addition of heat of artificial origin or a maximum of 83 degrees Fahrenheit whichever is less.

(iii) From July through September, if the water temperature at the surface of an estuary before the addition of heat of artificial origin is more than 83 degrees Fahrenheit an increase in temperature not to exceed 1.5 Fahrenheit degrees at any point of the estuarine passageway as delineated above, may be permitted.

(iv) At least 50 percent of the cross sectional area and/or volume of the flow of the estuary including a minimum of one-third of the surface as measured from water edge to water edge at any stage of tide, shall not be lowered more than four Fahrenheit degrees from the temperature that existed immediately prior to such lowering.

(6) Enclosed bays. No additional temperature change except that which occurs naturally shall be permitted in enclosed bays.

Historical Note

Sec. filed Aug. 12, 1969; repealed, new filed: April 28, 1972; Sept. 20, 1974 eff. 30 days after filing with the Secretary of State, provided, however, if the application, pursuant to Parts 800 to 941 inclusive of Title 6, of any provision of Part 704 shall be found to be invalid, the corresponding provision of Part 704 in effect immediately prior to such effective date shall be deemed not to have been repealed and shall remain in effect until such time as the provision, the application of which was found to be invalid, can lawfully be made applicable. Amds. filed: Aug. 2, 1991; Jan. 17, 2008 eff. 30 days after filing. Amended (b)(2).

§704.3 Mixing zone criteria

The following criteria shall apply to all waters of the State receiving thermal discharges, except as provided in section 704.6 of this Part.

(a) The department shall specify definable, numerical limits for all mixing zones (e.g., linear distances from the point of discharge, surface area involvement, or volume of receiving water entrained in the thermal plume).

(b) Conditions in the mixing zone shall not be lethal in contravention of water quality standards to aquatic biota which may enter the zone.

(c) The location of mixing zones for thermal discharges shall not interfere with spawning areas, nursery areas and fish migration routes.

Historical Note

Sec. filed Aug. 12, 1969, repealed, new filed: April 28, 1972; Sept. 20, 1974 eff. 30 days after filing with the Secretary of State, provided, however, if the application, pursuant to Parts 800 to 941 inclusive of Title 6, of any provision of Part 704 shall be found to be invalid, the corresponding provision of Part 704 in effect immediately prior to such effective date shall be deemed not to have been repealed and shall remain in effect until such time as the provision, the application of which was found to be invalid, can lawfully be made applicable.

§704.4 Additional limitations or modifications

(a) An applicant may apply for a modification of the criteria set forth in sections 704.2 and 704.3 of this Part.

(b) Upon receipt of such application, the commissioner shall confer with the U.S. Environmental Protection Agency and shall transmit to that agency information to enable the administrator to fulfill responsibilities under Federal Law.

(c) The applicant shall have the burden of establishing to the satisfaction of the commissioner that one or more of the criteria are unnecessarily restrictive as to a particular project in that a modification of such criterion, or criteria, as the case may be, would assure the protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

(d) The applicant shall consult with the Department of Environmental Conservation to determine appropriate studies which shall be conducted by the applicant. Prior approval shall be obtained by the applicant for a program of studies that will determine the impact of any proposed modification. Such studies shall include, but shall not be limited to:

(1) A comparative analysis of environmental effects of the thermal discharge on the receiving waters when subject to the stated criteria of this Part, and when subject to the applicant's proposed modification.

(2) An analysis of the different discharge modes (e.g., surface or subsurface) and the advantages and disadvantages of each mode with regard to effects on aquatic life.

(e) A public hearing shall be held upon the application.

(f) The commissioner may authorize a modification of the stated criteria, which modifications shall be conditioned upon post-operational experience. The commissioner may require additional treatment of, or change in, a thermal discharge in the event that post-operational experience shows a trend toward impairment by the discharge of the quality of the receiving waters for the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the body of water.

Historical Note

Sec. filed Aug. 12, 1969; repealed, new filed: April 28, 1972; Sept. 20, 1974 eff. 30 days after filing.

§704.5 Intake structures

The location, design, construction and capacity of cooling water intake structures, in connection with point source thermal discharges, shall reflect the best technology available for minimizing adverse environmental impact.

Historical Note

Sec. filed Sept. 20, 1974 eff. 30 days after filing.

§704.6 Applicability of criteria

(a) In determining that a discharge existing prior to July 25, 1969 has violated the standard for thermal discharges, as provided in section 704.1 (a) of this Part, the violation of any of the criteria contained in this Part shall not constitute evidence of a violation of such standard unless it is also shown that the violation of such criteria has contributed to the violation of the standard.

(b) The provisions of subdivision (a), subparagraphs (1)(iii), (2)(iv), (3)(iii), (4)(ii), (5)(iv), and paragraph (b)(6) of section 704.2 of this Part, and section 704.3, shall apply only to thermal discharges which have been brought into existence subsequent to July 31, 1973, or to which the criteria contained in this Part were intended to apply pursuant to any certification issued by the commissioner pursuant to section 401(d) of the Federal Water Pollution Control Act amendments of 1972.

(c) Whenever the commissioner has reason to believe that a thermal discharge, existing prior to the adoption of this Part, does not conform to section 704.1(a) of this Part, he may impose appropriate criteria contained in this Part upon such thermal discharge, unless, after public hearing, the owner or operator of any such thermal discharge establishes to the satisfaction of the commissioner that either such thermal discharge does conform to such subdivision (a) or that any such criteria are more stringent than necessary to assure conformance with such subdivision (a).

Historical Note

Sec. filed Sept. 20, 1974 eff. 30 days after filing.

§704.7 Severability

If any provision of this Part or its application to any person or circumstance is held to be invalid, the remainder of this Part and the application of that provision to other persons or circumstances will not be affected.

Historical Note

Sec. filed Aug. 2, 1991 eff. 30 days after filing.