UNITED STATES DEPARTMENT OF COMMERCE NatiDnal Oceanic and AtmDspheric Administration NATIONAL MARINE FISHERIES SERVICE Silver Spring, MO 20810

Robert K. Wood, Director 

### JUL 2 3 2013 Engineering and Analysis Division Office ofWater Environmental Protection Agency
DearMr. Wood:
On June 18,2013, we received yourrequest for formal consultation on the proposed "Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities," pursuantto Section 7(a)(2) ofthe Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1536(a)(2)). We also received your biological evaluation, the draft regulation, and the draft preamble.
The Environmental Protection Agency (EPA) concluded that its proposed action was "not likely to adversely affect" endangered orthreatened species or critical habitat designated for those species. Nonetheless, EPA requested initiation offormal section 7 consultation to ensure full and expeditious consideration ofthe impacts to listed species and critical habitat. At this time, we do not concur with your determination. After review ofthe draft proposed regulation and biological evaluation, we have determined that the proposed action is likely to adversely affect listed endangered and threatened species and critical habitat that has been designated for those species. As ofJune 18,2013,we confirm initiation offormal consultation and conference (for proposed species) on the issuance and implementation ofthe proposed regulations, under the Clean WaterAct, Section 316(b) (40 CFR 122 and 40 CFR 125).
The ESA requires that after initiation offormal consultation, the Action Agency may not make any irreversible or irretrievable commitment ofresources that would precludethe formulation or implementation ofany reasonable and prudent alternatives that would avoid violating section 7(a)(2) (50 CFR 402.09). This prohibition is in force during the consultation process and continues until the requirements ofsection 7(a)(2) are satisfied (in this instance, the issuance of ourbiological opinion). During consultation, we will work with EPA to recommend language to incorporate into its regulation and/or to implement additional activities to minimize impacts ofthe proposed action on ESA species and critical habitat. As described in our consultationplan, which we provided to you on December 19,2012and March 18,2013,we will evaluate the direct and indirect effects ofthe action on threatened and endangered species and designated critical habitat. We will use this information, along with the environmental baseline and cumulative effects, to formulate our biological and conference opinion as to whether EPA has insured that its action is not likely to jeopardizethe continued existence ofany listed or proposed species orresult in the destruction or adverse modification ofdesignated orproposed critical habitat. 

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Printed on Recycled PaperWe will deliver ourbiological and conference opinion ("opinion") to EPA on October 31, 2013, unless we mutually agree upon an extension ofthe deadline. Ifwe issue a "jeopardy" opinion, it will include a reasonable and prudent altemative(s), unless none exist. The opinion may also include an incidental take statement. Following the issuance ofouropinion, EPA determines whether and in what manner to proceed with the action in light ofits section 7 obligations and ourconclusions. Ifwe issue a "jeopardy" opinion, EPA must notify us ofits final decision onthe action. IfEPA determines that it cannot comply with the requirements ofsection 7(a)(2) after consultation, you may apply for an exemptionunder section 7(g) ofthe ESA. You are required to request reinitiation ofsection 7 consultation if: authorized take is exceeded; new informationreveals effects that were not previously considered; the action is subsequently modified to cause effects that were not previously considered; or ifnewly listed species ordesignated critical habitat may be affected by the action.
Ifyou have any questions, please contactJennifer Schultz (301-427-8443). We look forward to working with you and your staffon this consultation. 

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. Donna S. Wieting

# ~ Director Office ofProtected Resources