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.
---------------------------------------------------------------------------

    \164\ The 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 closed-cycle recirculating. EPA did not find
that this assumption would change EPA's final rule decision; see DCN
12-2501.
---------------------------------------------------------------------------

    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\
------------------------------------------------------------------------
                                        Total social
               Option                     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
------------------------------------------------------------------------
\a\ Social costs and benefits were annualized over 51 years and
  discounted using 3 percent rate.
\b\ Total social costs include compliance costs to facilities and
  government administrative costs. See EA Chapter 7.
\c\ Benefits 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 Sec. Sec.  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 Sec.  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

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.
Non-labor 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 Sec. Sec.  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 (Sec.  122.21(r)(2))
     Cooling Water Intake Structure Data (Sec.  122.21(r)(3))
     Source Water Baseline Biological Characterization Data
(Sec.  122.21(r)(4))
     Cooling Water System Data (Sec.  122.21(r)(5))
     Chosen Method of Compliance With Impingement Mortality
Standards (Sec.  122.21(r)(6))
     Performance Studies (Sec.  122.21(r)(7))
     Operational Status (Sec.  122.21(r)(8))
     Entrainment Characterization Study (Sec.  122.21(r)(9))
     Comprehensive Technical Feasibility and Cost Evaluation
Study (Sec.  122.21(r)(10))
     Benefits Valuation Study (Sec.  122.21(r)(11))
     Non-Water Quality and Other Environmental Impacts Study
(Sec.  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 Sec.  125.94 and in accordance with
Sec. Sec.  125.96 and 125.97.
    Finally, in accordance with Sec.  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 Sec.
125.95(a) or Sec.  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 Sec.  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-for-profit 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     500 employees.
                                       Surface Mining.
221210..............................  Natural Gas Distribution......  500 employees.
331110..............................  Iron and Steel Mills and        1,000 employees.
                                       Ferroalloy Manufacturing.
331315..............................  Aluminum Sheet, Plate, and      750 employees.
                                       Foil Manufacturing.
333611..............................  Turbine and Turbine Generator   1,000 employees.
                                       Set Units Manufacturing.
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    1,500 employees.
                                       Insurance Carriers.

525910..............................  Open-End Investment Funds.....  $7 million in revenue.
525990..............................  Other Financial Vehicles......  $7 million in revenue.
541990..............................  All Other Professional,         $14 million in revenue.
                                       Scientific, and Technical
                                       Services.
551112..............................  Offices of Other Holding        $7 million in revenue.
                                       Companies.
562212..............................  Solid Waste Landfill..........  $35.5 million in revenue.
562219..............................  Other Nonhazardous Waste        $35.5 million in revenue.
                                       Treatment and Disposal.
562920..............................  Materials Recovery Facilities.  $19 million in revenue.
611310..............................  Colleges, Universities, and     $25.5 million in revenue.
                                       Professional Schools.
----------------------------------------------------------------------------------------------------------------

    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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Using facility-level weights                   Using entity-level weights \b\
                   Ownership type \a\                    -----------------------------------------------------------------------------------------------
                                                               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
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ State 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    500 employees.
                                Gas Extraction.
212210.......................  Iron Ore Mining..............  500 employees.
212391.......................  Potash, Soda, and Borate       500 employees.
                                Mineral Mining.
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              500 employees.
                                Manufacturing.
313210.......................  Broadwoven Fabric Mills......  1,000 employees.
321113.......................  Sawmills.....................  500 employees.
322121.......................  Paper (except Newsprint)       750 employees.
                                Mills.
322122.......................  Newsprint Mills..............  750 employees.
322130.......................  Paperboard Mills.............  750 employees.
322211.......................  Corrugated and Solid Fiber     500 employees.
                                Box Manufacturing.
322220.......................  Paper Bag and Coated and       500 employees.
                                Treated Paper Manufacturing.
322291.......................  Sanitary Paper Product         500 employees.
                                Manufacturing.
324110.......................  Petroleum Refineries.........  1,500 employees.

324191.......................  Petroleum Lubricating Oil and  500 employees.
                                Grease Manufacturing.
325120.......................  Industrial Gas Manufacturing.  1,000 employees.
325180.......................  Other Basic Inorganic          1,000 employees.
                                Chemical Manufacturing.
325199.......................  All Other Basic Organic        1,000 employees.
                                Chemical Manufacturing.
325211.......................  Plastics Material and Resin    750 employees.
                                Manufacturing.
325311.......................  Nitrogenous Fertilizer         1,000 employees.
                                Manufacturing.
325320.......................  Pesticide and Other            500 employees.
                                Agricultural Chemical
                                Manufacturing.
325412.......................  Pharmaceutical Preparation     750 employees.
                                Manufacturing.
325510.......................  Paint and Coating              500 employees.
                                Manufacturing.
325992.......................  Photographic Film, Paper,      500 employees.
                                Plate and Chemical
                                Manufacturing.
325998.......................  All Other Miscellaneous        500 employees.
                                Chemical Product and
                                Preparation Manufacturing.
331110.......................  Iron and Steel Mills and       1,000 employees.
                                Ferroalloy Manufacturing.
331210.......................  Iron and Steel Pipe and Tube   1,000 employees.
                                Manufacturing from Purchased
                                Steel.
331221.......................  Rolled Steel Shape             1,000 employees.
                                Manufacturing.
331222.......................  Steel Wire Drawing...........  1,000 employees.
331313.......................  Alumina Refining and Primary   1,000 employees.
                                Aluminum Production.
331315.......................  Aluminum Sheet, Plate and      750 employees.
                                Foil Manufacturing.
331410.......................  Nonferrous Metal (except       1,000 employees.
                                Aluminum) Smelting and
                                Refining.
332312.......................  Fabricated Structural Metal    500 employees.
                                Manufacturing.
337910.......................  Mattress Manufacturing.......  500 employees.
339999.......................  All Other Miscellaneous        500 employees.
                                Manufacturing.
423310.......................  Lumber, Plywood, Millwork,     100 employees.
                                and Wood Panel Merchant
                                Wholesalers.
423930.......................  Recyclable Material Merchant   100 employees.
                                Wholesalers.
424510.......................  Grain and Field Bean Merchant  100 employees.
                                Wholesalers.
424690.......................  Other Chemical and Allied      100 employees.
                                Products Merchant
                                Wholesalers.
424710.......................  Petroleum Bulk Stations and    100 employees.
                                Terminals.
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   1,500 employees.
                                Insurance Carriers.
525990.......................  Other Financial Vehicles.....  $7 million in revenue.
531110.......................  Lessors of Residential         $25 million in revenue.
                                Buildings and Dwellings.
551112.......................  Offices of Other Holding       $7 million in revenue.
                                Companies.
561110.......................  Office Administrative          $7 million in revenue.
                                Services.
----------------------------------------------------------------------------------------------------------------

    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 sample-weighting 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
----------------------------------------------------------------------------------------------------------------
                                      Lower-bound estimate of number of      Upper-bound estimate of number of
                                         entities that own regulated            entities that own regulated
             Industry                             facilities                             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

Steel.............................           13            1          7.7           32            2          5.2
Multiple Industries \a\...........            4            0          0.0           14            0          0.0
                                   -----------------------------------------------------------------------------
    Primary Manufacturing                   110           17         15.5          327           52         16.0
     Industries \b\--Total........
----------------------------------------------------------------------------------------------------------------
\a\ These are small entities that own regulated facilities from multiple industries.
\b\ EPA 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-to-revenue
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 sample-
weighting 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.

                     Exhibit XI-6--Estimated Cost-To-Revenue Impact for Small Entities That Own Facilities Subject to the Regulation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Cost impact category
                                     -------------------------------------------------------------------------------------------------------------------
                                                      Cost >=1% of revenue \a\                                  Cost >=3% of revenue \a\
          Regulated Segment          -------------------------------------------------------------------------------------------------------------------
                                                                       % of small regulated       Number of small entities       % of small regulated
                                        Number of small entities           entities \b\                     \c\                      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               3 to 7                       4% to 13%                    0 to 1                       0% to 2%
 Manufacturers \d\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ For 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).
\b\ Percentage 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).
\c\ Entities 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.
\d\ Entity 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
technology-related 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 pre-tax (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.
---------------------------------------------------------------------------

    \165\ This 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.
    \166\ Both 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.
---------------------------------------------------------------------------

    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

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 technology-based
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 non-government 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 Entity-Size
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 non-government 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.
---------------------------------------------------------------------------

    \167\ Excluding Federal government entities and regulated
facilities they own.

                                    Exhibit XI-8--Electric Generators and Compliance Costs by Ownership Type and Size
                                                               [In millions, 2011 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Number of         Total        Average cost       Maximum
                 Ownership type                                Entity size                 facilities       compliance     per facility   facility  cost
                                                                                (weighted) \a\       costs             \d\             \e\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule:
    Government (excluding Federal)..............  Small................................              16             $2.6            $0.2            $0.5

                                                  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
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Facility 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.
\b\ Facility counts and cost estimates reported for the private sector include facilities owned by rural electric cooperatives.
\c\ Facility counts and cost estimates reported for All Facilities include facilities owned by the Federal government and costs estimated for these
  facilities.
\d\ EPA 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.
---------------------------------------------------------------------------

    \168\ Federal 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.

                            Exhibit XI-9--Annualized Government Administrative Costs
                                           [In millions, 2011 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                               Cost
                                                                 --------------------------------
                            Activity                                 Electric                          Total
                                                                    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-by-case 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

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.
---------------------------------------------------------------------------

    \169\ This estimate does not include costs to administer the new
unit provision of the final rule; however, EPA expects these costs
to be small.
    \170\ Cost 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).
---------------------------------------------------------------------------

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 low-income 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

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).
---------------------------------------------------------------------------

    \171\ Annual 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
low- and 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.
    \172\ Race 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.
---------------------------------------------------------------------------

    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 over-represented 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

0
1. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. The suspension of 40 CFR 122.21(r)(1)(ii) and (r)(5), published on
July 9, 2007 (72 FR 37109) is lifted.

0
3. Section 122.21 is amended as follows:
0
a. Revising paragraph (r)(1).
0
b. Adding paragraphs (r)(4)(ix) through (xii).
0
c. Revising paragraph (r)(5).
0
d. Adding paragraphs (r)(6) through (14).

Sec.  122.21  Application for a permit (applicable to State programs,
see Sec.  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 Sec.  125.86 of this chapter as part of the

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 Sec.  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

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 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. 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

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 life-stages 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 closed-cycle 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 closed-cycle 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

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 Sec.
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

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

0
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]

0
5. Section 125.84 is amended by revising paragraphs (c) introductory
text and (d)(1) to read as follows:

Sec.  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.
* * * * *

0
6. Section 125.86 is amended as follows:
0
a. Revise paragraphs (a)(1)(ii), (b)(3) introductory text, and
(b)(4)(iii) introductory text.
0
b. Remove and reserve paragraphs (c)(2)(ii), (c)(2)(iv)(C), and
(c)(2)(iv)(D)(2).

Sec.  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 Sec.  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 Sec.
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:
* * * * *

0
7. Section 125.87 is amended by revising paragraphs (a) introductory
text and (a)(2) to read as follows:

Sec.  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 Sec.  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
Sec.  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
Sec.  125.86(c)(2). You must collect samples only when the cooling
water intake structure is in operation.
* * * * *

0
8. Section 125.89 is amended by revising paragraphs (a) introductory
text and (b)(1)(i) and (ii) to read as follows:

Sec.  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 Sec.  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 Sec.
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

of all life stages of fish and shellfish. In addition, you must
consider whether more stringent conditions are reasonably necessary in
accordance with Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  125.84(b)(1) and (2).
* * * * *

0
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.

0
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

Sec.  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 Sec. Sec.  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 Sec.  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).

Sec.  125.91  Applicability.

    (a) The owner or operator of an existing facility, as defined in
Sec.  125.92(k), is subject to the requirements at Sec. Sec.  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 Sec.  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.

Sec.  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

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 Sec.  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 Sec.  125.83.

    (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 re-impingement 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 ``stand-alone'' 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 Sec.  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