ML13269A019
| ML13269A019 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/29/2013 |
| From: | Colligan M US Dept of Commerce, National Oceanographic and Atmospheric Administration |
| To: | Bullard J Division of License Renewal, US Dept of Commerce, National Oceanographic and Atmospheric Administration |
| References | |
| Download: ML13269A019 (1) | |
Text
`co.. UNITED STATES DEPARTMENT OF COMMERCE
/, j \* National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE NORTHEAST REGION Qf 55 Great Republic Drive Gloucester, MA 01930-2276 JAN 29 2013 MEMORANDUM FOR: John K. Bullard Regional Administrator FROM: Mary A. Collig* **-x Assistant Regional Admidashator fb~rotected Resources
SUBJECT:
Biological Opinion to be Issued to the Nuclear Regulatory Commission (NRC) for the Continued Operation of Indian Point Unit 2 and Unit 3 -- TRANSMITTAL MEMORANDUM The Protected Resources Division (PRD) has prepared a Biological Opinion (Opinion) pursuant to Section 7 of the Endangered Species Act (ESA) on the effects of the continued operation of Entergy's Indian Point Units 2 and 3 (IP2 and IP3) at the Indian Point Nuclear Generating Station in Buchanan, New York. The facilities are operated pursuant to two separate licenses issued by the NRC.
BACKGROUND INFORMATION 1P2 arid IP3 are located on the eastern bank of the Hudson River in the Village of Buchanan in upper Westchester County, New York. Both IP2 and IP3 have a single nuclear reactor and have once-through cooling water intake systems that withdraw water from the Hudson River. IP2 operates pursuant to a license issued on September 28, 1973; it was set to expire on September 28, 2013. IP3 operates pursuant to a license issued on December 12, 1975; it was set to expire on December 12, 2015. NRC is proposing to issue extended operating licenses, which would authorize an additional 20 years of operation. NRC indicates that it received timely applications for renewing the licenses; therefore, the facilities may continue to operate under their existing license until action is taken on the proposed extended operating licenses.
We completed section 7 consultation with NRC on the effects of the proposed relicensing in 2011. As explained in the "Effects of the Action" section of the 2011 Opinion, we determined then that an average of 5 shortnose sturgeon per year are likely to be impinged at Unit 2 during the extended operating period, with a total of no more than 104 shortnose sturgeon over the 20 year period (dead or alive). Additionally, over the 20-year operating period, we estimated that an additional 6 shortnose sturgeon (dead or alive) were likely to be impinged at the Unit I intakes which will provide service water for the operation of Unit 2. We estimated that at Unit 3, an average of 3 shortnose sturgeon are likely to be impinged per year during the extended operating period, with a total of no more than 58 shortnose sturgeon (dead or alive) taken as a result of the operation of Unit 3 over the 20 year period. This level of take was exempted through an Incidental.Take Statement (ITS) that applied only to the period when the facility operates under a
new operating license (September 28, 2013 through September 28, 2033 for Units 1 and 2; December 12, 2015 through December 12, 2035 for Unit 3). The 2011 Opinion was to become effective once new operating licenses were issued by NRC. The NRC has not yet made a decision on whether to issue the extended operating licenses.
Following the listing of five Distinct Population Segments (DPS) of Atlantic sturgeon in February 2012, NRC requested reinitiation of the 2011 Opinion. They requested that the new Opinion consider effects of operations during the remaining term of the existing licenses as well as the 20-year proposed extended operating period. Consultation was initiated on May 17, 2012.
On July 23, 2012, Entergy submitted additional information to us and NRC regarding impingement of shortnose and Atlantic sturgeon (Entergy 2012). Subsequently, by mutual agreement of NRC and NMFS, we extended the consultation period by 60 days to allow time for review and incorporation of this new information, as appropriate. On a November 26, 2012, conference call, NRC requested the consultation period be extended by seven days to allow them to suggest revised language in the Incidental Take Statement. On December 5, 2012, NRC requested the consultation period be extended to January 9, 2013. Entergy agreed to that extension. One day before the new due date, however, Entergy indicated in a conference call that it wanted to submit additional comments on the draft ITS it received and commented on in October-November 2012. NMFS received those comments on January 9. To allow NMFS time to consider the additional comments, NRC and Entergy requested an extension until January 30, 2013, the new due date. Between January 9 and January 30, Entergy repeatedly sought to discuss the comments with us. However, we did not have any questions about them or otherwise see a need to discuss them further.
Draft Biological Opinion We determined that the action being considered in this Opinion may affect endangered shortnose sturgeon (Acipsenser brevirostrum) and three DPSs of Atlantic sturgeon (New York Bight, Gulf of Maine and Chesapeake Bay). The proposed action has the potential to affect shortnose and Atlantic sturgeon in several ways: impingement of individual shortnose sturgeon at the intakes; altering the abundance or availability of potential prey items; and, altering the riverine environment through the discharge of effluent. The action being considered in the Opinion is actually two separate actions: (1) continued operation of IP2 under its existing license and under a proposed renewed license, and (2) operation of IP3 under its existing license and under a proposed renewed license. Given the two Units currently operate under separate licenses, NRC could consider renewing one and not the other. Additionally, the proposed extended operating periods are different (Unit 2's ends over two years before Unit'3's). Each Unit also has separate intake and discharge structures, as well as fish return systems, and each Unit could be operated differently than the other. We predicted the effects of each Unit separately, then combined the effects projections in the Effects of the Action section and for the jeopardy analysis so that the anticipated aggregate effects of the two Units operating at the same time are considered.
In the Opinion, we analyze the effects of the following: impingement and entrainment of shortnose and Atlantic sturgeon; impingement and entrainment of shortnose sturgeon prey; discharge of effluent, including heat; and effects of the discharge on shortnose and Atlantic sturgeon prey. We determined that entrainment of shortnose and Atlantic sturgeon was 2
extremely unlikely. We also determined that effects of the discharge of effluent, including heat, on shortnose and Atlantic sturgeon would be insignificant and discountable as would effects to shortnose and Atlantic sturgeon prey. We considered the potential exposure of shortnose and Atlantic sturgeon to radionuclides, which may be introduced into the action area from the operation of IP2 and IP3, and we determined that any effects to shortnose and Atlantic sturgeon from exposure to radionuclides would be insignificant and discountable, given available information.
Impingement of shortnose and Atlantic sturgeon has been documented at IP2 and IP3 in the past and is likely to continue over the current and extended operating periods. As explained in the "Effects of the Action" section of the Opinion, we anticipate the impingement of: 395 shortnose sturgeon (dead or alive) at the Unit 11 and 2 intake (screens, as well as 167 at the Unit 3 intake screens, and 269 New York Bight DPS Atlantic sturgeon (dead or alive) impinged at the Unit I and 2 intake screens, as well as 145 at the Unit 3 intake screens. These figures for Unit I and 2 intakes apply from now until September 28, 2033. The figures for Unit 3 intakes apply from now until December 12, 2035. This level of impingement associated with the operation of IP2 and IP3 equals a total of 562 shortnose sturgeon (dead or alive) at the Unit 1, 2, or 3 intake screens and, a total of 414 New York Bight DPS Atlantic sturgeon (dead or alive) impinged at Unit 1, 2 or 3 intake screens from now until the IP3 proposed renewed operating license would expire on December 12, 2035. Additionally, we expect that dead or stressed adult shortnose sturgeon and dead or stressed subadult and adult NYB, GOM and CB DPS Atlantic sturgeon will be impinged at the trash racks. There has been no past monitoring of impingement of any species at the trash racks. Therefore, there is no information from which to predict a future impingement estimate. However, we know sturgeon are present at the trash racks (also called "trash bars") and that they have become impinged on trash racks at least one other facility. We considered estimating impingement based on impingement of shortnose sturgeon at other power plants; however, there are no comparable facilities. We also do not have sufficient information to compute the number of adult dead or stressed fish that are likely to be in the area and affected by the intake currents. We considered the use of a surrogate measure of incidental take.
However, because we do not have estimates of the number or percentage of dead or stressed sturgeon that would be in the area and susceptible to impingement on the trash racks, we are unable to identify a surrogate. Therefore, we are unable to predict the amount or extent of dead or stressed shortnose or Atlantic sturgeon impinged at IP 1, IP2 or IP3 during the continued operation of IP2 and IP3.
As explained in the Opinion, the information available for us to determine the number of shortnose and Atlantic sturgeon likely to be impinged as a result of future operations is limited.
During a hearing regarding Hudson River power plants in the 1970s, NOAA submitted the testimony of Dr. Mike Dadswell to the US EPA (in a filing dated May 14, 1979), as constituting NMFS "Biological Opinion on the impacts of the utilities' once through cooling system on the shortnose sturgeon." The filing notes that this opinion is required by Section 7 of the ESA of 1973, as amended. Based on available information regarding impingement at IP2 and IP3, Dadswell estimated a worst-case scenario of 35 shortnose sturgeon impingements per year, 1 As explained in the Opinion, water withdrawn through the Unit 1 intakes is used for service water for the operation of Unit 2.
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including 21 mortalities (assuming a 60% impingement mortality). In 1979, only Section 10 permit provisions, and not Section 7 consultation, provided the means to exempt incidental take from the Section 9 prohibition. As a result, the 1979 document did not contain an ITS or a monitoring plan. No additional ESA consultation occurred between NRC and NMFS on the operation of IP2 and IP3 and the effects on shortnose sturgeon until the 2011 Opinion was completed; incidental take associated with IP2 or IP3 had never been exempted before the 2011 Opinion and ITS were issued. The 2011 ITS applied only to operations under any renewed operating licenses, not to operations under the existing licenses.
Impingement monitoring, described fully in the Opinion, occurred at Indian Point from 1974-1990. No monitoring has taken place since 1990. From 1974-1990, 21 shortnose sturgeon were observed impinged at IP2. Condition, reported as either dead or alive, is also only available for 6 fish, with 5 of the 6 fish reported dead. However, no information on the condition of these fish (e.g., any injuries, level of decomposition, etc.) is available. For Unit 3, 11 impinged shortnose sturgeon were recorded between 1974 and 1990. Condition is available for 3 fish, with two of the three dead. Of the 601 Atlantic sturgeon collected during impingement sampling at IP2 and 1P3 from 1974-1990, condition (alive or dead) is reported for 37 fish (NRC BA 2012); of these, 22 are reported as dead (59% mortality rate). There is no information to indicate whether alive meant alive and not injured, or alive and injured. There is also no additional information to assess whether these fish reported as dead were likely killed prior to impingement and drifted into the intake or whether being in the intake bays and/or impingement was the sole cause of death or a contributing cause of death.
We considered using impingement rates for other power plants (i.e., number of sturgeon impinged as a function of the amount of water withdrawn or similar measure); however, no such rates are available, and sturgeon population levels vary from river to river. NMFS also considered using impingement data from the Salem Nuclear Power Plant, located along the Delaware River in New Jersey, to predict impingement at Indian Point. However, impingement rates appeared to be much lower at the Salem facility than what the historic information suggests for Indian Point. Also, the Salem plant is located near the downstream extent of shortnose sturgeon habitat in the Delaware River and the area may not be frequented by shortnose sturgeon as often as the areas near Indian Point are used. As such, NMFS does not consider the data available from the Salem facility to be an appropriate surrogate for the Indian Point facilities, despite there being a current monitoring plan in place at Salem to document takes of shortnose sturgeon. Salem did not begin reporting impingements of Atlantic sturgeon until the species was proposed for listing in 2011. We also considered using information on impingement rates for other species at Indian Point to assess whether any of those species could be an appropriate surrogate for predicting take at Indian Point; however, since all monitoring ceased in 1990 (not just monitoring for shortnose and Atlantic sturgeon), none of the data for other species would provide NMFS with better information than what was available for shortnose and Atlantic sturgeon.
As there were no other reasonable sources of information on impingement rates for shortnose and Atlantic sturgeon, or any other surrogate species, that could be used to predict impingement at Indian Point, we relied on the monitoring data from 1974-1990 to predict impingement during the extended operating period. While this is the best available information on impingements of 4
shortnose and Atlantic sturgeon at IP, there have been significant changes in the distribution and abundance of shortnose and Atlantic sturgeon in the Hudson River since the time monitoring ceased, and there have been changes in the intakes. No monitoring has taken place since the modified Ristroph screens were installed. We believe that if a robust monitoring plan had been in place, we would have had a more robust dataset on which to base our predictions of future impingement rates. The monitoring program required by the RPMs seeks to improve monitoring and information collection at Indian Point so that we are able to check the assumptions and conclusions made in the analysis, as well as know when the authorized incidental take level has been exceeded.
The Opinion concludes that the proposed action is likely to adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon and the New York Bight DPS of Atlantic sturgeon; and is not likely to adversely affect the Gulf of Maine and Chesapeake Bay DPSs of Atlantic sturgeon. Because no critical habitat is designated in the action area, none will be affected by the proposed action. An ITS is included with the Opinion. The ITS exempts the take of a number of shortnose sturgeon and New York Bight DPS Atlantic sturgeon by both capture and mortality. The incidental take levels exempted are separate for IP2 and IP3 because the operation of each facility is a separate action given they operate under separate licenses for different timefriames, and NRC may renew one license and not the other. The ITS includes five Reasonable and Prudent Measures (RPMs) and eight implementing Terms and Conditions that apply to the operation of both IP2 (including the IPI intakes servicing IP2) and IP3 (see below).
DIFFERENCES IN 2013 OPINION AND 2011 OPINION There are four major differences in the 2011 and 2013 Opinions: the action under consideration, the species under consideration, and the estimates of incidental take.
The 2011 Opinion only considered effects to shortnose sturgeon during the proposed extended operating period; therefore, it only considered 20 years of operations of IP2 and 1P3. The 2012 Opinion considers that time period as well as the time remaining before NRC issues new operating licenses. As a result, the 2013 Opinion considers a longer time period.
The 2011 Opinion did not consider effects to Atlantic sturgeon because they were not listed at the time the consultation was initiated or the Opinion was completed. The 2013 Opinion considers effects to the three DPSs that are likely to occur in the action area.
The take estimate for shortnose sturgeon is higher in the 2013 Opinion than in the 2011 Opinion.
This is partly because of the longer time period considered but also due to the use of a different method for calculating take. This change is explained in the "Effects of the Action" section of the Opinion and summarized here.
In the 2011 Opinion, we estimated that over the 20-year extended operating period, 168 shortnose sturgeon would be impinged at IP 1, IP2 and IP3, collectively. We calculated this estimate by first determining the average annual impingement rate at IP2 from 1974-1990 and the average annual impingement rate at IP3 from 1976-1990, which we stated was 1.3 and 0.73, respectively. To account for the 400% increase in the shortnose sturgeon population between the late 1970s and the late 1990s, we adjusted those annuai impingement rates by a factor of 4 to 5
arrive at estimates of 5.2 and 2.9 shortnose sturgeon per year, respectively. We then multiplied those annual estimates by the number of years each unit would be operational (20) to get a total estimate for IP2 of 104 and a total estimate for IP3 of 58. Because no monitoring has occurred at IF 1, we used flow information to estimate the number of sturgeon that would be impinged at IP 1.
We then used the flow information (IPI withdraws 0.34% of the volume of water withdrawn by IP2 and IP3), to estimate the amount of impingement at IP1. In 2011, we estimated the impingement of six additional shortnose sturgeon at IF1. However, it appears that we made a mathematical error (multiplying 162 by 0.034 instead of 0.0034) and that number should have been one, not six.
In reviewing the methodology used in 2011, we now recognize two ways that this resulted in an underestimate of future impingement. First, we relied on the actual observed number of impingements of shortnose sturgeon, not the estimated number of impingements based on collection efficiency. Collection efficiency (CE) takes into account the fraction of fish that enter the intake structure but do not make it into impingement collections. According to NRC, currents may sweep some fish around the traveling screens because screens do not form a perfectly water tight seal against the intake structure. NRC has stated that the CE adjusted estimates should be more accurate. We also have new information on the volume of water Entergy is likely to withdraw through the IP2 and IP3 intakes in the future (Entergy 2012). The information provided by Entergy indicates that water withdrawal will range from 1.2-1.6 mgd depending on the month. They report water usage from 1974-1990 as ranging from 0.6-1.2 mgd depending on the month. We expect a relationship between water usage and impingement; the more water that is withdrawn the higher the risk for impingement. Therefore, by not adjusting the historic impingement numbers to account for current and future increases in water use, our 2011 estimate likely underestimates future impingement of shortnose sturgeon. We believe the methodology described above, which avoids that underestimation, and results in a total estimate of 562 shortnose sturgeon impinged at Indian Point is a better approach. The methodology used for Atlantic sturgeon is similar.
Additionally, we now recognize that the methodology used in the 2011 Opinion and in the October 26, 2012, draft Opinion transmitted to NRC and Entergy did not account for sturgeon impinged at the trash bars; it only estimated the number of sturgeon impinged at the intake screens. As explained in the Effects of the Action section of the final Opinion, and in this memorandum, we are unable to estimate the number of shortnose or Atlantic sturgeon likely to be impinged at the IP1, IP2 or IP3 trash bars. However, based on what we know about the size of sturgeon that could be impinged (body widths greater than 3 inches, which corresponds to the reported distance between bars) and the intake velocity (1.0 fps or less) outside of the trash bars, we expect that all sturgeon impinged at the trash bars will be dead or stressed, with the cause of death/stressor currently unknown.
After the draft Opinion was transmitted to NRC, we determined that we had made a mathematical error when calculating the number of Atlantic sturgeon likely to be impinged at the intake screens. This error (using an average of 6 Atlantic sturgeon impinged at the screens from 1985-1990 instead of 12) accounts for the difference in the number of Atlantic sturgeon expected 6
to be impinged in the draft and final Opinions. This error did not change the no jeopardy conclusions reached in the Opinion.
Finally, in this Opinion, we identified an incidental take level for each Unit separately. This approach is different from that taken in the previous Opinion. In that Opinion, we exempted the combined take at the two Units, which could have been interpreted to mean that one Unit could take sturgeon up to the total combined level if the other Unit did not cause any takes. That is not how we believe the ITS should work given the Opinion batches two separate actions given that:
the two Units currently operate under separate licenses; NRC could consider renewing one license and not the other; the proposed extended operating periods are different (Unit 2's ends over two years before Unit 3's); each Unit has separate intake and discharge structures, as well as fish return systems; each Unit has had different levels of effects than the other; and each Unit could be operated differently than the other. We predicted the effects of each Unit separately, then combined the effects projections in the Effects of the Action Section and for the jeopardy analysis so that the anticipated aggregate effects of the two Units operating at the same time are considered. Providing separate incidental take levels associated with each Unit rather than providing one combined level for both Units also better supports the reinitiation provision.
JUSTIFICATION FOR PROPOSED REASONABLE AND PRUDENT MEASURES An ITS serves two important functions: (1) it provides an exemption from the Section 9 prohibitions for any taking incidental to the proposed action that is in compliance with the terms and conditions; and (2) it provides the means to insure the action as it is carried out is not jeopardizing the continued existence of affected species by monitoring and reporting the progress of the action and its impact on the species such that the analysis and conclusions in the Opinion can be verified and consultation can be reinitiated if any of the criteria in 50 CFR §402.16 are met.
The Reasonable and Prudent Measures (RPMs), with their implementing Terms and Conditions, are designed to minimize and monitor the impact of incidental take that results from the proposed action. Specifically, these RPMs and Terms and Conditions will ensure that Entergy monitors the intakes in a way that allows for the detection of all impinged shortnose and Atlantic sturgeon and implements measures to reduce the potential of mortality for all shortnose and Atlantic sturgeon impinged at Indian Point, to report all interactions to NMFS and NRC and to provide information on the likely cause of death of any shortnose and Atlantic sturgeon impinged at the facilities. The discussion below explains why each of these RPMs and Terms and Conditions are necessary or appropriate to minimize or monitor the level of incidental take associated with the proposed action. The RPMs and Terms and Conditions involve only a minor change to the proposed actions, the continued operation of IP2 and/or IP3.
RPM #1 and Term and Condition #1 and 2 require Entergy to design and implement a monitoring plan that will allow for the detection and collection of all shortnose and Atlantic sturgeon at the Indian Point intakes, whether impinged at the trash bars, impinged on the intake screen system (which includes collection in the fish buckets), or in the intake embayment behind the trash bars prior to impingement on the intake screen system. Removing sturgeon from the intake embayment before they interact with the screen system minimizes incidental take caused 7
by impingement on the screens. An effective monitoring plan is essential to ensure NRC and Entergy monitor the level of incidental take that occurs during the license periods and to enable NMFS and NRC to determine whether the incidental take level in this ITS is exceeded, thereby triggering reinitiation of consultation. These requirements are necessary and appropriate because they are specifically designed to ensure that all appropriate measures are carried out to monitor the incidental take of sturgeon at Indian Point, which by definition includes the capture or collection of live sturgeon as well as the injury or mortality of impinged sturgeon. These requirements are also essential for confirming the cause of death of any sturgeon that are dead when collected These conditions ensure that the potential for detection of shortnose and Atlantic sturgeon at the intakes is maximized and that any sturgeon removed from the water are removed in a manner that minimizes the potential for further injury. Monitoring actual collection efficiency is necessary or appropriate to determine how many sturgeon enter the intake structure but do not make it into impingement collections. We do not believe that the handling of impinged sturgeon will result in an increased risk of injury or mortality if proper handling procedures are implemented, which the monitoring plan will include. For example, both shortnose and Atlantic sturgeon are routinely captured in a trawl survey in the Hudson River that the applicant participates in. Captured sturgeon are brought into the boat, removed from the trawl gear, weighed, measured and tagged. There have been no reported instances of injury or mortality to any of the hundreds of Atlantic or shortnose sturgeon captured during this survey in over twenty years. Similarly, sturgeon that enter the fish lift at the Holyoke Hydroelectric facility on the Connecticut River are netted, removed from the water, weighed, measured and tagged. There have been no reports of any injuries or mortalities to sturgeon caused by these handling procedures. The RPMs and Terms and Conditions related to monitoring do not dictate the details of the plan (i.e., how Entergy must monitor the trash racks or intake screens) to allow Entergy the flexibility to design the monitoring plan in a way that minimizes impacts to project operations and results in no more than a minor change to the operations of Indian Point 2 and 3.
While we believe the enumerated, specific components are sufficient to monitor incidental take, review of Entergy's draft monitoring plan and/or other information may lead NMFS to believe that additional or different monitoring plan components may be necessary or appropriate.
Therefore, NMFS may design or have Entergy propose, additional or different monitoring components that NMFS determines are necessary or appropriate to monitor incidental take.
RPM#2 and Term and Condition #3 are necessary and appropriate to ensure that any shortnose or Atlantic sturgeon that survive impingement is given the maximum probability of remaining alive and not suffering additional injury or subsequent mortality through inappropriate handling or release near the intakes. This RPM and Term and Condition serve to minimize lethal take.
RPM #3 and Term and Condition #4 are necessary and appropriate to ensure the proper handling and documentation of any shortnose and Atlantic sturgeon removed from the intakes that are dead or die while in Entergy possession. This is essential for monitoring the level of incidental take associated with the proposed action, confirming cause of death and ensuring proper disposal.
RPM #4 and Term and Condition #5 are necessary and appropriate to ensure the proper documentation of species and/or DPS of origin for any impinged sturgeon collected at Indian 8
Point. Sampling of fin tissue is used for genetic sampling. This procedure does not harm shortnose or Atlantic sturgeon and is common practice in fisheries science. Tissue sampling does not appear to impair the sturgeon's ability to swim and is not thought to have any long-term adverse impact. NMFS has received no reports of injury or mortality to any shortnose or Atlantic sturgeon sampled in this way.
RPM#5 and Term and Condition #6-8 are necessary and appropriate to ensure the proper handling and documentation of any interactions with listed species as well as the prompt reporting of these interactions to NMFS. This is necessary to allow NMFS to monitor the level of take and to determine if take is exceeded or if any other triggers for reinitiation have been met.
This RPM and Term and Condition also ensure that NvFS, NRC and Entergy will continue to monitor the effectiveness of the monitoring program and make any changes that may be necessary to the monitoring program in the future.
COMMENTS RECEIVED We transmitted a draft Opinion to NRC on October 26, 2012. The Opinion was subsequently transmitted by NRC to Entergy. In response to a Freedom of Information Act (FOIA) request for the draft, NMFS then made it available to the Hudson Riverkeeper. The ESA Section 7 regulations provide for the action agency and applicant to submit comments on a draft Opinion.
We received comments from NRC and Entergy on November 9 (Enclosure 1 and 2). NRC and Entergy raised additional comments related to the ITS on a January 8, 2013 conference call.
Entergy submitted suggested changes to the Terms and Conditions on January 9, 2013. We have considered those comments in the development of the final Opinion. Riverkeeper transmitted their cornments to us in a letter dated November 23, 2012 (Enclosure 3). While neither the ESA nor the Section 7 regulations, or any other law, requires NMFS to consider Riverkeeper's comments, we chose to consider them.
Comments Received from NRC NRC noted several typographical errors or minor editorial suggestions; these have been addressed as appropriate. (NRC comments 1,2, 4, 5, 6, 7, 10, 11, 14, and 15)
NRC states that the date of initiation of the consultation that resulted in the 2011 Opinion is in error. While we recognize that they sent the original Biological Assessment to us on December 22, 2008, we did not receive the final BA until December 10, 2010 and consider formal consultation to have been initiated on that date.
NRC states that the operating license does not require compliance with the SPDES permit and that we must remove this statement from the Opinion wherever it occurs. We have modified the text of the Opinion to remove this statement and to clarify that we consider the intake and discharge of water to be effects of the proposed action (i.e., the continued operation of IP2 and IP3). As currently configured, IP2 and IP3 cannot operate without withdrawing water from and discharging water to the Hudson River. Therefore, the withdrawal and discharge of water is an effect of the proposed action.
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NRC states that if a new SPDES permit is issued, EPA would be the agency responsible for initiating consultation. However, the NPDES permit program was delegated to New York Department of Environmental Conservation (NYDEC) in 1975. The issuance of a new SPDES permit for either or both IP facilities by NYDEC would not be considered a federal action, and EPA would not necessarily be involved in a way that federalizes the state's action such that consultation with EPA would be required. Reinitiation of consultation would be necessary if compliance with the SPDES permit and/or §401 certification resulted in changes in the withdrawal or discharge of water (or any change in the proposed actions) that caused effects to listed species not considered in the Opinion. NRC stated in their September 20, 2011, letter to us regarding Indian Point, that "the NRC retains legal authority to enforce the license requirements or to take such other actions as it may deem to be appropriate. Thus, should any of the criteria for the reinitiation of consultation occur, the staff would reinitiate consultation, as it has done for other nuclear facilities in the past." The September 20 letter also states, "the staff retains the authority to reinitiate consultation should a change to the SPDES permit meet the criteria for ESA Section 7 reinitiation." Therefore, despite the comments on the draft Opinion, we expect that if a new SPDES permit and/or §401 certification is issued and one of the criteria for reinitiation is met, NRC would reinitiate consultation.
NRC requests that we clarify two seemingly conflicting statements, one that says "all impinged sturgeon are expected to die..." and another that states that some sturgeon will be impinged and returned to the river "without significant injury or mortality." We agree that this text is unclear and appears contradictory. The text in the Opinion has been clarified to explain that while we expect sturgeon impinged at the intake screens to fall into several categories (e.g., alive, alive but injured,, previously killed, died due to impingement), we do not have sufficient information to estimate how many impinged sturgeon will fall into each category. Due to a lack of data we are assuming the worst case, that all impinged sturgeon will be killed. We recognize the possibility that this assumption is overly conservative and that because the modified Ristroph screens at 1P2 and IP3 are designed to minimize mortality of impinged fish, some of the impinged sturgeon may survive and be returned to the River. However, we are assuming a worst case scenario, because we do not have data on sturgeon survival rates on modified Ristroph screens, and no monitoring to develop such important information has ever been required or, apparently, conducted. While some have argued that, generally speaking, sturgeon are "more hardy" than other species of fish and, thus, less susceptible to injury at the screens, there have never been any studies on sturgeon survival at Ristroph screens or any other screening which would demonstrate whether sturgeon do have higher survival rates than other species (which is what we interpret "more hardy" to mean). The species studied in the impingement studies reported in Fletcher (1990) are not morphologically similar to sturgeon (i.e., none have scutes or other similar characteristics to sturgeon) and were considerably smaller than the size of sturgeon that may be impinged at the Ristroph screens. Therefore, it is not reasonable to rely on information collected on other species to predict mortality rates for sturgeon. The only impingement mortality information we have is from prior to installation of the Ristroph screens and even that is limited (see above, 80% mortality for shortnose sturgeon and 59% for Atlantic sturgeon) and may underestimate mortality because the reports merely indicate if the fish were alive or dead. We assume that "alive" meant alive and healthy with no apparent injuries as well as alive with injuries, or alive but dying.
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NRC requests that we remove or change the sentence that states, "[w]ithin 60 days of issuance of this Opinion, NRC must add a condition(s) to the existing licenses and to the proposed renewed licenses that requires Entergy to adhere to the terms and conditions of this Opinion." We discussed this comment with NRC staff and an attorney from their General Counsel's Office.
The objection was based on two factors: first, there was concern the 60 day timeline could be too short to allow processing of a license amendment; and second, there was concern that the specification of a particular process to make the terms and conditions binding on Entergy unreasonably usurped NRC discretion regarding how to make the terms and conditions binding. NRC staff explained that NRC has more than one way to ensure through enforceable terms of the existing license that Entergy will comply with the ITS. While NMFS continues to take the position that, in order for NRC to benefit from the ITS's exemption from the Section 9 prohibitions, NRC must take prompt and effective action that is enforceable by NRC and binds Entergy to the ITS's terms and conditions, we revised the text so that it did not specify a 60-day timeframe or only one particular method of modifying the existing licenses under which Entergy currently operates the facilities. We bonsider the resulting language includes, but is not limited to, issuance of a license amendment to the existing licenses.
Comments Received from Entergy in their November 9, 2012 letter Entergy organized their comments along four topics. In the draft sent to NRC, we asked several questions in the margins. Entergy answered these questions in their November 9, 2012 letter.
We have incorporated the answers to those questions into the final Opinion as appropriate.
Entergy also commented on the estimates of incidental take, provided clarifications/corrections on various sections of the Opinion, and commented on the proposed monitoring program.
Incidental Take Entergy raises no objections to our calculated incidental take level. However, Entergy states that "the incidental take limits should apply only to injury or mortality caused by the operation of IP2 and IP3" and the "take limits should apply only to the impingement of healthy, live fish."
Entergy also seems to claim that, because the Ristroph screens are designed to minimize impingement mortality, that the impingement of live, healthy sturgeon and subsequent transport back to the river, without injury or mortality, should not be considered as "take." Entergy raised similar comments on the draft of the 2010 Opinion. Language was added to the final 2010 Opinion and retained in this draft to explain that the prohibitions on take apply not only to injury or mortality but also to capture and collect, among other things (see definition of "take" in ESA Section 3). All sturgeon that are impinged at the Indian Point intakes and/or transported back to the river through the Ristroph screen system meet the definition of "take" in ESA Section 9. At a minimum the type of take is capture or collection; injury and mortality are also other types of take that are anticipated to occur. All of this take is incidental to the operations of lP2 and IP3 under separate licenses and their proposed renewals, which are the federal actions under consultation. That is, sturgeon would not be impinged at the trash racks or the intake screens or captured in the fish buckets and travel through the fish return if Indian Point were not operating.
We recognize in the Opinion and in the ITS that some of these fish are likely to be alive and uninjured, some will be dead, and some will be alive but injured. However, as noted above, all 11
of these fish are taken incidentally to the operations of Indian Point. Thus, all of this take must be included in the ITS.
As noted in Entergy's comments and in our draft (and final) Opinion, it is also possible that some fish that are impinged suffer from previous illness, injury or other stress that may make them more susceptible to impingement; however, it is impossible from the information that we have available on past impingements to make any assessment of this. Further, even in this instance, the collection or capture, and further injury or mortality of any individual impinged, even if previously ill or injured, would have been caused by the facility (that is, regardless of the fish's health, its impingement was caused by the operations of Indian Point 2 or 3 and the existence of the trash bars or intake screens). Therefore, it would be appropriate to consider the impingement of such a fish a "take." Entergy states that sturgeon that are impinged at the modified Ristroph screens and travel through the sluice and are returned back to the river should not count towards the ITS; however, as these fish would be "collected," take would have occurred and the effect of that collection must be considered in the Opinion and exempted by the ITS subject to compliance with RPMs and Terms and Conditions. Thus, it is appropriate that the ITS identify and enumerate all sturgeon that are expected to interact with the intakes. In the final Opinion we have clarified that the ITS exempts take as capture/collect as well as injury and/or mortality. We have refined the text in the Effects of the Action section of the Opinion and the ITS to better distinguish between the types of take expected to result from operation of the facilities (i.e.,
capture, collect, injure, kill).
If we had more information, we could distinguish between sturgeon that are expected to be impinged post-mortem and fish whose death is a result of impingement at the facilities, and we could therefore divide the total take estimate into the number of fish captured and returned alive to the river, the number captured alive but injured due to impingement, the number impinged that were dead and just "collected" at IP2 or IP3, etc. However, as explained in the Opinion, because Entergy stopped monitoring for impingement in 1990 and the information on the condition of impinged sturgeon was not recorded consistently or completely, we are unable to further refine our estimate of take.
Entergy states that we "appear to agree" with Entergy that sturgeon impinged at the trash bars were dead or dying due to causes other than operation of Indian Point before encountering the trash bars. That is not quite the case. We agree that, given the reported 3-inch spacing of the trash bars, the only sturgeon that we would expect to be impinged at the trash bars are subadults or adults. As explained in the Opinion, given the low intake velocity (1.0 fps or less), it is extremely unlikely that any healthy subadult or adult shortnose or Atlantic sturgeon would be impinged at the trash bars. Entergy states that because of this, the "impingement of sturgeon at the trash bars would not be the result of Indian Point operations." While we agree that these sturgeon would most likely not be impinged if they weren't already dead or stressed in a way that reduces their swimming ability, they would not be impinged at all if the trash bars did not exist and the intakes did not take in water, which they only do for the purposes of the operation of IP2 and IP3, the federal actions under consideration in this Opinion. In the draft Opinion, we used the phrase "dead or dying;" however, after considering Entergy's comments, we realized that using the word "dying" is confusing and inaccurate given the only way one would know 12
whether a fish is "dying" is if it ultimately died. Plus, a fish's swimming ability can be impaired by a condition that does not necessarily lead to death. It is possible the fish could be stressed, which we use to mean in compromised condition due to any number of factors such as disease, injury, heat shock, pollution, etc. For these reasons, we substituted the phrase "dead or stressed" for the phrase "dead or dying."
If NMFS concludes that the taking of an endangered or threatened species incidental to the agency action will not violate Section 7(a)(2) (i.e., it is not likely to jeopardize the continued existence of the species), then the statute requires NMFS to provide the Federal agency and the applicant with a written statement that specifies the impact of such incidental taking on the species, reasonable and prudent measures to minimize such impact, and terms and conditions (including, but not limited to, reporting requirements) to implement them. (ESA §7(b)(4)). The Section 7 consultation regulations define "incidental take" as a "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant." (50 CFR §402.02). "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, to attempt to engage in any such conduct." (ESA §3(19)). The definition of "species" refers to "fish and wildlife," which means "any member of the animal kingdom, including without limitation any ... fish ... and includes any part ... or dead body or parts thereof." (ESA Section 3(16), (8)). We consider impingement of previously killed or stressed fish to be "capture" or "collect" in the definition of "take." The impingement, regardless of the condition of the fish, is incidental to the operation of lP2 and IP3. If impingement on the trash bars causes a previously injured fish to die, then the death would be attributed to the operation of the relevant facility. As noted above, if we had the information to refine the take estimate to account for sturgeon that were dead or stressed due to Indian Point versus causes other than Indian Point prior to impingement, we would have refined the take estimate in that way. However, we do not have the information to parse out cause(s) of death or injury, or when death or injury occurred. Entergy suggests that the collections of dead or dying sturgeon at the IP trash bars should not count toward Indian Point's incidental take limits and should be exempt from the "provisions of Sections 9 and 10 of the ESA." Entergy did not explain why it believes the prohibitions of Section 9 do not apply to fish that are at least captured or collected at the facilities due to the intake of cooling water without which the facilities cannot operate. Nor did it explain why Section 10 is relevant. Impingement of any shortnose sturgeon, live or dead, at the trash racks is take that is incidental to the operations of Indian Point.
Therefore, following Section 7(b)(4), it is necessary to include this take in the ITS and to require RPMs and terms and conditions associated with this take. By doing so, this take will be exempted from the prohibitions of Section 9, as long as the ITS is complied with. If the take is exempted through Section 7, Entergy need not obtain a Section 10 permit authorizing incidental take.
Entergy's comments do note that the take estimates we generated in the October 2012 draft Opinion are based solely on the impingement of sturgeon at the Ristroph screens, not the trash bars. We have refined the discussion in the Effects of the Action and ITS to explain that while we anticipate impingement at the IP 1, IP2 and IP3 trash bars, we are unable to estimate the number of subadult or adult sturgeon likely to be impinged at the trash bars but that this impingement (and take) is in addition to the impingement estimated at the Ristroph screens.
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Entergy comments that in a draft Biological Opinion issued by NMFS' Office of Protected Resources regarding authorization of research activities by the NYDEC, NMFS discusses the capture of 2,340 shortnose sturgeon and the "unintentional" mortality of nine shortnose sturgeon.
However, this situation is very different. In that example, the action under consideration was the carrying out of a scientific research program targeting the capture of shortnose sturgeon. The take would be authorized under Section 10 of the ESA, not section 7. The mortality of shortnose sturgeon in certain research gear is not planned (unlike the capture of early life stages which are known to be lethal), but is anticipated at a low level. Therefore, NMFS characterizes that unplanned mortality as "unintentional" to differentiate it from mortality that is planned (lethal sampling). In the case of this Opinion, all of the take of shortnose and Atlantic sturgeon is considered to be "incidental." Incidental take is by definition take "that results from, but is not the purpose of carrying out an otherwise lawful activity..." Thus, in the case of the research permit, the exemption provided is not for incidental take, but for directed take. In the case of Indian Point, all of the take of shortnose and Atlantic sturgeon is incidental.
Entergy states that any healthy sturgeon impinged at the Ristroph screens has a very high likelihood of returning to the river unharmed and the return of an uninjured sturgeon to the river should not count toward the incidental take limit and should be exempt from the provisions of Sections 9 and 10 of the ESA. As with the response to their argument above regarding dead or dying fish, Section 9 of the ESA prohibits the take of listed species. Section 7 of the ESA exempt the action agency and applicant from this prohibition if they are in compliance with the terms and conditions of an Incidental Take Statement issued with a Biological Opinion. Section 10 of the ESA allows actions that would otherwise be prohibited by Section 9 for purposes of scientific research, enhancement, or incidental take. Section 10 is not relevant to this consultation, given the consultation results in an ITS that exempts the take from the prohibitions of Section 9-a Section 10 permit is not necessary as long as terms and conditions are complied with. As discussed above, impingement at the intakes, regardless if it is at the trash bars or the Ristroph screens, is take that is incidental to the continued operation of IP2 and IP3. The definition of take is not limited to injury and mortality, therefore, impingement and return or even live, uninjured sturgeon is considered incidental take and must be included in the ITS.
Because the definition of take in Section 9 of the ESA includes "capture" and "collect" and is not limited to death or injury, the take of live fish is considered incidental take. Therefore it is necessary to include this take in the ITS and to require terms and conditions associated with this take. Our ability to refine the ITS to estimate the number of impinged sturgeon that are likely to be dead, dying, injured or live and healthy is hindered by the lack of monitoring that has occurred since 1990 when the modified Ristroph screens were installed. While we agree that information available on other species indicates that survival through the modified Ristroph screen system can be high, we have no monitoring of sturgeon impingement at Indian Point to rely on to support that determination or to indicate that sturgeon are "as hardy" as other species of fish that are impinged and sent down the 12-inch diameter fish return system. Therefore, we have taken the conservative position that all Atlantic and shortnose sturgeon impinged at the modified Ristroph screens may die as a result of interactions with the Indian Point facility. As explained above, we have modified the statement that "all impinged sturgeon are expected to die..." to "we assume that all impinged sturgeon will die...".
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We do not have any further information on the dead fish that would allow us to assess whether any of these individuals were dead prior to when they were impinged. Without this information, we have made the conservative assumption that all of these fish died as a result of impingement at the intakes. In the Opinion, NMFS has estimated that up to 100% of impinged shortnose and Atlantic sturgeon will die. We have condition information for 9 shortnose sturgeon impinged at IP (7 dead) and 37 Atlantic sturgeon (22 dead). This information indicates a mortality rate of approximately 78% for shortnose sturgeon and 59% for Atlantic sturgeon, this could be an underestimate if the fish noted as "alive" were actually alive but suffering injuries. Therefore, we believe that, while conservative, it is reasonable to estimate that up to 100% of impinged shortnose and Atlantic sturgeon will die.
Entergy seems to suggest that, because the intake screens are "state-of-the-art," and EPA has in several cases determined that modified Ristroph screens are the best technology available for minimizing adverse environmental impacts for purposes of the Clean Water Act, NMFS is not justified in presuming that impingement at the Ristroph screens causes injury and mortality.
There are a number of reasons why NMFS is justified. First, EPA's best technology available determination allows consideration of other factors in addition to biological impacts such that "best technology available" may reflect a cost-effectiveness judgment that does not necessarily mean that there are no biological impacts or that there is no "take" as defined under the ESA.
Further, Entergy states that the systems "minimize impingement mortality," but that does not mean that they eliminate injury or eliminate mortality. In fact, the tests that were completed at Indian Point show a significant amount of injury and mortality of studied fish still occurs when the screens are used (see Fletcher 1990; mortality rates ranged from 9-62% (striped bass, weakfish, and hogchoker, and highest for alewife, white catfish, and American shad)). It is important to note that these studies did not involve shortnose or Atlantic sturgeon or any species that is morphologically similar to sturgeon.). Since impingement monitoring stopped following the installation of the modified Ristroph screens in 1990, there has never been any information collected to verify that the screens at Indian Point actually achieve the results obtained during testing conducted in the late 1980s. Further, that testing did not involve shortnose or Atlantic sturgeon, occurred at only one intake bay and occurred at only one time of year (August-October) of one year (1986). Similarly, those tests were not repeated once modified Ristroph screens were installed at all intake bays or over a range of operating conditions or times of year to confirm their accuracy. The monitoring information that has been provided to us recorded 78% of shortnose sturgeon impinged on the Ristroph screens as dead and 59% of the Atlantic sturgeon impinged on the Ristroph screens as dead. However, because we were provided only with a determination of whether a subset of impinged sturgeon were dead or alive, with no additional information, we are unable to determine if the fish recorded as "alive" were suffering from any injuries caused by impingement that would lead to their eventual death; if this were the case, it would mean that the 78% and 59% mortality rates were underestimates of mortality.
Based on all of the information available to us, it is not reasonable to expect that injury or mortality will not occur upon impingement on the Ristroph screens.
Additionally, it is important to note that at different times in its operational history, the NRC (known as the Atomic Energy Commission (AEC) at the time), the EPA and the NYDEC have 15
determined that cooling towers, not modified Ristroph screens, were the best technology available for reducing impingement and entrainment at Indian Point. The license for IP2 was amended by the NRC in 1975, and the license for IP3 was amended by the NRC in 1976 to include requirements for the installation and operation of wet closed-cycle cooling systems at the facilities. In 1975, the EPA issued separate NPDES permits for Units 2 and 3 that required both facilities to discontinue discharging heated effluent from the main condensers. The NPDES permits provided that "heat may be discharged in blowdown from a re-circulated cooling water system." The intent of these conditions was to require the facilities to install closed-cycle cooling systems in order to reduce the thermal and other adverse environmental impacts from the operation of Indian Point's CWISs upon aquatic organisms in the Hudson River. However, pursuant to the terms of a settlement agreement, Indian Point was allowed to continue to operate with a once-through cooling system. As recently as 2003, NYDEC staff determined that a closed cycle cooling system is the site-specific best technology available to minimize the adverse environmental impact of the cooling water intake structures with respect to entrainment and impingement. Regardless, whether the modified Ristroph screens are the best technology available for minimizing impacts of impingement and entrainment at Indian Point is not relevant to estimating the number of Atlantic and shortnose sturgeon likely to be killed as a result of the continued operation of Indian Point.
We believe that the monitoring program to be implemented per the RPMs of this Opinion is tied to anticipated take and will help NMFS, NRC and Entergy to better assess in the future the injury and mortality rates of impinged fish and the percentage of impinged fish that were dead prior to exposure to the impacts of the facility's operations. It is important to note that the collection of a previously killed fish or parts thereof is still a "take" under the ESA and thus, it is necessary to include such take in the ITS. Additionally, the capture or collection of live fish and subsequent return to the river would be a take under the ESA, even if the fish were returned to the river unharmed, and it is also necessary to include such take in the ITS. Because NMFS is not able to further refine the take estimate to parse out those fish that were either: (a) alive when impinged but died as a result of their impingement; (b) alive when impinged but suffered injury as a result of their impingement but did not die; (c) alive when impinged and suffered no injury and were released back into the river unharmed; or, (d) dead when impinged at the intakes, the number of shortnose sturgeon exempted in the ITS is inclusive of all these categories.
General Comments Entergy states that much of Section 4 of the Opinion (Status of the Species) is irrelevant.
Entergy specifically states that section 4.1 (Status of Shortnose Sturgeon) should be modified to eliminate text about shortnose sturgeon not in the Hudson River. However, as described in the Section 7 handbook, the Status of the Species section must include information on species' life history, population dynamics, status and distribution and an analysis of the species likely to be affected by the proposed action. While there are nineteen populations of shortnose sturgeon that show little evidence of interbreeding, the species is listed throughout its range. Therefore, a discussion of the species as a whole, not just the Hudson River population, is necessary and appropriate. Entergy also requests that we eliminate discussions about general life history of Atlantic sturgeon, the Gulf of Maine DPS and the Chesapeake Bay DPS; however, to do so would be inappropriate. As established above, information on population dynamics, life history 16
and status and distribution is essential for the Biological Opinion. While we determine in the Opinion that only NYB DPS origin Atlantic sturgeon are likely to be impinged, because Gulf of Maine DPS and Chesapeake Bay DPS origin Atlantic sturgeon are likely to be present in the action area, these individuals may be exposed to other effects of the project operation. Thus, we must include background information on all three DPSs in the Opinion.
Entergy provided a table highlighting typographical corrections. These have been addressed in the final Opinion as appropriate.
Entergy provides a correction to the description of the fish return system to clarify that fish contained in the water-filled buckets are washed onto a fiberglass sluice and not a "mesh". This is corrected in the final Opinion.
Entergy suggests that the description of permittees for ESA Section 10(a)(1)(A) is inaccurate.
The draft Opinion correctly states that permit #1580 was issued to Dynegy in 2007 on behalf of other generators including Entergy and Marine Bowline. The draft Opinion also correctly states that this permit was recently reissued to Entergy as Permit #17095. There are no modifications to the language necessary, although we will clarify that the permit was originally issued in 2001 (the draft lists the original permit number but not the date).
Monitoringand Reporting Entergy requests that they have 60 days for developing a monitoring plan as opposed to 30 days as required by Term and Condition #1 of the draft Opinion. This request was reiterated in the January 8, 2013 conference call and the January 9, 2013 e-mail from Entergy. We agree that developing the monitoring plan is a substantial task and will adjust this date for development and submittal to NMFS within 60 days rather than 30 days.
In the October 2012 letter, Entergy requests that we do not specify a time period for when the monitoring plan must be implemented but that an implementation schedule be determined based upon the scope and extent of the plan. In their January 2013 comments, Entergy requests that we change the requirement to implement the monitoring plan within 120 days of issuance of the Opinion to within 120 days of NMFS final approval of the monitoring plan. We are concerned that if we do not state when the monitoring must begin that Entergy will delay implementation of the monitoring program. While we recognize that certain elements of the plan could take longer to implement, because there has been no monitoring for more than 20 years, it is critical that monitoring begin as soon as possible. Also, the take exemption will not apply unless all terms and conditions, including monitoring, are complied with, so if there is a delay in implementation of the monitoring plan, both NRC and Entergy will be liable for any take that occurs. The term and condition now states that the monitoring plan must be fully implemented within 120 days of NMFS approval of the monitoring plan. However, it also states that Entergy must provide a draft monitoring plan and a component-by-component implementation schedule to identify the time needed to obtain any approvals from NRC and/or NYSDEC that may be required, or to carry out any necessary changes to the physical plant.
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Entergy requests that NMFS acknowledge that the handling of fish per the requirements of the monitoring plan to be implemented pursuant to the RPMs may increase the potential for post-impingement mortality. While NMFS recognizes that any handling of fish may have a risk of injury or mortality, we expect that the potential for injury or mortality following proper handling procedures, consistent with NMFS guidelines on research on sturgeon species, will be minimal or non-existent. While any additional injury and/or mortality following handling would be unfortunate, the alternative of not monitoring incidental take is not acceptable. Entergy made this same comment on the draft of the 2010 Opinion. There is text in the Opinion that reflects our understanding; this discussion was expanded in the final Opinion. As we note in the Opinion, we do not believe that the handling of impinged sturgeon will result in an increased risk of injury or mortality if proper handling procedures are implemented, which the monitoring plan will include. For example, both shortnose and Atlantic sturgeon are routinely captured in a trawl survey in the Hudson River that the applicant participates in. Captured sturgeon are brought into the boat, removed from the trawl gear, weighed, measured and tagged. There have been no instances of injury or mortality to any of the hundreds of Atlantic or shortnose sturgeon captured during this survey in over twenty-years. Similarly, sturgeon that enter the fish lift at the Holyoke Hydroelectric facility on the Connecticut River are netted, removed from the water, weighed, measured and tagged. There have been no reports of any injuries or mortalities to sturgeon caused by these handling procedures. This issue was raised again by Entergy in the comments they submitted by e-mail in January 2013. We do not believe any changes to the language in the RPMs or Terms and Conditions is necessary. Review of the monitoring plan by Protected Resources staff will ensure that the measures implemented by Entergy will not result in any increased risk of injury or mortality due to capture and handling.
Entergy states that we agree with them that any sturgeon impinged at the trash racks will have been dead or dying prior to impingement there. Given the low intake velocity at the racks (1.0 fps or less) and the spacing between the racks, it is likely that all sturgeon impinged at the trash racks will be dead, injured or stressed in some way that impairs their swimming ability. Entergy requests, therefore, that we remove the requirement for monitoring at the trash racks. While it is likely that these fish were dead, injured, ill or otherwise stressed prior to impingement on the racks, because there has never been any monitoring at the trash racks, we can not establish to whatdegree the impingement contributed to their death (i.e., could the individual have recovered from the injury or illness if it had not been impinged). Additionally, we consider impingement to fall within "capture" or "collect" under the definition of take. Therefore, this take must be monitored. As such, we are not removing this requirement that the monitoring plan also include monitoring at the trash racks. It is also worth noting that other nuclear power plants, including the Oyster Creek facility in New Jersey and the Salem nuclear facility in New Jersey, implement monitoring plans at their trash bars so requiring this of Entergy is consistent with RPMs in other Biological Opinions issued by our office. This issue is discussed more fully above.
Entergy states that they already monitor, on a continuous basis, the intake water temperature at a location just downstream of the intake pumps and does not expect that temperature in the intake forebay would be materially different. Thus, Entergy seems to be requesting that we remove a requirement for additional water temperature monitoring. We have modified the description of the monitoring plan to state that if Entergy can demonstrate that water temperature at existing 18
monitoring locations accurately reflects water temperatures at the intake forebay for IP 1, IP2 and IP3, then additional water temperature monitoring locations would not be necessary.
Entergy requests that the reporting requirements in the Draft BiOp in Term and Condition 7 (requiring 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> reporting) and 8 (notification when impingement is at 50% of the estimated annual total) be combined. Entergy also requests that we clarify whether the "take limit" applies on an annual basis (i.e., if the annual estimate is exceeded in a given year) or is for the entire operational period. As noted in section 12.1 of the Opinion, the ITS exempts a significant amount of take of shortnose sturgeon and New York Bight DPS Atlantic sturgeon between the time the Opinion is issued and the time any renewed IP2 and IP3 operating licenses expire. We have included a statement in the final Opinion clarifying when we would consider the ITS to be exceeded and clarified that we will consider take to be exceeded if any single Unit's total take level is exceeded at any time or certain take levels are exceeded annually or over two consecutive years. We have eliminated the requirement for Entergy to notify us when take exceeds 50% of the average estimated annual total. Because we will be receiving notification within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> for each take, we determined that this additional notification was unnecessary.
OtherIssues Entergy states that the Opinion contains inaccuracies in its discussion of the status of IP2 and IP3's NRC license renewal applications, historic NRC authorizations for IP2 and IP3, our so-called "historic authorization of IP2 and IP3's current operations relative to shortnose sturgeon",
the application of 316(b) of the CWA, the history of the NPDES/SPDES permits and WQC issuance, and the status of the SPDES and WQC Proceedings pending before NYSDEC Administrative Law Judges. Entergy does not provide any specific examples and further states that these "inaccuracies" have no effect on our underlying determination. Because Entergy has not provided any specific examples, we are unable to make any clarifications or corrections that might be appropriate. The information in the Opinion is accurate to the best of our knowledge.
It is also important to note that NRC did not point out any inaccuracies in our description of the licensing or relicensing process. We also disagree that any statements regarding past section 7 consultation and incidental take exemptions or authorizations are inaccurate. Entergy appears to be implying that the 1979 testimony provided by Dadswell and characterized as a "Biological Opinion" authorized take of shortnose sturgeon. As explained above, there was no means under Section 7 of the ESA by which to exempt incidental take at the time of that testimony and thereby no means by which NMFS could have exempted take at that time through the testimony or through a biological opinion. NMFS has not authorized any part of IP2 or IP3's past operations, nor has it exempted any past take of ESA-listed species at IPI, IP2, or IP3.
Comments Raised by NRC and Entergy on January 8, 2013 On January 7, NRC requested that NMFS participate in a conference call with attorneys and staff of both NRC and Entergy to discuss concerns related to Term and Condition 1 and 2 in the October 2012 draft Opinion. Julie Crocker of my staff participated in this call, held on the morning of January 8.
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On this call, Entergy reiterated their request that the requirement to submit the proposed draft monitoring plan be changed from 30 days after the Opinion is signed to 60 days. We informed NRC and Entergy that we had made this change as requested in Entergy's written comments.
NRC and Entergy requested that the implementation date for the monitoring plan be tied to NMFS approval of the monitoring plan rather than the issuance of the Opinion. As mentioned above, we agreed that this was reasonable and have made the requested change.
Prior to the call, NRC submitted a proposed change to Term and Condition #2 which related to the timing of approval of the monitoring plan that would be implemented during the time IP2 an IP3 operated pursuant to the proposed renewed operating licenses. On the call, NRC and Entergy requested that rather than make the suggested changes, we consider eliminating the requirement for submittal and our subsequent approval of a second monitoring plan. We have agreed to make this change and have modified the language in the RPMs and Terms and Conditions to require the implementation of a NMFS-approved monitoring plan during the period of time IP2 and IP3 operate pursuant to the existing licenses and any time they operate under the proposed renewed operating licenses.
Entergy raised new comments regarding the contents of the monitoring plan. Specifically, they requested that we rewrite the statement in Term and Condition #1 that states the monitoring plan "must contain..." certain components. Entergy requests that we change this to language that would be more flexible and less prescriptive. They suggested it state, "NMFS expects the monitoring plan to consider the following components" or "NMFS anticipates the monitoring plan will contain the following components." We disagree that this change is necessary or appropriate. We have specifically outlined the components of the monitoring plan that are required to monitor various aspects of the incidental take we have identified (i.e., impingement on the trash bars and impingement on the intake screens, including capture in the fish buckets).
On January 9, 2013, we informed NRC and Entergy that we would not change the wording of the Term and Condition from "must require." When we discussed our determination to not change this language with NRC staff (Dennis Logan), NRC staff did not raise any objections. Entergy stated that there were components of the plan that they would not be able to implement. We requested that they submit, in writing, their concerns about feasibility of implementation. On January 9, 2013, Entergy and NRC requested that the consultation period be extended until January 30, 2013 to allow time to resolve comments related to the requirements of the monitoring plan. Also on January 9, 2013, we received an email from Entergy that contained suggested changes to Term and Condition 1. These changes related to timing of implementation of the monitoring plan and specific components of the monitoring plan.
In their comments, Entergy requests that the implementation of the monitoring plan be tied not only to NMFS approval of the plan (see above) but also any additional time necessary to obtain any approvals from NRC or NYDEC or to undertake any necessary physical plant alterations.
We agree that additional regulatory approvals may be required before certain components of the plan may be fully implemented and we also agree that it is possible that Entergy may determine that physical plant alterations may be necessary in order to carry out their proposed monitoring 20
plan. Either of those situations may require more than 120 days. As such, we have modified the language in the term and condition to address this issue.
Entergy proposed numerous changes to the language in Term and Condition #1. Entergy removed the word "all" from nearly every instance where we required detection or collection of "all" shortnose or Atlantic sturgeon. Removing "all" is not appropriate because a purpose of monitoring is to be able to determine when the incidental take level has been exceeded.
Therefore, it is necessary and appropriate for the Terms and Conditions to require Entergy to implement a monitoring plan designed to detect and collect all impinged sturgeon. Similarly, Entergy proposes modifying text requiring that the monitoring plan ensure detection of sturgeon so that it merely "facilitate" detection of sturgeon. Making this change is not reasonable because of the requirement to moniior take so that we know when the incidental take level has been exceeded. A monitoring plan that merely facilitates detection is not sufficient. Detection must occur and to such a degree to provide a high level of certainty that all sturgeon have been counted. Detecting and collecting all impinged sturgeon is particularly important because our take estimates are based on data that is more than 20 years old, as well as several assumptions, and the information we have on impinged sturgeon is extremely limited.
Entergy proposes that we modify the term and condition to remove the requirement that the monitoring plan allow for the detection and observation of all sturgeon that are impinged or that contact the screens to remove the words "observation" and "contact." We have removed those words because the word "observation" is not necessary and a fish that merely makes contact with the trash racks or screens, but does not become impinged, and thus would not be captured or collected, does not meet the definition of "take." It is not necessary or appropriate to require monitoring of sturgeon that merely contact the racks or screens, but are not impinged.
Entergy proposes that we remove the requirement for "timely release" of sturgeon impinged at the trash bars. They state that this is "consistent with the language in the Opinion which states that most, if not all, sturgeon impinged are already moribund or dead." We have modified the requirement to require timely collection and release of all live sturgeon that are impinged on the trash racks and timely collection of all dead sturgeon. This is necessary and appropriate because we expect that some sturgeon impinged at the trash racks may not be dead and it is important to remove those fish from the trash racks before they die. Also, necropsy of dead sturgeon must occur before they experience significant decomposition that would impair the ability to identify the cause of death.
Entergy proposes that we add "through visual intake trash rack inspection by walkover" after the requirement that the monitoring plan include methods and procedure for monitoring the trash bars and Ristroph screens. We are not making this change for several reasons. First, we specifically designed the terms and conditions to allow NRC and Entergy flexibility to determine the best means to achieve the required monitoring. Therefore, we identify the components of the monitoring plan but not the specific means to achieve them. Further, if Entergy determines that walk over visual inspection will meet the requirements of the term and condition we expect that this will be included in the monitoring plan to be submitted for our approval. Entergy has provided no explanation of how visual inspection by walkover will fulfill the requirements of the 21
term and condition. It is difficult to envision how a person walking along the length of the trash racks could detect sturgeon impinged on the rack, which extends several feet down into the Hudson River. However, if this is what Entergy proposes in the draft monitoring plan, we will consider it at that time.
Entergy again raised the issue of the monitoring plan requiring handling of sturgeon and that they object to "unnecessary mortality." This issue has been addressed above. All of the available information indicates that the required monitoring and handling will not result in any injury or mortality. Therefore, we are not modifying the requirement for detection and collection of all sturgeon impinged at the Ristroph screens.
Entergy proposes that we change the requirement to "monitor" water temperature and water velocity to "calculate." We believe that in-water measurement of actual water temperature and actual water velocity are necessary to validate information we relied on in our Opinion and to determine how these factors may have affected sturgeon. We have changed the word "monitor" to "measure" to provide additional clarification. Entergy also proposes removing the requirement to monitor water temperature at the surface, mid-water and bottom. However, the thermal models presented by NRC and Entergy indicate that significant stratification of water temperature is present in the area near Indian Point; therefore, measuring water temperature at various depths is necessary and appropriate to establish the water temperature at the point in the water column where sturgeon were present. It is important to know water temperature and water velocity to help determine the degree to which the operations of the facilities cause an observed We expect that we will continue to work with Entergy and NRC regarding the contents and implementation of the monitoring plan after the Opinion is issued. If during the development of the monitoring plan Entergy or NRC demonstrate that any of the required components of the plan can not be implemented in the time we have allowed or their implementation is not feasible, or an alternative method for monitoring is appropriate, we will discuss that then and can make any amendments to the ITS that are necessary at that time. However, without receiving Entergy's draft monitoring plan, it is premature to make any determinations about what may or may not be feasible, particularly since neither Entergy or NRC have indicated what components of the monitoring plan may be difficult to implement at all or difficult to implement in a timely manner. We believe that by identifying the necessary components of the monitoring plan and not prescribing how exactly Entergy must carry them out, we have provided sufficient flexibility.
Comments from Riverkeeper Riverkeeper's comments are largely related to 1) the scope of the consultation; 2) the ITS; 3)
Cumulative Impacts; 4) Radiological Releases; 5) RPMs and, 6) Conservation Recommendations.
Scope of the Consultation Riverkeeper states in their comment letter that they believe that NMFS should not issue an Opinion on the effects of the proposed action as defined by NRC. Riverkeeper states their assessment that it is unlikely that Indian Point will operate during the extended operating period in a manner consistent with the description of the action provided to us by NRC (i.e., pursuant to 22
the terms of the 1987 SPDES permit). Riverkeeper states that NRC should either withdraw their request for consultation until the outcomes of the State proceedings have been resolved or request section 7 consultation on a proposed action that considers the potential outcomes of the State proceedings. These outcomes are defined by Riverkeeper as, (1) Indian Point will no longer continue to operate; (2) Entergy will install and operate a closed cycle cooling system and potentially other measures related to the water intakes at Indian Point, or (3) Indian Point will continue to operate for 20 years with a once-through cooling water system and cylindrical wedge wire screens.
NRC has stated to us that the scope of the proposed action considered in this Opinion is appropriate, even in light of the uncertainty surrounding any outcome of the State proceedings regarding the SPDES permit and 401 Certification (see NRC's September 20, 2011 letter to us).
NRC has agreed that they will reinitiate consultation with us should there be a change proposed in Entergy's operations that would cause effects to shortnose or Atlantic sturgeon not considered in this Opinion. While we see the benefits in waiting to complete consultation on the relicensing until these issues are resolved, we defer to the action agency's description of the proposed action and have completed the consultation. Additionally, Riverkeeper does not seem to understand that this Opinion considers not only the operations of Indian Point pursuant to proposed renewed licenses but also continued operations under the existing licenses until such time that NRC makes licensing decisions for each Unit. Additionally, we agree with Riverkeeper that if closed-cycle cooling or wedge wire screens are implemented at Indian Point, the effects to shortnose and Atlantic sturgeon are likely to be different than those considered in this Opinion. We recognize this in the reinitiation section of the Opinion. 'However, operation with closed cycle cooling or wedge wire screens is not the proposed action and considering either of those alternatives in the effects analysis or jeopardy determination would be inappropriate.
IncidentalTake Statement Throughout this section of the comment letter, Riverkeeper repeatedly mischaracterizes our conclusions. For example, they say that we conclude that the anticipated losses of Atlantic and shortnose sturgeon "are not significant." This is not true. In our Opinion, we conclude, that the proposed action is not likely to jeopardize the continued existence of shortnose sturgeon or any DPS of Atlantic sturgeon. Riverkeeper states that they "do not agree that such losses are appropriate or acceptable." Again, the standard by which they are judging our determination is wrong. We are required to determine if the proposed action is reasonably expected to reduce appreciably the likelihood of both survival and recovery of the species in the wild by reducing numbers, reproduction or distribution. Our Opinion makes no determination of whether the level of incidental take is "appropriate" or "acceptable" as these are not the standards considered under Section 7.
Riverkeeper refers to the determinations made by Dr. Peter Henderson of Pisces Conservation, with whom they apparently shared the draft Opinion. Dr. Henderson's comments are attached to their letter. While Dr. Henderson makes numerous comments about the Opinion, he provides no scientific analysis or citations to support any of his statements. For example, Dr. Henderson states that there is a lack of scientific support for the claim that the population of shortnose sturgeon in the Hudson River is stable. However, he provides no information to the contrary and 23
no citations to support his claim that it is not stable. Further, he claims that climate change may impact favorable recruitment of shortnose sturgeon but does not support this claim with any analysis, information or citations. In this section of the letter, Riverkeeper continues to mischaracterize the conclusions of our Opinion. They state that Dr. Henderson "disagrees with NMFS' conclusion that the proposed relicensing.. .will not necessarily affect the population of shortnose sturgeon." We make no such claim in the Opinion and clearly state that the continued operation of IP2 and IP3 will result in a reduction in numbers of shortnose sturgeon in the Hudson River but that the reduction in numbers will not appreciably reduce the likelihood of both survival and recovery, which is the "jeopardy" standard. Similarly, Riverkeeper states the disagreement with our apparent "conclusion that the losses attributable to Indian Point are not significant" (for Atlantic sturgeon). Again, we make no such determination regarding significance because this is not the ESA section 7 standard.
Riverkeeper makes numerous statements indicating that other threats to sturgeon, including potential losses at other power facilities in the Hudson River are "not well-quantified."
However, there is no requirement in the ESA or the Section 7 regulations requiring us to quantify all anthropogenic impacts to listed species. Our Opinion contains a thorough and complete discussion of known threats to all of the species considered. When we were able to quantify impacts, we did; otherwise, we provided qualitative descriptions.
Riverkeeper's letter contains a discussion of the differences between power plants and fishermen. This discussion is irrelevant to the analysis completed by us. Even if Indian Point continues to operate as it is now over the period considered in the Opinion, we are still able to reinitiate consultation if take is exceeded or there is new information on the status of the species or any of the reinitiation triggers are met.
Riverkeeper claims that our conclusions "are not well-founded" because they are "based on data that was collected over twenty years ago." We do not disagree that the impingement data we used as the basis for calculating our expected level of impingement during the continued operating period was based on impingement data collected from 1974-1990. However, that is because it is the only impingement data available for Indian Point. As explained in the Opinion, we considered if there was other available information from which to development an impingement estimate and determined there was not. Riverkeeper offers no alternative method for calculating impingement estimates and does not refer us to any additional data sources.
Cumulative Impacts Riverkeeper questions NMFS cumulative effects assessment and has comments about the effects of the Indian Point facility in light of other Hudson River power plants (Roseton, Danskammer, and Mirant Bowline). Riverkeeper states that NMFS has failed to assess the losses of Atlantic sturgeon in the Hudson River in view of the loss of Atlantic sturgeon in the river from all sources of impingement and entrainment. We disagree with this statement; the Opinion appropriately considers other anthropogenic impacts to Atlantic sturgeon, including other power plant intakes.
Riverkeeper notes that all of the intakes together (Roseton 1&2, Bowline 1&2, and Indian Point 2&3) together withdraw more than 1.69 trillion gallons of cooling water each year. Our Opinion is on the effects of the continued operation of the Indian Point facility. In the jeopardy analysis, 24
we consider the effects of the continued operation of this facility on Atlantic sturgeon in the context of all the other impacts to Atlantic sturgeon in the Hudson River, as summarized in the Status of the Species, Environmental Baseline, and Cumulative Effects sections of the Opinion.
Available information on known sources of impingement and entrainment of Atlantic sturgeon in the Hudson River is included in the Opinion. Additionally, while these other power plants also discharge heated effluent, the triaxial thermal plume study prepared by Entergy and included in NMFS Opinion, indicates that none of the other thermal plumes overlap with the Indian Point thermal plume. Riverkeeper presents no information or analysis in their letter regarding the impact of these other facilities or other sources of anthropogenic mortality on shortnose or Atlantic sturgeon.
Riverkeeper's comments suggest that they anticipate the "Cumulative Effects" section of the Opinion to be consistent with "cumulative impacts" as defined by the National Environmental Policy Act (NEPA) at 40CFR §1508.7. However, these definitions are different and the "Cumulative Effects" section in the Opinion is a different scope than would be seen in a NEPA document regarding the relicensing (e.g., NRC's FSEIS). For reference, "cumulative effects" is defined under NEPA as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." The ESA defines "cumulative effects" more narrowly as "those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur with the action area of the Federal action subject to consultation" (50 CFR
§402.02).
Riverkeeper states in their letter that NMFS has "concluded that this loss [the 162 takes predicted in the draft Opinion] would be acceptable because it would not have an appreciable effect on the total population of shortnose sturgeon in the Hudson River." This statement mischaracterizes the conclusions reached in our Opinion. Our Opinion concludes that the proposed action will not reduce appreciably the likelihood of both the survival and recovery of shortnose sturgeon in the wild (i.e., throughout their range) by reducing the reproduction, numbers, or distribution of shortnose sturgeon. NMFS makes no claim in the Opinion that the loss is "acceptable," only that the death of these individuals is not likely to jeopardize the continued existence of the species rangewide, when viewed in the context in which those deaths will occur, which is the appropriate standard to use in an Opinion.
The Opinion does discuss other Hudson River power plants. Impacts of the operations of these facilities are included in the Status of the Species and Environmental Baseline section of the Opinion as well as the Integration and Synthesis section of this Opinion explaining our current understanding of the future impacts of these facilities on shortnose and Atlantic sturgeon in the Hudson River.
RadiologicalImpacts Riverkeeper states that we have failed to adequately consider impacts of radiological releases from Indian Point on listed sturgeon. We disagree; our Opinion presents the available 25
information and an assessment of effects to shortnose and Atlantic sturgeon is included in the final Opinion. We have, however, modified the description of sources of radionuclides to more fully describe the sources of radionuclides to the environment, including known leaks from IP2's spent fuel pool. In summary, the available information indicates that there is no evidence of higher than normal levels of radionuclides in fish sampled in the Hudson River or in sediments near Indian Point; thus, we have determined that effects to shortnose and Atlantic sturgeon are insignificant and discountable. While Riverkeeper states that they are concerned that Hudson River sturgeon are being exposed to elevated levels of strontium-90, Riverkeeper presents no information on levels of strontium-90 in sturgeon prey or evidence of strontium-90 in shortnose or Atlantic sturgeon. The potential for exposure to strontium-90 is discussed in our Opinion.
The most recent REMP (2011) states that none of the fish samples indicated any detectable levels of strontium-90. Riverkeeper's comments imply that we have only considered the 2007 report on radionuclides. However, we have relied not only on that, but also on NRC's assessment in their NEPA documents (as the subject matter expert), and multiple years of REMP and NYDEC's 2009 report on radionuclides and fish (Skinner and Sinnott 2009). To provide more information on this potential source of impact, we have included a Conservation Recommendation in the final Opinion to recommend that any contaminant analysis of dead sturgeon should include radionuclide sampling. This information would help to validate any assumptions made in our analysis regarding effects of radionuclides on shortnose and Atlantic sturgeon.
Reasonable andPrudentMeasures In the discussion of RPMs in their letter, Riverkeeper again mischaracterizes NMFS conclusions by stating that NMFS concludes that "potential losses of Atlantic sturgeon caused by Indian Point over a proposed 20 year operating period are not significant." Our Opinion concludes that the proposed action will not reduce appreciably the likelihood of the survival and recovery of any DPS of Atlantic sturgeon in the wild (i.e., throughout their range, not just in the Hudson River) by reducing the reproduction, numbers, or distribution of shortnose sturgeon.
Riverkeeper questions why we do not assess the efficacy of closed-cycle cooling as an RPM or include closed cycle cooling as an RPM. While we agree based on our general understanding of cooling towers (that a facility operating with cooling towers typically withdraws approximately 95% less water than a facility with a once through cooling system), the installation of cooling towers at IP2 and IP3 would result in a large reduction in the amount of water withdrawn and a potentially significant reduction in the number of shortnose and Atlantic sturgeon impinged, and may similarly result in a significant reduction in the amount of prey impinged or entrained, closed-cycle cooling does not meet the definition of an RPM. As stated in 50 CFR 402.14, "reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration or timing of the action and may involve only minor changes." While closed-cycle cooling would likely minimize take, we cannot require that Indian Point convert to closed-cycle cooling or install cooling towers as an RPM, because such a modification to the facility would be more than a minor change to the basic design of the proposed action. Estimates of the total cost of installation of cooling towers at IP are as high as 1.5 billion dollars and would be a major construction project. Thus, while we agree with Riverkeeper that requiring the conversion of the facility from once through cooling to closed-26
cycle cooling would have environmental benefits, it is not reasonable to include as an RPM. As noted in the Section 7 handbook (page 4-49), an RPM cannot be considered reasonable if it would result in more than a minor change to the proposed action.
Riverkeeper states that there is no reason that NMFS should not examine closed-cycle cooling.
In fact, there are two. One is that closed-cycle cooling is not part of the proposed action and second is that, as explained above, conversion to closed-cycle cooling does not meet the definition of an RPM.
Riverkeeper states that our RPMs "fail to result in a net benefit to the endangered sturgeon populations in the Hudson River and NYB DPS." Riverkeeper appears to misunderstand the purpose of the RPMs. RPMs are those measures that are necessary or appropriate to minimize the impact of the incidental take. As noted above, RPMs must not result in more than a minor change. As noted in the consultation handbook, RPMs "serve to minimize impacts on the specific individuals or habitats affected by the action." The RPMs are not designed to result in a "net benefit" to shortnose sturgeon or any DPS of Atlantic sturgeon.
ConservationRecommendations As stated in 50 CFR 402.02, conservation recommendations are "suggestions of the Service regarding discretionary measures to minimize or avoid adverse effects of a proposed action on listed species or critical habitat or regarding the development of information." Riverkeeper appears to misunderstand the purpose of conservation recommendations and criticizes the fact that these will be "discretionary agency activities." The purpose of this section of the Opinion is in fact, to do just that, provide measures that the action agency can implement to assist in species conservation, further minimize or avoid adverse effects of the proposed action, or recommend studies improving an understanding of the listed species biology or ecology (Section 7 Handbook, p. 4-58). As stated in 50CFR 402.14(j), conservation recommendations are "advisory and are not intended to carry any binding legal force." Riverkeeper states that our conservation recommendations "fail to achieve a net conservation benefit"; however, this is the wrong standard to use when assessing these recommendations. These conservation recommendations are not designed to mitigate the impact of Indian Point on shortnose or Atlantic sturgeon and are not designed to result in a net conservation benefit to these species. Rather, they are activities that NRC could carry out that would provide us with important information on listed sturgeon.
CONTROVERSIALITY The relicensing of the facility is controversial in New York, with public concern heightened regarding safety and evacuation issues. The controversy of the relicensing increased even more after the Japan nuclear disaster. In addition, Hudson Riverkeeper and other environmental organizations are also opposed to the relicensing based on concerns over environmental impacts from the once-through cooling system. The State of New York (Governor Cuomo and Attorney General Schneiderman) is opposed to the once-through cooling system and wants a closed system. The State denied the issuance of a Clean Water Act Section 401 water quality certification. The 401 denial and the draft SPDES permit are both under adjudication.. In March 2011, New York Governor Cuomo expressed concerns regarding the safety of the facility and called for the facility to be shut down. The proposed relicensing is currently the subject of a 27
series of hearings that began in October. Our 2011 Opinion resulted in little media interest and no congressional interest.
REINITIATION Reinitiation of formal consultation is required is any of the four triggers outlined in 50 CFR 402.16 are met. These include the listing of a new species as well as the modification of the identified action in a manner that causes an effect to the listed species that was not considered in the Opinion. Given the uncertainty associated with the proposed action, NMFS expects that consultation may need to be reinitiated to consider changes related to water withdrawals and discharges. In the 2003 draft SPDES permit, which is currently under adjudication, NYDEC determined that the best technology available was a closed cycle cooling system with cooling towers. The 2003 draft SPDES permit, if finalized, would require the installation of cooling towers at IP2 and IP3. If cooling towers were required at IP2 and IP3, the effects of plant operations on aquatic life, including shortnose and Atlantic sturgeon, would likely be significantly different than the impacts examined in the Opinion and NMFS expects that such a change in plant operations would require reinitiation of consultation. Entergy has proposed to NYDEC that instead of cooling towers, NYDEC should approve the use of a series of wedge wire screens, with reduced intake velocity and reduced mesh size. NMFS has no information to make any preliminary assessment of the potential effects of the construction and operation of this system on shortnose or Atlantic sturgeon but anticipates that if this technology was deployed at IP2 and IP3, consultation would need to be reinitiated. In the summer of 2013 EPA will be publishing a final rule related to section 316(b) of the Clean Water Act. The final rule is expected to contain performance standards for impingement and entrainment at intakes that withdraw a certain amount of water. IP2 and IP3 are currently expected to be subject to the rule.
Modifications to the intakes may be required in order for Entergy to comply with the rule. This is likely to require reinitiation of consultation as there would likely be effects to listed species different than those considered in the Opinion. At this time, we do not have any information on how the IP intakes may be modified so we are not able to make any preliminary assessment of the potential effects of modified operations. Finally, the ITS also emphasizes that if NRC and/or Entergy do not comply with any of the terms and conditions in the ITS, we expect consultation to be reinitiated to determine, at a minimum, what the reasons are for noncompliance and whether any changes in the terms and conditions are appropriate to improve compliance.
Enclosures (3)
EC: Crocker, F/NER3 Williams, GCNE File Code: Sec 7 NRC - Indian Point Continued Operations (2012)
PCTS: NER-2012-02252 28
eiMIo~ufe I NRC Comments on Indian Point 10-26-12 Draft Biological Opinion Page 3, paragraph 4: The correct expiration date of IP2 is Sept. 28, 2013 (not Sept. 29). Also, the IP3 expiration date is only specified by month-the expiration date is December 12, 2015.
Page 5, Line 1: NMFS states that the previous consultation started in 2010. However, NRC considers the consultation to have started when the NRC sent a letter dated 8/16/07 requesting information on listed species that could be affected by the proposed license renewal. This request is in accordance with 50 CFR 402.12(c). Such requests are included in the definition of informal consultation at 50 CFR 402.13.
Page 5, end of paragraph 2: NMFS states that consultation was initiated on December 10, 2010. See above comment. Additionally, ifthis statement is referring specifically to formal consultation, the NRC considers consultation to have started on 12/22/08 when NRC sent its first biological assessment and requested consultation in accordance with 50 CFR 402.14(c).
Page 6, first line of paragraph 4: The letter referred to is actually dated May 16, 2012 (not May 17). This needs to be changed later in the paragraph as well in the sentence that says, "Consultation was initiated on May 17, 2012."
Page 6, paragraph 4: The beginning of this paragraph insinuates that the NRC only requested consultation for Atlantic sturgeon during the proposed renewed operating period and that the NRC later requested to add on the current operating period. However, NRC requested both time periods to be included from its initial consultation request. See the fourth paragraph on page 2 of the May 16, 2012, letter and Section 2.0 of the biological assessment transmitted with that letter.
Page 7, full paragraph 3, line 6: "NRC staff state" should be "NRC staff states".
Page 7, full paragraph 3, line 14: Add "(WQC)" after "Water Quality Certification" to define acronym that you use later.
Page 9, end of paragraph 1: The NRC license does not require compliance with the SPDES permit. This needs to be changed here and in other sections of the document that incorrectly-state this (page 89, paragraph 2; and possibly others).
Page 11, end of paragraph 1: NMFS states that NRC would need to reinitiate consultation if a new SPDES permit is issued. However, it is NRC's understanding that the EPA would be the responsible federal agency for such a consultation. This is in keeping with the January 2010 MOA between the EPA, FWS, and NMFS regarding enhanced coordination under the CWA and ESA: httrp://www.nmfs.noaa.aov/ool/ds/documents/02/301/02-301-22.Ddf. In such a case, NRC would expect that we might be involved in the consultation, but we would not be the agency responsible for initiating consultation. If this is the case, the language in the biological opinion should reflect this here and in other sections of the document (page 12, end of paragraph 1; page 126, paragraph 2; and possibly others).
~*1 Page 15, paragraph 2, line 4: Do you mean "Male and female shortnose sturgeon have similar lengths at maturity ..."?
Page 87, paragraph 3, sentence 2: Apparently something is missing in the middle of this sentence.
Page 118. In paragraph 1, starting on line 9, NMFS states: "All impinged sturgeon are expected to die, immediately or later, as a result of interactions with the facility". In the last paragraph, NMFS states that it expects that some shortnose and Atlantic sturgeon will be impinged and returned back to the river "without significant injury or mortality." These two positions are contradictory, and the NRC staff urges NMFS to be consistent in its conclusions.
Page 118, paragraph 3: The NRC-issued operating licenses for IP2 and IP3 contain environmental technical specifications that require the plants to maintain consistency with local, state and federal regulations. The NRC interprets this to include the Endangered Species Act and the biological opinion. The language requiring NRC to add additional license conditions should be removed or changed here and in other sections (page 120, paragraph 2; page 121, 1st paragraph under "terms and conditions"; and possibly others).
Page 123, Reasonable and Prudent Measures: An address should be specified when NMFS asks for something in writing. Also, specify if it is acceptable to transmit letters and reports electronically, and, if so, to what email address. If electronic mail is acceptable to NMFS, please add NRC's email (endanaeredsoecies(nrc.gov) as well.
Page 123, Reasonable and Prudent Measure #8: Specify how NMFS expects to receive the annual report (in writing or electronically).
GOODWIN IiPROCTER Ese N. Zoli Goodwin Procter LLP 617.570.1612 Counselors at Law ezoli@ Exchange Place goodwinprocter.com Boston, MA 02109 T: 617.570.1000 F: 617.523.1231 November 9, 2012 David J. Wrona, Branch Chief Projects Branch 2 Division of License Renewal Office of Nuclear Reactor Program US Nuclcar Regulatory Commission Washington, DC 20555-0001 Re: Draft Biological Opinion for Indian Point Units 2 and 3
Dear Mr. Wrona:
We write on bchalf of Entcrgy Nuclear Operations, Inc., Entcrgy Nuclear Indian Point 2, L,I,C and Bntergy Nuclear Indian Point 3, LLC (collectively. "Entergy") to provide Entergy's comments on the D)raft Biological Opinion issued by the National Marine Fisheries Service
("NMIFS") on October 26. 2012 ("Draft Biological Opinion"). Entergy agrees with NMIFS's conclusions in the Draft Biological Opinion that the operation of Indian Point Units 2 and 3
("1l12'" and "1P3." respcctively), as currently configured and operated under existing approvals.
as well as under renewed Nuclear Regulatory Commission ("NRC") licenses, (a) is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight Distinct Population Segment ("D)PS") of Atlantic sturgeon, (b) is not likely to adversely aflfcct the Gull'of Maine or Chesapeake Bay DPS of Atlantic sturgeon, and (c) will have no effect on critical habitats fbr either species. To that end, Entergy provides these comments, consistent with the consensus consultaition schedule developed in conjunction with NRC and NMFS staff to clarify certain aspects of the Draft Biological Opinion in a manner consistent with NM.'S's conclusion.
Entergy's comments are divided into four sections. The first addresses the marginal questions/comments included in the Draft Biological Opinion by NMFS. The second addresses the application of the incidental take limits to sturgeon collected at the trash bars or the Ristroph screens. The third provides some suggested clarifications for/corrections to certain items discussed in the Draft Biological Opinion. Finally, the fourth section provides comments designed to facilitate the future discussion between Entergy and NMFS with regard to the required monitoring program. To reiterate, the Draft Biological Opinion properly concludes ---
based upon the best inflormation available - that continued operation of IP2 and IP3. both during their current and prospective NRt" license periods. is not likely to*jeopardize the continued
GOODWIN I PROCTER David .. Wrona, Branch Chief November 9, 2012 Page 2 existence of shortnose sturgeon or Atlantic sturgeon in the Hudson River.' This conclusion is soundly supported in the record and, in Entergy's view, is the only reasonable conclusion to be drawn from that record. Thus, the following comments are targeted at specific aspects of the Dralt Biological Opinion, none of which changes its conclusion.
A. Response to Comments/Questions Posed by NMFS In the Draft Biological Opinion. NMFS includcd eight separate quLestions or requests for clarifying infbrmation from NRC and/or Entcrgy. Each item is repeated here. with Entcrgy's response immediately following:
- 1. Page 12. Questions to NIC and Entergy - What enforceable instrument, ij'any, requires such speed adjustments? For example, is this speed adjustment a conditionfor the NRC license and/or a requirement o.'the N YPDES permii? What.iciors determine whether a punmlp is run al.fill speed versus reduced speed?
The 1980 Hudson River Settlement Agreement ("I-IRSA") required Indian Point to be retrofitted with dual speed (at 11-2) and variable speed (at 11P3) pumps to allow for the reduction of cooling water intake flows to the minimum necessary for efficient plant operations. The IIRSA expired in 1991, but the requirement regarding the minimization of intake flows was continued in a series ofjudicially approved Consent Orders, the last of which expired on February 1, 1998. Since then. Indian Point has committed to continue to operate both Units in the manner set forth in the final Consent Order until a new SPDES permit is issued. See New York State Department of Environmental Conservation, Final Environmental Impact Statement, .lunc 2003, p. 10 ("The generators agreed to continue the mitigative measures included in the continuing SPI)ES permit and provisions of the Fourth Amended Consent Order until new SPIDFS permits were issued to them.'). The Fourth Amended Consent Order required the owners of Indian Point to "use their best reasonable cflorts to operate Indian Point dual/variable speed pumps in a manner as will keep the volutmes of river water drawn into the plants at the minimum required for their efficient operation, giving due regard to ambient river water temperature, plant operating status, and the need to meet water quality standards or other permit conditions." Thus, the factors affecting See Draft Biological Opinion, pp. 5-7 (discussing scope ofconsultation to include existing operations): p. 117 (reflecting conclusion that "'[alter reviewing the best available information on the status of endangered and threatened species under NMFS.jurisdiction, the environmental baseline lbr the action area, the effects orthe proposed action, interdependent and interrelated actions and the cumulative effects, it is NMFS' biological opinion that the proposed action may adversely affect but is not likely tojeopardize the continued existence of shortnosc sturgeon or the New York Bight DPS of Atlantic sturgeon. We have determined that the proposed action is not likely to adversely affect the Gulfof Maine or Chesapeake Bay DPS of Atlantic sturgeon. No critical habital is designated in the action area, therefore, none will be affected by the proposed action.").
GOODWIN I PROCTER David J. Wrona, Branch Chief November 9, 2012 Page 3 pump speed are river water temperature, plant operating status, and the need to manage flow rates to comply with water quality standards or other SPI)ES permnit conditions.
- 2. Page 13: Question to NRC and/or Enlergy - Where does materialthat is removed by the high pressure spray go? Down the sluice?
There are three different washwater sluices each associated with the Ristroph screens at IP2 and IP3: a fish return sluice and two debris return sluices, The fish return sluice is located on the cast (descending) side of the screens near the top of the sprocket wheel and receives fish as the screen mesh rotates from the west (ascending) to the east side of each screen. The main debris sluice is located on the west side of each Ristroph screen and the auxiliary debris sluice is located on the cast side ol'each screen below the fish return sluice. The two debris sluices join into one. and discharges the contents into the H-ludson River at the north (11)2) or south (11 P3) end of the CWIS bulkhead in locations that minimize re-circulation of debris toward the intakes.
- 3. Page 14: Question to NRC/Enterg - is this screen a Ristroph screen, modified Ristroph screen. or other lype of screen? if the latter,please describe it.
The IPI intake structure has two redundant forcbays, each with a maximum or design flow of 10,000 gallons per minute (gpm), employing a hual/flow travelingscreen equipped with.fine mesh screen (1/8 inch: 3.2 inm) panels. Each dual flow traveling screen at I1ll 's intake has an estimated design through-screen velocity of less than the 0.50 feet per second ("fps':.
- 4. Page 65: Question to NRC - how jir outside the trash bars is this velocity / Ifps/
reported? The reports stale "approximately' -- what is the range of velocities that are experienced? What is the "through-rack" velocity? What is the range of water velocity between the trash rack and the Ristroph screens (Fletcher 1990 reports an average of 30 cm/s))?
T'he intake water approach velocity 3 inches to 12 inches upstream from the bar racks at IP2 and IP3 was estimated at mean low water to be 1.0 fps for 100% circulating water flowv rate (840.000 gpm) and 0.6 fps flor 60% reduced circulating water flow rate (504,000 gpm). See i.'ntcrg) 2007b (citinQ Central I ludson Gas and IElectric Corporation. Consolidated Edison Company of' New York. Inc.. New York Power Authority. and Soulhern Energy New York. D)raft Environmental Impact Statement for State Pollutant Discharge 'limination System Permits for Bowline Point, Indian Point 2 and 3. and Roseton Steam I.-ectric Generating Stations. 1999).
Measurements have not been taken to determine the observed variation in approach velocity through the IPEC bar racks under full flow or reduced flow operations. The velocity through the Ristroph traveling screens at mean low water has been calculated to be 1.6 fps for 100%
circulating water flow rate and 1.0 fps fIor 60% circulating water flow rate. Thus. the range in
GOODWIN I PROCTER David .f. Wrona, Branch Chief November 9, 2012 Page 4 velocities from a location just upstream (i.e., 3 to 12 inches) from the bar racks to the through-screen velocity is 0.6 - 1.0 fps at 60% circulating water flow rate and 1.0 - 1.6 fps at 100%
circulating water flow rate. Entergy notes that this range of velocities should not be interpreted as a linear increase in flow rates between these two locations, as there is likely a drop in flow rate after the water passes through the bar racks and before it approaches the Ristroph screens.
- 5. Page 65: Question to NRC: What are these assuniptions[regardingthrough-screen velocitie.s/ bused on? What is the data that resultedin.fluii entinate." a] l./fiwec.b -o.fit/l floi.ij and 0.6for reducedflow? To get those figures, was there afield study across a range ol conditions or are these based on pump specifications or something else?
Please see response to 114 above.
- 6. Page 96: Question to NRC/Entergy - in the context /discussing rapidchanges in water temperature],please describe the characteristicsof the discharge during (1) routine operations, (2) during times when a unit is shut down and restartedand (3) at times when generationis increasing. Forexample. is the discharge alwayvs at a steadyf.low and temperatuore or are there.fluctuations? Whcttt is the time /ioanw as.ocialed with these
./ticluation.s(.ewcorlds. minitute.Y hor's?)? lHow quickl/v can lemperaltures chainge neatr the intakes? What documenlttion supporls your answers?
Under routine operations, IPIEC discharge flow follows the same seasonal pattern as intake flow, which is governed by the HIRSA/Consent Orders, as described in the reply to Comment A I above. 112 and I1P3 do not typically vary their generation by more than a few percent of full capacity when operating. The temperature rise between intake and discharge, measured at the condenser inlet boxes at a location just upstream From the intake, is reported to the New York State Department of Environmental Conservation ("NYSDEC") in quarterly discharge monitoring reports (*DMRs") for IP2 and 1P3 showing the hourly minimum, maximum and average intake and discharge temperatures for each day, and the associated intake flows represented by the combined flow for all circulating water pumps and service water pumps. An examination of intake and discharge temperatures from the quarterly I)MR applicable to the most recent refueling outage beginning on 5 March 2012 at IP2 revealed no discernible change in the pattern of hourly intake or discharge temperatures in relation to the shutdown of IP2. It should be noted that the [P2 and IP3 discharge flows are combined into one discharge canal before entering the discharge bulkhead. Also, during start-ups and shut downs, there are no measurable changes in discharge flow. That is because IPEC is required to maintain the water level within the discharge canal at 1.75 feet above the river height, to ensure that the subsurface discharge is maintained at 10 cubic feet per second. thereby ensuring sufficient mixing to minimize any potential changes in temperature. Ifan event such as start-up, shut down, or pltunp speed adjustment caused this height differential to be less. the IPIEC SPDE-S Permit requires that
GOODWIN I PROCTER David J. Wrona, Branch Chief November 9. 2012 Page 5 the adjustable subsurface ports at the discharge be adjusted to meet the 1.75 feet height differential, within 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />.
- 7. Page 98: Queslionfor NRC.- What is it abou* the model 1hai results in.findings.1/1(
hollomn wtlet's never"exceeded 28C while 1his i/?n/brmation indicatles 1wihl wuaer temperatures at the boatonm can be higher than 28C?
There appears to be some conflusion over what information is discussed in Swanson et al. 2011 a (the "ASA response") and its origins, i.e., whether field measurements or model results wcre used. As requested by the NYSDEC, ASA prepared graphics (presented in Swanson et al.
201 ]a) that used actual measuredtemperature data collected during the extensive field program conducted during the summer of 2010, not a model. The data that underpins the ASA response were obtained from 66 deployed moorings in the vicinity of Indian Point. each of which contained three to six thermistors mounted at different depths throughout the water column along the mooring lines. Numerical interpolation techniques were used to create the requested plan and vertical section views of'temperature contours during a tidal cycle spanning II and 12 .luly at different tidal current regimes (maximum ebb, slack before flood and slack bef'ore ebb) that were provided to NYSDEC staff in the ASA response. The vertical sections displayed in the ASA response showed that there were no bottom water temperatures exceeding 28C even though the July - August 2010 period was the second warmest (after 2005) during the twenty-year period 1991 through 2010, based on the temperature record obtained from the USGS West Point Station.
We likewise believe NMIFS has misunderstood the purpose, quality of'data and findings ofl'the additional thermal review performed. Following the thermal analysis provided to NYSI)IiC and in response to NMFS inquiries, ASA reviewed other data not designed or collected for assessment or monitoring of Indian Point's thermal discharge, but rather collected incidental to the Hudson River Biological Monitoring Program to assess the natural river characteristics (temperature, salinity, dissolved oxygen) without regard to Indian Point. This assessment showed that temperatures exceeding 28C at the bottom occur throughout the lludson River at 46 of 54 stations, including at locations 100 miles north and 39 miles south of Indian Point, as a function of natural River conditions. Stated another way. this information reflects the thermal structure of the River as having 28C bottom temperatures throughout its length due to natural conditions. Thus. this supplemental analysis merely reflects natural thermal regimes in the H-ludson River.
GOODWIN I PROCTER David .. Wrona, Branch Chief November 9, 2012 Page 6
- 8. Page 100: Question for NRC and Entero.- It is our understandingyou will be undertakingnew fish sampling in Haversiraw Bay in 2013. Will you be applyingJbra
,nodifica*ion to your ESA Section 10 permit for this work? If not, why no,?
Radiological Environmental Monitoring Program ("REMP") fish and blue crab samples for IPEC are collected opportunistically as part of ongoing sampling for the Hudson River Biological Monitoring Program ("HRBMP"). The procedures used to collect samples for the REMP are specified in Section 8 and Appendix 3 of the current (2012) Hudson Rivcr Fall Juvenile and Beach Seine Surveys Standard Operating Procedures (Revision 1, September 2012),
a copy of which is approved by NYSDEC and supplied annually to Ms. Kim Dlamon-Randall and Ms. .ulie Carter of NOAA/NMFS. The additional fish sampling in Hlaverstraw Bay will rely on sampling programs already in place. Atlantic and shortnosc sturgeon are not among the fish species sacrificed ftr edible tissue samples, and any Atlantic and shortnose sturgeon caught while sampling arc handled as specified in Permit to Take Protected Species fbr Scientific Purposes No. 17095 issued 28 August 2012.
B. The incidental take limits should apply only to injury or mortality caused by the operation or 11 2 and 11'3.
The proposed Incidental Take Statement exempts the taking of 562 shortnose sturgeon and 219 New York Bight DPS Atlantic sturgeon by impingement at 11PI, IP2 and IP3, from the date of issuance through the twenty-year license renewal periods for IP2 and 1P3. Entergy agrees to these limits. I lowever, the comments below address how impinged sturgeon are tallied with respect to these limits.
The proposed incidental take limits apply to sturgeon, whether they are dead or alive beibre they are impinged at 11P2 or IP3.2 As detailed below, Entergy respectfully asserts that these take limits should apply only to the impingement of healthy, live fish (as opposed to dead or moribund fish).
lhese totals also apply whether or not sturgeon arc harmed or killed by IP2 or IFP3 - that is, they are rclatcd to the event of impingemnent, not ouLtcome. despite the existence of state-ol-thc-art impingement and fish return systems at 11P2 and IP3. These systems have been dctermined by the Unitcd States Environmental Protection Agency ("USI.PA"-) to minimize impingement mortality, and are expected to facilitate the non-injurious transport of' impinged sturgeon to the Hudson River. As such. a presumption of mortality or injury is not scientifically justilied.
Stated simply: takings should be attributable to IP2 or IP3 only when they actually have been caused by 11-2 or 11'3, and result in demonstrable injury or mortality.
.See t)rafl Biological Opinion, pp. 119,
GOODWIN I PROCTER David J. Wrona, Branch Chief November 9, 2012 Page 7 Takings regulated under Incidental 'rake Statements or Incidental Take Permits arc those which are incidental to the carrying out ol'an othcrwise lawful activity -- in this case. incidcntal to the operation of [P2 and 1P3.3 NM-S addresscs the locations where these impingement events might occur at l1'2 and 1P3 - the trash bars and the modified Ristroph screens, each of which is addressed below separatcly.
- 1. Impingement at Trash Bars With respect to sturgeon that may be impinged at the trash bars, NMIFS appears to agree with Entergy that it is virtually certain that any sturgeon found at the trash bars was dead or moribund in the Hudson River before encountering the trash bars (i.e., their injury or mortality was not incidental to IP2 and IP3 operations). As noted in the Draft Biological Opinion:
healthy Atlantic sturgeon (yearlings and older) are expected to be able to readily avoid an intake with an approach velocity of 1.0 lps or less. Therefore, any Atlantic sturgeon impinged at the trash bars, where the velocity is 1.0 Fps or less depending on operating condition, arc likely to already be sulrering from inJury, or illness which has impaired their swimming ability!
Similar findings arc made with respect to shortnose sturgeon, See D)raft Biological Opinion, p.
75 ("healthy shortnose sturgeon (yearlings and older) arc expected to be able to readily avoid an intake with an approach velocity of"1.0 fps or less").
In other words, sturgeon of both species large enough to be impinged at the trash bars would also be capable of swimming away from the bars, if alive and healthy. Thus. the impingement of' sturgeon at the trash bars would not be the result of Indian Point operations, but rather the dead or moribund condition of the sturgeon in the intake flow From other causes such as recreational fishing mortality, boat propeller strikes, or predation, Because the purpose of the incidental take limit is to limit the impact ofthe fawili,,on the sturgeon population, and/or because the impingement of a dead or moribund fish has no impact on the population, the impingement of dead or moribund fish should not be limited as though it does have such an impact. Furthermore.
the sturgeon impingement data used to estimate the take limits were based on those fish impinged on the traveling screens at [P2 and IP3 during 1974 through 1990 (see Tables 2 and 3 of the l)rafl Biological Opinion) and not on the sum of fish collected from the bar racks and in the impingement samples from the traveling screens, so take limits based on these data relate Set 16 U.S.C. § 1536(h)(4)(13) (addressing takings "incidlcntii Ito ihc aglni y action"): § 1539(a)( 1)(t)
(aulhorizhing pernmits for a "taking which is incidcntal Ito. aid not Ilhe purpose ol" the ctrirying out oflan otlhcrwise lawrtili activity").
I)rall. Iiiologit:l Opinion, p. 88.
GOODWIN I PROCTER David .J. Wrona, Branch Chief November 9, 2012 Page 8 exclusively to impingement on the traveling screens. Certainly, Entergy can agree to the requirements of the Draft Biological Opinion with respect to the collection and processing of sturgeon observed to be impinged at the trash bars as a means of advancing the scientific knowledge of the species generally and in the Hudson River, but such collections of dead or moribund sturgeon to advance scienti Fic understanding of these species should not count toward Indian Point's incidental take limits and should be exempt Irom the provisions of Sections 9 and 10 of the Endangered Species Act.:
Entcrgy notes that NMFS has provided a similar context for incidental take limits in another authorization with respect to sturgeon in the I ludson River, where unintentional mortality is described as substantially less than the number olftakes authorized. See. e.g.. Draft Biological Opinion, p. 43 (NYSDI)C scientific authorization which appears to allow up to 2,340 sturgeon to be caught over no more than live years, but contemplates the "'unintentional" mortality of nine (9) sturgeon other than that subset for which mortality apparently is part of the study program).
Thus, while the incidental take limits for IP2 and 1P3 track the number of estimated impingement events, it should be recognized that the estimated mortality (and, therefore, adverse effect on sturgeon) caused by these authorized impingement events is likely to be quite small.
- 2. Impingement at the Optimized Ristroph Screens Both 11P2 and IP3 are equipped with state-of-the-art, optimized Ristroph screens and fish return systems that operate continuously whenever cooling water is withdrawn from the Hudson River and arc designed to automatically and elf'fectivcly return impinged fish to the Hudson River in a continuous stream or flowing river water at locations flound to minimize re-impingement. As indicated in prior submissions to NRC and NMI7S. these screens and fish returns have reduced impingement mortality by approximately 90% for species with a hardiness similar to shortnose sturgeon.6 Indeed, the IJSI.A has determined that systems of the type installed at IP2 and IN3 constitute the best technology available for minimizing impingement mortality, ascribing to them7 an average impingement survival rate of 88% across species. many Ifor less hardy than sturgeon.
Thus, any healthy sturgeon impinged at the optimized Ristroph screens has a very high likelihood of returning to the river unharmed. The return of an uninjured sturgeon to the river in this flashion should not count toward the incidental take limits, which arc based on the Entergy understand that neither ihe Roseton nor the Danskanmmcr Iacilifies on the I ludson River include trash bar/rack impingement in their incidental take numbers.
See Shortnose Sturgeon: A 'ursmlt to the EndangqeredSpecies ,lct (April 2011)
PurshaLicnltAsessment (enclosed with correspondence from Fred I. Dacimo (Entergy) to Mr. Andrew Stuyvcnberg (NRC) and Ms.
Patricia A. Kurkul (NM FS), dated April 28, 2011), p. 20.
See Notional PollutantDischarge Elimination Sysiern-Cooling Water Intake Structures at Fxisting lacilities
(,lit/Phase I Facilities,76 Fed. Reg. 22174, 22282 (April 20, 201 1).
GOODWIN I PROCTER David .i. Wrona, Branch Chief Novcmber 9, 2012 Page 9 assumption that every impinged sturgeon will die. and should be exempt from the provisions of Sections 9 and 10 of the Endangered Species Act.
Of course, it could also be the case that a smaller sturgeon capable of passing through the trash bars and being impinged at the modified Ristroph screens was dead or moribund before it was impinged. As with sturgeon impinged at the trashi bars, the impingement of such sturgeon, or at least the vast majority of them, at the optimized Ristroph screens also should not count toward Indian Point's incidental take limits, because their mortality or injury was not incidental to 1112's and IP3's operation.
Accordingly. the monitoring progiramn to be developed in conjunction with NMFS should include procedures for evaluating whether sturgeon impinged at the optimized Ristroph scrccns were (a) dead or moribund before impingement, or (b) injured or killed as a result of being impinged.
Those in the rormer category should not count toward the impingement limit, while those in the later category should count toward the limit.
For these reasons, Entcrgy respcctfully requests that NMFS clarify that the incidental take limits established in the proposed Incidental Take Statement apply to impingement or live, non-moribund sturgeon at the modified Ristroph screens resulting in injury or mortality. Indeed, the Draft Biological Opinion's Reasonable and Prudent Measure ("RPM") 113 requires that "I.alny shortnose or Atlantic sturgeon [ ] be translerred to NMFS or an appropriately perniitted research facility NMFS will identify so that a necropsy can be undertaken to attempt to deiermnine the cau*se ofdeath.' 9 Entergy agrees with this focus on takes incidental to its operations and believes the incidental take limits should have a similar focus.
C. Comments Related to Clarifications/Corrections
- 1. Section 4 of the Biological Opinion Much of the content of Section 4 of the Draft Biological Opinion, although accurate, is irrelevant to the purpose or this document and may be confusing to readers. Section 4.1 contains lengthy discussions of region-wide aspects or the lilfc history, status, trends, and threats to recovcry for shortnose stunreon. Nearly all of this information pertains to shortnosc sturgeon populations in river systems other than the I ludson. Since the 19 known populations of shortnose StUlrgeotn arC believed to be reproductively isolated (Dral t Biological Opinion. p. 20). this information is See Draft Biological Opinion, p. 119 ("All impinged sturgeon arc expected to die. immediately or later, as a result of interactions with the facility.").
Draft Biological Opinion, p. 121 (emphasis supplied). See also Drart Biological Opinion, p. 123, Tern and Condition 114(discussing necropsy for dead specimens).
GOODWIN I PROCTER David .1.Wrona. Branch Chief November 9. 2012 Page ) 0 irrelevant to the Draft Biological Opinion. Similarly, Sections 4.2, 4.3, and 4.4 contain lengthy discussions ofthc lifie history, status, trends, and threats to recovery fbr the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments ("DPS") of Atlantic sturgeon.
Since the NMFS concludes elsewhere (Section 7.1.2.2) that only Atlantic sturgeon spawned in the Hudson River are subject to impingement at IPEC, Sections 4.2, 4.3, and 4.4 are irrelevant to the objectives of the Draft Biological Opinion. The presence of this extraneous content is potentially misleading, because readers may inappropriately conclude that threats such as chemical exposures, boat strikes, or elevated temperatures that have been Ibund to affect sturgeon in other river systems are applicable to the Hudson River as well.
The relevant characteristics of the Hudson River population of shortnose sturgeon arc adcquately discussed in Section 4.5. The relevant characteristics of the Hludson River spawning population of Atlantic sturgeon are discussed in Section 4.6. Sections 4.1-4.4 arc not necessary and could be deleted without compromising the objectives of the Draft Biological Opinion.
- 2. Typographical/Stenor-aphic Corrections Eintergy noted a series ol instances in which numbers used in the l)rall Biological Opinion appeared to be in error, although none of these impacts the final incidental take limits which Entergy believes have been appropriately calculated. These suggested corrections arc lor internal consistency within the document:
Page Paragraph Line Existing Text Corrected Text P,88 4 3 265 Atlantic 219 Atlantic 893 89_ 4 24 shortnose 26 shortnose 4 20 shortnose 26 shortnose 110 2 4 444 shortnosc 562 shortnosc 1-10 2 10 444 shortnosc 562 shortnose 1 10 2 14 0.8% 1.0%
110 2 16 0.2% 0.05%
I 1-1 3 _5 0.8% ..... 1.0%
112 I _ 24 shortnose 26 shortnose 115 4 3 - 12 juveniles 10 juveniles 1 16
__T2_3 123 3
4 3 .- ___(12 juvenile (02juvenile________
and 5 5_ (13,luvenile 10 (13 and 5
- 5. __nde
GOODWIN I PROCTER David .l. Wrona, Branch Chief November 9, 2012 Page 11
- 3. The description of the operation of the modified Ristroph screens and fish rcturns is inaccurate.
On page 13. the Draft Biological Opinion describes the operation of the modified Ristroph screens and fish return systems at Indian Point. That description indicates that fish contained in the water-filled buckets on the screen are washed onto a "'mesh," which is not con'ect. Any fish contained in the water-lillcd buckets is washed out by the low-pressure spray of ambient rivcr water into a fiberglass sluice which canrics the fish in flowing water of sufficient depth through the fish return system to the Hudson River. The screens themselves consist of fine mesh to reduce the potential for abrasion, but the fish are not washed onto a mesh after exiting the wvater-filled fish bucket.
4, The list of permittces under scientific research permit /11580 is incomplete.
On page 43, the Draft Biological Opinion refers to scientific research permit 111580 (originally issued as 1 1254, for the Hudson River Biological Monitoring Program) as "issued to Dynegy."
Entergy notes that (1) by letter dated September 14, 2001, NMFS added Entergy and Mirant Bowline to this permnit as additional permitted agents, and (2) the current permit is issued to Flntergy, not Dynegy.
1). Comments Related to Monitoring and Reporting EIntergy agrees, as NMFS has suggested, that an appropriate monitoring program should be developed with NMFS's input and oversight for documenting incidental takes. and looks Forward to that process. See I)raft Biological Opinion, pp. 120-12 1. lEntcrgv respectfully requests sixty (60) days From the date of finalizing the Draft Biological Opinion to develop such a plan. and that the implementation schedule for that plan be determined based upon the scope and extent of the plan that actually is developed. F'ntergy also notes that any implementation schedule may need to account for authorizations of other regulators, including NRC.
At this time. however. Entergy would simply like to note several points for purposes of advancing the discussion of the monitoring and reporting program. F:irst. as discussed above.
both 1132 and IP3 are equipped with modified Ristroph screens and fish return systems that arc continuously operated whenever cooling water is withdrawn From the HIudson River and designed to automatically return impinged fish to the Hudson River at locations flund to minimize re-impingement with little or no adverse effect, particularly with respect to hardy species such as sturgeon. Additional handling of these fish for the purpose of monitoring (e.g.
diverting the fish into a sampling device for subsequent length, weight and tissue sampling flor genetic testing) will increase the potential for injury and could result in inadvertent mortality.
thereby frustrating the very purpose of the installation and operation of the screens and fish
GOODWIN I PROCTER David .l. Wrona, Branch Chief November 9, 2012 Page 12 returns. As such, I-ntergy looks forward to developing a monitoring program that is sensitive to the potential for additional handling stress on individual fish - one that reduces mortality.
Second, Entergy and NMFS agree that any sturgeon impinged at the trash racks will have been dead or moribund prior to impingement there:
If through-rack velocity at the trash racks in front of IP 1, IP2 and IP3 is 1.0 fps, as reported by Entergy, we would not anticipate any impingement of shortnose sturgeon at the trash racks. That is because sturgeon that are big enough to not be able to pass through the racks (i.e., those that have body widths greater than three inches) would be adults. These fish are able to avoid impingement at velocities of up to 3 lect per second and should be able to readily avoid getting stuck on the trash racks.
D)raft Biological Opinion, p. 65. Because velocities through the trash rack are certainly less than 3.0 fps. EntCrgy respcctfully questions the need for any monitoring of the trash racks, and requests that it be omitted firom the final Biological Opinion. Any impingement event occurring at the trash racks will not be the result of Indian Point operations, but, instead, will be the result of the moribund or deceased condition of the sturgeon prior to impingement. Thus, monitoring will not advance an understanding of impingement events related to Indian Point's operation.
Should sturgeon be collected friom the trash bars, Entergy would be amenable to delivering such specimens to appropriate locations lbr further study.
Third, the monitoring program described in the Draft Biological Opinion also calls for monitoring oflriver water at the trash racks and/or Ristroph screens. Entergy already monitors, on a continuous basis, the intake water temperature at a location just downstream of the intake putips and does not expect there to be any reason that the temperature measured at this location would be materially different from the temperature in the intake forebay, locatcdjust a few feet away. Thus, Entergy anticipates making use of existing temperature measuring devices - and perhaps other in-place equipment -- as it develops its monitoring program.
Finally. Irntergy believes that terms and conditions numhcrs 7 and 8 (related to reporting of monitored impingement events) should be combined into a single notilication requircmcnt.
Given the low numbcrs ol'shortnosc and Atlantic sturgeon expected to be impinged annually.
and the likelihood that impingement will vary substantially from month to month and year to year due to natural environmental variability, the reporting requirements prescribed by NMFS would not be biologically meaningful. I listorically, most impingement of shortnose sturgeon has occurred between .lanuiary and May, and most impingement of Atlantic sturgeon has occurred between January and .lune. NMFS' own projections of expected future impingement (Figure 3, page 64. and Figure 8, page 84) are consistent with this pattern. I lence, in a typical y'ear, the
GOODWIN I PROCTER David .,. Wrona, Branch Chief November 9, 2012 Page 13 50% thresholds Ilor both species are likely to be reached during the spring. Since impingement is expected to be low for the remainder of the year, there is no scientific justification for NMFS to consider whether additional mitigation or monitoring is warranted after the 50% threshold has been reached. Moreover, the annual take levels specified by NMFS (25 shortnose sturgeon and 10 Atlantic sturgeon) arc expected values calculated from the overall take limits lor the licensing periods ofr P2 and 1133. On average, it would be expected that these levels would be exceeded in 50% of years through chance alone. Accordingly, Entergy requests that NMFS clarify that these take limits apply to the entire period covered by the final Biological Opinion and not to single years within that period, and that the take of more than 1 / 2 0 ,h of the limit in a single year does not constitute a violation.
lrntergy believes that re-initiation of consultation is warranted only if sturgeon impingement exceeds the annual take level by a significant amount during several consecutive years. ElIntcrgy proposes to notify NMFS and NRC in writing if impingement mortality or either shortnose or Atlantic sturgeon exceeds 1/20"' of the total limit for three consecutive years (i.e. 30 or more shortnose sturgeon each year fbr three consecutive years or 12 Atlantic sturgeon each year I'or three consecutive years). This notification would be provided as part of the annual incidental take report for the third year in which the take level has been exceeded by 20%.
As a final point, Entergy notes that the Draft Biological Opinion provides summaries of various matters outside of the scope oFNMFS's Draft Biological Opinion and/or NMFS's authority.
These include the status of 1P2 and l P3"s NRC license renewal applications, historic NRC authorizations for IP2 and I133, NMFS's historic authorization ofl12 and lP3"s current operations relative to shortnose sturgeon. the application of §316(b) of the Clean Water Act. the history ot the NIE)I)S/SPDIES permnitting and WQC issuance for l112 and IP3. and the staLIs oft the SPDhES and WQC Proceedings pending before NYSI)EC Administrative Law .ludgcs
("AL.Is'). See Section 1.0 through 3.3, and elsewhere where statements from these sections are echoed or repeated.
Entergy respectfully states that these matters are irrelevant to the issue to be addressed - i.e.,
whether the proposed federal action is likely to jcopardize the continued existence of the shortnosc sturgeon or Atlantic sturgeon in the Hudson River - and outside ofNMFS" authority, expertise or knowledge. Although there are numerous misstatements or enrors in the D)raft Biological Opinion's discussion of these matters, providing comments in these areas would unnecessarily complicate the important process or providing comments on the matters within NMI:S's authority in the l)ralft Biological Opinion. Examples include inconrect statements that NRC licenses for IP2 and 1P3 "will expirc," see Draft Biological Opinion. p. 3. when in fact the licenses are subject to timely renewal, as NMFS elsewhere acknowledges. They also include the
GOODWIN I PROCTER I)avid .. W\rona. Branch Chiefl No*enmhcr 9. 2012 Page 14 incorrect assertion that NYSDEC's 1982 WQC did not address all applicable water quality standards ("WQS"), when New York law requires that a WQC reach a determination on all WQS. See Draft Biological Opinion. p. 9. These statements., and others, while inaccurate, have no effect on the underlying determination NMFS has made. Thus, Entergy is not commenting on NMFS' recitation of any of thcse irrelevant or inaccurate matters, but expressly reserves its rights to do so in the future, including by taking any legal or flactual position in any ongoing or future administrative or judicial proceeding related to 1P2 or IP3 to establish any errors in NMI:S's Draft Bi6logical Opinion.
E-ntergy appreciates this opportunity to provide these comments on the Draft Biological Opinion, and looks lbrward to the completion of consultation and the issuance of the Final Biological Opinion on the schedule agreed to by NMFS, NRC and Entergy. Entergy likewise looks forward to final resolution of the monitoring program, as proposed in the Draft Biological Opinion. If' you have any questions regarding these comments, please do not hesitate to contact me.
Sincerely.
I'lise N. Zoli
ei~~cIowxe ~3 RIVERKEEPER.
NY's clean water advocate November 23, 2012, VIA U.S. MAIL AND ELECTRONIC MAIL John K. Bullard Julie Crocker Regional Administrator. Fisheries Biologist National Marine Fisheries Service National Marine Fisheries Service Northeast Region Northeast Region 55 Great Republic Drive 55 Great Republic Drive Gloucester, MA 01930 Gloucester, MA 01930 iohn.bul ardra~noaa.gov juilie.crockernwnoaa. 2ov Julie Williams Attorney-Advisor National Marine Fisheries Service Northeast Region 55 Great Republic Drive Gloucester, MA 01930 iulie.williams noaa.,gov Re: NMFS' 10/26/12 Draft Biological Opinion for Continued Operations of the Indian Point Nuclear Generating Station. F/NER/2012/02252
Dear Ms. Kurkul,
Ms. Crocker, & Ms. Williams:
Please accept the following comments on behalf of Riverkeeper, Inc. ("Riverkeeper") regarding National Marine Fisheries Service's ("NMFS") draft Biological Opinion ("draft BiOp") on the effects of the proposed continued operation of Indian Point Nuclear Generating Station ("Indian Point") Units 2 and 3 on endangered aquatic resources in the significant and historic Hudson River, dated October 26, 2012. While initial Endangered Species Act ("ESA") § 7 consultations regarding the proposed relicensing of Indian Point commenced in December 2010, considered the impacts of the operation of Indian Point on endangered shortnose sturgeon, and resulted in the issuance of a final Biological Opinion on October 14, 2011, formal consultation was reinitiated in May 2012 in light of the recent listing of Atlantic sturgeon as endangered on February 6, 2012. NMFS' new draft BiOp considers the impact of Indian Point on the Atlantic sturgeon, which occur in the Hudson River and are known to be affected by the operation of the plant, and, when finalized, will amend and supersede the agency's previous final BiOp relating to this matter.
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Riverkeeper is a non-profit environmental watchdog organization that is committed to the protection of the aquatic ecology of the Hudson River, including endangered shortnose sturgeon and Atlantic sturgeon that reside in the river. To this end, Riverkeeper has historically been engaged in advocacy activities and legal actions involving Indian Point, and, as you are likely aware, is currently a party to the Indian Point operating license renewal proceeding pending before the U.S. Nuclear Regulatory Commission ("NRC"), the Indian Point State Pollutant Discharge Elimination System ("SPDES") permit renewal proceeding, and the Indian Point Clean Water Act ("CWA") § 401 Water Quality Certification ("WQC") appeal proceeding, all of which implicate and involve endangered species issues. Moreover, Riverkeeper retains and regularly consults with the renowned expert fisheries biologists of Pisces Conservation Ltd., on issues pertaining to the aquatic ecology of the Hudson River, and impacts of power plant cooling water intake structures thereto. Riverkeeper is, therefore, well situated to provide feedback on the draft BiOp. Furthermore, consideration of Riverkeeper's comments on NMFS' draft BiOp is both necessary and appropriate pursuant to basic tenets of fairness, due process, and the Federal government's commitment to openness, transparency, and public participation.' Notably, during NRC and NMFS' initial ESA § 7 consultation relating to the proposed relicensing of Indian Point, upon Riverkeeper's request, NMFS provided a copy of the draft BiOp, and Riverkeeper greatly appreciated the opportunity to review it and provide NMFS with relevant and important comments. Riverkeeper thanks NMFS in advance for once again accepting and considering the comments submitted herein prior to any issuance of a final Biological Opinion ("final BiOp").
In particular, Riverkeeper respectfully submits the following comments and concerns relating to NMFS' new draft BiOp:
The Usefulness of Issuing a FinalBiOp at this Time As discussed in Riverkeeper's comments on NMFS' previous draft BiOp, Riverkeeper continues to question the appropriateness and efficacy of issuing a final BiOp at this time, in light of the uncertain status of ongoing State legal proceedings involving Indian Point.
The opportunity to review and comment on the draft BiOp would facilitate Riverkeeper's ability to meaningfully participate inthe aforementioned ongoing legal proceedings involving Indian Point and to act as a public advocate, as well as foster an open process that Federal agencies are obligated to strive for. Moreover, given that Riverkeeper's position in various Indian Point proceedings is adverse to that of the owner of Indian Point, Entergy Nuclear Operations, Inc. ("Entergy"), and the NRC, it is patently unfair to allow a one-sided external review of the draft BiOp by only Entergy and the NRC.
2 See Letter from D. Brancato (Riverkeeper) to P. Kurkul (NMFS), J. Williams (NMFS), and J. Crocker (NMFS) re:
Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 15, 2011). Indeed, Riverkeeper's comments raised issues that NMFS considered (albeit, not entirely) prior to finalizing its BiOp concerning shortnose sturgeon, including whether accidental radiological leaks from Indian Point had impacted the endangered species in the Hudson River as well as the impact of the Indian Point Unit 1 cooling water intake on shortnose sturgeon - issues for which NMFS' initial draft BiOp was completely silent. See id. at 7-9; see generallyEndangered Species Act Section 7 Consultation DRAFT Biological Opinion - Relicensing - Indian Point Nuclear Generating Station, F/NER/2009/00619; endangered Species Act Section 7 Consultation Biological Opinion
- Relicensing - Indian Point Nuclear Generating Station, F/NER/2009t00619, at 49-51, 62.
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During NMFS' earlier consultations, NMFS asked NRC to consider withdrawing its request for ESA § 7 consultation until the uncertainties related to the continued operations of Indian Point were resolved. 3 However, per NRC's request, NMFS "completed consultation, considering effects of the proposed action, as defined by NRC staff in the FEIS and BA," 4 i.e., in relation to existing operations of the plant pursuant to 1987 SPDES permits. NMFS' new, October 26, 2012 draft BiOp take the same approach: while legal proceedings that will determine what new technology will be required to modify the operation of Indian Point's cooling water intake structures remain ongoing, NMFS again only considered "the effects of the operation of IP2 and IP3 pursuant to the... [ 1987] SPDES permits issued by NYDEC that are already in effect" since "NRC requested consultation on the operation of the facilities under the.. . existing [ 1987]
SPDES permits, even though a new SPDES permit might be issued in the future."5 Thus, while NMFS recognized that the implementation of technology that Entergy has proposed, cylindrical wedge wire screens, "will affect shortnose and/or Atlantic sturgeon in a manner and to a degree that is very different from the effects'" 6 of existing operations, the draft BiOp once again only narrowly considers impacts of the current operations of the plant on endangered species in the Hudson River.
Riverkeeper continues to question the utility of the instant ESA § 7 consultation process. To begin with, because NYDEC has unequivocally denied Entergy a necessary CWA § 401 WQC, it is not clear that Indian Point will even continue to operate, in which case §7 consultation regarding the impact of 20 additional years of operating the plant on endangered species would be unnecessary. Without a new, valid CWA § 401 WQC, Indian Point cannot continue to operate.7 While NYSDEC's determination to deny Entergy this necessary certification was definitive, and made within the statutory one-year timeframe contemplated by the CWA, Entergy chose to avail itself of an optional hearing process on the decision, and that process is currently ongoing. The likelihood that Indian Point may not continue to operate in the absence of a new WQC renders the usefulness of the instant ESA § 7 consultation process questionable.
Moreover, NMFS' analysis in the draft BiOp considering only existing operations pursuant to a 25-year old, outdated, administratively extended SPDES permit, is less than useful. The "current" SPDES permit is presently the subject of a renewal proceeding that will result in the modification of the current permit (since it will require the implementation of the best technology available for minimizing the adverse environmental impacts caused by the current operation of Indian Point's environmentally destructive once-through-cooling water intakes).
The analysis and determinations required in NMFS' BiOp necessarily hinge and depend upon the 3 See Letter from P. Kurkul (Regional Administrator, NMFS) to D. Wrona (Branch Chief, NRC), Re: Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Oct. 14, 2011), at 1.
4 id.
5 Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 7, 11.
6Id at 11.
7See generally Letter from D. Brancato (Riverkeeper) to NRC Commissioners, Re: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR 50-286-LR (July 26, 2012), NRC ADAMS Accession No. ML12208A392.
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outcome of that proceeding. It is simply unhelpful (as well as a waste of resources) to issue a final BiOp before the final outcome of the SPDES permit renewal proceeding is known.
The eventual outcomes of the ongoing State proceedings will determine if and how Indian Point might continue to operate, and, thus, more precisely, how the plant would impact endangered species in the Hudson River. NRC's continued request for § 7 consultation regarding a "proposed action" defined as the operation of Indian Point for 20 additional years pursuant to its existing (i.e., 1987 administratively extended) SPDES permit remains inappropriate and largely ineffective. As such, Riverkeeper once again opines that issuing a final BiOp at this time that is based on completely inaccurate and irrelevant assumptions is neither appropriate nor useful.
It is advisable and necessary for NRC to either withdraw and hold in abeyance its request for §7 consultation pending the outcome of the State proceedings, or, request §7 consultation for a "proposed action" that includes and fully accounts for the reasonably foreseeable differing outcomes of these proceedings, and which will result in a thorough analysis of the respective impacts of such differing outcomes. The State proceedings are indisputably at a point where reasonably foreseeable outcomes are discernible; the likely outcomes of the State proceedings are as follows: (1) Indian Point will no longer continue to operate, (2) Entergy will install and operate a closed-cycle cooling system and potentially various other measures related to the water intakes at Indian Point, or (3) Indian Point will continue to operate for 20 years with a once-through cooling water system and cylindrical wedge wire screens.
For example, Entergy's proposal that Indian Point be allowed to continue to operate with the installation of cylindrical wedge wire screens, 9 clearly requires additional analysis, as such screens would undoubtedly impact the benthic environment and shortnose and Atlantic sturgeon in the Hudson River: these screens would require an enormous set of underwater structures --
144 screens each of 72 inches in diameter, made of a metal alloy with toxicity implications --
that would rest on the floor of the river, where, as NMFS' draft BiOp discusses at length, sturgeon are present for foraging, migrating, avoiding unsuitable thermal temperatures occurring at higher elevations, etc. 10 8NRC has and may continue to argue that it would not be appropriate to speculate as to the outcome of the pending State proceedings, especially since, as NRC has repeatedly acknowledged, it does not have jurisdiction over issues related to Indian Point's state water permits. See In re Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), 68 NRC 43, *156-57 (2008) ("NRC is prohibited from determining whether nuclear facilities are in compliance with CWA limitations, assessing discharge limitations, or imposing additional alternatives to further minimize impacts on aquatic ecology that are subject to the CWA... [T]he NRC has promulgated regulations, specifically 10 C.F.R. § 51.53(c)(3Xii)(B), to implement these specific CWA requirements that help assure that the Commission does not second-guess the conclusions in CWA-equivalent state permits, or impose its own effluent limitations ....
It would be futile for the Board to review any of the CWA determinations, given that it is not possible for the Commission to implement any changes that might be deemed appropriate"). However, asking NMFS to perform a relevant analysis (as opposed to a completely irrelevant and useless one) would clearly not conflict with NRC's lack ofauthority to substantively opine on Indian Point's CWA-related permits. Moreover, as stated above, the State proceedings are clearly at a point where reasonably foreseeable outcomes are apparent.
9 Riverkeeper maintains that such an outcome would not be in compliance with federal and state law.
1oNotably, in the state CWA § 401 and SPDES proceedings, Entergy has failed to provide any analysis of the adverse environmental impacts associated with the construction and operation of a 144-screen array in the Hudson River.
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In any event, it is axiomatic that NMFS' relevant analysis and conclusions must be taken into account in the Indian Point operating license renewal proceeding, and in NRC's ultimate licensing decision. The relicensing proceeding, from which the ESA §7 consultation obligation stems, and associated review processes are occurring now. The ESA §7 consultation is a critical aspect to these reviews. In particular, NMFS' analysis is a critical and necessary component of the National Environmental Policy Act ("NEPA") process in the Indian Point license renewal proceeding. Indeed, the Atomic Safety and Licensing Board ("ASLB") presiding over the Indian Point relicensing case had ruled that "NMFS's BiOp will aid the agency [i.e., NRC] in making its licensing decision in this [relicensing] proceeding. Without receipt and consideration of that input from NMFS, the NRC Staff arguably has not taken the requisite hard look at this issue." 1 As a result, the final environmental impact statement that NRC Staff has already issued in the Indian Point license renewal proceeding, in conjunction with a pending supplement to the final environmental impact statement that has yet to be finalized, will be inadequate without review and consideration of a final BiOp that analyzes all relevant issues.
Therefore, whether or not NRC's §7 consultation request is withdrawn until the State proceedings conclude, or whether or not NRC redefines the relevant "proposed action" to ensure an accurate and adequate analysis by NMFS, it is clear that NRC must factor NMFS' ultimate analysis and conclusions into the environmental review process concerning the proposed license renewal of Indian Point, and in the final decision regarding whether to grant renewed licenses for 12 the plant.
"*In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3, Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI, Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions (July 6, 2011), at 69-70.
12 In the event NRC does not choose either of these options, and proceeds with consultation under the faulty assumption regarding how Indian Point would continue to operate, as NMFS has made clear, re-initiation of consultation will be necessary once the outcome of the State proceedings is known, to account for the inevitable new information and circumstances that will arise. Under such a scenario, NRC, at that time would be obliged to consider NMFS' new/additional analysis and conclusions in the Federal environmental review process concerning the proposed license renewal of Indian Point, and in the final decision regarding whether to grant renewed operating licenses to the facility. For example, as discussed above, should Entergy's proposal to implement cylindrical wedge wire screens at Indian Point ultimately prevail, a new assessment by NMFS would clearly be necessary, as such screens would impact shortnose and Atlantic sturgeon in the Hudson River, which will have to be accounted for in the Federal relicensing case.
Notably, given NRC's noted lack ofjurisdiction over CWA-related issues, NRC may choose to not await the outcome of the Indian Point SPDES permit renewal proceeding before attempting to conclude the license renewal proceeding; additionally, while NRC may not issue renewed operating licenses for Indian Point unless the plant receives a valid CWA § 401 WQC, this does not prevent NRC from attempting to finalize and conclude all otherwise required analyses and review processes, or-from reaching a determination about the appropriateness of relicensing Indian Point from a safety and environmental perspective, which could be executed in the event a valid
§401 certification is issued.. However, under no circumstances would it be legal for NRC to in any way preclude consideration of the ESA §7 consultation process in the relicensing proceeding: consideration of NMFS's assessment on endangered species impacts is necessary pursuant to NEPA. See generally,Riverkeeper, Inc.
Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staff's Final Supplemental Environmental Impact Statement (Feb. 3, 2011), accessible at, hltt:Jiwww.nrc.cov/reading-rm/adams.hlml4web-based-adams, ADAMS Accession No. MLl 10410362 (proffering a legal contention asserting the insufficiency of NRC's final environmental impact statement for failure to account for the ESA §7 consultation process, which was later deemed a valid and adjudicable issue by presiding ASLB). Therefore, when, in the future, 5
In the event that NRC does not either withdraw and hold in abeyance its request for ESA §7 consultation pending the outcome of the State proceedings, or, request ESA §7 consultation for a redefined "proposed action" to ensure an accurate and adequate analysis by NMFS, and NMFS intends to issue a Final BiOp, Riverkeeper submits the following comments on the new draft BiOp.13 NMFS' Incidental Take Statement NMFS' draft BiOp includes an Incidental Take Statement ("ITS") which exempts the take of 562 shortnose sturgeon impinged by Indian Point Units 1, 2, or 3 intakes throughout the proposed relicensing period, and 219 New York Bight ("NYB") Distinct Population Segment ("DPS")
Atlantic sturgeon impinged by Indian Point Units 1, 2, or 3 intakes throughout the proposed relicensing period. 14 NMFS concludes that such losses of sturgeon caused by Indian Point over a proposed 20 period of extended operation are not significant.
Riverkeeper does not agree that such losses are appropriate or acceptable. Notably, sturgeon are an aspect of the designated use assigned to the Hudson River pursuant to the CWA; this designated use dictates that the Hudson River "shall be suitable for fish, shellfish, and wildlife propagation and survival."' 5 Moreover, the historical existing use of the Hudson River as a sturgeon fishery is an established fact. The degree and appropriateness of the impact of Indian Point on endangered sturgeon in the Hudson River must be considered in view of these circumstances. f In addition, due to the slow maturation process and intermittent spawning of shortnose and Atlantic sturgeon, (which NMFS' draft BiOp recognizes' 7), any impacts on this species may NMFS assesses new, previously unanalyzed information arising out of the ultimate decisions inthe now pending State proceedings, this will necessitate a supplemental review and analysis by the NRC in the license renewal proceeding pursuant to NEPA.
13Riverkeeper does not repeat, but incorporates by reference the comments previously submitted related to shortnose sturgeon (Letter from D. Brancato (Riverkeeper) to P. Kukul (NMFS), J. Williams (NMFS), and J.
Crocker (NMFS) re: Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 15, 2011)), to the extent they were not adequately addressed or considered in NMFS' previous final BiOp, and, in turn, NMFS' current draft BiOp.
"AEndangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 119.
" 6 NYCRR § 864.6; 6 NYCRR § 701.11.
16See generallyRiverkeeper, Natural Resources Defense Council, and Scenic Hudson Petition for Full Party Status and Adjudicatory Hearing, (July 10, 2010), accessible at, http://www.riverkeeoer.org/wp-contenL/uploads:'2010/07/RK-NRDC-SH-Petition-lbr-Full-Parly-Slatus-lndian-Point-40 l-WOC'-scanned.pdf (last visited Nov. 20, 2012) at 31-34. Riverkeeper appreciates and understands the difference between the ESA and the CWA, but respectfully submits that the protections afforded to endangered resources pursuant to the CWA are relevant and important.
17Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NNFS Draft 10-26-12), at 15, 24, 26.
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have noticeable affects, and it is critical that such impacts are kept to a minimum. Fisheries Biologist Dr. Peter Henderson of Pisces Conservation Ltd has provided his expert opinion that these numbers are appreciable, and for "endangered long-lived species," "cannot be considered trivial.""8 In relation to shortnose sturgeon, as Dr. Henderson explains, the special significance of the Hudson River to the species warrants particular protection. 19 Dr. Henderson points out that favorable recruitment of shortnose sturgeon may not persist given potential climate change impacts and explains the lack of scientific support for the claim that the population of shortnose sturgeon in the Hudson River is stable and at carrying capacity; Dr. Henderson further disagrees with NMFS' conclusion that the proposed relicensing of Indian Point will not necessarily affect the population of shortnose sturgeon in the Hudson River, since Indian Point will undoubtedly contribute to the reduction of the likelihood that individual sturgeons will reach old age; Moreover, Dr. Henderson explains that the lack of information on the range of mortality rates attributable to man and 20 their combined impact on the Hudson River population of shortnose sturgeon is unclear.
In relation to Atlantic sturgeon, Dr. Henderson explains that fate of Atlantic sturgeon in the Hudson River is important since recent spawning information is only known from the Hudson and Delaware rivers. 2 1 Dr. Henderson does not agree that the impingement of a small proportion of the juvenile population of Atlantic sturgeon will not necessarily jeopardize the continued 2 2 existence of the species, since impingement mortality and habitat degradation hinder recovery.
Dr. Henderson explains that the indication that the population of Atlantic sturgeon is increasing is poor and does not properly ground NMFS' conclusion that the losses attributable to Indian Point are not significant, as well as the fact that, similar to shortnose sturgeon, combined effects related to Atlantic sturgeon are not well-quantified. 3 Dr. Henderson has further explained to Riverkeeper that it is important to distinguish the impacts of power plant operations from other impacts such as fishing. For example, while there is a tendency to view power stations as another exploiter of a population like fishermen, this is not the case because if the population has a couple of poor recruitment years, it is possible for environmental managers to reduce the hunting take. That is, fishing activity can be actively managed and a response made quickly if a population gets into trouble. On the other hand, nuclear power plants, once given permission to operate, will continue to operate and do harm for many years. It is effectively impossible for the license of such a plant to be revoked or for the output and water use of a plant to be quickly changed because a population is getting into trouble. To the contrary, they are inflexible, and, as a result, cannot contribute to population management. Dr. Henderson has advised Riverkeeper that over long periods of 10-25 years, this IsAttachment I - Memorandum from Pisces Conservation Ltd, "Sturgeon and Indian Point," (Nov. 21, 2012) at 1.
'9 Id at 1-2.
20 Id.
21 Id. at 2.
22 id.
7 id 7
inflexibility is likely to become important and harmful as all populations will occasionally have hard times. Because of the particularly inflexible and detrimental impacts of power plants, care and caution must be taken over decisions involving such plants.
The expert assessment of Pisces Conservation Ltd clearly reveals that NMFS' conclusions exempting the take of endangered sturgeon in the Hudson River are not adequately founded.
In addition, NMFS' conclusions regarding the prospective impacts to endangered sturgeon from the ongoing, i.e., future, operation of Indian Point are not well-founded due to the fact that they are based on data that was collected over twenty years ago. That is, NMFS drew conclusions without any knowledge about the current actual impacts of Indian Point. As a result, NMFS' findings are arbitrary and inherently unreliable. As Dr. Henderson explains, the populations of both shortnose and Atlantic sturgeon have changed since data was collected, as well as plant operations and technical specifications; a notable example is that no sampling has been undertaken since Ristroph screens were installed, resulting in no relevant data on sturgeon survival.24 25 NMFS'Assessment ofthe Cumulative Impacts to Atlantic Sturgeon NMFS recognizes that Indian Point has had and (with the continued use of the existing once-through cooling water intake structure) will continue to have adverse impingement impacts on endangered Atlantic sturgeon in the Hudson River.26 NMFS has concluded the loss of Atlantic sturgeon from the ongoing (existing) operation of Indian Point would "not appreciably reduce the likelihood that the NYB DPS of Atlantic Sturgeon will survive in the wild.""
However, it remains questionable whether NMFS has adequately assessed the losses of Atlantic sturgeon in the Hudson River in view of all Atlantic sturgeon entrainment- and impingement-related losses over all intakes of all the power plants in the Hudson River and other relevant waters. All of these intakes taken together are authorized to withdraw trillions of gallons of water every year.2 8 While NMFS' draft BiOp makes cursory reference to the existence of other 14 Id. at 1-2.
2s Riverkeeper submitted concerns related to the inadequate consideration of cumulative impacts on shortnose sturgeon, which are incorporated by reference into the instant comments. See Letter from D. Brancato (Riverkeeper) to P. Kukul (NMFS), J. Williams (NMFS), and J. Crocker (NMFS) re: Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 15, 2011), at 5-7; see also Attachment 1 -
Memorandum from Pisces Conservation Ltd, "Sturgeon and Indian Point," (Nov. 21, 2012) at 1-2.
26 Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 14.
Id. at 116.
28 See, e.g., NYSDEC Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System Permits for the Roseton 1 & 2, Bowline I & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties, Hudson River Power Plants FEIS (June 25, 2003) (hereinafter "2003 DEC Hudson River Power Plants FEIS"), at 71 (Responses to Comments),
availableat, http:/iwww.dec.niv.mov/docsipermits ei operations pdfVFElSHRPP6.pdf (indicating in 2003 that "[tfhe sheer volumes of water necessary to meet the HRSA [Hudson River Settlement Agreement] plants' cooling requirements are enormous. Together, Indian Point, Roseton, and Bowline are authorized to withdraw 1.69 trillion gallons per year for cooling water . . ")(emphasis added).
8
impingement related impacts to Atlantic sturgeon in the Hudson River, NMFS presents no analysis of the combined, total cumulative impacts to shortnose sturgeon, and no assessment of whether, in light of such overall impacts, the losses caused by Indian Point would appreciably affect the species in the river. As Dr. Henderson of Pisces 29 Conservation Ltd has previously advised, a BiOp without such an analysis is deficient.
In particular, if Indian Point might allegedly kill 219 individual Atlantic sturgeon over the proposed 20 year license renewal period for Indian Point, such losses must be considered as part of an overall loss from all water extraction activities. That is, NMFS must assess what losses all power plants combined inflict on Atlantic sturgeon. 30 NMFS' draft BiOp reveals an inadequate sense of the spatial extent of the Hudson River Atlantic sturgeon population or threats facing it. 31 There is a dearth of analysis of the cumulative impacts over the geographical range of this population. In addition, a cumulative impact assessment must also appropriately consider the combined impacts of other projects that affect endangered sturgeon in the Hudson River and NYB DPS, including the Tappan Zee Bridge Replacement Project; as NMFS' draft BiOp indicates,32this transportation infrastructure project will result in impacts to endangered sturgeon.
An adequate cumulative impact analysis is necessary in order to arrive at any ultimate conclusions regarding the impact of Indian Point on this endangered species, and, if appropriate, to determine further reasonable and prudent measures necessary to minimize impacts to Atlantic sturgeon. For example, if the combined impacts to Atlantic sturgeon are significant, then each plant must reduce its impact, even if each is not responsible for an appreciable number. NMFS cannot deem the losses caused by Indian Point acceptable in a vacuum, i.e., without putting such 29 See Letter from D. Brancato (Riverkeeper) to P. Kukul (NMFS), J.Williams (NMFS), and J. Crocker (NMFS) re:
Draft Biological Opinion for License Renewal of the Indian Point Nuclear Generating Unit Nos. 2 and 3 (Sept. 15, 201 l),at 5-7; see also 2003 DEC Hudson River Power Plants FEIS, at 16, availableat, http://www.dec.ny.gov/docs/permnits ei operations pdf/FEISH-RPP3.pdf ("In addition to impingement and entrainment losses associated with the operation ofCWIS, anotherconcern is the cumulative degradationof the aquatic environment as a result of: (1) multiple intake structures operating in the same watershed or in the same or nearby reaches; and (2) intakes located within or adjacent to an impaired waterbody.... [iThere is concern about the effects of multiple intakes on fishery stocks") (emphasis added); see also id. at 54 (Responses to Public Comments), availableat, littp://www.dec.nv.gov!docs/pei-nits ei operations pdfiFErSHRPP5.pd C("The actual draw-down [i.e., "[t]he direct reduction of the quantity of organisms within the water column by water intakes"] is likely even greater because the three HRSA generating plants (combined with other facilities in the same river reaches) act cumulatively on the entire aquatic community') (emphasis added).
30 It is well known that other power plants impinge and entrain sturgeon, which the draft BiOp acknowledges and describes in part. See also NMFS Sturgeon Recovery Plan, at 55 ("The operation of power plants in the upper portions of rivers has the greatest potential for directly affecting sturgeon populations because of the increased incidence of entraining younger and more vulnerable life stages. Documented mortalities of sturgeon have occurred in the Delaware, Hudson, Connecticut, Savannah and Santee rivers. Between 1969 and 1979, 39 shortnose sturgeon were impinged at power plants in the Hudson River (Hoff and Klauda 1979).").
31For example, does the population extend into Long Island Sound and other areas of adjacent coast where it is impacted by other intakes?
32Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12) at 44.
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losses into proper context, and determining whether such losses are significant in light of all other relevant impacts to the species.
Similarly, while NMFS has concluded that the thermal plume at Indian Point is not likely to negatively affect Atlantic sturgeon in the vicinity of the plant, NMFS has failed to adequately assess the cumulative impacts of power plant thermal plumes on Atlantic sturgeon.33 While it may be correct that Atlantic sturgeon will avoid water that is too warm for them, if there are numerous regions with plumes that are being avoided, NMFS must assess what total loss of habitat may be occurring and whether such loss is appreciable for the species in the Hudson River. This is especially important in light of global climate change, which NMFS recognizes will cause the water temperature of the Hudson River to rise over time. NMFS must view the thermal impacts of Indian Point with regard for the broader range of thermal impacts faced (and to be faced) by the species in the river.
NMFS' overall conclusion is that the continued operation of Indian Point during Entergy's proposed 20 year period of extended operation "is not likely to jeopardize the continued existence of' NYB DPS of Atlantic sturgeon. 35 However, given NMFS' failure to properly view the losses of Atlantic sturgeon caused by the operation of Indian Point in light of total impacts to this species in the Hudson River, these conclusions are, as yet, dubious.
NMFS' Failure to Adequately Consider Impacts of RadiologicalReleases from Indian Pointon EndangeredSturgeon In contrast to NMFS' previous draft BiOp (which omitted any mention, let alone discussion and analysis of radiological discharges from Indian Point), NMFS' new draft BiOp does include a discussion of the potential impact of radionuclides from Indian Point on endangered sturgeon in the Hudson River. However, NMFS' analysis is not adequate to resolve all concerns related to the potential effects on shortnose and Atlantic sturgeon caused by the regular release of radionuclides directly to the Hudson River from Indian Point, as well as the toxic radionuclide laden contamination plumes that underlie the site,. which undeniably migrate and release to the Hudson River.
NMFS discusses Entergy's REMP program, as well as a one-time enhanced radiological monitoring study conducted in 2007 (i.e., 5 years ago), and based on this information, concludes that "while shortnose and Atlantic sturgeon may be exposed to radionuclides originating from 33Riverkeeper has offered comments on the illegality of NYSDEC's proposed issuance of a 75-acre mixing zone to allow the facility to discharge heated effluent to the Hudson and expects that issues related to thermal considerations will be advanced to adjudication.
34See 2003 DEC Hudson River Power Plants FEIS at 71 (Public Comment Summary), availableat, htt2://www.dec.nv.i,-ov/docs!permits ei operations pdf!FEISHRPP6.pdf(indicating in 2003 that "(tiogether, Indian Point, Roseton, and Bowline are authorized to withdraw 1.69 trillion gallons per year for cooling water, and they discharge 220 trillion BTU of waste heat per year. The volume of once-through cooling water is raised between 15*F and 180F, depending on the plant, or an average of 16.2'F"); see also supraNote 9 (discussing concerns relating to cumulative impacts to aquatic ecology of the Hudson River).
" Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 117.
10
Indian Point... any exposure is not likely to be at levels that would affect the health or fitness of any individual shortnose or Atlantic sturgeon.... Thus, NMFS considers the effects to shortnose and Atlantic sturgeon from radionuclides to be insignificant and discountable."' 36 However, NMFS' limited review does not warrant such definitive and sweeping conclusions.
To begin with, it is necessary to clarify that the radiological contamination at Indian Point is not simply the result of past spent fuel pool leaks, which NMFS' draft BiOp seems to imply. In fact, decades of leaks from a variety of components, including the Unit I and Unit 2 spent fuel pools, but also underground pipes and structures, and other components, has resulted in extensive plumes of contamination (which contain, inter alia,highly toxic strontium-90 and cesium-137, as well as tritium) in the groundwater beneath the Indian Point plant. It is undisputed that this contamination leaches through the bedrock beneath Indian Point, and discharges to the Hudson River.37 Other critical overlooked and unmentioned facts are that active current radiological leaks occur, future additional leaks are highly likely, and that any such leaks at Indian Point will add to the existing contamination plumes. 8 Entergy's current "remediation" methodology is Monitored Natural Attenuation, 39 and, thus, this contamination will persist in the groundwater and continually be discharged to the Hudson River throughout the proposed period of extended operation, and beyond.
In light of these circumstances, NMFS' assessment of the potential impact of radiological releases from Indian Point on endangered species in the Hudson River in its draft BiOp is wanting. In particular, NMFS has failed to consider cumulative impacts on endangered species due to ongoing and future radiological releases from Indian Point throughout the proposed relicensing period. It is undisputed that past fish samples have showed elevated levels of radionuclides, and there is every reason to believe, absent any enhanced and regular fish sampling scheme, that because the groundwater contamination at Indian Point directly discharges to the Hudson River, it may impact fish in the river during the proposed relicensing terms. Even if endangered species in the Hudson River are being exposed to "small" levels of radionuclides, NMFS has demonstrably failed to conduct the assessment necessary to found the sweeping conclusion that any such impacts are "insignificant and discountable." Relying on a one-time study that was conducted 5-years ago for an apparent assurance that the radionuclides attributable to Indian Point will not impact endangered resources through 2035 belies logic and science. Moreover, NMFS' reliance on Entergy's REMP program, which involves a relatively limited set of opportunistic sampling that does not involve sampling of bone, where Strontium-36 Id. at 102.
37 See Groundwater Investigation Executive Summary (Indian Point Entergy Center, Buchanan, N.Y., Jan. 2008), at I ("The plumes ultimately discharge to the Hudson River to the West").
38 See generally, Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Petition for Full Party Status and Adjudicatory Hearing, (July 10, 2010), accessible at, http://www.iiverkeeper.orgi/wp-content/uploads/2010/07/RK-NRDC-SH-Petition-for-Full-Paulv-Stalus-Ilndian-Point-40 I-WOC-scanned.pdr (last visited Nov. 20, 2012), at 39-48; Post-Hearing Closing Brief of Intervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No. 3 - Radiological Materials (April 27, 2012), at 24-66.
39 See, e.g., GZA GeoEnvironmental, Inc., Hydrogeologic Site Investigation Report, Indian Point Energy Center (Jan. 7, 2008) ("The proposed remediation technology is source elimination/control ... with subsequent Monitored Natural Attenuation, or MNA.")
II
90 is known to concentrate, is clearly inadequate to support an overall conclusion that radionuclides from Indian Point pose no danger to shortnose and Atlantic sturgeon in the Hudson River for the next 20+ years. Notably, Riverkeeper has questioned the legality of the accidental radiological releases from Indian Point to waters of NYS in State proceedings that are still pending. Those proceeding revealed Entergy's failure to demonstrate that radiological leaks will not adversely impact the aquatic ecology of the Hudson 4River, 0 which includes endangered sturgeon species, during the proposed relicensing terms.
The lack of adequate analysis by NMFS is particularly troubling given the known dangers of exposure to radioactive substances such as strontium-90 and tritium: Strontium-90 imitates calcium by concentrating in fish bones and shells of clams and blue crab. Clams are a major part of the diet of sturgeon found in the Hudson River. Riverkeeper, therefore, continues to be concerned that Hudson sturgeon are being exposed to elevated levels of this dangerous substance, opine that NMFS' assessment does not resolve these concerns.
In addition, Entergy has indicated that cesium contamination is present in Hudson River sediments in front of Indian Point and that this contamination is attributable in part to releases from Indian Point. 41 Entergy's plans to dredge such sediments in order to install cylindrical wedge wire screens on the river-bottom poses a clear risk to endangered sturgeon from radionuclides from Indian Point. Yet, NMFS has failed to consider such impacts. Notably, Entergy's lack of adequate information on the what levels of contaminants attributable to Indian Point are in the river sediments or how sediment discharges can and should be controlled 4 2 highlights the potential risks posed to endangered sturgeon species in the river that have not been accounted for.
NMFS' BiOp must properly analyze the potential effects of radiological releases and groundwater contamination at Indian Point on shortnose and Atlantic sturgeon. Assessing this issue is a critical aspect of NMFS' overall assessment of impacts to these endangered species, and should certainly be considered in terms of further necessary and appropriate reasonable and prudent measures that should be implemented at Indian Point. For example, appropriate measures include remediation and mitigation measures to assure that radiological contamination attributable to Indian Point does not discharge to the Hudson River 43 in the first instance, which, according to representations from Entergy, is entirely possible.
40 See generally Post-Hearing Closing Brief of Intervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No. 3 - Radiological Materials (April 27, 2012).
41IPEC CWW Dredging Step I - Draft White Paper Postulated Contamination Characterization (Nov. 2011).
Notably, Riverkeeper filed a motion to reopen the record in the State adjudicatory proceedings to allow meaningful consideration of the information in this report, which came to light after hearings on the relevant issue concluded, in relation to how radiological leaks at Indian Point have impacted, or will impact, the Hudson River. While this motion was denied, the time to appeal the denial is still ongoing; moreover, the State tribunal has indicated that concerns related to the sediment issue can appropriately be raised in the context of hearings related to Entergy's cylindrical wedge wire screen proposal.
42 See id.
43 In the Matter of: Entergy Nuclear Indian Point 2, LLC, and Entergy Indian Point 3, LLC, For a State Pollution Discharge Elimination System Permit Renewal and Modification, DEC No.: 3-5522-00011/00004, SPDES No.: NY-0004472; Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear 12
NMFS' Failureto Assess all Reasonable and Prudent Measures NMFS concludes that potential losses of Atlantic sturgeon caused by Indian Point over a proposed 20 year period of extended operation are not significant, and therefore, exempts a certain level of impingement. As discussed above, NMFS' conclusions are, at a minimum, uncertain, given the extent of the take, and due to NMFS' failure to properly assess the cumulative impacts to sturgeon in the Hudson River. Moreover, Riverkeeper once again respectfully submits that, because of the slow maturation process and intermittent spawning of Atlantic sturgeon, (which NMFS' draft BiOp recognizes ), any impacts on this species may have noticeable affects, and that it is critical that impacts on Atlantic sturgeon are kept to a minimum.
In any event (that is, whether NMFS' overall conclusions are supportable or whether the impacts may be more significant than the draft BiOp concludes), due to the availability of a technology that would substantially reduce the impacts to Atlantic sturgeon caused by Indian Point, i.e.,
closed-cycle cooling,4 Riverkeeper fails to understand why the draft BiOp does not assess the efficacy plant. of this technology as a "reasonable and prudent measure"46 to be implemented at the While Riverkeeper understands that the outcome of the NYDEC SPDES permit modification proceeding will ultimately determine whether closed-cycle cooling will be required at Indian Point, 47 there is no reason this should preclude NMFS from examining this technology, and Operations, Inc. Joint Application for CWA § 401 Water Quality Certification, DEC App. Nos. 3-5522-00011/00030 (IP2), 3-5522-00105/00031, Transcript of Arbitration before Daniel P. O'Connell, ALJ, Maria E.
Villa, ALU, Reporter: Alan H. Brock, RDR, CRR, Farmer Arsenault Brock LLC (January 11, 2012, pages 3071-3344; January 23, 2012, pages 3895-4125), at 4041:2-6, 11-14, 4094:1-2, 18-21.
"Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 24, 26.
45 Closed-cycle cooling systems require only a small fraction of the water which is required by once-through cooling systems, and since aquatic mortality is directly related to the amount of water use, a retrofit to a closed-cycle cooling system results in substantial reductions in aquatic mortality. See DEC Fact Sheet, New York State Pollutant Discharge Elimination System (SPDES) Draft Permit Renewal With Modification, Indian Point Electric Generating Station, Buchanan, NY - November 2003, at Attachment B, p.3, availableat htto://www.dec.nv.gov!docs/permits ei operations pdfilndianPointFS.pdf(last accessed Nov. 20, 2012) ("Closed-cycle cooling recirculates cooling water in a closed system that substantially reduces the need for taking cooling water from the River."); see also, e.g., Network for New Energy Choices, The TruthAbout Closed-Cycle Cooling (2010), availableat, hlttp://www.neweneraychoices.orL,!uploads/lishkill truth.pdf(last accessed Nov. 20, 2012).
4See 50 C.F.R. § 402.02 ("Reasonable andprudentmeasures refer to those actions the Director believes necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take."); see id § 402.14(g)(8) ("In formulating its biological opinion .... and any reasonable and prudent measures, the Service will use the best scientific and commercial data available. . ."); see also id § 402.14(i)(ii) ("the Service will provide with the biological opinion a statement concerning incidental take that: ... (ii) Specifies those reasonable and prudent measures that the Director considers necessary or appropriate to minimize such impact").
47 As discussed at length above, in order for the consultation process to be meaningful and useful, NRC should.
request consultation regarding the reasonably foreseeable outcomes of the ongoing State proceedings, or, in the alternative, withdraw its request for consultation and initiate such consultation in the future after the State proceedings conclude. However, ifNRC does not do this, and NMFS and NRC continue the consultation process 13
reaching independent conclusions about whether instituting this technology would be beneficial for endangered aquatic resources in the Hudson River.
Overall, NMFS' "Reasonable and Prudent Measures" fail to result in a net benefit to the endangered sturgeon populations in the Hudson River and NYB DPS. NMFS' "Reasonable and Prudent Measures" require monitoring of impingement, releasing any live sturgeon back to the river, performing necropsy's on any dead sturgeon, conducting genetic sampling of all impinged sturgeon, and reporting any sturgeon sightings near Indian Point. 48 While these measures are certainly important, altogether they fail to reduce the likely non-trivial impact Indian Point will have on endangered sturgeon in the Hudson River.
NMFS' ConservationRecommendations Riverkeeper questions the efficacy and sufficiency of NMFS' "Conservation Recommendations" related to the impact of Indian Point on endangered sturgeon in the Hudson River. NMFS recommends that NRC ensure and/or require tissue analysis, impingement/entrainment/heat shock studies, thermal plume model studies, REMP samples of forage species, mortality studies, in-water assessments and abundance/distribution surveys in the Hudson River and Haverstraw 49 Bay in particular, and studies to assess sturgeon interaction with Indian Point's thermal plume.
To begin with, while these recommendations are important and will result in the existence of better information about the impact of Indian Point on endangered aquatic resources, as NMFS explains, such recommendations from NMFS to the NRC are "discretionary agency actiVities."' 5 Riverkeeper questions the degree to which NRC will undertake any of NMFS' suggestions, given NRC's historical disinclination to "require" licensees to undertake any activities beyond what is specifically dictated by statutes and regulations. NRC has a noted history of ignoring important environmental considerations related to the operation of Indian Point, while taking the stance that the plant is in compliance with applicable laws and regulations. A level of assurance or plan to ensure that NRC meaningfully considers NMFS' Conservation Recommendations, is, therefore, advisable.
In any event, NMFS' Conservation Recommendations fail to achieve a net conservation benefit to the endangered sturgeon populations in the Hudson River. 5' That is, they demonstrably fail to mitigate the significant impact that Indian Point will have on endangered sturgeon during the proposed relicensing period. There is simply no mitigation plan articulated to ensure that endangered sturgeon are adequately protected during the proposed 20 additional years of operation Entergy is seeking for Indian Point.
based on the existing draft BiOp, the efficacy of a closed-cycle cooling system should still be analyzed before finalizing the BiOp.
48 Endangered Species Act Section 7 Consultation, Draft Biological Opinion, Continued Operations of the Indian Point Nuclear Generating Station, F/NER/2012/02252 (NMFS Draft 10-26-12), at 120-21.
49Id. at 125.
so Id.
51 Id.
14
Thank you for your consideration of the foregoing comments. Please do not hesitate to contact me at 914-478-4501, or via e-mail at dbrancato(_iiriverkeeper.org, to discuss anything further.
Sincerely, Deborah Brancato Staff Attorney cc: Sherwin Turk Office of General Counsel Mail Stop: 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Shervwin.Turk(Wnrc.gov 15
ATTACHMENT 1 Memo: Pisces Conservation Ltd To: Deborah Brancato (Riverkeeper)
From: Peter Henderson Date: Wednesday, 21 November 2012 Re: Sturgeon and Indian Point Summary Comments on NMFS' Draft BiOp The first point to note is that it is recognised that impingement will kill appreciable numbers of sturgeon: "the continued operation of IP2 and IP3 ... through the proposed extended license period ... will result in the impingement and mortality of 562 shortnose sturgeon and 219 juvenile New York Bight DPS Atlantic sturgeon" (Draft BiOp at p.108).
For endangered long-lived species, these numbers cannot be considered trivial. Imagine the concern if wind turbines were predicted to kill the same numbers of protected bird species.
A second key point is that all the calculations and predictions are based on data collected prior to 1991. Not only have the populations of both species likely changed since this period, but plant operation and technical specification has also changed. For example, no sampling has been undertaken since the Ristroph screens were installed. There is, therefore, no relevant data on sturgeon survival.
The species are considered in turn below.
Shortnose Sturgeon The first point to note is the importance of the Hudson to this species. "The Hudson River population of shortnose sturgeon is the largest in the United States." (Draft BiOp at p.108). Given the poor health of many other populations, the Hudson is of special significance and merits particular protection.
Recruitment of this species varies appreciably through time and seems to be linked to conditions in the fall. Recruitment was particularly favourable 1986-1992 and this explains the increased population observed in the late 1990s. However, care must be taken not to assume such favourable recruitment will persist, particularly given potential climate change impacts.
To summarise the Draft BiOp, it concludes that the proposed action will not affect the shortnose sturgeon population because the number killed is a small proportion of the total population. It is claimed that the population is stable and possibly at carrying capacity, however, there is no evidence presented to scientifically support this finding.
- Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.com Phone: 44 (0) 1590 674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.pisces-conservatlon.com Page 1 of 2
Memo: Pisces Conservation Ltd The size and age structure of sturgeon populations must be considered in conjunction with numerical abundance. Historically populations of long-lived fish such as sturgeon held some old and very large individuals. Human interference has reduced the average age of the populations. Indian Point will contribute to this reduction as impingement losses effectively reduce the likelihood that an individual will reach old age.
While in-combination effect arguments are recognised, the lack of information on the range of mortality rates attributable to man and their combined impact on the Hudson population is unclear.
Atlantic Sturgeon Recent spawning is only known from the Hudson and Delaware rivers; therefore, the fate of Atlantic sturgeon in the Hudson is of considerable importance.
The present information available on Atlantic sturgeon impingement and juvenile abundance is poor as it comes from pre-1991 studies. It is estimated that impingement will kill a small proportion of the juvenile population and, therefore, will not likely jeopardise the continued existence of the Atlantic Sturgeon. However, we seek a recovery of this species to levels where the population is sustainable and able to take the inevitable setbacks. Impingement mortality and habitat.degradation do not contribute to, but hinder, recovery.
There is some indication that the population is presently increasing, but this is poor and gives no grounds to claim that power plant losses are of no import.
As with the shortnose sturgeon, in-combination effects are not well quantified.
Pisces Conservation Ltd IRC House, The Square pisces@pisces-conservation.corn Phone: 44 (0) 1590674000 Pennington, Lymington www.irchouse.demon.co.uk Fax 44 (0) 1590 675599 Hampshire, S041 8GN, UK www.plsces-conservation.com Page 2 of 2