UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Donna Wieting 

Director, Office of Protected Resources 

National Marine Fisheries Service 

1315 East-West Highway, F/PR3 

Silver Spring, MD 2091 0 

Gary Frazer 

Assistant Director, Endangered Species 

United States Fish and Wildlife Service 

4401 North Fairfax Drive 

Arlington, VA 22203 

JUN 18 2013 

QrFICE OF WATER 

Subject: Initiation of Formal Consultation on the EPA's Final Regulations to Establish 

Requirements for Cooling Water Intake Structures at Existing Facilities and Amend 

Requirements at Phase I Facilities 

Dear Ms. Wieting and Mr. Frazer: 

The U.S. Environmental Protection Agency is requesting formal consultation, pursuant to 

Section 7(a)(2) of the Endangered Species Act and implementing regulations at 50 CFR § 

402.14(c), with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service 

(the Services) on the EPA's "Final Regulations to Establish Requirements for Cooling Water 

Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities." Pursuant 

to 40 C.F.R. § 402.12, I have sent under separate cover the EPA's Biological Evaluation. The 

BE evaluates the potential effects of the EPA's action on listed and proposed species and 

designated and proposed critical habitat and assesses whether any such species or habitat are 

likely to be adversely affected by the action. 

Thank you for the considerable time and effort that you and your staff have devoted to the 

informal consultation process that we initiated in July 2012 with NMFS and in October 2012 

with FWS, including multiple briefings on the contents of the draft 316(b) rule, discussion of the 

proposed outline and methodological approach for a biological evaluation, and review of two 

drafts of the BE. 

As we have discussed, the 316(b) rule when promulgated will reduce the current mortality of 

aquatic organisms, including threatened and endangered species, at cooling water intake 

structures. The magnitude of mortality reduction, however, will depend on the type, size, and 

location of facilities, the degree of improvement in CWIS performance required by the rule, the 

nature and number ofT &E species in the vicinity of CWISs, as well as other site-specific factors. 

Because the 316(b) rule will reduce impacts to listed species from cooling water take structures, 

the Agency continues to believe that it will not cause adverse effects and will benefit affected 

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species whether threatened, endangered, or otherwise. Nonetheless, the EPA has decided to 

request formal consultation to ensure full and expeditious consideration of the impacts to listed 

species under section 7(a)(2). Consequently, the EPA is requesting initiation of formal 

consultation under Section 7 of the ESA because, as discussed in the BE, after promulgation and 

implementation of the 316(b) rule, the rule may allow as many as 215 T &E species and 30 

critical habitats ofT&E species to continue to be affected. 

The sections below provide the necessary infommtion for initiating consultation pursuant to 50 

CFR 402.14(c). 

I. Description of Agency Actions 

The action on which the EPA requests fonnal consultation is a regulation the EPA is in the 

process of finalizing, to implement CW A Section 316(b ). Section 316(b) requires that the EPA 

establish standards for cooling water intake structures that reflect the best technology available 

for minimizing adverse environmental effects. The final rule will be implemented through 

conditions included in NPDES (National Pollutant Discharge Elimination System) permits, 

required under section 402 of the CWA, for facilities that withdraw cooling water from waters of 

the United States. 

On April 20, 2011, the EPA published proposed standards for cooling water intake structures at 

all existing power generating facilities and existing manufacturing and industrial facilities. The 

proposal included requirements for facilities that have a design intake flow of greater than two 

million gallons per day from waters of the United States and use at least 25 percent of the water 

they withdraw exclusively for cooling purposes on an actual intake flow basis. The proposal 

included provisions to address impingement (pinning of organisms against intake screens) and 

entrainment (organisms sucked through intake screens). While the proposal included 

an impingement mortality performance standard, the EPA did not propose uniform entrainment 

controls. Rather, the EPA proposed that entrainment requirements should be established by 

NPDES permitting authorities on a site-specific basis. In connection with the development of 

these requirements, facilities with an average intake flow of more than 125 mgd would need to 

develop an entrainment characterization study to help permit Directors determine facilityspecific entrainment requirements. 

The EPA has included in the BE a description ofthe number of facilities subject to the rule. The 

EPA has accurate information on the location of electric generators, but does not have complete 

infom1ation on the location of all manufacturing facilities with a CWIS. To compensate for this, 

the EPA has included information in the BE on all manufacturers in the industries known to use 

cooling water, even though some of these facilities will not have a CWIS. 

II. Description of Action Area 

The action area for the 316(b) rule includes "waters of the United States," defined in 40 CFR§ 

122.2 as certain inland waters and the territorial sea extending three miles from shore. As 

discussed in the BE, the EPA's analysis examined CWIS impacts and regulatory benefits in 

seven aquatic study regions: California, North Atlantic, Mid-Atlantic, South Atlantic, Gulf of 
Mexico, Great Lakes, and Inland The study regions were chosen based on regional similarities 

within ecosystems, aquatic species, and characteristics of commercial and recreational fishing 

activities. Based on the delineation between marine and freshwater ecosystems, these seven 

study regions were broadly categorized into Coastal, Great Lakes, and Inland regions. 

III. Description of Listed Species or Designated Critical Habitat That May Be Affected 

As discussed in the BE, the 316(b) rule is likely to affect 215 T &E species with habitat ranges 

that overlap with at least one CWIS. Additionally, the critical habitats of30 T&E species overlap 

with at least one CWIS. Few data are available for the EPA to estimate the mortality ofT &E 

species at CWISs subject to the 316(b) final rule. Consequently, to assess the potential for 

impacts of the 316(b) rule on T &E species, the EPA identified current spatial overlap between 

the locations of CWISs subject to the rule and the location of federally designated critical 

habitats or habitat ranges ofT &E species. The overlap analysis was conducted for all life history 

stages for all aquatic T &E species with available data. However, due to the uncertainty regarding 

the location of all CWISs, the EPA was not able to conclusively identify all listed species or 

associated life stages that could be potentially affected. Accordingly, the EPA followed ESA 

regulations requiring the assumption of a reasonable worst case analysis when more accurate 

data are unavailable. 

The BE addresses aquatic T &E species as well as aquatic-dependent T &E species which include 

reptiles, birds, and terrestrial mammals whose diet contains an appreciable proportion of aquatic 

organisms. These species are likely to be only indirectly affected by the 316(b) rule. 

IV. Description of How Agency Actions May Affect Listed Species 

The EPA attempted to estimate the changes in mortality as a result of the 316(b) rule for all T&E 

species. Sufficient data, however, have not been collected at CWISs to estimate the baseline or 

amount of future reduction in mortality ofT &E species. The 3l6(b) rule, as currently written, 

would require facilities to collect source water baseline biological characterization data, 

entrainment biological characterization data, and where applicable, biological performance 

studies over a two year period prior to submission of an application for a permit. These data will 

enable permit Directors, and the Services, to determine whether T &E species are present, 

whether they are being harmed, and to require appropriate CWIS controls. 

V. Next Steps 

My staff and I have appreciated the positive, collaborative effort among our agencies during the 

informal consultation process of developing the BE. We look forward to continuing that 

relationship through formal consultation. Separate from this letter, we are providing you with a 

predecisional, deliberative copy of the draft 316(b) rule along with a copy of the BE. 

Additionally, my staff are providing the Services with the raw data files used to produce the BE. 

As we have discussed, we will schedule reoccurring biweekly meetings with the Services to 

assist with your preparation of the biological opinion. We will also schedule regular check-in 

meetings with senior management at our respective agencies to ensure steady progress 

throughout this consultation. 
Please do not hesitate to call me at (202) 566-1822 or Julie Hewitt at (202) 566-l 031 if you or 

anyone on your staff has questions regarding this matter. 

Robert K. Wood, Director 

Engineering and Analysis Division