U.S. Code of Federal Regulations
Regulations most recently checked for updates: May 28, 2023
(a) Permit application. The Director must review the materials submitted by the applicant under 40 CFR 122.21(r) for completeness pursuant to 40 CFR 122.21(e) at the time of initial permit application and any application for a subsequent permit.
(b) Permitting requirements. Section 316(b) requirements are implemented through an NPDES permit. Based on the information submitted in the permit application, the Director must determine the requirements and conditions to include in the permit.
(1) Such permits, including permits with alternative requirements under paragraph (b)(7) of this section, must include the following language as a permit condition: “Nothing in this permit authorizes take for the purposes of a facility's compliance with the Endangered Species Act.”
(2) In the case of any permit issued after July 14, 2018, at a minimum, the permit must include conditions to implement and ensure compliance with the impingement mortality standard at § 125.94(c) and the entrainment standard at § 125.94(d), including any measures to protect Federally-listed threatened and endangered species and designated critical habitat required by the Director. In addition, the permit must include conditions, management practices and operational measures necessary to ensure proper operation of any technology used to comply with the impingement mortality standard at § 125.94(c) and the entrainment standard at § 125.94(d). Pursuant to § 125.94(g), the permit may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to Federally-listed species and designated critical habitat, or avoid jeopardizing Federally-listed species or destroying or adversely modifying designated critical habitat (e.g. prey base). Such control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service during the 60 day review period pursuant to § 125.98(h) or the public notice and comment period pursuant to 40 CFR 124.10. The Director may include additional permit requirements if:
(i) Based on information submitted to the Director by any fishery management agency or other relevant information, there are migratory or sport or commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure; or
(ii) It is determined by the Director, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to Federally-listed and proposed, threatened and endangered species, and designated and proposed critical habitat.
(3) At a minimum, the permit must require the permittee to monitor as required at §§ 125.94 and 125.96.
(4) At a minimum, the permit must require the permittee to report and keep the records specified at § 125.97.
(5) After October 14, 2014, in the case of any permit issued before July 14, 2018 for which the Director, pursuant to § 125.95(a)(2), has established an alternate schedule for submission of the information required by 40 CFR 122.21(r), the Director may include permit conditions to ensure that, for any subsequent permit, the Director will have all the information required by 40 CFR 122.21(r) necessary to establish impingement mortality and entrainment BTA requirements under § 125.94(c) and (d). In addition, the Director must establish interim BTA requirements in the permit based on the Director's best professional judgment on a site-specific basis in accordance with § 125.90(b) and 40 CFR 401.14.
(6) In the case of any permit issued after October 14, 2014, and applied for before October 14, 2014, the Director may include permit conditions to ensure that the Director will have all the information under 40 CFR 122.21(r) necessary to establish impingement mortality and entrainment BTA requirements under § 125.94(c) and (d) for the subsequent permit. The Director must establish interim BTA requirements in the permit on a site-specific basis based on the Director's best professional judgment in accordance with § 125.90(b) and 40 CFR 401.14.
(7) For new units at existing facilities, the Director may establish alternative requirements if the data specific to the facility indicate that compliance with the requirements of § 125.94(e)(1) or (2) for each new unit would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirements at issue, or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets:
(i) The alternative requirements must achieve a level of performance as close as practicable to the requirements of § 125.94(e)(1);
(ii) The alternative requirements must ensure compliance with these regulations, other provisions of the Clean Water Act, and State and Tribal law;
(iii) The burden is on the owner or operator of the facility requesting the alternative requirement to demonstrate that alternative requirements should be authorized for the new unit.
(8) The Director may require additional measures such as seasonal deployment of barrier nets, to protect shellfish.
(c) Compliance schedule. When the Director establishes a schedule of requirements under § 125.94(b), the schedule must provide for compliance with § 125.94(c) and (d) as soon as practicable. When establishing a schedule for electric power generating facilities, the Director should consider measures to maintain adequate energy reliability and necessary grid reserve capacity during any facility outage. These may include establishing a staggered schedule for multiple facilities serving the same localities. The Director may confer with independent system operators and state public utility regulatory agencies when establishing a schedule for electric power generating facilities. The Director may determine that extenuating circumstances (e.g., lengthy scheduled outages, future production schedules) warrant establishing a different compliance date for any manufacturing facility.
(d) Supplemental Technologies and Monitoring. The Director may require additional technologies for protection of fragile species, and may require additional monitoring of species of fish and shellfish not already required under § 125.95(c). The Director may consider data submitted by other interested parties. The Director may also require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.
(e) Impingement technology performance optimization study. The owner or operator of a facility that chooses to comply with § 125.94(c)(5) or (6) must demonstrate in its impingement technology performance optimization study that the operation of its impingement reduction technology has been optimized to minimize impingement mortality of non-fragile species. The Director may request further data collection and information as part of the impingement technology performance optimization study, including extending the study period beyond two years. The Director may also consider previously collected biological data and performance reviews as part of the study. The Director must include in the permit verifiable and enforceable permit conditions that ensure the modified traveling screens or other systems of technologies will perform as demonstrated. The Director may waive all or part of the impingement technology performance optimization study at 40 CFR122.21(r)(6) after the first permit cycle wherein the permittee is deemed in compliance with § 125.94(c).
(f) Site-specific entrainment requirements. The Director must establish site-specific requirements for entrainment after reviewing the information submitted under 40 CFR 122.21(r) and § 125.95. These entrainment requirements must reflect the Director's determination of the maximum reduction in entrainment warranted after consideration of factors relevant for determining the best technology available for minimizing adverse environmental impact at each facility. These entrainment requirements may also reflect any control measures to reduce entrainment of Federally-listed threatened and endangered species and designated critical habitat (e.g. prey base). The Director may reject an otherwise available technology as a basis for entrainment requirements if the Director determines there are unacceptable adverse impacts including impingement, entrainment, or other adverse effects to Federally-listed threatened or endangered species or designated critical habitat. Prior to any permit reissuance after July 14, 2018, the Director must review the performance of the facility's installed entrainment technology to determine whether it continues to meet the requirements of § 125.94(d).
(1) The Director must provide a written explanation of the proposed entrainment determination in the fact sheet or statement of basis for the proposed permit under 40 CFR 124.7 or 124.8. The written explanation must describe why the Director has rejected any entrainment control technologies or measures that perform better than the selected technologies or measures, and must reflect consideration of all reasonable attempts to mitigate any adverse impacts of otherwise available better performing entrainment technologies.
(2) The proposed determination in the fact sheet or statement of basis must be based on consideration of any additional information required by the Director at § 125.98(i) and the following factors listed below. The weight given to each factor is within the Director's discretion based upon the circumstances of each facility.
(i) Numbers and types of organisms entrained, including, specifically, the numbers and species (or lowest taxonomic classification possible) of Federally-listed, threatened and endangered species, and designated critical habitat (e.g., prey base);
(ii) Impact of changes in particulate emissions or other pollutants associated with entrainment technologies;
(iii) Land availability inasmuch as it relates to the feasibility of entrainment technology;
(iv) Remaining useful plant life; and
(v) Quantified and qualitative social benefits and costs of available entrainment technologies when such information on both benefits and costs is of sufficient rigor to make a decision.
(3) The proposed determination in the fact sheet or statement of basis may be based on consideration of the following factors to the extent the applicant submitted information under 40 CFR 122.21(r) on these factors:
(i) Entrainment impacts on the waterbody;
(ii) Thermal discharge impacts;
(iii) Credit for reductions in flow associated with the retirement of units occurring within the ten years preceding October 14, 2014;
(iv) Impacts on the reliability of energy delivery within the immediate area;
(v) Impacts on water consumption; and
(vi) Availability of process water, gray water, waste water, reclaimed water, or other waters of appropriate quantity and quality for reuse as cooling water.
(4) If all technologies considered have social costs not justified by the social benefits, or have unacceptable adverse impacts that cannot be mitigated, the Director may determine that no additional control requirements are necessary beyond what the facility is already doing. The Director may reject an otherwise available technology as a BTA standard for entrainment if the social costs are not justified by the social benefits.
(g) Ongoing permitting proceedings. In the case of permit proceedings begun prior to October 14, 2014 whenever the Director has determined that the information already submitted by the owner or operator of the facility is sufficient, the Director may proceed with a determination of BTA standards for impingement mortality and entrainment without requiring the owner or operator of the facility to submit the information required in 40 CFR 122.21(r). The Director's BTA determination may be based on some or all of the factors in paragraphs (f)(2) and (3) of this section and the BTA standards for impingement mortality at § 125.95(c). In making the decision on whether to require additional information from the applicant, and what BTA requirements to include in the applicant's permit for impingement mortality and site-specific entrainment, the Director should consider whether any of the information at 40 CFR 122.21(r) is necessary.
(h) The Director must transmit all permit applications for facilities subject to this subpart to the appropriate Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service upon receipt for a 60 day review prior to public notice of the draft or proposed permit. The Director shall provide the public notice and an opportunity to comment as required under 40 CFR 124.10 and must submit a copy of the fact sheet or statement of basis (for EPA-issued permits), the permit application (if any) and the draft permit (if any) to the appropriate Field Office of the. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service. This includes notice of specific cooling water intake structure requirements at § 124.10(d)(1)(ix) of this chapter, notice of the draft permit, and any specific information the Director has about threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for such species and habitat.
(i) Additional information. In implementing the Director's responsibilities under the provisions of this subpart, the Director is authorized to inspect the facility and to request additional information needed by the Director for determining permit conditions and requirements, including any additional information from the facility recommended by the Services upon review of the permit application under paragraph (h) of this section.
(j) Nothing in this subpart authorizes the take, as defined at 16 U.S.C. 1532(19), of threatened or endangered species of fish or wildlife. Such take is prohibited under the Endangered Species Act unless it is exempted pursuant to 16 U.S.C. 1536(o) or permitted pursuant to 16 U.S.C. 1539(a). Absent such exemption or permit, any facility operating under the authority of this regulation must not take threatened or endangered wildlife.
(k) The Director must submit at least annually to the appropriate EPA Regional Office facilities' annual reports submitted pursuant to § 125.97(g), for compilation and transmittal to the Services.