April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 1

Date April 21, 2014

To The 316(b) Existing Facilities Final Rule Record

From Abt Associates

Subject Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting

1 Introduction

Section 316(b) of the Clean Water Act (CWA) requires that the location, design, construction and 

capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing 

adverse environmental impact (U.S. EPA, 2014). These requirements for CWIS are implemented through 

National Pollutant Discharge Elimination Permits (NPDES) permits. Without a national regulation in 

place, the NPDES permits for cooling water intake structures must be established on a case-by-case basis 

using Best Professional Judgment (BPJ). Where BPJ is used, the permit writer must consider the same 

statutory factors EPA would use for a national regulation, but they are applied to the circumstances 

specific to the permittee (U.S. EPA, 2010).

EPA is promulgating requirements under section 316(b) of the CWA for existing power generating, 

manufacturing and industrial facilities. In its assessment of costs for the final rule, EPA estimated the 

costs to permitting authorities and facilities for administrative activities to determine compliance 

requirements, obtain and approve permits, and perform and review monitoring and reporting. EPA did not 

account for the costs that permitting authorities and facilities otherwise incur for BPJ-based permit 

activity, as currently occurs in the absence of a national 316(b) regulation. To the extent that permitting 

authorities and facilities incur these costs, the costs reported in the Economic Analysis (EA) of the 

regulation are overstated. This is because the BPJ costs would be subtracted from the estimated 

administrative costs to calculate society’s incremental costs for permit development and administration. It 

is possible that the aggregate administrative costs for BPJ-based permitting, now being incurred by 

permitting authorities and facilities in the absence of a national rule, exceed the costs EPA estimated in 

the EA for permit administration. In that case, the rule’s incremental costs for permit administration 

would be negative. This memorandum does not attempt to quantify the burden and costs associated with 

establishing 316(b)-related requirements for NPDES permits, but instead, reviews the inclusion of BPJbased requirements in NPDES permits and qualitatively assesses the associated burden. 

This effort required research on current general and individual NPDES permits and permitting programs 

to assess whether these permits contain requirements for impingement and/or entrainment. We reviewed 

this permit information for a sample of 18 states1. We selected the States for this review on the basis of 

regional diversity, choosing at least two states from each census region while also including States known 

to have BPJ permitting for 316(b) requirements.

This research indicates a wide range in how States and EPA Regions address 316(b) requirements in 

NPDES permits. At the lower end of the scale, research indicates that permits in 8 of the 18 States are 

silent on 316(b) requirements. However, permits in the remaining 10 States include 316(b) requirements, 

 

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Including Massachusetts and New Hampshire, which do not have delegated permit administration authority under the CWA. 

EPA Region 1 administers NPDES permits for these states.

Memorandum

Environment and Resources
April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 2

which indicates some level of BPJ-based permitting activity, and associated administrative burden and 

cost. The character of these requirements, and the burden that permitting authorities and facilities would 

face in developing and administering BPJ-based permits, varies substantially across these States. Some 

States have relatively modest data and permit processing requirements in general permits, while others 

require, either in general permits or individual permits, a higher standard of information submission and 

process for determining 316(b) requirements to be included in NPDES permits. In these cases – in which 

facilities submit information as part of the permitting process and permitting authorities review this 

information and make permitting decisions based on the reviews – it is clear that facilities and permitting 

authorities are now performing activities that are similar to those that will be required by the final rule.

Based on this assessment, EPA’s analysis of administrative costs for the final rule is likely an 

overestimate because it does not subtract the costs currently incurred for these permitting activities and 

therefore is not a true incremental cost. The remainder of this memo describes the research conducted as 

well as details of the permits identified that contain 316(b)-related requirements.

2 Inclusion of 316(b)-Related Requirements in NPDES Permits

We reviewed a selection of general NPDES permits, individual NPDES permits, and NPDES permitting

programs to characterize the current effort to include 316(b) requirements in permits.

2.1 General Permits

We conducted a search of State general NPDES permits for non-contact cooling water using EPA’s 

General Permit Search for the NPDES General Permit Inventory (U.S. EPA, 2013). This search returned

nearly 20 potentially relevant general permits, of which we randomly selected seven for review. In this 

review, we found one general permit that establishes requirements specifically for section 316(b). The 

Alabama general NPDES permit for non-contact cooling water, issued in 2011 and effective from 2012 to 

2017, indicates that an initial BTA determination for a facility’s CWIS will be made during the permit 

renewal. The permit outlines two cases, the first where no additional CWIS information is needed for a 

subsequent BTA determination and, the second, where the existing BTA determination was based on 

limited or uncertain information. In the first case, the facility is required to: (1) submit information on the 

intake flow and any changes made to the operation of the CWIS since issuance of the previous permit, 

and (2) provide an estimate of the flow reduction that would be achieved using a closed-cycle 

recirculating system as opposed to a once-through system. In the second case, the facility is required to 

submit more detailed information on the cooling water intake structure and system. In the second case, the 

permitting authority may find that the facility does not meet BTA under the general permit, and may 

therefore have to apply for an individual NPDES permit (ADEM, 2011). 

The Alabama general permit requires facilities to collect and submit information and the permitting 

authority to review and assess the information for a BTA determination. These requirements are similar to 

those required by the final rule. EPA’s analysis of costs for the final rule did not exclude costs to the 

Alabama permitting authority and the regulated facilities located in Alabama for administrative activities 

that may already be occurring under the general permit; as a result, the cost estimates in the EA likely 

overstate the final rule’s incremental cost.

2.2 Individual Permits

EPA reviewed 16 draft and final individual NPDES permits for Electric Generators from eight states. This 

research indicates that permits can be divided into three subsets: 

1. Permit does not mention 316(b) and CWIS requirements (five permits).

2. Permit contains 316(b) requirements but does not appear to require submission of information or 

reevaluation of permit requirements at the time of permit renewal unless the CWIS or its 
April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 3

operation have been modified since the last permit renewal. In addition, these permits do not 

appear to establish ongoing administrative requirements for the facility (four permits).

3. Permit contains 316(b) requirements and requires submission of information at the time of permit 

renewal (regardless of whether the CWIS or its operations have been modified) and/or establishes

ongoing administrative requirements (seven permits).

The first group of permits suggests that some facilities and permitting authorities face no 316(b)-related 

administrative burden in the absence of a federal regulation.

The second group of permits also appears not to place a major administrative burden on either the facility 

or the permitting authority now but does indicate that 316(b) requirements were addressed in the context 

of BPJ-based permitting in the past, and could be faced again in the future. In these cases, facilities would 

typically not need to submit substantial information and permitting authorities would not need to engage 

much in reviews and determinations of revised/new requirements for existing permits unless a facility has 

changed its CWIS. We summarize several examples:

 In a Missouri permit, the permitting authority simply states that the permit may be revoked and 

reissued to establish or modify requirements for existing CWIS and that until a new 316(b) rule is 

promulgated, the facility must continue operating its CWIS as previously indicated and approved

(MDNR, 2012).

 A permit for a facility in Tennessee similarly states that the 316(b) limits for the facility are 

consistent with BTA for minimizing adverse environmental impact but that the permit may be 

reopened if there is a new rule or final guidance from U.S. EPA (TDEC, 2011). 

 Another Missouri permit indicates that because no modifications have occurred to the CWIS 

since performance of 316(b) studies in 1984 and 1986, no further information or studies are 

required for the current permit renewal (MDNR, 2010). 

 A permit for a South Carolina facility indicates that the facility was not required to perform a 

316(b) study because a previous study indicated no significant threat to the biological integrity of 

the source waterbody due to low water velocities (Duke Power, 2005). 

In most cases, the language in these permits suggests that if CWIS operations or the CWIS itself have not 

changed, then no additional information and related permit determinations would be required at the time 

of permit renewal, and that the existing permit would essentially be automatically renewed. However, if 

CWIS operations or the CWIS itself have been modified, the permit would be reopened. While these 

permits do not indicate that a burden is necessarily placed now on facilities or permitting authorities

(assuming no modification to the CWIS), they do imply that facilities and permitting authorities faced a 

burden at some time in the past for developing the current permit, and that a burden could be faced in the 

future should any changes occur in the facilities’ CWIS. Thus, the existence of these permits indicates 

that facilities and permitting authorities have faced, and could face, again, a burden associated with BPJbased permitting. 

The third set of permits appears to require submission of information from the facility and reevaluation of 

permit requirements regardless of whether the CWIS or its operations have been modified and/or 

establish ongoing administrative requirements (i.e., monitoring and reporting) apart from requirements in 

conjunction with permit renewal. These permits imply a higher level of administrative burden to the 

facility and the permitting authority.

 An Illinois permit establishes a requirement for the facility to monitor fish impingement once per 

week, tabulate that data, compare the data to historical data for the same period, and then submit 

the information to IEPA and Illinois DNR. The Illinois permitting authority also requires that the 

facility submit descriptions of the design and operation of the intake structure, modifications 

from original design parameters, source waterbody flow and other information, as necessary in 
April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 4

order for the authority to evaluate potential CWIS impacts pursuant to 40 CFR 125.90(b) (IEPA, 

2008).

 In another Illinois permit, final action related to CWIS operation was still under review and the 

permitting authority indicated that, based on a BPJ review, the permit might be modified to 

require additional information (Exelon Generation, 2012). 

 In the third Illinois permit reviewed, the permitting authority finds that the facility’s closed-cycle 

recirculating system, a cooling pond, qualifies as BTA for preventing impingement mortality in 

accordance with BPJ provisions. However, the permitting authority still requires that the facility 

submit information on the CWIS design and operation, source waterbody flow, current and 

historical impingement/entrainment data, and any CWIS modifications, structural or operational,

in order to facilitate a BPJ review (IEPA, 2013).

 The permit for a facility located in South Dakota requires the facility to submit and comply with a 

best management practices (BMP) plan to minimize adverse environmental impact, including 

reduction of impingement and entrainment (SDENR, 2014).

 Consistent language across three Texas permits imply that there is a systematic requirement for 

facilities to submit documentation of CWIS-related information for a BTA determination and that 

each facility is required to adhere to the conditions set forth in that documentation. In addition,

the permit includes language to leave open the possibility that the permit be reopened if it is later 

decided that the CWIS configuration is not BTA for minimizing adverse environmental impact 

(TCEQ, 2011a; TCEQ, 2011b; TCEQ, 2013).

In the latter two of these three categories, EPA found that Permit Directors are including, and will 

continue to include, impingement and/or entrainment requirements in the NPDES permitting process in 

the absence of a national 316(b) regulation, and consequently will incur an administrative cost and also 

impose an administrative burden on regulated facilities. Therefore, the administrative costs assigned by 

EPA for the final rule and other options EPA considered are very likely an overestimate. 

2.3 NPDES Permitting Programs

In addition to the review of State permits, EPA also reviewed 316(b)-related policy and permitting 

programs for authorities known to have a more systematic, structured approach for establishing 316(b) 

requirements in the NPDES permitting process: Region 1 NPDES permitting in New Hampshire and 

Massachusetts, and New York Department of Environmental Conservation (NYDEC) State Pollutant 

Discharge Elimination System (SPDES) permitting. For Massachusetts and New Hampshire (which do

not have delegated authority under the CWA for administering NPDES permits), EPA Region 1 has 

undertaken thorough reviews of a facility’s existing plant cooling water system (CWS) and potential 

CWS modifications at the time of permit renewal. These reviews generally involve both 316(b) permit 

specifications (for the cooling water intake system) and thermal discharge specifications (discharge of 

“hot” water as a pollutant subject to technology-based discharge limits). In some instances, facilities have 

been asked to prepare and submit detailed impingement and entrainment studies, and engineering 

assessments of alternative CWS technology, including cost estimates, to support BPJ-based permit 

determinations. Although not tied strictly to CWIS as opposed to the overall CWS, including 

consideration of thermal discharge, these efforts can require a substantial commitment of resources, 

which may exceed the administrative burden that will occur under the final rule.

Similarly to Region 1, NYDEC has also established stringent CWIS requirements with a State-level 

regulation that requires a closed-cycle recirculating system (CCRS) for facilities with a design intake flow 

(DIF) of 20 mgd or more (NYDEC, 2011). However, apart from requiring CCRS, NYDEC has also 

established requirements, such as impingement-related technology, for some facilities. For instance, 

NYDEC is requiring Port Jefferson Station to install variable speed pumps, a modified Ristroph-type 

screen, and a low stress fish return system by December 2014. Likewise, the NYDEC specified 
April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 5

technology requirements for the Ravenswood Generation Station along with compliance monitoring 

beginning in 2012 and biological sampling starting in 2013/2014 (NYDEC, 2014). In summary, for New 

York facilities, Permit Directors are establishing site-specific CWIS requirements in addition to the Statelevel requirement of cooling towers for facilities with a DIF of 20 mgd or higher. 

3 References

Alabama Department of Environmental Management (ADEM). 2011. National Pollutant Discharge 

Elimination System General Permit: Discharges of Non-Contact Cooling Water, Cooling Tower 

Blowdown, and Boiler Blowdown with and without Demineralizer Wastewater. ALG250000. Available 

electronically at: http://adem.alabama.gov/programs/water/permits/ALG250000NCCW.pdf. 

Duke Power. 2005. Catawba Nuclear Station, Units 1 and 2. Docket Nos. 50413 and 50414. National 

Pollutant Discharge Elimination System (NPDES) Permit No. SC0004278. Available electronically at: 

http://pbadupws.nrc.gov/docs/ML0518/ML051880052.pdf. 

Exelon Generation. 2012. Clinton Power Station National Pollutant Discharge Elimination System 

(NPDES) Permit No. IL0036919. Available electronically at: 

http://pbadupws.nrc.gov/docs/ML1220/ML12207A214.pdf. 

Illinois Environmental Protection Agency (IEPA). 2008. National Pollutant Discharge Elimination 

System (NPDES) Permit Program: Draft Reissued NPDES Permit to Discharge into Waters of the State. 

NPDES Permit No. IL0005037. Available electronically at: http://www.epa.state.il.us/publicnotices/2008/exelon-quad-cities/index.pdf. 

Illinois Environmental Protection Agency (IEPA). 2013. National Pollutant Discharge Elimination 

System (NPDES) Permit Program: Draft Reissued NPDES Permit to Discharge into Waters of the State. 

NPDES Permit No. IL0048151. Available electronically at: http://www.epa.state.il.us/publicnotices/2013/exelon-lasalle/index.pdf. 

New York Department of Environmental Conservation (NYDEC). 2011. CP-#52 / Best Technology 

Available (BTA) for Cooling Water Intake Structures. Available electronically at: 

http://www.dec.ny.gov/docs/fish_marine_pdf/btapolicyfinal.pdf.

New York Department of Environmental Conservation (NYDEC). 2014. Aquatic Habitat Protection. 

Web. Accessed February 28, 2014. Available electronically at: 

http://www.dec.ny.gov/animals/32847.html. 

State of Missouri Department of Natural Resources (MDNR). 2010. Missouri State Operating Permit 

MO-0098001. Available electronically at: http://www.dnr.mo.gov/env/wpp/permits/issued/0098001.pdf. 

State of Missouri Department of Natural Resources (MDNR). 2012. Missouri State Operating Permit 

MO- 0004847. Available electronically at: http://www.dnr.mo.gov/env/wpp/permits/issued/0004847.pdf. 

State of Tennessee Department of Environment and Conservation (TDEC). 2011. Modification to NPDES 

Permit No. TN0005410. Available electronically at: http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:3194737682865::NO:34051:P34051_PERMIT_N

UMBER:TN0005410. 

South Dakota Department of Environment and Natural Resources (SDENR). 2014. Title V Air Quality 

Operating Permit and Acid Rain Permit and Surface Water Discharge Permit. SD-0000264. Available 

electronically at: http://denr.sd.gov/pdfaq1/SD-0000264_permit_20140206.pdf. 

Texas Commission on Environmental Quality (TCEQ). 2011a. Permit to Discharge Wastes under 

provisions Section 402 of the Clean Water Act and Chapter 26 of the Texas Water Code. TPDES Permit 

No. WQ0001303000. Available electronically at: 
April 21, 2014 Abt Associates | Assessment of Administrative Costs for BPJ-Based CWA 316(b) Permitting | pg 6

http://www12.tceq.state.tx.us/crpub/index.cfm?fuseaction=iwr.viewdocument&doc_name=Permit%2001

303000%2Epdf&doc_id=772414732011105&format_cd=pdf. 

Texas Commission on Environmental Quality (TCEQ). 2011b. Permit to Discharge Wastes under 

provisions Section 402 of the Clean Water Act and Chapter 26 of the Texas Water Code. TPDES Permit 

No. WQ0001490000. Available electronically at: 

http://www12.tceq.state.tx.us/crpub/index.cfm?fuseaction=iwr.viewdocument&doc_name=Permit%2001

490000%2Epdf&doc_id=889514672011145&format_cd=pdf. 

Texas Commission on Environmental Quality (TCEQ). 2013. Permit to Discharge Wastes under 

provisions Section 402 of the Clean Water Act and Chapter 26 of the Texas Water Code. TPDES Permit 

No. WQ0001369000. Available electronically at: 

http://www12.tceq.state.tx.us/crpub/index.cfm?fuseaction=iwr.viewdocument&doc_name=Permit%2001

369000%2Epdf&doc_id=455420842013042&format_cd=pdf. 

United States Environmental Protection Agency (U.S. EPA). 2010. NPDES Permit Writers’ Manual. 

EPA-833-K-10-001. September 2010. Available electronically at: 

http://cfpub.epa.gov/npdes/writermanual.cfm?program_id=45.

United States Environmental Protection Agency (U.S. EPA). 2013. NPDES General Permit Inventory. 

Web. May 29, 2013. Accessed February 26, 2014. Available electronically at:

http://cfpub.epa.gov/npdes/permitissuance/genpermits.cfm. 

United States Environmental Protection Agency (U.S. EPA). 2014. Cooling Water Intake Structures—

CWA §316(b). Web. Accessed March 3, 2014. Available electronically at: 

http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/.