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EPA/WATER RIN: 2040-AE95 Publication ID: Spring 2014 
Title: Criteria and Standards for Cooling Water Intake Structures 
Abstract: Section 316(b) of the Clean Water Act (CWA) requires the EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. In July, 2004, the EPA promulgated Phase II which covered large existing electric generating plants. In July 2007, the EPA suspended most of the Phase II rule following a decision in the U.S. Court of Appeals for the Second Circuit. Several parties petitioned the U.S. Supreme Court to review that decision, and the Supreme Court granted the petitions, limited to the issue of whether the Clean Water Act authorized the EPA to consider the relationship of costs and benefits in establishing 316(b) standards. On April 1, 2009, the Supreme Court held that EPA has the authority to consider costs and benefits under Section 316(b). In June 2006, the EPA promulgated the Phase III regulation, covering small existing electric generating plants, new offshore oil and gas facilities, and all existing manufacturing facilities. In 2010 the U.S. Court of Appeals for the Fifth Circuit granted the request of the EPA and environmental petitioners to remand the existing facility portion of the rule to the Agency. The EPA entered a settlement agreement with the plaintiffs in two lawsuits concerning the section 316(b) rulemakings. Under the settlement agreement, the EPA agreed to sign a notice of a proposed action, and notice of a final decision pertaining to issuance of requirements for implementing section 316(b) of the CWA at existing facilities. After a number of subsequent modifications to the settlement agreement, the EPA and the plaintiffs agreed that a notice of proposed rulemaking would be signed by March 28, 2011 and that a final decision would be signed by April17, 2014. The EPA's proposed regulation includes standards for all existing facilities to prevent fish from being trapped against screens (impingement), and for existing facilities and new units at existing facilities to prevent fish from being drawn through cooling systems (entrainment). The EPA issued two Notices of Data Availability in June 2012 that described measures to provide additional flexibility that EPA was considering for the impingement mortality standard and that described the preliminary results of surveys of households' willingness to pay for incremental reductions in fish mortality. In light of the Supreme Court 2009 decision and its recognition that the EPA has broad discretion in what factors to consider in developing its 316(b) regulations, the EPA initiated consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under section 7 of the Endangered Species Act. EPA and the Services began informal consultation in 2012, and concluded in 2013 that formal consultation was necessary. 
Agency: Environmental Protection Agency(EPA)  Priority: Economically Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions 
Major: Yes  Unfunded Mandates: Private Sector 
CFR Citation: 40 CFR 122    40 CFR 125   
Legal Authority: CWA 101    CWA 301    CWA 304    CWA 308    CWA 316    CWA 401    CWA 402    CWA 501    CWA 510   
Legal Deadline:
Action Source Description Date
NPRM  Judicial  NPRM: 3/28/2011 - Settlement Agreement - As per 14 day extension granted 3/10 (or 4 days if no CR). Riverkeeper v. EPA, 06-12987, SDNY (signed 11/22/2010).  03/28/2011 
Final  Judicial  Settlement Agreement - Riverkeeper v. EPA  04/17/2014 
Action Date FR Cite
NPRM  04/20/2011  76 FR 22174   
Notice  06/11/2012  77 FR 34315   
Notice  06/12/2012  77 FR 34927   
Final Rule  8/15/2014  79 FR 48299   
Additional Information: Docket #:EPA-HQ-OW-2008-0667
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL:  
Sectors Affected: 111930 Sugarcane Farming; 111991 Sugar Beet Farming; 211111 Crude Petroleum and Natural Gas Extraction; 211112 Natural Gas Liquid Extraction; 212210 Iron Ore Mining; 212391 Potash, Soda, and Borate Mineral Mining; 221111 Hydroelectric Power Generation; 221112 Fossil Fuel Electric Power Generation; 221113 Nuclear Electric Power Generation; 221119 Other Electric Power Generation; 221121 Electric Bulk Power Transmission and Control; 221122 Electric Power Distribution; 221210 Natural Gas Distribution; 221330 Steam and Air-Conditioning Supply; 311221 Wet Corn Milling; 311222 Soybean Processing; 311225 Fats and Oils Refining and Blending; 311311 Sugarcane Mills; 311312 Cane Sugar Refining; 311313 Beet Sugar Manufacturing; 312140 Distilleries; 312210 Tobacco Stemming and Redrying; 312229 Other Tobacco Product Manufacturing; 313210 Broadwoven Fabric Mills; 313320 Fabric Coating Mills; 321113 Sawmills; 321212 Softwood Veneer and Plywood Manufacturing; 321219 Reconstituted Wood Product Manufacturing; 321912 Cut Stock, Resawing Lumber, and Planing; 321918 Other Millwork (including Flooring); 321999 All Other Miscellaneous Wood Product Manufacturing; 322130 Paperboard Mills; 322291 Sanitary Paper Product Manufacturing; 324110 Petroleum Refineries; 324199 All Other Petroleum and Coal Products Manufacturing; 325992 Photographic Film, Paper, Plate, and Chemical Manufacturing; 326192 Resilient Floor Covering Manufacturing; 326211 Tire Manufacturing (except Retreading); 326299 All Other Rubber Product Manufacturing; 327310 Cement Manufacturing; 331111 Iron and Steel Mills; 331112 Electrometallurgical Ferroalloy Product Manufacturing; 331221 Rolled Steel Shape Manufacturing; 331222 Steel Wire Drawing; 331312 Primary Aluminum Production; 331315 Aluminum Sheet, Plate, and Foil Manufacturing; 331419 Primary Smelting and Refining of Nonferrous Metal (except Copper and Aluminum); 331492 Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum); 331521 Aluminum Die-Casting Foundries; 331524 Aluminum Foundries (except Die-Casting); 331525 Copper Foundries (except Die-Casting); 332117 Powder Metallurgy Part Manufacturing; 332211 Cutlery and Flatware (except Precious) Manufacturing; 332212 Hand and Edge Tool Manufacturing; 332323 Ornamental and Architectural Metal Work Manufacturing; 332439 Other Metal Container Manufacturing; 332510 Hardware Manufacturing; 332618 Other Fabricated Wire Product Manufacturing; 332919 Other Metal Valve and Pipe Fitting Manufacturing; 332999 All Other Miscellaneous Fabricated Metal Product Manufacturing; 333111 Farm Machinery and Equipment Manufacturing; 333120 Construction Machinery Manufacturing; 333315 Photographic and Photocopying Equipment Manufacturing; 333911 Pump and Pumping Equipment Manufacturing; 333922 Conveyor and Conveying Equipment Manufacturing; 333923 Overhead Traveling Crane, Hoist, and Monorail System Manufacturing; 336412 Aircraft Engine and Engine Parts Manufacturing; 336510 Railroad Rolling Stock Manufacturing; 337215 Showcase, Partition, Shelving, and Locker Manufacturing; 339914 Costume Jewelry and Novelty Manufacturing; 611310 Colleges, Universities, and Professional Schools 
RIN Data Printed in the FR: No 
Agency Contact:
Tom Born
Environmental Protection Agency
Mail Code 4303T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460
Phone:202 566-1001
Fax:202 566-1053

Julie Hewitt
Environmental Protection Agency
Mail Code 4303T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460
Phone:202 566-1031