ML14246A119
| ML14246A119 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 09/15/2014 |
| From: | David Wrona Division of License Renewal |
| To: | Finfera J, Knapp M, Melius T US Dept of Interior, Fish & Wildlife Service |
| Briana Grange 301-415-1042 | |
| References | |
| Download: ML14246A119 (6) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 September 15, 2014 Mr. Tom Melius Midwest Regional Director U.S. Fish and Wildlife Service 5600 American Blvd. West, Suite 990 Bloomington, MN 55437-1458 Ms. Mary Knapp Field Supervisor U.S. Fish and Wildlife Service Ohio Ecological Services Field Office 4625 Morse Rd., Suite 104 Columbus, OH 43230 Ms. Jennifer Finfera Wildlife Biologist U.S. Fish and Wildlife Service Ohio Ecological Services Field Office 4625 Morse Rd., Suite 104 Columbus, OH 43230
SUBJECT:
REQUEST FOR INFORMATION CONCERNING THE ENDANGERED SPECIES ACT SECTION 7 CONSULTATION FOR THE PROPOSED DAVIS-BESSE NUCLEAR POWER STATION, UNIT 1, LICENSE RENEWAL
Dear Mr. Melius,
Ms. Salveter, and Ms. Finfera:
I am writing you today to seek clarification in the consultation pursuant to section 7 of the Endangered Species Act of 1973, as amended (ESA) between the U.S. Nuclear Regulatory Commission (NRC) and the U.S. Fish and Wildlife Service (FWS) for the proposed license renewal of Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse), located in Caroll Township, Ottawa County, Ohio.
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Background===
In a letter dated February 27, 2014, the NRC requested the FWSs concurrence with its biological assessment for the proposed Davis-Besse license renewal in accordance with ESA section 7. The letter transmitted the biological assessment, which is incorporated as part of the NRCs draft Supplement 52 to NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (SEIS), regarding the license renewal of Davis-Besse. The NRC prepared the SEIS pursuant to the National Environmental Policy Act of 1969, as amended (NEPA). In the draft SEIS, the NRC concludes that the continued operation of Davis-Besse during the license renewal term may affect, but is not likely to adversely affect some Federally listed species and would have no effect on other Federally listed species.
T. Melius, M. Knapp, and Following this letter, NRC staff and FWS staff at the FWS Ohio Ecological Services Field Office began communications pursuant to the section 7 consultation. Between May and June 2014, NRC and FWS identified three additional species that have the potential to be affected by Davis-Besse license renewal, and NRC sent the FWS supplemental biological assessments via e-mail on May 6, 2014, and June 17, 2014. NRC also transmitted copies of historical bird mortality studies that were conducted at Davis-Besse to the FWS via e-mail on June 24, 2014.
On July 18, 2014, the NRC staff, FWS staff, and representatives of FirstEnergy Nuclear Operating Company (FENOC or the applicant) held a teleconference to discuss several outstanding questions that the FWS had concerning potential impacts to the Federally endangered Kirtlands warbler (Setophaga kirtlandii) from possible collisions with the Davis-Besse cooling tower or other tall plant structures. During the teleconference, FWS requested that FENOC undertake bird mortality monitoring on the Davis-Besse site for a period of three years to better determine the potential effects of license renewal on Kirtlands warbler. As part of such monitoring, FWS would want FENOC to develop a monitoring plan for its approval. The NRC documented the teleconference in an August 21, 2014, memorandum, which can be accessed through the NRCs Agencywide Documents Access and Management System (ADAMS) at Accession No. ML14213A002. Since the teleconference, NRC and FWS have remained in informal consultation.
According to the Services (FWS and the National Marine Fisheries Services (NMFS)) joint regulations at 50 CFR 402.12(j), the Service will respond in writing within 30 days as to whether or not it concurs with the findings of the biological assessment. For all species included in the ongoing consultation except for Kirtlands warbler, the NRC believes that the Services joint regulations at 50 CFR 402.13(a) apply:
If during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.
Regarding Kirtlands warbler, FWS has verbally requested that FENOC perform a three-year study. FWS, NRC, and FENOC have discussed this request, which arises, in part, from new studies conducted in Ohio that indicates that migratory birds are at a higher risk of collision with tall structures along Lake Erie than was previously thought. Although the NRC has not seen or reviewed these new studies, the FWS described these studies during the July 18, 2014, teleconference.
NRC understands that the provisions of the ESA allow for the FWS to request additional data during consultation. Specifically, 50 CFR 402.14(f) states the following:
When the Service determines that additional data would provide a better information base from which to formulate a biological opinion, the Director may request an extension of formal consultation and request that the Federal agency obtain additional data to determine how or to what extent the action may affect listed species or critical habitat. If formal consultation is extended by mutual agreement according to § 402.14(e), the Federal agency shall obtain, to the extent practicable, that data which can be developed within the scope of the extension. The responsibility for conducting and funding any studies belongs to the Federal agency and the applicant, not the Service. The Service's
T. Melius, M. Knapp, and request for additional data is not to be construed as the Service's opinion that the Federal agency has failed to satisfy the information standard of section 7(a)(2) of the Act. If no extension of formal consultation is agreed to, the Director will issue a biological opinion using the best scientific and commercial data available.
The NRC believes that the FWSs request for FENOC to perform a three-year study at Davis-Besse would constitute additional data in accordance with 50 CFR 402.14(f), which is a subsection of 402.14 Formal Consultation. The provisions of 50 CFR 402.14 explain that though the FWS may request the Federal agency to initiate formal consultation, it is the Federal agencys responsibility to initiate formal consultation by written request.
NRC, therefore, requests the following information of FWS in order to conclude informal consultation and to determine whether initiation of formal consultation for Kirtlands warbler is appropriate.
NRC Requests of FWS To facilitate the conclusion of informal consultation and NRCs possible initiation of formal consultation, the NRC requests the following of FWS:
(1) A written response, preferably by letter, as to whether or not the FWS concurs with NRCs findings in its letter of February 27, 2014, in accordance with 50 CFR 402.12(j).
The NRC requests that the response address each of the following species, for which NRC has made an ESA effect determination of may affect, but not likely to adversely affect: Kirtlands warbler (Setophaga kirtlandii), piping plover (Charadrius melodus), red knot (Calidris canutus rufa), Indiana bat (Myotis sodalis), and northern long-eared bat (Myotis septentrionalis).1 (2) Copies of the studies that FWS described during the July 18, 2014, teleconference that identify new information regarding the risk to Kirtlands warblers from collisions with tall structures along Lake Erie. Such information will facilitate the NRCs requirement to provide the best scientific and commercial data available during formal consultation, if initiated, in accordance with 50 CFR 402.14(d).
(3) Any additional information that the FWS has that would help NRC decide if formal consultation is appropriate.
Additionally, given that the provisions of 50 CFR 402.14(e) specify a timeline of 135 days between the Federal agencys request to initiate formal consultation and the Services delivery of a biological opinion to the Federal agency and applicant, the requested three-year study would not fit within the 135-day timeframe. Although the formal consultation provisions allow the Service and the Federal agency to mutually agree to extend the consultation, a consultation involving an applicant cannot be extended for more than 60 days without the consent of the 1 The NRC made a determination of no effect for the eastern prairie fringed orchid (Platanthera leucophaea) and lakeside daisy (Hymenoxy acaulis var. glabra). The NRC understands that FWS does not typically provide its concurrence with no effect determinations by Federal agencies and that an agencys finding of no effect requires no further informal consultation or the initiation of formal consultation. Accordingly, the written response need not address these species unless FWS finds NRCs no effect determinations inappropriate.
T. Melius, M. Knapp, and applicant. Accordingly, the NRC requests that you provide the following information in accordance with 50 CFR 402.14(e) to support the NRCs and FENOCs consideration of a prolonged formal consultation timeline:
(1) the reasons why a longer period is required, (2) the information that is required to complete the consultation, and (3) the estimated date on which the consultation will be completed.
The NRC requests that you provide this information within 30 days of the date of this letter in order to provide enough time for NRC to review the information and consider whether initiation of formal consultation is appropriate.
If you have any questions regarding this letter, please contact Ms. Briana Grange, Biologist, of my staff at 301-415-1042 or by e-mail at briana.grange@nrc.gov.
Sincerely,
/RA/
David J. Wrona, Chief Environmental Review and Guidance Update Branch Division of License Renewal Office of Nuclear Reactor Regulation Docket No. 50-346
- concurred via email OFFICE LA:DLR*
AB:RERB:DLR AB:RERB:DLR OGC(NLO)
BC:RPB2:DLR BC:RERB:DLR NAME IKing BGrange DLogan BMizuno BWittick DWrona DATE 9/9/14 9/12/14 9/12/14 9/11/14 9/12/14 9/15/14
Letter to T. Melius, A. Salveter, and J. Finferra from D. Wrona dated September 15, 2014
SUBJECT:
REQUEST FOR INFORMATION CONCERNING THE ENDANGERED SPECIES ACT SECTION 7 CONSULTATION FOR THE PROPOSED DAVIS-BESSE NUCLEAR POWER STATION, UNIT 1, LICENSE RENEWAL DISTRIBUTION:
E-MAIL:
PUBLIC EndangeredSpecies Resource RidsNrrDlr Resource RidsNrrDlrRerb Resource RidsNrrDlrRpb2 Resource RidsNrrPMDavisBesse Resource BGrange DLogan MMoser EKeegan DWrona BWittick mary_m_knapp@fws.gov jennifer_finfera@fws.gov