Vol. 79 Friday, 

No. 158 August 15, 2014 

Part II 

Environmental Protection Agency 

40 CFR Parts 122 and 125 

National Pollutant Discharge Elimination System—Final Regulations To 

Establish Requirements for Cooling Water Intake Structures at Existing 

Facilities and Amend Requirements at Phase I Facilities; Final Rule 


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48300 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 122 and 125 

[EPA–HQ–OW–2008–0667, FRL–9817–3] 

RIN 2040–AE95 

National Pollutant Discharge 

Elimination System—Final Regulations 

To Establish Requirements for Cooling 

Water Intake Structures at Existing 

Facilities and Amend Requirements at 

Phase I Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The purpose of this action is 

to reduce impingement and entrainment 

of fish and other aquatic organisms at 

cooling water intake structures used by 

certain existing power generation and 

manufacturing facilities for the 

withdrawal of cooling water from waters 

of the United States. This rule 

establishes requirements under section 

316(b) of the Clean Water Act (CWA) for 

existing power generating facilities and 

existing manufacturing and industrial 

facilities that are designed to withdraw 

more than 2 million gallons per day 

(mgd) of water from waters of the 

United States and use at least 25 percent 

of the water they withdraw exclusively 

for cooling purposes. These national 

requirements, which will be 

implemented through National 

Pollutant Discharge Elimination System 

(NPDES) permits, apply to the location, 

design, construction, and capacity of 

cooling water intake structures (CWIS) 

at regulated facilities and provide 

requirements that reflect the best 

technology available (BTA) for 

minimizing adverse environmental 

impact. On April 20, 2011, EPA 

published a proposed rule that included 

several options for addressing these 

impacts. Subsequently, EPA published 

two Notices of Data Availability 

(NODA), on June 11, 2012 and June 12, 

2012, that further clarified EPA’s 

proposed approach. This final rule also 

responds to judicial remand of aspects 

of the previously promulgated Phase II 

and Phase III section 316(b) rules. In 

addition, EPA is also responding to an 

earlier judicial decision by removing 

from the previously promulgated Phase 

I new facility rule a restoration-based 

compliance alternative and the 

associated monitoring and 

demonstration requirements. 

DATES: This regulation is effective 

October 14, 2014. For judicial review 

purposes, this final rule is promulgated 

as of 1 p.m. EDT (Eastern Daylight 

Time) on August 29, 2014 as provided 

in 40 CFR 23.2. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2008–0667. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI (confidential business 

information) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hardcopy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hardcopy at 

the Water Docket in the EPA Docket 

Center, EPA/DC, EPA West, Room 3334, 

1301 Constitution Avenue NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is 202– 

566–1744, and the telephone number for 

the Water Docket is 202–566–2426. 

FOR FURTHER INFORMATION CONTACT: For 

additional biological information, 

contact Tom Born at 202–566–1001; 

email: born.tom@epa.gov. For additional 

economic information, contact Wendy 

Hoffman at 202–564–8794; email: 

hoffman.wendy@epa.gov. For additional 

technical information, contact Paul 

Shriner at 202–566–1076; email: 

shriner.paul@epa.gov. 

SUPPLEMENTARY INFORMATION: 

What facilities are regulated by this 

action? 

This final rule applies to existing 

facilities that use cooling water intake 

structures to withdraw water from 

waters of the United States and have or 

require an NPDES (National Pollutant 

Discharge Elimination System) permit 

issued under section 402 of the CWA 

(Clean Water Act). Existing facilities 

subject to this regulation include those 

with a design intake flow (DIF) greater 

than 2 mgd. If a facility meets these 

conditions, it is subject to today’s final 

regulations. If a facility has or requires 

an NPDES permit but does not meet the 

2 mgd intake flow threshold, it is 

subject to permit conditions 

implementing CWA section 316(b), 

developed by the NPDES Permit 

Director on a case-by-case basis using 

BPJ (best professional judgment) under 

40 CFR 125.90(b). This final rule defines 

the term cooling water intake structure 

to mean the total physical structure and 

any associated constructed waterways 

used to withdraw cooling water from 

waters of the United States. The cooling 

water intake structure extends from the 

point at which water is first withdrawn 

from waters of the United States source 

up to, and including, the intake pumps. 

Generally, facilities that meet these 

criteria fall into two major groups: steam 

electric generating facilities and 

manufacturing facilities. The final rule 

also makes limited changes to the 

requirements for Phase I facilities (i.e., 

new facilities). 

Exhibit 1 lists industry sectors of 

facilities subject to this final rule. This 

table is not intended to be exhaustive; 

facilities in other industries not listed in 

Exhibit 1 could also be regulated. The 

4-digit NAICS industry sectors may 

include 6-digit NAICS industry subsectors with operations that are not 

dependent on cooling water. 


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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48301 

EXHIBIT 1—INDUSTRY SECTORS WITH FACILITIES SUBJECT TO THE FINAL RULE

Category 4-Digit NAICS industry 

sectors NAICS definition 

Federal, State and Local Government Electric Power Industry 

2211 Electric Power Generation, Transmission and Distribution. 

Industry Electric Power Industry 

2211 Electric Power Generation, Transmission and Distribution. 

Industry Primary Manufacturing 

Industries 

3112 Grain and Oilseed Milling. 

3113 Sugar and Confectionery Product Manufacturing. 

3121 Beverage Manufacturing. 

3221 Pulp, Paper, and Paperboard Mills. 

3222 Converted Paper Product Manufacturing. 

3241 Petroleum and Coal Products Manufacturing. 

3251 Basic Chemical Manufacturing. 

3252 Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing. 

3253 Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing. 

3254 Pharmaceutical and Medicine Manufacturing. 

3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing. 

3259 Other Chemical Product and Preparation Manufacturing. 

3311 Iron and Steel Mills and Ferroalloy Manufacturing. 

3312 Steel Product Manufacturing from Purchased Steel. 

3313 Alumina and Aluminum Production and Processing. 

Industry Other Industries 

1119 Other Crop Farming. 

2122 Metal Ore Mining. 

3133 Textile and Fabric Finishing and Fabric Coating Mills. 

3211 Sawmills and Wood Preservation. 

3314 Nonferrous Metal (except Aluminum) Production and Processing. 

3322 Cutlery and Handtool Manufacturing. 

3329 Other Fabricated Metal Product Manufacturing. 

3364 Aerospace Product and Parts Manufacturing. 

3391 Medical Equipment and Supplies Manufacturing. 

To determine whether a facility could 

be regulated by this action, one should 

carefully examine the applicability 

criteria in § 125.91 of the final rule. For 

information regarding the applicability 

of this action to an entity, consult the 

persons listed for technical information 

in FOR FURTHER INFORMATION CONTACT. 

Supporting Documentation 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

EPA–HQ–OW–2008–0667. The official 

public docket consists of the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action. 

Although a part of the official docket, 

the public docket does not include 

information claimed as Confidential 

Business Information (CBI) or other 

information, the disclosure of which, is 

restricted by statute. For information on 

how to access materials in the docket, 

see ADDRESSES above. To view docket 

materials, call ahead to schedule an 

appointment. Every user is entitled to 

copy 266 pages per day before incurring 

a charge. The Docket Center may charge 

$0.15 for each page over the 266-page 

limit, plus an administrative fee of 

$25.00. 

2. Electronic Access 

You may access this Federal Register 

document and the docket electronically 

through the Web site http://

www.regulations.gov by searching for 

Docket ID EPA–HQ–OW–2008–0667. 

For additional information about the 

public docket, visit the EPA Docket 

Center home page at http://

www.epa.gov/epahome/dockets.htm. 

3. Technical Support Documents 

The final regulation is supported by 

three major documents: 

• Economic Analysis for the Final 

Section 316(b) Existing Facilities Rule 

(EPA–821–R–14–001), referred to as the 

EA throughout. This document presents 

the analysis of compliance costs, 

economic impacts, energy supply 

effects, and a summary of benefits 

associated with the final rule. 

• Benefits Analysis for the Final 

Section 316(b) Existing Facilities Rule 

(EPA–821–R–14–005), referred to as the 

BA throughout. This document 

examines cooling water intake structure 

impacts and regulatory benefits at the 

regional and national levels. 

• Technical Development Document 

for the Final Section 316(b) Existing 

Facilities Rule (EPA–821–R–14–002), 

referred to as the TDD throughout. This 

document presents detailed information 

on the methods used to develop unit 

costs and describes the set of 

technologies that may be used to meet 

the final rule requirements. 

Table of Contents 

I. Executive Summary and Scope of Today’s 

Rulemaking 

A. Executive Summary 

B. Scope of Today’s Rulemaking 

C. General Applicability 


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1As noted here, the term BTA means ‘‘best 

technology available for minimizing adverse 

environmental impact.’’ In the interests of brevity, 

the acronym will frequently be used in the 

preamble to reflect the entire definition. 

D. What is an ‘‘existing facility’’ for 

purposes of the final rule? 

E. What is ‘‘cooling water’’ and what is a 

‘‘cooling water intake structure?’’ 

F. Would my facility be covered only if it 

is a point source discharger? 

G. Would my facility be covered if it 

withdraws water from waters of the 

united states? What if my facility obtains 

cooling water from an independent 

supplier? 

H. What intake flow thresholds result in an 

existing facility being subject to the final 

rule? 

I. What are the requirements for existing 

offshore oil and gas facilities, offshore 

seafood processing facilities or LNG 

terminals BTA requirements under the 

final rule? 

J. What is a ‘‘new unit’’ and how are new 

units addressed under the final rule? 

K. Amendments related to the phase I rule 

II. Legal Authority for and Background of the 

Final Regulation 

A. Legal Authority 

B. Purpose of the Regulation 

C. Background 

III. Environmental Effects Associated With 

Cooling Water Intake Structures 

A. Introduction 

B. Major Anthropogenic Stressors in 

Aquatic Ecosystems 

C. Effects of CWIS on Aquatic Ecosystems 

D. Community—Level or Indirect Effects of 

CWIS 

E. Cumulative Effects of Multiple Facilities 

IV. Summary Description of the Final Rule 

A. BTA Standard for Impingement 

Mortality for Existing Units at Existing 

Facilities 

B. BTA Standard for Entrainment for 

Existing Units at Existing Facilities 

C. BTA Standard for Impingement 

Mortality and Entrainment for New Units 

at Existing Facilities 

D. Other Provisions 

V. Summary of Data Updates and Revisions 

to the Proposed Rule 

A. Data Updates 

B. Regulatory Approach and Compliance 

C. New Units 

VI. Basis for the Final Regulation 

A. EPA’s Approach to BTA 

B. Overview of Final Rule Requirements 

C. Technologies Considered To Minimize 

Impingement and Entrainment 

D. Technology Basis for Today’s Final Rule 

E. Option Selection 

F. Other Options Considered for Today’s 

Final Regulation 

G. Final Rule BTA Performance Standards 

H. Economic and Benefit Analysis for the 

Final Rule 

I. Site-Specific Consideration of 

Entrainment Controls 

VII. Response to Major Comments on the 

Proposed Rule and Notices of Data 

Availability (NODAs) 

A. Scope and Applicability 

B. Proposed Amendments Related to Phase 

I Rule 

C. Environmental Impact Associated With 

Cooling Water Intake Structures 

D. EPA’s Approach to BTA 

E. BTA Performance Standards 

F. Implementation 

G. Costs 

H. Monitoring and Reporting 

I. Endangered Species Act 

VIII. Implementation 

A. When does the final rule become 

effective and how are the requirements 

sequenced in an orderly way? 

B. How does the final rule reduce 

biological monitoring requirements? 

C. What information will I be required to 

submit to the director when I apply for 

my NPDES permit? 

D. When are permit application studies 

due? 

E. How will the director determine the best 

technology available for minimizing 

adverse environmental impacts? 

F. What are example permit conditions and 

compliance monitoring for impingement 

mortality? 

G. What monitoring is required for 

entrainment? 

H. What reports am I required to submit? 

I. What records will I be required to keep? 

J. What are the respective Federal, State, 

and Tribal roles? 

K. Protection of Endangered and 

Threatened Species and Designated 

Critical Habitat 

L. Permits for Existing Facilities are 

Subject to Requirements under Other 

Federal Statutes 

IX. Cost Development and Economic Impact 

Analysis 

A. Overview of Costs to Regulated 

Facilities and Federal and State 

Governments 

B. Development of Compliance Costs 

C. Social Costs 

D. Economic Impacts 

E. Employment Effects 

X. Benefits Analysis 

A. Introduction 

B. Regional Study Design 

C. Physical Impacts of Impingement 

Mortality and Entrainment 

D. National Benefits of the Final Rule and 

Options Considered 

XI. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Executive Order 13158: Marine 

Protected Areas 

L. Congressional Review Act 

I. Executive Summary and Scope of 

Today’s Rulemaking 

A. Executive Summary 

1. Summary of the Major Provisions of 

the Regulatory Action 

This rule establishes requirements 

under section 316(b) of the Clean Water 

Act (CWA) for existing power generating 

facilities and existing manufacturing 

and industrial facilities that withdraw 

more than 2 million gallons per day 

(mgd) of water from waters of the 

United States and use at least 25 percent 

of the water they withdraw exclusively 

for cooling purposes. These national 

requirements, which will be 

implemented through National 

Pollutant Discharge Elimination System 

(NPDES) permits, apply to the location, 

design, construction, and capacity of 

cooling water intake structures (CWIS) 

at regulated facilities by setting 

requirements that reflect the best 

technology available (BTA) for 

minimizing adverse environmental 

impact.1 On April 20, 2011, EPA 

published a proposed rule that included 

several options for addressing these 

impacts. EPA published two Notices of 

Data Availability (NODA), on June 11, 

2012 and June 12, 2012, that further 

clarified EPA’s approach. This final rule 

constitutes EPA’s response to the 

remand of the Phase II and Phase III 

rules. In addition, EPA is also 

responding to the decision in 

Riverkeeper I to remove from the Phase 

I new facility rule the restoration-based 

compliance alternative and the 

associated monitoring and 

demonstration requirements. 

2. Need for the Rule 

Cooling water is withdrawn for the 

purpose of dissipating waste heat from 

industrial processes. Over half of all 

water withdrawn in the United States 

each year is for cooling purposes. By far, 

the largest industrial use of cooling 

water is for thermoelectric generation, 

but cooling water is also used in the 

manufacture of aluminum, chemicals 

and allied products, food and kindred 

products, pulp and paper, refined 

petroleum products, and steel, as well 

as in other industries. Although newer 

designs are more efficient, the long life 

of the capital equipment in these 

industries suggests that the adverse 

environmental impacts could continue 

for decades. Electric generators, for 


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example, typically convert 30 to 40 

percent of the heat content of their fuel 

to electricity, depending on their fuel 

source, age of their facility, and capacity 

utilization (see TDD 5.1). The purpose 

of cooling water withdrawals is to 

dissipate that portion of the heat that is 

a by-product of industrial processes that 

facilities have not used and therefore 

view as waste heat. 

The withdrawal of cooling water by 

existing facilities removes and kills 

hundreds of billions of aquatic 

organisms from waters of the United 

States each year, including plankton 

(small aquatic animals, including fish 

eggs and larvae), fish, crustaceans, 

shellfish, sea turtles, marine mammals, 

and many other forms of aquatic life. 

Most impacts are to early life stages of 

fish and shellfish. Aquatic organisms 

drawn into CWIS are either impinged (I) 

on components of the intake structure or 

entrained (E) in the cooling water 

system itself. In CWA section 316(b) and 

in this rulemaking, these impacts are 

referred to as adverse environmental 

impact (AEI). Rates of I&E depend on 

species characteristics, the facility’s 

environmental setting, and the location, 

design, construction and capacity of the 

facility’s CWIS. In addition to direct 

losses of aquatic organisms from I&E, a 

number of indirect, ecosystem-level 

effects may also occur, including (1) 

disruption of aquatic food webs 

resulting from the loss of impinged and 

entrained organisms that provide food 

for other species, (2) disruption of 

nutrient cycling and other biochemical 

processes, (3) alteration of species 

composition and overall levels of 

biodiversity, and (4) degradation of the 

overall aquatic environment. In addition 

to the impacts of a single CWIS on 

currents and other local habitat features, 

environmental degradation can result 

from the cumulative impact of multiple 

intake structures operating in the same 

watershed or intakes located within an 

area where intake effects interact with 

other environmental stressors. Finally, 

although it is difficult to measure, the 

compensatory ability of an aquatic 

population, which is the capacity for a 

species to increase survival, growth, or 

reproduction rates in response to 

decreased population, is likely 

compromised by I&E and the 

cumulative impact of other stressors in 

the environment over extended periods 

of time. 

The beneficiaries of fish protection at 

cooling water intakes include 

fisherman, both recreational and 

commercial, and people interested in 

well-functioning and healthy aquatic 

ecosystems. While most people 

consume electricity, they consume 

electricity in differing amounts, and 

may not be uniformly interested in, or 

willing to pay for, fish protection. Thus, 

there is imperfect overlap between those 

who could be required to pay for fish 

protection and those who would benefit 

from fish protection. Those who desire 

more fish protection have extremely 

limited opportunities in which they can 

express their willingness to pay for fish 

protection in market transactions that 

result in fish protection. In addition, 

deregulation in the electric industry has 

made it more difficult for merchant 

power producers to both remain 

competitive and pass along to 

consumers costs associated with fish 

protection, relative to rate-regulated 

electric utilities that are vertically 

integrated. 

Fish protection at cooling water 

intakes is also variable, based on species 

and their migrations, waterbody, size of 

a cooling water intake, presence of 

multiple facilities on a waterbody, and 

many more variables that are highly site 

specific. In addition, given the history of 

litigation around this section of the 

Clean Water Act, states have, in some 

instances, administratively continued 

permits while awaiting final Federal 

action, and thus fish protection has been 

delayed, in some instances for decades. 

Promulgation of today’s final rule will 

complete EPA’s regulations under 

section 316(b) of the Clean Water Act. 

This rule includes a national 

performance standard as the BTA to 

address impingement mortality (IM) at 

existing CWIS. This national standard 

for impingement reflects EPA’s 

assessment that impingement reduction 

technology is available, feasible and 

demonstrated, and thus BTA for existing 

facilities. The impingement mortality 

standard is based on modified traveling 

screens with fish returns and includes a 

performance standard as one 

compliance alternative, but also offers 

six other compliance alternatives that 

are equivalent or better in performance. 

With regard to entrainment, this rule 

contains a national BTA standard that is 

a process for a site-specific 

determination of entrainment mitigation 

requirements at existing CWIS. The 

entrainment provision reflects EPA’s 

assessment that there is no single 

technology basis that is BTA for 

entrainment at existing facilities, but 

instead a number of factors that are best 

accounted for on a site-specific basis. 

Site-specific decision making may lead 

to a determination by the NPDES 

permitting authority that entrainment 

requirements should be based on 

variable speed pumps, water reuse, fine 

mesh screens, a closed-cycle 

recirculating system, or some 

combination of technologies that 

constitutes BTA for the individual site. 

The site-specific decision-making may 

also lead to no additional technologies 

being required. 

In addition to the above provisions, 

which apply to existing units at existing 

facilities, the rule establishes a BTA 

standard, for both impingement 

mortality and entrainment, for new 

units at existing facilities. Under this 

standard, new units at existing facilities 

will be subject to requirements similar 

to the section 316(b) requirements for 

new facilities subject to the previously 

promulgated Phase I rule. 

In addition, there is a need to regulate 

even those facilities that adopt the most 

effective technology. Closed-cycle 

cooling is a technology that recirculates 

cooling water, reducing withdrawals 

from surface waters. Closed-cycle 

cooling can reduce water withdrawals 

by at least 95 percent, compared to 

once-through cooling, but is itself 

capital intensive. Facilities that retrofit 

to closed-cycle cooling without also 

modifying their condenser may not be 

able to operate at full capacity during 

summer peak periods of electricity 

demand (replacing the condenser would 

require longer outages). Operators who 

retrofit closed-cycle cooling systems 

have a financial incentive not to run 

their system in closed-cycle mode 

during summer months. Thus, decision 

making at facilities that use cooling 

water may not take society’s preferences 

for fish protection into account in their 

actions. 

EPA notes that some facilities have 

installed, and some NPDES permits 

require, controls that protect aquatic 

organisms from impingement and 

entrainment. Facilities may have 

adopted controls as good stewards. 

Directors may have required controls to 

meet state water quality standards, 

particularly with regard to temperature. 

Based on our evaluation of available 

evidence, these actions have not been 

widespread enough to discourage 

cooling water withdrawals from waters 

where they have the greatest impact on 

aquatic organisms. 

3. Costs and Benefits 

As presented in Exhibit I–1, EPA 

assessed the expected costs to society 

for complying with the final rule, 

accounting for both the existing CWIS 

unit provision and the new unit 

provision, as $275 million and $297 

million per year at the 3 percent and 7 

percent discount rates, respectively. 

These costs reflect permit applications, 

studies, recordkeeping, monitoring, and 

reporting required by the rule. The costs 

also include costs of technologies for 


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48304 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

2 DCN refers to a document control number. An 

index of DCNs can be found in the docket for this 

action. 

complying with the BTA for IM. The 

cost of additional technologies that may 

be required to meet the site-specific 

BTA for entrainment are not included in 

this analysis because, as explained in 

Section VII, EPA cannot estimate, with 

any level of certainty, what site-specific 

determinations will be made based on 

the analyses that will be generated as a 

result of the national BTA standard for 

entrainment decision-making 

established by today’s rule. 

EPA estimates that today’s final rule— 

including standards for both existing 

units and new units at existing 

facilities—will achieve monetized 

benefits to society of $33 million and 

$29 million annually, again depending 

on the discount rate. This estimate of 

benefits omits important categories of 

benefits that EPA expects the rule will 

achieve, such as most of the benefits 

associated with fish other than 

commercially and recreationally 

harvested fish. As a result, these 

estimates are likely to understate 

substantially the rule’s expected 

benefits to society. In estimating the 

benefits of today’s rule, EPA did not rely 

on the results of the stated preference 

survey conducted by the Agency and 

described in the June 12, 2012 Notice of 

Data Availability (77 FR 34927 (June 12, 

2012)). Included in the monetized 

benefits is EPA’s estimate that the final 

rule will reduce greenhouse gas (GHG) 

emissions by 9.3 million tons of CO2- 

equivalent emissions over the 40-year 

compliance period for this analysis. 

Based on this reduction in GHG 

emissions, EPA estimates benefits to 

society (based on social cost of carbon 

(DCN 2 12–4853)) ranging from $12 

million to $13 million annually (see 

Section 9 of the BA), depending on the 

discount rate and other assumptions in 

the social cost of carbon analysis. 

EXHIBIT I–1—TOTAL ANNUALIZED SOCIAL COSTS AND BENEFITS FOR THE FINAL RULE

[in millions, 2011 dollars] 

Existing 

units New units Total 

Using 3 percent discount rate: 

Social Costs ...................................................................................................................................... $272.4 $2.5 $274.9 

Social Benefits .................................................................................................................................. 33.0 ¥0.2 32.8 

Using 7 percent discount rate: 

Social Costs ...................................................................................................................................... 295.3 2.0 297.3 

Social Benefits .................................................................................................................................. 28.7 ¥0.1 28.6 

EPA expects that the final rule will 

have relatively minor economic impacts 

on the regulated facilities, the entities 

that own them, and the overall electric 

power sector, which is the industry 

most affected by today’s rule. Under the 

rule’s existing unit provisions, EPA 

estimates that a substantial majority (86 

percent) of electric generators will incur 

compliance costs of less than 1 percent 

of revenue, indicating the minor impact 

of the rule on these facilities. 

EPA also expects very small impacts 

on the non-power sector component of 

regulated facilities. EPA estimates that 

504 out of 509 facilities will incur costs 

less than one percent of revenue, five 

will incur costs between one and three 

percent, and none will incur costs 

greater than 3 percent. In addition, EPA 

estimates that no manufacturing 

facilities will close as a result of today’s 

rule, and that only 12 facilities in the 

non-power sector component will 

experience moderate financial stress 

short of closure. These 12 facilities 

represent approximately 3 percent of the 

estimated total regulated facilities in the 

non-power sector component. 

At the level of the entities that own 

regulated facilities, EPA estimates that 

91 to 94 percent of entities owning 

regulated facilities in the electric power 

sector will incur compliance costs of 

less than 1 percent of revenue under the 

rule’s existing unit provisions. Likewise, 

for the non-power sector component of 

regulated facilities, EPA estimates that 

90 to 95 percent of entities owning 

regulated facilities will incur 

compliance costs of less than 1 percent 

of revenue under the rule’s existing unit 

provisions. 

Finally, EPA estimates that today’s 

rule will have a minor impact on the 

overall electric power sector and 

electricity consumers. EPA estimates 

that the rule will not affect national or 

regional electricity markets on a longterm basis. In addition, EPA expects 

there to be no effects of the final rule on 

the reliability of electricity generation, 

transmission and distribution. In terms 

of consumer impacts, EPA estimates, on 

average, across the United States, that 

the final rule will increase electricity 

production costs by 0.009 cents per 

kWh, causing an estimated 0.1 percent 

increase in average electricity prices. 

The corresponding annual increase in 

electricity costs is approximately $1.03 

per household. 

B. Scope of Today’s Rulemaking 

Today’s final rule represents the last 

stage in EPA’s efforts to implement 

section 316(b) of the CWA. In the course 

of their operations, electric power 

facilities and certain manufacturing 

facilities use large amounts of water 

either for cooling purposes or in their 

manufacturing processes. Such facilities 

typically remove water from nearby 

sources using ‘‘cooling water intake 

structures.’’ The structures associated 

with water removal pose a number of 

threats to the environment. Principally, 

aquatic organisms are squashed against 

intake screens—impingement—or 

drawn into the cooling system— 

entrainment. Section 316(b) requires 

EPA to develop standards for cooling 

water intakes structures. 

Today’s final rule establishes national 

requirements applicable to the location, 

design, construction, and capacity of 

cooling water intake structures at 

existing facilities that reflect the BTA 

for minimizing the adverse 

environmental impacts– impingement 

and entrainment—associated with the 

use of these structures. It represents the 

culmination of EPA’s efforts to 

implement section 316(b) and, as such, 

fulfills EPA’s obligation under a 

settlement agreement entered in the 

United States District Court for the 

Southern District of New York in 

Riverkeeper Inc., et al. v. Jackson, No. 

93 Civ. 0314 (AGS). (For a more detailed 

discussion of the settlement agreement, 

see Section II.C.) 

This final rule establishes 

requirements for all existing facilities 

with a DIF (design intake flow) of more 


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3Throughout the preamble and support 

documents, the terms ‘‘entrainment’’ and 

‘‘entrainment mortality’’ may be used 

interchangeably. As described below, EPA 

continues to assume that, in most instances, 

entrainment mortality is 100 percent, leaving little 

distinction between the two terms. 

4Throughout the preamble, the terms ‘‘owner or 

operator of a facility’’ and ‘‘facility’’ may be used 

interchangeably. In cases where the preamble may 

state that a facility is required to do a given activity, 

it should be interpreted as the owner or operator of 

the facility is required to do the activity. 

than 2 mgd. EPA estimates that a total 

of 1,065 facilities will be subject to the 

final rule, including 544 Electric 

Generators, 509 Manufacturers in six 

Primary Manufacturing Industries, and 

12 Manufacturers in Other Industries. 

The rule also clarifies the definition and 

requirements for new units at existing 

facilities. The applicable requirements 

are summarized in Exhibits I–2 and I– 

3. 

EXHIBIT I–2—APPLICABILITY BY PHASE OF THE 316(B) RULES

Facility characteristic Applicable rule 

New power-generating or manufacturing facility ................................................................................................. Phase I rule. 

New offshore oil and gas facility .......................................................................................................................... Phase III rule. 

New unit at an existing power-generating or manufacturing facility ................................................................... This rule. 

Existing power-generating or manufacturing facility ............................................................................................ This rule. 

Existing offshore oil and gas facility and offshore seafood processing facilities ................................................ This rule (site-specific, BPJ). 

EXHIBIT I–3—APPLICABLE REQUIREMENTS OF TODAY’S RULE FOR EXISTING FACILITIES

Facility characteristic Applicable requirements 

Existing facility with a DIF greater than 2 mgd and an AIF (actual intake flow) greater than 125 mgd.Impingement mortality standards at § 125.94(c) and site-specific entrainment requirements under the entrainment standards at 

§ 125.94(d) (Additional study requirements at § 122.21(r)(1)(ii)(B)). 

Existing facility with a DIF greater than 2 mgd but AIF not greater than 

125 mgd.

Impingement mortality standards at § 125.94(c) and site-specific entrainment requirements under the entrainment standards at 

§ 125.94(d). 

New unit at an existing facility where the facility has a DIF greater than 

2 mgd.

Impingement mortality and entrainment standards for new units at 

§ 125.94(e). 

Other existing facility with a DIF of 2 mgd or smaller or that has an intake structure that withdraws less than 25 percent of the water for 

cooling purposes on an actual intake flow basis.

Case-by-case BPJ permitting per § 125.90(b). 

At an early stage in the development 

of section 316(b) requirements, EPA 

divided its rulemaking effort into three 

phases. The first addressed new 

facilities, the second, large existing 

electricity utility facilities and the third, 

the remaining electric generating 

facilities not addressed in the earlier 

phases as well as existing 

manufacturing operations. As EPA’s 

analysis progressed, however, it became 

clear that it could address in one 

rulemaking cooling water intake 

structures at both existing steam electric 

generating and manufacturing facilities. 

From a biological perspective, the effect 

of intake structures on impingement and 

entrainment 3 does not differ depending 

on whether an intake structure is 

associated with a power plant or a 

manufacturer. In 2009, following 

judicial challenge of the Phase II rule, 

EPA asked the U.S. Court of Appeals for 

the Second Circuit to remand the rule to 

the Agency for further action consistent 

with a decision by the U.S. Supreme 

Court in Entergy Corp. v. Riverkeeper, 

Inc. and the Second Circuit’s decision 

on the Phase II rule in Riverkeeper, Inc. 

v. EPA, 475 F.3d 83 (2d cir. 2007). In 

2009, EPA also asked the U.S. Court of 

Appeals for the Fifth Circuit to remand 

certain aspects of EPA’s Phase III rule 

that were before it in a petition for 

review. Today’s rule responds to these 

remands as well to the Second Circuit’s 

remand of limited aspects of the Phase 

I section 316(b) rule in Riverkeeper Inc. 

v. Johnson, 358 F.3d 174 (2nd Cir. 

2004). EPA has here consolidated the 

universe of potentially regulated 

facilities from the remanded 2004 Phase 

II rule with the existing facilities in the 

remanded 2006 Phase III rule for 

establishing requirements in a single 

proceeding. 

C. General Applicability 

This rule applies to owners and 

operators of existing facilities 4 that 

meet all following criteria: 

• The facility is a point source that 

uses or, in the case of new units at an 

existing facility, proposes to use cooling 

water from one or more cooling water 

intake structures, including a cooling 

water intake structure operated by an 

independent supplier not otherwise 

subject to 316(b) requirements that 

withdraws water from waters of the 

United States and provides cooling 

water to the facility by any sort of 

contract or other arrangement; 

• The facility-wide DIF for all cooling 

water intake structures at the facility is 

greater than 2 mgd; 

• The cooling water intake structure 

withdraws cooling water from waters of 

the United States; and 

• At least 25 percent of the water 

actually withdrawn—actual intake flow 

(AIF)—is used exclusively for cooling 

purposes. 

A facility may choose to demonstrate 

compliance with the final rule for the 

entire facility, or for each individual 

cooling water intake structure. 

EPA is adopting provisions that 

promote the reuse of water from certain 

sources for cooling and that ensure that 

the rule does not discourage the reuse 

of cooling water for other uses such as 

process water. For example, the final 

rule at § 125.91(c) specifies that 

obtaining cooling water from a public 

water system, using reclaimed water 

from wastewater treatment facilities or 

desalination plants, or recycling treated 

process wastewater effluent (such as 

wastewater treatment plant ‘‘gray’’ 

water) does not constitute use of a 

cooling water intake structure for 

purposes of this rule. In addition, the 

definition of cooling water at § 125.92 

provides that cooling water obtained 

from a public water system, reclaimed 

water from wastewater treatment 

facilities or desalination plants, treated 

effluent from a manufacturing facility, 

or cooling water that is used in a 

manufacturing process either before or 


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5For example, a facility might purchase its 

cooling water from a nearby facility that owns and 

operates a cooling water intake structure. 

after it is used for cooling as process 

water is not considered cooling water 

for the purposes of calculating the 

percentage of a facility’s intake flow that 

is used for cooling purposes. Therefore, 

water used for both cooling and noncooling purposes does not count toward 

the 25 percent threshold. Examples of 

water withdrawn for non-cooling 

purposes includes water withdrawn for 

warming by LNG (liquefied natural gas) 

facilities and water withdrawn for 

public water systems by desalinization 

facilities. 

Today’s rule focuses on those 

facilities that are significant users of 

cooling water. The rule provides that 

only those facilities that use 25 percent 

or more of the water withdrawn 

exclusively for cooling purposes (on an 

actual intake flow basis) are subject to 

the rule. EPA previously considered a 

number of cut-points or approaches for 

focusing the applicability of the rule (66 

FR 28854, May 25, 2001 and 66 FR 

65288, December 18, 2001). EPA used 

the 25 percent threshold in each of the 

Phase I, II, and III rules. For this rule, 

EPA did not receive any new data 

supporting a different threshold or 

identify new approaches to the 

applicability of the rule. Consequently, 

EPA is adopting 25 percent as the 

threshold for the percent of flow used 

for cooling purposes to ensure that a 

large majority of cooling water 

withdrawn from waters of the United 

States are subject to the rule’s 

requirements for minimizing adverse 

environmental impact. Because powergenerating facilities typically use far 

more than 25 percent of the water they 

withdraw exclusively for cooling 

purposes, the 25 percent threshold will 

ensure that intake structures accounting 

for nearly all cooling water used by the 

power sector are addressed by today’s 

rule requirements. While manufacturing 

facilities often withdraw water for more 

purposes than cooling, the majority of 

the water is withdrawn from a single 

intake structure. Once water passes 

through the intake, water can be 

apportioned to any desired use, 

including uses that are not related to 

cooling. However, as long as at least 25 

percent of the water is used exclusively 

for cooling purposes, the intake is 

subject to the requirements of today’s 

rule. EPA estimates that approximately 

70 percent of manufacturers and 87 

percent of power-generating facilities 

that meet the first three criteria for 

applicability outlined above also use 25 

percent or more of intake water for 

cooling and thus are subject to today’s 

rule. (See 66 FR 65288, December 18, 

2001.) 

For facilities that are below any of the 

applicability thresholds in today’s 

rule—for example, a facility that 

withdraws less than 25 percent of the 

intake flow for cooling purposes—the 

Director must set appropriate 

requirements on a case-by-case basis, 

using BPJ, based on § 125.90(b). Today’s 

rule is not intended to constrain permit 

writers at the Federal, State, or Tribal 

level, from addressing such cooling 

water intake structures. Also, EPA 

decided to adopt for the final rule the 

proposed provision that requires the 

owners and operators for certain 

categories of facilities (existing offshore 

oil and gas facilities, existing offshore 

seafood processing facilities and 

offshore LNG terminals) to meet caseby-case BTA impingement and 

entrainment requirements, established 

by the Director. Such facilities are 

subject to permit conditions 

implementing CWA section 316(b) if the 

facility is a point source that uses a 

cooling water intake structure and has, 

or is required to have, an NPDES permit. 

D. What is an ‘‘existing facility’’ for 

purposes of the final rule? 

In today’s rule, EPA is defining the 

term ‘‘existing facility’’ to include any 

facility subject to section 316(b) that is 

not a ‘‘new facility’’ as defined in 40 

CFR 125.83 (the Phase I rule). 

A point source discharger would be 

subject to Phase I or today’s rule even 

if the cooling water intake structure it 

uses is not located at the facility.5 In 

addition, modifications or additions to 

the cooling water intake structure (or 

even the total replacement of an existing 

cooling water intake structure with a 

new one) does not convert an otherwise 

unchanged existing facility into a new 

facility, regardless of the purpose of 

such changes (e.g., to comply with 

today’s rule or to increase capacity). 

Rather, the determination as to whether 

a facility is new (Phase I) or existing 

(today’s rule) focuses on whether or not 

it is a greenfield or stand-alone facility 

whose processes are substantially 

independent of an existing facility, and 

whether or not there are changes to the 

cooling water intake. New facility does 

not include new units that are added to 

a facility for purposes of the same 

general industrial operation. For 

example, a new peaking unit at an 

existing electrical generating station is 

not a new facility (40 CFR 125.83). The 

distinction between an existing facility 

and a new facility is separate from the 

distinction between an existing unit at 

an existing facility and a new unit at an 

existing facility, which is discussed at 

greater length in Section J below. 

E. What is ‘‘cooling water’’ and what is 

a ‘‘cooling water intake structure?’’ 

EPA has slightly revised the 

definition of cooling water intake 

structure from proposal for today’s rule. 

In today’s final rule, a cooling water 

intake structure is defined as the total 

physical structure and any associated 

constructed waterways used to 

withdraw cooling water from waters of 

the United States. Under the definition 

in today’s rule, the cooling water intake 

structure extends from the point at 

which water is first withdrawn from 

Waters of the United States up to, and 

including, the intake pumps. The final 

rule at § 125.91(c) also specifies that 

obtaining cooling water from a public 

water system, using reclaimed water 

from wastewater treatment facilities 

(such as wastewater treatment plant 

‘‘gray’’ water) or desalination plants, or 

recycling treated process wastewater 

effluent does not constitute use of a 

cooling water intake structure for 

purposes of applicability of this rule. As 

a point of clarification, facilities subject 

to today’s rule may choose to use 

another entity’s treated wastewater as a 

source of cooling water, thereby 

reducing cooling water withdrawals and 

associated impingement and 

entrainment. EPA notes that because the 

entity providing the wastewater for 

cooling has already treated it to meet 

any applicable discharge requirements 

(e.g., otherwise applicable effluent 

limitations guidelines and standards, 

water quality standards, etc.), EPA is not 

concerned that this provision will lead 

to pollutant discharges that would not 

have occurred if the treated effluent had 

been discharged by the other entity. 

Today’s rule adopts the new facility 

rule’s definition of cooling water as 

water used for contact or noncontact 

cooling, including water used for 

equipment cooling, evaporative cooling 

tower makeup, and dilution of effluent 

heat content. The definition specifies 

that the intended use of cooling water 

is to absorb waste heat [not being 

efficiently used or recaptured for 

production and thus] rejected from the 

process or processes used or from 

auxiliary operations on the facility’s 

premises. The definition also indicates 

that cooling water obtained from a 

public water system, reclaimed water 

from wastewater treatment facilities or 

desalination plants, treated effluent 

from a manufacturing facility, or cooling 

water that is used in a manufacturing 

process either before or after it is used 

for cooling as process water would not 


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6The owner or operator of the facility would 

provide documentation such as the project purpose 

statement for the Clean Water Act section 404 

permit obtained to construct the impoundment. If 

the impoundment was created prior to the CWA 

requirement to obtain a section 404 permit, the 

owner or operator would provide any other license 

or permit obtained to lawfully construct the 

impoundment for the purposes of a cooling water 

system. 

be considered cooling water for the 

purposes of determining whether 25 

percent or more of the actual intake flow 

is cooling water. This clarification is 

necessary because cooling water intake 

structures typically bring water into a 

facility for numerous purposes, 

including industrial processes; use as 

circulating water, service water, or 

evaporative cooling tower makeup 

water; dilution of effluent heat content; 

equipment cooling; and air 

conditioning. Note, however, that all 

intake water (including cooling and 

non-cooling process) is included in the 

determination as to whether the 2 mgd 

DIF threshold for covered intake 

structures is met. 

F. Would my facility be covered only if 

it is a point source discharger? 

Today’s rule applies only to facilities 

that have an NPDES permit or are 

required to obtain one. This is the same 

requirement EPA included in the Phase 

I new facility rule at § 125.81(a)(1). 

Requirements for complying with CWA 

section 316(b) will continue to be 

applied through NPDES permits. 

On the basis of the Agency’s review 

of potential existing facilities that 

employ cooling water intake structures, 

the Agency anticipates that most 

facilities will control the intake 

structure that supplies them with 

cooling water, and discharge some 

combination of their cooling water, 

wastewater, or stormwater to a water of 

the United States through a point source 

regulated by an NPDES permit. In such 

cases, the facility’s NPDES permit must 

include the requirements for the cooling 

water intake structure. If an existing 

facility’s only NPDES permit is a general 

permit for stormwater discharges, the 

Agency anticipates that the Director will 

write an individual NPDES permit 

containing requirements for the 

facility’s cooling water intake structure. 

Alternatively, requirements applicable 

to cooling water intake structures could 

be incorporated into general permits. If 

requirements are placed into a general 

permit, they must meet the 

requirements set out at 40 CFR 122.28. 

As EPA stated in the preamble to the 

final Phase I rule (66 FR 65256, 

December 18, 2001), the Agency 

encourages the Director to closely 

examine scenarios in which a facility 

withdraws significant amounts of 

cooling water from waters of the United 

States but is not required to obtain an 

NPDES permit. As appropriate, the 

Director must apply other legal 

requirements, where applicable, such as 

CWA sections 401 or 404, the Coastal 

Zone Management Act, the National 

Environmental Policy Act, the 

Endangered Species Act, or similar State 

or Tribal authorities to address adverse 

environmental impact caused by cooling 

water intake structures at those 

facilities. 

G. Would my facility be covered if it 

withdraws water from waters of the 

united states? what if my facility obtains 

cooling water from an independent 

supplier? 

The requirements in today’s rule 

apply to cooling water intake structures 

that have the design capacity to 

withdraw amounts of water greater than 

2 mgd from waters of the United States. 

Waters of the United States include the 

broad range of surface waters that meet 

the regulatory definition at 40 CFR 

122.2 and 40 CFR 230.3, which includes 

lakes, ponds, reservoirs, nontidal rivers 

or streams, tidal rivers, estuaries, fjords, 

oceans, bays, and coves. These potential 

sources of cooling water can be 

adversely affected by impingement and 

entrainment. 

Some facilities use an impoundment 

such as a man-made pond or reservoir 

as part of a cooling system. Cooling 

water is withdrawn from the pond or 

reservoir at one point and heated water 

is discharged to a different point, using 

mixing and evaporative processes. As 

explained above, section 316(b) and 

today’s final rule apply only to 

withdrawals of cooling water from 

waters of the United States; accordingly, 

to the extent a facility withdraws 

cooling water from a pond or reservoir 

that is not itself a water of the United 

States and does not withdraw any makeup water from waters of the U.S., the 

requirements of today’s rule do not 

apply to such systems. Impoundments 

that are not constructed from a waters 

of the U.S. but do withdraw make-up 

water from waters of the U.S. can be 

closed-cycle recirculating systems 

subject to the requirements of today’s 

rule, provided that withdrawal for 

make-up water is minimized. 

Facilities that withdraw cooling water 

from impoundments that are in whole 

or in part waters of the United States 

and that meet the other criteria for 

coverage (including the requirement 

that the facility has or will be required 

to obtain an NPDES permit) are subject 

to today’s rule. In today’s rule, the 

agency is defining the term closed-cycle 

recirculating system to include, at 

§ 125.92(c)(2), a system with 

impoundments of waters of the U.S. 

where the impoundment was lawfully 

created 6 for the purpose of serving as 

part of the cooling water system. In 

determining whether an impoundment 

qualifies as a closed-cycle recirculating 

system, the Director will determine 

whether the make-up water withdrawals 

for such a system have been minimized. 

In many cases, EPA expects that such 

make-up water withdrawals are 

commensurate with the flows of a 

closed-cycle cooling tower. Some of 

these impoundments may qualify for the 

waste treatment exclusion found in the 

definition of a waste treatment system at 

40 CFR 122.2, and this rule does not 

affect the applicability of that exclusion. 

EPA does not intend for this rule to 

change the regulatory status of 

impoundments. Impoundments are 

addressed in the definition of waters of 

the United States at 40 CFR 122.2 and 

40 CFR 230.3. The determination 

whether an impoundment is a water of 

the United States is to be made by the 

Director on a site-specific basis. The 

EPA and the U.S. Army Corps of 

Engineers have jointly issued 

jurisdictional guidance concerning the 

term waters of the United States in light 

of the Supreme Court’s decision in Solid 

Waste Agency of Northern Cook County 

v. U.S. Army Corps of Engineers, 531 

U.S. 159 (2001) (SWANCC). A copy of 

that guidance was published as an 

Appendix to an Advanced Notice of 

Proposed Rulemaking on the definition 

of the phrase waters of the United 

States, see 68 FR 1991, January 15, 

2003, which is at http://www.epa.gov/

owow/wetlands/pdf/ANPRM-FR.pdf. 

The agencies additionally published 

guidance in 2008 regarding the term 

waters of the United States in light of 

both the SWANCC and subsequent 

Rapanos case (Rapanos v. United 

States, 547 U.S. 715 (2006)). The EPA 

published a proposed revision to the 

definition of ‘‘Waters of the United 

States’’ under the Clean Water Act on 

April 21, 2014 (see 79 FR 22188). 

EPA recognizes that some 

impoundments may be man-made 

waterbodies that support artificially 

managed and stocked fish populations. 

As a result, EPA has included a 

provision in today’s final rule to allow 

the Director to waive certain permit 

application requirements for such 

facilities. Note, however, that these 

facilities are still subject to the final 

rule. 

EPA acknowledges that the point of 

compliance for facilities located on 


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7For permit terms subsequent to the first permit 

issued under today’s rule, the rule defines AIF as 

the average flows over the previous 5 years. 

8The 2004 Phase II rule would have applied to 

existing power-generating facilities with a design 

intake flow of 50 mgd or greater. Facilities 

potentially regulated by the Phase III rule had a DIF 

of greater than 2 mgd. 

9For more information, see 65 FR 49067, August 

10, 2000. 

impoundments may also vary 

depending on where the facility 

withdraws from a water of the United 

States. Again, only cooling water 

systems with withdrawals of cooling 

water from waters of the United States 

are covered by section 316(b) and 

today’s rule. Because a facility may 

withdraw cooling water from a water of 

the United States either directly or as 

makeup water for a closed-cycle cooling 

system, the Director may determine 

where within a facility’s cooling water 

intake structure is or are the facility’s 

point or points of compliance. 

The Agency recognizes that some 

facilities that have or are required to 

have an NPDES permit might not own 

and operate the intake structure that 

supplies their facility with cooling 

water. In addressing facilities that have 

or are required to have an NPDES 

permit that do not directly control the 

intake structure that supplies their 

facility with cooling water, § 125.91 

provides (similar to the new facility 

rule) that facilities that obtain cooling 

water from a public water system, use 

reclaimed water from a wastewater 

treatment facility or desalinization 

plant, or use treated effluent are not 

deemed to be using a cooling water 

intake structure for purposes of this 

rule. However, obtaining water from 

another entity that is withdrawing water 

from a water of the United States will 

be counted as using a cooling water 

intake structure for purposes of 

determining whether an entity meets the 

threshold requirements of the rule. For 

example, facilities operated by separate 

entities might be located on the same, 

adjacent, or nearby property. One of 

these facilities might take in cooling 

water and then transfer it to other 

facilities that discharge to a water of the 

United States. Section 125.91(b) 

specifies that use of a cooling water 

intake structure includes obtaining 

cooling water by any sort of contract or 

arrangement with one or more 

independent suppliers of cooling water 

if the supplier or suppliers withdraw 

water from waters of the United States 

but that is not itself a new or existing 

facility subject to CWA section 316(b), 

except if it is a public water system, a 

wastewater treatment facility or 

desalination plant providing reclaimed 

water, or a facility providing treated 

effluent for reuse as cooling water 

pursuant to § 125.91(c). 

As a practical matter, the existing 

facilities subject to this rule are the 

largest users of cooling water and 

therefore typically withdraw volumes of 

water for cooling that warrant owning 

the cooling water intake structures. In 

some cases, such as at nuclear power 

plants or critical baseload facilities, the 

need for cooling water includes safety 

and reliability reasons that would likely 

preclude any independent supplier 

arrangements. Therefore, EPA expects 

this provision will have only limited 

applicability. EPA is nevertheless 

retaining the provision to prevent 

facilities from circumventing the 

requirements of today’s rule by creating 

arrangements to receive cooling water 

from an entity that is not itself subject 

to today’s rule and that is not otherwise 

explicitly exempt from today’s rule 

(such as drinking water or treatment 

plant discharges reused as cooling 

water). 

H. What intake flow thresholds result in 

an existing facility being subject to the 

final rule? 

EPA determines the cooling water 

flow at a facility in two ways. The first 

is based on the DIF, which reflects the 

maximum intake flow the facility is 

capable of withdrawing. While this 

normally is limited by the capacity of 

the cooling water intake pumps, other 

parts of the cooling water intake system 

could impose physical limitations on 

the maximum intake flow the facility is 

capable of withdrawing. The second 

method for determining cooling water 

flow is based on the AIF, which reflects 

the actual volume of water withdrawn 

by the facility. EPA has defined AIF to 

be the average water withdrawn each 

year over the preceding three years.7

Both of these methods are used in 

today’s rule. 

Today’s final rule applies to facilities 

that have a total DIF of greater than 2 

mgd (see § 125.91).8 At a threshold of 2 

mgd, today’s rule covers 99.8 percent of 

the total water withdrawals by utilities 

and other industrial sources (if the other 

criteria for coverage are met), which 

includes 70 percent of manufacturing 

facilities and 87 percent of electric 

generators. EPA also chose the greater 

than 2 mgd threshold because it was 

consistent with the applicability criteria 

in the Phase I rule.9

There are substantial environmental 

benefits that will accrue with a 

threshold of 2 mgd. For example, EPA’s 

analysis indicates that greater than 82 

percent of impinged fish mortality 

across all facilities would be prevented 

by this rule at this threshold. EPA also 

considered a threshold of 50 mgd. The 

record includes 38 studies documenting 

IM at more than 40 facilities with flows 

lower than 50 mgd. Further, the 

industry questionnaire demonstrates 

that such facilities are twice as likely to 

have no controls in place for 

impingement or entrainment than are 

facilities with intake flows greater than 

50 mgd. In addition, lower intake flow 

facilities can have similar impacts to 

those of larger flow facilities as sizable 

numbers of fish are impinged by lower 

flow facilities. Moreover, site-specific 

impacts of lower flow facilities may be 

significant, particularly where 

threatened or endangered species are 

present. 

Although smaller flow facilities (those 

less than 50 mgd) constitute a large 

proportion of the total number of the 

facilities regulated (476 of 1,065), the 

total compliance cost for these smaller 

facilities are only a small portion of the 

total compliance cost of the rule ($23 

million of $275 million). Thus any 

perceived aggregate cost savings from 

setting the threshold higher than 2 mgd 

would be minimal. 

There is no appreciable difference in 

the cost effectiveness of the rule with a 

higher applicability threshold. For 

example, the cost effectiveness of the 

rule with a threshold of 2 mgd is $0.42 

per age-one equivalent losses (A1E). At 

a threshold of 50 mgd the cost 

effectiveness would be $0.41 per A1E. 

In addition, the incremental cost of the 

2 mgd threshold relative to a 50 mgd 

threshold is negligible for the electric 

power industry at less than 0.1 percent 

of annual electricity sector revenue, 

which exceeds $126 billion. The 

facility-level impacts are negligible to 

zero at either 2 or 50 mgd threshold. At 

the 2 mgd threshold, only 5 (1 percent) 

of the manufacturing facilities have a 

cost-to revenue ratio exceeding 1 

percent (but less than 3 percent). While 

this drops to zero facilities at the 50 

mgd threshold, the difference of 5 

facilities out of 509 facilities is not 

significant. Costs for lower flow 

facilities are so small that the average 

annual household utility bill would not 

measurably decrease by changing the 

threshold from 2 to 50 mgd. While 58 

percent of the small facilities affected by 

the final rule are below 50 mgd, 40 

percent of them already meet one of the 

compliance alternatives for 

impingement mortality of the rule and 

likely would not need to install any 

additional compliance technologies. 

And small businesses account for only 

17 percent of facilities at or below 50 

mgd, demonstrating that there would 


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10The final rule allows the Director to waive 

certain information submission requirements for 

facilities that already employ closed-cycle cooling. 

11For impoundments constructed in uplands or 

not in waters of the United States, the point of 

compliance for measuring AIF to determine if it is 

greater than 125 mgd is the intake into the 

impoundment from the waters of the United States. 

not be a disproportionate impact on 

small businesses at a 2 mgd threshold. 

Thus, EPA concluded that the 

threshold of 2 mgd ensures that the 

users of cooling water causing the most 

adverse environmental impact are 

subject to the rule. Raising the threshold 

for applicability of the rule’s 

impingement and entrainment 

requirements to 50 mgd as some 

commenters suggested was not 

supportable given the statistics and 

information described above. 

Raising the applicability threshold to 

50 mgd would have meant that 476 

facilities, almost half of the 1,065 

facilities subject to the national 

standards set by today’s rule, would not 

be subject to the rule. Ignoring so many 

facilities when setting national 

standards fails to apply the common 

sense approaches set forth in this rule 

for minimizing adverse environmental 

impacts from cooling water intake 

structures. 

Excluding such a large number of 

facilities from this rule would create 

regulatory uncertainty for those 

facilities since they would remain 

subject to CWA permitting 

requirements, but without the benefits 

of the structure of this rule. Directors 

would have an obligation to establish 

controls on a case-by-case basis for these 

lower flow facilities using a BPJ analysis 

instead of using the more 

straightforward and transparent 

provisions of setting controls based on 

national standards contained in this 

rule. Such BPJ analyses can be 

uncertain, and can be time consuming 

and complex to develop for both 

Directors and owners and operators of 

facilities. Case-by-case BPJ permits 

(instead of permits based on the 

national standards in today’s rule) 

would likely increase the time and costs 

to states for such permits to be 

developed, further delaying the 

minimization of adverse environmental 

impacts called for by CWA section 

316(b). Maintaining an applicability 

threshold of 2 mgd DIF best combines 

the shared goals of minimizing adverse 

environmental impacts as required by 

the CWA, and the predictability and 

flexibility contained in the rule. 

EPA acknowledges that there may be 

circumstances where flexibility in the 

application of the rule may be called for 

and the rule so provides. For example, 

some low flow facilities that withdraw 

a small proportion of the mean annual 

flow of a river may warrant special 

consideration by the Director. As an 

illustration, if a facility withdraws less 

than 50 mgd AIF, withdraws less than 

5 percent of mean annual flow of the 

river on which it is located (if on a river 

or stream), and is not co-located with 

other facilities with CWISs such that it 

contributes to a larger share of mean 

annual flow, the Director may determine 

that the facility is a candidate for 

consideration under the de minimis 

provisions contained at § 125.94(c)(11). 

In the case of facilities on lakes and 

reservoirs, co-location would be better 

determined by multiple CWIS facilities 

on the same waterbody, rather than 

distance. 

In either case, the flexibilities 

contained in the rule for the Director to 

consider the site-specific characteristics 

of each intake structure within the 

national standard provide a useful 

mechanism for facilities with lower 

intake flows and low impacts to be 

considered. 

EPA is continuing to base 

applicability on DIF as opposed to AIF 

for several reasons. In contrast to AIF, 

DIF is a fixed value based on the design 

of the facility’s operating system and the 

capacity of the circulating and other 

water intake pumps. This provides 

clarity because the DIF does not vary 

with facility operations, except in 

limited circumstances, such as when a 

facility undergoes major modifications. 

On the other hand, actual flows can vary 

significantly over sometimes short 

periods. For example, a peaking power 

plant might have an AIF close to the DIF 

during times of full energy production, 

but an AIF of zero during lengthy 

periods of standby. Use of DIF provides 

clarity as to regulatory status, is 

indicative of the potential magnitude of 

environmental impact, and avoids the 

need for monitoring to confirm a 

facility’s status. For more information 

about these thresholds, see 69 FR 41611, 

July 9, 2004. 

Under this rule, all facilities with a 

DIF of greater than 2 mgd, that meet the 

other three criteria for applicability of 

today’s rule, must submit basic 

information describing the facility, 

Source Water Physical Data, Source 

Water Biological Characterization Data, 

and Cooling Water Intake System Data. 

In addition, these facilities must submit 

additional facility-specific information 

including the selected impingement 

compliance option, and operational 

status of each of the facility’s units.10

Certain facilities withdrawing the 

largest volumes of water for cooling 

purposes have additional information 

and study requirements such as relevant 

biological survival studies and the 

entrainment study as described below. 

The final rule uses AIF rather than 

DIF for purposes of determining which 

facilities must provide the information 

required in § 122.21(r)(9) through (13), 

referred to as the entrainment study. 

Thus, the rule provides that any facility 

subject to the rule with actual flows in 

excess of 125 mgd must provide an 

entrainment study with its permit 

application (which includes the 

Entrainment Characterization Study at 

§ 122.21(r)(9)).11 Adverse environmental 

impacts from entrainment result from 

actual water withdrawals, and not the 

maximum designed level of withdrawal. 

Further, using actual flow might 

encourage some facilities to adopt 

operational practices to reduce their 

flows below 125 mgd AIF to avoid 

collecting supplemental data and 

submitting the additional entrainment 

study. Furthermore, any facility that has 

DIF greater than 2 mgd, that meets the 

other three criteria for applicability of 

today’s rule, is required to submit basic 

information that will allow the Director 

to verify its determination of whether it 

meets the 125 mgd AIF threshold. 

EPA has selected an administrative 

threshold of 125 mgd AIF for 

submission of the entrainment study 

because this threshold will capture 90 

percent of the actual flows but will 

apply to only 30 percent of existing 

facilities. Further, based on EPA’s data 

there are no closed-cycle recirculating 

systems in use above this threshold. The 

125 mgd AIF threshold will 

significantly limit facility burden at 

more than two-thirds of the potentially 

affected facilities while focusing the 

Director on major cooling water 

withdrawals. Contrary to a number of 

public comments, however, EPA is not 

implying or concluding that the 125 

mgd threshold is an indicator that 

facilities withdrawing less than 125 mgd 

are (1) not causing any adverse impacts 

or (2) automatically qualify as meeting 

BTA. In other words, the threshold, 

while justified on a technical basis, does 

not result in exemptions from the rule. 

Instead, EPA is making a policy 

decision as to which facilities must 

provide a certain level and type of 

information. The Director, of course, 

will retain the discretion to require 

reasonable information to make 

informed decisions at the smaller 

facilities. The 125 mgd threshold 

focuses on the facilities with the highest 

intake flows and the highest likelihood 

of causing adverse impacts; it is not an 


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12EPA studied naval vessels and cruise ships as 

part of its developing a general NPDES permit for 

discharges from oceangoing vessels. (For more 

information, see http://cfpub.epa.gov/npdes/

home.cfm?program_id=350.) EPA studied offshore 

seafood processing facilities and oil and gas 

exploration facilities in the 316(b) Phase III rule. 

13As discussed in today’s preamble, requirements 

for new offshore facilities that were set forth in the 

Phase III rule remain in effect. 

indicator that facilities under that 

threshold are no longer of concern in 

the final rule. 

In today’s rule, EPA seeks to clarify 

that for some facilities, the DIF is not 

necessarily the maximum flow 

associated with the intake pumps. For 

example, a power plant might have 

redundant circulating pumps, or might 

have pumps with a name plate rating 

that exceeds the maximum water 

throughput of the associated piping. 

EPA intends for the DIF to reflect the 

maximum rate at which a facility can 

physically withdraw water from a 

source waterbody (usually normalized 

to a daily rate in mgd). This also means 

that a facility that has permanently 

taken a pump out of service should be 

able to consider such constraints when 

reporting its DIF, as the facility’s 

capacity to withdraw water may have 

fundamentally changed. Additionally, if 

a facility’s flow is limited by 

constrictions in the piping or other 

physical limitations (e.g., a given 

portion of its cooling system that can 

only safely handle a given amount of 

flow) and that flow is lower than the DIF 

for the pumps, the facility should be 

able to consider such constraints when 

reporting its DIF, because it is not 

capable of withdrawing its full pumping 

DIF without compromising the cooling 

system. 

I. What are the requirements for existing 

offshore oil and gas facilities, offshore 

seafood processing facilities or LNG 

terminals BTA requirements under the 

final rule? 

Under today’s rule, existing offshore 

oil and gas facilities, existing offshore 

seafood processing facilities and 

existing LNG terminals will be subject 

to section 316(b) requirements on a BPJ 

basis. In the Phase III rule, EPA studied 

offshore oil and gas facilities and 

offshore seafood processing facilities 12

and could not identify any technologies 

(beyond the protective screens already 

in use) that are technically feasible for 

reducing impingement or entrainment 

in such existing facilities.13 As 

discussed in the Phase III rule, known 

technologies that could further reduce 

impingement or entrainment would 

result in unacceptable changes in the 

envelope of existing platforms, drilling 

rigs, mobile offshore drilling units, 

offshore seafood processing facilities, 

and similar facilities as the technologies 

would project out from the hull, 

potentially decrease the seaworthiness, 

and potentially interfere with structural 

components of the hull. It is also EPA’s 

view that for many of these facilities, 

the cooling water withdrawals are most 

substantial when the facilities are 

operating far out at sea and, therefore, 

not withdrawing from a water of the 

United States. EPA is aware that LNG 

facilities may withdraw hundreds of 

million gallons per day of seawater for 

warming (re-gasification). However, 

some existing LNG facilities might still 

withdraw water where 25 percent or 

more of the water is used for cooling 

purposes on an actual intake flow basis. 

EPA has not identified a uniformly 

applicable and available technology for 

minimizing impingement mortality and 

entrainment at these facilities. However, 

technologies might be available for some 

existing LNG facilities. LNG facilities 

that withdraw any volume of water for 

cooling purposes will be subject to sitespecific, BPJ determinations of BTA. 

EPA has not identified any new data 

or approaches that would result in a 

different determination. Therefore, EPA 

has adopted the approach of the 

proposed rule and is requiring that 

NPDES Permit Directors, on a case-bycase basis using BPJ, determine BTA for 

existing offshore oil and gas extraction 

facilities, existing offshore seafood 

processing facilities, and existing LNG 

terminals. 

J. What is a ‘‘new unit’’ and how are 

new units addressed under the final 

rule? 

Today’s rule establishes requirements 

for new units at an existing facility that 

are different than those applicable to 

existing units at an existing facility. The 

requirements for new units at existing 

facilities are modeled after the 

requirements for a new facility in the 

Phase I rule. Under today’s rule, a new 

unit means a newly built, stand-alone 

unit, whose construction begins after 

the effective date of the rule. EPA is also 

clarifying that while Phase I does not 

include units newly constructed at an 

existing facility for the same general 

industrial operation, such units do 

constitute a new unit at existing 

facilities and, as such, are subject to 

today’s final rule. 

On the basis of the public comments 

received on how to define ‘‘new unit,’’ 

EPA provides a clear definition for this 

term in the final rule. The definition for 

a new unit at an existing facility 

establishes a clear regulatory framework 

for both affected facilities and Directors. 

This definition captures facilities that 

are undergoing major construction 

projects involving the construction of a 

new stand-alone unit, while not 

discouraging upgrades. For example, a 

nuclear facility conducting a 

measurement uncertainty capture or a 

stretch power uprate, or a fossil-fuel 

facility repowering an existing 

generating unit, would not be 

considered to result in the relevant unit 

becoming a new unit. As another 

example, under this definition placing 

an offshore facility or vessel into a dry 

dock for maintenance or repair does not 

result in either the offshore facility, 

vessel, or the dry dock as being defined 

as a new unit. 

Section VI discusses EPA’s rationale 

for establishing the definitions for new 

units at existing facilities described 

below. 

1. Electric Generators 

The final rule defines a new unit at an 

existing facility as a newly built, standalone unit that is constructed at an 

existing facility and that does not meet 

the definition of a new facility. An 

existing unit that is repowered or 

undergoes significant modifications 

(such as where the turbine and 

condenser are replaced) is not 

considered a new unit. Exhibit I–4 

below provides several examples and 

whether these hypothetical units will be 

defined as new or existing units. 

EXHIBIT I–4—EXAMPLES OF NEW AND EXISTING UNITS AT EXISTING ELECTRIC GENERATION FACILITIES

Examples of new units at an existing facility Examples of existing units 

A unit that is constructed at a stand-alone location at an existing facility 

regardless of any plans to retire any other unit at the facility in the future.

A unit that is repowered or undergoes significant modifications. 

A retrofitted with a new boiler or fuel type. 


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14Note that EPA did not include the contact 

cooling category as part of its analysis of possible 

closed-cycle recirculating system requirements but contact cooling water does nonetheless fall within 

the definition of cooling water at § 125.92. 

2. Manufacturers 

At manufacturing facilities that 

generate electricity onsite, the previous 

discussion of how to define new units 

at existing electric generating facilities 

generally applies. Some manufacturers 

employ different industrial processes 

than an electric generator and therefore 

have different industrial equipment 

(including cooling systems). In 

particular, manufacturers may not use a 

steam condenser or steam turbine for 

their industrial processes, making the 

definition for ‘‘repowering’’ above 

inappropriate for manufacturing 

facilities. However, manufacturers may 

have opportunities to reuse cooling 

water that power plants do not, and in 

site visits, EPA found many 

manufacturers have conducted energy 

and water audits resulting in significant 

reductions in water withdrawals. The 

final rule provides for manufacturers to 

receive credit for such reductions in 

fresh water withdrawals. 

It is not as easy to identify a similar 

conceptual approach for defining new 

manufacturing units at existing 

manufacturing facilities because waste 

heat can be generated from a variety of 

sources including exothermic processes, 

product heating and cooling, and the 

processing, handling, treating, or 

disposal of feed streams, waste streams, 

by-products, and recycled components. 

Sources may include direct cooling 

transferred across an inert material (e.g., 

heat exchanger, steam condenser), 

indirect cooling using a working fluid 

(e.g., chillers, refrigeration), or contact 

cooling where cooling water comes into 

direct contact with a product or process 

stream.14 Unlike electric generating 

units where the majority of cooling 

water comes from a single process 

source (the steam condenser), 

manufacturing units may include many 

separate non-contact or contact cooling 

water sources dispersed throughout the 

production processes and the facility. 

Thus, a definition for manufacturing 

units must take into consideration a 

broader category of cooling water 

sources. 

For power generators, the term 

‘‘generating unit’’ is quite clear since 

there is only one product (electricity), 

the non-contact cooling water 

predominantly comes from one source, 

and the application of the term is well 

understood in the industry. But for 

some manufacturing facilities, it may be 

unclear what constitutes a ‘‘unit’’ since 

manufacturing processes can involve 

numerous vertically integrated 

processes or production steps that may 

involve intermediate products. For 

example, a unit could encompass an 

entire series of production steps (start to 

finish) or simply the individual steps. 

Also, there may be ancillary support 

equipment that serves various functions 

and it is not clear whether this will be 

considered a unit or part of a unit. For 

example, a petroleum refiner will 

typically include various processes such 

as distillation, cracking, hydrotreating, 

coking, reforming, and different types of 

various products. Various intermediate 

products from these processes may be 

directly transported (piped) from one 

process to another or stored and some 

may be sold. And because various 

intermediate and final process products 

may be blended into different products, 

differentiating units on a product or 

intermediate product basis may not 

provide clear distinctions. 

For these reasons EPA has defined 

new unit to simply mean a new standalone unit. A new unit may include one 

or more distinct production lines that 

are added to increase product output 

and operate parallel to and 

independently of existing production 

equipment. A new unit does not include 

the replacement or rebuilding of one or 

more distinct production lines or 

distinct processes involving the 

replacement of the majority of the waste 

heat producing equipment that serves as 

sources of non-contact cooling water 

and the majority of the heat exchanging 

equipment that contributes heat to the 

non-contact cooling water. Such 

modifications alone do not render the 

unit a new unit. A unit undergoing such 

modifications would continue to be 

considered an existing unit and would 

be regulated under the existing unit 

provisions of this rule. This definition 

therefore does not impose any 

disincentives for the replacement/ 

upgrade of individual components or 

ancillary equipment alone. 

Exhibit I–5 below provides several 

examples of whether these hypothetical 

units are defined as new or existing 

units. As noted above, the Director has 

broad discretion to assess the scope of 

any modifications at the manufacturing 

facility and to determine whether the 

new construction comprises a standalone unit. For the purposes of today’s 

final rule, the Director does not need to 

address whether the stand-alone unit is 

for the same general industrial 

purposes, or whether the new unit is a 

replacement unit. The key factors in 

assessing whether a unit will be defined 

as new lies with whether the 

construction results in a stand-alone 

unit. 

EXHIBIT I–5—EXAMPLES OF NEW AND EXISTING UNITS AT MANUFACTURERS

Examples of new units at an existing facility Examples of existing units at an existing facility 

A unit that is constructed at a stand-alone location at an existing facility 

(either adjacent to existing units or on newly acquired or developed 

property) regardless of any plans to retire any other unit at the facility 

in the future.

A unit where only the waste heat generating process equipment or the 

cooling system equipment is replaced. 

A unit that is constructed adjacent to an existing unit for the same industrial activity (such as expanding the production output by building 

a second unit as a stand-alone unit next to the existing unit).

A unit where modifications are made to the waste heat generating 

process equipment or the cooling system (e.g., optimization, repairs, 

upgrades to operational elements). 

Replacement or upgrade of ancillary equipment (e.g., pumps, motors, 

HVAC, etc.). 

K. Amendments Related to the Phase I 

Rule 

EPA is making limited changes to the 

Phase I rule at 40 CFR Part 125 Subpart 

I. The changes fall into two categories. 

The first is deleting the provision in the 

Phase I rule that would allow a facility 

to demonstrate compliance with the 

Phase I BTA requirements in whole or 

in part through restoration measures. 

This change responds to the decision of 

the U.S. Court of Appeals for the Second 

Circuit, which remanded these 

provisions to EPA because it concluded 

that the statute did not authorize 


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restoration measures to comply with 

CWA section 316(b) requirements. The 

second category of changes reflects 

technical corrections or errors that do 

not change the substance of the Phase I 

rule. EPA has not reopened any other 

aspects of the Phase I rule other than the 

provisions specifically noted here. 

1. Restoration Provisions Not 

Authorized 

The Phase I final rule established two 

compliance tracks. Track I requires 

facilities to restrict intake flow and 

velocity. Track II gives a facility the 

option of demonstrating to the Director 

that the control measures it employs 

will reduce the level of adverse 

environmental impact to a comparable 

level to what would be achieved by 

meeting the Track I requirements. As 

part of this demonstration, Track II 

originally allowed a facility to make use 

of restoration measures. The 

Comprehensive Demonstration Study 

allowed a quantitative or qualitative 

demonstration that restoration measures 

would meet, in whole or in part, the 

performance levels of Track I. Similarly, 

the Verification Monitoring Plan could 

be tailored to verify that the restoration 

measures would maintain the fish and 

shellfish in the waterbody at a 

substantially similar level to that which 

would be achieved under Track I. See 

66 FR 65280–65281, December 18, 2001. 

Upon legal challenge, the Second 

Circuit Court concluded that EPA 

exceeded its authority by allowing new 

facilities to comply with CWA section 

316(b) through restoration measures, 

and remanded that aspect of the rule to 

EPA. The Supreme Court did not grant 

the petitions for writs of certiorari 

concerning restoration provisions. 

Today’s final rule amends Phase I to 

remove those provisions in §§ 125.84(d) 

and 125.89(b)(1)(ii) authorizing 

restoration measures in conformance 

with the Second’s Circuit’s decision. 

Today’s rule also specifically deletes 

permit application requirements 

contained in the Comprehensive 

Demonstration Study at 

§ 125.86(c)(2)(ii); evaluation of proposed 

restoration measures at 

§ 125.86(c)(2)(iv)(C); and verification 

monitoring requirements at 

§ 125.86(c)(2)(iv)(D)(2) that are specific 

to restoration. EPA acknowledges these 

changes might reduce the alternatives 

available to some Phase I facilities. EPA 

notes, however, that the deletion of 

restoration measures does not otherwise 

alter the availability of Track II. In any 

event, EPA’s determination of BTA for 

Phase I did not presume reliance on the 

restoration provisions, and the deletion 

of restoration measures in no way alters 

the Agency’s BTA determination for 

Phase I facilities. 

2. Corrections to Subpart I 

Today’s final rule changes the 

applicability of the technical 

requirements at § 125.84 and permit 

application requirements at § 125.86 

statement to match the applicability 

statement at § 125.81(a)(3). The 

applicability in all three instances 

should specify DIF or withdrawals 

‘‘greater’’ than the specified value of 2 

mgd. See Basis for the Final Regulation 

at 66 FR 65270, December 18, 2001. 

Today’s rule also corrects the source 

waterbody flow information submission 

requirements. Track I requirements at 

§ 125.84(b)(3) apply to new facilities 

that withdraw equal to or greater than 

10 mgd. Track I requirements at 

§ 125.84(c)(2) apply to facilities that 

withdraw less than 10 mgd. The source 

waterbody flow information under 

§ 125.86(b)(3) requires a facility to 

demonstrate it has met the flow 

requirements of both §§ 125.84(b)(3) 

‘‘and’’ 125.84(c)(2). However, a facility 

cannot be subject to both §§ 125.84(b)(3) 

and 125.84(c)(2) at the same time. 

Accordingly, the word ‘‘and’’ should 

read as ‘‘or’’ in § 125.86(b)(3). 

In addition, today’s final rule corrects 

the permit application requirement for 

the Source Water Biological 

Characterization at § 122.21(r)(4). 

Accordingly, references to the Source 

Water Biological Characterization 

should read as (r)(4). However, the 

references to the Source Water 

Biological Characterization at 

§ 125.86(b)(4)(iii), at § 125.87(a), and at 

§ 125.87(a)(2) incorrectly refer to 

§ 122.21(r)(3) and are thus being 

corrected. 

II. Legal Authority for and Background 

of the Final Regulation 

A. Legal Authority 

Today’s final rule is issued under the 

authority of Clean Water Act sections 

101, 301, 304, 308, 316, 401, 402, 501, 

and 510, 33 U.S.C. 1251, 1311, 1314, 

1318, 1326, 1341, 1342, 1361, and 1370. 

B. Purpose of the Regulation 

The purpose of today’s rule is to 

reduce impingement and entrainment of 

fish, shellfish and other aquatic 

organisms at cooling water intake 

structures. Today’s rule establishes 

national requirements for cooling water 

intake structures at existing facilities 

under section 316(b) of the CWA. That 

section provides that any standard 

established pursuant to CWA sections 

301 or 306 and applicable to a point 

source must require that the location, 

design, construction, and capacity of 

cooling water intake structures reflect 

the BTA for minimizing adverse 

environmental impact. Today’s rule 

establishes requirements applicable to 

all existing power-generating facilities 

and existing manufacturing and 

industrial facilities that are point 

sources, that have a DIF of greater than 

2 mgd 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. 

In addition, EPA is today also making 

minor changes to its earlier rule 

establishing section 316(b) requirements 

for new facilities. Specifically, EPA is 

removing a provision that would have 

allowed a restoration-based alternative 

for complying with performance 

standards as well as the associated 

monitoring and other requirements for 

demonstrating compliance. 

C. Background 

1. The Clean Water Act 

a. General 

The Federal Water Pollution Control 

Act, also known as the CWA, 33 U.S.C. 

1251 et seq., seeks to ‘‘restore and 

maintain the chemical, physical, and 

biological integrity of the nation’s 

waters.’’ 33 U.S.C. 1251(a). Among the 

goals of the Act is, wherever attainable, 

an interim goal of water quality which 

provides for the protection and 

propagation of fish, shellfish, and 

wildlife and provides for recreation in 

and on the water. 33 U.S.C. 1251(a)(2). 

In furtherance of these objectives, the 

CWA establishes a comprehensive 

regulatory program, key elements of 

which are (1) a prohibition on the 

discharge of pollutants from point 

sources to waters of the United States, 

except in compliance with the statute 

and (2) authority for EPA or authorized 

States or Tribes to issue NPDES permits 

that authorize and regulate the 

discharge of pollutants. 

CWA section 402 authorizes EPA (or 

an authorized State or Tribe) to issue an 

NPDES permit to any person 

discharging any pollutant or 

combination of pollutants from a point 

source into waters of the United States. 

Forty-six States and one U.S. territory 

are authorized under section 402(b) to 

administer the NPDES permitting 

program. NPDES permits restrict the 

types and amounts of pollutants, 

including heat, that may be discharged 

from various industrial, commercial, 

and other sources of wastewater. These 

permits control the discharge of 

pollutants by requiring dischargers to 

meet technology-based and possibly 

water-quality-based effluent limitations. 


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15For example, California policy addressing 19 

coastal power plants would not affect the 

compliance costs of inland facilities. 

16 Included in an appendix to the decision is a 

table comparing CWA statutory standards under 

301, 306 and 316(b), the table. In the column 

headed ‘‘Statutorily Mandated Factors,’’ for section 

316(b), the table states ‘‘N/A.’’ 

17The Second Circuit has noted the limited 

legislative history for section 316(b). ‘‘This paucity 

of legislative history, when measured against the 

volumes of drafts and speeches devoted to other 

aspects of the 1972 amendments, and when 

combined with the brevity of the provision itself, 

counsels against imputing much specific intent to 

Congress beyond the section’s words themselves. 

To the extent the provision is silent on issues to 

which other sections speak, we hesitate to draw the 

negative inference that the brevity of section 316(b) 

reflects an intention to limit the EPA’s authority 

rather than a desire to delegate significant 

rulemaking authority to the Agency.’’ Id. at 187. 

Under section 316(b), NPDES permits 

are required to contain conditions to 

implement the requirements of section 

316(b). 

CWA section 510 provides that, 

except as provided in the CWA, nothing 

will preclude or deny the right of any 

State (or political subdivision thereof) to 

adopt or enforce any requirement 

respecting control or abatement of 

pollution; except that if a limitation, 

prohibition or standard of performance 

is in effect under the CWA, such State 

may not adopt any other limitation, 

prohibition, or standard of performance 

which is less stringent than the 

limitation, prohibition, or standard of 

performance under the Act. EPA 

interprets this to reserve for the States 

authority to implement requirements 

that are more stringent than the Federal 

requirements under state law. PUD No. 

1 of Jefferson County v. Washington 

Dep’t of Ecology, 511 U.S. 700, 705 

(1994). New York and California have 

enacted State requirements that are at 

least as stringent as those of the final 

rule, and therefore, EPA has analyzed 

facilities in those States that are subject 

to those State requirements as already 

complying with the final rule.15 Those 

facilities still must comply with the 

administrative requirements of the final 

rule. 

CWA sections 301, 304, and 306 

require that EPA develop technologybased effluent limitations guidelines 

and new source performance standards 

that are used as the basis for discharge 

requirements in wastewater discharge 

permits. EPA develops these effluent 

limitations guidelines and standards for 

categories of industrial dischargers on 

the basis of the pollutants of concern 

discharged by the industry, the degree 

of control that can be attained using 

various levels of pollution control 

technology appropriate for each 

industrial process or subcategory, 

consideration of various economic tests 

implemented under the authority of the 

CWA for each level of control, and other 

factors identified in CWA sections 304 

and 306 (such as non-water quality 

environmental impacts including energy 

impacts). EPA has promulgated 

regulations setting effluent limitations 

guidelines and standards under CWA 

sections 301, 304, and 306 for 57 

industry categories. See 40 CFR parts 

405 through 471. EPA has established 

effluent limitations guidelines and 

standards that apply to the industry 

categories that are the largest users of 

cooling water (e.g., steam electric power 

generation, paper and allied products, 

petroleum refining, iron and steel 

manufacturing, and chemicals and 

allied products), as well as many other 

industrial categories that may include 

facilities subject to this final rule. 

b. Section 316(b) 

Section 316(b) states, in full, 

Any standard established pursuant to 

section 301 or section 306 of [the Clean 

Water] Act and applicable to a point source 

shall require that the location, design, 

construction, and capacity of cooling water 

intake structures reflect the best technology 

available for minimizing adverse 

environmental impact. 

33 U.S.C. 1326(b). This provision is 

unique among CWA provisions because 

it addresses the adverse environmental 

impact caused specifically by the intake 

of cooling water, in contrast to other 

provisions of the Act that regulate the 

discharge of pollutants into waters of 

the United States. 

The CWA does not further define the 

substantive standard specified in 

section 316(b)—‘‘best technology 

available for minimizing adverse 

environmental impact’’ (BTA). 33 U.S.C. 

1326(b). The standard that cooling water 

intake structures must achieve under 

section 316(b)—BTA—is a different 

standard from those prescribed under 

sections 301 and 306 of the Act. 

Riverkeeper, Inc. v. EPA, 358 F.3d 174 

(2d Cir. 2004). Moreover, unlike 

sections 304 and 306, section 316(b) 

does not set forth the specific factors 

that the EPA must consider in 

determining BTA. BTA is ‘‘the only 

substantive statutory requirement 

explicitly applicable to the intake 

structure regulations.’’ Id. at 186. Unlike 

other provisions of the Act, section 

316(b) standards are not subject to a 

‘‘host’’ of other requirements or 

limitations. Ibid. There is no 

‘‘elucidating language applicable to the 

BTA test.’’ Entergy Corp. v. Riverkeeper, 

Inc., 556 U.S. 208, 221 (2009).16

Section 316(b) does, however, crossreference sections 301 and 306 of the 

CWA by stating that any standards 

established pursuant to those sections 

also require that cooling water intake 

structures reflect BTA. Ibid. This cross 

reference, in the view of the Second 

Circuit, is an invitation, not a 

straitjacket. EPA ‘‘may’’ look to the 

referenced sections in discerning what 

factors Congress intended EPA to 

consider in determining BTA. 

Because section 316(b) refers to sections 

301 and 306 but provides a different standard 

(‘‘best technology available for minimizing 

adverse environmental impact’’ instead of, 

for example, ‘‘best available demonstrated 

control technology’’) and does not explicitly 

provide that regulations pursuant to section 

316(b) are subject to the requirements of 

sections 301 and 306, we think it is 

permissible for the EPA to look to those 

sections for guidance but to decide that not 

every statutory directive contained therein is 

applicable to the Rule. 

The terse statutory description of BTA 

and the absence of any prescribed 

statutory factors for consideration in 

determining BTA suggest that Congress 

delegated EPA significant rulemaking 

discretion in this area.17

As noted, in contrast to effluent 

limitations guidelines and standards, 

the CWA does not describe the factors 

to be considered in establishing section 

316(b) substantive performance 

requirements that reflect the ‘‘best 

technology available for minimizing 

adverse environmental impact’’ nor 

does it require that EPA develop 

uniform nationally applicable 

performance requirements through rule 

making. 

The U.S. Supreme Court has, 

however, recently provided guidance, in 

Entergy Corp. v. Riverkeeper, Inc., in 

interpreting section 316(b) and what 

factors EPA may consider in its 

standard-setting. That decision 

addressed the question of whether CWA 

section 316(b) authorizes EPA to 

compare costs and benefits of various 

technologies when setting national 

performance standards for cooling water 

intake structures under CWA section 

316(b). In overturning EPA’s earlier rule 

to establish section 316(b) requirements 

for existing facilities, the Second Circuit 

held that balancing costs and benefits 

was an impermissible factor for 

standard setting under section 316(b). 

The Supreme Court reversed and 

remanded the Second Circuit ruling in 

a 6–3 opinion authored by Justice 

Scalia. The Court held that it is 

permissible for EPA to consider a costbenefit analysis in setting national 

performance standards for cooling water 

intake structures under section 316(b). 


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18Compare ‘‘best technology available for 

minimizing adverse environmental impacts’’ with 

‘‘best practicable control technology currently 

available’’ (301(b)(1)A)), ‘‘best conventional 

pollutant control technology (301(b)(2)(E)), ‘‘best 

available technology economically achievable’’ 

(301(b)(2)(A)), and best available demonstrated 

control technology, (306(b)(1)(B)). Section 316(b), 

section 301(b)(1)(A)—the BPT provision—section 

301(b)(2)(E)—the BCT provision—section 

301(b)(1)(B)—the BAT provision—and section 

306(b)(2)(E). All include the terms ‘‘best,’’ 

‘‘technology,’’ and ‘‘available,’’ but none also 

include the modifying phrase ‘‘for minimizing 

adverse environmental impacts,’’ found in section 

316(b). See 33 U.S.C. 1311(b)(1)(A) and (2)(A). 

19The plaintiffs are the following: Riverkeeper, 

Inc.; Alex Matthiessen, a/k/a The Hudson 

Riverkeeper; Maya K. Van Rossum, a/k/a The 

Delaware Riverkeeper; Terrance E. Backer, a/k/a 

The Soundkeeper; John Torgan, a/k/a The 

Narragansett BayKeeper; Joseph E. Payne, a/k/a The 

Casco BayKeeper; Leo O’Brien, a/k/a the San 

Francisco BayKeeper; Sue Joerger, a/k/a The Puget 

Soundkeeper; Steven E. Fleischli, a/k/a The Santa 

Monica BayKeeper; Andrew Willner, a/k/a The 

New York/New Jersey Baykeeper; The Long Island 

Soundkeeper Fund, Inc.; The New York Coastal 

Fishermen’s Association, Inc.; and The American 

Littoral Society, Inc. 

The Court held that EPA has the 

discretion to consider costs and benefits 

under section 316(b) but is not required 

to do so. 556 U.S. 208, 222–23. 

The Court’s discussion of the 

language of section 316(b)—section 

316(b) is ‘‘unencumbered by specified 

statutory factors’’—and its critique of 

the Second Circuit’s decision affirms 

EPA’s broad discretion to consider a 

number of factors in standard setting 

under section 316(b). While the 

Supreme Court’s decision is limited to 

whether or not EPA may properly 

consider one factor (cost/benefit 

analysis) under section 316(b), the 

language also indicates that EPA has 

wide discretion in considering other 

factors that it deems relevant to 316(b) 

standard setting. 556 U.S. 208, 222 

(2009). (‘‘It is eminently reasonable to 

conclude that § 1326b’s silence is meant 

to convey nothing more than a refusal 

to tie the agency’s hands as to whether 

cost-benefit analysis should be used, 

and if so to what degree.’’). 

Regarding the other factors EPA may, 

but is not mandated to, consider, as 

noted above, section 316(b) cross 

references CWA sections 301 and 306 by 

requiring that any standards established 

pursuant to those sections also must 

require that the location, design, 

construction and capacity of intake 

structures reflect BTA. Following the 

decisions of the Second Circuit in 

reviewing both the Phase I and Phase II 

rules, EPA has interpreted the cross 

reference as authorizing consideration 

of the factors considered under those 

provisions to help guide section 316(b) 

rulemaking without determining that 

each of those factors is applicable to this 

rule. Thus, for example, section 306 

directs EPA to establish performance 

standards for new sources based on the 

BADT (best available demonstrated 

control technology). 33 U.S.C. 

1316(a)(1). In establishing BADT, EPA 

‘‘shall take into consideration the cost of 

achieving such effluent reduction, and 

any non-water quality environmental 

impact and energy requirements.’’ 33 

U.S.C. 1316(b)(2)(B). 

Similarly, CWA section 301 requires 

EPA, in establishing standards known as 

effluent limitations guidelines, to 

consider specified factors. For a 

complete discussion of factors 

considered in establishing section 301 

effluent limits, see 76 FR 22178–22179, 

April 20, 2011. But, EPA in establishing 

section 316(b) standards is not 

constrained in what factors it considers 

or bound by any statutorily prescribed 

tests as is the case with sections 301 and 

306. Consequently, while section 316(b) 

expressly refers to section 301 and 306, 

and, while it shares some of the same 

words used in sections 301(b) and 306, 

its language is different.18 These 

differences in the statutory descriptions, 

coupled with the brevity of section 

316(b) itself, prompt EPA to examine 

the factors described in section 301, 306 

and, ultimately, section 304 where 

relevant in EPA’s determination of the 

‘‘best technology available to minimize 

adverse environmental impact’’ of 

cooling water for intake structures for 

existing facilities. 

As noted above, there are significant 

differences between section 316(b) and 

sections 301, 304 and 306. See 

Riverkeeper, Inc. v. United States 

Environmental Protection Agency (2nd 

Cir. Feb. 3, 2004) (‘‘not every statutory 

directive contained [in sections 301 and 

306] is applicable’’ to a section 316(b) 

rulemaking). Moreover, as the Supreme 

Court recognized, while the provisions 

governing the discharge of toxic 

pollutants must require the elimination 

of discharges if technically and 

economically achievable, section 316(b) 

has the less ambitious goal of 

‘‘minimizing adverse environmental 

impact.’’ 556 U.S. at 219. In contrast to 

the effluent limitations provisions, the 

object of the best technology available is 

explicitly articulated by reference to the 

receiving water: To minimize adverse 

environmental impact in the waters 

from which cooling water is withdrawn. 

This difference is reflected in EPA’s past 

practices in implementing sections 301, 

304, as contrasted with 316(b). For 

example, EPA has established BAT 

effluent limitations guidelines and new 

source performance standards on the 

basis of the efficacy of one or more 

technologies to reduce pollutants in 

wastewater in relation to their costs 

without necessarily considering the 

impact on the receiving waters. This 

contrasts to 316(b) requirements which 

historically have been developed on a 

site-specific basis, where EPA has 

considered the costs of technologies in 

relation to the benefits of minimizing 

adverse environmental impact in 

establishing 316(b) requirements. In Re 

Public Service Co. of New Hampshire, 

10 ERC 1257 (June 17, 1977); In Re 

Public Service Co. of New Hampshire, 1 

EBAD 455 (Aug. 4, 1978); Seacoast AntiPollution League v. Costle, 597 F. 2d 

306 (1st Cir. 1979). EPA concluded that, 

because both section 301 and 306 are 

expressly cross-referenced in section 

316(b), EPA could reasonably interpret 

section 316(b) as authorizing 

consideration, where appropriate, of the 

same factors, including costs. EPA 

stresses that it may therefore consider 

some of the same factors, even if it is not 

legally required to consider them in the 

same way. 

2. Early Litigation History 

On January 19, 1993, a group of 

individuals and environmental 

organizations 19 filed, under CWA 

section 505(a)(2), 33 U.S.C. 1365(a)(2), a 

complaint in Cronin, et. al. v. Reilly, 93 

Civ. 314 (LTS) (S.D.N.Y.). The plaintiffs 

alleged that EPA had failed to perform 

a nondiscretionary duty to issue 

regulations implementing CWA section 

316(b), 33 U.S.C. 1326(b). In 1995, EPA 

and the plaintiffs executed a consent 

decree in the case. As amended, it 

provided for EPA to implement CWA 

section 316(b) by prescribed dates in the 

three separate rule-making proceedings. 

Phase I concerned cooling water intake 

structures at new facilities, Phase II 

existing power plants using large 

volumes of cooling water and Phase III 

for existing smaller-flow power plants 

and factories in at least four industrial 

sectors (pulp and paper making, 

petroleum and coal products 

manufacturing, chemical and allied 

manufacturing, and primary metal 

manufacturing). EPA promulgated the 

Phase I rule in December, 2001, the 

Phase II rule in July, 2004 and the Phase 

III rule in June, 2006. 

On November 17, 2006, some of the 

same environmental organizations in 

the Cronin case filed a second 

complaint, amended on January 19, 

2007, in Riverkeeper, et al. v. EPA, 06 

Civ. 12987 (S.D.N.Y.) asserting that 

EPA’s Phase III rule failed to discharge 

EPA’s duty under CWA section 316(b). 

On August 14, 2008, EPA filed a 

motion to terminate the Cronin 

proceeding because it had discharged its 


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obligations (to take final action) under 

the decree with respect to the 2004 

Phase II and 2006 Phase III rulemakings. 

Subsequently, EPA entered into a 

settlement with the plaintiffs in both 

lawsuits. Under the settlement 

agreement, EPA agreed to sign a notice 

of a proposed rulemaking implementing 

CWA section 316(b) at existing facilities 

no later than March 14, 2011, and to 

sign a notice taking final action on the 

proposed rule no later than July 27, 

2012. Plaintiffs agreed to seek dismissal 

of both their suits, subject to a request 

to reopen the Cronin proceeding if EPA 

failed to meet the agreed deadlines. The 

district courts have now entered orders 

of dismissal. On March 11, 2011, the 

parties agreed to an amendment to the 

settlement agreement to extend the date 

for proposal to March 28, 2011. On July 

17, 2012, the parties agreed to an 

amendment to the settlement agreement 

to extend the date for the final rule to 

June 27, 2013. On June 21, 2013, the 

parties agreed to extend the date to 

November 4, 2013, to accommodate 

completion of formal consultation under 

the Endangered Species Act. In part due 

to the government shutdown, on 

November 12, 2013, the parties agreed 

to extend the date to January 14, 2014. 

On February 10, 2014, to continue 

progress on the Endangered Species Act 

(ESA) consultation process, the parties 

agreed to extend the date to April 17, 

2014. Finally, on April 23 2014, in a 

conference with the court EPA informed 

the judge that the EPA and the Services 

would complete the ESA consultation, 

so that the EPA would sign the rule by 

May 16, 2014. The court entered an 

order provisionally reinstating the case 

if EPA failed to inform the court by May 

19, 2014 that it had taken the 

contemplated action. On May 19, 2014, 

the Administrator signed this notice for 

publication in the Federal Register. 

3. Prior EPA Actions To Address 

Cooling Water Intake Structures 

a. 1976 Rulemaking 

In April 1976, EPA promulgated 

regulations under section 316(b) that 

addressed cooling water intake 

structures. 41 FR 17387, April 26, 1976. 

The rule added a new § 401.14 to 40 

CFR Chapter I that reiterated the 

requirements of CWA section 316(b). It 

also added a new part 402, which 

included three sections: (1) § 402.10 

(Applicability), (2) § 402.11 (Specialized 

definitions), and (3) § 402.12 (Best 

technology available for cooling water 

intake structures). Section 402.10 stated 

that the provisions of part 402 applied 

to ‘‘cooling water intake structures for 

point sources for which effluent 

limitations are established pursuant to 

section 301 or standards of performance 

are established pursuant to section 306 

of the Act.’’ Section 402.11 defined the 

terms cooling water intake structure, 

location, design, construction, capacity, 

and Development Document. Section 

402.12 included the following language: 

‘‘The information contained in the 

Development Document shall be considered 

in determining whether the location, design, 

construction, and capacity of a cooling water 

intake structure of a point source subject to 

standards established under section 301 or 

306 reflect the best technology available for 

minimizing adverse environmental impact.’’ 

In 1977, electric utility companies 

challenged those regulations, arguing 

that EPA had failed to comply with the 

requirements of the Administrative 

Procedure Act in promulgating the rule. 

Specifically, the utilities argued that 

EPA had violated the Administrative 

Procedure Act in promulgating 

regulations mandating consideration of 

the information in the Development 

Document in establishing 316(b) 

conditions in individual NPDES permits 

because EPA had neither published the 

Development Document in the Federal 

Register nor properly incorporated the 

document into the rule by reference. 

The U.S. Court of Appeals for the 

Fourth Circuit agreed. The court 

determined that the information in the 

Development Document was part of the 

substance of a regulation imposing 

specific obligations in mandatory terms. 

As such, the information must either be 

published in the Federal Register in its 

entirety or to be reasonably available 

and properly incorporated by reference 

under Federal Register requirements. 

The court explained it did not object to 

site-specific implementation of the 

section 316(b) requirements (‘‘[w]hile 

we emphasize we do not fault EPA for 

its point source by point source 

application’’), it did require EPA to 

‘‘devise a less uncertain method of 

advising those affected of the conditions 

by which they are to be bound.’’ 

Appalachian Power Co. v. Train, 566 

F.2d 451, 457 (4th Cir. 1977). Without 

reaching the merits of the regulations 

themselves, the court remanded the 

rule. EPA later withdrew part 402. (See 

44 FR 32956, June 7, 1979.) Section 

402.10, however, now codified at 

§ 401.14, remains in effect. 

Following the Fourth Circuit remand 

of EPA’s section 316(b) regulations in 

1977, NPDES permit authorities have 

made decisions implementing CWA 

section 316(b) and § 401.14 without the 

direction of a national rule. EPA 

published draft guidance addressing 

section 316(b) implementation in 1977. 

See Draft Guidance for Evaluating the 

Adverse Impact of Cooling Water Intake 

Structures on the Aquatic Environment: 

Section 316(b) Public Law 92–500 (U.S. 

EPA 1977). That draft guidance 

describes the studies recommended for 

evaluating the impact of cooling water 

intake structures on the aquatic 

environment and recommends a basis 

for determining the BTA for minimizing 

adverse environmental impact. The 

1977 section 316(b) draft guidance 

states, ‘‘[t]he environmental-intake 

interactions in question are highly sitespecific and the decision as to best 

technology available for intake design, 

location, construction, and capacity 

must be made on a case-by-case basis’’ 

(Section 316(b) Draft Guidance, U.S. 

EPA 1977, p. 4). This site-specific 

approach was also consistent with the 

approach described in the 1976 

Development Document referenced in 

the remanded regulation. (See DCN 1– 

1056–TC from the Phase I docket.) The 

1977 section 316(b) draft guidance 

suggested a general process for 

developing information needed to 

support section 316(b) decisions and 

presenting that information to the 

Director. The process involved 

developing a site-specific study of the 

environmental effects associated with 

each facility that uses one or more 

cooling water intake structures, and 

consideration of that study by the 

Director in determining whether the 

facility must make any changes for 

minimizing adverse environmental 

impact. Under this framework, the 

Director determined whether 

appropriate studies have been 

performed, whether a given facility has 

minimized adverse environmental 

impact, and what, if any, technologies 

may be required. 

b. Phase I—New Facility Rule 

i. Rulemaking 

On November 9, 2001, EPA took final 

action on regulations governing cooling 

water intake structures at new facilities. 

See 66 FR 65255, December 18, 2001. 

On December 26, 2002, EPA made 

minor changes to the Phase I 

regulations. 67 FR 78947. The final 

Phase I new facility rule (40 CFR part 

125, Subpart I) establishes requirements 

applicable to the location, design, 

construction, and capacity of cooling 

water intake structures at new facilities 

that have a design capacity to withdraw 

greater than 2 mgd and use at least 25 

percent of the water they withdraw 

solely for cooling purposes on an actual 

intake flow basis. 

In the new facility rule, EPA adopted 

a two-track approach. Under Track I, 

facilities that withdraw equal to or 


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greater than 10 mgd were required to 

meet three requirements. First, the 

intake flow of the cooling water intake 

structure is restricted, at a minimum, to 

a level commensurate with that which 

could be attained by use of a closedcycle, recirculating cooling system. 

Second, the design through-screen 

intake velocity is restricted to 0.5 fps 

(foot per second). Third, the total 

quantity of intake is restricted to a 

proportion of the mean annual flow of 

a freshwater river or stream, or to a level 

necessary to maintain the natural 

thermal stratification or turnover 

patterns (where present) of a lake or 

reservoir except in cases where the 

disruption is beneficial, or to a 

percentage of the tidal excursions of a 

tidal river or estuary. Further, if there 

are, for example, endangered or 

threatened species stressed by a 

facility’s intake structure, a facility that 

would otherwise meet the applicable 

performance requirements may have to 

select and implement additional design 

and construction or operational 

measures to address impingement 

mortality and entrainment if these 

measures are inadequate to protect the 

species. Facilities with greater than 2 

mgd but less than 10 mgd flows are not 

required to reduce intake flow to a level 

commensurate with a closed-cycle, 

recirculating cooling system, but they 

must still meet specific operational 

criteria. 

Under Track II, a facility had the 

opportunity to demonstrate to the 

NPDES permitting authority (Director) 

that the technologies it employs will 

reduce the level of adverse 

environmental impact to a comparable 

level to what would be achieved by 

meeting the Track I requirements for 

restricting intake flow and velocity. In 

making this demonstration, the 

regulations allow a facility to rely on a 

combination of measures in addition to 

technology controls for reducing 

impingement and entrainment to 

achieve results equivalent to the Track 

I intake flow and velocity requirements. 

Among these measures, the rule would 

have allowed restoration of the affected 

waterbody through efforts such as 

restocking fish and improving the 

surrounding habitat to offset the adverse 

effects that would otherwise be caused 

by operating the intake structures. The 

Second Circuit, in reviewing the new 

facility rule, determined that section 

316(b) did not authorize the use of 

restoration measures in complying with 

the EPA performance standard. (Note 

that EPA is removing the provision 

related to restoration measures from the 

CFR in this rulemaking but has included 

the above description of the Phase I rule 

for completeness.) For more 

information, see Section I above. 

In addition, under the Phase I rule, 

the Director may establish less stringent 

alternative requirements for a facility if 

compliance with the Phase I standards 

would result in compliance costs 

wholly out of proportion to those EPA 

considered in establishing the Phase I 

requirements or would result in 

significant adverse impacts on local air 

quality, water resources, or local energy 

markets. 

EPA specifically excluded new 

offshore oil and gas extraction facilities 

from the Phase I new facility rule but 

committed to consider establishing 

requirements for such facilities in the 

Phase III rulemaking. 66 FR 65338, 

December 18, 2001. 

ii. Subsequent Litigation 

Various environmental and industry 

groups challenged the Phase I rule. In 

February 2004, the Second Circuit 

sustained the entire rule except for the 

restoration provision, ruling that 

restoration was not a technology as 

provided for in section 316(b). With 

respect to the other provisions of the 

rule, the court concluded the Phase I 

rule was based on a reasonable 

interpretation of the applicable statute 

and sufficiently supported by the 

record. Restoration provisions of the 

rule were remanded to EPA for further 

rulemaking consistent with the court’s 

decision. Riverkeeper, Inc. v. EPA, 358 

F.3d 174, 191 (2nd Cir., 2004). Today’s 

rule removes the restoration provisions 

from the Phase I rule. For more details, 

see Chapter I of this preamble. 

c. Phase II—Large Flow Existing Power 

Plants 

i. Rulemaking 

On February 16, 2004, EPA took final 

action on regulations governing cooling 

water intake structures at certain 

existing power-producing facilities. 69 

FR 41576, July 9, 2004. The final 2004 

Phase II rule applied to existing 

facilities that are point sources; that, as 

their primary activity, both generate and 

transmit electric power or generate 

electric power for sale or transmission; 

that use or propose to use a cooling 

water intake structure with a total DIF 

of 50 mgd or more to withdraw water 

from waters of the United States; and 

that use at least 25 percent of the 

withdrawn water exclusively for cooling 

purposes on an actual intake flow basis. 

In addition, power producers fitting the 

description above were also subject to 

the final 2004 Phase II rule even if they 

obtain their cooling water from one or 

more independent suppliers of cooling 

water. Such facilities were subject to the 

rule if their supplier withdraws water 

from waters of the United States even if 

the supplier was not itself a 2004 Phase 

II existing facility. EPA included this 

provision to prevent circumvention of 

the 2004 Phase II rule requirements by 

a facility purchasing cooling water from 

entities not otherwise subject to section 

316(b). 

The final 2004 Phase II rule and 

preamble also clarified the definition of 

an existing power-producing facility. 

The 2004 Phase II rule defined an 

existing facility as ‘‘any facility that 

commenced construction as described 

in § 122.29(b)(4) on or before January 17, 

2002; and any modification of, or 

addition of a unit at such a facility that 

does not meet the definition of a new 

facility at § 125.83.’’ Because the 

definition of the term existing facility 

was based in part on the Phase I 

definition of the term new facility, the 

preamble to the final 2004 Phase II rule 

also clarified and provided some 

examples of how the definition of 

existing facility might apply to certain 

changes at power-producing facilities. 

Under the 2004 Phase II rule, EPA 

established BTA performance standards 

for the reduction of impingement 

mortality and, under certain 

circumstances, entrainment (see 69 FR 

41590–41593, July 9, 2004). The 

performance standards consisted of 

ranges of reductions in impingement 

mortality and, if applicable, entrainment 

(e.g., reduce impingement mortality by 

80 to 95 percent and/or entrainment by 

60 to 90 percent) relative to a 

calculation baseline that reflected the 

level of impingement mortality and 

entrainment that would occur absent 

specific controls. These performance 

standards were not based on a single 

technology but, rather, on consideration 

of a suite of technologies that EPA 

determined were commercially 

available and economically achievable 

for the industries affected as a whole (69 

FR 41598–41610, July 9, 2004). EPA 

based the impingement mortality and 

entrainment performance standards on a 

suite of technologies because it found 

no single technology to be effective at 

all affected facilities. For impingement 

standards, these technologies included 

the following: (1) Fine- and wide-mesh 

wedgewire screens, (2) barrier nets, (3) 

modified screens and fish return 

systems, (4) fish diversion systems, and 

(5) fine-mesh traveling screens and fish 

return systems. With regard to 

entrainment reduction, these 

technologies include the following: (1) 

Aquatic filter barrier systems, (2) finemesh wedgewire screens, and (3) fineVerDate Mar<15>2010 18:30 Aug 14, 2014 Jkt 232001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\15AUR2.SGM 15AUR2

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20Rhode Island, Connecticut, Delaware, 

Massachusetts, New Jersey, and New York. 

mesh traveling screens with fish return 

systems. Because EPA based the 

performance standards on a 

combination of technologies and 

because of the uncertainty inherent in 

predicting the efficacy of one or more of 

these technologies as applied to 

different facilities, EPA promulgated 

these standards as ranges. Furthermore, 

because the site-specific performance 

was based on a comparison to a oncethrough system without any specific 

controls on the shoreline near the 

source waterbody (i.e., calculation 

baseline, for more details see Section 

III.B.1 of the preamble to the proposed 

rule, 76 FR 22185, April 20, 2011), the 

rule also allowed facilities to receive 

credit toward meeting the performance 

standards for impingement and 

entrainment reduction associated with 

alternative locations of their intakes 

(e.g., deep water where fish and 

shellfish were less abundant). 

The types of performance standard 

applicable to a facility (i.e., reductions 

in impingement mortality only or both 

impingement mortality and 

entrainment) were based on several 

factors, including the facility’s location 

(i.e., source waterbody), rate of use 

(capacity utilization rate), and the 

proportion of the waterbody withdrawn. 

The 2004 Phase II rule identified five 

compliance alternatives to meet the 

performance standards. A facility could 

demonstrate to the Director one of the 

following: (1) That it has already 

reduced its flow commensurate with a 

closed-cycle recirculating system (to 

meet both impingement mortality and 

entrainment), or that it has already 

reduced its maximum through-screen 

velocity to 0.5 fps or less (to meet the 

impingement performance standard 

only); (2) that its cooling water intake 

structure configuration meets the 

applicable performance standards; (3) 

that it has selected design and 

construction technologies, operational 

measures, and/or restoration measures 

that, in combination with any existing 

design and construction technologies, 

operational measures, and/or restoration 

measures, meet the applicable 

performance standards; (4) that it meets 

the applicability criteria and has 

installed and is properly operating and 

maintaining a rule-specified and/or 

approved State-specified design and 

construction technology (i.e., submerged 

cylindrical wedgewire screens) in 

accordance with § 125.99(a) or an 

alternative technology that meets the 

appropriate performance standards and 

is approved by the Director in 

accordance with § 125.99(b); or (5) that 

its costs of compliance would be 

significantly greater than either the costs 

considered by the Administrator for a 

like facility to meet the applicable 

performance standards, or the benefits 

of meeting the applicable performance 

standards at the facility. Under the costcost comparison alternative, a Director 

could determine that the cost of 

compliance for a facility would be 

significantly greater than the costs 

considered by EPA in establishing the 

applicable impingement mortality and 

entrainment performance standards. 

Similarly, under the cost-benefit 

comparison alternative, a Director could 

determine that the cost of compliance 

for a facility would be significantly 

greater than the benefits of complying 

with the applicable performance 

standards. If either of these 

determinations were made, the Director 

would have to make a site-specific 

determination of BTA for minimizing 

adverse environmental impact that came 

as close as practicable to meeting the 

applicable performance standards at a 

cost that did not significantly exceed 

either the costs EPA considered in 

establishing these standards or the sitespecific benefits of meeting these 

standards. 

The final 2004 Phase II rule also 

provided that a facility that chooses 

specified compliance alternatives might 

request that compliance with the 

requirements of the rule be determined 

on the basis of implementing a 

Technology Installation and Operation 

Plan (TIOP) that would indicate how the 

facility would install and ensure the 

efficacy, to the extent practicable, of 

design and construction technologies, 

and/or operational measures, and/or a 

Restoration Plan. The rule also 

established requirements for developing 

and submitting a TIOP 

(§ 125.95(b)(4)(ii)) and provisions that 

specified how compliance could be 

determined on the basis of 

implementing a TIOP (§ 125.94(d)). 

Under these provisions, a TIOP could be 

requested in the first permit term, and 

continued use of a TIOP could be 

requested where a facility was in 

compliance with such plan and/or its 

Restoration Plan. 

ii. Subsequent Litigation 

Industry, environmental stakeholders, 

and some States 20 challenged many 

aspects of the 2004 Phase II regulations. 

On January 25, 2007, the Second Circuit 

(Riverkeeper, Inc. v. EPA, 475 F.3d 83, 

(2d Cir., 2007)) upheld several 

provisions of the 2004 Phase II rule and 

remanded others to EPA for further 

rulemaking. 

As noted above, for the 2004 Phase II 

rule EPA did not select closed-cycle 

cooling as BTA. Instead, EPA selected a 

suite of technologies to reflect BTA, 

including, for example, screens, aquatic 

filter barriers, and barrier nets. 

According to the chosen technologies, 

EPA established national performance 

standards for reducing impingement 

mortality and entrainment of fish and 

fish organisms but did not require the 

use of any specific technology. Among 

the aspects of the rule the Second 

Circuit remanded for further 

clarification was EPA’s decision to 

reject closed-cycle cooling as BTA and 

EPA’s determination of performance 

ranges as BTA. In addition, the Second 

Circuit found that, consistent with its 

Phase I decision, restoration was not 

authorized under the CWA as a 

technology for BTA and that EPA’s costbenefit site-specific compliance 

alternative was not in accord with the 

CWA. There are also several issues for 

which the court requested additional 

clarification and some instances where 

the court determined that EPA had 

failed to provide adequate notice and 

opportunity to comment on certain 

provisions of the rule. 

iii. Suspension 

As a result of the decision in 

Riverkeeper, Inc. v. EPA, 475 F.3d 83, 

(2d Cir., 2007), EPA, on July 9, 2007 (72 

FR 37107) suspended the requirements 

for cooling water intake structures at 

2004 Phase II existing facilities, pending 

further rulemaking. Specifically, EPA 

suspended the provisions in 

§ 122.21(r)(1)(ii) and (r)(5), and part 125 

Subpart J, with the exception of 

§ 125.90(b). EPA explained that 

suspending the 2004 Phase II 

requirements was an appropriate 

response to the Second Circuit’s 

decision and that such action would 

allow it to consider how to respond to 

the remand. In addition, suspending the 

2004 Phase II rule was responsive to the 

concerns of the regulated community 

and permitting agencies, both of whom 

sought guidance regarding how to 

proceed in light of the approaching 

deadline for compliance with the 

remanded rule. EPA’s suspension 

clarified that pending further 

rulemaking, permit requirements for 

cooling water intake structures at 2004 

Phase II facilities should be established 

on a case-by-case, BPJ basis (see 

§ 125.90(b)). 

iv. Supreme Court Decision 

Following the decision in the Second 

Circuit, several industry group litigants 


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48318 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

21Rapport, D. J., & Whitford, W. G. (1999). How 

Ecosystems Respond to Stress. BioScience, 49(3), 

193–203. See DCN 10–4871. 

petitioned the U.S. Supreme Court to 

hear an appeal regarding several issues 

in the case. Entergy Corp. v. 

Riverkeeper, Inc. et al., S. Ct. No. 07– 

588, et al. On April 14, 2008, the 

Supreme Court granted the petitions for 

writs of certiorari submitted by these 

2004 Phase II litigants, but it limited its 

review to the issue of whether section 

316(b) authorizes EPA to compare costs 

with benefits in determining BTA for 

cooling water intake structures. The 

Supreme Court held oral arguments in 

this case on December 2, 2008, and 

issued a decision on April 1, 2009. As 

explained above, the Supreme Court 

held that it is permissible for EPA to 

rely on cost-benefit analysis in decision 

making. The court indicated that the 

phrase ‘‘best technology available for 

minimizing adverse environmental 

impact’’ does not unambiguously 

preclude use of cost-benefit analysis in 

decision making. 566 U.S. at 223(2009). 

The ruling supports EPA’s discretion to 

consider costs and benefits, but it 

imposes no obligation on the Agency to 

do so. 

d. Phase III—Existing Power Plants 

Below 50 mgd, Existing Manufacturing 

Facilities, and New Offshore Oil and 

Gas Facilities 

i. Rulemaking 

On June 16, 2006, EPA published a 

final Phase III rule that established 

categorical regulations for new offshore 

oil and gas extraction facilities that have 

a DIF threshold of greater than 2 mgd 

and that withdraw at least 25 percent of 

the water exclusively for cooling 

purposes on an actual intake flow basis. 

The rule establishes requirements that 

address intake velocity, proportionate 

flow for sensitive locations, design and 

construction technologies or operational 

measures, monitoring and 

recordkeeping, based on if a facility 

employs a sea chest or not, and is fixed 

or not. Like the Phase I rule, this rule 

includes a Track II. In the Phase III rule, 

EPA declined to establish national 

standards for Phase III existing facilities. 

Instead it concluded that CWA section 

316(b) requirements for electric 

generators with a DIF of less than 50 

mgd and all existing manufacturing 

facilities would continue to be 

established on a case-by-case basis 

under the NPDES permit program using 

BPJ. (71 FR 35006, June 16, 2006). 

ii. Subsequent Litigation 

Following promulgation of the rule, a 

number of parties filed petitions for 

review that were subsequently 

consolidated for hearing in the U.S. 

Court of Appeals for the Fifth Circuit. In 

2009, EPA petitioned the Fifth Circuit to 

remand to the Agency those parts of the 

rule that applied to existing facilities. 

Specifically, EPA requested remand of 

those provisions in the Phase III rule 

that establish 316(b) requirements at 

electric generators with a DIF of less 

than 50 mgd, and the provision 

establishing requirements for existing 

manufacturing facilities on a case-bycase basis using BPJ. This request did 

not affect the Phase III rule requirements 

that establish categorical regulations for 

new offshore oil and gas extraction 

facilities that have a DIF threshold of 

greater than 2 mgd and that withdraw at 

least 25 percent of the water exclusively 

for cooling purposes on an actual intake 

flow basis. 

On July 23, 2010, the U.S. Court of 

Appeals for the Fifth Circuit issued a 

decision affirming the parts of Phase III 

rule relating to new offshore oil and gas 

facilities. The court granted EPA’s 

motion to remand the rule with respect 

to existing facilities. In sustaining the 

requirements for new offshore oil and 

gas facilities, the Fifth Circuit upheld 

EPA’s decision not to use cost benefit 

balancing in determining the 

requirements for these new facilities. 

III. Environmental Effects Associated 

With Cooling Water Intake Structures 

A. Introduction 

Multiple types of adverse 

environmental effects may be associated 

with CWIS operations at regulated 

facilities. Many facilities employ oncethrough cooling water systems that 

impinge fishes and other aquatic 

organisms on intake screens. Impinged 

organisms may be killed, injured, or 

weakened. In addition, early life stage 

fish or planktonic organisms can be 

entrained by the CWIS and subjected to 

high velocity and pressure, increased 

temperature, and chemical antibiofouling agents in the system. These 

factors are highly lethal in most cases, 

as early life stages of larvae are highly 

sensitive and very unlikely to survive 

entrainment. Even if an organism is 

entrained as an egg and survives, its 

chances of surviving beyond the larvae 

stage are dramatically lower than eggs 

that were never entrained. Thus, unless 

measures to protect larvae are in place, 

egg survival does not indicate that 

adverse environmental impacts have 

been avoided. Consistent with its 

treatment of entrainment in past 316(b) 

rules, EPA assumes for the purposes of 

a national rule that 100 percent of 

entrained organisms suffer mortality. 

The effects of CWIS on aquatic 

habitats and biota in the waterbody do 

not occur in isolation from other 

ongoing physical, chemical, and 

biological stressors. Anthropogenic 

stressors may include: Degraded water 

and sediment quality, low dissolved 

oxygen (DO) levels, eutrophication, 

fishing, channel or shoreline (habitat) 

modification (intake structure and other 

flood or storm controls), hydrologic 

regime changes and invasive species. 

For example, many aquatic organisms 

subject to IM&E (impingement mortality 

and entrainment) reside in impaired 

(i.e., CWA 303(d) listed) waterbodies. 

The effects of anthropogenic stressors 

on biota may contribute to or compound 

the impact of IM&E, depending on the 

influence of location-specific factors. In 

addition to stressors acting on biota near 

a single CWIS, multiple CWISs and 

facilities located in close proximity on 

the same waterbody may have additive 

or cumulative effects on aquatic 

communities. And, although it is 

difficult to measure, the compensatory 

ability of an aquatic population, which 

is the capacity for a species to increase 

survival, growth, or reproduction rates 

in response to decreased population, is 

likely compromised by IM&E and the 

cumulative impact of other stressors in 

the environment over extended periods 

of time. 

B. Major Anthropogenic Stressors in 

Aquatic Ecosystems 

All ecosystems and their biota are 

subject to natural variability in 

environmental conditions (e.g., seasonal 

cycles, foliage presence) as well as 

periodic large-scale disturbances (e.g., 

drought, flood, fire). In contrast, 

anthropogenic stressors tend to be more 

chronic in nature and can often lead to 

long-term environmental degradation 

associated with decreased biodiversity, 

reduced primary and secondary 

production, and a lowered ecosystem 

resiliency (i.e., ability of the ecosystem 

to recover to its original state from 

perturbations).21 Several of the more 

important anthropogenic stressors are 

discussed below, with CWIS-related 

impacts considered as a separate 

category of stress. 

1. Habitat Loss 

Structural aquatic habitat is generally 

recognized as the most significant 

determinant of the nature and 

composition of aquatic communities. 

Most 316(b) facilities have been built on 

shoreline locations where industrial 

buildings, roadways, canals, 

impoundments, and other water storage 

or conveyance structures have been 


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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48319 

22Abt Associates, Inc. (2010). Source Water Body 

Comparisons (Under Work Assignment 2–09, Task 

4) (pp. 13). Cambridge, MA. See DCN 10–4504. 

23Ruiz, G. M., Fofonoff, P. W., Carlton, J. T., 

Wonham, M. J., & Hines, A. H. (2000). Invasion of 

Coastal Marine Communities in North America: 

Apparent Patterns, Processes, and Biases. Annual 

Review of Ecology & Systematics, 31, 481–531. See 

DCN 10–4880. 

24Northeast Fisheries Science Center (NEFSC) of 

the NOAA National Marine Fisheries Service. 

(2011). 52nd Northeast Regional Stock Assessment 

Workshop (52nd SAW): Assessment Summary 

Report. DCN 12–4940. 

25U.S. Department of the Interior (USDOI). 

(2004). Fisheries: Aquatic and Endangered 

Resources from http://www.glsc.usgs.gov/

main.php?content=research_

risk&title=Species%20at%20Risk0&menu=research 

[Retrieved June 23, 2004]; Wisconsin Department of 

Natural Resources (Wisconsin DNR). (2003). Adrift 

on the sea of life. Wisconsin Natural Resources, 

June, 17–21. See DCN 10–4914. 

26Stachowicz, J. J., & Byrnes, J. E. (2006). Species 

Diversity, invasion success, and ecosystem 

functioning: disentangling the influence of resource 

competition, facilitation, and extrinsic factors. 

Marine Ecology—Progress Series, 311, 251–262. See 

DCN 10–4892. 

constructed at the cost of terrestrial, 

aquatic, and wetland habitats. The main 

impacts of aquatic habitat loss are a 

reduction in the number of fish in the 

environment, a concentration of fishery 

spawning and nursery areas in fewer 

locations, shifts in species dominance 

based on available habitat and local 

extirpation of historical fish species. 

Habitat loss in shoreline areas 

exacerbates the effect of CWIS losses 

because many fish species affected by 

IM&E rely heavily on coastal wetlands 

as nursery areas. 

2. Water Quality and Impaired Waters 

Poor water quality is a major stressor 

of aquatic biota and habitats. Degraded 

surface water and sediment 

contaminants reflect both current and 

past industrial, agricultural and urban 

land use and disposal practices. Poor 

water quality can limit the numbers, 

composition, and distribution of fish 

and invertebrates; reduce spawning 

effort and growth rates; select for 

pollution-tolerant species; cause 

periodic fishkills; or result in adverse 

bioaccumulative effects to piscivorous 

wildlife. 

EPA has determined that the majority 

of surveyed facilities, including 71 

percent of electric generators and 79 

percent of sampled manufacturing 

facilities, are within two miles of an 

impaired (i.e., CWA section 303(d)- 

listed) waterbody.22 These impairments 

are caused by a variety of chemical, 

physical, and biological factors. These 

factors include biological stressors, 

nutrients, organic enrichment/loading, 

bioaccumulation, toxics, unknown 

causes, and other forms of 

anthropogenic sources of pollution (e.g., 

atmospheric deposition of mercury 

leading to fish advisories). The 

combined impacts of impaired water 

quality may result in highly degraded or 

altered aquatic communities that are 

further impaired by IM&E associated 

with the operation of regulated 

facilities. 

3. Overharvesting 

Overharvesting is a general term 

describing the exploitation of an aquatic 

population beyond a level that is 

sustainable, sometimes to the point of 

significantly reducing the population 

relative to historic levels. Given that 

many fisheries regulated by the National 

Marine Fisheries Service (NMFS) are 

overfished on a continual basis, 

overharvesting is a particular problem 

for stocks also subject to IM&E. 

4. Invasive Species 

Non-indigenous invasive species 

(NIS) are a significant and increasingly 

prevalent stressor in both freshwater 

and marine environments. 

Approximately 300 NIS have become 

established in marine and estuarine 

habitats of the continental U.S., and the 

number of NIS continues to increase. 

Many NIS are nuisance species with 

undesirable effects on local 

communities.23 For example, 

interactions between NIS and other 

anthropogenic stressors can affect the 

colonization and distribution of native 

species subject to CWIS impacts. 

C. Effects of CWIS on Aquatic 

Ecosystems 

The magnitude and regional 

importance of IM&E is a function of 

operational CWIS intake volumes and 

characteristics of the aquatic community 

in the region. Thus, for example, IM&E 

can contribute to impacts on threatened 

and endangered (T&E) species and 

reduce populations of ecologically 

critical aquatic organisms, including 

important organisms in an ecosystem’s 

food web. In addition, IM&E may 

diminish the compensatory reserves of 

populations and reduce indigenous 

species populations, commercial 

fisheries, and recreational fisheries. 

Further, IM&E may stress overall 

communities and ecosystems, as 

evidenced by reductions in diversity or 

other changes in ecosystem structure or 

function. The direct and indirect 

impacts of CWIS may reduce other 

valuable ecosystem goods and services, 

including nutrient cycling and 

ecosystem stability. 

1. Losses of Fish From Impingement 

Mortality and Entrainment 

The most visible direct impacts of 

IM&E are the losses of large numbers of 

aquatic organisms, distributed nonuniformly among fish, benthic 

invertebrates, phytoplankton, 

zooplankton, and other susceptible 

aquatic taxa (e.g., sea turtles). These 

losses have immediate and direct effects 

on the population size and age 

distribution of affected species, and may 

cascade through food webs. 

In some cases, IM&E has been shown 

to be a significant source of 

anthropogenic mortality of depleted 

stocks of commercially targeted species. 

For example, approximately 5.4 percent 

of the estimated A1E population of the 

Southern New England/Massachusetts 

stock of winter flounder 

(Pseudopleuronectes americanus) is lost 

to IM&E.24 In addition to its effect on 

stocks of marine commercial fish 

species, IM&E increases the pressure on 

native freshwater species, such as lake 

whitefish (Coregonus clupeaformi) and 

yellow perch (Perca flavescens), whose 

populations have seen dramatic 

declines in recent years.25

IM&E is also likely to contribute to 

reduced population sizes of species 

targeted by commercial and recreational 

fishers, particularly for stocks that are 

being harvested at unsustainable levels 

and/or undergoing rebuilding. Thus, 

reducing IM&E may lead to more rapid 

stock recovery, a long-term increase in 

commercial fish catches, increased 

population stability following periods of 

poor recruitment and, as a consequence 

of increased resource utilization, an 

increased ability to minimize the 

invasion of exotic species.26

2. IM&E Effects on Threatened and 

Endangered Species 

Populations of T&E (threatened and 

endangered) species may suffer 

increased mortality as direct or indirect 

consequences of IM&E. T&E species are 

vulnerable to future extinction or at risk 

of extinction in the near future and 

IM&E losses could either lengthen 

population recovery time, hasten the 

demise of these species, or counteract 

the effects of other conservation efforts. 

For this reason, the population-level 

and societal values of T&E losses are 

likely to be considered more important 

than the absolute number of losses that 

occur. Due to low population sizes, I&E 

mortality from CWISs may represent a 

substantial portion of the annual 

reproduction of T&E species. 

3. Thermal Effects 

One byproduct of once-through 

cooling water systems is a discharge of 

a heated effluent. Concerns about the 

impacts of heated effluents are 


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48320 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

27Abt Associates, Inc. (2010). Source Water Body 

Comparisons (Under Work Assignment 2–09, Task 

4) (pp. 13). Cambridge, MA. See DCN 10–4504. 

28Abt Associates, Inc. (2009). Summary of 

Ecological Effects of Thermal Discharge (pp. 28). 

Cambridge, MA. See DCN 10–4505. 

29Martinez-Arroyo, A., Abundes, S., Gonza ́lez, M. 

E., & Rosas, I. (2000). On the Influence of Hot-Water 

Discharges on Phytoplankton Communities from a 

Coastal Zone of the Gulf of Mexico. Water, Air & 

Soil Pollution, 119(1–4), 209–230. See DCN 10– 

4820. 

30Smythe, A. G., & Sawyko, P. M. (2000). Field 

and laboratory evaluations of the effects of ‘cold 

shock’ on fish resident in and around a thermal 

discharge: an overview. Environmental Science & 

Policy, 3(S1), 225–232. See DCN 10–4887. 

31Taylor, C. J. L. (2006). The effects of biological 

fouling control at coastal and estuarine power 

stations. Marine Pollution Bulletin, 53(1–4), 30–48. 

See DCN 10–4901. 

32Hoyal, D. C. J. D., Atkinson, J. F., Depinto, J. 

V., & Taylor, S. W. (1995). The effect of turbulence 

on sediment deposition. Journal of Hydraulic 

Research, 33(3), 349–360. See DCN 10–4797. 

33Sanford, E. B., Bertness, D., & M. D. Gaines, S. 

D. (1994). Flow, food supply and acorn barnacle 

population dynamics. Marine Ecology Progress 

Series, 104, 49–62. See DCN 10–4882. 

34Swain, D. P., Sinclair, A. F., & Mark Hanson, 

J. (2007). Evolutionary response to size-selective 

mortality in an exploited fish population. 

Proceedings of the Royal Society B: Biological 

Sciences, 274(1613), 1015–1022. See DCN 10–4900. 

35 Vanni, M. J., Layne, C. D., & Arnott, S. E. 

(1997). ‘‘Top-down’’ trophic interactions in lakes: 

effects of fish on nutrient dynamics. Ecology, 78(1), 

1–20. See DCN 12–5047. 

addressed by state water quality 

standards addressing temperature, 

rather than a national rule. Section 

316(a) of the Clean Water Act provides 

a mechanism for variances from controls 

that could be imposed due to thermal 

effects. Based on a limited review of 

NPDES permits, to the extent that 

facilities have controls on cooling water 

intake structures, these controls have 

been required to meet water quality 

standards related to temperature.27

Thermal pollution has long been 

recognized as having multiple effects 

upon the structure and function of 

ecosystems.28 Numerous studies have 

shown that thermal discharges may 

substantially alter the structure of the 

aquatic community by modifying 

photosynthetic, metabolic, and growth 

rates 29 and reducing levels of DO. 

Thermal pollution may also alter the 

location and timing of fish behaviors 

including spawning, aggregation, and 

migration, and may result in thermal 

shock-induced mortality for some 

species.30 Adverse temperature effects 

are likely to be more pronounced in 

aquatic ecosystems that are already 

subject to other environmental stressors 

such as high biochemical oxygen 

demand (BOD) levels, sediment 

contamination, and pathogens. Reduced 

waterbody volume due to the effects of 

climate change and/or lengthy droughts 

could exacerbate these effects. 

4. Chemical Effects 

The release of chemicals in the 

discharge of once-through cooling 

waters is another environmental effect 

associated with industrial facility 

operations. These chemicals include 

metals from internal corrosion of pipes, 

valves and pumps (e.g., chromium, 

copper, iron, nickel, and zinc), additives 

(anti-corrosion and anti-scaling agents) 

and their byproducts, and materials 

from boiler blowdown and cleaning 

cycles. In addition to these pollutants, 

facilities also discharge anti-fouling 

biocide agents. 

A review of the effects of chemical 

treatment and discharge into the 

environment suggests that direct 

ecotoxicity in discharge plumes is rarely 

observed beyond the point of discharge 

or in a mixing zone near the pipe 

outlet.31 However, the presence of these 

chemicals in the receiving water may be 

additive to low-level chronic adverse 

effects from other anthropogenic 

stressors identified above. 

5. Effects of Flow Alteration 

The operation of CWISs and discharge 

returns significantly alter patterns of 

flow within receiving waters both in the 

immediate area of the CWIS intake and 

discharge pipe, and in mainstream 

waterbodies, particularly in inland 

riverine settings. In ecosystems with 

strongly delineated boundaries (i.e., 

rivers, lakes, enclosed bays, etc.), CWISs 

may withdraw and subsequently return 

a substantial proportion of water 

available to the ecosystem. Even in 

situations when the volume of water 

downstream of regulated facilities 

changes relatively little, the flow 

characteristics of the waterbody, 

including turbulence and water 

velocity, may be significantly altered. 

Altered flow velocities and turbulence 

may lead to several changes in the 

physical environment. These changes 

can include sediment deposition, 

sediment transport, and turbidity, each 

of which plays a role in the physical 

structuring of ecosystems.32 Flow 

velocity and turbulence are controlling 

biological factors in aquatic ecosystem 

health, and have been shown to alter 

feeding rates, settlement and 

recruitment, bioturbation, growth and 

population dynamics.33

Climate change is predicted to have 

variable effects on future river flow in 

different regions of the United States. 

Some rivers are expected to have large 

increases in flood flows while other 

basins will experience stress from low 

water levels. Thus, the adverse effects of 

flow alteration may increase or decrease 

over longer periods for larger rivers, 

depending on their location. 

D. Community-Level or Indirect Effects 

of CWIS 

In addition to the direct effects of 

CWISs, IM&E may alter a wide range of 

aquatic ecosystem functions and 

services at the community level. Many 

of these effects on aquatic community 

function and service are poorly 

characterized, given the limited scope of 

IM&E studies and an incomplete 

knowledge of baseline or preoperational conditions within affected 

waters. 

The operation of CWISs by facilities 

can lead to localized areas of depressed 

fish and shellfish abundance. Industrial 

facilities (and the intake volume they 

represent) are located in a non-uniform 

manner along coastlines and rivers. 

They may be clustered, such that the 

populations affected by IM&E are 

geographically heterogeneous. This can 

result in a highly localized and patchy 

distribution of aquatic organisms in 

regional areas. 

IM&E may directly reduce species 

populations through the death of 

individual organisms, or may indirectly 

affect species populations by altering 

established predator-prey relationships 

and thereby disrupting ecological niches 

and food webs. For example, the loss of 

young-of-year predators, such as striped 

bass, or loss of important forage fish, 

such as menhaden and bay anchovy, 

may affect trophic relationships and 

alter food webs. IM&E may lead to 

reductions in local community 

biodiversity or in a loss of genetic 

diversity in individual fish populations. 

Because IM&E represents a selective 

pressure on early life stages, it may 

reduce the genetic diversity of resident 

fish and prevent the recovery of 

depleted stocks.34 Also, because many 

stocks are differentiated by oceanic 

region and/or timing of migratory 

movements, IM&E could alter the 

seasonal migration and life cycle events 

of fish populations, which could have 

ramifications for predator species. 

IM&E may also alter the pace of 

nutrient cycling and energy transfer 

through food webs. Fish species have 

been shown to have substantial effects 

on nitrogen, phosphorous, and carbon 

cycling due to storage and translocation 

effects.35 These alterations in nutrient 

cycling could lead to redirection of 

nutrient flows to other components of 

the ecosystem including water column 

phytoplankton, benthic macroalgae and 

attached epiphytes, with subsequent 

changes to the condition of critical 


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36Folke, C., Carpenter, S., Walker, B., Scheffer, 

M., Elmqvist, T., Gunderson, L., & Holling, C. S. 

(2004). Regime Shifts, Resilience, and Biodiversity 

in Ecosystem Management . . . Annual Review of 

Ecology, Evolution, & Systematics, 35(1), 557–581. 

See DCN 10–4770. 

37As described in the Phase I proposed rule (65 

FR 49060) and the Phase II NODA (66 FR 28853), 

absent any other controls, withdrawal of a unit 

volume of water from a waterbody will result in the 

entrainment of an equivalent unit of aquatic life 

(such as eggs and larval organisms) suspended in 

that volume of the water column. Thus, facilities 

withdrawing greater than 5 percent of the mean 

annual flow from freshwater rivers and streams may 

entrain equal proportions of aquatic organisms. 

38EPA is aware that innovative screen designs are 

currently being tested that are expected to provide 

similar or better performance than modified 

Ristroph traveling screems. Therefore EPA has 

defined modified traveling screen at 40 CFR 125.92 

to mean any traveling water screen that 

incorporates the specified measures that are 

protective of fish and shellfish. In this preamble, 

modified traveling water screen with a fish 

handling and return system is often referred to more 

simply a modified traveling screen. 

39Though less common, the EPA recognizes that 1⁄2 by 1⁄4 inch mesh are used in some instances and 

perform comparably to the 3⁄8 inch square mesh. 

Therefore, today’s rule allows for facilities to apply 

a 1⁄2 by 1⁄4 inch sieve (diagonal opening of 0.56 

inches) or a 3⁄8 inch sieve (diagonal opening of 0.53 

inches) when discerning between impinged and 

entrained organisms. 

ecosystem habitats, such as submerged 

aquatic vegetation. 

The effect of long-term or chronic 

IM&E may lead to a decrease in 

ecosystem resistance and resilience 36

(i.e., ability to resist and recover from 

disturbance, including invasive 

species). That is, IM&E is likely to 

reduce the ability of ecosystems to 

withstand and recover from these 

ecosystem damages, whether those 

impacts are due to anthropogenic effects 

or natural variability. 

E. Cumulative Effects of Multiple 

Facilities 

Cumulative effects of CWISs are likely 

to occur if multiple facilities are located 

in close proximity and impinge or 

entrain aquatic organisms within the 

same source waterbody, watershed 

system, or along a migratory pathway of 

a specific species (e.g., striped bass in 

the Hudson River). EPA analyses show 

more than 20 percent of all facilities on 

inland waters withdraw more than 5 

percent of the mean annual flow.37 See 

TDD Chapter 4.1.3 for detailed 

discussion. This impact is compounded 

because more than half of all regulated 

facilities are located on waterbodies 

with multiple CWISs. An inspection of 

the geographic locations of regulated 

facilities (approximated by CWIS 

latitude and longitude) shows that 

facilities in inland settings are more 

likely to be located in close proximity 

to other facilities (upstream or 

downstream) than are facilities in 

marine and estuarine environments. The 

cumulative impact of clustered facilities 

may be significant, due to the 

concentrated IM&E, combined intake 

flows, and the potential for other 

impacts such as thermal discharges. 

IV. Summary Description of the Final 

Rule 

Under today’s final rule, the owners 

or operators of existing facilities and 

new units at existing facilities are 

subject to BTA standards for 

impingement mortality and entrainment 

that are expected to substantially reduce 

the adverse environmental impacts of 

cooling water intake structures. Earlier, 

in Section I, the preamble describes 

what facilities are subject to the rule. 

The discussion below presents an 

overview of the substantive 

requirements of the rule. 

A. BTA Standard for Impingement 

Mortality for Existing Units at Existing 

Facilities 

The final rule requires that existing 

facilities subject to this rule must 

comply with one of the following seven 

alternatives identified in the national 

BTA standard for impingement 

mortality at § 125.94(c) (hereafter, 

impingement mortality standards): 

(1) Operate a closed-cycle 

recirculating system as defined at 

§ 125.92; 

(2) operate a cooling water intake 

structure that has a maximum throughscreen design intake velocity of 0.5 fps; 

(3) operate a cooling water intake 

structure that has a maximum throughscreen intake velocity of 0.5 fps; 

(4) operate an offshore velocity cap as 

defined at § 125.92 that is installed 

before October 14, 2014; 

(5) operate a modified traveling 

screen 38 that the Director determines 

meets the definition at § 125.92(s) and 

that the Director determines is the best 

technology available for impingement 

reduction; 

(6) operate any other combination of 

technologies, management practices and 

operational measures that the Director 

determines is the best technology 

available for impingement reduction; or 

(7) achieve the specified impingement 

mortality performance standard. 

Options (1), (2) and (4) above are 

essentially pre-approved technologies 

requiring no demonstration or only a 

minimal demonstration that the flow 

reduction and control measures are 

functioning as EPA envisioned. Options 

(3), (5) and (6) require more detailed 

information be submitted to the Director 

before the Director may specify it as the 

requirement to control impingement 

mortality. 

In the case of Option (3), which EPA 

considers to be a streamlined 

alternative, the facility must submit 

information to the Director that 

demonstrates that the maximum intake 

velocity as water passes through the 

structural components of a screen 

measured perpendicular to the screen 

mesh does not exceed 0.5 feet per 

second. 

In the case of Option (5), the facility 

must submit a site-specific impingement 

technology performance optimization 

study that must include two years of 

biological sampling demonstrating that 

the operation of the modified traveling 

screens has been optimized to minimize 

impingement mortality. As discussed 

below, if the facility does not already 

have this technology installed and 

chooses this option, the Director may 

postpone this study till the screens are 

installed (see VI.G.1.d below). 

In the case of Option (6), the facility 

must submit a site-specific impingement 

study including two years of biological 

data collection demonstrating that the 

operation of the system of technologies, 

operational measures and best 

management practices has been 

optimized to minimize impingement 

mortality. If this demonstration relies in 

part on a credit for reductions in the rate 

of impingement already achieved by 

measures taken at the facility, an 

estimate of those reductions and any 

relevant supporting documentation 

must be submitted. The estimated 

reductions in rate of impingement must 

be based on a comparison of the system 

to a once-through cooling system with a 

traveling screen whose point of 

withdrawal from the surface water 

source is located at the shoreline of the 

source waterbody. 

The impingement mortality 

performance standard in (7) requires 

that a facility must achieve a 12-month 

impingement mortality performance of 

all life stages of fish and shellfish of no 

more than 24 percent mortality, 

including latent mortality, for all nonfragile species that are collected or 

retained in a sieve with maximum 

opening dimension of 0.56 inches 39 and 

kept for a holding period of 18 to 96 

hours. The Director may, however, 

prescribe an alternative holding period. 

The 12-month average of impingement 

mortality is calculated as the sum of 

total impingement mortality for the 

previous 12 months divided by the sum 

of total impingement for the previous 12 

months. A facility must choose to 

demonstrate compliance with this 

requirement for the entire facility, or for 

each individual cooling water intake 


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40EPA expects that all new units will comply 

with these requirements through the installation of 

a closed-cycle cooling system, which is one of the 

most effective technologies for reducing 

impingement and impingement mortality. 

Therefore, the IM requirements for new units are 

already addressed by the new unit requirements by 

virtue of the first compliance alternative of the IM 

performance standard. 

41For facilities with a combination of closedcycle recirculating systems and other cooling water 

systems, the entrainment mortality standard does 

not apply to that portion of cooling water 

withdrawn as make-up water for the closed-cycle 

recirculating system. 

structure. Biological monitoring must be 

completed at a minimum frequency of 

monthly. 

The owner or operator of an existing 

facility must meet the impingement 

mortality requirements as soon as 

practicable after issuance of a final 

permit establishing the entrainment 

requirements under § 125.94(d). 

Today’s final rule also allows the 

Director, based on review of site-specific 

data, to conclude that a de minimis rate 

of impingement exists and therefore no 

additional controls are warranted to 

meet the BTA impingement mortality 

standard. In addition, today’s final rule 

allows the Director flexibility in 

determining appropriate site-specific 

controls that may be less stringent than 

those found at § 125.94(c)(1) to (7) for 

existing units at existing facilities 

operating with a capacity utilization of 

less than 8 percent averaged over a 24- 

month block contiguous period. This 

provision can be found at 

§ 125.94(c)(12). EPA notes that these 

provisions for impingement mortality 

would not apply to entrainment 

because, as discussed in the next 

section, the requirements for 

entrainment are established by the 

Director on a site-specific basis. 

B. BTA Standard for Entrainment for 

Existing Units at Existing Facilities 

The final rule establishes the national 

BTA standard for entrainment at 

existing units at existing facilities at 

§ 125.94(d) (hereafter, entrainment 

standards). For such units, the rule does 

not prescribe a single nationally 

applicable entrainment performance 

standard but instead requires that the 

Director must establish the BTA 

entrainment requirement for a facility 

on a site-specific basis. The 

requirements must reflect the Director’s 

determination of the maximum 

reduction in entrainment warranted 

after consideration of all factors relevant 

to the BTA determination at the site and 

must include consideration of the 

specific factors spelled out in 

§ 125.98(f)(2). Facilities that withdraw 

greater than 125 mgd AIF must develop 

and submit an Entrainment 

Characterization Study (§ 122.21(r)(9)), 

as well as provide other information 

required at § 122.21(r)(7) and (10), (11), 

(12) and (13) that must include specified 

data pertinent to consideration of 

several of the factors identified in 

§ 125.98(f). 

C. BTA Standards for Impingement 

Mortality and Entrainment for New 

Units at Existing Facilities 

The owner or operator of a new unit 

at an existing facility must achieve one 

of two compliance alternatives under 

the national BTA standards for 

impingement mortality and entrainment 

for new units at existing facilities at 

§ 125.94(e) (hereafter, new unit 

standards).40 Under the new unit 

standards, the owner or operator of a 

facility must reduce AIF at the new unit, 

at a minimum, to a level commensurate 

with that which can be attained by the 

use of a closed-cycle recirculating 

system as defined at § 125.92(c)(1). The 

owner or operator of a facility with a 

cooling water intake structure that 

supplies cooling water exclusively for 

operation of a wet or dry cooling 

tower(s) and that meets the definition of 

closed-cycle recirculating system at 

§ 125.92(c)(1) meets this new unit 

standard. Under the alternative new 

unit standard, the owner or operator of 

a facility must demonstrate to the 

Director that it has installed, and will 

operate and maintain, technological or 

other control measures that reduce the 

level of adverse environmental impact 

from any cooling water intake structure 

used to supply cooling water to the new 

unit to a comparable level to that which 

would be achieved through flow 

reductions commensurate with the use 

of a closed-cycle recirculating system. 

Under this alternative, the owner or 

operator of a facility must demonstrate 

entrainment mortality reductions that 

are equivalent to 90 percent or greater 

of the reduction that could be achieved 

through compliance with the first 

alternative entrainment standard for 

new units. 

The new unit entrainment standards 

do not apply to certain water 

withdrawals including (1) cooling water 

used by manufacturing facilities for 

contact cooling purposes; (2) portions of 

those water withdrawals for auxiliary 

cooling uses totaling less than 2 mgd; (3) 

any volume of cooling water 

withdrawals used exclusively for makeup water at existing closed-cycle 

recirculating systems; 41 and (4) any 

quantity of emergency back-up water 

flows. Furthermore, as is the case for 

existing units, obtaining cooling water 

from a public water system, using 

reclaimed water from wastewater 

treatment plants, or desalination plants, 

or using recycled process wastewater 

effluent as cooling water does not 

constitute use of a cooling water intake 

structure. The new unit requirements 

apply only to the volume of cooling 

water used by the new unit, or to the 

cooling water intake structures used by 

the new unit. The new unit 

requirements do not apply to the rest of 

the existing facility. 

In addition, the Director may establish 

alternative entrainment requirements for 

new units when compliance with the 

new unit entrainment standards would 

result in compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at issue 

or will result in significant adverse 

impacts on local air quality, significant 

adverse impacts on local water 

resources other than impingement or 

entrainment, adverse impacts on 

threatened and endangered species, or 

significant adverse impacts on local 

energy markets. Any Director-specified 

alternative must achieve a level of 

performance as close as practicable to 

the requirements of § 125.94(e)(1) or (2). 

D. Other Provisions 

The final rule contains a number of 

other provisions related to the BTA 

impingement and entrainment 

reduction requirements. For example, 

the rule also provides that the Director 

may establish more stringent 

requirements as BTA if the Director 

determines that the facility owner or 

operator’s compliance with the 

requirements otherwise established 

under the final rule would not meet the 

requirements of applicable State and 

Tribal law, including water quality 

standards. 40 CFR 125.94(i). Today’s 

rule also requires the owner or operator 

of a facility subject to this subpart to 

submit and retain permit application 

and supporting information as specified 

in § 125.95; monitor for compliance as 

specified in § 125.96; and report 

information and data and keep records 

as specified in § 125.97. Director 

requirements are specified in § 125.98. 

The rule further provides that, in the 

case of a nuclear facility or a facility 

constructing or conducting maintenance 

on nuclear powered vessels of the 

Armed Services, if the owner or 

operator of the facility demonstrates to 

the Director, upon the Director’s 

consultation with the Nuclear 

Regulatory Commission, the Department 

of Energy or the Naval Nuclear 

Propulsion Program, that compliance 

with this subpart would result in a 

conflict with a safety requirement 

established by these entities, the 


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Director must establish BTA 

requirements that would not result in a 

conflict with the Commission’s, the 

Department’s or the Naval Nuclear 

Propulsion Program’s safety 

requirement. 

V. Summary of Data Updates and 

Revisions to the Proposed Rule 

This description of revisions to the 

proposed rule is organized in three 

sections: Data updates, regulatory 

approach and compliance, and new 

units. EPA published two NODAs 

(Notice of Data Availability) (77 FR 

34315, June 11, 2012 and 77 FR 34927, 

June 12, 2012) based on some comments 

received on the proposed rule and 

additional analyses. EPA also took 

public comment on the information in 

these notices. 

A. Data Updates 

On the basis of comments received, 

additional information made available, 

and further analyses, EPA revised a 

number of assumptions used in its 

assessments for the final rule. These 

included revisions to the engineering 

costs of options considered in 

development of the final rule, the 

information collection costs, the 

economic analyses, and the benefits 

analyses. The revised analyses, along 

with an explanation of how they 

affected decision making for this final 

rule, are discussed below. 

1. Impingement Data and Performance 

Standard 

Since publishing the proposal, EPA 

received a substantial number of 

comments stating the amount of data to 

develop the proposed impingement 

mortality performance standard was too 

limited. EPA received more than 80 

additional documents containing 

impingement and entrainment data. 

EPA reviewed these materials and found 

that many documents did not provide 

useful data. For example, in some cases, 

a document did not provide useful 

information because the only data 

available were the facility name and raw 

sampling data for a number of different 

species of fish or shellfish, or both. In 

other cases, the documents focused on 

source water characterization data 

alone. However, after review, EPA 

identified more than 40 distinct sets of 

additional impingement sampling and 

performance data. 

EPA also reevaluated and revised the 

criteria it used for including 

impingement mortality study data in the 

impingement mortality performance 

standard calculations. In calculating the 

impingement mortality performance 

standard of § 125.94(c)(7), EPA applied 

these revised criteria for acceptable data 

to both the new data and the earlier data 

used for proposal. EPA’s approach for 

the final rule is similar to that of the 

proposal. In order to include data in 

EPA’s calculation, for the proposal, EPA 

applied the following four criteria. First, 

the data must be specific to the 

technology under consideration. 

Second, impingement mortality must 

have been reported as an absolute 

number or a percentage of impinged fish 

that were killed. Third, the data must 

reflect that the installed technology was 

operated under conditions that are 

representative of actual conditions at a 

facility, and fourth, the reported values 

must be actual measurements. EPA 

based the proposed performance 

standard on the performance of 

modified traveling screens with a fish 

return system using a limited definition 

of the control technology. 

In its reevaluation and based on 

comments, EPA decided to revise some 

of the criteria and add two new ones. In 

some cases, the effect of these changes 

is to relax the criteria and in others, to 

impose more restrictive criteria. First, 

all impingement data must be for nonfragile species (including shellfish). 

Second, the data must be representative 

of annual mortality data for purposes of 

deriving an annual performance 

standard. EPA notes that in contrast to 

the proposed rule, the permit 

application does not require submission 

of the proposed list of ‘‘species of 

concern.’’ EPA found that the term 

‘‘species of concern’’ was similar to 

terms used in the context of T&E 

(threatened and endangered) species, 

and may further cause confusion over 

existing Services or State requirements 

for such species. Further, despite EPA’s 

efforts to distinguish between species of 

concern and RIS (representative 

indicator species) in the NODA (77 FR 

34325, June 11, 2012), EPA found that 

many commenters were still confused 

by the language. Instead, EPA is 

adopting the term ‘‘fragile species’’ and 

using the term exactly as it is used with 

the impingement mortality data and 

criteria used in calculating the 

impingement mortality performance 

standard of the rule. EPA included a 

definition for ‘‘fragile species’’ at 

§ 125.92(m), as a species of fish or 

shellfish that has an impingement 

survival rate of less than 30 percent. 

EPA took this approach to ensure that 

a facility’s performance in reducing 

impingement mortality as demonstrated 

by collecting biological data would 

reflect only the effects of its 

improvements to the CWIS technology, 

and not be confounded by effects of data 

collection that are not caused by 

impingement. 

EPA also relaxed the holding time 

criteria as a result of reevaluating the 

range of acceptable impingement 

mortality holding times, which at 

proposal was limited to 24 to 48 hours. 

After evaluating the data, EPA 

concluded that a range of holding times 

of 18 to 96 hours was acceptable for 

inclusion in the development of a 

performance standard because 

commenters had provided 

documentation showing that the actual 

time period typically had little effect on 

IM rates. At proposal, EPA counted all 

fish that died at any time during the 

holding period. For the final rule being 

promulgated today, EPA excludes those 

that were dead at time zero because 

such counts measured immediate deaths 

and not those organisms that were 

mortally harmed as a result of 

impingement. These counts also might 

reflect already injured, nearly dead, or 

already dead fish (‘‘naturally 

moribund’’) that were impinged by the 

screen. As a consequence of relaxing the 

holding times and other requirements, 

EPA based the performance standard on 

a larger set of data, with broader 

geographic representation. (For more 

information, see DCN 12–6703.) The 

rationale for these revisions to the data 

acceptance criteria are described in 

further detail in the TDD, Chapter 11. 

Using the revised criteria, EPA reviewed 

the data in each of the impingement 

mortality studies for potential inclusion 

in EPA’s evaluation of an impingement 

mortality performance standard. These 

changes resulted in an increase in the 

number of facility data sets acceptable 

for determining the impingement 

mortality performance standard, from 

four data sets at three facilities at 

proposal to 26 data sets at 17 facilities 

today. As a result, the 12-month average 

impingement mortality performance 

standard of all life stages of fish and 

shellfish was revised from no more than 

12 percent to no more than 24 percent 

mortality, including latent mortality, for 

each non-fragile species that is collected 

or retained in a sieve with maximum 

opening dimension of 0.56 inches and 

kept for a holding period of 18 to 96 

hours. The revised performance 

standard and data evaluation criteria are 

discussed in detail in Section VI and 

Chapter 11 of the TDD. 

EPA also reevaluated its approach to 

compliance monitoring for the 

impingement mortality performance 

standard. In particular, EPA considered 

the costs and burden of frequent 

biological monitoring for those 

technologies that, according to EPA’s 

record, perform equal to or better than 


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42EPA used a model facility approach to develop 

compliance technology costs where different sets of 

compliance technology cost algorithms called 

modules were assigned to individual model facility 

intakes on the basis of site-specific conditions. For 

a more detailed discussion, see the TDD Chapter 8. 

the IM performance standard. As 

proposed, all facilities would have 

conducted weekly biological monitoring 

in perpetuity irrespective of the 

compliance approach or technologies 

selected. EPA agrees with comments 

that this may be unnecessarily 

burdensome and of limited value for 

those technologies for which the 

potential performance is well 

documented. As such, today’s final rule 

includes seven compliance alternatives, 

only one of which requires biological 

compliance monitoring. 

EPA notes, however, that a facility 

relying in part on a credit for reductions 

in impingement mortality already 

obtained at the facility (§ 125.94(c)(6)) 

must gather biological data at a 

minimum frequency of monthly for a 

period of two years in order to calculate 

their 12-month average impingement 

mortality. Further, a facility choosing to 

comply using the impingement 

mortality performance standard 

(§ 125.94(c)(7)), must conduct biological 

monitoring at a frequency of at least 

monthly in order to calculate its 12- 

month average impingement mortality. 

The 12-month average is calculated as 

the sum of total impingement mortality 

for the previous 12 months divided by 

the sum of total impingement for the 

previous 12 months. EPA is requiring 

that a facility choose to either 

demonstrate compliance with this 

requirement for the entire facility, or for 

each individual cooling water intake 

structure. The EPA expects that as the 

performance of the technology is 

demonstrated by the facility, the 

Director could reduce the frequency of 

biological compliance monitoring. 

Further, prior to a subsequent permit 

application, a facility could collect 

sufficient performance data to 

demonstrate to the satisfaction of the 

Director that its ‘‘systems of 

technologies’’ compliance alternative is 

BTA at that facility. 

2. Technology Costs 

Since publishing the proposal, EPA 

received a number of public comments 

from industry stating that EPA had 

underestimated the costs of modified 

traveling screens with fish returns. EPA 

used new information to revise the 

compliance cost estimates (including 

the methodology used for technology 

assignment) and the capital costs for 

several compliance technologies, 

including those used as the primary 

basis for the final rule. Those changes 

include the following: 

• In response to comments 

challenging EPA’s assumption that 

modified traveling screens were 

available at most facilities, EPA changed 

the assignment of the modified traveling 

cost module 42 so as to apply this only 

where the existing intake for the model 

facility intake employed traveling 

screens. As a result, a number of 

intakes, such as those that use passive 

screens (e.g., fixed screens), were 

assigned higher cost technologies such 

as larger intakes or wedgewire screens 

with through-screen design velocities of 

0.5 fps. 

• Because EPA has clarified that 

properly operated closed-cycle 

recirculating systems is one of the 

compliance alternatives for 

impingement mortality, those intakes 

with existing closed-cycle cooling no 

longer receive additional impingement 

technology costs. 

• At proposal, the design of the larger 

intake module was based on a throughscreen velocity of 1.0 fps and, therefore, 

was not consistent with the low velocity 

compliance alternatives. To ensure that 

this technology will be consistent at all 

locations, the through-screen design 

velocity for the larger intake was 

changed to a maximum of 0.5 fps, 

resulting in a substantial increase in 

capital and operational and 

maintenance costs. 

• EPA received a number of 

comments noting that fish returns might 

be difficult to install at some intakes. 

EPA reviewed the fish return cost 

component of the modified traveling 

screen module and concluded that 

EPA’s costs represented an ‘‘easy’’ 

installation rather than an average of 

both easy and more difficult installation 

costs. To account for a wider range of 

fish return costs that includes those 

with higher costs, EPA increased the 

capital costs of the fish return 

component and included additional 

costs for those with particularly difficult 

circumstances such as very long intake 

canals and submerged offshore intakes. 

For a detailed discussion, see Chapter 8 

of the TDD. 

• EPA received a number of 

comments stating that it had 

underestimated capital costs for 

modified traveling screens. During site 

visits to several facilities, EPA obtained 

actual traveling screen replacement 

costs. EPA compared its estimates to 

actual reported replacement costs and 

vendor-supplied data and concluded 

that the capital costs were 

underestimated by about 20 percent. 

Therefore, EPA increased the capital 

costs of modified traveling screens by 20 

percent. 

These changes to the engineering 

costs result in a 24 percent increase in 

capital and O&M costs. The revised 

costing assumptions are discussed in 

further detail in Chapter 8 of the TDD. 

3. Monitoring Costs for Impingement 

Mortality 

Many commenters expressed concern 

that requirements for monitoring for the 

impingement mortality performance 

standard were excessive. Of particular 

concern were the long-term costs for 

impingement mortality monitoring at 

facilities that would be relying on either 

closed-cycle cooling or an intake 

velocity less than or equal to 0.5 fps 

through-screen design velocity. The 

final rule includes seven compliance 

alternatives for the impingement 

standard. One of these alternative 

provides for reduced monitoring 

requirements for facilities employing 

modified traveling screens. This 

alternative is available if the facility has 

demonstrated the technology is 

optimized to minimize impingement 

mortality of all non-fragile species. 

Under this approach, EPA requires the 

facility to provide site-specific 

performance data to identify the 

operational conditions that will ensure 

that the technology is being operated 

optimally. Once these operational 

conditions have been identified, the 

Director must include in the permit 

those operational measures and best 

management practices identified in the 

study and deemed as necessary by the 

Director to ensure proper operation of 

the modified traveling screens. EPA also 

clarified in the rule that compliance 

monitoring and reporting requirements 

for facilities that comply with the 

impingement mortality standard by 

employing one of the pre-approved or 

streamlined IM compliance alternatives 

will be largely limited to information 

that ensures proper operation of the 

installed control technology. EPA 

estimates that this alternative approach 

will reduce annual monitoring and 

reporting costs from approximately $47 

million under the proposed rule to 

approximately $27 million under the 

final rule. 

4. Benefits and Willingness To Pay 

Survey 

EPA received a number of comments 

on the proposed rule and NODA 

addressing the use of stated preference 

surveys to determine the public’s 

willingness-to-pay for benefits 

associated with the rule. EPA conducted 

a stated preference survey to calculate 

benefits associated with minimizing 


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43While rotary screens are technically not 

modified traveling screens, the regulation at 

§ 125.92(s) defines modified traveling screens to 

include traveling water screens that incorporate 

measures protective of fish and shellfish. EPA has 

thus provided the flexibility for other types of 

active screens that achieve the same or better 

performance than modified traveling screens. 

adverse impacts to aquatic ecosystems 

from cooling water intakes. For some 

commenters, the use of stated 

preference surveys to evaluate benefits 

remains controversial, and they objected 

to using such surveys. Other 

commenters acknowledge the decades 

of technical development and 

improvement of these methods and 

support using stated preference surveys. 

Based on consideration of public 

comment, EPA decided not to employ 

the survey results for purposes of 

decision-making in this rule, or include 

them in assessing the total benefits of 

the rule. The rule does not require State 

Directors to require facility owners or 

operators to conduct or submit a 

willingness to pay survey to assess 

benefits. 

B. Regulatory Approach and 

Compliance 

1. Regulatory Approach 

EPA has largely adopted the 

regulatory approach of the proposed 

rule with several changes regarding 

compliance, particularly with respect to 

the impingement mortality 

requirements. These changes clarify 

elements of the rule (as discussed in the 

NODAs) about which commenters 

expressed uncertainty and provide 

additional flexibility to regulated 

facilities in meeting the rule’s 

impingement mortality standard. 

EPA received some comments 

questioning whether specific provisions 

apply to the entire facility or to 

individual intakes. To clarify this issue, 

EPA modified the rule language so as to 

state clearly that a facility with multiple 

intakes must decide whether it will 

adopt a single compliance strategy for 

impingement mortality for the entire 

facility or adopt an intake-specific 

compliance strategy at each cooling 

water intake. Thus, facilities may select 

different compliance strategies for 

different intakes, providing flexibility at 

facilities with multiple intakes. 

Regardless of which impingement 

compliance approach a facility chooses 

(single strategy for entire facility or 

different strategies for different intakes), 

if the facility chooses to comply with 

the impingement standard by operating 

at a maximum through-screen velocity 

of 0.5 feet per second, the facility must 

measure and comply with the low 

velocity compliance alternative of 0.5 

fps on an individual intake basis. 

a. Impingement Mortality Standards 

EPA received a substantial number of 

comments requesting greater flexibility 

and clarification regarding compliance 

with the impingement mortality 

standards, including suggestions that (1) 

impingement requirements be addressed 

on a site-specific basis; (2) certain 

technologies should be pre-approved; 

(3) credit should be given for existing 

technologies and operating conditions; 

and (4) combinations of technologies be 

allowed. EPA has concluded that lowcost technologies for impingement 

mortality reduction are effective, widely 

available, feasible, and demonstrated for 

facilities nationally and thus, a 

completely site-specific approach is not 

appropriate. However, recognizing that 

for some sites technologies other than 

modified traveling screens may allow a 

facility to achieve the same level of 

performance, EPA has included 

compliance options that provide for 

more flexibility and allow consideration 

of the performance of combinations of 

technologies and operating conditions. 

Some of the more significant changes 

include the following: 

• Compliant technologies—EPA has 

concluded that employing certain 

technologies will meet or exceed the 

requirement of the impingement 

mortality standard, provided they meet 

certain design and operational criteria. 

These pre-approved and streamlined 

technologies include a closed-cycle 

recirculating system, existing offshore 

velocity cap, and maximum design 

intake velocity of 0.5 fps. Associated 

with these compliance options are 

reduced monitoring requirements. 

Æ Closed-Cycle Cooling—EPA has 

concluded that a fully closed-cycle 

recirculating system as defined at 

§ 125.92(c) (and that is properly 

operated and maintained) achieves the 

impingement mortality performance 

standard. Even after retrofitting a facility 

to be closed-cycle, it may still be 

possible to withdraw and discharge 

cooling water at rates associated with 

once-through cooling. Existing facilities 

that retrofit to closed-cycle cooling often 

do so without modifying or replacing 

their condenser to optimize it for 

closed-cycle operation. In such cases, 

the facility has an incentive to operate 

its system in a once-through cooling 

mode, to minimize chemical costs or 

avoid a turbine backpressure constraint. 

EPA has concluded that it is not 

appropriate to add conditions to the 

definition of closed-cycle cooling 

because water may be withdrawn for 

purposes of replenishing losses to a 

closed-cycle recirculating system other 

than those due to blowdown, drift, and 

evaporation from the cooling system. 

However, the final rule provides the 

Director the discretion to determine 

whether the operation of a cooling 

system minimizes the make-up and 

blowdown flows withdrawn, consistent 

with the definition of a closed-cycle 

recirculating system (40 CFR 125.92(c)). 

Æ Existing Offshore Velocity Caps— 

The record indicates that an existing 

offshore velocity cap as defined at 

§ 125.92(v) also achieves the necessary 

reductions in impingement mortality 

and thus meets the IM standard. Data in 

the record concerning existing velocity 

caps show that a velocity cap alone is 

insufficient, but data on existing 

offshore velocity caps shows that a 

velocity cap in combination with their 

current offshore locations meet EPA’s 

BTA standard for impingement 

mortality. EPA has determined that new 

offshore velocity caps could comply 

using the combination of technologies 

approach in § 125.94(c)(6). The offshore 

component likely makes the velocity 

cap technology unavailable except to 

facilities in marine waters and certain 

Great Lakes locations; therefore, the 

technology alone is not BTA. 

Æ Through-Screen Velocity—EPA has 

clarified that compliance with a 0.5 fps 

intake velocity achieves the IM 

standards. EPA’s record shows an intake 

velocity of 0.5 fps or lower provides 

similar or greater reductions in 

impingement, and therefore 

impingement mortality, than modified 

traveling screens—the technology 

forming the basis for the numeric 

impingement mortality performance 

standard that is the goal for all facilities. 

There are two ways to demonstrate 

compliance using intake velocity. First, 

an intake with a maximum design 

intake velocity less than or equal to 0.5 

fps is pre-approved BTA for 

impingement mortality and does not 

require further monitoring. 

Alternatively, under a streamlined 

option, the facility may demonstrate to 

the Director that the facility meets the 

velocity requirement through 

monitoring of the actual intake velocity. 

Screen velocity can be monitored by 

direct measurement or by calculation 

using the volumetric actual intake flow 

and source water surface elevation. 

• Modified Traveling Screens—A 

facility must operate modified traveling 

screens 43 that the Director determines 

meets the definition at § 125.92(s). 

Facilities will demonstrate that they 

have optimized performance of their 

traveling screen to minimize IM. 


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• Systems of Technologies to Meet the 

IM Standard—EPA received a 

substantial number of comments asking 

whether previously installed 

technologies or various combinations of 

technologies and operating conditions 

could also meet the BTA standard for 

impingement mortality. For example, 

some technologies, such as louvers, 

reduce the rate of impingement, but the 

effect on overall impingement mortality 

reduction cannot easily be measured 

and would not appear in biological 

sampling of the technology. In EPA’s 

view, the Director should take into 

account the reduction in impingement— 

for example, that associated with such 

technologies as louvers or behavioral 

deterrents, or due to intake location— 

when determining permit conditions to 

include in the facility’s permit in order 

for a combination of technologies to 

achieve the required impingement 

mortality standards. Thus, the facility 

should obtain credit toward the 

impingement mortality standard for 

such reductions in the rate of 

impingement. A number of the 

flexibilities above were described in the 

June 11, 2012 NODA, and EPA has 

included a provision to allow additional 

flexibility in achieving compliance 

through the use of a combination of 

technologies and operating conditions. 

A facility may use a system of 

technologies, management practices and 

operational measures to achieve the 

impingement mortality standard, 

including, for example, flow reductions, 

seasonal operation, unit closures, credit 

for intake location, behavioral deterrent 

systems, and other technologies and 

operational measures. The Director must 

determine, based on a demonstration by 

the facility to the Director, that the 

system of technologies or operational 

measures, in combination, have been 

optimized to minimize impingement 

mortality of all non-fragile species. The 

Director may require additional 

operational measures, best management 

practices, and monitoring as part of the 

demonstration. In addition, the facility’s 

permit must include conditions to 

ensure that the facility operates its 

cooling water intake structures in a 

manner consistent with the conditions 

and measures identified in its 

demonstration to the Director. 

• Numeric IM Performance 

Standard—As a practical matter, EPA 

expects that very few facilities will 

choose to comply with the numeric 

impingement mortality performance 

standard. Those facilities that choose to 

comply in this way will need to 

demonstrate to the Director how the 

technology the facility is implementing 

enables the facility to meet the 

impingement mortality standard. The 

numeric standard provides a pathway to 

compliance for innovative technologies 

that may be developed in the future. 

EPA also received many comments 

stating that barrier nets were both 

unnecessary and might be unavailable 

in many locations. Because EPA’s 

revised impingement data set had 

sufficient data to characterize shellfish 

impingement, EPA has eliminated the 

barrier net requirement in the final rule. 

See Section VI for more information. 

b. Definition of Closed-Cycle Cooling 

System 

In the final rule, EPA revised the 

definition of a closed-cycle recirculating 

system to provide additional flexibility 

for the Director in determining which 

closed-cycle cooling systems comply 

with the IM standards. The proposed 

rule’s definition of ‘‘closed-cycle 

recirculating systems’’ included, as 

elements of a properly operated closedcycle system performance, requirements 

generally expressed in terms of cycles of 

concentration (COC) or percentage flow 

reduction relative to a once-through 

cooling system. Cycles of concentration 

represents the accumulation of 

dissolved minerals in the recirculated 

cooling water. Discharge of a portion of 

the water (called ‘‘blowdown’’) is used 

to control the buildup of these minerals. 

COC is a measure of how concentrated 

are chlorides in recirculated water 

relative to make-up water, and thus how 

well a system recycles intake water 

before replacing it with new 

withdrawals. This is not to be confused 

with cycles of flow, as some 

commenters appeared to do. 

Cycles of concentration can be 

measured as the ratio of chloride levels 

in the recirculated water or blowdown 

relative to the chloride levels in the 

source water, or makeup water. Some 

commenters stated that, while they have 

been operating as closed-cycle units for 

many years, they were concerned that 

their facilities would not be ‘‘closedcycle recirculating systems’’ under the 

proposed definition because they would 

not achieve the required COC. EPA has 

found the concentration cycles in the 

majority of cooling towers usually range 

from 3 to 6 at power plants, and can 

often exceed 9 at manufacturing 

facilities. However, EPA recognizes that 

many manufacturers have complex 

water balances, and calculating a 

specific flow reduction attributable to 

cooling water use could be difficult and 

time consuming. In such cases, many 

manufacturers could far more readily 

calculate the cycles of concentration of 

particular unit operations, and could 

therefore show those unit operations 

that use cooling water meet the 

conditions for closed-cycle cooling. EPA 

found in site visits many complex 

manufacturing facilities already have 

this capability, and have achieved very 

high COC. Likewise, power plants may 

find it much easier to measure flow than 

cycles of concentration. Accordingly, 

EPA’s proposed rule attempted to 

recognize performance using either 

metric. EPA expects most power 

generators would use percentage flow 

reduction to demonstrate they are 

closed-cycle, and expects most 

manufacturing facilities would use COC 

for those units that utilize water for 

cooling purposes. Increasing the amount 

of minerals present in the water by 

cycling can make water less aggressive 

to piping; however, EPA is also aware 

that excessive levels of minerals (such 

as found in certain source waters, most 

notably those with higher salinity) can 

cause scaling problems, leading to 

different levels of both metrics for 

freshwater and saltwater facilities. 

EPA carefully considered these issues 

and concluded that the most important 

aspect of the definition of a properly 

operated closed-cycle cooling system is 

that the makeup flow be minimized. 

Thus EPA has removed the numeric 

levels of the metrics as a threshold, 

while retaining the minimized makeup 

flow aspect of the definition. As an 

example, in the case of a facility that 

uses make-up water from a freshwater 

source, a Director may determine that a 

closed-cycle recirculating system can 

generally be deemed to minimize makeup and blowdown flows if it reduces 

actual intake flows (AIF) by 97.5 percent 

as compared to a once-through cooling 

system or if its cooling tower is operated 

at a minimum cycles of concentration of 

3.0. And likewise, in the case of a 

facility that uses make-up water from a 

saltwater, brackish, or other source with 

a salinity of greater than 0.5 parts per 

thousand, a Director may determine that 

a closed-cycle recirculating system can 

generally be deemed to minimize makeup and blowdown flows if it reduces 

actual intake flows (AIF) by 94.9 percent 

as compared to a once-through cooling 

system or if its cooling tower is operated 

at a minimum cycles of concentration of 

1.5. These reductions and cycles of 

concentration are illustrative. A Director 

may determine that other levels near 

these numbers could also constitute a 

closed-cycle recirculating system. The 

final rule further recognizes that in 

certain unavoidable circumstances, 

these levels for COC or percent flow 

reduction might not be achievable at all 

facilities. Such circumstances could 


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include situations where water qualitybased discharge limits might limit the 

concentration of a pollutant that is not 

readily treatable in the cooling tower 

blowdown or situations where varying 

source water quality could lead to 

unavoidable problems concerning scale 

formation, solids buildup, corrosion, or 

media fouling. Such facilities should 

demonstrate these circumstances to 

their Director and indicate the measures 

they have taken to minimize makeup 

flows. The Director will retain the 

discretion to conclude that the 

particular facility employs a closedcycle recirculating system when the 

benchmarks are not met. 

In cases where the Director will make 

a determination as to whether the 

facility’s cooling system meets the 

definition of a closed-cycle recirculating 

system, EPA’s intent is that the 

withdrawal of small amounts of service 

water (for uses such as fire suppression, 

potable water, screenwash water, 

vehicle wash water, and such) do not 

preclude consideration of the system as 

closed-cycle. To avoid misuse of this 

provision, the Director will make the 

final determination. 

Finally, EPA data show more than 50 

facilities have cooling systems that 

include impoundments. In some cases, 

the cooling systems that include 

impoundments were created in the 

waters of the U.S., in whole or in part, 

or were created in uplands but 

withdraw make-up water from waters of 

the U.S. These cooling systems may 

perform like a closed-cycle recirculating 

system. EPA has clarified at 40 CFR 

125.92(c)(2) that a cooling system that 

includes an impoundment lawfully 

created in the waters of the U.S for the 

purpose of cooling may be considered a 

closed-cycle recirculating system. As 

with other closed-cycle recirculating 

systems, the Director will determine 

whether the impoundment minimizes 

the withdrawal of water for cooling 

purposes and therefore meets the 

definition of a closed-cycle recirculating 

system. See Section VI for further 

discussion. 

c. Entrapment 

The proposed rule included a 

prohibition on trapping organisms in an 

intake structure with no viable escape 

route. Many commenters expressed 

concern that the entrapment 

requirements were not well defined and 

would require costly technologies not 

considered in EPA’s cost estimates. 

Moreover, in the commenters’ view, the 

requirements could be difficult to 

comply with, particularly where cooling 

systems employ impoundments or 

basins downstream of the initial intake 

structure. EPA agrees that in some cases, 

such as where a canal or basin for 

maintaining consistent water levels is 

located behind the CWIS, that the 

proposed entrapment requirement could 

require additional controls such as 

additional fish returns that are not, in 

all cases, feasible. For example, EPA 

found in site visits that the forebay may 

be located more than a mile from the 

CWIS, and a fish return in that situation 

would not have been feasible. The final 

rule deleted the requirement that 

prohibited entrapment. In the final rule, 

facilities would account for all 

impinged fish and shellfish when 

conducting their two year performance 

study. To the extent entrapment of 

shellfish poses a concern, the Director 

may establish additional measures, such 

as seasonal deployment of barrier nets, 

under § 125.94(c)(8). 

d. Requirements for Threatened and 

Endangered Species 

EPA consulted with the Fish and 

Wildlife Service and National Marine 

Fisheries Service and EPA made a 

number of adjustments to the rule to 

protect threatened and endangered 

species and designated critical habitat 

as a result of the consultation; the 

protections were included to insure 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. To be clear, the ESA provisions 

of the rule extend to all listed T&E 

species, not just fish and shellfish. See 

Section VIII.K for a summary of these 

provisions. 

2. Compliance Timelines for 

Impingement Mortality and Entrainment 

Requirements 

At proposal, compliance deadlines for 

impingement mortality and entrainment 

requirements were set separately. 

Facilities would have been required to 

meet impingement mortality reduction 

requirements as soon as possible, but no 

more than eight years after the effective 

date of the rule. Compliance with 

entrainment reduction requirements 

would have been set by the Director. 

Many commenters expressed concern 

that the compliance timeline for the 

impingement mortality and entrainment 

requirements should be harmonized to 

prevent a facility from having to install 

a technology to comply with 

impingement mortality requirements, 

only to be required at a later date to 

install an entrainment reduction 

technology that effectively renders the 

investment in the impingement 

mortality technology obsolete or 

worthless. 

EPA agrees that facilities required to 

install both impingement and 

entrainment compliance technologies 

will benefit from reduced compliance 

costs if the compliance scheduling is 

coordinated. EPA also agrees that 

requiring more timely decisions on 

entrainment requirements than 

anticipated at proposal will facilitate 

these cost savings without sacrificing 

fish protection. In some cases, 

impingement compliance can be 

attained with entrainment technologies. 

For example, the Director may 

determine that the installation of 

modified fine-mesh traveling screens 

and narrow-slot wedgewire screens will 

achieve the impingement mortality 

standard and further, that this same 

equipment represents, on a site-specific 

basis, BTA entrainment control. If the 

compliance schedule is not harmonized, 

it is possible that a facility could install 

(at significant cost) coarse-mesh 

traveling screens that it might have to 

later retrofit with fine-mesh panels. It is 

also possible that a facility could make 

modifications necessary to attain a 0.5- 

fps through-screen velocity to meet the 

IM standards and later have closedcycle cooling identified as BTA for 

entrainment, thereby making the intake 

modifications for impingement control 

unnecessary. 

To address this issue in the final rule, 

EPA revised the compliance 

requirements so that the Director is 

required first to establish entrainment 

requirements under § 125.94(b)(1) in the 

final permit. The facility will then be 

required to comply with the 

impingement mortality standard in 

§ 125.94(c) as soon as practicable 

thereafter. See Section VIII on 

implementation for more detailed 

discussion. 

Because an entrainment requirement 

could require controls that take many 

years to design, finance and construct, 

the Director may establish interim 

milestones related to meeting the final 

requirements to ensure that the facility 

is making progress. 

C. New Units 

EPA has revised the definition of new 

units to mean a stand-alone unit at an 

existing facility the construction of 

which is commenced after the effective 

date of today’s final rule; consists of 

only a stand-alone unit constructed at 

an existing facility; and that does not 

otherwise meet the definition of a new 

facility at § 125.83. A stand-alone unit is 

a new, separate unit that is constructed 

at an existing facility. New unit includes 

stand-alone units that are added to a 

facility for purposes of the same general 

industrial operation as the existing 


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44The factors specifically delineated in CWA 

sections 301 and 306 include cost of the technology, 

taking into account the age of the equipment and 

facilities, process employed, engineering aspects 

associated with a particular technology, process 

changes and non-water quality environmental 

impact (including energy requirements). 

facility. A new unit may have its own 

dedicated cooling water intake 

structure, or may use an existing or 

modified cooling water intake structure. 

VI. Basis for the Final Regulation 

In response to the Supreme Court’s 

decision in Entergy Corp. v. 

Riverkeeper, Inc. et al. in April 2009, 

EPA has reevaluated the requirements 

for existing facilities under CWA section 

316(b). As discussed above, EPA 

collected additional data and 

information to update its assessment of 

the efficacy of various technological 

measures for reducing IM&E and 

analyses prepared for the earlier rulemaking efforts. EPA’s additional 

technical rigor provided a strengthened 

analysis of different technologies for 

reducing IM and their effectiveness. As 

a result of its revised assessments and 

further consideration of the factors 

affecting the availability of different 

technology in a wide range of settings, 

EPA has decided not to re-promulgate 

requirements for existing facilities that 

mirror those of the final Phase II rule. 

Further, EPA is adopting, for the reasons 

explained in detail below, a new 

framework. In addition, as previously 

noted, EPA decided to address all 

existing facilities subject to section 

316(b) in this rule (i.e., both those 

subject to the Phase II rule and some of 

those subject to the Phase III rule). For 

a brief description of the final rule, see 

Section IV. 

A. EPA’s Approach to BTA 

CWA section 316(b) requires EPA to 

establish standards for cooling water 

intake structures that reflect the ‘‘best 

technology available for minimizing 

adverse environmental impact.’’ As 

explained above, the statute is silent 

with respect to the factors that EPA 

should consider in determining BTA, 

but courts have held that section 

316(b)’s reference to CWA sections 301 

and 306 is an invitation for EPA to look 

to the factors 44 considered in those 

sections in establishing standards for 

section 316(b). 

But EPA, when considering such 

factors, is not bound to evaluate these in 

precisely the same way it considers 

them in establishing effluent limitations 

guidelines under CWA section 304. As 

the Supreme Court noted, given the 

absence of any factors specified in 

section 316(b), EPA has much more 

discretion in its standard setting under 

section 316(b) than under the effluent 

guidelines provisions. Therefore, the 

statute vests EPA with broad discretion 

in determining what is the ‘‘best’’ 

technology that is ‘‘available’’ for 

minimizing adverse environmental 

impact. As the Supreme Court has 

further explained, under section 316(b), 

the ‘‘best’’ technology ‘‘available’’ may 

reflect a consideration of a number of 

factors and ‘‘best’’ does not necessarily 

mean the technology that achieves the 

greatest reduction in environmental 

harm that the regulated universe can 

afford. Rather, the ‘‘best’’ (or ‘‘most 

advantageous,’’ in the court’s words) 

technology may represent a technology 

that most efficiently produces the 

reductions in harm. 

EPA interprets section 316(b) to 

require the Agency to establish a 

standard that will best minimize 

impingement and entrainment—the 

main adverse effects of cooling water 

intake structures not otherwise 

addressed by the other sections of the 

CWA (e.g., thermal discharges). In EPA’s 

view, several important considerations 

underpin its decision. First, its BTA 

determination should be consistent 

with, and reflective of, the goals of CWA 

section 101: ‘‘to restore and maintain 

the physical, chemical, and biological 

integrity of the Nation’s waters,’’ with 

the interim goal of ‘‘water quality which 

provides for the protection and 

propagation of fish, shellfish, and 

wildlife and provides for recreation in 

and on the water.’’ 

Second, E.O. 13563 directs EPA and 

other Federal agencies to identify and 

use the best, most innovative and least 

burdensome tools for achieving 

regulatory ends. In its regulatory 

actions, agencies ‘‘must take into 

account benefits and cost, both 

quantitative and qualitative,’’ and to the 

extent permitted by law, only 

promulgate regulations that are based on 

‘‘a reasoned determination that its 

benefits justify its costs (recognizing 

that some benefits and costs are difficult 

to quantify)’’ (see section 1(b)(1)). In 

selecting a regulatory approach, 

agencies must tailor regulations to 

impose the least burden on society and, 

in choosing among regulatory 

alternatives, select ‘‘those approaches 

that maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity)’’ to the extent permitted by law. 

76 FR 3821 (January 21, 2011). Because 

the Supreme Court has concluded that 

the CWA authorizes EPA to consider 

costs and benefits in its BTA 

determination, EPA has consequently 

considered costs and benefits in this 

final rule as directed by the President. 

In accord with E.O. 13563, EPA has 

concluded that the benefits of the final 

rule justify its costs. For additional 

discussion, see Section VI below. 

Consideration of benefits is 

complicated by the debate about the 

tools and data that would permit a 

complete expression of ecological 

benefits in monetized terms. EPA has, 

however, used the best available science 

regarding widely accepted tools and 

data to monetize the benefits of the 

various options in four major categories: 

recreational fishing, commercial fishing, 

nonuse benefits, and benefits to 

threatened and endangered species (see 

Section X below). EPA has concluded 

that the benefits estimated for the first 

two categories are generally complete, 

while the benefits estimated for the 

latter two categories are far from being 

complete for a number of reasons. For 

example, the nonuse benefits transfer 

was based on a species that represents 

less than one percent of adverse 

environmental impacts. EPA is 

continuing to refine its tools to develop 

a more complete analysis concerning 

benefits for future application. 

In selecting the ‘‘best’’ technology 

available for minimizing adverse 

environmental impact, EPA looked at a 

number of factors. As discussed 

previously, EPA’s initial approach to 

316(b) standard setting was similar to 

one it follows in considering a 

technology-based rule under sections 

301, 304, and 306. EPA first considered 

the availability and feasibility of various 

technologies, and then evaluated costs 

associated with these technologies 

(including potential costs to facilities 

and households), and their economic 

impacts. EPA also reviewed the 

effectiveness of these technologies in 

reducing impingement mortality and 

entrainment. Further, EPA also 

considered additional factors set out in 

CWA section 304(b), including location, 

age, size, and type of facility. In 

addition, EPA considered the non-water 

quality environmental impacts of 

different technologies on energy 

production and availability, electricity 

reliability, and potential adverse 

environmental effects that could arise 

from the use of the different 

technologies evaluated. 

As a result of this thorough 

evaluation, in the case of the BTA 

standard for impingement mortality, 

EPA based the standard on performance 

of well-operated modified traveling 

screens with a fish handling and return 

system as defined more specifically by 

the rule. Under the BTA IM standard, a 

facility has a number of options for 


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45Or any of the IM compliance alternatives. 

compliance. In the case of the BTA 

standard for entrainment, on the other 

hand, EPA could not identify one 

technology that represented BTA for 

existing facilities on a national basis. 

B. Overview of Final Rule Requirements 

As noted, EPA concluded that the best 

technology available for minimizing 

impingement mortality was ‘‘modified 

traveling screens,’’ as more specifically 

defined in the rule. The BTA 

Impingement Mortality Standard 

includes seven technology options for 

complying with the standard whose 

performance is equivalent to, or better 

performing than modified traveling 

screens. First, the rule identifies four 

technologies (closed-cycle recirculating 

systems, reduced design intake velocity, 

reduced actual intake velocity, and 

existing offshore velocity caps) that 

reduce impingement mortality as well 

or better than modified traveling 

screens, and therefore will generally 

comply with the BTA Impingement 

Mortality Standard of today’s final rule. 

The rule also provides that, if the 

Director determines that modified 

traveling screens are insufficient to 

protect shellfish, the Director may 

establish additional measures under 

§ 125.94(c)(8) such as seasonal 

deployment of barrier nets, or if 

modified traveling screens 45 are 

insufficient to protect other species, the 

Director may establish additional 

protective measures under 

§ 125.94(c)(9). In addition, the rule 

provides in § 125.94(g) that the Director 

may establish additional control 

measures and monitoring or reporting 

requirements in the permit in order to 

protect Federally-listed threatened and 

endangered species and designated 

critical habitat. The Director may 

include such conditions that are 

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 and or destroying or adversely 

modifying designated critical habitat 

(e.g., prey base). 

Next, the final rule provides an option 

that allows a facility to demonstrate to 

its permitting authority that it has 

installed modified traveling screens— 

the technology EPA identified as the 

basis for the BTA impingement 

mortality standard—and to provide data 

on the performance of its screens. The 

facility must demonstrate that its 

modified traveling screens are 

consistent with EPA’s definition and 

demonstrate through an impingement 

technology performance optimization 

study that its screens have been 

optimized to minimize impingement 

mortality. After consideration of the 

information provided, the permitting 

authority will determine whether the 

technology is the best technology 

available for impingement mortality 

reduction at the site and include permit 

conditions to ensure optimal 

performance of the screens. In other 

words, the owner or operator of a 

facility will comply with the BTA 

standard for IM at § 125.94(c)(5) if that 

facility uses modified traveling screens 

as defined at § 125.92(s), and operates in 

accordance with the permit conditions 

established by the Director that ensure 

the technology will perform as 

demonstrated. As noted above, in 

certain circumstances, under 

§§ 125.94(c)(8), (9) and 125.94(g), the 

Director may require additional 

protective measures. 

As stated in the June 11, 2012 NODA, 

EPA does not intend for facilities to 

install closed-cycle cooling solely for 

the purpose of meeting the IM 

requirements. In fact, EPA expects all 

facilities could comply with IM 

requirements without relying on 

retrofitting to closed-cycle cooling (see 

Exhibit VIII–1, showing expected 

compliance alternative based on 

technologies in place today). If a facility 

chooses to comply with the BTA IM 

standard by installing and operating 

traveling screens, the screens must meet 

the definition of modified traveling 

screens provided at § 125.92(s). These 

may include, for example, modified 

Ristroph screens with a fish handling 

and return system, dual flow screens 

with smooth mesh, and rotary screens 

with fish returns such as vacuum 

pumps. EPA based the regulatory 

definition on the commonly found 

features of modified traveling screens 

used in developing the BTA 

impingement mortality standard. 

In addition, the final rule also 

provides a compliance option that 

would allow facilities the option of 

demonstrating to the Director on a sitespecific basis, similar to the showing for 

modified traveling screens, that a 

system or combination of technical and 

operational measures will achieve the 

BTA standard for impingement 

mortality at a particular site. Using a 

combination of technical and 

operational measures as the basis for 

demonstrating compliance allows 

facilities the opportunity to take credit 

for intake location, flow reduction, or 

other measures already employed to 

reduce the rate of impingement. Further, 

the combination of technical and 

operational measures provides the 

flexibility to use a system of approaches 

to reducing impingement and 

impingement mortality. This may 

include technologies that were not 

found to reduce impingement 

consistently or in all circumstances, but 

that on a site-specific basis have been 

demonstrated to provide a high level of 

performance. For example, a facility 

might employ light and sound to induce 

an avoidance response from certain 

species. This might not alone address 

impingement mortality for all nonfragile species at the intake, therefore 

additional measures (intake location, 

barrier nets, etc.) would also be applied, 

to minimize the rate of impingement or 

impingement mortality. 

For both the screens and system of 

technologies, a two year study must be 

completed in which biological data 

collection is used to make site-specific 

adjustments to screens or the 

combination of technologies in order to 

optimize performance at that facility. 

Those optimal operating parameters 

then become permit conditions. For 

facilities that have already installed 

traveling screens or the technologies 

associated with the system approach, 

EPA has combined the two year 

biological study with the other permit 

application and rule requirements for 

biological data collection, including the 

Source Water Baseline Biological 

Characterization Data. In this manner, 

EPA is establishing a consistent set of 

biological study requirements, with an 

overall reduction in the burden of the 

required level of biological monitoring. 

Lastly, a facility may choose to 

comply with the numerical 

impingement mortality performance 

standard that was established based on 

the BTA technology. If a facility chooses 

this compliance option, it must conduct 

periodic monitoring to demonstrate 

compliance. Under this last compliance 

option, a facility could implement 

innovative technologies to address 

impingement mortality and 

subsequently demonstrate that their 

performance is as good as, or better 

than, a modified traveling screen with 

fish handling and return system. EPA 

envisions that after a sufficient 

demonstration period of a technology’s 

performance, the facility will be able to 

qualify its operation under the previous 

option. 

For entrainment, on the other hand, 

EPA could not identify one technology 

that represented BTA for existing 

facilities on a national basis, for the 

reasons explained in detail below. 

Instead, the national BTA entrainment 

standards for existing facilities 

establishes a detailed regulatory 

framework for the determination of BTA 


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46Typically, cooling water intake structures use 

various screening devices to prevent objects (e.g., 

debris, trash) from being drawn in with the cooling 

water and ultimately clogging or damaging the 

cooling water system, especially the condenser or 

heat exchanger components. 

47Mesh sizes of 3⁄8′′ are commonly referred to as 

coarse mesh; this refers to the size of the screen 

opening (in contrast to fine mesh) and not the 

roughness of the mesh material. 

entrainment requirements by the 

permitting authority on a site-specific 

basis. 

While site-specific permit 

requirements are not new, what is 

different about this approach from the 

current requirement for permits to 

include 316(b) conditions is that for the 

first time, EPA is establishing a detailed 

specific framework for determining BTA 

entrainment control requirements. Thus, 

the rule identifies what information 

must be submitted in the permit 

application, prescribes procedures that 

the Director must follow in decision 

making and factors that must be 

considered in determining what 

entrainment controls and associated 

requirements are BTA on a site-specific 

basis. 

As previously noted, EPA looked at a 

number of factors in considering what 

national entrainment standard it should 

adopt. As discussed in detail in the 

following section, EPA identified only 

one high performing technology as a 

potential BTA candidate for 

entrainment: closed-cycle recirculating 

systems as defined at § 125.92(c)(1). 

While there are other technologies for 

entrainment that are available or 

demonstrated, they are not uniformly 

high performing technologies. See TDD 

Chapter 6 for more information 

regarding the lack of intermediate 

performing technologies for 

entrainment. EPA has identified the 

following specific factors as the key 

elements in its decision not to prescribe 

this technology as the basis for a 

national BTA standard for entrainment: 

land availability, air emissions, and 

remaining useful plant life. How these 

factors dictated EPA’s decision is 

discussed below. 

For new units at existing facilities, 

EPA has established BTA requirements 

to minimize impingement mortality and 

entrainment, based on flow reduction 

commensurate with closed-cycle 

cooling. The rest of this section 

describes in detail the above 

considerations. 

C. Technologies Considered To 

Minimize Impingement and 

Entrainment 

As described in Chapter 4 of the TDD, 

power plants and manufacturers 

withdraw large volumes of cooling 

water daily. Cooling water withdrawals 

are responsible for over half of surface 

water withdrawals for all uses in the 

United States, including agriculture and 

municipal uses. The purpose of cooling 

water withdrawals is to dissipate that 

portion of the heat that is a by-product 

of industrial processes that facilities 

have not harnessed to a productive end 

and therefore view as waste heat. 

The majority of environmental 

impacts associated with intake 

structures are caused by water 

withdrawals that ultimately result in the 

loss of aquatic organisms. These losses 

might be from impingement, 

entrainment, or both. Impingement 

occurs when organisms are trapped 

against the outer part of a screening 

device of an intake structure.46 The 

force of the intake water traps the 

organisms against the screen and they 

are unable to escape. Not all organisms 

in the incoming water are impinged, 

however. Some might pass through the 

screening device and travel through the 

entire cooling system, including the 

pumps, condenser or heat exchanger 

tubes, and discharge pipes. This is 

referred to as entrainment. Various 

factors lead to the susceptibility of an 

organism to impingement or 

entrainment. For more detailed 

discussion of impingement and 

entrainment and the associated 

mortality and other effects, see Section 

III above. 

For purposes of this rule, EPA is 

adopting the following conventions for 

defining impingement and entrainment 

and mortality: 

• Impingement: Occurs when any life 

stage of fish and shellfish are pinned 

against the outer part of an intake 

structure or against a screening device 

during intake water withdrawal. 

Impingement may also occur when an 

organism is near a screen but unable to 

swim away from the intake structure 

because of the water velocity at the 

intake. 

• Entrainment: Occurs when any life 

stages of fish and shellfish are drawn 

into the intake water flow entering and 

passing through a cooling water intake 

structure and into a cooling system. 

• Impingement Mortality: The death 

of fish or shellfish due to impingement. 

It may also include organisms removed 

from their natural ecosystem and 

lacking the ability to escape the cooling 

water intake system and thus subject to 

mortality. Note that impingement 

mortality need not occur immediately. 

Impingement may cause harm to the 

organism which results in mortality at 

some time after impingement. For 

purposes of this rule, EPA has defined 

impingement mortality as the death of 

those organisms collected or retained by 

a sieve with a maximum opening of 0.56 

inches; this includes both the 3⁄8-inch 

sieve and a 1⁄2-inch by 1⁄4-inch mesh.47

• Entrainment Mortality: The death of 

fish or shellfish due to entrainment. 

This is typically associated with 

mortality related to small organisms that 

pass the entire way through a facility 

and are killed as a result of thermal, 

physical, or chemical stresses. This term 

also includes the death of those fish and 

shellfish that may occur on fine mesh 

screens or other technologies used to 

exclude the organisms from 

entrainment. For purposes of this rule, 

EPA defined entrainment mortality as 

the death of those organisms passing 

through a sieve with a maximum 

opening of 0.56 inches. 

Impingement mortality is typically 

less than 100 percent of the impinged 

organisms if a fish return or backwash 

system is employed. Impingeable 

organisms are generally not very small 

fish or early life stages (e.g., those that 

can pass through 3⁄8-inch mesh screens), 

but typically are fish with fully formed 

scales and skeletal structures and welldeveloped survival traits such as 

behavioral responses to avoid danger. 

EPA’s data demonstrate that, under the 

proper conditions, many impinged 

organisms can survive. 

Entrainable organisms generally 

consist of eggs and early life stage 

larvae. Early larvae generally do not 

have skeletal structures, have not yet 

developed scales, and in many cases are 

incapable of swimming for several days 

after hatching. EPA has found that 

entrainable organisms that are collected 

after interaction with the CWIS show 

poor survival in the case of most eggs, 

and essentially no survival of larvae. 

Consequently, on the basis of the record 

information it has reviewed, EPA 

concluded for purposes of this rule that 

all entrained organisms die, i.e., no 

entrained organisms survive. (See, for 

example, 76 FR 22188 [April 20, 2011] 

and 69 FR 41620 [July 9, 2004].) 

Therefore, without entrainment control, 

entrainment is assumed to lead to 

entrainment mortality. Also see Chapter 

A7 of the Phase II Regional Studies 

Document (DCN 6–0003; EPA–HQ–OW– 

2002–0049–1490). 

Whether an organism near a cooling 

water intake structure is impinged or 

entrained is a function of the screen 

mesh size. Holding the number and size 

distribution of organisms at the intake 

constant, a larger screen mesh size will 

result in relatively more entrainment, 

while a smaller mesh size will result in 


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48 Impingement rates are related to intake flow, 

intake velocity, and the swimming ability of the fish 

subject to impingement. Entrainment is generally 

considered to be proportional to flow and therefore 

a reduction in flow results in a proportional 

reduction in entrainment, as EPA assumes for 

purposes of national rulemaking that entrainable 

organisms are uniformly distributed throughout the 

source water. EPA has consistently applied this 

assumption throughout the 316(b) rulemaking 

process (for a discussion of proportional flow 

requirements in the Phase I and II rules see, e.g., 

66 FR 65276 and 69 FR 41599; also see EPA’s 1977 

draft guidance manual for 316(b), available at DCN 

1–5045–PR from the Phase I docket) and continues 

to assume that it is broadly applicable on a national 

scale and is an appropriate assumption for a 

national rulemaking. EPA recognizes that this 

assumption does not necessarily apply when 

relocating or varying the time pattern of 

withdrawals, such that these may be effective 

strategies to reduce impingement and entrainment 

in some locations. 

49Withdrawals of colder water could allow 

facilities to reduce their intake flow using variable 

drives and pumps, but EPA does not have data on 

the efficacy or availability of this approach. 

relatively more impingement. 

Historically, traveling screens deployed 

by power plants used a 3⁄8-inch mesh 

size. For this reason, most studies and 

reports referring to impingement are in 

fact referring to those organisms 

impinged on a 3⁄8-inch mesh screen. 

Similarly, entrainable organisms are 

those organisms fitting through a mesh 

of less than or equal to 3⁄8 of an inch. 

This also means the majority of 

entrainable organisms are composed of 

eggs, larvae, and smaller juveniles. More 

recent studies, particularly those that 

evaluate mesh sizes smaller than 3⁄8 of 

an inch, continue to refer to 

impingement as any organism caught on 

the screen. This can cause some 

confusion because many organisms that 

would have been entrained with a 3⁄8- 

inch mesh instead become impinged by 

the finer mesh. These are referred to as 

impinged entrainables or ‘‘converts.’’ 

EPA has also found that most studies of 

entrainment are biased toward the larger 

(older) larvae with higher survival rates 

and do not analyze survival of smaller 

larvae. This bias implies a focus on 

larvae body lengths sufficient to have 

begun scale and bone development, and 

it generally reflects the more motile 

early life stages. EPA found that these 

study findings cannot be applied to 

smaller and less motile life stages, 

which are incapable of avoidance 

responses. It is also important to note 

that preventing entrainment by some 

exclusion technologies might result in 

very high entrainment reductions by 

converting entrainment to impingement, 

but these impinged organisms may have 

an even lower likelihood of surviving 

impingement than larger potentially 

impinged organisms. Therefore, while 

entrainment refers specifically to 

passage through the cooling water 

intake system, entrainment mortality 

also includes those smaller organisms 

killed by exclusion from the cooling 

water intake system. Today’s rule uses 

the 3⁄8-inch mesh size as part of the 

definition of impingement mortality and 

entrainment mortality as a means of 

clearly differentiating those organisms 

that might be susceptible to 

impingement or entrainment, and 

thereby avoids any confusion over the 

status of impinged entrainables or 

‘‘converts.’’ 

Generally, two basic approaches can 

be used to reduce impingement 

mortality and entrainment. The first 

approach is flow reduction, where the 

facility installs a technology or operates 

in a manner to reduce or eliminate the 

quantity of water being withdrawn. 

Reduced volumes of cooling water 

produce a corresponding reduction in 

impingement and entrainment and, 

therefore, reduced impingement 

mortality and entrainment mortality. It 

should be noted that, at electric 

generators, flow reduction could be 

achieved, perhaps most effectively, by 

installing more energy efficient 

production, thereby requiring less 

cooling per unit of electricity generated. 

The second way to reduce impingement 

and entrainment is to install 

technologies or operate in a manner that 

either (1) gently excludes organisms or 

(2) collects and returns organisms 

without harm. Exclusion technologies or 

practices divert those organisms that 

would have been subject to 

impingement and entrainment away 

from the intake. Collection and return 

technologies are installed to collect and 

return organisms to the source water, 

allowing impingement to occur but 

possibly preventing impingement 

mortality. 

Although not available to all facilities, 

two other approaches to reducing 

impingement and entrainment are (1) 

relocating the facility’s intake to a less 

biologically rich area in a waterbody, 

and (2) reducing the intake velocity. 

Relocating an intake farther from shore 

or at greater depths can be effective at 

entrainment reduction but is not 

available to many inland facilities 

because the distance or depths required 

to reach less biologically-productive 

waters are not generally available. 

Further, while a far offshore intake may 

exhibit a lower density of organisms, the 

species found will change as a function 

of distance from the shoreline as well as 

depth in the water column. Therefore, it 

may not always be desirable to relocate 

an intake structure. A reduced intake 

velocity provides motile organisms the 

opportunity to swim away from the 

intake structure. This approach can be 

very effective in reducing impingement 

but has no effect on entrainment. 

Sections 1 and 2 below further 

describes flow-reduction and exclusion 

technologies. 

1. Flow Reduction 

Flow reduction is commonly used to 

reduce impingement and entrainment. 

For purposes of this rulemaking, EPA 

assumes that entrainment and 

impingement (and associated mortality) 

at a site are proportional to source water 

intake volume. Thus, if a facility 

reduces its intake flow, it similarly 

reduces the amount of organisms subject 

to impingement and entrainment.48

Some common flow reduction 

technologies are variable frequency 

drives and variable speed pumps, 

seasonal operation or seasonal flow 

reductions, unit retirements, use of 

alternate cooling water sources, water 

reuse, and closed-cycle cooling systems. 

For additional detailed information on 

these technologies as well as others, see 

Chapter 6 of the TDD, ‘‘California’s 

Coastal Power Plants: Alternative 

Cooling System Analysis’’ (DCN 10– 

6964), and EPRI’s ‘‘Fish Protection at 

Cooling Water Intake Structures: A 

Technical Reference Manual’’ (DCN 10– 

6813). 

a. Variable Frequency Drives and 

Variable Speed Pumps 

A facility with variable speed drives 

or pumps operating at their design 

maximum can withdraw the same 

volume of water as a conventional 

circulating water pump. However, 

unlike a conventional circulating water 

pump, variable speed drives and pumps 

allow a facility to reduce the volume of 

water being withdrawn for certain 

periods. The pump speed can be 

adjusted to reduce water withdrawals 

when cooling water needs are reduced, 

such as when ambient water 

temperatures are colder (and therefore 

capable of dissipating more heat), when 

fewer generating units are operating or 

when fuel is more efficiently burned. In 

site visits, EPA found that variable 

drives and pumps were typically used at 

units operating below capacity, such as 

load-following units. EPA estimates that 

facilities with intermittent water 

withdrawals could achieve a 5 to 10 

percent reduction in flow.49 For this 

reason, many baseload generating units 

and continuously operated 

manufacturing processes will obtain 

limited reductions in flow from using 

these technologies. EPA is further aware 

that some facilities may need to 


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50See DCN 10–6702 and its attachments for 

examples of spawning ‘‘seasons.’’ 

51Note that some generating units are retired by 

the owner (i.e., the unit is no longer considered 

sufficiently profitable to operate) or is rarely 

dispatched by its independent system operator for 

market-driven reasons (i.e., the unit cannot deliver 

at a competitive price except during limited peak 

seasons; see also § 125.94(c)(12)). They may also be 

mothballed, placed on cold storage, or maintained 

in various other states of operational readiness. 

52See, for example, EPA’s site visit report for 

PSEG’s Linden Generating Station (DCN 10–6557), 

which has a capacity of 1230 MW, 35 percent CUR, 

and uses 7–8 mgd of gray water as the sole source 

of makeup water for its cooling towers. 

53For maps showing which electric generators are 

near a source of available reuse water for cooling, 

see Tidwell, V., J. Macknick, K. Zemlick, J. Sanchez, 

and T. Woldeyesus. 2013. ‘‘Transitioning to Zero 

Freshwater Withdrawal for Thermoelectric 

Generation in the United States.’’ (submitted). See 

also the accompanying presentation given at the 

American Geophysical Union Fall 2012 Meeting 

available at http://www.nrel.gov/docs/fy13osti/

57444.pdf. 

withdraw water for cooling even while 

the facility is not in production, such as 

facilities on standby status, or nuclear 

facilities where the heat energy 

generated by fission must still be 

dissipated while the facility is out of 

service. As a result, EPA determined 

that variable frequency drives and 

variable speed pumps, while useful in 

specific setting and circumstances, are 

not BTA candidates because the flow 

reduction technologies have limited 

application and availability, and are not 

a high performing technology as an 

entrainment control measure. 

b. Seasonal Operation or Seasonal Flow 

Reductions 

Seasonal operation or seasonal flow 

reduction refers to the reduction or 

elimination of a quantity of water 

withdrawn either during periods of low 

demand for electricity output, or to 

coincide with certain biologically 

important periods. Most facilities that 

currently employ seasonal flow 

reductions do so to limit thermal 

impacts or to reduce entrainment, 

because entrainment often has a peak 

season, particularly during a local 

spawning season. Freshwater drum, for 

example, perform broadcast spawning 

during early summer when water 

temperatures reach about 65 degrees 

Fahrenheit. 

During specific peak entrainment 

periods, a facility could scale back its 

operation (or perhaps not operate at all), 

thereby reducing or eliminating the 

volume of cooling water withdrawn. 

This could be accomplished through a 

combination of variable speed pumps or 

shutting down some portion of the 

pumping system. Seasonal flow 

reduction could also consist of 

operating a closed-cycle recirculating 

system as defined at § 125.92(c)(1) as 

once-through during part of the year and 

as a closed-cycle system during the peak 

entrainment season. (EPA notes that 

closed-cycle cooling has been rejected 

as noted in the previous section, and 

discussed in more detail below.) 

Facilities could also choose to schedule 

regular maintenance to occur during 

these high entrainment periods. These 

maintenance activities often require the 

facility to reduce or cease operations 

and can be timed to coincide with the 

most biologically productive periods. 

Through site visits, EPA gathered 

information on species present at 

facilities and has identified some sites 

where entrainment appears to be 

significant all year long, and other sites 

where peak entrainment occurs in as 

few as three to four months of the 

year.50 However, if all power-generating 

facilities in a local area were to stop 

operating at the same time, there could 

be difficulty in supplying electricity to 

the area. Therefore, EPA concluded that 

seasonal operations have limited 

nationwide application for controlling 

entrainment and are thus not widely 

available entrainment reduction 

technology. 

Impingement is generally more 

sporadic, less predictable, and more 

difficult to address with seasonal 

operation. For example, clupeid species, 

such as gizzard shad, experience 

impingement episodes sporadically 

throughout the winter and spring during 

periods of especially cold water 

temperatures, or sporadically 

throughout the summer and fall during 

periods of low dissolved oxygen. 

c. Unit Retirements 

Some power plants units have been 

retired and others have essentially 

ceased all operations but have not been 

formally retired or decommissioned. 

The reasons for their inactivity vary,51

but the end result is the facility no 

longer needs cooling water withdrawals 

for these units. Similarly, manufacturers 

may retire processing units as market 

demand changes, process lines are 

moved to other sites, or production 

technologies change. Unit closures 

provide clear reductions in flow, but the 

demand for electricity (or other 

products) might dictate that production 

be increased at the facility in question 

or at another facility altogether; there is 

usually no guarantee that the intake 

flow will be permanently retired. EPA 

expects flow reductions due to unit 

closures could be reasonably included 

as part of a facility’s impingement 

mortality and entrainment reductions 

strategy. Given the number of variables 

involved in the decision to retire a unit 

and the likelihood of a facility having a 

unit that is ready to retire at 

promulgation of the final rule, unit 

retirements are not a nationally 

available entrainment reduction 

measure. See Section VIII for further 

discussion of how a facility can take 

credit for flow reductions attributable to 

unit closures. 

d. Use of Alternate Cooling Water 

Sources 

While not reducing the overall usage 

of water at a facility, using an alternate 

source of cooling water can reduce 

impingement and entrainment if the 

alternate source substitutes for 

withdrawals from surface waters. An 

example is using ‘‘gray’’ water as a 

source of cooling water, such as a 

facility that reaches an agreement with 

a nearby wastewater treatment plant to 

accept the wastewater treatment plant’s 

effluent as a source of cooling water.52

Such alternate sources are limited by 

available capacity and consistency of 

flow. Increasing competition for these 

sources of water may make this a more 

challenging approach for existing 

facilities than for new facilities that are 

not yet fixed in location. In principle, 

alternate sources could be used to fulfill 

either a fraction or all of a facility’s 

cooling water demands. In practice, the 

location of alternate sources, the costs of 

moving water from the alternate source 

to the facility, and whether the facility 

uses a once-through or closed-cycle 

recirculating system as defined at 

§ 125.92(c) will determine whether the 

alternate source can meet all or a 

portion of the facility’s cooling water 

needs. All these factors limit the 

widespread availability of alternate 

cooling water sources as an entrainment 

reduction measure, however use of 

alternative sources of cooling water 

such as wastewater treatment effluent 

could be attractive for certain facilities 

where the cost of retrofitting or other 

site-specific circumstances are 

favorable.53

e. Water Reuse 

Typically associated with 

manufacturing facilities, water reuse 

(defined as using water for multiple 

processes) can reduce the volume of 

water needed for cooling, process, or 

other uses. For example, a facility might 

withdraw water for non-contact cooling 

water and then reuse the heated effluent 

as part of an industrial process. In effect, 

the facility has eliminated the need to 

withdraw additional water for the latter 


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54 In addition, a smaller portion of the heat is also 

removed through direct contact between the warm 

water and the cooler surroundings; this is known 

as sensible heat. 

55Cooling towers must replace water lost to 

evaporation; this is referred to as makeup water. 

Additionally, as water evaporates, dissolved solids 

and other materials gradually increase in 

concentration in the circulating water and can 

cause operational difficulties. To minimize these 

issues, cooling tower operators continually 

discharge a small portion of the circulating flow 

and replace it with makeup water; this is referred 

to as blowdown. 

56Modular cooling tower units provide an 

additional cooling tower alternative. Modular 

cooling towers resemble mechanical cooling towers, 

but are portable, typically rented for short-term 

periods and quickly assembled. 

57 Dry cooling systems blow down some of the 

circulating water in the cooling system to prevent 

the buildup of materials in the condenser. However, 

the volume of makeup water is extremely low—a 

dry cooling system typically reduces intake flows 

by 98–99 percent over a comparable once-through 

cooling system. 

58The construction and capital costs for dry 

cooling towers have been reported as four to 10 

times more expensive as wet cooling towers, and 

the auxiliary power consumption for dry cooling is 

higher than for wet cooling. See DCN 10–6679. EPA 

recognizes that costs for dry cooling may have 

decreased since this document was written, but 

costs for dry cooling are still markedly higher than 

those for wet cooling. The other challenges 

associated with dry cooling remain unchanged. 

process. EPA has observed significant 

water reuse at manufacturing facilities 

but has not developed national level 

data for such reuse because of the range 

of different manufacturing sectors and 

the significant variability in 

manufacturing processes appropriate for 

reuse. For example, during site visits, 

EPA observed that it may be difficult to 

quantify specific water reuse at complex 

facilities. (See, for example, the site visit 

report for ArcelorMittal, a steel mill at 

DCN 10–6551.) For additional detail on 

water usage in specific industrial 

sectors, see Chapters 4 and 8 of the 

TDD. 

Increasingly, electric utilities are 

adopting water reuse to meet a portion 

or all of their cooling water demands. 

Water reuse can enhance the reliability 

of power generation in water-limited 

environments. Given the complex use 

(and reuse) patterns for some facilities 

and the lack of reuse at other facilities, 

water reuse cannot be considered as a 

widely available entrainment reduction 

option. 

f. Closed-Cycle Cooling Systems 

Closed-cycle cooling systems allow a 

facility to transfer its waste heat to the 

environment using significantly smaller 

quantities of water relative to oncethrough cooling, and in some cases no 

water. The main types of closed-cycle 

cooling systems are wet cooling, dry 

cooling, hybrid cooling, and 

impoundments. Each is described 

below. 

i. Wet Cooling Systems 

In a wet cooling system, cooling water 

that has absorbed waste heat transfers 

that heat through evaporation of some of 

the heated water into the surrounding 

air and recirculates the now cooled 

water to continue the cooling process.54

This process enables a facility to reuse 

the remaining water, thereby reducing 

the quantity of water that must be 

withdrawn from a waterbody. Because 

the heat is transferred through 

evaporation, the amount of water 

withdrawn from the water source is 

greatly reduced, though not eliminated 

completely, because make-up water is 

required to replace that lost through 

evaporation and blowdown.55 The two 

main types of wet cooling systems are 

natural draft and mechanical. While wet 

cooling systems reduce withdrawals 

significantly relative to once-through 

systems, they can increase the 

consumptive use of water because they 

rely on evaporation (which is not 

returned to the waterbody) for heat 

dissipation. When once-through cooling 

is used and withdrawals are a 

significant portion of the source 

waterbody, the return of heated water 

might contribute to greater evaporation 

from the waterbody relative to the 

waterbody’s normal evaporation rate. 

EPA does not have conclusive data on 

the relative magnitude of these effects, 

but the data do suggest that the relative 

difference in evaporation is not so great 

that it will play a major role in 

determining a cooling system type in 

most watersheds. EPA examined 

available information on evaporation 

losses in DCN 12–6673, including a 

comparison to evaporative losses from 

the downstream effluent plume of oncethrough cooling systems. While EPA 

recognizes that evaporative losses from 

closed-cycle systems are greater, EPA’s 

analysis does not suggest that the 

difference is substantial enough to 

outweigh the significant reduction in 

adverse environmental impacts to 

aquatic organisms. However, the relative 

loss of water through evaporation for 

closed-cycle and once-through systems 

is site-specific, depending on the exact 

design of the systems. 

There are two common designs for 

wet cooling systems. A natural draft 

cooling tower can be as tall as 500 feet 

and has a hyperbolic shape. The height 

of these towers creates a temperature 

differential between the top and bottom 

of the tower, which creates a natural 

chimney effect that transfers heat as 

heated water contacts rising air. In 

contrast, mechanical cooling towers rely 

on motorized fans to draw air through 

the tower and into contact with the 

heated water.56 These towers are much 

shorter than natural draft cooling towers 

(typically 30 to 75 feet tall) and can be 

built in groups. Mechanical cooling 

towers may require more land area than 

natural draft cooling towers for an 

equivalent amount of cooling. Both 

types of towers require electricity for 

pumps, but mechanical draft towers also 

require electricity to operate the fans. In 

both cases, the electricity need of the 

towers reduces an electric generating 

facility’s net generating output. Thus, 

the monetary and environmental costs 

of this reduction in energy efficiency 

must be considered. These 

environmental costs include human 

health and welfare effects from 

increased air emissions (from burning 

additional fuel to make up for the power 

that cannot be sold) and the global 

climate change effects of increased 

greenhouse gas output at fossil-fueled 

facilities (these costs are now explicitly 

considered in the benefit-cost analysis; 

see Section X below). Both natural draft 

and mechanical cooling towers can 

operate in freshwater or saltwater 

environments. Saltwater applications 

typically require more make-up water 

than freshwater applications, making 

them less efficient in reducing water 

withdrawals. Optimized cooling towers 

can achieve flow reductions of 97.5 and 

94.9 percent or better for freshwater and 

saltwater sources, respectively. 

ii. Dry Cooling Systems 

Dry cooling systems virtually 

eliminate the need for cooling water 

withdrawals.57 Unlike wet cooling 

systems, waste heat in dry cooling 

systems is transferred completely 

through convection and radiation, rather 

than evaporation. Direct dry cooling is 

much like a car radiator; turbine exhaust 

steam passes through tubes or fins for 

cooling, and the condensate is returned 

to the boiler to be reheated into steam 

to propel the turbine. The system is 

completely closed to the atmosphere, 

and there is no contact between the 

outside air and the steam or the 

resulting condensate. Because of the 

heavy reliance of dry cooling on 

ambient air temperatures and the lower 

efficiency of heat transfer through 

convection and radiation, dry cooling 

systems are much larger and therefore 

more expensive 58 than wet cooling 

systems for a given cooling load. While 

dry cooling systems are not uncommon 

in the U.S. (see DCN 10–6943), they 

have typically been built at smaller 

generating units or in areas where 

limited water supplies might make 


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59Note that this is entrainment exclusion and not 

necessarily related to the survival of entrainable 

organisms. 

uncertain the availability of either oncethrough cooling or wet cooling make-up 

water, such as the arid southwestern 

United States. Dry cooling has not been 

used for circulating water cooling at 

nuclear facilities. 

iii. Hybrid Cooling Systems 

In certain applications, a facility 

could choose a hybrid cooling system 

design that incorporates elements of 

both wet and dry cooling. Typically, the 

base of the tower functions as a wet 

cooling system and the upper portion as 

a dry cooling system. The most common 

reason for this design is to reduce the 

visible plume of water vapor, which is 

accomplished by recapturing some of 

the water vapor evaporated in the wet 

portion of the tower. This design is also 

usually much shorter than natural draft 

wet towers and can also include plume 

abatement controls. Another version of 

the hybrid cooling system also includes 

both wet and dry cooling sections, but 

the dry section functions to directly cool 

a portion of the turbine exhaust steam. 

The benefits of such a tower may 

include substantial water savings as 

well as reduction in power plant 

efficiency losses associated with just dry 

cooling. 

iv. Impoundments 

Impoundments are surface 

waterbodies that serve as both a source 

of cooling water and a heat sink. As 

with cooling towers, impoundments 

rely on evaporative cooling to dissipate 

the waste heat; a facility withdraws 

water from one part of the 

impoundment and then discharges the 

heated effluent back to the 

impoundment, usually in another 

location to allow the heated water time 

to cool. Depending on local hydrology, 

impoundments may also require 

makeup water from another waterbody. 

Impoundments can be man-made or 

natural, and can be offset from other 

water bodies or as part of a ‘‘run of the 

river’’ system (the latter are sometimes 

referred to as cooling lakes). 

2. Exclusion and Collection 

Technologies 

Over the last several decades, 

numerous technologies in addition to 

specific flow reduction measures such 

as velocity controls and closed-cycle 

cooling have been developed in an effort 

to minimize impingement mortality and 

entrainment associated with cooling 

water intake systems. The following 

section summarizes the most widely 

used technologies and the most effective 

and best-performing technologies, such 

as screens, barrier nets, aquatic filter 

barriers, and collection and return 

systems. For additional detailed 

information on these technologies and 

others, also see Chapter 6 of the TDD, 

‘‘California’s Coastal Power Plants’’ 

report (DCN 10–6964) or EPRI’s ‘‘Fish 

Protection at Cooling Water Intake 

Structures’’ report (DCN 10–6813). 

a. Screens 

There are several types of screens that 

offer protection that are discussed 

below, including traveling screens and 

cylindrical wedgewire screens. Not 

described in this section are fixed 

screens that are used simply for the 

purpose of debris exclusion but do not 

offer protection to fish, larvae, and eggs. 

i. Traveling Screens 

Traveling screens are a technology in 

place as part of most cooling water 

intake structures. These screens 

originally were designed to prevent 

debris from entering the cooling water 

system, but they also prevent some fish 

and shellfish from entering the cooling 

water system. Traveling screens have 

been installed in a wide variety of 

operating and environmental 

conditions: salt water, brackish water, 

freshwater, and icy water, as well as 

river, lake and tidal applications. On the 

basis of the technical survey, EPA found 

93 percent of electric generators and 73 

percent of manufacturers employ 

traveling water screens or other intake 

screens. Many types of traveling water 

screens (e.g., through flow, dual flow, 

center flow) are used. The most 

common design in the United States is 

the through flow system. The screens 

are installed behind bar racks (trash 

racks) but in front of the water 

circulation pumps. The screens rotate 

up and, while out of the water, debris 

and impinged organisms are removed 

from the screen surface by a highpressure spray wash. Screen wash 

cycles are triggered either manually or 

by a certain level of head loss across the 

screen (indicating clogging). By 

definition, this technology works by 

collecting (i.e., impinging) fish and 

shellfish on the screen. Ideally, traveling 

screens would be used with a fish 

handling and return system, as 

discussed below. The return system 

should be regularly maintained to 

prevent biofouling or other blockages 

that may affect survival. 

ii. Cylindrical Wedgewire Screens 

Unlike traveling screens, cylindrical 

wedgewire screens are a passive intake 

system. Wedgewire screens, also called 

‘‘V’’ screens or profile screens, consist of 

triangular-shaped wires arrayed on a 

cylindrical framing system, with long 

slots between the wires, lengthwise 

along the screen. Slot sizes for 

conventional traveling screens typically 

refer to a square opening (3⁄8 inch by 3⁄8

inch) that is punched, molded, or 

woven into the screen face. Wedgewire 

screens are constructed differently, 

however, with the slot size referring to 

the distance between longitudinally 

adjacent wires. These screens are 

designed to have a low through-slot 

velocity (less than 0.5 fps or 0.15 meter 

per second) and typically have smaller 

slot sizes than a coarse mesh traveling 

screen. The entire wedgewire structure 

is submerged in the source waterbody. 

(See Chapter 6 of the TDD for an 

illustration of these screens.) 

When necessary conditions regarding 

placement in the waterbody are met, 

these screens exploit physical and 

hydraulic exclusion mechanisms to 

achieve consistently high impingement 

reductions, and as a result, 

impingement mortality reductions. 

Wedgewire screens require an ambient 

crossflow current to maximize the 

sweeping velocity provided by the 

waterbody. The screen orientation 

allows the crossflow to carry organisms 

away from the screen allowing them to 

avoid or escape the intake. Lower intake 

velocities also allow fish to escape from 

the screen face. Entrainment reductions 

can also be observed when the screen 

slot size is small enough and intake 

velocity is low enough to exclude egg 

and larval life stages.59 Limited 

evidence also suggests that extremely 

low intake velocities can allow some egg 

and larval life stages to avoid the intake 

because of hydrodynamic influences of 

the crossflow. Therefore, performance is 

dictated largely by local conditions that 

are further dependent on the source 

waterbody’s biological composition. 

Costs of wedgewire screens increase 

significantly as slot size and design 

intake velocity decrease because the 

cumulative size of the screen (or 

number of screens) must grow in order 

to accommodate the same flow of 

cooling water. Wedgewire screens can 

also employ cleaning and deicing 

systems such as air-burst sparging to 

help maintain open intake structures 

and low intake velocities. 

According to data from the industry 

questionnaire, EPA’s site visits, and 

industry documents, dozens of facilities 

across the United States employ 

cylindrical wedgewire screens. 

However, wedgewire screens are not 

feasible for all facilities, particularly 

where intakes are in shallow water or 

have limited shoreline frontage. Also, 


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60EPA expects that properly designed wedgewire 

screens have a design intake velocity of 0.5 fps, 

therefore intakes with wedgewire screens will meet 

the impingement standard at § 125.94(c)(2) and 

there is no need to separately pre-approve this 

technology as in the remanded 2004 Phase II rule. 

61 In today’s rule the EPA recognizes that 1⁄2- by 1⁄4-inch mesh is used in some instances and perform 

comparably to the 3⁄8-inch square mesh. 

62A facility could also increase its intake 

velocity. 

63Barrier net mesh sizes vary, depending on the 

configuration, level of debris loading, species to be 

protected, and other factors. 

64This facility ceased operations for reasons 

unrelated to any requirements or measures 

addressing cooling water intake impingement or 

entrainment. 

wedgewire screens might not be feasible 

where the size and number of 

wedgewire screens would interfere with 

navigation of vessels. As described 

above, locations also need to have an 

adequate source water sweeping 

velocity. Most of the performance data 

for wedgewire screens is based on 

coarse mesh slot sizes with an intake 

velocity of 0.5 fps. Because it is 

extremely difficult to measure 

impingement and entrainment 

reductions in the field, most 

performance data for wedgewire screens 

is based on barge and lab studies.60 EPA 

does not have data on the performance 

of fine mesh wedgewire screens on 

entrainment survival. Consequently, 

EPA has considered wedgewire screens 

only for impingement mortality. For 

additional discussion of the specific 

design and operation of cylindrical 

wedgewire screens, see Chapter 6 of the 

TDD. The following section discusses 

the importance of mesh size to 

impingement mortality and entrainment 

reductions. 

iii. Screen Mesh Size Considerations 

Coarse Mesh 

Coarse mesh traveling screens are the 

typical traveling screen fitted on the 

majority of cooling water intakes. A 

large number of facilities have intake 

screens with 3⁄8-inch (9.5 mm) mesh 

panels.61 This size mesh is common 

because, as a general rule, the maximum 

screen slot size is never larger than onehalf of the condenser tube diameter (the 

condenser tubing is the narrowest point 

in the cooling water system and, as 

such, is most susceptible to clogging 

from debris), and this tubing is typically 

3⁄4 or 7⁄8 inch in diameter. Mesh of 3⁄8-inch (roughly 9.5 mm) size does not 

prevent entrainment and without any 

other precautions can lead to high 

mortality of impinged fish. Coarse mesh 

traveling screens have been in use by 

both power plants and manufacturers 

for more than 75 years and represent the 

baseline technology. Similarly, the 

majority of successful wedgewire 

installations are coarse mesh. 

Fine Mesh 

Fine mesh traveling and wedgewire 

screens are similar to coarse mesh 

screens. The only difference is the size 

of the screen mesh. Fine mesh traveling 

screens have been in use since the 

1980s. Typically, facilities have 

incorporated fine mesh in an effort to 

reduce entrainment. The mesh size 

varies, depending on the organisms to 

be protected, but typically range from 

0.5 to 5 mm. Data in the record 

demonstrate that entrainment typically 

decreases as mesh size decreases. Slot 

sizes larger than 2 mm do not prevent 

eggs from passing through the screen. 

Converting traveling screens from coarse 

mesh to fine mesh often requires adding 

more screens in order to maintain the 

same flow, since the open area of a fine 

mesh screen is less than the open area 

of a coarse mesh screen. Adding more 

screens is one way to maintain that 

flow.62 EPA estimates that as many as 

17 percent of existing intakes could not 

be enlarged to accommodate a 2 mm 

mesh, and as many as 55 percent of 

existing intakes could not accommodate 

a 0.5 mm slot size under conditions of 

low-intake velocities. For these reasons, 

fine mesh screens are available for some 

locations, but they are not the best 

performing technology and are not an 

available technology for the industry as 

a whole for IM&E. For more details, see 

Chapter 6 of the TDD. 

b. Barrier Nets 

Barrier nets are nets that fully encircle 

the intake area of water withdrawal, 

from the bottom of the water column to 

the surface, and prevent fish and 

shellfish from coming in contact with 

the intake structure and screens. 

According to data from the industry 

questionnaire (as of the year 2000), at 

least a half dozen facilities employ a 

barrier net. Typically, barrier nets have 

large mesh sizes (e.g., 1⁄2-inch or 12.7 

mm) 63 and are designed to prevent 

impingement. Because of the large mesh 

size, they offer no reduction in 

entrainment. They are often deployed 

seasonally, wherever seasonal 

migrations create high impingement 

events or to avoid harsh winter 

conditions that jeopardize integrity of 

the net. Barrier nets also prevent 

impingement of shellfish on the intake 

traveling screen. Shellfish such as 

crustaceans can pose a unique issue for 

traveling screens; shellfish are not 

impinged, but they can attach to the 

traveling screen surface and are not 

removed from the traveling screen by 

pressure wash sprays. Barrier nets have 

been shown to be helpful in this regard. 

c. Aquatic Filter Barriers 

Aquatic Filter Barriers (AFBs) consist 

of water-permeable fabric panels with 

small pores (less than 20 microns). They 

are similar to barrier nets in that they 

extend throughout the area of water 

withdrawal from the bottom of the water 

column to the surface. AFBs reduce 

both impingement mortality and 

entrainment because they present a 

physical barrier to all life stages. The 

surface area of an AFB is quite large 

compared to a traveling screen, allowing 

for extremely low water velocities. The 

low velocity allows non-motile 

organisms to drift away. EPA is aware 

of one power plant that used an AFB but 

notes that this facility recently ceased 

operations.64 EPA has updated 

performance data for AFB for small flow 

intakes, but it does not have enough 

data to evaluate the technology at large 

intakes or in all water bodies. EPA does 

not consider this technology to be 

demonstrated and available as a 

nationwide BTA candidate. 

d. Collection and Return Systems 

Conventional traveling screens were 

not designed initially with the intention 

of protecting fish and aquatic organisms 

that become impinged against them. The 

organisms were often handled in the 

same manner as debris on the screens. 

Marine life can become impinged 

against the screens because of high 

intake velocities that prevent their 

escape. Prolonged contact with the 

screens can suffocate organisms that are 

unable to escape or result in descaling 

injury and latent mortality. Organisms 

that survive initial impingement and 

removal are not always provided with a 

specifically designed mechanism to 

return them to the waterbody and are 

often handled in the same way as other 

screening debris. Other objects, such as 

leaves and trash, that are collected on 

the screen are typically removed with a 

high-pressure spray and deposited in a 

dumpster or debris return trough for 

disposal. Exposure to high pressure 

sprays and other screening debris can 

cause significant injuries that result in 

latent mortality or increase the 

susceptibility to predation or reimpingement. Screens are rotated 

periodically on a set time interval or 

when the pressure differential between 

the upstream and downstream faces 

exceeds a set value. 

Conventional traveling screen systems 

have been modified to reduce 

impingement-related mortalities with 


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65Others can be fitted with a cylindrical 

wedgewire screen, or might simply be an open pipe. 

66EPA’s data show that velocity caps operate at 

velocities above and below the 0.5 fps and can be 

effective using either design. 

67Limited lab studies indicate that entrainment 

also can decrease as through-screen velocity 

decreases and that through-screen velocity can have 

an effect on entrainment survival rates, although 

such data is extremely variable by species (see DCN 

10–6802 and DCN 10–6803). In any case, EPA does 

not consider a reduced intake velocity as an 

effective technology for reducing entrainment, 

because entrainable organisms generally lack 

motility. 

collection and return systems. In its 

simplest form, these systems are 

composed of a return flume or trough 

with sufficient water volume and flow 

to enable impinged organisms to return 

to the source water. Return systems 

should be designed to avoid predation 

and latent mortality while organisms are 

in the flume, maintain an appropriate 

water depth in the flume for high 

survival of the organisms, located at an 

appropriate elevation to avoid large 

drops of the organisms back to the 

surface water (or large hydraulic jumps 

if the end of the return is below the 

water’s surface), and sited to avoid 

repeated impingement of the organisms 

by the intake structure. 

Some facilities have modified 

conventional coarse mesh traveling 

screen systems to reduce impingement 

mortality. They did this by removing 

fish trapped against the screen and 

returning them to the receiving water 

with as few injuries as possible. The 

first modified screens, also known as 

Ristroph screens, feature capture and 

release modifications. In the simplest 

sense, these screens are fitted with 

troughs (also referred to as buckets) 

containing water that catch the 

organisms as the screen rises out of the 

water and the organisms are sprayed off 

of the screen. The return component 

consists of a mechanism to remove 

impinged fish gently from the collection 

buckets, such as a low-pressure spray. 

The buckets empty into a collection 

trough that returns fish to a suitable area 

in the source waterbody. These 

modified screens have shown 

significant reductions in impingement 

mortality compared with unmodified 

screen systems. 

Data from early applications of the 

Ristroph screen design showed that 

while initial survival rates might be 

high at some installations, latent 

mortality rates were higher than 

anticipated. This indicated that 

organisms could sustain significant 

injuries during the impingement and 

return process that were not 

immediately fatal. According to a study 

conducted by Ian Fletcher in the 1990s 

(see DCN 5–4387), industry identified 

several additional critical screen 

modifications to address latent 

mortality. These included redesigning 

the collection buckets to minimize 

turbulence, adding a fish guard rail/

barrier to prevent fish from escaping the 

collection bucket, replacing screen 

panel materials with ‘‘fish-friendly,’’ 

smooth woven mesh, and using a lowpressure wash to remove fish before any 

high-pressure spray to remove debris. 

The Fletcher analysis also identified 

longer impingement duration, 

insufficient water retention in the 

buckets, and exposure to the air and 

temperature extremes as conditions that 

could negatively affect fish survival. 

Finally, these findings indicate that 

modified Ristroph screens must be 

rotated continually instead of the 

periodic rotation schedule common 

with conventional screen systems. 

Performance data for modified traveling 

screens with fish-friendly fish return 

systems, sometimes referred to as postFletcher modifications, show low levels 

of impingement mortality across a wide 

variety of waterbody types and fish 

species. Additionally, recently 

developed screen designs (such as the 

Passavant Geiger, Beaudrey WIP, and 

Hydrolox screens) have also shown 

promise in reducing impingement 

mortality. 

For additional and more detailed 

discussion of the specific design and 

operation of these screen modifications, 

see Chapter 6 of the TDD. 

3. Other Technological Approaches 

a. Intake Location and Velocity Caps 

The most common intake location for 

a cooling water intake structure is along 

a shoreline. In some water bodies, 

however, shoreline locations are 

thought to have a potential for greater 

environmental impact because the water 

is withdrawn from the most biologically 

productive waters, especially those 

containing a high density of organisms 

in earlier life stages, such as nursery 

areas. Some facilities employ an 

offshore intake to withdraw water from 

less biologically productive areas to 

reduce impingement and entrainment 

relative to intakes in more productive 

shoreline areas. Reduction in 

impingement mortality and entrainment 

due to intake location is highly sitespecific. The greatest potential for 

reductions is found with far offshore 

locations at distances of several 

hundred feet, not found on many rivers 

and streams. Both depth and the 

offshore location must be evaluated to 

determine whether fish densities and 

species distribution there are 

substantially different than those near 

the shoreline. Two areas where far 

offshore locations are commonly used 

today are the oceans and Great Lakes. 

EPA found that several offshore 

intakes are fitted with a velocity cap.65

Velocity caps are a physical structure 

rising vertically from the sea bottom and 

are placed over the top of an intake 

pipe. Intake water is withdrawn through 

openings in the velocity cap so that it 

converts the direction of water flow into 

the pipe from vertical to horizontal. The 

velocity cap does not act to reduce the 

velocity,66 but the horizontal flow 

provides a physiological trigger in fish, 

which induces an avoidance response to 

reduce impingement mortality. The 

velocity cap further serves to limit the 

zone of influence of the intake to the 

depth level at which the velocity cap is 

situated, thus affecting only the life 

stages that live at that depth. Velocity 

caps are also usually equipped with 

supports and bar spacing selected to 

prevent larger aquatic organisms (e.g., 

sea turtles or marine mammals) from 

entering the intake pipe. Because 

velocity caps operate under the 

principle that the organisms can escape 

the current, they do not offer 

entrainment reductions over and above 

those achieved by being located 

offshore. Reductions in entrainment 

observed with velocity caps occur 

because of the difference in organism 

densities in far offshore deep water 

compared to a surface intake at the 

shoreline. 

Far offshore velocity caps have 

limited application in oceans and the 

Great Lakes, are not available in other 

water bodies, and are therefore not 

available as a candidate for a national 

BTA. However, the technology is a 

demonstrated high performing 

technology, and is therefore included as 

a compliance alternative for those 

facilities where the technology is 

available. For additional and more 

detailed discussion of the specific 

design and operation of offshore intake 

locations and velocity caps, see Chapter 

6 of the TDD. 

b. Reduced Intake Velocity 

Impingement mortality can be 

reduced greatly by reducing the 

through-screen velocity in any screen.67

Reducing the rate of flow of cooling 

water through the screen (throughscreen velocity) to 0.5 fps or less 

reduces impingement of most fish 

because it allows them to escape the 

intake current. (See 66 FR 65274 

[December 18, 2001] and DCN 2–028A, 

EPRI’s ‘‘Technical Evaluation of the 

Utility of Intake Approach Velocity as 

an Indicator of Potential Adverse 


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68Although EPA also identified velocity 

reduction to 0.5 feet per second or less as a 

candidate best performing technology for 

impingement mortality, EPA did not promulgate 

requirements to reduce intake velocity as BTA 

because it is not available at all facilities; however, 

the final rule does allow facilities to comply with 

intake velocity of 0.5 feet per second or less where 

available. 

69EPA also considered recent screen designs 

(such as the Passavant Geiger, Beaudrey WIP, and 

Hydrolox screens) in evaluating impingement 

mortality data. In fact, the data set used to calculate 

the impingement mortality performance standard at 

§ 125.94(c)(7) included a study of performance at a 

facility employing a Passavant Geiger screen, as 

well as a facility employing a Beaudrey WIP screen. 

70 In the record, EPA may also refer to this as the 

12-month percent survival performance standard, 

% SPS, or the IM performance standard. 

Environmental Impact Under Clean 

Water Act 316(b).’’) As a result, some 

facilities have designed and operate 

their modified traveling screens or 

wedgewire screens so as not to exceed 

a through-screen velocity of 0.5 fps. 

Swim speed studies demonstrate that 

for most facilities, an intake velocity of 

0.5 fps or less will result in 96 percent 

or better reductions in impingement 

mortality for most species. EPA notes 

that preliminary results from recent 

studies of fine mesh screens suggest that 

at even lower intake velocities such as 

0.25 fps, some hydrodynamic influences 

may reduce entrainment mortality even 

more, because flow dynamics are 

nonlinear. It is unclear as to whether 

such observations hold true when 

cooling water withdrawals (water 

volumes) are large. While higher intake 

velocities are sufficiently protective for 

some species of fish, the higher intake 

velocities are not necessarily protective 

of all life-stages. For example, younger 

fish may not be strong swimmers or may 

have not a developed avoidance 

response. Therefore higher intake 

velocities are not a high performing 

technology. As noted previously, low 

intake velocity has limited application, 

and is therefore not available as a 

candidate BTA technology. However, 

the technology is a demonstrated high 

performing technology, and is therefore 

included as a compliance alternative for 

those facilities where the technology is 

available. 

D. Technology Basis for Today’s Final 

Rule 

As described above, EPA examined 

the full range of technologies that 

reduce impingement or entrainment or 

both. From an assessment of all factors, 

EPA identified one technology that is 

best technology available for 

minimizing the adverse impacts of 

impingement mortality at existing 

facilities: modified traveling screens 

with a fish-friendly fish return. EPA 

identified no single best technology that 

is available for minimizing entrainment 

at existing facilities for today’s final 

rule. For new units at existing facilities, 

EPA identified mechanical draft wet 

cooling systems as BTA for both 

impingement and entrainment.68

EPA did not identify any single 

technology or group of technology 

controls as the basis for establishing the 

national BTA standard for entrainment 

for existing units. Instead, EPA has 

established a national BTA standard for 

entrainment for existing units that 

requires determination of BTA 

entrainment requirements on a sitespecific basis in a structured permitting 

setting. The framework for determining 

entrainment requirements provides for 

the consideration at a minimum of 

certain specified factors that must be 

considered in the Director’s 

determination of the BTA controls. 

1. Alternative Impingement Mortality 

Standards for Existing Units 

After considering all factors identified 

above, EPA has concluded that modified 

traveling screens, such as modified 

Ristroph screens and equivalent 

modified traveling screens with fishfriendly fish returns, are a best 

technology available for minimizing 

impingement mortality.69 These screens 

use 3⁄8 inch, or similar, mesh with 

collection buckets designed to minimize 

turbulence, a fish guard rail/barrier to 

prevent fish from escaping the 

collection bucket; ‘‘fish-friendly,’’ 

smooth, woven or synthetic mesh; and 

a low-pressure wash to remove fish 

before any high-pressure spray to 

remove debris. The fish removal spray 

must be of lower pressure, and the fish 

return must be fish friendly, provide 

sufficient water and minimize 

turbulence. Modified traveling screens 

generally must be rotated continually to 

minimize aquatic exposure to 

impingement or to the air and thus 

obtain the highest reductions in 

impingement mortality. 

Under the seventh option for 

complying with the BTA impingement 

mortality standard in today’s final rule, 

a facility may rely on any technology it 

chooses so long as it demonstrates 

through biological compliance 

monitoring that it achieves the required 

12 month impingement mortality 

performance standard 70 that EPA 

calculated based on the performance of 

the BTA technology—modified traveling 

screens with fish return. As discussed in 

the TDD (see, for example, TDD Exhibits 

11–1 and 11–3), EPA based the 12 

month percent mortality performance at 

§ 125.94(c)(7) on data from facilities 

with traveling screens modified with 

features to improve the postimpingement survival of organisms such 

as smooth mesh, continuous or nearcontinuous rotation of the screens, 

buckets with guard rails, low pressure 

sprays for collecting fish, and fish return 

systems. The statistical basis for the 12 

month impingement mortality 

performance standard includes 26 sets 

of 12 month survival percentages across 

17 facilities demonstrating average 

impingement mortality rates ranging 

from 1.6 to 48.8 percent under 

conditions of 18 to 96 hour holding 

times. EPA established the 12 month 

percent mortality as 24 percent which is 

the arithmetic average of the 

impingement mortality rates from the 17 

facilities. (This is consistent with EPA’s 

proposed rule use of expected value of 

the beta distribution which can be 

calculated as the arithmetic average.) 

Note: The 12 month impingement 

mortality performance standard means 

that no more than 24 percent of the 

impinged fish may die or alternatively 

at least 76 percent of the impinged fish 

must survive. EPA has occasionally 

used average annual limitations in the 

effluent guidelines program, most 

recently for the pulp and paper industry 

category (40 CFR 430, promulgated in 

1998). In these instances, such as the 

technology-based BAT, EPA has defined 

the annual average limitations to be the 

average level demonstrated by the 

technology. Thus, EPA’s approach to 

calculating the 12 month percent 

survival performance standard is 

consistent with past practice. 

EPA recognizes that variability in the 

technology performance occurs due to 

changes in seasons, differing intake 

locations, higher mortality of certain 

species, and speciation found in 

different water bodies. By using a full 12 

months of data, EPA has ensured that 

the resulting performance standard 

reflects the widest range of potential 

conditions present in EPA’s database. 

EPA has further incorporated variability 

into the 12 month impingement 

mortality performance standard by 

basing it on data from 17 facilities 

which collectively performed more than 

1,500 sampling events beginning as 

early as 1977. EPA notes that seven 

facilities had mortality rates less than 10 

percent which provides evidence that 

facilities can, and have, maintained and 

operated their systems in a manner 

consistent with the performance 

standard. Another four facilities 

demonstrated impingement mortality 

rates significantly greater than the 

performance standard of 24 percent, 

however, EPA notes these facilities were 


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71For example, the Indian Point study states 

‘‘Because of the preliminary nature of this study, 

the effectiveness of the continuously operating fine 

mesh traveling screen has not been fully evaluated. 

Further studies incorporating controls for survival 

testing, regulation of spray wash pressures, 

collection efficiency tests, sampling during peak 

impingement periods for all important species, and 

better holding facilities, will provide more 

conclusive results.’’ 

not required to optimize their 

technology performance as part of their 

study, and data collection was not 

required to achieve a certain level of 

performance.71 In each study, EPA has 

identified elements of the technology 

operation that a facility could modify to 

achieve the 12 month percent 

impingement mortality performance 

standard. By using the 12 month percent 

impingement mortality performance 

standard, EPA has ensured that the 

resulting performance standard reflects 

the widest range of potential conditions 

present in EPA’s database. In addition to 

those studies meeting the criteria for use 

in the 12 month percent survival 

performance standard calculations, 

there are further studies in EPA’s record 

that provide additional performance 

data showing facilities can, and have, 

maintained and operated their systems 

in a manner consistent with the 

performance standard. EPA’s record 

includes approximately 250 total 

studies related to impingement (see 

TDD Exhibit 11A–1). 

Despite the overwhelming evidence 

that the 12 month percent survival 

performance standard of 24 percent was 

consistent with demonstrated 

performance for the best technology, 

EPA considered other alternatives that 

might incorporate more variability into 

a performance standard. EPA concluded 

that none of the alternatives were 

consistent with the need for facilities to 

demonstrate ongoing maintenance and 

operations over a long period of time, 

such as a year. Any alternative would be 

less stringent and would allow facilities 

to target long-term performance at a 

level that would be less than the 

optimal performance demonstrated by 

facilities with the technology in place. 

Further, the 12-month average 

impingement mortality performance 

standard will require a facility to 

actively evaluate performance during 

the 12 month period enabling the 

facility to optimize the technology to 

improve performance to counterbalance 

a result above the standard by one 

below the standard. If EPA had included 

a monthly average standard, it would 

have similarly needed to incorporate 

allowances for exceedances. Allowing 

for exceedances would have provided 

no incentive for improving operations 

for such exceedances. Therefore, EPA 

determined that the 12 month 

impingement mortality performance 

standard is sufficient to ensure 

performance consistent with best 

technology available. For this reason, 

EPA is not promulgating the monthly 

average that was included in the 

proposal. EPA’s decision also is 

consistent with effluent guidelines 

where compliance with the monthly 

average limitation is not required for 

facilities subject to a longer term 

limitations such as an annual average 

limitation (e.g., pulp and paper 40 CFR 

430 Subpart B AOX limitation). 

EPA did not include in the final rule 

a number of requirements it had 

considered at proposal. The proposed 

rule would have required the seasonal 

deployment of barrier nets on estuaries 

and oceans as one element of the best 

technology available for minimizing the 

impingement mortality of shellfish. EPA 

has opted not to include any specific 

requirements for shellfish in the final 

rule, because EPA’s review of the 

impingement data it used to develop 

today’s final rule impingement 

performance standard includes data that 

incorporate shellfish survival as part of 

the performance standard. Further, as 

previously explained, the final rule 

provides for the Director to establish 

additional requirements where 

necessary. 

EPA expects facilities complying with 

§ 125.94(c) of today’s rule by 

compliance option (7) to track their 

compliance with the 12 month percent 

impingement mortality performance 

standard on an ongoing basis and to 

proactively modify their technology or 

operations when a trend in the sampling 

suggests that they might be in danger of 

exceeding the 12 month percent 

impingement mortality performance 

standard in the future. The 12 month 

percent impingement mortality 

performance standard requires that 

impingement mortality not exceed 24 

percent, calculated as the sum total 

number of fish that were impinged and 

died within the holding time divided by 

the sum total number of fish impinged 

for a 12-month period. EPA expects the 

ratio will be calculated based either on 

direct sampling counts, or based on both 

counts being extrapolated to represent 

annual counts. Because comments 

provided data that expanding the 

proposed 24 to 48 hour holding time 

requirement would generally not affect 

the observation of mortality due to 

impingement, the regulation allows for 

holding times from 18 to 96 hours. 

As explained in more detail in 

Section VI.E and G below, the BTA 

technology for impingement does not 

minimize adverse environmental 

impacts associated with entrainment. 

2. Entrainment Standards for Existing 

Units 

As discussed below, EPA is not basing 

BTA for entrainment at existing units 

(that is, excluding new units at existing 

facilities) on closed-cycle recirculating 

cooling systems, a highly effective 

technology, because this technology is 

not available nationally and therefore 

does not represent BTA. EPA also has 

not identified any other effective, 

available and demonstrated candidate 

technology (or combinations of 

technologies) for entrainment reduction 

at existing units that is available 

nationally. For other entrainment 

technologies that might be available on 

a site-specific basis, see Section VI.E.2 

below and Chapter 6 of the TDD. EPA 

did not select the other flow-reduction 

technologies (such as variable-speed 

drives and seasonal flow reductions) as 

the technology basis for entrainment 

control measures because these 

technologies are not uniformly best and 

are not broadly available for most 

facilities. Further, EPA has not 

identified a basis for subcategorizing 

existing units at which flow reduction 

technologies are feasible. The 

effectiveness, availability, and utility to 

a given facility of flow reduction or 

other entrainment reduction methods 

depends on site-specific geographical 

and biological conditions as well as 

operations of the facility. For example, 

this is the reason that EPA did not select 

relocation of a shoreline intake to far 

offshore as a technology basis for the 

BTA entrainment standard because this 

technology is not widely available for 

most facilities. 

3. Impingement and Entrainment 

Standards for New Units at Existing 

Facilities 

In contrast to existing units, installing 

a closed-cycle cooling system at a new 

unit is far less complex. The technology 

is also highly effective, generally 

achieving greater than 95 percent 

reductions in IM and E (mechanical 

draft (wet) cooling towers achieve flow 

reductions of 97.5 percent for freshwater 

and 94.9 percent for saltwater sources, 

or by operating the towers at a 

minimum of 3.0 and 1.5 cycles-ofconcentration, respectively). These 

reductions in flow and the concurrent 

reductions in impingement and 

entrainment impacts are among the 

highest reductions in adverse 


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72Note that these metrics are not explicit 

requirements for closed-cycle recirculating systems. 

They simply represent what EPA views as examples 

of characteristics of a properly operated and 

maintained closed-cycle recirculating system, as 

defined at § 125.92(c)(1). 

environmental impact possible at an 

intake structure.72

As described below, EPA has 

concluded that new units, in contrast to 

existing units, have much greater 

flexibility in terms of cooling system 

design, construction scheduling, and 

other factors that help minimize many 

of the negative aspects associated with 

closed-cycle cooling. For a more 

detailed discussion of this rationale, see 

below. 

Under the final rule, a new unit at an 

existing facility, where the facility that 

withdraws or will withdraw more than 

2 mgd when the new unit begins 

operating will have requirements 

similar to the requirements of a new 

facility in Phase I. Under the rule, a new 

unit (as defined at § 125.92(u) and 

described above) is required to have a 

flow limited to that which is 

commensurate with a closed-cycle 

recirculating system as it would be 

applied to the new unit. Today’s final 

rule also includes an alternative 

approach (similar to Track II in Phase I), 

in which a facility could comply with 

the new unit standards by 

demonstrating that the technologies and 

operational measures employed will 

reduce the level of adverse 

environmental impact from any cooling 

water intake structure used to supply 

cooling water to the new unit to a 

comparable level to that achievable by 

implementing a closed-cycle 

recirculating system as defined at 

§ 125.92(c)(1). 

As discussed above, today’s final rule 

defines a ‘‘new unit’’ at an existing 

facility as a stand-alone unit the 

construction of which commences after 

the effective date of today’s final rule. 

New unit includes stand-alone units 

that are added to a facility for purposes 

of the same general industrial operation 

as the existing facility. This is in 

contrast to the definition of new facility, 

where a new facility does not include 

new units that are added to a facility for 

purposes of the same general industrial 

activity (40 CFR 125.83). The provision 

‘‘for purposes of the same general 

industrial operation’’ is explicitly 

included in today’s final rule definition 

of new unit at an existing facility for 

clarity. A new unit may have its own 

dedicated cooling water intake 

structure, or the new unit may use an 

existing or modified cooling water 

intake structure. Any unit at an existing 

facility that does not meet the new unit 

definition in today’s rule is subject to 

the existing unit provisions. 

EPA is adopting more stringent 

requirements for new units at existing 

facilities because such new units can be 

designed and constructed without many 

of the additional expenses and 

operational disadvantages associated 

with retrofitting an existing unit to 

closed-cycle cooling. For example, the 

incremental downtime that can be 

associated with retrofitting to closedcycle cooling is avoided altogether at a 

new unit. In addition, when new units 

are added, the condensers can be 

configured for closed-cycle, reducing 

energy requirements (by substantially 

reducing the turbine backpressure 

energy penalty) and associated air 

emissions. 

The three factors that led EPA to 

reject closed-cycle cooling as BTA 

(described below in Section E) are far 

less relevant for new units at existing 

facilities than for retrofitting existing 

units. This section discusses why EPA 

concluded that each factor is not a 

significant concern for new units, and 

why the record supports EPA’s 

conclusion that closed-cycle cooling is 

an available and feasible technology for 

new units at existing facilities. 

• Land Availability: In contrast to 

retrofitting the entire existing facility, 

the amount of space dedicated to 

closed-cycle for the new unit will be 

limited to the new unit rather than the 

entire facility. As a result, space 

constraints will be much less of an 

issue. New units also present the 

opportunity to design an optimized 

closed-cycle recirculating system for the 

new unit. Retrofitting an existing facility 

for the full intake flow of the facility 

would require a facility to identify (or 

possibly obtain) enough space to 

accommodate the cooling towers and 

associated equipment. Furthermore, 

new units and their corresponding 

cooling system can be built in stages 

rather than as a facility-wide retrofit, 

and since the new unit has not yet been 

built, there is no energy reliability 

concern (discussed further below). 

• Air Emissions: EPA expects that 

emissions are significantly less of a 

concern at new units. The condensers 

will be optimized for closed-cycle, 

reducing energy requirements, and highefficiency cooling towers can be 

incorporated into the design of the new 

unit, potentially allowing for smaller 

cooling towers to be installed. Turbine 

backpressure and the associated energy 

penalty can be substantially reduced in 

a new unit, but EPA acknowledges new 

units will still have auxiliary power 

consumption for fans. Therefore energy 

penalties and air emissions for tower 

operations can be minimized (though 

not eliminated). The emissions effects of 

requiring closed-cycle cooling at new 

units at existing facilities is similar to 

the effects of this requirement at new 

facilities and will not pose an 

unacceptable impact. For more 

information, see Chapters 6, 8, and 10 

of the TDD. Further, the new unit is 

likely to be more efficient and emit less 

pollution than existing units, therefore 

net emissions are expected to decrease 

as new units replace older, less efficient 

units. 

• Remaining Useful Plant Life: This is 

clearly not an issue for new units. A 

new unit has its full useful life 

remaining and thus would experience 

the maximum possible reductions in 

adverse environmental impacts 

throughout that useful life. 

EPA does not expect that the 

requirements for new units at existing 

facilities will be a disincentive for 

facilities to repower existing units. The 

requirements only apply to stand-alone 

units. Requirements for entrainment at 

repowered units will thus be 

determined by the Director. EPA notes, 

however, for facilities that do choose to 

repower an existing unit, the costs of 

employing a closed-cycle cooling 

system are not a barrier, as described 

above. In fact, some facilities may find 

closed-cycle cooling to be less costly 

over the long-term. For example, in 

locations with limited water resources 

such that once-through cooling of an 

additional unit is not possible, overall 

reliability will be increased by using 

closed-cycle cooling systems. 

EPA also recognizes that installing 

closed-cycle cooling systems at new 

units is a prevailing trend in industry, 

regardless of the regulatory 

requirements imposed by today’s final 

rule. For example, see DCN 12–6672 in 

the record for today’s rule, and DCNs 2– 

009 and 4–4023C (from the Phase I and 

Phase II dockets, respectively). These 

documents show that, on the basis of 

responses from facilities to the 316(b) 

industry questionnaire, facilities 

constructed in recent years are 

significantly more likely to employ 

closed-cycle cooling. 

EPA recognizes that at some point in 

the future, every unit will be rebuilt, 

replaced or repowered (or retired). EPA 

projects that approximately 227 MW in 

new generating capacity per year, will 

be subject to the new unit provision, 

reflecting the general industry trend 

towards more efficient units. EPA’s 

analysis projects an equivalent number 

of new units at manufacturing facilities 

will be constructed each year. See the 

Phase I rule for more information 


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73As part of the feasibility determination, EPA 

found that the costs associated with the IM 

standards are reasonable for the industry as a 

whole. 

regarding the affordability and barrier to 

entry analysis for new construction. 

EPA notes that the new unit provision 

is an important element of the final rule, 

given the generally long lifespan of 

equipment at industrial facilities. For 

example, generating units at a power 

plant are often projected to have a 50- 

year lifespan. As a result, these facilities 

have a slow rate of ‘‘evolution’’ in 

adopting newer technologies. By 

requiring closed-cycle cooling in new 

units, EPA is ensuring (along with the 

Phase I rule) that no new once-through 

cooling units or facilities will be built. 

E. Option Selection 

After considering all factors identified 

above, EPA has concluded that it should 

base the BTA impingement mortality 

standard for existing units on the 

performance of traveling screens (e.g., 

modified Ristroph screens and 

equivalent modified traveling screens 

with fish-friendly fish returns)—the 

‘‘best technology available’’ for 

minimizing impingement mortality. 

While there are a number of 

technologies that may perform as well 

as or better than traveling screens, these 

technologies were not feasible or 

available on a nationwide basis and thus 

were not the ‘‘best technology available’’ 

for standard setting purposes. Moreover, 

the impingement mortality standard for 

existing units provides a number of 

alternatives, including some of these 

other technologies, for compliance with 

the standard. EPA based the BTA 

impingement mortality standard for 

existing units on the performance of 

traveling screens because EPA 

concluded that this technology is 

effective, widely available, feasible,73

and does not lead to unacceptable nonwater quality impacts. 

As explained above, EPA has not 

identified a technology or combinations 

of technologies that EPA concluded is 

‘‘best technology available’’ for 

minimizing entrainment at existing 

units. EPA did not identify a technology 

for reducing entrainment that is 

effective, widely available, feasible, and 

does not lead to unacceptable non-water 

quality impacts. As such, EPA is unable 

to identify a nationally applicable BTA 

technology on which to base the BTA 

entrainment standard. 

While EPA concluded that closedcycle recirculating systems reduce 

entrainment (and impingement 

mortality) to the greatest extent and are 

the most effective performing 

technology, after careful consideration 

of multiple factors, EPA concluded that 

a closed-cycle recirculating system is 

not the ‘‘best technology available’’ for 

existing units within the meaning of the 

statute. It is not the best technology 

available on a national basis for 

minimizing adverse environmental 

impact and should not form the sole 

basis for the BTA standard for 

entrainment for the reasons explained 

below. 

EPA also determined that there were 

no other ‘‘available’’ technologies for 

entrainment whose performance came 

close to that of closed-cycle 

recirculating systems. Further, while 

reduced intake velocity was a very 

effective control for impingement and 

may also reduce entrainment of some 

life stages of fish and shellfish, it does 

not significantly reduce entrainment of 

eggs and non-motile stages of larvae, 

and it is not physically available in 

many locations. 

EPA has broad discretion in what 

factors it should consider when it 

determines the best technology available 

for minimizing the adverse 

environmental impacts of cooling water 

intake structures. As both the U.S. 

Supreme Court and the Second Circuit 

Court of Appeals have underscored, 

section 316(b) is ‘‘sui generis,’’ in a class 

by itself, unencumbered by ‘‘specified 

statutory factors,’’ Entergy Corp. v. 

Riverkeeper, Inc., 556 U.S. 208, 222 

(2009); Riverkeeper, Inc. v. EPA, 358 F, 

3d 174,187 (2d Cir. 2004). The Second 

Circuit explicitly rejected the argument 

that, because section 316(b) does not 

mention costs or other factors, EPA 

cannot give costs or other factors ‘‘any’’ 

weight in deciding what is the best 

technology. Riverkeeper, Inc., 358 F.3d 

at 195. Furthermore, the Second Circuit 

recognized that EPA may base its 

decision on factors other than the 

effectiveness of a given technology in 

reducing impingement and entrainment 

and that EPA is entitled to deference in 

deciding what weight to give to the 

factors it considers in its BTA 

determination. Riverkeeper, Inc., 358 

F.3d at 196. 

As noted, costs are one factor EPA 

may consider in its BTA determination. 

Here, while EPA did consider costs, 

costs were not a dispositive factor in the 

decision to reject closed-cycle cooling as 

the basis for a uniform national BTA 

entrainment standard. EPA did not 

reject closed-cycle cooling here either 

because it was not economically 

achievable or because the costs of 

closed-cycle would exceed its benefits. 

Instead, EPA rejected closed-cycle 

cooling as the technology basis for a 

uniform national BTA entrainment 

standard based on three factors: Land 

availability, air emissions, and 

remaining useful plant life as explained 

below. 

Central to EPA’s evaluation of the 

availability of closed-cycle as BTA was 

EPA’s new understanding of the 

limitations of technologies other than 

closed-cycle in reducing entrainment. 

This presented EPA with a sharper 

choice than it had in the Phase II rule. 

For today’s rulemaking, EPA took a 

second look at the data it had relied on 

in the Phase II rule, particularly in light 

of new data received since the Phase II 

rule. As a result, EPA learned that 

entrainment exclusion does not 

necessarily equate to entrainment 

survival (76 FR 22185), a key 

underpinning to EPA’s BTA standards 

for entrainment in the remanded Phase 

II rule. 

For the remanded Phase II rule, EPA 

had established national BTA 

performance standards for entrainment 

(and impingement) and included a 

number of different alternative means to 

achieve the standards. First, if a facility 

demonstrated that it could achieve 

reductions in flow associated with 

closed-cycle cooling, the facility met the 

BTA performance standards. 

Alternatively, a facility could 

demonstrate that it met the entrainment 

performance standards by a 

combination of installed technology and 

operational or other measures 

(including restoration measures). See 69 

FR 41590 for a description of the final 

Phase II rule. Critical to EPA’s decision 

to provide an array of choices for 

achieving the national BTA entrainment 

performance standards was a key factual 

conclusion. That conclusion was that a 

number of technologies would achieve 

performance reducing entrainment that 

was ‘‘comparable’’ to that of closedcycle cooling. Consequently, for the 

Phase II rule, EPA established an 

entrainment performance standard of 60 

to 90 percent based on data it reviewed 

for the Phase II rulemaking. See 69 FR 

41598 for information on EPA’s 

rationale for establishing compliance 

alternatives as part of the final rule. 

In the Phase II rule, while EPA looked 

to the performance of closed-cycle as 

the benchmark against which it 

evaluated technologies for the BTA 

standards, EPA did not mandate the 

achievement of flow reductions that 

were in all cases equivalent to closedcycle. Given that the available data 

supported the view that there were 

other much less expensive technologies 

that obtained significant reductions in 

entrainment, EPA was comfortable with 

a BTA standard that required 

achievement of a level of performance 


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74For example, in the case of fossil fuel facilities, 

scrubber controls may already have been required 

to comply with air rules and standards. This may 

reduce available land for closed-cycle. 

75EPRI reported at least 6 percent of sites it 

evaluated were deemed ‘‘infeasible’’ because no 

space was available on which to locate a cooling 

tower. (DCN 10–6951) While EPA does not have 

access to the facility level data, EPRI’s report 

supports EPA’s conclusion that there is significant 

uncertainty around space constraints for facilities to 

install closed-cycle cooling. 

76EPA recognizes that retrofitting closed-cycle 

cooling could be combined with other energy 

efficiency or pollution control technologies with the 

net effect of reducing air emissions; however, 

facilities could (and may be required to under other 

rules) install such technologies anyway, without 

converting to closed-cycle cooling. 

that was generally comparable though 

not equivalent to closed-cycle. 

Since the Phase II rulemaking, EPA 

has received new data and learned that 

its understanding of entrainment 

technology performance was 

incomplete. Following the remand of 

the Phase II rule, EPA reexamined the 

data as well as new information on the 

performance of various entrainment 

control technologies it had previously 

reviewed. As a result, EPA determined 

that its conclusion regarding the 

capability of these other technologies— 

a conclusion on which the Agency had 

based the Phase II BTA performance 

standards—was no longer supported by 

the data EPA had before it. 

There is a second additional 

consideration that further required EPA 

to focus renewed attention on how 

widely available closed-cycle cooling in 

fact was nationally. The Second Circuit 

decision in the Phase II rule removed 

restoration as a compliance option that 

EPA could consider. The decision 

underscored that restoration measures— 

one compliance option included in the 

Phase II rule—were not an available tool 

for complying with any 316(b) standard. 

However, at the time of the Phase II 

promulgation, EPA expected some 

facilities would use restoration in lieu of 

closed-cycle cooling, thus making 

closed-cycle or reductions 

commensurate with closed-cycle 

feasible (76 FR 41609). With the court 

decisions that restoration was not an 

available tool for compliance, 

compliance with a standard based on 

closed-cycle cooling alone is less 

feasible than EPA had expected at the 

time of the Phase II promulgation. 

The changed landscape has narrowed 

markedly EPA’s range of options with 

respect to the technology basis for 

today’s BTA standards. The gap 

between the performance of the most 

effective entrainment reduction 

technologies (closed-cycle) and other 

less expensive technologies has 

widened significantly. EPA’s narrowed 

range of compliance technology choices 

required EPA to look even more closely 

at the feasibility of closed-cycle cooling 

and reduced flow. As the Second Circuit 

has noted, EPA is clearly entitled to 

make its choice among alternative BTA 

technologies based on more factors 

other than just a technology’s 

effectiveness in reducing impingement 

and entrainment. Riverkeeper, Inc., 358 

F.3d at 196. EPA identified three factors 

as significant in its decision to reject 

closed-cycle cooling as the sole 

technology basis for a national BTA 

entrainment standard. The three factors 

that collectively support rejecting 

closed-cycle cooling systems as a 

uniformly applicable BTA for existing 

facilities (except new units) are land 

availability, increased air emissions and 

remaining useful life. 

1. Land Availability and Geographical 

Constraints Could Be a Factor on a Local 

Basis 

While EPA’s record indicated that the 

majority of facilities have adequate 

available land to retrofit to closed-cycle 

cooling, some facilities have land 

constraints.74 While EPA originally 

estimated as many as 23 percent of 

facilities would not have enough 

space,75 it observed on site visits that 

some facilities with a small parcel of 

land could still install closed-cycle 

cooling by using creative engineering 

solutions. On the other hand, EPA 

found that some facilities with large 

acreage could not feasibly install 

cooling towers because of local zoning 

or other local concerns. Thus, existing 

physical space at the facility was not the 

only factor contributing to uncertainty 

about land availability. Further review 

has shown that setback distances to 

mitigate noise and plume abatement 

(based on GPS mapping of residential 

areas) act as an additional constraint on 

land available for retrofitting to closedcycle, and the cost of acquiring new 

land may be prohibitive for some 

facilities. Consequently, EPA estimates 

that 25 percent or more of facilities 

might have one or more constraints on 

land availability that would limit the 

ability to retrofit for cooling towers for 

the entire facility. EPA lacks adequate 

support to indicate that land constraints 

can be accommodated at existing 

facilities. 

EPA also attempted to determine 

criteria based on the data in its record 

that would enable it to define a 

threshold for determining land 

availability on a nationwide basis, but 

was unsuccessful. For example, one 

analysis explored a threshold of 

approximately 160 acres per GW 

(gigawatt) below which a facility could 

not feasibly install cooling towers. 

Based on acres and the footprint of the 

facility and its surroundings (primarily 

those sites for which EPA conducted 

site visits), EPA found such an approach 

did not accurately identify which 

facilities could feasibly install closedcycle. 

2. Increased Air Emissions Could Be a 

Factor on a Local Basis 

As previously discussed, retrofitting 

closed-cycle cooling (without also 

repowering) would result in increased 

air emissions of various pollutants, 

including particulates, sulfur dioxide, 

nitrogen oxides, mercury, and 

greenhouse gases, among others.76 As a 

result of installing closed-cycle cooling 

structures, fossil-fueled facilities would 

need to burn additional fuel, thereby 

emitting additional PM, CO2, SO2, NOX, 

and Hg. Two factors are responsible: (1) 

The need to compensate for energy 

required for operating cooling towers, 

and (2) slightly lower generating 

efficiency attributed to higher turbine 

backpressure when the condenser is not 

replaced with one optimized for closedcycle operation when retrofitting 

existing units (also referred to as the 

energy penalty). While both of these 

factors contribute to increased air 

emissions, the larger contributor to 

projected increased air emissions is by 

far the energy penalty. 

The impact of the increased emissions 

varies according to the local 

circumstances. The increased emissions 

could consist of stack emissions from 

increased fuel usage, cooling tower 

emissions, and plumes of water vapor. 

EPA’s analysis suggested that the most 

significant impacts would be increased 

PM2.5 emissions, which are associated 

directly with an increase in human 

health effects. EPA notes that cooling 

plume abatement and drift elimination 

technologies exist to address cooling 

tower emissions (and EPA included 

costs for such technologies in its 

analysis of Proposal Options 2 and 3). 

Further, EPA expects most effects of the 

particulates from cooling tower 

emissions would be limited to the 

immediate vicinity, confined wholly to 

the facility property. (See DCN 10– 

6954.) Therefore, EPA’s primary 

concern is increased air emissions 

associated with additional fuel usage 

due to the energy penalty when 

retrofitting to cooling towers. EPA’s 

review of emissions data from E–GRID 

(year 2005) suggests that impacts from 

these pollutant discharges could be 

significant. These include the human 

health and welfare and global climate 

change effects—all associated with a 


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variety of pollutants that are emitted 

from fossil fuel combustion. EPA is not 

able to quantify the frequency with 

which facilities could experience these 

local impacts, and therefore has 

concluded that the proper forum to 

address such local impacts fully is in a 

site-specific setting. 

3. Remaining Useful Plant Life Could Be 

a Factor on a Facility Basis 

A number of facilities are nearing the 

end of their useful life. Considering the 

long lead time to plan, design, and 

construct closed-cycle cooling systems, 

EPA determined that the Director 

should have the latitude to consider the 

remaining useful plant life in 

establishing entrainment mortality 

requirements for a facility. The 

remaining useful plant life, along with 

other site-specific information, will 

affect the entrainment reduction of 

closed-cycle cooling at a facility. For 

example, retrofitting to a closed-cycle 

system at a facility that is scheduled to 

close in three years will result in little 

entrainment reduction as compared to 

retrofitting to closed-cycle at a facility 

that will continue to operate for a 

significantly longer period. 

The Decision To Establish a National 

BTA Standard Requiring Site-Specific 

Determination of BTA Entrainment 

Controls 

Once EPA determined that a ‘‘onesize-fits-all’’ approach for entrainment 

for existing units is not generally 

feasible, it is appropriate to assess the 

required controls on a site-specific 

basis. Therefore, for existing units, EPA 

decided to adopt as the BTA 

entrainment standard an overarching 

regulatory framework under which the 

Director will establish BTA entrainment 

requirements on a site-specific basis 

following prescribed procedures and 

applying specified factors for decisionmaking prescribed in the regulation and 

as described below. 

EPA concluded that site-specific 

proceedings are the appropriate forum 

for weighing all relevant considerations 

in establishing BTA entrainment 

requirements. Closed-cycle cooling is 

indisputably the most effective 

technology at reducing entrainment. 

Closed-cycle reduces flows by 95 

percent and entrainment is similarly 

highly reduced. But given that EPA 

estimates that 25 percent of existing 

facilities may face some geographical 

constraints on retrofitting closed-cycle 

cooling and concerns about air 

emissions and the remaining useful life 

of a facility, EPA rejected the option of 

requiring uniform entrainment controls 

based on closed-cycle cooling. Instead, 

EPA elected to adopt as the entrainment 

standard a more flexible process in 

which, following consideration of a host 

of factors, the Director will prescribe 

316(b) entrainment conditions 

appropriate at a particular site. For 

additional discussion on how a sitespecific consideration of entrainment 

control requirements will be 

implemented, see Section VIII below. 

EPA has several reasons for adopting 

the framework approach as the BTA 

standard for entrainment. As explained, 

the record shows that though closedcycle cooling is effective, it is neither 

widely available nor feasible, and has 

significant unacceptable non-water 

quality impacts. While EPA cannot 

identify with precision the extent of 

these limitations on installing closedcycle cooling systems nationwide, the 

record indicates that the circumstances 

are neither isolated nor insignificant. In 

light of this, EPA decided not to 

establish closed-cycle cooling as a 

presumptive BTA entrainment standard, 

pending a site-specific demonstration of 

the limitations. Instead, entrainment 

control requirements will be determined 

in a site-specific setting where the 

opportunity for local input in decisionmaking process will be maximized. 

With regard to new units at existing 

facilities, based on the performance of 

properly operated cooling tower 

operation and the availability, feasibility 

and affordability of closed-cycle cooling 

at new units, EPA selected closed-cycle 

recirculating systems based on wet 

cooling towers as BTA. For a discussion 

of how the three factors (availability, 

feasibility and affordability) relate to 

new units, see Section VI.D.3. 

Consistent with the Phase I rule for new 

facilities, EPA has also included a 

compliance alternative allowing a 

facility to show performance 

comparable to that of a closed-cycle 

recirculating system. The new unit 

provisions in today’s final rule are 

essentially the same as the requirements 

for new facilities under the Phase I rule. 

F. Other Options Considered for Today’s 

Final Regulation 

EPA considered several other options 

for the BTA standards in developing 

today’s rule, but ultimately rejected 

them. This section includes a discussion 

of these options, as well as some 

technologies that EPA considered, but 

did not include as compliance 

alternatives to the impingement 

mortality standards. 

1. Proposal Option 4—Flexible 

Impingement Mortality Controls Similar 

to Final Rule at Existing Facilities With 

DIF of 50 mgd or More; BPJ Permits for 

Impingement Mortality and Entrainment 

at Existing Facilities With Design Intake 

Flow Between 2 mgd and 50 mgd; SiteSpecific Entrainment Standard for 

Existing Facilities With DIF of 50 mgd 

or More; and Uniform Impingement 

Mortality and Entrainment Controls for 

All New Units at Existing Facilities 

Similar to Final Rule 

At proposal, EPA’s preferred option 

was Option 1, which was the option 

closest to today’s final rule, and the 

starting point for the description of the 

changes to the rule in Section V above. 

At proposal, EPA also considered a 

variant of Option 1, called Option 4, 

which changed the impingement 

mortality requirements for facilities 

under 50 mgd from the performance 

standard in Option 1 to BTA as 

determined by best professional 

judgment. In the case of an existing 

facility below 50 mgd that added a new 

unit, the flow associated with the new 

unit would have been subject to the 

uniform entrainment requirements 

based on closed-cycle cooling. Finally, 

all existing facilities withdrawing more 

than 2 mgd of DIF would have been 

subject to entrainment requirements 

established on a site-specific basis, with 

the exception noted above for new 

units. The option analyzed here, called 

Proposal Option 4, is likewise similar to 

the final rule, but for the impingement 

standard based on BPJ for facilities 

between 2 and 50 mgd. 

EPA ultimately rejected Proposal 

Option 4 because EPA found that the 

technologies on which the impingement 

mortality performance standard of 

today’s final rule is based are available, 

feasible, demonstrated, and affordable 

for all regulated facilities on a national 

basis. Moreover, EPA’s analysis showed 

that the difference in the total costs for 

the two options was nominal. 

Additionally, EPA notes that many 

facilities with a DIF under 50 mgd 

already use closed-cycle cooling and 

would have minimal burden under the 

final rule. These facilities would have 

no difficulty complying with the 

requirements EPA is establishing in 

today’s final rule. Proposal Option 4, by 

not distinguishing between those 

facilities under 50 mgd that have 

already minimized adverse 

environmental impacts from those that 

have not, masks the actions that would 

have to be taken by the latter group to 

comply with today’s final rule. In 

addition, the flexibilities introduced in 

the June 11, 2012 NODA and included 


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in today’s final rule applied to all 

facilities, rather than taking the Option 

4 approach at proposal of providing for 

more Director discretion for only the 

smaller withdrawing facilities. EPA also 

concluded that the data collection 

activities required under the final rule 

will be more protective of threatened 

and endangered species because they 

provide information on a larger number 

of facilities than Proposal Option 4 for 

consideration by the Director in 

permitting decisions. Lastly, EPA 

acknowledges that Proposal Option 4 is 

more burdensome to permitting 

authorities than is the final rule, as it 

requires more case-by-case decision 

making. 

2. Proposal Option 2—Flexible 

Impingement Mortality Controls Similar 

to Final Rule at All Existing Facilities 

That Withdraw Over 2 mgd DIF; SiteSpecific Entrainment Standard for 

Existing Facilities With DIF at or Below 

125 mgd; Require Flow Reduction 

Commensurate With Closed-Cycle 

Cooling by Facilities Greater Than 125 

mgd DIF; and Uniform Impingement 

Mortality and Entrainment Controls for 

All New Units at Existing Facilities 

As previously explained, EPA 

assessed a number of different 

technologies that reduce impingement 

mortality and entrainment as the 

possible basis for section 316(b) 

requirements. EPA concluded that 

closed-cycle recirculating systems 

(based on wet cooling towers) are the 

most effective technology for reducing 

impingement mortality and 

entrainment. Notwithstanding that 

conclusion, EPA has decided not to 

establish a performance standard for 

impingement and entrainment based on 

closed-cycle recirculating systems for 

existing facilities. Furthermore, EPA 

found that there are no other effective 

technologies for entrainment that are 

available nationally. As described 

previously, each of the three factors for 

rejecting closed-cycle cooling as BTA 

for entrainment would also apply in the 

case of Proposal Option 2, despite the 

smaller number of facilities that would 

be subject to a requirement to retrofit. 

The technology basis for entrainment 

mortality controls for facilities greater 

than 125 mgd DIF under this option 

would have been wet cooling systems. 

The constraints discussed above that are 

associated with retrofitting a large 

portion of the universe of affected 

facilities, led EPA to conclude that 

requiring closed-cycle cooling on a 

uniform basis scale was not appropriate 

for a national regulation. 

EPA notes that it proposed multiple 

options that included closed-cycle, and 

solicited comment on all aspects of 

closed-cycle cooling. After fully 

considering all comments and data, EPA 

still finds closed-cycle cooling is not the 

‘‘best technology available for 

minimizing adverse environmental 

impact’’ required by section 316(b). 

Because of a combination of concerns 

over feasibility/availability, air 

emissions, and remaining useful life of 

the facility, EPA has rejected closedcycle recirculating systems as the basis 

for national impingement and/or 

entrainment controls. Nor is EPA able to 

identify a subcategory for which these 

concerns no longer apply. Moreover, the 

complex interaction of all of these 

factors at individual sites does not lend 

itself to other regulatory options that 

would require closed-cycle recirculating 

systems with an ‘‘off ramp’’ if any of the 

factors were shown to result in 

unacceptable impacts because this 

would create a presumption for closedcycle cooling rather than an equal 

balancing of all relevant factors. EPA 

decided not to establish any 

presumptive BTA entrainment outcome. 

EPA finds the entrainment standards 

framework in today’s final rule will 

provide a consistent, more efficient, and 

more effective approach than standards 

with an ‘‘off ramp.’’ 

3. Proposal Option 3—Flexible 

Impingement Mortality Controls at All 

Existing Facilities That Withdraw Over 

2 mgd DIF; Require Flow Reduction 

Commensurate With Closed-Cycle 

Cooling at All Existing Facilities Over 2 

mgd DIF 

Proposal Option 3 was, in many ways, 

the same as requiring closed-cycle 

cooling at all existing facilities. As 

described above, each of the three 

factors for rejecting closed-cycle cooling 

as BTA for entrainment would apply 

with equal force for Proposal Option 3. 

As a result, EPA has concluded Proposal 

Option 3, similarly, is not appropriate as 

BTA for entrainment. 

4. Proposal Option 4 Variant 

EPA also considered a variant of 

Proposal Option 4. As compared to 

Proposal Option 4, this variant did not 

include flexible alternatives for 

complying with the BTA impingement 

mortality standards (including preapproved and streamlined alternatives), 

but did adopt the 50 mgd threshold to 

determine those facilities for which the 

Director has more discretion in 

determining BTA via BPJ. EPA analyzed 

this option to directly compare the 

effects of introducing flexible IM 

compliance alternatives at all facilities 

(as the final rule does) to the effects of 

introducing greater Director discretion 

for a subset of facilities, via BPJ 

permitting (as the Proposal Option 4 

variant does). The preferred option at 

proposal, Option 1, was estimated to be 

more costly than Option 4 (Option 1 

was estimated to cost $384 annually as 

compared with $327 million annually 

for Option 4). Under the analysis 

supporting the final rule the EPA is 

adopting today, however, today’s final 

rule is estimated to cost $275 million 

annually in comparison with an 

estimated cost of $284 million annually 

for the Proposal Option 4 variant. Thus, 

EPA has concluded that providing 

flexible alternatives for compliance with 

the BTA IM standard at all facilities is 

both more effective at reducing costs to 

society and more readily justified as 

best technology available as compared 

to the approach of introducing greater 

Director discretion for only a subset of 

facilities (below 50 mgd). Hence, EPA 

rejected the Proposal Option 4 variant, 

and the approach of introducing greater 

Director discretion for only a subset of 

facilities (below 50 mgd). 

5. Proposal Option 2 Variant 

EPA also considered a variation of 

Proposal Option 2 that would have used 

125 mgd AIF rather than 125 mgd DIF 

as the threshold. However, as described 

above, EPA rejected Proposal Option 2 

and, for the same reasons, rejected this 

variant of Option 2. 

6. Site-Specific Approach To 

Addressing Impingement 

Many commenters (primarily from 

manufacturing facilities) commented 

that EPA should adopt a site-specific 

approach to addressing impingement 

mortality, similar to that employed for 

entrainment. As a result, EPA also 

considered an approach that would 

have established both impingement 

mortality and entrainment requirements 

fully on a site-specific basis taking into 

account for the particular facility, 

among other factors, those previously 

described as pertinent to EPA’s 316(b) 

BTA determination. EPA rejected a fully 

site-specific approach for impingement 

controls principally because low-cost 

technologies for impingement mortality 

are available, feasible, demonstrated, 

and affordable for facilities nationally. 

Because technologies are available, a 

fully site-specific approach would place 

an unnecessary additional burden on 

state permitting resources. Moreover, 

the final impingement mortality 

standard includes several alternatives 

that allow site-specific demonstration 

that a particular technology performs at 

a level representing the best technology 

available for the site. EPA is instead 

promulgating a modified version of the 


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proposed rule, adding several elements 

of flexibility (i.e., compliance 

alternatives), and thus directly 

addressing many of the concerns raised 

by these commenters. 

7. Pre-Approved Technologies 

Many commenters requested that EPA 

pre-approve technologies that, once 

installed, would obviate the need for 

further regulatory conditions such as 

periodic monitoring. This is similar to 

the approach taken for cylindrical 

wedgewire screens in the remanded 

2004 Phase II rule (see 69 FR 41693). 

EPA has adopted, in significant 

measure, commenters’ suggestion in the 

BTA impingement mortality standard in 

today’s rule by including several preapproved and several streamlined 

compliance alternatives in the form of 

technologies that may be approved 

following a demonstration of required 

performance, so long as the facility 

shows that its alternative technology is 

operating in a manner that minimizes 

adverse environmental impacts. As an 

option for achieving the impingement 

mortality standards, a facility may 

install and operate specified 

impingement controls whose 

performance is comparable to or better 

than the technology EPA concluded was 

the ‘‘best technology available’’ for 

impingement mortality reductions: 

• Closed-cycle recirculating systems, 

defined at § 125.92(c) 

• Existing offshore velocity caps, 

defined at § 125.92(v) 

• Technologies that result in a design 

intake velocity less than or equal to 

0.5 fps, including most modern 

cylindrical wedgewire screens 

Although this rule leaves the BTA 

entrainment determination to the 

Director, with the possible BTA 

decisions ranging from no additional 

controls to closed-cycle recirculating 

systems plus additional controls as 

warranted, EPA expects that the 

Director, in the site-specific permitting 

proceeding, will determine that 

facilities with properly operated closedcycle recirculating systems do not 

require additional entrainment 

reduction control measures. Refer to 

Section E.1 for the EPA’s rationale for 

selecting these controls. 

G. Final Rule BTA Performance 

Standards 

The rule establishes the following 

BTA standards for Impingement 

Mortality and Entrainment: 

Impingement Mortality Standards at All 

Existing Units at Existing Facilities that 

withdraw greater than 2 mgd DIF; an 

Entrainment Standard that requires sitespecific entrainment controls 

determined by the Director for Existing 

Units at Existing Facilities that 

withdraw over 2 mgd DIF; BTA 

standards for impingement mortality 

and entrainment for new units at 

existing facilities. The previous section 

described the other options that EPA 

considered but ultimately rejected, and 

the basis for those decisions. 

1. Impingement Mortality Controls for 

Existing Units at Existing Facilities for 

the Final Rule 

Today’s final rule provides a facility 

a number of alternatives for complying 

with the BTA impingement mortality 

standard. As discussed more below, 

EPA’s BTA impingement mortality 

standard is based on EPA’s conclusion 

that, on a national basis, modified 

traveling screens with fish-friendly 

return systems are the best performing 

technology available for impingement 

mortality reduction. But EPA is not 

requiring compliance with the BTA 

impingement mortality standards only 

through monitoring data that 

demonstrates achievement of the 

numeric reduction in mortality levels 

that EPA has determined well-operated 

modified traveling screen will achieve. 

Rather, the final rule allows facilities to 

comply by employing any of seven 

alternatives, including monitored 

compliance with a numeric 

impingement mortality performance 

standard. 

Based on its review of available data 

and information submitted by 

commenters, EPA identified a number 

of other technologies and operational 

measures that could achieve equivalent, 

or better, performance to the 

impingement mortality reductions 

achieved with modified traveling 

screens that may be available for some 

sites. Thus, the final rule provides seven 

alternatives for complying with the BTA 

impingement mortality standards. These 

include three compliance paths based 

on pre-approved technologies, and three 

compliance paths that offer a 

streamlined approach to compliance. 

EPA expects the majority of facilities 

will use one of these six options to 

comply with the BTA impingement 

mortality standards (see Exhibit VIII–1 

for more information). 

The following pre-approved 

technologies will comply with today’s 

rule and are associated with minimal 

monitoring and reporting of operational 

and/or design parameters. These 

technologies are (the numbering reflects 

the numbering in § 125.94(c)): Operating 

(1) a closed-cycle recirculating system; 

(2) a cooling water intake structure that 

EPA or the State NPDES permitting 

authority determines has a design 

maximum through-screen intake 

velocity of 0.5 feet per second; or (4) an 

existing offshore velocity cap. The 

general intent behind a compliance path 

based on a pre-approved technology is 

to provide a level of certainty to the 

regulated entity that they would be 

deemed compliant with the relevant 

rule requirements by designing, 

installing, and operating the technology 

as specified in the regulation. The three 

pre-approved compliance alternatives 

are each based on a particular 

technology approach. The permit for 

each compliance alternative will 

necessarily include criteria, design 

standards, and operational conditions 

specific to the pre-approved technology. 

The compliance paths based on preapproved technologies in today’s final 

rule include simplified permit 

application requirements (such as 

reduced or minimal study), 

documentation, or reduced monitoring, 

and will therefore result in greatly 

simplified implementation. In today’s 

final rule, there are no biological 

compliance monitoring requirements for 

any of the three compliance paths based 

on pre-approved technologies. 

Under the streamlined alternatives, a 

facility must demonstrate to the Director 

that traveling screens or some 

combination of technology controls or 

operational measures represent BTA 

performance under the conditions at the 

site. The three streamlined compliance 

alternatives are (the numbering reflects 

the numbering in § 125.94(c)) operating 

(3) a cooling water intake structure that 

EPA or the State NPDES permitting 

authority determines has an actual 

maximum through-screen intake 

velocity of 0.5 feet per second; (5) 

modified traveling screens whose 

demonstrated performance represents 

the best technology available for 

impingement reduction at the site; or (6) 

a system or combination of technologies 

or operational measures whose 

demonstrated performance is the best 

technology available for impingement 

reduction at the site. In order to 

demonstrate BTA performance, a facility 

will need to conduct a two-year sitespecific study at the same time it 

conducts its source water 

characterization and Entrainment 

Characterization Study. This study must 

demonstrate that its modified traveling 

screens, or combination of technology 

controls and operational measures, have 

been adjusted and optimized so as to 

minimize impingement mortality. If the 

Director concludes that the facility has 

demonstrated optimized performance 

for its controls, the facility will have no 


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77The littoral zone extends from the shoreline to 

roughly the edge of the continental shelf. 

subsequent biological monitoring and 

reporting requirements as compared to a 

facility that complies using the 

impingement mortality performance 

standard. If the screens or other 

measures are not already installed, the 

Director may approve postponing the 

two-year study to be conducted after the 

entrainment determination has been 

made. These three streamlined 

compliance alternatives are based on a 

technology or suite of technologies and 

practices with more variable 

performance, and as such necessitate 

some degree of study, in order to 

optimize technology performance for 

the site-specific conditions encountered 

by a facility. A streamlined compliance 

alternative may require some level of 

monitoring, but once the optimal 

performance of the technology has been 

identified, conditions included in the 

permit specifying optimal operation 

ensure that the streamlined alternative 

is similar to or better than the 

impingement mortality performance 

standard. For example, the streamlined 

compliance alternatives also do not 

require biological compliance 

monitoring. 

The seventh alternative (at 

§ 125.94(c)(7)) for complying with the 

BTA impingement mortality standards 

requires the owner or operator to 

demonstrate compliance with the 

numeric impingement mortality 

performance standard through 

biological monitoring. Under this 

alternative, the owner or operator has 

the flexibility to choose any technology, 

including a new or innovative 

technology, provided the compliance 

monitoring demonstrates the 

performance standard is achieved. 

Each of these seven alternatives is 

further described below. In addition, 

further discussion of how each of these 

alternatives will be implemented may 

be found in Section VIII. 

a. Closed-Cycle Recirculating Systems 

As described above, in Chapter 6 of 

the TDD, and in prior rulemakings, EPA 

has long recognized the benefits of flow 

reduction from closed-cycle 

recirculating systems for reducing 

impingement (as well as entrainment). 

A facility employing a closed-cycle 

recirculating system will typically 

reduce impingement by more than 95 

percent. As a result, a facility may 

choose to comply with the BTA 

impingement mortality standards in 

today’s final rule by demonstrating that 

it uses a properly operated and 

maintained closed-cycle recirculating 

system. 

EPA estimates that approximately 18 

percent of intake structures (i.e., those 

that already have an existing closedcycle recirculating system, plus 

facilities located in California and New 

York, whose State regulations are at 

least as stringent as the final rule) will 

choose this alternative. 

EPA does not have the data to 

determine precisely which 

impoundments are serving as part of a 

closed-cycle recirculating system as 

defined at 40 CFR 125.92(c)(2). 

However, EPA is aware that some 

facilities have created their 

impoundments in a water of the U.S. as 

part of their cooling system. EPA does 

not intend to eliminate the use of such 

lawfully created impoundments for 

their intended purpose, as doing so 

could result in a large number of 

stranded assets. If the cooling system 

with the impoundment minimizes the 

withdrawal of make-up water for 

cooling purposes, the Director may 

determine the cooling system meets the 

definition of a closed-cycle recirculating 

system. 

b. Reduced Intake Velocity 

EPA has long recognized the 

relationship between impingement and 

intake velocity. EPA conducted an 

analysis of fish swim speeds in the 

Phase I rule (see 66 FR 65274, December 

18, 2001) and concluded that a design 

through-screen velocity of 0.5 fps is 

protective of 96 percent of motile 

organisms. However, EPA did not select 

intake velocity as the technology basis 

for the BTA impingement mortality 

standards. Although the performance of 

0.5 fps intake velocity achieves greater 

reduction in impingement mortality 

than the technology on which the BTA 

impingement mortality standards are 

based, reducing a facility’s intake 

velocity is not widely available or 

feasible for all existing facilities (see 

Chapter 6 of the TDD). 

EPA is including reductions in intake 

velocity as an alternative for complying 

with the BTA impingement mortality 

standards through reduced intake 

velocity. A facility choosing this 

alternative must demonstrate that (1) the 

through-screen design velocity could 

not exceed 0.5 fps or (2) the actual 

intake velocity does not exceed 0.5 fps. 

EPA estimates that approximately 34 

percent of intake structures will choose 

this alternative. This estimate includes 

facilities that have an existing intake 

velocity of 0.5 fps or less, plus those 

facilities that are projected to install a 

technology that would reduce their 

intake velocity (larger intake, wedgewire 

screens, or variable speed pumps). 

i. Design Intake Flow Basis 

Consistent with EPA’s determination 

in its earlier 316(b) regulatory efforts, 

the final rule allows a facility to comply 

with the BTA impingement mortality 

standards by demonstrating that its 

intake has a maximum through-screen 

design velocity of 0.5 fps. EPA 

concluded that facility’s operating at 

this through-screen design velocity will 

protect the vast majority of impingeable 

aquatic organisms. Facilities choosing to 

comply with the BTA impingement 

mortality standards may not average 

velocity across multiple intakes at a 

facility. 

ii. Actual Intake Flow Basis 

EPA is also adopting a provision to 

allow facilities to demonstrate that the 

through-screen intake velocity at an 

intake structure does not exceed 0.5 fps 

on the basis of the intake’s actual flow. 

(Again, note that facilities choosing this 

compliance alternative may not average 

intake velocity across multiple intakes.) 

In contrast to design flow above, a 

facility with an intake having a design 

through-screen intake velocity greater 

than 0.5 fps may be operated at a 

reduced capacity and therefore may 

withdraw cooling water at a velocity 

less than 0.5 fps. As long as the actual 

intake flow is such that the velocity 

remains at or below 0.5 fps, the 

reductions in impingement (and 

subsequently, impingement mortality) 

remain the same as a facility with a 

maximum design through-screen intake 

velocity of 0.5 fps. As described below, 

a facility will be required to monitor its 

intake flow and report this data to the 

Director to verify that intake flows do 

not exceed 0.5 fps. This approach also 

permits the Director to allow brief 

periods where the intake velocity will 

exceed 0.5 fps under extreme 

conditions. 

c. Existing Offshore Velocity Caps 

A number of commenters stated that 

EPA should consider existing offshore 

intakes fitted with velocity caps to be 

pre-approved and complying with the 

BTA impingement mortality standards. 

Locating submerged intakes in the 

deeper regions of larger waterbodies 

(particularly outside the littoral zone 77) 

has the potential to reduce both 

impingement and entrainment (I&E), 

due to the lower densities of aquatic 

organisms as compared to a shorelinebased intake. EPA has identified 11 

facilities with offshore velocity caps, 

and reviewed a number of studies 

documenting the performance of these 


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78An existing facility may also choose to install 

a new offshore intake with a velocity cap, but such 

a facility would not automatically qualify as 

meeting the impingement requirements for the final 

rule. Such a facility would need to demonstrate 

equivalent performance to the impingement 

mortality performance standard. 79A velocity cap must also include bar racks or 

other devices to exclude large marine organisms 

(e.g., seals, turtles) from entering the intake 

structure. 

80EPA’s technical survey found that 93 percent 

of electric generators and 73 percent of 

manufacturers already use screens, the majority of 

which are traveling screens. 

81While EPA’s data shows 73 to 93 percent of 

facilities already use traveling screens, EPA notes 

that many facilities use more than one technology. 

For example, some of these facilities also have a 

low intake velocity, an offshore velocity cap, or 

cooling towers. EPA expects facilities will choose 

the IM compliance alternative corresponding to 

these pre-approved technologies before they will 

choose to comply via optimized performance of 

their traveling screens. 

facilities. These studies show that the 

impingement reduction performance of 

intakes submerged far offshore with 

velocity caps is dependent on sitespecific conditions. The data show that 

solely locating an intake far offshore 

(i.e., without also employing a velocity 

cap) achieves a 60 to 73 percent 

reduction in impingement, and 

therefore does not achieve impingement 

mortality reduction comparable to that 

of well-operated modified traveling 

screens. Similarly, the data also show 

that velocity caps alone achieve a 50 to 

97 percent reduction in impingement, 

and therefore could result in 

compliance performance comparable to 

or better than modified traveling screens 

in some, but not in all cases. However, 

the combination of an existing intake 

located far offshore (i.e., approximately 

850 feet, as identified in the data for 

Nine Mile Unit 1 and Oswego Unit 5) in 

combination with use of a velocity cap 

will result in performance that exceeds 

the 12-month average impingement 

mortality performance standard 

(alternative seven described above).78 79

Because there is some amount of 

uncertainty in measuring distances from 

a shoreline, including but not limited to 

due to variations in water levels, storm 

swells, or tidal excursions, EPA has set 

the minimum distance offshore at 800 

feet. As a result, the final rule at 

§ 122.95(c)(4) allows a facility to comply 

with the BTA impingement mortality 

standards with an existing offshore 

intake with an existing velocity cap 

located at least 800 feet offshore, based 

on the performance data from the 11 

identified facilities. 

As noted above, the record shows all 

existing facilities with a velocity cap 

located at least 800 feet offshore will 

meet or exceed the 12-month average 

mortality performance standard of 

§ 125.94(c)(7). EPA does not have data 

showing velocity caps located at lesser 

distances offshore will consistently 

achieve the impingement mortality 

performance standards, but is aware that 

some facilities may be able to achieve 

the impingement mortality standards 

through a combination of technologies 

that includes an offshore location. For 

example, the Office of Naval Research 

states that the littoral zone in ocean 

environments generally extends from 

the shore to 600 ft out in the water (ONR 

2013). SEAMAP data in EPA’s record 

shows installing the intake to depths 

where there is a lower concentration of 

living organisms (i.e., at least 65 feet) is 

also expected to decrease environmental 

impacts associated with intake 

operations. Therefore, the final rule 

allows facilities with intake structures at 

significant distances offshore to 

demonstrate the performance of their 

technology under § 122.95(c)(6), as 

further discussed below. 

In addition facilities may opt to 

construct an offshore velocity cap at 

new locations. In those circumstances, 

the facility will need to demonstrate 

that theperformance of its velocity caps 

is the best technology available for 

impingement reduction under the 

alternative found at § 122.95(c)(6). For 

more information, see DCN 12–6601. 

EPA estimates that approximately 1 

percent of intake structures (i.e., those 

with an existing velocity cap meeting 

the definition at § 125.92(v) will choose 

this alternative. 

d. Install Modified Traveling Screens 

In the June 11, 2012 NODA, EPA 

discussed a streamlined compliance 

option that would provide facilities 

with a less burdensome alternative than 

the proposed rule. In the final rule, EPA 

has included an option at § 125.95(c)(5) 

for facilities that install traveling 

screens—the technology that forms the 

basis for the numeric IM performance 

standards. Under this option, the facility 

must demonstrate to the Director that it 

will install and operate modified 

traveling screens as defined at 

§ 125.92(s) that are or will be optimized 

to minimize IM mortality at the site. The 

facility will also be required to submit 

an impingement technology 

performance optimization study 

(§ 122.21(r)(6)) which will include a 2- 

year optimization study for the intake 

technology. The facility will conduct 2 

years of monthly impingement data 

collection, during which the facility will 

seek to optimize the technology 

performance to minimize impingement 

mortality. This study is intended to 

determine the optimal configuration and 

operating conditions of modified 

traveling screens and the fish handling 

and return systems for that intake to be 

consistently protective of aquatic 

organisms. During the course of the 

study, EPA expects that a facility will 

evaluate the interim results and make 

changes to the technology or operating 

conditions as needed to identify the 

most appropriate set of operational 

characteristics to ensure long-term 

success. For example, a facility could 

adjust the spray wash pressure, adjust 

the rotating speed of the screens, rotate 

the screens more frequently, re-angle the 

fish sluicing sprays, ensure adequate 

water in the return flume, design the 

fish return to avoid avian and animal 

predation on the aquatic organisms, and 

locate the fish return in such a way to 

avoid predation. Once a facility has 

optimized its technology performance, 

the study will identify operational 

measures that will serve as observable 

and enforceable permit conditions. As 

evidenced by the data used in 

determining the performance standard, 

by requiring facilities to study the 

conditions for optimized performance, 

many facilities will achieve 

impingement mortality reductions much 

greater than the 12-month average 

impingement mortality performance 

standard without significant additional 

investment. Biological data collection 

beyond this two-year study will not be 

required. The facility will simply be 

required to ensure that it is operating its 

technology under the identified 

conditions for optimized performance. If 

the Director concludes that the screens 

will achieve optimized performance, the 

Director will also incorporate operating 

conditions to ensure optimized 

performance as terms of the facility’s 

NPDES permit. 

As discussed in the NODA and 

Chapter 4 of TDD, EPA’s data indicate 

that most facilities employ traveling 

screens.80 EPA anticipates that, as a 

result, many facilities will view the 

streamlined screen-based compliance 

route as a logical choice for complying 

with the final rule. The streamlined 

option provides an opportunity for a 

large number of the affected facilities 

(i.e., those that do not meet the criteria 

for the other compliance technologies) 

to demonstrate that their intakes are 

effectively reducing impingement 

mortality while significantly reducing 

the burden on both facilities and 

regulatory agencies. EPA estimates that 

approximately 30 percent of intake 

structures will choose this alternative.81

EPA is aware that some facilities have 

no technologies installed and will 

choose to install modified traveling 

screens, and further that some facilities 


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82For example, anadromous clupieds such as 

alewife, blueback herring, and American shad have 

demonstrated avoidance behaviors when exposed to 

high frequency sound. Deployments of this 

technology at Entergy’s FitzPatrick Nuclear Station 

on Lake Ontario have resulted in a reduction of over 

90 percent in impingement of alewife. In this case, 

EPA expects the Director would determine that 

impingement requirements regarding alewife have 

been addressed by the acoustical deterrent. The 

Director could disallow such a technology if it were 

deemed to have a negative effect on threatened or 

endangered species whose habitat includes the 

facility’s intake location. 

with traveling screens will choose to 

either retrofit to modified traveling 

screens with fish handling and returns. 

Obviously, the impingement technology 

performance optimization study cannot 

be undertaken until the technology is 

first installed. In this case the NPDES 

permit would be issued before the 

completion of the optimization study. 

EPA expects a permit will be issued that 

includes a schedule for both the 

technology installation and the required 

optimization study. As discussed 

earlier, the Director can establish 

interim measures as appropriate (40 

CFR 125.94(b)). 

e. System of Technologies as the BTA 

for Impingement Mortality 

EPA recognizes that cooling water 

intake structures have a variety of 

configurations and facilities may choose 

to comply with the final rule by using 

more than one of the compliance 

approaches outlined above. In the June 

11, 2012, NODA, EPA described an 

approach where facilities would be able 

to demonstrate ‘‘credit’’ toward meeting 

the impingement mortality requirements 

by reducing the total number of 

organisms impinged. EPA also intended 

for facilities to have the flexibility to 

employ any system of technologies or 

combination of operational measures to 

address impingement mortality so long 

as the performance of the selected 

impingement reduction measures 

represented the best technology 

available for the site. The final rule 

includes an alternative reflecting these 

objectives. 

In the broadest sense, facilities have a 

number of options for reducing 

impingement mortality. Some may 

choose to comply using an approach 

where a single technology achieves the 

level of compliance necessary. Others 

may choose an approach of employing 

multiple technologies or operational 

measures, including reducing the 

number of organisms that are impinged 

or susceptible to being impinged. The 

following are examples of approaches 

for which a facility might be able to take 

credit for impingement reduction under 

this alternative: 

• Partial closed-cycle cooling 

• Variable speed pumps 

• Seasonal outages (including standard 

maintenance outages that are 

specifically scheduled to avoid a 

biologically sensitive period) 

• Certain impingement technologies 

that reduce the number of organisms 

exposed to the intake structure (e.g., 

diversions, louvers, barrier nets) 

• Intake location 

• Behavioral technologies (e.g., light or 

sound barriers) 82

In each case, the technology 

employed reduces the number of 

organisms that potentially are impinged, 

resulting in a reduction in the number 

of organisms actually impinged (i.e., a 

reduction in the rate of impingement). 

By virtue of reducing the actual 

impingement, mortality caused by 

impingement is no longer a 

consideration—an organism that is 

never impinged cannot be killed by the 

intake structure. Some technologies 

work to reduce the intake flow, thereby 

reducing the potential organisms 

exposed to the intake. Others work to 

divert organisms away from the screens, 

either through a physical exclusion or 

by being placed in a less biologically 

productive area. EPA concluded that it 

is appropriate to recognize these 

reductions in impingement as a step in 

achieving a BTA impingement mortality 

reduction performance at a particular 

site. As a result, EPA expects the 

reduction in impingement will be 

treated as an equivalent reduction in 

impingement mortality, and will 

therefore be considered by EPA or the 

State NPDES permitting authority in 

evaluating whether the chosen 

technologies and operational measures 

represent BTA performance under the 

site’s conditions. For example, an intake 

that operates infrequently due to the 

infrequent operation of the electric 

generating unit(s) it serves (such as a 

peaking unit) may use a relatively small 

amount of water on an annual basis 

when compared to the design capacity 

of the intake structure. This facility may 

choose to comply with the impingement 

mortality standard at § 125.94(c)(6) by 

demonstrating to the Director that the 

facility operates at an annual intake 

flow that is less than or equal to 24 

percent of its design intake flow on an 

annual basis. This level of flow 

reduction could achieve a level of 

performance equivalent to or better than 

the impingement mortality performance 

standard in § 125.94(c)(7), and therefore 

could be considered to be compliant 

with the requirements of today’s final 

rule. This demonstration may include 

design data, several years of past 

operating data, and dispatch modeling. 

These operating conditions would then 

be incorporated into the NPDES permit. 

A facility complying under this part, 

must submit a impingement technology 

performance optimization study, which 

must include the calculated percent 

impingement mortality reflecting 

optimized operation of the system of 

technologies, operational measures, and 

best management practices and all 

supporting calculations. Total system 

performance is the combination of 

impingement mortality performance 

reflected in all of the following which 

apply: 

• Rate of impingement—The 

estimated reductions in rate of 

impingement must be based on a 

comparison of the system to a oncethrough cooling system with a traveling 

screen whose point of withdrawal from 

the surface water source is located at the 

shoreline of the source waterbody. For 

impoundments that include waters of 

the United States, the facility’s rate of 

impingement must be measured at a 

location within the cooling water intake 

system that the Director deems 

appropriate. 

• Impingement mortality—If the 

demonstration relies in part on a credit 

for reductions in impingement mortality 

already obtained at the facility, two 

years of biological data collection must 

be provided, demonstrating the level of 

impingement mortality the system is 

capable of achieving. 

• Flow reduction—If the 

demonstration relies in part on flow 

reduction to reduce impingement, the 

data must include two years of intake 

flows, measured daily, as part of the 

demonstration. This must include 

documentation of how the flow 

reduction results in reduced 

impingement. 

The permitting authorities would 

consider this information shown in the 

two-year impingement technology 

performance optimization study that 

must be submitted under this 

alternative. For example, at facilities 

choosing to comply by demonstrating 

that they are operating below 24 percent 

of their intake capacity, or that they are 

peaking units, the Director should use 

this study to establish operating 

conditions that ensure that the intake 

continues to operate below 24 percent of 

its intake capacity or continues to serve 

only peaking units and that these units 

are not later used as intermediate or 

baseload units. The operating 

conditions and parameters identified in 

the study will then be incorporated in 

the facility’s permit conditions. EPA 

estimates that approximately 17 percent 


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of intake structures will choose this 

alternative. 

f. Comply With the Numeric 

Impingement Mortality Performance 

Standard 

Facilities complying with the BTA 

impingement mortality standard by 

achieving the numeric performance 

standard at § 125.94(c)(7) will perform 

monthly compliance monitoring to 

verify that the 12 month percent 

impingement mortality resulting from 

operation of its intake is below the 

standard established in today’s final 

rule. (For more details on complying 

with the impingement requirements, see 

Section VIII.) EPA expects that, save for 

future technologies or innovations, few 

facilities will avail themselves of this 

option. 

2. Entrainment Controls for Existing 

Units at Existing Facilities 

The BTA entrainment standard for the 

final rule establishes a framework under 

which EPA or the State NPDES 

permitting authority must establish sitespecific BTA entrainment requirements 

for each facility in the scope of today’s 

rule. EPA considered promulgating no 

further controls to address entrainment 

mortality, and to rely instead only on 

the BTA impingement mortality 

controls, which would achieve up to a 

34 percent reduction in total AEI. EPA 

did not select this option as the basis for 

national BTA because, in EPA’s view, 

some facilities either are having a 

significant impact as a result of 

entrainment or might be able to do more 

to control entrainment at costs that are 

low relative to benefits. In addition, 

EPA’s data on entrainment at facilities 

are not sufficient to allow the Agency to 

categorize facilities requiring no 

additional controls for entrainment. 

Thus, the final rule by requiring 

prescribed information in the permit 

application will provide the Director 

with adequate information for decision 

making. Requiring a structured sitespecific analysis of candidate BTA 

technologies for entrainment control 

will allow the Director to determine 

where it is appropriate to require such 

controls. One outcome of the sitespecific analysis could be that the 

Director would determine that no other 

technologies beyond impingement 

controls are required for BTA 

entrainment reductions, either because 

they are not feasible or because the 

social costs of additional control 

measures are not justified by the social 

benefits. 

In the case of site-specific 

entrainment controls for facilities 

withdrawing greater than 125 mgd AIF, 

the final rule requires facilities to also 

develop and submit an Entrainment 

Characterization Study and related 

supporting information, as described in 

§ 122.21(r)(9)–(13) of today’s rule, for 

use by the Director in establishing sitespecific BTA. For facilities above 125 

mgd AIF that also meet the definition of 

closed-cycle recirculating systems at 

§ 125.92(c), the Director may reduce or 

waive some or all of this information. 

EPA considered simply requiring this 

information of all facilities above 125 

mgd AIF without authorizing Directors 

to reduce or waive this information. 

However, EPA also recognizes that, in 

some instances, these same facilities 

have already minimized adverse 

environmental impacts significantly. In 

such cases, there may be limited value 

to the Director requiring a full benefitcost analysis, or even obtaining the 

Entrainment Characterization Study at 

§ 122.21(r)(9). 

EPA also considered not requiring 

this information of any facilities above 

125 mgd AIF meeting the definition at 

§ 125.92(c). First, EPA noted that even 

though these facilities meet the 

definition of a closed-cycle recirculating 

system, they may still withdraw at least 

125 mgd, and in some instances 

withdraw considerably more than 125 

mgd. This is not an insubstantial 

volume of water withdrawn for cooling, 

and in the case of inland waters this 

withdrawal may comprise a large 

proportion of that source waterbody. In 

addition to withdrawing large volumes 

of water, EPA recognizes that some 

facilities, particularly those meeting the 

definition at § 125.92(c)(2), potentially 

withdraw water at a rate similar to a 

once-through facility not withdrawing 

from an impoundment, with the 

potential to cause adverse 

environmental impacts similar to those 

of once-through cooling. The Director 

may find the information in 

§ 122.21(r)(9)–(13) to be useful in 

determining whether additional controls 

are warranted. In these instances, the 

Director may decide to require the 

Entrainment Characterization Study at 

§ 122.21(r)(9) first, in order to determine 

if other studies in § 122.21(r)(10) to (13) 

are also warranted. 

Facilities at or under the 125 mgd AIF 

threshold must still provide certain 

information under the permit 

application requirements at § 122.21(r). 

The Director may require additional 

information from these facilities 

including some or all of the studies at 

§ 122.21(r)(9)–(13) if there is reasonable 

concern regarding entrainment impacts 

at the facility. Where an owner or 

operator of a facility intends to comply 

with the BTA standards for entrainment 

using a closed-cycle recirculating 

system as defined in § 125.92(c), the 

Director may reduce or waive some or 

all of this information. 

Facilities with a closed-cycle 

recirculating system as defined at 

§ 125.92(c)(2) would still submit the 

studies at § 122.21(r)(9)–(13) if they 

withdraw greater than 125 mgd AIF, and 

if the Director has not waived the 

requirements. These facilities have 

cooling systems that include 

impoundments of waters of the U.S. 

where the impoundment(s) was 

constructed prior to October 14, 2014 

and lawfully created for the purpose of 

serving as part of the cooling water 

system. This purpose must be 

documented to the Director’s 

satisfaction in the project purpose 

statement of any required Clean Water 

Act section 404 permit obtained to 

construct the impoundment. In the case 

of an impoundment whose construction 

pre-dated the CWA requirement to 

obtain a section 404 permit, where 

alternative permitting documents were 

required, the facility must document the 

project’s purposes to the satisfaction of 

the Director by some other license or 

permit obtained to lawfully construct 

the impoundment for the purposes of a 

cooling water system. EPA notes that for 

impoundments constructed in uplands 

or not in waters of the United States, no 

documentation of a section 404 or other 

permit is required. EPA received 

comments that such impoundments 

should be treated as closed-cycle 

cooling and has agreed to make this 

change. The Director would still make 

the determination that make-up water 

withdraws have been minimized. 

Further, EPA’s data shows that many 

facilities that utilize impoundments as 

part of their cooling water systems may 

actually use a combination of cooling 

water systems (for example, detailed 

survey responses showed eight facilities 

with an impoundment in addition to 

other IM technologies). The requirement 

that these facilities provide the Director 

with certain information will help 

ensure that the Director has adequate 

information upon which to base a 

decision for these impoundments as to 

whether these facilities have adequate 

controls already or should be taking 

additional measures to protect the 

relevant waterbody. 

The Entrainment Characterization 

Study will include information already 

collected to meet existing § 122.21(r)(4) 

requirements. In addition, under the 

permit application requirements being 

added today at § 122.21(r)(5) to (13), the 

facility will submit certain additional 

site-specific information. This will 

include an engineering study of the 


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technical feasibility and incremental 

costs of candidate entrainment mortality 

control technologies. The facility will 

also study, evaluate, and document the 

technical feasibility of technologies, at a 

minimum, including closed-cycle 

cooling, fine mesh screens with a mesh 

size of 2 mm or smaller, and water reuse 

or alternate sources; engineering cost 

estimates of all technologies considered; 

any outages, downtime, or other effects 

on revenue along with a discussion of 

all reasonable attempts to mitigate these 

cost factors; and a discussion of the 

magnitude of water quality and other 

benefits, both monetized and 

nonmonetized, of the candidate 

entrainment mortality reduction 

technologies evaluated. Finally, the 

information must include a discussion 

of the changes in non-water quality 

environmental impacts attributed to 

technologies and/or operational 

measures considered. The factors 

include, for example, increases and 

decreases in the following: Energy 

consumption, and air pollutant 

emissions including particulates and 

associated human health and global 

climate change impacts, water 

consumption, noise, safety (e.g., 

visibility of cooling tower plumes, 

icing), grid reliability, and facility 

reliability. For a thorough discussion of 

these study requirements, see Section 

VIII. The final rule also requires peer 

review of the Comprehensive Technical 

Feasibility and Cost Evaluation Study, 

Benefits Valuation Study, and NonWater Quality and Other Impacts 

Assessment. Peer review of the 

Entrainment Characterization Study is 

not required. Note that the peer 

reviewed studies will rely on data 

gathered in the Entrainment 

Characterization Study. Peer reviewers 

will be selected in consultation with the 

Director, who can also consult with EPA 

and Federal, State, and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). 

Under the final rule, EPA expects that 

the Director will review the candidate 

technologies for entrainment mortality 

control that, at a minimum, includes 

closed-cycle recirculating systems, finemesh screens with a mesh size of 2 mm 

or smaller, and water reuse or alternate 

sources. In the decision about what 

additional entrainment controls (if any) 

to require, the Director will consider all 

the facility-specific factors in 

§ 125.98(f)(2) and described above. At a 

minimum, the Director must provide a 

discussion explaining how issues 

concerning air emissions or land 

availability, insofar as they relate to the 

feasibility of adoption of an entrainment 

technology, and remaining useful plant 

life, were addressed in the site-specific 

determination. Under the final rule, the 

Director must issue a written 

explanation for the basis of the BTA 

entrainment determination for each 

facility. The Director’s decision must 

include a written explanation that, at a 

minimum, includes consideration of the 

following factors: (i) Numbers and types 

of organisms entrained; (ii) impact of 

changes in particulate emissions or 

other pollutants associated with 

entrainment technologies; (iii) land 

availability inasmuch as it relates to the 

feasibility of entrainment technology; 

(iv) remaining useful plant life; and (v) 

social costs and benefits, which may 

include qualitative, quantified and 

monetized categories. The Director may 

also base the proposed determination on 

several other factors, including thermal 

effects and water consumption. 

In addition to the information 

required for development of 

impingement controls discussed above, 

the regulation also requires, in the case 

of facilities withdrawing greater than 

125 mgd AIF, submission of certain 

other information for use in the sitespecific entrainment determination of 

BTA. The final rule also adds the permit 

application requirements at § 122.21(r) 

(9)–(13) to require the facility to prepare 

several studies, including an 

Entrainment Characterization Study, 

that will fully characterize the extent of 

entrainment at the facility. (For more 

details about the study, see above). In 

addition, under the final rule, the 

facility will provide detailed 

information on the other factors relevant 

to the Director’s site-specific BTA 

determination. These will include 

information concerning the technologies 

available for control of such 

entrainment, the costs of controls, the 

non-water quality environmental 

impacts of such controls, the monetized 

and nonmonetized benefits of such 

controls, and the presence of any 

threatened and endangered species. The 

final rule does not limit the Director’s 

discretion to consider non-water quality 

impacts in determining whether further 

entrainment measures are justified. EPA 

encourages, and the CWA requires, the 

public to have a role in the permitting 

process. Interested members of the 

public may submit written comments on 

a draft permit during the 30 day public 

notice and comment period and request 

a public hearing on a draft permit. For 

permits that are issued by EPA instead 

of a state, additional opportunities for 

public involvement include comment, 

and in some cases, a public hearing on 

a permittee’s State Water Quality 

Certification under section 401 of the 

CWA. (See 40 CFR 124.10, 124.11, 

124.12(a) and 124.17(a).) Therefore, the 

final rule clearly affords the public a 

meaningful opportunity for 

participation in the site-specific 

decision making to help ensure the 

soundness of both the information and 

subsequent determinations. 

H. Economic and Benefit Analysis for 

the Final Rule 

1. Economic Justification for the Final 

Rule 

Pursuant to the principles in E.O. 

12866 and E.O. 13563, EPA has assessed 

costs and benefits for the final rule and 

has reasonably determined that the 

benefits of the rule justify the costs. EPA 

has estimated the social cost of this rule 

to be $275 million annually. For more 

information on EPA’s analysis of the 

rule’s costs, see Section IX. 

As described in more detail below in 

Section X, significant benefits are 

associated with the rule. These benefits 

include the annual reduction in 

impingement mortality of 652 million 

age-one equivalents for existing units. 

There are, in addition, other important 

benefits, many of which EPA cannot 

quantify. These benefits include effects 

on many shellfish species and nonuse 

values associated with the vast majority 

of fish and shellfish. The rule also 

requires establishing site-specific 

entrainment controls through a process 

in which specific environmental 

conditions and the localized benefits of 

entrainment reductions will be assessed 

along with the costs of controls. The 

information generated in the required 

studies will enhance the transparency of 

decision making and provide an 

opportunity for meaningful public 

participation, ensuring that decision 

making is based on the best available 

data. Overall, these requirements and 

subsequent Director actions under this 

rule will foster protection and 

restoration of healthy aquatic 

ecosystems that have important 

commercial, recreational, aesthetic and 

cultural values to their surrounding 

communities. Many of the benefits that 

will result from the rule are not 

monetized or quantified, and as a result 

the Agency’s monetized benefits 

analysis underestimates the totality of 

the rule’s benefits. On the basis of the 

record, EPA has determined that the 

impingement mortality and entrainment 

controls will result in benefits that 

justify the costs of the rule. 

EPA also notes that it was able to 

generate only a partial estimate of 


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benefits for today’s rule. In particular, 

EPA’s analysis does not fully quantify or 

monetize certain potentially important 

categories of benefits, such as existence 

values for threatened and endangered 

species, secondary and tertiary 

ecosystem impacts, benthic community 

impacts, shellfish impacts and the 

impacts arising from reductions in 

thermal discharges that would be 

associated with closed-cycle cooling. 

Changes in fish assemblages due to 

impingement, entrainment and thermal 

effects are also not fully valued. These 

categories of benefits which are not fully 

valued are often referred to as nonuse 

benefits—i.e., benefits that people 

derive apart from using an affected 

resource, such as fishing. For example, 

nonuse benefits would include the 

value that individuals place on knowing 

that an aquatic ecosystem is healthy. 

EPA conducted a nonuse benefits 

transfer was based on a species that 

represents less than one percent of 

adverse environmental impacts. EPA 

developed and implemented an original 

stated preference survey to estimate 

total values (use plus nonuse values) for 

aquatic resource improvements under 

316(b) regulatory options. EPA decided 

not to employ the survey results for 

purposes of decision-making and EPA 

has not accounted for values estimated 

from the survey in the quantitative 

comparison of costs and benefits. It is 

also important to note that EPA’s stated 

preference survey was designed to 

estimate respondents’ willingness to pay 

for changes in the health of fish 

populations and aquatic ecosystems and 

to be statistically representative at large 

(regional and national) scales; the 

results were not specifically designed to 

be statistically representative at the 

facility level for the assessment of 

benefits for individual site-level 

permitting decisions. 

As noted at the outset, it is not always 

the case that private decision making 

regarding withdrawals of cooling water 

takes into account society’s preferences 

for fish protection, nor are there market 

transaction opportunities for 

individuals to express their willing to 

pay for fish protection. Thus, despite 

the limited information on monetized 

social benefits, EPA has concluded that 

the benefits of today’s rule justify the 

costs of today’s rule. 

2. Comparison of the Other Options 

As discussed above, EPA considered 

three other primary options before 

selecting today’s rule. See Section VI.F 

Other Options Considered for more 

detailed explanation of each option. 

Exhibit VI–1 illustrates a comparison of 

the total annualized social costs and 

benefits. 

EXHIBIT VI–1—COMPARISON OF THE

PRIMARY OPTIONS FOR 316(b) 

[$2011 Millions at 2013, 3% discount rate] 

Option 

Total 

annualized 

social cost 

Monetized 

benefits 

Proposal Option 4 $251.8 $31.0 

Final Rule ............. 274.9 32.8 

Proposal Option 2 3643.2 ¥1542.6 

I. Site-Specific Consideration of 

Entrainment Controls 

As described above, EPA is not 

promulgating uniform national 

requirements for entrainment for 

existing facilities. Instead, EPA is setting 

standards for entrainment that include a 

framework by which a facility will be 

subject to a site-specific determination 

by EPA or a State NPDES permitting 

authority of appropriate BTA 

requirements for entrainment. This 

section describes the process for 

determining section 316(b) requirements 

for an individual facility under the 

national BTA standard for entrainment. 

It describes the elements that the 

Director must consider in the permitting 

decision and how costs and benefits 

may be considered in such an 

evaluation. 

1. Implementation of a Site-Specific 

Evaluation of Entrainment for Existing 

Facilities 

The final rule requires a site-specific 

determination of BTA entrainment 

conditions in individual permits and 

prescribes the requirements for that 

permitting proceeding. The final rule 

includes permit application 

requirements for facilities with a cooling 

water intake structure. These 

requirements are designed to elicit the 

information the Director needs to 

determine the best technology for 

reducing entrainment for a particular 

facility, including information pertinent 

to an assessment of whether the benefits 

justify the costs of any particular control 

measures under consideration. 

Today’s final rule is a modification of 

the proposed approach of a site-specific 

BTA entrainment determination. It will 

result in one of two outcomes at any 

facility: 

1. Determination that the facility must 

install additional control measures that 

reduce entrainment beyond that 

achieved by the currently installed 

equipment. These may include closedcycle cooling and/or other technologies. 

2. Determination that the facility’s 

current, existing technology for 

entrainment achieves the entrainment 

BTA requirements under the national 

BTA standard. 

Thus, EPA expects that, under this 

approach, there will be additional 

entrainment controls for some facilities 

and none for others. Even where the 

Director’s determination requires no 

additional control measures, the 

Director may conclude the permit 

should include conditions that specify 

proper operation and maintenance of 

the installed technology. 

EPA notes that in a number of areas 

of the country (California, Delaware, 

New York, and New England; see, for 

example, DCNs 10–6963 and 10–6841, 

and EPA Region I’s Brayton Point), 

permitting authorities have already 

required or are considering requiring 

existing facilities to install or retrofit to 

closed-cycle cooling systems. These 

facilities are still subject to today’s rule 

but the existing requirements have been 

taken into account in costing. 

For facilities that withdraw more than 

125 mgd, the rule generally requires that 

the facility conduct an entrainment 

study as part of its permit application. 

The study will indicate, at a minimum, 

the specific entrainment data collection 

methods, taxonomic identification to 

the lowest taxon possible, latent 

mortality identification, documentation 

of all methods, and quality assurance/

quality control procedures for sampling 

and data analysis appropriate for a 

quantitative survey. Peer reviewers must 

be selected in consultation with the 

Director, who may consult with EPA 

and Federal, State, and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure. Data from the 

entrainment study is important to 

provide corroboration of any throughfacility entrainment survival study 

results in § 122.21(r)(7) or from any 

other studies conducted. 

The final rule also requires the permit 

application to include the following 

information as part of the entrainment 

study (which refers to the requirements 

at § 122.21(r)(9) through (13), as 

opposed to the Entrainment 

Characterization Study at § 122.21(r)(9)). 

For a thorough discussion of these study 

requirements, see Section VIII: 

• An engineering study of the 

technical feasibility and estimated costs 

of all candidate entrainment control 

technologies, including closed-cycle 

cooling, fine-mesh screens with a mesh 

size of 2 mm or smaller, and water reuse 

or alternative sources; 

• A discussion of any outages, 

downtime, or other effects on revenue 


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along with a discussion of all reasonable 

attempts to mitigate these cost factors 

• A discussion of the magnitude of 

water quality benefits, whether 

qualitative, quantitative or monetized, 

of the candidate entrainment reduction 

technologies evaluated; thermal 

discharges; and 

• A discussion of the changes in nonwater quality environmental impacts 

and other factors attributed to 

technologies and/or operational 

measures considered, including, for 

example, increases and decreases in the 

following: Energy consumption; air 

pollutant emissions including 

particulates and their health and 

environmental impacts; noise; safety 

(e.g., visibility of cooling tower plumes, 

icing); electric grid reliability, and 

facility reliability. 

The permit application will provide 

the Director with information about 

options for entrainment reductions at 

the site and other possible avenues for 

addressing any adverse effects from 

entrainment. The purpose of the 

entrainment study and other permit 

application materials is to assist the 

Director in better understanding the 

effect of entrainment on species in the 

waterbody from which cooling water is 

withdrawn. More specifically, the 

entrainment study will identify species 

that might be entrained, and estimate 

their baseline entrainment rates given 

current entrainment controls. Moreover, 

the entrainment study will include 

information about the aquatic ecosystem 

effects of entrainment of species, and 

any threatened and endangered species 

whose range of habitat includes waters 

where the facility’s intake is located. An 

understanding of the potential 

ecosystem consequences of entrainment 

for species will help inform Director 

decisions about additional information 

required in the permit application, or 

permit requirements for any possible 

additional technologies and 

management practices. EPA will 

endeavor to identify high-quality 

examples of entrainment studies as they 

are completed, and post them to its Web 

site for this rule as a resource for study 

preparation. 

EPA’s benefits estimates were based 

on an extrapolation of available 

literature on impingement and 

entrainment studies; the specific 

Entrainment Characterization Study 

prepared by a facility could lead to a 

different estimate of impingement and 

entrainment for that facility relative to 

its share of EPA’s estimate in the 

analysis supporting this rule and in the 

record. 

Following the Director’s review of this 

information, the Director must 

determine what BTA entrainment 

requirement to propose and explain in 

writing the basis for the draft permit. 

The draft permit will then be available 

for comment from the interested public 

under the Director’s normal permitting 

process. 

2. Site-Specific Consideration of Cost 

and Benefits 

In establishing requirements under 

section 316(b) of the CWA, the Supreme 

Court in Entergy made clear that one 

factor that EPA may, but is not required, 

to consider is the costs and benefits 

associated with various control options. 

That is, in setting standards, EPA may 

consider the benefits derived from 

reductions in the adverse environmental 

impacts associated with cooling water 

intake structures and the costs of 

achieving the reductions. As previously 

explained, following E.O. 13563, EPA 

has determined that the benefits of the 

final rule justify its costs. In addition, 

EPA has explained (in Section II.C 

above) why consideration of 

quantitative and qualitative social costs 

and benefits may be appropriate in the 

site-specific determinations when 

establishing entrainment controls. 

In the site-specific proceeding, the 

Director must consider, among other 

factors, monetized, quantified and 

qualitative social benefits and social 

costs of available entrainment controls, 

including ecological benefits and 

benefits to any threatened or 

endangered species. The Director may 

be able to reject otherwise available 

entrainment controls if the costs of the 

controls are not justified by their 

associated benefits (taking into account 

monetized, quantified, and qualitative 

benefits), and the other factors 

discussed in the final rule. 

In making the site-specific 

entrainment BTA requirements 

determination, the final rule requires 

that the Director consider the 

information submitted under § 122.21(r) 

with the section 316(b) permit 

application. Further, in the case of the 

larger withdrawing cooling water intake 

structures (125 mgd AIF or greater), the 

rule requires submission of additional 

information including, studies on 

entrainment at the facility, the costs and 

feasibility of control options, and 

information on the benefits of 

entrainment controls. In evaluating 

benefits, the Director should not ignore 

benefits that cannot be monetized or 

quantified or consider only the 

impingement and entrainment 

reductions that can be counted. To 

result in appropriate decisions from 

society’s standpoint, the assessment of 

benefits must take into account all 

benefits, including categories such as 

recreational, commercial, and other use 

benefits; benefits associated with 

reduced thermal discharges; reduced 

losses to threatened and endangered 

species; altered food webs; benefits 

accruing nonlocally due to migration of 

fish; nutrient cycling effects; and other 

nonuse benefits. Merely because it is 

difficult to put a price tag on those 

benefits does not mean that they are not 

valuable and should not be included at 

least qualitatively in any assessment. 

The rule does not require the Director to 

require a facility owner or operator to 

conduct or submit a willingness-to-pay 

survey to assess benefits. Further, the 

rule does not limit the Director’s 

discretion to consider non-water quality 

impacts in determining whether further 

entrainment measures are justified. 

When some benefits are not monetized, 

the requirement to consider costs and 

benefits in today’s rule does not mean 

the Director should base decisions 

solely on the monetized benefits and 

costs, ignoring the non-monetized 

benefits. Instead, the Director should 

consider the costs and what the 

magnitude of the non-monetized 

benefits would have to be in order to 

justify the costs. 

An aggregate evaluation of benefits 

(even if accurate) would not account for 

the variations in benefits from location 

to location. On the basis of available 

information, EPA’s analysis of benefits 

relied on extrapolating data from 

existing impingement and entrainment 

characterization studies to all facilities 

in the same region on a flow-weighted 

basis. Differences in species, life stages, 

and biological abundance across intake 

locations (even within a region) could 

lead to very different results for a sitespecific analysis of a facility as 

compared to that facility’s share of 

national costs and benefits, even if the 

national results are, on average, 

accurate. A national assessment tends to 

mask variations in benefits and costs 

from different geographical locations for 

different water bodies. For example: 

• Some fish species at coastal 

facilities have biological spawning 

attributes that differ from those at other 

locations. 

• The proportion of the receiving 

water withdrawn for cooling could also 

vary among sites. 

• The values that communities place 

on their resources could vary from site 

to site. 

• One ecological environment might 

experience large masses of hardier eggs 

and larvae subject to potential 

entrainment; another will have fewer 

but less hardy eggs and larvae 

susceptible to entrainment. Without 


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detailed study information, it’s difficult 

to ascertain which ecological 

environment faces the greater adverse 

environmental impact from a similar 

cooling water intake. 

The resulting differences in the value 

of reduced entrainment—which could 

be dramatic for some sites—necessarily 

disappear in a national aggregation of 

results. The Agency has decided that 

this masking of variation in benefits 

further supports EPA’s decision to 

require consideration of the site-specific 

benefits of entrainment control 

technologies in the site-specific process 

to establish entrainment controls. 

The Director must then explain the 

basis for rejecting an available 

technology not selected for entrainment 

control in light of the submissions after 

consideration of the three factors that 

supported EPA’s determination not to 

establish a uniform national 

entrainment standard based on closedcycle cooling. The Director also must 

base the determination about BTA 

controls on the number and types of 

organisms entrained, including 

Federally-listed, threatened and 

endangered species and designated 

critical habitat (e.g., prey base) as well 

as consideration of the site-specific 

social costs and benefits (monetized and 

nonmonetized) of the various control 

technologies considered for the 

facilities. 

As noted, the Director may reject an 

otherwise available entrainment 

technology as the BTA requirement (or 

not require any additional BTA 

controls) if the social costs of the 

controls are not justified by the social 

benefits (monetized and nonmonetized). 

EPA decided to adopt this approach in 

determining site-specific entrainment 

controls because it is permissible under 

Entergy, under E.O. 13563, and 

consistent with the more than 30-year 

history of section 316(b) permitting 

decisions. 

This history illustrates the role that 

cost/benefit considerations have played. 

As early as 1977, EPA in a permitting 

decision and a General Counsel opinion 

explained that, while section 316(b) 

does not require a formal cost-benefit 

analysis, the relationship of costs and 

benefits may be considered in 316(b) 

decision making. In re Pub. Serv. Co. of 

N.H. (Seabrook Station, Units 1 and 2), 

No. 76–7, 1977 WL 22370 (June 10, 

1977), remanded on other grounds, 572 

F.2d 872 (1st Cir. 1978); accord In re 

Central Hudson Gas & Elec. Corp., Op. 

EPA Gen. Counsel, NPDES No. 63, 1977 

WL 28250, at *8 (July 29, 1977). In the 

more than 30 years since, EPA and State 

permitting authorities have considered 

the relationship between costs and 

benefits to some extent in making 

individual permitting decisions. See, for 

example, In re Pub. Serv. Co. of N.H. 

(Seabrook Station, Units 1 and 2), No. 

76–7, 1978 WL 21140 (E.P.A. Aug. 4, 

1978), aff’d, Seacoast Anti-Pollution 

League v. Costle, 597 F.3d 306, 311 (1st 

Cir. 1979). 

Because E.O. 13563 directs agencies 

to propose and adopt rules only upon a 

reasoned determination that the benefits 

justify the costs, EPA is allowing this 

consideration to be applied at the 

permit level. This approach is 

consistent with the historical 

application of section 316(b) 

requirements and will allow for a full 

assessment in permit decisions of both 

qualitative and quantitative benefits and 

costs. As designed, EPA’s requirement 

for the establishment of site-specific 

BTA entrainment requirements strikes 

an appropriate balance between 

environmental improvements and costs, 

allowing the Director to consider all the 

relevant factors on a site-specific basis 

and determine BTA on the basis of those 

factors. 

After considering the factors relevant 

to a site, the Director must establish 

appropriate entrainment controls at 

those facilities. The Director must 

review available control technology and 

may reject otherwise available 

entrainment controls as BTA if the 

social costs of the controls are not 

justified by their social benefits (taking 

into account both quantified and nonquantified benefits) or if the Director 

concludes that there are other 

unacceptably adverse factors that cannot 

be mitigated. As designed, EPA’s 

national BTA standard for establishing 

site-specific BTA entrainment 

requirements strikes an appropriate 

balance between environmental 

improvements and costs by selectively 

requiring closed-cycle cooling or other 

entrainment technologies at some 

facilities, without requiring the same 

technologies at all facilities. 

3. Potential Cost for Site-Specific 

Entrainment Controls 

For the proposed rule, EPA analyzed 

possible additional costs associated 

with reductions in entrainment 

mortality that might result from the 

Directors’ determinations of site-specific 

BTA requirements. Because this process 

will play out over a number of years as 

Directors consider waterbody-specific 

data, local impacts, and public 

comment, and weigh land availability, 

air quality impacts, and remaining 

useful life, those estimates of the costs 

of site-specific determinations are 

highly speculative. EPA is not 

presenting specific cost estimates today 

for prospective entrainment 

requirements because we do not have in 

hand the robust data that will be 

generated for individual site-specific 

settings as required under the national 

BTA standard for entrainment. Without 

that refined information on a sitespecific basis, EPA has no ability to 

predict Director decision-making and 

therefore, the Agency is not estimating 

costs associated with the ultimate 

entrainment requirements. Similarly 

and for the same reasons, EPA did not 

estimate costs associated with 

requirements at §§ 125.94(g), 

125.94(c)(8) or 125.94(c)(9). 

EPA estimates that the most effective 

technology for reducing entrainment, 

closed-cycle cooling, is not available to 

at least one quarter of all facilities 

because of geographic constraints, air 

permitting restrictions in a 

nonattainment area and remaining 

useful life of the facility. EPA has 

limited information on which facilities 

these are, despite the certainty that 

these availability concerns are real and 

significant. In addition, EPA does not 

have in hand the site-specific data that 

will be generated as a result of today’s 

rule. If EPA had this data, it would be 

possible to estimate the costs and 

benefits ultimately associated with the 

Directors’ site-specific determinations 

under the national BTA standard for 

entrainment. The hypothetical costs 

generated at proposal were reported in 

an attempt to signal that EPA neither 

expects that zero facilities would be 

subject to closed-cycle cooling as a 

result of the site-specific BTA process 

for entrainment, nor that all facilities at 

which these technologies are feasible 

would be subject to closed-cycle cooling 

requirements. Without the site-specific 

information, there is significant 

uncertainty around any estimates EPA 

could generate of these costs (including 

those reported at proposal) and benefits. 

VII. Response to Major Comments on 

the Proposed Rule and Notices of Data 

Availability (NODAs) 

Over 1,100 organizations and 

individuals submitted comments on a 

range of issues in the proposed rule, 

including over an additional 62,000 

letters from individuals associated with 

mass letter writing campaigns. An 

additional nearly 250 comments were 

received on the two NODAs. Responses 

to all comments, including those 

summarized here, are in the Response to 

Comments document in the official 

public docket (see DCN 12–0004). To 

facilitate a more comprehensive 

response and to simplify the task of 

discussing EPA’s rationale for 

promulgating the final rule, EPA is 


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responding to these public comments in 

essay form. Each topic area discussed in 

the comment letters has been addressed 

in one of the comprehensive essay 

responses. The major comments 

received and EPA’s responses are 

summarized in this section. 

A. Scope and Applicability 

1. Source of Water—Impoundments 

Many commenters expressed concern 

that the proposed rules do not 

adequately address the unique water 

bodies resulting from the many manmade reservoirs specifically designed 

and constructed as cooling water 

impoundments (referred to as cooling 

ponds in the proposed rule). 

Commenters expressed confusion 

regarding the applicability of the 

proposed regulations because 

impoundments have both intakes from 

the impoundments and intakes that 

supply water to the impoundment. 

Many requested that EPA clarify that 

man-made impoundments, built to 

supply water for power plants, do not 

constitute water of the United States for 

purposes of implementing the rule or 

that they should be classified as meeting 

the definition of closed-cycle cooling. 

Response: As discussed in Section I, 

facilities that withdraw cooling water 

from impoundments that are waters of 

the United States and that otherwise 

meet the criteria for coverage (including 

the requirement that the facility has or 

will be required to obtain an NPDES 

permit) are subject to today’s rule. 

Revisions to the definition of waters of 

the U.S. are outside the scope of this 

rulemaking. However, today’s regulatory 

definition of closed-cycle recirculating 

systems specifies that such a system 

may include impoundments of waters of 

the U.S. where the impoundment was 

constructed prior to today’s final rule. 

To meet the rule definition for closedcycle recirculating system, this 

impoundment must have been lawfully 

created for the purpose of serving as 

part of the cooling water system as 

documented in the project purpose 

statement for the Clean Water Act 

section 404 permit obtained to construct 

the impoundment. In the case of an 

impoundment whose construction predates the CWA requirement to obtain a 

section 404 permit, EPA expects 

documentation of the project’s purpose 

to be demonstrated to the satisfaction of 

the Director. This documentation could 

be some other license or permit 

obtained to lawfully construct the 

impoundment for the purposes of a 

cooling water system, or other such 

evidence as the Director finds necessary. 

The definition of closed-cycle 

recirculating system at § 125.92(c)(1) of 

today’s rule also specifies that 

impoundments that are not waters of the 

United States but withdraw make-up 

water from waters of the U.S. meet the 

definition of a closed-cycle recirculating 

system, if make-up withdrawals have 

been minimized. These impoundments 

are constructed in uplands, and are not 

required to obtain a 404 permit. Thus, 

these impoundments do not need to 

provide documentation of the project’s 

purpose. 

2. New Units 

In the proposal, EPA defined new 

units as newly built units added to 

increase capacity at the facility. The 

definition did not include any rebuilt, 

repowered or replacement unit, 

including any units where the 

generation capacity of the new unit is 

equal to or greater than the unit it 

replaces. Many industry stakeholders 

agreed that the definition of new units 

should not include repowered existing 

units. Others thought that new units 

should be treated similarly to existing 

units with entrainment standards 

applied on a site-specific basis and that 

the nine proposed factors should also be 

applied to entrainment decisions for 

new units. Environmental organizations 

argued that EPA should set a deadline 

by which all existing facilities must 

comply with the new unit standards and 

that EPA’s exclusion of repowered/

rebuilt facilities created a loophole 

through which existing facilities could 

perpetually operate as an existing unit, 

even after replacing all of the generating 

equipment. Many of the comments had 

several elements in common: 

• Requirements should be flexible 

enough to address sites where meeting 

the requirements is not technically 

feasible (e.g., limited land availability). 

• EPA needs to provide greater clarity 

regarding how new unit standards apply 

to manufacturing facilities. 

• The DIF is a more appropriate 

parameter for determining compliance 

because AIF cannot be determined until 

after the system is built, and baseline 

AIF would require assumptions about 

as-yet undetermined operational factors. 

• It is unclear how the new unit 

requirements will be applied to 

manufacturing units, and the 

requirements do not appear to consider 

the circumstance where a new unit is 

constructed at an existing 

manufacturing facility where 

construction of the new unit does not 

require any modifications to the existing 

intake structure. 

• Some commenters have noted that 

the new unit provisions are a departure 

from previous determinations and are 

unclear. They argue that they have not 

had adequate opportunity to comment 

on this issue and request EPA repropose new unit requirements if it 

wants to continue with this initiative. 

Response: EPA’s definition of a ‘‘new 

unit’’ for the final rule can be found at 

§ 125.92(u). New units includes the 

addition of a stand-alone unit that is 

constructed at an existing facility. The 

rule definition makes it clear that the 

new unit may be for the same general 

industrial activity as the existing 

facility. Because the requirements are 

much like the Phase I requirements for 

new facilities the costs for installing 

controls at new units are similar to the 

costs imposed on new facilities. The 

cooling water withdraws made by the 

rest of the existing facility are subject to 

the requirements at 40 CFR 125.94(c) 

and (d). 

With respect to impingement 

mortality and entrainment, the final rule 

requires, at § 125.94(e)(1), that new 

units achieve flows commensurate with 

that of a closed-cycle recirculating 

system. As with the new facility Phase 

I rule, the new unit may choose to meet 

an alternative requirement at 40 CFR 

125.94(e)(2) and demonstrate to the 

Director that the technologies and 

operational measures employed will 

reduce the level of adverse 

environmental impact from any cooling 

water intake structure used to supply 

cooling water to the new unit to a 

comparable level to that which would 

be achieved upon implementing closedcycle recirculating for that new unit. 

This includes a demonstration showing 

that the entrainment reduction is 

equivalent to 90 percent or greater of the 

reduction that could be achieved 

through implementing a closed-cycle 

recirculating system. This 

demonstration must also include a 

showing that the impacts to fish and 

shellfish, including important forage 

and predator species, within the 

watershed will be comparable to those 

which would result if the facility were 

to implement a closed-cycle 

recirculating system. 

Facilities may choose to install a 

closed-cycle recirculating system, and 

EPA has observed that many new units 

are selecting closed-cycle recirculating 

systems on their own, particularly for 

combined cycle and natural gas for 

reasons unrelated to 316(b) (such as 

water availability). In these cases, 

benefits related to reductions in IM&E 

would be expected to occur. 

Finally, for new units at existing 

facilities, the Director may establish 

alternative requirements if the data 

specific to the facility indicate that 


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compliance with the requirements of 

paragraphs (e)(1) or (2) of § 125.94 for 

each new unit would result in 

compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at 

issue, or would result in significant 

adverse impacts on local air quality, 

significant adverse impacts on local 

water resources other than impingement 

or entrainment, or significant adverse 

impacts on local energy markets. This 

provision is identical to that provided in 

the Phase I new facility rule. 

B. Proposed Amendments Related to 

Phase I Rule 

Commenters suggested that 

restoration be allowed in a range of 

situations, including where a nuisance 

species is a problem that will get worse 

with the use of cooling water intake 

structure technology, where affected 

species are not species of concern in 

man-made lakes, and to reduce the cost 

of meeting 316(b) requirements (i.e., 

offset losses). 

Response: The Second Circuit found 

that EPA exceeded its authority by 

allowing facilities subject to CWA 

section 316(b) to comply with section 

316(b) through restoration measures 

and, thus, EPA has deleted these 

provisions from the regulations at 

§§ 125.84 and 125.86 to make the rule 

consistent with the court decisions. 

C. Environmental Impact Associated 

With Cooling Water Intake Structures 

Many commenters expressed concern 

that limited scientific evidence exists 

that measureable aquatic population or 

community effects occur as a result of 

cooling water withdrawals and that 

impingement mortality and entrainment 

mortality requirements should not apply 

unless adverse environmental impacts 

are demonstrated. They also noted that 

not all environmental impacts are 

adverse. For example, removal of 

invasive species or quickly reproducing 

species might not be harmful. 

Response: EPA disagrees. The 

evidence shows that the total number of 

aquatic organisms lost annually is in the 

hundreds of billions, or is 1.9 billion on 

an age-one equivalent basis. Additional 

data provided in comments shows 

aquatic organisms are lost through 

impingement and entrainment by all 

types of cooling water intake structures. 

The data demonstrates that the effects of 

cooling water intake structures on the 

aquatic environment are significant and 

widespread. In addition, there is 

documented evidence of population 

level effects of cooling water intakes for 

certain species in certain instances. See, 

for example, 69 FR 41587, July 9, 2004 

for a discussion from the 2004 Phase II 

rule. Also, Bayshore, Indian River and 

Indian Point are discussed in the BA for 

the final rule. 

D. EPA’s Approach to BTA 

1. Relationship of Costs and Benefits 

Many commenters expressed concern 

that the proposed rule’s costs 

significantly outweigh the benefits and 

that studies, technology modifications, 

monitoring, and reporting should not be 

required if costs exceed benefits. 

Response: While the rule costs exceed 

the monetized benefits as presented, 

EPA has concluded that the costs do not 

outweigh total benefits when both 

monetized and nonmonetized benefits 

are considered. EPA notes that the 

monetized benefits are only a subset of 

all benefits. In the absence of complete 

estimates of nonuse benefits, EPA 

estimated partial nonuse benefits for the 

final rule using the benefits transfer 

approach from proposal. This approach 

is still a partial estimate, because the 

nonuse benefits transfer was based on a 

species that represents less than one 

percent of adverse environmental 

impacts. With respect to entrainment, 

the rule authorizes the Director to 

consider costs versus benefits on a sitespecific basis. With respect to 

impingement mortality, the rule 

provides seven compliance alternatives 

based on a set of widely used, 

demonstrated, proven technologies, 

many of which have been in use for 

decades and whose efficacy is well 

supported in EPA’s record. 

2. Site-Specific Approach 

Many commenters agreed with EPA’s 

site-specific approach for entrainment 

mortality requirements but argued that 

the same approach should also be 

applied to impingement mortality 

requirements. State agencies and 

environment organizations are 

concerned that the site-specific 

entrainment determinations will create 

additional administrative burdens on 

already overextended permitting 

authorities which could exacerbate 

permit backlogs. 

Response: EPA does not agree that 

impingement mortality is best addressed 

by the same approach adopted for 

entrainment. This is because EPA has 

been able to identify low-cost 

technologies that are available, feasible 

and demonstrated for impingement 

mortality nationally. EPA has not been 

able to identify an available, feasible 

and demonstrated technology nationally 

for entrainment, and therefore has 

adopted as its national BTA entrainment 

standard a structured process for 

determining on a site-specific basis 

what entrainment controls are the best 

technology available at a particular 

facility. EPA agrees that site-specific 

entrainment has potential to create 

additional burdens for states, but EPA 

has tried to limit this burden by 

simplifying its information collection 

requirements from those at proposal. 

EPA has streamlined the information 

collection requirements so that 

information necessary for the Director to 

make a BTA determination is submitted 

by the permittee in the permit 

application early in the process, thus 

minimizing the number of transactions 

between permittee and the Director. 

E. BTA Performance Standards 

1. Impingement Standards 

EPA received a substantial number of 

comments on how the final rule should 

address impingement mortality. EPA 

proposed an impingement mortality 

standard based on the performance of 

modified traveling screens with fish 

handling and return that required 

achievement of a numeric IM 

performance standard. As an alternative 

EPA proposed that a facility could 

demonstrate that either the design 

intake velocity or the actual intake 

velocity at its operation was less than 

0.5 fps. Most of the commenters, 

including members of the U.S. Congress, 

state and local elected officials, and 

industry stakeholders, requested 

additional flexibility in complying with 

the impingement mortality standards. 

While the proposal would not 

specifically require the use of modified 

traveling screens with a fish handling 

and return system to meet the 

impingement mortality standards, some 

commenters interpreted the proposed 

rule as requiring this. EPA proposed 

impingement mortality standards that 

were expressed as a monthly average 

and a 12-month average. EPA 

recognizes, however, that some 

regulated entities might find a 

technology-based compliance option, 

rather than a performance-based 

approach, more attractive. Such an 

approach, particularly the specification 

of pre-approved technologies, could 

offer higher regulatory certainty, easier 

demonstration of compliance, and might 

offer a less expensive alternative 

because of reduced monitoring 

requirements associated with preapproved technologies. Some 

commenters viewed the proposed 

impingement mortality standard as 

overly stringent and requested that EPA 

establish alternative impingement 

mortality standards, including sitespecific impingement mortality 


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requirements similar to those proposed 

for entrainment. Other commenters 

provided data pertaining to the 

performance of technologies, including 

modified traveling screens used as the 

basis for the impingement mortality 

performance standard. Several industry 

stakeholders stated that, despite EPA’s 

best intentions, the proposed rule 

applied a one-size-fits-all approach for 

impingement mortality. While all the 

suggested changes to the proposal seek 

to provide additional flexibility through 

a variety of approaches, most of the 

comments had several elements in 

common: 

• Defining modified traveling screens 

as a pre-approved technology or 

otherwise streamlining the NPDES 

process for facilities using the candidate 

technology on which BTA is based. 

Thus, EPA would designate certain 

technologies or certain conditions as 

complying with the impingement 

requirement. 

• Providing a mechanism to identify 

other technologies that perform 

comparably to modified traveling 

screens. 

• Modifying the proposal so that 

facilities that have already reduced the 

rate of impingement could obtain credit 

toward the impingement mortality 

standard. 

• Developing a more tailored 

approach to protecting shellfish. 

• Creating alternatives for facilities 

with very low (de minimis) 

impingement levels or mortality rates. 

• Providing additional clarity on 

species of concern as it pertains to 

demonstrating compliance with the 

numeric impingement mortality 

performance standard. 

• Reevaluating the impingement 

mortality numerical performance 

standards. 

In addition, as noted above, EPA also 

received a number of comments 

suggesting that it adopt a site-specific 

approach to reducing impingement 

mortality similar to the proposed 

approach for addressing entrainment, 

rather than uniform national 

requirements for impingement mortality 

and a site-specific approach for 

entrainment only. 

Many commenters expressed concern 

that the entrapment requirements were 

not well defined and would require 

costly technologies that are not 

considered in EPA’s cost estimates and 

could be difficult to comply with, 

particularly where cooling systems 

employ impoundments or basins 

downstream of the initial intake 

structure. 

Response: See the earlier discussion 

concerning how EPA determined the 

numeric impingement mortality 

performance standard. Additionally, see 

earlier discussion for an explanation of 

how EPA revised the impingement 

mortality standard to provide seven 

alternatives for compliance. 

EPA agrees that specific entrapment 

requirements are not necessary and 

requirements for facilities to deploy 

technologies to avoid entrapment have 

been deleted from the final rule. 

However, a facility that entraps fish 

must count the entrapped organisms as 

impingement mortality. 

2. Entrainment Standards 

A substantial number of commenters 

supported EPA’s site-specific approach 

for entrainment standards. Suggested 

revisions to the approach included the 

following: 

• EPA should recognize the value of 

waterbody-based requirements, 

including withdrawals on lakes/

reservoirs and less than 5 percent of 

rivers as not requiring entrainment 

mortality. 

• Units with a low capacity 

utilization should be exempt from 

entrainment mortality. 

• Facilities with AIF of less than 125 

mgd should be presumed as 

entrainment mortality compliant. 

• EPA should consider entrainment 

survival. 

Response: With respect to waterbodybased requirements and capacity 

utilization thresholds, EPA disagrees 

with commenters suggestions. There is 

no fundamental difference in 

technological performance based on 

waterbody so there is no need to 

subcategorize based on waterbody. EPA 

found that low CUR facilities are 

generally peaking plants that operate at 

full capacity for portions of days during 

a few months or less. Further, EPA 

found that some sites continue to 

withdraw water through their cooling 

water intake structure even when no 

power is being generated. If that period 

of cooling water intake operation 

corresponds with times when spawning 

is occurring, those facilities could have 

significant impacts from impingement 

and entrainment. Therefore, simply 

being a low CUR unit does not imply no 

adverse environmental impacts. Instead, 

EPA found that low CUR should be 

looked at more closely on an individual 

unit basis. EPA has included a provision 

in the final rule that states where a 

generating unit has an annual average 

capacity utilization rate of less than 8 

percent averaged over a 24-month block 

contiguous period, the owner or 

operator may request that the Director 

establish less stringent standards for IM. 

With respect to facilities below 125 AIF 

being considered entrainment 

compliant, EPA disagrees with the 

comment since any facility at any flow 

may have an adverse environmental 

impact. With regard to entrainment 

survival, EPA does allow for 

consideration of entrainment survival. 

The monitoring requirements for 

entrainment for new units at 

§ 125.96(d)(3) states that mortality after 

passing the cooling water intake 

structure must be counted as 100 

percent mortality unless you have 

demonstrated to the approval of the 

Director that the mortality for each 

species is less than 100 percent. 

3. Closed-Cycle Cooling 

Both industrial stakeholders and 

many state agencies endorsed an 

approach that deems facilities with 

closed-cycle cooling to be in compliance 

with the BTA impingement mortality 

standard, and eligible for reduced 

monitoring and reporting requirements. 

Most industrial stakeholders agreed 

with the EPA decision that closed-cycle 

cooling should not be imposed as a 

national BTA standard. They argue that 

although closed-cycle cooling might be 

available and achievable at many 

facilities, requiring closed-cycle cooling 

nationally has numerous drawbacks 

including the following: 

• Requirements for closed-cycle flow 

reduction do not take into consideration 

the site-specific limitations at some 

facilities (e.g., blowdown water quality, 

scale, fouling problems). 

• Cooling towers would result in 

significant adverse impacts from fine 

particulates, carbon dioxide emissions, 

evaporative water loss, and other issues. 

Commenters expressed concern that 

the proposed definition of a closedcycle recirculating system is far more 

restrictive than the definition used in 

the Phase I rule. It includes only 

systems that withdraw make-up flow 

intermittently, are designed to operate 

above minimum COC, reduce flow by a 

specified percentage (depending on 

whether salt or fresh water), and did not 

include impoundments that are waters 

of the United States. Some commenters 

stated that while they might have been 

effectively operating as closed-cycle 

units for many years, they have 

concerns with their ability to comply 

with the definition in the proposal, 

particularly with respect to the specified 

COC. 

Response: EPA agrees that facilities 

employing a closed-cycle recirculating 

system for entrainment should also be 

deemed in compliance with the 

impingement mortality standard, as long 

as the system is properly operated. 

While a closed-cycle recirculating 


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system is the most effective technology 

for reducing entrainment, EPA has not 

established BTA based on closed-cycle 

cooling because EPA concluded it was 

not BTA, for the reasons specified in 

Section VI. Regarding the definition of 

closed-cycle cooling, EPA identified two 

parameters that demonstrate proper 

operation: Flow reduction and cycles of 

concentration. To provide flexibility, 

EPA has removed the numeric levels of 

the metrics as threshold, while retaining 

the minimized makeup flows aspect of 

the definition. Therefore while the 

definition in this final rule does not 

establish fixed requirements in terms of 

COC and comparable percentage flow 

reduction to qualify as a closed-cycle 

recirculating system, the rule provides 

that a closed-cycle recirculating system 

‘‘generally’’ will achieve the specified 

benchmarks that characterize a properly 

operating closed-cycle cooling system. 

EPA further recognizes that certain 

unavoidable circumstances could exist 

where the specified COC or percent 

reduction values might not be 

achievable. Such site-specific 

circumstances could include situations 

where water quality-based discharge 

limits might limit the concentration of 

a pollutant that is not readily treatable 

in the cooling tower blowdown or 

situations where the source water 

quality could lead to unavoidable 

problems concerning scale formation, 

solids buildup, corrosion, or media 

fouling. If a facility can demonstrate that 

these occurrences are unavoidable, 

under the definition in the final rule, 

the Director may determine that such a 

facility is a closed-cycle recirculating 

system, taking into account the sitespecific circumstances. In addition, EPA 

has explained how the conditions added 

to the existing facilities definition do 

not in effect make it more stringent than 

the Phase I definition of closed-cycle 

recirculating systems. The auxiliary 

electricity a facility uses to run the fans 

in a closed-cycle system is electricity 

the facility can’t sell. The opportunity 

cost to the facility of using that 

electricity to run the fans is the forgone 

revenue they would have been able to 

earn if they had run their cooling water 

system in once-through mode. The 

forgone revenue provides the incentive 

for a facility to run its closed-cycle 

system in once-through mode, rather 

than in closed-cycle mode. Thus, EPA 

adjusted the definition of a closed-cycle 

recirculating system to be appropriate 

for retrofit situations. 

F. Implementation 

Many commenters expressed concern 

that the compliance timeline for 

impingement mortality and entrainment 

requirements should be synchronized to 

prevent a facility from having to install 

technology to comply with 

impingement mortality requirements 

and then later be required to install 

entrainment mortality technology. 

Response: To address this concern, 

EPA revised the impingement mortality 

compliance requirements to provide 

that after issuance of a final permit 

establishing the entrainment 

requirements under § 125.94 (d), the 

owner or operator of an existing facility 

must comply with the impingement 

mortality standard in paragraph 

§ 125.94(c) as soon as practicable. When 

the Director establishes a compliance 

schedule under § 125.94(d), the 

schedule must provide for compliance 

as soon as practicable. Thus, EPA has 

synchronized decision making about 

technology requirements, avoiding 

situations where investments in IM 

controls would later be rendered 

obsolete by entrainment control 

requirements. 

G. Costs 

1. Impingement Mortality Technology 

Costs 

Commenters expressed concern about 

the approach for technology 

assignments used to estimate 

compliance with the impingement 

mortality standards and generally 

asserted that costs were underestimated. 

These concerns included the following: 

• The EPA incorrectly assumed 

traveling screens were an available 

technology at most facilities. 

• EPA underestimated the costs of 

modified traveling screens. 

• EPA underestimated the difficulty 

and costs of installing fish returns. 

Response: EPA disagrees that 

traveling screens are not an available 

technology at most facilities; survey 

data provided by industry shows that 93 

percent of generators and 73 percent of 

manufacturers already have screens. 

EPA agrees that some facilities may not 

be able to readily upgrade their screens 

to modified traveling screens with fish 

return, but that the vast majority can. 

EPA has updated the estimated costs 

of the rule to reflect the difficulty of 

installing fish return and adjusted the 

cost of modified traveling screens to 

reflect most recently available vendor 

data. Specifically, EPA reviewed the 

cost methodology and made a number of 

revisions including the following: 

• EPA revised the technology 

assignment such that only those model 

intakes that have existing traveling 

screens are assigned modified traveling 

screen costs. 

• EPA increased the estimated capital 

costs for modified traveling screens by 

20 percent. 

• EPA increased the estimated capital 

costs of fish returns and provided for an 

additional increase for facilities whose 

intakes would be difficult to install fish 

returns. 

For further discussion, see Section IX 

and the TDD (Chapter 8). 

2. Entrainment Mortality Technology 

Costs 

Industrial stakeholder commenters 

argued that closed-cycle cooling costs 

are underestimated and the cost analysis 

fails to include any costs for 

entrainment requirements. Riverkeeper 

argued that the EPA closed-cycle costs 

are overestimated. 

Response: For both the proposal and 

this final rule, EPA revised the 

methodology for estimating closed-cycle 

costs from what was used for Phase II 

and Phase III. EPA’s revised 

methodology is based on the cost 

methodology provided by the Electric 

Power Research Institute (EPRI). EPRI 

based its cost methodology on over 50 

actual and planned closed-cycle cooling 

system retrofits and EPA concluded that 

these cost estimates better reflect actual 

costs. EPRI has updated their closedcycle cost methodology since EPA 

adoption of the earlier version and 

provided an estimate of closed-cycle 

costs for generators with a design flow 

above 50 mgd (See DCN 12–6807). A 

comparison between the EPRI estimates 

and comparable EPA estimates indicate 

that the EPA capital and downtime costs 

are somewhat lower than the EPRI 

estimates, while the EPA energy penalty 

costs are higher. (See DCN 12–6656.) 

While Riverkeeper cites actual costs 

from retrofit projects completed in 1998 

and 2002 to support the argument that 

EPA’s capital costs are overestimated, 

EPA has identified more recent closedcycle retrofits where the capital costs 

were much higher than the EPA average, 

suggesting that the costs used by EPA in 

the final rule are representative of the 

range of costs that may occur 

nationwide. (See DCN 12–6656.) Thus 

EPA considers its closed-cycle costs to 

reasonably reflect actual costs. 

EPA also received estimated costs for 

closed-cycle retrofits at small, medium, 

and large manufacturing cooling 

systems from the American Chemical 

Council (ACC). A comparison of these 

costs to comparable EPA estimates 

indicated that for larger systems the 

costs are mostly in agreement but that 

for smaller systems (e.g., 5,000 gpm), the 

EPA cost estimates are lower. EPA’s 

acknowledges its methodology uses a 

linear approach and does not fully 


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account for the increased costs 

associated with the diseconomies of 

scale at the lower end of the spectrum 

of system sizes. 

Under EPA’s selected option, 

compliance for entrainment reduction 

requirements is established on a sitespecific basis. Because no particular 

result is prescribed under this approach, 

it is difficult to ascribe compliance costs 

for this aspect of the rule without the 

site-specific information that will be 

generated as a result of the national BTA 

standard for entrainment decisionmaking established by today’s rule. For 

Proposal Options 2 and 3 where closedcycle cooling would be required, EPA 

did estimate costs for closed-cycle 

cooling. EPA has not estimated what 

site-specific determinations will be 

made as part of the analysis. 

H. Monitoring and Reporting 

1. Velocity Monitoring 

Many commenters explained that it 

would be difficult to directly measure 

through-screen velocity for screen 

technology and agreed with the 

suggestion in the NODA that EPA 

should allow for calculation of throughscreen velocity. Also, many were 

concerned that a velocity limit based on 

minimum water levels would be 

difficult to comply with. Of concern are 

extreme conditions that are beyond the 

facility’s control (e.g., low water due to 

drought). 

Response: EPA agrees that direct 

measurement of intake velocity on a 

traveling screen may be problematic in 

some circumstances, and the final rule 

allows intakes to comply with the low 

velocity IM compliance alternatives by 

either calculation or direct 

measurement. Compliance will be 

demonstrated through monitoring and 

reporting of actual or calculated intake 

velocities. Short-term exceedances of 

the velocity may be permissible for brief 

periods, with Director approval, for 

purposes of maintaining the cooling 

water intake system, such as 

backwashing the screen face. EPA 

expects that facilities will employ 

appropriate design and operational 

measures to ensure that the maximum 

velocity is not exceeded during 

minimum ambient source water surface 

elevations, as can be anticipated 

through best professional judgment 

using hydrological data. 

2. Impingement Mortality Monitoring 

EPA received many comments 

concerning impingement mortality 

monitoring. Issues regarding 

impingement monitoring included the 

following: 

• Many commenters expressed 

concern that the impingement mortality 

standard is unclear as to what species 

the impingement mortality requirements 

apply. 

• Intakes with low impingement 

would have difficulty calculating 

impingement mortality. 

• Monitoring requirements for 

impingement mortality are excessive, 

especially given the physical and 

biological challenges of appropriate 

sampling. 

• Monitoring requirements should be 

eliminated for properly installed/

operated pre-approved technologies. 

• Impingement ‘‘selects’’ impaired 

organisms, resulting in bias. 

Response: EPA has addressed 

concerns regarding monitoring in the 

final rule. For example, there is no 

biological compliance monitoring for 

pre-approved and streamlined 

compliance alternatives in § 125.94 

(c)(1) through (6) of today’s rule beyond 

that required for the permit application, 

and monitoring may be greatly reduced 

for other facilities. EPA recognizes that 

biological monitoring can be expensive, 

which factored into EPA significantly 

reducing those requirements. With 

respect to intakes with low 

impingement having difficulty 

calculating impingement mortality, 

facilities can demonstrate under 

§ 125.94(c)(6) that the rate of 

impingement is reduced due to intake 

location or other technologies or factors. 

Further, under § 125.94(c)(11) a facility 

can demonstrate to the Director that 

there is a de minimis rate of 

impingement such that no additional 

controls are warranted. 

3. Reporting Requirements 

Comments concerning reporting 

requirements included the following: 

• Commenters argue that permit 

application deadlines are unreasonable, 

especially given the limited number of 

consultants available and that EPA 

overestimates the number of facilities 

that have completed these studies. 

• Peer review requirements are overly 

burdensome. 

• Permit application requirements are 

burdensome and EPA should revise the 

proposed rules to remove, limit, or 

streamline the numbers and types of 

data, studies, and reports required. 

Permit application requirements should 

be reduced for smaller facilities with 

intake flow in the 2–125 mgd range. 

• The proposed rule requires the 

§ 122.21(r) permit application materials 

for each permit cycle, regardless of 

whether the facility has been modified. 

After the initial assessment of BTA in 

the first permit cycle under the new 

rule, the permittee should not be 

required to do additional studies and 

submit further documentation unless 

there is a significant change in the 

facility’s cooling system. 

Response: EPA notes that facilities 

have several flexibilities to address the 

first point, including: (1) If a permit is 

issued prior to July 14, 2018, the 

Director can delay submission 

requirements until such time that the 

facility can complete them and (2) in 

permit terms subsequent to the first 

permit issued under today’s rule, the 

Director can waive some or all of the 

studies. With respect to peer review, 

EPA disagrees that peer review is overly 

burdensome. How to undertake a peer 

review is widely known, generally 

following a well-established process. 

EPA notes that peer review is a normal 

part of Agency activities, and that 

commenters generally favor the 

application of peer review to 

environmental data and analyses. With 

respect to the burden of the permit 

application process and subsequent 

permit cycles, EPA has reduced the 

permit application requirements for the 

final rule and streamlined biological 

data collection to two years of data 

collected as part of the permit 

application (with the exception of the 

few facilities expected to comply with 

the impingement mortality standard 

under the alternative at § 125.94(c)(7)). 

In addition, entrainment studies are not 

prescribed for facilities below 125 mgd, 

although the Director may require the 

facility to provide information beyond 

the basic permit application 

information. Also, the Director can 

waive study requirements in permit 

terms subsequent to the first permit 

issued under today’s rule. 

I. Endangered Species Act 

Some commenters argued that it is 

inappropriate to automatically treat T&E 

species in a special category and 

provide for special consideration for 

them under the rule. These commenters 

asserted that EPA has no basis for 

incorporating ESA requirements into the 

rule and addressing ESA species under 

the NPDES program; they argued that 

the ESA operates independently. Other 

commenters argued that EPA has an 

obligation under the ESA to consult 

with the Services if cooling water intake 

structures are likely to affect threatened 

or endangered species. 

Response: EPA has addressed T&E 

species and critical habitat in this rule 

to the extent necessary to ensure that 

this action is consistent with both the 

Endangered Species Act and CWA 

section 316(b). Section 7 of the 

Endangered Species Act states that 


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83EPA’s costs do not assume zero compliance 

costs for prior BTA determinations or permit 

proceedings; all facilities were assessed costs on the 

basis of technologies in place as described in 

Section IX. 

84However, if conditions at the facility or in the 

waterbody have in fact changed substantially since 

the previous permit application, the Director will 

revisit data collection needs and possibly the BTA 

determination. The presence of any habitat 

designated as critical, or species listed as threatened 

or endangered after issuance of the current permit 

‘‘each Federal agency shall, in 

consultation with and with the 

assistance of [the services] insure that 

any action authorized, funded, or 

carried out by [the agency] . . . is not 

likely to jeopardize the continued 

existence of any threatened or 

endangered species or result in the 

destruction or adverse modification of 

[designated critical] habitat.’’ Under 

CWA section 316(b), facilities subject to 

NPDES permitting that have cooling 

water intake structures are subject to 

BTA to minimize adverse 

environmental impacts. The final rule 

requires NPDES 316(b) permittees to 

identify all Federally-listed threatened 

and endangered species and/or 

designated critical habitat that are or 

may be present in the action area. The 

Director may reject an otherwise 

available technology as a basis for 

entrainment requirements if the Director 

determines there are unacceptable 

adverse impacts including 

impingement, entrainment, or other 

adverse effects to Federally-listed 

threatened or endangered species or 

designated critical habitat. EPA 

consulted with the Services under the 

ESA regarding this rule, and a summary 

of the requirements related to 

threatened or endangered species is 

discussed in Section VIII.K of this 

preamble. 

VIII. Implementation 

The following sections describe how 

the Agency expects the final rule 

requirements to be implemented. The 

requirements of today’s final rule will 

be applied to facilities through NPDES 

permits issued by EPA or authorized 

States under CWA section 402. A 

facility may generally choose to 

demonstrate compliance with the final 

rule by demonstrating compliance for 

the entire facility, or by demonstrating 

compliance for each individual cooling 

water intake structure. For example, a 

facility with two intakes could 

demonstrate flow reduction 

commensurate with an existing closedcycle recirculating system for the first 

intake, and demonstrate the intake 

velocity at the screen face is less than 

0.5 feet per second at the second intake. 

Alternatively, the facility could 

demonstrate that each of the facility’s 

intakes are designed with an intake 

velocity of less than 0.5 feet per second. 

For details about the scope and 

applicability of today’s final rule, see 

Section I above. 

Today’s final rule (as described in 

Section IV above) establishes permit 

application requirements for existing 

facilities in §§ 122.21 and 125.95, 

monitoring requirements in § 125.96, 

and record-keeping and reporting 

requirements in § 125.97. All existing 

facilities subject to the final rule that 

withdraw from one or more cooling 

water intake structures with a facilitywide DIF of greater than 2 mgd are 

required to comply with the national 

BTA impingement mortality standard at 

§ 125.94(c) and national BTA 

entrainment standard at § 125.94(d). 

New units at existing facilities are 

required to meet the national BTA 

impingement mortality and entrainment 

standards at § 125.94(e). 

The final regulations also require the 

Director to review permit application 

materials submitted by each regulated 

facility, establish impingement 

mortality and entrainment requirements 

in accordance with this rule, and issue 

permits that include monitoring and 

record-keeping requirements (§ 125.98). 

The permit application requirements, 

monitoring, record-keeping, and 

reporting requirements for each of the 

compliance alternatives are detailed in 

the following sections. 

A. When does the final rule become 

effective and how are the requirements 

sequenced in an orderly way? 

This rule becomes effective on 

October 14, 2014. The requirements in 

this rule will then be implemented in 

NPDES permits as the permits are 

issued. 

EPA has sought to address the 

information and studies required in the 

permit application associated with 

ongoing permitting proceedings and 

subsequent permitting after the first 

implementation of this rule in a permit. 

The EPA realizes that, in some cases, a 

facility may already be in the middle of 

a permit proceeding at the time of 

promulgation of this rule, or the 

Director may have already required 

much of the same information be 

submitted by the facility prior to 

promulgation of today’s final rule. 

Therefore the rule includes several 

provisions that provide flexibility for 

the permit application requirements. 

First, in the case of any permit expiring 

after July 14, 2018, under § 125.95 the 

facility must submit permit application 

materials required in § 122.21(r) with its 

next NPDES permit renewal application. 

Second, in the case of any permit 

expiring prior to July 14, 2018, under 

§ 125.95 a facility may request that the 

Director waive the submission date of 

the permit application requirements of 

§ 122.21(r) based on a showing by the 

owner or operator of the facility that it 

could not develop the information for 

which such a waiver is requested by the 

time required for submission of the 

permit renewal application. If the 

Director then chose to allow a delay for 

the submittal of any of the information 

requirements of § 122.21(r), the Director 

would then determine the schedule for 

submission of any delayed requirements 

to be as soon as practicable. Third, in 

the case of permit proceedings begun 

prior to the effective date of today’s rule, 

and issued prior to July 14, 2018, the 

Director should proceed. See 

§§ 125.95(a)(2) and 125.98(g). In such 

circumstances where permit 

proceedings have already begun prior to 

the effective date of the rule, these 

facilities will still need to submit the 

appropriate permit application materials 

found at § 122.21(r) permit applications 

during their next application. 

Additionally, while EPA expects that 

many facilities will already comply with 

§ 125.94(c), in some cases the facility 

will need to choose one of the 

compliance alternatives for IM in their 

subsequent permit cycle.83 In particular, 

EPA expects the facility would submit 

the information required in § 122.21(r), 

and the Director would make a 

determination of BTA for entrainment 

for that facility. Only after the Director 

has established site-specific BTA 

requirements for entrainment reduction 

will the facility have to select the 

compliance alternative on which it will 

rely to meet the IM requirements of 

today’s rule. The Director may either 

amend the permit to include the IM 

requirements or include them in a 

subsequent permit if the Director 

determines the proposed controls are 

consistent with § 125.94(c). The Director 

would establish a schedule 

incorporating each of these sequential 

actions. In addition, the rule allows the 

Director the flexibility to grant a request 

for a waiver of permit application 

requirements in § 122.21(r)(6) in order 

to accommodate the circumstances 

described here. See §§ 122.21(r)(1)(i) 

and 125.95(a). Fourth, in permit 

applications subsequent to the first 

permit issued under § 125.94(a)(1) with 

all required information submitted 

under § 122.21(r), the Director may 

approve a request to reduce information 

required, if conditions at the facility and 

in the waterbody remain substantially 

unchanged since the previous 

application.84 See § 125.95(c). In 


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(whose range of habitat or designated critical habit 

includes waters where a facility intake is located) 

constitutes potential for a substantial change that 

must be addressed by the owner/operator in 

subsequent permit applications, unless the facility 

received an exemption pursuant to 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. 

addition to all of these flexibilities, 

today’s final rule gives advance notice 

to affected facilities about permit 

application materials and compliance 

schedules. 

While the final rule has both reduced 

and streamlined the permit application 

requirements, the EPA has determined 

that for many facilities, it may take as 

long as 39 months to plan, collect, and 

compile the data and studies required to 

be submitted with the permit 

application (see Section C below for a 

more detailed discussion of each 

application element). The rule therefore 

specifies that July 14, 2018 reflects the 

date after which all permit application 

requirements must be submitted as 

specified at § 125.95. Specific permit 

requirements may not need a full 39 

months for completion, therefore the 

Director may establish a schedule for 

submission of the required permit 

application elements. For example, 

planning for required sampling may 

take 6 months, inclusive of establishing 

a sampling team, developing sampling 

protocols, and acquiring necessary 

equipment. Source water sampling and 

characterization under § 122.21(r)(4) 

includes two years’ worth of data. 

Therefore, the EPA expects a minimum 

of 30 months will be necessary for 

submission of § 122.21(r)(4), assuming 

the facility collects new data; this 

timeframe could be shorter if the facility 

chooses to use existing biological data. 

Facilities choosing to comply with the 

IM requirements through either 

§ 125.94(c)(5) or (c)(6) must collect at 

least 2 years data upon which the 

facility would demonstrate that the 

modified traveling screens or the 

facility’s systems of technology have 

been optimized to minimize 

impingement mortality. Therefore, the 

EPA expects a minimum of 30 months 

will be necessary for submission of 

§ 122.21(r)(6), assuming the facility 

collects new data. Collection of 

entrainment characterization data and 

studies should occur in parallel with IM 

studies and sampling. Thus, after the 

initial 6 month planning period, 

facilities that do not already have recent 

entrainment characterization data will 

collect a minimum of 2 years 

entrainment data under § 122.21(r)(9). 

Facilities are expected to need an 

additional 9 months to assemble the 

entrainment data and studies as 

required by § 122.21(r)(9) through (12). 

Therefore, the EPA has concluded that 

as many as 39 months will be necessary 

for final submission of all requirements 

under § 122.21(r). This time frame will 

be adequate for facilities under 125 mgd 

AIF; facilities over 125 mgd AIF also 

need to have their 122.21(r)(10) to (12) 

studies peer reviewed. The EPA expects 

3 months will be needed for completion 

of peer review requirements and 

generation of a final report. However, 

many of the facilities over 125 mgd AIF 

were subject to the Phase II rule before 

it was suspended (that is, all electric 

generators over 125 mgd AIF are also 

above 50 mgd DIF), and likely need less 

time for up front planning and/or data 

collection. Therefore, the EPA has 

concluded that as many as 39 months 

will be adequate for these facilities to 

meet all requirements under § 122.21(r). 

These time frames are consistent with 

the timeline EPA included in the 

proposed rule, and also matches the 31⁄2

years previously provided in the Phase 

II rule for data collection and studies. 

EPA notes the submission of the studies 

required with the permit application 

should not be confused with the 

schedule for compliance with the BTA 

requirements, as discussed below. 

EPA has also sought to sequence the 

impingement mortality controls so that 

a facility may select and implement 

these controls after the Director’s 

determination of controls on 

entrainment. With respect to 

entrainment requirements, existing 

facilities withdrawing greater than 125 

mgd AIF must submit permit 

application materials including the 

studies prescribed in today’s final rule 

at § 122.21(r)(9) through (13) in order to 

help the Director determine what 

entrainment controls to require at the 

facility. Facilities at or below this 

threshold must submit any information 

requested by the Director. The Director 

will then review these materials and 

determine if further entrainment 

controls are necessary. Once the BTA 

requirements for entrainment have been 

established, the facility would finalize 

its chosen method for compliance with 

impingement mortality under 

§ 125.94(c). It would then be appropriate 

for the Director to develop a schedule 

whereby the facility would proceed to 

design, construct, and implement its 

technologies for impingement mortality, 

for entrainment, or for both together 

should the same technology addresses 

both impacts. In this manner, the EPA 

has harmonized the schedules for 

meeting both impingement mortality 

requirements and entrainment 

requirements. 

EPA further notes that approximately 

2 percent of facilities have no controls 

in place for impingement or 

entrainment, or that a facility may 

choose to install modified traveling 

screens as part of its compliance 

response. In these circumstances, not 

only does EPA expect such decisions to 

be delayed until after the Director has 

determined the BTA requirements for 

entrainment, EPA acknowledges that the 

required optimization study of 

§ 122.21(r)(6) cannot be completed until 

after the technology has been designed 

and constructed. EPA has provided the 

Director the flexibility to establish an 

appropriate schedule for submission of 

such studies under § 125.95(a)(2). 

After the effective date of the 

regulation, when the first permit 

implementing the new regulatory 

requirements is issued, permitting 

authorities typically consider the need 

to allow facilities some period of time 

to come into compliance. Under today’s 

final rule, facilities will have to comply 

with the impingement mortality and 

entrainment requirements as soon as 

practicable according to the schedule of 

requirements set by the Director. The 

concept of compliance schedules may 

be found in the generally applicable 

NPDES regulations at 40 CFR 122.47. 

Because section 316(b) has no statutory 

deadline for meeting the ‘‘best available 

technology for minimizing adverse 

environmental impact’’ standard, there 

is no statutory bar to use of a 

compliance schedule in appropriate 

circumstances. The EPA recognizes that 

it will take facilities time to upgrade 

existing technologies, and install new 

technologies, and that there are limits 

on the number of facilities that can be 

simultaneously offline to install control 

technology and still supply goods and 

services to orderly, functioning markets. 

It is appropriate for the Director to take 

this into account when establishing a 

deadline for compliance. Any such 

schedule would take into account 

factors provided in § 125.98(c), such as 

measures needed to maintain adequate 

energy reliability by an electric 

generating facility, or extenuating 

circumstances such as scheduled 

production outages at a manufacturing 

facility. 

There may be overlap in the 

technologies used to comply with 

impingement mortality and entrainment 

standards, which could result in the 

facility needing more time to comply 

with the impingement mortality 

requirements. For example, if a facility 

plans to retrofit to wet cooling towers to 

reduce entrainment, the wet cooling 

towers technology will also comply 

with the impingement mortality 


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85For example, facilities that were subject to 

Phase II will have already collected most of the data 

and information as part of the Phase II rule issued 

February 16, 2004 and implemented up until 

suspension of that rule on July 9, 2007. 

standard under § 125.94(c)(1). As such, 

the Director would schedule compliance 

with the impingement mortality 

requirements to match the schedule for 

entrainment requirements. Further, EPA 

recognizes that in some cases, especially 

where additional entrainment control 

technologies are required, the facility 

could require a lengthy period of time 

to design, construct, and implement 

control technologies. Therefore, the rule 

authorizes the Director, at § 125.94(h), to 

establish interim BTA requirements in a 

facility’s schedule of requirements, for 

impingement mortality, entrainment, or 

both, where necessary on a site-specific 

basis. 

In contrast to the proposed rule, 

today’s final rule does not include a 

requirement for compliance with the 

impingement mortality standards within 

eight years. EPA expects, however, that 

the final rule will generally result in 

compliance within a similar period of 

time. The combination of permit 

issuance, the Director’s determination of 

BTA for entrainment, and the 

subsequent schedule of requirements for 

impingement mortality will result in 

some facilities, particularly those 

already in a permitting proceeding, or 

with controls similar to what the new 

permit requires, being in compliance 

within a very short time frame. Some 

facilities that are not now in a 

permitting proceeding may need as 

much as three and a half years to fully 

complete their studies and data 

collection, and depending on the types 

of control selected, may need additional 

time to design, construct, and 

implement their technologies. In some 

cases, the Director’s determination for 

entrainment may result in a facility 

meeting both the impingement mortality 

and entrainment BTA requirements in 

fewer than eight years. All facilities will 

be required to follow their schedule as 

determined by the Director. 

EPA notes that there is a three-year 

period after the effective date of this 

rule before Directors will be receiving 

permit applications containing the full 

set of application requirements in 

§ 122.21(r). EPA is aware that currently 

many NPDES permits for facilities with 

a CWIS have been administratively 

continued. For these administratively 

continued permits, the Director should 

consider if any permits would need 

additional updated information to 

support the permit issuance decision. 

The Director may, under 40 CFR 

122.21(g)(13), request additional 

information including any permit 

application requirements in § 122.21(r). 

B. How does the final rule reduce 

biological monitoring requirements? 

The EPA has streamlined the 

biological data and study requirements 

for both impingement mortality and 

entrainment into one comprehensive set 

of permit application requirements and 

provisions. The Source Water Baseline 

Biological Characterization Data, 

impingement technology performance 

optimization study, Entrainment 

Characterization Study, and where 

applicable, entrainment performance 

studies are all conducted within the 

same two year time frame prior to 

submission of an application for a 

permit. Further, as shown in Exhibit 

VIII–1, EPA’s analysis indicates that 

more than 99 percent of existing 

facilities will choose an alternative for 

impingement mortality that does not 

require continual biological compliance 

monitoring. Thus any required 

biological data consists solely of that 

required to be collected to meet the 

permit application requirements. See 

Section F for further discussion. 

EXHIBIT VIII–1—EPA’S PROJECTIONS OF HOW FACILITIES WILL CHOOSE TO COMPLY WITH THE IM REQUIREMENTS

IM compliance alternative Intake count a Percent of total 

intakes 

Closed-cycle recirculating system c ................................................................................................................. 307 18 

Design velocity ................................................................................................................................................. 362 21 

Actual velocity .................................................................................................................................................. 226 13 

Existing offshore velocity cap c ........................................................................................................................ 10 1 

Modified traveling screens ............................................................................................................................... 488 29 

System of technologies ................................................................................................................................... 278 17 

Impingement Mortality Performance Standard ................................................................................................ 12 0.7 

De minimis ....................................................................................................................................................... **b **b

Total .......................................................................................................................................................... 1,682 100 

aEPA’s compliance costs for each facility are based on the sum of the facility’s intake level compliance costs. Some facilities have more than 

one intake. See IX.B.2 for more information on the use of the survey data. bEPA has not estimated which facilities will be determined to be ‘‘de minimis’’ under § 125.94(c)(11) by the Director. For purposes of this analysis, EPA has assumed no facilities fall under the ‘‘de minimis’’ provision. cEPA is not projecting facilities will install closed-cycle recirculating systems or offshore velocity caps to comply with the IM requirements, rather these facilities already have these technologies installed. 

By merging the data collection and 

studies into the permit application 

requirements, EPA expects 

approximately half of all affected 

facilities will be able to complete the 

initial permit application within a few 

months.85 In the case of a facility that 

was not previously required to collect 

data and conduct studies, it may take up 

to 45 months lead time for a permit to 

be applied for, and additional time for 

the permit to be issued. Although the 

permit application times may be longer 

for the first permit cycle after this rule, 

this is a tradeoff for the flexible IM 

requirements. 

Once the permit is issued, EPA 

anticipates very few, if any, facilities 

will be required to conduct ongoing 

biological compliance monitoring 

related to impingement controls; for 

more details, see Section F and Exhibit 

VIII–4. Instead, for each subsequent 

permit cycle each facility would either 

(1) demonstrate to the Director that 

facility operations and waterbody 

characteristics are substantially 

unchanged, or (2) update any biological 

characterization data. Anticipating that 

NPDES permits are renewed when they 

expire, the update to the facility’s 

biological characterization and any 

corresponding biological performance 

evaluations would be conducted 

approximately every five years. 


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86The Director could, for example, issue a permit 

before the optimization study has been completed, 

and include a schedule for submission of the 

optimization study in the newly issued permit. 

87AIF is calculated from the most recent three 

years’ data or five years in subsequent permit 

cycles. As such, AIF is a variable number. It is 

possible that a facility could transition from below 

125 mgd to above 125 mgd if the facility 

significantly increases withdrawal of cooling water, 

such as if the facility increases capacity or if it adds 

a new unit. In these cases, the facility will then be 

required to conduct the studies and meet the permit 

application requirements at § 122.21(r)(9)–(13). This 

consequence is intended to incentivize facilities to 

reduce or reuse water for cooling, thereby avoiding 

the need for additional permit application studies. 

C. What information will I be required 

to submit to the director when I apply 

for my NPDES permit? 

Today’s final rule establishes, at 

§ 122.21(r), permit application 

requirements for all facilities subject to 

the requirements of § 125.94. Each 

permit application element at 

§ 122.21(r) is described in more detail 

below. The final rule requires existing 

facilities to prepare and submit some of 

the same information as previously 

required for new facilities subject to 

subparts I or N (i.e., Phase I new power 

plants and manufacturers or Phase III 

new offshore oil and gas facilities), 

namely the information at § 122.21(r)(2) 

through (4). In addition, the rule adds 

subparagraphs for existing facilities to 

the regulations at § 122.21(r)(4), as well 

as (r)(5) through (13) to include the 

information and study requirements 

specific to existing facilities. 

In the case of a new unit constructed 

at an existing facility, EPA expects 

much of the information submitted by 

the facility in previous permit 

applications would still be current and 

relevant. Therefore, EPA has reduced 

the permit application requirements to 

those necessary to update the facility’s 

previously submitted information under 

§ 122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), 

(r)(7) and (r)(8). In other words, the new 

unit permit application is intended to 

describe the changes to these documents 

as a result of the addition of the new 

unit. In addition, the facility must 

submit information specific to the new 

unit’s chosen compliance method at 

§ 122.21(r)(14). 

All existing facilities are required to 

complete and submit permit application 

studies to describe the source waterbody 

(§ 122.21(r)(2)), cooling water intake 

structures (§ 122.21(r)(3)), characterize 

the biological community in the vicinity 

of the cooling water intake structure 

(§ 122.21(r)(4)), cooling water system 

(§ 122.21(r)(5)), and operational status 

(§ 122.21(r)(8)). Facilities that already 

use a closed-cycle recirculating system 

must still submit this information in 

their permit application. The Director 

will need, for instance, the biological 

sampling data in § 122.21(r)(4) to serve 

as a record basis for their BTA 

determination in the permit. 

Furthermore, in Phase I, new facilities 

were required to be commensurate with 

closed-cycle, to meet the 0.5 fps velocity 

limit, and to collect two years’ worth of 

biological data to establish a record 

basis for impacts at the facility. In 

addition, the data collected here is 

important to inform an owner/operator’s 

evaluation of whether and if so what 

threatened or endangered species or 

designated critical habitat are or may be 

present in the action area. 

All existing facilities must describe 

their existing impingement and 

entrainment technologies or operational 

measures and a summary of their 

performance, including but not limited 

to reductions in impingement mortality 

and entrainment due to intake location 

and reductions in total water 

withdrawals and usage 

(§ 122.21(r)(5)(iii)). All facilities must 

also complete and submit their chosen 

compliance method for impingement 

mortality (§ 122.21(r)(6)). This includes 

identification of any requests for BTA 

determinations under § 125.94(c)(11) de 

minimis rates of impingement or 

§ 125.94(c)(12) low capacity utilization 

power generation units. In addition, the 

owner or operator of an existing facility 

must submit the information required 

under paragraph (r)(6) of § 122.21 for the 

alternative specified at 40 CFR 125.94(c) 

that the owner or operator of an existing 

facility chooses to rely on as its method 

of compliance with the BTA Standards 

for Impingement Mortality specified in 

40 CFR 125.94. Because the IM 

compliance options § 125.94(c)(1), (2), 

and (4) include pre-approved 

technologies, the owner or operator of a 

facility choosing one of these three 

options to comply with the IM 

requirements does not have either 

biological studies or biological 

compliance monitoring related to the 

applicable IM standard. Compliance 

options § 125.94(c)(3), (5), and (6) are 

streamlined options. For two of these 

three options, the permit application 

element § 122.21(r)(6) further requires a 

site-specific study for the purposes of 

technology optimization to minimize 

impingement mortality, including 

additional biological data collection that 

in most cases would occur during the 

same two year period of data collection 

for the Source Water Baseline Biological 

Characterization Data required under 

§ 122.21(r)(4) to characterize the 

baseline, and a demonstration that the 

operation of specific technologies at 

your facility have been optimized to 

minimize impingement mortality. The 

owner or operator of a facility choosing 

one of these three options to comply 

with the IM requirements do not have 

ongoing biological compliance 

monitoring as part of the applicable IM 

standard. As discussed in the previous 

section, the Director can establish a 

schedule 86 for submitting the 

optimization study if the facility first 

needs to install additional technology 

for IM. 

All existing facilities may submit to 

the Director additional permit 

application studies to describe 

biological survival studies that address 

technology efficacy and other studies on 

entrainment at the facility 

(§ 122.21(r)(7)). This requirement does 

not impose any new or additional study 

requirements. This permit application 

element includes the submission of 

existing studies conducted by or 

relevant to the facility. Further, the 

burden of this requirement has been 

reduced since proposal by only referring 

to studies of entrainment. 

All existing facilities that withdraw 

more than 125 mgd AIF 87 of water for 

cooling purposes must also submit 

additional information to characterize 

entrainment and assess the costs and 

benefits of installing various potential 

technological and operational controls. 

These facilities are required to submit to 

the Director additional permit 

application studies including 

§ 122.21(r)(9), Entrainment 

Characterization Study; § 122.21(r)(10), 

Comprehensive Technical Feasibility 

and Cost Evaluation Study; 

§ 122.21(r)(11), Benefits Valuation 

Study; and § 122.21(r)(12), Non-water 

Quality Environmental and Other 

Impacts Assessment. As with the 

biological data collection required of 

some facilities under § 122.21(r)(6), EPA 

expects biological data collection for the 

purposes of entrainment 

characterization to occur during the 

same two year period of biological data 

collection required under § 122.21(r)(4). 

EPA notes that facilities below the 125 

mgd threshold are not automatically 

exempt from entrainment requirements. 

The Director may determine that 

entrainment studies may be required or 

that entrainment controls may need to 

be installed for any cooling water intake 

structure. See the Section VI of this 

preamble for more information. 

The final rule further requires the 

studies at § 122.21(r)(10) through (r)(12) 

be subject to an external peer review as 

required at § 122.21(r)(13); a separate 

peer review is not required for 

§ 122.21(r)(9), as it is implicitly 


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reviewed via its use in § 122.21(r)(10) 

and (r)(11). EPA expects the facility 

would first notify the Director of the 

peer review in advance. For example, 

facilities could identify their peer 

reviewers near the beginning of their 

biological data collection for the 

required Entrainment Characterization 

Study at § 122.21(r)(9). Since a facility’s 

permit application requires two years of 

biological data, EPA expects this is more 

than enough time for the facility to 

identify peer reviewers, and for the 

Director to disapprove of a peer 

reviewer or require additional 

reviewers. Further, this provides the 

Director ample opportunity to confer 

with those agencies with responsibility 

for fish and wildlife potentially affected 

by the cooling water intake structure, 

including other Federal, State, and 

Tribal agencies. Similarly, in the case of 

permits for electric generating utilities, 

EPA expects this is enough time to 

confer with state co-regulators such as 

public utility commissions, or 

independent system operators whose 

responsibility it is to ensure reliability 

of the electricity grid. To minimize the 

overall time required to conduct a peer 

review, all studies conducted by the 

facility under § 122.21(r)(10) through 

(12) will be subject to peer review at the 

same time, in a holistic fashion. 

Additional guidance on conducting peer 

review is available on EPA’s Peer 

Review Program Web site at 

www.epa.gov/peerreview. EPA expects 

the Director will use the permit 

application information, studies, and 

peer review results to assess the 

impingement and entrainment impacts 

of the cooling water intake structure and 

determine appropriate technological or 

operational controls, or both, as 

necessary. 

While all facilities must submit 

§ 122.21(r)(2) through (6) and (r)(8) and, 

where applicable (r)(7), EPA has 

reduced the permit application 

requirements based on the facility’s 

chosen compliance method for 

impingement mortality. Exhibits VIII–2 

and VIII–3 below illustrate the permit 

application requirements as they relate 

to an existing facility’s chosen 

compliance methods. EPA expects 

permit application requirements for new 

units will consist of updates to 

previously submitted permit 

applications for the rest of the existing 

facility at which the new unit is being 

constructed. 

For a new unit at an existing facility, 

EPA expects that only the appropriate 

and relevant updates to the existing 

facility’s permit application materials 

are required (in addition to newly 

developed materials required at 

§ 122.21(r)(14)). For example, the 

facility would update § 122.21(r)(3) to 

indicate the addition of the new unit, 

any new intakes associated with the 

new unit, expected operational 

characteristics, etc. For the owner or 

operator of a new unit and with an AIF 

greater than 125 mgd, the permit 

application materials under 

§ 122.21(r)(9)–(13) are required. In those 

circumstances where data specific to the 

facility indicate that compliance with 

the requirements of paragraphs (e)(1) or 

(2) of § 125.94 for a new unit would 

result in compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at 

issue, or would result in significant 

adverse impacts on local air quality, 

significant adverse impacts on local 

water resources other than impingement 

or entrainment, or significant adverse 

impacts on local energy markets, the 

rule requires the submission of such 

data as part of § 122.21(r)(14). EPA notes 

that when a new unit increases an 

existing facility’s AIF greater than 125 

mgd, the permit application 

requirements also include § 122.21(r)(9) 

through (13). Further, facilities may 

need several years to complete studies 

and data collection and, depending on 

the types of controls selected, may need 

additional time to design and construct 

their technology. Thus while the rule 

requires the permit application for a 

new unit at least 180 days prior to 

commencing cooling water withdrawals, 

it is in the facility’s best interest to 

submit this data well in advance in 

order to prevent any delays in the 

Director’s review of permit application 

materials and subsequent issuance or 

renewal of the facility’s NPDES permit. 

For the owner or operator of a new unit 

opting to comply via § 125.94(e)(2) the 

application materials required under 

§ 122.21(r)(14) must demonstrate 

entrainment reductions equivalent to 90 

percent or greater of the reduction that 

could be achieved through compliance 

with § 125.94(e)(1). 

EXHIBIT VIII–2—SUMMARY OF PERMIT APPLICATION REQUIREMENTS FOR EXISTING FACILITIES ACCORDING TO EXISTING

FACILITIES’ CHOSEN METHOD FOR COMPLIANCE WITH IMPINGEMENT MORTALITY STANDARD

Compliance approach to 

impingement 

§ 122.21 subsection 

(r)(2) (r)(3) (r)(4) (r)(5) (r)(6) (r)(6)(i) (r)(6)(ii) (r)(8) 

Closed-cycle recirculating system .... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ No ............ Yes. 

Design intake velocity ...................... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ No ............ Yes. 

Actual intake velocity ....................... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ No ............ Yes. 

Existing offshore velocity cap .......... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ No ............ Yes. 

Modified traveling screens ............... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ Yes. 

Combination of technologies ............ Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... No ............ Yes .......... Yes. 

Impingement Mortality Performance 

Standard.

Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... Maybe ...... Maybe ...... Yes. 

EXHIBIT VIII–3—SUMMARY OF PERMIT APPLICATION REQUIREMENTS FOR EXISTING FACILITIES: ENTRAINMENT

Compliance approach to entrainment 

§ 122.21 subsection 

(r)(7) (r)(8) (r)(9) (r)(10) (r)(11) (r)(12) (r)(13) 

Closed-cycle recirculating system .......................... Yes .......... Yes .......... Var.a ........ Var.a ........ Var.a ........ Var.a ........ Var.a

Director BTA entrainment determination: facility 

AIF above 125 mgd.

Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... Yes .......... Yes. 

Director BTA entrainment determination: facility 

AIF 125 mgd or below.

Maybe ...... Maybe ...... Maybe ...... Maybe ...... Maybe ...... Maybe ...... Maybe. 

a Director has the discretion to waive. 


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88Where a closed-cycle recirculating system 

withdraws greater than 125 mgd AIF, the 

information required in § 122.21(r)(9) to (13) is 

required, unless the Director reduces or waives 

some or all of the information required. 

In addition, the Director may set 

information requirements not included 

in today’s rule to aid in best 

professional judgment permitting, such 

as will occur for entrainment at facilities 

below 125 mgd AIF, and for 

impingement and entrainment at 

existing facilities below 2 mgd DIF, 

neither of which are required by today’s 

rule to submit items in § 122.21(r)(9) 

through (r)(13). The Director may find 

aspects of the permit application 

requirements to be relevant in such 

situations. A summary of each permit 

application requirement follows.88

1. § 122.21(r)(2) Source Water Physical 

Data 

This requirement is unchanged from 

the Phase I rule and the 2004 Phase II 

rule. The facility is required to submit 

data to characterize the facility and 

evaluate the type of waterbody 

potentially affected by the cooling water 

intake structure. The applicant is 

required to submit a narrative 

description and scaled drawings 

showing the physical configuration of 

all source water bodies used by the 

facility, including areal dimensions, 

depths, salinity and temperature 

regimes, and other documentation that 

supports the determination of the 

waterbody type where each cooling 

water intake structure is located; 

identification and characterization of 

the source waterbody’s hydrological and 

geomorphological features, and the 

methods used to conduct any physical 

studies to determine the intake’s area of 

influence in the waterbody and the 

results of such studies; and locational 

maps. The Director uses this 

information to evaluate the 

appropriateness of any design or 

technologies proposed by the applicant. 

2. § 122.21(r)(3) Cooling Water Intake 

Structure Data 

This requirement is unchanged from 

the Phase I rule and the 2004 Phase II 

rule. This data is used to characterize 

the cooling water intake structure and 

evaluate the potential for impingement 

and entrainment of aquatic organisms. 

Information on the design of the intake 

structure and its location in the water 

column allows evaluation of which 

species and life stages might be subject 

to impingement and entrainment. A 

diagram of the facility’s water balance is 

used to identify the proportion of intake 

water used for cooling, make-up, and 

process water, as well as any cooling 

water supplied by alternate sources, 

such as reuse of another facility’s 

effluent. The water balance diagram also 

provides a picture of the total flow in 

and out of the facility, and is used to 

evaluate gray water, waste water, and 

other reuses in the facility. The 

applicant is required to submit a 

narrative description of the 

configuration of each of cooling water 

intake structure and where it is in the 

waterbody and in the water column; 

latitude and longitude in degrees, 

minutes, and seconds for each cooling 

water intake structure; a narrative 

description of the operation of each of 

cooling water intake structure, 

including design intake flows, daily 

hours of operation, number of days of 

the year in operation and seasonal 

changes, if applicable; a flow 

distribution and water balance diagram 

that includes all sources of water to the 

facility, recirculating flows, and 

discharges; and engineering drawings of 

the cooling water intake structure. 

3. § 122.21(r)(4) Source Water Baseline 

Biological Characterization Data 

This information is similar to that 

required in the Phase I rule. Existing 

facilities are required to characterize the 

biological community in the vicinity of 

the cooling water intake structure and to 

characterize the operation of the cooling 

water intake structures. This supporting 

information must include existing data 

if they are available. However, the 

facility may supplement the data using 

newly conducted field studies if it 

chooses to do so. The information the 

applicant must submit includes 

identification of data that are not 

available and efforts made to identify 

sources of the data; a list of species (or 

relevant taxa) for all life stages and their 

relative abundance in the vicinity of the 

cooling water intake structure; and 

identification of the species and life 

stages that would be most susceptible to 

impingement and entrainment. All 

species should be evaluated, including 

the forage base and those species most 

important in terms of significance to 

commercial and recreational fisheries. 

In addition, the applicant must identify 

and evaluate the primary period of 

reproduction, larval recruitment, and 

period of peak abundance for relevant 

taxa; data representative of the seasonal 

and daily activities (e.g., feeding and 

water column migration) of biological 

organisms in the vicinity of the cooling 

water intake structure. In addition, 

instead of the information required at 

§ 122.21(r)(4)(vi), the owner or operator 

of an existing facility or new unit at an 

existing facility must identify all 

Federally-listed threatened and 

endangered species and/or designated 

critical habitat that are or may be 

present in the action area pursuant to 

§ 125.95(f). The action area can 

generally be considered the area in the 

vicinity of impingement and 

entrainment at the cooling water intake 

structure. The applicant must also 

include documentation of any public 

participation or coordination with 

Federal or State agencies undertaken. If 

the applicant supplements the 

information with data collected using 

field studies, supporting documentation 

for the Source Water Baseline Biological 

Characterization Data must include a 

description of all methods and quality 

assurance procedures for sampling, and 

data analysis including a description of 

the study area; taxonomic identification 

to the lowest taxon possible of sampled 

and evaluated biological assemblages 

(including all life stages of fish and 

shellfish); and sampling and data 

analysis methods. The sampling or data 

analysis (or both) methods used must be 

appropriate for a quantitative survey 

and based on consideration of methods 

used in other biological studies 

performed in the same source 

waterbody. The study area should 

include, at a minimum, the area of 

influence of the cooling water intake 

structure. The applicant may also 

identify protective measures and 

stabilization activities that have been 

implemented and describe how these 

measures and activities affected the 

baseline water condition in the vicinity 

of the intake. 

EPA is adding § 122.21(r)(4)(ix), (x) 

and (xi) to the Source Water Baseline 

Biological Characterization Data for 

existing facilities. Item (ix) simply 

defines the term ‘‘Source Water Baseline 

Biological Characterization Data.’’ EPA 

is requiring item (xi), identification of 

fragile species found at the facility. EPA 

notes that in contrast to the proposed 

rule, the permit application does not 

require submission of the proposed 

‘‘species of concern.’’ EPA found that 

the term ‘‘species of concern’’ was too 

similar to terms as used in the context 

of T&E (threatened and endangered) 

species, and may cause confusion over 

existing Services or State requirements 

for such species. Further, despite EPA’s 

efforts to distinguish between species of 

concern and RIS (representative 

indicator species) in the NODA (77 FR 

34325, June 11, 2011), EPA found that 

many commenters were still confused 

by the language. Instead, EPA is 

adopting the term ‘‘fragile species’’ and 

using the term exactly as it is used with 

the impingement mortality data and 

criteria used in calculating the 


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impingement mortality standards of the 

rule. The definition for ‘‘fragile species’’ 

at § 125.92 is a species of fish or 

shellfish that has an impingement 

survival rate of less than 30 percent 

even when the BTA technology of 

modified traveling screens are in 

operation. EPA has identified fragile 

species in the Chapter 11 of the TDD for 

the final rule. Further, EPA is providing 

examples, in the list of 14 specific 

species in today’s regulatory definition 

as a non-exclusive list. This list 

includes only those species specifically 

analyzed as part of the performance 

standards development. If a permit 

applicant can sufficiently demonstrate a 

record basis, the permitting Director 

may deem a particular species to be a 

fragile species for the purpose of a 

particular permit. 

American shad (Clupeidae), bay 

anchovy (Engraulidae), and blueback 

herring (Clupeidae) belong to families 

that are specifically identified in the 

TDD Chapter 11 as examples of species 

that may be, at the Director’s discretion, 

excluded from performance standards 

on the basis of impingement survival. 

As another example, threadfin shad (a 

species not specifically identified as 

fragile in today’s rule) are prone to fall 

die-off when the water temperature 

reaches 42 degrees. The EPA does not 

intend for such naturally occurring 

mortality to be counted against a 

facility’s performance in reducing 

impingement mortality. EPA is aware of 

limited success in flow reduction and 

behavioral deterrent systems in 

protecting fragile species. However, 

there are no demonstrated and available 

technologies for industry as a whole to 

address fragile species. EPA has long 

recognized these species as having low 

survival rates under the best of 

conditions, and established different 

mechanisms to address these in today’s 

final rule. Today’s BTA for 

impingement mortality allows the 

Director to establish site-specific 

controls under § 125.94(c)(9) to address 

fragile species. 

EPA notes the change in terminology 

to ‘‘fragile species’’ eliminates the 

proposed rule burden on States to 

review and approve each facility’s sitespecific species of concern, and 

eliminates confusion over any T&E or 

RIS that may be subject to more 

stringent requirements under other 

Federal, State, and Tribal law. Further, 

use of ‘‘fragile species’’ instead of 

‘‘species of concern’’ greatly increases 

the transparency of the Agency’s 

impingement mortality performance 

standards. 

In addition, EPA notes that 

§ 122.21(r)(4)(vi) requires the applicant 

to submit information on all threatened 

and endangered species, not just those 

T&E species that are fish or shellfish. 

Examples of T&E species that are not 

fish or shellfish are corals, sea turtles 

and marine mammals. 

4. § 122.21(r)(5) Cooling Water System 

Data 

The Director uses this data in 

determining the appropriate standards 

that would be applied to the facility. 

Facilities are able to use this 

information, along with the water 

balance diagram required by 

§ 122.21(r)(3), to demonstrate the extent 

to which flow reductions have already 

been achieved at the facility level. The 

applicant must provide the following 

information for each cooling water 

intake structure they use: A narrative 

description of the operation of the 

cooling water system and its 

relationship to cooling water intake 

structures (including the use of helper 

towers); the proportion of the design 

intake flow that is used in the system 

including a distribution of water used 

for contact cooling, non-contact cooling, 

and process uses; a distribution of water 

reuse (to include cooling water reused 

as process water, process water reused 

for cooling, and the use of gray water for 

cooling); description of reductions in 

total water withdrawals including 

cooling water intake flow reductions 

already achieved through minimized 

process water withdrawals; description 

of any cooling water that is used in a 

manufacturing process either before or 

after it is used for cooling, including 

other recycled process water flows; the 

proportion of the source waterbody 

withdrawn (monthly); the number of 

days of the year the cooling water 

system is in operation and seasonal 

changes in the operation of the system, 

if applicable. The applicant must also 

submit a description of existing 

impingement and entrainment 

technologies or operational measures 

and a summary of their performance, 

including for example reductions in 

entrainment due to intake location and 

reductions in total water withdrawals 

and usage, and efficiencies in energy 

production for each producing unit that 

result in the use of less cooling water, 

including for example combined cycle 

and cogeneration. For example, the 

applicant may provide comparative 

density data for the intake to 

demonstrate the extent to which 

location of the intake has reduced 

adverse environmental impact. The 

additional information at 

§ 122.21(r)(5)(iii) is specific to those 

process units that use cooling water for 

purposes other than power generation or 

steam, and where the owner or operator 

intends to comply with the BTA for IM 

through either the use of flow reduction 

measures or the reuse of other water for 

cooling purposes. 

5. § 122.21(r)(6) Chosen Method of 

Compliance With Impingement 

Mortality Standard 

Today’s final rule is flexible in 

providing seven different compliance 

options for meeting impingement 

mortality requirements. Under 

§ 122.21(r)(6), the facility must identify 

its approach to meet the impingement 

mortality standards. The facility must 

identify the compliance method for the 

entire facility or, alternatively, the 

compliance method for each cooling 

water intake structure at the facility. 

Finding it to be unnecessary because the 

facility will already have a set of 

requirements to meet based on its 

chosen method of compliance, EPA has 

eliminated the proposed requirement for 

a separate impingement mortality 

reduction plan. In addition, monitoring 

and studies conducted under the 

reduction plan is no longer required by 

all facilities. Instead today’s final rule 

specifies data collection requirements 

only in those instances where the 

facility must demonstrate a particular 

performance outcome as described 

below. 

Facilities choosing to comply with 

§ 125.94(c) by operating a modified 

traveling screen (under § 125.94(c)(5)) 

must submit an impingement 

technology performance optimization 

study under § 122.21(r)(6)(i). The sitespecific study must demonstrate the 

modified traveling screen as defined at 

§ 125.92 has been optimized to 

minimize impingement mortality. The 

study must include a minimum of two 

years of biological data collection. This 

time frame is consistent with the 

requirements at paragraph (r)(4)(iv) of 

§ 122.21 to identify primary periods of 

reproduction and peak abundance, as 

well as § 122.21(r)(4)(v) to provide data 

representative of the seasonal activities, 

both of which would require at least one 

year worth of data collection. EPA 

expects facilities will either use existing 

biological data already required under 

§ 122.21(r)(4) to complete their sitespecific impingement studies, modify 

their biological data collections under 

§ 122.21(r)(4) to be comprehensive and 

inclusive, use existing performance 

studies, or collect supplemental data 

necessary to make their demonstrations. 

If a facility is using previously collected 

data or studies that are more than 10 

years old, the facility must demonstrate 

the data is still relevant and 

representative of the facility. If a facility 


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89For example, the St. Lucie generating facility 

determined that this arrangement was not 

appropriate at their site; see DCN 10–6515. The 

Brunswick facility, has a fish return flume that goes 

to a tributary rather than the intake canal or the 

river. This arrangement places the aquatic 

organisms away from the intake canal and in a more 

gentle water environment to increase the organisms’ 

survival; see DCN 10–6569. 

intends to return organisms to a 

different waterbody from which they are 

withdrawn, a request for consideration 

of this must be made to the Director 

under § 122.21(r)(6). 

The rule specifies sampling at least 

monthly during the two year data 

collection effort of the impingement 

technology performance optimization 

study, and requires documentation of 

methods used including counting of 

moribund organisms, latent mortality, 

holding times, and counting of 

entrapment. The Director may establish 

more frequent collection, as well as 

specify sampling methods and 

additional protocols to be used. If the 

facility intends to return fish and 

shellfish to a different waterbody than 

the source waterbody that is used to 

withdraw cooling water, EPA expects 

this would be identified as part of 

§ 122.21(r)(6)(i). While EPA does not 

expect this situation occurs very 

frequently, the permit application 

information at § 122.21(r)(6)(i) along 

with (r)(4) would provide the Director 

the information needed to determine 

whether such a return location is 

appropriate.89 If the site-specific 

impingement study demonstrates the 

modified traveling screen (as defined at 

§ 125.92) has been optimized to 

minimize impingement mortality, the 

Director may then determine the 

modified traveling screen is the best 

technology available for impingement 

mortality at the site. The Director would 

then include permit conditions that 

ensure the technology will perform as 

demonstrated. If the Director determines 

that additional data is required to 

identify permit operating conditions, 

the Director has the authority to 

establish such requirements under 

§ 125.95(d). Note that the EPA envisions 

the study will function to optimize 

performance, which is not the same as 

requiring a study merely demonstrating 

a specific numeric level of performance 

for impingement mortality has been or 

can be achieved. For the majority of 

facilities, EPA expects annual 

performance using modified traveling 

screens will exceed the Agency’s 

calculated average annual performance 

standards for impingement mortality. 

Several examples of modified traveling 

screens in EPA’s record show annual 

performance for impingement mortality 

that is superior to the impingement 

mortality performance standard (e.g., 

lower than 10 percent). 

Similarly, facilities choosing to 

comply with § 125.94(c) by operating a 

system of technologies (under 

§ 125.94(c)(6)) that will achieve the 

impingement mortality standard must 

submit a impingement technology 

performance optimization study under 

§ 122.21(r)(6)(ii). The site-specific study 

must provide a description of the 

technologies, operational measures, or 

sampling approaches or any 

combination of them to be used to meet 

the BTA for impingement mortality. The 

study must demonstrate that the system 

of technologies has been optimized to 

minimize impingement mortality. EPA 

notes the ‘‘system’’ may consist of one 

or more technologies already in place, 

or may be combined with newly 

installed technologies. Further, the 

study must include a minimum of two 

years of biological data collection, as 

just described. 

The EPA is aware that it is possible 

for a facility to reduce its rate of 

impingement, but the same number of 

impinged fish die. This has the 

unintended consequence of increasing 

the percent impingement mortality 

calculated by the facility. EPA does not 

intend for such facilities to be penalized 

for significant reductions in 

impingement rates obtained through 

existing technologies and practices in 

place. Therefore, one difference in the 

required study for the system of 

technologies compliance alternative (as 

compared to the study required for 

modified traveling screens) is an 

understanding that operational 

measures, best management practices, 

intake location, and other technologies 

do not always lend themselves to direct 

impingement mortality measurements 

or data collection. Thus the study can 

include flow measurements and 

monitoring the rate of impingement (as 

opposed to directly monitoring 

mortality) as described below. 

If the facility chooses to rely on credit 

for reductions in the rate of 

impingement already achieved, the 

impingement technology performance 

optimization study must document the 

reductions to be used as credit. The 

estimated reductions in impingement 

must be based on a comparison of the 

facility to a once-through cooling system 

with a traveling screen located on the 

shoreline of the source waterbody. For 

example, a facility with an offshore 

intake, an intake canal, or an intake 

located immediately downstream of a 

dam in a cold water stream, could 

demonstrate the population of fish at 

the intake is lower in these areas, 

resulting in lower rates of impingement. 

This provision is intended to allow a 

facility that conducted or completed a 

baseline characterization under the 

Phase II rule to use that same 

information as part of their 

demonstration under this rule. 

As discussed in Section VI, EPA has 

identified flow reduction as one of the 

best ways to reduce both impingement 

and entrainment. Today’s final rule, as 

part of the system of technologies 

compliance option at § 125.94(c)(6), 

provides the owner or operator of a 

facility the opportunity to demonstrate 

flow reduction as part of meeting the IM 

standards. If the facility chooses flow 

reduction to reduce impingement, the 

study at § 122.21(r)(6)(ii) must include 

two years of intake flows measured 

daily. This flow information plus the 

data collected under § 122.21(r)(4)(iv) 

would be used to document how the 

flow reduction results in a reduced rate 

of impingement, as well as documenting 

the extent to which such reductions are 

seasonal or intermittent. Many pumps 

operate at only one speed, which 

doesn’t allow the facility to adjust its 

intake flow to changing conditions. As 

a potential application of § 125.94(c)(6), 

EPA is aware of a manufacturing facility 

that installed multiple pumps of 

different sizes, and the operator only 

utilized those pumps that were 

necessary to obtain the exact amount of 

cooling water needed. As another 

example, variable speed drives offer 

many facilities an opportunity to reduce 

their intake flows by as much as 10 

percent. Variable speed drives are 

available at all facilities, and EPA 

expects variable speed drives will be 

considered when replacing existing 

recirculating pumps; however, EPA also 

acknowledges variable speed drives may 

not be practical in all cases. 

Nevertheless, EPA expects variable 

speed drives will be considered by the 

Director when establishing entrainment 

requirements under today’s final rule. 

EPA provided an example of how a 

facility would receive credit for existing 

technologies in the NODA (see 77 FR 

34322, June 11, 2011). An additional 

sample calculation that includes flow 

reduction is provided later in this 

section. 

The study must identify each of these 

contributing components, and requires 

the calculation of the impingement 

mortality reflecting each component of 

the system. The impingement 

technology performance optimization 

study must demonstrate the system of 

technologies has been optimized to 

minimize impingement mortality. In 

addition, the study must document the 

percent impingement mortality 


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90For example, the study may be old and no 

longer representative, the study may address a pilot 

study of a technology no longer under consideration 

by the facility, or the facility may have already 

selected one of the compliance methods for IM 

based on pre-approved technologies at 

§ 125.94(c)(1), (2) or (4). 

reflecting optimized operation of the 

total system of technologies, operational 

measures, and best management 

practices at § 122.21(r)(6)(ii)(D). The 

Director may then determine the system 

of technologies is the best technology 

available for impingement reduction at 

the site. The Director would then 

include permit conditions that ensure 

the technology will perform as 

demonstrated. 

6. § 122.21(r)(7) Entrainment 

Performance Studies 

EPA proposed that a facility must 

submit all previously conducted 

performance studies, but has revised 

this provision in the final rule to 

include only entrainment related 

studies. Impingement performance 

studies, where relevant, are already part 

of the permit application at 

§ 122.21(r)(6). This avoids imposing a 

requirement on all facilities to submit 

previous impingement studies that may 

be unnecessary, and eliminates a burden 

on the Director to review all such 

studies, many of which may no longer 

be relevant.90 Under today’s final rule, 

the applicant must submit a description 

of any biological survival studies 

conducted at the facility and a summary 

of any conclusions or results, including 

the following: site-specific studies 

addressing technology efficacy, throughfacility entrainment survival 

(distinguished for eggs and larvae), 

entrainment analyses, or studies 

conducted at other locations including a 

justification as to why the data are 

relevant and representative of 

conditions at the facility. Because of 

changes in the waterbody over time, 

studies older than 10 years must include 

an explanation of why the data are still 

relevant and representative of 

conditions at the facility. If the data are 

no longer relevant and representative, 

the Director may reject the data. The 

Director uses such studies when 

establishing technology-based 

requirements for entrainment. Permit 

applicants are not required to conduct 

new studies simply to fulfill this 

requirement. This requirement is rather 

aimed at obtaining results for relevant 

studies that have already been 

conducted as part of past permit 

proceedings or for other purposes even 

if those studies were not completed or 

conducted entirely as planned. 

7. § 122.21(r)(8) Operational Status 

The applicant must submit a 

description of the operational status of 

each unit for which a cooling water 

intake structure provides water for 

cooling, including the following: 

Descriptions of each individual unit’s 

operating status including age of the 

unit, capacity utilization for the 

previous five years (including any 

unusual or extended outages that 

significantly affect the facility’s 

reporting of flow, impingement, or other 

data), and any major upgrades 

completed in the past 15 years (e.g., 

boiler or condenser replacement, 

changes to fuel type, a new production 

line); a description of completed, 

approved, or scheduled uprates and 

NRC (Nuclear Regulatory Commission) 

relicensing status for nuclear facilities; a 

description of plans or schedules for 

decommissioning or replacement of 

units; and a description of current and 

future production schedules for 

manufacturing facilities. The Director 

will use such information in 

determining the BTA for entrainment as 

well as when establishing compliance 

schedules. For example, where the 

remaining useful plant life is 

considerably shorter than the useful life 

of an entrainment technology or where 

a facility has a planned retirement 

within the next permit cycle, this 

information is useful to support a 

determination regarding that specific 

entrainment technology. This 

information would also be used under 

§ 125.94(c)(12) to document 

infrequently used power generating 

units that operate with a capacity 

utilization of less than 8 percent 

averaged over a 24-month block 

contiguous period and that the Director 

may therefore determine warrants IM 

controls less stringent than 

§ 125.94(c)(1) through (c)(7). With 

respect to entrainment, the BTA for 

entrainment is determined by the 

Director for each site, and energy 

reliability is one factor the Director may 

consider when establishing entrainment 

controls (see § 125.98(f)(3)). EPA expects 

the information submitted on energy 

reliability will be considered by the 

Director when making a BTA 

determination for entrainment for low 

CUR units. 

8. § 122.21(r)(9) Entrainment 

Characterization Study 

Facilities that withdraw greater than 

125 mgd AIF must develop a study that 

includes a minimum of two years of 

entrainment data collection. EPA 

envisions the facility would extend the 

data collection methods and frequency 

to develop the source water 

characterization already required by 

§ 122.21(r)(4) to develop the 

Entrainment Characterization Study. 

The study would include complete 

documentation of the data collection 

period and frequency of entrainment 

characterization, and an identification 

of the organisms sampled to the lowest 

taxon possible. The data collection must 

be representative of the entrainment at 

each intake, and the study must 

document how the location of the intake 

in the waterbody and the water column 

are accounted for. The study must 

document the intake flows associated 

with the data collection. Consistent with 

the permit application requirements 

requiring biological data collection at 

§ 122.21(r)(4) and (6), EPA requires at 

least two years of data to sufficiently 

characterize annual, seasonal, and diel 

variations in entrainment, including 

variations related to climate, weather, 

spawning, feeding, and water column 

migration. Also consistent with the 

permit application requirements at 

§ 122.21(r)(4) and (6), facilities may use 

historical data that are representative of 

current operation of the facility and 

conditions at the site with 

documentation regarding the continued 

relevance of the data. The study must 

include analysis of the data to 

determine total entrainment and 

entrainment mortality. Documentation 

in the study must include the method in 

which latent mortality would be 

identified, and all methods and quality 

assurance/quality control procedures for 

sampling and data analysis would be 

described. The sampling and data 

analysis methods must be appropriate 

for a quantitative survey. 

This information will help the 

Director determine the site-specific BTA 

for entrainment. For facilities with no 

entrainment technologies currently in 

place, this information characterizes the 

total potential for entrainment. The 

information can also be used to 

demonstrate that technologies and other 

measures already in place, or sitespecific factors such as intake location 

or design, already reduce entrainment. 

For example, abundance data might 

demonstrate lower comparative 

densities that can significantly lower 

entrainment rates. The information 

could also be used by new units under 

§ 125.94(e)(2) to demonstrate that an 

alternative technology or combination of 

technologies reduce entrainment at that 

site to a level commensurate with 

closed-cycle cooling. 


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9. § 122.21(r)(10) Comprehensive 

Technical Feasibility and Cost 

Evaluation Study 

The owner or operator of the facility 

must submit an engineering study of the 

technical feasibility and incremental 

costs of candidate entrainment control 

technologies. The study must include an 

evaluation of technical feasibility of 

closed-cycle cooling and fine-mesh 

screens with a mesh size of 2 mm or 

smaller, reuse of water or alternate 

sources of cooling water, and any other 

entrainment reduction technologies 

identified by the applicant or requested 

by the Director. This study must include 

a description of all technologies and 

operational measures considered (which 

could include alternative designs of 

closed-cycle recirculating systems such 

as natural draft cooling towers, hybrid 

designs, compact or multi-cell 

arrangements, or the conversion of 

helper towers to a fully recirculating 

system); and documentation of factors 

that make a candidate technology 

impractical or infeasible for further 

evaluation. For example, a discussion of 

land availability might include an 

evaluation of adjacent land, and acres 

potentially available because of 

generating unit retirements, production 

unit retirements, other buildings and 

equipment retirements, ponds, coal 

piles, rail yards, transmission yards, and 

parking lots; decommissioning of 

existing units; repurposing of existing 

land uses; documentation that 

insufficient acres are available on-site; 

and evidence of the feasibility of the 

purchase or other acquisition of 

property adjacent to the facility. 

For the analysis of water reuse and 

use of alternate sources of cooling water, 

the owner or operator must examine the 

available alternatives for reuse of 

effluent from within the facility or from 

other dischargers in the vicinity. The 

volume of water available need not be 

for the full intake flow; reuse of water 

could contribute to a partial reduction 

in flow at the facility. Additionally, if 

the facility were to retrofit to a closedcycle system, the significant reduction 

in flow may make nearby alternative 

sources more feasible. This analysis 

should include an estimate of the cost 

to build any new infrastructure (e.g., 

piping, pump houses) and the ongoing 

operational costs (e.g., pump costs) for 

the Director’s consideration. 

The final rule requires that the cost 

information be presented as both the 

facility’s compliance costs and the 

social costs, and in net present value 

(NPV) terms and the corresponding 

annual value. Social costs are the costs 

estimated from the viewpoint of society, 

rather than individual stakeholders. 

Social cost represents the total burden 

imposed on the economy; it is the sum 

of all opportunity costs incurred. See 

Chapter 8 of EPA’s 2010 Guidelines for 

Preparing Economic Analyses (DCN 10– 

3258). Some adjustments to facility 

compliance costs to produce social costs 

cause them to be higher than 

compliance costs, while other cause 

social costs to be lower. Although a 

facility makes investment decisions by 

taking tax consequences into account 

(after-tax costs), the favorable tax 

treatment of investments is viewed as a 

transfer and not a real resource cost, 

thus pre-tax costs are used in social cost 

analysis. From society’s viewpoint, 

costs in the future must be amortized 

and discounted to net present value 

using a social discount rate, rather than 

a market cost of capital as reflected in 

market interest rates. The Office of 

Management and Budget (OMB) 

Circular A–4 (DCN 10–3266) instructs 

agencies to use both 3 percent and 7 

percent discount rates. Certain 

administrative costs are not borne by a 

facility, but rather by the Director, and 

are social costs. Compliance costs 

include the facility’s administrative 

costs, including costs of permit 

application, while the social cost 

adjustment includes the Director’s 

administrative costs. EPA has estimated 

the Directors’ administrative costs in the 

ICR for the final rule, and describes the 

methodology for estimating these costs 

in detail in the EA. Facilities may adopt 

a similar approach to including 

Director’s administrative costs in their 

social cost estimates. In addition, this 

component is not expected to be large 

or to vary significantly across 

technology options considered. 

From a facility’s viewpoint, downtime 

costs include lost net revenue, while 

from society’s viewpoint, if another 

facility is dispatched or inventory of 

manufactured goods can be sold, the 

only social cost of downtime is any 

increase in marginal costs of production 

at other facilities dispatched or the cost 

of holding inventory. Unless a facility 

can demonstrate that its costs of 

compliance will result in lower overall 

supply in the markets in which its 

products are sold, and that the effect of 

the lowered supply is an increase in 

market price and lower quantity of 

product sold, the facility should not 

make a social cost adjustment to reflect 

these larger market impacts. 

In addition to the required social 

costs, the owner or operator may choose 

to provide facility level compliance 

costs; however, such costs must be 

provided and discussed separately from 

social costs. The cost evaluation 

component of this study must include 

engineering cost estimates of all 

technologies considered above and also 

discuss and provide documentation of 

any outages, downtime, energy penalties 

or other effects on revenue. The cost 

evaluation should be based on least-cost 

approaches to implementing each 

candidate technology while meeting all 

regulatory and operational requirements 

of the facility. Depreciation schedules, 

interest rates, further consideration of 

remaining useful life of the facility as 

discussed in § 122.21(r)(8), and any 

related assumptions must be identified. 

The owner or operator of the facility 

must obtain peer review of the 

Comprehensive Technical Feasibility 

and Cost Evaluation Study, as described 

in Section 12. 

10. § 122.21(r)(11) Benefits Valuation 

Study 

The owner or operator of the facility 

must submit a detailed discussion of the 

benefits of the candidate entrainment 

reduction technologies evaluated in 

§ 122.21(r)(10) and using data in the 

Entrainment Characterization Study in 

§ 122.21(r)(9). Each category of benefits 

should be described narratively, and 

when possible benefits should be 

quantified in physical or biological 

units and monetized using appropriate 

economic valuation methods. This 

includes incremental changes in the 

impingement mortality and entrainment 

of individual fish and shellfish for all 

exposed life stages, estimation of 

changes in stock and harvest levels of 

commercial and recreational species, 

and description of any monetization. 

This may include monetization using 

market values, market proxies (e.g., 

models based on travel costs or other 

methodologies), benefits transfer and 

stated preference methods. Benefits that 

cannot be monetized should be 

quantified where feasible and discussed 

qualitatively where not. The study must 

identify increased or decreased thermal 

discharges, and must evaluate the 

potential changes in facility capacity, 

operations, and reliability due to 

relaxed permitting constraints related to 

thermal discharges. The study must also 

include discussion of recent mitigation 

efforts already completed and how these 

have affected fish abundance and 

ecosystem viability in the intake 

structure’s area of influence. Finally, the 

study must identify other benefits to the 

environment and the community, 

including improvements for mammals, 

birds, and other organisms and aquatic 

habitats. The owner or operator of the 

facility must obtain peer review of the 

benefits evaluation study, as described 

in Section 12. EPA expects peer 


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91Note that a new unit may construct a new 

intake structure or utilize capacity from an existing 

intake structure. For the former, the requirements 

of § 125.94(e)(1) are simple to conceptualize and 

apply. But for the latter, EPA clarifies that the new 

unit requirements only apply to that portion of the 

flow that is serving the new unit. For a new unit 

using an existing intake structure that chooses to 

comply using § 125.94(e)(1), demonstrating that the 

new unit achieves the required reduction in flow 

should be a relatively simple exercise in identifying 

intake flows and the distribution of cooling water 

from the intake structure. For a new unit using an 

existing intake structure that chooses to comply 

using § 125.94(e)(2), the facility would demonstrate 

that it has reduced entrainment for that portion of 

the intake flow serving the new unit by 90 percent; 

the facility would not be required to reduce 

entrainment for the flow of the entire intake 

structure by 90 percent, unless the Director makes 

such a site-specific determination for entrainment 

at the existing units as well. 

reviewers to have appropriate 

qualifications (e.g., fisheries biologist, 

economist) for the subject matter. The 

Director may consult with EPA and 

Federal, State and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s) to determine which 

peer review comments must be 

addressed by the final study. The dollar 

values in the social benefits analysis 

should be based on the principle of 

willingness-to-pay (WTP), which 

captures monetary benefits by 

measuring what individuals are willing 

to forgo in order to enjoy a particular 

benefit. While the Director must 

consider benefit and cost information, 

the Director will also determine if this 

information is of sufficient rigor to make 

a decision on entrainment controls on 

the basis of this information. For 

instance, the Director may decide not to 

rely on benefit-cost information in 

establishing the entrainment controls 

when the benefits analysis includes 

only a qualitative discussion of nonuse 

benefits. Willingness-to-pay for nonuse 

benefits can be measured using benefits 

transfer or a stated preference survey. 

However, the rule does not require the 

Director to require a facility owner or 

operator to conduct or submit a stated 

preference survey to assess benefits. 

11. § 122.21(r)(12) Non-Water Quality 

Environmental and Other Impacts 

Assessment 

The owner or operator of the facility 

must submit a detailed discussion of the 

changes in non-water quality 

environmental and other factors 

attributed to technologies or operational 

measures, or both, considered. These 

changes may include, for example, 

increases or decreases in the following: 

Energy consumption; air pollutant 

emissions and their health and 

environmental impacts; noise; safety 

concerns, such as the potential for 

plumes, icing, and availability of 

emergency cooling water; grid 

reliability, including an estimate of 

changes to facility capacity, operations, 

and reliability due to cooling water 

availability; consumptive water use 

(including effects of surface water 

evaporation of thermal discharges); and 

facility reliability, such as production of 

steam and impacts to production based 

on process unit heating or cooling. The 

owner or operator of the facility must 

provide for peer review of the NonWater Quality Environmental and Other 

Impacts Assessment as described in the 

following section. 

12. § 122.21(r)(13) Peer Review 

The owner or operator of the facility 

must provide for peer review of the 

permit application studies required at 

§ 122.21(r)(10) Comprehensive 

Technical Feasibility and Cost 

Evaluation Study, § 122.21(r)(11) 

Benefits Valuation Study, and 

§ 122.21(r)(12) Non-Water Quality and 

Other Impacts Assessment. While 

facilities that withdraw more than 125 

mgd AIF must conduct these studies 

and therefore must provide for peer 

review, facilities that withdraw equal to 

or less than 125 mgd AIF may have 

study requirements including peer 

review as determined by the Director. In 

today’s final rule, EPA did not adopt 

separate peer review requirements for 

the Entrainment Characterization Study 

at § 122.21(r)(9), because this data 

would be included in the 

Comprehensive Technical Feasibility 

and Cost Evaluation Study, Benefits 

Valuation Study, and Non-Water 

Quality and Other Impacts Assessment, 

and these studies are already subject to 

peer review. For these reasons, EPA 

reduced the burden in the final rule by 

eliminating the peer review requirement 

for entrainment characterization. 

EPA recognized at proposal that in 

many cases it is more efficient for 

permit applicants to combine the 

required studies into one document and 

have them reviewed holistically by a 

single set of peer reviewers. Such an 

approach is allowed by the final rule, as 

long as the peer review panel has the 

background appropriate to conduct a 

complete and combined review and the 

Director approves. 

The Director may consult with 

Federal, State and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). Further, the Director 

may require the owner or operator of the 

facility to include additional peer 

reviewers of the studies. EPA expects 

peer reviewers to have appropriate 

qualifications (e.g., in the fields of 

biology, engineering) for the subject 

matter. An explanation for any 

significant reviewer comments not 

accepted must be included in the final 

study submission. Additional guidance 

on conducting peer review is available 

on EPA’s Peer Review Program Web site 

at www.epa.gov/peerreview. 

13. § 122.21(r)(14) New Units 

New units at existing facilities must 

identify the compliance method for the 

new unit under the permit application 

requirements at § 122.21(r)(14). Where 

the facility complies with BTA 

standards for entrainment at 

§ 125.94(e)(1) by reducing its intake 

flows commensurate with that of a 

closed-cycle recirculating system (as 

defined at § 125.92(c)(1)), the BTA 

standards for impingement mortality 

will have been met by § 125.94(c)(1). To 

comply with the alternative at 

§ 125.94(e)(2), there must be a 

demonstration that entrainment 

reductions equivalent to 90 percent or 

greater of the reductions that could be 

achieved through compliance with 

§ 125.94(e)(1).91 In this case, permit 

application requirement § 122.21(r)(14) 

requires this demonstration to include 

the Entrainment Characterization Study 

at § 122.21(r)(9). The Director may 

determine additional data and 

information, including data collection, 

is necessary to make the demonstration. 

D. When are permit application studies 

due? 

The owner or operator of a facility 

applying for reissuance of a permit must 

submit the information required at 

§ 122.21(r) to the Director no later than 

180 days before the current permit 

expires. Those facilities that were 

subject to the section 316(b) Phase II 

rule from February 16, 2004 until 

suspension of that rule on July 9, 2007 

were already collecting some 

information required at § 122.21(r). EPA 

has structured this rule to take 

advantage of those data and expects 

facilities to use them when they satisfy 

requirements for permit applications. 

In some cases, required permit 

application information might have 

been collected, but reports might not 

have been generated or finalized prior to 

the rule suspension in 2007. Further, 

facilities not subject to the Phase II rule 

(e.g., existing power plants below 50 

mgd DIF and all existing manufacturers) 

might not have collected this 

information or might not have collected 

information to identify permit operating 


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92The presence of any habitat designated as 

critical, or species listed as threatened or 

endangered after issuance of the current permit 

(whose range of habitat or designated critical habit 

includes waters where a facility intake is located) 

constitutes potential for a substantial change that 

must be addressed by the owner/operator in 

subsequent permit applications, unless the facility 

received an exemption pursuant to 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. 

conditions. In those cases, facilities 

would have to collect additional data in 

order to have two years of biological 

data collection. EPA expects associated 

studies and reports will take several 

additional months to complete. For this 

reason, EPA has established a provision 

for permit application submittal for a 

permit expiring prior to July 14, 2018, 

allowing the Director flexibility to delay 

application requirements based on a 

showing by the owner or operator that 

it could not develop the information by 

the time required for submission of the 

permit application. The Director would 

then establish a schedule for submission 

of the delayed permit application 

requirements. EPA notes that the 

Director has the discretion to require 

additional studies, data collection, or an 

on-site inspection as part of the permit 

process. 

Facilities whose permit expires after 

July 14, 2018 would submit all required 

materials in § 122.21(r) with their 

permit renewal application. 

New units at existing facilities must 

submit the information required at 

§ 122.21(r) to the Director no later than 

180 days before commencing operation 

of the new unit. Because these units are 

being constructed at a facility that is 

already operating, the facility will have 

already submitted many of the permit 

application materials. The addition of a 

new unit would require an update of or 

supplement to permit application 

materials that have already been 

submitted. New units take significant 

time and resources to plan, design, and 

construct; therefore the final rule does 

not have a provision to waive permit 

application requirements based on a 

showing by the owner or operator that 

it could not develop the information by 

the time required for submission of the 

permit application. For permit renewals 

subsequent to the first permit issued 

under today’s rule, the new unit would 

be included in the assessment of the 

entire facility and would no longer 

require unique permit application 

submissions. As discussed previously, 

the owner or operator is encouraged to 

submit applications well in advance of 

the 180 day requirement to avoid delay. 

EPA is aware that some intake 

structures withdraw from a manmade 

lake or reservoir that is stocked and 

managed by a State or Federal natural 

resources agency. In some cases, the 

biological characterization of the source 

water is heavily influenced by the 

actions of the natural resources agency. 

Further, the results of biological data 

collection and studies may be 

confounded by such actions. Today’s 

final rule at § 125.95(a)(3) gives the 

Director discretion to waive some or all 

of the permit application requirements 

of § 122.21(r) in such circumstances. 

In permit terms subsequent to the first 

permit issued under the final rule, the 

facility will re-submit the § 122.21(r) 

permit application studies, while the 

rule still includes two years of 

biological data collection for some 

facilities. In this manner, the biological 

characterization over time would be 

routinely evaluated, i.e., every 5 years 

under a standard permit cycle. To 

reduce the burden of such data 

collection, however, the final rule 

provides that the owner or operator of 

a facility may submit a request to the 

Director to reduce the information 

required. See 40 CFR 125.95(c). In most 

cases, EPA anticipates the facility would 

make any such request prior to 

conducting its two years of biological 

data collection. Therefore the request for 

reduced information requirements must 

be submitted to the Director at least two 

years and six months before the 

expiration of the facility’s NPDES 

permit. The Director may approve such 

a request if conditions at the facility and 

in the waterbody remain substantially 

unchanged since the previous permit 

application.92 EPA expects the Director 

would assess the relevant previously 

submitted information and determine 

whether it remains representative of 

current source water, intake structure, 

cooling water system, and operating 

conditions. Accordingly, the Director 

may accept or reject any part of the 

request. 

E. How will the director determine the 

best technology available for minimizing 

adverse environmental impacts? 

1. Review and Approval of Permit 

Application Materials 

Under today’s rule, the Director will 

review all materials submitted by an 

existing facility with its permit 

application to determine appropriate 

NPDES permit conditions and 

requirements to minimize impingement 

mortality and entrainment. As stated at 

40 CFR 125.98(a), the Director shall not 

issue a permit before receiving a permit 

application form and any supplemental 

information which are completed to his 

or her satisfaction (see existing Permit 

Application and Special NPDES 

Program Requirements at 40 CFR 

122.21(e)). 

Facilities with a design intake flow at 

or below 2 mgd will continue to have 

permit conditions set on a case-by-case, 

best professional judgment basis under 

40 CFR 125.90(b) and 401.14. For such 

facilities, however, the Director may 

choose to apply some portions of the 

permit application conditions in today’s 

rule to aid in the BPJ determination. 

The Director is encouraged to 

expeditiously provide any comments on 

submitted materials so the facility can 

make responsive modifications to its 

information gathering activities. For 

permit applications subsequent to the 

first permit issued under today’s rule, 

the Director could indicate whether 

reduced or different information must 

be submitted with the permit 

application. More specific 

responsibilities are described below: 

a. If the Director has made a BTA 

determination for entrainment before 

the effective date of the rule, and 

substantially the same information was 

already submitted and considered by 

the Director in making that 

determination, under § 125.98(g) the 

Director may proceed with the 

Determination of BTA without requiring 

the owner to submit the information 

required in § 122.21(r). 

To clarify further, EPA has included 

a ‘‘transition’’ provision at § 125.98(g) of 

today’s rule that makes it clear that for 

any facility that has submitted a permit 

application before the effective date of 

the regulation, the Director may select 

the best approach to development and 

implementation of the next permit. 

These provisions are intended to avoid 

any unnecessary delay in recently 

submitted permit applications or draft 

permits. EPA expects that facilities will 

continue with any data collection 

requirements, study requirements, and 

schedules in recently issued permits. 

b. If the Director establishes a 

compliance schedule under § 125.94, 

the Director will establish a schedule 

that sets requirements as soon as 

practicable. In establishing the 

schedule, the Director is encouraged to 

consider the extent to which those 

technologies proposed to be 

implemented to meet the requirements 

of § 125.94(d) will be used, or could 

otherwise affect a facility’s choice of 

technology, to meet the requirements of 

§ 125.94(c). Impacts of thermal 

discharges, along with other stressors, 

might be a relevant consideration when 

assessing benefits of technologies to 

reduce impacts of cooling water intakes 

or discharges. The Director is also 

encouraged to consider energy 

reliability, transmission capacity, and 


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grid requirements when establishing a 

schedule for electric power generating 

facilities. The Director may confer with 

local and regional electric power 

agencies and state utility regulators 

when establishing a schedule for 

electric power generating facilities (see 

DCN 10–6860 for information on the 

approach taken by California). The 

Director may determine that extenuating 

circumstances (e.g., lengthy scheduled 

outages, future production schedules) 

warrant establishing a different 

compliance date for any manufacturing 

facility. 

c. The Director will review the permit 

application materials and studies 

submitted under § 122.21(r) and 

determine which entrainment controls 

are appropriate. Factors that must be 

considered and factors that may be 

considered in making the determination 

are provided at § 125.98. The Director 

must issue a written explanation for the 

BTA determination and must make this 

determination, and any other 

information submitted by third parties, 

available with the permit for public 

review. This determination is expected 

to be issued as part of the permit’s 

statement of basis under 40 CFR 124.7. 

2. Role of Social Cost-Benefit Analysis 

in Permit Determinations 

In deciding what technology to 

require a permittee to install to address 

entrainment, the Director may 

undertake an evaluation of social costs 

and benefits of implementing such 

requirements. This analysis will be 

based on the information submitted by 

the applicant, supplemented by any 

information submitted by third parties, 

and additional information as 

determined appropriate by the Director. 

EPA recognizes the resource limitations 

faced by permitting authorities and does 

not generally expect that the Director 

would develop additional information 

on which to base the evaluation of 

social benefits and costs, although the 

Director may opt to do so. This analysis 

should evaluate benefits and costs from 

the perspective of society as a whole, 

rather than costs and benefits accruing 

to limited parties (e.g., very local 

populations or the permittee, which 

presents a limited set of information to 

the Director). 

It is also important to note that the 

stated preference survey conducted by 

EPA which was discussed in the June 

12, 2012 Notice of Data Availability (77 

FR 34927) was designed to estimate 

respondents’ willingness to pay for 

changes in the health of fish 

populations and aquatic ecosystems and 

be statistically representative at large 

(regional and national) scales; the 

results were not designed to be 

statistically representative at the facility 

level for the assessment of benefits for 

individual site-level permitting 

decisions. Today’s final rule does not 

require the Director to require a facility 

owner or operator to conduct or submit 

a stated preference survey to assess 

benefits. Further, the rule does not limit 

the Director’s discretion to consider 

non-water quality impacts in 

determining whether further 

entrainment measures are justified. 

A number of cost elements should be 

accounted for in assessing the social 

cost of entrainment technology 

implementation. These are summarized 

below. 

a. Technology Installation Cost 

These peer-reviewed engineering cost 

estimates of the physical construction of 

candidate entrainment technologies at 

the facility are required. These costs 

would be provided by the applicant 

under § 122.21(r)(10). 

b. Installation Downtime Cost 

Installation of closed-cycle cooling 

systems will often require facilities to 

take additional downtime beyond 

ordinary annual maintenance 

downtime. An estimate of downtime 

cost to the facility is required under 

§ 122.21(r)(10). EPA expects a facility 

will document that portion of downtime 

that is incremental to any downtime the 

facility already incurs due to, for 

example, routine maintenance outages, 

overhauls, refueling, and periodic 

replacement of equipment that is at the 

end of its useful life. Downtime costs to 

the facility include the value of lost 

production (e.g., electricity) minus any 

variable cost savings, as well as any 

other costs to the facility associated 

with downtime (shutdown and startup 

routines, special maintenance protocols, 

etc.) minus any savings associated with 

downtime. If they are considered in the 

social costs analysis, downtime costs 

must be adjusted to reflect production 

made up by other facilities or firms, 

because these temper the real resource 

costs from society’s viewpoint. The cost 

of downtime is determined on a 

different basis for social cost. 

Specifically, the cost of downtime to 

society is the cost incurred for other 

facilities and generating units to make 

up the electricity or manufactured goods 

that would have otherwise been 

generated by the facility minus the cost 

that would have otherwise been 

incurred by the facility incurring 

downtime. This difference in cost 

reflects the additional cost, if any, that 

society must pay to generate the 

replacement goods, and may differ 

substantially from the cost of downtime 

to the facility. 

c. Energy Penalty Cost 

Operation of closed-cycle cooling 

systems may impose an energy penalty. 

EPA is using energy penalty to mean 

only the opportunity costs associated 

with reduced power production due to 

derating (turbine backpressure). Energy 

penalty does not include the costs to 

operate pumps and fans associated with 

closed-cycle cooling, which are 

operation and maintenance costs (and 

covered below). Under well-established 

principles in benefit-cost analysis, the 

cost of the energy penalty to the facility 

is not the opportunity cost to society. 

Instead, the cost to society is the cost of 

generating the electricity, whether 

incurred by the regulated facility or 

another facility, that is no longer 

available for consumption because of 

the energy penalty. This cost may be 

incurred by the facility, if it can increase 

the energy input to, and output from, 

the generating unit to generate the 

electricity that is otherwise no longer 

available for consumption, or by another 

generating unit if the regulated unit 

cannot make up the electricity. In either 

case, the social cost of the energy 

penalty is the cost of generating the 

electricity that would otherwise be 

available for consumption except for the 

energy penalty. Again, an assessment of 

these costs would be determined under 

the § 122.21(r)(10) demonstration. 

d. Operation and Maintenance Costs for 

the Entrainment Technology Equipment 

The cost of energy to operate the 

entrainment technology for electric 

generators should appear in the 

operation and maintenance costs, along 

with other labor and materials costs. In 

the same way as described above, the 

social cost of the energy required to 

operate entrainment technology is the 

cost for generating this electricity, as it 

is otherwise no longer available for enduse consumption. This cost could be 

incurred by the regulated facility, if it 

has sufficient capacity to make up the 

loss, or by another facility, if the 

regulated facility is not capable of 

generating the electricity that is no 

longer available for end-use 

consumption. 

e. Other Administrative Expenses 

This includes additional permitting or 

reporting expenses, or both. For social 

costs, the estimate should include the 

costs to the facility and those expected 

to be incurred by the Director. 

EPA has estimated the Directors’ 

administrative costs in the ICR for the 

final rule, as explained in the EA, and 


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facilities may adopt a similar approach 

to estimating these costs at the permit 

level. For assessing social cost, the cost 

elements outlined above would 

typically be accounted for on a real cost 

basis—that is, pre-tax and without 

adjusting for future inflation. Costs are 

tallied over an appropriate time frame, 

which will typically be the expected 

useful life of the technology installation 

or the remaining life of the facility, if 

less. Costs should be calculated as both 

net present value and annualized 

values, using an appropriate social 

discount rate. The applicant should 

document the basis for the discount rate 

chosen, and its methodology and 

calculations. 

f. Benefits 

In assessing the benefits of 

entrainment technology installation, the 

Director would assess the value to 

society from the reductions in 

impingement mortality and entrainment 

that would result from installation of a 

closed-cycle cooling system, fine mesh 

screens, or other entrainment 

technologies. All benefits, including 

monetized, quantified and qualitative 

benefits, should be considered in this 

assessment. The benefits assessment 

would typically look at a range of 

potential benefit categories, including 

increased harvest for commercial 

fisheries, increased use values for 

recreational fisheries, and nonuse 

values (existence and bequest values). 

The latter may be difficult to quantify or 

monetize. If appropriate data are 

available from benefits transfer or 

conducting stated preference studies or 

other sources that can be applied to the 

site being evaluated, these should be 

used to monetize nonuse values. 

Otherwise, nonuse values should be 

evaluated quantitatively and/or 

qualitatively. Quantitative analysis, 

even without monetization, can be quite 

useful in evaluating nonuse benefits. 

For example, quantifying impacts to 

forage and threatened and endangered 

species, and other indirect impacts on 

the aquatic environment, might allow 

the Director to derive a much more 

complete understanding of benefits as 

compared to a qualitative narrative, 

even if not directly comparable to 

monetary costs. 

Quantifying and valuing the benefit 

categories listed above involves 

significant challenges, as described in 

the BA. For example, assessing the 

productivity and value of commercial 

fisheries involves estimating the 

expected increases in commercial yield 

of economically valued species over 

time as a result of reduced impingement 

mortality and entrainment, and valuing 

these at market prices minus any 

incremental production costs associated 

with the incremental catch. Similarly, 

assessing recreational use benefits 

involves estimating the improvements 

in recreational fishing opportunities 

resulting from reduced impingement 

mortality and entrainment, and 

assigning a value to these 

improvements. The value assignment is 

based on the estimated population 

profile—in particular, number and 

proximity to affected water resources— 

of recreational users, the availability of 

alternative competing water resources 

for recreational usage, and the resulting 

estimated change in demand for use and 

value of the affected water resources 

based on reduced impingement 

mortality and entrainment and 

increased recreational fishing 

performance. EPA acknowledges this 

could be difficult to do even on a sitespecific basis. 

Nonuse benefits, which encompass 

existence and bequest values, include 

impacts in such areas as population 

resilience and support, nutrient cycling, 

natural species assemblages, and 

ecosystem health and integrity. Nonuse 

values include improving the survival 

probability of a threatened or 

endangered species if present in the 

vicinity of the facility. Benefits might 

also need to be assessed beyond the 

vicinity of the facility’s intake if 

migratory species are affected by the 

intake. Residual impacts of thermal 

discharges might also be appropriate to 

consider in the social benefits 

calculation. 

In much the same way as described 

for the social cost assessment, social 

benefits are tallied yearly over the 

expected performance life of the 

compliance technology. This tallying 

should account for the ‘‘phase-in’’ of 

benefits (e.g., benefits may build up over 

time as the impingement mortality and 

entrainment reductions affect 

commercial fisheries productivity). 

Benefits are computed on a present 

value basis and annualized using an 

appropriate discount rate as described 

above. The same discount rate should be 

used for benefits and costs. Often, it is 

appropriate to calculate benefits and 

costs using more than one discount rate. 

For example, for regulatory impact 

analysis, OMB recommends that Federal 

agencies use both a 3 percent and a 7 

percent rate. However, comparisons 

between specific benefit and cost 

numbers should always involve values 

computed using the same rate. 

The resulting estimates of social cost 

and benefits must be considered in 

determinations on whether to require a 

permittee to install entrainment 

technology and the specific level of 

entrainment technology to be installed. 

The Director may reject otherwise 

available technologies as the BTA 

requirements for entrainment controls if 

the social costs of compliance are not 

justified by the social benefits, or if 

there are other adverse impacts that 

cannot be mitigated that the Director 

deems to be unacceptable. If all 

technologies considered have social 

costs not justified by the social benefits, 

or have unacceptable adverse impacts 

that cannot be mitigated, the Director 

may determine that no additional 

control requirements are necessary 

beyond what the facility is already 

doing. The Director should document 

the basis for such a determination and 

include it in the public notice for the 

draft permit. 

3. Streamlined Process 

The process for complying with the 

impingement mortality standards is 

expected to be highly streamlined. As 

shown in Exhibit VIII–1, EPA expects 

more than 99 percent of facilities will 

comply by one of the six compliance 

options that do not require continual 

biological compliance monitoring (one 

of the three compliance alternatives 

based on pre-approved technologies or 

one of the three streamlined compliance 

alternatives). If a facility chooses to 

comply by operating a modified 

traveling screen, the Director will 

review the impingement technology 

performance optimization study, 

including the identification of species, 

duration and structure of the study, and 

any monitoring requirements. 

4. De Minimus Provision 

The Director may, based on a review 

of data submitted under § 122.21(r), 

conclude that the documented rate of 

impingement at the cooling water intake 

structures is so low that no additional 

controls are warranted. As described in 

section I.A.H, low flow facilities may in 

particular be candidates for such 

consideration, although the authority of 

the Director is not limited to low flow 

facilities. The Director may want to 

consider facility withdrawal rates in 

relation to the mean annual flow of the 

river and possible co-location with other 

CWISs when making a de minimis 

determination. Notice of this 

determination would be included in the 

draft permit made available for public 

comment, and the Director’s response to 

any comment on this determination 

must be included in the record for the 

final permit. EPA considers low rates of 

impingement to be measured as an 

organism or age-one equivalent count, 

and not as the effect of impingement on 


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fish populations. The Director may 

require data collection to demonstrate 

support for a de minimis level of 

impingement. In addition, EPA does not 

expect that a de minimis exemption 

would apply to facilities with no 

technology present other than trash 

racks, a technology that nearly all 

facilities employ. In making a 

determination that no additional 

controls are warranted, the Director may 

wish to consider factors such as whether 

the waters are subject to a TMDL for an 

aquatic life use, the waters are not 

attaining a designated use, and there 

would be more than minor detrimental 

effects on threatened or endangered 

species or critical habitat. The Director 

will still establish proper operation and 

maintenance conditions in the permit 

whenever making a de minimis finding 

that no additional controls are 

warranted. EPA notes that the de 

minimis provision for impingement 

does not necessarily mean a facility has 

a de minimis level of entrainment. The 

life stages affected by impingement are 

different than those affected by 

entrainment, and low counts of 

impingeable life stages do not always 

mean the counts of entrained organism 

are similarly low. Since the entrainment 

requirements are already determined by 

the Director for each site, EPA 

concluded that specific regulatory 

language for de minimis entrainment 

was unnecessary. 

5. Low Capacity Utilization Units 

The Director may consider less 

stringent controls for intakes dedicated 

to low capacity utilization rate (CUR) 

power generating units. If an existing 

facility has a cooling water intake 

structure used exclusively for one or 

more existing electric generating units, 

each with an annual average capacity 

utilization rating of less than 8 percent 

averaged over a 24-month block 

contiguous period, the owner or 

operator may request that the Director 

establish BTA standards for 

impingement mortality for that cooling 

water intake structure which are less 

stringent than § 125.94(c)(1) to (c)(7). 

When determining the permit’s IM 

requirements associated with the low 

CUR unit, the Director may consider, 

after conferring with any appropriate 

state co-regulators (such as public utility 

commissioners) and with regional 

transmission organizations, 

independent system operators or other 

planning authorities, the significance of 

the unit’s operation to the overall 

reliability of electric power in the area. 

In addition, in determining the IM 

requirements associated with a low CUR 

unit, the Director should consider any 

seasonal factors for affected species that 

might justify seasonal limits on the 

unit’s operation, for example any 

increased impacts resulting from the 

unit’s operation during spawning runs. 

Also, when considering the presence 

and potential effects to threatened and 

endangered species, the Director should 

consider whether the life stages present 

at the location are at risk of being 

impinged or entrained at the low CUR 

unit’s cooling water intake. 

In the event that the Director 

determines less stringent controls for 

intakes dedicated to low capacity 

utilization power generating units are 

appropriate, they should consider, at a 

minimum, the following in establishing 

controls: 

Strategies for minimizing water 

withdrawal during stand by periods of 

operation, startup/shutdown, and online periods of operation; 

The effectiveness of installing variable 

speed pump drives to reduce water 

withdrawals during all periods of 

operation, particularly during stand-by 

periods of operation; and 

The effectiveness of installing 

alternative equipment (e.g. behavioral 

deterrents) to minimize impingement 

mortality. 

The owner or operator would 

demonstrate whether they have an 

intake only serving one or more low 

capacity utilization power generating 

units in permit application 

requirements at § 122.21(r)(3) and (8). 

Under § 122.21(r)(6), the owner or 

operator would indicate a request that 

the Director establish alternative BTA 

standards that are less stringent than 

§ 125.94(c)(1) through (7). EPA 

recognizes the contribution of peaking 

units in serving peak electricity 

demands, and maintaining a reliable 

electricity grid. However, if peaking 

units are in standby mode for long 

periods relative to periods when they 

are generating electricity, the result is a 

capacity utilization of the cooling water 

intake that is greater than the capacity 

utilization of the generator. Significant 

periods of standby could contribute to a 

greater impact on aquatic life. While the 

8 percent capacity utilization is an 

industry standard that distinguishes 

those units making the greatest 

contribution to a smoothly functioning 

electricity grid, a Director may still 

determine that the impacts to aquatic 

life are significant enough to deny a 

request that BTA at that intake should 

be less stringent than § 125.94(c)(1) to 

(c)(7). EPA anticipates the Director will 

have the information necessary to 

determine BTA in such circumstances 

based on the permit application 

requirements, including but not limited 

to an identification of the number of 

days the cooling water system is in 

operation, flow on those days, and 

seasonal changes in the operation of the 

system under § 122.21(r)(5) and the 

biological information under 

§ 122.21(r)(4). 

As discussed previously, the Director 

will determine the BTA for entrainment 

for low CUR units on a site-specific 

basis. EPA expects that many of the 

same factors discussed above— 

including the significance of the unit’s 

operation to the overall reliability of 

electric power in the area, the diversity 

of fuels available for the unit, and the 

impact of the costs of any potential 

entrainment requirements on the unit’s 

cooling water intake structure on overall 

reliability of electric power in the area— 

will be relevant in making site-specific 

BTA entrainment determinations for 

low CUR units. The Director may 

consider the factors at § 125.98(f)(3) 

when making these determinations for 

low CUR units, which includes grid 

reliability, among other factors. 

6. Monitoring 

The Director will review any 

impingement mortality and entrainment 

monitoring reports submitted by the 

facility to ensure ongoing compliance. 

EPA is shifting toward an electronic 

discharge monitoring report system, and 

many of the impingement mortality and 

entrainment standards can be 

incorporated into the discharge 

monitoring report itself, rather than 

requiring a separate report. Except for 

facilities choosing alternatives 

§ 125.94(c)(7), detailed biological data 

collection would only be included as 

part of the facility’s permit application 

submission and not for compliance 

purposes. The Director has the 

discretion to request additional 

information, including inspection of the 

facility, at § 125.95(d) (i.e., permit 

application and supporting information 

requirements) and § 125.96(c) (i.e., 

additional monitoring requirements). 

7. Nuclear Units 

The rule includes a provision that 

permits the owner of a nuclear facility 

to demonstrate to the Director that 

compliance with the rule would result 

in a conflict with safety requirements 

for their facility. See § 125.94(f). EPA 

anticipates that this provision would be 

implemented as follows. Initially, the 

Director will draft a permit and will 

share the draft permit with the owner or 

operator of the nuclear facility. Upon 

reviewing the draft permit, the owner or 

operator will determine whether in their 

view a conflict with a safety 

requirement established by the Nuclear 


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Regulatory Commission, the Department 

of Energy or the Naval Nuclear 

Propulsion Program exists. If a conflict 

exists, the owner or operator should 

communicate the conflict to the NRC, 

Department or Program and the 

Director. In all cases, whether a conflict 

exists or not, the Director should notify 

the NRC, Department or Program and 

the owner or operator of the facility that 

he or she wishes to informally confer 

regarding the permit. Such interactions 

should be scheduled, conducted and 

documented. Where a conflict is 

identified, the Director would make a 

site-specific BTA determination. 

F. What are example permit conditions 

and compliance monitoring for 

impingement mortality? 

As previously discussed, the owner or 

operator must comply with BTA 

standards as soon as practicable on a 

schedule of requirements established by 

the Director. EPA did not specify dates 

by which the BTA standards for 

impingement mortality must be met 

because the specific method of 

compliance with the BTA standards for 

impingement mortality is tied to the 

determination of BTA requirements for 

entrainment. Further discussion of this 

alignment of compliance deadlines is 

provided in Section A. Today’s final 

rule provides for several methods of 

compliance with the BTA for 

impingement mortality. This section 

discusses each of the methods for 

compliance, how they follow from the 

permit application requirements at 

§ 122.21(r), and any minimum 

monitoring and reporting requirements 

associated with each method. 

1. Closed-Cycle Recirculating System 

In this method of compliance, an 

existing facility must operate a closedcycle recirculating system as defined at 

§ 125.92(c). The facility would indicate 

the choice to use this compliance 

method under § 122.21(r)(6) in its 

permit application. As specified in 

§ 122.21(r)(1), the facility would need to 

submit § 122.21(r)(9) through (13), if it 

exceeds 125 mgd AIF and these 

requirements are not waived by the 

Director. The information still required 

at § 122.21(r)(2) to (8) is considerably 

less burdensome. The monitoring must 

be representative of normal operating 

conditions, and must include measuring 

cooling water withdrawals, make-up 

water, and blowdown flows. The facility 

must monitor actual intake flows at a 

minimum frequency of daily, or may 

monitor the representative cycles of 

concentration at a minimum frequency 

of daily. These monitoring data would 

be used by the Director to determine 

that make-up and blowdown flows have 

been minimized. The owner or operator 

would submit these data with their 

existing DMR or equivalent state report. 

Facilities complying using closed-cycle 

cooling are not subject to biological 

compliance monitoring unless 

otherwise specified by the Director (see 

§ 125.96(c)). 

2. 0.5 Feet per Second Through-Screen 

Design Velocity 

In this method of compliance, the 

facility must operate a cooling water 

intake structure that has a maximum 

design through-screen intake velocity of 

0.5 feet per second. The facility must 

submit information under § 122.21(r) to 

the Director that demonstrates that the 

maximum design intake velocity as 

water passes through the structural 

components of a screen measured 

perpendicular to the screen mesh could 

not exceed 0.5 feet per second. The 

maximum velocity must be achieved 

under all conditions, including during 

minimum ambient source water surface 

elevations (based on BPJ using 

hydrological data) and during periods of 

maximum head loss across the screens 

or other devices during normal 

operation of the intake structure. 

EPA notes a cylindrical wedgewire 

screen, in general, is designed for 0.5 

feet per second. In Phase II, EPA preapproved wedgewire screens under 

specific operational conditions. Today’s 

final rule simplifies the demonstration 

requirements for a facility employing 

cylindrical wedgewire screens to that of 

demonstrating the maximum design 

through-screen velocity is 0.5 feet per 

second. As another example, a facility 

may have pumping and piping 

constrictions that physically limit the 

design intake velocity to less than 0.5 

feet per second. The Director may 

choose to establish permit conditions 

that address the physical limitations of 

the intake, such as requiring a pump be 

removed from service, or that only one 

of two (redundant) pumps may operate 

at any time. Facilities choosing to 

comply under this section do not have 

monitoring requirements under this 

section. 

3. 0.5 Feet per Second Through-Screen 

Actual Velocity 

This method of compliance is similar 

to the design velocity alternative 

discussed above, except that the intake’s 

maximum design velocity can exceed 

0.5 fps, as long as the intake is operated 

such that the actual, measured velocity 

does not. As an example, a facility may 

have originally been constructed with a 

maximum design intake of 1.0 feet per 

second, but now, because it has retired 

generating capacity but not pumps, may 

only withdraw cooling water such that 

the actual intake velocity at the intake 

never exceeds 0.5 feet per second. This 

would constitute compliance with the 

impingement mortality standard. The 

maximum velocity must be achieved 

under all conditions, including during 

minimum ambient source water surface 

elevations (based on BPJ using 

hydrological data) and during periods of 

maximum head loss across the screens 

or other devices during normal 

operation of the intake structure. 

Monitoring the velocity at the screen 

face or immediately adjacent to the 

screen face must be conducted at a 

minimum frequency of daily. 

Monitoring of the approach velocity 

does not meet this requirement. 

However, in lieu of velocity monitoring 

at the screen face, the owner or operator 

may calculate the through-screen 

velocity using intake water flow, water 

depth, and the screen open area. EPA is 

requiring this point of measurement to 

ensure that fish are actually able to 

swim away (not into an embayment 

from which they cannot escape) from 

the location within the intake structure 

at which they are most susceptible to 

being impinged. 

Under today’s final rule, the Director 

may authorize the facility to exceed the 

low velocity compliance alternative for 

brief periods for the purpose of 

maintaining the cooling water intake 

system, such as backwashing the screen 

face. In this compliance option, 

facilities are not subject to biological 

compliance monitoring unless 

otherwise specified by the Director (see 

§ 125.96(c)). 

4. Existing Offshore Velocity Cap 

In this method of compliance, 

facilities will submit information under 

§ 122.21(r) that they operate an offshore 

velocity cap that meets the definition at 

§ 125.92(v) and that was installed prior 

to the effective date of this rule. The 

definition of offshore velocity cap 

includes the requirement that the 

velocity cap be located a minimum of 

800 feet offshore. The velocity cap must 

include devices to exclude marine 

animals, such as bar screens. The 

velocity cap must be designed to change 

the direction of water withdraw from 

vertical to horizontal, thereby creating 

velocity patterns that can be sensed and 

trigger an avoidance response by fish 

and other aquatic organisms. Intake flow 

must be monitored at a minimum 

frequency of daily. This information 

will confirm the intended velocity 

patterns are created. In this compliance 

option, facilities are not subject to 

biological compliance monitoring 


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93As demonstrated by the numerous studies 

included in the record for today’s final rule, many 

facilities are able to achieve less than 10 percent 

impingement mortality, a performance level 

comparable to the impingement mortality of closedcycle cooling. Merely requiring facilities to achieve 

a numerical performance standard through 

modified traveling screens creates disincentives to 

perform better. 

94EPA also requires the entrapment of organisms, 

as well as organisms that are carried over the 

screens, to be counted as impingement mortality. 

unless otherwise specified by the 

Director (see § 125.96(c)). 

EPA notes that facilities choosing to 

construct a velocity cap at an offshore 

location after the effective date of this 

rule would use compliance options 

§ 125.94(c)(6) (Systems of Technologies 

as the Site-specific BTA for 

Impingement Mortality) or § 125.94(c)(7) 

(Impingement Mortality Performance 

Standard). 

5. Modified Traveling Screens 

In this method of compliance, a 

facility must first operate a modified 

traveling screen that meets the 

definition at § 125.92(s). The definition 

identifies and requires those features of 

a traveling water screen that provide for 

an appropriate level of fish protection: 

collection buckets (or equivalent) to 

minimize turbulence to aquatic life; 

guard rails or barriers to prevent loss of 

fish from the collection system; screen 

panel materials such as smooth woven 

mesh, drilled mesh, molded mesh, or 

similar materials to protect fish from 

descaling; continuous or nearcontinuous rotation of screens and 

operation of collection equipment to 

recover impinged fish as soon as 

practical; low pressure wash or vacuum 

to remove collected organisms from the 

screens; fish handling and return with 

sufficient water flow to return fish 

directly to the source water in a manner 

that does not promote predation or the 

re-impingement of the fish, or a large 

vertical drop. EPA intends for this 

definition to generally include modified 

Ristroph screens (including Geiger 

screens, Beaudrey WIP screens, and 

Hydrolox screens), dual flow screens, 

and rotary screens. 

Modified traveling screens with a fish 

return and handling system is the 

technology basis for the impingement 

mortality standard, therefore the EPA 

fully expects biological monitoring of a 

properly designed, built, and operated 

modified traveling screen would 

consistently be able to meet the 

impingement mortality performance 

standard. If EPA were to simply set a 

performance standard based on the 

numeric performance levels achievable 

by modified traveling screens, a facility 

would have to conduct continual 

biological monitoring to demonstrate 

compliance. A far more efficient way to 

demonstrate compliance would be for 

facilities to optimize the operation of 

their technologies for their site-specific 

conditions and identify the conditions 

that distinguish proper operation at 

their facility. The optimized operation 

of the technology would be largely 

demonstrated through the biological 

data collection and studies required in 

the permit application at § 122.21(r)(4) 

and (6)(i), including an impingement 

technology performance optimization 

study. Biological data collection should 

follow the sampling protocols described 

in section7 below. 

The optimized operation documented 

by the impingement technology 

performance optimization study will 

result in more than just meeting the 

impingement mortality standard, and 

results in a facility achieving the best 

possible performance.93 The biological 

data collection and analysis in the 

impingement technology performance 

optimization study will identify the 

operating conditions that result in 

optimized performance, such as fish 

sluicing spray pressures, rotation speed 

and frequency of the screens, angle of 

the fish sluicing sprays, fish return 

trough water flows, and fish return 

trough location.94 The Director will then 

establish these operating conditions as 

permit conditions, along with an 

equipment inspection condition to 

assure proper functioning of the 

technology. As long as the permit 

conditions are met, the EPA does not 

expect any biological compliance 

monitoring will be required, unless 

otherwise specified by the Director, for 

example, for the protection of shellfish 

or fragile species (see § 125.96(c)). Note 

that EPA does not intend for facilities to 

install closed-cycle cooling solely for 

the purpose of meeting the IM 

requirements. 

6. Systems of Technologies as the BTA 

for Impingement Mortality 

In this method of compliance, a 

facility must demonstrate a system of 

technologies is employed that will meet 

the impingement mortality standard. 

This option will allow a facility the 

flexibility to choose the systems 

approach of technologies, management 

practices, and operational measures it 

will use to demonstrate compliance, 

including but not limited to flow 

reductions, intake location, behavioral 

deterrents, unit closures, seasonal 

operations, and newly installed velocity 

caps. Like the compliance option for 

modified traveling screens, the 

optimized operation of the system of 

technologies will be largely 

demonstrated through the biological 

data collection and studies required in 

the permit application at § 122.21(r)(4) 

and (6)(ii). However, the analysis and 

studies for combining the performance 

of varied technologies is more involved. 

If the system of technologies includes 

credit for reductions in the rate of 

impingement by the system, the 

impingement technology performance 

optimization study required at 

§ 122.21(r)(6)(ii) will provide an 

estimate of those reductions including 

relevant supporting documentation. The 

estimated reductions in rate of 

impingement must be based on a 

comparison of the facility’s system to a 

once-through cooling system with a 

traveling screen whose point of 

withdrawal from the surface water 

source is located at the shoreline of the 

source waterbody. EPA expects Phase II 

facilities will use information already 

collected as part of their calculation 

baseline (69 FR 41594, July 9, 2004). In 

addition, the study must include two 

years of biological data collection 

demonstrating the rate of impingement 

resulting from the system. For this 

demonstration, data collection must be 

conducted no less frequently than 

monthly. The Director may establish 

more frequent data collection or a longer 

period of study. 

If the system of technologies includes 

credit for reductions in impingement 

mortality already obtained at the 

facility, the study must include two 

years of monthly biological data 

collection demonstrating the level of 

impingement mortality the optimized 

system achieves. Biological data 

collection must be representative of the 

impingement and the impingement 

mortality at the intakes and should 

follow the sampling protocols described 

in section 7 below. The impingement 

technology performance optimization 

study must provide a description of any 

sampling approach used in measuring 

impingement mortality, including a 

taxonomic identification to the lowest 

taxon possible of all organisms to be 

sampled; the method in which naturally 

moribund organisms are identified and 

taken into account; and the method in 

which mortality due to holding times is 

taken into account. In addition, the 

study must describe how the location of 

the cooling water intake structure in the 

waterbody and the water column are 

accounted for in the sampling locations. 

EPA requires the entrapment of 

organisms, as well as organisms that are 

carried over the screen, to be counted as 

impingement mortality. 

If the system of technologies 

specifically includes flow reduction to 

reduce impingement, the impingement 


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95Because a permit may be administratively 

continued or may not be issued every 5 years, EPA 

has specified 10 years rather than two permit cycles 

to avoid facilities from taking credit for a unit 

closure that potentially occurred decades prior. 

96EPA recognizes that facilities often examine the 

combined effect of two or more technologies (e.g., 

deterrents and offshore location) within a single 

study. In applying these provisions, the facility 

could use the outcomes associated with the 

combined performance of multiple technologies, 

but this would result in permit conditions that 

would also be combined. 

technology performance optimization 

study must include two years of intake 

flows, measured daily, as part of the 

demonstration, and must describe the 

extent to which flow reductions are 

seasonal or intermittent. The rule 

clarifies that credit for flow reductions 

must result from actual reductions in 

flow, therefore the AIF will be used as 

a point of comparison, and not the DIF. 

The study must document how the flow 

reduction results in reduced 

impingement, and how the reduction in 

impingement has reduced the sitespecific impingement mortality. Today’s 

final rule at § 125.98(f)(3)(iii) further 

clarifies that credit in reduced 

impingement or impingement mortality 

resulting from unit closures will be 

valid for a period of 10 years.95 This is 

also reflected in permit application 

requirements for an owner or operator 

planning to retire the facility in the 

current permit term at 40 CFR 

122.21(r)(1)(ii)(F), or in the following 

permit cycle at 40 CFR 

122.21(r)(1)(ii)(G). 

The Director must determine the 

system of technologies, management 

practices, and operational measures that 

is the best technology available for 

impingement reduction at the site. As 

the basis for the Director’s 

determination, the facility must 

demonstrate that the system of 

technology has been optimized to 

minimize impingement mortality of all 

non-fragile species. In addition to the 

impingement technology performance 

optimization study, the Director may 

also use the biological source water 

characterization and/or the entrainment 

characterization studies in the permit 

application. EPA expects the Director’s 

decision will be informed by comparing 

the impingement mortality data under 

§ 122.21(r)(6)(ii) to the impingement 

mortality performance standard that 

would otherwise apply under 

§ 125.94(c)(7). 

In addition, the impingement 

technology performance optimization 

study requires documentation of the 

percent impingement mortality 

reflecting optimized operation of the 

total system of technologies, operational 

measures, and best management 

practices and all supporting 

calculations. The following example 

illustrates how these provisions will 

adjust for flow, location, and other 

technologies in demonstrating the IM 

performance for a system of 

technologies. 

The example uses values that simplify 

the calculations to better illustrate the 

adjustments, and are not intended to 

reflect values that EPA expects at any 

facility. To simplify the example 

further, the facility has only fish and 

does not have shellfish in its source 

waters. EPA has chosen a hypothetical 

facility that examined each change in a 

separate study.96 The hypothetical 

facility intake is located at a submerged 

offshore location, has an acoustical 

deterrent, and installed variable speed 

drives. For the purposes of this 

example, the facility has completed 

sampling at the forebay for two years as 

part of § 122.21(r)(4) and (6). During the 

most recent 12 months, the counts of 

non-fragile species totals 40,000 

impinged fish. During the 24-hour 

holding period following each monthly 

sample collection, the total fish that 

died were counted, for a total of 12,000 

dead fish for the preceding 12 months. 

The facility then calculated the average 

IM for the preceding 12 months at 30 

percent as follows: 

To adjust the observed percent IM for 

a submerged offshore location and 

acoustical deterrent, the facility first 

extracts information from its previously 

conducted studies related to 

performance and calculation baseline. 

Alternatively, the facility could conduct 

a performance study during the same 

two year period in which it conducts its 

biological data collection as part of the 

permit application requirements at 

§ 122.21(r). For the submerged offshore 

location adjustment, fish density and 

flow data show the offshore location 

reduces the rate of impingement for all 

species by 4,000 fish annually. For the 

acoustical deterrent, performance data 

show a reduction in the rate of 

impingement of fish by 11,000 

organisms annually. For purposes of 

this example, assume none of the 15,000 

fish are assumed to contribute to further 

mortality; in other words, all of the fish 

that avoided impingement in the first 

place survive. Therefore, the facility has 

reduced impingement by 15,000 fish 

(i.e., sum of both submerged offshore 

location and acoustical deterrent). The 

facility then takes credit for this 

reduction by adding the forgone 

impingement to the denominator of the 

percent IM calculations as follows: 


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In summary, calculating percent IM at 

the forebay yields a 30 percent IM, and 

then applying the performance for 

existing technologies shows the 

effective percent IM is actually 22 

percent. Next, to adjust for the variable 

speed drives, the facility has determined 

from flow monitoring that the volume of 

cooling water flow has been reduced by 

11 percent. In this example, assume the 

flow reduction does not vary 

considerably each month. The volume 

of reduced flow multiplied by the 

density of fish near the intake is 

calculated each month for 12 months, 

and the facility projects that the reduced 

flow excludes an additional 8,000 fish 

from impingement each year. Then the 

facility would apply the reduction in 

annual counts of impinged fish to the 

denominator, as follows: 

Thus, the facility’s site-specific 

system of technologies including 

optimized operation of acoustical 

deterrents has a total system 

performance of 19 percent annual 

impingement mortality. This example is 

intended to illustrate how facilities 

would obtain credit for existing 

technologies in a systems approach. 

While this example includes acoustical 

deterrents, it does not imply that 

acoustical deterrents are an appropriate 

technology for all facilities. EPA expects 

a facility will use the required two 

years’ worth of monthly biological data 

collection and studies to conduct a 

similar analysis for each month. The 

minimum required data collection and 

studies will result in annual average 

performance calculations for 12 

consecutive months. The facility will 

use this information as part of its 

demonstration to the Director. 

If the Director determines the system 

of technologies, management practices, 

and operational measures is the best 

technology available for impingement 

reduction at the site, the Director will 

establish specific operating conditions 

as permit conditions, along with 

appropriate equipment inspection 

conditions to assure proper functioning 

of each technology. For example, a 

system with acoustical deterrents would 

likely have permit conditions related to 

frequency of tones, volume, location, 

and frequency of operation of the 

acoustical deterrents. The Director will 

also establish monitoring requirements 

for intake flow and velocity where such 

measures are an important part of the 

system of technologies, such as the case 

of variable speed drives. For example, a 

system that includes seasonal flow 

reductions would likely have permit 

conditions for flow monitoring. As long 

as the permit conditions are met, the 

EPA does not expect any biological 

compliance monitoring will be required, 

unless otherwise specified by the 

Director (see § 125.96(c)). 

7. Impingement Mortality Performance 

Standard 

In this method of compliance, 

facilities are required to monitor to 

demonstrate compliance with the 

impingement mortality performance 

standard at § 125.94(c)(7) by 

demonstrating a 12-month average 

mortality of 24 percent or less. The 

facility is required to monitor at a 

minimum frequency of monthly, unless 

a greater frequency is specified by the 

Director. For each monitoring event, the 

facility would determine the number of 

non-fragile organisms that are collected 

or retained on sieve with a maximum 

spacing of 0.56 inches (i.e., that are 

impinged [I]), and the number that die 

after impingement (i.e., impingement 

mortality [IM]). The facility must 

establish a post-impingement holding 

period of 18 to 96 hours otherwise 

specified by the Director. Under the 

definition at § 125.92(b), all life stages of 

fish and shellfish excludes specified 

nuisance species from the totals for both 

impingement and impingement 

mortality. Also, as defined at 

§ 125.92(q), latent mortality means the 

delayed mortality of organisms that 

were initially alive upon being 

impinged or entrained but that do not 

survive the delayed effects of 

impingement and entrainment during 

an extended holding period. Delayed 

effects of impingement and entrainment 

may be due to stresses that include but 

are not limited to temperature change, 

physical stresses, and chemical stresses. 

The manner in which latent mortality is 

counted must be identified in the 

Entrainment Characterization Study at 

§ 122.21(r)(9), and must also be counted 

in the Impingement mortality 

performance standard at § 125.94(c)(7). 

Fish that are included in any carryover 

from a traveling screen or removed from 

a screen as part of debris removal must 

be counted as impingement mortality. 

Fish that are entrapped by the cooling 

water intake system must be counted as 

impingement mortality. 

The 12-month average of 

impingement mortality is calculated as 

the sum of total impingement mortality 

over 12 months divided by the sum of 

the total impingement over the same 12 

months, as shown by the following 

equation: 

Note that this equation would be 

applicable to calculating the annual 

average for the previous 12 months. 

Although facilities will be conducting 

biological monitoring monthly (or more 

frequently) and reporting that data in 

their discharge monitoring reports, 

facilities are not required to meet a 

monthly impingement mortality 

performance standard. Therefore, in this 

equation, IM is the sum of all 

impingement mortality over the course 

of the previous 12 months, and I is the 

sum of all impinged fish for the 

previous 12 months. If the facility’s 

calculated annual average percentage 

impingement mortality is less than the 

12-month average performance 

standard, it will be deemed to be in 

compliance with the 12-month average 

performance standard. 

In establishing the monitoring 

requirements, EPA expects any 

approved monitoring protocols will 


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97EPA recognizes that at present, there are no 

standard methods for conducting impingement and 

entrainment studies and that there can be 

variability in designing a sampling plan between 

sites. However, some elements should be 

incorporated into any sampling plan, as outlined in 

DCN 10–6708. 

98Facilities that divert the flow directly would 

similarly pass the flow through a net or debris 

basket fitted with 3⁄8-inch mesh spacing or would 

count only organisms that would have been 

collected with such a basket or net. 

99For a discussion of how EPA has changed its 

view of screen mesh size, see Section III of the 

proposed rule (76 FR 22188, April 20, 2011). EPA 

recognizes that smaller organisms that previously 

would have passed through a screen and been 

entrained might be ‘‘converted’’ by a fine mesh 

screen to an impinged organism; because organisms 

size would affect the rate of mortality, EPA has 

chosen not to rely on definitions of impingement 

and entrainment based on a physical process, but 

instead to define impingement mortality and 

entrainment mortality based on organisms sizes. 

100EPA’s analysis of impingement survival rates 

is based on data from facilities with 3⁄8′′ mesh 

screens; the performance standard may be applied 

differently at facilities with smaller mesh size. 

Therefore, these standards do not provide a 

disincentive to facilities from using finer-meshed 

screens (i.e., screens with a mesh opening smaller 

than 3⁄8 inch) on their traveling screens. As long as 

the organisms that are large enough to have been 

impinged on a coarse mesh screen achieve the 

required survival rates, the facility will be 

considered to meet the impingement mortality 

requirements. 

consider the entire daily and (where 

appropriate) tidal cycles over which 

data collection should occur. Typically, 

facilities have collected impingement 

samples continuously for 6 or 8 hours 

and repeated this cycle to cover an 

entire 24-hour period. Stratifying 

collection in this manner allows an 

analysis of the diel variation exhibited 

by many aquatic organisms, which may 

be important. EPA also expects the 

approved monitoring protocols will 

ensure that sampling occurs during 

periods of representative intake flow 

and not during periods of non-peak flow 

or scheduled outages. 

The ideal point to measure 

impingement mortality is the location 

where organisms are returned to the 

waterbody. However, for ease of 

sampling and access, EPA envisions that 

most facilities will collect samples from 

the fish return system(s) at some point 

before the fish return discharge point. 

According to the studies in EPA’s 

database, EPA envisions that facilities 

will either (1) divert some or all of the 

flow from the fish return into a fish 

collection and holding area, or (2) place 

a net or basket fitted with 3⁄8-inch mesh 

spacing in the fish return and collect 

and transfer the retained organisms to a 

holding tank. While nearly all studies in 

the record report the use of 3⁄8-inch 

mesh spacing, as discussed below, the 

final rule allows the use of other sieve 

and mesh spacings with a 0.56 inch 

maximum opening. A facility will 

handle the organisms in the collection 

device as little as possible and transfer 

them to a holding area with conditions 

as close as practicable to the source 

water. The facility will count the 

number of organisms in the holding area 

and subsequently hold the sample using 

proper technique 97 to maintain the 

health of the collected organisms.98 At 

a period of 18 to 96 hours after the 

initial collection, the facility will count 

the number of dead organisms and 

determine the percentage of organisms 

that died in comparison to the total 

number of organisms measured initially. 

Any organisms not collected by the fish 

handling and return system, such as 

entrapped organisms, organisms in the 

carryover of a traveling screen, or 

organisms collected by a high-pressure 

wash and sent to debris bins, will be 

counted as 100 percent impingement 

mortality. The facility will keep records 

of this information and compare its 

result to the impingement mortality 

performance standard at § 125.94(c)(7). 

As explained in Section VI, the 

impingement mortality restrictions in 

the final rule are based on the operation 

of a modified traveling screen with a 

fish return. Because EPA wants to 

ensure that a facility’s monitoring plan 

is consistent with the technical basis for 

today’s requirements, EPA is requiring 

facilities to monitor impingement 

mortality using a sample that has been 

passed through a sieve or net with no 

more than 0.56 inches maximum 

opening, so that only organisms that do 

not pass through this mesh size are 

counted.99 In doing so, facilities would 

retain (and therefore count) only 

organisms that would have been 

impinged on a 3⁄8′′ mesh screen, which 

was the technological basis used for 

developing the impingement mortality 

performance standard.100 Facilities 

could similarly apply a ‘‘hypothetical 

net’’ in that they could elect to count 

only organisms that would not have 

passed through a net with mesh 

openings less than 0.56 inches. For 

example, a facility that uses a fine-mesh 

screen of 0.5 mm or diverts the flow 

directly to a sampling bay will need to 

count only organisms that remain if the 

flow passed through a net, screen, or 

debris basket fitted with 3⁄8-inch mesh 

spacing. EPA further expects the 

impingement mortality restrictions 

could be applied to other fish protection 

technologies and provides a compliance 

route for future technologies that are 

better performing. 

In today’s rule, EPA is including 

provisions for reduced biological 

monitoring. EPA determined that 

monthly monitoring at a minimum is 

appropriate for at least the first full 

permit term. In permit terms subsequent 

to the first permit issued under today’s 

rule, the owner or operator may request 

the Director to reduce monitoring 

requirements under § 125.95(c). EPA 

expects the Director would reduce 

monitoring requirements as appropriate, 

if the facility demonstrates that its 

operational and biological conditions 

have remained the same. Given that the 

source waterbody may change over time 

(including hosting different or increased 

numbers of individuals or species), the 

biological characterization required at 

§ 122.21(r)(4) including two years of 

data serves to alert interested parties as 

to the status of the waterbody and any 

changes in the biology of the waterbody. 

Under the compliance option (7) 

impingement mortality performance 

standard, EPA expects that as new 

technologies are successfully 

demonstrated, in subsequent permits 

facilities would request less frequent 

monitoring, or be able to incorporate 

such technologies in a permit 

application choosing a § 125.94(c)(6), 

system of technologies, demonstration. 

Once the Director has determined the 

technology is fully demonstrated for 

that site, the facility would therefore 

reduce their biological data collection to 

the minimum required by the permit 

application at § 122.21(r) and any 

monitoring the Director determines to 

be appropriate for verifying permit 

operating conditions. 

8. Additional Measures 

Sections § 125.94(c)(8) and (9) provide 

the Director discretion to require 

additional measures to protect shellfish 

and fragile species. An example of 

shellfish protection measures is a barrier 

net, including seasonal deployment of 

such nets. An example of additional 

protection measures for fragile species is 

an acoustical deterrent system. 

9. Summary 

The following Exhibit VIII–4 

summarizes the monitoring 

requirements for impingement mortality 

by compliance approach alternative. 

The Director has the discretion to 

require additional monitoring under 

§ 125.96(c) and (d). Since all permits 

must have requirements for visual 

inspections, these are not included in 

the exhibit. 


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EXHIBIT VIII–4—SUMMARY OF MONITORING REQUIREMENTS FOR IMPINGEMENT MORTALITY

Compliance approach Type of monitoring Frequency 

Closed-cycle recirculating system .................................................. Intake, makeup and blowdown flows (or cycles of concentration) Daily. 

Velocity (DIF) ................................................................................. None .............................................................................................. None. 

Velocity (AIF) .................................................................................. Velocity (measured or calculated from flow) ................................. Daily. 

Velocity cap .................................................................................... Intake flow ...................................................................................... Daily. 

Modified traveling screens ............................................................. TBD a .............................................................................................. TBD a. 

Systems of Technologies ............................................................... TBD b .............................................................................................. TBD b. 

Impingement mortality performance standard ............................... Biological monitoring ...................................................................... Monthly. 

a Monitoring requirements may vary, depending on the permit-specific operating conditions. 

bThe monitoring requirements are based on the technologies employed. For example, seasonal flow reduction would require flow monitoring. 

G. What monitoring is required for 

entrainment? 

Where the Director establishes 

entrainment controls, the Director is 

required to establish monitoring 

requirements. The final rule requires 

that the permit application studies at 

§ 122.21(r) be submitted for each permit 

renewal. For facilities that withdraw 

125 mgd AIF, EPA expects that the 

Director will use these studies, 

including the Source Water Baseline 

Biological Characterization Data at 

§ 122.21(r)(4) and the Entrainment 

Characterization Study at § 122.21(r)(9), 

as a basis for any monitoring 

requirements for entrainment. To 

facilitate the determination of 

entrainment requirements for facilities 

below 125 mgd AIF, a Director may 

require the owner or operator to submit 

some or all of the study requirements at 

§ 122.21(r)(9) through (13) or variations 

thereof. The Director may require 

additional monitoring necessary to 

demonstrate compliance with 

§ 125.94(d), additional measures to 

protect Federally-listed endangered and 

threatened species and designated 

critical habitat requirements under 

§ 125.94(g), interim standards under 

§ 125.94(h), and any more stringent 

standards under § 125.94(i). 

Under § 125.96(d), existing facilities 

with new units are required to conduct 

compliance monitoring to demonstrate 

flow reductions consistent with the 

requirements of § 125.94(e)(1), or 

equivalent impingement and 

entrainment reductions. The Director 

may establish flow monitoring or 

monitoring of cycles of concentration as 

discussed in Section F. Such measures 

will be used to document that the 

facility has minimized make-up and 

blowdown flows. 

For facilities complying under 

§ 125.94(e)(2), the frequency of 

monitoring will be determined by the 

Director and will vary depending on the 

facility’s chosen method of compliance. 

To meet requirements under 

§ 125.94(e)(2), facilities must measure 

AIF to establish a site-specific baseline 

without any new technologies or 

employing additional operational 

measures. The facility must also 

measure the density of entrainable 

organisms (ED) at a proximity to the 

intake that is representative of the 

entrainable organisms present without 

the cooling water intake structure. 

Samples will be collected over a 24- 

hour period to monitor each species as 

required by the Director. Samples will 

be collected no less than biweekly 

during the primary period of 

reproduction, larval recruitment, and 

peak abundance identified during the 

Source Water Baseline Biological 

Characterization Data required under 

§ 122.21(r)(4). Samples will be 

representative of the cooling water 

intake when the structure is in 

operation. In addition, sufficient 

samples must be collected to allow for 

calculation of 12-month average 

entrainment levels. The sampling will 

measure the total count of entrainable 

organisms or density of organisms, 

unless the Director approves of a 

different metric for such measurements. 

If the abundance varies seasonally, the 

Director may require several 

measurements of entrainment through 

the year, from which a 12-month 

average can be calculated. 

For the purpose of today’s rule, 

entrainable is defined as any organism 

that passes through a sieve with a 

maximum opening of 0.56 inches. As 

discussed in Section VI, this would 

avoid any confusion as to which 

organisms are subject to which 

standards (i.e., requirements for IM or 

requirements for E). The regulation 

specifies that the sieve used for 

calculating impingement must be the 

same sieve used for calculating 

entrainment, so all organisms are 

accounted for. Facilities can also 

monitor the latent entrainment mortality 

in front of the intake structure. 

Entrainable organisms passing through 

the cooling water intake structure are to 

be counted as 100 percent entrainment 

mortality unless the facility 

demonstrates to the approval of the 

Director that the mortality for each 

species is less than 100 percent. 

In addition, facilities must monitor 

the AIF for each intake. The AIF must 

be measured at the same time as the 

samples of entrainable organisms are 

collected. 

The following equation illustrates 

how to calculate a baseline level of 

entrainment (EB): 

EB = ED × AIF 

Performance commensurate with a 

closed-cycle recirculating system (ECCRS) 

can therefore be determined by reducing 

EB by the percentage of flow reduced 

through the use of a closed-cycle 

cooling system. For example, a facility 

withdrawing make-up water from a 

freshwater source (as described above, 

would achieve a reduction of 97.5 

percent) will calculate its performance 

as follows: 

ECCRS = (EB) × (100 ¥ 97.5) ÷ 100 

The resulting value, ECCRS, is the 

required level of entrainment 

performance (as measured by 

entrainment mortality). The facility 

could implement any combination of 

flow reduction, technologies, and 

operational measures to meet the 

required level of entrainment 

performance. For example, a facility 

withdraws 200 mgd AIF from a 

freshwater river. The annual average 

entrainment density in the proximity of 

the intake structure is 6,400 organisms 

per 100 cubic meters withdrawn. 

EB = ED × AIF 

6,400 organisms/100m3 × (100m3/26,417 

gallons) × 200,000,000 gallons per 

day 

= 48 × 106 organisms per day 

The maximum entrainment mortality 

for a closed-cycle cooling system is thus 

ECCRS = (EB) × (100 ¥ 97.5) ÷ 100 

= (48 × 106 organisms per day) × (100 

¥ 97.5) ÷ 100 

= 1.2 × 106 organisms per day. 

The minimum required level of 

performance for demonstrating 

entrainment mortality at a comparable 

level (EC) to a closed-cycle cooling 

system is the level corresponding to 90 


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101The 90 percent metric is required in Phase I, 

and adopted here because new units are subject to 

requirements similar to the Phase I requirements. 

Phase I, at 40 CFR 125.86 specifies, ‘‘reduced both 

impingement mortality and entrainment of all life 

stages of fish and shellfish to 90 percent or greater 

of the reduction that would be achieved through 

§ 125.84(b)(1) and (2).’’ 

percent 101 of the reduction that a 

facility with a closed-cycle cooling 

system could achieve: 

EC = (EB) × (100 ¥ (97.5 × .9)) ÷ 100 

= (48 × 106 organisms per day) × (100 

¥ (97.5 × .9)) ÷ 100 

= 5.88 × 106 organisms per day. 

The Director may require additional 

monitoring necessary to demonstrate 

compliance with § 125.94(d), 

endangered species requirements under 

§ 125.94(g), interim standards under 

§ 125.94(h), and any more stringent 

standards under § 125.94(i). 

In addition, all facilities will either 

conduct visual inspections or employ 

remote monitoring devices when the 

cooling water intake structure is in 

operation. The facility will conduct 

such inspections at least weekly to 

ensure that any technologies installed to 

comply with § 125.94 are maintained 

and operated to ensure that they will 

continue to function as designed. EPA is 

aware that for some facilities, this 

requirement could pose a feasibility 

challenge (for example due to ice cover 

in the winter season, inability of divers 

to see through more than a few inches 

of water, or certain intakes in deep 

water). The rule, therefore, authorizes 

the Director to establish alternative 

procedures. See § 125.96(e). 

H. What reports am I required to 

submit? 

1. Status Reports 

If the Director establishes a 

compliance schedule, the Director will 

also establish any status reporting 

requirements. These reports may 

include updates on biological 

monitoring, technology testing results, 

construction schedules, or other 

appropriate topics and serve as 

milestones for the facility and the 

Director to evaluate the progress of the 

facility in meeting BTA. See 

§§ 125.94(b) and (d) and 125.97(b). 

2. Monitoring Reports 

The required reports for monitoring 

activities are similar to requirements 

that are already in NPDES permits for 

effluent discharges. EPA expects such 

reports to be included with the 

Discharge Monitoring Reports (DMRs) or 

equivalent state reports. Facilities 

would report any monitoring, 

demonstration, and other information 

required by the permit sufficient to 

determine compliance with the permit 

requirements established under 

§ 125.94, as well as any other 

monitoring requirements specified in 

the permit. See 40 CFR 125.97(a). 

Entrainment requirements will be 

determined on a site-specific basis by 

the Director. For facilities that are 

required to install entrainment controls, 

EPA expects that these facilities would 

generally conduct ongoing flow (or 

other) monitoring as verification that 

entrainment has been reduced. See 

§ 125.96(b) and (c). However, the 

Director may require facilities to report 

entrainment monitoring and analysis, 

including: 

• The compliance measurement 

location. 

• A description of the flow 

monitoring procedure. 

• Documentation of flow reductions. 

• Any other monitoring requirements 

specified in the permit. 

The report must include any 

monitoring and analysis required as part 

of additional measures for threatened 

and endangered species, shellfish, or 

fragile species as established by the 

Director. Further, your report will 

include documentation of cooling water 

that is process water, gray water, waste 

water, reclaimed water, or other water 

reused as cooling water in lieu of water 

obtained by an intake. The Director will 

evaluate these reports for compliance 

with permit requirements as 

appropriate. 

3. Annual Certifications 

Today’s rule requires a facility to 

submit an annual certification statement 

signed by the responsible corporate 

officer. See § 125.97(c). In most cases, 

the statement would indicate the 

information from the previous statement 

is still pertinent. If modifications were 

made to the facility that impacts cooling 

water withdrawals or operation of the 

cooling water intake structures, the 

statement would indicate such, and the 

facility would submit revisions to the 

information required in their permit 

application at § 122.21(r). 

4. Other Reporting 

In addition, EPA notes that 

supplemental reporting may be required 

under the ESA as part of any incidental 

take statement or permit (50 CFR 

402.14(i)) or a section 10 permit (50 CFR 

222.307) that is issued by the United 

States Fish and Wildlife Service or the 

National Marine Fisheries Service to 

ensure compliance with the Endangered 

Species Act. 

I. What records will I be required to 

keep? 

As described at § 125.97(d), facilities 

are required to keep all permit 

applications, status, monitoring, and 

annual reports and related supporting 

information and materials at least until 

the subsequent permit is issued. 

Facilities might wish to keep records for 

a longer period to maintain a complete 

regulatory history of the facility. For 

example, existing source water 

biological studies submitted with a 

facility’s permit application could 

contain data that has been collected in 

the past 10 or more years. When the 

Director has approved a request for 

reduced information collection in the 

permit application, the rule requires 

that records of submissions that are part 

of a previous permit application be kept 

until the subsequent permit is issued. 

See § 125.95(e). Records supporting the 

BTA determination for entrainment 

must be kept until such time as the 

Director revises the determination. The 

Director may establish additional 

record-keeping requirements in the 

permit, such as additional records 

documenting compliance monitoring, 

data collection, or more frequent 

reports. 

Facilities must also keep records of all 

data used to complete the permit 

application and show compliance with 

the requirements of § 125.94, any 

supplemental information developed 

under § 125.95, and any compliance 

monitoring data submitted under 

§ 125.96. The Director may require that 

these records be kept for a longer 

period. 

J. What are the respective Federal, State, 

and Tribal roles? 

Today’s final rule affects authorized 

State and Tribal NPDES permit 

programs. Under 40 CFR 123.62(e), any 

existing approved section 402 

permitting program must be revised to 

be consistent with new program 

requirements within one year from the 

date of this promulgation, unless the 

NPDES-authorized State or Tribe must 

amend or enact a statute to make the 

required revisions. If a State or Tribe 

must amend or enact a statute to 

conform to today’s final rule, the 

revision must be made within two years 

of this promulgation. States and Tribes 

seeking new EPA authorization to 

implement the NPDES program must 

comply with the requirements when 

authorization is approved. This final 

regulation does not alter State authority 

under section 510 of the CWA. 

In addition to updating their programs 

to be consistent with today’s final rule, 


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States and Tribes authorized to 

implement the NPDES program are 

required under NPDES State program 

requirements to implement the cooling 

water intake structure requirements of 

subpart J following promulgation of the 

final regulations. The permit 

requirements in this final rule must be 

implemented upon the first issuance or 

reissuance of permits following 

promulgation. Duties of an authorized 

State or Tribe under this regulation are 

described throughout this section and 

include reviewing permit application 

materials, determining appropriate 

requirements, reviewing monitoring and 

reporting data, and assessing whether a 

facility is complying with the final 

rule’s requirements. 

EPA recognizes that some States have 

invested considerable effort in 

developing and implementing section 

316(b) permits. This final regulation at 

§ 125.98(b) and (g) allows the Director 

flexibility where there are ongoing 

permit proceedings or where a BTA 

determination has already been made 

based on substantially the same 

information required at § 122.21(r). 

EPA will implement these 

requirements where States or Tribes are 

not authorized to implement the NPDES 

program. 

K. Protection of Endangered and 

Threatened Species and Designated 

Critical Habitat 

1. Existing Requirements Under Section 

9 of the Endangered Species Act 

The ESA imposes duties not just on 

Federal agencies but also on other 

entities. Section 9 of the ESA 

specifically provides that it is unlawful 

for any person to ‘‘take’’ any endangered 

species of fish or wildlife except under 

defined circumstances. The Services 

(National Marine Fisheries Service or 

U.S. Fish and Wildlife Service) may 

provide an exemption to the prohibition 

on take in one of two ways. Take may 

be permitted under section 10 of the 

ESA (16 U.S.C. 1539) or the Services 

may provide an exemption for take that 

is incidental to otherwise legal activity 

through a statement that is included 

with the Services’ biological opinion 

developed during Federal agency 

consultation. (16 U.S.C. 1536(o)) The 

incidental take statement specifies the 

terms and conditions necessary to 

implement reasonable and prudent 

measures which minimize incidental 

take. 

Nothing in today’s rule changes the 

existing, independent obligations of the 

facilities subject to this rule under 

section 9 of the ESA. Unless exempted 

by an incidental take statement or 

section 10 permit, facilities have been 

prohibited from taking (for example, 

harming or killing) endangered species 

of fish or wildlife. In order to obtain a 

section 10 permit, the facility would be 

required to develop a Habitat 

Conservation Plan (HCP), which is a 

mandatory component of an incidental 

take permit application. The HCP must 

specify the anticipated effects of the 

proposed taking, how those impacts will 

be minimized or mitigated, the 

alternative actions to the taking that the 

applicant considered, the reasons for 

not utilizing those alternatives, and 

other necessary or appropriate measures 

that the Secretary may require. 

2. EPA’s Consultation Under Section 7 

of the ESA 

Under section 7 of the Endangered 

Species Act, each Federal agency must 

insure that any action authorized, 

funded, or carried out by the agency ‘‘is 

not likely to jeopardize the continued 

existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

habitat of such species which is 

determined by the Secretary, after 

consultation as appropriate with 

affected States, to be critical. . . .’’ 16 

U.S.C. 1535(a)(2). In the case of any 

Federal agency action subject to the ESA 

that may affect listed species or critical 

habitat, the Federal agency must consult 

with the concerned offices with 

responsibilities under the ESA, 

specifically NMFS and/or FWS. 50 CFR 

402.14(a). 

In July 2012, EPA began informal 

consultation with the NMFS about the 

proposed section 316(b) regulations. In 

October 2012, EPA began informal 

consultation with the FWS. EPA 

prepared a draft biological evaluation of 

the effects of this rule on threatened and 

endangered species and in it concluded 

that the rule was not likely to adversely 

affect listed species or designated 

critical habitat. EPA was unable to 

obtain the Services’ concurrence on 

EPA’s ‘‘not likely to adversely affect’’ 

finding. In June 2013, EPA requested 

formal consultation with the Services 

under the Endangered Species Act and 

with that request submitted a final 

biological evaluation to the Services. 

EPA completed consultations with the 

Services and has included the Services’ 

biological opinion and associated 

documents in the record for this 

rulemaking. 

Among the organisms potentially 

subject to impingement and entrainment 

at cooling water intake structures are 

those that are listed as threatened and 

endangered. In addition to impinging or 

entraining threatened and endangered 

species, operation of CWISs may also 

adversely affect their critical habitat. 

Today’s rule includes a number of 

provisions specifically designed to 

address incidental take of all federallylisted threatened and endangered 

species and to insure that the rule is not 

likely to jeopardize the continued 

existence of listed species or result in 

the destruction or adverse modification 

of critical habitat. These provisions are 

described below. 

The regulatory model adopted by EPA 

in the Phase I rule and later in the 

subsequently-withdrawn Phase II rule 

for large existing power producing 

facilities provided a structure to address 

and minimize adverse impacts to 

threatened and endangered species. 

EPA’s approach required that facilities 

subject to the 316(b) rules, at the permit 

application stage of the permitting 

process must, among other things, 

identify threatened and endangered 

species that might be subject to 

impingement and entrainment in order 

to ensure that the permitting authority 

would have the requisite information on 

which to make a decision about the 

need for controls to protect threatened 

and endangered species. See 40 CFR 

122.21(r)(4). 

The Phase I and Phase II regulations 

specifically authorized the permit writer 

(referred to as the ‘‘Director’’ in EPA’s 

permitting regulations) to adopt 

measures designed to protect threatened 

and endangered species. Thus, for 

example, EPA’s Phase I regulations for 

cooling water intake structures at new 

facilities require that, under one of the 

compliance options, an owner or 

operator must select and implement 

impingement and entrainment 

minimization measures ‘‘if there are 

threatened or endangered or otherwise 

protected Federal, State or Tribal 

species.’’ Moreover, the permit writer 

may require additional impingement 

and entrainment reduction measures if 

the permit writer determines that the 

facility after meeting the required 

performance standard would ‘‘still 

contribute unacceptable stress to the 

protected species, critical habitat of 

those species or species of concern.’’ 40 

CFR 125.84(b)(4) & (5). 

The Phase II regulation continued the 

general approach followed in the Phase 

I regulation for protection of threatened 

and endangered species. Permit 

applicants needed to submit the same 

information on threatened and 

endangered species required in the 

Phase I rule. In addition, building on the 

earlier information requirements, the 

regulation also would have required 

facilities selecting and implementing 

certain of the alternative BTA 


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compliance measures to submit a 

Comprehensive Demonstration Study 

that, among other things, characterized 

impingement and entrainment at the 

facility. Further, the rule would have 

required a facility to submit an 

Impingement Mortality and/or 

Entrainment Characterization Study that 

included taxonomic identification, 

characterization and documentation of 

current impingement mortality and 

entrainment of all life stages of fish, 

shellfish and any species protected 

under Federal, State or Tribal law 

(including threatened or endangered 

species). 69 FR 41687–88, July 9, 2004. 

In addition, the Phase I and II rules 

included a requirement for the facility 

to include in their permit application 

documentation of any public 

participation or consultation with 

Federal or State agencies on impacts of 

their cooling water intake structure on 

threatened and endangered species. The 

regulation then would have required the 

permit writer to determine appropriate 

permit requirements and conditions. 

EPA noted that its existing NPDES 

permitting regulations reference a 

number of Federal laws that might 

apply to Federally-issued NPDES 

permits, including the Endangered 

Species Act. 69 FR 41643–44, July 9, 

2004. 

Threatened and endangered species 

were important considerations in the 

proposal to today’s rule and were of 

particular concern to the EPA. The 

preamble to the proposal reflects at a 

number of points that, in looking at the 

benefits of different regulatory options, 

EPA attempted to assess the benefits to 

threatened and endangered species. See 

76 FR 22174, 22197, 22207. The 

proposal also noted the importance of 

obtaining information for the permit 

writer about potential entrainment 

reductions. Thus, the proposal would 

have required certain facilities to 

develop and submit with their permit 

application detailed information on 

their operations as well as an 

engineering study of the technical 

feasibility and incremental costs of 

candidate entrainment mortality control 

technologies and a detailed discussion 

of the magnitude of non-water quality 

benefits. EPA proposed that some 

facilities would need to submit an 

Entrainment Characterization Study that 

included an entrainment mortality data 

collection plan that would indicate, at a 

minimum, taxonomic identification, 

latent mortality identification, 

documentation of all methods, and 

quality assurance/quality control 

procedures or sampling and data 

analysis appropriate for a quantitative 

survey. Under the proposal, EPA would 

also have required peer review of the 

entrainment mortality data collection 

plan. Peer reviewers would be selected 

in consultation with the Director who 

may consult with EPA and Federal, 

State, and Tribal fish and wildlife 

management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). Further, facilities 

with greater than 125 mgd AIF would 

complete an entrainment study. The 

entrainment study could include 

information already collected to meet 

the Phase II requirements at 

§ 122.21(r)(2)–(r)(4) before those 

requirements were suspended. 

EPA and the Services have completed 

consultations on the rule. EPA has 

received the final biological opinion and 

associated documents from the U.S. 

Fish and Wildlife Service and the U.S. 

National Marine Fisheries Service and 

has included them in the record for the 

rule. The Services have concluded 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. 

3. Final Rule Provisions Related to 

Threatened and Endangered Species 

As noted previously, establishing 

standards for cooling water intake 

structures to minimize impingement 

and entrainment of all aquatic 

organisms will promote and enhance 

protection of T&E species. In addition, 

the rule contains a number of provisions 

that specifically concern T&E species; 

these provisions were developed in light 

of EPA’s consultation with the Services 

and were established by EPA to insure 

that this rule is not likely to jeopardize 

listed species or result in the 

destruction or adverse modification of 

designated critical habitat. To be clear, 

the ESA provisions of the rule extend to 

all listed T&E species, not just fish and 

shellfish. 

The treatment of T&E species in 

today’s rule follows directly from the 

Agency’s longstanding approach as well 

as from EPA’s proposed 2011 rule 

which indicated the EPA’s intention to 

address protection of T&E species. The 

rule adopts the identical approach 

followed in the Phase I and II rules, 

while adding some refinements to that 

earlier model which EPA discussed in 

the proposed rule. First, it adopts the 

proposed requirements that insure an 

adequate information base is submitted 

to the permit writer. As was the case 

with the Phase I and withdrawn Phase 

II rule, apprising the permit writer of the 

presence and extent of T&E species at a 

facility’s intake continues to be an 

important element of the permit 

application requirements for existing 

facilities. While retaining the existing 

permit application requirement of 40 

CFR 122.21(r), EPA has included in 

today’s rule a provision at § 125.95(f) 

that requires a facility in its permit 

application to identify all Federallylisted threatened and endangered 

species and designated critical habitat 

that are or may be present in the action 

area. The action area can generally be 

considered the area in the vicinity of the 

cooling water intake structure. The 

evaluation is to be based on information 

readily available to the facility at the 

time of the permit application. In 

addition, the rule requires the largest 

withdrawing facilities to provide 

taxonomic identification of species in 

the vicinity of the intake, thus providing 

a mechanism for facilities to determine 

more accurately their potential impact 

on protected species. 

The rule requires that the Director 

transmit all permit applications to the 

Services upon receipt. The rule provides 

the Services with 60 days to review the 

permit application. This 60 day review 

takes place prior to the public notice of 

the State or Tribe’s draft or proposed 

permit. EPA expects that the Services 

will respond within 60 days and 

provide to the Director (1) any 

corrections to the list of Federally-listed 

threatened and endangered species and 

critical habitat included in the permit 

application, (2) any measures that the 

Services recommend (including 

monitoring and reporting) for the 

protection of listed species, including 

any measures that would minimize any 

incidental take of listed species, and/or 

avoid likely jeopardy to a listed species 

or destruction or adverse modification 

of critical habitat, and/or (3) notify the 

State or Tribe that the Service(s) have no 

corrections to the list of species and 

critical habitat and/or that the Service(s) 

do not recommend any control 

measures. The Services’ 60 day review 

period does not constrain the Director’s 

ability to process the applicant’s permit 

application; however, the Director may 

not propose/publish the draft permit 

until the 60 day review period has 

ended, unless the Director has received 

the Services’ response prior to that time. 

In addition, the Services will receive, 

pursuant to existing regulations at 40 

CFR 124.10(c)(1)(iii) and (e), all permit 

applications, as well as fact sheets or 

statements of basis (for EPA-issued 

permits), draft permits, and public 

notices for all permits. At this stage of 

the process, the Services will have the 

opportunity to review the draft permit 

and other materials and provide any 


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additional input or suggested control 

measures to address effects to listed 

species or critical habitat. Together, the 

existing and new requirements related 

to transmittal of permitting documents 

to the Services will ensure that the 

Services have the opportunity to 

provide information and 

recommendations to the permit writer 

relating to any facility that may affect 

listed species. This information will be 

part of the public record for the 

permitting decision and the Director 

would be required to consider it as a 

relevant factor, along with all of the 

other relevant factors, in deciding what 

conditions to establish in the permit. 

Further, as explained in the MOA 

between EPA and the Services 

discussed elsewhere in today’s notice, 

EPA will use the full extent of its CWA 

authority to object to a permit where 

EPA finds that issuance of the permit is 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. The rule’s 

requirements insure a full vetting of 

information and concerns in the 

permitting process that must be 

considered by the Director. These 

requirements, coupled with the EPA’s 

commitment to exercise its oversight 

authority, insure that today’s rule is not 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. 

Among the recommendations that 

may be made by the Services to the 

facility and the Director are measures to 

minimize incidental take. EPA expects 

that any measures the Services 

recommend to minimize incidental take 

will be consistent with ESA regulations 

and guidances concerning reasonable 

and prudent measures. As stated in the 

ESA regulations under 50 CFR 

402.14(i)(2), ‘‘Reasonable and prudent 

measures, along with the terms and 

conditions that implement them, cannot 

alter the basic design, location, scope, 

duration, or timing of the action and 

may involve only minor changes.’’ The 

Endangered Species Handbook (FWS 

and NMFS, 1998) explains that: 

‘‘Measures are considered reasonable 

and prudent when they are consistent 

with the proposed action’s basic design 

(e.g., narrowing of disturbed right-ofway at known species locations), 

location (e.g., temporary storage of 

equipment or other materials), scope, 

duration, and timing. Reasonable and 

prudent measures and terms and 

conditions should be developed in 

coordination with the action agency and 

applicant, if any, to ensure that the 

measures are reasonable, that they cause 

only minor changes to the project, and 

that they are within the legal authority 

and jurisdiction of the agency or 

applicant to carry out.’’ 

Installation of closed-cycle cooling is 

a major design alteration of a facility 

involving significant design and 

construction activities (the range of 

costs associated with closed-cycle 

cooling is described elsewhere in 

today’s notice). Because installation of 

closed-cycle cooling does alter the basic 

design of a facility and would involve 

more than minor changes, as described 

in the Services’ regulations and 

Handbook, EPA does not expect that 

installation of closed-cycle cooling 

would be specified as a measure solely 

for purposes of minimizing incidental 

take. The final rule at § 125.98(j) 

provides that nothing in this rule 

authorizes the take of threatened or 

endangered species of fish or wildlife. 

However, the Services may exempt take 

through an incidental take statement 

issued pursuant to ESA section 7(o) or 

a permit under ESA section 10. See 16 

U.S.C. 1536 (o) and 16 U.S.C. 1539. 

This Clean Water Act rule cannot 

authorize take and does not purport to 

do so (nor can NPDES permits authorize 

take prohibited under the ESA). 

Accordingly, under § 125.98(b)(1), the 

permit writer, including EPA, must 

include, in the 316(b) permit 

requirements, standard language that 

states the permit does not authorize the 

take of Federally-listed threatened and 

endangered species. In addition, under 

§ 125.96(g) (additional monitoring 

requirements) and § 125.97(g) 

(additional reporting 

requirements),where the Director 

requires additional measures to protect 

listed species, monitoring and reporting 

requirements associated with those 

measures will be included in the permit. 

4. EPA Oversight of State-Issued NPDES 

Permits To Protect Threatened and 

Endangered Species 

In 2001, the EPA, FWS, and NMFS 

signed a Memorandum of Agreement 

(MOA), (66 FR 11202, Feb. 22, 2001) 

with the objective of enhancing 

coordination between the agencies and 

to assist the agencies in executing their 

respective responsibilities under the 

Clean Water Act and Endangered 

Species Act. The MOA reflects, in part, 

the EPA’s longstanding commitment to 

overseeing the operation of state NPDES 

programs to ensure protection of 

endangered species with existing 

regulatory requirements. The EPA 

reaffirms its commitment to ensure 

coordination of the EPA’s and Services’ 

programs and appropriate protection of 

listed species, and EPA will follow the 

procedures in the MOA in overseeing 

implementation of this rule. 

The MOA committed the EPA to a 

number of specific actions that are 

pertinent to today’s rule. 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 permits will comply with all 

applicable CWA requirements. One way 

in which coordination between EPA and 

the Services is facilitated is through the 

exchange of information about permits. 

The MOA facilitates such information 

exchange, as do EPA’s NPDES permit 

regulations at 40 CFR 124.10, that 

preceded the MOA. These regulations 

require the Director to provide public 

notice and a comment period for draft 

permits, and to notify persons identified 

at 40 CFR 124.10(c)(1)(iii) and (iv). Such 

persons specifically include Federal and 

State agencies with jurisdiction over 

fish, shellfish, and wildlife resource and 

over coastal zone management plans 

and thus include the U.S. Fish and 

Wildlife Service and the National 

Marine Fisheries Service. 

EPA’s commitment to coordinate 

effectively with the Services includes 

following the procedures in section 

IX.A.6 and 7 of the MOA: 

EPA may make a formal objection, 

where consistent with its CWA 

authority, or take other appropriate 

action, where EPA finds that a State or 

Tribal NPDES permit will likely have 

more than minor detrimental effect on 

Federally-listed species or critical 

habitat. 

For those NPDES permits with 

detrimental effects on Federally-listed 

species or critical habitat that are minor, 

it is the intention of the Services and 

EPA that the Services will work with 

the State or Tribe to reduce the 

detrimental effects stemming from the 

permit. For those NPDES permits that 

have detrimental effects on Federallylisted species or critical habitat that are 

more than minor, including 

circumstances where the discharge fails 

to ensure the protection and 

propagation of fish, shellfish and 

wildlife, and where the State or Tribe 

and the Services are unable to resolve 

the issues, it is the intention of the 

Services and EPA that EPA would work 

with the State or Tribe to remove or 

reduce the detrimental impacts of the 

permit, including, in appropriate cases, 

by objecting to and Federalizing the 

permit where consistent with EPA’s 

CWA authority. 

EPA will use the full extent of its 

CWA authority to object to a State or 

Tribal permit where EPA finds (taking 


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into account all available information, 

including any analysis conducted by the 

Services) that 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. 

EPA may review or waive review of 

draft State or Tribal NPDES permits (40 

CFR 123.24(d)). EPA will work with the 

Services through the local/regional 

coordinating teams to help determine 

which categories of permits should be 

reviewed for endangered species 

concerns. If EPA finds that a draft 

permit has a reasonable potential to 

have more than a minor detrimental 

effect on listed species or critical 

habitat, and review of a draft permit has 

been waived, EPA will withdraw this 

waiver during the public comment 

period (see 40 CFR 123.24(e)(1)). 

The grounds for EPA’s exercise of its 

discretionary authority to object to State 

or Tribal permits are described in the 

NPDES regulations at 40 CFR 123.44. 

These include that the proposed permit 

fails to comply, or to ensure compliance 

with, any applicable requirement of this 

part, for example, that a permit 

application did not contain information 

sufficient to demonstrate that the permit 

will ensure compliance with applicable 

requirements. See 40 CFR 123.44(c)(1). 

If EPA objects to a NPDES permit 

under the MOA, 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 Tribe 

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. 

While the MOA was adopted by the 

agencies in the context of NPDES 

permits for discharges of pollutants, it 

applies equally to NPDES permits that 

contain conditions for cooling water 

intake structures. Moreover, section 

316(b) of the CWA accords EPA broad 

authority to protect waters of the United 

States from adverse environmental 

impacts associated with cooling water 

intake structures, including adverse 

effects to Federally-listed species and 

designated critical habitat. In 

implementing this provision, EPA is 

authorized to consider costs and 

benefits of different approaches to 

minimizing these impacts. The 

importance of listed species, and 

accordingly the benefits associated with 

preventing their extinction, animated 

Congress’s enactment of the Endangered 

Species Act in 1973. In the case of 

aquatic organisms that are listed as 

endangered or threatened, and 

designated critical habitat, EPA has the 

authority, and will exercise the full 

extent of its authority, to object to a 

permit proposed by a State where EPA 

finds (taking into account all available 

information, and giving, as appropriate, 

substantial weight to the views of the 

Services) that a State or Tribal permit is 

likely to jeopardize the continued 

existence of such species or result in the 

destruction or adverse modification of 

such critical habitat. If the State permit 

is not modified to address EPA’s 

objections, EPA will issue the permit in 

consultation with the Services. EPA’s 

commitment to use the full extent of its 

CWA authority to object to permits that 

are likely to jeopardize listed species or 

result in the destruction or adverse 

modification of critical habitat is a 

safeguard for the protection of listed 

species and critical habitat. 

Additionally, where the Service 

communicates in writing to EPA its 

conclusion that a proposed State permit 

is likely to jeopardize the continued 

existence of a listed species, EPA will, 

upon request, provide the Service a 

written response. EPA’s commitment to 

use the full extent of its CWA authority, 

along with the other provisions of the 

rule requiring the EPA, the Services, 

and State Directors to fully consider 

effects to threatened and endangered 

species and critical habitat and include 

appropriate protections in NPDES 

permits, insures 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. 

L. Permits for Existing Facilities Are 

Subject to Requirements Under Other 

Federal Statutes 

EPA’s NPDES permitting regulations 

at § 122.49 list Federal laws that might 

apply to the issuance of NPDES permits 

under the NPDES rules. These include 

the Wild and Scenic Rivers Act, 16 

U.S.C. 1273 et seq.; the National 

Historic Preservation Act of 1966, 16 

U.S.C. 470 et seq.; the Coastal Zone 

Management Act, 16 U.S.C. 1451 et seq.; 

and the National Environmental Policy 

Act, 42 U.S.C. 4321 et seq. For a brief 

description of each of these laws, see 

§ 122.49. The provisions of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, 16 

U.S.C. 1801 et seq., relating to essential 

fish habitat might also be relevant. 

EPA’s permit application requirements 

ensure that FWS and NMFS will have— 

and other Federal agencies as well, 

should have—a broader information 

base from which to make informed 

decisions. Note also that, in the case of 

EPA-issued permits, EPA’s NPDES 

permitting regulations specifically 

require following the requirements of 

specific Federal laws that may apply to 

the issuance of NPDES permits. 

IX. Cost Development and Economic 

Impact Analysis 

This section summarizes EPA’s 

analysis of the social cost and economic 

impact for three regulatory options. In 

addition to today’s rule, referred to as 

the Final Rule, EPA analyzed two other 

options similar to those options at 

proposal (see section VI.D Other 

Options Considered for Today’s Final 

Regulation for more context). The 

regulatory options can be described as 

follows: 

• Final Rule: Flexible impingement 

mortality performance standard for 

existing units based on modified 

traveling screens with fish returns for all 

facilities with DIF greater than 2 mgd, 

closed-cycle cooling or its equivalent for 

new units for impingement and 

entrainment, and a national BTA 

standard that requires a site 

determination of entrainment BTA for 

all other existing units at existing 

facilities; 

• Proposal Option 2: Intake flow 

commensurate with closed-cycle 

cooling for facilities that have a design 

intake flow of greater than 125 mgd, 

flexible impingement mortality 

limitations based on modified traveling 

screens with fish returns for all facilities 

with DIF greater than 2 mgd, and 

closed-cycle cooling or its equivalent for 

new units; and 

• Proposal Option 4: Flexible 

impingement mortality limitations 

based on modified traveling screens for 

all facilities with DIF greater than 50 

mgd, closed-cycle cooling or its 

equivalent for new units, and a sitespecific determination of entrainment 

BTA for all other facilities and for 

impingement mortality controls at 

facilities with flow less than or equal to 

50 mgd. 

The first part of this section provides 

an overall summary of the costs of the 

regulatory options to regulated facilities 

and Federal and State governments. 

This discussion is followed by a review 

of the method for developing 

compliance cost estimates. The third 

part provides an estimate of the total 

social costs of the regulatory options. 

The final part reviews the economic 

impact of the regulatory options. 


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102EPA notes that, while it has not collected 

updated technical information for every facility, it 

has updated financial data, as discussed later in this 

section. 

A. Overview of Costs to Regulated 

Facilities and Federal and State 

Governments 

In estimating the total cost of the 

regulatory options, EPA estimated costs 

for the following components: capital 

costs and other one-time costs; 

installation downtime costs; annual 

operation and maintenance costs; and 

recordkeeping, monitoring, 

entrainment-related studies, and 

reporting costs. All of these costs are 

included in the economic impact 

analysis for the final rule. The cost 

estimates reflect the incremental costs 

attributed only to this final rule. For 

example, facilities already having 

closed-cycle recirculating systems as 

defined at § 125.92 will meet the 

impingement mortality and entrainment 

standards of today’s rule and, therefore, 

will not incur costs to retrofit new 

technologies. These facilities, including 

those in New York and California, will 

still incur permitting costs. EPA has 

established that existing closed-cycle 

recirculating systems will comply with 

the impingement BTA requirements. 

For the economic analysis, EPA 

distinguished between the two industry 

groups regulated by the standards for 

existing facilities as follows: 

• Electric Power Producers (electric 

generators)—facilities owned by 

investor-owned utilities, municipalities, 

States, Federal authorities, cooperatives, 

and nonutilities, whose primary 

business is electric power generation or 

related electric power services. 

• Manufacturing and Other Industries 

(manufacturers)—facilities in the paper, 

aluminum, steel, chemicals, petroleum, 

food and kindred products (primary 

manufacturing industries), and other 

industries. In addition to engaging in 

production activities, some of these 

facilities also generate electricity for 

their own use and occasionally produce 

excess power for sale. 

For a more detailed discussion of 

costs to regulated facilities and costs to 

Federal, State, and local governments, 

see Chapter 8 of the TDD and Chapter 

3 of the EA. 

Electric generators incurring costs 

include facilities owned by private 

firms, governments, and electric 

cooperatives. Manufacturers incurring 

costs include facilities owned by private 

firms only. The administrative costs to 

Federal, State, and local governments 

include the costs of rule 

implementation—e.g., permits, 

monitoring, and working with facilities 

subject to the final rule to achieve 

compliance. 

In the economic analysis, EPA 

accounted for these costs on an asincurred basis. They are reported on a 

pre-tax or after-tax basis, depending on 

the specific component of the analysis. 

These costs also underlie the analysis of 

the social costs of the regulatory 

options. 

B. Development of Compliance Costs 

This section describes the data and 

methods used to estimate compliance 

costs of the options considered for 

today’s final rule. Costs were developed 

for technology controls to address 

impingement mortality separately from 

technology controls for entrainment 

because the requirements of the various 

rule options considered may lead to 

different technologies being used by 

each facility to comply. The options 

considered may impose different 

compliance timelines for impingement 

mortality and entrainment control 

technologies, although decision making 

has been synchronized to avoid 

investments in impingement BTA 

controls that could later be rendered 

obsolete by the BTA requirements for 

entrainment. Different methodologies 

were used and each is briefly described 

below. More detailed information on 

these methodologies and costs of other 

technologies and regulatory approaches 

are available in Chapter 8 of the TDD. 

1. Combined Facility-Specific and 

Model-Facility Approach 

EPA estimated national level costs for 

regulated facilities under the final rule 

and other regulatory options. In general, 

facility-specific data can be used to 

determine the requirements that apply 

to a facility and whether that facility 

already meets the final rule’s 

requirements. This approach requires 

facility-specific technical data for the 

approximately 1,065 facilities that EPA 

estimates will be subject to the final 

rule. The change in the number of 

facilities subject to the final rule 

compared to the number estimated at 

proposal is attributable to changes in 

how EPA accounted for baseline 

closures. See Appendix H of the EA for 

more details. An alternative approach is 

to develop a series of model facilities 

that exhibit the typical characteristics of 

the regulated facilities and calculate 

costs for each model facility; EPA would 

then determine how many of each 

model facility would be needed to 

accurately represent the full universe of 

regulated facilities. 

The approach used in this effort 

involved calculating compliance 

technology costs for 338 individual 

facilities for which EPA had detailed 

technical data from its questionnaires 

regarding the intake design and 

technology. Specifically, these are the 

facilities that completed the detailed 

technical questionnaire. Where facilities 

reported data for separate cooling water 

intake structures, EPA derived 

compliance technology costs for each 

intake, and summed these intake costs 

to obtain total costs for each facility. 

EPA used the actual facility data to 

construct model facilities. Each model 

facility’s costs were then multiplied by 

a specific weighting factor, derived from 

a statistical analysis of the industry 

questionnaire, to obtain industry-wide 

costs. The weighting factors are similar 

to the ones derived during the 

development of the 2004 Phase II and 

2006 Phase III rules. 

2. Updates to the Survey Data 

For the 2004 Phase II rule analysis, 

EPA developed facility-specific cost 

estimates for all facilities and published 

those costs in an appendix (69 FR 

41669, July 9, 2004). Since the initial 

implementation of the 2004 Phase II 

rule, EPA identified several concerns 

with using only the facility-specific 

costing approach, and the use of those 

costs in Appendix A. Since 2004 EPA 

has collected data from industry and 

other groups as described in Section III 

of the proposed rule (76 FR 22183, April 

20, 2011). These data generally reflect 

changes to actual intake flow, design 

intake flow, intake velocity, technology 

in place, and operational status. EPA 

developed a new master database 

including this new data to supplement 

the data from the detailed technical 

questionnaire. Although it has been 

more than 10 years since the detailed 

technical questionnaire was initially 

collected, EPA has undertaken more 

than 50 site visits and reviewed 

available literature. In addition, EPA 

compared its data with that collected by 

Edison Electric Institute, Electric Power 

Research Institute, and the Energy 

Information Administration. On the 

basis of that review, EPA concluded that 

the master database is representative 

and reasonably reflects costs for all 

facilities.102 The following section 

describes how EPA used this new 

database to estimate compliance costs. 

3. Tools for Developing Compliance 

Costs 

During development of the 2004 

Phase II rule, EPA began developing a 

spreadsheet-based tool that would 

provide facilities and permit authorities 

with a simple and transparent method 

for calculating facility-specific 


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103A refinery, for example, may have dozens of 

heat exchange processes throughout the facility, 

including a mix of wet and dry non-contact cooling 

equipment. 

104The EPRI tool includes drift abatement 

technologies in its cost assumptions, so no 

additional costs were included for drift eliminators. 

105As described in the TDD, EPA used only noncontact cooling water flows in determining the 

proper size for wet cooling towers. Cooling towers 

are not widely used for contact cooling or process 

water, so these flows were excluded. For electric 

generators, the vast majority of flow is non-contact 

cooling, but manufacturers are more varied in their 

water usage. 

106Note that this does not preclude the use of 

other technologies; EPA simply used the available 

performance data in deriving the performance 

requirements. EPA’s research has shown that other 

technologies may also be capable of meeting the 

final rule requirements; however, these 

technologies are not available at all facilities. 

compliance costs. EPA refined the tool 

in developing the Phase III regulations. 

EPA has since made further refinements 

to the cost tool, which was used to 

calculate the compliance costs for 

impingement mortality for today’s final 

rule. The cost tool employs a decision 

tree (for a graphical presentation of the 

decision tree, see Chapter 8 of the TDD) 

to determine a compliance response for 

each model facility. The decision tree 

assigns a technology costing ‘‘module’’ 

for the retrofit to a given technology. 

Impingement cost estimates are derived 

through a series of computations that 

apply facility-specific data (such as DIF, 

width of intake screens, and such) to the 

selected technology module. Cost tool 

outputs include capital costs, 

incremental operation and maintenance 

costs, and installation downtime (in 

weeks). 

To calculate the compliance costs of 

retrofitting to closed-cycle cooling for 

controlling entrainment, EPA used a 

second tool based on a cost-estimating 

spreadsheet using a modified version of 

a similar tool developed by the Electric 

Power Research Institute (EPRI). EPRI’s 

first draft methodology presented three 

levels of capital cost according to the 

relative difficulty of the retrofit project 

(easy, average, and difficult). For 

electric generators, EPA used costs for 

the average level of difficulty because it 

was developed across a broad spectrum 

of facilities and is the most appropriate 

for estimating national level costs rather 

than lower or upper bounds. For 

manufacturers, EPA used the difficult 

level of retrofit costs. This reflects the 

more complex water systems and 

technical challenges to retrofitting 

closed-cycle cooling at multiple 

locations within a manufacturing 

facility. In site visits, EPA found the 

largest manufacturing facilities had 

multiple intakes, distributed the water 

to multiple production processes, have 

already significantly increased water 

reuse as a result of water audits, and 

generally operate a complicated water 

distribution network at the entire 

facility, and would therefore require 

multiple retrofits to convert the facility 

to be commensurate with closed-cycle 

recirculating system.103 Accordingly, 

EPA determined that the difficult level 

of retrofit costs is more representative 

for purposes of estimating national level 

costs. EPA’s tool includes additional 

modifications to EPRI’s methodology, 

such as increased compliance costs for 

approximately 25 percent of facilities to 

reflect the additional expense of noise 

control or plume 104 abatement, and 

using only the cooling water flow rate 

for non-contact cooling water flow 105

for purposes of estimating costs for 

closed-cycle cooling. EPA has included 

the spreadsheet tools in the docket for 

today’s final rule to assist both facilities 

and permit authorities in estimating 

compliance costs (see DCNs 12–6650 

and 12–6651 for the cost tool, as well as 

and DCN 10–6930 for EPRI’s retrofit 

analysis). 

4. Which technologies form the basis for 

compliance cost estimates? 

EPA identified two broad classes of 

control technologies that may be used 

singularly or in combination to comply 

with the final rule. These classes of 

control technologies are (1) technologies 

that address impingement mortality, 

and (2) technologies that address 

entrainment. For further details, see 

Section VI. 

For the impingement mortality 

requirements, EPA analyzed data from a 

wide variety of technologies and 

facilities, and concluded that modified 

(Ristroph or equivalent) 3⁄8′′ mesh 

traveling screens with fish-friendly fish 

handling and returns are the most 

appropriate basis for determining 

compliance costs.106 As discussed in 

Section VI of this preamble, a facility 

may also comply with impingement 

mortality requirements by meeting a low 

velocity compliance alternative, 

operating a closed-cycle recirculating 

system as defined at § 125.92(c), or 

employing an existing offshore velocity 

cap as defined at § 125.92(v). On the 

basis of facility-specific data, EPA made 

a preliminary assessment of which 

model facilities would not currently 

meet impingement mortality 

requirements through any of these preapproved technologies, and assigned 

technology costs on the basis of 

modified traveling screens with a fish 

handling and return system if the 

existing intake used traveling screens. If 

the intake does not currently use 

traveling screens, EPA assigned costs for 

installing technologies that would 

comply with the low velocity 

compliance alternative (larger intakes, 

wedgewire screens, or variable speed 

pumps) based on site-specific 

conditions. These assigned technologies 

will meet the BTA standard (see 

§ 125.94(b)). Although EPA no longer 

requires installation of barrier nets or 

equivalent technologies to protect 

shellfish in all tidal waters, EPA 

included the cost of barrier net 

technology at approximately 10 percent 

of the intakes as a cost component for 

the ‘‘systems’’ approach to compliance 

with the IM standards. 

EPA also analyzed the costs of those 

options associated with entrainment 

requirements based on wet cooling 

systems. EPA also evaluated other 

technologies for reducing entrainment, 

such as seasonal operation of cooling 

towers, partial towers, variable speed 

pumps, and fine-mesh screens. The 

costs of the final rule include but are not 

limited to permit applications; 

characterization of the source water, 

intake structures and any technologies 

in place; studies of impingement and 

entrainment; and recordkeeping, 

monitoring, and reporting. The costs 

also include costs of technologies for 

complying with the BTA for IM; the cost 

of additional technologies that may be 

required to meet the site-specific BTA 

for entrainment are not included, nor 

are costs for additional measures that 

may be required for protection of listed 

threatened and endangered species. 

Section VI further describes the 

performance of these technologies. A 

detailed discussion of how the costs 

were developed is in Chapter 8 of the 

TDD. 

5. How is installation downtime 

assessed? 

Installation downtime is the length of 

time that a facility might need to shut 

down for installing a compliance 

technology. Downtime estimates 

primarily assume that the facility would 

need to completely shut down 

operations for some portion of the 

installation period to retrofit an intake, 

such as relocating an intake, connecting 

wet cooling systems into the facility, or 

reinforcing condenser housings. EPA 

estimated downtime as incremental 

outages, taking into account the periodic 

outages all facilities incur as part of 

preventative maintenance or routinely 

scheduled outages. For example, 

nuclear facilities have refueling outages 

approximately every 18 months lasting 


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107Nuclear Energy Institute reported average 

length of outage from 2003 to 2009. 

108EPA’s data shows that facilities have an 

average of 4 to 5 bays. 

approximately 40 days.107 The 

entrainment control implementation 

periods under Proposal Option 2, 10 

years for fossil fuel facilities and 15 

years for nuclear facilities, would 

provide facilities with an opportunity to 

schedule the retrofit when other major 

upgrades are being done, thereby 

significantly reducing downtime. 

For most facilities subject to 

impingement mortality, EPA assigned 

no incremental downtime. Facilities 

that are replacing or rehabilitating 

existing traveling screens typically do so 

one intake bay at a time without 

affecting the overall operations.108 EPA 

has also found that facilities that need 

to scrub screens do so during other 

routinely scheduled outages. For some 

compliance technologies, however, such 

as relocating an intake or expanding an 

existing intake to lower the intake 

velocity, several weeks of downtime 

may be incurred because these are more 

invasive tasks. See TDD Exhibit 8–4 for 

EPA’s net construction downtime for 

the various IM compliance technologies. 

EPA reviewed historical retrofit data 

and site visits conducted since 2004 and 

has largely retained its assumptions for 

downtime from the Phase II and Phase 

III rules for facilities retrofitting to 

closed-cycle cooling. On average, EPA 

assumes the net installation downtime 

for retrofitting to closed-cycle cooling 

for non-nuclear electric generators is 4 

weeks. This total downtime allows for 

the tie-in of the closed-cycle system to 

the existing cooling water system. The 

refueling outage downtime, the safetysensitive nature of nuclear facility 

retrofits, and other data in EPA’s record 

supports 28 weeks as the net 

construction downtime for nuclear 

facilities. EPA converted downtime for 

manufacturing facilities that use cooling 

water for power and steam generation 

into the incremental cost for purchasing 

electricity during the outage. For 

individual process units other than 

power generation units at a 

manufacturing facility, on average the 

downtime was assumed to be zero. In 

EPA’s extensive experience with 

manufacturers, EPA’s record reflects 

that manufacturers are generally able to 

shut down individual intakes for 

specific process lines, use inventory 

approaches such as temporary increases 

of intermediate products, and develop 

other workarounds without interrupting 

the production of the entire facility. For 

further discussion of how EPA 

accounted for installation downtime in 

estimating national costs, see below. 

6. How is the energy penalty assessed? 

The term energy penalty in relation to 

a conversion to closed-cycle cooling has 

a number of different interpretations. 

The first is the extra power required to 

operate fans at a mechanical draft 

cooling tower and additional pumping 

requirements (sometimes referred to as 

auxiliary energy requirements or 

parasitic loads). The second is the lost 

power output because of the reduction 

in steam turbine efficiency from an 

increase in cooling water temperature 

relative to once-through cooling (often 

referred to as the turbine efficiency 

penalty or turbine backpressure 

penalty). EPA is clarifying that it views 

the former as incremental O&M costs, 

and the latter is EPA’s interpretation of 

the energy penalty. Energy penalty costs 

apply only to facilities retrofitting to 

closed-cycle cooling without replacing 

the condenser. Facilities installing a 

new impingement mortality technology 

will not generally face an energy penalty 

and will generally see little or no 

measureable change in auxiliary power 

consumption. EPA’s national-level costs 

include both these costs. The auxiliary 

power consumption was included as a 

separate component in the operation 

and maintenance costs and was assessed 

for all facilities. The turbine efficiency 

penalty was typically expressed as a 

percentage of power output. EPA 

estimates the turbine efficiency energy 

penalty for nuclear and non-nuclear 

power generation would be 2.5 and 1.5 

percent, respectively (see Chapter 8 of 

the TDD). For most manufacturers 

generating their own electricity, EPA 

assumed the same energy penalty for 

turbine efficiency loss as estimated for 

non-nuclear power facilities (i.e., 1.5 

percent). 

7. How did EPA assess facility-level 

costs for the national and regional 

economic impacts analysis? 

As part of the economic impact 

analysis, EPA assessed the impact of the 

final rule’s requirements on electric 

generators in the context of national and 

regional electricity markets. For this 

analysis, EPA used the Integrated 

Planning Model (IPM®), a 

comprehensive electricity market 

optimization model that assesses such 

impacts within the context of regional 

and national electricity markets. EPA 

has used IPM to analyze the impacts of 

various regulatory actions affecting the 

electric power sector over the last 

decade, particularly Clean Air Act 

regulations. 

Because IPM requires facility-specific 

costs for each analyzed facility, yet 

compliance costs were developed as 

weighted sums of model facility costs, 

EPA developed a method to distribute 

the aggregate costs to facilities that were 

not themselves model facilities. For 

these facilities, EPA converted facilitylevel costs developed for model 

facilities to a cost per mgd DIF and then 

averaged these values to derive cost 

equations using DIF as the independent 

variable. These cost equations provide 

average costs that can be applied to any 

facility by simply scaling to that 

facility’s DIF. For details on the IPM 

analysis, see the EA, Chapter 6. For 

details on facility cost development, see 

the TDD, Chapter 8. 

8. How did EPA assess costs for new 

units? 

Power generation and manufacturing 

units that are a new unit as defined at 

§ 125.92(u) must meet an entrainment 

reduction performance standard based 

on closed-cycle cooling or an equivalent 

reduction in entrainment for the cooling 

water component of the intake flow 

based on the DIF. This section briefly 

describes the data and methods used to 

estimate compliance costs for new units 

at existing electric generators and 

manufacturers. Chapter 8 of the TDD 

has a complete description of the 

methodology. 

a. New Units at Existing Electric 

Generators 

Compliance costs for new units at 

existing electric generators are estimated 

using a similar methodology to that 

used for estimating compliance costs for 

existing facilities. As described in 

Chapters 6 and 8 of the TDD, however, 

there are a number of differences in 

costs between a closed-cycle cooling 

retrofit at an existing facility compared 

to installing closed-cycle cooling at a 

new unit. In general, these differences 

result in lower costs for the installation 

of a closed-cycle recirculating system at 

a new unit (as compared to a retrofit 

scenario), due to improved efficiency of 

the turbine, the elimination of 

construction downtime, greater ease of 

integrating the closed-cycle system into 

the design and construction of the new 

unit, offsetting costs of certain system 

and construction components, and 

greater overall system optimization. 

EPA could not determine precisely 

which facilities will construct new 

units. Instead, EPA used an approach to 

estimate what portion of the new 

capacity (i.e., additional megawatts 

capacity to be constructed each year) 

would be subject to the final rule. Using 

national projections of increased 


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109Capacity increases include considerations for 

fuel type. See Chapter 8 of the TDD for details. 

110New capacity that is part of a new facility (as 

defined by the Phase I rule) is subject to separate 

requirements not addressed by today’s rule. Today’s 

requirements for new units require flow reduction 

commensurate with a closed-cycle recirculating 

cooling system. 

111 Data in the record show a marked increase in 

the use of closed-cycle cooling in facilities 

constructed in recent years and for those projected 

to be constructed in the near future. These data 

indicate that in the 1990s (prior to the Phase I rule), 

83 percent of new cooling systems installed were 

closed-cycle cooling systems and that the current 

trend was approximately 97 percent. Based on these 

data EPA assumed that 75 percent to 90 percent of 

new units will be designed with a closed-cycle 

recirculating cooling system regardless of the 

requirements of today’s rule. See DCN 12–6672. As 

a result, this category of new capacity was not 

assigned any compliance costs. 

112The record indicates that the total estimated 

capital cost for installing a closed-cycle 

recirculating system at a new unit to comply with 

today’s rule ranges from a negative value (as 

compared to the cost for installing a once-through 

system) to a positive value that could approach the 

cost of an existing facility retrofit. Said differently, 

if one assumes that the new unit would have 

constructed a new intake structure, EPA’s record 

shows that the capital costs for the new unit oncethrough system would be greater than if the new 

unit installs a closed-cycle recirculating system. 

(See DCN 10–6650.) Alternatively, if the new unit 

did not require modification of the existing cooling 

system infrastructure, then the capital costs for 

installing a closed-cycle recirculating system would 

be similar to an existing facility retrofit minus some 

tie-in costs since the condenser is being replaced. 

While EPA envisions that the actual costs will vary 

(i.e., some will be in the negative portion of the 

range and others will be in the positive), EPA is also 

unable to project what cooling water intake 

arrangements a new unit will use. Consequently, for 

all new units, EPA selected a capital cost equal to 

the midpoint between the tower only and the easy 

retrofit costs. As a result, EPA assumed that the 

capital costs for these units was $154 per gpm in 

2009 dollars which converts to $30,800 to $60,060 

per MW capacity depending on fuel type. For a 

more detailed discussion, see TDD Chapter 8. 

113EPA also notes that some manufacturers may 

also be able to increase reuse to a degree where the 

facility no longer meets the applicability thresholds 

of today’s rule. 

114 In other words, EPA assumed facilities 

indicating use of an impoundment in response to 

their technical survey have lawfully created such 

impoundments for the purposes of cooling water. 

generating capacity,109 EPA categorized 

the new capacity into three groups for 

316(b) compliance purposes: (1) Subject 

to the Phase I rule,110 (2) subject to 

today’s final rule, but projected to 

install a cooling system that complies 

with the rule regardless of the rule 

requirements,111 and (3) subject to 

today’s rule and projected to incur 

compliance costs. Exhibit IX–1 presents 

the estimated total new capacity and the 

estimated capacity for new stand-alone 

units. 

EXHIBIT IX–1 

Fuel type 

Total 

including 

Phase I 

Existing 

facility 

new units 

only 

New 

Capacity 

(MW) 

Stand-Alone 

(MW) 

Fossil Fuel ........ 295 80 

Combined Cycle 3,264 147 

Total ........... 3,559 227 

Costs for closed-cycle cooling are 

assigned to a portion of new stand-alone 

units, as shown the generating 

capacities in Exhibit IX–3. 

EXHIBIT IX–3 

Fuel type 

Annual 

only 

24-year total 

only 

Stand-Alone 

MW 

Stand-Alone 

MW 

Fossil Fuel ........ 8 191 

Combined Cycle 15 353 

Total ........... 23 544 

EPA then estimated the total costs for 

the third group (i.e., those units that 

would incur compliance costs) to 

comply with requirements for new 

units. EPA used certain assumptions 

regarding cooling system design to 

modify cost equations used for 

estimating closed-cycle retrofit costs at 

existing units and then applied the cost 

equations to the portion of projected 

new unit generating capacities that 

would be subject to the new unit 

provisions of today’s rule. These costs 

include capital 112 and O&M costs, as 

well as a reduction in net generating 

capacity due to auxiliary power 

consumption to operate the closed-cycle 

recirculating system. Due to the 

complex nature of constructing a new 

unit, there is no increase in the length 

of the construction project as a result of 

employing a closed-cycle system; 

similarly, there is no downtime, as the 

unit has not yet begun operating. See 

Chapter 8 of the TDD for more 

information. 

b. New Units at Existing Manufacturers 

On the basis of site visits to 

manufacturing facilities, EPA has 

observed that manufacturers are 

increasingly taking advantage of water 

conservation and reuse measures as a 

means of cost-cutting. EPA also notes 

that manufacturers are subject to a wide 

variety of ELGs and that, in the course 

of complying with requirements for 

those ELGs, a facility may also reduce 

its intake flow. (See Chapter 4 of the 

TDD.) A new unit provides the 

opportunity to employ such measures to 

the fullest extent in designing the new 

unit. The availability of water 

conservation and reuse opportunities, 

coupled with operational flexibility at 

facilities with multiple industrial 

processes, leads EPA to conclude that 

facilities installing new units at existing 

manufacturers will comply with the 

new unit provisions through achieving 

the 90 percent reduction required at 

§ 125.94(e)(2). Thus, EPA concluded 

that the new unit provisions would 

result in no additional compliance costs 

for achieving flow commensurate with 

closed-cycle cooling at new units.113

To the extent that manufacturers are 

not able to incorporate water reuse 

measures as a means of complying with 

the new unit provision, EPA’s estimate 

of new unit costs for manufacturers may 

be an underestimate. Manufacturers 

generally withdraw less water than 

electric generators (including 

manufacturers who generate their own 

electricity). Thus EPA has concluded 

that any underestimation would be 

insignificant. 

C. Social Costs 

EPA assessed the costs to society 

resulting from the final rule and other 

options considered in development of 

this rule. The findings presented in this 

section assume that facilities with 

impoundments will qualify as having 

closed-cycle recirculating systems in the 

baseline.114 As a result, EPA assigned 

no compliance technology costs to these 

facilities; however, these facilities 

remain subject to today’s rule and are 

assigned administrative costs. To the 

extent that some of these facilities do 

not qualify as having closed-cycle 

recirculating systems in the baseline, 

the costs reported in this section may be 

underestimates. The social cost of 

regulatory actions includes costs to 

electric generators and manufacturers to 

comply with the final rule, and costs to 

States and the Federal government to 

administer the rule. These costs are the 

opportunity costs to society of 

employing scarce resources to prevent 

the environmental damage that would 

occur without today’s rule. EPA 

estimated total social costs for existing 

and new units at existing facilities. 

In estimating social costs, EPA 

assumed that the final rule and other 

options considered in development of 

this rule will not affect the aggregate 

quantity of electricity or other affected 

goods and services sold to consumers. 

Thus, the social cost of regulatory 

requirements includes no loss in 

consumer and producer surplus from 

reduced sales of electricity or other 

goods and services produced by 

regulated facilities. The Agency 

calculated the social cost of the final 


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48388 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

115EPA conducted the cost and economic impact 

analyses on a calendar-year basis. For these 

analyses, EPA used calendar year 2013 as the 

promulgation year of today’s rule and 2014 as the 

first post-promulgation analysis year. This slight 

difference from the actual promulgation year of 

2014 results from the fact that EPA completed its 

cost and economic impact analyses for the final rule 

and alternative options before EPA decided to delay 

promulgation from 2013 to 2014. Because the rule 

is being promulgated during the first half of 2014, 

EPA concluded that it would be reasonable to 

continue using 2013 as the assumed promulgation 

year for the regulatory analysis. EPA expects the 

differences in the estimated costs and benefits of 

the rule due to this slight imprecision to be 

minimal. 

116For this analysis, EPA assumed that the last 

year of technology installation for all regulated 

facilities under any of the regulatory options—i.e., 

2030—is also the first year of steady-state 

compliance with regulatory requirements. 

117Because EPA was unable to identify those 

facilities for which entrainment control technology 

would be established as BTA standards on a sitespecific basis, the Agency did not analyze 

technology costs associated with these site-specific 

requirements. Consequently, the cost and economic 

analyses conducted in support of today’s rule 

assume that under the existing unit provision of the 

final rule and Proposal Option 4, Electric 

Generators and Manufacturers install IM technology 

only. These analyses also assume that under 

Proposal Option 2, Electric Generators with DIF 

exceeding 125 mgd install only cooling towers and 

all other Electric Generators install only IM 

technologies. Under Proposal Option 2, a small 

number of Manufacturers are assigned both IM and 

entrainment control technologies because of 

engineering issues associated with maintaining 

separation of contact and non-contact cooling water 

in some manufacturing operations. Although EPA 

did not estimate technology costs for facilities for 

which entrainment technology is established as 

BTA on a site-specific basis, EPA did include the 

costs for data collection and studies that facilities 

will need to perform in order to provide 

information to Directors to make these site-specific 

determinations. EPA included these costs in the 

administrative costs that are estimated for the final 

rule and other options considered. 

118Calculated by dividing direct compliance costs 

for each type of facility by the total of 544 electric 

generators subject to today’s rule on the basis of 

facility count-based weights (see EA Appendix H). 

119Calculated using the total of 521 

manufacturers subject to today’s rule on the basis 

of technical weights (see EA Appendix H). 

rule and the other options considered 

using two discount rates: 3 percent and 

7 percent. 

For existing facilities, EPA assumes 

that all facilities subject to the final rule 

will begin bearing costs associated with 

today’s rule beginning as soon as 2014, 

and likely complete investments 

associated with today’s rule by 2030, 

depending on the technologyinstallation schedules for the final rule 

and other regulatory options 

considered.115 EPA performed the social 

cost analysis over a 51-year period to 

reflect (1) the last year in which 

individual facilities are expected to 

achieve compliance (2030) under the 

final rule or any of the options 

considered, (2) the life of the longestlived compliance technology installed at 

any facility (30 years), and (3) a period 

of five years after the last year of 

compliance technology operation during 

which benefits continue to accrue. 

Under this framework, the last year for 

which EPA has calculated projected 

costs is 2059, with benefits continuing 

beyond 2059, though on a diminishing 

basis, through 2064.116

To estimate social costs for existing 

facilities, EPA developed a year-explicit 

schedule of compliance outlays over the 

46-year period from 2014 to 2059 

according to cost-incurrence 

assumptions (for details on costincurrence assumptions, see EA, 

Chapter 3). EPA then adjusted these 

costs for predicted real change (i.e., 

adjusted for inflation) to the year of 

their incurrence and discounted all 

costs to the beginning of 2013, the 

promulgation year used for the analysis. 

Because the analysis period extends 

beyond the useful life of some 

compliance equipment, the social cost 

analysis accounts for re-installation of 

impingement mortality compliance 

technologies after the end of their initial 

useful life periods. However, for the 

regulatory option that requires a specific 

entrainment control technology (e.g., 

wet cooling systems)—Proposal Option 

2—EPA does not expect regulated 

facilities to completely rebuild these 

systems (components such as piping 

and the concrete basin can be reused). 

EPA accounted for other technology 

replacement costs (such as pumps and 

fill material) as part of ongoing 

operations and maintenance expenses. 

For new units at existing electric 

generators, EPA calculated an average 

annual amount of new capacity to be 

constructed during the 46-year social 

cost analysis period, beginning in 2014. 

While EPA does not expect the annual 

construction of new units to be 

constant, predicting the year-to-year 

fluctuations would be resource 

intensive. On average, EPA assumes that 

its estimate of new unit costs is 

reasonable. EPA accounted for 

compliance costs for these units on an 

as-incurred basis, as done for existing 

facilities. Similar to compliance costs 

for facilities subject to the final rule, 

EPA analyzed costs incurred by State 

and Federal governments for 

administering the regulation on a yearexplicit basis over the 46-year social 

cost analysis period. 

Exhibit IX–4 presents social costs for 

existing units at existing facilities under 

the final rule and other options 

considered, calculated using 3 percent 

and 7 percent discount rates. At the 3 

percent discount rate, EPA estimates 

total annualized social costs of $272 

million for the existing unit provision of 

today’s rule, $252 million for Proposal 

Option 4, and $3,643 million for 

Proposal Option 2. At the 7 percent 

discount rate, these costs are $295 

million for today’s rule, $272 million for 

Proposal Option 4, and $3,583 million 

for Proposal Option 2.117 See the EA 

(Chapter 7) for an explanation of why 

the annualized costs at the 3 percent 

discount rate are lower than the 

annualized costs at the 7 percent 

discount rate for the final rule and 

Proposal Option 4, while the inverse is 

the case for Proposal Option 2 

(annualized costs at the 3 percent 

discount rate are higher than at the 7 

percent discount rate). The largest 

component of social cost is the cost of 

regulatory compliance incurred by 

regulated facilities (as opposed to 

administrative costs estimated for States 

and the Federal government). These 

costs include (1) one-time technology 

and other initial costs of complying 

with the rule, (2) one-time costs of 

installation downtime, (3) annual fixed 

and variable operating and maintenance 

costs, including auxiliary energy 

requirement, (4) value of energy penalty 

from operation of compliance 

technology, and (5) permitting costs 

(initial and follow-up start-up costs, 

initial permit costs, annually recurring 

costs associated with monitoring, and 

non-annually recurring permitting 

costs). 

Compliance costs estimated for 

electric generators account for the 

largest share of total compliance-related 

social cost and direct compliance cost 

under all three options. On a per-facility 

basis and at the 3 percent discount rate, 

the annualized pre-tax compliance costs 

for the electric generators segment 

under today’s final rule are $0.4 million, 

$0.4 million under Proposal Option 4, 

and $6 million under Proposal Option 

2.118 For manufacturers, the average cost 

per regulated facility at the 3 percent 

discount rate is $0.1 million under the 

final rule and Proposal Option 4, and 

$0.4 million under Proposal Option 

2.119 EPA’s analysis found a similar 

profile of per facility costs using the 7 

percent discount rate (see EA Chapter 7 

for additional detail). EPA’s estimate of 

Federal and State government costs for 

administering this rule is small in 

relation to the estimated direct cost of 

regulatory compliance. EPA estimates 

$1 million in annual administrative 

costs to States and Federal government 

for the final rule, using both the 3 and 

7 percent discount rates. These cost 

values are the same for Proposal Option 

4. EPA estimates $0.7 million in annual 

administrative costs to States and the 


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120As discussed in EA Chapter 2A: Industry 

Profiles, the majority of regulated electric generators 

operate in States with regulated electricity markets. 

EPA estimates that facilities located in these States 

may be able to recover compliance cost-based 

increases in their production costs through 

increased electricity prices. This depends on the 

business operation model of the facility owner(s), 

the ownership and operating structure of the facility 

itself, and the role of market mechanisms used to 

Continued 

Federal government for Proposal Option 

2, regardless of the discount rate used. 

EXHIBIT IX–4—TOTAL ANNUALIZED SOCIAL COSTS—EXISTING UNITS AT EXISTING FACILITIES

[in millions, 2011 dollars] a

Proposal 

option 4 Final rule Proposal option 2 

Using 3 percent discount rate 

Direct Compliance Costs: 

Electric Generators ........................................................................................................................... $202.9 $203.7 $3,413.3 

Manufacturers ................................................................................................................................... 47.8 67.7 229.2 

Total Direct Compliance Cost .................................................................................................................. 250.7 271.4 3,642.5 

State and Federal Administrative Costs .................................................................................................. 1.0 1.0 0.7 

Total Social Costs .................................................................................................................................... 251.8 272.4 3,643.2 

Using 7 percent discount rate 

Direct Compliance Cost: 

Electric Generators ........................................................................................................................... 219.2 220.0 3,339.3 

Manufacturers ................................................................................................................................... 51.9 74.2 243.0 

Total Direct Compliance Cost .................................................................................................................. 271.1 294.3 3,582.3 

State and Federal Administrative Costs .................................................................................................. 1.0 1.0 0.7 

Total Social Costs .................................................................................................................................... 272.1 295.3 3,583.0 

a Cost estimates exclude costs associated with baseline closure facilities. 

EPA also estimated the cost for 

installing closed-cycle recirculating 

systems at new units at existing electric 

generators, to reflect the costs of today’s 

rule. As shown in Exhibit IX–5, EPA 

estimated that the new unit provision of 

the final rule will result in an 

annualized cost of $2.5 million and $2.0 

million using 3 percent and 7 percent 

discount rates, respectively, including 

compliance costs to facilities and 

administrative costs to States and 

Federal government. 

The Agency estimated that at a 3 

percent discount rate, the total social 

cost of the final rule, including the 

existing and new unit provisions, will 

be $275 million. At a 7 percent discount 

rate, this cost is $297 million. 

EXHIBIT IX–5—ANNUALIZED TOTAL

SOCIAL COST OF THE FINAL RULE— 

EXISTING AND NEW UNITS AT EXISTING FACILITIES

[In millions, 2011 dollars] a b

3% 

Discount 

rate 

7% 

Discount 

rate 

New Units ................. $2.5 $2.0 

Existing Units ............ 272.4 295.3 

Existing and New 

Units ...................... 274.9 297.3 

a Cost estimates exclude costs associated 

with baseline closure facilities. bValues may not add due to rounding. 

D. Economic Impacts 

EPA used several analytic approaches 

to assess the economic impact of today’s 

rule and the other options considered, 

on electric generators and 

manufacturers. EPA conducted separate 

analyses for electric generators and 

manufacturers using different 

methodologies for each regulated 

facilities segment. The following 

sections summarize the methodologies 

EPA used to conduct the economic 

impact analyses and the findings of 

these analyses. EPA conducted the 

economic impact analyses discussed in 

this section for existing facilities; the 

Agency used compliance cost estimates 

from the EPA engineering analysis (see 

TDD Section X.B). 

1. Electric Generators 

For the electric generators segment, 

EPA assessed the economic impact of 

the existing unit provision of the final 

rule and other options it considered in 

three ways: (1) The financial burden 

associated with a particular regulatory 

option on facilities and entities that own 

them, (2) how potential changes in the 

price of electricity would affect 

electricity consumers, in general, and 

residential households, in particular, 

and (3) broader economic impacts on 

the electricity market, taking into 

account the interconnectedness of 

regional and national electricity 

markets. In preparing the first two sets 

of analyses, EPA developed and used 

sample weights to extrapolate impacts 

assessed initially at the level of sample 

of facilities, to the full population of 

facilities subject to the final rule. For 

information on how EPA developed and 

used sample weights, see the EA, 

Appendix H. 

In addition, EPA assessed the impact 

of the new unit provision of the final 

rule on decisions of existing facilities to 

construct stand-alone new units that 

would be subject to the new unit 

provision. EPA made this assessment in 

two ways: (1) On the basis of 

comparison, on a per MW basis, of 

compliance costs for new units to the 

overall cost of building and operating 

generating units and (2) as is the case 

with the existing unit provision, in the 

context of regional and national 

electricity markets, taking into account 

their interconnectedness. 

a. Cost-to-Revenue Analysis for 

Regulated Facilities and Their Parent 

Entities—Existing Unit Provision of the 

Final Rule 

EPA assessed the cost to regulated 

facilities and their parent entities on the 

basis of a cost-to-revenue analysis. For 

each analysis level (facility and parent 

entity), the Agency assumed, for 

analytic convenience and as a worstcase scenario, that none of the 

compliance costs would be passed on to 

consumers through electricity rate 

increases and, instead, would be 

absorbed by regulated facilities and 

their parent entities.120 EPA developed 


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sell electricity. In contrast, in States where electric 

power generation has been deregulated, cost 

recovery is less certain. While facilities operating 

within deregulated electricity markets may be able 

to recover some of their additional production costs 

through increased revenue, EPA cannot determine 

the extent of cost recovery ability for each facility. 

121EPA calculated this number as a weighted 

estimate using facility count-based weights. This 

number excludes facilities assumed either to have 

already retired their steam operations or expected 

to do so in the future. 

this analysis for 544 electric 

generators.121

i. Cost-to-Revenue Analysis for 

Regulated Facilities 

To provide insight into the potential 

significance of the compliance costs to 

regulated facilities, EPA calculated the 

ratio of annualized after-tax compliance 

costs to baseline annual facility-level 

revenues. In the cost-to-revenue 

comparisons, EPA used cost-to-revenue 

thresholds of 1 and 3 percent to 

categorize facilities according the 

potential economic impact of the rule. 

EPA concludes that facilities incurring 

costs below 1 percent of revenue will 

not face significant economic impacts, 

while facilities with costs of at least 1 

percent but less than 3 percent of 

revenue have a chance of facing 

economic impacts, and facilities 

incurring costs of at least 3 percent of 

revenue have a higher probability of 

significant economic impacts. For a 

more detailed discussion of the 

methodology EPA used for the facilitylevel cost-to-revenue analysis, see EA 

Chapter 4. 

Exhibit IX–6 presents a summary of 

the facility-level cost-to-revenue 

analysis results for the final rule and 

other options considered. EPA estimates 

that overall, under the final rule, 86 

percent of regulated facilities will incur 

compliance costs of less than 1 percent 

of revenue. Under Proposal Option 4, 87 

percent of regulated facilities would 

also incur costs of less than 1 percent of 

revenue. EPA estimates that Proposal 

Option 2 would result in 42 percent of 

facilities incurring costs exceeding 1 

percent of revenue, and 43 percent 

incurring costs exceeding 3 percent of 

revenue. 

EXHIBIT IX–6—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS FOR THE FINAL RULE AND OPTIONS CONSIDERED a

Option 

Number of facilities with cost-to-revenue ratio 

< 1% ≥ 1% and < 3% ≥ 3% 

# % # % # % 

Proposal Option 4 ............ 475 87.4 35 6.5 31 5.7 

Final Rule ......................... 470 86.5 40 7.4 31 5.7 

Proposal Option 2 ............ 228 41.9 79 14.5 235 43.2 

aFacility counts exclude baseline closures. 

bEIA reports no revenue for 1 facility (2 on a weighted basis). Therefore, EPA conducted this analysis for 339 facilities (542 on a weighted 

basis). For more information on facility sample weights see EA Appendix H. 

ii. Cost-to-Revenue Analysis for 

Regulated Parent Entities 

EPA also assessed the economic 

impact using the cost-to-revenue metric 

at the level of the parent entity. This 

analysis, which focuses on domestic 

parent entities with the largest 

ownership share in the facility, provides 

insight on the impact of compliance 

requirements on those entities that own 

more than one regulated facility. The 

analysis helps to answer the question of 

whether owning multiple facilities that 

are required to comply with today’s rule 

causes financial stress at the entity 

level. For each identified parent entity, 

EPA aggregated facility-level, 

annualized, after-tax compliance costs 

to the level of the parent entity and 

compared these entity-level costs to 

entity-level revenue. 

Similarly to the facility-level analysis, 

EPA used cost-to-revenue thresholds of 

1 and 3 percent to categorize facilities 

according the potential economic 

impact of the rule. EPA used two 

weighting approaches for this analysis: 

(1) Facility-level weights, but without 

entity-level weights and (2) entity-level 

weights, but without facility-level 

weights. These approaches, which are 

described in Appendix H of the EA, 

provide a range of estimates for the 

number of entities incurring compliance 

costs and the costs incurred by any 

entity that owns a regulated facility. 

(For a more detailed discussion of the 

methodology used for the entity-level 

cost-to-revenue analysis, see EA Chapter 

4). 

Exhibit IX–7 presents results for the 

entity-level analysis for the two 

weighting approaches. EPA estimates 

that between 123 and 159 entities own 

regulated facilities. Further, the Agency 

estimates that between 91 and 94 

percent of parent entities will incur 

annualized costs of less than 1 percent 

of revenues under the final rule. This 

finding also holds under the two other 

options EPA considered, with between 

91 and 94 percent of entities incurring 

costs of less than 1 percent of revenue 

under Proposal Option 4 and between 

70 and 78 percent under Proposal 

Option 2. 

EXHIBIT IX–7—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS b

Parent entity type 

Total 

number 

of entities 

Number of entities with cost-to-revenue ratio of 

< 1% ≥ 1% and < 3% ≥ 3% Unknown a

# % # % # % # % 

Using Facility-Level Weights: 

Proposal Option 4 ................. 123 112 91.1 3 2.4 0 0.0 8 6.5 

Final Rule .............................. 123 112 91.1 3 2.4 0 0.0 8 6.5 

Proposal Option 2 ................. 123 86 69.9 17 13.8 12 9.8 8 6.5 

Using Entity-Level Weights: 

Proposal Option 4 ................. 159 150 94.2 0 0.0 0 0.0 9 5.8 


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122As discussed earlier in Section X.D.b.1, even 

though individual regulated facilities may not be 

able to recover all of their compliance costs through 

increased revenues, the market-level effect may still 

be that consumers will see higher overall electricity 

prices because of changes in the cost structure of 

electricity supply and resulting changes in marketclearing prices in deregulated electricity markets. 

EXHIBIT IX–7—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS b—Continued 

Parent entity type 

Total 

number 

of entities 

Number of entities with cost-to-revenue ratio of 

< 1% ≥ 1% and < 3% ≥ 3% Unknown a

# % # % # % # % 

Final Rule .............................. 159 150 94.2 0 0.0 0 0.0 9 5.8 

Proposal Option 2 ................. 159 124 78.1 18 11.6 7 4.4 9 5.8 

aEPA was unable to determine revenues for 8 parent entities (9 weighted). 

bThis analysis assumes no cost pass-through to electricity consumers. 

b. Potential Electricity Price Effects— 

Existing Unit Provision of the Final Rule 

As an additional measure of economic 

impact, EPA conducted two assessments 

of the potential price effects on 

electricity of today’s rule: (1) The 

annual increase in electricity costs per 

MWh (megawatt hour) of total 

electricity sales and (2) the potential 

annual increase in household electricity 

costs. For analytic convenience and as 

a worst-case scenario, these assessments 

assume that all compliance costs will be 

passed through on a pre-tax basis to 

consumers as increased electricity 

prices. This full cost pass-through 

assumption represents a ‘‘worst-case’’ 

impact scenario from the perspective of 

electricity consumers. Facilities that are 

merchant providers can pass along costs 

only to the degree that they are 

competitive with other generators in the 

dispatch process.122 This assumption is 

the opposite of EPA’s assumption in the 

facility- and entity-level analyses 

discussed above—that facilities will 

pass none of the compliance costs 

through to consumers in electricity rate 

increases. If facilities are able to pass 

through all costs, the impacts in the 

previous subsection would not occur. 

The two conditions (no cost passthrough and full cost pass-through) 

could not occur at the same time. Thus, 

the results of the electricity price-effects 

analyses discussed in this section, and 

of the facility- and entity-level analyses 

discussed in Section IX.D.a.1, should 

not be combined. EPA conducted this 

analysis for 544 electric generators. 

i. Compliance Cost per Unit of 

Electricity Sales 

EPA assessed the potential increase in 

electricity rates by NERC region based 

on the annual cost of the regulatory 

options per unit of electricity sold. The 

Agency used two data inputs: (1) Total 

pre-tax compliance cost by NERC 

region, and (2) estimated total electricity 

sales in the year 2020, to gauge the full 

effects of the rule. To calculate the total 

estimated annual cost in each NERC 

region, the Agency summed sampleweighted, pre-tax annualized 

compliance costs over regulated 

facilities by region. EPA then calculated 

the approximate average price impact 

per unit of electricity consumption by 

dividing total compliance costs by the 

reported total MWh of sales in each 

NERC region. (Details of this analysis 

are presented in the EA, Chapter 4.) 

As reported in Exhibit IX–8, under the 

existing unit provision of the final rule, 

annualized compliance costs (in cents 

per kWh sales) range from nearly $0.00 

in the WECC region to $0.040 in the 

HICC region. EPA reached the same 

findings for Proposal Option 4. Under 

Proposal Option 2, costs range from 

$0.00 in the WECC region to $0.351 in 

the HICC region. On average, across the 

United States, the final rule and 

Proposal Option 4 result in a cost of 

$0.009 per kWh, while Proposal Option 

2 results in a higher cost of $0.155 per 

kWh. 

EXHIBIT IX–8—COMPLIANCE COST PER UNIT OF ELECTRICITY SALES IN 2020 BY REGULATORY OPTION AND NERC 

REGION

[2011 ¢/KWh sales] a b

NERC region c d Proposal 

option 4 Final rule Proposal option 2 

ASCC ....................................................................................................................................................... 0.000 0.000 0.000 

FRCC ....................................................................................................................................................... 0.014 0.014 0.171 

HICC ........................................................................................................................................................ 0.040 0.040 0.351 

MRO ......................................................................................................................................................... 0.010 0.010 0.174 

NPCC ....................................................................................................................................................... 0.008 0.008 0.126 

RFC .......................................................................................................................................................... 0.011 0.011 0.200 

SERC ....................................................................................................................................................... 0.013 0.013 0.219 

SPP .......................................................................................................................................................... 0.009 0.009 0.078 

TRE .......................................................................................................................................................... 0.008 0.008 0.206 

WECC ...................................................................................................................................................... 0.000 0.000 0.000 

United States ........................................................................................................................................... 0.009 0.009 0.155 

aThis analysis assumes full pass-through of all compliance costs to electricity consumers. 

b Cost values exclude baseline closures. 

cASCC—Alaska Systems Coordinating Council; FRCC—Florida Reliability Coordinating Council; HICC—Hawaii Coordinating Council; MRO—

Midwest Reliability Organization; NPCC—Northeast Power Coordinating Council; RFC—ReliabilityFirst Corporation; SERC—Southeastern Electric Reliability Council; SPP—Southwest Power Pool; TRE—Texas Reliability Entity, and WECC—Western Energy Coordinating Council. d No explicitly analyzed facilities are in the ASCC region. For more information on explicitly and implicitly analyzed regulated facilities, see EA 

Appendix H. 


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123 Developed by ICF, Inc. 

ii. Cost to Households 

As an additional measure of the 

potential electricity price effects 

associated with the final rule, EPA 

estimated the potential annual increase 

in electricity costs per household and by 

NERC region. EPA used total annualized 

pre-tax compliance cost per MWh of 

sales, as estimated for the electricity rate 

impact analysis discussed above and the 

quantity of residential electricity sales 

per household as reported in the 2011 

EIA database. To calculate the potential 

annual cost impact per household, EPA 

multiplied the average cost per kWh by 

the average kWh per household 

estimated for each NERC region. 

(Chapter 4 of the EA presents details of 

this analysis.) 

As presented in Exhibit IX–9, under 

the existing unit provision of the final 

rule, the average annual cost per 

residential household varies across 

NERC regions, ranging from $0.01 in 

WECC to $2.82 in HICC. EPA reached 

the same findings for Proposal Option 4. 

Under Proposal Option 2, the average 

annual cost per residential household 

also varies across NERC regions, ranging 

from $0.01 in WECC to $31.72 in SERC. 

EPA estimated that on average, for a 

typical U.S. household, the final rule 

will result in an annual cost of $1.03 in 

higher electricity rates per household. 

EPA estimates that this cost would be 

$1.03 per household under Proposal 

Option 4 and $17.23 per household 

under Proposal Option 2. 

EXHIBIT IX–9—AVERAGE ANNUAL COST BURDEN PER RESIDENTIAL HOUSEHOLD IN 2020 FOR THE FINAL RULE AND

OPTIONS CONSIDERED, AND BY NERC REGION

[2011 dollars] a b

NERC region c d Proposal 

option 4 Final rule Proposal option 2 

ASCC ....................................................................................................................................................... $0.00 $0.00 $0.00 

FRCC ....................................................................................................................................................... 1.91 1.91 23.15 

HICC ........................................................................................................................................................ 2.82 2.82 24.61 

MRO ......................................................................................................................................................... 0.99 1.02 18.10 

NPCC ....................................................................................................................................................... 0.61 0.62 9.52 

RFC .......................................................................................................................................................... 1.10 1.10 20.64 

SERC ....................................................................................................................................................... 1.96 1.96 31.72 

SPP .......................................................................................................................................................... 1.30 1.30 10.71 

TRE .......................................................................................................................................................... 1.15 1.15 30.59 

WECC ...................................................................................................................................................... 0.01 0.01 0.01 

United States ........................................................................................................................................... 1.03 1.03 17.23 

aThe rate impact analysis assumes full pass-through of all compliance costs to electricity consumers. 

b Cost estimates exclude baseline closures. 

cASCC—Alaska Systems Coordinating Council; FRCC—Florida Reliability Coordinating Council; HICC—Hawaii Coordinating Council; MRO—

Midwest Reliability Organization; NPCC—Northeast Power Coordinating Council; RFC—ReliabilityFirst Corporation; SERC—Southeastern Electric Reliability Council; SPP—Southwest Power Pool; TRE—Texas Reliability Entity, and WECC—Western Energy Coordinating Council. d No explicitly analyzed facilities are in the ASCC region. For more information on explicitly and implicitly analyzed regulated facilities, see EA 

Appendix H. 

As noted above, this analysis assumes 

that facilities will pass through to 

consumers all compliance costs through 

increased electricity rates. However, 

facilities and owner entities might not 

be able to recover all these costs through 

rate increases, thereby reducing the 

impact of today’s rule on electricity 

consumers. At the same time, EPA 

recognizes that electric generators that 

operate as regulated public utilities will 

generally recover environmental 

compliance costs through rate increases 

to consumers. 

c. Barrier-To-Development Analysis— 

New Unit Provision of the Final Rule 

EPA assessed the impact of the new 

unit provision of the final rule on 

decisions of existing facilities to 

construct stand-alone new units that 

would be subject to the new unit 

provision. As discussed earlier in this 

preamble, under this provision, electric 

power generating units that meet the 

definition of a new unit will be required 

to achieve intake flow commensurate 

with closed-cycle cooling. The question 

of potential impact of this provision on 

the construction of new stand-alone 

units is important because new standalone units will generally operate with 

higher energy efficiency and lower 

environmental impact than older 

electric generating capacity, which the 

new units would tend to displace as a 

source of electric power generation. As 

such, EPA sought to ensure that the new 

unit provision would not impede 

construction of stand-alone new units. 

For this analysis, EPA compared the 

compliance costs for new units to the 

overall cost of building and operating 

generating units, on a per MW basis. 

The purpose of this analysis is to 

determine whether the required 

addition of a closed-cycle recirculating 

system (CCRS) as part of a new unit 

would substantially increase the cost for 

the new stand-alone unit, and adversely 

affect the decision to construct the new 

stand-alone unit. This analysis showed 

that given the low cost of CCRS in 

relation to the cost of new capacity, the 

CCRS requirement will not pose a 

barrier to development of new standalone units. 

EPA also assessed the costs associated 

with the new unit provision of the final 

rule as part of its electricity market 

analysis, as discussed in the following 

section (Section IX.D). This analysis 

tests the impact of the new unit 

requirements on electricity markets 

accounting for the expected number and 

timing of new unit installations, and 

provides additional insight on whether 

the costs of complying with the new 

unit provision of the final rule would 

affect future capacity additions. This 

analysis found no material effect of the 

final rule’s new unit provision on the 

number and type of new units that 

would be constructed. This finding also 

supports EPA’s conclusion that the new 

unit provision will not be a barrier to 

development of new capacity. 

d. Impacts in the Context of Electricity 

Markets—Existing and New Unit 

Provisions of the Final Rule 

In the analyses for the previous 316(b) 

regulations, including the proposed 

rule, EPA used the Integrated Planning 

Model (IPM®),123 a comprehensive 

electricity market optimization model, 

to assess the economic impact of 

regulatory options within the context of 


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124 In some instances, facility information has 

been updated to reflect known material changes in 

a facility’s generating capacity since 2006. 

125Facilities excluded from the IPM analysis 

include three facilities in Hawaii and one facility 

in Alaska (i.e., areas that are outside the geographic 

scope of the model), four on-site facilities that are 

not connected to the integrated electric 

transmission grid, four facilities excluded from the 

IPM baseline as the result of custom adjustments 

made by ICF, and 12 facilities that did not respond 

to the 316(b) survey. 

126EPA’s Cross-State Air Pollution Rule (CSAPR) 

was promulgated to replace EPA’s Clean Air 

Interstate Rule (CAIR), which had been remanded 

to EPA in 2008. However, on December 30, 2011, 

the U.S. Court of Appeals for the D.C. Circuit stayed 

CSAPR pending judicial review and left CAIR in 

place. On August 21, 2012 the Court issued an 

opinion vacating CSAPR and again leaving CAIR in 

place pending development of a valid replacement. 

On March 29, 2013, the United States filed a 

petition asking the Supreme Court to review the 

D.C. Circuit’s opinion. Nevertheless, as explained 

above, CAIR remains in effect at this time. In light 

of the continuing uncertainty on CAIR and CSAPR, 

EPA determined it would not be appropriate or 

possible at this time to adjust emission projections 

on the basis of speculative alternative emission 

reduction requirements in 2020. EPA expects that 

the decision vacating CSAPR and leaving CAIR in 

place has minimal effect on the results of the 

analysis conducted in support of the final rule. 

127 Due to the highly data- and calculationintensive computational procedures required for the 

IPM dynamic optimization algorithm, IPM is run 

only for a limited number of years. Run years are 

selected based on analytical requirements and the 

necessity to maintain a balanced choice of run years 

throughout the modeled time horizon. Each run 

year represents adjacent years in addition to the run 

year itself. 

128As discussed earlier in this document, for the 

cost and economic impact analyses, EPA assumed 

that electric generators will install IM technologies 

during the 5-year window of 2018 through 2022. 

Because this technology-installation window falls 

within the time period captured by the 2020 run 

year (i.e., 2017 through 2024), EPA judges that 2020 

is an appropriate year to capture the effects of 

technology-installation downtime. 

regional and national electricity 

markets. To assess facility and marketlevel effects of the final rule, EPA used 

an updated version of this same analytic 

system, the Integrated Planning Model 

Version 4.10 MATS (IPM V4.10_MATS) 

platform. 

Use of a comprehensive, market 

analysis system is important in 

assessing the potential impact of the 

final rule because of the 

interdependence of electricity 

generating units in supplying power to 

the electric transmission grid. Increases 

in electricity production costs and 

potential reductions in electricity 

output at regulated facilities—due to the 

temporary shutdown of existing electric 

generating units during technology 

installation—can have a range of 

broader market impacts that extend 

beyond the effect on regulated facilities 

and their direct customers. In addition, 

the impact of compliance requirements 

on regulated facilities may be seen 

differently when the analysis considers 

the impact on those facilities in the 

context of the broader electricity market 

instead of looking at the impact on a 

stand-alone, single-facility basis. 

The IPM V4.10_MATS platform 

provides outputs for the NERC regions 

that lie within the continental United 

States. This IPM platform does not 

analyze electric power operations in 

Alaska and Hawaii because these 

operations are not connected to the 

continental U.S. power grid. The IPM 

V4.10_MATS platform is based on an 

inventory of U.S. utility- and nonutility-owned boilers and generators 

that provide power to the integrated 

electric transmission grid, as recorded 

in the EIA 860 (2006) and EIA 767 

(2005) databases.124 IPM does not 

include electric power facilities that do 

not provide power to the U.S. power 

grid (e.g., some generating units at 

industrial facilities). The IPM V4.10_

MATS universe consists of 14,920 

generating units at 4,910 existing 

electric power facilities, including 520 

of the 544 regulated electric power 

facilities subject to the final rule.125

This IPM V4.10_MATS platform 

embeds a baseline energy demand 

forecast from the Department of 

Energy’s Annual Energy Outlook 2010 

(AEO2010), with adjustments by EPA to 

account for the effect of certain 

voluntary energy efficiency programs. 

This platform also incorporates in its 

analytic baseline the expected 

compliance response to existing 

regulatory requirements for the 

following promulgated air regulations 

affecting the power sector: the final 

Mercury and Air Toxics Standards 

(MATS) rule; the final Cross-State Air 

Pollution Rule (CSAPR); 126 regulatory 

SO2 emission rates arising from State 

Implementation Plans (SIP); Title IV of 

the Clean Air Act Amendments; NOX

SIP Call trading program; Clean Air Act 

Reasonable Available Control 

Technology requirements and Title IV 

unit specific rate limits for NOX; the 

Regional Greenhouse Gas Initiative; 

Renewable Portfolio Standards; New 

Source Review Settlements; and several 

state-level regulations affecting 

emissions of SO2, NOX, and mercury 

that are already in place or expected to 

come into force by 2017. 

In contrast to the screening-level 

analyses described earlier, which are 

static analyses and do not account for 

interdependence of electric generating 

units in supplying power to the electric 

transmission grid, IPM accounts for 

potential changes in the generation 

profile of individual electric power 

facilities and consequent changes in 

market-level generation costs, as a result 

of the final rule. The model is dynamic 

in that the analysis covers a multipledecade period with information and 

decisions in any specific period 

depending on the analysis information 

and optimization results for the entire 

analysis period. The model is also 

forward-looking in that it uses forecasts 

of future conditions to make decisions 

for the present. Finally, in contrast to 

the screening-level analyses in which 

EPA assumed either no pass through of 

compliance costs (facility and entity 

cost-to-revenue analyses discussed in 

Section IX.D.a.1) or full cost passthrough (analysis of potential electricity 

price effects, Section IX.D.b.1), IPM 

assesses price and revenue effects from 

increased costs in competitive 

wholesale electricity markets, where 

some recovery of compliance costs 

through increased electricity prices is 

possible but not guaranteed. 

In performing analyses based on the 

IPM V4.10_MATS platform, EPA used 

as its baseline a projection of electricity 

markets and facility operations without 

the final rule requirements (baseline 

case). As discussed above, this baseline 

accounts for compliance with the 

recently promulgated Federal air rules. 

EPA then overlaid this baseline with the 

estimated compliance costs and other 

operating effects—downtime for 

installation of IM technologies at 

existing units and auxiliary energy 

requirement to operate cooling towers at 

new units—for regulated facilities under 

the policy case. 

As discussed in Appendix P of the 

EPA report, the IPM V4.10_MATS 

platform models the electric power 

market over the 43-year period from 

2012 to 2054. Within this total analysis 

period, EPA looked at shorter IPM 

analysis periods (run-year windows) 127

to assess the effect of the final rule on 

national and regional electricity 

markets. Specifically, to assess the 

impact of the final rule during the 

period when regulated facilities 

temporarily suspend their operation to 

install compliance technologies—the 

short-term effects analysis or the 

downtime effects analysis—EPA used 

results reported for the 2020 IPM run 

year, which represent an 8-year window 

of 2017 through 2024.128 The incurrence 

of downtime may lead to higher 

electricity generation costs overall, as 

generating units at regulated facilities 

are taken out of service to complete 

technology installation and other 

generating units, presumably with 

higher production costs, are dispatched 

to meet electricity demand. Because of 

the potential resulting increase in 

electricity generation costs, it is 


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129EPA expects this steady-state period to begin 

in the last year of the technology-installation 

window, i.e., 2022, and continue into the future. 

The 2022 analysis year is captured in the IPM 2020 

run year, as opposed to the 2030 run year. However, 

because all analysis years represented by the 2030 

run year (i.e., 2025–2034) fall outside the 

technology-installation window of 2018 through 

2022, EPA judges that 2030 is an appropriate year 

to capture longer term, steady-state effects of the 

final rule. 

130 In seeking to minimize the cost of meeting 

electricity demand, IPM will tend to shift 

production away from regulated facilities that incur 

compliance costs, and will shift production to 

either non-regulated facilities, which incur no 

compliance costs, or to regulated facilities that 

incur relatively lower compliance costs. Any of 

these changes—whether a simple increase in 

production costs for previously dispatched units or 

changes in the profile of generating unit dispatch— 

mean increased total costs for electricity generation, 

compared to the pre-regulation baseline. 

131 In contrast, the social cost estimated in 

Section IX.C reflects the discounted value of 

compliance costs over the entire 51-year analysis 

period, as of 2013. Additionally, screening-level 

analyses presented in earlier sections are static 

analyses and do not account for interdependence of 

electric generating units in supplying power to the 

electric transmission grid. In contrast, IPM accounts 

for potential changes in the generation profile of 

steam electric and other units and consequent 

changes in market-level generation costs, as the 

electric power market responds to higher generation 

costs for steam electric units due to the final rule. 

132Avoided closures may occur among facilities 

that incur no compliance costs under the final rule 

or for which compliance costs are low relative to 

the costs estimated for other regulated facilities. 

133As described earlier in this preamble, under 

the new unit provision of the final rule, new units 

as defined at 125.92 include, stand-alone fossil fuel 

and combined cycle units. As described in Chapter 

6 of the EA, the IPM analysis accounts only for 

compliance costs associated with new units. 

Further, EPA assigned these costs only to coal 

steam and combined cycle capacity. 

important to examine market-level 

effects during the period in which 

downtime would occur. 

To assess the longer term effect of the 

final rule on electricity markets during 

the period after compliance technology 

is installed at all regulated facilities— 

the steady-state post-compliance 

period—EPA analyzed results reported 

for the IPM 2030 run year, which 

represents a 10-year window of 2025 

through 2034.129 Effects that may occur 

during this steady-state period include 

increased electricity production costs at 

regulated facilities and potential 

permanent losses in generating capacity 

from early retirement (closure) of 

generating units. Both effects may lead 

to higher overall electricity generation 

costs through not only the increased 

production cost in regulated facilities, 

but also through dispatch of higher 

production cost units to offset capacity 

losses, reflecting the general upward 

shift in production costs.130

EPA measured the impacts of the final 

rule as the difference between key 

economic and operational impact 

metrics between the baseline case and 

the policy case. All analysis results 

presented below are representative of 

modeled market conditions in the years 

2017–2034. While costs are in 2011 

dollars, they are reflective of costs in the 

modeled years and are not discounted to 

the start of EPA’s analysis period of 

2013.131 In contrast to the earlier 

statement that the cost and economic 

impact analysis findings presented in 

this preamble may be underestimates 

because EPA assumed that no facilities 

with impoundments will install 

compliance technology, the marketbased analysis presented in this section 

reflects the opposite assumption. 

Namely, despite the final rule’s 

treatment of impoundments, for 

purposes of this analysis, none of the 

facilities with impoundments are 

treated as having closed-cycle cooling in 

the baseline. As a result, to the extent 

that some of these facilities may qualify 

as having closed-cycle recirculating 

systems in the baseline, and thus would 

not need to install compliance 

technology, the costs and economic 

impacts reported in this section may be 

overestimated. 

i. Analysis Results for the Year 2030— 

To Reflect Steady State, PostCompliance Operations 

For the steady-state analysis (2030), 

EPA considered impact metrics of 

interest at three levels of aggregation: (1) 

Impact on national and regional 

electricity markets, (2) impact on the 

group of 520 regulated facilities 

modeled in IPM, and (3) impact on 

individual 520 regulated facilities. 

Impact on National and Regional 

Electricity Markets 

For the assessment of market-level 

impacts, EPA considered six output 

metrics: (1) Incremental capacity 

retirements (closures); (2) changes in 

capacity retirements as a percent of total 

baseline capacity (3) changes in new 

capacity additions; (4) changes in 

variable production costs per MWh, 

calculated as the sum of total fuel and 

variable O&M costs divided by net 

generation; (5) changes in total 

generation costs (fuel, variable O&M, 

fixed O&M, and capital); and (6) 

changes in wholesale electricity prices. 

As shown in Exhibit IX–10, the final 

rule has small effects on the electricity 

market, on both the national and 

regional sub-market basis, in 2030. At 

the national level, the analysis shows a 

total net increase in retired capacity of 

approximately 1 GW, or less than 0.1 

percent of the total baseline capacity in 

2030 (capacity retirements are discussed 

in greater detail in the next section, 

Impact on Regulated Facilities as a 

Group). This 1 GW of net capacity loss 

reflects a combination of closures and 

avoided closures of generating units. 

‘‘Avoided closure’’ means a generating 

unit that was projected to close in the 

baseline case but remains open in the 

policy case because of changes in the 

relative operating economics of 

generating capacity. In some instances 

an avoided closure can result in an 

avoided full facility closure. Overall, the 

final rule will lead to early retirement of 

approximately 4 GW of generating 

capacity and approximately 3 GW of 

avoided closure of capacity otherwise 

projected to retire by 2030, resulting in 

a net closure of approximately 1 GW of 

generating capacity. With only one 

exception, these retirements involve 

older, less efficient generating units 

with very low capacity utilization rates. 

Five of the eight analyzed NERC 

regions record modest increases in 

retired capacity, with the largest 

increase, 0.8 percent of baseline retired 

capacity, projected to occur in TRE. One 

NERC region—SPP—avoids capacity 

closures, where 1.5 percent of capacity 

otherwise projected to retire in the 

baseline, becomes a more economically 

viable source of electricity in the policy 

case due to changes in the relative 

economics of electricity production 

across the full market, and thus avoids 

closure.132 Consequently, the final rule 

is not expected to have a material 

ongoing effect on capacity availability 

and supply reliability at either the 

national or the NERC region level. 

The 1 GW of retired capacity is 

replaced by new, more efficient, and 

less polluting capacity. Because the new 

capacity is more efficient and less costly 

to run than the retired capacity, it will 

run at a higher capacity utilization rate 

than the retired capacity; less new 

capacity is required to meet electricity 

demand than the retired capacity that it 

replaces. As shown in Exhibit IX–11, 

under the final rule, new capacity 

additions increase by 1 GW at the 

national level; this increase represents 

0.5 percent of new baseline capacity and 

0.1 percent of total baseline capacity 

(see Exhibit IX–10). This increase in 

new capacity is mostly comprised of 

combined cycle capacity followed by 

other non-steam capacity, with coal 

steam capacity additions remaining zero 

in both the baseline case and the policy 

case. Consequently, this analysis shows 

that the final rule is not likely to impede 

construction of new combined cycle and 

coal steam generating units.133

As reported in Exhibit IX–10, overall, 

the final rule has only a slight impact on 

electricity prices. For three out of eight 

NERC regions, electricity prices decline 


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slightly—by no more than $0.05 per 

MWh (0.1 percent) in TRE. Electricity 

prices increase in the remaining five 

NERC regions, with the largest increase, 

$0.29 per MWh (0.4 percent), occurring 

in NPCC. These very small estimated 

changes in electricity prices are 

essentially within the analytic ‘‘noise’’ 

of the electricity market modeling 

system. 

At the national level, total generation 

costs increase by 0.3 percent of the 

baseline value—again, a very modest 

amount. Across regions, no NERC region 

records an increase in total costs 

exceeding 0.5 percent. The change in 

variable production costs ($/MWh)—a 

specific measure of the effect of the final 

rule on short-run electricity generation 

costs—is nearly zero with no NERC 

region recording a consequential 

change. 

EXHIBIT IX–10—IMPACT OF THE FINAL RULE ON NATIONAL AND REGIONAL MARKETS, AT THE YEAR 2030 

NERC 

region a

Total 

baseline 

capacity 

(GW) 

Net changes in early 

retirements 

Changes in 

variable costs 

Changes in 

total costs 

Changes in 

electricity price 

GW 

% of 

total 

baseline 

capacity 

$2011/MWh % of 

baseline Mill 2011$ % of baseline $2011/MWh % of baseline 

FRCC ....... 68 0 0.30 ¥$0.03 ¥0.10 $51 0.30 ¥0.01 0.00 

MRO ......... 76 0 0.00 0.01 0.10 62 0.40 0.21 0.30 

NPCC ....... 73 0 0.50 0.00 0.00 28 0.20 0.29 0.40 

RFC .......... 237 0 0.10 0.01 0.00 157 0.30 0.15 0.20 

SERC ....... 274 0 0.10 0.02 0.10 182 0.30 0.08 0.10 

SPP .......... 59 ¥1 ¥1.50 0.02 0.10 31 0.30 ¥0.01 0.00 

TRE .......... 98 1 0.80 ¥0.01 0.00 48 0.30 ¥0.05 ¥0.10 

WECC ...... 220 0 0.00 0.00 0.00 9 0.00 0.03 0.00 

Total .. 1,106 1 0.10 0.00 0.00 568 0.30 .................... N/A 

aFRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC 

(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), 

and WECC (Western Electricity Coordinating Council). 

EXHIBIT IX–11—IMPACT OF THE FINAL RULE ON NEW CAPACITY (GW), AT THE YEAR 2030 

Capacity type Baseline value 

Final rule 

Value Difference % Change 

Coal Steam ...................................................................................................... 0 0 0 NA 

Combined Cycle .............................................................................................. 75 76 1 0.8 

Combustion Turbine ........................................................................................ 6 6 0 0.0 

Hydro ............................................................................................................... 0 0 0 NA 

Nuclear ............................................................................................................. 0 0 0 NA 

O/G Steam ....................................................................................................... 0 0 0 NA 

Other Non-Steam a ........................................................................................... 25 25 0 0.1 

Other Steam b .................................................................................................. 9 9 0 0.0 

Total .......................................................................................................... 114 115 1 0.5 

aOther non-steam capacity includes wind, solar, pumped storage, and fuel cell. 

bOther steam capacity includes biomass, geothermal, municipal solid waste, fossil waste, landfill gas, tires, and non-fossil waste. 

Impact on Regulated Facilities as a 

Group 

EPA used the same IPM V4.10_MATS 

analysis results for 2030 as those used 

to assess market-level impacts described 

above; however, this analysis considers 

the effect of the final rule only on 

regulated facilities modeled in IPM (i.e., 

520 facilities). For this analysis, EPA 

considered four output metrics: 

(1) Incremental capacity closures; (2) 

changes in capacity closures as a 

percent of total baseline capacity; (3) 

changes in total generation; and (4) 

changes in variable production costs per 

MWh. 

As shown in Exhibit IX–12, for the 

group of regulated facilities, the impact 

of the final rule is overall slightly 

greater than that observed over all 

generating units in the IPM universe 

(i.e., market-level analysis discussed in 

the preceding section). This difference 

is due to the fact that in the electricity 

market as a whole, impacts on regulated 

facilities, which become less 

competitive compared to facilities that 

do not incur compliance costs, are offset 

by changes in capacity and energy 

production at the other electric power 

facilities. Nevertheless, the impact on 

the group of regulated facilities remains 

small. For instance, while there is 

essentially no change in total available 

capacity for the overall electricity 

market at the national level, for the 

group of regulated facilities, total 

available capacity falls by only 0.4 

percent (2 GW). At the regional level, 

five NERC regions incur loss in total 

capacity, with the largest percentage 

loss of 2.8 percent and the largest 

absolute loss of 0.9 GW occurring in the 

NPCC region. 

The 2 GW of capacity loss at regulated 

facilities reflects a combination of 

closures and avoided closures of 

generating units in the universe of 

regulated facilities. Some unit closures 

result in full facility closures (i.e., all 

generating units at a facility close), 

while others result in only partial 

facility closures (i.e., some, but not all, 

generating units at a facility close). For 

avoided closures, a generating unit 

projected to close in the baseline case 

but remains open under the policy case, 


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48396 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

in some instances resulting in an 

avoided full facility closure. Overall, 22 

generating units close (4 GW) and 12 

generating units avoid closure (2 GW) in 

the policy case, resulting in net closure 

of 10 generating units (approximately 2 

GW) in Electricity Market Analysis— 

Final Rule analysis. The 22 generating 

unit closures reflect retirement of nine 

units at six full-closure facilities (2 GW) 

and retirement of 13 units at six partialclosure facilities (2 GW). With only one 

exception, these retirements involve 

older, less efficient generating units 

with very low capacity utilization rates. 

At the national level, for the group of 

regulated facilities, total generation at 

regulated facilities declines by less than 

2 GWh or approximately 0.1 percent of 

baseline generation in these facilities. 

The MRO and SERC regions record 

slight increases in generation essentially 

amounting to zero percent of baseline 

generation at regulated facilities in these 

regions, with the remaining five NERC 

regions recording a reduction in 

electricity generation of no more than 

0.4 percent in FRCC. 

Over all regulated facilities, there is 

essentially no change in variable 

production costs ($/MWh) at the 

national level, while at the NERC region 

level, the change does not exceed 0.2 

percent for any of the regions. These 

findings of very small effects confirm 

EPA’s assessment that the assessed 

capacity closures among regulated 

facilities are of little economic 

consequence at both the national and 

regional levels. 

EXHIBIT IX–12—IMPACT OF ELECTRICITY MARKET ANALYSIS OPTIONS ON THE GROUP OF REGULATED FACILITIES, AT THE

YEAR 2030 

NERC region a

Baseline 

capacity 

(MW) 

Net change 

in early 

retirements/closures 

Change in 

generation 

Change in 

variable 

production cost 

Capacity 

(MW) 

% of 

baseline GWh % of baseline $2011/MWh % of baseline 

FRCC ....................................................... 30,794 203 0.7 ¥527 ¥0.4 ¥0.08 ¥0.2 

MRO ......................................................... 31,747 0 0.0 30 0.0 0.01 0.1 

NPCC ....................................................... 30,977 855 2.8 ¥25 0.0 0.00 0.0 

RFC .......................................................... 126,905 223 0.2 ¥619 ¥0.1 0.00 0.0 

SERC ....................................................... 142,840 476 0.3 3 0.0 0.02 0.1 

SPP .......................................................... 24,487 ¥530 ¥2.2 ¥411 ¥0.3 0.01 0.0 

TRE .......................................................... 38,378 808 2.1 ¥163 ¥0.1 ¥0.02 ¥0.1 

WECC ...................................................... 34,788 0 0.0 ¥8 0.0 0.00 0.0 

Total .................................................. 460,917 2,035 0.4 ¥1,721 ¥0.1 0.00 0.0 

aFRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC 

(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), 

and WECC (Western Electricity Coordinating Council). 

Impact on Individual Regulated 

Facilities 

Results for the group of 520 regulated 

facilities as a whole may mask shifts in 

economic performance among 

individual facilities incurring 

compliance costs under the final rule. 

To assess potential facility-level effects, 

EPA analyzed facility-specific changes 

between the baseline case and the final 

rule for the following metrics: (1) 

Capacity utilization (defined as annual 

generation (in MWh) divided by 

[capacity (MW) times 8,760 hours]) (2) 

electricity generation, and (3) variable 

production costs per MWh. 

Exhibit XI–13 presents the estimated 

number of regulated facilities with 

specific degrees of change in operations 

and financial performance. Under the 

final rule, this analysis shows that most 

facilities experience only slight effects— 

i.e., no change or less than a 1 percent 

reduction or 1 percent increase. Only 

six facilities are estimated to incur a 

reduction in capacity utilization and 13 

facilities a reduction in generation of at 

least 1 percent, with only five facilities 

estimated to incur an increase in 

variable production costs per MWh of at 

least 1 percent. These facilities 

represent approximately 1 percent of 

520 regulated facilities analyzed in IPM. 

EXHIBIT IX–13—IMPACT OF THE ELECTRICITY MARKET ANALYSIS—FINAL RULE ON INDIVIDUAL REGULATED FACILITIES AT

THE YEAR 2030 

[Number of regulated facilities with indicated effect] 

Economic measures 

Reduction 

No 

Change 

Increase 

N/Ab c

≥3% ≥1 and 

<3% <1% <1% ≥1 and <3% ≥3% 

Change in Capacity Utilization a ...................... 1 5 45 340 35 2 0 92 

Change in Generation ...................................... 9 4 37 345 29 2 2 92 

Change in Variable Production Costs/MWh .... 2 1 70 86 242 4 1 114 

aThe change in capacity utilization is the difference between the capacity utilization percentages in the baseline and policy cases. For all other 

measures, the change is expressed as the percentage change between the baseline and post-compliance values. bFacilities with status changes in either the baseline case or the policy case were excluded from these calculations. Specifically, there are 17 

full baseline facility closures, 59 partial baseline facility closures, four avoided partial facility closures, six partial policy facility closures, and six 

partial policy facility closures. cThe change in variable production cost per MWh could not be developed for 22 facilities with zero generation in either the baseline case or 

the policy case. 


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ii. Analysis Results for 2020—To 

Capture the Effect of TechnologyInstallation Downtime 

This section presents market-level 

results for the final rule for the 2020 

IPM run year, which represents 2017 

through 2024. As discussed above, this 

IPM run year captures the period when 

regulated facilities are expected to 

install compliance technologies under 

the final rule. Of particular importance 

as a potential impact, the additional 

downtime from installation of 

compliance technologies could manifest 

as increased electricity production costs 

resulting from the dispatch of higherproduction-cost generating units during 

the period when units are taken offline 

to install compliance technologies. 

Because these effects are of most 

concern in terms of potential impact on 

national and regional electricity 

markets, this section presents results 

only for the overall electricity market 

and does not present results for the 

subset of regulated facilities. 

As shown in Exhibit IX–14, the 

estimated effects of technologyinstallation downtime under the final 

rule are small. At the national level, 

total production costs increase by 0.4 

percent. At the regional level, these 

costs increase in all NERC regions, with 

MRO and SPP recording the largest 

increase of 0.6 percent. 

At the national level, variable 

production costs ($/MWh) increase by 

approximately 0.2 percent. While the 

effect on variable production costs 

varies across NERC regions, this effect is 

small overall, with the largest increase 

of less than 0.4 percent occurring in 

FRCC. While electricity prices increase 

in all NERC regions, the magnitude of 

that increase is generally small, ranging 

from $0.15 per MWh (0.3 percent) in 

MRO and WECC to $0.56 per MWh (0.9 

percent) in FRCC. 

EXHIBIT IX–14—SHORT-TERM EFFECT OF TECHNOLOGY INSTALLATION DOWNTIME ON NATIONAL ELECTRICITY MARKET

UNDER THE FINAL RULE—2020 

NERC Region a

Change in 

generation 

Change in 

variable 

production cost 

Change in 

total costs 

Change in 

electricity price 

2011$/MWh % of 

baseline 2011$/MWh % of 

baseline 

Million 

2011$ 

% of 

baseline 2011$/MWh % of baseline 

FRCC ............................... ¥108 0.0 0.13 0.4 51 0.5 0.56 0.9 

MRO ................................. 52 0.0 0.03 0.2 64 0.6 0.15 0.3 

NPCC ............................... ¥88 0.0 0.05 0.2 31 0.3 0.18 0.3 

RFC .................................. 447 0.0 0.03 0.1 164 0.4 0.19 0.4 

SERC ............................... ¥369 0.0 0.04 0.1 185 0.4 0.27 0.6 

SPP .................................. ¥53 0.0 0.08 0.3 56 0.6 0.18 0.4 

TRE .................................. 0 0.0 0.08 0.3 64 0.5 0.21 0.4 

WECC .............................. 33 0.0 0.04 0.2 39 0.1 0.15 0.3 

Total .......................... ¥88 0.0 0.05 0.2 652 0.4 N/A 

aFRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC 

(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), 

and WECC (Western Electricity Coordinating Council). 

EPA recognizes any capacity outages 

estimated to occur in conjunction with 

installation of compliance technologies 

at existing units will require outage 

coordination by the system operator or 

other planning authority. Where 

possible, these outages would be 

scheduled in concurrence with normal 

scheduled maintenance outages. Permit 

authorities are provided flexibility to 

tailor compliance timelines. This 

flexibility will ensure that any adverse 

impact on local electric reliability as a 

result of this rule will be avoided. 

Facilities would receive workable 

construction schedules from permit 

writers that will allow schedule outages 

for installation without adversely 

affecting electric supply reliability. 

2. Manufacturers 

This section presents EPA’s estimated 

economic impacts on manufacturers for 

the final rule and the other options EPA 

considered. These analyses assess the 

impact of regulatory requirements on 

the financial performance of regulated 

facilities (facility-level analysis) and the 

entities that own them (entity-level 

analysis). Similarly to the electric 

generators analysis, for the 

manufacturers facility-level and entitylevel analyses, the Agency assumed that 

facilities would pass none of their 

compliance costs forward to customers 

as price increases, i.e., all compliance 

costs will be absorbed by regulated 

facilities and their parent entities. For 

details on the cost-pass-through (CPT) 

analysis for information on this 

assumption, see the EA, Appendix K. 

EPA developed and used sample 

weights to extrapolate impacts assessed 

initially at the level of a sample of 

facilities to the full population of 

regulated facilities. For information on 

the development and use of sample 

weights, see EA Appendix H. 

a. Facility-Level Impact Analysis for 

Manufacturers 

EPA conducted two separate facilitylevel analyses for manufacturers: (1) A 

stand-alone cost-to-revenue screener 

analysis and (2) a facility closure and 

financial stress short of closure test. For 

the cost-to revenue screener test, shown 

in Exhibit IX–15, EPA divided the aftertax, annualized compliance cost by 

facility-level revenue. Under the final 

rule, EPA found that of 500 Primary 

Manufacturing Industry facilities, 496 

incur costs less than one percent of 

revenue, four incur costs between one 

and three percent, and none incur costs 

greater than 3 percent. For the nine 

Other Industries facilities, EPA 

estimated that eight facilities would 

incur costs less than one percent and 

one would incur costs between one and 

three percent of revenue. For Proposal 

Option 4, all Primary Manufacturing 

Industry facilities (500 facilities) and 

Other Industry facilities (nine facilities) 

incur costs less than one percent of 

revenue. Under Proposal Option 2, 491 

Primary Manufacturing Industry 

facilities incur costs less than one 

percent and nine facilities incur costs 

between one and three percent, while 

seven Other Industry facilities incur 

costs less than one percent, one facility 

incurs costs between one and three 

percent, and one facility incurs costs 

greater than three percent. 


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134This is a sample-weighted estimate of the 

number of manufacturers, calculated using 

economic weights. This number excludes 70 

facilities estimated to be at substantial risk of 

financial failure regardless of any additional 

financial burden that might result from the final 

rule or other options considered in development of 

this rule. For details see EA Appendix H. 

135This after-tax cash flow analysis conducted for 

manufacturers is similar in concept to the cash flow 

analysis conducted for electric generators through 

the IPM analysis. 

EXHIBIT IX–15—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS

Option 

Number of facilities with a 

cost-to-revenue ratio of a

<1% ≥1 and <3% ≥3% 

Primary manufacturing industries 

Proposal Option 4 .................................................................................................................................... 500 0 0 

Final Rule ................................................................................................................................................. 496 4 0 

Proposal Option 2 .................................................................................................................................... 491 9 0 

Other industries 

Proposal Option 4 .................................................................................................................................... 9 0 0 

Final Rule ................................................................................................................................................. 8 1 0 

Proposal Option 2 .................................................................................................................................... 7 1 1 

aEPA conducted this analysis for 579 facilities in the Primary Manufacturing Industries and 10 facilities in the Other Industries. Note, these facility counts and analysis exclude facilities identified as baseline closures in the severe impact analysis, which is described below. 

For the second analysis, EPA assessed 

how compliance costs would likely 

affect financial performance and 

condition of the 509 manufacturers 134

using two measures: (1) Facility closures 

(severe impacts) and associated losses in 

revenue and employment, and (2) 

financial stress short of closure 

(moderate impacts). 

For the analysis of severe impacts, 

EPA identified a facility as a regulatory 

closure if it would have operated under 

baseline conditions but would not be 

financially viable under the new 

regulatory requirements and the costs of 

the final rule leading to that finding 

exceeded a threshold of 0.1 percent of 

revenue. Specifically, the Agency 

examined the facility’s going-concern 

value before and after meeting 

regulatory requirements. EPA used a 

discounted cash flow framework in 

which after-tax cash flow is discounted 

at an estimated cost of capital to 

calculate the going concern value of the 

facility.135 In conjunction with the 

discounted cash flow analysis, EPA 

tested whether annualized costs 

exceeded 0.1 percent of revenue by 

dividing the after-tax, annualized total 

compliance cost by facility-level 

revenue. If this analysis found that the 

facility’s business value would become 

negative as a result of estimated 

compliance costs and the annualized 

cost of compliance exceeded 0.1 percent 

of revenue, EPA classified the facility as 

a regulatory closure. 

For facilities estimated not to close 

under the severe-impact test, EPA 

conducted a moderate-impact test to 

assess whether any would experience 

financial stress short of closure as the 

result of regulatory requirements (e.g., 

higher costs of capital borrowing). EPA 

used two financial performance 

measures to test for occurrence of 

financial stress: (1) Interest coverage 

ratio and (2) pre-tax return on assets. 

The Agency compared these measures 

before and after compliance with 

regulatory requirements against 

industry-specific performance 

thresholds for the two financial 

measures. If both measures for a facility 

exceeded the threshold in the baseline, 

and at least one measure fell below the 

threshold in the post-compliance case, 

EPA counted this as a moderate impact 

based on the rule. 

Exhibit IX–16 presents the results 

from the severe-impact and moderateimpact analyses. EPA estimated that no 

facilities would be at risk of closure as 

a result of the final rule and that 12 

facilities could experience financial 

stress short of closure. For Proposal 

Option 4, EPA also estimated no 

closures, while moderate impacts are 

significantly lower, estimated at two 

facilities. Under Proposal Option 2, EPA 

estimated that one facility would be at 

risk of closure, while the moderate 

impact finding is the same as for the 

final rule: 12 facilities. Again, this 

analysis is conducted assuming that all 

the costs are borne by the facility and 

cannot be passed along, an assumption 

that is highly unlikely to be true, as 

many of these facilities are in industries 

where there is some market power and 

barriers to entry. Thus, these tests 

present worst case scenario results. 

EXHIBIT IX–16—FACILITY IMPACTS AND COMPLIANCE COSTS FOR MANUFACTURERS d

Proposed 

option 4 Final rule Proposed option 2 c

Primary manufacturing industries a

Number of Facilities Operating in Baseline ................................................................................. 500 500 500 

Number of Closures (Severe Impacts) ........................................................................................ 0 0 1 

Percentage of Facilities Closing .................................................................................................. 0% 0% 0% 

Number of Facilities with Moderate Impacts ............................................................................... 2 12 12 

Percentage of Facilities with Moderate Impacts ......................................................................... 1% 3% 3%

Other industries b

Number of Facilities Operating in Baseline ................................................................................. 9 9 9 

Number of Closures (Severe Impacts) ........................................................................................ 0 0 0 


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136This is a sample-weighted estimate of the 

number of manufacturer facilities, calculated using 

technical weights. This number excludes 67 

facilities estimated to be at substantial risk of 

closure regardless of any additional financial 

burden that might result from the regulatory options 

under consideration. 

EXHIBIT IX–16—FACILITY IMPACTS AND COMPLIANCE COSTS FOR MANUFACTURERS d—Continued 

Proposed 

option 4 Final rule Proposed option 2 c

Percentage of Facilities Closing .................................................................................................. 0% 0% 0% 

Number of Facilities with Moderate Impacts ............................................................................... 0 0 0 

Percentage of Facilities with Moderate Impacts ......................................................................... 0% 0% 0%

aPrimary Manufacturing Industries include facilities in the Aluminum, Chemicals and Allied Products, Food and Kindred Products, Paper and 

Allied Products, Petroleum Refining, and Steel industries. bOther Industries include cooling water-dependent facilities in industries whose principal operations lie in businesses other than the electric 

power industry or the Primary Manufacturing Industries. c Under Proposal Option 2, the percentage of facilities closing is 0.3 percent. 

dThe analysis assumes no cost pass through. 

b. Entity-Level Impact Analysis 

EPA also examined the impact of 

regulatory requirements on entities that 

own regulated manufacturers facilities. 

An entity that owns multiple facilities 

could be adversely affected because of 

the cumulative burden of regulatory 

requirements the facilities face. For this 

analysis, a parent entity is the domestic 

parent entity with the largest ownership 

share in a regulated facility. For each 

identified parent entity, EPA aggregated 

facility-level, annualized, after-tax 

compliance costs to the level of the 

parent entity and compared these entitylevel costs to entity-level revenue. 

Similarly to electric generators, EPA 

used cost-to-revenue thresholds of 1 and 

3 percent as thresholds for categorizing 

levels of impacts. 

EPA considered two cases, based on 

two sets of entity-level. These cases, 

which are described in the EA, 

Appendix H, provide a range of 

estimates for the number of entities 

incurring compliance costs and the 

costs incurred by any entity owning a 

regulated facility. EPA conducted this 

analysis for 509 facilities in the primary 

manufacturing industries and 12 

facilities in other industries.136 For 

information on the methodology used 

for the entity-level cost-to-revenue 

analysis, see the EA, Chapter 5. 

Exhibit IX–17 presents the results 

from the entity-level analysis for these 

two cases. EPA estimated that between 

120 and 337 entities own 521 regulated 

facilities. Under the final rule, between 

90 and 95 percent of all entities are 

estimated to incur compliance costs of 

less than 1 percent of revenue. This is 

true also for Proposal Option 2. Under 

Proposal Option 4, more entities are 

expected to incur compliance costs of 

less than 1 percent of revenue (between 

94 and 96 percent of all entities). 

EXHIBIT IX–17—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS

Option 

Not analyzed due to 

lack of revenue 

information 

Number of entities with a cost-to-revenue ratio of 

# % 

< 1% ≥ 1% and < 3% ≥ 3% 

# % # % # % 

Case 1: Lower bound estimate of number of entities that own regulated facilities; upper bound estimate of total compliance costs that an entity 

may incur b

Proposal Option 4 ............ 5 4 113 94 2 2 0 0 

Final Rule ......................... 5 4 108 90 6 5 1 1 

Proposal Option 2 ............ 5 4 108 90 6 5 1 1 

Case 2: Upper bound estimate of number of entities that own regulated facilities; lower bound estimate of total compliance costs that an entity 

may incur c

Proposal Option 4 ............ 12 4 324 96 1 a 0 0 0 

Final Rule ......................... 12 4 319 95 6 2 0 0 

Proposal Option 2 ............ 12 4 319 95 6 2 0 0 

aThe percentage of entities with impacts greater than or equal to 1 percent and less than 3 percent is less than 0.5 percent. 

bThe total number of entities under Case 1 is 120. 

cThe total number of entities under Case 2 is 337. 

E. Employment Effects 

To study employment effects of this 

rule, EPA considered the potential 

effects of the final rule, focusing on the 

impacts of meeting compliance 

requirements in the directly regulated 

industry sectors: The Electric Power 

Industry, and selected Primary 

Manufacturing Industries, including 

Aluminum, Chemicals and Allied 

Products, Food and Kindred Products, 

Paper and Allied Products, Petroleum 

Refining, and Steel Manufacturing. 

When the economy is at full 

employment, an environmental 

regulation is unlikely to have much 

impact on net overall U.S. employment; 

instead, labor would primarily be 

shifted from one sector to another. 

These shifts in employment impose an 

opportunity cost on society, 

approximated by the wages of the 

employees, as regulation diverts 

workers from other activities in the 

economy. In this situation, any effects 

on net employment are likely to be 

transitory as workers change jobs (e.g., 

some workers may need to be retrained 

or require time to search for new jobs, 


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48400 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

137Schmalansee, Richard, and Robert N. Stavins. 

‘‘A Guide to Economic and Policy Analysis of EPA’s 

Transport Rule.’’ White paper commissioned by 

Exelon Corporation, March 2011 (Docket EPA–HQ– 

OAR–2011–0135–0054). 

138For a discussion of input-output models see 

Chapter 8 of the EPA Handbook on the Benefits, 

Costs, and Impacts of Land Cleanup and Reuse 

(2011). 

139See the EA Chapter 6: Electricity Market 

Analysis for assessment of the impacts of increased 

production costs on wholesale electricity prices and 

Chapter 4: Economic Impact Analysis—Electric 

Generators for analyses of the impacts on retail 

rates by customer group. 140However, even for electric generators 

operating under traditional rate regulation, the 

recovery of cost increases through increased rates 

is not certain, and will depend on additional factors 

such as the facility ownership structure and 

operating model, approval of public utility 

commissions, and the importance and role of 

market mechanisms in dispatching production of 

electricity across generating units. See Chapter 2A 

of the EA for additional discussion. 

while shortages in some sectors or 

regions could bid up wages to attract 

workers). 

On the other hand, if a regulation 

comes into effect during a period of high 

unemployment, a change in labor 

demand due to regulation may affect net 

overall U.S. employment because the 

labor market is not in equilibrium. 

Schmalansee and Stavins 137 point out 

that net positive employment effects are 

possible in the near term when the 

economy is at less than full employment 

due to the potential hiring of idle labor 

resources by the regulated sector to meet 

new requirements (e.g., to install new 

equipment) and new economic activity 

in sectors related to the regulated sector. 

In the longer run, the net effect on 

employment is more difficult to predict 

and will depend on the way in which 

the related industries respond to the 

regulatory requirements. As 

Schmalansee and Stavins note, the 

magnitude of the effect on employment 

could vary over time, region, and sector, 

and positive effects on employment in 

some regions or sectors could be offset 

by negative effects in other regions or 

sectors. For this reason, they urge 

caution in reporting partial employment 

effects because it can ‘‘paint an 

inaccurate picture of net employment 

impacts if not placed in the broader 

economic context.’’ 

In that spirit, unlike the analysis for 

the proposed rule, for the final rule EPA 

is not estimating quantitative 

employment impacts and instead, 

including only a qualitative discussion. 

The methods used at proposal were not 

sufficiently robust, largely because they 

relied on an input-output analysis that 

assumed fixed production relationships 

and used historical data to estimate the 

labor and other inputs required for 

compliance with the rule. Since 

publication of the proposed rule, EPA 

has concluded that input-output 

analysis is inappropriate for assessing 

employment impacts of national-level 

regulations. Input-output models are 

static, do not include prices, and 

assume the supply of all inputs is 

inexhaustible. They do not model a 

wide variety of adjustments that are 

expected to occur over time, such as 

changes in production processes, 

technology or trade patterns.138 After 

reviewing the public comments EPA 

received on the proposed rule, the 

Agency concludes that the commenters 

have not identified any specific 

improvements to the employment 

analysis of the proposed rule. Thus, 

today’s final rule EA includes a 

qualitative discussion highlighting the 

variety of potential adjustments in the 

labor market that may follow the 

rulemaking. 

To elaborate on the difficulty of 

deriving high quality estimates of how 

environmental regulations will impact 

net employment, the task requires 

consideration of labor demand in both 

the regulated and environmental 

protection sectors, as well as labor 

supply more generally. Economic theory 

predicts that the net effect of an 

environmental regulation on labor 

demand in regulated sectors could be 

positive or negative; the direction of the 

outcome depends on the magnitude of 

output and substitution effects, 

explained further in the EA. Peerreviewed econometric studies that use a 

structural approach, applicable to 

overall net effects in the regulated 

sectors, indicate that such effects, 

whether positive or negative, have been 

small and have not affected employment 

in the national economy in a significant 

way (Berman and Bui 2001, 

Morgenstern, Pizer and Shih 2002). 

Effects on labor demand in the 

environmental protection sector seem 

likely to be positive. 

In aggregate, the environmental 

protection sector is likely to experience 

a temporary increase in jobs created as 

more compliance technology systems 

are designed, manufactured, and 

installed attributable to the final rule. In 

addition, because of regional variation 

in consumption patterns and the 

presence of regulated facilities and 

supporting industries, short- and longrun employment effects likely will vary 

across the United States. It is possible 

that positive net employment effects 

will occur in the near term due to the 

hiring of idle labor resources by the 

regulated sectors to plan for and meet 

new technology control requirements 

rather than diverting workers from other 

productive employment. However, it is 

also possible that in the long run, as the 

economy returns to full employment, 

any changes in employment in the 

regulated sectors due to the final rule 

will be offset by employment changes in 

other sectors. These dynamics 

compound the uncertainty in estimating 

employment effects for a substantial 

number of years into the future. 

Even if regulated facilities are able to 

reduce the impact of regulatory 

requirements by changing their 

production processes in the post-rule 

environment, production costs may still 

be higher compared to those before the 

rule. As a result, regulated facilities may 

seek to increase their product prices in 

response to the higher production costs. 

For example, attempts by electric 

generators to recover increases in 

electricity generation costs, however 

small, are likely to result in higher 

electricity rates. The impact of this 

increase will vary by region, customer 

group (e.g., industrial, commercial, 

transportation, and residential), and by 

industry, depending on the electricityuse intensity.139 Further, the extent to 

which electric generators are able to 

pass their costs to consumers through 

higher electricity rates, will vary by 

region. Specifically, electric generators 

operating in regions where electricity 

prices remain regulated under the 

traditional cost-of-service rate regulation 

framework may be able to recover 

compliance cost-based increases in 

increased rates.140 However, cost 

recovery is less certain for electric 

generators operating in States where 

electric power generation has been 

deregulated, and will depend on the 

competitive circumstances of 

specifically affected facilities. 

Overall, the long-run changes in 

employment will likely depend on how 

the electric power industry, primary 

manufacturing industries, and other 

industries adjust in response to the new 

regulatory requirements, and on the 

upstream and downstream effects of 

those adjustments on the rest of the 

economy, as well as the overall state of 

the economy and labor markets. The 

long-run employment effects in the 

directly affected sectors will depend on 

a number of economic factors. These 

factors include changes in labor 

requirements to operate the 

infrastructure in general and 

compliance technology in particular at 

regulated facilities, the potential to 

change production processes to become 

less dependent on cooling water, 

availability of alternative technologies 

to meet compliance requirements, and 

changes in demand for the outputs of 

the directly affected sectors. Because 


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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48401 

141See the discussion in Section III on 

entrainment mortality data and assumptions. 

142Benefits associated with changes in 

greenhouse gas emissions were estimated for the 

nation as whole. 

143The California region includes facilities in 

State of California and four facilities in Hawaii. No 

coastal facilities are in Oregon, and one facility in 

Washington is classified as a baseline closure. 

these and many other interrelated 

factors include data and methodology 

limitations, it is difficult to fully assess 

the employment impacts of the final 

rule. However, based on the available 

evidence from several peer-reviewed 

econometric studies mentioned above 

that are applicable to net effects in the 

regulated sectors and that closed-cycle 

recirculating systems was rejected as 

national BTA for entrainment, EPA 

expects that employment impacts of 

today’s rule are not likely to be 

substantial. 

X. Benefits Analysis 

A. Introduction 

This section presents EPA’s estimates 

of the national environmental benefits 

of the final existing facilities rule and 

other options considered by EPA. This 

section describes how EPA calculated 

values for those benefits it could 

monetize. EPA did not rely on the 

results of its stated preference survey in 

estimating the benefits of today’s rule. It 

also presents descriptive information for 

those benefits for which EPA could not 

develop a monetary value. The benefits 

EPA assessed occur because of 

reductions in impingement and 

entrainment at cooling water intake 

structures affected by the rulemaking 

and changes in greenhouse gas 

emissions at regulated facilities. 

Impingement occurs where fish and 

other aquatic life are trapped on 

equipment as they enter the cooling 

water intake structure. Entrainment 

occurs where aquatic organisms, 

including eggs and larvae, are drawn 

into the cooling system, passed through 

the heat exchanger, and discharged back 

into the source waterbody. Impingement 

and entrainment kill or injure large 

numbers of aquatic organisms across all 

life stages. On the basis of entrainment 

data presented in facility studies, EPA 

assumes a mortality rate of 100 percent 

for entrained individuals. Mortality is 

then reduced on the basis of the 

efficiency of technology in place in 

reducing mortality rates, or by reducing 

levels of impingement and 

entrainment.141 By reducing 

impingement mortality and 

entrainment, the final existing facilities 

rule is likely to increase the number of 

fish, shellfish, and other aquatic 

organisms in affected water bodies 

resulting in healthier aquatic 

environments. In turn, this healthier 

aquatic environment directly improves 

welfare for individuals using the 

affected aquatic resources, generating 

use benefits such as increases in the 

value of recreational and commercial 

fisheries or increases in property values. 

Reductions in impingement mortality 

and entrainment also improve welfare 

for individuals without use of the 

affected resources, generating nonuse 

benefits, such as improved ecosystem 

function and resource bequest values. 

Section D provides an overview of the 

types and sources of benefits EPA 

anticipated, how EPA estimated these 

benefits, and the level of benefits that 

the final rule and other options EPA 

considered for the rule would achieve. 

EPA derived national benefit 

estimates for the final rule and other 

options considered from a series of 

regional studies representing a range of 

waterbody types and aquatic resources. 

Section B provides detail on the 

regional study design. Section C 

describes the impingement and 

entrainment effects and Section D 

presents the national benefits estimates. 

The methodologies used to estimate 

benefits are largely built on those used 

to estimate benefits for the remanded 

Phase II and Phase III and the proposed 

existing facilities rules. In addition to 

updating these analyses, EPA more fully 

investigated the effects of impingement 

mortality and entrainment on T&E 

species, incorporated benefits from 

greenhouse gas reductions, and 

improved its estimation of nonuse 

benefits. The Benefits Analysis 

document for the final existing facilities 

rule (referred to as the BA) provides 

detailed descriptions of the new 

methodologies EPA used to analyze the 

benefits of regulatory options, and 

provides references to (i) Part A of the 

2004 Regional Benefits Analysis for the 

Final Section 316(b) Phase II Rule, and 

(ii) Part A of the 2006 Regional Benefits 

Analysis Document for the Final Section 

316(b) Phase III Existing Facilities Rule 

for analyses using similar 

methodologies. 

The BA provides EPA’s benefit 

estimates for the final rule and 

considered options. EPA relied on 

information collected in the 2000 

section 316(b) industry surveys (the 

Industry Screener Questionnaire (SQ) 

and the Detailed Industry Questionnaire 

(DQ)) on cooling water systems and 

intake structures already in place to 

estimate the number of regulated 

facilities under regulatory options 

considered for the final existing 

facilities rule. For the analysis of 

regulated electric generators, EPA used 

information from 656 regulated electric 

generating facilities that responded to 

the section 316(b) industry surveys on 

cooling water systems and intake 

structures already in place. Because the 

DQs were sent to a sample of the 

manufacturing industries that use 

cooling water, the respondents were 

assigned sample weights designed to 

represent other facilities in other 

manufacturing industries that were not 

covered in the survey. All regulated 

facilities have a DIF of at least 2 mgd. 

EPA estimated regional benefits from 

the sample of facilities for which EPA 

has sufficient DQ information to 

estimate the environmental impacts of 

regulatory options. The environmental 

impacts from the set of explicitly 

analyzed facilities were then 

extrapolated to the universe of facilities 

in a region using statistical weights 

developed for this analysis. National 

benefits are estimated as the sum of the 

regional benefits. 

As described above at Section IX, the 

findings presented in this section 

assume that all facilities with 

impoundments will qualify as having 

closed-cycle recirculating systems in the 

baseline. For purposes of this analysis, 

EPA did not estimate IM&E reductions 

for these facilities under the final rule 

and other options considered; however, 

these facilities remain subject to today’s 

rule and are assigned administrative 

costs. To the extent that some of these 

facilities do not qualify as having 

closed-cycle cycle recirculating systems 

in the baseline, the monetized benefits 

reported in this section may be 

underestimated. EPA notes that the vast 

majority of these facilities occur in the 

Inland benefits region. Any 

underestimation in monetized benefits 

due to the treatment of facilities with 

impoundments is likely to be minor 

because commercial fishing benefits and 

nonuse benefits are not estimated for the 

Inland region. 

B. Regional Study Design 

EPA evaluated the benefits of today’s 

rule in seven study regions.142 Regions 

were defined on the basis of ecological 

similarities within regions (e.g., 

freshwater versus marine, similar 

communities of aquatic species), and on 

characteristics of commercial and 

recreational fishing activities. The seven 

study regions are: California,143 North 

Atlantic, Mid Atlantic, South Atlantic, 

Gulf of Mexico, Great Lakes, and Inland. 

The five coastal regions EPA identified 

(California, North Atlantic, MidAtlantic, South Atlantic, and Gulf of 

Mexico) correspond to those of the 


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48402 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

144Ricker, W.E. 1975. Computation and 

interpretation of biological statistics of fish 

populations. Fisheries Research Board of Canada, 

Bulletin 191; Hilborn, R. and C.J. Walters. 1992. 

Quantitative Fisheries Stock Assessment, Choice, 

Dynamics and Uncertainty. Chapman and Hall, 

London and New York; Quinn, T.J., II. and R.B. 

Deriso. 1999. Quantitative Fish Dynamics. Oxford 

University Press, Oxford and New York; Dixon, 

D.A. 1999. Catalog of Assessment Methods for 

Evaluating the Effects of Power Plant Operations on 

Aquatic Communities. Electric Power Research 

Institute (EPRI) Final Report. Report number TR– 

112013. 

National Oceanic and Atmospheric 

Administration’s National Marine 

Fisheries Service. The Great Lakes 

region includes Lake Ontario, Lake Erie, 

Lake Huron (including Lake St. Clair), 

Lake Michigan, Lake Superior, and the 

connecting channels (Saint Mary’s 

River, Saint Clair River, Detroit River, 

Niagara River, and Saint Lawrence River 

to the Canadian border) as defined in 33 

U.S.C. 1268, Sec. 118(a)(3)(b). The 

Inland region includes all remaining 

facilities that withdraw water from 

freshwater lakes, rivers, and reservoirs, 

including inland facilities in coastal 

states. Notably, of the 435 facilities that 

are on freshwater streams or rivers, 30 

percent (132) have average actual intake 

flow that is greater than 5 percent of the 

mean annual flow of the source waters, 

which is a significant amount of the 

source water flow. During periods of 

low river flow, or during periods of 

higher than average withdrawals of 

cooling water, the proportionate 

withdrawal of source waters could be 

much higher. Thus, the potential for 

adverse environmental impacts could 

increase dramatically during these 

periods. The number and total 

operational intake flow of all 316(b) 

facilities by study region are presented 

in Exhibit X–1. 

EXHIBIT X–1—NUMBER OF SURVEYED FACILITIES AND TOTAL MEAN OPERATIONAL FLOW, BY REGION

Region 

Number of 

surveyed 

facilities a

Flow (billions of gallons per day) 

Non-recirculating 

facilities b

Recirculating 

facilities Total flow 

California c ................................................................................ 21 10.65 0.00 10.65 

Great Lakes ............................................................................. 50 16.24 0.24 16.47 

Inland d ..................................................................................... 566 107.56 18.06 125.62 

Mid-Atlantic .............................................................................. 46 24.69 0.07 24.76 

Gulf of Mexico .......................................................................... 22 10.14 0.05 10.18 

North Atlantic ........................................................................... 21 5.93 0.00 5.93 

South Atlantic ........................................................................... 12 5.91 0.05 5.96 

All Regions ............................................................................... 738 181.12 18.46 199.58 

aThis table presents unweighted facility counts and flow for surveyed facilities (excluding baseline closures). The regional study design for the 

benefits analysis uses weights based on flow rather than facility counts. EPA did not develop weighted facility counts by benefits region. The ‘‘All 

Regions’’ total of 738 surveyed facilities includes 532 electric generating facilities and 206 manufacturing facilities, excluding baseline closures. 

The total (weighted) estimated universe of facilities, excluding baseline closures, is 1,065 facilities. b Recirculating facilities are facilities with closed-cycle cooling or impoundments that qualify as closed-cycle cooling. Non-recirculating facilities 

include facilities with CWIS classified as once-through. cThe California region includes four facilities in Hawaii. There are no coastal facilities in Oregon and the one coastal facility in Washington is 

classified as a baseline closure. dA facility in Texas has intakes in both the Inland and Gulf of Mexico regions. It is included in the Inland region in the table to prevent the double counting of facilities. 

EPA obtained estimates of regional 

impingement mortality and entrainment 

by extrapolating impingement mortality 

and entrainment observed at 98 

facilities with impingement and 

entrainment studies (model facilities) to 

all regulated facilities in the same 

region. EPA used regional estimates to 

more accurately estimate impacts by 

accounting for differences in 

ecosystems, aquatic species, and 

characteristics of commercial and 

recreational fishing activities across 

regions. Extrapolation was conducted 

on the basis of AIF reported for the 

period 1996–1998 by facilities in 

response to EPA’s Section 316(b) 

Detailed Questionnaire and Short 

Technical Questionnaire. Chapter 3 of 

the BA provides details of the 

extrapolation procedure. Because the 

goal of the analysis was to provide 

estimates of impingement mortality and 

entrainment at regional and national 

scales, EPA recognizes that these 

averages may not reflect the substantial 

variability at individual facilities. In 

spite of this variability, EPA determined 

that this extrapolation is a reasonable 

basis for developing estimates of 

regional- and national-level benefits for 

the purposes of the final existing 

facilities rule. 

C. Physical Impacts of Impingement 

Mortality and Entrainment 

EPA based the benefits analysis on 

facility-provided impingement mortality 

and entrainment monitoring data. 

Facility data consist of records of 

impinged and entrained organisms 

sampled at intake structures and 

include organisms of all ages and life 

stages. Sampling protocols were not 

standardized across facilities. Facility 

protocols differed in sampling methods 

and equipment used, the number of 

samples taken, sampling duration, and 

the unit of time and volume of intake 

flow used to express impingement 

mortality and entrainment. To 

standardize estimates across facilities, 

EPA converted sampling counts into 

annual impingement mortality and 

entrainment. Using standard fishery 

modeling techniques,144 EPA 

constructed models that combined 

facility-derived impingement mortality 

and entrainment counts with life history 

data from the scientific literature to 

derive annual estimates of the 

following: 

• Individuals—the number of 

individual organisms impinged and 

entrained by facility intakes. Under this 

metric, eggs, larvae, juvenile, and adult 

organisms are counted as equivalent 

individuals. 


emcdonald on DSK67QTVN1PROD with RULES2
Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48403 

145Ricker, W.E. 1975. Computation and 

interpretation of biological statistics of fish 

populations. Fisheries Research Board of Canada, 

Bulletin 191. 

146Rago, P.J. 1984. Production forgone: An 

alternative method for assessing the consequences 

of fish entrainment and impingement losses at 

power plants and other water intakes. Ecological 

Modeling, 24(1–2): 79–111. 

147 Indirect losses account for about 10 percent of 

commercial and recreational harvest reductions at 

baseline. 

• A1Es (age-one equivalent losses)— 

the number of individual organisms of 

different ages impinged and entrained 

by facility intakes, standardized to 

equivalent numbers of 1-year-old fish. A 

conversion rate between all life history 

stages and age 1 is calculated using 

species-specific survival tables based on 

life history schedule and age-specific 

mortality rates. An individual younger 

than age 1 is a fraction of an age-one 

equivalent; an individual older than age 

1 represents more than one age-one 

equivalent. EPA finds it appropriate to 

use the A1E measure because 

information in the record indicates that 

an overwhelming majority of eggs, 

larvae and juveniles do not survive into 

adulthood and the A1E calculations 

adjust for differences in survivorship 

based on species and age-specific 

mortality rates. EPA recognizes that 

using A1Es simplifies a complex 

ecological situation, because some of the 

smaller fish would provide an 

ecological benefit to other species as 

food even if they would not survive to 

adulthood. Recognizing this as one 

nonmonetized benefit in the analysis, 

using an A1E approach is the most 

reasonable approach available because 

to date, there is insufficient data to 

account for the extent to which 

organisms that do not survive to 

adulthood provide a benefit to other 

organisms which can be reliably 

monetized. 

• Forgone fishery yield—pounds of 

commercial fish harvest and numbers of 

recreational fish and shellfish that are 

not harvested because of impingement 

mortality and entrainment. EPA used 

the Thompson-Bell equilibrium yield 

model 145 to convert impingement 

mortality and entrainment to forgone 

fishery yield, assuming that (1) 

impingement mortality and entrainment 

reduces the future yield of harvested 

adults, and (2) reductions in 

impingement mortality and entrainment 

rates will lead to an increase in 

harvested biomass. The general 

procedure involves multiplying agespecific harvest rates by age-specific 

weights to calculate an age-specific 

expected yield. 

• Biomass production forgone— 

biomass that would have been produced 

had individuals not been impinged or 

entrained,146 calculated for all species 

from species- and age-specific growth 

rates and survival probabilities. It refers 

to the mass of impinged and entrained 

organisms that would have served as 

valuable components of aquatic food 

webs, particularly as an important food 

supply to other aquatic species. 

Estimates of forgone fishery yield 

include direct and indirect losses of 

impinged and entrained species that are 

harvested. Indirect losses represent the 

yield of harvested species lost because 

of reductions in prey availability 

according to a simple trophic transfer 

model (i.e., forage species).147 Chapter 3 

of the BA contains detailed 

methodology for these analyses. 

Studies from individual facilities may 

underestimate or overestimate 

impingement mortality and entrainment 

rates at those facilities. For example, 

facility studies typically focus on a 

subset of fish species affected by 

impingement mortality and 

entrainment, resulting in other species 

being ignored. The number of 

individuals lost to impingement 

mortality and entrainment is then 

underestimated. Estimating the 

magnitude of this underestimate is not 

possible because of the low number of 

replicate studies. Moreover, studies 

often do not count early life stages of 

organisms that are more difficult to 

identify. In addition, many of the 

impingement mortality and entrainment 

studies used by the Agency were 

conducted more than 30 years ago, prior 

to the improvement of aquatic 

conditions that have resulted from 

implementation of the CWA as well as 

State and local laws and efforts. In 

locations where water quality was 

degraded at the time of impingement 

mortality and entrainment sampling 

relative to current conditions, the 

abundance and diversity of fish 

populations might have been depressed, 

resulting in low impingement mortality 

and entrainment estimates. Therefore, 

use of these data may underestimate the 

magnitude of current impingement 

mortality and entrainment. 

Alternatively, studies could have been 

conducted in locations where local fish 

populations are now lower than they 

were when the study occurred. Such a 

shift in fish populations might have 

occurred because of natural variability 

in populations, because of other 

anthropogenic effects (i.e., overharvesting), or because of competition 

from invasive species. In such cases, the 

use of these data may overestimate the 

magnitude of current impingement 

mortality and entrainment. 

EPA’s use of linear methods for 

projecting losses to fish and shellfish in 

the waterbody may also overstate or 

understate impacts. Nevertheless, the 

data from facility studies are the best 

means to estimate the relative 

magnitude of impingement mortality 

and entrainment nationwide. Exhibit X– 

2 presents EPA’s estimates of baseline 

annual impingement mortality and 

entrainment, and reductions in annual 

impingement mortality and entrainment 

estimated to occur under the final rule 

and other options considered. 

Impingement mortality and entrainment 

reductions under the final rule are less 

than the reductions under Proposal 

Option 2 and greater than reductions 

under Proposal Option 4. Unlike the 

analysis of Proposal Option 2, EPA did 

not model the entrainment reductions 

from cooling tower installation under 

the final rule and Proposal Option 4 

because these would be based on sitespecific determinations of BTA, which 

are not possible to predict with 

information EPA has today. EPA 

estimated a small amount of 

entrainment losses under the final rule 

and Proposal Option 4 due to the 

assumed installation of variable speed 

pumps at some facilities to achieve 

compliance via the low velocity 

compliance alternative. 


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48404 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

EXHIBIT X–2—BASELINE ANNUAL IM&E AND ANNUAL REDUCTIONS IN IM&E FOR EXISTING UNITS AT ALL FACILITIES

SUBJECT TO THE FINAL RULE

Loss mode a

Reduction in annual IM&E by regulatory option b c

Baseline 

Proposal annual IM&E 

option 4 

Final rule— 

existing units 

Proposal 

option 2 

Individuals (millions) 

IM ..................................................................................................................... 419.9 441.3 511.9 568.6 

E ....................................................................................................................... 399.8 1,693.9 335,447.6 497,316.3 

IM&E ................................................................................................................ 819.7 2,135.2 335,959.4 497,884.8 

Age-One Equivalents (millions) 

IM ..................................................................................................................... 612.8 647.5 748.2 824.2 

E ....................................................................................................................... 1.4 4.5 889.3 1,106.7 

IM&E ................................................................................................................ 614.2 652.0 1,637.5 1,931.0 

Forgone Fishery Yield (million lbs) 

IM ..................................................................................................................... 12.6 13.3 15.4 16.9 

E ....................................................................................................................... 0.0 0.1 35.7 52.9 

IM&E ................................................................................................................ 12.6 13.4 51.1 69.8 

Production Forgone (million lbs) 

IM ..................................................................................................................... 129.7 136.5 157.2 174.8 

E ....................................................................................................................... 0.5 2.4 337.0 451.8 

IM&E ................................................................................................................ 130.3 138.9 494.2 626.6 

a IM = impingement mortality; E = entrainment; IM&E = impingement mortality and entrainment. 

b IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. cThe totals presented here do not include IM&E reductions associated with new units. Estimated IM&E reductions associated with the new unit 

provision of the final rule are presented in Exhibit X–4. 

Exhibit X–3 presents EPA’s estimates 

of annual impingement mortality and 

entrainment for final rule and other 

considered options by category of fish 

species. Estimates of annual forgone 

fishery yield include both direct losses 

of harvested species and indirect losses 

from reductions in prey fish species. 

Organisms convert (on average) only 

about 10 percent of the mass of food 

they consume into additional tissue 

mass. Thus, although essential to 

maintain ecosystem function, the vast 

majority of biomass moving through 

food webs does not reach higher trophic 

levels associated with commercial and 

recreational species and harvest. 

Instead, the biomass of prey species is 

metabolized and used for predator 

locomotion, reproduction, and tissue 

repair. Accordingly, the portion of 

impingement mortality and entrainment 

that are counted within the forgone 

harvest metric represent only a small 

percentage of all organisms 

experiencing impingement mortality 

and entrainment at cooling water intake 

structures. Neither forage species nor 

the unlanded portion of recreational and 

commercial species were assigned direct 

use values in this analysis, although 

losses in forage species did contribute to 

the overall losses in recreational and 

commercial species as noted above. 

Because the majority of annual 

impingement mortality and entrainment 

include unharvested recreational and 

commercial fish and forage fish, 

considering nonuse values in the final 

rule benefits analysis is particularly 

important. If nonuse values were not 

considered at all, only two to three 

percent of fish losses would be 

represented in monetized benefits. 

EXHIBIT X–3—DISTRIBUTION OF ANNUAL BASELINE IM&E AND REDUCTIONS IN IM&E BY SPECIES CATEGORY, FOR

INDIVIDUAL ORGANISMS AND AGE-1 EQUIVALENTS, AT EXISTING UNITS FOR THE FINAL RULE AND OPTIONS CONSIDERED

IM&E Metric a

Reduction in IM&E by regulatory option b c

Baseline IM&E Proposal 

option 4 

Final rule— 

existing units 

Proposal 

option 2 

Individuals (millions) 

All Species ....................................................................................................... 819.7 2,135.2 335,959.4 497,884.8 

Forage Species ................................................................................................ 607.9 1,423.6 224,323.1 325,069.1 

Commercial & Recreational Species ............................................................... 211.8 711.5 111,636.3 172,815.8

Commercial & Recreational Harvest (millions of fish) ..................................... 16.1 17.1 44.7 54.0 

Lost Individuals with Direct Use Value (%) ..................................................... 1.97% 0.80% 0.01% 0.01% 

Age-One Equivalents (millions) 

All Species ....................................................................................................... 614.2 652.0 1,637.5 1,931.0 


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EXHIBIT X–3—DISTRIBUTION OF ANNUAL BASELINE IM&E AND REDUCTIONS IN IM&E BY SPECIES CATEGORY, FOR INDIVIDUAL ORGANISMS AND AGE-1 EQUIVALENTS, AT EXISTING UNITS FOR THE FINAL RULE AND OPTIONS CONSIDERED—Continued 

IM&E Metric a

Reduction in IM&E by regulatory option b c

Baseline IM&E Proposal 

option 4 

Final rule— 

existing units 

Proposal 

option 2 

Forage Species ................................................................................................ 528.2 560.8 1,258.7 1,459.7 

Commercial & Recreational Species ............................................................... 85.9 91.2 378.8 471.3 

Commercial & Recreational Harvest (millions of fish) ..................................... 16.1 17.1 44.7 54.0 

A1E Losses with Direct Use Value (%) ........................................................... 2.63% 2.62% 2.73% 2.80% 

a IM&E = impingement and entrainment; A1E= age-one equivalent; 

b IM&E Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. cThe totals presented here do not include IM&E reductions associated with new units. Estimated IM&E reductions associated with the new unit 

provision of the final rule are presented in Exhibit X–4. 

In addition to the final rule and other 

options analyzed for existing units 

(Proposal Option 4 and Proposal Option 

2), EPA analyzed requirements for new 

units at existing facilities. EPA’s new 

unit provision in the final rule 

establishes entrainment requirements 

for all new stand-alone units at existing 

facilities. EPA could not directly apply 

the extrapolation methodology used for 

existing units because facility-specific 

information was not available for new 

units. Instead, EPA estimated 

impingement mortality and entrainment 

reductions on the basis of impingement 

mortality and entrainment reductions 

per million gallons per day from the 

analysis of existing units. The estimated 

reduction in impingement mortality and 

entrainment for the new unit 

requirement is summarized in Exhibit 

X–4. 

EXHIBIT X–4—ANNUAL REDUCTIONS IN IM&E BY SPECIES CATEGORY FOR THE FINAL RULE FOR NEW UNITS

IM&E metric a Reduction in 

IM&Eb

Individuals (millions) 

All Species ........................................................................................................................................................................................... 867.2 

Forage Species .................................................................................................................................................................................... 566.1 

Commercial and Recreational Species ............................................................................................................................................... 301.1 

Commercial and Recreational Harvest (millions of fish) ..................................................................................................................... 0.1 

Lost Individuals with Direct Use Value (%) ......................................................................................................................................... 0.01% 

Age-One Equivalents (millions) 

All Species ........................................................................................................................................................................................... 2.3 

Forage Species .................................................................................................................................................................................... 1.7 

Commercial and Recreational Species ............................................................................................................................................... 0.7 

Commercial and Recreational Harvest (millions of fish) ..................................................................................................................... 0.1 

A1E Losses with Direct Use Value (%) ............................................................................................................................................... 2.87% 

aA1E = age-one equivalent; IM&E = impingement mortality and entrainment. 

b Impingement mortality and entrainment reductions increase throughout the compliance period. The values presented here reflect the peak reductions achieved in 2059, the final year of the compliance period. 

IM&E Effects: Entrainment requirements for all stand-alone or units. 

D. National Benefits of the Final Rule 

and Options Considered 

1. Overview 

Economic benefits of the final rule 

and other options considered for 

regulated facilities can be categorized 

broadly into use and nonuse benefits of 

goods and services. Use values include 

benefits that pertain to the human use 

(direct or indirect) of affected fishery 

resources. Use values reflect the value of 

all current direct and indirect uses of a 

good or service. Direct use benefits can 

be further categorized according to 

whether affected goods and services are 

traded in the market (i.e. commercially 

captured fish are traded, recreational 

catch is not). Likewise, indirect use 

benefits can be linked to direct goods 

and services. For example, reductions in 

impingement mortality and entrainment 

of forage fish will enhance the biomass 

of species targeted for commercial 

(market) and recreational (nonmarket) 

uses. It could also affect property 

values. 

Nonuse benefits are those benefits 

that are independent of any current or 

anticipated human use of a resource. 

Nonuse benefits reflect human values 

associated with existence and bequest 

motives. In other words, these values 

reflect the value the public places on 

something simply as a result of its 

existence or natural functioning. EPA 

estimated the economic benefits from 

national regulatory options using a 

range of valuation methods. Commercial 

fishery benefits were valued using 

market data. Recreational angling 

benefits were valued using a benefits 

transfer approach based on revealed and 

stated preference data. To estimate 

indirect use benefits from reduced 

impingement mortality and entrainment 

of forage species, EPA used a simple 


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trophic transfer model. This model 

translated changes in impingement 

mortality and entrainment of forage fish 

into changes in the harvest of 

commercial and recreational species. 

All benefits for fish saved under today’s 

final rule are estimates on the basis of 

projected numbers of age-one equivalent 

fish, converted to harvestable age 

equivalents on a species-by-species 

basis for those commercial species 

analyzed. 

EPA calculated the monetary value of 

use benefits of the final rule and other 

options considered for existing facilities 

using two discount rate values: 3 and 7 

percent. All dollar values presented are 

in 2011 dollars. Because avoided fish 

deaths occur mainly in fish that are 

younger than harvestable age (eggs, 

larvae, and juveniles), the main benefits 

from avoided impingement mortality 

and entrainment would be realized 

typically 3 to 4 years after their avoided 

death. A detailed description of the 

approaches used to address this is in 

Appendix C of the BA. 

Neither forage species nor the 

unlanded portion of recreational and 

commercial species were assigned direct 

use values in this analysis. Their 

potential value to the public is derived 

from several alternative sources: Their 

indirect use as both food and breeding 

population for those fish that are 

harvested; and nonuse value. The 

nonuse value includes individuals’ 

WTP (willingness to pay) for the 

protection of fish based on a sense of 

altruism, stewardship, bequest, or 

vicarious consumption; and their 

support of ecosystem stability and 

function. To estimate a subset of nonuse 

benefits from reducing impingement 

mortality and entrainment of forage 

species and unlanded commercial and 

recreational species, EPA conducted a 

benefits transfer using a nonmarket 

valuation study of aquatic ecosystem 

improvements. This effort generated 

partial estimates of nonuse values for 

resource changes for a species that 

represents less than one percent of 

adverse environmental impacts. 

EPA developed and fielded an 

original stated preference survey to 

estimate total WTP for improvements to 

fishery resources affected by 

impingement mortality and entrainment 

from regulated 316(b) facilities (75 FR 

42438, July 21, 2010). Preliminary 

results of the stated preference survey 

were described in a Notice of Data 

Availability (77 FR 34927, June 12, 

2012). EPA presents preliminary 

benefits estimates based on the stated 

preference survey in the BA to 

demonstrate progress on this effort. In 

the absence of final survey results, EPA 

estimated partial nonuse benefits for the 

final rule using the benefits transfer 

approach from proposal. EPA updated 

the proposal results to incorporate 

additional stock assessment data for 

winter flounder, the species used as the 

basis for the analysis. Due to the 

challenges associated with estimating 

nonuse benefits, some nonuse benefits 

are described only qualitatively. 

2. Timing of Benefits 

Discounting refers to the economic 

conversion of future benefits and costs 

to their present values, accounting for 

the fact that individuals value future 

outcomes less than comparable nearterm outcomes. Discounting enables a 

valid comparison of benefits and costs 

that occur across different periods. EPA 

used discounting to account for 

differences in the timing across benefits 

and costs under the final rule and 

options considered. EPA estimated the 

expected benefits of the final rule once 

the rule takes full effect, then used 

discounting to account for delays in the 

realization of benefits. Two different 

delays affect the timing of benefits 

under the final rule and options 

considered. 

First, facilities will begin to incur 

costs prior to technology installation. 

Facilities will face regulatory 

requirements once the rule is effective, 

but it will take time for requirements to 

be developed and for the required 

technology to be installed. Analyzed 

facilities are assigned a technology 

installation year which considers 

facility characteristics and technology 

being installed. EPA assumed that 

facilities installing impingement 

technology tend to complete technology 

installation sooner than facilities 

installing closed-cycle cooling (for other 

options considered). The assignment of 

technology installation years is 

speculative on EPA’s part, because EPA 

does not have sufficient data on hand to 

project the schedules that Directors will 

set for facilities. See Chapter 3 of the EA 

document for the final existing facilities 

rule for details on EPA’s development of 

technology installation years. EPA 

effectively discounts benefits to a 

greater extent than costs to account for 

the lag between the incurrence of costs 

and the realization of benefits. 

Second, an additional time lag will 

result between technology 

implementation and use values via 

increased fishery yields. This lag occurs 

because several years could pass 

between the time an organism is spared 

from impingement mortality or 

entrainment and the time of its potential 

harvest. For example, a larval fish 

spared from entrainment (in effect, at 

age 0) could be caught by a recreational 

angler at age 3, meaning that a 3-year 

time lag arises between the incurred 

technology cost and the realization of 

the estimated recreational benefit. 

Likewise, if a 1-year-old fish is spared 

from impingement and is then harvested 

by a commercial waterman at age 2, 

there is a 1-year lag between the 

incurred cost and the subsequent 

commercial fishery benefit. To account 

for this growth period, EPA applied 

discounting by species groups in each 

regional study. Note that nonuse values 

(depending on how they are measured) 

do not necessarily need to be 

discounted similarly. 

3. Recreational Fishing Valuation 

a. Recreational Fishery Methods 

To estimate recreational benefits of 

the final options, EPA developed a 

benefits transfer approach on the basis 

of a meta-analysis of recreational fishing 

valuation studies designed to measure 

the various factors that determine WTP 

for catching an additional fish per trip. 

Regional benefits are summarized as 

follows (for details, see Chapter 7 of the 

BA): 

1. Estimate the annual forgone catch 

of recreational fish (number of fish) 

attributable to impingement mortality 

and entrainment under current 

conditions. 

2. Estimate the marginal value per fish 

using a benefit transfer function based 

on a meta-analysis of recreational 

fishing studies. 

3. Multiply the forgone catch by the 

marginal value per fish to estimate the 

total annual value of the forgone catch. 

4. Estimate the annual value of 

reductions in the forgone catch 

attributable to the regulatory analysis 

options. 

5. Discount the time path of benefits 

at 3 and 7 percent to reflect the time lag 

between impingement mortality and 

entrainment reductions and increased 

harvests. 

b. Estimated Benefits to Recreational 

Anglers 

Decreasing impingement mortality 

and entrainment increases the number 

of fish available to be caught by 

recreational anglers, thereby increasing 

angler welfare. Exhibit X–5 shows the 

estimated benefits resulting from 

reduced impingement mortality and 

entrainment under today’s final existing 

facilities rule and other options that 

EPA considered. The total annualized 

recreational fishing benefits for all 

regions at existing units of existing 

facilities for the final rule (impingement 

mortality and entrainment combined) 


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are $18 million using a 3 percent 

discount rate and $14 million using a 7 

percent discount rate. Annual 

recreational fishing benefits for other 

options considered range from $17 to 

$43 million using a 3 percent discount 

rate and $13 million to $30 million 

using a 7 percent discount rate. 

EXHIBIT X–5—ANNUAL RECREATIONAL FISHING BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT

EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED

Regulatory option a Increased harvest 

(million fish) 

3% discount rate 

(million 2011$) 

7% discount rate 

(million 2011$) 

Proposal Option 4 ...................................................................................................... 6.1 17.1 12.6 

Final Rule—Existing Units ......................................................................................... 6.5 18.2 13.5

Proposal Option 2 ...................................................................................................... 20.5 43.0 29.5 

Baseline ..................................................................................................................... 25.3 78.8 72.0 

a IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. 

4. Commercial Fishing Valuation 

Reductions in impingement mortality 

and entrainment at cooling water intake 

structures are expected to benefit the 

commercial fishing industry. By 

reducing the number of fish killed, the 

number of fish available for harvest is 

expected to increase. The next section 

summarizes the methods EPA used to 

estimate benefits to the commercial 

fishing sector. The section after that 

presents the estimated value of 

commercial fishing benefits. 

a. Commercial Fishing Valuation 

Methods 

The total loss to the economy from 

impingement mortality and entrainment 

impacts on commercially harvested fish 

species is determined by the sum of 

changes in both producer and consumer 

surplus. EPA assumed a linear 

relationship between stock and harvest, 

such that if 10 percent of the current 

commercially targeted stock were 

harvested, 10 percent of the 

commercially targeted fish lost to 

impingement mortality and entrainment 

would have been harvested absent 

impingement mortality and 

entrainment. The percentage of fish 

harvested is based on data of historical 

fishing mortality rates. 

Producer surplus provides an estimate 

of the economic damages to commercial 

fishers, but welfare changes can also be 

expected to accrue to final consumers of 

fish and to commercial consumers 

(including processors, wholesalers, 

retailers, and middlemen) if the 

projected increase in harvest is 

accompanied by a change in price. The 

analysis of market impacts involves the 

following steps (for details, see Chapter 

6 of the BA): 

1. Assessing the net welfare changes 

for fish consumers due to changes in 

fish harvest and the corresponding 

change in fish price. 

2. Assessing net welfare changes for 

fish harvesters due to the change in total 

revenue, which could be positive or 

negative. 

3. Calculating the increase in net 

social benefits when the fish harvest 

changes by combining the welfare 

changes for consumers and harvesters. 

For a more detailed description of the 

methodology for commercial fishing, see 

Chapter 6 of the BA. 

b. Commercial Fishing Valuation 

Results 

Exhibit X–6 presents the estimated 

annual commercial fishing benefits 

attributable to the proposed options. 

The results reported include the total 

reduction in losses in pounds of fish, 

and the value of this reduction 

discounted at 3 and 7 percent. Total 

estimated annualized commercial 

fishing benefits for the United States for 

the final rule are $0.9 million using a 3 

percent discount rate and $0.7 million 

using a 7 percent discount rate. Annual 

commercial fishing benefits for other 

options considered range from $0.9 

million to $3.9 million using a 3 percent 

discount rate and $0.7 million to $2.7 

million using a 7 percent discount rate. 

EPA estimated the expected price 

changes from eliminating baseline levels 

of impingement mortality and 

entrainment and found them to be 

small, ranging from 0.2 to 2.5 percent. 

EXHIBIT X–6—ANNUAL COMMERCIAL FISHING BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT

EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED

Regulatory option a Increased harvest 

(million lbs) 

3% discount rate 

(million 2011$) 

7% discount rate 

(million 2011$) 

Proposal Option 4 ...................................................................................................... 5.3 0.9 0.7 

Final Rule—Existing Units ......................................................................................... 5.7 0.9 0.7 

Proposal Option 2 ...................................................................................................... 14.0 3.9 2.7 

Baseline ..................................................................................................................... 17.3 8.0 7.2 

a IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. 

5. Nonuse Benefits 

Aquatic organisms with no direct use 

benefits account for the majority of 

cooling water intake structure losses 

(Exhibit X–3). Although many 

individuals may not use a particular 

waterbody for recreation or fishing, 

individuals nevertheless may value 

improvements in that waterbody. To 

quantitatively assess the ecological 

gains from the final rule and other 

options considered, EPA took both of 

the only two approaches available for 

quantifying nonuse benefits—a benefits 

transfer approach and a stated 


emcdonald on DSK67QTVN1PROD with RULES2
48408 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

148 Johnston, R.J., E.T. Schultz, E.T., K. Segerson, 

E.Y. Besedin, and M. Ramachandran. 2012. 

Enhancing the content validity of stated preference 

valuation: The structure and function of ecological 

indicators. Land Economics, 1: 102–120. 

149Zhao, M., Johnson, R.J. and Schultz, E.T. 2013. 

What to Value and How? Ecological Indicator 

Choices in Stated Preference Valuation. 

Environmental Resource Economics. Published 

online, February 8, 2013. 

150 Johnston, R.J., E.T. Schultz, E.T., K. Segerson, 

E.Y. Besedin, and M. Ramachandran. 2012. 

Enhancing the content validity of stated preference 

valuation: The structure and function of ecological 

indicators. Land Economics, 1: 102–120; Zhao, M., 

Johnson, R.J. and Schultz, E.T. 2013. What to Value 

and How? Ecological Indicator Choices in Stated 

Preference Valuation. Environmental Resource 

Economics. Published online, February 8, 2013. 

151Op cit. 

preference survey. It is not necessary to 

use a stated preference survey approach 

to calculate benefits; however, 

important nonuse benefits can be 

missed by not using a stated preference 

survey approach. So EPA took both 

approaches, but relied on only the 

benefits transfer approach for the 

benefits analysis supporting the final 

rule. The benefits transfer approach 

relies on the existence of previously 

published studies with values that can 

be transferred; in instances where 

nonuse is potentially significant, as is 

the case here, previously published 

studies would only include nonuse 

value if they adopted a stated preference 

approach. 

EPA used a benefit transfer approach 

to partially monetize nonuse benefits 

associated with reductions in 

impingement mortality and entrainment 

of fish, shellfish, and other aquatic 

organisms under the regulatory options 

for the North Atlantic and Mid-Atlantic 

benefits regions. EPA applied estimated 

values from a study conducted in Rhode 

Island; these estimates are likely to be 

more representative of nonuse values 

held by individuals residing in the 

Northeast United States and less 

accurate in other regions. EPA was 

unable to identify comparable studies 

conducted in other regions that could be 

used to estimate nonuse values. Chapter 

8 of the BA provides further detail on 

this analysis. 

The preferred techniques used to 

estimate total values (including both use 

and nonuse values), in general, are 

benefits transfer or to conduct a stated 

preference survey. There are many 

studies in the environmental economics 

literature that quantify benefits or WTP 

associated with various types of water 

quality and aquatic habitat changes. 

However, none of these studies allows 

the isolation of non-market WTP 

associated with quantified reductions in 

impingement mortality and entrainment 

for forage fish or unlanded portion of 

commercial and recreational species. 

a. Nonuse Benefits Transfer 

EPA identified a recent stated 

preference survey of Rhode Island 

residents that is closely related to the 

316(b) policy context. The study results 

have been published in multiple 

scientific journals and books including 

Johnston et al.148 and Zhao et al.149 Both 

the Rhode Island study and the present 

context address policy changes that 

increase the number of forage fish in 

aquatic habitat with unknown effects on 

overall fish populations. The Rhode 

Island study was developed originally 

as a case study addressing Rhode Island 

residents’ preferences for the restoration 

of migratory fish passage over dams in 

Rhode Island’s Pawtuxet and WoodPawcatuck watersheds. It estimates 

nonuse values by asking respondents to 

consider changes in ecological 

indicators reflecting quantity of habitat, 

abundance of wildlife, ecological 

condition, and abundance of migratory 

fish species. Within this study, 

estimated values were based on the 

relative change in abundance of fish 

species most affected by restoration. 

Estimating benefit functions from the 

Rhode Island choice experiment 

survey 150 allows one to distinguish 

benefits associated with resource uses 

from those associated primarily with 

nonuse motives. Within the benefit 

transfer application, WTP is quantified 

for increases in non-harvested fish alone 

on the basis of the implicit price for 

migratory fish changes. This transfer 

holds constant all effects related to 

identifiable human uses (e.g., effects on 

catchable fish, public access, and 

observable wildlife). The remaining 

welfare effect—derived purely from 

effects on forage fish with little or no 

direct human use—may therefore be 

most accurately characterized as a 

nonuse benefit realized by households. 

The estimation of nonuse values 

involved the following steps: 

1. Use a model published by Zhao et 

al.151 to estimate household WTP per 

percent increase in the number of fish 

in a given watershed. The household 

WTP values reflect a survey version that 

characterizes effects on the number of 

migratory fish passing upstream. 

2. Calculate the relative change in 

abundance for the fish species most 

affected by the regulation. The structure 

of the transfer study dictates that WTP 

should be evaluated based on the single 

species that would experience the 

greatest relative increase in abundance 

from restoration and that WTP estimates 

from multiple species impacted by 

IM&E should not be treated as strictly 

additive. After reviewing available stock 

assessment data, current stock size, and 

the magnitude of IM&E, EPA 

determined winter flounder to be the 

species likely to experience the greatest 

percent increase in abundance among 

those species with sufficient stock 

information to conduct the analysis 

within the boundaries of the North 

Atlantic and Mid-Atlantic benefits 

regions. This species is harvested; 

however, early life stages of recreational 

and commercial species may be eaten by 

other organisms and therefore have 

nonuse values. 

3. Estimate total household WTP by 

applying model results for WTP per 

percentage of estimated winter flounder 

impingement mortality and 

entrainment. Total regional WTP is the 

product of household WTP and the 

number of households in the affected 

region (for details, see Chapter 8 of the 

BA). 

b. Estimated Nonuse Benefits for the 

North Atlantic and Mid-Atlantic 

Regions 

EPA expects that a decrease in 

impingement mortality and entrainment 

will lead to increased fish abundance in 

affected water bodies, thus increasing 

nonuse benefits. Exhibit X–7 shows the 

benefits that would result from reducing 

impingement mortality and entrainment 

through today’s final rule and other 

options considered. Application of the 

transfer study requires that the increases 

be expressed as a percent improvement 

relative to a maximum number of fish 

that could be supported. EPA calculated 

estimates of WTP on the basis of the 

increase in age-1 equivalent winter 

flounder relative to the estimated 

number of age-1 fish when the stock is 

at maximum sustainable yield, thus 

assuming that the population structure 

of the current stock is similar to the 

larger stock. The total annualized 

nonuse benefits for the North Atlantic 

and Mid-Atlantic regions for the 

existing unit provision of the final rule 

are $1 million using a 3 percent 

discount rate and $0.8 million using a 

7 percent discount rate. For other 

options considered, annualized nonuse 

benefits range from $0.3 to $51 million 

using a 3 percent discount rate and $0.3 

to $37 million using a 7 percent 

discount rate. 


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EXHIBIT X–7—ANNUAL NONUSE BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT EXISTING

FACILITIES IN THE NORTH ATLANTIC AND MID-ATLANTIC REGIONS FOR THE FINAL RULE AND OPTIONS CONSIDERED a

Regulatory option b

Winter flounder 

IM&E 

(million A1E) 

Increased winter 

flounder A1E 

abundance (%) 

3% discount rate 

(millions 2011$) 

7% discount rate 

(millions 2011$) 

Proposal Option 4 .................................................................... 0.03 0.02 0.3 0.3 

Final Rule—Existing Units ....................................................... 0.08 0.07 1.0 0.8 

Proposal Option 2 .................................................................... 4.78 4.18 51.1 37.3 

Baseline ................................................................................... 6.23 5.44 99.1 96.9 

a IM&E = impingement and entrainment; A1E = age-one equivalent. 

b IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. 

c. Stated Preference Survey 

EPA conducted a stated preference 

survey to calculate benefits associated 

with minimizing adverse impacts to 

aquatic ecosystems from cooling water 

intakes. Refer to Sections VI.F.1 and 

X.D.1 for additional discussion of the 

stated preference survey. EPA did not 

rely on the results of its stated 

preference survey in estimating the 

benefits of today’s rule. 

6. Threatened and Endangered Species 

This section summarizes methods and 

results of EPA’s analysis of benefits 

from improved protection of T&E 

species from today’s final rule and 

options considered. Chapter 5 of the BA 

provides further detail on this analysis. 

Even if levels of mortality due to 

impingement and entrainment from 

cooling water intake structures of T&E 

species are low in absolute numbers, 

they may represent a substantial portion 

of annual reproduction because of the 

reduced population levels that cause a 

species to be protected. Consequently, 

impingement mortality and entrainment 

may either lengthen recovery time, or 

hasten the demise of these species. 

Adverse effects of cooling water intake 

structures on T&E species can occur in 

several ways: 

• Populations of T&E species may 

suffer direct harm as a consequence of 

impingement mortality and 

entrainment. 

• T&E species may suffer indirect 

harm if a cooling water intake structure 

alters food webs. 

• Cooling water intake structures can 

alter habitat designated as critical to the 

long-term survival of T&E species. 

Consequently, the 316(b) regulation 

will help preserve threatened and 

endangered species. 

a. Qualitative Assessment of 

Impingement Mortality and Entrainment 

Impacts on T&E Species 

By definition, T&E species are 

characterized by low population levels. 

As such, it is unlikely that these species 

are recorded in significant number, if 

recorded at all, in impingement 

mortality and entrainment monitoring 

studies. Thus, losses are difficult to 

identify and quantify in a framework 

developed for non-listed species. 

Consequently, EPA developed a 

qualitative methodology to estimate the 

number of T&E species affected by 

impingement mortality and 

entrainment. 

To qualitatively assess the potential 

for cooling water intake structure 

impacts on aquatic T&E species, EPA 

constructed a database that assessed the 

geographical overlap of cooling water 

intake structure and habitat used by 

aquatic T&E species. This database 

identified the number of T&E species 

potentially affected by each regulated 

316(b) facility, and the number of 

facilities potentially affecting each T&E 

species. Additional details are in 

Chapter 5 of the BA. 

Using this database, EPA found 99 

Federally-listed aquatic T&E species 

that overlap with at least one covered 

cooling water intake structure (an 

interaction in Exhibit X–8). T&E species 

included freshwater, marine, and 

anadromous fish, freshwater mussels, 

and sea turtles. On average, the habitat 

of each T&E species overlapped with 22 

covered facilities (Exhibit X–8), 

suggesting that the 316(b) rule may have 

substantial positive benefits of ensuring 

the long-term sustainability and 

recovery of T&E species. 

EXHIBIT X–8—NUMBER OF REGULATED 316(B) COOLING WATER INTAKE STRUCTURES IN AQUATIC T&E SPECIES HABITAT

ON A PER-SPECIES BASIS

Subset of affected species a b Species Interactions b

Facilities per T&E species c

Avg Max 

All T&E Species ....................................................................... 99 2,158 21.8 103 

T&E Freshwater Mussels ........................................................ 53 1,176 21.8 103 

T&E Anadromous Fish ............................................................ 12 235 19.6 101 

T&E Freshwater Fish ............................................................... 21 65 3.1 7 

T&E Snails ............................................................................... 7 199 28.4 49 

Sea Turtles .............................................................................. 6 483 80.5 102 

aAquatic T&E species includes species listed as threatened or endangered by the U.S. Fish and Wildlife Service (freshwater) or National Oceanic and Atmospheric Administration National Marine Fisheries Service (marine). Only aquatic species overlapping with a minimum of one cooling water intake structure are included. bEach interaction represents an overlap between the range of a T&E species and cooling water intake structure. 

cAvg = average, Max = maximum. 


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152 Genera is the plural of genus. Genus is the 

rank superior to species in taxonomic biological 

classification. For example, the genus of Atlantic 

salmon (Salmo falar) is Salmo. 

b. Quantitative Assessment of 

Impingement Mortality and Entrainment 

Impacts on T&E Species 

Although difficult to observe and 

quantify, EPA identified 14 T&E species 

with confirmed impingement mortality 

and entrainment based on facility 

impingement mortality and entrainment 

studies. EPA notes that some 

impingement mortality and entrainment 

studies identifying T&E losses were 

conducted prior to the listing of the 

species under the ESA. In addition to 

documented species-level instances of 

T&E mortality, EPA identified 

impingement mortality and entrainment 

at the level of genera 152 when these 

genera contain a T&E species whose 

habitat range overlapped the reporting 

facility’s cooling water intake structure. 

Although these are not confirmed 

impingement mortality and entrainment 

of T&E species, they provide evidence 

that additional T&E species are likely to 

be directly affected by impingement 

mortality and entrainment. EPA found 

seven genus-level matches, suggesting 

that the 14 T&E species suffering 

impingement mortality and entrainment 

may be inaccurate. 

Of the 14 Federally-listed T&E species 

for which EPA was able to document 

losses in impingement mortality and 

entrainment studies, EPA was able to 

quantify impingement mortality and 

entrainment for two species (pallid 

sturgeon and Topeka shiner). The 

documented impingement mortality and 

entrainment occurred before these 

species were Federally-listed. Data were 

either qualitative or of insufficient 

quality to quantify local or regional 

impingement mortality and entrainment 

for the remaining 12 Federally-listed 

T&E species. EPA also quantified 

impingement mortality and entrainment 

for the American paddlefish (Polyodon 

spathula), listed by several states as 

threatened or endangered under State 

law, using facility impingement 

mortality and entrainment studies. 

Exhibit X–9 presents EPA’s estimates of 

baseline annual impingement mortality 

and entrainment, and reductions in 

impingement mortality and entrainment 

which EPA estimates will occur under 

the final rule and other options 

considered. 

EXHIBIT X–9—BASELINE ANNUAL IM&E FOR T&E SPECIES AND REDUCTIONS FOR EXISTING UNITS AT EXISTING

FACILITIES (A1ES) a b

Species Proposal 

option 4 

Final rule— 

existing units 

Proposal 

option 2 Baseline 

Paddlefish c .............................................................................. 7,930.1 8,245.4 15,659.7 18,841.4 

Pallid Sturgeon ........................................................................ 65.4 67.6 78.0 89.5 

Topeka Shiner ......................................................................... 2,910.9 3,009.8 3,471.9 3,984.9 

Total .................................................................................. 10,906.4 11,322.8 19,209.5 22,915.7 

a IM&E = impingement and entrainment; A1E = age-one equivalent. 

b IM&E Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. cThe American paddlefish is not a Federally-listed T&E species but is listed as threatened or endangered on several state lists.

dThis analysis is based solely on IM controls. 

Impingement mortality and 

entrainment is only one of many factors 

that adversely affect T&E species. 

Estimating total population impacts 

from changes in impingement mortality 

and entrainment requires estimates of 

current populations of these fish and 

estimates of other anthropogenic effects 

which were not readily available for all 

T&E species with quantified 

impingement mortality and entrainment 

at the time of this analysis. Therefore, 

EPA was unable to quantify effects on 

T&E populations from the 316(b) 

regulation. 

c. Valuation Methods of T&E Fish 

Species 

EPA had sufficient data from 

impingement mortality and entrainment 

studies to quantify impingement 

mortality and entrainment estimates for 

three T&E species, Topeka shiner, pallid 

sturgeon, and paddlefish (Exhibit X–9). 

Two of these species (pallid sturgeon 

and paddlefish) have potential use 

values. A limited recreational fishery 

(mostly catch and release) exists for 

paddlefish in several states; although 

harvesting pallid sturgeon is illegal, the 

species is sometimes caught by 

recreational anglers. EPA estimated 

recreational use values for pallid 

sturgeon and paddlefish by applying 

transfer values from a Random Utility 

Model analysis it conducted to evaluate 

recreational fishing benefits of the 

316(b) Phase II regulation to quantified 

impingement mortality and entrainment 

(for details, see Chapter 5 of the BA). 

EPA was unable to generate estimates 

of nonuse values for T&E fish species 

because reliable population estimates 

needed to transfer the values were 

unavailable. However, EPA emphasizes 

that nonuse values for T&E fish species 

are likely to be significantly greater than 

any use values. Harvest of these species 

is prohibited, reflecting a societal 

judgment that protection and 

preservation of these species is of 

greater value than harvest. 

d. Estimated Monetary Benefits From 

Reduced Mortality of T&E Fish Species 

Exhibit X–10 presents the estimated 

annualized benefits for a subset of T&E 

species. For existing units under the 

final rule, EPA estimates total 

annualized use benefits for T&E species 

with quantified impingement mortality 

and entrainment of $0.4 million using a 

3 percent discount rate and $0.3 million 

using a 7 percent discount rate. For 

other options considered, annualized 

benefits range from $0.4 to $0.7 million 

using a 3 percent discount rate and $0.3 

to $0.5 million using a 7 percent 

discount rate. 


emcdonald on DSK67QTVN1PROD with RULES2
Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48411 

153Richardson, L., and J. Loomis. 2009. The total 

economic value of threatened, endangered and rare 

species: An updated meta-analysis. Ecological 

Economics, 68(5): 1535–1548. 

154Bell, K.P., D. Huppert, and R.L. Johnson. 2003. 

Willingness to pay for local coho salmon 

enhancement in coastal communities. Marine 

Resource Economics, 18: 15–31. 

155Berrens, R.P., P. Ganderton, and C.L. Silva. 

1996. Valuing the protection of minimum instream 

flow in New Mexico. Journal of Agricultural and 

Resource Economics 21(2): 294–309. 

156Whitehead, J.C. 1993. Total economic values 

for coastal and marine wildlife: specification, 

validity, and valuation issues. Marine Resource 

Economics, 8(2): 119–132. 

157Plotkin, P.T., (Ed). 1995. National Marine 

Fisheries Service and U. S. Fish and Wildlife 

Service Status Reviews for Sea Turtles Listed under 

the Endangered Species Act of 1973. National 

Marine Fisheries Service. Silver Spring, MD. 

158Crouse, D.T., L.B. Crowder, and H. Caswell. 

1987. A stated-based population model for 

loggerhead sea turtles and implications for 

conservation. Ecology, 68(5): 1412–1423. 

159 Ibid. 

160U.S. Fish and Wildlife Service (USFWS) 

(2010c). ‘‘North Florida Ecological Services Office: 

Loggerhead Sea Turtle (Caretta).’’ Available at 

http://www.fws.gov/northflorida/seaturtles/

turtle%20factsheets/loggerhead-sea-turtle.htm. 

161U.S. Fish and Wildlife Service. 2012. Federal 

and State Endangered and Threatened Species 

Expenditures. Fiscal Year 2011. 

EXHIBIT X–10—ANNUAL USE BENEFITS FROM ELIMINATING OR REDUCING IM&E OF T&E SPECIES AT EXISTING UNITS OF

EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED abc

Regulatory option Increased harvest 

(number of fish) 

3% discount rate 

(million 2011$) 

7% discount rate 

(million 2011$) 

Proposal Option 4 ...................................................................................................... 7,995.5 0.4 0.3 

Final Rule—Existing Units ......................................................................................... 8,313.0 0.4 0.3 

Proposal Option 2 ...................................................................................................... 15,737.7 0.7 0.5 

Baseline ..................................................................................................................... 18,930.9 1.2 1.3 

a IM&E = impingement and entrainment; T&E = threatened and endangered. Values are included for pallid sturgeon and paddlefish in the Inland region. b IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow 

greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2 

mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd. cThis analysis is based solely on impingement mortality controls. 

EPA notes that the benefit values 

presented in Exhibit X–10 represent 

only a fraction of values for T&E species 

potentially affected by the final existing 

facilities rule. The Agency was able to 

obtain only use values and for only a 

small subset of all affected T&E species. 

Moreover, because of the nature of T&E 

species, even a small increase in 

population could yield economic and 

ecological benefits (e.g., Richardson and 

Loomis; 153 Bell et al.; 154 Berrens et 

al.155) 

e. Valuation Methods for T&E Sea 

Turtles 

In addition to estimating values of 

T&E fish with quantitative estimates of 

impingement mortality and 

entrainment, EPA estimated the WTP 

for sea turtle conservation. In this 

analysis, EPA applied estimates from a 

study using a stated preference 

valuation approach to estimate total 

economic value of a management 

program that reduces the risk of 

extinction of loggerhead sea turtles.156

Although impingement mortality and 

entrainment of turtles is relatively low 

compared to mortality from shrimp 

trawling and other fisheries,157 it is 

known that reducing turtle mortality 

during juvenile and subadult life stages 

can have a substantial positive effect on 

population growth.158 The marginal 

change in extinction probability of sea 

turtles due to 316(b) regulatory options 

is likely to be at least 0.01, or a 1 percent 

decrease in the probability of extinction 

over 25 years. This assessment is based 

on reports that impingement mortality 

and entrainment may result in the loss 

of more than 100 turtles per year and 

because turtle population growth rates 

are known to be sensitive to changes in 

juvenile and subadult life stages.159

f. Benefits From Reduced Mortality of 

T&E Sea Turtles 

The U.S. range of loggerhead sea 

turtles includes the Gulf of Mexico, 

South Atlantic, Mid-Atlantic, and North 

Atlantic 316(b) regions.160 To calculate 

national WTP for an increased 25-year 

survival probability of loggerhead sea 

turtles, EPA assumed the affected 

population to include households in 

States with 316(b) facilities that are in 

loggerhead sea turtle habitat. EPA 

determined that 54.8 million 

households would be willing to pay for 

improved protection of loggerhead sea 

turtles. Although incidences of 

mortality have been reported at facilities 

in California, Texas, Florida, South 

Carolina, North Carolina, and New 

Jersey, EPA does not have sufficient 

information to quantify total sea turtle 

losses due to intakes or the reductions 

in such losses that might occur from the 

final rule or options considered. But as 

an illustrative example, assuming that 

the survival probability of loggerhead 

sea turtles over 25 years were increased 

by 1 percent, and applying a mean 

household value of $0.37 (2011 dollars), 

the monetized value would be $19.3 

million and $18.8 million using 

discount rates of 3 percent and 7 

percent, respectively. EPA is presenting 

these estimates only to demonstrate the 

potential range of benefits, and is not 

including them in national benefits 

totals for the final rule and options 

considered. Actual household values 

and total benefits may be higher or 

lower than these estimates, with 

Proposal Option 2 likely to provide 

substantially greater benefits than the 

final rule and Proposal Option 4. 

Because EPA does not currently have 

accurate national estimates of 

impingement mortality and entrainment 

for turtle species, nor are population 

models available that estimate the effect 

of 316(b) regulation on population size 

and extinction risk, these estimates are 

presented only as an illustrative 

example and are not included in 

national totals. 

g. Other Indications of Society’s WTP 

for Protection of T&E Species 

Many sources provide information 

that indicates that society places 

significant value on protecting T&E 

species. These include, but are not 

limited to: 

• The Endangered Species Act of 

1973, which provides for the 

conservation of T&E species of fish and 

wildlife. Federal and State expenditures 

on T&E species were $593 million 

during fiscal year 2011 just on 

protection of those Federally-listed T&E 

species that have habitat overlapping 

cooling water intake structures. This 

accounted for 68 percent of the $869 

million spent on fish, marine reptiles, 

crustaceans, corals, clams, aquatic snails 

and marine mammals listed under the 

Endangered Species Act.161


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162For this analysis, EPA used the Integrated 

Planning Model (IPM®), a comprehensive electricity 

market optimization model that assesses such 

impacts within the context of regional and national 

electricity markets. 

• Restrictions on activities in the 

habitat occupied by T&E species. For 

example, water diversions on the San 

Joaquin-Sacramento River delta, in 

place to protect the Delta Smelt 

(Hypomesus transpacificus), limit the 

extraction of water for drinking and 

agriculture. 

• The willingness of individuals to 

volunteer their time to conserve T&E 

species. For example, dozens of 

organizations recruit thousands of 

volunteers every year to participate in 

sea turtle conservation and research 

projects. Volunteers are often required 

to undergo substantial training and 

commit to long hours. 

While costs to replace, protect, or 

enhance stocks, and costs to users 

affected by efforts to conserve stocks are 

not direct measures of economic 

benefits, they indicate that society is 

willing to pay significant sums to 

protect and restore populations of T&E 

species. Although impingement 

mortality and entrainment is only one of 

many stressors on these species, 

reducing the amount of impingement 

mortality and entrainment could 

contribute to the recovery of 

populations over time, thereby 

eliminating some costs associated with 

conserving T&E species. 

7. Assessment of Thermal Discharge 

Impacts 

In addition to reducing total 

impingement mortality and 

entrainment, closed-cycle cooling 

reduces thermal pollution. Most retrofit 

installations of cooling towers at electric 

generating facilities have been required 

by NPDES permits to reduce thermal 

discharges. Since thermal discharges are 

a product of cooling water intake 

structures, the impacts of thermal 

discharges are a relevant benefit to 

consider when assessing appropriate 

technologies to reduce the effects of 

cooling water intakes. The installation 

of technologies, such as closed-cycle 

cooling systems, can reduce thermal 

pollution significantly. Thermal 

pollution has long been recognized to 

cause harm to the structure and function 

of aquatic ecosystems. Concerns about 

the impacts of thermal discharges are 

addressed by State water quality 

standards that, when implemented 

through NPDES permits, limit the 

amount of heat that can be discharged 

to a receiving water and result, in some 

cases, in technology-based permit 

conditions. Section 316(a) of the CWA 

applies to point sources with thermal 

discharges. It authorizes the NPDES 

permitting authority to impose 

alternative effluent limitations for the 

control of the thermal component of a 

discharge in lieu of the effluent 

limitations that would otherwise be 

required under sections 301 or 306 of 

the CWA. Before such a ‘‘thermal 

variance’’ can be granted, the permittee 

must demonstrate that the alternative 

limit will assure the protection and 

propagation of a balanced, indigenous 

population of shellfish, fish and wildlife 

in and on the body of water into which 

the discharge is to be made. 40 CFR 

125.73(a). 

EPA did not quantify nationally the 

impacts of thermal discharges. However, 

numerous studies have shown that 

thermal discharges may substantially 

alter the structure of aquatic 

communities by modifying 

photosynthetic, metabolic, and growth 

rates. Thermal discharges also harm 

aquatic life by reducing levels of 

dissolved oxygen, altering the location 

and timing of fish behavior such as 

spawning, aggregation, and migration, 

and may cause thermal shock-induced 

mortality for some species. Adverse 

temperature effects may also be more 

pronounced in aquatic ecosystems that 

are already subject to other 

environmental stressors such as high 

levels of biochemical oxygen demand, 

nutrient and sediment contamination, or 

pathogens. Within mixing zones, which 

often extend several miles downstream 

from outfalls, thermal discharges may 

impair efforts to restore and protect the 

waterbody. For example, permit 

requirements to limit nitrogen 

discharges in a watershed, and thereby 

reduce harmful algal blooms, may be 

counteracted by thermal discharges 

which promote growth of harmful algae. 

Thermal discharges may have indirect 

effects on fish and other vertebrate 

populations through increasing 

pathogen growth and infection rates. 

Thermal discharges may thus alter the 

ecological services, and reduce the 

benefits, of aquatic ecosystems that 

receive heated effluent. The magnitude 

of thermal effects on ecosystem services 

is related to facility-specific factors, 

including the volume of the waterbody 

from which cooling water is withdrawn 

and returned, other heat loads, the rate 

of water exchange, the presence of 

nearby refugia, and the assemblage of 

nearby fish species. 

8. Assessment of Social Cost of Carbon 

The social cost of carbon reflects the 

estimated increase in the burden of 

global warming to society in future 

years due to higher greenhouse gas 

(GHG) emissions, measured as CO2

equivalents, associated with additional 

energy requirements—energy penalty, 

auxiliary energy requirements, and 

compliance technology installation—of 

regulatory options. EPA estimated 

positive or negative benefits associated 

with the social cost of carbon for 

decreases or increases, respectively for 

Proposal Option 4 and Final Rule or 

Proposal Option 2, in energy 

requirements at regulated facilities 

under the final rule and other options 

considered. 

EPA’s estimates of changes in CO2

emissions were based on results from 

the electricity market analysis using 

IPM.162 For electric generators, EPA 

estimated the change in CO2 resulting 

from the energy penalty associated with 

close-cycle recirculating technology, 

auxiliary energy requirement for 

operating compliance technology, and 

technology installation downtime. For 

manufacturers, EPA estimated the 

change in carbon emissions resulting 

from the energy penalty and auxiliary 

energy requirement. For compliance 

technology installation downtime at 

manufacturers, EPA assumed no change 

in carbon emissions as the short-term 

replacement of energy by electric power 

generating facilities that would 

otherwise be produced at manufacturers 

could either increase or decrease 

emissions. 

To estimate benefits associated with 

the reductions in carbon emissions, EPA 

used social cost of carbon values 

calculated from the 2013 document 

titled, Technical Support Document: 

Technical Update of the Social Cost of 

Carbon for Regulatory Impact Analysis 

Under Executive Order 12866, 

developed by the U.S. Government 

Interagency Working Group on Social 

Cost of Carbon. The Agency used the 

Working+ Group’s annual social cost of 

carbon values for 2010 through 2050 

based on the 3 percent average discount 

rate, which EPA has concluded is the 

most appropriate discount rate for 

intergenerational benefits such as the 

social cost of carbon. See Chapter 9 of 

the BA for annual social cost of carbon 

values based on discount rates of 2.5, 3 

(high) and 5 percent. Benefits for each 

year of the analysis period were 

calculated by multiplying the change 

CO2 emissions by the SCC value for that 

year. Similar to the treatment of other 

benefits, EPA discounted all yearspecific social cost of carbon values to 

the beginning of 2013 and calculated an 

annualized value over 51 years using a 

3-percent discount rate. EPA 

acknowledges that it is mixing estimates 

of benefits categories analyzed at 

different discount rates, but finds in this 


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case that using different discount rates 

is justified by the intergenerational 

nature of the social cost of carbon, for 

purposes of the sensitivity analysis 

based on a 7 percent discount rate to 

discount other benefit categories. 

Exhibit X–11 presents annualized 

benefits for existing units for the final 

rule and options considered. Included 

in the monetized benefits is EPA’s 

estimate that the final rule will reduce 

greenhouse gas emissions by 9.3 million 

tons of CO2-equivalent emissions over 

the 40-year compliance period for this 

analysis. Both the final rule and 

Proposal Option 4 result in a net 

reduction in CO2 emissions for existing 

units during the analysis period. 

Proposal Option 2 would result in a net 

increase in emissions and negative 

benefits for existing units. Using a 3 

percent discount rate, annualized 

benefits under the final rule for existing 

units are $12 million. Using a 7 percent 

discount rate, annualized benefits under 

final rule for existing units are $13 

million. 

EXHIBIT X–11—BENEFITS ASSOCIATED

WITH SOCIAL COST OF CARBON FOR

EXISTING UNITS FOR THE FINAL

RULE AND OTHER OPTIONS CONSIDERED

[In millions of 2011 dollars] a

Regulatory 

option b

3% 

Discount 

rate 

7% 

Discount 

rate 

Proposal Option 

4 .................... 12.4 13.4 

Final Rule—Existing Units .... 12.4 13.4 

Proposal Option 

2 .................... ¥1,643.1 ¥1,218.2 

aBenefits are based on the workgroup’s average social cost of carbon values using 3 

percent rate. 

9. Benefits for New Units 

In addition to the final rule and other 

options considered for existing units, 

EPA analyzed the benefits of the 

requirements for new units at existing 

facilities. EPA could not directly apply 

the benefits methodology used for IM&E 

(impingement mortality and 

entrainment) reductions at existing 

units to new units because it lacks 

facility-specific information to estimate 

regional impingement mortality and 

entrainment reductions for new units. 

Instead, EPA estimated benefits 

associated with IM&E reductions for the 

new unit requirements on the basis of 

the monetary benefits per million 

gallons per day from the analysis of 

existing units. EPA also estimated 

benefits associated with changes in GHG 

emissions as the result of the energy 

penalty associated with operating 

cooling towers using the social cost of 

carbon. Exhibit X–12 below presents the 

estimates of monetized benefits for the 

new unit requirements. Monetized 

benefits are ¥$0.2 million discounted at 

3 percent and ¥$0.1 million discounted 

at 7 percent. 

EXHIBIT X–12—NATIONAL BENEFITS UNDER THE FINAL RULE FOR NEW UNITS AT EXISTING FACILITIES

[In 2011 dollars] 

Regulatory option a

Monetized benefit categories 

Recreational 

fishing 

Commercial 

fishing Nonuse T&E species b Social cost of carbon c Total 

3% discount rate (millions 2011$) 

Final Rule—New Units ............................. 0.0 0.0 0.1 0.0 ¥0.3 ¥0.2 

7% discount rate (millions 2011$) 

Final Rule—New Units ............................. 0.0 0.0 0.0 0.0 ¥0.2 ¥0.1 

a IM&E Effects: Final Rule—New Units—entrainment requirements for all stand-alone facilities. 

bBenefits estimates for T&E species are restricted to recreational fishing benefits from increased catch of T&E species. They do not include 

benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species. cBenefits are based on the Work Group’s average social cost of carbon values using the 3 percent rate. 

10. National Monetized Benefits 

Quantifying and monetizing 

reductions in impingement mortality 

and entrainment attributable to the final 

rule and other options considered is 

challenging. National benefit estimates 

are subject to uncertainties inherent in 

valuation approaches used to assess the 

benefits categories (see Chapters 5, 6, 7, 

8, 9, and 12 of the BA). While EPA has 

no data to indicate that the results for 

each benefit category are atypical or 

unreasonable, some potentially 

significant benefit categories have not 

been fully monetized, and thus the 

national monetized benefits presented 

below likely underestimate total 

benefits. 

Exhibit X–13 presents EPA’s estimates 

of the partial monetized benefits from 

impingement mortality and entrainment 

reduction and the social cost of carbon 

for the final rule and other options 

considered. These monetized values 

represent use values from increased 

commercial and recreational catch, 

benefits transfer of recreational fishing 

benefits of threatened and endangered 

species, nonuse values associated with 

an increase in fish abundance (those 

fish that are not caught) in the Northeast 

and Mid-Atlantic benefit regions, and 

national benefits estimates associated 

with the social cost of carbon. For the 

final rule for existing and new units, 

partial estimated benefits from reducing 

impingement mortality and entrainment 

at existing units are $33 million using 

a 3 percent discount rate and $29 

million using a 7 percent discount rate. 

EPA was not able to fully monetize the 

benefits for the final rule. Thus, the 

estimates represent a conservative (i.e., 

low) estimate of total regulatory benefits 

of the final rule. 


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EXHIBIT X–13—SUMMARY OF NATIONAL BENEFITS FOR ALL REGULATED FACILITIES FOR THE FINAL RULE

Regulatory option a

Monetized benefit categories 

Recreational 

fishing 

Commercial 

fishing Nonuse T&E species b Social cost of 

carbon c Total 

3% discount rate (millions 2011$) 

Final Rule—Existing Units ....................... 18.2 0.9 1.0 0.4 12.4 33.0 

Final Rule—New Units ............................. 0.0 0.0 0.1 0.0 ¥0.3 ¥0.2 

Final Rule (Existing Units + New Units) .. 18.3 0.9 1.1 0.4 12.1 32.8 

7% discount rate (millions 2011$) 

Final Rule—Existing Units ....................... 13.5 0.7 0.8 0.3 13.4 28.7 

Final Rule—New Units ............................. 0.0 0.0 0.1 0.0 ¥0.2 ¥0.1 

Final Rule (Existing Units + New Units) .. 13.5 0.7 0.9 0.3 13.2 28.6 

a IM&E Effects: Final Rule–Existing Units = impingement mortality standards based on modified traveling screens for all facilities with flow 

greater than 2 mgd; Final Rule–New Units: Entrainment requirements for all stand-alone facilities where the turbine and condenser are newly 

built or replaced. bBenefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from T&E species. They do not include 

benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species. cBaseline does not include potential benefits associated with the social cost of carbon. 

Exhibit X–14 presents total monetized 

benefits for the final rule and other 

options EPA considered for existing 

units by benefit category using a 3 

percent discount rate. Annual 

monetized benefits are slightly higher 

for the final rule than Proposal Option 

4, and are negative for Proposal Option 

2. Including both existing and new 

units, annual monetized benefits are 

$32.8 million for the final rule, $30.8 

million for Proposal Option 4 and 

¥$1,542.8 million for Proposal Option 

2. 

EXHIBIT X–14—SUMMARY OF NATIONAL BENEFITS FOR ALL REGULATED FACILITIES FOR THE FINAL RULE AND OTHER

OPTIONS EPA CONSIDERED

[3% Discount rate] 

Monetized benefit categories 

Annual benefits by regulatory option a

(millions 2011$) 

Proposal 

option 4 

Final rule— 

existing units 

Proposal 

option 2 

Existing Units 

Recreational Fishing ........................................................................................................ 17.1 18.2 43.0 

Commercial Fishing ......................................................................................................... 0.9 0.9 3.9 

Nonuse ............................................................................................................................. 0.3 1.0 51.1 

T&E Species b .................................................................................................................. 0.4 0.4 0.7 

Social Cost of Carbon ..................................................................................................... 12.4 12.4 ¥1,641.3 

Total .......................................................................................................................... 31.0 33.0 ¥1,542.6 

Final Rule—New Units 

Total .......................................................................................................................... ¥0.2 ¥0.2 ¥0.2 

Existing and New Units 

Total .......................................................................................................................... 30.8 32.8 ¥1,542.8 

a IM&E Effects: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow greater 

than 50 mgd; Final Rule—Existing Units = impingement mortality limitations based on modified traveling screens for all facilities with flow greater 

than 2 mgd; Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 

mgd and entrainment mortality limitations commensurate with closed-cycle recirculating systems for all facilities with flow greater than 125 DIF; 

Final Rule—New Units: entrainment requirements for all stand-alone facilities. bBenefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from T&E species. They do not include 

benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species. 

EPA recognizes that its estimates of 

ecological and economic benefits 

projected to occur under regulation are 

affected by uncertainty at many levels. 

• Not all ecological goods and 

services affected by cooling water intake 

structures at regulated 316(b) facilities 

are modeled or monetized, suggesting 

that the total benefits of regulation may 

be underestimated. For example, 

potential increases in ecosystem 

stability that might occur as a result of 

regulation is not explicitly estimated 

nor monetized. 

• When particular ecological goods 

and services are monetized, data is not 

always available at the national level. 

For example, EPA was only able to 

estimate the nonuse benefits transfer for 

a species that represents less than one 


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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48415 

163U.S. EPA. 2011. Environmental and Economic 

Benefits Analysis for the Proposed Section 316(b) 

Existing Facilities Rule. 

164The costs and benefits presented in this 

section assume that facilities with impoundments 

will qualify as having closed-cycle recirculating 

systems in the baseline EPA also conducted the 

costs and impacts analysis where impoundments 

were not assumed to meet the definition of closedcycle recirculating. EPA did not find that this 

assumption would change EPA’s final rule decision; 

see DCN 12–2501. 

percent of adverse environmental 

impacts. 

• For the proposed rule, EPA used a 

habitat-based method to assess potential 

WTP for reducing fish mortality at CWIS 

based on the approximate area of habitat 

required to produce and support the 

number of organisms lost to 

impingement mortality and 

entrainment.163 EPA did not consider 

the habitat-based approach appropriate 

for primary analysis of benefits for the 

proposed rule, and did not include it in 

its analysis for the final rule. However, 

the results for the proposed rule 

illustrate that total benefits may be 

substantially greater than benefits 

estimated using the methodologies 

described in Section D. 

Because EPA was able to only 

partially monetize nonuse benefits using 

the benefits transfer approach, EPA 

expects that the actual benefits will be 

greater than those presented here. 

XI. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under section 3(f)(1) of E.O. 12866 (58 

FR 51735, October 4, 1993), this action 

is an economically significant regulatory 

action because it is likely to have an 

annual effect of $100 million or more on 

the economy. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget for review 

under E.O. 12866 and 13563 (76 FR 

3821, January 21, 2011), and any 

changes made in response to Office of 

Management and Budget 

recommendations have been 

documented in the docket for this 

action. 

In addition, EPA prepared an analysis 

of the costs and benefits associated with 

this action; this analysis is discussed in 

detail in the Chapter 8 of the EA. A copy 

of the EA is available in the docket for 

this action, and the analysis is briefly 

summarized here. 

Exhibit XI–1 (drawn from Chapter 8 of 

the EA) provides the results of the 

benefit-cost analysis.164 Placeholders for 

option-specific non-monetized benefits 

are represented by BP4 for Proposal 

Option 4, BFR for the final rule and BP2

for Proposal Option 2. While 

preliminary, and not yet reviewed by 

EPA’s Science Advisory Board, the 

preliminary results of EPA’s stated 

preference survey (see BA, Chapter 11) 

suggest that BP4, BFR, and BP2 have the 

potential to be significantly different 

from zero. EPA is therefore using 

placeholders for additional benefits that 

are not captured by its analysis of use 

benefits and the benefits transfer for 

nonuse benefits. However, EPA did not 

rely on the results of its stated 

preference survey in estimating the 

benefits of today’s rule. EPA has 

concluded that the benefits of the rule 

justify the costs. 

EPA also analyzed the employment 

effects of the final rule and other 

options considered in development of 

this rule. The results of that analysis are 

summarized in Section IX.E of this 

preamble and Chapter 9 of the EA. 

EXHIBIT XI–1—ANNUALIZED BENEFITS AND COSTS OF THE REGULATORY OPTIONS

[In millions, 2011 dollars] a

Option Total social 

costs b Benefits c

Proposal Option 4 ............................................................................................................................................ $251.8 $31.0 + BP4

Final Rule ......................................................................................................................................................... 274.9 32.8 + BFR

Proposal Option 2 ............................................................................................................................................ 3,643.2 ¥1,542.6 + BP2

aSocial costs and benefits were annualized over 51 years and discounted using 3 percent rate. 

bTotal social costs include compliance costs to facilities and government administrative costs. See EA Chapter 7. 

cBenefits include social cost of carbon from changes in greenhouse gas emissions due to the final rule. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule will be 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The supporting statement in 

EPA’s information collection request 

estimates the burden to permitted 

facilities; burden is defined at 5 CFR 

1320.3(b). The 60-day comment period 

will commence after publication of the 

draft ICR. The information collection 

requirements are not enforceable until 

they are approved by OMB. 

Today’s rule requires several distinct 

types of information collection as part of 

the NPDES permit application. In 

general, the information will be used to 

assist EPA in regulating environmental 

impacts, namely impingement mortality 

and entrainment, at cooling water intake 

structures and to identify how a cooling 

water intake structure at an existing 

facility or a new unit at an existing 

facility will meet the impingement 

mortality and entrainment 

requirements. Today’s rule also requires 

other reporting and recordkeeping 

requirements to demonstrate and 

document compliance with the 

requirements. Compliance with the 

applicable information collection 

requirements established under this 

final rule is mandatory (see §§ 122.21(r), 

125.136, 125.137, 125, and 138). 

EPA does not consider the specific 

data that will be collected under this 

final rule to be confidential business 

information. However, if a respondent 

does consider this information to be 

confidential, the respondent may 

request that such information be treated 

as confidential. All confidential data 

submitted to EPA will be handled in 

accordance with 40 CFR 122.7, 40 CFR 

part 2, and EPA’s Security Manual Part 

III, Chapter 9, dated August 9, 1976. 

This final rule modifies regulations at 

§ 122.21 to require each existing facility 

and new unit at an existing facility to 

prepare and submit information as part 

of the facility’s NPDES permit 

application. A detailed list of required 

data items is provided below. 

EPA estimates an average annual 

burden of 634,596 hours for the final 

rule’s information collection 

requirements. Of this total, EPA 

estimates that 1,068 regulated facilities 


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will incur an annual average burden of 

588 hours per respondent (for a total of 

627,666 burden hours). EPA estimates 

that Directors in 46 States and one 

territory with NPDES permitting 

authority, will incur an annual average 

burden for the review, oversight, and 

administration of the rule, of 6,930 

hours, or an annual average of 147 hours 

per permitting authority. Slight 

differences in calculations are due to 

rounding. 

The corresponding estimate of costs 

other than labor (labor and non-labor 

costs are included in the total cost of the 

final rule discussed in Section IX of this 

preamble) during the first three years 

after promulgation of the rule is an 

annual average of $8.5 million. Nonlabor costs include activities such as 

capital costs for sampling equipment, 

remote monitoring devices, laboratory 

services, photocopying, and the 

purchase of supplies. The burden and 

costs are for the information collection, 

reporting, and recordkeeping 

requirements for the three-year period 

beginning with the assumed effective 

date of this rule. Additional information 

collection requirements will occur after 

this initial three-year period as (1) 

existing facilities will continue to gather 

and submit required permit application 

materials and (2) new units at existing 

facilities commence operations and are 

issued permits. 

Information and studies to be 

submitted under this final rule (as 

required by §§ 122.21(r) and 125.95) by 

existing facilities and new units at 

existing facilities are listed below. For 

more information, see Section VIII in 

the preamble. 

• Source Water Physical Data 

(§ 122.21(r)(2)) 

• Cooling Water Intake Structure Data 

(§ 122.21(r)(3)) 

• Source Water Baseline Biological 

Characterization Data (§ 122.21(r)(4)) 

• Cooling Water System Data 

(§ 122.21(r)(5)) 

• Chosen Method of Compliance 

With Impingement Mortality Standards 

(§ 122.21(r)(6)) 

• Performance Studies (§ 122.21(r)(7)) 

• Operational Status (§ 122.21(r)(8)) 

• Entrainment Characterization Study 

(§ 122.21(r)(9)) 

• Comprehensive Technical 

Feasibility and Cost Evaluation Study 

(§ 122.21(r)(10)) 

• Benefits Valuation Study 

(§ 122.21(r)(11)) 

• Non-Water Quality and Other 

Environmental Impacts Study 

(§ 122.21(r)(12)) 

In addition to the information 

requirements of the permit application, 

NPDES permits normally specify 

monitoring and reporting requirements 

to be met by the permitted entity. 

Existing facilities and new units at 

existing facilities are required to 

perform monitoring as determined by 

the requirements in § 125.94 and in 

accordance with §§ 125.96 and 125.97. 

Finally, in accordance with 

§ 125.95(e), facilities are required to 

maintain records of all submissions that 

are part of its permit application for a 

minimum of five years. If the Director 

approves a request for reduced permit 

application studies under § 125.95(a) or 

§ 125.98(g), the facility must keep 

records of all submissions that are part 

of a previous permit application for an 

additional five years. Also, facilities 

must keep records of all submissions 

that are part of the permit reporting 

requirements for a period of at least five 

years from the date of permit issuance, 

in accordance with § 125.97(d). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

1. Definition of Small Entities and 

Estimation of the Number of Small 

Entities Subject to Today’s Final 

Regulation 

For EPA’s assessment of the impact of 

today’s final rule on small entities, 

small entity is defined as either (1) a 

small business as defined by SBA 

(Small Business Administration) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of fewer than 50,000; or (3) 

a small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. Federal or State 

entities owning regulated facilities are 

not small entities. 

EPA performed this assessment 

separately for the two classes of 

facilities and their owner entities— 

electric generators and manufacturers— 

that are subject to today’s rule. 

a. Electric Generators 

EPA followed the SBA criteria for 

identifying small, non-government 

entities in the electric power industry, 

as follows: 

• For non-government entities with 

electric power generation as a primary 

business, small entities were designated 

using employment size thresholds 

specific to each 6-digit NAICS code. 

• For government entities other than 

Federal or State governments, small 

entities are those with a population of 

fewer than 50,000. 

• For entities with a primary business 

other than electric power generation, the 

relevant size criteria are based on 

revenue or number of employees by 

NAICS sector (see Exhibit XI–2). 

EXHIBIT XI–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN ELECTRIC GENERATORS

WITH A PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION

NAICS code NAICS description SBA size standard 

212111 ....................... Bituminous Coal and Lignite Surface Mining ......................................................................... 500 employees. 

221210 ....................... Natural Gas Distribution ......................................................................................................... 500 employees. 

331110 ....................... Iron and Steel Mills and Ferroalloy Manufacturing ................................................................ 1,000 employees. 

331315 ....................... Aluminum Sheet, Plate, and Foil Manufacturing ................................................................... 750 employees. 

333611 ....................... Turbine and Turbine Generator Set Units Manufacturing ..................................................... 1,000 employees. 

488320 ....................... Marine Cargo Handling .......................................................................................................... $35.5 million in revenue. 

491110 ....................... Postal Service ........................................................................................................................ $7 million in revenue. 

522110 ....................... Commercial Banking .............................................................................................................. $175 million in assets. 

523910 ....................... Miscellaneous Intermediation ................................................................................................. $7 million in revenue. 

524126 ....................... Direct Property and Casualty Insurance Carriers .................................................................. 1,500 employees. 


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EXHIBIT XI–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN ELECTRIC GENERATORS

WITH A PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION—Continued 

NAICS code NAICS description SBA size standard 

525910 ....................... Open-End Investment Funds ................................................................................................. $7 million in revenue. 

525990 ....................... Other Financial Vehicles ........................................................................................................ $7 million in revenue. 

541990 ....................... All Other Professional, Scientific, and Technical Services .................................................... $14 million in revenue. 

551112 ....................... Offices of Other Holding Companies ..................................................................................... $7 million in revenue. 

562212 ....................... Solid Waste Landfill ............................................................................................................... $35.5 million in revenue. 

562219 ....................... Other Nonhazardous Waste Treatment and Disposal ........................................................... $35.5 million in revenue. 

562920 ....................... Materials Recovery Facilities ................................................................................................. $19 million in revenue. 

611310 ....................... Colleges, Universities, and Professional Schools ................................................................. $25.5 million in revenue. 

EPA conducted this analysis for the 

same set of parent entities it analyzed in 

the general entity-level cost-to-revenue 

analysis discussed in Section IX.D. To 

determine whether these are small 

entities on the basis of the size criteria 

outlined above, EPA compared the 

relevant measure for the identified 

parent entities to the appropriate SBA 

size criterion. EPA conducted this 

analysis using (1) facility-level weights 

without using entity-level weights, and 

(2) entity-level weights without using 

facility-level weights (for information on 

these two weighting approaches, see 

Appendix H of the EA). 

EPA estimates that between 31 and 52 

small entities own electric generators 

that are subject to the rule. They 

represent approximately 25 to 32 

percent of entities that own electric 

generators (see Exhibit XI–3). 

EXHIBIT XI–3—NUMBER OF ENTITIES THAT OWN ELECTRIC GENERATORS, BY OWNERSHIP TYPE

Ownership type a

Using facility-level weights Using entity-level weights b

Total Small % Small Total Small % Small 

Cooperative .............................................. 13 11 84.6 21 18 85.7 

Federal ..................................................... 1 0 0.0 1 0 0.0 

Investor-owned ......................................... 57 6 10.5 60 7 11.7 

Municipality .............................................. 19 7 36.8 38 19 50.0 

Nonutility .................................................. 26 7 26.9 30 8 26.7 

Other Political Subdivision ....................... 4 0 0.0 6 0 0.0 

State ......................................................... 3 0 0.0 3 0 0.0 

All Entity Types ........................................ 123 31 25.2 159 52 32.7 

aState and Federal entities are considered large. 

b In addition to the 52 small parent entities on an unweighted basis, one additional entity is an ‘‘other political subdivision entity’’ for a total of 

53. This entity owns only implicitly analyzed facilities; consequently, there is no explicitly analyzed entity in the other political subdivision ownership category to represent this implicitly analyzed small parent entity. As the result, weighted entity counts do not include one small other political 

subdivision entity. 

b. Manufacturers 

EPA also used the SBA criteria for 

identifying small, non-government 

entities in the manufacturing sector. 

Exhibit XI–4 lists the SBA size 

threshold guidelines for entities that 

own manufacturers. 

EXHIBIT XI–4—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN MANUFACTURERS

NAICS code NAICS description SBA size standard 

111930 .............. Sugarcane Farming .............................................................................................................. $0.75 million in revenue. 

113110 .............. Timber Tract Operations ...................................................................................................... $7 million in revenue. 

211111 .............. Crude Petroleum and Natural Gas Extraction ..................................................................... 500 employees. 

212210 .............. Iron Ore Mining .................................................................................................................... 500 employees. 

212391 .............. Potash, Soda, and Borate Mineral Mining ........................................................................... 500 employees. 

221122 .............. Electric Power Distribution ................................................................................................... 4,000,000 MWh of electric generation. 

311221 .............. Wet Corn Milling ................................................................................................................... 750 employees. 

311314 .............. Cane Sugar Manufacturing .................................................................................................. 750 employees. 

311313 .............. Beet Sugar Manufacturing ................................................................................................... 750 employees. 

311942 .............. Spice and Extract Manufacturing ......................................................................................... 500 employees. 

313210 .............. Broadwoven Fabric Mills ...................................................................................................... 1,000 employees. 

321113 .............. Sawmills ............................................................................................................................... 500 employees. 

322121 .............. Paper (except Newsprint) Mills ............................................................................................ 750 employees. 

322122 .............. Newsprint Mills ..................................................................................................................... 750 employees. 

322130 .............. Paperboard Mills .................................................................................................................. 750 employees. 

322211 .............. Corrugated and Solid Fiber Box Manufacturing .................................................................. 500 employees. 

322220 .............. Paper Bag and Coated and Treated Paper Manufacturing ................................................. 500 employees. 

322291 .............. Sanitary Paper Product Manufacturing ................................................................................ 500 employees. 

324110 .............. Petroleum Refineries ............................................................................................................ 1,500 employees. 


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EXHIBIT XI–4—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN MANUFACTURERS— 

Continued 

NAICS code NAICS description SBA size standard 

324191 .............. Petroleum Lubricating Oil and Grease Manufacturing ......................................................... 500 employees. 

325120 .............. Industrial Gas Manufacturing ............................................................................................... 1,000 employees. 

325180 .............. Other Basic Inorganic Chemical Manufacturing .................................................................. 1,000 employees. 

325199 .............. All Other Basic Organic Chemical Manufacturing ............................................................... 1,000 employees. 

325211 .............. Plastics Material and Resin Manufacturing .......................................................................... 750 employees. 

325311 .............. Nitrogenous Fertilizer Manufacturing ................................................................................... 1,000 employees. 

325320 .............. Pesticide and Other Agricultural Chemical Manufacturing .................................................. 500 employees. 

325412 .............. Pharmaceutical Preparation Manufacturing ......................................................................... 750 employees. 

325510 .............. Paint and Coating Manufacturing ......................................................................................... 500 employees. 

325992 .............. Photographic Film, Paper, Plate and Chemical Manufacturing ........................................... 500 employees. 

325998 .............. All Other Miscellaneous Chemical Product and Preparation Manufacturing ....................... 500 employees.

331110 .............. Iron and Steel Mills and Ferroalloy Manufacturing .............................................................. 1,000 employees. 

331210 .............. Iron and Steel Pipe and Tube Manufacturing from Purchased Steel .................................. 1,000 employees. 

331221 .............. Rolled Steel Shape Manufacturing ...................................................................................... 1,000 employees. 

331222 .............. Steel Wire Drawing .............................................................................................................. 1,000 employees. 

331313 .............. Alumina Refining and Primary Aluminum Production .......................................................... 1,000 employees. 

331315 .............. Aluminum Sheet, Plate and Foil Manufacturing .................................................................. 750 employees. 

331410 .............. Nonferrous Metal (except Aluminum) Smelting and Refining .............................................. 1,000 employees. 

332312 .............. Fabricated Structural Metal Manufacturing .......................................................................... 500 employees. 

337910 .............. Mattress Manufacturing ........................................................................................................ 500 employees. 

339999 .............. All Other Miscellaneous Manufacturing ............................................................................... 500 employees. 

423310 .............. Lumber, Plywood, Millwork, and Wood Panel Merchant Wholesalers ................................ 100 employees. 

423930 .............. Recyclable Material Merchant Wholesalers ......................................................................... 100 employees. 

424510 .............. Grain and Field Bean Merchant Wholesalers ...................................................................... 100 employees. 

424690 .............. Other Chemical and Allied Products Merchant Wholesalers ............................................... 100 employees. 

424710 .............. Petroleum Bulk Stations and Terminals ............................................................................... 100 employees. 

447190 .............. Other Gasoline Stations ....................................................................................................... $14 million in revenue. 

522220 .............. Sales Financing .................................................................................................................... $7 million in revenue. 

523910 .............. Miscellaneous Intermediation ............................................................................................... $7 million in revenue. 

523930 .............. Investment Advice ................................................................................................................ $7 million in revenue. 

524126 .............. Direct Property and Casualty Insurance Carriers ................................................................ 1,500 employees. 

525990 .............. Other Financial Vehicles ...................................................................................................... $7 million in revenue. 

531110 .............. Lessors of Residential Buildings and Dwellings .................................................................. $25 million in revenue. 

551112 .............. Offices of Other Holding Companies ................................................................................... $7 million in revenue. 

561110 .............. Office Administrative Services ............................................................................................. $7 million in revenue. 

Similar to the analysis conducted for 

electric generators, EPA conducted this 

analysis for the same set of parent 

entities as analyzed in the general, 

entity-level, cost-to-revenue analysis 

discussed in Section IX.D. To determine 

which entities are small, EPA compared 

the relevant measure for the identified 

parent entities to the appropriate SBA 

size criterion. EPA used two sampleweighting schemes in this analysis; 

these provide a range of counts of small 

entities that own regulated facilities and 

the number of regulated facilities that 

they own that will incur costs under the 

final rule. EPA does not find either of 

these sample-weighting schemes to be 

superior to the other in the quality of 

the resulting estimates of small entity 

counts and occurrence of impacts. The 

different weighting approaches reflect 

the fact that EPA used sample facilities 

for the impact analysis and lacks precise 

information on the profile of ownership 

of the total population of regulated 

manufacturers facilities—in terms of the 

number of small entities owning 

regulated facilities and the number of 

regulated facilities that any small entity 

would own. EPA developed the 

weighting schemes using alternative 

bounding assumptions about the profile 

of ownership of regulated facilities by 

small entities. The weighting schemes 

provide lower and upper bound 

estimates of the numbers of small 

entities, and the numbers of regulated 

facilities that they own, and 

accordingly, the number of small 

entities in each of the cost-to-revenue 

impact categories (for information on 

the weighting schemes, see Appendix H 

of the EA). 

From this analysis, EPA estimates that 

17 to 52 small entities own regulated 

facilities in the six Primary 

Manufacturing Industries, representing 

approximately 16 percent of all entities 

that own regulated facilities in these 

industries (see Exhibit XI–5).The 

presence of small entities varies by 

industry sector. 

EXHIBIT XI–5—NUMBER OF SMALL ENTITIES THAT OWN REGULATED FACILITIES, BY INDUSTRY

Industry 

Lower-bound estimate of number of entities that own regulated facilities Upper-bound estimate of number of entities that own regulated facilities 

Total Small % Small Total Small % Small 

Aluminum ......................................................................... 4 2 50.0 11 4 40.6 

Chemicals and Allied Products ........................................ 30 5 16.7 121 21 17.7 

Food and Kindred Products ............................................. 6 0 0.0 20 0 0.0 

Paper and Allied Products ............................................... 37 7 18.9 104 23 21.8 

Petroleum Refining .......................................................... 16 2 12.5 25 2 8.4 


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EXHIBIT XI–5—NUMBER OF SMALL ENTITIES THAT OWN REGULATED FACILITIES, BY INDUSTRY—Continued 

Industry 

Lower-bound estimate of number of entities that own regulated facilities Upper-bound estimate of number of entities that own regulated facilities 

Total Small % Small Total Small % Small 

Steel ................................................................................. 13 1 7.7 32 2 5.2 

Multiple Industries a .......................................................... 4 0 0.0 14 0 0.0 

Primary Manufacturing Industries b—Total ............... 110 17 15.5 327 52 16.0 

aThese are small entities that own regulated facilities from multiple industries. 

bEPA did not compile comparable information for Other Industries facilities and the entities that own them because it did not have a statistically valid sample of facilities from which to develop such estimates. 

c. Total Number of Small Entities That 

Own Regulated Facilities 

EPA estimates that between 48 and 

104 small entities own regulated 

facilities in the electric power industry 

and six primary manufacturing 

industries together. 

2. Statement of Basis 

As described above, EPA began the 

small entity impact assessment by first 

estimating the number of small entities 

in the two industry segments subject to 

the final rule: Electric generators and 

manufacturers. EPA next assessed 

whether these small entities would be 

expected to incur costs that constitute a 

significant impact and, finally, assessed 

whether those entities represent a 

substantial number of small entities. 

EPA summed annualized after-tax 

compliance costs for regulated facilities 

that are assumed to be owned by a given 

small entity and calculated the costs as 

a percentage of entity revenue (cost-torevenue test). EPA compared the 

resulting percentages to impact criteria 

of 1 and 3 percent of revenue. EPA 

assumed that small entities estimated to 

incur costs below 1 percent of revenue 

will not face significant economic 

impacts, while small entities with costs 

of at least 1 percent of revenue have a 

chance of facing economic impacts. EPA 

assumed that entities incurring costs of 

at least 3 percent of revenue have a 

higher likelihood of economic impacts. 

For both electric generators and 

manufacturers, EPA used sampleweighting approaches that provide a 

range of estimates of the numbers of 

small entities and regulated facilities 

that they own. 

Exhibit XI–6 summarizes the 

Regulatory Flexibility Act analysis 

results under both weighting 

approaches for each regulated facilities 

segment. Overall, the RFA analysis for 

electric generators found that no small 

entities would potentially incur a 

significant impact under the final rule. 

Specifically, for electric generators, EPA 

estimates that zero to three small 

entities will incur costs exceeding 1 

percent of revenue, while no small 

entity will incur costs exceeding 3 

percent of revenue. Following EPA’s 

guidance on conducting RFA analyses, 

the number of small entities above the 

threshold as a percent of all small 

entities subject to the rule are zero to 10 

percent at the 1 percent of revenue 

threshold, and zero percent at the 3 

percent of revenue threshold. 

The findings for manufacturers are 

comparable. Specifically, EPA estimates 

that three to four small parent entities 

will incur costs exceeding 1 percent of 

revenue, and zero to one small parent 

entity will incur costs exceeding 3 

percent of revenue. The associated 

percentages of small entities subject to 

the final rule are 8 percent to 18 percent 

at the 1 percent threshold, and zero 

percent to 6 percent at the 3 percent 

threshold. 

Combining the electric generators and 

manufacturers segments, EPA estimates 

that three to seven small entities will 

incur costs exceeding 1 percent of 

revenue, while zero to one small entity 

will incur costs exceeding 3 percent of 

revenue. The corresponding percentages 

of small entities are 4 to 13 percent at 

the 1 percent threshold, and zero to 2 

percent at the 3 percent threshold. 

In summary, under the final rule, EPA 

estimates that a small number of small 

parent entities will incur a potentially 

significant cost impact in the individual 

regulated industry segments, and 

overall, for both segments. The 

maximum number of small entities 

estimated to incur costs exceeding 1 

percent is seven, overall, with three of 

these small entities in the electric 

generators segment and four in the 

manufacturers segment. The maximum 

number of small entities with costs 

exceeding 3 percent is one, overall, with 

no small entities in the electric 

generators segment and one small entity 

in the manufacturers segments. In each 

case, the maximum value reflects the 

high end of an uncertainty range that is 

based on different sample weighting 

approaches. EPA judges that values in 

the interior of these ranges represent 

more reasonable estimates of the 

number of small entities incurring 

significant impacts. The estimated 

numbers of entities with significant 

impacts also represent small 

percentages of the estimated number of 

small entities, overall, and in the 

individual segments. The maximum 

percentage values at the 1 percent of 

revenue threshold are 13 percent, 

overall, 10 percent for electric 

generators, and 18 percent for 

manufacturers. At the 3 percent 

threshold, the maximum percentage 

values are 2 percent, overall, zero 

percent for electric generators, and 6 

percent for manufacturers. Again, these 

values reflect the high end of an 

uncertainty range. 

In view of these very modest impacts, 

EPA judges that the final rule is not 

consequential in terms of potential 

impacts for small entities. 


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165This factor in potential underestimation of 

benefits is separate from other considerations that 

likely lead to benefits underestimation, as described 

in this section and in the EA and BA reports. 

166Both cost and benefit values were annualized 

over 51 years and discounted at 3 percent. Values 

include costs and benefits estimated for new units. 

EPA generated partial estimates of nonuse benefits 

for resource changes for a species that represents 

less than one percent of adverse environmental 

impacts. 

EXHIBIT XI–6—ESTIMATED COST-TO-REVENUE IMPACT FOR SMALL ENTITIES THAT OWN FACILITIES SUBJECT TO THE

REGULATION

Regulated Segment 

Cost impact category 

Cost ≥1% of revenue a Cost ≥3% of revenue a

Number of small 

entities 

% of small 

regulated 

entities b

Number of small 

entities c

% of small 

regulated 

entities b

Electric Generators .............................................................................. 0 to 3 0% to 10% 0 0% 

Manufacturers d .................................................................................... 3 to 4 8% to 18% 0 to 1 0% to 6% 

Electric Generators and Manufacturers d ............................................. 3 to 7 4% to 13% 0 to 1 0% to 2% 

aFor both electric generators and manufacturers, EPA used sample-weighting approaches that provide a range of estimates of the numbers of 

small entities and regulated facilities they own (see Section VII(D)(a)(iv) for manufactures and see Section VII(D)(b)(1)(b) for electric generator 

weighting approaches). bPercentage of small entities incurring a cost-to-revenue impact involves range estimates in both the numerator (number of affected entities) 

and denominator (number of regulated entities). cEntities with cost-to-revenue ratios of at least 3 percent are included in the number of entities with cost-to-revenue such ratios of at least 1 

percent. dEntity counts used in these calculations exclude manufacturers in other industries. EPA estimated that one small parent entity that owns regulated facilities in other industries would incur costs exceeding 1 percent of revenue. 

3. Certification Statement 

Given these findings of very small 

absolute numbers of small entities 

estimated to incur significant impacts 

under the final rule, and low 

percentages of estimated small entities 

incurring impacts, I certify that the final 

rule will not have ‘‘a significant impact 

on a substantial number of small 

entities’’ (no SISNOSE), overall and by 

individual industry segment. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1531– 

1538, requires Federal agencies, unless 

otherwise prohibited by law, to assess 

the effects of their regulatory actions on 

State, local, and Tribal governments and 

the private sector. Today’s rule contains 

a Federal mandate that may result in 

expenditures by State, local, and Tribal 

governments, in the aggregate, or the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. Accordingly, under Unfunded 

Mandates Reform Act section 202, EPA 

has prepared a written statement, which 

follows below (see Chapter 11 of the 

EA). 

1. Summary of Written Statement 

a. Authorizing Legislation 

Today’s rule is issued under the 

authority of CWA sections 101, 301, 

304, 306, 308, 316, 401, 402, 501, and 

510, (33 U.S.C. 1251, 1311, 1314, 1316, 

1318, 1326, 1341, 1342, 1361, and 

1370). For detailed information on the 

legal authority of this rule, see Section 

III of this preamble. 

b. Benefit-Cost Analysis 

As described above, the costs, benefits 

and economic impacts reported in this 

section may be underestimated due to 

EPA’s assumption that facilities with 

impoundments will qualify as having 

closed-cycle recirculating systems in the 

baseline and thus, unless additional 

controls are required to protect listed 

species, will incur no technologyrelated costs. Likewise, for this analysis, 

because these facilities are assumed not 

to install compliance technology, EPA 

also assumed they would achieve no 

benefits. Accordingly, the benefits 

reported in this section may be 

underestimated, based on the 

assumption of no technology 

installation for facilities with 

impoundments.165 The existing and 

new unit provisions of today’s rule are 

expected to have total annualized pretax (social) costs of $274.9 million. 

These costs include direct costs 

incurred by facilities and 

implementation costs incurred by 

Federal, State, and local governments. 

The monetized use and nonuse benefits 

of the final rule, accounting for the 

existing and new unit provisions, are 

estimated to be $32.8 million.166 EPA 

notes that these differences are based on 

a comparison of a partial measure of 

benefits with a more complete measure 

of costs; therefore, the results must be 

interpreted with caution. For a more 

detailed comparison of the costs and 

benefits of the final rule, see Chapter 8 

of the EA. 

EPA notes that States may be able to 

use existing sources of financial 

assistance to revise and implement 

today’s rule. CWA section 106 

authorizes EPA to award grants to 

States, Tribes, intertribal consortia, and 

interstate agencies for administering 

programs for the prevention, reduction, 

and elimination of water pollution. 

These grants may be used for various 

activities to develop and carry out a 

water pollution control program, 

including permitting, monitoring, and 

enforcement. Thus, State and Tribal 

NPDES permit programs represent one 

type of State program that can be funded 

by CWA section 106 grants. 

c. Summary of State, Local, and Tribal 

Government Input 

EPA consulted with State 

governments and representatives of 

local governments in developing the 

rule. The outreach activities are 

discussed in Section III.A.3 of the 

preamble to the proposed rule (see 76 

FR 22268, April 20, 2011) and Chapter 

2 of the TDD. EPA has also conducted 

additional outreach since the proposed 

rule, including several conference calls 

with the Association of Clean Water 

Administrators (including numerous 

states) and small business 

representatives (including some local 

government officials). EPA also 

combined its efforts and collected input 

from State and local government entities 

during development of the proposed 

Effluent Limitations Guidelines and 

Standards for the Steam Electric Power 

Generating Point Source Category, 

which shares many of the same affected 

facilities as today’s final rule; see 78 FR 

34530 (June 7, 2013) for more 

information. State and local officials 

attended numerous site visits with 


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167Excluding Federal government entities and 

regulated facilities they own. 

EPA’s staff, enabling EPA to gather their 

input; see DCNs 10–6510, 10–6518, 10– 

6520, 10–6521, 10–6523 and 10–6524. 

EPA also responded to requests for 

information from multiple State and 

local governments. EPA also attended 

conferences and participated in 

workgroups (such as NARUC’s 2013 

Winter Committee Meetings) where 

additional information about State and 

local government interests were 

presented. Historically, EPA has also 

conducted a great deal of outreach in 

developing the previous 316(b) 

regulations over the past decade; for 

example, see the Phase I final preamble 

(66 FR 65331, December 18, 2001), the 

Phase II final preamble (69 FR 41677, 

July 9, 2004), and the Phase III final 

preamble (71 FR 35037, June 16, 2006). 

d. Regulatory Option Selected 

EPA considered and analyzed several 

regulatory options to determine the best 

technology available for minimizing 

adverse environmental impact. These 

regulatory options are discussed in 

Section VI of this preamble. These 

options included a range of technologybased approaches, from impingement 

mortality technology at all facilities 

with a DIF of greater than 50 mgd, to 

requiring additional impingement 

mortality controls and intake flow 

commensurate with closed-cycle 

cooling for all facilities. As discussed in 

detail in Section VI, EPA did not select 

options exclusively because they are the 

most cost-effective among the options 

that fulfill the requirements of section 

316(b). EPA selected the final rule 

because it meets the requirement of 

CWA section 316(b) that the location, 

design, construction, and capacity of 

cooling water intake structures reflect 

the best technology available for 

minimizing adverse environmental 

impacts. In addition, EPA has 

determined that the benefits of the final 

rule justify the costs, taking into account 

quantified and qualitative benefits and 

costs. EPA selected a flexible approach 

for the final rule from among the 

options considered; it allows 

consideration of costs and benefits on a 

site-specific basis in determining BTA 

for reducing entrainment and has 

flexible requirements for reducing 

impingement mortality. 

2. Impact of Compliance Requirements 

on Small Governments 

This rule is not subject to Unfunded 

Mandates Reform Act section 203 

requirements because it contains no 

regulatory requirements that could 

significantly or uniquely affect small 

governments (i.e., governments with a 

population of fewer than 50,000). For its 

assessment of the impact of compliance 

requirements on small governments, 

EPA compared the estimated total costs 

and costs per facility that small 

governments would incur with the costs 

that large governments would incur. 

EPA also compared costs for regulated 

facilities owned by small-government 

entities with costs of regulated facilities 

owned by non-government entities. The 

Agency evaluated costs per facility on 

the basis of both average and maximum 

annualized cost. The costs for facilities 

owned by small government entities are 

less than those estimated for facilities 

owned by large government entities, or 

owned by small or large nongovernment entities. EPA interprets 

these findings to indicate that the final 

rule will not uniquely or 

disproportionately affect small 

governments. 

Because no manufacturer is 

government-owned, EPA conducted this 

analysis for electric generators only. 

a. Government-Owned Electric 

Generators by Ownership and EntitySize Category 

Exhibit XI–7 provides an estimate of 

the number of non-Federal government 

entities that own electric generators, by 

ownership type and size of government 

entity. As presented in Exhibit XI–7, 

large government entities own 45 

electric generators, and small 

government entities own 20 electric 

generators. Of the 65 facilities owned by 

government entities, 48 are owned by 

municipalities, six are owned by States 

and 11 are owned by other political 

subdivisions. Tribal governments own 

no regulated facilities. 

EXHIBIT XI–7—NUMBER OF GOVERNMENT-OWNED ELECTRIC GENERATORS, BY SIZE OF GOVERNMENT a

Entity type Large Small Total 

Municipality ............. 29 19 48 

State Government .. 6 0 6 

Other Political Subdivision ................ 10 1 11 

Tribal Government .. 0 0 0 

Total .................... 45 20 65 

a Counts of explicitly and implicitly analyzed 

electric generators; these are not weighted estimates. For details, see EA Appendix H. 

b. Compliance Costs for Electric 

Generators Owned by Small 

Government Entities 

Exhibit XI–8 presents total, average 

annualized compliance costs, and 

maximum annualized compliance costs 

of the final rule for regulated facilities 

owned by government (State, local, and 

Tribal governments) and nongovernment entities by entity-size 

category. For the existing unit provision 

of the final rule, EPA estimates that 

small government entities will incur a 

total annualized cost of $2.6 million, 

compared to the total cost of $8.6 

million incurred by large government 

entities and $8.5 million incurred by 

small private entities. On a per facility 

basis, EPA estimates that a facility 

owned by a small government entity 

will on average incur a cost of $0.2 

million with a maximum of $0.5 

million. The Agency estimates that for 

a facility owned by large government 

entity, the average cost of the existing 

provision of the final rule will be $0.2 

million per facility with a maximum of 

$1.3 million, while for a facility owned 

by a small private entity the average cost 

will be $0.2 million per facility with a 

maximum of $1.4 million.167 Again, 

overall, EPA concludes that the 

compliance requirements of the existing 

unit provision of today’s rule do not 

significantly or uniquely affect small 

governments in comparison to either 

large governments or small private 

entities. For details of this analysis, see 

the EA Chapter 11. 

EXHIBIT XI–8—ELECTRIC GENERATORS AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE

[In millions, 2011 dollars] 

Ownership type Entity size 

Number of 

facilities 

(weighted) a

Total 

compliance 

costs 

Average cost 

per facility d

Maximum 

facility 

cost e

Final Rule: 

Government (excluding Federal) ............................... Small ............... 16 $2 .6 $0.2 $0.5 


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168Federal government permitting authorities 

will also incur costs to administer the rule. As 

stated earlier in this section, consistent with UMRA 

analysis requirements, EPA did not account for 

costs to Federal entities in the UMRA analysis. 

169This estimate does not include costs to 

administer the new unit provision of the final rule; 

however, EPA expects these costs to be small. 

EXHIBIT XI–8—ELECTRIC GENERATORS AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE—Continued 

[In millions, 2011 dollars] 

Ownership type Entity size 

Number of 

facilities 

(weighted) a

Total 

compliance 

costs 

Average cost 

per facility d

Maximum 

facility 

cost e

Large ............... 37 8 .6 0.2 1.3 

Private b ..................................................................... Small ............... 53 8 .5 0.2 1.4 

Large ............... 423 184 .3 0.4 5.0 

All Facilities c ..................................................................... ......................... 544 220 0.4 5.0 

aFacility counts are weighted estimates and differ from the values reported in Exhibit XI–7, which are un-weighted counts and reflect information for both explicitly and implicitly analyzed electric generators. Sample-weighted values are reported in this table because costs were developed only for the explicitly analyzed electric generators. For details on development of sample weights, see EA Appendix H. bFacility counts and cost estimates reported for the private sector include facilities owned by rural electric cooperatives. 

cFacility counts and cost estimates reported for All Facilities include facilities owned by the Federal government and costs estimated for these 

facilities. dEPA calculated average cost per facility using the total number of regulated facilities owned by entities in a given ownership category. e Reflects maximum of un-weighted costs to explicitly analyzed facilities only. 

3. Administrative Costs 

Section 316(b) requirements are 

implemented through the NPDES permit 

program. EPA estimates that 46 States 

and one territory—the relevant 

jurisdictions with NPDES permitting 

authority under CWA section 402(b)— 

will incur costs to administer the final 

rule.168 EPA estimates that States and 

territories will incur costs for 

implementing the requirements of 

today’s rule in four activity categories: 

(1) Start-up activities to learn and 

understand the requirements of today’s 

regulation and to implement 

administrative structures and 

procedures for administering the 

regulation; (2) initial permit issuance 

activities; (3) annual activities, 

including monitoring, reporting and 

recordkeeping; and (4) non-annually 

recurring permit-related activities. 

Exhibit XI–9 presents total annualized 

costs for each type of administrative 

activity. EPA estimates that State and 

local government entities will incur 

annualized costs of $0.9 million to 

administer the final rule for electric 

generators and manufacturers. 

Monitoring, reporting and 

recordkeeping costs compose the largest 

share of administrative costs. 

EXHIBIT XI–9—ANNUALIZED GOVERNMENT ADMINISTRATIVE COSTS

[In millions, 2011 dollars] 

Activity 

Cost 

Total Electric 

generators Manufacturers 

Start-up Activities ......................................................................................................................... NA NA a $0.0

Initial Permit Issuance Activities .................................................................................................. $0.2 $0.2 0.4 

Annual Monitoring, Reporting and Recordkeeping Activities ...................................................... 0.2 0.2 0.5 

Non-Annually Recurring Permit-Related Activities b .................................................................... b 0.0 0.0 0.1 

Total ...................................................................................................................................... 0.5 0.4 0.9 

a Costs associated with start-up activities are estimated for both electric generators and manufacturers; these costs are less than $20,000. 

b Costs are less than $50,000. 

E. Executive Order 13132: Federalism 

Under E.O. 13132, EPA may not issue 

an action that has federalism 

implications, that imposes substantial 

direct compliance costs on the State and 

local governments, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the final rule. 

The final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

E.O. 13132.This final rule would not 

alter the basic State-Federal scheme 

established in the CWA under which 

EPA authorizes States to carry out the 

NPDES permitting program. Prior to this 

rule, authorized States were required to 

issue NPDES permits including 

requirements for CWISs on a case-bycase BPJ basis. 40 CFR 125.90(b). EPA 

expects that today’s rule will have little 

to no effect on the relationship between, 

or the distribution of power and 

responsibilities among, the Federal and 

State governments. 

EPA estimates an average annual 

burden of $0.9 million, for State and 

local governments to collectively 

administer the existing unit provision of 

the final rule.169 The rule will also 

impose a compliance cost burden on 

State and local governments, if those 

government entities own facilities that 

are subject to today’s rule. EPA has 

identified 554 regulated facilities that 

are owned by State or local government 

entities; the Agency estimates that 

under the existing unit provision of the 

final rule these facilities will incur an 

average annual compliance cost of 


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170Cost values were calculated over the 51-year 

analysis period used for analysis of social costs, 

discounted and annualized using a rate of 7 percent 

(see EA Chapters 7 and 11). 

approximately $0.2 million per 

facility.170 Because this rule does not 

have federalism implications, the 

requirements of section 6 of E.O. 13132 

do not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in E.O. 13175 

(65 FR 67249, November 9, 2000). It 

would not have substantial direct effects 

on Tribal governments, on the 

relationship between the Federal 

government and the Tribes, or the 

distribution of power and 

responsibilities between the Federal 

government and Tribes as specified in 

E.O. 13175. The national cooling water 

intake structure standards would be 

implemented through permits issued 

under the NPDES program. No Tribal 

governments are authorized pursuant to 

CWA section 402(b) to implement the 

NPDES program. In addition, EPA’s 

analyses show that Tribal governments 

own no facilities subject to today’s rule; 

thus, this rule does not affect Tribes in 

any way now or in the foreseeable 

future. Thus, E.O. 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to E.O. 

13045 because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. This rule 

establishes requirements for cooling 

water intake structures to protect the 

environment. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

E.O. 13211 (66 FR 28355, May 22, 

2001) requires EPA to prepare and 

submit a Statement of Energy Effects to 

the Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, for 

actions identified as significant energy 

actions. On the basis of the Office of 

Management and Budget’s guidance for 

assessing the potential energy impact of 

regulations, the Agency anticipates that 

today’s rule may have a significant 

adverse effect on the supply, 

distribution, or use of energy, thus 

requiring EPA to include a Statement of 

Energy Effects. 

The Agency assessed the energy 

effects of today’s rule, specifically, the 

rule’s effect on energy supply, 

distribution or use in the electric power 

sector, as required under E.O. 13211. In 

its energy-effects assessment, EPA relied 

on Integrated Planning Model (IPM) 

analyses undertaken by EPA for the 

final rule. Based on that analysis, 

described in Section IX(D)(1)(d) of this 

preamble (Assessment of the Impacts in 

the Context of Electricity Markets) and 

in more detail in Chapter 6 of the EA 

report, EPA finds that the compliance 

requirements of the final rule may affect 

the electric power sector in ways that 

would constitute a significant adverse 

effect under E.O. 13211, and thus 

includes a Statement of Energy Effects 

in the economic analysis. 

The Agency’s analysis found that the 

final rule will not reduce electricity 

production in excess of 1 billion kWh 

hours per year (or one thousand GWh), 

will not increase the cost of energy 

production in excess of 1 percent, will 

not increase dependence on foreign 

supply of energy, and will not 

significantly affect domestic coal 

production. However, the final rule will 

result in net retirement of 998 MW of 

generating capacity, which exceeds 500 

MW of installed capacity, the threshold 

of significant adverse effect identified in 

the OMB Implementation Guidance for 

E.O. 13211. EPA notes that, with only 

one exception, these retirements involve 

older, less efficient generating units 

with very low capacity utilization rates. 

The 998 MW of net retired capacity is 

replaced by 589 MW of new capacity; 

therefore, because older and less 

efficient capacity is replaced by new, 

more energy-efficient, and less polluting 

capacity, these retirements mean that 

409 MW less capacity is needed to 

fulfill the same demand. 

For more detail on the estimated 

energy effects of the final rule, see 

Chapter 12 of the EA, which is in the 

public docket. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995, Public Law 104–113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use 

voluntary consensus standards in its 

regulatory activities unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The National 

Technology Transfer and Advancement 

Act directs EPA to provide Congress, 

through the Office of Management and 

Budget, explanations when the Agency 

decides not to use available and 

applicable voluntary consensus 

standards. 

This final rulemaking may involve 

technical standards, for example, in 

measuring impingement and 

entrainment. Nothing in this final rule 

would prevent the use of voluntary 

consensus standards for such 

measurements. EPA encourages 

permitting authorities and regulated 

entities to use voluntary consensus 

standards, where they are available. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

E.O. 12898 (59 FR 7629, February 16, 

1994) establishes Federal executive 

policy on environmental justice. Its 

main provision directs Federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that today’s rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations. Specifically, 

the final rule increases the level of 

environmental protection for all affected 

populations and has no high and 

adverse human health or environmental 

effects on any population, including any 

minority or low-income population. 

Because EPA expects that this final rule 

will help to preserve the health of 

aquatic ecosystems near regulated 

facilities, EPA expects that all 

populations, including minority and 

low-income populations, will benefit 

from improved environmental 

conditions. 

To meet the objectives of E.O. 12898, 

EPA assessed whether today’s rule 

could distribute benefits among 

population subgroups in a way that is 

significantly less favorable to lowincome and minority populations. EPA 

compared key demographic 

characteristics of affected substate 

populations to those demographic 

characteristics at the State level. If EPA 

had found that the demographic profile 

of the substate benefit population is 

composed of a significantly lower share 

of low-income and/or minority 

populations than the State’s general 

population, EPA might have assessed 

the final rule as yielding an unfavorable 


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171Annual household income data in the FCP 

Module are available for the following categories: 

less than $10,000; $10,000 to $19,999; $20,000 to 

$24,999; $25,000 to $29,999; $30,000 to $34,999; 

$35,000 to $39,999; $40,000 to $49,999; $50,000 to 

$74,999; $75,000 to $99,999; and more than 

$100,000. For this analysis and previous 316(b) rule 

analyses, these categories were combined into lowand not low-income groups based on the U.S. 

Department of Health and Human Services’ poverty 

guidelines for a family of four living in the 

contiguous United States or DC The current (2013) 

poverty guideline is $23,550, which falls near the 

upper end of the $20,000 to $24,999 income range 

(U.S. HHS, 2013). For the current analysis, EPA 

used $25,000 as the threshold for separating 

populations into low- and not low-income groups. 

172Race and ethnic categories used in the analysis 

include white non-Hispanic, white Hispanic, black 

or African American, Asian or Native Hawaiian or 

Other Pacific Island, and American Indian and 

Alaska Native. 

distribution of benefits, from the 

perspective of the public policy 

principles of E.O. 12898. The two sets 

of demographic variables of interest for 

this environmental justice analysis are 

race and ethnicity, and annual 

household income, which are the 

variables in the Fish Consumption 

Pathway Module that best capture the 

minority and low-income aspects of the 

affected populations.171 172 EPA 

compared variable averages at the 

substate and State levels to determine 

whether the demographic profile of the 

affected population is consistent with 

the State profile (for details, see EA 

Chapter 12). 

The comparison of minority 

populations affected by the regulated 

facilities to the affected States’ overall 

populations showed no statistically 

significant difference between these 

groups. While low-income populations 

constitute a lower fraction of the benefit 

population than of the State’s overall 

population in many States, the two 

groups are not significantly different. 

EPA thus determined that the final rule 

does not systematically discriminate 

against, or exclude or deny participation 

of, the lower income population group 

or the minority population group in the 

benefits of the final rule in a way that 

would be contrary to the intent of E.O. 

12898. Overall, EPA thus concluded 

that the final rule is consistent with the 

policy intent of E.O. 12898. 

Anecdotally, minority (e.g., Native 

American) and low-income populations 

might be more likely to include a larger 

proportion of subsistence fishermen. 

Because this rule will increase 

abundance of all fish species in the 

areas affected by cooling water intakes, 

it might provide a benefit to subsistence 

fishermen. To the extent that minority 

and low-income populations are overrepresented in this group, they might 

especially benefit from this rule. 

K. Executive Order 13158: Marine 

Protected Areas 

E.O. 13158 (65 FR 34909, May 31, 

2000) requires EPA to ‘‘expeditiously 

propose new science-based regulations, 

as necessary, to ensure appropriate 

levels of protection for the marine 

environment.’’ EPA may take action to 

enhance or expand protection of 

existing marine protected areas and to 

establish or recommend, as appropriate, 

new marine protected areas. The 

purpose of this executive order is to 

protect significant natural and cultural 

resources in the marine environment, 

which means ‘‘those areas of coastal and 

ocean waters, the Great Lakes and their 

connecting waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’ 

Today’s rule recognizes the biological 

sensitivity of tidal rivers, estuaries, 

oceans, and the Great Lakes, and their 

susceptibility to adverse environmental 

impacts from cooling water intake 

structures. The rule provides 

requirements to minimize adverse 

environmental impacts for cooling water 

intake structures on these types of 

waterbodies. 

EPA used GIS data of the locations of 

MPAs (Marine Protected Areas) from the 

national MPA program (http://

www.mpa.gov/helpful_resources/

inventory.html) to locate regulated 

facilities in MPAs. Under the final rule, 

60 percent of regulated facilities in 

MPAs obtain reductions in 

impingement mortality. As noted above, 

because of EPA’s assumption that 

facilities with impoundments will not 

need to install compliance technology, 

this may be an underestimate. EPA 

cannot estimate reductions in 

entrainment because they would be 

based on site-specific determinations of 

BTA. Therefore, EPA expects that 

today’s rule will advance the objective 

of the executive order to protect marine 

areas. For more details on this analysis 

and analysis results, see BA Chapter 8. 

L. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). This rule will be 

effective October 14, 2014. 

List of Subjects 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 125 

Environmental protection, Cooling 

water intake structure, Reporting and 

recordkeeping requirements, Waste 

treatment and disposal, Water pollution 

control. 

Dated: May 19, 2014. 

Gina McCarthy, 

Administrator. 

For reasons set out in the preamble, 

Chapter I of Title 40 of the Code of 

Federal Regulations is amended as 

follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 1. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 2. The suspension of 40 CFR 

122.21(r)(1)(ii) and (r)(5), published on 

July 9, 2007 (72 FR 37109) is lifted. 

■ 3. Section 122.21 is amended as 

follows: 

■ a. Revising paragraph (r)(1). 

■ b. Adding paragraphs (r)(4)(ix) 

through (xii). 

■ c. Revising paragraph (r)(5). 

■ d. Adding paragraphs (r)(6) through 

(14). 

§ 122.21 Application for a permit 

(applicable to State programs, see § 123.25). 

* * * * * 

(r) * * * 

(1) * * * 

(i) New facilities with new or modified 

cooling water intake structures. New 

facilities (other than offshore oil and gas 

extraction facilities) with cooling water 

intake structures as defined in part 125, 

subpart I of this chapter, must submit to 

the Director for review the information 

required under paragraphs (r)(2) (except 

(r)(2)(iv)), (3), and (4) (except (r)(4)(ix), 

(x), (xi), and (xii)) of this section and 

§ 125.86 of this chapter as part of the 


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permit application. New offshore oil 

and gas extraction facilities with cooling 

water intake structures as defined in 

part 125, subpart N, of this chapter that 

are fixed facilities must submit to the 

Director for review the information 

required under paragraphs (r)(2) (except 

(r)(2)(iv)), (3), and (4) (except (r)(4)(ix), 

(x), (xi), and (xii)) of this section and 

§ 125.136 of this chapter as part of their 

permit application. 

(ii) Existing facilities. (A) All existing 

facilities. The owner or operator of an 

existing facility defined at 40 CFR 

125.92(k) must submit to the Director 

for review the information required 

under paragraphs (r)(2) and (3) of this 

section and applicable provisions of 

paragraphs (r)(4), (5), (6), (7), and (8) of 

this section. 

(B) Existing facilities greater than 125 

mgd AIF. In addition, the owner or 

operator of an existing facility that 

withdraws greater than 125 mgd actual 

intake flow (AIF), as defined at 40 CFR 

125.92 (a), of water for cooling purposes 

must also submit to the Director for 

review the information required under 

paragraphs (r)(9), (10), (11), (12), and 

(13) of this section. If the owner or 

operator of an existing facility intends to 

comply with the BTA (best technology 

available) standards for entrainment 

using a closed-cycle recirculating 

system as defined at 40 CFR 125.92(c), 

the Director may reduce or waive some 

or all of the information required under 

paragraphs (r)(9) through (13) of this 

section. 

(C) Additional information. The 

owner or operator of an existing facility 

must also submit such additional 

information as the Director determines 

is necessary pursuant to 40 CFR 

125.98(i). 

(D) New units at existing facilities. 

The owner or operator of a new unit at 

an existing facility, as defined at 40 CFR 

125.92(u), must submit or update any 

information previously provided to the 

Director by submitting the information 

required under paragraphs (r)(2), (3), (5), 

(8), and (14) of this section and 

applicable provisions of paragraphs 

(r)(4), (6), and (7) of this section. 

Requests for and approvals of 

alternative requirements sought under 

40 CFR 125.94(e)(2) or 125.98(b)(7) must 

be submitted with the permit 

application. 

(E) New units at existing facilities not 

previously subject to Part 125. The 

owner or operator of a new unit as 

defined at 40 CFR 125.92(u) at an 

existing facility not previously subject 

to part 125 of this chapter that increases 

the total capacity of the existing facility 

to more than 2 mgd DIF must submit the 

information required under paragraphs 

(r)(2), (3), (5), and (8) of this section and 

applicable provisions of paragraphs 

(r)(4), (6), and (7) of this section at the 

time of the permit application for the 

new unit. Requests for alternative 

requirements under 40 CFR 125.94(e)(2) 

or 125.98(b)(7) must be submitted with 

the permit application. If the total 

capacity of the facility will increase to 

more than 125 mgd AIF, the owner or 

operator must also submit the 

information required in paragraphs 

(r)(9) through (13) of this section. If the 

owner or operator of an existing facility 

intends to comply with the BTA (best 

technology available) standards for 

entrainment using a closed-cycle 

recirculating system as defined at 40 

CFR 125.92(c), the Director may reduce 

or waive some or all of the information 

required under paragraphs (r)(9) through 

(13) of this section. 

(F) If the owner or operator of an 

existing facility plans to retire the 

facility before the current permit 

expires, then the requirements of 

paragraphs (r)(1)(ii)(A), (B), (C), (D), and 

(E) of this section do not apply. 

(G) If the owner or operator of an 

existing facility plans to retire the 

facility after the current permit expires 

but within one permit cycle, then the 

Director may waive the requirements of 

paragraphs (r)(7), (9), (10), (11), (12), and 

(13) of this section pending a signed 

certification statement from the owner 

or operator of the facility specifying the 

last operating date of the facility. 

(H) All facilities. The owner or 

operator of any existing facility or new 

unit at any existing facility must also 

submit with its permit application all 

information received as a result of any 

communication with a Field Office of 

the Fish and Wildlife Service and/or 

Regional Office of the National Marine 

Fisheries Service. 

* * * * * 

(4) * * * 

(ix) In the case of the owner or 

operator of an existing facility or new 

unit at an existing facility, the Source 

Water Baseline Biological 

Characterization Data is the information 

in paragraphs (r)(4)(i) through (xii) of 

this section. 

(x) For the owner or operator of an 

existing facility, identification of 

protective measures and stabilization 

activities that have been implemented, 

and a description of how these measures 

and activities affected the baseline water 

condition in the vicinity of the intake. 

(xi) For the owner or operator of an 

existing facility, a list of fragile species, 

as defined at 40 CFR 125.92(m), at the 

facility. The applicant need only 

identify those species not already 

identified as fragile at 40 CFR 

125.92(m). New units at an existing 

facility are not required to resubmit this 

information if the cooling water 

withdrawals for the operation of the 

new unit are from an existing intake. 

(xii) For the owner or operator of an 

existing facility that has obtained 

incidental take exemption or 

authorization for its cooling water 

intake structure(s) from the U.S. Fish 

and Wildlife Service or the National 

Marine Fisheries Service, any 

information submitted in order to obtain 

that exemption or authorization may be 

used to satisfy the permit application 

information requirement of paragraph 

40 CFR 125.95(f) if included in the 

application. 

(5) Cooling Water System Data. The 

owner or operator of an existing facility 

must submit the following information 

for each cooling water intake structure 

used or intended to be used: 

(i) A narrative description of the 

operation of the cooling water system 

and its relationship to cooling water 

intake structures; the proportion of the 

design intake flow that is used in the 

system; the number of days of the year 

the cooling water system is in operation 

and seasonal changes in the operation of 

the system, if applicable; the proportion 

of design intake flow for contact 

cooling, non-contact cooling, and 

process uses; a distribution of water 

reuse to include cooling water reused as 

process water, process water reused for 

cooling, and the use of gray water for 

cooling; a description of reductions in 

total water withdrawals including 

cooling water intake flow reductions 

already achieved through minimized 

process water withdrawals; a 

description of any cooling water that is 

used in a manufacturing process either 

before or after it is used for cooling, 

including other recycled process water 

flows; the proportion of the source 

waterbody withdrawn (on a monthly 

basis); 

(ii) Design and engineering 

calculations prepared by a qualified 

professional and supporting data to 

support the description required by 

paragraph (r)(5)(i) of this section; and 

(iii) Description of existing 

impingement and entrainment 

technologies or operational measures 

and a summary of their performance, 

including but not limited to reductions 

in impingement mortality and 

entrainment due to intake location and 

reductions in total water withdrawals 

and usage. 

(6) Chosen Method(s) of Compliance 

with Impingement Mortality Standard. 

The owner or operator of the facility 

must identify the chosen compliance 


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method for the entire facility; 

alternatively, the applicant must 

identify the chosen compliance method 

for each cooling water intake structure 

at its facility. The applicant must 

identify any intake structure for which 

a BTA determination for Impingement 

Mortality under 40 CFR 125.94 (c)(11) or 

(12) is requested. In addition, the owner 

or operator that chooses to comply via 

40 CFR 125.94 (c)(5) or (6) must also 

submit an impingement technology 

performance optimization study as 

described below: 

(i) If the applicant chooses to comply 

with 40 CFR 125.94(c)(5), subject to the 

flexibility for timing provided in 40 CFR 

125.95(a)(2), the impingement 

technology performance optimization 

study must include two years of 

biological data collection measuring the 

reduction in impingement mortality 

achieved by the modified traveling 

screens as defined at 40 CFR 125.92(s) 

and demonstrating that the operation 

has been optimized to minimize 

impingement mortality. A complete 

description of the modified traveling 

screens and associated equipment must 

be included, including, for example, 

type of mesh, mesh slot size, pressure 

sprays and fish return mechanisms. A 

description of any biological data 

collection and data collection approach 

used in measuring impingement 

mortality must be included: 

(A) Collecting data no less frequently 

than monthly. The Director may 

establish more frequent data collection; 

(B) Biological data collection 

representative of the impingement and 

the impingement mortality at the 

intakes subject to this provision; 

(C) A taxonomic identification to the 

lowest taxon possible of all organisms 

collected; 

(D) The method in which naturally 

moribund organisms are identified and 

taken into account; 

(E) The method in which mortality 

due to holding times is taken into 

account; 

(F) If the facility entraps fish or 

shellfish, a count of entrapment, as 

defined at 40 CFR 125.92(j), as 

impingement mortality; and 

(G) The percent impingement 

mortality reflecting optimized operation 

of the modified traveling screen and all 

supporting calculations. 

(ii) If the applicant chooses to comply 

with 40 CFR 125.94(c)(6), the 

impingement technology performance 

optimization study must include 

biological data measuring the reduction 

in impingement mortality achieved by 

operation of the system of technologies, 

operational measures and best 

management practices, and 

demonstrating that operation of the 

system has been optimized to minimize 

impingement mortality. This system of 

technologies, operational measures and 

best management practices may include 

flow reductions, seasonal operation, 

unit closure, credit for intake location, 

and behavioral deterrent systems. The 

applicant must document how each 

system element contributes to the 

system’s performance. The applicant 

must include a minimum of two years 

of biological data measuring the 

reduction in impingement mortality 

achieved by the system. The applicant 

must also include a description of any 

sampling or data collection approach 

used in measuring the rate of 

impingement, impingement mortality, 

or flow reductions. 

(A) Rate of Impingement. If the 

demonstration relies in part on a credit 

for reductions in the rate of 

impingement in the system, the 

applicant must provide an estimate of 

those reductions to be used as credit 

towards reducing impingement 

mortality, and any relevant supporting 

documentation, including previously 

collected biological data, performance 

reviews, and previously conducted 

performance studies not already 

submitted to the Director. The 

submission of studies more than 10 

years old must include an explanation 

of why the data are still relevant and 

representative of conditions at the 

facility and explain how the data should 

be interpreted using the definitions of 

impingement and entrapment at 40 CFR 

125.92(n) and (j), respectively. The 

estimated reductions in rate of 

impingement must be based on a 

comparison of the system to a oncethrough cooling system with a traveling 

screen whose point of withdrawal from 

the surface water source is located at the 

shoreline of the source waterbody. For 

impoundments that are waters of the 

United States in whole or in part, the 

facility’s rate of impingement must be 

measured at a location within the 

cooling water intake system that the 

Director deems appropriate. In addition, 

the applicant must include two years of 

biological data collection demonstrating 

the rate of impingement resulting from 

the system. For this demonstration, the 

applicant must collect data no less 

frequently than monthly. The Director 

may establish more frequent data 

collection. 

(B) Impingement Mortality. If the 

demonstration relies in part on a credit 

for reductions in impingement mortality 

already obtained at the facility, the 

applicant must include two years of 

biological data collection demonstrating 

the level of impingement mortality the 

system is capable of achieving. The 

applicant must submit any relevant 

supporting documentation, including 

previously collected biological data, 

performance reviews, and previously 

conducted performance studies not 

already submitted to the Director. The 

applicant must provide a description of 

any sampling or data collection 

approach used in measuring 

impingement mortality. In addition, for 

this demonstration the applicant must: 

(1) Collect data no less frequently 

than monthly. The Director may 

establish more frequent data collection; 

(2) Conduct biological data collection 

that is representative of the 

impingement and the impingement 

mortality at an intake subject to this 

provision. In addition, the applicant 

must describe how the location of the 

cooling water intake structure in the 

waterbody and the water column are 

accounted for in the points of data 

collection; 

(3) Include a taxonomic identification 

to the lowest taxon possible of all 

organisms to be collected; 

(4) Describe the method in which 

naturally moribund organisms are 

identified and taken into account; 

(5) Describe the method in which 

mortality due to holding times is taken 

into account; and 

(6) If the facility entraps fish or 

shellfish, a count of the entrapment, as 

defined at 40 CFR 125.92(j), as 

impingement mortality. 

(C) Flow reduction. If the 

demonstration relies in part on flow 

reduction to reduce impingement, the 

applicant must include two years of 

intake flows, measured daily, as part of 

the demonstration, and describe the 

extent to which flow reductions are 

seasonal or intermittent. The applicant 

must document how the flow reduction 

results in reduced impingement. In 

addition, the applicant must describe 

how the reduction in impingement has 

reduced impingement mortality. 

(D) Total system performance. The 

applicant must document the percent 

impingement mortality reflecting 

optimized operation of the total system 

of technologies, operational measures, 

and best management practices and all 

supporting calculations. The total 

system performance is the combination 

of the impingement mortality 

performance reflected in paragraphs 

(r)(6)(ii)(A), (B), and (C) of this section. 

(7) Entrainment Performance Studies. 

The owner or operator of an existing 

facility must submit any previously 

conducted studies or studies obtained 

from other facilities addressing 

technology efficacy, through-facility 

entrainment survival, and other 


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entrainment studies. Any such 

submittals must include a description of 

each study, together with underlying 

data, and a summary of any conclusions 

or results. Any studies conducted at 

other locations must include an 

explanation as to why the data from 

other locations are relevant and 

representative of conditions at your 

facility. In the case of studies more than 

10 years old, the applicant must explain 

why the data are still relevant and 

representative of conditions at the 

facility and explain how the data should 

be interpreted using the definition of 

entrainment at 40 CFR 125.92(h). 

(8) Operational Status. The owner or 

operator of an existing facility must 

submit a description of the operational 

status of each generating, production, or 

process unit that uses cooling water, 

including but not limited to: 

(i) For power production or steam 

generation, descriptions of individual 

unit operating status including age of 

each unit, capacity utilization rate (or 

equivalent) for the previous 5 years, 

including any extended or unusual 

outages that significantly affect current 

data for flow, impingement, 

entrainment, or other factors, including 

identification of any operating unit with 

a capacity utilization rate of less than 8 

percent averaged over a 24-month block 

contiguous period, and any major 

upgrades completed within the last 15 

years, including but not limited to boiler 

replacement, condenser replacement, 

turbine replacement, or changes to fuel 

type; 

(ii) Descriptions of completed, 

approved, or scheduled uprates and 

Nuclear Regulatory Commission 

relicensing status of each unit at nuclear 

facilities; 

(iii) For process units at your facility 

that use cooling water other than for 

power production or steam generation, 

if you intend to use reductions in flow 

or changes in operations to meet the 

requirements of 40 CFR 125.94(c), 

descriptions of individual production 

processes and product lines, operating 

status including age of each line, 

seasonal operation, including any 

extended or unusual outages that 

significantly affect current data for flow, 

impingement, entrainment, or other 

factors, any major upgrades completed 

within the last 15 years, and plans or 

schedules for decommissioning or 

replacement of process units or 

production processes and product lines; 

(iv) For all manufacturing facilities, 

descriptions of current and future 

production schedules; and 

(v) Descriptions of plans or schedules 

for any new units planned within the 

next 5 years. 

(9) Entrainment Characterization 

Study. The owner or operator of an 

existing facility that withdraws greater 

than 125 mgd AIF, where the 

withdrawal of cooling water is 

measured at a location within the 

cooling water intake structure that the 

Director deems appropriate, must 

develop for submission to the Director 

an Entrainment Characterization Study 

that includes a minimum of two years 

of entrainment data collection. The 

Entrainment Characterization Study 

must include the following components: 

(i) Entrainment Data Collection 

Method. The study should identify and 

document the data collection period and 

frequency. The study should identify 

and document organisms collected to 

the lowest taxon possible of all life 

stages of fish and shellfish that are in 

the vicinity of the cooling water intake 

structure(s) and are susceptible to 

entrainment, including any organisms 

identified by the Director, and any 

species protected under Federal, State, 

or Tribal law, including threatened or 

endangered species with a habitat range 

that includes waters in the vicinity of 

the cooling water intake structure. 

Biological data collection must be 

representative of the entrainment at the 

intakes subject to this provision. The 

owner or operator of the facility must 

identify and document how the location 

of the cooling water intake structure in 

the waterbody and the water column are 

accounted for by the data collection 

locations; 

(ii) Biological Entrainment 

Characterization. Characterization of all 

life stages of fish, shellfish, and any 

species protected under Federal, State, 

or Tribal law (including threatened or 

endangered species), including a 

description of their abundance and their 

temporal and spatial characteristics in 

the vicinity of the cooling water intake 

structure(s), based on sufficient data to 

characterize annual, seasonal, and diel 

variations in entrainment, including but 

not limited to variations related to 

climate and weather differences, 

spawning, feeding, and water column 

migration. This characterization may 

include historical data that are 

representative of the current operation 

of the facility and of biological 

conditions at the site. Identification of 

all life stages of fish and shellfish must 

include identification of any surrogate 

species used, and identification of data 

representing both motile and non-motile 

life-stages of organisms; 

(iii) Analysis and Supporting 

Documentation. Documentation of the 

current entrainment of all life stages of 

fish, shellfish, and any species protected 

under Federal, State, or Tribal law 

(including threatened or endangered 

species). The documentation may 

include historical data that are 

representative of the current operation 

of the facility and of biological 

conditions at the site. Entrainment data 

to support the facility’s calculations 

must be collected during periods of 

representative operational flows for the 

cooling water intake structure, and the 

flows associated with the data collection 

must be documented. The method used 

to determine latent mortality along with 

data for specific organism mortality or 

survival that is applied to other lifestages or species must be identified. The 

owner or operator of the facility must 

identify and document all assumptions 

and calculations used to determine the 

total entrainment for that facility 

together with all methods and quality 

assurance/quality control procedures for 

data collection and data analysis. The 

proposed data collection and data 

analysis methods must be appropriate 

for a quantitative survey. 

(10) Comprehensive Technical 

Feasibility and Cost Evaluation Study. 

The owner or operator of an existing 

facility that withdraws greater than 125 

mgd AIF must develop for submission 

to the Director an engineering study of 

the technical feasibility and incremental 

costs of candidate entrainment control 

technologies. In addition, the study 

must include the following: 

(i) Technical feasibility. An evaluation 

of the technical feasibility of closedcycle recirculating systems as defined at 

40 CFR 125.92(c), fine mesh screens 

with a mesh size of 2 millimeters or 

smaller, and water reuse or alternate 

sources of cooling water. In addition, 

this study must include: 

(A) A description of all technologies 

and operational measures considered 

(including alternative designs of closedcycle recirculating systems such as 

natural draft cooling towers, mechanical 

draft cooling towers, hybrid designs, 

and compact or multi-cell 

arrangements); 

(B) A discussion of land availability, 

including an evaluation of adjacent land 

and acres potentially available due to 

generating unit retirements, production 

unit retirements, other buildings and 

equipment retirements, and potential for 

repurposing of areas devoted to ponds, 

coal piles, rail yards, transmission 

yards, and parking lots; 

(C) A discussion of available sources 

of process water, grey water, waste 

water, reclaimed water, or other waters 

of appropriate quantity and quality for 

use as some or all of the cooling water 

needs of the facility; and 

(D) Documentation of factors other 

than cost that may make a candidate 


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technology impractical or infeasible for 

further evaluation. 

(ii) Other entrainment control 

technologies. An evaluation of 

additional technologies for reducing 

entrainment may be required by the 

Director. 

(iii) Cost evaluations. The study must 

include engineering cost estimates of all 

technologies considered in paragraphs 

(r)(10)(i) and (ii) of this section. Facility 

costs must also be adjusted to estimate 

social costs. All costs must be presented 

as the net present value (NPV) and the 

corresponding annual value. Costs must 

be clearly labeled as compliance costs or 

social costs. The applicant must 

separately discuss facility level 

compliance costs and social costs, and 

provide documentation as follows: 

(A) Compliance costs are calculated as 

after-tax, while social costs are 

calculated as pre-tax. Compliance costs 

include the facility’s administrative 

costs, including costs of permit 

application, while the social cost 

adjustment includes the Director’s 

administrative costs. Any outages, 

downtime, or other impacts to facility 

net revenue, are included in compliance 

costs, while only that portion of lost net 

revenue that does not accrue to other 

producers can be included in social 

costs. Social costs must also be 

discounted using social discount rates 

of 3 percent and 7 percent. Assumptions 

regarding depreciation schedules, tax 

rates, interest rates, discount rates and 

related assumptions must be identified; 

(B) Costs and explanation of any 

additional facility modifications 

necessary to support construction and 

operation of technologies considered in 

paragraphs (r)(10)(i) and (ii) of this 

section, including but not limited to 

relocation of existing buildings or 

equipment, reinforcement or upgrading 

of existing equipment, and additional 

construction and operating permits. 

Assumptions regarding depreciation 

schedules, interest rates, discount rates, 

useful life of the technology considered, 

and any related assumptions must be 

identified; and 

(C) Costs and explanation for 

addressing any non-water quality 

environmental and other impacts 

identified in paragraph (r)(12) of this 

section. The cost evaluation must 

include a discussion of all reasonable 

attempts to mitigate each of these 

impacts. 

(11) Benefits Valuation Study. The 

owner or operator of an existing facility 

that withdraws greater than 125 mgd 

AIF must develop for submission to the 

Director an evaluation of the benefits of 

the candidate entrainment reduction 

technologies and operational measures 

evaluated in paragraph (r)(10) of this 

section including using the Entrainment 

Characterization Study completed in 

paragraph (r)(9) of this section. Each 

category of benefits must be described 

narratively, and when possible, benefits 

should be quantified in physical or 

biological units and monetized using 

appropriate economic valuation 

methods. The benefits valuation study 

must include, but is not limited to, the 

following elements: 

(i) Incremental changes in the 

numbers of individual fish and shellfish 

lost due to impingement mortality and 

entrainment as defined in 40 CFR 

125.92, for all life stages of each 

exposed species; 

(ii) Description of basis for any 

estimates of changes in the stock sizes 

or harvest levels of commercial and 

recreational fish or shellfish species or 

forage fish species; 

(iii) Description of basis for any 

monetized values assigned to changes in 

the stock size or harvest levels of 

commercial and recreational fish or 

shellfish species, forage fish, and to any 

other ecosystem or non use benefits; 

(iv) A discussion of mitigation efforts 

completed prior to October 14, 2014 

including how long they have been in 

effect and how effective they have been; 

(v) Discussion, with quantification 

and monetization, where possible, of 

any other benefits expected to accrue to 

the environment and local communities, 

including but not limited to 

improvements for mammals, birds, and 

other organisms and aquatic habitats; 

(vi) Discussion, with quantification 

and monetization, where possible, of 

any benefits expected to result from any 

reductions in thermal discharges from 

entrainment technologies. 

(12) Non-water Quality Environmental 

and Other Impacts Study. The owner or 

operator of an existing facility that 

withdraws greater than 125 mgd AIF 

must develop for submission to the 

Director a detailed facility-specific 

discussion of the changes in non-water 

quality environmental and other 

impacts attributed to each technology 

and operational measure considered in 

paragraph (r)(10) of this section, 

including both impacts increased and 

impacts decreased. The study must 

include the following: 

(i) Estimates of changes to energy 

consumption, including but not limited 

to auxiliary power consumption and 

turbine backpressure energy penalty; 

(ii) Estimates of air pollutant 

emissions and of the human health and 

environmental impacts associated with 

such emissions; 

(iii) Estimates of changes in noise; 

(iv) A discussion of impacts to safety, 

including documentation of the 

potential for plumes, icing, and 

availability of emergency cooling water; 

(v) A discussion of facility reliability, 

including but not limited to facility 

availability, production of steam, 

impacts to production based on process 

unit heating or cooling, and reliability 

due to cooling water availability; 

(vi) Significant changes in 

consumption of water, including a 

facility-specific comparison of the 

evaporative losses of both once-through 

cooling and closed-cycle recirculating 

systems, and documentation of impacts 

attributable to changes in water 

consumption; and 

(vii) A discussion of all reasonable 

attempts to mitigate each of these 

factors. 

(13) Peer Review. If the applicant is 

required to submit studies under 

paragraphs (r)(10) through (12) of this 

section, the applicant must conduct an 

external peer review of each report to be 

submitted with the permit application. 

The applicant must select peer 

reviewers and notify the Director in 

advance of the peer review. The Director 

may disapprove of a peer reviewer or 

require additional peer reviewers. The 

Director may confer with EPA, Federal, 

State and Tribal fish and wildlife 

management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure, independent system 

operators, and state public utility 

regulatory agencies, to determine which 

peer review comments must be 

addressed. The applicant must provide 

an explanation for any significant 

reviewer comments not accepted. Peer 

reviewers must have appropriate 

qualifications and their names and 

credentials must be included in the peer 

review report. 

(14) New Units. The applicant must 

identify the chosen compliance method 

for the new unit. In addition, the owner 

or operator that selects the BTA 

standards for new units at 40 CFR 

125.94 (e)(2) as its route to compliance 

must submit information to demonstrate 

entrainment reductions equivalent to 90 

percent or greater of the reduction that 

could be achieved through compliance 

with 40 CFR 125.94(e)(1). The 

demonstration must include the 

Entrainment Characterization Study at 

paragraph (r)(9) of this section. In 

addition, if data specific to your facility 

indicates that compliance with the 

requirements of § 125.94 of this chapter 

for each new unit would result in 

compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at 


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issue, or would result in significant 

adverse impacts on local air quality, 

significant adverse impacts on local 

water resources other than impingement 

or entrainment, or significant adverse 

impacts on local energy markets, you 

must submit all supporting data as part 

of paragraph (r)(14) of this section. The 

Director may determine that additional 

data and information, including but not 

limited to monitoring, must be included 

as part of paragraph (r)(14) of this 

section. 

PART 125—CRITERIA AND 

STANDARDS FOR THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 4. The authority citation for part 125 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq., unless otherwise noted. 

Subpart I—[Amended] 

■ 5. Section 125.84 is amended by 

revising paragraphs (c) introductory text 

and (d)(1) to read as follows: 

§ 125.84 As an owner or operator of a new 

facility, what must I do to comply with this 

subpart? 

* * * * * 

(c) Track I requirements for new 

facilities that withdraw greater than 2 

mgd and less than 10 mgd and that 

choose not to comply with paragraph (b) 

of this section. You must comply with 

all the following requirements: 

* * * * * 

(d) * * * 

(1) You must demonstrate to the 

Director that the technologies employed 

will reduce the level of adverse 

environmental impact from your cooling 

water intake structures to a level 

comparable to that which you would 

achieve were you to implement the 

requirements of paragraphs (b)(1) and 

(2) of this section. This demonstration 

must include a showing that the impacts 

to fish and shellfish, including 

important forage and predator species, 

within the watershed will be 

comparable to those which would result 

if you were to implement the 

requirements of paragraphs (b)(1) and 

(2) of this section. The Director will 

consider information provided by any 

fishery management agency and may 

also consider data and information from 

other sources. 

* * * * * 

■ 6. Section 125.86 is amended as 

follows: 

■ a. Revise paragraphs (a)(1)(ii), (b)(3) 

introductory text, and (b)(4)(iii) 

introductory text. 

■ b. Remove and reserve paragraphs 

(c)(2)(ii), (c)(2)(iv)(C), and 

(c)(2)(iv)(D)(2). 

§ 125.86 As an owner or operator of a new 

facility, what must I collect and submit 

when I apply for my new or reissued NPDES 

permit? 

(a) * * * 

(1) * * * 

(ii) The Track I requirements for new 

facilities that withdraw greater than 2 

mgd and less than 10 mgd in 

§ 125.84(c); 

* * * * * 

(b) * * * 

(3) Source waterbody flow 

information. You must submit to the 

Director the following information to 

demonstrate that your cooling water 

intake structure meets the flow 

requirements in § 125.84(b)(3) or (c)(2). 

* * * * * 

(4) * * * 

(iii) The owner or operator of a new 

facility required to install design and 

construction technologies and/or 

operational measures must develop a 

plan which explains the technologies 

and measures selected; this plan shall 

be based on information collected for 

the Source Water Biological Baseline 

Characterization required by 40 CFR 

122.21(r)(4). Examples of appropriate 

technologies include, but are not limited 

to, wedgewire screens, fine mesh 

screens, fish handling and return 

systems, barrier nets, aquatic filter 

barrier systems, etc. Examples of 

appropriate operational measures 

include, but are not limited to, seasonal 

shutdowns or reductions in flow, and 

continuous operations of screens, etc. 

The plan must contain the following 

information: 

* * * * * 

■ 7. Section 125.87 is amended by 

revising paragraphs (a) introductory text 

and (a)(2) to read as follows: 

§ 125.87 As an owner or operator of a new 

facility, must I perform monitoring? 

* * * * * 

(a) Biological monitoring. You must 

monitor both impingement and 

entrainment of the commercial, 

recreational, and forage base fish and 

shellfish species identified in either the 

Source Water Baseline Biological 

Characterization data required by 40 

CFR 122.21(r)(4) or the Comprehensive 

Demonstration Study required by 

§ 125.86(c)(2), depending on whether 

you chose to comply with Track I or 

Track II. The monitoring methods used 

must be consistent with those used for 

the Source Water Baseline Biological 

Characterization data required in 40 

CFR 122.21(r)(4) or the Comprehensive 

Demonstration Study required by 

§ 125.86(c)(2). You must follow the 

monitoring frequencies identified below 

for at least two (2) years after the initial 

permit issuance. After that time, the 

Director may approve a request for less 

frequent sampling in the remaining 

years of the permit term and when the 

permit is reissued, if the Director 

determines the supporting data show 

that less frequent monitoring would still 

allow for the detection of any seasonal 

and daily variations in the species and 

numbers of individuals that are 

impinged or entrained. 

* * * * * 

(2) Entrainment sampling. You must 

collect samples at least biweekly to 

monitor entrainment rates (simple 

enumeration) for each species over a 24- 

hour period during the primary period 

of reproduction, larval recruitment, and 

peak abundance identified during the 

Source Water Baseline Biological 

Characterization required by 40 CFR 

122.21(r)(4) or the Comprehensive 

Demonstration Study required in 

§ 125.86(c)(2). You must collect samples 

only when the cooling water intake 

structure is in operation. 

* * * * * 

■ 8. Section 125.89 is amended by 

revising paragraphs (a) introductory text 

and (b)(1)(i) and (ii) to read as follows: 

§ 125.89 As the Director, what must I do to 

comply with the requirements of this 

subpart? 

(a) Permit application. As the 

Director, you must review materials 

submitted by the applicant under 40 

CFR 122.21(r)(4) and § 125.86 at the 

time of the initial permit application 

and before each permit renewal or 

reissuance. 

* * * * * 

(b) * * * 

(1) * * * 

(i) If an owner or operator of a facility 

chooses Track I, you must review the 

Design and Construction Technology 

Plan required in § 125.86(b)(4) to 

evaluate the suitability and feasibility of 

the technology proposed to minimize 

impingement mortality and entrainment 

of all life stages of fish and shellfish. In 

the first permit issued, you must put a 

condition requiring the facility to 

reduce impingement mortality and 

entrainment commensurate with the 

implementation of the technologies in 

the permit. Under subsequent permits, 

the Director must review the 

performance of the technologies 

implemented and require additional or 

different design and construction 

technologies, if needed to minimize 

impingement mortality and entrainment 


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of all life stages of fish and shellfish. In 

addition, you must consider whether 

more stringent conditions are 

reasonably necessary in accordance 

with § 125.84(e). 

(ii) If an owner or operator of a facility 

chooses Track II, you must review the 

information submitted with the 

Comprehensive Demonstration Study 

required in § 125.86(c)(2) and evaluate 

the suitability of the proposed design 

and construction technologies and 

operational measures to determine 

whether they will reduce both 

impingement mortality and entrainment 

of all life stages of fish and shellfish to 

90 percent or greater of the reduction 

that could be achieved through Track I. 

In addition, you must review the 

Verification Monitoring Plan in 

§ 125.86(c)(2)(iv)(D) and require that the 

proposed monitoring begin at the start 

of operations of the cooling water intake 

structure and continue for a sufficient 

period of time to demonstrate that the 

technologies and operational measures 

meet the requirements in § 125.84(d)(1). 

Under subsequent permits, the Director 

must review the performance of the 

additional and/or different technologies 

or measures used and determine that 

they reduce the level of adverse 

environmental impact from the cooling 

water intake structures to a comparable 

level that the facility would achieve 

were it to implement the requirements 

of § 125.84(b)(1) and (2). 

* * * * * 

■ 9. The suspension of 40 CFR 

125.90(a), (c), and (d), and 125.91 

through 125.99, published on July 9, 

2007 (72 FR 37109) is lifted. 

■ 10. Subpart J to part 125 is revised to 

read as follows: 

Subpart J—Requirements Applicable to 

Cooling Water Intake Structures for Existing 

Facilities Under Section 316(b) of the Clean 

Water Act 

Sec. 

125.90 Purpose of this subpart. 

125.91 Applicability. 

125.92 Special definitions. 

125.93 [Reserved] 

125.94 As an owner or operator of an 

existing facility, what must I do to 

comply with this subpart? 

125.95 Permit application and supporting 

information requirements. 

125.96 Monitoring requirements. 

125.97 Other permit reporting and 

recordkeeping requirements. 

125.98 Director requirements. 

125.99 [Reserved] 

Subpart J—Requirements Applicable 

to Cooling Water Intake Structures for 

Existing Facilities Under Section 

316(b) of the Clean Water Act 

§ 125.90 Purpose of this subpart. 

(a) This subpart establishes the 

section 316(b) requirements that apply 

to cooling water intake structures at 

existing facilities that are subject to this 

subpart. These requirements include a 

number of components. These include 

standards for minimizing adverse 

environmental impact associated with 

the use of cooling water intake 

structures and required procedures (e.g., 

permit application requirements, 

information submission requirements) 

for establishing the appropriate 

technology requirements at certain 

specified facilities as well as 

monitoring, reporting, and 

recordkeeping requirements to 

demonstrate compliance. In 

combination, these components 

represent the best technology available 

for minimizing adverse environmental 

impact associated with the use of 

cooling water intake structures at 

existing facilities. These requirements 

are to be established and implemented 

in National Pollutant Discharge 

Elimination System (NPDES) permits 

issued under the Clean Water Act 

(CWA). 

(b) Cooling water intake structures not 

subject to requirements under §§ 125.94 

through 125.99 or subparts I or N of this 

part must meet requirements under 

section 316(b) of the CWA established 

by the Director on a case-by-case, best 

professional judgment (BPJ) basis. 

(c) Nothing in this subpart shall be 

construed to preclude or deny the right 

under section 510 of the CWA of any 

State or political subdivision of a State 

or any interstate agency to adopt or 

enforce any requirement with respect to 

control or abatement of pollution that is 

more stringent than required by Federal 

law. 

Note to § 125.90. This regulation does 

not authorize take, as defined by the 

Endangered Species Act, 16 U.S.C. 

1532(19). The U.S. Fish and Wildlife 

Service and National Marine Fisheries 

Service have determined that any 

impingement (including entrapment) or 

entrainment of Federally-listed species 

constitutes 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). 

§ 125.91 Applicability. 

(a) The owner or operator of an 

existing facility, as defined in 

§ 125.92(k), is subject to the 

requirements at §§ 125.94 through 

125.99 if: 

(1) The facility is a point source; 

(2) The facility uses or proposes to use 

one or more cooling water intake 

structures with a cumulative design 

intake flow (DIF) of greater than 2 

million gallons per day (mgd) to 

withdraw water from waters of the 

United States; and 

(3) Twenty-five percent or more of the 

water the facility withdraws on an 

actual intake flow basis is used 

exclusively for cooling purposes. 

(b) Use of a cooling water intake 

structure includes obtaining cooling 

water by any sort of contract or 

arrangement with one or more 

independent suppliers of cooling water 

if the independent supplier withdraws 

water from waters of the United States 

but is not itself a new or existing facility 

as defined in subparts I or J of this part, 

except as provided in paragraphs (c) and 

(d) of this section. An owner or operator 

of an existing facility may not 

circumvent these requirements by 

creating arrangements to receive cooling 

water from an entity that is not itself a 

facility subject to subparts I or J of this 

part. 

(c) Obtaining cooling water from a 

public water system, using reclaimed 

water from wastewater treatment 

facilities or desalination plants, or 

recycling treated process wastewater 

effluent as cooling water does not 

constitute use of a cooling water intake 

structure for purposes of this subpart. 

(d) This subpart does not apply to 

offshore seafood processing facilities, 

offshore liquefied natural gas terminals, 

and offshore oil and gas extraction 

facilities that are existing facilities as 

defined in § 125.92(k). The owners and 

operators of such facilities must meet 

requirements established by the Director 

on a case-by-case, best professional 

judgment (BPJ) basis. 

§ 125.92 Special definitions. 

In addition to the definitions 

provided in 40 CFR 122.2, the following 

special definitions apply to this subpart: 

(a) Actual Intake Flow (AIF) means 

the average volume of water withdrawn 

on an annual basis by the cooling water 

intake structures over the past three 

years. After October 14, 2019, Actual 

Intake Flow means the average volume 

of water withdrawn on an annual basis 

by the cooling water intake structures 

over the previous five years. Actual 

intake flow is measured at a location 

within the cooling water intake 


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structure that the Director deems 

appropriate. The calculation of actual 

intake flow includes days of zero flow. 

AIF does not include flows associated 

with emergency and fire suppression 

capacity. 

(b) All life stages of fish and shellfish 

means eggs, larvae, juveniles, and 

adults. It does not include members of 

the infraclass Cirripedia in the 

subphylum Crustacea (barnacles), green 

mussels (Perna viridis), or zebra mussels 

(Dreissena polymorpha). The Director 

may determine that all life stages of fish 

and shellfish does not include other 

specified nuisance species. 

(c) Closed-cycle recirculating system 

means a system designed and properly 

operated using minimized make-up and 

blowdown flows withdrawn from a 

water of the United States to support 

contact or non-contact cooling uses 

within a facility, or a system designed 

to include certain impoundments. A 

closed-cycle recirculating system passes 

cooling water through the condenser 

and other components of the cooling 

system and reuses the water for cooling 

multiple times. 

(1) Closed-cycle recirculating system 

includes a facility with wet, dry, or 

hybrid cooling towers, a system of 

impoundments that are not waters of the 

United States, or any combination 

thereof. A properly operated and 

maintained closed-cycle recirculating 

system withdraws new source water 

(make-up water) only to replenish losses 

that have occurred due to blowdown, 

drift, and evaporation. If waters of the 

United States are withdrawn for 

purposes of replenishing losses to a 

closed-cycle recirculating system other 

than those due to blowdown, drift, and 

evaporation from the cooling system, 

the Director may determine a cooling 

system is a closed-cycle recirculating 

system if the facility demonstrates to the 

satisfaction of the Director that make-up 

water withdrawals attributed 

specifically to the cooling portion of the 

cooling system have been minimized. 

(2) Closed-cycle recirculating system 

also includes a system with 

impoundments of waters of the U.S. 

where the impoundment was 

constructed prior to October 14, 2014 

and created for the purpose of serving 

as part of the cooling water system as 

documented in the project purpose 

statement for any required Clean Water 

Act section 404 permit obtained to 

construct the impoundment. In the case 

of an impoundment whose construction 

pre-dated the CWA requirement to 

obtain a section 404 permit, 

documentation of the project’s purpose 

must be demonstrated to the satisfaction 

of the Director. This documentation 

could be some other license or permit 

obtained to lawfully construct the 

impoundment for the purposes of a 

cooling water system, or other such 

evidence as the Director finds necessary. 

For impoundments constructed in 

uplands or not in waters of the United 

States, no documentation of a section 

404 or other permit is required. If waters 

of the United States are withdrawn for 

purposes of replenishing losses to a 

closed-cycle recirculating system other 

than those due to blowdown, drift, and 

evaporation from the cooling system, 

the Director may determine a cooling 

system is a closed-cycle recirculating 

system if the facility demonstrates to the 

satisfaction of the Director that make-up 

water withdrawals attributed 

specifically to the cooling portion of the 

cooling system have been minimized. 

(d) Contact cooling water means water 

used for cooling which comes into 

direct contact with any raw material, 

product, or byproduct. Examples of 

contact cooling water may include but 

are not limited to quench water at 

facilities, cooling water in a cracking 

unit, and cooling water directly added 

to food and agricultural products 

processing. 

(e) Cooling water means water used 

for contact or non-contact cooling, 

including water used for equipment 

cooling, evaporative cooling tower 

makeup, and dilution of effluent heat 

content. The intended use of the cooling 

water is to absorb waste heat rejected 

from the process or processes used, or 

from auxiliary operations on the 

facility’s premises. Cooling water 

obtained from a public water system, 

reclaimed water from wastewater 

treatment facilities or desalination 

plants, treated effluent from a 

manufacturing facility, or cooling water 

that is used in a manufacturing process 

either before or after it is used for 

cooling as process water, is not 

considered cooling water for the 

purposes of calculating the percentage 

of a facility’s intake flow that is used for 

cooling purposes in § 125.91(a)(3). 

(f) Cooling water intake structure 

means the total physical structure and 

any associated constructed waterways 

used to withdraw cooling water from 

waters of the United States. The cooling 

water intake structure extends from the 

point at which water is first withdrawn 

from waters of the United States up to, 

and including the intake pumps. 

(g) Design intake flow (DIF) means the 

value assigned during the cooling water 

intake structure design to the maximum 

instantaneous rate of flow of water the 

cooling water intake system is capable 

of withdrawing from a source 

waterbody. The facility’s DIF may be 

adjusted to reflect permanent changes to 

the maximum capabilities of the cooling 

water intake system to withdraw cooling 

water, including pumps permanently 

removed from service, flow limit 

devices, and physical limitations of the 

piping. DIF does not include values 

associated with emergency and fire 

suppression capacity or redundant 

pumps (i.e., back-up pumps). 

(h) Entrainment means any life stages 

of fish and shellfish in the intake water 

flow entering and passing through a 

cooling water intake structure and into 

a cooling water system, including the 

condenser or heat exchanger. 

Entrainable organisms include any 

organisms potentially subject to 

entrainment. For purposes of this 

subpart, entrainment excludes those 

organisms that are collected or retained 

by a sieve with maximum opening 

dimension of 0.56 inches. Examples of 

sieves meeting this definition include 

but are not limited to a 3⁄8 inch square 

mesh, or a 1⁄2 by 1⁄4 inch mesh. A facility 

must use the same mesh size when 

counting entrainment as is used when 

counting impingement. 

(i) Entrainment mortality means death 

as a result of entrainment through the 

cooling water intake structure, or death 

as a result of exclusion from the cooling 

water intake structure by fine mesh 

screens or other protective devices 

intended to prevent the passage of 

entrainable organisms through the 

cooling water intake structure. 

(j) Entrapment means the condition 

where impingeable fish and shellfish 

lack the means to escape the cooling 

water intake. Entrapment includes but 

is not limited to: Organisms caught in 

the bucket of a traveling screen and 

unable to reach a fish return; organisms 

caught in the forebay of a cooling water 

intake system without any means of 

being returned to the source waterbody 

without experiencing mortality; or 

cooling water intake systems where the 

velocities in the intake pipes or in any 

channels leading to the forebay prevent 

organisms from being able to return to 

the source waterbody through the intake 

pipe or channel. 

(k) Existing facility means any facility 

that commenced construction as 

described in 40 CFR 122.29(b)(4) on or 

before January 17, 2002 (or July 17, 2006 

for an offshore oil and gas extraction 

facility) and any modification of, or any 

addition of a unit at such a facility. A 

facility built adjacent to another facility 

would be a new facility while the 

original facility would remain as an 

exiting facility for purposes of this 

subpart. A facility cannot both be an 

existing facility and a new facility as 

defined at § 125.83. 


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(l) Flow reduction means any 

modification to a cooling water intake 

structure or its operation that serves to 

reduce the volume of cooling water 

withdrawn. Examples include, but are 

not limited to, variable speed pumps, 

seasonal flow reductions, wet cooling 

towers, dry cooling towers, hybrid 

cooling towers, unit closures, or 

substitution for withdrawals by reuse of 

effluent from a nearby facility. 

(m) Fragile species means those 

species of fish and shellfish that are 

least likely to survive any form of 

impingement. For purposes of this 

subpart, fragile species are defined as 

those with an impingement survival rate 

of less than 30 percent, including but 

not limited to alewife, American shad, 

Atlantic herring, Atlantic long-finned 

squid, Atlantic menhaden, bay anchovy, 

blueback herring, bluefish, butterfish, 

gizzard shad, grey snapper, hickory 

shad, menhaden, rainbow smelt, round 

herring, and silver anchovy. 

(n) Impingement means the 

entrapment of any life stages of fish and 

shellfish on the outer part of an intake 

structure or against a screening device 

during periods of intake water 

withdrawal. For purposes of this 

subpart, impingement includes those 

organisms collected or retained on a 

sieve with maximum distance in the 

opening of 0.56 inches, and excludes 

those organisms that pass through the 

sieve. Examples of sieves meeting this 

definition include but are not limited to 

a 3⁄8 inch square mesh, or a 1⁄2 by 1⁄4

inch mesh. This definition is intended 

to prevent the conversion of entrainable 

organisms to counts of impingement or 

impingement mortality. The owner or 

operator of a facility must use a sieve 

with the same mesh size when counting 

entrainment as is used when counting 

impingement. 

(o) Impingement mortality (IM) means 

death as a result of impingement. 

Impingement mortality also includes 

organisms removed from their natural 

ecosystem and lacking the ability to 

escape the cooling water intake system, 

and thus subject to inevitable mortality. 

(p) Independent supplier means an 

entity, other than the regulated facility, 

that owns and operates its own cooling 

water intake structure and directly 

withdraws water from waters of the 

United States. The supplier provides the 

cooling water to other facilities for their 

use, but may itself also use a portion of 

the water. An entity that provides 

potable water to residential populations 

(e.g., public water system) is not a 

supplier for purposes of this subpart. 

(q) Latent mortality means the 

delayed mortality of organisms that 

were initially alive upon being 

impinged or entrained but that do not 

survive the delayed effects of 

impingement and entrainment during 

an extended holding period. Delayed 

effects of impingement and entrainment 

include but are not limited to 

temperature change, physical stresses, 

and chemical stresses. 

(r) Minimize means to reduce to the 

smallest amount, extent, or degree 

reasonably possible. 

(s) Modified traveling screen means a 

traveling water screen that incorporates 

measures protective of fish and 

shellfish, including but not limited to: 

Screens with collection buckets or 

equivalent mechanisms designed to 

minimize turbulence to aquatic life; 

addition of a guard rail or barrier to 

prevent loss of fish from the collection 

system; replacement of screen panel 

materials with smooth woven mesh, 

drilled mesh, molded mesh, or similar 

materials that protect fish from 

descaling and other abrasive injury; 

continuous or near-continuous rotation 

of screens and operation of fish 

collection equipment to ensure any 

impinged organisms are recovered as 

soon as practical; a low pressure wash 

or gentle vacuum to remove fish prior to 

any high pressure spray to remove 

debris from the screens; and a fish 

handling and return system with 

sufficient water flow to return the fish 

directly to the source water in a manner 

that does not promote predation or reimpingement of the fish, or require a 

large vertical drop. The Director may 

approve of fish being returned to water 

sources other than the original source 

water, taking into account any 

recommendations from the Services 

with respect to endangered or 

threatened species. Examples of 

modified traveling screens include, but 

are not limited to: Modified Ristroph 

screens with a fish handling and return 

system, dual flow screens with smooth 

mesh, and rotary screens with fish 

returns or vacuum returns. 

(t) Moribund means dying; close to 

death. 

(u) New unit means a new ‘‘standalone’’ unit at an existing facility where 

construction of the new unit begins after 

October 14, 2014 and that does not 

otherwise meet the definition of a new 

facility at § 125.83 or is not otherwise 

already subject to subpart I of this part. 

A stand-alone unit is a separate unit that 

is added to a facility for either the same 

general industrial operation or another 

purpose. A new unit may have its own 

dedicated cooling water intake 

structure, or the new unit may use an 

existing or modified cooling water 

intake structure. 

(v) Offshore velocity cap means a 

velocity cap located a minimum of 800 

feet from the shoreline. A velocity cap 

is an open intake designed to change the 

direction of water withdrawal from 

vertical to horizontal, thereby creating 

horizontal velocity patterns that result 

in avoidance of the intake by fish and 

other aquatic organisms. For purposes of 

this subpart, the velocity cap must use 

bar screens or otherwise exclude marine 

mammals, sea turtles, and other large 

aquatic organisms. 

(w) Operational measure means a 

modification to any operation that 

serves to minimize impact to all life 

stages of fish and shellfish from the 

cooling water intake structure. 

Examples of operational measures 

include, but are not limited to, more 

frequent rotation of traveling screens, 

use of a low pressure wash to remove 

fish prior to any high pressure spray to 

remove debris, maintaining adequate 

volume of water in a fish return, and 

debris minimization measures such as 

air sparging of intake screens and/or 

other measures taken to maintain the 

design intake velocity. 

(x) Social benefits means the increase 

in social welfare that results from taking 

an action. Social benefits include 

private benefits and those benefits not 

taken into consideration by private 

decision makers in the actions they 

choose to take, including effects 

occurring in the future. Benefits 

valuation involves measuring the 

physical and biological effects on the 

environment from the actions taken. 

Benefits are generally treated one or 

more of three ways: A narrative 

containing a qualitative discussion of 

environmental effects, a quantified 

analysis expressed in physical or 

biological units, and a monetized 

benefits analysis in which dollar values 

are applied to quantified physical or 

biological units. The dollar values in a 

social benefits analysis are based on the 

principle of willingness-to-pay (WTP), 

which captures monetary benefits by 

measuring what individuals are willing 

to forgo in order to enjoy a particular 

benefit. Willingness-to-pay for nonuse 

values can be measured using benefits 

transfer or a stated preference survey. 

(y) Social costs means costs estimated 

from the viewpoint of society, rather 

than individual stakeholders. Social 

cost represents the total burden imposed 

on the economy; it is the sum of all 

opportunity costs incurred associated 

with taking actions. These opportunity 

costs consist of the value lost to society 

of all the goods and services that will 

not be produced and consumed as a 

facility complies with permit 

requirements, and society reallocates 


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resources away from other production 

activities and towards minimizing 

adverse environmental impacts. 

§ 125.93 [Reserved] 

§ 125.94 As an owner or operator of an 

existing facility, what must I do to comply 

with this subpart? 

(a) Applicable Best Technology 

Available for Minimizing Adverse 

Environmental Impact (BTA) standards. 

(1) On or after October 14, 2014, the 

owner or operator of an existing facility 

with a cumulative design intake flow 

(DIF) greater than 2 mgd is subject to the 

BTA (best technology available) 

standards for impingement mortality 

under paragraph (c) of this section, and 

entrainment under paragraph (d) of this 

section including any measures to 

protect Federally-listed threatened and 

endangered species and designated 

critical habitat established under 

paragraph (g) of this section. 

(2) Prior to October 14, 2014, the 

owner or operator of an existing facility 

with a cumulative design intake flow 

(DIF) greater than 2 mgd is subject to 

site-specific impingement mortality and 

entrainment requirements as 

determined by the Director on a case-bycase Best Professional Judgment basis. 

The Director’s BTA determination may 

be based on consideration of some or all 

of the factors at § 125.98(f)(2) and (3) 

and the requirements of § 125.94(c). If 

the Director requires additional 

information to make the decision on 

what BTA requirements to include in 

the applicant’s permit for impingement 

mortality and entrainment, the Director 

should consider whether to require any 

of the information at 40 CFR 122.21(r). 

(3) The owner or operator of a new 

unit is subject to the impingement 

mortality and entrainment standards 

under paragraph (e) of this section for 

all cooling water intake flows used by 

the new unit. The remainder of the 

existing facility is subject to the 

impingement mortality standard under 

paragraph (c) of this section, and the 

entrainment standard under paragraph 

(d) of this section. The entire existing 

facility including any new units is 

subject to any measures to protect 

Federally-listed threatened and 

endangered species and designated 

critical habitat established under 

paragraph (g) of this section. 

(b) Compliance with BTA standards. 

(1) Aligning compliance deadlines for 

impingement mortality and entrainment 

requirements. After issuance of a final 

permit that establishes the entrainment 

requirements under § 125.94(d), the 

owner or operator of an existing facility 

must comply with the impingement 

mortality standard in § 125.94(c) as soon 

as practicable. The Director may 

establish interim compliance milestones 

in the permit. 

(2) After issuance of a final permit 

establishing the entrainment 

requirements under § 125.94(d), the 

owner or operator of an existing facility 

must comply with the entrainment 

standard as soon as practicable, based 

on a schedule of requirements 

established by the Director. The Director 

may establish interim compliance 

milestones in the permit. 

(3) The owner or operator of a new 

unit at an existing facility must comply 

with the BTA standards at § 125.94(e) 

with respect to the new unit upon 

commencement of the new unit’s 

operation. 

(c) BTA Standards for Impingement 

Mortality. The owner or operator of an 

existing facility must comply with one 

of the alternatives in paragraphs (c)(1) 

through (7) of this section, except as 

provided in paragraphs (c)(11) or (12) of 

this section, when approved by the 

Director. In addition, a facility may also 

be subject to the requirements of 

paragraphs (c)(8), (c)(9), or (g) of this 

section if the Director requires such 

additional measures. 

(1) Closed-cycle recirculating system. 

A facility must operate a closed-cycle 

recirculating system as defined at 

§ 125.92(c). In addition, you must 

monitor the actual intake flows at a 

minimum frequency of daily. The 

monitoring must be representative of 

normal operating conditions, and must 

include measuring cooling water 

withdrawals, make-up water, and blow 

down volume. In lieu of daily intake 

flow monitoring, you may monitor your 

cycles of concentration at a minimum 

frequency of daily; or 

(2) 0.5 Feet Per Second ThroughScreen Design Velocity. A facility must 

operate a cooling water intake structure 

that has a maximum design throughscreen intake velocity of 0.5 feet per 

second. The owner or operator of the 

facility must submit information to the 

Director that demonstrates that the 

maximum design intake velocity as 

water passes through the structural 

components of a screen measured 

perpendicular to the screen mesh does 

not exceed 0.5 feet per second. The 

maximum velocity must be achieved 

under all conditions, including during 

minimum ambient source water surface 

elevations (based on BPJ using 

hydrological data) and during periods of 

maximum head loss across the screens 

or other devices during normal 

operation of the intake structure; or 

(3) 0.5 Feet Per Second ThroughScreen Actual Velocity. A facility must 

operate a cooling water intake structure 

that has a maximum through-screen 

intake velocity of 0.5 feet per second. 

The owner or operator of the facility 

must submit information to the Director 

that demonstrates that the maximum 

intake velocity as water passes through 

the structural components of a screen 

measured perpendicular to the screen 

mesh does not exceed 0.5 feet per 

second. The maximum velocity must be 

achieved under all conditions, 

including during minimum ambient 

source water surface elevations (based 

on best professional judgment using 

hydrological data) and during periods of 

maximum head loss across the screens 

or other devices during normal 

operation of the intake structure. The 

Director may authorize the owner or 

operator of the facility to exceed the 0.5 

fps velocity at an intake for brief periods 

for the purpose of maintaining the 

cooling water intake system, such as 

backwashing the screen face. If the 

intake does not have a screen, the 

maximum intake velocity perpendicular 

to the opening of the intake must not 

exceed 0.5 feet per second during 

minimum ambient source water surface 

elevations. In addition, you must 

monitor the velocity at the screen at a 

minimum frequency of daily. In lieu of 

velocity monitoring at the screen face, 

you may calculate the through-screen 

velocity using water flow, water depth, 

and the screen open areas; or 

(4) Existing offshore velocity cap. A 

facility must operate an existing 

offshore velocity cap as defined at 

§ 125.92(v) that was installed on or 

before October 14, 2014. Offshore 

velocity caps installed after October 14, 

2014 must make either a demonstration 

under paragraph (c)(6) of this section or 

meet the performance standard under 

paragraph (c)(7) of this section. In 

addition, you must monitor your intake 

flow at a minimum frequency of daily; 

or 

(5) Modified traveling screens. A 

facility must operate a modified 

traveling screen that the Director 

determines meets the definition at 

§ 125.92(s) and that, after review of the 

information required in the 

impingement technology performance 

optimization study at 40 CFR 

122.21(r)(6)(i), the Director determines 

is the best technology available for 

impingement reduction at the site. As 

the basis for the Director’s 

determination, the owner or operator of 

the facility must demonstrate the 

technology is or will be optimized to 

minimize impingement mortality of all 

non-fragile species. The Director must 

include verifiable and enforceable 

permit conditions that ensure the 


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technology will perform as 

demonstrated; or 

(6) Systems of technologies as the 

BTA for impingement mortality. A 

facility must operate a system of 

technologies, management practices, 

and operational measures, that, after 

review of the information required in 

the impingement technology 

performance optimization study at 40 

CFR 122.21(r)(6)(ii), the Director 

determines is the best technology 

available for impingement reduction at 

your cooling water intake structures. As 

the basis for the Director’s 

determination, the owner or operator of 

the facility must demonstrate the system 

of technology has been optimized to 

minimize impingement mortality of all 

non-fragile species. In addition, the 

Director’s decision will be informed by 

comparing the impingement mortality 

performance data under 40 CFR 

122.21(r)(6)(ii)(D) to the impingement 

mortality performance standard that 

would otherwise apply under paragraph 

(c)(7) of this section. The Director must 

include verifiable and enforceable 

permit conditions that ensure the 

system of technologies will perform as 

demonstrated; or 

(7) Impingement mortality 

performance standard. A facility must 

achieve a 12-month impingement 

mortality performance standard of all 

life stages of fish and shellfish of no 

more than 24 percent mortality, 

including latent mortality, for all nonfragile species together that are collected 

or retained in a sieve with maximum 

opening dimension of 0.56 inches and 

kept for a holding period of 18 to 96 

hours. The Director may, however, 

prescribe an alternative holding period. 

You must conduct biological monitoring 

at a minimum frequency of monthly to 

demonstrate your impingement 

mortality performance. Each month, you 

must use all of the monitoring data 

collected during the previous 12 months 

to calculate the 12-month survival 

percentage. The 12-month impingement 

mortality performance standard is the 

total number of fish killed divided by 

the total number of fish impinged over 

the course of the entire 12 months. The 

owner or operator of the facility must 

choose whether to demonstrate 

compliance with this requirement for 

the entire facility, or for each individual 

cooling water intake structure for which 

this paragraph (c)(7) is the selected 

impingement mortality requirement. 

(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 any additional measures, 

established by the Director, to protect 

fragile species. 

(10) Reuse of other water for cooling 

purposes. This impingement mortality 

standard does not apply to that portion 

of cooling water that is process water, 

gray water, waste water, reclaimed 

water, or other waters reused as cooling 

water in lieu of water obtained by 

marine, estuarine, or freshwater intakes. 

(11) De minimis rate of impingement. 

In limited circumstances, rates of 

impingement may be so low at a facility 

that additional impingement controls 

may not be justified. The Director, based 

on review of site-specific data submitted 

under 40 CFR 122.21(r), may conclude 

that the documented rate of 

impingement at the cooling water intake 

is so low that no additional controls are 

warranted. For threatened or 

endangered species, all unauthorized 

take is prohibited by the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.). Notice of a determination that no 

additional impingement controls are 

warranted must be included in the draft 

or proposed permit and the Director’s 

response to all comments on this 

determination must be included in the 

record for the final permit. 

(12) Low capacity utilization power 

generating units. If an existing facility 

has a cooling water intake structure 

used for one or more existing electric 

generating units, each with an annual 

average capacity utilization rate of less 

than 8 percent averaged over a 24- 

month block contiguous period, the 

owner or operator may request the 

Director consider less stringent 

requirements for impingement mortality 

for that cooling water intake structure. 

The Director may, based on review of 

site-specific data concerning cooling 

water system data under 40 CFR 

122.21(r)(5), establish the BTA 

standards for impingement mortality for 

that cooling water intake structure that 

are less stringent than paragraphs (c)(1) 

through (7) of this section. 

(d) BTA standards for entrainment for 

existing facilities. The Director must 

establish BTA standards for entrainment 

for each intake on a site-specific basis. 

These standards must reflect the 

Director’s determination of the 

maximum reduction in entrainment 

warranted after consideration of the 

relevant factors as specified in § 125.98. 

The Director may also require periodic 

reporting on your progress towards 

installation and operation of sitespecific entrainment controls. These 

reports may include updates on 

planning, design, and construction or 

other appropriate topics as required by 

the Director. If the Director determines 

that the site-specific BTA standard for 

entrainment under this paragraph 

requires performance equivalent to a 

closed-cycle recirculating system as 

defined at § 125.92(c), then under 

§ 125.94(c)(1) your facility will comply 

with the impingement mortality 

standard for that intake. 

(e) BTA standards for impingement 

mortality and entrainment for new units 

at existing facilities. The owner or 

operator of a new unit at an existing 

facility must achieve the impingement 

mortality and entrainment standards 

provided in either paragraph (e)(1) or (2) 

of this section, except as provided in 

paragraph (e)(4) of this section, for each 

cooling water intake structure used to 

provide cooling water to the new unit. 

(1) Requirements for new units. The 

owner or operator of 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 the use of a closed-cycle 

recirculating system for the same level 

of cooling for the new unit. 

(2) Alternative requirements for new 

units. The owner or operator of a new 

unit at an existing facility must 

demonstrate to the Director that the 

technologies and operational measures 

employed will reduce the level of 

adverse environmental impact from any 

cooling water intake structure used to 

supply cooling water to the new unit to 

a comparable level to that which would 

be achieved under § 125.94(e)(1). This 

demonstration must include a showing 

that the entrainment reduction is 

equivalent to 90 percent or greater of the 

reduction that could be achieved 

through compliance with § 125.94(e)(1). 

In addition this demonstration must 

include a showing that the impacts to 

fish and shellfish, including important 

forage and predator species, within the 

watershed will be comparable to those 

which would result under the 

requirements of § 125.94(e)(1). 

(3) This standard does not apply to: 

(i) Process water, gray water, waste 

water, reclaimed water, or other waters 

reused as cooling water in lieu of water 

obtained by marine, estuarine, or 

freshwater intakes; 

(ii) Cooling water used by 

manufacturing facilities for contact 

cooling purposes; 

(iii) Portions of those water 

withdrawals for auxiliary plant cooling 

uses comprising less than two mgd of 

the facility’s flow; and 

(iv) Any quantity of emergency backup water flows. 

(4) The owner or operator of a facility 

must comply with any alternative 


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requirements established by the Director 

pursuant to § 125.98(b)(7). 

(5) For cooling water flows excluded 

by paragraph (e)(3) of this section, the 

Director may establish additional BTA 

standards for impingement mortality 

and entrainment on a site-specific basis. 

(f) Nuclear facilities. If the owner or 

operator of a nuclear facility 

demonstrates to the Director, upon the 

Director’s consultation with the Nuclear 

Regulatory Commission, the Department 

of Energy, or the Naval Nuclear 

Propulsion Program, that compliance 

with this subpart would result in a 

conflict with a safety requirement 

established by the Commission, the 

Department, or the Program, the 

Director must make a site-specific 

determination of best technology 

available for minimizing adverse 

environmental impact that would not 

result in a conflict with the 

Commission’s, the Department’s, or the 

Program’s safety requirement. 

(g) Additional measures to protect 

Federally-listed threatened and 

endangered species and designated 

critical habitat. The Director may 

establish in the permit additional 

control measures, monitoring 

requirements, and reporting 

requirements that are 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 critical habitat (e.g., prey 

base). Such control measures, 

monitoring requirements, and reporting 

requirements may include measures or 

requirements identified by an 

appropriate Field Office of the U.S. Fish 

and Wildlife Service and/or Regional 

Office of 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 CFR 124.10. Where established in the 

permit by the Director, the owner or 

operator must implement any such 

requirements. 

(h) Interim BTA requirements. An 

owner or operator of a facility may be 

subject to interim BTA requirements 

established by the Director in the permit 

on a site-specific basis. 

(i) More stringent standards. The 

Director must establish more stringent 

requirements as best technology 

available for minimizing adverse 

environmental impact if the Director 

determines that compliance with the 

applicable requirements of this section 

would not meet the requirements of 

applicable State or Tribal law, including 

compliance with applicable water 

quality standards (including designated 

uses, criteria, and antidegradation 

requirements). 

(j) The owner or operator of a facility 

subject to this subpart must: 

(1) Submit and retain permit 

application and supporting information 

as specified in § 125.95; 

(2) Conduct compliance monitoring as 

specified in § 125.96; and 

(3) Report information and data and 

keep records as specified in § 125.97. 

§ 125.95 Permit application and supporting 

information requirements. 

(a) Permit application submittal 

timeframe for existing facilities. (1) The 

owner or operator of a facility subject to 

this subpart whose currently effective 

permit expires after July 14, 2018, must 

submit to the Director the information 

required in the applicable provisions of 

40 CFR 122.21(r) when applying for a 

subsequent permit (consistent with the 

owner or operator’s duty to reapply 

pursuant to 40 CFR 122.21(d)). 

(2) The owner or operator of a facility 

subject to this subpart whose currently 

effective permit expires prior to or on 

July 14, 2018, may request the Director 

to establish an alternate schedule for the 

submission of the information required 

in 40 CFR 122.21(r) when applying for 

a subsequent permit (consistent with the 

owner or operator’s duty to reapply 

pursuant to 40 CFR 122.21(d)). If the 

owner or operator of the facility 

demonstrates that it could not develop 

the required information by the 

applicable date for submission, the 

Director must establish an alternate 

schedule for submission of the required 

information. 

(3) The Director may waive some or 

all of the information requirements of 40 

CFR 122.21(r) if the intake is located in 

a manmade lake or reservoir and the 

fisheries are stocked and managed by a 

State or Federal natural resources 

agency or the equivalent. If the 

manmade lake or reservoir contains 

Federally-listed threatened and 

endangered species, or is designated 

critical habitat, such a waiver shall not 

be granted. 

(b) Permit application submittal 

timeframe for new units. For the owner 

or operator of any new unit at an 

existing facility subject to this subpart: 

(1) You must submit the information 

required in 40 CFR 122.21(r) for the new 

unit to the Director no later than 180 

days before the planned commencement 

of cooling water withdrawals for the 

operation of the new unit. If you have 

already submitted the required 

information in your previous permit 

application, you may choose to submit 

an update to the required information. 

(2) The owner or operator is 

encouraged to submit their permit 

applications well in advance of the 180 

day requirement to avoid delay. 

(c) Permit applications. After the 

initial submission of the 40 CFR 

122.21(r) permit application studies 

after October 14, 2014, the owner or 

operator of a facility may, in subsequent 

permit applications, request to reduce 

the information required, if conditions 

at the facility and in the waterbody 

remain substantially unchanged since 

the previous application so long as the 

relevant previously submitted 

information remains representative of 

current source water, intake structure, 

cooling water system, and operating 

conditions. Any habitat designated as 

critical or species listed as threatened or 

endangered after issuance of the current 

permit whose range of habitat or 

designated critical habit includes waters 

where a facility intake is located 

constitutes potential for a substantial 

change that must be addressed by the 

owner/operator in subsequent permit 

applications, unless the facility received 

an exemption pursuant to 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. The owner or 

operator of a facility must submit its 

request for reduced cooling water intake 

structure and waterbody application 

information to the Director at least two 

years and six months prior to the 

expiration of its NPDES permit. The 

owner or operator’s request must 

identify each element in this subsection 

that it determines has not substantially 

changed since the previous permit 

application and the basis for the 

determination. The Director has the 

discretion to accept or reject any part of 

the request. 

(d) The Director has the discretion to 

request additional information to 

supplement the permit application, 

including a request to inspect a facility. 

(e) Permit application records. The 

owner or operator of a facility must keep 

records of all submissions that are part 

of its permit application until the 

subsequent permit is issued to 

document compliance with the 

requirements of this section. If the 

Director approves a request for reduced 

permit application studies under 

§ 125.95(a) or (c) or § 125.98(g), the 

owner or operator of a facility must keep 

records of all submissions that are part 

of the previous permit application until 

the subsequent permit is issued. 

(f) In addition, in developing its 

permit application, the owner or 

operator of an existing facility or new 

unit at an existing facility must, based 

on readily available information at the 


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time of the permit application, instead 

of the information required at 

§ 122.21(r)(4)(vi) of this chapter identify 

all Federally-listed threatened and 

endangered species and/or designated 

critical habitat that are or may be 

present in the action area. 

(g) Certification. The owner or 

operator of a facility must certify that its 

permit application is true, accurate and 

complete pursuant to § 122.22(d) of this 

chapter. 

§ 125.96 Monitoring requirements. 

(a) Monitoring requirements for 

impingement mortality for existing 

facilities. The Director may establish 

monitoring requirements in addition to 

those specified at § 125.94(c), including, 

for example, biological monitoring, 

intake velocity and flow measurements. 

If the Director establishes such 

monitoring, the specific protocols will 

be determined by the Director. 

(b) Monitoring requirements for 

entrainment for existing facilities. 

Monitoring requirements for 

entrainment will be determined by the 

Director on a site-specific basis, as 

appropriate, to meet requirements under 

§ 125.94(d). 

(c) Additional monitoring 

requirements for existing facilities. The 

Director may require additional 

monitoring for impingement or 

entrainment including, but not limited 

to, the following: 

(1) The Director may require 

additional monitoring if there are 

changes in operating conditions at the 

facility or in the source waterbody that 

warrant a re-examination of the 

operational conditions identified at 40 

CFR 122.21(r). 

(2) The Director may require 

additional monitoring for species not 

subject to the BTA requirements for 

impingement mortality at § 125.95(c). 

Such monitoring requirements will be 

determined by the Director on a sitespecific basis. 

(d) Monitoring requirements for new 

units at existing facilities. Monitoring is 

required to demonstrate compliance 

with the requirements of § 125.94(e). 

(1) The Director may establish 

monitoring requirements for 

impingement, impingement mortality, 

and entrainment of the commercial, 

recreational, and forage base fish and 

shellfish species identified in the 

Source Water Baseline Biological 

Characterization data required by 40 

CFR 122.21(r)(4). Monitoring methods 

used must be consistent with those used 

for the Source Water Baseline Biological 

Characterization at 40 CFR 122.21(r)(4). 

If the Director establishes such 

monitoring requirements, the frequency 

of monitoring and specific protocols 

will be determined by the Director. 

(2) If your facility is subject to the 

requirements of § 125.94(e)(1) or (2), the 

frequency of flow monitoring and 

velocity monitoring must be daily and 

must be representative of normal 

operating conditions. Flow monitoring 

must include measuring cooling water 

withdrawals, make-up water, and 

blowdown volume. The Director may 

require additional monitoring necessary 

to demonstrate compliance with 

§ 125.94(e). 

(3) If your facility is subject to the 

requirements of § 125.94(e)(2), you must 

monitor to demonstrate achievement of 

reductions commensurate with a closedcycle recirculating system. You must 

monitor entrainable organisms at a 

proximity to the intake that is 

representative of the entrainable 

organisms in the absence of the intake 

structure. You must also monitor the 

latent entrainment mortality in front of 

the intake structure. Mortality after 

passing the cooling water intake 

structure must be counted as 100 

percent mortality unless you have 

demonstrated to the approval of the 

Director that the mortality for each 

species is less than 100 percent. 

Monitoring must be representative of 

the cooling water intake when the 

structure is in operation. In addition, 

sufficient samples must be collected to 

allow for calculation of annual average 

entrainment levels of all life stages of 

fish and shellfish. Specific monitoring 

protocols and frequency of monitoring 

will be determined by the Director. You 

must follow the monitoring frequencies 

identified by the Director for at least two 

years after the initial permit issuance. 

After that time, the Director may 

approve a request for less frequent 

monitoring in the remaining years of the 

permit term and when a subsequent 

permit is reissued. The monitoring must 

measure the total count of entrainable 

organisms or density of organisms, 

unless the Director approves of a 

different metric for such measurements. 

In addition, you must monitor the AIF 

for each intake. The AIF must be 

measured at the same time as the 

samples of entrainable organisms are 

collected. The Director may require 

additional monitoring necessary to 

demonstrate compliance with 

§ 125.94(e). 

(4) The Director may require 

additional monitoring for impingement 

or entrainment at the cooling water 

intake structure used by a new unit 

including, but not limited to, the 

following: 

(i) The Director may require 

additional monitoring if there are 

changes in operating conditions at the 

facility or in the source waterbody that 

warrant a re-examination of the 

operational conditions identified at 40 

CFR 122.21(r). 

(ii) The Director may require 

additional monitoring for species not 

subject to the BTA requirements for 

impingement mortality at § 125.95(c). 

Such monitoring requirements will be 

determined by the Director on a sitespecific basis. 

(e) Visual or remote inspections. You 

must either conduct visual inspections 

or employ remote monitoring devices 

during the period the cooling water 

intake structure is in operation. You 

must conduct such inspections at least 

weekly to ensure that any technologies 

operated to comply with § 125.94 are 

maintained and operated to function as 

designed including those installed 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 weather). 

(f) Request for reduced monitoring. 

For facilities that are subject to 

§ 125.94(c)(7) and where the facility’s 

cooling water intake structure does not 

directly or indirectly affect Federallylisted threatened and endangered 

species, or designated critical habitat, 

the owner or operator of the facility may 

request the Director to reduce 

monitoring requirements after the first 

full permit term in which these 

monitoring requirements are 

implemented, on the condition that the 

results of the monitoring to date 

demonstrate that the owner or operator 

of the facility has consistently operated 

the intake as designed and is meeting 

the requirements of § 125.94(c). 

(g) Additional monitoring related to 

Federally-listed threatened and 

endangered species and designated 

critical habitat at existing facilities. 

Where the Director requires additional 

measures to protect Federally-listed 

threatened or endangered species or 

designated critical habitat pursuant to 

§ 125.94(g), the Director shall require 

monitoring associated with those 

measures. 

§ 125.97 Other permit reporting and 

recordkeeping requirements. 

The owner or operator of an existing 

facility subject to this subpart is 

required to submit to the Director the 

following information: 

(a) Monitoring reports. Discharge 

Monitoring Reports (DMRs) (or 

equivalent State reports) and results of 

all monitoring, demonstrations, and 


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other information required by the 

permit sufficient to determine 

compliance with the permit conditions 

and requirements established under 

§ 125.94. 

(b) Status reports. Any reports 

required by the Director under § 125.94. 

(c) Annual certification statement and 

report. An annual certification 

statement signed by the responsible 

corporate officer as defined in § 122.22 

of this chapter subject to the following: 

(1) If the information contained in the 

previous year’s annual certification is 

still pertinent, you may simply state as 

such in a letter to the Director and the 

letter, along with any applicable data 

submission requirements specified in 

this section shall constitute the annual 

certification. 

(2) If you have substantially modified 

operation of any unit at your facility 

that impacts cooling water withdrawals 

or operation of your cooling water 

intake structures, you must provide a 

summary of those changes in the report. 

In addition, you must submit revisions 

to the information required at 

§ 122.21(r) of this chapter in your next 

permit application. 

(d) Permit reporting records retention. 

Records of all submissions that are part 

of the permit reporting requirements of 

this section must be retained until the 

subsequent permit is issued. In 

addition, the Director may require 

supplemental recordkeeping such as 

compliance monitoring under § 125.96, 

supplemental data collection under 40 

CFR 122.21, additional monitoring or 

data collection under § 125.95. 

(e) Reporting. The Director has the 

discretion to require additional 

reporting when necessary to establish 

permit compliance and may provide for 

periodic inspection of the facility. The 

Director may require additional 

reporting including but not limited to 

the records required under § 125.97(d). 

(f) Records of Director’s 

Determination of BTA for Entrainment. 

All records supporting the Director’s 

Determination of BTA for Entrainment 

under § 125.98(f) or (g) must be retained 

until such time as the Director revises 

the Determination of BTA for 

Entrainment in the permit. 

(g) Additional reporting requirements 

related to Federally-listed threatened 

and endangered species or designated 

critical habitat. Where 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 measures. 

§ 125.98 Director requirements. 

(a) Permit application. The Director 

must review the materials submitted by 

the applicant under 40 CFR 122.21(r) for 

completeness pursuant to 40 CFR 

122.21(e) at the time of initial permit 

application and any application for a 

subsequent permit. 

(b) Permitting requirements. Section 

316(b) requirements are implemented 

through an NPDES permit. Based on the 

information submitted in the permit 

application, the Director must 

determine the requirements and 

conditions to include in the permit. 

(1) Such permits, including permits 

with alternative requirements under 

paragraph (b)(7) of this section, 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.’’ 

(2) In the case of any permit issued 

after July 14, 2018, at a minimum, the 

permit must include conditions 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 habitat 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). Pursuant to 

§ 125.94(g), the permit may include 

additional control measures, monitoring 

requirements, and reporting 

requirements that are 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 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 CFR 124.10. The Director may 

include additional permit requirements 

if: 

(i) Based 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 

indirectly affected by the cooling water 

intake structure; or 

(ii) It 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. 

(3) At a minimum, the permit must 

require the permittee to monitor as 

required at §§ 125.94 and 125.96. 

(4) At a minimum, the permit must 

require the permittee to report and keep 

the records specified at § 125.97. 

(5) After October 14, 2014, in the case 

of any permit issued before July 14, 

2018 for which the Director, pursuant to 

§ 125.95(a)(2), has established an 

alternate schedule for submission of the 

information required by 40 CFR 

122.21(r), the Director may include 

permit conditions to ensure that, for any 

subsequent permit, the Director will 

have all the information required by 40 

CFR 122.21(r) necessary to establish 

impingement mortality and entrainment 

BTA requirements under § 125.94(c) and 

(d). In addition, the Director must 

establish interim BTA requirements in 

the permit based on the Director’s best 

professional judgment on a site-specific 

basis in accordance with § 125.90(b) and 

40 CFR 401.14. 

(6) In the case of any permit issued 

after October 14, 2014, and applied for 

before October 14, 2014, the Director 

may include permit conditions to 

ensure that the Director will have all the 

information under 40 CFR 122.21(r) 

necessary to establish impingement 

mortality and entrainment BTA 

requirements under § 125.94(c) and (d) 

for the subsequent permit. The Director 

must establish interim BTA 

requirements in the permit on a sitespecific basis based on the Director’s 

best professional judgment in 

accordance with § 125.90(b) and 40 CFR 

401.14. 

(7) For new units at existing facilities, 

the Director may establish alternative 

requirements if the data specific to the 

facility indicate that compliance with 

the requirements of § 125.94(e)(1) or (2) 

for each new unit would result in 

compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at 

issue, or would result in significant 

adverse impacts on local air quality, 

significant adverse impacts on local 

water resources other than impingement 


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48438 Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 

or entrainment, or significant adverse 

impacts on local energy markets: 

(i) The alternative requirements must 

achieve a level of performance as close 

as practicable to the requirements of 

§ 125.94(e)(1); 

(ii) The alternative requirements must 

ensure compliance with these 

regulations, other provisions of the 

Clean Water Act, and State and Tribal 

law; 

(iii) The burden is on the owner or 

operator of the facility requesting the 

alternative requirement to demonstrate 

that alternative requirements should be 

authorized for the new unit. 

(8) The Director may require 

additional measures such as seasonal 

deployment of barrier nets, to protect 

shellfish. 

(c) Compliance schedule. When the 

Director establishes a schedule of 

requirements under § 125.94(b), the 

schedule must provide for compliance 

with § 125.94(c) and (d) as soon as 

practicable. When establishing a 

schedule for electric power generating 

facilities, the Director should consider 

measures to maintain adequate energy 

reliability and necessary grid reserve 

capacity during any facility outage. 

These may include establishing a 

staggered schedule for multiple facilities 

serving the same localities. The Director 

may confer with independent system 

operators and state public utility 

regulatory agencies when establishing a 

schedule for electric power generating 

facilities. The Director may determine 

that extenuating circumstances (e.g., 

lengthy scheduled outages, future 

production schedules) warrant 

establishing a different compliance date 

for any manufacturing facility. 

(d) Supplemental Technologies and 

Monitoring. The Director may require 

additional technologies for protection of 

fragile species, and may require 

additional monitoring of species of fish 

and shellfish not already required under 

§ 125.95(c). The Director may consider 

data submitted by other interested 

parties. The Director may also require 

additional study and monitoring if a 

threatened or endangered species has 

been identified in the vicinity of the 

intake. 

(e) Impingement technology 

performance optimization study. The 

owner or operator of a facility that 

chooses to comply with § 125.94(c)(5) or 

(6) must demonstrate in its impingement 

technology performance optimization 

study that the operation of its 

impingement reduction technology has 

been optimized to minimize 

impingement mortality of non-fragile 

species. The Director may request 

further data collection and information 

as part of the impingement technology 

performance optimization study, 

including extending the study period 

beyond two years. The Director may 

also consider previously collected 

biological data and performance reviews 

as part of the study. The Director must 

include in the permit verifiable and 

enforceable permit conditions that 

ensure the modified traveling screens or 

other systems of technologies will 

perform as demonstrated. The Director 

may waive all or part of the 

impingement technology performance 

optimization study at 40 

CFR122.21(r)(6) after the first permit 

cycle wherein the permittee is deemed 

in compliance with § 125.94(c). 

(f) Site-specific entrainment 

requirements. The 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 determination 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 including 

impingement, entrainment, or other 

adverse effects to Federally-listed 

threatened or endangered species or 

designated critical habitat. Prior to any 

permit reissuance after July 14, 2018, 

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). 

(1) The 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 entrainment 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 

technologies. 

(2) The proposed determination in the 

fact sheet or statement of basis must be 

based on consideration of any 

additional information required by the 

Director at § 125.98(i) and the following 

factors listed below. The weight given to 

each factor is within the Director’s 

discretion based upon the 

circumstances of each facility. 

(i) Numbers and types of organisms 

entrained, including, specifically, the 

numbers and species (or lowest 

taxonomic classification possible) of 

Federally-listed, threatened and 

endangered species, and designated 

critical habitat (e.g., prey base); 

(ii) Impact of changes in particulate 

emissions or other pollutants associated 

with entrainment technologies; 

(iii) Land availability inasmuch as it 

relates to the feasibility of entrainment 

technology; 

(iv) Remaining useful plant life; and 

(v) Quantified and qualitative social 

benefits and costs of available 

entrainment technologies when such 

information on both benefits and costs 

is of sufficient rigor to make a decision. 

(3) The proposed determination in the 

fact sheet or statement of basis may be 

based on consideration of the following 

factors to the extent the applicant 

submitted information under 40 CFR 

122.21(r) on these factors: 

(i) Entrainment impacts on the 

waterbody; 

(ii) Thermal discharge impacts; 

(iii) Credit for reductions in flow 

associated with the retirement of units 

occurring within the ten years preceding 

October 14, 2014; 

(iv) Impacts on the reliability of 

energy delivery within the immediate 

area; 

(v) Impacts on water consumption; 

and 

(vi) Availability of process water, gray 

water, waste water, reclaimed water, or 

other waters of appropriate quantity and 

quality for reuse as cooling water. 

(4) If all technologies considered have 

social costs not justified by the social 

benefits, or have unacceptable adverse 

impacts that cannot be mitigated, the 

Director may determine that no 

additional control requirements are 

necessary beyond what the facility is 

already doing. The Director may reject 

an otherwise available technology as a 

BTA standard for entrainment if the 

social costs are not justified by the 

social benefits. 

(g) Ongoing permitting proceedings. 

In the case of permit proceedings begun 

prior to October 14, 2014 whenever the 

Director has determined that the 

information already submitted by the 

owner or operator of the facility is 

sufficient, the Director may proceed 

with a determination of BTA standards 

for impingement mortality and 


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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations 48439 

entrainment without requiring the 

owner or operator of the facility to 

submit the information required in 40 

CFR 122.21(r). The Director’s BTA 

determination may be based on some or 

all of the factors in paragraphs (f)(2) and 

(3) of this section and the BTA 

standards for impingement mortality at 

§ 125.95(c). In making the decision on 

whether to require additional 

information from the applicant, and 

what BTA requirements to include in 

the applicant’s permit for impingement 

mortality and site-specific entrainment, 

the Director should consider whether 

any of the information at 40 CFR 

122.21(r) is necessary. 

(h) The Director must transmit all 

permit applications for facilities subject 

to this subpart to the appropriate Field 

Office of the U.S. Fish and Wildlife 

Service 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 an opportunity to 

comment as required under 40 CFR 

124.10 and must submit a copy of the 

fact sheet or statement of basis (for EPAissued 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 Regional 

Office of the National Marine Fisheries 

Service. This includes notice of specific 

cooling water intake structure 

requirements at § 124.10(d)(1)(ix) of this 

chapter, 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. 

(i) Additional information. In 

implementing the Director’s 

responsibilities 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 from the 

facility recommended by the Services 

upon review of the permit application 

under paragraph (h) of this section. 

(j) Nothing in this subpart authorizes 

the take, as defined at 16 U.S.C. 

1532(19), of threatened or endangered 

species of fish or wildlife. Such take is 

prohibited under the Endangered 

Species Act unless it is exempted 

pursuant to 16 U.S.C. 1536(o) or 

permitted pursuant to 16 U.S.C. 1539(a). 

Absent such exemption or permit, any 

facility operating under the authority of 

this regulation must not take threatened 

or endangered wildlife. 

(k) The 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. 

§ 125.99 [Reserved] 

[FR Doc. 2014–12164 Filed 8–14–14; 8:45 am] 

BILLING CODE 6560–50–P 


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