UNITED STATES DEPARTMENT OF COMMERCE 

NatiDnal Oceanic and AtmDspheric Administration 

NATIONAL MARINE FISHERIES SERVICE 

Silver Spring, MO 20810 

Robert K. Wood, Director 

Engineering and Analysis Division JUL 2 3 2013

Office of Water 

Environmental Protection Agency 

Dear Mr. Wood: 

On June 18,2013, we received your request 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," pursuant to Section 7(a)(2) of the 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 or threatened species or critical habitat designated for those 

species. Nonetheless, EPA requested initiation of formal section 7 consultation to ensure full 

and expeditious consideration of the impacts to listed species and critical habitat. At this time, 

we do not concur with your determination. After review of the 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 of June 18,2013, we confirm initiation of formal consultation and conference (for 

proposed species) on the issuance and implementation of the proposed regulations, under the 

Clean Water Act, Section 316(b) (40 CFR 122 and 40 CFR 125). 

The ESA requires that after initiation of formal consultation, the Action Agency may not make 

any irreversible or irretrievable commitment of resources that would preclude the formulation or 

implementation of any 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 of section 7(a)(2) are satisfied (in this instance, the issuance of 

our biological 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 of the proposed action 

on ESA species and critical habitat. As described in our consultation plan, which we provided to 

you on December 19,2012 and March 18,2013, we will evaluate the direct and indirect effects 

of the 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 

jeopardize the continued existence of any listed or proposed species or result in the destruction or 

adverse modification of designated or proposed critical habitat. 

*Printed on Recycled Paper 
We will deliver our biological and conference opinion ("opinion") to EPA on October 31, 2013, 

unless we mutually agree upon an extension of the deadline. If we 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 of our opinion, EPA determines whether and in what manner to proceed 

with the action in light of its section 7 obligations and our conclusions. If we issue a "jeopardy" 

opinion, EPA must notify us of its final decision on the action. If EP A determines that it cannot 

comply with the requirements of section 7(a)(2) after consultation, you may apply for an 

exemption under section 7(g) of the ESA. You are required to request reinitiation of section 7 

consultation if: authorized take is exceeded; new information reveals effects that were not 

previously considered; the action is subsequently modified to cause effects that were not 

previously considered; or if newly listed species or designated critical habitat may be affected by 

the action. 

If you have any questions, please contact Jennifer Schultz (301-427-8443). We look forward to 

working with you and your staff on this consultation. 

;;:sJJk . 

Donna 

Director 

S. Wieting ~ Office of Protected Resources