1 Memorandum to the Record of EPA’s Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilitie s
– May 16 , 2014
I. Introduction
Today’ s Cooling Water Intakes Final Rule establishes requirements for cooling water intake structures (CWISs) at existing facilities. The regulation reduces impingement and entrainment of fish and shellfish and other aquatic organisms at CWISs which withdraw coo ling water from waters of the United States. This rule is established under section 316(b) of the Clean
Water Act (CWA) ; the rule establishe s standard s that require the location, design, construction, and capacity of CWISs reflect the best technology avail able (BTA) for minimizing adverse environmental impact. With regard to this rulemaking, “adverse environmental impact” is the impingement of fish and shellfish or T&E species and designated critical habitat (e.g. prey base) on components of an intake struc ture or entrainment in a CWIS.

In addition to the EPA ’s duty under the CWA to establish a standard (s) for CWISs that will minimize adverse environmental impacts, Section 7 of the ESA imposes substantive and procedural obligations on Federal agencies. Particularly , Section 7(a)(2) states that Federal agencies shall, in consultation with, and with the assistance of the Services, ensure that any action authorized, funded or carried out by the Federal agency is not likely to jeopardize the continued existe nce of any listed species or result i n the destruction or adverse mo di fi cation of habitat that has been designated as critical to the species. 16 U.S.C. 1536(a)(2). There are many provisions in today’s rule that are protective of T&E species and designated critical habitat; collectively, these protections i nsur e that the EPA’s action (issuance of this regulation) is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated criti cal habitat.2 The EPA chose to consult under the ESA on this federal action (issuance of the 316(b) final rule) under Section 7 of the ESA

. 1 The EPA began informal consultation on this rule with the National Marine Fisheries Service (NMFS) in July 2012. In October 2012, the EPA began informal consultation with the U.S. Fish and Wildlife Service (FWS) (together “the Services”). As part of the informal c onsultation, the EPA prepared a draft biological evaluation of the effects of this rule on threatened and endangered (T&E) species. The EPA concluded in the draft biological evaluation that the rule was not likely to adversely affect listed species or desi gnated critical habitat due to the many beneficial effects on species and concluded that the rule was not likely to adversely affect listed species or designated critical habitat

. The EPA did not receive the Services’ concurrence in the Agency’s “not likel y to adversely affect” finding. On June 18, 2013, the EPA requested formal consultation with the Services and submitted a final biological evaluation.
During the two years of informal and formal consultation, the EPA and the Services engaged in extensive dialogue about CWISs, the scope of the rulemaking, NPDES permitting, and the many factors and considerations relevant to T&E species and designated critical habitat

. The three agencies engaged in a thorough discussion and consideration of potenti al provisions to protect T&E species and designated critical habitat for possible inclusion in the rule . The regulation benefited substantially from these conversations and from the Services’ analysis of listed species and designated critical habitat and how these resources will be impacted by today’s rule. Through this consultation with the Services and after careful consideration , the EPA crafted

1 The Services’ ESA regulations define the term “action”. “Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high season. Examples include, but a re not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights

- of

- way, permits, or grants

- in

- aid; or (d) actions directly or indir ectly causing modifications to the land, water, or air.” 50 CFR 402.02.3 a rule that minimiz e s adverse environmental impacts, including impacts to T&E species and designated cri tical habitat . The rule provide s significant protections to listed species and designated critical habitat and

– as the Services concluded in their joint Biological Opinion

– i nsure s that the rule is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of designated critical habitat

. Prior to today’s rule, NPDES permitting directors have evaluated CWISs with a site

specific analysis based on the permit writer’s bes t professional judgment (BPJ)

. 40 CFR Part
125. 90(b). This BPJ analysis resulted in 316(b) NPDES permitting requirements ; often these requirements inherently protect T&E species or are developed with the intent to protect listed species and designated critical habitat

. In addition, a number of facilities with CWISs have dealt with the intersection of T&E species and CWIS through the Section 9 ESA “take permit” process or through involvement in other f ederal actions (such as relicensing with the Nuclear Regulatory Commission) where the federal agency issuing the license may have consulted with the Service(s) . These separate processes have produced numerous instances where permit requirements have been protective of listed species or designated critical habitat. Examples of these case

- by

- case permit requirements are discussed below.

Th is case

- by

- case structure has produced protective measure s for listed species and designated critical habitat i n specific instances. This rule, however, benefit s T&E species and designated critical habitat by requiring a structured process for consideration of appropriate and relevant data and an opportunity for the Services to make suggestions prior to the NPDES permitting decision. Today’s national rule includes a number of provisions that create a process whereby NPDES permitting directors, the Services, and facilities will produce and evaluate information abo ut T&E species, designated critical habitat s, and CWISs . T his process and the4 rule’s substantive requirements will ultimately produce NPDES p ermitting requirements that protect listed species and designated critical habitat . Some provisions apply broadly to aquatic organisms beyond federally

- listed species . Other provisions were included to specifically protect
T &E species and designated critical habitat

. The combined effect of these provisions will protect T&E sp ecies and designat ed critical habitat and e nsure that the rule is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designate d critical habitat.
There are a number of overarching themes evinced throughout the rule. First, during the consultation, the EPA and the Services recognized the important role of quality data and information in any site

- specific evaluation of impacts to protected species and designated critical habitat . With the goal of p roducing valuable information, the rule requires facilities p rovide an abundance of information about their CWISs and about the organisms and listed species and designated critical habitat near their intakes

. With the goal of sharing the information with a ll the relevant entities , the rule requires an information exchange between the facilities, Directors and the Services. Second, a careful review of the information and consideration of how CWIS impact protected species is vital to ultimately protecting the species and designated critical habitat s. Therefore, the rule allows the D irector and the Services the opportunity to review and consider this information before the NPDES permit is drafted. The Services

– the federal agenc ies with critical expertise o n T &E species and designated critical habitat

– will under the procedure established in today’s rule, receive the facility’s permit application (which will include information about listed species and designated critical habitat ) , have the opportunity to revi ew the permit application , and suggest protective measures to the Director for inclusion in the permit . The permitting director will then determin e what requirements will be included in the5 draft NPDES permit based on all of the information from the facili ties and any additional information and suggested measures provided by the Services

. After the permit is drafted and released for public comment, the public and once again the Services, will have an opportunity to provide additional information to the Dire ctor , suggest control measures , or other protective requirements, and call attention to any relevant factors that the Director may have not yet considered during the development of the draft permit. Therefore, t he Director will have sufficient information to address potential detrimental effects to listed species and designated critical habitat prior to finalization of the NPDES permit

. Finally, after the permit is finalized , the public will have access to the in formation provided by the facilities and the Services via the administrative record

. The pe rmitting director must create a public administrative record for the permitting decisions. Furthermore, the Director’s decisionmaking must be reasoned. F acilities have a strong interest in providing accurate information to Directors so that Directors have access to accurate and complete information that informs the decisionmaking and is part of the permit’s administrative record. P ermitting Directors will need to co nsider that information, record the rationale for permitting decisions, and include any needed protections for T&E species and designated critical habitat in NPDES permits. S trong administrative records bolstered by quality information will ensure that the state’s decisions are reasonable and supported by the administrative record, and thereby help facilities and permitting directors to withstand any legal challenges in any state judicial proceeding

. The entire rule provides a framework for protecting fish and shellfish and T&E species and designated critical habitat

. T here are key provisions , however, that establish a process that includes specific requirements for facilities with CWIS and requirements for NPDES permitting6 authorities. These rule provisions will allow permitting directors, facilities, the Services, and affected communities to identify potential effects CWIS will have on T&E species, address detrimental effects (including effects that rise to the level of jeopardizing spe cies), and identify control measures for inclusion in NPDES pe rmits that will protect species

. These key provisions are summarized below and fall into five categories

.
II. Permitting Application Requirements
The first category includes permit application information. As noted above, information in the permit application will likely provide much of the information used by the Director, the Services, and the public when considering appropriate control measures a nd requirements in the NPDES permit. Overall, these rule provisions aim to give the Director adequate and accurate information to make well

- reasoned NPDES permitting decisions. Information requirements that pertain to all species of fish and shellfish pro vide information on T&E species and designated critical habitat as well. The following section summarizes the key provisions pertaining to permit application information.

• Pursuant to 122.21(r)( 1 )(H), the owner or operator of any existing facility or new u nit at any existing facility must submit ( with its permit application ) all information received from any communication with the Services.

• Pursuant to 125.95(f), the owner or operator of an existing facility or new unit at an existing facility must identif y all Federally

- listed threatened and endangered species and/or designated critical habitat that are or may be present in the action area . This identification must be based on readily available information at the time of the permit application and is in li eu of the information required at 122.21(r)(4)(vi).7 This provision specifically requires identification of T&E species and designated critical habitat. Facilities must provide this information to the Director for the Director’s consideration. Since this i nformation is in the permit application, the Services will have the opportunity to review the list of species and designated critical habitat prior to the draft permit release and again during the public notice and comment period on the draft permit . The D irector may include appropriate control measures to protect listed species and designated critical habitat and these may include the Services ’ suggested control measures or other requirements to address any concerns about listed species and designated critical habitat.

• Pursuant to 122.21(r)(5), f acilities must submit cooling water system data in the permit application

. This includes a narrative description of the CWIS operation, the proportion of the design intake flow that is used in the system and the proportion of the source waterbody w ithdrawn on a monthly basis . Existing f acilities must also include in their permit application a de scription of existing impingement and entrainment technologies or operational measures and a summary of their performance, including reductions in impingement mortality and entrainment.

• Pursuant to 122.21(r)(6), facilities must identify their chosen compl iance method(s) for their facility or identify the chosen compliance method under 40 CFR 125.94(c) (the national BTA standard for impingement mortality). Under 125.94(c), facilities have to comply with one of seven options , for example, operating a closed

- cycle recirculating system or operating a system with a maximum through

- screen design intake velocity or through

- screen intake velocity of 0.5 fps, or operating any other combination of technologies, management practices, and operational measures that the Director determines is BTA for impingement reduction.8 • Pursuant to 122.21(r)(7), existing facilities must submit any previously conducted studies or studies obtained from other facilities addressing technology efficacy, through

- plant entrainment survival, and other entrainment studies.

• Pursuant to 122.21(r)(8), existing facilities must submit a description of the operational status of each generating, production, or process unit that uses cooling water, including (for power production or steam generation) descriptions of individual unit operating status, Nuclear Regulatory Commission relicensing status of each unit at nuclear facilities, descriptions of current and future production schedules, descriptions of plans or schedules for any new units planned wit hin the next 5 years

. These provisions alert the Director and the Services to the facilities’ status. Also, because NRC relicensing may be subject to the requirements of the ESA, then the facility may have an NRC license that includes provisions that are protective of listed species and designated critical habitat . This is important information for the Director , the Services , and the public when determining whether additional measures are necessary to protect species in the 316(b) NPDE S permit.

• Pursuant to 122.21(r)(9), existing facilities that withdraw greater than 125 mgd actual intake flow ( AIF ) must develop an Entrainment Characterization Study that includes a minimum of two years of entrainment monitoring. This study must include identification and documentation of all life stages of fish and shellfish in the vicinity of the CWISs and are susceptible to entrainment (this includes any listed species with a habitat range that includes waters in the vicinity of the CWIS ) . In addition, the study must include a characterization of all life stages of fish, shellfish, and any species protected under Federal, State or Tribal law , including a description of their abundance and their temporal9 and spatial characteristics in the vicinity of the cooling water intake structure(s), based on sufficient data to characterize annual, seasonal, and die l variations in entrainment, including but not limited to variations related to climate and wea ther differences, spawning, feeding , a nd water column migration

. In addition, the facility must provide d ocumentation of the current entrainment of all life stages of fish, shellfish, and any species protected under Federal, State, or Tribal l aw (including threatened or endangered species).
These provisions place a focus on entrainment of T&E species and designated critical habitat , alert the Director about protected species, and provide necessary information to the Director for consideration during develo pment of the permit. In addition, this requirement to study T&E species in the vicinity of the CWIS provides information to the facility , specifically whether the facility may require separate take authorization from the Services under the ESA.

• Pursuant to 122.21(r)(11), existing facilities that withdraw greater than 125 mgd must develop and submit to the Director a benefits valuation study. This study must evaluate the benefits of the candidate entrainment reduction technologies and operational measures. The facilities must include incremental changes in the numbers of individual fish and shellfish, for all life stages, lost due to impingement mortality and entrainme nt.10 III. Monitoring, Reporting, and Recordkeeping Requirements
The second category of rule provisions includes requirements for facilities with CWISs to monitor and report impacts to fish and shellfish and imp acts to T&E species . The monitoring and report ing requirements are important components of the rule. EPA considered many options when developing the monitoring and reporting requirements in the rule. The rule requires monitoring and reporting that is essential to the 316(b) permitting process and prot ection of listed species and designated critical habitat, while also not being overbroad and unduly burdensome

. The EPA has selected monitoring and reporting requirements that are reasonable and appropriate balancing the need for the information and the costs of generating, reporting, and collecting it

. For instance, the EPA considered mandating continuous monitoring for impingement and entrainment of T&E species, regardless of whether the facility was within the vicinity of T&E species or designated crit ical habitat, facility location , or existing control measures, or new 316(b) control measures required by the Director. T he EPA determined , however, that mandating continuous monitoring and reporting of this type of information could be unnecessary, burden some, and over

- inclusive to assess what is happening at particular intake s
. Instead, t he
EPA chose to mandate certain key monitoring and reporting requirements in order to target the specific monitoring information and reporting that will provide ac curate and specific information

. Further, the Director will need to consider the views of the Services provided to the Director during the permitting decision to determine if additional monitoring is warranted. Monitoring and reporting of a class of species, re gardless of the organisms’ protected status, inherently is a monitoring and reporting requirement that pertains to protected species and critical habitat; therefore, general monitoring and reporting requirements are summarized below, in addition to require ments that are specific to T&E species and designated critical habitat.11 • Pursuant to 125.9 6, the Director may establish monitoring requirements . For example, the Director may establish monitoring requirements for impingemen t mortality at an existing facility , such as biological monitoring (125.96(a)); entrainment monitoring for existing units on a site

- specific basis (125.96(b)); or additiona l monitoring at existing units, for example, if there are changes in operating conditions at the facility or in the source water body that warrant a re

- examination of the operational conditions identified at 40 CFR 122.21(r)) (125.96(c))

. Monitoring is also required to demonstrate compliance with the requirements of § 125.94(c) and § 125.94(e) (125.96(d))

. For inst ance, the Director may establish monitoring requirements for impingement mortality in addition to those specified at § 125.94(c), including, for example, biological monitoring, intake velocity and flow measurements . In addition, visual or remote inspection s are required during the period the CWIS is in operation (125.96(e)) . These inspections must occur at least weekly to ensure that any technologies operated to comply with § 125.94 are maintained and operated to function as designed including those install ed to protect Federally

- listed threatened or endangered species or designated critical habitat . The Director may establish alternative procedures if this requirement is not feasible (e.g., an offshore intake , velocity cap, or during periods of inclement we ather). F acilities where the CWIS does not directly or indirectly affect Federally

- listed T&E species or designated critical habitat may request the Director reduce monitoring requirements after the first full permit term in which these monitoring requirem ents are implemented (125.96(f))

. W here the Director requires additional measures to protect Federally

- listed threatened or endangered species pursuant to 125.94(g), the Director shall require monitoring associated with those

measures (125.96(g))

.12 • Pursuant to 125.97, facilities are subject to certain reporting and recordkeeping requirements, including submission to the Director of Discharge Monitoring Reports or equivalent State reports, results of all monitoring, demonstrations, and other informati on required by the permit sufficient to determine compliance with the permit conditions and requirements (125.97)(a)) , any status reports required by the Director (125.97)(b)) , an annual certification statement signed by the responsible corporate officer ( 125.97)(c) . The Director may require supplemental recordkeeping, data collection, or additional monitoring or data collection (125.97)(e)) . The Director also may require additional reporting when necessary to establish permit compliance and may provide for periodic inspection of the facility. W here the Director requires additional measures to protect Federally

- listed threatened or endangered species or critical habitat pursuant to 125.94(g), the Director shall require reporting associated with those measure s (125.97)(g))

. The general reporting and recordkeeping requirements of this section insure that information about T&E species and designated critical habitat collected in preparing the permit application is provided to the Director so that the information can be considered during development of the permit requirements. The reporting and recordkeeping requirements of this section also serve to insure that information subsequently collected during the term of the permit is available to the Director and the public for review to determine if the facility is in compliance with the permit’s requirements

. This reporting and recordkeeping will insure that the technologies upon which the permit is based are properly operated and maintained to afford the lev el o f protection intended by the Director. It will provide communities with access to the information about how well the facility is performing and whether the facility is in compliance with its permit. Citizens are an important part of the Clean Water A ct as they have the ability to13 enforce Clean Water Act requirements and they inform permitting decisions each time the permit is issued.

IV. Director Requirements
The third category of rule provisions includes substantive requirements for the Director. The Di rector’s required review of the permit application and establishment of standards and requirements will provide opportunities for the Director to exercise her authority to include protective measures and requirements for listed species and designated criti cal habitat. The Director will also be required to consider the expert views of the Services provided during the 60 day permit application review period in development of permit requirements

. These requirements established by the Director will reduc e impin gement and entrainment, which will overall reduce impacts to listed species and designated critical habitat , reducing or removing more than minor detrimental effects Federally

- listed species and designated critical habitat, or avoiding jeopardizing Federally

- listed species or destroying or adversely modifying designated critical habitat

.

• Pursuant to 12 5.89 (including existing sections of the regulations that are not changed by this rule), t he Director must review the permit application and material s submitted along with the permit application

.

• Pursuant to 125.92 (definition of modified traveling screen), the Director may approve of fish being returned to water sources other than the original source water, taking into account any recommendations fr om the Services with respect to endangered or threatened species.14 This provision is protective of T&E species because releasing these organisms into other source waters may cause adverse impacts to the species or the surrounding environment . In situations where the Director is considering approving fish returns to other waters , the Director’s decision should take into account the Services’ recommendations regarding potential fish returns

. The Services’ expertise will inform the Director of potential advers e impacts to species.

• Pursuant to 125.94(d), t he Director must establish BTA standards for entrainment for each intake at existing facilities on a site

- specific basis.

• Pursuant to 125.94(e), new unit(s) at an existing facility must achieve entrainment standards in (e)(1) (the facility must reduce the design intake flow for the new unit, at a minimum, to a level commensurate with that which can be attained by use of a clo sed

cycle recirculating system) or (e)(2) (the owner or operator of a new unit at an existing facility must demonstrate entrainment reductions equivalent to 90 percent or greater of the reduction that could be achieved through compliance with paragraph (e ) (1) of this section

.

• Pursuant to 125.94(g), in addition to the other provisions of 125.94, the Director may establish additional control measures, monitoring requirements, and reporting requirements in the permit. These control measures and requirements m ay be designed to minimize incidental take, reduce or remove more than minor detrimental effects to Federally

- listed species and designated critical habitat, or avoid jeopardizing Federally

listed species or destroying or adversely modifying designated cri tical habitat. These control measures and requirements may include measures or requirements that have been suggested by the Services when they receive the permit application or draft permit for review.15 Section 125.94(g) provides additional protection to li sted species and designated critical habitat , in addition to the other provisions of 125.94 and elsewhere in the rule. Before the Director makes a permit decision, t he Director will have all of the permit application information, including identification o f T&E species and designated critical habitat, cooling water system data, the facility’s chosen method of compliance with the impingement mortality standard, the impingement technology performance optimization study (if applicable) and biological monitorin g data, the operational status of the facility’s CWISs, the facility’s entrainment characterization study (if applicable), biological entrainment characterization, and other information included in the permit application.

The D irector has explicit authori ty under 125.94(g) to require additional measures to protect Federally

- listed T&E species and designated critical habitat. Thus, for example, if the impingement mortality standard that the facility chooses pursuant to 122.21(r)(6) does not minimize inciden tal take, reduce or remove more than minor detrimental effects to Federally

listed species and designated critical habitat, or avoid jeopardizing Federally

- listed species or destroying or adversely modifying designated critical habitat, the Director may es tablish additional control measures, monitoring requirements or reporting requirements that the Director determines are appropriate. In addition, the Director may receive input from the Services on control measures and monitoring and reporting requirements that the Services suggest to minimize take, reduce or remove more than minor detrimental effects, or avoid jeopardy to a species. The Director will have adequate inform ation before her to develop control measures and monitoring and reporting requirements that will provide adequate protections to species.

• Pursuant to 125.95(a)(3) t he Director may waive some or all of the information requirements of 40 CFR 122.21(r) if t h e intake is located in a manmade lake or reservoir16 and the fisheries are stocked and managed by a State or Federal natural res ources agency or the equivalent; however, if the manmade lake or reservoir contains Federally

- listed threatened and endangered spe cies, or is designated critical habitat, the Director shall not grant such a waiver.
Therefore, even in situations where the Director would otherwise waive information requirements, if there are T&E species or designated critical habitat, the Director shal l not waive the requirements. The Director will receive information under 122.21(r) if there are T&E species or designated critical habitat in the manmade lake or reservoir. As with other information requirements, the Director will consider this informatio n when developing permit terms, including control measures and requirements that will protect T&E species and designated critical habitat.

• Pursuant to 125.95(d), the Director has the discretion to request additional information to supplement the permit ap plication, including a request to inspect a facility.

• Pursuant to 125.98(b)(2), the Director must determine the requirements and conditions included in the NPDES permit based on the information in the permit application. The Director must include permit c onditions to implement and ensure compliance with the impingement mortality standard at § 125.94(c) and the entrainment standard at § 125.94(d), including any measures to protect Federally

- listed threatened and endangered species and designated critical ha bitat required by the Director. In addition, the permit must include conditions, management practices and operational measures necessary to ensure proper operation of any technology used to comply with the impingement mortality standard at § 125.94(c) and the entrainment standard at § 125.94(d).17 • 125.98(b)(2) also provides that p ursuant to § 125.94(g), the permit may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incident take, reduce or remove more than minor detrimental effects to Federally

- listed species an d designated critical habitat, or avoid jeopardizing Federally

- listed species or destroying or adversely modifying designated critical habitat (e.g. prey base). Such control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service during the 60 day review period pursuant to 125.98(h) or the public notice and comment period pursuant to 40 C.F.R. 124.10. The Director may inc lude ad ditional permit requirements if b ased on information submitted to the Director by any fishery management agency or other relevant information, there are migratory or sport or commercial species subject to entrainment that may be directly or indirect ly affected by the cooling water intake structure, or i t is determined by the Director, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to Federally

- listed and proposed, threatened and endangered species, and designated and proposed critical habitat.

• Pursuant to 125. 98(b)(3), a t a minimum, the permit must require the permittee to monitor

as re quired at § 125.94 and § 125.96 and t he permit must require the permittee to report and keep the records specified at § 125.97.

• Pursuant to 125.98(d), th e Director may require ad ditional technologies for protection of fragile species, and may require additional monitoring of species of fish and shellfish not18 already required under § 125.95(c). The Director may consider data submitted by other interested parties. The Director may a lso require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.

• Pursuant to 125.98(e), i f the owner or operator of a facility chooses to comply with § 125.94(c)(5) or (6), the owner or o perator must demonstrate that the impingement technology performance optimization study has been optimized to minimize impingement mortality of non

- fragile species

. The Director may request further data collection as part of the study, including extending the study period.

• Pursuant to 125.98 (f) , t he Director must establish site

- specific requirements for entrainment after reviewing the information submitted under 40 CFR 122.21(r) and § 125.95. These entrainment requirements must reflect the Director’s dete rmination of the maximum reduction in entrainment warranted after consideration of factors relevant for determining the best technology available for minimizing adverse environmental impact at each facility. These entrainment requirements may also reflect any control measures to reduce entrainment of Federally

- listed threatened and endangered species and designated critical habitat (e.g. prey base). The Director may reject an otherwise available technology as a basis for entrainment requirements if the Director determines there are unacceptable adverse impacts includ ing impingement, entrainment, or other adverse effects to Federally

- listed threatened or endangered species or designated critical habitat. Prior to any permit reissuance after the date specified in the rule the Director must review the performance of the facility’s installed entrainment technology to determine whether it continues to meet the requirements of § 125.94(d).19 This provision provides the Director with the discretion to impose entrainment requirements that reduce entrainment of listed species o r designated critical habitat. This is an important provision as it allows for the reduced entrainment of these protected species.

• Pursuant to 125.98(f)(1), t he Director must provide a written explanation of the proposed entrainment determination in the fact sheet or statement of basis for the proposed permit under 40 CFR 124.7 or 124.8. The written explanation must describe why the Director has rejected any en trainment control technologies or measures that perform better than the selected technologies or measures, and must reflect consideration of all reasonable attempts to mitigate any adverse impacts of otherwise available better performing entrainment techno logies.

• Pursuant to 125.98(f) (2) , th e proposed determination in the fact sheet or statement of basis must be based on consideration of any additional information required by th e Director at 125.98(i) and a number of factors , for example the n umbers and ty pes of organisms entrained, including, specifically, the numbers and species (or lowest taxonomic classification possible) of Federally

- listed, threatened and endangered species, and designated cri tical habitat (e.g., prey base). The requirements at 125.9 8(f)(1

- 2) insure that the Services, the public, and EPA will have an explanation of the Director’s rational for including or rejecting certain control technologies or measures and will provide further opportunity for the Services and others to examine that reasoning and suggest alternative measures that are protective of listed species and designated critical habitat.

• Pursuant to 125.98(h), t he Director must transmit all permit applications for facilities subject to Subpart J to the appropriate Field Office of the U.S. Fish and Wildlife Service20 and/or Regional Office of the National Marine Fisheries Service upon receipt for a 60 day review prior to public notice of the draft or proposed permit. The Director shall provide the public notice and comment period as required under 40 CFR 124.10 and must submit a copy of the fact sheet or statement of basis (for EPA

- issued permits), the permit application (if any) and the draft permit (if any) to the appropriate Field Office of the Fish and Wildlife Service and/or R egional Office of the National Marine Fisheries Service. This includes notice of specific cooling water intake structure requirements at 124.10(d)(1)(ix), notice of the draft permit, and any specific information the Director has about threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for such species and habitat.

• Pursuant to 125.98(i), i n implementing the Director’s re sponsibilities under the provisions of this subpart, the Director is authorized to inspect the facility and to request additional information needed by the Director for determining permit conditions and requirements, including any additional information fr om the facility recommended by the Services upon review of the permit application under paragraph (h). The transmission to the Services and the Services’ opportunity to review the permit application for 60 days insures that the Services

– the federal ag ency with expertise in T&E species and designated critical habitat

– have the opportunity to suggest control measures and other requirements that will minimize incidental take, reduce more than minor detrimental effects, or avoid likely jeopardy to listed species or destruction or adverse modification of designated critical habitat to the Director . The Director’s ability to request additional information under (i) would include information about listed species and designated critical habitat, which21 will inf orm the Director and the Services as they develop permit terms or suggestions for control

measures. The rule does not compel the Director to include the Services’ suggested control measures; the Director has the discretion to consider the Services’ suggest ions and include them if the Dir ector deems appropriate. This rule does , however , provide the opportunity for the Services to submit any relevant information to the Director and the Director must consider all relevant information in making his permit decis ions.

• Pursuant to 125.98 (k) , t he Director must submit at least annually to the appropriate EPA Regional Office, facilities’ annual reports submitted pursuant to 125.97(g), for compilation and transmittal to the Services annually

.
This section insures that facilities’ annual reports are transmitted to the EPA and that information will be available to the Services. This process insures that the Services and EPA possess information that may indicate whether any permit has unexpected adverse impacts to
T& E species or designated critical habitat.

V. Facility Requirements

The fourth category of rule provisions includes facility requireme nts. These requirements protect listed species and designated critical habitat by establishing standards and requirements
f or facilities that will reduce impingement and entrainment of fish and shellfish and T&E species and designated critical habitat. Since the Director may require additional control measures, and monitoring and reporting requirements, these provisions work i n conjunction to provide a protective regime for listed species and designated critical habitat.22 • Pursuant to 125.94(c), existing facilities or new units at existing facilities must comply with one of seven alternatives, except as provided by the Director pursuant to 125.94(c)(1), (c)(12) or (c)(13). In addition, a facility may also be subject to the requirements of (c)(8) or (c)(9) if the Director requires such additional measures. 1) Closed

- cycle recirculating system 2) 0.5 feet per second through

- screen desig n velocity 3) 0.5 feet per second through

- screen actual velocity 4) Existing offshore velocity cap 5) Modified traveling screens 6) Systems of technologies as the BTA for impingement mortality 7) Impingement mortality performance standard

– A facility must achieve a 12

m onth impingement mortality performance standard of all life stages of fish and shellfish of no more than 24 percent mortality, including latent mortality, for all

non - fragile species together that are collected or retained in a sieve with maximum opening d imension of 0.56 inches and kept for a holding period of 18
to 96 hours. The Director may prescribe an alternative holding period. 8) Additional measures for shellfish

- The owner or operator must comply with any additional measures , such as seasonal deployment of barrier nets, established by the Director to protect shellfish

. 9) Additional measures for other species

- The owner or operator must comply with ad ditional measures , established by the Director, to protect fragile species.

This section of the regulation protects T&E species by requiring facilities to choose control measures that overall reduce impingement mortality of fish and shellfish , which by logical23 extension, reduce impingement mortality of T&E species and designated criti cal habitat

. Compliance with such requirements may be sufficient to reduce more than minor detrimental effects, reduce or eliminate incidental take, or avoid jeopardizing species.

• Pursuant to 125.95(c), for subsequent permit applications, an owner or opera tor of a facility may request to reduce the required permit application information if conditions at the facility and in the waterbody remain substantially unchanged since the previous permit application, as long as the relevant previously submitted inform ation remains representative. However, critical habitat designations or T&E species listings (in the waters where the facility’s intake is located) after issuance of the current permit constitutes potential for a substantial change that must be addressed i n a subsequent permit application unless the facility receives an exemption under 16 U.S.C. 1536(o) or a permit pursuant to 16 U.S.C. 1539(a) or there is no reasonable expectation of take.
Therefore, in areas where there are new T&E species listings or ne w critical habitat designations, the Director will receive the full body of permit application information in subsequent permit terms.

• Pursuant to 125.95(g)

– the owner or operator must certify that its application is true, accurate and complete pursuant to 122.22(d).
This provision insures that facilities provide accurate and complete information in permit applications, including information about T& E species and designated critical habitat. 40 CFR 122.22(d) provides that the signor of a certification certifies “under penalty of law”. There are penalties for submitting false information. These requirements make it significantly less likely24 that an own er or operator will provide false information and provides an incentive for facilities to diligently prepare their permit applications.

VI. Rule Provisions Prohibiting Take
The rule also recognizes the ESA prohibition against take, found at 16 U.S.C. 1538(a) (1)

. U nder ESA Section 9, it is unlawful for any person to take any endangered species of fish or wildlife except under defined circumstances, including receiving a permit from the FWS or
NMFS. See 16 U.S.C. 1536(o) and 16 U.S.C. 1539(a). By expressing a p rohibition on take in a
note to the 316(b) rule, the EPA makes clear that other statutes, namely the ESA, govern take and a facility’s obligation to comply with the ESA is not fulfilled by obtaining an NPDES permit. In order to comply with Section 9 of the ESA, facilities that take endangered species of fish or wildlife must receive authorization from the Services. See 16 U.S.C. 1536(o) and 16 U.S.C. 1539(a). The note in the Code of Federal Regulations helps to make the public aware of existing law and faci litates communication between the facilities, permit ting directors , the Services, and the EPA concerning measures that may prevent unauthorized take

.

• Sections 125.90 and 125.98(j) note that this regulation does not authorize take, as defined by the Endange red Species Act, 16 USC 1532(19). The provisions also state that t he U.S. Fish and Wildlife Service and National Marine Fisheries Service have determined that any impingement (including entrapment) or entrainment of Federally

- li sted species constitute take. Such take may be authorized pursuant to the conditions of a permit issued under 16 U.S.C. 1539(a) or where consistent with an Incidental Take Statement contained in a Biological Opinion pursuant to 16 U.S.C. 1536(o).25 • Pursuant to 125.98(b )(1), permits must include the following language as a permit condition: “ Nothing in this permit authorizes take for the purposes of a facility’s compliance with the Endangered Species Act

. ”
VII. EPA’s Commitment to Follow the 2001 Memorandum of Agreement with the Services
In addition to the permit requirements summarized above, the EPA has also affirmed in the preamble to the rule the Agency’s commitment to insure coordination of the EPA’s and the Services’ programs and appropriate protection of T&E sp e cies an d designated critical habitat. The preamble affirms the Agency’s commitment to follow the procedures in the 2001 Memorandum of Agreement (MOA) between the Services and the EPA. See 66 Fed. Reg. 11202.
The MOA committed the EPA to a number of specific acti ons that are protective of listed species and designated critical habitat. Under the MOA, EPA committed, when contacted by the Services, to coordinate with the Services and the State/Tribe during the permit development process, in order to ensure that perm its will comply with all applicable CWA requirements. EPA’s commitment to coordinate effectively with the Services includes following the procedures in section IX.A.6 and 7 of the MOA and are described in full in the preamble. The MOA describes a process whereby if an NPDES permit causes minor detrimental effects on listed species or designated critical habitat, the Services will work with the State or Tribe to reduce those detrimental effects. If the permit causes more than minor detrimental effects, the Services will work with the State or Tribe and if unable to address the detrimental effects in the permit, EPA would work with the State or Tribe to remove or reduce the detrimental effects of the permit. This step may include EPA objecting to the state pe rmit, where appropriate.26 Where a permit is likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat, the MOA states that E PA will use the full extent of i ts CWA authority to object to the permit. If EPA objects to a NPDES permit, EPA will follow the permit objection procedures outlined in 40 CFR 123.44 and coordinate with the Services in seeking to have the State or Tribe revise its permit. A State or Trib e may not issue a permit over an outstanding EPA objection. If EPA assumes permit issuing authority for a NPDES permit, EPA will consult with the Service prior to issuance of the permit (as a Federal action) as appropriate under Section 7 of the ESA. The p reamble explains that the MOA applies to 316(b) NPDES permitting. EPA will use its oversight authority to object to proposed state permits where EPA finds (taking into account all available information, including any analysis conducted by the Services) tha t a State or Tribal permit is likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. The process described in the MOA and in the Preamble provides an addition al safeguard to ensure that today’s rule is protective of T&E species and designated critical habitat and ultimately, provides an additional assurance that individual permits issued under this rule do not jeopardize species and therefore the rule itself, is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat.

VIII. The Case
- By
- Case Approach Has Protected Listed Species
The cooperative approach EPA has adopted today in its final rul e for ensuring protection of listed threatened and endangered species and designated critical habitat in 316(b) permitting is not a new one. Rather, it builds on the constructive engagement between EPA (and other27 regulatory agencies), states and the Servi ces in the case

- by

- case permit setting. It is a process that, for a number of years, in EPA’s understanding, has worked effectively to ensure protection of threatened and endangered species and listed critical habitat. Given the provisions of today’s rul e that require detailed identification of potential concerns under the ESA and the participation of the Services in the permitting process, EPA expects, bas ed on its historical experience , that this fruitful collaboration will continue.

The record indicates that case

- by

- case NPDES permitting under the structure EPA has adopted for the final rule will provide the nec essary protection under the ESA. EPA reviewed National Pollution Discharge Elimination System ( NPDES) permit provisions and Nuclear Reg ulatory Commission (NRC) relicensing at 49 nuclear power plants that recently underwent
NRC re

- licensing subject to FWS and NMFS Section 7 consultation

. In the majority of permits and re

- licensing documents reviewed by EPA, the Services concurred with appl icants that there were no or negligible si gnificant impact to T&E species. Eight of 49 nuclear power plants that sought NRC re

- licensing were required to institute mitigative m easures to protect T&E species, including structural changes, operation al contro ls, enhanced reporting and monitoring , or combinations of measures. Examples of species for which enhanced monitoring and repo rting were required include pallid sturgeon (Ft. Calhoun , NE ), and sea turtles (Brunswick, NC, Crystal River, FL, Diablo Canyon and San Onofre, CA, and Oyster Creek , NJ ), and shortnose sturgeon (Indian Point , NY ). Two other of the facilities are still undergoing ESA consultation (Columbia Generating Station, WA, and Edwin Hatch , GA ). The St. Lucie nuclear plant in F lorida is an example of where s tructural mitigation

measures were implemented to pre vent incidental sea turtle take, including installation of turtle28 nets, installation of exclusion devices at the velocity caps, a debris removal program, and sealing off de ad

- end sections of intake pipes. Ancillary operational measures include periodic examination of intake pipes to ensure that conditions that could adversely affect sea turtles be found and corrected. The Joseph Farley nuclear plant in Alabama is another example of where operational measures were required to reduce chemical discharges to the receiving water to better protect T&E freshwater mussel species. These measures included riparian buffer management to reduce local herbicide application and reduction of chlorine in plant discharge. The Quad Cities nuclear power plant in Iowa is an example of where the FWS required , unde r a Habitat Conservation Plan, the dev elopment and implementation of a mussel habitat and population monitoring program.

EPA also iden tified Florida State NPDES permits for 15 coastal power plants that include requirements for protection of manatees, a Federally

- protected species und er the Endangered Species Act. These conditions require the plants to develop and comply with a manatee
pr otection p lan. The plan includes provisions that call for the facility to provide warm water refuges for manatees during cold periods. The facility must also notify the state of Florida and the USFWS within four hours if they have an unplanned shutdown. Th e facility must monitor water temperature in their discharge areas, and must operate to the maximum extent practicable to maintain temperatures in the di scharge area above 68 degrees. These conditions, which were reviewed and approved by the U.S. Fish and Wildlife Service, were developed in accordance with the USFWS’ Florida Manatee Recovery Plan, which was designed to maintain safe and reliable warm water refuges for wintering manatees.29 In the case of the EPA

- issued NPDES permit for the Brayton Point f acilities in Massachusetts, EPA consulted with the NMFS and the FWS concerning the 316(a) and 316(b) conditions of the NPDES permit. (40 C.F.R. § 125.72(d) requires consultation when ever EPA is considering an application for a variance under CWA § 316(a) ) . The Services concluded that the 316(a) NPDES permit limits were consistent with the E SA. The permit also included BTA limitations on the capacity of cooling water intake structures under section 316(b). The NMFS agreed that these intake capacity limit ations satisfied the requirements under the ESA. These examples demonstrate that even prior to this rule, where Directors were required to establish controls for CWISs on a best professional judgment basis under 40 CFR 125.90 or perhaps by the now remand ed Phase II rule), Directors were able to protect listed species and designated critical habitat. Today’s regulation includes many provisions that are protective of listed species and designated critical habitat. These provisions build a process for facili ties, Directors, and the Services and impose substantive requirements on facilities and Directors

. The process provided in the rule, while not wholly a new concept, does provide an NPDES regulatory structure to insure that listed species and designated cri tical habitat are protected through 316(b) permits. The process and the substantive requirements combine to insure that the regulation is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat

.