National Pollutant Discharge Elimination System--Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities [[pp. 68543-68565]]

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 
[Federal Register: November 24, 2004 (Volume 69, Number 226)]
[Proposed Rules]
[Page 68543-68565]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no04-27]
 
[[pp. 68543-68565]]
National Pollutant Discharge Elimination System--Proposed 
Regulations To Establish Requirements for Cooling Water Intake 
Structures at Phase III Facilities

[[Continued from page 68542]]
[[Page 68543]]

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 
1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and 
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 
42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 300g-3, 
300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9, 1857 
et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048.

    2. In Sec.  9.1 the table is amended by revising the entry for 
``122.21(r)'' and by adding entries in numerical order under the 
indicated heading to read as follows:

Sec.  9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
           40 CFR citation                      OMB Control No.
------------------------------------------------------------------------

                              * * * * * * *
-------------------------------------
   EPA Administered Permit Programs: The National Pollutant Discharge
                           Elimination System
------------------------------------------------------------------------

                              * * * * * * *
122.21(r)...........................     2040-0241, 2040-0257, xxxx-xxxx

                              * * * * * * *
-------------------------------------
 Criteria and Standards for the National Pollutant Discharge Elimination
                                 System
------------------------------------------------------------------------

                              * * * * * * *
125.103.............................                           xxxx-xxxx
125.104.............................                           xxxx-xxxx
125.106.............................                           xxxx-xxxx
125.107.............................                           xxxx-xxxx
125.108.............................                           xxxx-xxxx

                              * * * * * * *
------------------------------------------------------------------------

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

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

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

    2. Section 122.21 is amended as follows:
    a. Revising paragraph (r)(1).
    b. Adding a new paragraph (r)(2)(iv).
    c. Revising paragraph (r)(4) introductory text.
    d. Revising paragraph (r)(5) introductory text.

Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25)

* * * * *
    (r) Application requirements for facilities with cooling water 
intake structures--(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) of this section and Sec.  125.86 of 
this chapter as part of their 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) of this section and 
Sec.  125.136 of this chapter as part of their application. New 
offshore oil and gas extraction facilities that are not fixed 
facilities must submit to the Director for review only the information 
required under paragraphs (r)(2)(iv), (r)(3) (except (r)(3)(ii)), and 
Sec.  125.136 of this chapter as part of their application. Requests 
for alternative requirements under Sec.  125.85 or Sec.  125.135 of 
this chapter must be submitted with your permit application.
    (ii) Phase II existing facilities. Phase II existing facilities as 
defined in part 125, subpart J, of this chapter must submit to the 
Director for review the information required under paragraphs (r)(2) 
(except (r)(2)(iv)), (3), and (5) of this section and all applicable 
provisions of Sec.  125.95 of this chapter as part of their application 
except for the Proposal for Information Collection which must be 
provided in accordance with Sec.  125.95(b)(1).
    (iii) Phase III existing facilities. Phase III existing facilities 
as defined in part 125, subpart K, of this chapter must submit to the 
Director for review the information required under paragraphs (r)(2) 
(except (r)(2)(iv)), (3), and (5) of this section and all applicable 
provisions of Sec.  125.104 of this chapter as part of their 
application except for the Proposal for Information Collection which 
must be provided in accordance with Sec.  125.104(b)(1) of this chapter.
    (2) * * *
    (iv) For new offshore oil and gas facilities that are not fixed 
facilities, a narrative description and/or locational maps providing 
information on predicted locations within the waterbody during the 
permit term in sufficient detail for the Director to determine the 
appropriateness of additional impingement requirements under Sec.  
125.134(b)(4) of this chapter.
* * * * *
    (4) Source water baseline biological characterization data. This 
information is required to characterize the biological community in the 
vicinity of the cooling water intake structure and to characterize the 
operation of the cooling water intake structures. The Director may also 
use this information in subsequent permit renewal proceedings to 
determine if your Design and Construction Technology Plan as required 
in Sec.  125.86(b)(4) or Sec.  125.136(b)(3) of this chapter should be 
revised. This supporting information must include existing data (if 
they are available). However, you may supplement the data using newly 
conducted field studies if you choose to do so. The information you 
submit must include:
* * * * *
    (5) Cooling water system data. Phase II and III existing facilities 
as defined in part 125, subparts J and K, respectively, of this chapter 
must provide the

[[Page 68544]]

following information for each cooling water intake structure they use:
* * * * *
    3. Section 122.44 is amended by revising paragraph (b)(3) to read 
as follows:

Sec.  122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec.  123.25).

* * * * *
    (b) * * *
    (3) Requirements applicable to cooling water intake structures 
under section 316(b) of the CWA, in accordance with part 125, subparts 
I, J, K, and N of this chapter.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as follows:

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

    2. Section 123.25 is amended by revising paragraph (a)(36) to read 
as follows:

Sec.  123.25  Requirements for permitting.

    (a) * * *
    (36) Subparts A, B, D, H, I, J, K, and N of part 125 of this 
chapter;
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.
    2. Section 124.10 is amended by revising paragraph (d)(1)(ix) to 
read as follows:

Sec.  124.10  Public notice of permit actions and public comment period.

* * * * *
    (d) * * *
    (1) * * *
    (ix) Requirements applicable to cooling water intake structures 
under section 316(b) of the CWA, in accordance with part 125, subparts 
I , J, K, and N of this chapter.
* * * * *

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 125 continues to read as follows:

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.; unless 
otherwise noted.

    2. Add subpart K to part 125 to read as follows:
Subpart K--Requirements Applicable to Cooling Water Intake Structures 
for Phase III Existing Facilities Under Section 316(b) of the Act
Sec.
125.100 What are the purpose and scope of this subpart?
125.101 What is a ``Phase III existing facility''?
125.102 What special definitions apply to this subpart?
125.103 How will requirements reflecting best technology available 
for minimizing adverse environmental impact be established for my 
Phase III existing facility?
125.104 As an owner or operator of a Phase III existing facility, 
what must I collect and submit when I apply for my reissued NPDES permit?
125.105 As an owner or operator of a Phase III existing facility, 
what monitoring must I perform?
125.106 As an owner or operator of a Phase III existing facility, 
what records must I keep and what information must I report?
125.107 As the Director, what must I do to comply with the 
requirements of this subpart?
125.108 What are Approved Design and Construction Technologies?

Subpart K--Requirements Applicable to Cooling Water Intake 
Structures for Phase III Existing Facilities Under Section 316(b) 
of the Act

Sec.  125.100  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at existing facilities that are subject to this subpart 
(i.e., Phase III existing facilities). The purpose of these 
requirements is to establish the best technology available for 
minimizing adverse environmental impact associated with the use of 
cooling water intake structures. These requirements are implemented 
through National Pollutant Discharge Elimination System (NPDES) permits 
issued under section 402 of the Clean Water Act (CWA).
    (b) Existing facilities that are not subject to requirements under 
this or another subpart of this Part must meet requirements under 
section 316(b) of the CWA determined by the Director on a case-by-case, 
best professional judgment (BPJ) basis.
    (c) Alternative regulatory requirements. Notwithstanding any other 
provision of this subpart, if a State demonstrates to the Administrator 
that it has adopted alternative regulatory requirements in its NPDES 
program that will result in environmental performance within a 
watershed that is comparable to the reductions of impingement mortality 
and entrainment that would otherwise be achieved under Sec.  125.103, 
the Administrator must approve such alternative regulatory requirements.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
not less stringent than those required by Federal law.

Sec.  125.101  What is a ``Phase III existing facility''?

OPTION A FOR PARAGRAPH (a)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type]:

    (a) An existing facility, as defined in Sec.  125.102, is a Phase 
III existing facility subject to this subpart if it meets each of the 
following criteria:
    (1) It is a point source;
    (2) It uses or proposes to use cooling water intake structures with 
a total design intake flow of 50 million gallons per day (MGD) or more 
to withdraw cooling water from waters of the United States;
    (3) It is an existing facility other than a Phase II existing 
facility as defined in Sec.  125.91 and Sec.  125.93; and
    (4) It uses at least 25 percent of water withdrawn exclusively for 
cooling purposes, measured on an average annual basis.

OPTION B FOR PARAGRAPH (a)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 200 MGD or more, located on any waterbody type]:

    (a) An existing facility, as defined in Sec.  125.102, is a Phase 
III existing facility subject to this subpart if it meets each of the 
following criteria:
    (1) It is a point source;
    (2) It uses or proposes to use cooling water intake structures with 
a total design intake flow of 200 million gallons per day (MGD) or more 
to withdraw cooling water from waters of the United States;
    (3) It is an existing facility other than a Phase II existing 
facility as defined in Sec.  125.91 and Sec.  125.93; and
    (4) It uses at least 25 percent of water withdrawn exclusively for 
cooling

[[Page 68545]]

purposes, measured on an average annual basis.

OPTION C FOR PARAGRAPH (a)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    (a) An existing facility, as defined in Sec.  125.102, is a Phase 
III existing facility subject to this subpart if it meets each of the 
following criteria:
    (1) It is a point source;
    (2) It uses or proposes to use cooling water intake structures with 
a total design intake flow of 100 million gallons per day (MGD) or more 
to withdraw cooling water from waters of the United States;
    (3) It withdraws cooling water from an ocean, estuary, tidal river, 
or one of the Great Lakes;
    (4) It is an existing facility other than a Phase II existing 
facility as defined in Sec.  125.91 and Sec.  125.93; and
    (5) It uses at least 25 percent of water withdrawn exclusively for 
cooling purposes, measured on an average annual basis.
    (b) If an existing manufacturing facility is co-located with one or 
more existing facilities (that are not Phase II existing facilities as 
defined in Sec.  125.91 and Sec.  125.93), each of the co-located 
facilities would be considered a Phase III existing facility if the 
combined total design intake flow of the co-located facilities is 
greater than the flow threshold established in paragraph (a)(2) of this 
section and each of the facilities meets the remaining applicability 
criteria in paragraph (a) of this section.
    (c) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with one or more 
independent suppliers of cooling water if the supplier withdraws water 
from waters of the United States but is not itself a Phase II existing 
facility (as defined in Sec.  125.91 and Sec.  125.93) or Phase III 
existing facility, except as provided in paragraph (d) of this section. 
This provision is intended to prevent circumvention of these 
requirements by creating arrangements to receive cooling water from an 
entity that is not itself a Phase II or Phase III existing facility.
    (d) Notwithstanding paragraph (c) of this section, obtaining 
cooling water from a public water system or using treated effluent as 
cooling water at a Phase III existing facility does not constitute use 
of a cooling water intake structure for purposes of this subpart.

Sec.  125.102  What special definitions apply to this subpart?

    In addition to the definitions provided in Sec.  122.3 of this 
chapter, the following special definitions apply to this subpart:
    Adaptive management method is a type of project management method 
where a facility chooses an approach to meeting the project goal, 
monitors the effectiveness of that approach, and then based on 
monitoring and any other relevant information, makes any adjustments 
necessary to ensure continued progress toward the project's goal. This 
cycle of activity is repeated as necessary to reach the project's goal.
    All life stages means eggs, larvae, juveniles, and adults.
    Annual mean flow means the average of daily flows over a calendar 
year.
    Calculation baseline means an estimate of impingement mortality and 
entrainment that would occur at your site assuming that: the cooling 
water system has been designed as a once-through system; the opening of 
the cooling water intake structure is located at, and the face of the 
standard 3/8-inch mesh traveling screen is oriented parallel to, the 
shoreline near the surface of the source waterbody; and the baseline 
practices, procedures, and structural configuration are those that your 
facility would maintain in the absence of any structural or operational 
controls, including flow or velocity reductions, implemented in whole 
or in part for the purposes of reducing impingement mortality and 
entrainment. You may also choose to use the current level of 
impingement mortality and entrainment as the calculation baseline. The 
calculation baseline may be estimated using: historical impingement 
mortality and entrainment data from your facility or from another 
facility with comparable design, operational, and environmental 
conditions; current biological data collected in the waterbody in the 
vicinity of your cooling water intake structure; or current impingement 
mortality and entrainment data collected at your facility. You may 
request that the calculation baseline be modified to be based on a 
location of the opening of the cooling water intake structure at a 
depth other than at or near the surface if you can demonstrate to the 
Director that the other depth would correspond to a higher baseline 
level of impingement mortality and/or entrainment.
    Closed-cycle recirculating system means a system designed, using 
minimized make-up and blowdown flows, to withdraw water from a natural 
or other water source to support contact and/or noncontact cooling uses 
within a facility. The water is usually sent to a cooling canal or 
channel, lake, pond, or tower to allow waste heat to be dissipated to 
the atmosphere and then is returned to the system. (Some facilities 
divert the waste heat to other process operations.) New source water 
(make-up water) is added to the system to replenish losses that have 
occurred due to blowdown, drift, and evaporation.
    Cooling water means water used for contact or noncontact 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 that is used in a manufacturing process either 
before or after it is used for cooling is considered process water for 
the purposes of calculating the percentage of a facility's intake flow 
that is used for cooling purposes in Sec.  125.101(a)(4).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design and construction technology means any physical configuration 
of the cooling water intake structure, or a technology that is placed 
in the water body in front of the cooling water intake structure, to 
reduce impingement mortality and/or entrainment. Design and 
construction technologies include, but are not limited to, location of 
the intake structure, intake screen systems, passive intake systems, 
fish diversion and/or avoidance systems, and fish handling and return 
systems. Restoration measures are not design and construction 
technologies for purposes of this definition.
    Design intake flow means the value assigned (during the cooling 
water intake structure design) to the total volume of water withdrawn 
from a source waterbody over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or 
other device) against which organisms might be impinged or through 
which they might be entrained.
    Diel means daily and refers to variation in organism abundance and 
density over a 24-hour period due to the

[[Page 68546]]

influence of water movement, physical or chemical changes, and changes 
in light intensity.
    Entrainment means the incorporation of any life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Existing facility means any facility that commenced construction as 
described in 40 CFR 122.29(b)(4) on or before January 17, 2002 ( or [60 
days from publication of the final rule]
for an offshore oil and gas 
extraction facility); and any modification of, or any addition of a 
unit at such a facility that does not meet the definition of a new 
facility at Sec.  125.83.
    Freshwater river or stream means a lotic (free-flowing) system that 
does not receive significant inflows of water from oceans or bays due 
to tidal action. For the purposes of this rule, a flow-through 
reservoir with a retention time of 7 days or less will be considered a 
freshwater river or stream.
    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.
    Lake or reservoir means any inland body of open water with some 
minimum surface area free of rooted vegetation and with an average 
hydraulic retention time of more than 7 days. Lakes or reservoirs might 
be natural water bodies or impounded streams, usually fresh, surrounded 
by land or by land and a man-made retainer (e.g., a dam). Lakes or 
reservoirs might be fed by rivers, streams, springs, and/or local 
precipitation.
    Moribund means dying; close to death.
    Natural thermal stratification means the naturally occurring and/or 
existing division of a waterbody into horizontal layers of differing 
densities as a result of variations in temperature at different depths.
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Once-through cooling water system means a system designed to 
withdraw water from a natural or other water source, use it at the 
facility to support contact and/or noncontact cooling uses, and then 
discharge it to a waterbody without recirculation. Once-through cooling 
systems sometimes employ canals/channels, ponds, or non-recirculating 
cooling towers to dissipate waste heat from the water before it is 
discharged.
    Operational measure means a modification to any operation at a 
facility that serves to minimize impact to fish and shellfish from the 
cooling water intake structure. Examples of operational measures 
include, but are not limited to: reductions in cooling water intake 
flow through the use of variable speed pumps and seasonal flow 
reductions or shutdowns; and more frequent rotation of traveling 
screens.
    Source water means the waters of the U.S. from which the cooling 
water is withdrawn.
    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 sells 
the cooling water to other facilities for their use, but may also use a 
portion of the water itself. An entity that provides potable water to 
residential populations (e.g., public water system) is not a supplier 
for purposes of this subpart.
    Thermocline means the middle layer of a thermally stratified lake 
or a reservoir. In this layer, there is a rapid change in temperatures 
between the top and bottom of the layer.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.

Sec.  125.103  How will requirements reflecting best technology 
available for minimizing adverse environmental impact be established 
for my Phase III existing facility?

    (a) Compliance Alternatives. You must select and implement one of 
the following five alternatives for establishing best technology 
available for minimizing adverse environmental impact at your facility:
    (1)(i) You may demonstrate to the Director that you have reduced, 
or will reduce, your flow commensurate with a closed-cycle 
recirculating system. In this case, you are deemed to have met the 
applicable performance standards and will not be required to 
demonstrate further that your facility meets the impingement mortality 
and entrainment performance standards specified in paragraph (b) of 
this section. In addition, you are not subject to the requirements in 
Sec. Sec.  125.104, 125.105, 125.106, or 125.107. However, you may 
still be subject to any more stringent requirements established under 
paragraph (e) of this section; or
    (ii) You may demonstrate to the Director that you have reduced, or 
will reduce, your maximum through-screen design intake velocity to 0.5 
ft/s or less. In this case, you are deemed to have met the impingement 
mortality performance standards and will not be required to demonstrate 
further that your facility meets the performance standards for 
impingement mortality specified in paragraph (b) of this section and 
you are not subject to the requirements in Sec. Sec.  125.104, 125.105, 
125.106, or 125.107 as they apply to impingement mortality. However, 
you are still subject to any applicable requirements for entrainment 
reduction and may still be subject to any more stringent requirements 
established under paragraph (e) of this section.
    (2) You may demonstrate to the Director that your existing design 
and construction technologies, operational measures, and/or restoration 
measures meet the performance standards specified in paragraph (b) of 
this section and/or the restoration requirements in paragraph (c) of 
this section;
    (3) You may demonstrate to the Director that you have selected, and 
will install and properly operate and maintain, design and construction 
technologies, operational measures, and/or restoration measures that 
will, in combination with any existing design and construction 
technologies, operational measures, and/or restoration measures, meet 
the performance standards specified in paragraph (b) of this section 
and/or the restoration requirements in paragraph (c) of this section;
    (4) You may demonstrate to the Director that you have installed, or 
will install, and properly operate and maintain an approved design and 
construction technology in accordance with Sec.  125.108(a) or (b); or
    (5) You may demonstrate to the Director that you have selected, 
installed, and are properly operating and maintaining, or will install 
and properly operate and maintain design and construction technologies, 
operational measures, and/or restoration measures that the Director has 
determined to be the best technology available to minimize adverse 
environmental impact for your facility in accordance with paragraphs 
(a)(5)(i) or (a)(5)(ii) of this section.
    (i) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under

[[Page 68547]]

alternatives in paragraphs (a)(2) through (4) of this section would be 
significantly greater than the costs considered by the Administrator 
for a facility like yours in establishing the applicable performance 
standards in paragraph (b) of this section, the Director must make a 
site-specific determination of the best technology available for 
minimizing adverse environmental impact. This determination must be 
based on reliable, scientifically valid cost and performance data 
submitted by you and any other information that the Director deems 
appropriate. The Director must establish site-specific alternative 
requirements based on new and/or existing design and construction 
technologies, operational measures, and/or restoration measures that 
achieve an efficacy that is, in the judgment of the Director, as close 
as practicable to the applicable performance standards in paragraph (b) 
of this section, without resulting in costs that are significantly 
greater than the costs considered by the Administrator for a facility 
like yours in establishing the applicable performance standards. The 
Director's site-specific determination may conclude that design and 
construction technologies, operational measures, and/or restoration 
measures in addition to those already in place are not justified 
because of the significantly greater costs. To calculate the costs 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards you must:
    (A) Determine which technology the Administrator modeled as the 
most appropriate compliance technology for your facility;
    (B) Using the Administrator's costing equations, calculate the 
annualized capital and net operation and maintenance (O&M) costs for a 
facility with your design intake flow using this technology;
    (C) Determine the annualized net revenue loss associated with net 
construction downtime that the Administrator modeled for your facility 
to install this technology;
    (D) Determine the annualized pilot study costs that the 
Administrator modeled for your facility to test and optimize this 
technology;
    (E) Sum the cost items in paragraphs (a)(5)(i)(B), (a)(5)(i)(C), 
and (a)(5)(i)(D) of this section; and
    (F) Determine if the performance standards that form the basis of 
these estimates (i.e., impingement mortality reduction only or 
impingement mortality and entrainment reduction) are applicable to your 
facility, and if necessary, adjust the estimates to correspond to the 
applicable performance standards.
    (ii) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under alternatives in 
paragraphs (a)(2) through (4) of this section would be significantly 
greater than the benefits of complying with the applicable performance 
standards at your facility, the Director must make a site-specific 
determination of best technology available for minimizing adverse 
environmental impact. This determination must be based on reliable, 
scientifically valid cost and performance data submitted by you and any 
other information the Director deems appropriate. The Director must 
establish site-specific alternative requirements based on new and/or 
existing design and construction technologies, operational measures, 
and/or restoration measures that achieve an efficacy that, in the 
judgment of the Director, is as close as practicable to the applicable 
performance standards in paragraph (b) of this section without 
resulting in costs that are significantly greater than the benefits at 
your facility. The Director's site-specific determination may conclude 
that design and construction technologies, operational measures, and/or 
restoration measures in addition to those already in place are not 
justified because the costs would be significantly greater than the 
benefits at your facility.

OPTION A FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type or the 
regulatory option that defines a Phase III existing facility as one 
with design intake flows 200 MGD or more, located on any waterbody type]:

    (b) National Performance Standards--(1) Impingement Mortality 
Performance Standards. If you choose compliance alternatives in 
paragraphs (a)(2), (a)(3), or (a)(4) of this section, you must reduce 
impingement mortality for all life stages of fish and shellfish by 80 
to 95 percent from the calculation baseline.
    (2) Entrainment Performance Standards. If you choose compliance 
alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of 
this section, you must also reduce entrainment of all life stages of 
fish and shellfish by 60 to 90 percent from the calculation baseline 
if:
    (i) Your facility is a Phase III existing facility; and
    (ii)(A) Your facility uses cooling water withdrawn from a tidal 
river, estuary, ocean, or one of the Great Lakes; or
    (B) Your facility uses cooling water withdrawn from a freshwater 
river or stream and the design intake flow of your cooling water intake 
structures is greater than five percent of the mean annual flow.
    (3) Additional Performance Standards for Facilities Withdrawing 
from a Lake (Other Than One of the Great Lakes) or a Reservoir. If your 
facility withdraws cooling water from a lake (other than one of the 
Great Lakes) or a reservoir and you propose to increase the design 
intake flow of cooling water intake structures it uses, your increased 
design intake flow must not disrupt the natural thermal stratification 
or turnover pattern (where present) of the source water, except in 
cases where the disruption does not adversely affect the management of 
fisheries. In determining whether any such disruption does not 
adversely affect the management of fisheries, you must consult with 
Federal, State, or Tribal fish and wildlife management agencies.
    (4) Use of Performance Standards for Site-Specific Determinations 
of Best Technology Available. The performance standards in paragraphs 
(b)(1) and (2) of this section must also be used for determining 
eligibility for site-specific determinations of best technology 
available for minimizing adverse environmental impact and establishing 
site-specific requirements that achieve an efficacy as close as 
practicable to the applicable performance standards without resulting 
in costs that are significantly greater than those considered by the 
Administrator for a facility like yours in establishing the performance 
standards or costs that are significantly greater than the benefits at 
your facility, pursuant to paragraph (a)(5) of this section.

OPTION B FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    (b) National Performance Standards--(1) Impingement Mortality 
Performance Standards. If you choose compliance alternatives in 
paragraphs (a)(2), (a)(3), or (a)(4) of this section, you must reduce 
impingement mortality for all life stages of fish and shellfish by 80 
to 95 percent from the calculation baseline.
    (2) Entrainment Performance Standards. If you choose compliance 
alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of 
this section, you must also reduce entrainment of all life stages of 
fish and shellfish by 60 to 90 percent from the calculation baseline.

[[Page 68548]]

    (3) Use of Performance Standards for Site-Specific Determinations 
of Best Technology Available. The performance standards in paragraphs 
(b)(1) and (2) of this section must also be used for determining 
eligibility for site-specific determinations of best technology 
available for minimizing adverse environmental impact and establishing 
site specific requirements that achieve an efficacy as close as 
practicable to the applicable performance standards without resulting 
in costs that are significantly greater than those considered by the 
Administrator for a facility like yours in establishing the performance 
standards or costs that are significantly greater than the benefits at 
your facility, pursuant to paragraph (a)(5) of this section.
    (c) Requirements for Restoration Measures. With the approval of the 
Director, you may implement and adaptively manage restoration measures 
that produce and result in increases of fish and shellfish in your 
facility's watershed in place of or as a supplement to installing 
design and control technologies and/or adopting operational measures 
that reduce impingement mortality and entrainment. You must demonstrate 
to the Director that:
    (1) You have evaluated the use of design and construction 
technologies and operational measures for your facility and determined 
that the use of restoration measures is appropriate because meeting the 
applicable performance standards or site-specific requirements through 
the use of design and construction technologies and/or operational 
measures alone is less feasible, less cost-effective, or less 
environmentally desirable than meeting the standards or requirements in 
whole or in part through the use of restoration measures; and
    (2) The restoration measures you will implement, alone or in 
combination with design and construction technologies and/or 
operational measures, will produce ecological benefits (fish and 
shellfish), including maintenance or protection of community structure 
and function in your facility's waterbody or watershed, at a level that 
is substantially similar to the level you would achieve by meeting the 
applicable performance standards under paragraph (b) of this section, 
or that satisfies alternative site-specific requirements established 
pursuant to paragraph (a)(5) of this section.
    (d)(1) Compliance Using a Technology Installation and Operation 
Plan or Restoration Plan. If you choose one of the compliance 
alternatives in paragraphs (a)(2), (3), (4), or (5) of this section, 
you may request that compliance with the requirements of paragraphs 
(a)(5) and (b) of this section during the first permit containing 
requirements consistent with this subpart be determined based on 
whether you have complied with the construction, operational, 
maintenance, monitoring, and adaptive management requirements of a 
Technology Installation and Operation Plan developed in accordance with 
Sec.  125.104(b)(4)(ii) (for any design and construction technologies 
and/or operational measures) and/or a Restoration Plan developed in 
accordance with Sec.  125.104(b)(5) (for any restoration measures). The 
Technology Installation and Operation Plan must be designed to meet 
applicable performance standards in paragraph (b) of this section or 
alternative site-specific requirements developed pursuant to paragraph 
(a)(5) of this section. The Restoration Plan must be designed to 
achieve compliance with the applicable requirements in paragraph (c) of 
this section.
    (2) During subsequent permit terms, if you selected and installed 
design and construction technologies and/or operational measures and 
have been in compliance with the construction, operational, 
maintenance, monitoring, and adaptive management requirements of your 
Technology Installation and Operation Plan during the preceding permit 
term, you may request that compliance with the requirements of this 
section during the following permit term be determined based on whether 
you remain in compliance with your Technology Installation and 
Operation Plan, revised in accordance with your adaptive management 
plan in Sec.  125.104(b)(4)(ii)(C) if applicable performance standards 
are not being met. Each request and approval of a Technology 
Installation and Operation Plan shall be limited to one permit term.
    (3) During subsequent permit terms, if you selected and installed 
restoration measures and have been in compliance with the construction, 
operational, maintenance, monitoring, and adaptive management 
requirements in your Restoration Plan during the preceding permit term, 
you may request that compliance with the requirements of this section 
during the following permit term be determined based on whether you 
remain in compliance with your Restoration Plan, revised in accordance 
with your adaptive management plan in Sec.  125.104(b)(5)(v) if 
applicable performance standards are not being met. Each request and 
approval of a Restoration Plan shall be limited to one permit term.
    (e) More Stringent Standards. The Director may establish more 
stringent requirements as best technology available for minimizing 
adverse environmental impact if the Director determines that your 
compliance with the applicable requirements of this section would not 
meet the requirements of applicable State and Tribal law, or other 
Federal law.

Sec.  125.104  As an owner or operator of a Phase III existing 
facility, what must I collect and submit when I apply for my reissued 
NPDES permit?

    (a)(1) You must submit to the Director the Proposal for Information 
Collection required in paragraph (b)(1) of this section prior to the 
start of information collection activities;
    (2) You must submit to the Director the information required in 40 
CFR 122.21(r)(2) (except (r)(2)(iv)), (r)(3) and (r)(5) and any 
applicable portions of the Comprehensive Demonstration Study (Study), 
except for the Proposal for Information Collection required by 
paragraph (b)(1) of this section; and
    (i) You must submit your NPDES permit application in accordance 
with the time frames specified in 40 CFR 122.21(d)(2).
    (ii) If you are a Phase III existing facility and your existing 
permit expires before [4 years from publication of the final rule], you 
may request that the Director establish a schedule for you to submit 
the information required by this section as expeditiously as 
practicable, but not later than [3 years and 180 days from publication 
of the final rule]. Between the time your existing permit expires and 
the time an NPDES permit containing requirements consistent with this 
subpart is issued to your facility, the best technology available to 
minimize adverse environmental impact will continue to be determined 
based on the Director's best professional judgment.
    (3) In subsequent permit terms, the Director may approve a request 
to reduce the information required to be submitted in your permit 
application on the cooling water intake structure(s) and the source 
waterbody, if conditions at your facility and in the waterbody remain 
substantially unchanged since your previous application. You must 
submit your request for reduced cooling water intake structure and 
waterbody application information to the Director at least one year 
prior to the expiration of the permit. Your request must identify each 
required information item in 40 CFR 122.21(r) and this section that you 
determine has not substantially changed since the previous permit

[[Page 68549]]

application and the basis for your determination.

OPTION A FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type or the 
regulatory option that defines a Phase III existing facility as one 
with design intake flows 200 MGD or more, located on any waterbody type]:

    (b) Comprehensive Demonstration Study The purpose of the 
Comprehensive Demonstration Study (Study) is to characterize 
impingement mortality and entrainment, to describe the operation of 
your cooling water intake structures, and to confirm that the 
technologies, operational measures, and/or restoration measures you 
have selected and installed, or will install, at your facility meet the 
applicable requirements of Sec.  125.103. All facilities except those 
that have met the applicable requirements in accordance with Sec. Sec.  
125.103(a)(1)(i), 125.103(a)(1)(ii), and 125.103(a)(4) must submit all 
applicable portions of the Comprehensive Demonstration Study to the 
Director in accordance with paragraph (a) of this section. Facilities 
that meet the requirements in Sec.  125.103(a)(1)(i) by reducing their 
flow commensurate with a closed-cycle, recirculating system are not 
required to submit a Comprehensive Demonstration Study. Facilities that 
meet the requirements in Sec.  125.103(a)(1)(ii) by reducing their 
design intake velocity to 0.5 ft/sec or less are required to submit a 
Study only for the entrainment requirements, if applicable. Facilities 
that meet the requirements in Sec.  125.103(a)(4) and have installed 
and properly operate and maintain an approved design and construction 
technology (in accordance with Sec.  125.108) are required to submit 
only the Technology Installation and Operation Plan in paragraph (b)(4) 
of this section and the Verification Monitoring Plan in paragraph 
(b)(7) of this section. Facilities that are required to meet only 
impingement mortality performance standards in Sec.  125.103(b)(1) are 
required to submit only a Study for the impingement mortality reduction 
requirements. The Comprehensive Demonstration Study must include:
    (1) Proposal For Information Collection. You must submit to the 
Director for review and comment a description of the information you 
will use to support your Study. The Proposal for Information Collection 
must be submitted prior to the start of information collection 
activities, but you may initiate such activities prior to receiving 
comment from the Director. The proposal must include:
    (i) A description of the proposed and/or implemented technologies, 
operational measures, and/or restoration measures to be evaluated in 
the Study;
    (ii) A list and description of any historical studies 
characterizing impingement mortality and entrainment and/or the 
physical and biological conditions in the vicinity of the cooling water 
intake structures and their relevance to this proposed Study. If you 
propose to use existing data, you must demonstrate the extent to which 
the data are representative of current conditions and that the data 
were collected using appropriate quality assurance/quality control 
procedures;
    (iii) A summary of any past or ongoing consultations with 
appropriate Federal, State, and Tribal fish and wildlife agencies that 
are relevant to this Study and a copy of written comments received as a 
result of such consultations; and
    (iv) A sampling plan for any new field studies you propose to 
conduct in order to ensure that you have sufficient data to develop a 
scientifically valid estimate of impingement mortality and entrainment 
at your site. The sampling plan must document all methods and quality 
assurance/quality control procedures for sampling and data analysis. 
The sampling and data analysis methods you propose must be appropriate 
for a quantitative survey and include consideration of the methods used 
in other studies performed in the source waterbody. The sampling plan 
must include a description of the study area (including the area of 
influence of the cooling water intake structure(s)), and provide a 
taxonomic identification of the sampled or evaluated biological 
assemblages (including all life stages of fish and shellfish).
    (2) Source Waterbody Flow Information. You must submit to the 
Director the following source waterbody flow information:
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow of 
the waterbody and any supporting documentation and engineering 
calculations to support your analysis of whether your design intake 
flow is greater than five percent of the mean annual flow of the river 
or stream for purposes of determining applicable performance standards 
under Sec.  125.103(b). Representative historical data (from a period 
of time up to 10 years, if available) must be used; and
    (ii) If your cooling water intake structure is located in a lake 
(other than one of the Great Lakes) or a reservoir and you propose to 
increase its design intake flow, you must provide a description of the 
thermal stratification in the waterbody, and any supporting 
documentation and engineering calculations to show that the total 
design intake flow after the increase will not disrupt the natural 
thermal stratification and turnover pattern in a way that adversely 
impacts fisheries, including the results of any consultations with 
Federal, State, or Tribal fish and wildlife management agencies.
    (3) Impingement Mortality and/or Entrainment Characterization 
Study. You must submit to the Director an Impingement Mortality and/or 
Entrainment Characterization Study whose purpose is to provide 
information to support the development of a calculation baseline for 
evaluating impingement mortality and entrainment and to characterize 
current impingement mortality and entrainment. The Impingement 
Mortality and/or Entrainment Characterization Study must include the 
following, in sufficient detail to support development of the other 
elements of the Comprehensive Demonstration Study:
    (i) Taxonomic identifications of all life stages of fish, 
shellfish, and any species protected under Federal, State, or Tribal 
Law (including threatened or endangered species) that are in the 
vicinity of the cooling water intake structure(s) and are susceptible 
to impingement and entrainment;
    (ii) A characterization of all life stages of fish, shellfish, and 
any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) identified pursuant to paragraph 
(b)(3)(i) of this section, including a description of the abundance and 
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 impingement mortality and 
entrainment (e.g., related to climate and weather differences, 
spawning, feeding and water column migration). These may include 
historical data that are representative of the current operation of 
your facility and of biological conditions at the site;
    (iii) Documentation of the current impingement mortality and 
entrainment of all life stages of fish, shellfish, and any species 
protected under Federal, State, or Tribal Law (including threatened or 
endangered species)

[[Page 68550]]

identified pursuant to paragraph (b)(3)(i) of this section and an 
estimate of impingement mortality and entrainment to be used as the 
calculation baseline. The documentation may include historical data 
that are representative of the current operation of your facility and 
of biological conditions at the site. Impingement mortality and 
entrainment samples to support the calculations required in paragraphs 
(b)(4)(i)(C) and (b)(5)(iii) of this section must be collected during 
periods of representative operational flows for the cooling water 
intake structure and the flows associated with the samples must be 
documented;
    (4) Technology and Compliance Assessment Information--(i) Design 
and Construction Technology Plan. If you choose to use design and 
construction technologies and/or operational measures, in whole or in 
part to meet the requirements of Sec.  125.103(a)(2) or (3), you must 
submit a Design and Construction Technology Plan to the Director for 
review and approval. The plan must explain the technologies and/or 
operational measures you have in place and/or have selected to meet the 
requirements in Sec.  125.103. (Examples of potentially appropriate 
technologies may include, but are not limited to, wedgewire screens, 
fine mesh screens, fish handling and return systems, barrier nets, 
aquatic filter barrier systems, vertical and/or lateral relocation of 
the cooling water intake structure, and enlargement of the cooling 
water intake structure opening to reduce velocity. Examples of 
potentially appropriate operational measures may include, but are not 
limited to, seasonal shutdowns, reductions in flow, and continuous or 
more frequent rotation of traveling screens.) The plan must contain the 
following information:
    (A) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed), including fish handling and return systems, 
that you have in place or will use to meet the requirements to reduce 
impingement mortality of those species expected to be most susceptible 
to impingement, and information that demonstrates the efficacy of the 
technologies and/or operational measures for those species;
    (B) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed) that you have in place or will use to meet the 
requirements to reduce entrainment of those species expected to be the 
most susceptible to entrainment, if applicable, and information that 
demonstrates the efficacy of the technologies and/or operational 
measures for those species;
    (C) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would be 
achieved by the technologies and/or operational measures you have 
selected based on the Impingement Mortality and/or Entrainment 
Characterization Study in paragraph (b)(3) of this section. In 
determining compliance with any requirements to reduce impingement 
mortality or entrainment, you must assess the total reduction in 
impingement mortality and entrainment against the calculation baseline 
determined in accordance with paragraph (b)(3) of this section. 
Reductions in impingement mortality and entrainment from this 
calculation baseline as a result of any design and construction 
technologies and/or operational measures already implemented at your 
facility should be added to the reductions expected to be achieved by 
any additional design and/or construction technologies and operational 
measures that will be implemented, and any increases in fish and 
shellfish within the waterbody attributable to your restoration 
measures. Facilities that recirculate a portion of their flow, but do 
not reduce flow sufficiently to satisfy the compliance option in Sec.  
125.103(a)(1)(i) may take into account the reduction in impingement 
mortality and entrainment associated with the reduction in flow when 
determining the net reduction associated with existing design and 
construction technologies and/or operational measures. This estimate 
must include a site-specific evaluation of the suitability of the 
technologies and/or operational measures based on the species that are 
found at the site, and may be determined based on representative 
studies (i.e., studies that have been conducted at a similar facility's 
cooling water intake structures located in the same waterbody type with 
similar biological characteristics) and/or site-specific technology 
prototype or pilot studies; and
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the descriptions 
required by paragraphs (b)(4)(i)(A) and (B) of this section.
    (ii) Technology Installation and Operation Plan. If you choose the 
compliance alternative in Sec.  125.103(a)(2), (3), (4), or (5) and use 
design and construction technologies and/or operational measures in 
whole or in part to comply with the applicable requirements of Sec.  
125.103, you must submit the following information with your 
application for review and approval by the Director:
    (A) A schedule for the installation and maintenance of any new 
design and construction technologies. Any downtime of generating units 
to accommodate installation and/or maintenance of these technologies 
should be scheduled to coincide with otherwise necessary downtime 
(e.g., for repair, overhaul, or routine maintenance of the generating 
units) to the extent practicable. Where additional downtime is 
required, you may coordinate scheduling of this downtime with the North 
American Electric Reliability Council and/or other generators in your 
area to ensure that impacts to reliability and supply are minimized;
    (B) List of operational and other parameters to be monitored, and 
the location and frequency that you will monitor them;
    (C) List of activities you will undertake to ensure to the degree 
practicable the efficacy of installed design and construction 
technologies and operational measures, and your schedule for 
implementing them;
    (D) A schedule and methodology for assessing the efficacy of any 
installed design and construction technologies and operational measures 
in meeting applicable performance standards or site-specific 
requirements, including an adaptive management plan for revising design 
and construction technologies, operational measures, operation and 
maintenance requirements, and/or monitoring requirements if your 
assessment indicates that applicable performance standards or site-
specific requirements are not being met; and
    (E) If you choose the compliance alternative in Sec.  
125.103(a)(4), documentation that the appropriate site conditions in 
Sec.  125.108(a) or (b) exist at your facility.
    (5) Restoration Plan. If you propose to use restoration measures, 
in whole or in part, to meet the applicable requirements in Sec.  
125.103, you must submit the following information with your 
application for review and approval by the Director. You must address 
species of concern identified in consultation with Federal, State, and 
Tribal fish and wildlife management agencies with responsibility for 
fisheries and wildlife potentially affected by your cooling water 
intake structure(s).
    (i) A demonstration to the Director that you have evaluated the use 
of design and construction technologies and/or operational measures for 
your facility and an explanation of how you determined that restoration 
would be

[[Page 68551]]

more feasible, cost-effective, or environmentally desirable;
    (ii) A narrative description of the design and operation of all 
restoration measures (existing and proposed) that you have in place or 
will use to produce fish and shellfish;
    (iii) Quantification of the ecological benefits of the proposed 
restoration measures. You must use information from the Impingement 
Mortality and/or Entrainment Characterization Study required in 
paragraph (b)(3) of this section, and any other available and 
appropriate information, to estimate the reduction in fish and 
shellfish impingement mortality and/or entrainment that would be 
necessary for your facility to comply with Sec.  125.103(c)(2). You 
must then calculate the production of fish and shellfish that you will 
achieve with the restoration measures you will or have already 
installed. You must include a discussion of the nature and magnitude of 
uncertainty associated with the performance of these restoration 
measures. You must also include a discussion of the time frame within 
which these ecological benefits are expected to accrue;
    (iv) Design calculations, drawings, and estimates to document that 
your proposed restoration measures in combination with design and 
construction technologies and/or operational measures, or alone, will 
meet the requirements of Sec.  125.103(c)(2). If the restoration 
measures address the same fish and shellfish species identified in the 
Impingement Mortality and/or Entrainment Characterization Study (in-
kind restoration), you must demonstrate that the restoration measures 
will produce a level of these fish and shellfish substantially similar 
to that which would result from meeting applicable performance 
standards in Sec.  125.103(b), or that they will satisfy site-specific 
requirements established pursuant to Sec.  125.103(a)(5). If the 
restoration measures address fish and shellfish species different from 
those identified in the Impingement Mortality and/or Entrainment 
Characterization Study (out-of-kind restoration), you must demonstrate 
that the restoration measures produce ecological benefits substantially 
similar to or greater than those that would be realized through in-kind 
restoration. Such a demonstration should be based on a watershed 
approach to restoration planning and consider applicable multi-agency 
watershed restoration plans, site-specific peer-reviewed ecological 
studies, and/or consultation with appropriate Federal, State, and 
Tribal fish and wildlife management agencies.
    (v) A plan utilizing an adaptive management method for 
implementing, maintaining, and demonstrating the efficacy of the 
restoration measures you have selected and for determining the extent 
to which the restoration measures, or the restoration measures in 
combination with design and construction technologies and operational 
measures, have met the applicable requirements of Sec.  125.103(c)(2). 
The plan must include:
    (A) A monitoring plan that includes a list of the restoration 
parameters that will be monitored, the frequency at which you will 
monitor them, and success criteria for each parameter;
    (B) A list of activities you will undertake to ensure the efficacy 
of the restoration measures, a description of the linkages between 
these activities and the items in paragraph (b)(5)(v)(A) of this 
section, and an implementation schedule; and
    (C) A process for revising the Restoration Plan as new information, 
including monitoring data, becomes available, if the applicable 
requirements under Sec.  125.103(c)(2) are not being met.
    (vi) A summary of any past or ongoing consultation with appropriate 
Federal, State, and Tribal fish and wildlife management agencies on 
your use of restoration measures including a copy of any written 
comments received as a result of such consultations;
    (vii) If requested by the Director, a peer review of the items you 
submit for the Restoration Plan. You must choose the peer reviewers in 
consultation with the Director who may consult with EPA and Federal, 
State, and Tribal fish and wildlife management agencies with 
responsibility for fish and wildlife potentially affected by your 
cooling water intake structure(s). Peer reviewers must have appropriate 
qualifications (e.g., in the fields of geology, engineering, and/or 
biology, etc.) depending upon the materials to be reviewed; and
    (viii) A description of the information to be included in a 
biennial status report to the Director.
    (6) Information to Support Site-specific Determination of Best 
Technology Available for Minimizing Adverse Environmental Impact. If 
you have requested a site-specific determination of best technology 
available for minimizing adverse environmental impact pursuant to Sec.  
125.103(a)(5)(i) because of costs significantly greater than those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards of Sec.  125.103(b), 
you are required to provide to the Director the information specified 
in paragraphs (b)(6)(i) and (b)(6)(iii) of this section. If you have 
requested a site-specific determination of best technology available 
for minimizing adverse environmental impact pursuant to Sec.  
125.103(a)(5)(ii) because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.103(b) at your facility, you must provide the information specified 
in paragraphs (b)(6)(i), (b)(6)(ii), and (b)(6)(iii) of this section:
    (i) Comprehensive Cost Evaluation Study. You must perform and 
submit the results of a Comprehensive Cost Evaluation Study, that includes:
    (A) Engineering cost estimates in sufficient detail to document the 
costs of implementing design and construction technologies, operational 
measures, and/or restoration measures at your facility that would be 
needed to meet the applicable performance standards of Sec.  
125.103(b);
    (B) A demonstration that the costs documented in paragraph 
(b)(6)(i)(A) of this section significantly exceed either those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards or the benefits of 
meeting the applicable performance standards at your facility; and
    (C) Engineering cost estimates in sufficient detail to document the 
costs of implementing the design and construction technologies, 
operational measures, and/or restoration measures in your Site-Specific 
Technology Plan developed in accordance with paragraph (b)(6)(iii) of 
this section.
    (ii) Benefits Valuation Study. If you are seeking a site-specific 
determination of best technology available for minimizing adverse 
environmental impact because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.103(b) at your facility, you must use a comprehensive methodology 
to fully value the impacts of impingement mortality and entrainment at 
your site and the benefits achievable by meeting the applicable 
performance standards. In addition to the valuation estimates, the 
benefit study must include the following:
    (A) A description of the methodology(ies) used to value commercial, 
recreational, and ecological benefits (including any non-use benefits, 
if applicable);
    (B) Documentation of the basis for any assumptions and quantitative 
estimates. If you plan to use an entrainment survival rate other than 
zero, you must

[[Page 68552]]

submit a determination of entrainment survival at your facility based 
on a study approved by the Director;
    (C) An analysis of the effects of significant sources of 
uncertainty on the results of the study; and
    (D) If requested by the Director, a peer review of the items you 
submit in the Benefits Valuation Study. You must choose the peer 
reviewers in consultation with the Director who may consult with EPA 
and Federal, State, and Tribal fish and wildlife management agencies 
with responsibility for fish and wildlife potentially affected by your 
cooling water intake structure. Peer reviewers must have appropriate 
qualifications depending upon the materials to be reviewed.
    (E) A narrative description of any non-monetized benefits that 
would be realized at your site if you were to meet the applicable 
performance standards and a qualitative assessment of their magnitude 
and significance.
    (iii) Site-Specific Technology Plan. Based on the results of the 
Comprehensive Cost Evaluation Study required by paragraph (b)(6)(i) of 
this section, and the Benefits Valuation Study required by paragraph 
(b)(6)(ii) of this section, if applicable, you must submit a Site-
Specific Technology Plan to the Director for review and approval. The 
plan must contain the following information:
    (A) A narrative description of the design and operation of all 
existing and proposed design and construction technologies, operational 
measures, and/or restoration measures that you have selected in 
accordance with Sec.  125.103(a)(5);
    (B) An engineering estimate of the efficacy of the proposed and/or 
implemented design and construction technologies or operational 
measures, and/or restoration measures. This estimate must include a 
site-specific evaluation of the suitability of the technologies or 
operational measures for reducing impingement mortality and/or 
entrainment (as applicable) of all life stages of fish and shellfish 
based on representative studies (e.g., studies that have been conducted 
at cooling water intake structures located in the same waterbody type 
with similar biological characteristics) and, if applicable, site-
specific technology prototype or pilot studies. If restoration measures 
will be used, you must provide a Restoration Plan that includes the 
elements described in paragraph (b)(5) of this section.
    (C) A demonstration that the proposed and/or implemented design and 
construction technologies, operational measures, and/or restoration 
measures achieve an efficacy that is as close as practicable to the 
applicable performance standards of Sec.  125.103(b) without resulting 
in costs significantly greater than either the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards, or as appropriate, the benefits of complying 
with the applicable performance standards at your facility;
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the elements of the 
Plan.
    (7) Verification Monitoring Plan. If you comply using compliance 
alternatives in Sec.  125.103(a)(2), (3), (4), or (5) using design and 
construction technologies and/or operational measures, you must submit 
a plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or already implemented 
technologies and/or operational measures. The verification study must 
begin once the design and construction technologies and/or operational 
measures are installed and continue for a period of time that is 
sufficient to demonstrate to the Director whether the facility is 
meeting the applicable performance standards in Sec.  125.103(b) or 
site-specific requirements developed pursuant to Sec.  125.103(a)(5). 
The plan must provide the following:
    (i) Description of the frequency and duration of monitoring, the 
parameters to be monitored, and the basis for determining the 
parameters and the frequency and duration for monitoring. The 
parameters selected and duration and frequency of monitoring must be 
consistent with any methodology for assessing success in meeting 
applicable performance standards in your Technology Installation and 
Operation Plan as required by paragraph (b)(4)(ii) of this section.
    (ii) A proposal on how naturally moribund fish and shellfish that 
enter the cooling water intake structure would be identified and taken 
into account in assessing success in meeting the performance standards 
in Sec.  125.103(b) or site-specific requirements developed pursuant to 
Sec.  125.103(a)(5).
    (iii) A description of the information to be included in a biennial 
status report to the Director.

OPTION B FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    (b) Comprehensive Demonstration Study. The purpose of the 
Comprehensive Demonstration Study (Study) is to characterize 
impingement mortality and entrainment, to describe the operation of 
your cooling water intake structures, and to confirm that the 
technologies, operational measures, and/or restoration measures you 
have selected and installed, or will install, at your facility meet the 
applicable requirements of Sec.  125.103. All facilities except those 
that have met the applicable requirements in accordance with Sec. Sec.  
125.103(a)(1)(i), 125.103(a)(1)(ii), and 125.103(a)(4) must submit all 
applicable portions of the Comprehensive Demonstration Study to the 
Director in accordance with paragraph (a) of this section. Facilities 
that meet the requirements in Sec.  125.103(a)(1)(i) by reducing their 
flow commensurate with a closed-cycle, recirculating system are not 
required to submit a Comprehensive Demonstration Study. Facilities that 
meet the requirements in Sec.  125.103(a)(1)(ii) by reducing their 
design intake velocity to 0.5 ft/sec or less are required to submit a 
Study only for the entrainment requirements. Facilities that meet the 
requirements in Sec.  125.103(a)(4) and have installed and properly 
operate and maintain an approved design and construction technology (in 
accordance with Sec.  125.108) are required to submit only the 
Technology Installation and Operation Plan in paragraph (b)(4) of this 
section and the Verification Monitoring Plan in paragraph (b)(7) of 
this section. The Comprehensive Demonstration Study must include:
    (1) Proposal for Information Collection. You must submit to the 
Director for review and comment a description of the information you 
will use to support your Study. The Proposal for Information Collection 
must be submitted prior to the start of information collection 
activities, but you may initiate such activities prior to receiving 
comment from the Director. The proposal must include:
    (i) A description of the proposed and/or implemented technologies, 
operational measures, and/or restoration measures to be evaluated in 
the Study;
    (ii) A list and description of any historical studies 
characterizing impingement mortality and entrainment and/or the 
physical and biological conditions in the vicinity of the cooling water 
intake structures and their relevance to this proposed Study. If you 
propose to use existing data, you must demonstrate the extent to which 
the data are representative of current conditions and that the data 
were

[[Page 68553]]

collected using appropriate quality assurance/quality control 
procedures;
    (iii) A summary of any past or ongoing consultations with 
appropriate Federal, State, and Tribal fish and wildlife agencies that 
are relevant to this Study and a copy of written comments received as a 
result of such consultations; and
    (iv) A sampling plan for any new field studies you propose to 
conduct in order to ensure that you have sufficient data to develop a 
scientifically valid estimate of impingement mortality and entrainment 
at your site. The sampling plan must document all methods and quality 
assurance/quality control procedures for sampling and data analysis. 
The sampling and data analysis methods you propose must be appropriate 
for a quantitative survey and include consideration of the methods used 
in other studies performed in the source waterbody. The sampling plan 
must include a description of the study area (including the area of 
influence of the cooling water intake structure(s)), and provide a 
taxonomic identification of the sampled or evaluated biological 
assemblages (including all life stages of fish and shellfish).
    (2) Impingement Mortality and Entrainment Characterization Study. 
You must submit to the Director an Impingement Mortality and 
Entrainment Characterization Study whose purpose is to provide 
information to support the development of a calculation baseline for 
evaluating impingement mortality and entrainment and to characterize 
current impingement mortality and entrainment. The Impingement 
Mortality and Entrainment Characterization Study must include the 
following, in sufficient detail to support development of the other 
elements of the Comprehensive Demonstration Study:
    (i) Taxonomic identifications of all life stages of fish, 
shellfish, and any species protected under Federal, State, or Tribal 
Law (including threatened or endangered species) that are in the 
vicinity of the cooling water intake structure(s) and are susceptible 
to impingement and entrainment;
    (ii) A characterization of all life stages of fish, shellfish, and 
any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) identified pursuant to paragraph 
(b)(2)(i) of this section, including a description of the abundance and 
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 impingement mortality and 
entrainment (e.g., related to climate and weather differences, 
spawning, feeding and water column migration). These may include 
historical data that are representative of the current operation of 
your facility and of biological conditions at the site;
    (iii) Documentation of the current impingement mortality and 
entrainment of all life stages of fish, shellfish, and any species 
protected under Federal, State, or Tribal Law (including threatened or 
endangered species) identified pursuant to paragraph (b)(2)(i) of this 
section and an estimate of impingement mortality and entrainment to be 
used as the calculation baseline. The documentation may include 
historical data that are representative of the current operation of 
your facility and of biological conditions at the site. Impingement 
mortality and entrainment samples to support the calculations required 
in paragraphs (b)(3)(i)(C) and (b)(4)(iii) of this section must be 
collected during periods of representative operational flows for the 
cooling water intake structure and the flows associated with the 
samples must be documented;
    (3) Technology and Compliance Assessment Information--(i) Design 
and Construction Technology Plan. If you choose to use design and 
construction technologies and/or operational measures, in whole or in 
part to meet the requirements of Sec.  125.103(a)(2) or (3), you must 
submit a Design and Construction Technology Plan to the Director for 
review and approval. The plan must explain the technologies and/or 
operational measures you have in place and/or have selected to meet the 
requirements in Sec.  125.103. (Examples of potentially appropriate 
technologies may include, but are not limited to, wedgewire screens, 
fine mesh screens, fish handling and return systems, barrier nets, 
aquatic filter barrier systems, vertical and/or lateral relocation of 
the cooling water intake structure, and enlargement of the cooling 
water intake structure opening to reduce velocity. Examples of 
potentially appropriate operational measures may include, but are not 
limited to, seasonal shutdowns, reductions in flow, and continuous or 
more frequent rotation of traveling screens.) The plan must contain the 
following information:
    (A) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed), including fish handling and return systems, 
that you have in place or will use to meet the requirements to reduce 
impingement mortality of those species expected to be most susceptible 
to impingement, and information that demonstrates the efficacy of the 
technologies and/or operational measures for those species;
    (B) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed) that you have in place or will use to meet the 
requirements to reduce entrainment of those species expected to be the 
most susceptible to entrainment and information that demonstrates the 
efficacy of the technologies and/or operational measures for those 
species;
    (C) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would be 
achieved by the technologies and/or operational measures you have 
selected based on the Impingement Mortality and Entrainment 
Characterization Study in paragraph (b)(2) of this section. In 
determining compliance with any requirements to reduce impingement 
mortality and entrainment, you must assess the total reduction in 
impingement mortality and entrainment against the calculation baseline 
determined in accordance with paragraph (b)(2) of this section. 
Reductions in impingement mortality and entrainment from this 
calculation baseline as a result of any design and construction 
technologies and/or operational measures already implemented at your 
facility should be added to the reductions expected to be achieved by 
any additional design and/or construction technologies and operational 
measures that will be implemented, and any increases in fish and 
shellfish within the waterbody attributable to your restoration 
measures. Facilities that recirculate a portion of their flow, but do 
not reduce flow sufficiently to satisfy the compliance option in Sec.  
125.103(a)(1)(i) may take into account the reduction in impingement 
mortality and entrainment associated with the reduction in flow when 
determining the net reduction associated with existing design and 
construction technologies and/or operational measures. This estimate 
must include a site-specific evaluation of the suitability of the 
technologies and/or operational measures based on the species that are 
found at the site, and may be determined based on representative 
studies (i.e., studies that have been conducted at a similar facility's 
cooling water intake structures located in the same waterbody type with 
similar biological characteristics) and/or site-specific technology 
prototype or pilot studies; and

[[Page 68554]]

    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the descriptions 
required by paragraphs (b)(3)(i)(A) and (B) of this section.
    (ii) Technology Installation and Operation Plan. If you choose the 
compliance alternative in Sec.  125.103(a)(2), (3), (4), or (5) and use 
design and construction technologies and/or operational measures in 
whole or in part to comply with the applicable requirements of Sec.  
125.103, you must submit the following information with your 
application for review and approval by the Director:
    (A) A schedule for the installation and maintenance of any new 
design and construction technologies. Any downtime of generating units 
to accommodate installation and/or maintenance of these technologies 
should be scheduled to coincide with otherwise necessary downtime 
(e.g., for repair, overhaul, or routine maintenance of the generating 
units) to the extent practicable. Where additional downtime is 
required, you may coordinate scheduling of this downtime with the North 
American Electric Reliability Council and/or other generators in your 
area to ensure that impacts to reliability and supply are minimized;
    (B) List of operational and other parameters to be monitored, and 
the location and frequency that you will monitor them;
    (C) List of activities you will undertake to ensure to the degree 
practicable the efficacy of installed design and construction 
technologies and operational measures, and your schedule for 
implementing them;
    (D) A schedule and methodology for assessing the efficacy of any 
installed design and construction technologies and operational measures 
in meeting applicable performance standards or site-specific 
requirements, including an adaptive management plan for revising design 
and construction technologies, operational measures, operation and 
maintenance requirements, and/or monitoring requirements if your 
assessment indicates that applicable performance standards or site-
specific requirements are not being met; and
    (E) If you choose the compliance alternative in Sec.  
125.103(a)(4), documentation that the appropriate site conditions in 
Sec.  125.108(b) exist at your facility.
    (4) Restoration Plan. If you propose to use restoration measures, 
in whole or in part, to meet the applicable requirements in Sec.  
125.103, you must submit the following information with your 
application for review and approval by the Director. You must address 
species of concern identified in consultation with Federal, State, and 
Tribal fish and wildlife management agencies with responsibility for 
fisheries and wildlife potentially affected by your cooling water 
intake structure(s).
    (i) A demonstration to the Director that you have evaluated the use 
of design and construction technologies and/or operational measures for 
your facility and an explanation of how you determined that restoration 
would be more feasible, cost-effective, or environmentally desirable;
    (ii) A narrative description of the design and operation of all 
restoration measures (existing and proposed) that you have in place or 
will use to produce fish and shellfish;
    (iii) Quantification of the ecological benefits of the proposed 
restoration measures. You must use information from the Impingement 
Mortality and Entrainment Characterization Study required in paragraph 
(b)(2) of this section, and any other available and appropriate 
information, to estimate the reduction in fish and shellfish 
impingement mortality and entrainment that would be necessary for your 
facility to comply with Sec.  125.103(c)(2). You must then calculate 
the production of fish and shellfish that you will achieve with the 
restoration measures you will or have already installed. You must 
include a discussion of the nature and magnitude of uncertainty 
associated with the performance of these restoration measures. You must 
also include a discussion of the time frame within which these 
ecological benefits are expected to accrue;
    (iv) Design calculations, drawings, and estimates to document that 
your proposed restoration measures in combination with design and 
construction technologies and/or operational measures, or alone, will 
meet the requirements of Sec.  125.103(c)(2). If the restoration 
measures address the same fish and shellfish species identified in the 
Impingement Mortality and Entrainment Characterization Study (in-kind 
restoration), you must demonstrate that the restoration measures will 
produce a level of these fish and shellfish substantially similar to 
that which would result from meeting applicable performance standards 
in Sec.  125.103(b), or that they will satisfy site-specific 
requirements established pursuant to Sec.  125.103(a)(5). If the 
restoration measures address fish and shellfish species different from 
those identified in the Impingement Mortality and Entrainment 
Characterization Study (out-of-kind restoration), you must demonstrate 
that the restoration measures produce ecological benefits substantially 
similar to or greater than those that would be realized through in-kind 
restoration. Such a demonstration should be based on a watershed 
approach to restoration planning and consider applicable multi-agency 
watershed restoration plans, site-specific peer-reviewed ecological 
studies, and/or consultation with appropriate Federal, State, and 
Tribal fish and wildlife management agencies.
    (v) A plan utilizing an adaptive management method for 
implementing, maintaining, and demonstrating the efficacy of the 
restoration measures you have selected and for determining the extent 
to which the restoration measures, or the restoration measures in 
combination with design and construction technologies and operational 
measures, have met the applicable requirements of Sec.  125.103(c)(2). 
The plan must include:
    (A) A monitoring plan that includes a list of the restoration 
parameters that will be monitored, the frequency at which you will 
monitor them, and success criteria for each parameter;
    (B) A list of activities you will undertake to ensure the efficacy 
of the restoration measures, a description of the linkages between 
these activities and the items in paragraph (b)(4)(v)(A) of this 
section, and an implementation schedule; and
    (C) A process for revising the Restoration Plan as new information, 
including monitoring data, becomes available, if the applicable 
requirements under Sec.  125.103(c)(2) are not being met.
    (vi) A summary of any past or ongoing consultation with appropriate 
Federal, State, and Tribal fish and wildlife management agencies on 
your use of restoration measures including a copy of any written 
comments received as a result of such consultations;
    (vii) If requested by the Director, a peer review of the items you 
submit for the Restoration Plan. You must choose the peer reviewers in 
consultation with the Director who may consult with EPA and Federal, 
State, and Tribal fish and wildlife management agencies with 
responsibility for fish and wildlife potentially affected by your 
cooling water intake structure(s). Peer reviewers must have appropriate 
qualifications (e.g., in the fields of geology, engineering, and/or 
biology, etc.) depending upon the materials to be reviewed; and
    (viii) A description of the information to be included in a 
biennial status report to the Director.
    (5) Information to Support Site-specific Determination of Best

[[Page 68555]]

Technology Available for Minimizing Adverse Environmental Impact. If 
you have requested a site-specific determination of best technology 
available for minimizing adverse environmental impact pursuant to Sec.  
125.103(a)(5)(i) because of costs significantly greater than those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards of Sec.  125.103(b), 
you are required to provide to the Director the information specified 
in paragraphs (b)(5)(i) and (b)(5)(iii) of this section. If you have 
requested a site-specific determination of best technology available 
for minimizing adverse environmental impact pursuant to Sec.  
125.103(a)(5)(ii) because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.103(b) at your facility, you must provide the information specified 
in paragraphs (b)(5)(i), (b)(5)(ii), and (b)(5)(iii) of this section:
    (i) Comprehensive Cost Evaluation Study. You must perform and 
submit the results of a Comprehensive Cost Evaluation Study, that 
includes:
    (A) Engineering cost estimates in sufficient detail to document the 
costs of implementing design and construction technologies, operational 
measures, and/or restoration measures at your facility that would be 
needed to meet the applicable performance standards of Sec.  
125.103(b);
    (B) A demonstration that the costs documented in paragraph 
(b)(5)(i)(A) of this section significantly exceed either those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards or the benefits of 
meeting the applicable performance standards at your facility; and
    (C) Engineering cost estimates in sufficient detail to document the 
costs of implementing the design and construction technologies, 
operational measures, and/or restoration measures in your Site-Specific 
Technology Plan developed in accordance with paragraph (b)(5)(iii) of 
this section.
    (ii) Benefits Valuation Study. If you are seeking a site-specific 
determination of best technology available for minimizing adverse 
environmental impact because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec.  
125.103(b) at your facility, you must use a comprehensive methodology 
to fully value the impacts of impingement mortality and entrainment at 
your site and the benefits achievable by meeting the applicable 
performance standards. In addition to the valuation estimates, the 
benefit study must include the following:
    (A) A description of the methodology(ies) used to value commercial, 
recreational, and ecological benefits (including any non-use benefits, 
if applicable);
    (B) Documentation of the basis for any assumptions and quantitative 
estimates. If you plan to use an entrainment survival rate other than 
zero, you must submit a determination of entrainment survival at your 
facility based on a study approved by the Director;
    (C) An analysis of the effects of significant sources of 
uncertainty on the results of the study; and
    (D) If requested by the Director, a peer review of the items you 
submit in the Benefits Valuation Study. You must choose the peer 
reviewers in consultation with the Director who may consult with EPA 
and Federal, State, and Tribal fish and wildlife management agencies 
with responsibility for fish and wildlife potentially affected by your 
cooling water intake structure. Peer reviewers must have appropriate 
qualifications depending upon the materials to be reviewed.
    (E) A narrative description of any non-monetized benefits that 
would be realized at your site if you were to meet the applicable 
performance standards and a qualitative assessment of their magnitude 
and significance.
    (iii) Site-Specific Technology Plan. Based on the results of the 
Comprehensive Cost Evaluation Study required by paragraph (b)(5)(i) of 
this section, and the Benefits Valuation Study required by paragraph 
(b)(5)(ii) of this section, if applicable, you must submit a Site-
Specific Technology Plan to the Director for review and approval. The 
plan must contain the following information:
    (A) A narrative description of the design and operation of all 
existing and proposed design and construction technologies, operational 
measures, and/or restoration measures that you have selected in 
accordance with Sec.  125.103(a)(5);
    (B) An engineering estimate of the efficacy of the proposed and/or 
implemented design and construction technologies or operational 
measures, and/or restoration measures. This estimate must include a 
site-specific evaluation of the suitability of the technologies or 
operational measures for reducing impingement mortality and entrainment 
of all life stages of fish and shellfish based on representative 
studies (e.g., studies that have been conducted at cooling water intake 
structures located in the same waterbody type with similar biological 
characteristics) and, if applicable, site-specific technology prototype 
or pilot studies. If restoration measures will be used, you must 
provide a Restoration Plan that includes the elements described in 
paragraph (b)(4) of this section.
    (C) A demonstration that the proposed and/or implemented design and 
construction technologies, operational measures, and/or restoration 
measures achieve an efficacy that is as close as practicable to the 
applicable performance standards of Sec.  125.103(b) without resulting 
in costs significantly greater than either the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards, or as appropriate, the benefits of complying 
with the applicable performance standards at your facility;
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the elements of the 
Plan.
    (6) Verification Monitoring Plan. If you comply using compliance 
alternatives in Sec.  125.103(a)(2), (3), (4), or (5) using design and 
construction technologies and/or operational measures, you must submit 
a plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or already implemented 
technologies and/or operational measures. The verification study must 
begin once the design and construction technologies and/or operational 
measures are installed and continue for a period of time that is 
sufficient to demonstrate to the Director whether the facility is 
meeting the applicable performance standards in Sec.  125.103(b) or 
site-specific requirements developed pursuant to Sec.  125.103(a)(5). 
The plan must provide the following:
    (i) Description of the frequency and duration of monitoring, the 
parameters to be monitored, and the basis for determining the 
parameters and the frequency and duration for monitoring. The 
parameters selected and duration and frequency of monitoring must be 
consistent with any methodology for assessing success in meeting 
applicable performance standards in your Technology Installation and 
Operation Plan as required by paragraph (b)(3)(ii) of this section.
    (ii) A proposal on how naturally moribund fish and shellfish that 
enter the cooling water intake structure would be identified and taken 
into account in assessing success in meeting the performance standards 
in Sec.  125.103(b).

[[Page 68556]]

    (iii) A description of the information to be included in a biennial 
status report to the Director.

Sec.  125.105  As an owner or operator of a Phase III existing 
facility, what monitoring must I perform?

OPTION A FOR Sec.  125.105--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type or the 
regulatory option that defines a Phase III existing facility as one 
with design intake flows 200 MGD or more, located on any waterbody type]:

    As an owner or operator of a Phase III existing facility, you must 
perform monitoring, as applicable, in accordance with the Technology 
Installation and Operation Plan required by Sec.  125.104(b)(4)(ii), 
the Restoration Plan required by Sec.  125.104(b)(5), the Verification 
Monitoring Plan required by Sec.  125.104(b)(7), and any additional 
monitoring specified by the Director to demonstrate compliance with the 
applicable requirements of Sec.  125.103.

OPTION B FOR Sec.  125.105--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    As an owner or operator of a Phase III existing facility, you must 
perform monitoring, as applicable, in accordance with the Technology 
Installation and Operation Plan required by Sec.  125.104(b)(3)(ii), 
the Restoration Plan required by Sec.  125.104(b)(4), the Verification 
Monitoring Plan required by Sec.  125.104(b)(6), and any additional 
monitoring specified by the Director to demonstrate compliance with the 
applicable requirements of Sec.  125.103.

Sec.  125.106  As an owner or operator of a Phase III existing 
facility, what records must I keep and what information must I report?

    As an owner or operator of a Phase III existing facility you are 
required to keep records and report information and data to the 
Director as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements of Sec.  
125.103, any supplemental information developed under Sec.  125.104, 
and any compliance monitoring data submitted under Sec.  125.105, for a 
period of at least three (3) years from date of permit issuance. The 
Director may require that these records be kept for a longer period.
    (b) You must submit a status report to the Director for review 
every two years that includes appropriate monitoring data and other 
information as specified by the Director in accordance with Sec.  
125.107(b)(5).


Sec.  125.107  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) and Sec.  125.104 
before each permit renewal or reissuance.
    (1) You must review and comment on the Proposal for Information 
Collection submitted by the facility in accordance with Sec.  
125.104(a)(1). You are encouraged to provide comments expeditiously so 
that the permit applicant can make responsive modifications to its 
information gathering activities. If a facility submits a request in 
accordance with Sec.  125.104(a)(2)(ii) for an alternate schedule for 
submitting the information required in Sec.  125.104, you must approve 
a schedule that is as expeditious as practicable, but does not extend 
beyond [3 years and 180 days from publication of the final rule]
for 
Phase III existing facilities. If a facility submits a request in 
accordance with Sec.  125.104(a)(3) to reduce the information about 
their cooling water intake structures and the source waterbody required 
to be submitted in their permit application (other than with the first 
permit application [60 days from publication of the final rule]
for 
Phase III existing facilities), you must approve the request within 60 
days if conditions at the facility and in the waterbody remain 
substantially unchanged since the previous application.
    (2) After receiving the permit application from the owner or 
operator of a Phase III existing facility, you must determine which of 
the requirements specified in Sec.  125.103 apply to the facility. In 
addition, you must review materials to determine compliance with the 
applicable requirements.
    (3) At each permit renewal, you must review the application 
materials and monitoring data to determine whether new or revised 
requirements for design and construction technologies, operational 
measures, or restoration measures should be included in the permit to 
meet the applicable performance standards in Sec.  125.103(b) or 
alternative site-specific requirements established pursuant to Sec.  
125.103(a)(5).

OPTION A FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type or the 
regulatory option that defines a Phase III existing facility as one 
with design intake flows 200 MGD or more, located on any waterbody type]:

    (b) Permitting Requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, 
you must consider the information submitted by the Phase III existing 
facility in its permit application, and determine the appropriate 
requirements and conditions to include in the permit based on the 
compliance alternatives in Sec.  125.103(a). The following requirements 
must be included in each permit:
    (1) Cooling Water Intake Structure Requirements. The permit 
conditions must include the requirements that implement the applicable 
provisions of Sec.  125.103. You must evaluate the performance of the 
design and construction technologies, operational measures, and/or 
restoration measures proposed and implemented by the facility and 
require additional or different design and construction technologies, 
operational measure, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, or alternative site-specific requirements. In determining 
compliance with the performance standards for facilities proposing to 
increase withdrawals of cooling water from a lake (other than a Great 
Lake) or a reservoir in Sec.  125.103(b)(3), you must consider 
anthropogenic factors (those not considered ``natural'') unrelated to 
the Phase III existing facility's cooling water intake structures that 
can influence the occurrence and location of a thermocline. These 
include source water inflows, other water withdrawals, managed water 
uses, wastewater discharges, and flow/level management practices (e.g., 
some reservoirs release water from deeper bottom layers). As the 
Director, you must coordinate with appropriate Federal, State, or 
Tribal fish and wildlife management agencies to determine if any 
disruption of the natural thermal stratification resulting from the 
proposed increased withdrawal of cooling water does not adversely 
affect the management of fisheries. Specifically:
    (i) You must review and approve the Design and Construction 
Technology Plan required in Sec.  125.104(b)(4) to evaluate the 
suitability and feasibility of the design and construction technology 
and/or operational measures proposed to meet the performance standards in

[[Page 68557]]

Sec.  125.103(b) or site-specific requirements developed pursuant to 
Sec.  125.103(a)(5).
    (ii) If the facility proposes restoration measures in accordance 
with Sec.  125.103(c), you must review and approve the Restoration Plan 
required under Sec.  125.104(b)(5) to determine whether the proposed 
measures, alone or in combination with design and construction 
technologies and/or operational measures, will meet the requirements 
under Sec.  125.103(c).
    (iii) In each reissued permit, you must include a condition in the 
permit requiring the facility to reduce impingement mortality and 
entrainment (or to increase fish production, if applicable) 
commensurate with the efficacy at the facility of the installed design 
and construction technologies, operational measures, and/or restoration 
measures.
    (iv) If the facility implements design and construction 
technologies and/or operational measures and requests that compliance 
with the requirements in Sec.  125.103 be measured for the first permit 
term (or subsequent permit terms, if applicable) employing the 
Technology Installation and Operation Plan in accordance with Sec.  
125.104(b)(4)(ii), you must review the Technology Installation and 
Operation Plan to ensure it meets the requirements of Sec.  
125.104(b)(4)(ii). If the Technology Installation and Operation Plan 
meets the requirements of Sec.  125.104(b)(4)(ii), you must approve the 
Technology Installation and Operation Plan and require the facility to 
meet the terms of the plan including any revision to the plan that may 
be necessary if applicable performance standards or alternative site-
specific requirements are not being met. If the facility implements 
restoration measures and requests that compliance with the requirements 
in Sec.  125.103 be measured for the first permit term (or subsequent 
permit terms, if applicable) employing a Restoration Plan in accordance 
with Sec.  125.104(b)(5), you must review the Restoration Plan to 
ensure it meets the requirements of Sec.  125.104(b)(5). If the 
Restoration Plan meets the requirements of Sec.  125.104(b)(5), you 
must approve the plan and require the facility to meet the terms of the 
plan including any revision to the plan that may be necessary if 
applicable performance standards or site-specific requirements are not 
being met. In determining whether to approve a Technology Installation 
and Operation Plan or Restoration Plan, you must evaluate whether the 
design and construction technologies, operational measures, and/or 
restoration measures the facility has installed, or proposes to 
install, can reasonably be expected to meet the applicable performance 
standards in Sec.  125.103(b), restoration requirements in Sec.  
125.103(c)(2), and/or alternative site-specific requirements 
established pursuant to Sec.  125.103(a)(5), and whether the Technology 
Installation and Operation Plan and/or Restoration Plan complies with 
the applicable requirements of Sec.  125.104(b). In reviewing the 
Technology Installation and Operation Plan, you must approve any 
reasonable scheduling provisions that are designed to ensure that 
impacts to energy reliability and supply are minimized, in accordance 
with Sec.  125.104(b)(4)(ii)(A). If the facility does not request that 
compliance with the requirements in Sec.  125.103 be measured employing 
a Technology Installation and Operation Plan and/or Restoration Plan, 
or the facility has not been in compliance with the terms of its 
current Technology Installation and Operation Plan and/or Restoration 
Plan during the preceding permit term, you must require the facility to 
comply with the applicable performance standards in Sec.  125.103(b), 
restoration requirement in Sec.  125.103(c)(2), and/or alternative 
site-specific requirements developed pursuant to Sec.  125.103(a)(5). 
In considering a permit application, you must review the performance of 
the design and construction technologies, operational measures, and/or 
restoration measures implemented and require additional or different 
design and construction technologies, operational measures, and/or 
restoration measures, and/or improved operation and maintenance of 
existing technologies and measures, if needed to meet the applicable 
performance standards, restoration requirements, and/or alternative 
site-specific requirements.
    (v) You must review and approve the proposed Verification 
Monitoring Plan submitted under Sec.  125.104(b)(7) (for design and 
construction technologies) and/or monitoring provisions of the 
Restoration Plan submitted under Sec.  125.104(b)(5)(v) and require 
that the monitoring continue for a sufficient period of time to 
demonstrate whether the design and construction technology, operational 
measures, and/or restoration measures meet the applicable performance 
standards in Sec.  125.103(b), restoration requirements in Sec.  
125.103(c)(2) and/or site-specific requirements established pursuant to 
Sec.  125.103(a)(5).
    (vi) If a facility requests requirements based on a site-specific 
determination of best technology available for minimizing adverse 
environmental impact, you must review the application materials 
submitted under Sec.  125.104(b)(6) and any other information you may 
have, including quantitative and qualitative benefits, that would be 
relevant to a determination of whether alternative requirements are 
appropriate for the facility. If a facility submits a study to support 
entrainment survival at the facility, you must review and approve the 
results of that study. If you determine that alternative requirements 
are appropriate, you must make a site-specific determination of best 
technology available for minimizing adverse environmental impact in 
accordance with Sec.  125.103(a)(5). You, as the Director, may request 
revisions to the information submitted by the facility in accordance 
with Sec.  125.104(b)(6) if it does not provide an adequate basis for 
you to make this determination. Any alternative site-specific 
requirements established based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures, must achieve an efficacy that is, in your judgment, as close 
as practicable to the applicable performance standards of Sec.  
125.103(b) without resulting in costs that are significantly greater 
than the costs considered by the Administrator for a like facility in 
establishing the applicable performance standards in Sec.  125.103(b), 
determined in accordance with Sec.  125.103(a)(5)(i)(A) through (F), or 
the benefits of complying with the applicable performance standards at 
the facility. A ``like facility'' is one that is subject to the same 
requirements as those that would otherwise be applicable to the 
facility seeking a site-specific determination. In other words, ``like 
facilities'' for Phase III existing facilities include only other Phase 
III existing facilities; and
    (vii) You must review the proposed methods for assessing success in 
meeting applicable performance standards and/or restoration 
requirements submitted by the facility under Sec.  125.104(b)(4)(ii)(D) 
and/or (b)(5)(v)(A), evaluate those and other available methods, and 
specify how assessment of success in meeting the performance standards 
and/or restoration requirements must be determined including the 
averaging period for determining the percent reduction in impingement 
mortality and entrainment and/or the production of fish and shellfish. 
Compliance for facilities who request that compliance be measured 
employing a Technology Installation and Operation Plan and/or 
Restoration Plan must be determined in accordance with Sec.  
125.107(b)(1)(iv).
    (2) Monitoring Conditions. You must require the facility to perform

[[Page 68558]]

monitoring in accordance with the Technology Installation and Operation 
Plan in Sec.  125.104(b)(4)(ii), the Restoration Plan required by Sec.  
125.104(b)(5), if applicable, and the Verification Monitoring Plan 
required by Sec.  125.104(b)(7). In determining any additional 
applicable monitoring requirements in accordance with Sec.  125.105, 
you must consider the facility's Verification Monitoring, Technology 
Installation and Operation, and/or Restoration Plans, as appropriate. 
You may modify the monitoring program based on changes in physical or 
biological conditions in the vicinity of the cooling water intake 
structure.
    (3) Record Keeping and Reporting. At a minimum, the permit must 
require the facility to report and keep records specified in Sec.  
125.106.
    (4) Design and Construction Technology Approval. (i) For a facility 
that chooses to demonstrate that it has installed and properly operate 
and maintain a design and construction technology approved in 
accordance with Sec.  125.108, the Director must review and approve the 
information submitted in the Technology Installation and Operation Plan 
in Sec.  125.104(b)(4)(ii) and determine if it meets the criteria in 
Sec.  125.108.
    (ii) If a person requests approval of a technology under Sec.  
125.108(b), the Director must review and approve the information 
submitted and determine its suitability for widespread use at 
facilities with similar site conditions in its jurisdiction with 
minimal study. As the Director, you must evaluate the adequacy of the 
technology when installed in accordance with the required design 
criteria and site conditions to consistently meet the performance 
standards in Sec.  125.103. You, as the Director, may only approve a 
technology following public notice and consideration of comment 
regarding such approval.
    (5) Biennial Status Report. You must specify monitoring data and 
other information to be included in a status report every two years. 
The other information may include operation and maintenance records, 
summaries of adaptive management activities, or any other information 
that is relevant to determining compliance with the terms of the 
facility's Technology Operation and Installation Plan and/or 
Restoration Plan.

OPTION B FOR PARAGRAPH (b)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    (b) Permitting Requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, 
you must consider the information submitted by the Phase III existing 
facility in its permit application, and determine the appropriate 
requirements and conditions to include in the permit based on the 
compliance alternatives in Sec.  125.103(a). The following requirements 
must be included in each permit:
    (1) Cooling Water Intake Structure Requirements. The permit 
conditions must include the requirements that implement the applicable 
provisions of Sec.  125.103. You must evaluate the performance of the 
design and construction technologies, operational measures, and/or 
restoration measures proposed and implemented by the facility and 
require additional or different design and construction technologies, 
operational measure, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, or alternative site-specific requirements. Specifically:
    (i) You must review and approve the Design and Construction 
Technology Plan required in Sec.  125.104(b)(3) to evaluate the 
suitability and feasibility of the design and construction technology 
and/or operational measures proposed to meet the performance standards 
in Sec.  125.103(b) or site-specific requirements developed pursuant to 
Sec.  125.103(a)(5).
    (ii) If the facility proposes restoration measures in accordance 
with Sec.  125.103(c), you must review and approve the Restoration Plan 
required under Sec.  125.104(b)(4) to determine whether the proposed 
measures, alone or in combination with design and construction 
technologies and/or operational measures, will meet the requirements 
under Sec.  125.103(c).
    (iii) In each reissued permit, you must include a condition in the 
permit requiring the facility to reduce impingement mortality and 
entrainment (or to increase fish production, if applicable) 
commensurate with the efficacy at the facility of the installed design 
and construction technologies, operational measures, and/or restoration 
measures.
    (iv) If the facility implements design and construction 
technologies and/or operational measures and requests that compliance 
with the requirements in Sec.  125.103 be measured for the first permit 
term (or subsequent permit terms, if applicable) employing the 
Technology Installation and Operation Plan in accordance with Sec.  
125.104(b)(3)(ii), you must review the Technology Installation and 
Operation Plan to ensure it meets the requirements of Sec.  
125.104(b)(3)(ii). If the Technology Installation and Operation Plan 
meets the requirements of Sec.  125.104(b)(3)(ii), you must approve the 
Technology Installation and Operation Plan and require the facility to 
meet the terms of the plan including any revision to the plan that may 
be necessary if applicable performance standards or alternative site-
specific requirements are not being met. If the facility implements 
restoration measures and requests that compliance with the requirements 
in Sec.  125.103 be measured for the first permit term (or subsequent 
permit terms, if applicable) employing a Restoration Plan in accordance 
with Sec.  125.104(b)(4), you must review the Restoration Plan to 
ensure it meets the requirements of Sec.  125.104(b)(4). If the 
Restoration Plan meets the requirements of Sec.  125.104(b)(4), you 
must approve the plan and require the facility to meet the terms of the 
plan including any revision to the plan that may be necessary if 
applicable performance standards or site-specific requirements are not 
being met. In determining whether to approve a Technology Installation 
and Operation Plan or Restoration Plan, you must evaluate whether the 
design and construction technologies, operational measures, and/or 
restoration measures the facility has installed, or proposes to 
install, can reasonably be expected to meet the applicable performance 
standards in Sec.  125.103(b), restoration requirements in Sec.  
125.103(c)(2), and/or alternative site-specific requirements 
established pursuant to Sec.  125.103(a)(5), and whether the Technology 
Installation and Operation Plan and/or Restoration Plan complies with 
the applicable requirements of Sec.  125.104(b). In reviewing the 
Technology Installation and Operation Plan, you must approve any 
reasonable scheduling provisions that are designed to ensure that 
impacts to energy reliability and supply are minimized, in accordance 
with Sec.  125.104(b)(3)(ii)(A). If the facility does not request that 
compliance with the requirements in Sec.  125.103 be measured employing 
a Technology Installation and Operation Plan and/or Restoration Plan, 
or the facility has not been in compliance with the terms of its 
current Technology Installation and Operation Plan and/or Restoration 
Plan during the preceding permit term, you must require

[[Page 68559]]

the facility to comply with the applicable performance standards in 
Sec.  125.103(b), restoration requirement in Sec.  125.103(c)(2), and/
or alternative site-specific requirements developed pursuant to Sec.  
125.103(a)(5). In considering a permit application, you must review the 
performance of the design and construction technologies, operational 
measures, and/or restoration measures implemented and require 
additional or different design and construction technologies, 
operational measures, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, and/or alternative site-specific requirements.
    (v) You must review and approve the proposed Verification 
Monitoring Plan submitted under Sec.  125.104(b)(6) (for design and 
construction technologies) and/or monitoring provisions of the 
Restoration Plan submitted under Sec.  125.104(b)(4)(v) and require 
that the monitoring continue for a sufficient period of time to 
demonstrate whether the design and construction technology, operational 
measures, and/or restoration measures meet the applicable performance 
standards in Sec.  125.103(b), restoration requirements in Sec.  
125.103(c)(2) and/or site-specific requirements established pursuant to 
Sec.  125.103(a)(5).
    (vi) If a facility requests requirements based on a site-specific 
determination of best technology available for minimizing adverse 
environmental impact, you must review the application materials 
submitted under Sec.  125.104(b)(5) and any other information you may 
have, including quantitative and qualitative benefits, that would be 
relevant to a determination of whether alternative requirements are 
appropriate for the facility. If a facility submits a study to support 
entrainment survival at the facility, you must review and approve the 
results of that study. If you determine that alternative requirements 
are appropriate, you must make a site-specific determination of best 
technology available for minimizing adverse environmental impact in 
accordance with Sec.  125.103(a)(5). You, as the Director, may request 
revisions to the information submitted by the facility in accordance 
with Sec.  125.104(b)(5) if it does not provide an adequate basis for 
you to make this determination. Any alternative site-specific 
requirements established based on new and/or existing design and 
construction technologies, operational measures, and/or restoration 
measures, must achieve an efficacy that is, in your judgment, as close 
as practicable to the applicable performance standards of Sec.  
125.103(b) without resulting in costs that are significantly greater 
than the costs considered by the Administrator for a like facility in 
establishing the applicable performance standards in Sec.  125.103(b), 
determined in accordance with Sec.  125.103(a)(5)(i)(A) through (F), or 
the benefits of complying with the applicable performance standards at 
the facility. A ``like facility'' is one that is subject to the same 
requirements as those that would otherwise be applicable to the 
facility seeking a site-specific determination. In other words, ``like 
facilities'' for Phase III existing facilities include only other Phase 
III existing facilities; and
    (vii) You must review the proposed methods for assessing success in 
meeting applicable performance standards and/or restoration 
requirements submitted by the facility under Sec.  125.104(b)(3)(ii)(D) 
and/or (b)(4)(v)(A), evaluate those and other available methods, and 
specify how assessment of success in meeting the performance standards 
and/or restoration requirements must be determined including the 
averaging period for determining the percent reduction in impingement 
mortality and entrainment and/or the production of fish and shellfish. 
Compliance for facilities who request that compliance be measured 
employing a Technology Installation and Operation Plan and/or 
Restoration Plan must be determined in accordance with Sec.  
125.107(b)(1)(iv).
    (2) Monitoring Conditions. You must require the facility to perform 
monitoring in accordance with the Technology Installation and Operation 
Plan in Sec.  125.104(b)(3)(ii), the Restoration Plan required by Sec.  
125.104(b)(4), if applicable, and the Verification Monitoring Plan 
required by Sec.  125.104(b)(6). In determining any additional 
applicable monitoring requirements in accordance with Sec.  125.105, 
you must consider the monitoring facility's Verification Monitoring, 
Technology Installation and Operation, and/or Restoration Plans, as 
appropriate. You may modify the monitoring program based on changes in 
physical or biological conditions in the vicinity of the cooling water 
intake structure.
    (3) Record Keeping and Reporting. At a minimum, the permit must 
require the facility to report and keep records specified in Sec.  
125.106.
    (4) Design and Construction Technology Approval. (i) For a facility 
that chooses to demonstrate that it has installed and properly operate 
and maintain a design and construction technology approved in 
accordance with Sec.  125.108, the Director must review and approve the 
information submitted in the Technology Installation and Operation Plan 
in Sec.  125.104(b)(3)(ii) and determine if it meets the criteria in 
Sec.  125.108.
    (ii) If a person requests approval of a technology under Sec.  
125.108(b), the Director must review and approve the information 
submitted and determine its suitability for widespread use at 
facilities with similar site conditions in its jurisdiction with 
minimal study. As the Director, you must evaluate the adequacy of the 
technology when installed in accordance with the required design 
criteria and site conditions to consistently meet the performance 
standards in Sec.  125.103. You, as the Director, may only approve a 
technology following public notice and consideration of comment 
regarding such approval.
    (5) Biennial Status Report. You must specify monitoring data and 
other information to be included in a status report every two years. 
The other information may include operation and maintenance records, 
summaries of adaptive management activities, or any other information 
that is relevant to determining compliance with the terms of the 
facility's Technology Operation and Installation Plan and/or 
Restoration Plan.

Sec.  125.108  What are Approved Design and Construction Technologies?

OPTION A FOR PARAGRAPH (a)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 50 MGD or more, located on any waterbody type or the 
regulatory option that defines a Phase III existing facility as one 
with design intake flows 200 MGD or more, located on any waterbody type]:

    (a) The following technologies constitute approved design and 
construction technologies for purposes of Sec.  125.103(a)(4):
    (1) Submerged cylindrical wedgewire screen technology, if you meet 
the following conditions:
    (i) Your cooling water intake structure is located in a freshwater 
river or stream;
    (ii) Your cooling water intake structure is situated such that 
sufficient ambient counter currents exist to promote cleaning of the 
screen face;
    (iii) Your maximum through-screen design intake velocity is 0.5 ft/
s or less;
    (iv) The slot size is appropriate for the size of eggs, larvae, and 
juveniles of all

[[Page 68560]]

fish and shellfish to be protected at the site; and
    (v) Your entire main cooling water intake flow is directed through 
the technology. Small flows totaling less than 2 MGD for auxiliary 
cooling uses are excluded from this provision.
    (2) A technology that has been approved in accordance with the 
process described in paragraph (b) of this section.

OPTION B FOR PARAGRAPH (a)--[This language reflects the regulatory 
option that defines a Phase III existing facility as one with design 
intake flows of 100 MGD or more, located on oceans, estuaries, tidal 
rivers, or one of the Great Lakes]:

    (a) A design and construction technology may be approved for use in 
accordance with the compliance alternative in Sec.  125.103(a)(4). The 
technology must be approved in accordance with the process described in 
paragraph (b) of this section.
    (b) You or any other interested person may submit a request to the 
Director that a technology be approved in accordance with the 
compliance alternative in Sec.  125.103(a)(4) after providing the 
public with notice and an opportunity to comment on the request for 
approval of the technology. If the Director approves the technology, it 
may be used by all facilities with similar site conditions under the 
Director's jurisdiction. Requests for approval of a technology must be 
submitted to the Director and include the following information:
    (1) A detailed description of the technology;
    (2) A list of design criteria for the technology and site 
characteristics and conditions that each facility must have in order to 
ensure that the technology can consistently meet the appropriate 
impingement mortality and entrainment performance standards in Sec.  
125.103(b); and
    (3) Information and data sufficient to demonstrate that facilities 
under the jurisdiction of the Director can meet the applicable 
impingement mortality and entrainment performance standards in Sec.  
125.103(b) if the applicable design criteria and site characteristics 
and conditions are present at the facility.
    3. Add subpart N to part 125 to read as follows:
Subpart N--Requirements Applicable to Cooling Water Intake Structures 
for New Offshore Oil and Gas Extraction Facilities Under Section 316(b) 
of the Act
Sec.
125.130 What are the purpose and scope of this subpart?
125.131 Who is subject to this subpart?
125.132 When must I comply with this subpart?
125.133 What special definitions apply to this subpart?
125.134 As an owner or operator of a new offshore oil and gas 
extraction facility, what must I do to comply with this subpart?
125.135 May alternative requirements be authorized?
125.136 As an owner or operator of a new offshore oil and gas 
extraction facility, what must I collect and submit when I apply for 
my new or reissued NPDES permit?
125.137 As an owner or operator of a new offshore oil and gas 
extraction facility, must I perform monitoring?
125.138 As an owner or operator of a new offshore oil and gas 
extraction facility, must I keep records and report?
125.139 As the Director, what must I do to comply with the 
requirements of this subpart?

Subpart N--Requirements Applicable to Cooling Water Intake 
Structures for New Offshore Oil and Gas Extraction Facilities Under 
Section 316(b) of the Act

Sec.  125.130  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at new offshore oil and gas extraction facilities. The 
purpose of these requirements is to establish the best technology 
available for minimizing adverse environmental impact associated with 
the use of cooling water intake structures at these facilities. These 
requirements are implemented through National Pollutant Discharge 
Elimination System (NPDES) permits issued under section 402 of the 
Clean Water Act (CWA).
    (b) This subpart implements section 316(b) of the CWA for new 
offshore oil and gas extraction facilities. Section 316(b) of the CWA 
provides that any standard established pursuant to sections 301 or 306 
of the CWA and applicable to a point source shall require that the 
location, design, construction, and capacity of cooling water intake 
structures reflect the best technology available for minimizing adverse 
environmental impact.
    (c) New offshore oil and gas extraction facilities that do not meet 
the threshold requirements regarding amount of water withdrawn or 
percentage of water withdrawn for cooling water purposes in Sec.  
125.131(a) must meet requirements determined by the Director on a case-
by-case, best professional judgement (BPJ) basis.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
more stringent than those required by Federal law.

Sec.  125.131  Who is subject to this subpart?

    (a) This subpart applies to a new offshore oil and gas extraction 
facility if it meets all of the following criteria:
    (1) It is a point source that uses or proposes to use a cooling 
water intake structure;
    (2) It has at least one cooling water intake structure that uses at 
least 25 percent of the water it withdraws for cooling purposes as 
specified in paragraph (c) of this section; and
    (3) It has a design intake flow greater than two (2) million 
gallons per day (MGD).
    (b) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with an 
independent supplier (or multiple suppliers) of cooling water if the 
supplier or suppliers withdraw(s) water from waters of the United 
States. Use of cooling water does not include obtaining cooling water 
from a public water system or the use of treated effluent that 
otherwise would be discharged to a water of the U.S. This provision is 
intended to prevent circumvention of these requirements by creating 
arrangements to receive cooling water from an entity that is not itself 
a point source.
    (c) The threshold requirement that at least 25 percent of water 
withdrawn be used for cooling purposes must be measured on an average 
monthly basis. A new offshore oil and gas extraction facility meets the 
25 percent cooling water threshold if, based on the new facility's 
design, any monthly average over a year for the percentage of cooling 
water withdrawn is expected to equal or exceed 25 percent of the total 
water withdrawn.
    (d) Neither this subpart nor Subpart I applies to seafood 
processing vessels and offshore liquefied natural gas import terminals 
that are new facilities as defined in 40 CFR 125.83. Seafood processing 
vessels and offshore liquefied natural gas import terminals must meet 
requirements established by the Director on a case-by-case, best 
professional judgment (BPJ) basis.

Sec.  125.132  When must I comply with this subpart?

    You must comply with this subpart when an NPDES permit containing 
requirements consistent with this subpart is issued to you.

[[Page 68561]]

Sec.  125.133  What special definitions apply to this subpart?

    The following special definitions apply to this subpart:
    Annual mean flow means the average of daily flows over a calendar 
year. Historical data (up to 10 years) must be used where available.
    Cooling water means water used for contact or noncontact 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 that is used in another industrial process 
either before or after it is used for cooling is considered process 
water for the purposes of calculating the percentage of a new offshore 
oil and gas extraction facility's intake flow that is used for cooling 
purposes in Sec.  125.131(c).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design intake flow means the value assigned (during the facility's 
design) to the total volume of water withdrawn from a source water body 
over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or 
other device) against which organisms might be impinged or through 
which they might be entrained.
    Entrainment means the incorporation of all life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Fixed facility means a bottom founded offshore oil and gas 
extraction facility permanently attached to the seabed or subsoil of 
the outer continental shelf (e.g., platforms, guyed towers, articulated 
gravity platforms) or a buoyant facility securely and substantially 
moored so that it cannot be moved without a special effort (e.g., 
tension leg platforms, permanently moored semi-submersibles) and which 
is not intended to be moved during the production life of the well. 
This definition does not include mobile offshore drilling units (MODUs) 
(e.g., drill ships, temporarily moored semi-submersibles, jack-ups, 
submersibles, tender-assisted rigs, and drill barges).
    Hydraulic zone of influence means that portion of the source 
waterbody hydraulically affected by the cooling water intake structure 
withdrawal of water.
    Impingement means the entrapment of all 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.
    Maximize means to increase to the greatest amount, extent, or 
degree reasonably possible.
    Minimize means to reduce to the smallest amount, extent, or degree 
reasonably possible.
    Minimum ambient source water surface elevation means the mean low 
tidal water level for estuaries or oceans. The mean low tidal water 
level is the average height of the low water over at least 19 years.
    New offshore oil and gas extraction facility means any building, 
structure, facility, or installation that:
    (1) Meets the definition of a ``new source'' or ``new discharger'' 
in 40 CFR 122.2 and 122.29(b)(1) and (4);
    (2) Is regulated by the Offshore and Coastal Subcategories of the 
Oil and Gas Extraction Point Source Category Effluent Guidelines in 40 
CFR 435.10 or 40 CFR 435.40; and
    (3) Commenced construction after [60 days from publication of the 
final rule].
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Offshore liquefied natural gas (LNG) import terminal means any 
facility located in waters defined in 40 CFR 435.10 or 40 CFR 435.40 
that liquefies, re-gasifies, transfers, or stores liquefied natural gas.
    Sea chest means the underwater compartment or cavity within the 
facility or vessel hull or pontoon through which sea water is drawn in 
(for cooling and other purposes) or discharged.
    Seafood processing vessel means any offshore or nearshore, 
floating, mobile, facility engaged in the processing of fresh, frozen, 
canned, smoked, salted or pickled seafood, seafood paste, mince, or meal.
    Source water means the water body (waters of the U.S.) from which 
the cooling water is withdrawn.
    Tidal excursion means the horizontal distance along the estuary or 
tidal river that a particle moves during one tidal cycle of ebb and flow.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.

Sec.  125.134  As an owner or operator of a new offshore oil and gas 
extraction facility, what must I do to comply with this subpart?

    (a)(1) The owner or operator of a new offshore oil and gas 
extraction facility must comply with:
    (i) Track I in paragraph (b) or Track II in paragraph (c) of this 
section, if it is a fixed facility; or
    (ii) Track I in paragraph (b) of this section, if it is not a fixed 
facility.
    (2) In addition to meeting the requirements in paragraph (b) or (c) 
of this section, the owner or operator of a new offshore oil and gas 
extraction facility may be required to comply with paragraph (d) of 
this section.
    (b) Track I requirements for new offshore oil and gas extraction 
facilities. (1)(i) New offshore oil and gas extraction facilities that 
withdraw greater than 2 MGD, do not employ sea chests as cooling water 
intake structures, and are fixed facilities must comply with all of the 
requirements in paragraphs (b)(2) through (8) of this section.
    (ii) New offshore oil and gas extraction facilities that withdraw 
greater than 2 MGD, employ sea chests as cooling water intake 
structures, and are fixed facilities must comply with the requirements 
in paragraphs (b)(2), (3), (4), (6), (7), and (8) of this section.
    (iii) New offshore oil and gas extraction facilities that withdraw 
greater than 2 MGD and are not fixed facilities must comply with the 
requirements in paragraphs (b)(2), (4), (6), (7), and (8) of this section.
    (2) You must design and construct each cooling water intake 
structure at your facility to a maximum through-screen design intake 
velocity of 0.5 ft/s;
    (3) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;

[[Page 68562]]

    (4) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if the Director determines that:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water 
intake structure; or
    (iii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, that the proposed facility, 
after meeting the technology-based performance requirements in 
paragraphs (b)(2) and (5) of this section, would still contribute 
unacceptable stress to the protected species, critical habitat of those 
species, or species of concern;
    (5) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish;
    (6) You must submit the applicable application information required 
in 40 CFR 122.21(r) and Sec.  125.136(b). If you are a fixed facility 
you must submit the information required in 40 CFR 122.21(r)(2) (except 
(r)(2)(iv)), (3), and (4) and Sec.  125.136(b) of this subpart as part 
of your application. If you are a not a fixed facility, you must only 
submit the information required in 40 CFR 122.21(r)(2)(iv), (r)(3) 
(except r(3)(ii)) and Sec.  125.136(b) as part of your application.
    (7) You must implement the monitoring requirements specified in 
Sec.  125.137;
    (8) You must implement the recordkeeping requirements specified in 
Sec.  125.138.
    (c) Track II requirements for new offshore oil and gas extraction 
facilities. The owner or operator of a new offshore oil and gas 
extraction facility that is a fixed facility and chooses to comply 
under Track II must comply with the following requirements:
    (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 comparable level to that 
which you would achieve were you to implement the applicable 
requirements of paragraph (b)(2) and for fixed facilities without sea 
chests, paragraph (b)(5) of this section. This demonstration must 
include a showing that the impacts to fish and shellfish, including 
important forage and predator species will be comparable to those which 
would result if you were to implement the requirements of paragraph 
(b)(2) and for fixed facilities without sea chests, paragraph (b)(5) of 
this section. In identifying such species, the Director may consider 
information provided by any fishery management agency(ies) along with 
data and information from other sources.
    (2) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level.
    (3) You must submit the application information required in 40 CFR 
122.21(r) and Sec.  125.136(c).
    (4) You must implement the monitoring requirements specified in 
Sec.  125.137.
    (5) You must implement the record-keeping requirements specified in 
Sec.  125.138.
    (d) You must comply with any more stringent requirements relating 
to the location, design, construction, and capacity of a cooling water 
intake structure or monitoring requirements at a new offshore oil and 
gas extraction facility that the Director deems are reasonably 
necessary to comply with any provision of Federal or State law, 
including compliance with applicable state water quality standards 
(including designated uses, criteria, and antidegradation requirements).

Sec.  125.135  May alternative requirements be authorized?

    (a) Any interested person may request that alternative requirements 
less stringent than those specified in Sec.  125.134(a) through (d) be 
imposed in the permit. The Director may establish alternative 
requirements less stringent than the requirements of Sec.  125.134(a) 
through (d) only if:
    (1) There is an applicable requirement under Sec.  125.134(a) 
through (d);
    (2) The Director determines that data specific to the facility 
indicate that compliance with the requirement at issue would result in 
compliance costs wholly out of proportion to the costs EPA considered 
in establishing the requirement at issue or would result in significant 
adverse impacts on local water resources other than impingement or 
entrainment, or significant adverse impacts on energy markets;
    (3) The alternative requirement requested is no less stringent than 
justified by the wholly out of proportion cost or the significant 
adverse impacts on local water resources other than impingement or 
entrainment, or significant adverse impacts on energy markets; and
    (4) The alternative requirement will ensure compliance with other 
applicable provisions of the Clean Water Act and any applicable 
requirement of Federal or State law.
    (b) The burden is on the person requesting the alternative 
requirement to demonstrate that alternative requirements should be 
authorized.

Sec.  125.136  As an owner or operator of a new offshore oil and gas 
extraction facility, what must I collect and submit when I apply for my 
new or reissued NPDES permit?

    (a)(1) As an owner or operator of a new offshore oil and gas 
extraction facility, you must submit to the Director a statement that 
you intend to comply with either:
    (i) The Track I requirements for new offshore oil and gas 
extraction facilities in Sec.  125.134(b); or
    (ii) If you are a fixed facility, the Track II requirements in 
Sec.  125.134(c).
    (2) You must also submit the application information required by 40 
CFR 122.21(r) and the information required in either paragraph (b) of 
this section for Track I or, if you are a fixed facility that chooses 
to comply under Track II, paragraph (c) of this section for Track II 
when you apply for a new or reissued NPDES permit in accordance with 40 
CFR 122.21.
    (b) Track I application requirements. To demonstrate compliance 
with Track I requirements in Sec.  125.134(b), you must collect and 
submit to the Director the information in paragraphs (b)(1) through (3) 
of this section.
    (1) Velocity information. You must submit the following information 
to the Director to demonstrate that you are complying with the 
requirement to meet a maximum through-screen design intake velocity of 
no more than 0.5 ft/s at each cooling water intake structure as 
required in Sec.  125.134(b)(2):
    (i) A narrative description of the design, structure, equipment, 
and operation used to meet the velocity requirement; and
    (ii) Design calculations showing that the velocity requirement will 
be met at minimum ambient source water surface elevations (based on 
best professional judgment using available hydrological data) and 
maximum head loss across the screens or other device.

[[Page 68563]]

    (2) Source waterbody flow information. If you are a fixed facility 
and your cooling water intake structure is located in an estuary or 
tidal river, you must provide the mean low water tidal excursion 
distance and any supporting documentation and engineering calculations 
to show that your cooling water intake structure facility meets the 
flow requirements in Sec.  125.134(b)(3).
    (3) Design and Construction Technology Plan. To comply with Sec.  
125.134(b)(4) and/or (5), if applicable, you must submit to the 
Director the following information in a Design and Construction 
Technology Plan:
    (i) If the Director determines that additional impingement 
requirements should be included in your permit:
    (A) Information to demonstrate whether or not you meet the criteria 
in Sec.  125.134(b)(4);
    (B) Delineation of the hydraulic zone of influence for your cooling 
water intake structure;
    (ii) New offshore oil and gas extraction facilities required to 
install design and construction technologies and/or operational 
measures must develop a plan explaining the technologies and measures 
you have selected. (Examples of appropriate technologies include, but 
are not limited to, increased opening to cooling water intake structure 
to decrease design intake velocity, wedgewire screens, fixed screens, 
velocity caps, location of cooling water intake opening in waterbody, 
etc. Examples of appropriate operational measures include, but are not 
limited to, seasonal shutdowns or reductions in flow, continuous 
operations of screens, etc.) The plan must contain the following 
information, if applicable:
    (A) A narrative description of the design and operation of the 
design and construction technologies, including fish-handling and 
return systems, that you will use to maximize the survival of those 
species expected to be most susceptible to impingement. Provide 
species-specific information that demonstrates the efficacy of the 
technology;
    (B) To demonstrate compliance with 125.134(b)(5), if applicable, a 
narrative description of the design and operation of the design and 
construction technologies that you will use to minimize entrainment of 
those species expected to be the most susceptible to entrainment. 
Provide species-specific information that demonstrates the efficacy of 
the technology; and
    (C) Design calculations, drawings, and estimates to support the 
descriptions provided in paragraphs (b)(3)(iii)(A) and (B) of this section.
    (c) Application requirements for Track II. If you are a fixed 
facility and have chosen to comply with the requirements of Track II in 
Sec.  125.134(c) you must collect and submit the following information:
    (1) Source waterbody flow information. If your cooling water intake 
structure is located in an estuary or tidal river, you must provide the 
mean low water tidal excursion distance and any supporting 
documentation and engineering calculations to show that your cooling 
water intake structure facility meets the flow requirements in Sec.  
125.134(c)(2);
    (2) Track II Comprehensive Demonstration Study. You must perform 
and submit the results of a Comprehensive Demonstration Study (Study). 
This information is required to characterize the source water baseline 
in the vicinity of the cooling water intake structure(s), characterize 
operation of the cooling water intake(s), and to confirm that the 
technology(ies) proposed and/or implemented at your cooling water 
intake structure reduce the impacts to fish and shellfish to levels 
comparable to those you would achieve were you to implement the 
applicable requirements in Sec.  125.134(b)
    (i) To meet the ``comparable level'' requirement, you must 
demonstrate that:
    (A) You have reduced impingement mortality of all life stages of 
fish and shellfish to 90 percent or greater of the reduction that would 
be achieved through the applicable requirements in Sec.  125.134(b)(2); 
and
    (B) If you are a facility without sea chests, you have minimized 
entrainment of entrainable life stages of fish and shellfish in 
accordance with Sec.  125.134(b)(5);
    (ii) You must develop and submit a plan to the Director containing 
a proposal for how information will be collected to support the study. 
The plan must include:
    (A) A description of the proposed and/or implemented 
technology(ies) to be evaluated in the Study;
    (B) A list and description of any historical studies characterizing 
the physical and biological conditions in the vicinity of the proposed 
or actual intakes and their relevancy to the proposed Study. If you 
propose to rely on existing source water body data, it must be no more 
than 5 years old, you must demonstrate that the existing data are 
sufficient to develop a scientifically valid estimate of potential 
impingement mortality and (if applicable) entrainment impacts, and 
provide documentation showing that the data were collected using 
appropriate quality assurance/quality control procedures;
    (C) Any public participation or consultation with Federal or State 
agencies undertaken in developing the plan; and
    (D) A sampling plan for data that will be collected using actual 
field studies in the source water body. The sampling plan must document 
all methods and quality assurance procedures for sampling, and data 
analysis. The sampling and data analysis methods you propose must be 
appropriate for a quantitative survey and based on consideration of 
methods used in other studies performed in the source water body. The 
sampling plan must include a description of the study area (including 
the area of influence of the cooling water intake structure and at 
least 100 meters beyond); taxonomic identification of the sampled or 
evaluated biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods; and
    (iii) You must submit documentation of the results of the Study to 
the Director. Documentation of the results of the Study must include:
    (A) Source Water Biological Study. The Source Water Biological 
Study must include:
    (1) A taxonomic identification and characterization of aquatic 
biological resources including: a summary of historical and 
contemporary aquatic biological resources; determination and 
description of the target populations of concern (those species of fish 
and shellfish and all life stages that are most susceptible to 
impingement and entrainment); and a description of the abundance and 
temporal/spatial characterization of the target populations based on 
the collection of multiple years of data to capture the seasonal and 
daily activities (e.g., spawning, feeding and water column migration) 
of all life stages of fish and shellfish found in the vicinity of the 
cooling water intake structure;
    (2) An identification of all threatened or endangered species that 
might be susceptible to impingement and entrainment by the proposed 
cooling water intake structure(s); and
    (3) A description of additional chemical, water quality, and other 
anthropogenic stresses on the source waterbody.
    (B) Evaluation of potential cooling water intake structure effects. 
This evaluation will include:
    (1) Calculations of the reduction in impingement mortality and, if 
applicable, entrainment of all life stages

[[Page 68564]]

of fish and shellfish that would need to be achieved by the 
technologies you have selected to implement to meet requirements under 
Track II. To do this, you must determine the reduction in impingement 
mortality and entrainment that would be achieved by implementing the 
requirements of Sec.  125.134(b)(2) and, for facilities without sea 
chests, Sec.  125.134(b)(5) of Track I at your site.
    (2) An engineering estimate of efficacy for the proposed and/or 
implemented technologies used to minimize impingement mortality and (if 
applicable) entrainment of all life stages of fish and shellfish and 
maximize survival of impinged life stages of fish and shellfish. You 
must demonstrate that the technologies reduce impingement mortality and 
(if applicable) entrainment of all life stages of fish and shellfish to 
a comparable level to that which you would achieve were you to 
implement the requirements in Sec.  125.134(b)(2) and, for facilities 
without sea chests, Sec.  125.134(b)(5) of Track I. The efficacy 
projection must include a site-specific evaluation of technology(ies) 
suitability for reducing impingement mortality and (if applicable) 
entrainment based on the results of the Source Water Biological Study 
in paragraph (c)(2)(iv)(A) of this section. Efficacy estimates may be 
determined based on case studies that have been conducted in the 
vicinity of the cooling water intake structure and/or site-specific 
technology prototype studies.
    (C) Verification monitoring plan. You must include in the Study a 
plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or implemented technologies, 
operational measures. The verification study must begin at the start of 
operations of the cooling water intake structure and continue for a 
sufficient period of time to demonstrate that the facility is reducing 
the level of impingement mortality and (if applicable) entrainment to 
the level documented in paragraph (c)(2)(iii)(B) of this section. The 
plan must describe the frequency of monitoring and the parameters to be 
monitored. The Director will use the verification monitoring to confirm 
that you are meeting the level of impingement mortality and entrainment 
reduction required in Sec.  125.134(c), and that the operation of the 
technology has been optimized.

Sec.  125.137  As an owner or operator of a new offshore oil and gas 
extraction facility, must I perform monitoring?

    As an owner or operator of a new offshore oil and gas extraction 
facility, you will be required to perform monitoring to demonstrate 
your compliance with the requirements specified in Sec.  125.134 or 
alternative requirements under Sec.  125.135.
    (a) Biological monitoring. (1)(i) Fixed facilities without sea 
chests that choose to comply with the Track I requirements in Sec.  
125.134(b)(1)(i) must monitor for entrainment. These facilities are not 
required to monitor for impingement, unless the Director determines 
that the information would be necessary to evaluate the need for or 
compliance with additional requirements in accordance with Sec.  
125.134(b)(4) or more stringent requirements in accordance with Sec.  
125.134(d).
    (ii) Fixed facilities with sea chests that choose to comply with 
Track I requirements are not required to perform biological monitoring 
unless the Director determines that the information would be necessary 
to evaluate the need for or compliance with additional requirements in 
accordance with Sec.  125.134(b)(4) or more stringent requirements in 
accordance with Sec.  125.134(d).
    (iii) Facilities that are not fixed facilities are not required to 
perform biological monitoring unless the Director determines that the 
information would be necessary to evaluate the need for or compliance 
with additional requirements in accordance with Sec.  125.134(b)(4) or 
more stringent requirements in accordance with Sec.  125.134(d).
    (iv) Fixed facilities with sea chests that choose to comply with 
Track II requirements in accordance with Sec.  125.134(c), must monitor 
for impingement only. Fixed facilities without sea chests, must monitor 
for both impingement and entrainment.
    (2) Monitoring must characterize the impingement rates and (if 
applicable) entrainment rates of commercial, recreational, and forage 
base fish and shellfish species identified in the Source Water Baseline 
Biological Characterization data required by 40 CFR 122.21(r)(4), 
identified in the Comprehensive Demonstration Study required by Sec.  
125.136(c)(2), or as specified by the Director.
    (3) 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), those used by the Comprehensive Demonstration 
Study required by Sec.  125.136(c)(2), or as specified by the Director. 
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 
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.
    (4) Impingement sampling. You must collect samples to monitor 
impingement rates (simple enumeration) for each species over a 24-hour 
period and no less than once per month when the cooling water intake 
structure is in operation.
    (5) Entrainment sampling. If your facility is subject to the 
requirements of Sec.  125.134(b)(1)(i) or (c), you must collect samples 
to monitor entrainment rates (simple enumeration) for each species over 
a 24-hour period and no less than biweekly 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.  125.136(c)(2). You must collect samples only when the cooling 
water intake structure is in operation.
    (b) Velocity monitoring. If your facility uses a surface intake 
screen systems, you must monitor head loss across the screens and 
correlate the measured value with the design intake velocity. The head 
loss across the intake screen must be measured at the minimum ambient 
source water surface elevation (best professional judgment based on 
available hydrological data). The maximum head loss across the screen 
for each cooling water intake structure must be used to determine 
compliance with the velocity requirement in Sec.  125.134(b)(2). If 
your facility uses devices other than surface intake screens, you must 
monitor velocity at the point of entry through the device. You must 
monitor head loss or velocity during initial facility startup, and 
thereafter, at the frequency specified in your NPDES permit, but no 
less than once per quarter.
    (c) Visual or remote inspections. You must either conduct visual 
inspections or employ remote monitoring devices during the period the 
cooling water intake structure is in operation. You must conduct visual 
inspections at least weekly to ensure that any design and construction 
technologies required in Sec.  125.134(b)(4), (b)(5), (c), and/or (d) are

[[Page 68565]]

maintained and operated to ensure that they will continue to function 
as designed. Alternatively, you must inspect via remote monitoring 
devices to ensure that the impingement and entrainment technologies are 
functioning as designed.

Sec.  125.138  As an owner or operator of a new offshore oil and gas 
extraction facility, must I keep records and report?

    As an owner or operator of a new offshore oil and gas extraction 
facility you are required to keep records and report information and 
data to the Director as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements, any 
supplemental information developed under Sec.  125.136, and any 
compliance monitoring data submitted under Sec.  125.137, for a period 
of at least three (3) years from the date of permit issuance. The 
Director may require that these records be kept for a longer period.
    (b) You must provide the following to the Director in a yearly 
status report:
    (1) For fixed facilities, biological monitoring records for each 
cooling water intake structure as required by Sec.  125.137(a);
    (2) Velocity and head loss monitoring records for each cooling 
water intake structure as required by Sec.  125.137(b); and
    (3) Records of visual or remote inspections as required in Sec.  
125.137(c).

Sec.  125.139  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), Sec.  125.135, and 
Sec.  125.136 at the time of the initial permit application and before 
each permit renewal or reissuance.
    (1) After receiving the initial permit application from the owner 
or operator of a new offshore oil and gas extraction facility, the 
Director must determine applicable standards in Sec.  125.134 or Sec.  
125.135 to apply to the new offshore oil and gas extraction facility. 
In addition, the Director must review materials to determine compliance 
with the applicable standards.
    (2) For each subsequent permit renewal, the Director must review 
the application materials and monitoring data to determine whether 
requirements, or additional requirements, for design and construction 
technologies or operational measures should be included in the permit.
    (3) For Track II facilities, the Director may review the 
information collection proposal plan required by Sec.  
125.136(c)(2)(ii). The facility may initiate sampling and data 
collection activities prior to receiving comment from the Director.
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, 
you must determine, based on the information submitted by the new 
offshore oil and gas extraction facility in its permit application, the 
appropriate requirements and conditions to include in the permit based 
on the track (Track I or Track II), or alternative requirements in 
accordance with Sec.  125.135, the new offshore oil and gas extraction 
facility has chosen to comply with. The following requirements must be 
included in each permit:
    (1) Cooling water intake structure requirements. At a minimum, the 
permit conditions must include the performance standards that implement 
the applicable requirements of Sec.  125.134(b)(2), (3), (4) and (5); 
Sec.  125.134(c)(1) and (2); or Sec.  125.135.
    (i) For a facility that chooses Track I, you must review the Design 
and Construction Technology Plan required in Sec.  125.136(b)(3) to 
evaluate the suitability and feasibility of the technology proposed to 
minimize impingement mortality and (if applicable) entrainment of all 
life stages of fish and shellfish. In the first permit issued, you must 
include a condition requiring the facility to reduce impingement 
mortality and/or 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/or 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.  
125.134(d).
    (ii) For a fixed facility that chooses Track II, you must review 
the information submitted with the Comprehensive Demonstration Study 
information required in Sec.  125.136(c)(2), evaluate the suitability 
of the proposed design and construction technology and/or operational 
measures to determine whether they will reduce both impingement 
mortality and/or 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.  125.136(c)(2)(iii)(C) 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.  125.134(c)(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.  125.134(b)(2) and, if 
applicable, Sec.  125.134(b)(5).
    (iii) If a facility requests alternative requirements in accordance 
with Sec.  125.135, you must determine if data specific to the facility 
meet the requirements in Sec.  125.135(a) and include in the permit 
requirements that are no less stringent than justified by the wholly 
out of proportion cost or the significant adverse impacts on local 
water resources other than impingement or entrainment, or significant 
adverse impacts on energy markets.
    (2) Monitoring conditions. At a minimum, the permit must require 
the permittee to perform the monitoring required in Sec.  125.137. You 
may modify the monitoring program when the permit is reissued and 
during the term of the permit based on changes in physical or 
biological conditions in the vicinity of the cooling water intake 
structure. The Director may require continued monitoring based on the 
results of the Verification Monitoring Plan in Sec.  
125.136(c)(2)(iii)(C).
    (3) Record keeping and reporting. At a minimum, the permit must 
require the permittee to report and keep records as required by Sec.  
125.138.

[FR Doc. 04-24913 Filed 11-23-04; 8:45 am]
BILLING CODE 6560-50-P
Notices For
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National Pollutant Discharge Elimination System--Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities [[pp. 68543-68565]]

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