ML13094A124
| ML13094A124 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 03/22/2013 |
| From: | Cassidy K Jones River Watershed Association, Earthrise Law Center |
| To: | Bullard J, Amy Hull US Dept of Commerce, National Marine Fisheries Service, NRC/NRR/DLR/RERGUB, US Dept of Commerce, National Oceanographic and Atmospheric Administration |
| References | |
| Download: ML13094A124 (13) | |
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March 22, 2013 John K. Bullard, Northeast Regional Administrator Dr. Amy Hull, Acting Chief U.S. Department of the Interior Environmental Review and Guidance National Oceanic and Atmospheric Administration Update Branch National Marine Fisheries Service Division of License Renewal Northeast Region Office of Nuclear Reactor Regulation 55 Great Republic Drive Nuclear Regulatory Commission Gloucester MA 01930-2276 Washington, D.C. 20555-0001 Re: Request to Reinitiate ESA Section 7 Consultation Related to Operation of the Pilgrim Nuclear Power Station in Plymouth, MA
Dear Mr. Bullard and Dr. Hull,
Earthrise Law Center (Earthrise), on behalf of Jones River Watershed Association (JRWA) hereby requests that the National Marine Fisheries Service (NMFS) and the Nuclear Regulatory Commission (NRC) reinitiate consultation under Section 7 of the Endangered Species Act, 16 USC § 1536, related to the licensing and operation of the Pilgrim Nuclear Power Station (PNPS) in Plymouth, Massachusetts. By letter dated May 17, 2012 (NMFS Concurrence), NMFS concluded informal consultation with the NRC regarding the relicensing of PNPS with a not likely to adversely affect finding for all species under NMFS jurisdiction, including North Atlantic right whales (Eubalaena glacialis). NMFS Concurrence at 30. For the reasons explained below, that consultation must be reinitiated based on new information revealing effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered. 50 C.F.R. § 402.16; see also Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987). Specifically, the occurrence, in January 2013, of a mother right whale and her calf within the PNPS action area triggers the requirement to reinitiate ESA Section 7 consultation.
Factual Background ESA Consultation Related to Relicensing of Pilgrim Nuclear Power Station On May 25, 2012, NRC reissued Entergys operating license for PNPS for 20 more years. As part of the relicensing process, NRC engaged in Section 7 ESA consultation with NMFS with respect to several species of federally endangered marine mammals, including North Atlantic right whales.1 By letter dated May 17, 2012, NMFS concluded informal consultation with NRC, 1
The consultation process was flawed in many respects that are beyond the scope of this request to reinitiate consultation. By making this request to reinitiate consultation based on new information not previously considered, JRWA does not waive its rights to challenge the Kevin Cassidy Staff Attorney Earthrise Law Center P.O. Box 445 phone 781-659-1696 cassidy@lclark.edu
Law School at Lewis & Clark Norwell, MA 02061 earthriselaw.org
Request to Reinitiate ESA Section 7 Consultation - Pilgrim Nuclear Power Station March 22, 2013 Page 2 agreeing that the continued operation of Pilgrim may affect, but is not likely to adversely affect any ESA-listed species. NMFS Concurrence at 2. In reaching its conclusion, NMFS recognized that the [i]ntake and discharge of water through [PNPSs] cooling system would not occur but for the operation of the facility pursuant to a renewed license; therefore, the effects of the cooling water system on listed species and any designated critical habitat are effects of the proposed action. Id. at 3. According to NMFS, potential effects on listed species include exposure to pollutants, including heat. Id. at 7 (emphasis added). NMFS defined the action area as including the intake area and the region within Cape Cod Bay where effects of the thermal plume are experienced. Id. at 3. NMFS assumed the maximum surface area where increased water temperatures are experienced to extend approximately 1.3 miles from PNPSs discharge canal, and the maximum bottom area to experience increased temperatures to be 8.4 acres. Id. Accordingly, NMFS limited the action area to an area within 1.3 miles from the discharge canal.2 NMFS considered the effects of PNPS relicensing on right whales, generally, including direct effects from the thermal plume such as stress that may cause injury or mortality or avoidance behavior. Id. at 18. Of the thousands of recorded sightings of individual right whales in Cape Cod Bay, NMFS identified six sighting records (five definite, one probable) of 12 right whales within approximately two miles of the Pilgrim facility. Id. at 4. None of these sightings involved mother-calf pairs or individual right whale calves. See Asmutis-Silvia Decl. ¶ 18 (attached with exhibits and incorporated by reference).
Regarding the effects of increased temperature caused by PNPSs thermal plume, NMFS assumed right whales occurring in the western part of Cape Cod Bay would avoid waters heated to above 21.8° C by swimming under or around them and that because the NMFS-estimated area of the plume was extremely small, any avoidance will not result in any disruption or delay in essential behaviors that these species may be carrying out in the action area, including foraging, migrating or resting. NMFS Concurrence at 18. Because there had been no sightings of mother-calf pairs or individual right whale calves near PNPS, however, NMFS did not consider the avoidance capabilities of nursing right whale calves and their mothers.
While NMFS determined that consultation with NRC could be concluded with a not likely to adversely affect finding, it also stated that [i]f any whales . . . are observed at or near Pilgrim . .
. this should be immediately reported to [NMFS]. Id. at 30-31. NMFS also stated that [a]s a condition of their existing license, Entergy must report to NRC any observations of listed species. Id. at 9.3 consultation process in other forums.
2 JRWA believes the area where the effects of the thermal plume are experienced is larger than NMFS assumes. However, as explained below, because the whales were observed within the action area defined by NMFS for the purposes of consultation, JRWA accepts, without conceding its accuracy, NMFSs assumption regarding the extent of the effects of the thermal plume.
3 NMFS does not cite to a particular license condition for this assertion, and JRWA has been
Request to Reinitiate ESA Section 7 Consultation - Pilgrim Nuclear Power Station March 22, 2013 Page 3 Occurrence Near PNPS of a Right Whale Mother-Calf Pair in January 2013 On January 12, 2013, staff from Whale and Dolphin Conservation (WDC) responded to a call from local fisherman reporting what they believed to be a pilot whale in Plymouth Harbor.
Asmutis-Silvia Decl. ¶ 7. After receiving authorization from NMFS to approach the whale, WDC determined that it was actually a North Atlantic Right Whale and her calf of the year. Id.
The pair was observed in relatively shallow water (29-59 feet), with the calf almost constantly at the surface. Id. ¶ 9. Results from an aerial survey conducted by Provincetown Center for Coastal Studies (PCCS) identified the mother right whale as Wart, last seen in 2010 when scientists disentangled her from fishing gear she had been carrying for two years. Id.
On January 17, Wart and her calf were photographed within 0.5 miles of the shore near Manomet, MA. Id. ¶ 11. Three days later, the U.S. Army Corps of Engineers temporarily closed the Cape Cod Canal when the pair was located by the breakwater at the east end of the Canal. Id.
On January 21, a PNPS security officer notified WDC that Wart and her calf were in close proximity to the breakwater within the exclusion zone of the plant. Id. ¶ 12. The exclusion zone extends approximately 500 yards from the end of the discharge canal, so it is well within the NMFS-defined action area. Later that same day, researchers from PCCS, NOAAs Northeast Fisheries Science Center, MA Department of Marine Fisheries, and WDC located Wart and her calf in approximately five meters of water off Gurnet Point at Plymouths outer harbor. Id. ¶ 13.
While this is the last confirmed sighting of Wart in Cape Cod Bay, scallop fishermen reported what was believed to be Wart and her calf off Race Point, Provincetown, on January 29. Id. ¶
- 16. The calf, which was no more than two weeks old when first observed, is Warts first calf in eight years. Id. ¶ 10. Furthermore, this is the first mother and calf right whale sighting in Cape Cod Bay in January in 27 years and may be the earliest documented right whale birth in the Northeast Region. Id. ¶ 17. This is also the first documented sighting of a mother-calf pair of right whales near PNPS. Id. ¶ 18.
Requirement for Reinitiation of Consultation Under 50 C.F.R. § 402.16(b), reinitiation of consultation is required [i]f new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered. See also NMFS Concurrence at 30. The occurrence of a mother right whale and a newborn calf in the near shore vicinity of PNPS is such new information.
North Atlantic right whales were listed as endangered on June 2, 1970. 35 Fed. Reg. 8495. It has been called one of the most endangered species in the world because only approximately 500 individual right whales are believed to exist today. Report to the North Atlantic Right Whale Consortium, November 2012. NOAA Fisheries has concluded that the loss of even a single individual may contribute to the extinction of the species and if current trends continue, the unable to locate this condition in Entergys operating license.
Request to Reinitiate ESA Section 7 Consultation - Pilgrim Nuclear Power Station March 22, 2013 Page 4 population could go extinct in less than 200 years. 60 Fed. Reg. 30,857, 30, 858 (June 1, 2004)
(emphasis added); NOAA Fisheries, Biological Opinion re: Reinititation of Consultation on the Federal Lobster Management Plan in the Exclusive Economic Zone (June 14, 2001), at 102 (even the loss of one right whale may reduce appreciably the survival and recovery of the species). A single calf is significant to the species as a whole, given the species low reproductive rate and significant rate of failure to thrive. In one year, for example, the entire North Atlantic right whale population produced just one calf, and the average number of calves per year is approximately 12. See Recovery Plan for North Atlantic Right Whale (2004 Revision), at IE-1. Kraus (1990) estimated an average mortality rate of 17 percent per year in first-year right whales.4 As part of its consultation with NMFS regarding federally listed endangered and threatened marine species, NRC conducted a Biological Assessment, which appears in Appendix E of NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Pilgrim Nuclear Power Station (NUREG-1437, Supplement 29, Vol. 2) (July 2007)
(hereinafter BA). Under Section 5.0, Evaluation of Federally Listed Endangered and Threatened Species, NRC considered the effect of PNPS operations on ten federally listed marine species, including North Atlantic right whales. NRC reported that since 1969, when the applicant began monitoring aquatic communities in western Cape Cod Bay, [n]o Federally endangered or threatened species have ever been observed in Cape Cod Bay near PNPS, or in the facility intake and discharge areas.5 BA at E-66. Based in part on the non-occurrence of right whales near PNPS, NRC staff determined that continued operation of PNPS over the 20-year renewal period would have no effect on the North Atlantic right whale. Id. at E-70 (emphasis added). As discussed above, as of January 2013, an endangered right whale and her newborn calf now have been observed near PNPS and within the action area as defined by NMFS.
Neither NRC nor NMFS considered the effects of continued PNPS operations on a nursing right whale mother and newborn calf. See Asmutis-Silvia Decl. ¶ 15 (given the calfs age and the close proximity to its mother, it is highly likely nursing was occurring). Although NMFS considered certain aspects of the presence of right whales in western Cape Cod Bay in its not likely to adversely affect determination, the occurrence of a nursing right whale and her calf in the action area constitutes new information that may affect right whales in a manner or to an extent not previously considered. First, NMFS did not consider essential behaviors that now have been observed occurring in the action area: nursing and other mother-calf interactions.
Second, NMFS determination did not consider the effects of the action on individual right whale calves, including the tendency of right whale mothers and calves to spend more time at or near the surface (Baumgartner and Mate 2003)6, and thus being potentially unable (or unwilling in the 4
Kraus, S.D. 1990. Rates and potential causes of mortality in North Atlantic right whales (Eubalaena glacialis). Marine Mammal Science 6(4):278-291.
5 As NMFS pointed out in its concurrence letter, since 1997 there have been six sightings (five confirmed, one probable) of 12 right whales within two miles of PNPS. None of those sightings, however, included a mother-calf pair. See Asmutis-Silvia Decl. ¶ 18.
6 Baumgartner, M. F., and B. R. Mate. 2003. Summertime foraging ecology of North Atlantic
Request to Reinitiate ESA Section 7 Consultation - Pilgrim Nuclear Power Station March 22, 2013 Page 5 case of a mother whale that does not want to leave her calf) to avoid increased surface temperatures.7 Although NMFS included some analysis of the actions effects on right whales, NMFS did not consider the potential impairment of essential nursing behaviors of a mother-calf pair. This was not an oversight on NMFSs part; rather it was because these behaviors had not, until January 2013, been observed in the action area near PNPS so there was no reason for NMFS to consider them. NMFS concluded that avoidance [of the thermal plume from PNPS] will not result in any disruption or delay in any essential behaviors that these species may be carrying out in the action area, including foraging, migrating or resting. NMFS Concurrence at 18 (emphasis added); see also id. at 30 (Right whales use the waters of Cape Cod Bay for foraging.). Additionally, NMFS concluded that energy expenditure resulting from avoidance will not have an effect on right whale physiology or any future effect on growth, reproduction, or general health. Id.
(emphasis added). As NMFSs determination was predicated on the fact that only individual right whales, as opposed to mother-calf pairs, presently use the action area, the analysis only considered the potential impact on the behavior of and physiology of individuals, such as foraging and migrating. Even assuming NMFS has accurately characterized the thermal plume, NMFS did not consider the possibility of or attending impacts of use by right whales of the action area for nursing. The occurrence, for the first time, of a mother-calf pair in close proximity to the breakwater by PNPS within the action area requires NMFS to reinitiate consultation to consider the direct and indirect effects of the PNPS thermal plume on right whale nursing and other essential mother-calf behaviors.
Additionally, NMFS did not consider the potential impacts of the thermal plume on individual right whale calves. NMFS, assuming that avoidance behavior occurs at temperatures of 21.8 °C, found that water would be discharged at temperatures exceeding the thermal tolerance of right whales even in winter.8 NMFS Concurrence at 18. NMFS found that regarding the relatively small subset of right whales in Cape Cod Bay that travel to the western part of the Bay, we expect that right whales would avoid waters heated to above 21.8 °C by swimming under or around them. Id. However, until January 2013, the small subset of right whales that travelled to the western part of Cape Cod Bay did not include mother-calf pairs or individual right whale calves. This is meaningful with respect to NMFSs assumptions and conclusions related to the effects of the thermal plume because right whale mother-calf pairs spend significantly more time at or near the surface (Baumgartner and Mate 2003). During the January 12 and January 21 sightings, Warts calf remained at the surface almost constantly. See Asmutis-Silvia Decl. ¶ 14.
It is possible then that calves may be unable or unwilling to avoid surface plume temperatures in right whales. Marine Ecology Progress Series 264:123-135.
7 With respect to newborn calves, the only effects of continued operation of PNPS that NMFS even arguably considered were the potential for future impingement of whales at Pilgrim. See NMFS Concurrence at 9.
8 Again, for the purposes of this reinitiation request, JRWA acceptswithout conceding its correctnessNMFSs assumption regarding the temperature at which right whale avoidance behavior may occur.
Request to Reinitiate ESA Section 7 Consultation - Pilgrim Nuclear Power Station March 22, 2013 Page 6 the same manner as adult whales can. This possibility is particularly concerning given that the thermal plume is essentially confined to the surface layer at high tide, when the plume is at is largest. NMFS Concurrence at 16. Further, given the shallow depths in which the mother-calf pair was observed near PNPS, it is unlikely, even if the mother-calf pair desired to engage in avoidance behavior, that there was sufficient thermal stratification. Reinitiation of consultation is thus necessary to consider the potential effects of the thermal plume on individual right whale calves and mother-calf pairs.9 Conclusion For all of the above reasons, we request that NRC and NMFS reinitiate ESA Section 7 consultation related to the continued operations for the next 20 years of PNPS. We look forward to your prompt reply. If you have any questions please contact me.
Best regards, Kevin Cassidy Earthrise Law Center Cc: Pine duBois, JRWA (via email)
Bruce K. Carlisle, MA Office of CZM (via email)
David Webster, U.S. EPA (via email)
Margaret E. Sheehan, EcoLaw (via email)
Julie Williams, NOAA OGC (via email)
Melissa Arrighi, Plymouth Town Manager (via email)
Encl.
9 The new information of a mother-calf pair occurring in the action area also requires a re-examination of whether the avoidance behavior NMFS expected for whales constitutes take as defined by the ESA. NMFS concluded that it did not anticipate any avoidance-related effects to listed species from the thermal plume to rise to the level of take (NMFS Concurrence at 22),
but, as discussed above, NMFS did not consider the thermal plumes potential effects on mother-calf pairs or individual newborn calves, including whether avoidance-related effects would rise to the level of take.